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E. Working conditions for special groups of employees

1. Apprentices and learners

a. Apprentices

1) Concepts

Apprentice – is a worker who is covered by a written apprenticeship agreement with an individual employer or any of the entities recognized under the Labor Code. (Article 58[b], Labor Code)

Apprenticeship – means practical training on the job supplemented by related theoretical instruction. (Article 58[a], Ibid.)

Apprenticeable occupation – means any trade, form of employment or occupation which requires more than three (3) months of practical training on the job supplemented by related theoretical instruction. (Article 58[c], Ibid.)

Apprenticeship agreement – is an employment contract wherein the employer binds himself to train the apprentice and the apprentice in turn accepts the terms of training. (Article 58[d], Ibid.)

2) Qualifications

To qualify as an apprentice, a person shall:

1) Be at least fourteen (14) years of age;

2) Possess vocational aptitude and capacity for appropriate tests; and

3) Possess the ability to comprehend and follow oral and written instructions. (Article 59, Ibid.)

3) Employers in highly technical industries

Only employers in the highly technical industries may employ apprentices and only in apprenticeable occupations approved by the DOLE Secretary. (Article 60, Ibid.)

4) Apprenticeship agreement

Apprenticeship agreements, including wage rates of apprentices, shall conform to the rules issued by the DOLE Secretary. The period of apprenticeship shall not exceed six months. Apprenticeship agreements providing for wage rates below the legal minimum wage, which in no case shall start below 75 per cent of the applicable minimum wage, may be entered into only in accordance with apprenticeship programs duly approved by the DOLE Secretary. The DOLE shall develop standard model programs of apprenticeship. (Article 61, Ibid.)

a) Signing of apprenticeship agreement

Every apprenticeship agreement shall be signed by the employer or his agent, or by an authorized representative of any of the recognized organizations, associations or groups and by the apprentice. (Article 62, Ibid.)

An apprenticeship agreement with a minor shall be signed in his behalf by his parent or guardian or, if the latter is not available, by an authorized representative of the Department of Labor, and the same shall be binding during its lifetime. (Paragraph 2, Article 62, Ibid.)

Every apprenticeship agreement entered into under this Title shall be ratified by the appropriate apprenticeship committees, if any, and a copy thereof shall be furnished both the employer and the apprentice. (Paragraph 3, Article 62, Ibid.)

5) Venue of Apprenticeship Programs

Any firm, employer, group or association, industry organization or civic group wishing to organize an apprenticeship program may choose from any of the following apprenticeship schemes as the training venue for apprentice:

1) Apprenticeship conducted entirely by and within the sponsoring firm, establishment or entity;

2) Apprenticeship entirely within a Department of Labor and Employment training center or other public training institution; or

3) Initial training in trade fundamentals in a training center or other institution with subsequent actual work participation within the sponsoring firm or entity during the final stage of training. (Article 63, Ibid.)

6) Sponsoring of apprenticeship program

Any of the apprenticeship schemes recognized herein may be undertaken or sponsored by a single employer or firm or by a group or association thereof or by a civic organization. Actual training of apprentices may be undertaken:

1) In the premises of the sponsoring employer in the case of individual apprenticeship programs;

2) In the premises of one or several designated firms in the case of programs sponsored by a group or association of employers or by a civic organization; or

3) In a Department of Labor and Employment training center or other public training institution. (Article 64, Ibid.)

7) Exhaustion of Administrative Remedies

No person shall institute any action for the enforcement of any apprenticeship agreement or damages for breach of any such agreement, unless he has exhausted all available administrative remedies. (Article 67, Ibid.)

8) Aptitude Testing of Applicants

Consonant with the minimum qualifications of apprentice-applicants required under this Chapter, employers or entities with duly recognized apprenticeship programs shall have primary responsibility for providing appropriate aptitude tests in the selection of apprentices. If they do not have adequate facilities for the purpose, the Department of Labor and Employment shall perform the service free of charge. (Article 68, Ibid.)

9) Responsibility for Theoretical Instruction

Supplementary theoretical instruction to apprentices in cases where the program is undertaken in the plant may be done by the employer. If the latter is not prepared to assume the responsibility, the same may be delegated to an appropriate government agency. (Article 69, Ibid.)

10) Voluntary Organization of Apprenticeship Programs; Exemptions

The organization of apprenticeship program shall be primarily a voluntary undertaking by employers;

When national security or particular requirements of economic development so demand, the President of the Philippines may require compulsory training of apprentices in certain trades, occupations, jobs or employment levels where shortage of trained manpower is deemed critical as determined by the Secretary of Labor and Employment. Appropriate rules in this connection shall be promulgated by the Secretary of Labor and Employment as the need arises; and

Where services of foreign technicians are utilized by private companies in apprenticeable trades, said companies are required to set up appropriate apprenticeship programs. (Article 70, Ibid.)

11) Deductibility of Training Costs

An additional deduction from taxable income of one-half (1/2) of the value of labor training expenses incurred for developing the productivity and efficiency of apprentices shall be granted to the person or enterprise organizing an apprenticeship program: Provided, That such program is duly recognized by the Department of Labor and Employment: Provided, further, That such deduction shall not exceed ten (10%) percent of direct labor wage: and Provided, finally, That the person or enterprise who wishes to avail himself or itself of this incentive should pay his apprentices the minimum wage. (Article 71, Ibid.)

12) Apprentices Without Compensation

The Secretary of Labor and Employment may authorize the hiring of apprentices without compensation whose training on the job is required by the school or training program curriculum or as requisite for graduation or board examination. (Article 72, Ibid.)

b. Learners

1) Concept

Learners – are persons hired as trainees in semiskilled and other industrial occupations which are non-apprenticeable and which may be learned through practical training on the job in a relatively short period of time which shall not exceed three (3) months. (Article 73, Ibid.)

2) When Learners May Be Hired

Learners may be employed when no experienced workers are available, the employment of learners is necessary to prevent curtailment of employment opportunities, and the employment does not create unfair competition in terms of labor costs or impair or lower working standards. (Article 74, Ibid.)

3) Learnership Agreement

Any employer desiring to employ learners shall enter into a learnership agreement with them, which agreement shall include:

1) The names and addresses of the learners;

2) The duration of the learnership period, which shall not exceed three (3)

months;

3) The wages or salary rates of the learners which shall begin at not less than seventy-five percent (75%) of the applicable minimum wage; and

4) A commitment to employ the learners if they so desire, as regular employees upon completion of the learnership. All learners who have been allowed or suffered to work during the first two (2) months shall be deemed regular employees if training is terminated by the employer before the end of the stipulated period through no fault of the learners. (Article 75, Ibid.)

4) Learners in Piecework

Learners employed in piece or incentive-rate jobs during the training period shall be paid in full for the work done. (Article 76, Ibid.)

2. Disabled workers

a. Equal opportunity

1) Concept

No disable person shall be denied access to opportunities for suitable employment. A qualified disabled employee shall be subject to the same terms and conditions of employment and the same compensation, privileges, benefits, fringe benefits, incentives or allowances as a qualified able-bodied person. (Section 5, R.A. 7277, Magna Carta for Disabled Persons)

Five percent (5%) of all casual emergency and contractual positions in the Departments of Social Welfare and Development; Health; Education, Culture and Sports; and other government agencies, offices or corporations engaged in social development shall be reserved for disabled persons. (Paragraph 2, Section 5, Ibid.)

2) Sheltered Employment

If suitable employment for disabled persons cannot be found through open employment as provided in the immediately preceding Section, the State shall endeavor to provide it by means of sheltered employment. In the placement of disabled persons in sheltered employment, it shall accord due regard to the individual qualities, vocational goals and inclinations to ensure a good working atmosphere and efficient production. (Section 6, Ibid.)

3) Apprenticeship

Subject to the provisions of the Labor Code as amended, disabled persons shall be eligible as apprentices or learners: Provided, That their handicap is not as much as to effectively impede the performance of job operations in the particular occupation for which they are hired; Provided, further, That after the lapse of the period of apprenticeship, if found satisfactory in the job performance, they shall be eligible for employment. (Section 7, Ibid.)

b. Discrimination on employment

1) Concept

No entity, whether public or private, shall discriminate against a qualified disabled person by reason of disability in regard to job application procedures, the hiring, promotion, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment. The following constitute acts of discrimination:

1) Limiting, segregating or classifying a disabled job applicant in such a manner that adversely affects his work opportunities;

2) Using qualification standards, employment tests or other selection criteria that screen out or tend to screen out a disabled person unless such standards, tests or other selection criteria are shown to be job-related for the position in question and are consistent with business necessity;

3) Utilizing standards, criteria, or methods of administration that: (1) have the effect of discrimination on the basis of disability; or  (2) perpetuate the discrimination of others who are subject to common administrative control.

