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I. General Policy Considerations
The general policies of the State with respect to children are enshrined in the Philippine Constitution and in the Child and Youth Welfare Code. The International Covenant on Economic, Social and Cultural Rights, as well as the Convention on the Rights of the Child, both ratified by the country, also contain principles relevant to child workers.
Principles and policies declared in the Constitution of the State and in international conventions ratified by the country serve as mandates to the Government to undertake measures to give them vitality and force. The details of these principles and policies are provided for by laws passed by the Congress and are further strengthened by rules and regulations promulgated by the executive department. The policies presented below may be invoked to advocate for the further protection of the rights of child workers.
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A. INTERNATIONAL INSTRUMENTS
1. International Covenant On Economic, Social And Cultural Rights |
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Art. 10. The States Parties to the present Covenant recognize that:
x x x
3. Special measures of protection and assistance should be taken on behalf of all children and young persons without any discrimination for reasons of parentage or other conditions. Children and young persons should be protected from economic and social exploitation. Their employment in work harmful to their morals or health or dangerous to life or likely to hamper their normal development should be punishable by law. States should also set age limits below which the paid employment of child labour should be prohibited and punishable by law. |
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2. Convention on the Rights of the Child |
Art. 32. 1. States Parties recognize the right of the child to be protected from economic exploitation and from performing any work that is likely to be hazardous or to interfere with the child's education, or to be harmful to the child's health or physical, mental, spiritual, moral or social development.
2. States Parties shall take legislative, administrative, social and educational measures to ensure the implementation of the present article. To this end, and having regard to the relevant provisions of other international instruments, States Parties shall in particular:
(a) Provide for a minimum age or minimum ages for admission to
employment;
(b) Provide for appropriate regulation of the hours and conditions of employment; and
(c) Provide for appropriate penalties or other sanctions to ensure the effective enforcement of the present article.
Art. 34. States Parties shall undertake to protect the child from all forms of sexual exploitation and sexual abuse. For these purposes, States Parties shall in particular take all appropriate national, bilateral and multilateral measures to prevent:
(a) The inducement or coercion of a child to engage in unlawful sexual activity;
(b) The exploitative use of children in prostitution or other unlawful activity;
(c) The exploitative use of children in pornographic performances and materials.
Art. 35. States Parties shall take all appropriate national, bilateral and multilateral measures to prevent the abduction of, sale of or traffic in children for any purpose or in any form. |
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B. NATIONAL LAWS
1. Philippine Constitution |
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Art. II. Declaration of Principles and State Policies.
Sec. 13. The State recognizes the vital role of the youth in nation-building and shall promote and protect their physical, moral, spiritual, intellectual, and social well-being. It shall inculcate in the youth patriotism and nationalism, and encourage their involvement in public and civic affairs.
Art. XV. The Family
Sec. 3. The State shall defend:
x x x
(2) The right of children to assistance, including proper care and nutrition, and special protection from all forms of neglect, abuse, cruelty, exploitation, and other conditions prejudicial to their development.
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2. Child And Youth Welfare Code (P.D. 603)
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Art. 1. Declaration of Policy. - The Child is one of the most important assets of the nation. Every effort should be exerted to promote his welfare and enhance his opportunities for a useful and happy life.
x x x
Art. 3. Rights of the Child.
(1) Every child is endowed with the dignity and worth of a human being from the moment of his conception, as generally accepted in medical parlance, and has, therefore, the right to be born well.
(2) Every child has the right to a wholesome family life that will provide him with love, care and understanding, guidance and counselling, and moral and material security.
The dependent or abandoned child shall be provided with the nearest substitute for a home.
(3) Every child has the right to a well-rounded development of his personality to the end that he may become a happy, useful and active member of society.
The gifted child shall be given opportunity and encouragement to develop his special talents.
The emotionally disturbed or socially maladjusted child shall be treated with sympathy and understanding, and shall be entitled to treatment and competent care.
The physically or mentally handicapped child shall be given the treatment, education and care required by his particular condition.
(4) Every child has the right to a balanced diet, adequate clothing, sufficient shelter, proper medical attention, and all the basic physical requirements of a healthy and vigorous life.
(5) Every child has the right to be brought up in an atmosphere of morality and rectitude for the enrichment and the strengthening of his character.
(6) Every child has the right to an education commensurate with his abilities and to the development of his skills for the improvement of his capacity for service to himself and to his fellowmen.
(7) Every child has the right to full opportunities for safe and wholesome recreation and activities, individual as well as social, for the wholesome use of his leisure hours.
(8) Every child has the right to protection against exploitation, improper influences, hazards and other conditions or circumstances prejudicial to his physical, mental, emotional, social and moral development. [Underscoring supplied.]
(9) Every child has the right to live in a community and a society that can offer him an environment free from pernicious influences and conducive to the promotion of his health and the cultivation of his desirable traits and attributes.
(10) Every child has the right to the care, assistance, and protection of the State, particularly when his parents or guardians fail or are unable to provide him with his fundamental needs for growth, development, and improvement.
(11) Every child has the right to an efficient and honest government that will deepen his faith in democracy and inspire him with the morality of the constituted authorities both in their public and private lives.
(12) Every child has the right to grow up as a free individual, in an atmosphere of peace, understanding, tolerance, and universal brotherhood, and with the determination to contribute his share in the building of a better world.
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II. Minimum Age Of Employment
-- Exceptions
A. INTERNATIONAL CONVENTIONS
1. ILO Convention No. 59
2. ILO Convention No. 138
In 1973, the International Labour Conference decided to establish ILO Convention No. 138, a general instrument on child labour which would gradually replace those applicable to limited economic sectors such as ILO Convention No. 59, Minimum Age (Industry); ILO Convention No. 10, Minimum Age (Agriculture); ILO Convention No. 58, Minimum Age (Sea); ILO Convention No. 123 (Underground Work); etc.. ILO Convention No. 138 is general in scope, and in principle covers all economic sectors and all employment or work, whether or not such are performed under a contract of employment. It allows flexibility in the formulation of national laws by providing sufficient exceptions to the minimum age of employment, conditioned by national circumstances and the level of the standards already achieved in each country. This serves as a guide in the formulation of state policies and legislation, being the latest minimum age convention in the international scene.
