Legal Doctrines: Hearsay Evidence

Q.- Upon what ground is hearsay evidence excluded?

A.- Hearsay evidence is excluded upon the broad grounds of public policy. It is excluded upon the sound theory that no man can better express his ideas than he himself. A perfect knowledge of human nature must com­mend this rule, for it is very seldom, if at all, that a man can repeat in court what another has told him regarding a particular fact, and the allowance of the evidence would lead to innumerable frauds and to great difficulty in the determination of facts. 

Besides, if hearsay is admissible if given by the person who say that he heard another say something, logically, at least, it must also be admissible if told by a third or a fifth, or a tenth person who testifies as to what he had heard the previous man said to what he had heard another previous man saying, and so on, and thus a story of three words may become a thousand. The law cannot allow that.

Hearsay is only admitted in very few cases where the law on the ground of necessity or convenience admits it, but well guarded by technical rules.

Manuel Roxas (1st Place, 1913) – Remedial Law, 100%

LABOR STANDARDS REVIEWER

LABOR STANDARDS

Refers to the minimum requirements prescribed by existing laws, rules and regulations and other issuances relating wages, hours of work, cost of living allowances and other monetary and welfare benefits, including those set by occupational safety and health standards.

1.   8 Hour Work (shall not exceed)

Hours worked shall include:

1.   All time during which an employee is required

Ø to be on duty

Ø to be at a prescribed workplace and

2.   All time during which an employee is suffered or permitted to work.

·   Rest periods of short duration during working hours shall be counted as hours worked.

2.   Meal Pay

3.   Holiday Pay

Except: Retail and service establishments regularly employing less than 10 workers

Includes: Employee who is paid by results and she works in a service establishment employing more than 10 persons shall be paid holiday pay. (Sec. 8(b), Rule IV, Book III, IRR’s)

      Regular Holidays

1.     New Years day             - January 1

2.     Maundy Thursday       - Movable Date

3.     Good Friday                  - Movable Date

4.     Eidul Fitr                        - Movable Date

5.     Araw ng Kagitingan    - Movable Date nearest April 9

6.     Labor day                      - Monday nearest May 1

7.     Independence day      - Monday nearest June 12

8.     National heroes day   - Last Monday of August

9.     Bonifacio day               - Monday nearest November 30

10.  Christmas day              - December 25

11.  Rizal day                       - Monday nearest December 30

      Nationwide Special Holidays

1.     All Saints Day               - November 1

2.     Last Day of the Year  - December 31

3.     Ninoy Aquino Day       - Monday nearest August 21

·   If required to work on reg. holidays = regular rate x 

·   To receive holiday pay, the EE should not have been absent without pay on the working day preceding the regular holiday. (Azucena)

·   A legal holiday falling on a Sunday creates no legal obligation for the ER to pay extra to the EE who does not work on that day, aside from the usual holiday pay, to its monthly-paid employee. (Wellington vs. Trajano)

4.   Premium Pay

Is additional compensation for work rendered by the employee on days normally he should not be working.

5.   Weekly Rest Period

·   It shall be for the duty of every employer, whether operating for profit or not, to provide employee a rest period of not less than 24 consecutive hours after every 6 consecutive normal working days.

·   The employer shall determine and schedule the weekly rest day of his employees, however, the employer shall respect the preference of employees as to their weekly rest day when such preference is based on religion grounds.

Where however the choice of the employees as to their rest day based on religious grounds will inevitably result in serious prejudice or obstruction to the operation of the undertaking, the employer may so schedule the weekday rest day of their choice at least 2 days in a month. (Sec. 4, Rule III, Book III, IRR’s)

When ER may require Work on rest day [D U A - P N A] (Art. 92)

a.   In case of actual or impending emergency caused by serious accident, fire, flood, typhoon, earthquake, epidemic, or other Disaster or calamity to prevent loss of life, or imminent danger to public safety.

b.   In case of Urgent work, to avoid serious loss which the ER would otherwise suffer;

c.   In the event of Abnormal pressure of work due to special circumstances, where the ER cannot ordinarily be expected to resort to other measures;

d.   To prevent or damage to Perishable goods;

e.   Where the Nature of work requires continuous operations and stoppage of the work may result in irreparable injury or loss to the ER; and

f.    Analogous (avail of favorable weather) or similar circumstances

How much is a worker entitled if he works on a rest day?