4) Providing less compensation, such as salary, wage or other forms of remuneration and fringe benefits, to a qualified disabled employee, by reason of his disability, than the amount to which a non-disabled person performing the same work is entitled;

5) Favoring a non-disabled employee over a qualified disabled employee with respect to promotion, training opportunities, study and scholarship grants, solely on account of the latter’s disability;

6) Re-assigning or transferring a disabled employee to a job or position he cannot perform by reason of his disability;

7) Dismissing or terminating the services of a disabled employee by reason of his disability unless the employer can prove that he impairs the satisfactory performance of the work involved to the prejudice of the business entity: Provided, however, That the employer first sought to provide reasonable accommodations for disabled persons;

8) Failing to select or administer in the most effective manner employment tests which accurately reflect the skills, aptitude or other factor of the disabled applicant or employee that such tests purports to measure, rather than the impaired sensory, manual or speaking skills of such applicant or employee, if any; and

9) Excluding disabled persons from membership in labor unions or similar organizations.  (Section 32, Ibid.)

2) Employment Entrance Examination

Upon an offer of employment, a disabled applicant may be subjected to medical examination, on the following occasions:

1) all entering employees are subjected to such an examination regardless of disability;

2) information obtained during the medical condition or history of the applicant is collected and maintained on separate forms and in separate medical files and is treated as a confidential medical record; Provided, however, That: (1) supervisors and managers may be informed regarding necessary restrictions on the work or duties of the employees and necessary accommodations; (2) first aid and safety personnel may be informed, when appropriate, if the disability may require emergency treatment; (3) government officials investigating compliance with this Act shall be provided relevant information on request; and (4) the results of such examination are used only in accordance with this Act. (Section 33, Ibid.)

c. Incentives for employers

1) To encourage the active participation of the private sector in promoting the welfare of disabled persons and to ensure gainful employment for qualified disabled persons, adequate incentives shall be provided to private entities which employ disabled persons. (Section 8[a], Ibid.)

2) Private entities that employ disabled persons who meet the required skills or qualifications, either as regular employee, apprentice or learner, shall be entitled to an additional deduction, from their gross income, equivalent to twenty-five percent (25%) of the total amount paid as salaries and wages to disabled persons: Provided, however, That such entities present proof as certified by the Department of Labor and Employment that disabled persons are under their employ: Provided, further, That the disabled employee is accredited with the Department of Labor and Employment and the Department of Health as to his disability, skills and qualifications. (Section 8[b], Ibid.)

3) Private entities that improve or modify their physical facilities in order to provide reasonable accommodation for disabled persons shall also be entitled to an additional deduction from their net taxable income, equivalent to fifty percent (50%) of the direct costs of the improvements or modifications. This Section, however, does not apply to improvements or modifications of facilities required under Batas Pambansa Bilang 344. (Section 8[c], Ibid.)

3. Gender

a. Discrimination

1) Prohibition against discrimination

It shall be unlawful for any employer to discriminate against any woman employee with respect to terms and conditions of employment solely on account of her sex.

The following are acts of discrimination:

1) Payment of a lesser compensation, including wage, salary or other form of remuneration and fringe benefits, to a female employee as against a male employee, for work of equal value; and

2) Favoring a male employee over a female employee with respect to promotion, training opportunities, study and scholarship grants solely on account of their sexes. (Article 133, Ibid.)

Criminal liability for the willful commission of any unlawful act as provided in this article or any violation of the rules and regulations issued pursuant to Section 2 hereof shall be penalized as provided in Articles 288 and 289 of this Code: Provided, That the institution of any criminal action under this provision shall not bar the aggrieved employee from filing an entirely separate and distinct action for money claims, which may include claims for damages and other affirmative reliefs. The actions hereby authorized shall proceed independently of each other. (Paragraph 2, Article 133, Ibid.)

b. Stipulation against marriage

It shall be unlawful for an employer to require as a condition of employment or continuation of employment that a woman employee shall not get married, or to stipulate expressly or tacitly that upon getting married, a woman employee shall be deemed resigned or separated, or to actually dismiss, discharge, discriminate or otherwise prejudice a woman employee merely by reason of her marriage. (Article 134, Ibid.)

c. Prohibited acts

It shall be unlawful for any employer:

1) To deny any woman employee the benefits provided for in this Chapter or to discharge any woman employed by him for the purpose of preventing her from enjoying any of the benefits provided under this Code;

2) To discharge such woman on account of her pregnancy, or while on leave or in confinement due to her pregnancy;

3) To discharge or refuse the admission of such woman upon returning to her work for fear that she may again be pregnant. (Article 135, Ibid.)

d. Facilities for women

The Secretary of Labor and Employment shall establish standards that will ensure the safety and health of women employees. In appropriate cases, he shall, by regulations, require any employer to:

1) Provide seats proper for women and permit them to use such seats when they are free from work and during working hours, provided they can perform their duties in this position without detriment to efficiency;

2) To establish separate toilet rooms and lavatories for men and women and provide at least a dressing room for women;

3) To establish a nursery in a workplace for the benefit of the women employees therein; and

4) To determine appropriate minimum age and other standards for retirement or termination in special occupations such as those of flight attendants and the like. (Article 130, Ibid.)

e. Women working in night clubs, etc.

Any woman who is permitted or suffered to work, with or without compensation, in any night club, cocktail lounge, massage clinic, bar or similar establishments under the effective control or supervision of the employer for a substantial period of time as determined by the Secretary of Labor and Employment, shall be considered as an employee of such establishment for purposes of labor and social legislation. (Article 136, Ibid.)

4. Minors

a. Minimum Employable Age

1) No child below fifteen (15) years of age shall be employed, except when he works directly under the sole responsibility of his parents or guardian, and his employment does not in any way interfere with his schooling. (Article 137[a], Ibid.)

2) Any person or entity employing at least fifty (50) persons may during the summer and/or Christmas vacation employ poor but deserving students fifteen (15) years of age but not more than twenty-five (25) years old, paying them a salary or wage not lower than the minimum wage provided by law and other applicable labor rules and regulations. (Section 1, R.A. 7323)

3) It is prohibited to employ a person below eighteen (18) years of age in an undertaking which is hazardous or deleterious in nature as determined by the Secretary of Labor and Employment. (Article 137[c], Labor Code)

b. Employment of children

Children below fifteen (15) years of age shall not be employed except:

1) When a child works directly under the sole responsibility of his parents or legal guardian and where only members of the employer’s family are employed: Provided, however, That his employment neither endangers his life, safety, health and morals, nor impairs his normal development; Provided, further, That the parent or legal guardian shall provide the said minor child with the prescribed primary and/or secondary education; or

2) Where a child’s employment or participation in public entertainment or information through cinema, theater, radio or television is essential: Provided, The employment contract is concluded by the child’s parents or legal guardian, with the express agreement of the child concerned, if possible, and the approval of the Department of Labor and Employment: and Provided, That the following requirements in all instances are strictly complied with:

a) The employer shall ensure the protection, health, safety, morals and normal development of the child;

b) The employer shall institute measures to prevent the child’s exploitation or discrimination taking into account the system and level of remuneration, and the duration and arrangement of working time; and

c) The employer shall formulate and implement, subject to the approval and supervision of competent authorities, a continuing program for training and skills acquisition of the child.

In the above exceptional cases where any such child may be employed, the employer shall first secure, before engaging such child, a work permit from the Department of Labor and Employment which shall ensure observance of the above requirements. (Section 12, R.A. 7610, Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act, as amended by R.A. 7658)

c. Prohibition Against Child Discrimination

No employer shall discriminate against any person in respect to terms and conditions of employment on account of his age. (Article 138, Ibid.)

5. Kasambahay

a. Rights and privileges of the Kasambahay

1) Minimum wage;

2) Other mandatory benefits, such as the daily and weekly rest periods, service incentive leave, and 13th month pay;

3) Freedom from employer’s interference in the disposal of wages;

4) Coverage under the SSS, PhilHealth and Pag-IBIG laws;

5) Standard of treatment;

6) Board, lodging and medical attendance;

7) Right to privacy;

8) Access to outside communication;

9) Access to education and training;

10) Right to form, join, or assist labor organization;

11) Right to be provided a copy of the employment contract;

12) Right to termiate the employment; and

13) Right to exercise their own religious beliefs and cultural practices. (Section 1, Rule IV, Implementing Rules and Regulations of R.A. 10361, Kasambahay Law)

1) Mode of payment for wages

The wages of the Kasambahay shall be paid in cash. No payment by means of promissory notes, vouchers, coupons, tokens, tickets, chits, or any object other than cash shall be allowed. (Section 3, Rule IV, Ibid.)

a) Frequency of payment of wages

The wages of the Kasambahay shall be paid at least once a month. (Section 4, Rule IV, Ibid.)