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3. ILO Recommendation No. 146
Recommendations of the ILO are intended to offer guidelines for action by member States. ILO Recommendation No. 146 has the same value as ILO Convention No. 138 in that it provides a framework for drawing-up national laws, regulations and programmes of practical action on child labour.
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B. NATIONAL LAWS
Today, the basic minimum age of employment in the Philippines is contained in R.A. 7658. The minimum age of employment for hazardous work, on the other hand, is contained in the Labour Code. These two laws are complemented by other national laws containing some provisions relevant to the minimum age of employment. All of these laws are presented hereunder.
1. Minimum Age: Principal Policy
1.1 R.A. 7658
1.2 Labour Code
The basic minimum age of employment under the Labour Code has been superseded by R.A. 7658, although the two laws basically contain the same principles. R.A. 7658, however, is more expansive in scope than the Labour Code which provides that:
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Art. 139. Minimum Employable Age. -
(a) 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.
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1.3 Omnibus Rules Implementing the Labour Code |
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2. Minimum Age: Hazardous Work
2.1 Labour Code
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Art. 139.
x x x
(b) Any person between fifteen (15) and eighteen (18) years of age may be employed for such number of hours and such periods of the day as determined by the Secretary of Labour in appropriate regulations.
(c) The foregoing provisions shall in no case allow the employment of a person below eighteen (18) years of age in an undertaking which is hazardous or deleterious in nature as determined by the Secretary of Labour. |
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2.2 Omnibus Rules Implementing the Labour Code
2.3 Department Order No. 4
2.4 OSHS, Rule 1013
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OCCUPATIONAL SAFETY AND HEALTH STANDARDS
RULE 1013
HAZARDOUS WORKPLACES
1. Where the nature of work exposes the workers to dangerous environmental elements, contaminants or work conditions including ionizing radiation, chemical, fire, flammable substance, noxious components and the like;
2. Where the workers are engaged in construction work, logging, firefighting, mining, quarrying, blasting, stevedoring, dockwork, deep-sea fishing and mechanized farming;
3. Where the workers are engaged in the manufacture or handling of explosive and other pyrotechnic products;
4. Where the workers use or are exposed to power-driven or explosive power-actuated tools; and
5. Where the workers are exposed to biological agents such as bacteria, fungi, viruses, protozoans, hematodes and other parasites. |
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3. Minimum Age: Modeling In Commercials/ Advertisements Promoting Alcoholic Beverages, Tobacco, Violence, etc.
The minimum age for modeling in commercials or advertisements which promote alcoholic beverages, tobacco, violence and the like, is 18 years old. This is implicit in the prohibition contained in R.A. 7610 which took effect on June 17, 1992, as follows:
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R.A. 7610
THE CHILD PROTECTION CODE
Article VIII
Working Children
Section. 14. Prohibition on the Employment of Children in Certain Advertisements. No person shall employ child models in all commercials or advertisements promoting alcoholic beverages, intoxicating drinks, tobacco and its by-products, and violence. |
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4. Minimum Age: Apprentices
The law on apprenticeship is governed by the Labour Code which sets the minimum age for apprentices at 14 years. However, the Omnibus Rules Implementing the Labour Code prescribes a 15-year age requirement for apprentices and not 14 years. Moreover, considering that both Article 139 of the Labour Code and R.A. 7658 prescribe a minimum employable age of 15 years without including apprentices among the exceptions, the laws taken together could be construed to mean that the minimum age for apprentices is actually 15 years. This issue remains to be settled by competent authorities.
4.1 Labour Code |
LABOR CODE
TITLE II
TRAINING AND EMPLOYMENT OF SPECIAL WORKERS
CHAPTER I: APPRENTICES
Art. 58. Definition of Terms. - As used in this Title:
(a) "Apprenticeship" means practical training on the job supplemented by related theoretical instruction.
(b) An "apprentice" is a worker who is covered by a written apprenticeship agreement with an individual employer or any of the entities recognized under this Chapter.
(c) An "apprenticeship 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.
(d) "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.
Art. 59. Qualifications of Apprentice. - To qualify as an apprentice, a person shall:
(a) Be at least fourteen (14) years of age;
(b) Possess vocational aptitude and capacity for appropriate tests; and
(c) Possess the ability to comprehend and follow oral and written instructions.
Trade and industry associations may recommend to the Secretary of Labour appropriate educational requirements for different occupations.
Art. 60. Employment of Apprentices. - Only employers in the highly technical industries may employ apprentices and only in apprenticeable occupations approved by the Secretary of Labour and Employment. |
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4.2 Omnibus Rules Implementing the Labour Code
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OMNIBUS RULES IMPLEMENTING THE LABOR CODE
BOOK II
NATIONAL MANPOWER DEVELOPMENT PROGRAM
RULE VI
APPRENTICESHIP TRAINING AND EMPLOYMENT OF SPECIAL WORKERS
Sec. 11. Qualifications of apprentices. - To qualify as an apprentice, an applicant shall:
(a) Be at least fifteen years of age; provided those who are at least fifteen years of age but less than eighteen may be eligible for apprenticeship only in non-hazardous occupations;
(b) Be physically fit for the occupation in which he desires to be trained;
(c) Possess vocational aptitude and capacity for the particular occupation as established through appropriate tests; and
(d) Possess the ability to comprehend and follow oral and written instructions.
x x x
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5. Minimum Age: Child and Youth Welfare Code
The Child and Youth Welfare Code (P.D. 603) took effect in 1975, shortly after the Labour Code's own effectivity. P.D. 603 does not directly prescribe a minimum age of employment. Rather, it permits light work for persons under the age of 16 years. This does not mean, however, that all children below 16 years old are allowed to perform light work. P.D. 603 states that it adopts the Labour Code provisions relating to employable age as part of it. Thus, under P.D. 603, the minimum age of employment is still 15 years as prescribed by the Labour Code. But with respect to those under 15 years old who are allowed by the Labour Code to work under the direct responsibility of their parents, they are permitted to perform only light work as defined by P.D. 603. |
TITLE VI
CHILD AND YOUTH WELFARE AND THE SAMAHAN
CHAPTER 2
WORKING CHILDREN
ART. 107. Employment of Children Below Sixteen Years. - Children below sixteen years of age may be employed to perform light work which is not harmful to their safety, health or normal development and which is not prejudicial to their studies.