§     Scheduled rest day – additional compensation of at least 30% of his regular wage.

§     Scheduled rest day which is a non-working holiday – entitled to additional compensation of at least 50% of his regular wage.

§     Scheduled rest day which is a regular holiday – entitled to additional compensation of at least 30% of his regular holiday rate of 200% based on his regular wage rate. (Sec. 4, Rule III, Book I, IRR’s)

6.   Service Incentive Leave

Except :

a. Those enjoying vacation leave with pay of at least 5 days.

b.   Those employed in establishments regularly employing less than 10 workers

c.   Exempt establishments.

·      can be converted to cash

·      5 days incentive leaves with pay for at least 1 year of service.

The term ‘at least 1 year of service’ shall mean service within 12 months, whether continuous or broken, reckoned from the date the EE started working, including authorized absences and paid regular holidays unless the working days in the establishment as a matter of practice or policy, or that provided in the employment contract are less than 12 months, in which case said period shall be considered as 1 year. (Sec. 3, Rule V, Book III, IRR’s)

7.   Night Shift Deferential

Every EE shall be paid night shift differential of not less than 10% of his regular wage for each hour of work performed between 10:00 p.m. and 6:00 a.m. (Art. 86)

Except: Employer with not more than 5 employees

8.   Overtime Pay

·   Is additional compensation for work done beyond the normal work hours on ordinary working days. 

·   Regular work day – plus 25% basic hourly rate 

·   Special days, holiday or rest day – plus 30% of the regular hourly rate on said days.

Emergency Overtime Work  - Any EE may be required by the ER to perform overtime work in any of the following cases: [WED-UPS]

a.   When the country is at War

b.   When any other national or local Emergency has been declared

d.   When it is necessary to prevent loss of life or property or in case of imminent Danger to the public safety due to an actual or impending emergency in the locality caused by serious accidents, fire, flood, typhoon, earthquake, epidemic or other Disaster or calamity.

e.   When there is Urgent work to be performed on machines and installations in order to avoid serious loss or damage to the ER or some other cause of similar nature.

f.    When the work is necessary to prevent loss or damage to Perishable goods.

g.   Where the completion or continuation of the work started before the 8th hour is necessary to prevent Serious obstruction or prejudice to the business operations of the ER.

The EE’s refusal to obey the order of the EE constitutes insubordination for which he may be subjected to disciplinary action. (Alcantara)

·   Undertime work in any particular day shall not be offset by overtime work on another day BUT not on someday.

§ Permission given to the EE to go on leave on some other day of the week shall not exempt the ER from paying the additional compensation required. (Art. 88)

·   For purposes of computing overtime and other additional remuneration as required by this Chapter the “regular wage” of an EE shall include the cash wage only, without deduction on account of facilities provided by the ER. (Art. 90) 

COVERAGE OF LABOR STANDARD

Applies to ALL employees in all establishments and undertakings whether for profit or not.

 Except the following: (MOM –GF – WPD)

M – Managerial Employees

a.   Their primary duty consists of the management of the establishment in which they are employed or of a department or sub-division thereof;

b.   Customarily or regularly direct the work of 2 or more employees therein;

c.   Has the authority to hire or fire other employees of lower rank; or their suggestions and recommendations as to the hiring and firing and as to the promotion or any change of status of other employees are given particular weight. [Sec 2(b), Rule I, Book III]

O – Other Offices or Members of a Managerial Staff

a.   Primary duty consists of the performance of work directly related to management policies of the employer;

b.   Customarily and regularly, exercise discretion and independent judgment;

c.   Regularly directly assist a proprietor or managerial employee or execute under general supervision work along specialized or technical lines requiring special training, experience or knowledge; or execute under general supervision special assignment and tasks; and

d.   Do not devote more than 20% of their hours worked to activities which are not directly and closely related to the performance of the work described in the preceding paragraphs.

