AN EMPLOYER’s CRAMMING GUIDE TO COMPLY WITH BATAS KASAMBAHAY

The provisions of Batas Kasambahay (Republic Act No. 10361, also known as the Domestic Workers Act of 2012, “Law”) and itsimplementing rules (“IRR”) finally became effective and enforceable as of June 4, 2013. Have you complied with all the standards, registrations, and documentations required by the Law? If not, it is not yet too late.

In today’s fast-paced information-ready world, hassle is an understatement in understanding (much less reading) the Law, IRR, or even the Q&A’s prepared by the Department of Labor and Employment. But I guarantee you that it will double the hassle if your househelp suddenly drags you to the Barangay Chairman for violating her Kasambahay rights, not to mention the strong likelihood to be accused as an “abusadong Amo”, and the injustice you may have unintentionally done to her for not acquainting yourself (being an employer) with these new legal issuances. By the way, if Yaya’s claim be later proven true, it may cost you a fine of P40,000 max, with risks of being sued for damages and/or possible imprisonment term.There are seven topics you need to familiarize yourself with, and eventually to practice in real life. But if you are so much in a hurry and less patient to spend more attention to this matter, be sure to confirm if the Law applies to you, and if it does, read and perform theImmediate Must-Do’s. You have then substantially complied with the Law (at least for now, temporarily).

I. Know if the Law applies to you.

Ask yourself, true or false —

1. You engaged a “Somebody” to work at your house (whether as stay-in or live-out).
2. Somebody works for you, your family, and/or other house-occupants.
3. Somebody is at least 15 years old.
4. Somebody does the work on an occupational basis (in local slang, “career ito at hindi lang basta trip-trip”).
5. The work is for a regular basis; not just a one-time deal.
6. The work is about household chores or tasks for the benefit of person/s living in your house.
7. You have control on what to include in the work, and when and how it should be done.
8. Somebody does the work not as an independent service provider (i.e. tubero for hire, pest control agency).

If all these statements are true in your case, the Law applies to you. You are considered as an employer, and Somebody is your domestic worker or Kasambahay. Obviously, the Law applies to a general househelp, yaya, cook, gardener, and full-time labandera.

Take note, the Law DOES NOT APPLY to:

1. Any person or company you hire to do household or household-related tasks where only the results have been agreed upon (i.e. you do not have control on how that service provider will make the results happen). Case in point, landscaping guy.
2. Manong drivers
3. Children under foster care arrangement
4. One who does work not on an occupational basis (i.e. side-line laundry).

I bet you are covered. Read on and accomplish the Immediate Must-Do’s. NOW.

II. Immediate Must-Do’s

For the critics, some provisions of the Law appear inspirational rather than practical. However, listed below are the things you as an employer have to do the soonest. No arguing allowed. The government regulators can readily confirm your compliance or non-compliance. Just. Follow.

1. Make sure that Yaya is not less than 15 years old.     Aside from being categorically prohibited by the Law, employing a child less than 15 years old as domestic worker may be tantamount to child abuse. The law punishing this (and the vigilant child advocates) will be more than happy to sue you on the child’s behalf and make sure you get imprisoned. Although children below eighteen but more than 15 may render domestic work, they should not be allowed to do hazardous work, nor work for more than 8 hours a day, within 10pm to 6am the next day, and in no case beyond 40 hours a week. Their access to education and training should not be denied.

1. Draft and sign a Kasambahay Employment Contract.     Remember what most of us did when we were hired for our first job… signing a piece of paper with the employer-company’s very friendly human resource representative, and not bothering to read all that were included in the contract because all we wanted then was to encash your signing bonus (or perhaps to brag to our parents and friends that we no longer needed any baon  or allowance because we were already employed!)? Then after a week on the job, we realized that we should have bargained harder for lesser scope of work, vacation (or at least emergency) leave credits, higher pay, and sane bosses.No such scenario for Yaya because the Law itself provided the basic things that should be included in her employment contract with you:
   1. Yaya’s duties and responsibilities
   2. period of employment (i.e. when to start and end)
   3. amount of salary, and when to get it
   4. authorized deductions
   5. hours of work and proportionate additional payment (I bet you did not have this.)
   6. rest days and allowable leaves
   7. arrangement as to reimbursement of deployment expenses (You can state that Yaya will reimburse you for these expenses if she will not be able to stay with you for 6 months.)
   8. arrangement as to how and when Yaya is to pay you her loan, if any
   9. other lawful conditions so long as you and Yaya agree (examples: to wear uniform, not to allow persons to enter your house without your permission, that her belongings will be checked when she leaves you for good, etc.)