The provisions of the Labour Code relating to employable age and conditions of employment of children are hereby adopted as part of this Code insofar as not inconsistent herewith.
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6. Minimum Age: Opinion of the Secretary of Labour
III. TERMS AND CONDITIONS OF EMPLOYMENT
A. INTERNATIONAL CONVENTIONS
Several Conventions adopted by the International Labour Organization deal with the terms and conditions of employment of children. These are: ILO Convention No. 77, Medical Examination of Young Persons (Industry); ILO Convention No. 78, Medical Examination of Young Persons (Non-Industrial Occupations); ILO Convention No. 90, Night Work of Young Persons (Industry); and ILO Convention No. 79, Night Work of Young Persons (Non-Industrial Occupations). Among these Conventions, the country only ratified ILO Conventions No. 77 and No. 90, concerning industry, which are presented below.
1. ILO Convention No. 77
2. ILO Convention No. 90
B. NATIONAL LAWS
The laws governing the terms and conditions of employment of child workers are scattered among the different statutes of the country. As already expounded in the introduction of this chapter, early laws which provided for the terms and conditions of employment of child workers have been repealed by the passage of the Labour Code. Nevertheless several provisions of the Labour Code and the Child and Youth Welfare Code remain useful for protecting children in their workplaces. Moreover, after the Labour Code's enactment in 1974, a few administrative regulations were passed in the late 1970s dealing with the hours and conditions of work of children. These are: MOLE Policy Instruction No. 23 Concerning Hours of Work, Night Work and Physical Examination of Children; and the Rules and Regulations on the Employment of Children in the Movie, Television, Radio and Entertainment Industry. These regulations, however, need to be updated considering that almost 20 years have passed since their enactment and the child labour laws have already undergone several changes since then. The rules and regulations of the latest child labour law which is R.A. 7658 have already been passed to govern the conditions of work of children below 15 years of age in exclusive family undertakings and in the entertainment industry.
The existing laws governing the conditions of work of children, however, are not sufficient to cover all types of work situations of children. To fill-in the gaps in these laws, resort may be had on the laws dealing with the general work force. It should be impressed at this point that Art. 140 of the Labour Code, which deals with "prohibition against child discrimination", prohibits an employer from discriminating against any person in respect to terms and conditions of employment on account of his age. Therefore, in the absence of laws specific to child workers (e.g., wages, rest periods, insurance and social welfare benefits, occupational safety and health, etc.), the laws intended to protect the regular labour force should be equally imposed upon the employers of child workers. Employers should not be allowed to use the ploy of hiring children in order to escape their obligations under the beneficial provisions of the labour laws.
It should be emphasized, though, that the provisions of the Labour Code regarding terms and conditions of employment may only be invoked by a child worker if an employment relationship truly exists between the child and his/her employer. In the case of a child worker, an employer-employee relationship is deemed to exist where the selection and engagement of the child, the payment of his/her wages, the power of dismissal, and the power to control the child's conduct at work are exercised by the alleged employer. Under Philippine jurisprudence, the element of control is the most important element, such that where the employer controls or has reserved the right to control the child worker not only as to the result of the work to be done butalso as to the means and methods by which the same is to be accomplished, the employer-employee relationship test is met.
With respect to special groups of child workers (e.g., children in domestic work, children in homework, and children in apprentice work), there is again a dearth of laws specifically covering their work situations. Thus, resort to the provisions of the Labour Code relating to the employment of apprentices, homeworkers and domestic workers, and also of the Civil Code with respect to the latter, may be had.
Presented in the following pages are the terms and conditions of employment applicable to child workers as contained in administrative regulations, the Labour Code and other Philippine laws.
1. Non-Discrimination |
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LABOR CODE
Art. 140. Prohibition against child discrimination. -- No employer shall discriminate against any person in respect to terms and conditions of employment on account of his age. |
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2. Employer's Reportorial Duties
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CHILD AND YOUTH WELFARE CODE
Art. 108. Duty of Employer to Submit Report. - The employer shall submit to the Department of Labour a report of all children employed by him. A separate report shall be made of all such children who are found to be handicapped after medical examination. The Secretary of Labour shall refer such handicapped children to the proper government or private agencies for vocational guidance, physical and vocational rehabilitation, and placement in employment.
Art. 109. Register of Children. - Every employer in any commercial, industrial or agricultural establishment or enterprise shall keep:
(1) A register of all children employed by him, indicating the dates of their birth;
(2) A separate file for the written consent to their employment given by their parents or guardians;
(3) A separate file for their educational and medical certifications; and
(4) A separate file for special work permits issued by the Secretary of Labour in accordance with existing laws. |
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3. Hours of Work, Night Work and Physical Examination Of Children
4. Children Below 15 Years
5. Children in the Movie, Television, Radio
and Entertainment Industry
6. Children in Apprentice Work
6.1 Labour Code |
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Art. 61. Contents of Apprenticeship Agreements. - Apprenticeship agreements, including the main rates of apprentices, shall conform to the rules issued by the Secretary of Labour and Employment. 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 programmes duly approved by the Secretary of Labour and Employment. The Department shall develop standard model programmes of apprenticeship.
Art. 62. 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.
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 Labour; and the same shall be binding during its lifetime. [Underscoring supplied.]
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. |
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6.2 Omnibus Rules Implementing the Labour Code
7. Children in Domestic Work
Employers of children in domestic work are mandated by law to give the latter an opportunity for elementary education. This requirement, found in Art. 1691 of the Civil Code, in Art. 110 of P.D. 603 and in the Omnibus Rules Implementing the Labour Code, is the only proviso contained in the country's laws which deal specifically with children in domestic service.
The other terms and conditions of employment of children in domestic work are governed by the general laws on domestic work which are contained in the Labour Code and Civil Code as follows:
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7.1 Labour Code
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Art. 143. Minimum Wage. - (a) Househelpers shall be paid the following minimum wage rates:
(1) Eight hundred pesos (P800.00) a month for househelpers in Manila, Quezon, Pasay and Caloocan cities and the municipalities of Makati, San Juan, Mandaluyong, Muntinlupa, Navotas, Malabon, Paranaque, Las Pinas, Pasig and Marikina in Rizal Province;[D@L1]
(2) Six hundred fifty pesos (P650.00) a month for those in other chartered cities and first-class municipalities; and
(3) Five hundred fifty pesos (P550.00) a month for those in other municipalities.