M – Members of the Family of the Employer who are dependent of him for support

It refers not only to the real “immediate” members of he family of the employer but also to those who are considered as family members in its loose sense, that is, those who are living with the employer and dependent on him for support

G  –  Government Employee

Whether employed by the National Government or any of its political subdivisions, including those employed in GOCC’s with original charters. (Sec. 2, Rule I, Book III, IRR’s)

F – Field Employee

Non-agricultural EE’s who regularly perform their duties away from the principal place of business  or branch office of the ER whose actual hours of work in the field cannot be determined with reasonable certainty (Art. 82)

W – Workers Paid by Result

Compensation computed on the basis of work accomplished and not on time spent in accomplishing the work.

a.   Paid by Task (wholesale) – those who are compensated on the basis of the completion or accomplishment of a certain specified task.

b.   Paid by Piece – those who are compensated on the basis of units or piece of work they produced and accomplished. The work process involved is usually repetitive and the compensation is uniform per unit or per piece.

c.   Paid Purely on Commission

P – Persons in the personal service of another

Same as the Domestic Helper but includes not only domestic servants or house helpers but drivers, valets and bodyguards as well.

D – Domestic Helpers

        Perform such services:

a.   In the ER’s home which are usually necessary or desirable for the maintenance or enjoyment thereof;

b.   Or minister to the personal comfort, convenience, or safety of the ER as well as the members of his ER’s household (Sec. 2, Rule I, Book III, IRR’s)

However, house personnel hired by a ranking company official, but paid for by the company itself, to maintain a staff house provided for the official, are not the latter’s domestic helpers but regular EE’s of the company. (Cadiz vs. Philippine Sinter)

13TH MONTH PAY

All land-based employers are required to pay all their rank-and- file employees a 13^th month pay not later than December 24 of every year.

o   1/12 of the total basic salary earned by an EE within a calendar year.

o   To be paid only to rank-and file employees regardless of the amount of their basic salary.

o   Paid not later than December 24.

§     To be entitled to the 13^th month pay benefit, it is imposed as a minimum service requirement that employees, regardless of their designation or employment status and irrespective of the method by which their wages are paid, should have worked r at for least one (1) month during the calendar year.

§     It is possible that ½ of the payment of 13^th month pay be given to employees before the opening of the regular school year and the other half on or before 24^th day of December of every year. The frequency of the payment of this monetary benefit may be subject of agreement between the employer and the recognized CBA of the employees.

§     OFW is no entitled to 13^th month pay in the absence of any provision in his  employment contract granting the payment thereof (Petroleum Shipping Limited v. NLRC, G.R. No. 148130, June 16, 2006)

§     An employee who has resigned or whose services were terminated at any time before the time for payment of the 13^th month pay is entitled to this monetary benefit proportion to the length of time he worked during the year, reckoned from the time he started working during the calendar year up to the time of his resignation or termination of service.

(Monthly Salary x # of months he worked during he year) / 12

Basic Salary (For purposes of computing the 13^th month pay)

Ø include remuneration or earnings paid by this ER for services rendered

Ø but does not include allowances and monetary benefits which are not considered or integrated as part of the regular or basic salary, such as the cash equivalent or unused vacation and sick leave credits, overtime, premium, night-differential and holiday pay, and cost-of-living allowances.

·   However, these salary-related benefits should be included as part of the basic salary in the computation of the 13^th month pay if the individual or collective agreement, company practice or policy, the same are treated as part of the basic salary of the EE’s.

The following are not entitled to 13^th month pay:

(WPD – G – MES)

W – Workers Paid by Result

        Except:  Paid by Piece Employee

D – Domestic Helpers

P – Persons in the personal service of another

G  –  Government Employee

The government and any of its political subdivisions, including GOCC’s, except those corporations operating essentially as private subsidiaries of the government.

M – Managerial Employees

E – Employee being paid equivalent of 13th month pay

ER’s already paying their EE’s a 13^th month pay or more in a calendar year or its equivalent at the time of this issuance.

The term “its equivalent” … shall include Christmas bonus, mid-year bonus, cash bonuses and other payments but shall not include cash and stock dividends, cost of living allowances and other allowances regularly enjoyed by the EE, as well as non-monetary benefits. Where an ER pays less than required 1/12^th of the EE’s basic salary, the ER shall pay the differences.