2) Rest periods

a) Daily rest period

The Kasambahay shall be entitled to an aggregate daily rest period of eight (8) hours per day. (Section 5, Rule IV, Ibid.)

b) Weekly rest period

The Kasambahay shall be entitled to at least twenty-four (24) consecutive hours of rest in a week. The employer and the Kasambahay shall agree in writing on the schedule of the weekly rest day but the preference of the Kasambahay, when based on religious grounds, shall be respected. (Section 6, Rule IV, Ibid.)

c) Allowed stipulations

The Kasambahay and the employer may agree to the following:

1) Offsetting a day of absence with a particular rest day;

2) Waiving a particular rest day in return for an equivalent daily rate of pay;

3) Accumulating rest days not exceeding five (5) days; or

4) Other similar arrangements. (Paragraph 2, Section 6, Rule IV, Ibid.)

3) Service Incentive Leave

A Kasambahay who has rendered at least one (1) year of service shall be entitled to an annual service incentive leave of at least five (5) days with pay. (Section 7, Rule IV, Ibid.)

Any unused portion of said annual leave shall not be cumulative or carried over to the succeeding years. Unused leaves shall not be convertible to cash. (Paragraph 2, Section 7, Rule IV, Ibid.)


4) 13th Month Pay

The Kasambahay who has rendered at least one (1) month of service is entitled to a 13th month pay which shall not be less than one-twelfth (1/12) of his/her total basic salary earned in a calendar year. (Section 8, Rule IV, Ibid.)

The 13th month pay shall be paid not later than December 24 of every year or upon separation from employment. (Paragraph 2, Section 8, Rule IV, Ibid.)

5) Social Security Benefits

A Kasambahay who has rendered at least one (1) month of service shall be covered by the Social Security System (SSS), Employees Compensation Commission (ECC), Philippine Health Insurance Corporation (PhilHealth), and Home Development Mutual Fund or Pag-IBIG, and shall be entitled to all the benefits with their respective policies, laws, rules and regulations. (Section 9, Rule IV, Ibid.)

Benefits under the SSS include sickness, maternity, disability, retirement, death and funeral. A unified benefit package under PhilHealth includes Inpatient Hospital Care and Outpatient Care. (Paragraph 2, Section, Rule IV, Ibid.)

Mandatory premium payments or contributions shall be shouldered by the employer. However, if the Kasambahay is receiving a monthly wage rate of Five Thousand Pesos (Php5,000.00) and above, the Kasambahay shall pay the proportionate share in the premium payments or contributions, as provided by law. (Paragraph 3, Section 9, Rule IV, Ibid.)

6) Loan assistance

An employer may agree to extend loan assistance to the Kasambahay in an amount not exceeding his/her six (6) months’ salary. (Section 10, Rule IV, Ibid.)

The above limitation does not apply to working children. (Paragraph 2, Section 10, Rule IV, Ibid.)

a) Deduction for loans

By written agreement, the employer may deduct the loans from the wages of the Kasambahay, which amount shall not exceed 20% of his/her wages every month. (Section 11, Rule IV, Ibid.)

7) Standard of treatment

The Kasambahay shall be treated with respect by the employer or any member of the household. He/she shall not be subjected to any kind of abuse, including repeated verbal or psychological, nor be inflicted with any form of physical violence or harassment or any act tending to degrade his/her dignity, as defined under the Revised Penal Code, Violence Against Women and Their Children Law (R.A. 9262), Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act (R.A. 7610) as amended by R.A. 9231, Anti-Trafficking in Persons Act of 2003 (R.A. 9208), and other applicable laws. (Section 12, Rule IV, Ibid.)

a) Board, lodging, and medical attendance

The employer shall provide for the basic necessities of the Kasambahay, to include the following:

1) At least three (3) adequate meals a day, taking into consideration the Kasambahay’s religious beliefs and cultural practices;

2) Human sleeping condition that respects the person’s privacy for live-in arrangement; and

3) Appropriate rest and medical assistance in the form of first-aid medicines, in case of illnesses and injuries sustained during service without loss of benefits. (Section 13 Rule IV, Ibid.)

(1) Live-out arrangement

For the Kasambahay under live-out arrangement, he/she shall be provided space for rest and access to sanitary facility. (Paragraph 2, Section 13, Rule IV, Ibid.)

At no instance shall the employer withdraw or hold in abeyance the provision of these basic necessities as punishnet to, or disciplinary action against the Kasambahay. (Paragraph 3, Section 13, Rule IV, Ibid.)

b) Guarantee of privacy

The employer shall, at all times, respect the right of the Kasambahay to privacy, which shall extend to all forms of communication and personal effects. (Section 14, Rule IV, Ibid.)

c) Acccess to outside communication

During the free time, the Kasambahay shall be granted access to outside communication. In case of emergency, access to communication shall be granted even during work time. Should the Kasambahay use the employer’s telephone or other communication facilities, the costs shall be borne by the Kasambahay, unless waived by the employer. (Section 15, Rule IV, Ibid.)

d) Opportunities for education and training

The Kasambahay shall be afforded the opportunity to finish basic education, which shall consist of elementary and secondary education. He/she may be allowed access to alternative learning systems and, as far as practicable, higher education or technical vocational education and training. (Section 16, Rule IV, Ibid.)

The employer shall adjust the work schedule fo the Kasambahay to allow his/her access to education or training without hampering the services required by the employer. Access to education may include financial assistance at the option of the employer. (Paragraph 2, Section 16, Rule IV, Ibid.)

e) Membership in Labor Organization

The Kasambahay shall have the right to join a labor organization of his/her own choosing for purposes of mutual aid and collective negotiation. (Section 17, Rule IV, Ibid.)

The Kasambahay shall be afforded opportunity to attend organization meetings during free time. (Paragraph 2, Section 17, Rule IV, Ibid.)

b. Rights and obligations of the employer

1) Rights and privileges of the employer

1) To require submission of pre-employmet documents by the Kasambahay

2) To recover deployment expenses

3) To demand replacement

4) To terminate employment (Section 1, Rule V, Ibid.)

2) Pay slip

The employer shall, at all times, provide the Kasambahay with a copy of the pay slip containing the amount paid in cash every pay day, and indicating all deductions made, if any. The employer shall keep copies of the pay slips for a period of three (3) years.

3) Registration and enrollment to SSS, PhilHealth, and Pag-IBIG

As employer of the Kasambahay, he/she shall register himself/herself with, and enroll the latter as hisher employee to the SSS, PhilHealth, and Pag-IBIG. (Section 3, Rule V, Ibid.)

4) Prohibition against withholding of wages

It shall be unlawful for the employer to withhold the wages of the Kasambahay directly or indirectly, except as provided for under the IRR (e.g. deductions for loss or damage). (Section 4, Rule V, Ibid.)

It shall also be unlawful for the employer to induce the Kasambahay to give up any part of the wages by force, stealth, intimidation, threat, or by any other unlawful meas. (Paragraph 2, Section 4, Rule V, Ibid.)

5) Prohibition on interference in the disposal of wages

It shall be unlawful for the employer to interfere in the freedom of the Kasambahay in the disposition of his/her wages, such as:

1) Forcing, compelling, or obliging the Kasambahay to purchas merchandise, commodities or other properties from the employer or from any other person; or

2) Making use of any store or services of such employer or ay other person. (Section 5, Rule V, Ibid.)

6) Deductions for loss or damage

Other than those mandated by law, the employer shall not deduct any amount from the wages of the Kasambahay without his/her written consent or authorization: Provided, That, deduction for loss or damage shall only be made under the following conditions:

1) The Kasambahay is clearly show to be responsible for the loss or damage;

2) The Kasambahay is given reasonable opportunity to show cause why deduction should not be made;

3) The total amount of such deductions is fair and reasonable and shall not exceed the actual loss or damage; and

4) The deduction shall wages of the Kasambahay does not exceed 20% of his/her wages in a month. (Section 6, Rule V, Ibid.)

7) Deposist for loss or damage

It shall be unlawful for the employer or any other person to require a Kasambahay to make such deposist from which deductions shall be made for the reimbursement of loss ordamage to tools, materials, furniture, and equipment in the household. (Sectio 7, Rule V, Ibid.)