Provided, That the employers shall review the employment contracts of their househelpers every three (3) years with the end in view of improving the terms and conditions thereof.
Provided, further, That those househelpers who are receiving at least One thousand pesos (P1,000.00) shall be covered by the Social Security System (SSS) and be entitled to all the benefits provided thereunder. [As Amended by R.A. 7655]
Art. 144. Minimum Cash Wage. - The minimum wage rates prescribed under this Chapter shall be the basic cash wages which shall be paid to the househelpers in addition to lodging, food and medical attendance.
Art. 145. Assignment to Non-household Work. - No househelper shall be assigned to work in a commercial, industrial or agricultural enterprise at a wage or salary rate lower than that provided for agricultural or non-agricultural workers as prescribed herein.
Art. 146. Opportunity for Education. - If the househelper is under the age of eighteen (18) years, the employer shall give him or her an opportunity for at least elementary education. The cost of such education shall be part of the househelper's compensation, unless there is a stipulation to the contrary. [Underscoring supplied.]
Art. 147. Treatment of Househelpers. - The employer shall treat the househelper in a just and humane manner. In no case shall physical violence be used upon the househelper.
Art. 148. Board, Lodging and Medical Attendance. - The employer shall furnish the househelper free of charge suitable and sanitary living quarters as well as adequate food and medical attendance.
Art. 149. Indemnity for Unjust Termination of Services. - If the period of household service is fixed, neither the employer nor the househelper may terminate the contract before the expiration of the term, except for a just cause. If the househelper is unjustly dismissed, he or she shall be paid the compensation already earned plus that for fifteen (15) days by way of indemnity.
If the househelper leaves without justifiable cause, he or she shall forfeit any unpaid salary due him or her not exceeding fifteen (15) days.
Art. 150. Service of Termination Notice. - If the duration of the household service is not determined either in stipulation or by the nature of the service, the employer or the househelper may give notice to put an end to the relationship five (5) days before the intended termination of the service.
Art. 151. Employment Certification. -- Upon the severance of the household service relation, the employer shall give the househelper a written statement of the nature and duration of the service and his or her efficiency and conduct as househelper.
Art. 152. Employment Records. -- The employer may keep such records as he may deem necessary to reflect the actual terms and conditions of employment of his househelper, which the latter shall authenticate by signature or thumbmark upon request of the employer. |
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7.2 Omnibus Rules Implementing the Labour Code
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BOOK III
RULE XIII, EMPLOYMENT OF HOUSEHELPERS
Section 1. General Statement on Coverage. -
x x x
(b) The term "househelper" as used herein is synonymous to the term "domestic servant" and shall refer to any person, whether male or female, who renders services in and about the employer's home and which services are usually necessary or desirable for the maintenance and enjoyment thereof, and ministers exclusively to the personal comfort and enjoyment of the employer's family.
Section 3. Children of Househelpers. - The children and relatives of a househelper who live under the employer's roof and who share the accommodations provided for the househelpers by the employer shall not be deemed as househelpers if they are not otherwise engaged as such and are not required to perform any substantial household work.
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Section 9. Time and Manner of Payment. - Wages shall be paid directly to the househelper to whom they are due at least once a month. No deductions therefrom shall be made by the employer unless authorized by the househelper himself or by existing laws.
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Section 11. Opportunity for Education. - If the househelper is under the age of eighteen years the employer shall give him or her an opportunity for at least elementary education. The cost of such education shall be part of the househelper's compensation, unless there is a stipulation to the contrary. [Underscoring supplied.]
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7.3 Civil Code |
Art. 1689. Household service shall always be reasonably compensated. Any stipulation that household service is without compensation shall be void. Such compensation shall be in addition to the househelper's lodging, food, and medical attendance.
Art. 1690. The head of the family shall furnish, free of charge, to the househelper, suitable and sanitary quarters as well as adequate food and medical attendance.
Art. 1691. If the househelper is under the age of eighteen years, the head of the family shall give an opportunity to the househelper for at least elementary education. The cost of such education shall be a part of the househelper's compensation, unless there is a stipulation to the contrary. [Underscoring supplied.]
Art. 1692. No contract for household service shall last for more than two years. However, such contract may be renewed from year to year.
Art. 1693. The househelper's clothes shall be subject to stipulation. However, any contract for household service shall be void if, thereby, the househelper cannot afford to acquire suitable clothing.
Art. 1694. The head of the family shall treat the househelper in a just and humane manner. In no case shall physical violence be used upon the househelper.
Art. 1695. Househelpers shall not be required to work more than ten hours a day. Every househelper shall be allowed four days' vacation each month, with pay.
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Art. 1697. If the period for household service is fixed neither the head of the family nor the househelper may terminate the contract before the expiration of the term, except for a just cause. If the househelper is unjustly dismissed, he shall be paid the compensation already earned plus that for fifteen days by way of indemnity. If the househelper leaves without justifiable reason, he shall forfeit any salary due him and unpaid for not exceeding fifteen (15) days.
Art. 1698. If the duration of the household service is not determined either by stipulation or by the nature of the service, the head of the family or the househelper may give notice to put an end to the service relation according to the following rules:
(1) If the compensation is paid by the day, notice may be given on any day that the service shall end at the close of the following day;
(2) If the compensation is paid by the week, notice may be given, at the latest, on the first business day of the week, that the service shall be terminated at the end of the seventh day from the beginning of the week;
(3) If the compensation is paid by the month, notice may be given, at the latest, on the fifth day of the month, that the service shall cease at the end of the month.
Art. 1699. Upon the extinguishment of the service relation, the househelper may demand from the head of the family a written statement on the nature and duration of the service and the efficiency and conduct of the househelper.
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8. Children in Homework
There are no laws which govern the terms and conditions of children in the homework industry. The general laws on homework under Department Order No. 5 which became Rule XIV, Book III of the Omnibus Rules Implementing the Labour Code are, therefore, applicable to children in this industry.
DEPARTMENT ORDER NO. 5
RULE XIV OF THE RULES IMPLEMENTING BOOK III OF THE LABOR CODE ON EMPLOYMENT OF HOMEWORKERS
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Section 2. Definitions. - As used in this Rule, the following terms shall have the meaning indicated hereunder:
(a) "Industrial Homework" is a system of production under which work for an employer or contractor is carried out by a homeworker at his/her home. Materials may or may not be furnished by the employer or contractor.