S – Supervisory Employee

Have the following duties and functions:

a.   Assist the department superintendent in various aspects of management such as in the planning of systems and procedures;

b.   Recommends disciplinary action against erring subordinates or promotion of deserving personnel, train and guide subordinates;

c.   Communicate and coordinate with other supervisors;

d.   Recommend measures to improve work method; and

e.   Other related tasks as may be assigned by his immediate superior.

They discharge duties and responsibilities which qualify them as members of the managerial staff.

A distressed ER may qualify for exemption for the 13^th month pay if there is prior authorization from the DOLE. (Dentech vs. NLRC)

Introduction to Remedial Law

REMEDIAL LAW

I. General Principles

A. Concept of Remedial Law

The Rules of Court as a whole constitute the body of rules governing pleadings, practice and procedure. As they do not originate from the legislature, they cannot be called laws in the strict sense of the word. However, since they are promulgated by authority of law, they have the force and effect of law if not in conflict with a positive law. The Rules are subordinate to statute, and in case of conflict, the statute will prevail.

The concept of Remedial Law lies at the very core of procedural due process, which means a law which hears before it condemns, which proceeds upon inquiry and renders judgment only after trial, and contemplates an opportunity to be heard before judgment is rendered.

Remedial Law is that branch of law which prescribes the method of enforcing the rights for obtaining redress for their invasion.

Remedial laws are implemented in our system of government through the pillars of the judicial system, including the prosecutory service, our courts of justice and quasi judicial agencies.

We cannot separate remedial law from substantive law. Remedial law does not establish a right. Substantive law establishes that right, but remedial law protects and enforces such right.

B. Substantive Law as Distinguished from Remedial Law

SUBSTANTIVE LAW is that part of the law which creates, defines and regulates rights concerning life, liberty, or property, or the powers of agencies or instrumentalities for the administration of public affairs. This is distinguished from REMEDIAL LAW which prescribes the method of enforcing those rights and obligations created by substantive law for obtaining redress for their invasion.

C. Rule-making Power of the Supreme Court

The SC has the constitutional power to promulgate rules concerning pleading,practice and procedure (Sec 5(5), Art. VIII, Constitution). But this is not an absolute power, it is subject to some limitations.

1. Limitations on the rule-making power of the Supreme Court

The following are imposed by the Constitution on the rule-making power of the SC:

a. The Rules shall provide a simplified and inexpensive procedure for thespeedy disposition of cases;

b. The Rules shall be uniform for courts of the same grade; and

c. The Rules shall not diminish, increase, or modify substantive rights (Sec. 5(5), Art. VIII, Constitution). Only the legislature can do these acts, not the SC.

2. Power of the Supreme Court to amend and suspend procedural rules

The courts have the power to relax or suspend technical or procedural rules or to except a case from their operation when compelling reasons so warrant or when the purpose of justice requires it. What constitutes good and sufficient cause that would merit suspension of the rule is discretionary upon the courts.

When a rule promulgated by the SC is not applied by the SC to a particular case, it is not a situation where the SC violates its own rules. It is a situation where the SC has promulgated a rule on that particular case only pro hac vice. This is the power of the SC to suspend the rules in the interest of justice. The SC can even not apply a particular rule.

In a case where the action of the MTC was patently null and void, the SC took cognizance of a petition for certiorari without it having to pass the RTC. The SC in this particular case did not follow a rule. What is the justification of the court? Action has to be done immediately. Only the SC can do that.

The SC has also sustained appeals filed beyond the reglementary period shown to be meritorious and the failure to file on time was with a reason that will compel the court to recognize that reason. The rules are not intended to be applied with pedantic rigor. The rules and technicalities have to give way to the interest of substantial justice. So when there is a conflict between the interest of justice and technicalities, the latter have to give way in order to give way to justice.

Reasons which would warrant the suspension of the Rules:

1. Existence of special or compelling circumstances;

2. the merits of the case;

3. a cause not entirely attributable to the fault or negligence of the party favored by the suspension of rules;

4. lack of any showing that the review sought is merely frivolous and dilatory; and

5. the other party will not be unjustly prejudiced thereby.