8) Prohibition against privileged information

All communication and information pertaining to the employer or members of the household shall be treated as privileged and confidential, and shlal not be publicly disclosed by the Kasambahay during and after employment. Such privileged information shall be inadmissible in evidence, except when the suit involves the employer or any member of the household in a crime against persons, property, personal liberty and security and chastity. (Section 8, Rule V, Ibid.)

9) Prohibition against debt bondage

It shall be unlawful for the employer or any person acting on his/her own behalf to place the Kasambahay under debt bondage. (Section 9, Rule V, Ibid.)

10) Assignment to non-household work

The employer shall not assign the Kasambahay to work, whether in full or part-time, in a commercial, industrial or agricultural enterprise at a wage rate lower than that provided for agricultural or non-agricultural workers. (Section 10, Rule V, Ibid.)

11) Extent of duty outside the household

The Kasambahay and the employer may mutually agree for the Kasambahay to temporarily perform a task for the benefit of another household under the following conditions:

1) There is an agreement between the Kasambahay and the employer for the purpose, particularly on the task/s to be performed;

2) The Kasambahay is entitled to additional payment of not less than the applicable minimum wage rate;

3) The original employer shall be responsible for any liability incurred by the Kasambahay on account of such arrangement; and

4) The original employer is not charging any amount from the other household for the arrangement. (Section 11, Rule V, Ibid.)

The temporary performance of work shall not exceed thirty (30) days per assignment. (Paragraph 2, Section 11, Rule V, Ibid.)

The other household where the Kasambahay is temporarily assigned is solidarily liable with the original employer for any nonpayment of wages during such temporary assignment. (Paragraph 3, Section 11, Rule V, Ibid.)

It shall be unlawful for the original employer to charge any amount from the said household where the service of the Kasambahay was temporarily performed. (Paragraph 4, Section 11, Rule V, Ibid.)

12) Health and safety

The employer shall safeguard the safety and health of the Kasambahay in accordance with the stadnards which the DOLE shall develop through the Bureau of Working Conditions (BWC) and the Occupational Safety and Health Center (OSHC). The said contracts shall take into account the peculiar nature of domestic work. (Section 12, Rule V, Ibid.)

c. Standards for employment of working children

1) General prohibition

It shall be unlawful to employ any person below fifteen (15) years of age as Kasambahay. (Section 1, Rule VI, Ibid.)

2) Employment of working children

Working children shall not be subjected to the following:

1) Work for more than eight (8) hours a day and beyond forty (40) hours a week

2) Work between ten o’clock in the evening and six o’clock in the morning of the following day; and

3) Work which is hazardous or likely to be harmful to the health, safety or morals of children, as defined under existing laws and regulations. (Section 2, Rule VI, Ibid.)

3) Benefits of working children

Working children shall be entitled to minimum wage, and all benefits provided under the Batas Kasambahay, which include access to education and training. (Section 3, Rule VI, Ibid.)

6. Homeworkers

a. Distribution of Homework

The employer of homeworkers includes any person, natural or artificial who, for his account or benefit, or on behalf of any person residing outside the country, directly or indirectly, or through an employee, agent contractor, sub-contractor or any other person:

1) Delivers, or causes to be delivered, any goods, articles or materials to be processed or fabricated in or about a home and thereafter to be returned or to be disposed of or distributed in accordance with his directions; or

2) Sells any goods, articles or materials to be processed or fabricated in or about a home and then rebuys them after such processing or fabrication, either by himself or through some other person. (Article 153, Ibid.)

7. Solo parents

a. Flexible Work Schedule

The employer shall provide for a flexible working schedule for solo parents: Provided, That the same shall not affect individual and company productivity: Provided, further, That any employer may request exemption from the above requirements from the DOLE on certain meritorious grounds. (Section 6, R.A. 8972, Solo Parents’ Welfare Act of 2000)

Flexible work schedule – is the right granted to a solo parent employee to vary his/her arrival and departure time without affecting the core work hours as defined by the employer. (Section 3[e], Ibid.)

b. Prohibition against Work Discrimination

No employer shall discriminate against any solo parent employee with respect to terms and conditions of employment on account of his/her status. (Section 7, Ibid.)

c. Parental Leave

In addition to leave privileges under existing laws, parental leave of not more than seven (7) working days every year shall be granted to any solo parent employee who has rendered service of at least one (1) year. (Section 8, Ibid.)

8. Night workers

a. Coverage

These provisions on night workers shall apply to all persons, who shall be employed or permitted or suffered to work at night, except those employed in agriculture, stock raising, fishing, maritime transport and inland navigation, during a period of not less than seven (7) consecutive hours, including the interval from midnight to five o’clock in the morning, to be determined by the Secretary of Labor and Employment, after consulting the workers’ representatives/labor organizations and employers. (Article 154, Labor Code, as amended by R.A. 10151)

b. Concept

Night worker – means any employed person whose work requires performance of a substantial number of hours of night work which exceeds a specified limit. This limit shall be fixed by the Secretary of Labor representatives/labor organizations and employers. (Paragraph 2, Article 154, Ibid.)

c. Health assessment benefit

At their request, workers shall have the right to undergo a health assessment without charge and to receive advice on how to reduce or avoid health problems associated with their work: (a) Before taking up an assignment as a night worker; (b) At regular intervals during such an assignment; and (c) If they experience health problems during such an assignment which are not caused by factors other than the performance of night work. (Article 155, Ibid.)

With the exception of a finding of unfitness for night work, the findings of such shall not be used to their detriment. (Paragraph 2, Article 155, Ibid.)

d. Mandatory facilities

Suitable first-aid facilities shall be made available for workers performing night work, including arrangements where such workers, where necessary, can be taken immediately to a place for appropriate treatment. (Article 156, Ibid.)

The employers are likewise required to provide safe and healthful working conditions and adequate or reasonable facilities such as sleeping or resting quarters in the establishment and transportation from the work premises to the nearest point of their residence subject to exceptions and guidelines to be provided by the DOLE. (Ibid.)

e. Transfer

Night workers who are certified as unfit for night work, due to health reasons, shall be transferred, whenever practicable, to a similar job for which they are fit to work. (Article 157, Ibid.)

If such transfer to a similar job is not practicable, these workers shall be granted the same benefits as other workers who are unable to work, or to secure employment during such period. (Paragraph 2, Article 157, Ibid.)

A night worker certified as temporarily unfit for night work shall be given the same protection against dismissal or notice of dismissal as other workers who are prevented from working for reasons of health. (Paragraph 3, Article 157, Ibid.)

f. Women night workers

NB: Women are allowed to render night work under R.A. 10151 (2011). Prior thereto, the Labor Code prohibited women from doing night time work.

1) Alternative to night work, availability

Measures shall be taken to ensure that an alternative to night work is available to women workers who would otherwise be called upon to perform such work:

a) Before and after childbirth, for a period of at least sixteen (16) weeks, which shall be divided between the time before and after childbirth. (Article 158[a], Ibid.)

b) For additional periods, in respect of which a medical certificate is produced stating that said additional periods are necessary for the health of the mother or child: (i) During pregnancy; (ii) During a specified time beyond the period, after childbirth is fixed pursuant to the earlier paragraph above, the length of which shall be determined by the DOLE after consulting the labor organizations and employers. (Article 158[b], Ibid.)

a) Protection during the stated period

During the periods referred to above:

a) A woman worker shall not be dismissed or given notice of dismissal, except for just or authorized causes provided for in this Code that are not connected with pregnancy, childbirth and childcare responsibilities.

b) A woman worker shall not lose the benefits regarding her status, seniority, and access to promotion which may attach to her regular night work position. (Paragraph 2, Article 158[b], Ibid.)

2) Pregnant women and nursing mothers

Pregnant women and nursing mothers may be allowed to work at night only if a competent physician, other than the company physician, shall certify their fitness to render night work, and specify, in the case of pregnant employees, the period of the pregnancy that they can safely work. (Paragraph 3, Article 158[b], Ibid.)

The measures may include transfer to day work where this is possible, the provision of social security benefits or an extension of maternity leave. (Paragraph 4, Article 158[b], Ibid.)

These shall not have the effect of reducing the protection and benefits connected with maternity leave under existing laws. (Paragraph 5, Article 158[b], Ibid.)

3) Compensation

The compensation for night workers in the form of working time, pay or similar benefits shall recognize the exceptional nature of night work. (Article 159, Ibid.)