It differs from regular factory production principally in that, it is a decentralized form of production where there is ordinarily very little supervision on regulation of methods of work.
x x x
Section 3. Self-Organization. - Homeworkers shall have the right to form, join or assist organizations of their own choosing, in accordance with law.
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Section 6. Payment for Homework. -- Immediately upon receipt of the finished goods or articles, the employer shall pay the homeworker of the contractor or subcontractor, as the case may be, for the work performed less the corresponding homeworker's share of SSS, MEDICARE, and ECC premium contributions which shall be remitted by the contractor/subcontractor or employer to the SSS with the employer's share. However, where payment is made to a contractor, the homeworkers shall likewise be paid immediately after the goods or articles have been collected from the workers.
x x x
Section 8. Deductions. - No employer, contractor shall make any deduction from the homeworkers' earnings for the value of materials which have been lost, destroyed, soiled or otherwise damaged unless the following conditions are met:
(a) the homeworker concerned is clearly shown to be responsible for the loss or damage;
(b) the homeworker is given reasonable opportunity to show cause why deductions should not be made;
(c) the amount of such deduction is fair and reasonable and shall not exceed the actual damage; and
(d) the deduction is made at such rate that the amount does not exceed 20% of the homeworker's earnings in a week.
Section 9. Conditions for Payment of Work. -
(a) The employer may require the homeworker to redo once the work which has been improperly executed without having to pay the stipulated rate again.
(b) An employer, contractor, or subcontractor need not pay the homeworker for any work which has been done on goods and articles which have been returned for reasons attributable to the fault of the homeworker.
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Section 11. Duties of Employer, Contractor and Subcontractor. - Whenever an employer shall contract with another for the performance of the employer's work, it shall be the duty of such employer to provide in such contract that the employees or homeworkers of the contractor and the latter's subcontractor shall be paid in accordance with the provisions of this Rule. In the event that such contractor or sub-contractor fails to pay the wages or earnings of his employees or homeworkers as specified in this Rule, such employer shall be jointly and severally liable with the contractor or subcontractor to the workers of the latter, to the extent that such work is performed under such contract, in the same manner as if the employees or homeworkers were directly engaged by the employer. The employer, contractor or subcontractor shall assist the homeworkers in the maintenance of basic safe and healthful working conditions at the homeworkers' place of work.
Section 12. Employment of Minors as Homeworkers. - The provisions governing the employment of minors under this Code as well as the provisions on working children under the Child and Youth Welfare Code shall govern the employment of minors as homeworkers. [Underscoring supplied.]
Section 13. Prohibitions for Homework. - No homework shall be performed on the following: (1) explosives, fireworks and articles of like character; (2) drugs and poisons; and (3) other articles, the processing of which requires exposure to toxic substances. |
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9. Workers in General
9.1 Working Hours and Rest Periods
LABOR CODE
The provisions on "Working Conditions and Rest Periods" of the Labour Code which are presented below, will not apply to "field personnel, members of the family of the employer who are dependent on him for support, domestic helpers, persons in the personal service of another, and workers who are paid by results", among others.70
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Art. 83. Normal Hours of Work. -- The normal hours of work of any employee shall not exceed eight (8) hours a day.71
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Art. 85. Meal Periods. -- Subject to such regulations as the Secretary of Labour may prescribe, it shall be the duty of every employer to give his employees not less than sixty (60) minutes time-off for their regular meals.
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Art. 91. Right to Weekly Rest Day. - (a) It shall be the duty of every employer, whether operating for profit or not, to provide each of his employees a rest period of not less than twenty-four (24) consecutive hours after every six (6) consecutive normal work days.
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Art. 95. Right to Service Incentive Leave. -- (a) Every employee who has rendered at least one year of service shall be entitled to a yearly service incentive leave of five days with pay.
(b) This provision shall not apply to those who are already enjoying the benefit herein provided, those enjoying vacation leave with pay of at least five days and those employed in establishments regularly employing less than ten employees or in establishments exempted from granting this benefit by the Secretary of Labour after considering the viability or financial condition of such establishment.
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9.2. Wages
By virtue of the Labour Code's prohibition against child discrimination with respect to terms and conditions of employment, the minimum wage laws should be extended to children. The provisions of the Labour Code on wages and of P.D. 851 on 13th-month pay should equally apply to child workers.
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9.2.1 LABOR CODE
Articles 86 to 94 which are presented below shall not apply to "field personnel, members of the family of the employer who are dependent on him for support, domestic helpers, persons in the personal service of another, and workers who are paid by results".72 On the other hand, Articles 102 to 118 shall not apply to domestic helpers, homeworkers engaged in needle work or cottage industries, and workers in duly registered cooperatives.73
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Art. 86. Night Shift Differential. -- Every employee shall be paid a night shift differential of not less than ten per cent (10%) of his regular wage for each hour of work performed between ten o'clock in the evening and six o'clock in the morning.74
Art. 87. Overtime Work. -- Work may be performed beyond eight (8) hours a day provided that the employee is paid for the overtime work, an additional compensation equivalent to his regular wage plus at least twenty-five (25%) percent thereof. Work performed beyond eight hours on a holiday or rest day shall be paid an additional compensation equivalent to the rate of the first eight hours on a holiday or rest day plus at least thirty (30%) percent hereof.
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Art. 90. Computation of Additional Compensation. - For purposes of computing overtime and other additional remuneration as required by this Chapter the "regular wage" of an employee shall include the cash wage only, without deduction on account of facilities provided by the employer.
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Art. 93. Compensation for Rest Day, Sunday or Holiday Work. -- (a) Where an employee is made or permitted to work on his scheduled rest day, he shall be paid an additional compensation of at least thirty (30%) percent of his regular wage. An employee shall be entitled to such additional compensation for work performed on Sunday only when it is his established rest day.
(b) When the nature of the work of the employee is such that he has no regular workdays and no regular rest days can be scheduled, he shall be paid an additional compensation of at least thirty (30%) percent of his regular wage for work performed on Sundays and holidays.