Compliance with the rules is the general rule, and abandonment thereof should only be done in the most exceptional circumstances.

Power to amend the rules. The SC has the power to amend, repeal or even establish new rules for a more simplified and inexpensive process, and the speedy disposition of cases. The constitutional power of the SC to promulgate rules of practice and procedure and to amend or repeal the same necessarily carries with it the power to overturn judicial precedents on points of remedial law through the amendment of the ROC.

The ROC are to be liberally construed in order to promote their objective of securing a just, speedy, and inexpensive disposition of every action or proceeding.

D. Nature of Philippine Courts

Philippine courts are both courts of law and equity. Hence, both legal and equitable jurisdiction is dispensed with in the same tribunal.

1. Meaning of a court

Referred to here is the court as a public office, an office under the judiciary. It is tasked with the primary purpose of resolving controversies among individuals, and also tasked with enforcement of the procedures for defending the State against disorder like in criminal prosecution.

A court itself does not actually physically exist. The courtroom does. A court exists because of legal fiction.

2. Court as distinguished from a judge

It is a court which has jurisdiction over cases. A judge has no jurisdiction. While a court is an office, the officer that presides over a court is called a judge. A judge is a physical actual being while a court is a creation of law. A judge may die but a court remains.

3. Classification of Philippine courts

4. Courts of original and appellate jurisdiction

Original jurisdiction is where a case is filed first.

The MTC has original jurisdiction. Does the CA also have original jurisdiction? Yes. There are cases which are filed in the CA for the first time. Does the SC also have original jurisdiction? Yes.

Appellate jurisdiction is the authority to review, revise, reverse or modify decisions of a lower court. The MTC has no appellate jurisdiction.

5. Courts of general and special jurisdiction

Courts normally have jurisdiction given to them by law. But there are some courts which even if not specifically given could be within the jurisdiction of that court.

The RTC is a court of general jurisdiction. If there is no law which confers jurisdiction over a subject matter to any particular court, it is now assumed automatically under BP 129 that it will go to the RTC because it is a court of general jurisdiction.

The MTC, CA, and SC are not courts of general jurisdiction. They exercise aspecial jurisdiction. They only exercise jurisdiction over subject matters conferred directly to them by law.

6. Constitutional and statutory courts

Statutory courts are courts created by law, by statute or other specific laws other then the fundamental law. Those laws are authorized by the Constitution. There is only 1 court created directly by the Constitution, the SC.

The Sandiganbayan is not constitutional court because it is not directly created by the constitution; it is a constitutionally-mandated court. As early as the 1973 Constitution directed an order to create the Sandiganbayan.

7. Courts of law and equity

Philippine courts exercise 2 general types of jurisdiction; the legal and the equity jurisdiction. That means that Philippine courts are not only courts of law but also courts of equity.

Courts of equity decide a case not in relation to a particular statutory provision. Courts of equity decide a case on the basis of the natural concept of what is just and what is fair because human beings have natural concepts of what is right and what is wrong even if we have not gone to school.

There is one principle we have to remember. The courts are not authorized to apply the rules or laws on equity if there is a specific statutory provision. Equity is not supposed to come in if there is a law applicable to certain state of facts. No matter how harsh the law is, if there is a law, the court will have to apply the law. If there is no law, that’s the time that courts go to the laws on equity.

Reyes vs. Lim, August 11, 2003: This was about an agreement to sell a land. Actually it was a conditional sale. The buyer gave a hefty down payment of P10 million because it involved a parcel of land with a prime location in Pasay City. He noticed that the seller really had no intention to go on with the sale. He filed alternatively an action to rescind or to annul the contract. During the pendency of the case, he asked the court to require the defendant seller to deposit in court the P10 million he already gave as down payment because he noticed that the seller is engaged in some activities which made him to believe that the guy was squandering the money he gave as earnest money. If the contract is annulled or rescinded, there is then an obligation for the obligee to make restitution, and the buyer fears that there will be no more money to return. The defendant said that the plaintiff in effect is asking for a provisional remedy that is not found in the rules. The SC said there is a vacuum in the law, and there is a need to protect the right of the plaintiff should he win. And so the court allowed a deposit as a provisional remedy pro hac vice only on that particular case using its equity jurisdiction.