    

   Do you need a lawyer to draft an employment contract? That is ideal, but not necessary. The IRR provides a sample Kasambahay Employment Contract where you just need to fill in the blanks with appropriate information. This sample employment contract is in Filipino, but make sure Yaya understands Filipino quite well; because if not the Law requires you to draft one in a language or dialect which both you and Yaya understand. Howz about Jeje speakz poh? As a friendly advice, as proof of your compliance to this language requirement, I suggest that you have this contract notarized or at least attested by your Barangay Captain. By the way, if Yaya is a child 15 years old or older, her parent/guardian should sign in the contract as well.

1. Register Yaya in your barangay’s Registry of Domestic Workers.     You are required to register Yaya in the Registry of Domestic Workers in the barangay where you reside, and this should be free of charge. Hello barangay hall, here we come!

1. Register Yaya and yourself (as employer) with SSS.     Providing SSS benefits to Yaya could have been done since 1993. But if it is your first time to provide these benefits to Yaya, follow these steps:
   1. Fill up your employer registration (SSS Form R-1) and employment report (SSS Form R-1a).
   2. Yaya to fill up her personal record (SSS Form E-1).
   3. Submit to the SSS branch nearest to your house the following documents:
   4. Obtain your SSS employer number (i.e. ER number), and Yaya’s SSS member number.
      1. Yaya’s duly accomplished personal record
      2. One original/certified true copy of Yaya’s birth or baptismal certificate
      3. One photocopy of Yaya’s birth or baptismal certificate
         Note: other acceptable documents are two of Yaya’s government-issued IDs bearing her picture and birth date (i.e. postal ID, voter’s ID, etc.)
      4. Your duly accomplished employer registration and employment report forms
   5. Pay the necessary contributions.

   SSS made available this long but very comprehensive video guide for SSS contributions in relation to the Kasambahay Law:

    

1. Register yourself (as employer) and Yaya with Pag-IBIG.     For the Love of Life has been very insightful in discussing the Pag-Ibig registration processes, which I now summarize:
   1. Register yourself as a household employer by going tohttp://www.pagibigfund.gov.ph and clicking on E-Services. Fill up all the data required, and make sure to put “HH” before your name to indicate that you are a household employer (i.e. not subject to any penalty when paying Pag-Ibig contributions).
   2. After registering, print your Employers’ Data Form and take note of the tracking number.
   3. After three (3) days, obtain your Pag-Ibig Fund Employer Identification Number by visiting the same website, viewing your registration information, and typing-in the tracking number. This number is needed in your transactions and payments for Yaya.
   4. Register Yaya by going to the website, and filling up the data required for employees.
   5. After registering, print Yaya’s Member Data Form and take note of the tracking number.
   6. Obtain Yaya’s Pag-Ibig Fund Identification Number by visiting the same website, viewing her registration information, and typing-in the tracking number.
   7. After printing out all the forms, submit them to the nearest Pag-Ibig branch.
   8. There, you will be given the Member’s Contribution Remittance Form. Fill it up, and pay the corresponding contributions for Yaya.

1. Register yourself (as employer) and Yaya with Philhealth.      The Nanay Notebook listed the steps which I now paraphrase:
   1. Fill up your employer data record (ER1) and report of employee members (ER2). Apparently, if Yaya’s starting date is earlier than her Philhealth registration date, you and Yaya will be required to pay the arrears with penalties.
   2. Yaya to fill up the Philhealth membership registration form for enrollment, or to update member details if her former employer provided her with this benefit.
   3. Submit these documents to the Philhealth branch nearest your house.
   4. Pay Yaya’s Philhealth contributions. Total of P1,800 per year if Yaya’s salary is less than P5,000 per month.

1. Issue pay slip.     Provide Yaya a pay slip when you hand her her salary. Use this sample Kasambahay pay slip. Write down the amount paid and all deductions made, if any. Print two copies, and make sure that Yaya signs in your copy to acknowledge receipt.

The Immediate To-Do’s are very, very simple indeed. But wait, although not as urgent, you are obliged to do and know more.