(c) Work performed on any special holiday shall be paid an additional compensation of at least thirty (30%) percent of the regular wage of the employee. Where such holiday work falls on the employees scheduled rest day, he shall be entitled to an additional compensation of at least fifty (50%) percent of his regular wage.
(d) Where the collective bargaining agreement or other applicable employment contract stipulates the payment of a higher premium pay than that prescribed under this Article, the employer shall pay such higher rate.
Art. 94. Right to Holiday Pay. -- (a) Every worker shall be paid his regular daily wage during regular holidays, except in retail and service establishments regularly employing less than ten (10) workers;
(b) The employer may require an employee to work on any holiday but such employee shall be paid a compensation equivalent to twice his regular rate;
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Art. 102. Forms of Payment. -- No employer shall pay the wages of an employee by means of promissory notes, vouchers, coupons, tokens, tickets, chits or any object other than legal tender, even when expressly requested by the employee.
Payment of wages by check or money order shall be allowed when such manner of payment is customary on the date of effectivity of this Code, or is necessary because of special circumstances as specified in appropriate regulations to be issued by the Secretary of Labour or as stipulated in a collective bargaining agreement.
Art. 103. Time of Payment. -- Wages shall be paid at least once every two (2) weeks or twice a month at intervals not exceeding sixteen (16) days. If on account of force majeure or circumstances beyond the employer's control, payment of wages on or within the time herein provided cannot be made, the employer shall pay the wages immediately after such force majeure or circumstances have ceased. No employer shall make payment with less frequency than once a month.
The payment of wages of employees engaged to perform a task which cannot be completed in two (2) weeks shall be subject to the following conditions, in the absence of a collective bargaining agreement or arbitration award:
(1) That payments are made at intervals not exceeding sixteen (16) days, in proportion to the amount of work completed;
(2) That final settlement is made upon completion of the work.
Art. 104. Place of Payment. -- Payment of wages shall be made at or near the place of undertaking, except as otherwise provided by such regulations as the Secretary of Labour may prescribe under conditions to ensure greater protection of wages.
Art. 105. Direct Payment of Wages. -- Wages shall be paid directly to the workers to whom they are due.
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Art. 111. Attorney's Fees. -- (a) In cases of unlawful withholding of wages the culpable party may be assessed attorney's fees equivalent to ten percent of the amount of wages recovered.
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Art. 112. Non-Interference in Disposal of Wages. -- No employer shall limit or otherwise interfere with the freedom of any employee to dispose of his wages. He shall not in any manner force, compel, or oblige his employees to purchase merchandise, commodities or other property from the employer or from any other person, or otherwise make use of any store or services of such employer or any other person.
Art. 113. Wage Deduction. -- No employer, in his own behalf or in behalf of any person, shall make any deduction from the wages of his employees, except:
(a) In cases where the worker is insured with his consent by the employer, and the deduction is to recompense the employer for the amount paid by him as premium on the insurance;
(b) For union dues, in cases where the right of the worker or his union to check-off has been recognized by the employer or authorized in writing by the individual worker concerned; and
(c) In cases where the employer is authorized by law or regulations issued by the Secretary of Labour.
Art. 114. Deposits for Loss or Damage. -- No employer shall require his worker to make deposits from which deductions shall be made for the reimbursement of loss or of damage to tools, materials, or equipment supplied by the employer, except when the employer is engaged in such trades, occupations or business where the practice of making deductions or requiring deposits is a recognized one, or is necessary or desirable as determined by the Secretary of Labour in appropriate rules and regulations.
Art. 115. Limitations. -- No deduction from the deposits of an employee for the actual amount of the loss or damage shall be made unless the employee has been heard thereon, and his responsibility has been clearly shown.
Art. 116. Withholding of Wages and Kickbacks Prohibited. -- It shall be unlawful for any person, directly or indirectly, to withhold any amount from the wages of a worker or induce him to give up any part of his wages by force, stealth, intimidation, threat or by any other means whatsoever without the worker's consent.
Art. 117. Deduction to Ensure Employment. -- It shall be unlawful to make any deduction from the wages of any employee for the benefit of the employer or his representative or intermediary as consideration of a promise of employment or retention in employment.
Art. 118. Retaliatory Measures. -- It shall be unlawful for an employer to refuse to pay or reduce the wages and benefits, discharge or in any manner discriminate against any employee who has filed any complaint or instituted any proceeding under this Title or has testified or is about to testify in such proceedings.
Art. 119. False Reporting. -- It shall be unlawful for any person to make any statement, report, or record filed or kept pursuant to the provisions of this Code knowing such statement, report or record to be false in any material respect. |
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9.2.2 13TH-MONTH PAY
The law on 13th-month pay covers only the rank-and-file employees. However, it does not cover household helpers and those paid on purely commission or task basis. Employees paid on piece rate basis are included in the coverage of the 13th-month pay law.75
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| PRESIDENTIAL DECREE NO. 851
13TH-MONTH PAY LAW
[AS AMENDED BY MEMORANDUM ORDER NO. 28]
Sec. 1 All employers are hereby required to pay all their rank-and-file employees a 13th month pay not later than December 24 of every year.
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9.3 Occupational Safety and Health
9.3.1 LABOR CODE
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Art. 156. First Aid Treatment. -- Every employer shall keep in his establishment such first-aid medicines and equipment as the nature and conditions of work may require, in accordance with such regulations as the Department of Labour shall prescribe.
The employer shall take steps for the training of a sufficient number of employees in first-aid treatment.
Art. 157. Emergency Medical and Dental Services. -- It shall be the duty of every employer to furnish his employees in any locality with free medical and dental attendance and facilities consisting of:
(a) The services of a full-time registered nurse when the number of employees exceeds fifty (50) but not more than two hundred (200) except when the employer does not maintain hazardous workplaces, in which case the services of a graduate first-aider shall be provided for the protection of the workers, where no registered nurse is available....;
(b) The services of a full-time registered nurse, a part-time physician and dentist, and an emergency clinic, when the number of employees exceeds two hundred (200) but not more than three hundred (300); and
(c) The services of a full-time physician, dentist and a full-time registered nurse as well as a dental clinic, and an infirmary or emergency hospital with one bed capacity for every one hundred (100) employees when the number of employees exceeds three hundred (300).