8. Principle of Judicial Hierarchy

This principle arises in case of concurrent jurisdiction. Meaning there are cases cognizable by 1 court and another court or courts authorized by law; there are several courts authorized by law to take cognizance over a case. In petitions for a writ of amparo, there is concurrent jurisdiction between the RTC, CA, SC and even the Sandiganbayan.

Our courts follow the so-called ladderized procedure. If you could file it in the lowest court, then file it there first. You must have a compelling reason for filing it in a higher court than in a lower court. This is judicial hierarchy, a general rule which may be disregarded sometimes.

9. Doctrine of non-interference or doctrine of judicial stability

A court cannot issue an order against a co-equal court. An RTC cannot enjoin the acts of another RTC. This is to promote the doctrine of stability. This is also applied to certain quasi-judicial agencies. The RTC cannot enjoin the SEC because they have equal ranks. Go to the CA by way of Rule 43.

"Batas Kasambahay" (REPUBLIC ACT NO. 10361)

[REPUBLIC ACT NO. 10361]

AN ACT INSTITUTING POLICIES FOR THE PROTECTION
AND WELFARE OF DOMESTIC WORKERS

FREQUENTLY ASKED QUESTIONS:

1. What is Republic Act No. 10361? Republic Act No. 10361 is an Act Instituting Policies for the Protection and Welfare of Domestic Workers, otherwise known as ‘Domestic Workers Act’ or ‘Batas Kasambahay.’

2. When did the law become enforceable? The law became enforceable on 04 June 2013 or fifteen (15) days after the publication of its Implementing Rules and Regulations (IRR) on 19 May 2013 in The Philippine Star and the Manila Times.

3. What is the significance of the passage of the law? The law is a landmark piece of labor and social legislation that recognizes for the first time domestic workers as similar to those in the formal sector. It strengthens respect, protection, and promotion of the rights and welfare of domestic workers or kasambahay.

4. What are the specific acts declared “unlawful” under the law?

a.    Employment of children below 15 years of age;

b. Withholding of the kasambahay’s wages;

c. Interference in the disposal of the kasambahay’s wages;

d. Requiring kasambahay to make deposits for loss or damage;

e. Placing the kasambahay under debt bondage; and

f. Charging another household for temporarily performed tasks.

5. What are the penalties for the commission of unlawful acts under the law?

Photo from Inquirer Entertainment

 Unlawful acts are punishable with an administrative fine ranging from P 10,000 to P40,000 to be imposed by the DOLE Regional Offices. 64. The aggrieved party may file the appropriate civil or criminal action before the regular courts.

6. Who are the kasambahay covered by the law? All kasambahay engaged in domestic work, whether on a live-in or live-out arrangement, such as, but not limited to, the following: Although, the Private Employment Agency (PEA) is allowed to collect Service Fee from the employer, in no case shall it charge Recruitment or Finder’s Fee from the kasambahay

Who are not covered? The following are not covered by the Batas Kasambahay: a. service providers; b. family drivers; c. children under foster family arrangement; and d. any other person who performs work occasionally or sporadically and not on an occupational and regular basis.

7. Can the employer and the kasambahay terminate the contract anytime? Yes, provided that the kasambahay and the employer mutually agree upon written notice.

(An employer can hire directly or through private employment agencies (PEA) registered with the DOLE regional offices. Employers are assured of quality services through DOLE-TESDA training, assessment, and certification of kasambahay)

What is the employable age for a kasambahay? Fifteen (15) years old and above.

The conditions for the employment of children fifteen (15) but below eighteen (18) years of age : a. They shall not be allowed to work for more than eight (8) hours a day, and in no case beyond forty (40) hours a week; b. They shall not be allowed to work between ten o’clock in the evening and six o’clock in the morning of the following day; c. They shall not be allowed to do hazardous work; and d. They shall not be denied access to education and training.

8. If the duration of the domestic service is not determined in the contract, can a kasambahay or the employer terminate the contract anytime? Yes. Either the employer or the kasambahay may give notice to end the working relationship five (5) days before the intended date of the termination of service.

