(Question XI, Labor Law, 2018 Bar Exam)
Your favorite relative, Tita Nilda, approaches you and seeks your advice on her treatment of her kasambahay, Noray. Tita Nilda shows you a document called a “Contract of Engagement” for your review. Under the Contract of Engagement, Noray shall be entitled to a rest day every week, provided that she may be requested to work on a rest day if Tita Nilda should need her services that day. Tita Nilda also claims that this Contract of Engagement should embody all terms and conditions of Noray’s work as the engagement of a kasambahay is a private matter and should not be regulated by the State.
a) Is Tita Nilda correct in saying that this is a private matter and should not be regulated by the State? (2.5%)
b) Is the stipulation that she may be requested to work on a rest day legal? (2.5%)
c) Are stay-in family drivers included under the Kasambahay Law? (2.5%)
(a) No. Answer
Under the Civil Code, employment contracts are imbued with public interest and thus the State may regulate the relations between the employer and the employee. Rule
In the case at bar, the Contract of Engagement is an employment contract. Thus, the State may regulate the terms and conditions of employment of the kasambahay. Apply
Thus, Tita Nilda is not correct in saying that this is a private matter and should not be regulated by the State. Conclusion
(b) Yes. Answer
Under the Kasambahay Law, and its implementing rules and regulations (IRR), the employer and the kasambahay are expressly allowed to agree on changes to the weekly rest periods, such as waiving a particular rest day in return for an equivalent daily rate of pay, accumulating rest days not exceeding five (5) days, or other similar arrangements. Rule
In the case at bar, provided that both Tita Nilda and the kasambahay, consent or agree to the stipulation that work may be requested on a rest day, then the same is valid and legal. Apply
Thus, the stipulation that she may be requested to work on a rest day is legal. Conclusion
(c) No. Under the IRR of the Kasambahay Law, family drivers are excluded from the definition of Kasambahay and thus outside the coverage of the Kasambahay Law.
(Notice: The suggested answers simulate those that a bar examinee may provide, and thus specific citations are not provided. Notwithstanding, in the reviewers, the bar exam question is answered under the appropriate topic which discusses the concepts and principles, as well as provide for specific citations. Accordingly, please refer to it on the reviewer or in the Library.)
Lawyer, Author, Mentor