In cases of hazardous workplaces, no employer shall engage the services of a physician or dentist who cannot stay in the premises of the establishment for at least two (2) hours, in the case of those engaged on part-time basis, and not less than eight (8) hours in the case of those employed on full-time basis. Where the undertaking is non-hazardous in nature, the physician and dentist may be engaged on retained basis, subject to such regulations as the Secretary of Labour may prescribe to insure immediate availability of medical and dental treatment and attendance in case of emergency.
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Art. 161. Assistance of Employer. -- It shall be the duty of any employer to provide all the necessary assistance to ensure the adequate and immediate medical and dental attendance and treatment to an injured or sick employee in case of emergency.
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9.3.2 OMNIBUS RULES IMPLEMENTING THE LABOR CODE
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RULE II
OCCUPATIONAL HEALTH AND SAFETY
Section 2. General Occupational Health and Safety Standards. -- Every employer covered by this Rule shall keep and maintain his workplace free from work hazards that are causing or likely to cause physical harm to the workers or damage to property.
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Section 5. Training of Personnel in Safety and Health. -- Every employer shall take steps to train a sufficient number of his supervisors or technical personnel in occupational safety and health.
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9.4 Social Security Benefits
The U.N. Convention on the Rights of the Child guarantees the right of the child to social security. Social security laws give employees the needed security and stability in terms of their basic financial needs in case they sustain any physical disability or infirmity while in the actual performance of their work. Aside from the Labour Code, existing laws on social security include the Social Security Law (R.A. 1161) and the Medical Care Act.
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9.4.1 R.A. 8282, SOCIAL SECURITY LAW
The new Social Security Law which amended R.A. 1161 provides to covered employees and their families protection against the hazards of disability, sickness, old age, and death, with a view to promoting their well-being in the spirit of social justice. The law imposes upon employers and employees the obligation to become members of and make contributions to the Social Security System (SSS).
Employed children are understood to be covered by the system since the law states that: |
Section 9. Compulsory Coverage. -- (a) Coverage in the SSS shall be compulsory upon all employees not over sixty years of age and their employers....
Several types of employment, however, are excluded from the coverage of the law, such as: employment purely casual and not for purpose of the business of the employer;government service; service on an alien vessel outside the Philippines; service for foreign government, international organizations or their wholly-owned instrumentality; and temporary employees excluded by regulation.76 The new law has therefore taken away these from the exeption: tenant farmers who have no regular wage and do not work for an uninterrupted period of at least six months/year; domestics; one employed by his son, daughter or spouse; and the service of a child under 21 in the employ of his parents.
Under the Social Security Law, both the employer and the employee have the obligation to contribute to the System a certain amount every month based on the monthly salary of the employee. The obligation to remit both the employer's and employees' contributions to the SSS, however, is imposed only upon the employer.
Sec. 18. Employee's Contributions. --
(a) Beginning as of the last day of the calendar month when an employee's compulsory coverage takes effect and every month thereafter during his employment, the employer shall deduct and withhold from such employee's monthly salary....
(b) Every employer shall issue a receipt for all contributions deducted from the employee's compensation or shall indicate such deductions on the employee's pay envelopes.
Sec. 19. Employer's Contributions. --
(a) Beginning as of the last day of the month when an employee's compulsory coverage takes effect and every month thereafter during his employment, his employer shall pay, with respect to such covered employee, the employer's contribution in accordance with the schedule indicated.... Notwithstanding any contract to the contrary, an employer shall not deduct, directly or indirectly, from the compensation of his employees covered by the SSS or otherwise recover from them the employer's contributions with respect to such employees.
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9.4.2 EMPLOYEES' COMPENSATION AND STATE INSURANCE FUND
Under the employees' compensation programme, a fund known as the State Insurance Fund is established through premium payments exacted from employers and from which employees and their dependents in the event of work-connected disability or death, may promptly secure adequate income benefit, and medical or related benefits. The employees' compensation law applies to all employers, public or private; and to all employees, public or private, including casual, emergency, temporary or substitute employment. Thus, children who are employed in establishments are also entitled to such insurance coverage by virtue of the Labour Code's mandate that:
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Art. 168. Compulsory Coverage. --- Coverage in the State Insurance Fund shall be compulsory upon all employers and their employees not over sixty (60) years of age....
Private employers are required to remit to the Social Security System a monthly contribution as follows:
Art. 183. Employers Contributions. --
(a) Under such regulations as the System may prescribe, beginning as of the last day of the month when an employee's compulsory coverage takes effect and every month thereafter during his employment, his employer shall prepare to remit to the System a contribution equivalent to one percent of his monthly salary credit.
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(c) Contributions under this Title shall be paid in their entirety by the employer and any contract or device for the deduction of any portion thereof from the wages or salaries of the employees shall be null and void.
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9.4.3 MEDICARE ACT/ HEALTH INSURANCE ACT
R.A. 7875 or the National Health Insurance Act of 1995 created a National Health Insurance Fund under the administration of the newly-established Philippine Health Insurance Corporation, from which members may secure essential goods, health and other social services at affordable cost. Although this law repealed the Revised Philippine Medicare Act, the obligation of both employers and employees under the Medicare Act to contribute to the existing Health Insurance Fund of the SSS, still subsists. Moreover, until such time that the new National Health Insurance Program of the Philippine Health Insurance Corporation is firmly established, the SSS shall continue to operate its former Medicare Program and collect medicare contributions from members.
Under the former Medicare Act, all employers who are compulsorily covered under the Social Security Law are required to perform the following obligations:
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PRESIDENTIAL DECREE 1519
REVISED PHILIPPINE MEDICARE ACT
[Superseded by the National Health Insurance Act of 1995]
Sec. 19. Collection of Contributions to the Health Insurance Fund. - The employer shall deduct from his employee's monthly compensation the employee's contribution. The employee's contribution and the employer's counterpart thereof shall be remitted by the employer directly to the...SSS... in the same manner as other SSS...contributions, and shall be subject to the same penalties for late payment. The employer's counterpart contribution shall not in any manner be recovered from the employee. Failure of the employer to remit to the...SSS the corresponding employee's and employer's contributions shall not be a reason for depriving the employee of the benefits of this Decree.