9. What are the entitlements of a kasambahay unjustly dismissed by the employer?

a. Outright payment of earned wage; and b. Indemnity benefit in the form of wage equivalent to fifteen (15) days work. 55. What are the liabilities of a kasambahay who leaves his/her employer without justifiable reason? a. Forfeiture of wage equivalent to fifteen (15) days work; and b. Reimbursement of the deployment expenses, if the employment contract is terminated within six (6) months from employment.

10. Can the employer inspect the belongings of the kasambahay before he/she leaves the household in case of termination of employment? No. However, the employer and the kasambahay can agree in their employment contract that an inspection can be made before he/she leaves the household.

11. If there is non-payment or underpayment of wage and other labor-related concerns, where can the kasambahay seek assistance?

The kasambahay can go to a Kasambahay Desk Officer situated in their respective barangays or the nearest DOLE field/provincial/regional office. 58. If a kasambahay is hired thru a Private Employment Agency (PEA), can it charge Service Fee from the employer as well as Recruitment or Finder’s Fee from the kasambahay?

12. Does the law afford remedy for abused or exploited kasambahay?

The law mandates the conduct of immediate rescue of abused or exploited kasambahay by the municipal or city social welfare officer or a social welfare officer from DSWD, in coordination with the concerned barangay officials. The law sets out that crimes or offenses committed under the Penal Code and other criminal laws shall be filed with the regular courts.

13. Can the employer demand from a PEA the replacement of a kasambahay? Yes. Within one month from the day the kasambahay reported for work, the employer may demand a replacement based on the following cases: a. The kasambahay is found to be suffering from an incurable or contagious disease, or mental illness as certified by a competent or government physician; b. The kasambahay abandons the job without justifiable cause, voluntarily resigns, commits theft or any other analogous acts prejudicial to the employer or his/her family; or c. The kasambahay is physically or mentally incapable of discharging the minimum requirements of the job, as specified in the employment contract.

14. What are the declared responsibilities of the Private Employment Agency under the law? a. Ensure that the kasambahay is qualified as required by the employer; b. Secure the best terms and conditions of employment for the kasambahay; c. Ensure that the employment agreement between the kasambahay and the employer stipulates the terms and conditions of employment and all the benefits in accordance with the IRR; d. Provide a pre-employment orientation briefing to the kasambahay and the employer about their rights and responsibilities in accordance with this IRR; e. Ensure that the kasambahay is not changed or required to pay any recruitment or placement fees; f. Keep copies of employment contracts and agreements pertaining to recruited kasambahay which shall be made available during inspections or whenever required by the DOLE or local government officials; g. Assist the kasambahay in filing his/her complaints or grievances against the employers; h. Cooperate with government agencies in rescue operations involving abused or exploited kasambahay.

15. Can the kasambahay terminate the contract at any time?

Yes, on the following grounds: a. Verbal or emotional abuse of the kasambahay by the employer or any member of the household; b. Inhuman treatment including physical abuse of the kasambahay by the employer or any member of the household; c. Commission of a crime or offense against the kasambahay by the employer or any member of the household; d. Violation by the employer of the terms and conditions of the employment contract and other standards set forth under the law; e. Any disease prejudicial to the health of the kasambahay, the employer, or member/s of the household; and f. Other causes analogous to the foregoing.

16. Can the employer also terminate the contract at any time? Yes, on the following grounds: a. Misconduct or willful disobedience by the kasambahay of the lawful order of the employer in connection with the former’s work; b. Gross or habitual neglect or inefficiency by the kasambahay in the performance of duties; c. Fraud or willful breach of the trust reposed by the employer on the kasambahay; d. Commission of a crime or offense by the kasambahay against the person of the employer or any immediate member of the employer’s family; e. Violation by the kasambahay of the terms and conditions of the employment contract and other standards set forth under the law; f. Any disease prejudicial to the health of the kasambahay, the employer, or member/s of the household; and g. Other causes analogous to the foregoing.

17. Is a contract necessary before entering into an employment for domestic work?

Yes. The employer and the kasambahay shall enter into a contract of employment written in a language or dialect understood by them. It is not necessary to be notarized, The Punong Barangay or his/her designated officer may attest to the contract and serve as witness to its execution.