4) Night work schedules

Before introducing work schedules requiring the services of night workers, the employer shall consult the workers’ representatives/labor organizations concerned on the details of such schedules and the forms of organization of night work that are best adapted to the establishment and its personnel, as well as on the occupational health measures and social services which are required. In establishments employing night workers, consultation shall take place regularly. (Article 161, Ibid.)

9. Migrant workers

a. Concepts

Authority – refers to a document issued by the Secretary of Labor and Employment authorizing the officers, personnel, agents or representatives of a licensed recruitment/manning agency to conduct recruitment and placement activities in a place stated in the license or in a specified place. (Section 1 [b], Rule II, Omnibus Rules and Regulations Implementing the Migrant Workers and Overseas Filipino Act of 1995, as amended by R.A. 10022)

Direct Hires – workers directly hired by employers for overseas employment as authorized by the Secretary of Labor and Employment and processed by the POEA, including: (a) Those hired by international organizations; (b) Those hired members of the diplomatic corps; or (c) Name hires or workers who are able to secure overseas employment opportunity with an employer without the assistance or participation of any agency. (Section 1[i], Rule II, Ibid.)

Employment Contract – refers to the following: (a) For land-based workers hired by private recruitment/employment agencies – an individual written agreement between the foreign principal/employer and the worker based on the master employment contract approved by the Administration; and (b) For seafarers – written standard POEA-approved employment contract stipulating a specific period of employment and formulated through tripartite consultation, individually adopted and agreed upon by the principal/employer and the seafarer. (Section 1[o], Rule II, Ibid.)

Filipino Service Contractor – refers to any person, partnership or corporation duly licensed as a private recruitment agency by the Secretary of Labor and Employment to recruit workers for its accredited projects or contracts overseas. (Section 1[p], Rule II, Ibid.)

Head or manage – refers to any of the following acts: (a) Control and supervise the operations of the recruitment/manning agency or branch thereof of which they are employed; or (b) Exercise the authority to hire or fire employees and lay down and execute management policies of the recruitment/manning agency or branch thereof. (Section 1[r], Rule II, Ibid.)

Joint and several liability – refers to the liability of the principal/employer and the recruitment/manning agency, for any and all claims arising out of the implementation of the employment contract involving Filipino workers for overseas deployment. If the recruitment/manning agency is a juridical being, the corporate officers and directors and partners, as the case may be, shall themselves be jointly and severally liable with the corporation or partnership for the aforesaid claims and damages. (Section 1[s], Rule II, Ibid.)

License – refers to the document issued by the Secretary of Labor and Employment authorizing a person, partnership or corporation to operate a private recruitment/manning agency. (Section 1[w], Rule II, Ibid.)

Non-licensee – refers to any person, partnership or corporation with no valid license to engage in recruitment and placement of overseas Filipino workers or whose license is revoked, cancelled, terminated, expired or otherwise delisted from the roll of licensed recruitment/manning agencies registered with the POEA. (Section 1[cc], Rule II, Ibid.)

Overseas Filipinos – refer to migrant workers, other Filipino nationals and their dependents abroad. (Section 1[hh], Rule II, Ibid.)

Overseas Filipino in distress – refers to an Overseas Filipino who has a medical, psycho-social or legal assistance problem requiring treatment, hospitalization, counseling, legal representation as specified in Rule IX of these Rules or any other kind of intervention with the authorities in the country where he or she is found. (Section 1[ii], Rule II, Ibid.)

Overseas Filipino Worker or Migrant Worker – refers to a person who is to be engaged, is engaged, or has been engaged in a remunerated activity in a state of which he or she is not a citizen or on board a vessel navigating the foreign seas other than a government ship used for military or non-commercial purposes, or on an installation located offshore or on the high seas. A “person to be engaged in a remunerated activity” refers to an applicant worker who has been promised or assured employment overseas. (Section 1[jj], Rule II, Ibid.)

Principal – refers to an employer or foreign placement agency hiring or engaging Filipino workers for overseas employment through a licensed private recruitment/manning agency. (Section 1[oo], Rule II, Ibid.)

Private Recruitment/Employment Agency – refers to any person, partnership or corporation duly licensed by the Secretary of Labor and Employment to engage in the recruitment and placement of workers for overseas employment for a fee which is charged, directly or indirectly, from the workers who renewed their employment contracts with the same principal. (Section 1[pp], Rule II, Ibid.)

Rehires – refer to land-based workers who renewed their employment contracts with the same principal. (Section 1[qq], Rule II, Ibid.)

Regular/Documented Filipino Migrant Workers – refer to the following: (a) Those who possess valid passports and appropriate visas or permits to stay and work in the receiving country; and (b) Those whose contracts of employment have been processed by the POEA, or subsequently verified and registered on-site by the POLO, if required by law or regulation. (Section 1[rr], Rule II, Ibid.)

Seafarer – refers to any person who is employed or engaged in overseas employment in any capacity on board a ship other than a government ship used for military or noncommercial purposes. The definition shall include fishermen, cruise ship personnel and those serving on mobile offshore and drilling units in the high seas. (Section 1[ss], Rule II, Ibid.)

Skilled Filipino Workers – refer to those who have obtained an academic degree, qualification, or experience, or those who are in possession of an appropriate level of competence, training and certification, for the job they are applying, as may be determined by the appropriate government agency. (Section 1[tt], Rule II, Ibid.)

b. Deployment of Migrant Workers

The State shall allow the deployment of OFWs only in countries where the rights of Filipino migrant workers are protected. (Section 4, R.A. 8042, Migrant Workers and Overseas Filipinos Act of 1995, as amended by R.A. 10022)

c. Guarantees for protection of OFW rights from receiving country

1) It has existing labor and social laws protecting the rights of workers, including migrant workers; or

2) It is a signatory to and/or a of multilateral conventions, declarations or resolutions relating to the protection of workers including migrant workers; and/or

3) It has concluded a bilateral agreement or arrangement with the government on the protection of the rights of overseas Filipino Workers;  Provided, that the receiving country is taking positive and concrete measures to protect the rights of migrant workers in furtherance of any of the guarantees under subparagraphs (a), (b), and (c) hereof. (Ibid.)

d. Deployment of OFWs to Ocean-Going Ships

The State shall also allow the deployment of OFWs to ships navigating the foreign seas or to installations located offshore or on high seas whose owners/employers are compliant with international laws and standards that protect the rights of migrant workers. (Section 3, Rule III, Omnibus Rules and Regulations Implementing the Migrant Workers and Overseas Filipino Act of 1995, as amended by R.A. 10022)

e. Deployment to Companies and Contractors with International Operations

The State shall likewise allow the deployment of OFWs to companies and contractors with international operations: Provided, That they are compliant with standards, conditions and requirements, as embodied in the employment contracts prescribed by the POEA and in accordance with internationally-accepted standards. (Section 4, Rule III, Ibid.)

f. Termination or Ban on Deployment

Notwithstanding, in pursuit of the national interest or when public welfare so requires, the POEA Governing Board, after consultation with the DFA, may, at any time, terminate or impose a ban on the deployment of migrant workers. (Section 6, Rule III, Ibid.)

The POEA Governing Board may, after consultation with the DFA, grant exceptions to the ban or lift the ban. (Paragraph 2, Section 6, Rule III, Ibid.)

g. Money claims

1) Labor Arbiter’s jurisdiction

Notwithstanding any provision of law to the contrary, the Labor Arbiters of the NLRC shall have the original and exclusive jurisdiction to hear and decide, within ninety (90) calendar days after the filing of the compliant, the claims arising out of an employer-employee relationship or by virtue of any law or contract involving Filipino workers for overseas deployment including claims for actual, moral, exemplary and other forms of damages. (Section 1, Rule VII, Ibid.)