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9.5 Security of Tenure
Children who have attained the status of regular employment are entitled to security of tenure. Attached to this right is the right to file a case for illegal dismissal, when appropriate, and to ask for damages and/or reinstatement. The right to security of tenure, however, is only available to legally employed children such as those between 15 to 18 years who are employed in non-hazardous undertakings, or children in the public entertainment or information industry as allowed by R.A. 7658. Illegally employed children do not have the right to security of tenure since they are not supposed to be employed in the first place. To allow them to go back to their employment will be tantamount to breaking the law.
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Art. 279. Security of Tenure. -- In cases of regular employment, the employer shall not terminate the services of an employee except for a just cause or when authorized by this Title. An employee who is unjustly dismissed from work shall be entitled to reinstatement without loss of seniority rights and other privileges and to his full backwages, inclusive of allowances, and to his other benefits or their monetary equivalent computed from the time his compensation was withheld from him up to the time of his actual reinstatement.
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IV. RIGHTS AND PRIVILEGES
OF WORKING CHILDREN
A child worker is protected both insofar as his/her status as a child and as a worker is concerned.
As a child, he/she is entitled to all the rights of the child contained in the Child and Youth Welfare Code (Art. 3) and in the U.N. Convention on the Rights of the Child (CRC). These rights encompass social rights, economic rights, cultural rights, and civil and political rights. Under the CRC, which the Philippines ratified in July 1990, the child is entitled to a broad range of rights which may be grouped into survival rights (e.g., right to life, right to the highest standard of health and medical care available, right to adequate standard of living, right to paren-tal care and support, right to social security, etc.), protection rights (e.g., right to a name, nationality and identity; right to protection from discrimination, abuse, neglect and exploitation; etc.), development rights (e.g., right to information, education, leisure, recreation and cultural activities, etc.), and participation rights (e.g., right to opinion; right to freedom of expression; right to freedom of thought, conscience and religion; right to freedom of association; right to privacy; etc.).
As a worker, the child is entitled to the basic rights of all workers such as the right to just and favorable conditions of work, the right to social security, the right to form or join labor unions, and the right to a just and living wage. Although not all these rights have been framed into specific laws for child workers, a child who enters the labor force automatically becomes entitled to these rights in addition to his/her rights as a child.
There are several laws, however, which take into consideration the needs of the child worker both as a child and as a laborer. Presented in this section are the laws which provide special rights and privileges to child workers.
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A. THE SAMAHAN
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CHILD AND YOUTH WELFARE CODE
TITLE VI
CHILD AND YOUTH WELFARE AND THE SAMAHAN
CHAPTER 1
DUTIES IN GENERAL OF THE SAMAHAN
ART. 104. "Samahan" Defined. - As used in this Code, the term "Samahan" shall refer to the aggregate of persons working in commercial, industrial, and agricultural establishments or enter-prises, whether belonging to labor or management.
ART. 105. Organization. - The barangay, municipal and city councils, whenever necessary, shall provide by ordinance for the formation and organization of a Samahan in their respective communities. Membership in the Samahan shall be on voluntary basis from among responsible persons from the various sectors of the community mentioned in the preceding article.
ART. 106. Duties of the Samahan. - The Samahan shall:
(1) Prevent the employment of children in any kind of occupation or calling which is harmful to their normal growth and development;
(2) Forestall their exploitation by insuring that their rates of pay, hours of work and other conditions of employment are in accordance not only with law but also with equity;
(3) Give adequate protection from all hazards to their safety, health, and morals, and secure to them their basic right to an education;
(4) Help out-of-school youth to learn and earn at the same time by helping them look for opportunities to engage in economic self-sufficient projects;
(5) Coordinate with vocational and handicraft classes in all schools and agencies in the barangay, municipality or city to arrange for possible marketing of the products or articles made by the students; and
(6) Provide work experience, training and employment in those areas where the restoration and conservation of our natural resources is deemed necessary.
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ART. 110. Education of Children Employed as Domestics. - If a domestic is under sixteen years of age, the head of the family shall give him an opportunity to complete at least elementary education as required under Article 71. The cost of such educa-tion shall be a part of the domestic's compensation unless there is a stipulation to the contrary.
CHAPTER 3
LABOR-MANAGEMENT PROJECT
ART. 111. Right to Self-Organization. - Working children shall have the same freedom as adults to join the collective bargaining union of their own choosing in accordance with existing law.
Neither management nor any collective bargaining union shall threaten or coerce working children to join, continue or withdraw as members of such union.
ART. 112. Conditions of Employment. - There shall be close collaboration between labor and management in the observance of the conditions of employment required by law for working chil-dren.
ART. 113. Educational Assistance Program. - The management may allow time off without loss or reduction of wages for working children with special talents to enable them to pursue formal studies in technical schools on scholarship financed by management or by the collective bargaining union or unions.
ART. 114. Welfare Programs. - Labor and management shall, in cooperation with the Women and Minors Bureau of the Department of Labor, undertake projects and in-service training programs for working children which shall improve their conditions of employment, improve their capabilities and physical fitness, increase their efficiency, secure opportunities for their promotion, prepare them for more responsible positions, and provide for their social, educational and cultural advancement.
ART. 115. Research Projects. - Labor and management shall cooperate with any government or private research project on matters affecting the welfare of working children.
CHAPTER 4
COLLABORATION BETWEEN THE HOME AND THE SAMAHAN
ART. 116. Collaboration Between the Home and the Samahan. - The home shall assist the Samahan in the promotion of the welfare of working children and for this purpose shall:
(1) Instill in the hearts and minds of working children the value of dignity of labor;
(2) Stress the importance of the virtues of honesty, diligence and perseverance in the discharge of their duties;
(3) Counsel them on the provident use of the fruits of their labor for the enrichment of their lives and the improvement of their economic security; and
(4) Protect their general well-being against exploitation by management or unions as well as against conditions of their work prejudicial to their health, education, or morals.
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B. NON-FORMAL EDUCATION
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R.A. 7610
THE CHILD PROTECTION LAW
ARTICLE VIII
WORKING CHILDREN
Section 13. Non-formal Education for Working Children. - The Department of Education Culture and Sports shall promulgate a course design under its non-formal education program aimed at promoting the intellectual, moral and vocational efficiency of working children who have not undergone or finished elementary or secondary education. Such course design shall integrate the learning process deemed most effective under given circumstances.
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C. SUMMER EMPLOYMENT
1. Republic Act No. 7323
2. Implementing Rules of R.A. 7323
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