Contents of Contract: a. Duties and responsibilities of the kasambahay; b. Period of employment; c. Compensation; d. Authorized deductions; e. Hours of work and proportionate additional payment; f. Rest days and allowable leaves; g. Board, lodging and medical attention; h. Agreements on deployment expenses, if any; i. Loan agreement; j. Termination of employment; and k. Any other lawful condition agreed upon by both parties.

18. When will a kasambahay be covered by SSS, PhilHealth, and Pag-IBIG? After one (1) month of service. Membership under the SSS, PhilHealth, and Pag-IBIG is mandatory and nonnegotiable.

19. Does the law have provisions protecting employers of kasambahay?

 Yes. They include: a. Prohibition against privileged information; b. Employer may require certain pre-employment documents prior to employment.

 20. Is the employer required to register the kasambahay? If yes, where? Yes. The employer is required to register the kasambahay in the Registry of Domestic Workers in the barangay where the employer resides. For this purpose, the DILG, in coordination with the DOLE, shall formulate a registration system. The registration system of the kasambahay free of charge.

21. What are the mandatory benefits of the kasambahay?

a. Monthly minimum wage; b. Daily rest period of 8 (total) hours; c. Weekly rest period of 24 (uninterrupted) hours d. 5 days annual service incentive leave with pay; e. 13th month pay; f. SSS benefit; g. PhilHealth benefit; and h. Pag-IBIG benefit; No. The eight-hour rest period must be observed.

22. Is the kasambahay entitled to a weekly rest period? Yes. He/she is entitled to at least 24 consecutive hours of rest in a week.

23. Can the employer shorten the 24-hour rest day period of the kasambahay? No. However, the kasambahay and the employer may agree to shorten the rest day, provided the employer pays for the hours worked during the shortened rest day. The employer and the kasambahay determine the schedule of the weekly rest period. The employer shall respect the preferred weekly rest day of the kasambahay on religious grounds.

24. What other agreements may the employer and the kasambahay enter into relative to the kasambahay’s weekly rest day and SIL? a. Offsetting a day of absence with a particular rest day; b. Waiving a particular rest day in return for an equivalent daily rate of pay; c. Accumulating rest days not exceeding five (5) days; d. Adding the accumulated rest days (maximum of 5 days) to the five-day SIL; and e. Waiving a particular SIL in return for an equivalent daily rate of pay.

25. What are the other rights and privileges of the kasambahay?

a. Freedom from employer’s interference in wage disposal; b. Standard of treatment; c. Board, lodging, and medical attendance; d. Right to privacy; e. Access to outside communication; f. Access to education and training; g. Right to be provided a copy of the employment contract; h. Right to Certificate of Employment; i. Right to form, join, or assist labor organization; j. Right to terminate employment based on just cause; and k. Right to exercise religious beliefs and cultural practices. He/she is entitled to a total daily rest period of at least 8 hours.

26. What are the basic necessities of the kasambahay?

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

b. Humane sleeping condition; and

c. Appropriate rest and basic medical assistance.

27. What is the extent of the basic medical assistance which the employer should provide to his/her kasambahay? First-aid medicines (e.g. paracetamol, mefenamic acid, antiseptic, etc.) in case of illnesses and injuries sustained during service. SSS, ECC and PhilHealth have programs that can address the medical expenses of the kasambahay.

28. How much is the monthly minimum wage of a kasambahay?

For those employed in:

1. National Capital Region - P2,500.00

2. Cities and 1st class municipalities - P2,000.

3. Other municipalities - P1,500.00

29. In what form and when will the wage of a kasambahay be paid? In cash, at least once a month. Can the employer pay the kasambahay in any form other than cash? No. Payment of wages by means of promissory note, voucher, coupon, token, ticket, chit, or anything other than the cash wage is prohibited.

30. Is the employer obliged to issue pay slip upon payment of the salary of the kasambahay? Yes. The employer shall at all times provide the kasambahay with a copy of the pay slip every pay day containing the amount paid and all deductions made, if any.

33. How long should the employer keep copies of the pay slips? Three (3) years from issuance.