2) Joint and Several Liability

The liability of the principal/employer and the recruitment/placement agency on any and all claims under this Rule shall be joint and several. (Section 3, Rule VII, Ibid.)

a) Incorporated in employment contract

This liability shall be incorporated in the contract for overseas employment and shall be a condition precedent for its approval. The performance bond to be filed by the recruitment/placement agency, as provided by law, shall be answerable for all money claims or damages that may be awarded to the workers. (Section 1, Rule VII, Ibid.)

b) Liability of corporate officers/directors and partners

If the recruitment/placement agency is a juridical being, the corporate officers and directors and partners, as the case may be, shall themselves be jointly and severally liable with the corporation or partnership for the aforesaid claims and damages. (Paragraph 3, Section 1, Rule VII, Ibid.)

c) Continuing liability

Such liabilities shall continue during the entire period or duration of the employment contract and shall not be affected by any substitution, amendment or modification of the contract made locally or in a foreign country. (Paragraph 4, Section 1, Rule VII, Ibid.)

d) Full reimbursement, plus salaries for unexpired portion

In case of termination of overseas employment without just, valid or authorized cause as defined by law or contract, or any unauthorized deduction from the migrant worker’s salary, the worker shall be entitled to the full reimbursement of his placement fee with interest of twelve per cent (12%) per annum, plus his salaries for the unexpired portion of his employment contract or three (3) months for every year of the unexpired term, whichever is less. (Paragraph 1, Section 5, Rule VII, Ibid.)

e) Unauthorized deductions

In case of any unauthorized deduction, the worker shall be entitled to the refund of the deductions made, with interest of twelve per cent (12%) per annum, from the date the deduction was made. (Paragraph 2, Section 5, Rule VII, Ibid.)

f) OFWs with CBAs

For OFWs with collective bargaining agreements, the case shall be submitted for voluntary arbitration in accordance with Articles 261 and 262 of the Labor Code. (Section 7, Rule VII, Ibid.)

10. Security guards

a. Concepts

Duty Detail Order – refers to a written order/schedule/assignment issued to a security guard and other private security personnel by a superior officer, usually the private security agency or branch manager or operation’s officer, for the performance of security and/or detective service duty/ies. (Section 2[b], D.O. No. 150, Series of 2016)

Net Financial Contracting Capacity (NFCC) – refers to the formula to determine the financial capacity of the contractor to carry out the job, work, or services sought to be undertaken under a Service Agreement. NFCC is current assets minus current liabilities multiplied by K, which stands for contract duration equivalent to: ten (10) for one year or less; fifteen (15) for more than one (1) year up to two (2) years; and twenty (20) for more than two (2) years, minus the value of all outstanding or ongoing projects including contracts to be stated. (Section 2[c], Ibid.)

Private Security Personnel – refers to natural persons, including private detectives, security consultants and security officers, employed by private security agency or firm, to render security and/or detective services. (Section 2[f], Ibid.)

Security Guard – refers to any person who offers or renders personal service to watch or secure a residence, business establishment, building, compound, any other area or property; or inspects, monitors, or performs body checks or searches of individuals or baggage and other forms of security inspection. (Section 2[h], Ibid.)

Security Service Contractor (SSC) – is synonymous with Private Security Agency (PSA) which refers to any person, association, partnership, firm, or private corporation engaged in contracting, recruitment, training, furnishing, or posting of security guard and other private security personnel to individuals, corporations, offices and organizations, whether private or public, for their security needs as the Philippine National Police (PNP) may approve. (Section 2[i], Ibid.)

Service Agreement – refers to the contract between the principal and the SSC/PSA containing the terms and conditions governing the performance or completion of security service, job, or work being farmed out for a definite or predetermined period. (Section 2[j], Ibid.)

‘Solidary Liability – refers to the liability of the principal, in the same manner and extent that he/she is liable to his/her direct employees, to the extent of the work performed under the contract when the SSC/PSA fails to pay the wages of his/her employees, as provided for in Article 106 of the Labor Code, as amended. (Section 2[k], Ibid.)

Trilateral Relationship – refers to the relationship in contracting or subcontracting arrangement where there is a contract for a specific security job, work, or service between the principal and the SSC/PSA, and a contract of employment between the latter and its security guards. There are three (3) parties involved in these arrangements: the principal who decides to farm out a security job, work, or service to a security service contractor; the SSC/PSA who has the capacity to independently undertake the performance of the security job, work, or service; and the security guards and other private security personnel engaged by the SSC/PSA to accomplish the security job, work, or service. (Section 2[m], Ibid.)

b. Employer-employee relationship

The SSC/PSA is the employer of its security guards and other private security personnel on duty detail to a principal or client under a Service Agreement. (Section 3.1, Ibid.)

Notwithstanding any oral or written stipulations to the contrary, the contract between the SSC/PSA and its security guards and other private security personnel shall be governed by the provisions of Articles 294 (formerly 279) and 295 (formerly 280) of the Labor Code, as renumbered. (Section 5.1, Ibid.)

The SSC/PSA shall provide his/her security guards and other private security personnel a copy of the employment contract duly signed by the parties, which shall contain the terms and conditions of employment. (Ibid.)

1) Probationary employment

The probationary period of newly-hired security guard and other private security personnel in the private security industry shall not exceed six (6) months. While engaged on probationary basis, their services may be terminated for failure to meet reasonable standards or criteria made known by the SSC/PSA to the security guards and other private security personnel at the time of their engagement or for any just cause contained in the probationary contract. (Section 3.2, Ibid.)

2) Regular Employment

Any security guard or other private security personnel who is allowed to work after the probationary period or in the absence of a valid probationary contract shall be considered a regular employee. Security guards and other private security personnel affected by repeated hiring-firing-rehiring scheme for short periods of time, the aggregate duration of which is at least six (6) months, shall be considered regular employees. (Section 3.3, Ibid.)

3) Service Agreements (SA)

The SSC/PSA and/or the principal shall produce or submit the original copy of the Service Agreement when directed to do so by the Regional Director or his/her duly authorized representative. The Service Agreement must conform to the DOLE Standard Computation and Standard Service Agreement, as provided for under these Guidelines. (Section 4, Ibid.)

a) Required stipulations in the SA

1) The specific description of the kind or nature of security job, work, or service being subcontracted;

2) The place of work and terms and conditions governing the contracting arrangement which shall include the agreed amount of the security services to be rendered and the standard administrative fee of not less than twenty percent (20%) of the total contract cost;

3) The basic equipment to be provided by the SSC/PSA which shall be as follows: (a) For every two (2) security guards and other private security personnel, one (1) handgun as prescribed by R.A. 5487; but in no case shall a security guard be posted without a firearm, unless required otherwise by the client; and (b) one (1) handheld radio; Provided that, if the principal requires more than these basic equipment, it shall be shouldered by the principal.

4) An “automatic crediting provision” which shall immediately give effect to the common provision in wage orders that prescribed increases in wage rates and other wage-related benefits of security guards and other private security personnel shall be borne by the principals or clients of the SSC/PSAs and the Service Agreements shall be deemed amended accordingly;

5) Provisions which shall ensure that the principal and the SSC/PSA shall uphold the rights and provide all the benefits of security guards and other private security personnel under the Labor Code, as amended, and other existing laws, and that violation of which will render the service contractor ineligible to participate in any bidding and the principal ineligible to engage the services of such SSC/PSA;

6) A provision on the NFCC of the SSC/PSA, which must be equal to the total contract cost per month, provided that posting of the corresponding bond shall be required only when the NFCC is less than the total contract cost;

7) An undertaking that the SSC/PSA shall directly remit monthly the employers’ share and employees’ contribution to the Social Security System (SSS), Employees’ Compensation Commission (ECC), Philippine Health Insurance Corporation (PhilHealth), and Home Development Mutual Fund (Pag-lBlG); and

8) An undertaking that the expenses for any training required by the principal or other government instrumentalities, in addition to those required by the PNP, shall be shouldered by the principal. (Section 4, Ibid.)

c. Contents of Duty Detail Order

1) Name, address, and telephone number of agency;

2) Issue serial number and date of the Duty Detail Order;

3) Complete name and designation of grantee;

4) Purpose;

5) Inclusive dates of detail;

6) Firearms description and license number;

7) Authorized uniform to be used;

8) Other specific instructions or remarks; and

9) Signature and designation of issuing officer. (Section 5.2, Ibid.)

d. Rights of Security Guards and Other Private Security Personnel

All security guards and other private security personnel, whether deployed or assigned as reliever, seasonal, week-ender, or temporary, shall be entitled to all the rights and privileges as provided for in the Labor Code, as amended, which shall include the following:

1) Safe and healthful working conditions;

2) Labor standards such as but not limited to service incentive leave, premium pay, overtime pay, holiday pay, night shift differential, 13th month pay, and separation pay as may be provided in the Service Agreement or under the Labor Code, as amended;

3) Retirement benefits under Republic Act No. 7641, Republic Act No. 1161, as amended by Republic Act No. 8282, and retirement plans of the security service contractor, if any;

4) Social security and welfare benefits;

5) Right to self-organization and collective bargaining, subject to the provisions of existing laws; and

6) Security of tenure. (Section 6, Ibid.)

e. Terms and Conditions of Employment

1) Requirements for Pre-employment and Continued Employment

The security guards and other private security personnel in the employ of any SSC/PSA or firm should be duly licensed and must have passed the physical and neuro-psychiatric examination and drug test required by the PNP for pre-employment and for continued employment. Expenses for these examinations and test shall be shouldered by the security guards. (Section 7.1, Ibid.)