III. Yaya’s rights (i.e. your obligations)

According to the Law, Yaya can demand from you the following things:

(Basic necessities)

1. at least 3 adequate meals per day (her religious beliefs and cultural practices considered; no pork for Muslims)
2. humane sleeping condition
3. appropriate rest and basic medical assistance

(Mandatory benefits)

1. monthly minimum wage (i.e. P2,500 in Metro Manila as of press time)
2. daily rest period of 8 (total) hours
3. weekly rest period of 24 uninterrupted hours
4. 5 days annual service incentive leave with pay
5. 13th month pay
6. SSS benefit
7. Philhealth benefit
8. Pag-IBIG benefit

(Other rights and privileges)

1. freedom from your pagiging pakialamera on how she spends her salary (i.e. P2,000 for hair rebond, P500 for cellfone load)
2. abuse-, harassment-, violence-free treatment
3. board, lodging, and medical attendance
4. right to privacy
5. access to outside communication
6. access to education and training
7. to be provided a copy of her Kasambahay contract
8. to be issued Certificate of Employment
9. to form, join, or assist labor organization
10. to terminate employment on her own (See Legal Basis where Yaya can call it quits)
11. to exercise religious beliefs and cultural practices

What say you? Now, who’s your Yaya?!!! ☺

IV. What you should NEVER DO

Do not even dare to do these acts — if you do and you get sued, your case will be a welcome addition to the Kasambahay jurisprudence for the appreciation of the legal community:

1. employ a child below 15 years old
2. withhold (i.e. not give) Yaya’s salary to her
3. meddle on how Yaya spends her salary
4. require Yaya to give you deposits for future loss or damages
5. ask Yaya to work for you as security or payment of a debt — where period and nature of work is not clearly defined, or the value of her services is not reasonably applied to pay the debt (i.e. debt bondage)
6. ask Yaya to do temporary domestic works for your neighbor/s, and charge fees from your neighbor/s for Yaya’s services

If you were convicted by a court to have done any of the foregoing, you will be fined P10,000 (1st offense), P20,000 (2nd offense), P30,000 (3rd offense), and P40,000 (4th offense). In addition, Yaya may still file a separate criminal and/or civil case(s) against you.

V. Legal basis to Fire Yaya

When Yaya asks for your permission to return home to her parents in the province, and you say yes, then amo-yaya relationship is over. This is passé. It is now more common that either the employer or kasambahay wants out.

According to the Law, you may terminate the Kasambahay employment contract at any time on the following grounds:

VI. Legal basis where Yaya can call it quits

Yaya, too, can be fed up with your existence. The Law allows Yaya to terminate the Kasambahay employment contract at any time on the following grounds:

VII. Fight On: Yaya versus Amo

If you subject Yaya to physical, sexual, psychological, or economic abuse, the Law requires the social welfare officers in coordination with barangay officials and the police to immediately rescue her. Yaya may report your abuse to any barangay official where the abuse happened, social worker, police, or officer of the Public Employment Service Office. If yaya is too scared for her life to report your abusive acts, her parents, guardians, up-to-fourth-degree relatives, social workers, police officers, barangay officials, Yaya’s lawyer or doctor, or at least 2 concerned citizens can do the reporting on her behalf.

The abuse inflicted upon Yaya may result to criminal, civil, or labor cases. Criminal and/or civil cases are to be filed with the ordinary courts (i.e. municipal trial court, regional trial court), and if Yaya wins in these cases, she may claim damages and you may be imprisoned.

If you did not pay or underpaid Yaya her salary, or for any other labor-related concerns, Yaya can go to a Kasambahay Desk Officer in the barangay hall or to the nearest DOLE office. The relevant officer will conduct a mandatory conciliation for a possible amicable settlement.

If you unjustly dismissed Yaya, you will be required to pay her earned wage, and to pay her as indemnity benefit an additional 15-day worth of her salary. However, if Yaya was found to have left you without justifiable reason, Yaya’s 15-day worth of her salary may be forfeited, and deployment expenses be reimbursed if the relevant Kasambahay employment contract was terminated within 6 months from employment.

It may appear that the Kasambahay Law is anti-employer. Personally, the additional administrative leg work is, but the benefits and standards seem to be appropriate to reward Yaya for her time, service, patience, dedication, love, and malasakit which (if she just has the choice and means) should have been enjoyed by her personally or by her parents, family, children, and loved ones. I hope your tasks become clearer and less daunting. May you cram effectively!

Source: http://ggolaw.wordpress.com/2013/06/23/an-employers-cramming-guide-to-comply-with-batas-kasambahay/