Any additional test may be required at the expense of the requesting party. (Paragraph 2, Section 7.1, Ibid.)

2) Entitlement to Minimum Wage

Unless a higher minimum wage is agreed upon by the parties, the security guards and other private security personnel shall be entitled to receive a salary of not less than the minimum wage rate prescribed for non-agricultural sector or industry in the region where he/she is assigned, regardless of the nature of business of the principal. (Section 7.3, Ibid.)

3) Transfer of Assignment

In case of transfer, the wage rate most favorable to the security guards and other private security personnel shall apply. (Section 7.4, Ibid.)

Thus, transfer of security guards and other private security personnel to areas outside the region of the domicile or head office of the SSC/PSA shall not result to reduction of the wage rate being enjoyed by the security guards and other private security personnel prior to such transfer. Transfer to an area or region with higher wage rate shall render the higher rate the applicable wage rate for the transferred security guards and other private security personnel. (Paragraph 2, Section 7.4, Ibid.)

4) Statutory Benefits

Security guards and other private security personnel are entitled to not less than the following benefits depending on the working hours, work shift and workdays and other analogous conditions, which benefits should be included in the cost distribution in the Service Agreement:

1) Basic salary for all actual workdays and for the twelve (12) regular holidays (as holiday pay) which must not be lower than the minimum wage rates described in Subsection 7.3, to be computed by using the factors recommended herein. Whenever work is rendered on a regular holiday, an additional pay of one hundred percent (100%) of the minimum wage rate should be paid;

2) Allowance in addition to the basic salary, if prescribed by the applicable Regional Wage Order;

3) Premium pay of thirty percent (30%) of the daily rate for work on special days or on rest days, which is increased to fifty percent (50%) whenever work is performed coinciding the rest days and special days;

4) Overtime pay for work rendered in excess of eight (8) hours a day, equivalent to at least twenty-five percent (25%) of the regular hourly rate on ordinary days and thirty percent (30%) of the hourly rate on regular holidays, special days and rest days;

5) Night shift differential equivalent to ten percent (10%) of the regular hourly rate for work rendered between 10:00 p.m. and 6:00 a.m. of the following day;

6) Five (5) days service incentive leave for every year of service which benefits can be availed of during days of absence and, if not used, are convertible into its cash equivalent. A proportionate leave benefit per month may be derived by dividing five (5) days by twelve (12) months multiplied by the current daily rate;

7) Maternity leave as provided for under Republic Act No. 1161 , as amended by Republic Act No. 8282, otherwise known as the “Social Security Law,” for female security guards and other private security personnel who are unable to work due to childbirth or miscarriage, up to the first four (4) deliveries or miscarriages;

8) Paternity leave of seven (7) days with full pay for male security guards and other private security personnel under Republic Act No. 8187, otherwise known as the “Paternity Leave Act of 1996,” which shall be granted after the delivery, without prejudice to an employer’s policy of allowing the employee to avail of the benefit before or during the delivery. The paternity leave with pay is granted for the first four deliveries, including miscarriages, of the male employee’s lawful wife with whom he is cohabiting;

9) Parental leave of seven (7) days every year for solo parents security guards and other private security personnel who are left alone with the responsibility of parenthood as defined under Republic Act No. 8972, otherwise known as the “Solo Parents’ Welfare Act of 2000”;

10) Leave for Victims of Violence Against Women and their Children of ten (10) days for qualified victim-female security guards and other private security personnel under Republic Act No. 9262, otherwise known as “Anti-Violence Against Women and Their Children Act of 2004”;

11) Special Leave for Women of not more than two (2) months with full pay based on her gross monthly compensation following surgery caused by gynecological disorders, under Republic Act No. 9710, otherwise known as “The Magna Carta of Women”;

12) 13th month pay which is one-twelfth (1/12) of the total basic salary earned within a calendar year;

13) Separation Pay if the termination of employment is for authorized cause as provided by law and as enumerated below:

a) One-half (1/2)-month pay per year of service, but guaranteed to one (1) month pay if separation is due to: (i) Retrenchment or reduction of personnel effected by management to prevent serious losses; (ii) Closure or cessation of operation of an establishment not due to serious losses or financial reverses; (iii) Illness or disease not curable within a period of six (6) months and continued employment is prohibited by law or prejudicial to the employee’s health or that of his/her co-employees; or iv. Lack of service assignment for a continuous period of six (6) months.

b) One (1) month pay per year of service if separation is due to: (i) Installation of labor-saving device, such as replacement of employees by equipment/machinery; (ii) Redundancy, as when the position has been found to be a surplusage or unnecessary in the operation of the agency; (iii) Impossible reinstatement of the employee to his/her former position or to a substantially equivalent position for reasons not attributable to the fault of the employer, as when the reinstatement ordered by a competent authority cannot be implemented due to closure or cessation of operations of the establishment/security service contractor, or the position to which the employee is to be reinstated no longer exists and there is no substantially equivalent position to which he/she can be assigned; or (iv) Lack of service assignment by reason of age.

14) Benefits under the Employees Compensation Program pursuant to Presidential Decree 626;

15) PhilHealth benefits under Republic Act No. 7875, as amended by Republic Act No. 9241;

16) Social Security benefits under Republic Act No. 1161, as amended by Republic Act No. 8282;

17) Safe and healthful working conditions as provided in the Occupational Safety and Health Standards;

18) Retirement pay granted under Republic Act No. 7641 to any security guard and other private security personnel which shall be billable monthly to the principal or client of the SSC/PSA.

The fund shall be administered and maintained by a trust company bank, investment house, pre-need company, or corporation duly authorized to perform trust function exclusively for collective investment or re-investment of certain money received in its capacity as trustee, or similar arrangement as may be agreed upon in accordance with law.

The SSC/PSA may establish a retirement plan for the payment of the retirement benefits of its security guards or other private security personnel. From this a Retirement Trust Fund (RTF) shall be created out of contributions from the principal. The trust fund agreement shall be executed by and between the SSC/PSA as trustor and a trust entity as trustee in favor of security guards or other private security personnel employed by the trustor. The trust entity as trustee shall administer the retirement plan and manage the trust fund in accordance with the retirement plan agreed upon by the SSC/PSA and its security guards or other private security personnel.

The SSC/PSA may also register with the Securities and Exchange Commission (SEC), a non-stock Retirement Fund Company (RFC) owned and managed by its members who are officers, employees, security guards, or other private security personnel. The RFC shall manage and reinvest the retirement fund, and shall pay the retirement benefits of its members upon his/her retirement.

As such, any payment for retirement benefits collected in advance from the principal shall immediately be deposited by the SSC/PSA or trustor to the trustee or retirement fund company in favor of the security guard and other private security personnel as benefit upon retirement; and

19) Other benefits granted by law, individual or collective agreement, or company policy or practice. (Paragraph 2, Section 7.5, Ibid.)

5) Wage deduction

No deduction shall be made from the salary of the security guards and other private security personnel, except for:

1) SSS contribution;

2) Pag-IBlG contribution;

3) PhilHealth contribution;

4) Withholding tax from income, provided a proper withholding tax receipt is issued to the employee before the filing of income tax return every year;

5) Union dues, if authorized in writing;

6) Agency fees which may be collected from employees who are not members of the bargaining agent but accept benefits under the collective bargaining agreement (CBA); and

7) Other deduction as may be authorized in writing by the security guard and other private security personnel for payment to a third person and the employer agrees to do so, provided that the latter does not receive any pecuniary benefit, directly or indirectly, from the transaction.  (Section 8, Ibid.)

These deductions should be reflected in the payroll by the SSC/PSA. (Paragraph 2, Section 8, Ibid.)

a) Cash bond

In case an SSC/PSA requires its security guard and other private security personnel to post a bond for use of firearms and other paraphernalia, such may only be imposed once. The amount of the bond should not be more than five percent (5%) of the amount of the firearm issued to the security guard and other private security personnel. The said cash bond, less the cost of damage or loss of firearms or paraphernalia due to the fault of the security guard, shall be refunded to the security guards and other private security personnel within fifteen (15) calendar days from severance of employment. (Paragraph 3, Section 8, Ibid.)

b) Cash deposit

Pursuant to Labor Advisory No. 11, Series of 2014, deductions or requiring cash deposits from employees to answer for reimbursement of loss or damage on tools, materials, or equipment supplied by the employer is allowed in private security agencies as a recognized and reasonable industry practice given the nature of the service or business. However, for deductions of such nature to be valid, the following conditions must be observed: (a) The employee concerned is clearly shown to be responsible for the loss or damage; (b) The employee is given reasonable opportunity to show cause why the deduction should not be made; (c) The amount of such deduction is fair and reasonable and shall not exceed the actual loss or damage; and (d) The deduction from the wages of the employee does not exceed twenty percent (20%) of the employee’s wages in a week. (Paragraph 4, Section 8, Ibid.)

In the event that a SSC/PSA requires a cash deposit from its employees, the maximum amount shall not exceed the employee’s one (1) month basic salary. The said cash deposit may be deducted from the employee’s wages in an amount which shall not exceed twenty percent (20%) of the employee’s wages in a week. The full amount of cash deposit deducted shall be returned to the employee within ten (10) days from his/her separation from the service. (Paragraph 5, Section 8, Ibid.)

f. Solidary Liability and Responsibilities

The SSC/PSA and its principal or client shall be jointly and solidarily liable with each other in any of the following circumstances:

1) When the SSC/PSA fails to pay the wages of its security guards and other private security personnel, the principal or client shall be considered the “indirect employer” and shall be jointly and severally liable with the SSC/PSA to the extent of the work performed by such security guards and other private security personnel under the Service Agreement, in the same manner and extent that the principal is liable to its direct employees.

2) If there are wage increases or adjustments after the execution of the Service Agreement, the prescribed increases in the wage rates of security guards and other private security personnel shall be borne by the principal the Service Agreement shall be deemed amended accordingly. In the event that the principal fails to pay the prescribed increases, the SSC/PSA shall be jointly and solidarily liable with the principal.

The immediate recourse of security guards and other private security personnel for payment of wage increase before litigation is with their employer, the SSC/PSA. To enable the SSC/PSA to comply with the new rates, the consideration paid by the principal for the security guards’ wages has to be adjusted in conformity with the mandated wage increase.

3) When the SSC/PSA is found to be engaged in labor-only contracting, the principal shall be jointly and solidarily liable with it in the same manner that the principal is liable to employees directly hired by him/her.

4) When the SSC/PSA is found to be an in-house agency, the principal shall be the direct employer of the security guards and/or other private security personnel deployed with it.

5) When a violation of the relevant provisions of the Labor Code, as amended, has been established by the DOLE Secretary or his/her duly authorized representative in the exercise of his/her enforcement power, the principal shall be deemed solidarily liable with the SSC/PSA to the extent of accrued wage and wage-related benefits that the latter may owe to its security guards and other private security personnel in the following instances:

a) When the certificate of registration of the SSC/PSA is cancelled, revoked, or not renewed by the competent authority; or

b) When the contract between the principal and the SSC/PSA is pre-terminated for reasons not attributable to the fault of the latter. (Section 9.1, Ibid.)

g. Keeping of Records

The principals, as indirect employers, shall keep and maintain their own separate records or files on the assignment of security guards in their premises during the period of the service contract, which shall be open for inspection and verification by this Department. (Section 9.4, Ibid.)

All employment records shall be kept and maintained in and about the premises of all workplaces for at least three (3) years, unless the establishment has been in existence for less than three (3) years, in which case it shall be required to maintain employment records only during such shorter duration. (Paragraph 2, Section 9.4, Ibid.)

However, SSC/PSA with a centralized recording system shall inform the Labor Laws Compliance Officer (LLCO) of the Regional Office where their central or head office is located of such fact. (Paragraph 3, Section 9.4, Ibid.)

h. Right to Security of Tenure and Due Process

Security guards and other private security personnel shall enjoy security of tenure in their employment as provided by law. Their services can only be terminated for just or authorized causes after due process. (Section 10.1, Ibid.)

1) Just cause termination, requirements:

a) The first written notice should contain:

1) The specific causes or grounds for termination;

2) Detailed narration of the facts and circumstances that will serve as basis for the charge against the security guard and other private security personnel. A general description of the charge will not suffice;

3) The company rule, if any, that is violated and/or the ground under Article 297 (formerly 282) of the Labor Code, as renumbered, that is being charged against the security guard and other private security personnel; and

4) A directive that the security guard and other private security personnel is given an opportunity to submit a written explanation within five (5) calendar days from receipt of the first written notice.

b) After serving the first notice, the employer should afford the security guard and other private security personnel ample opportunity to be heard and to defend himself/herself with the assistance of his/her representative if he/she so desires, as provided in Article 292 (b) (formerly 277) of the Labor Code, as renumbered.

“Ample opportunity to be heard” means any meaningful opportunity (verbal or written) given to the security guard and other private security personnel to answer the charges against him/her and submit evidence in support of his/her defense, whether in a hearing, conference, or some other fair, just, and reasonable way. A formal hearing or conference becomes mandatory only: (a) when requested by the security guard and other private security personnel in writing; (b) substantial evidentiary disputes exist; (c) a company rule or practice requires it; or (d) when similar circumstances justify it.

c) After determining that termination of employment is justified, the SSC/PSA shall serve the security guard and other private security personnel a second written notice, the notice of termination, indicating that: 1) all circumstances involving the charge against the security guard and other private security personnel have been considered; and 2) the grounds have been established to justify the severance of his/her employment.

The foregoing notices shall be served on the security guard and private security personnel’s last known address.

Termination for just cause as stated in Article 297 (formerly 282) of the Labor Code, as renumbered, does not entitle the security guard and other private security personnel to separation pay, unless otherwise provided in the employer’s policy, individual contract, or collective agreement. (Section 10.1[A], Ibid.)

i. Authorized cause separation, requirements:

The requirement of due process shall be deemed complied upon service of a written notice to the security guard and other private security personnel and to the appropriate DOLE Regional Office at least thirty (30) days before the effectivity of the termination, specifying the ground(s) for termination. (Section 10.1[B}, Ibid.)

j. Termination due to completion of contract

If the termination is brought about by the completion of the contract, no prior notice is required. (Section 10.1[C}, Ibid.)

k. Failure to pass/qualify for regular employment

If the termination is brought about by the failure of a probationary security guards and other private security personnel to meet the reasonable standards of the SSC/PSA, which was made known to the security guard and other private security personnel at the time of employment, it shall be sufficient that a written notice is served upon the security guard and other private security personnel within a reasonable time prior to the expiration of the probationary period.  (Section 10.1[C], Ibid.)

l. Pre-termination of Service Agreement

In case the termination of employment is caused by the pre-termination of the Service Agreement not due to any authorized cause under Article 298 (formerly 283), the right of the security guard and other private security personnel to accrued and unpaid wages and other wage-related benefits, including unremitted legal mandatory contributions such as SSS, PhilHeaIth, Pag-lBlG, and ECC, shall be borne by the party at fault, without prejudice to the solidary liability of the parties to the Service Agreement. (Section 10.1[D}, Ibid.)

m. Reserved Status

A security guard and other private security personnel may be placed in a work pool or on reserved status due to lack of service assignment after the expiration or termination of the Service Agreement with the principal where he/she is assigned, or due to the temporary suspension of security service operations, or due to valid relief from the current place of work and there is no work assignment available. (Section 10.3, Ibid.)

No security guard and other private security personnel can be placed in a workpool or on reserved status in any of the following situations: (a) after expiration of a service contract, if there are other principals where he/she can be assigned; (b) as a measure to constructively dismiss the security guard; and (c) as an act of retaliation for filing any complaint against the employer for violation of labor laws, among others. (Paragraph 3, Section 10.3, Ibid.)

If after a period of six (6) months, the SSC/PSA cannot provide work or give an assignment to the reserved security guard, the latter can be separated from service and shall be entitled to separation pay as described in Subsection 7.5 (m) hereof. An assignment of the security guard and other private security personnel as a reliever for less than one-month shall not be considered as an interruption of the six (6) months period. (Paragraph 3, Section 10.3, Ibid.)

n. Preventive Suspension

Subject to the constitutional rights of the workers to security of tenure and the right to be protected against dismissal except for a just and authorized cause and without prejudice to the notice requirement under Article 297 (formerly 282) of the Labor Code, as renumbered, security guards and other private security personnel may be preventively suspended if their continued employment poses a serious and imminent threat to life or property of the SSC/PSA, its principal, or the co-workers of security guards and other private security personnel. (Section 10.5, Ibid.)

No preventive suspension shall last longer than thirty (30) days. The SSC/PSA shall thereafter reinstate the security guard and other private security personnel to his/her former position or it may extend the period of suspension, provided that during the period of extension, the SSC/PSA shall pay the wages and other benefits due the security guard and other private security personnel. (Paragraph 2, Section 10.5, Ibid.)

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