kasambahay review paper

7/27/2019 Kasambahay Review Paper

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LSSL 000

Tapalla, Gian Carlo C.2013- 0148

KASAMBAHAY LAW: IS IT REASONABLE?

1Sometime in May 2012, the Philippines was shocked by a news story about Bonita

Baran, a domestic helper hired by spouses Analiza and Reymond Marzan, and the former being

a subject of abuses by the latter to the extent of burning the latters face with a flat iron. 2The

Legislative body, thinking that the Labor Code does not totally protect the domestic helper in all

aspects, submitted House Bill no. 1140, and later signed by president Benigno S. Aquino III as

Republic Act No. 10361 on 18 January 2013, 3and has become enforceable on 04 June 2013

after the publication of its Implementing Rules and Regulations (IRR) on 19 May 2013 in The

Philippine Star and the Manila Times.

The law is believed as 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. The

Kasambahay law clearly states its intention on Section 2:

4(a) The State strongly affirms labor as a primary social force and is committed to respect,

promote, protect and realize the fundamental principles and rights at work including, but not

limited to, abolition of child labor, elimination of all forms of forced labor, discrimination in

employment and occupation, and trafficking in persons, especially women and children;

(b) The State adheres to internationally accepted working conditions for workers in general, and

establishes labor standards for domestic workers in particular, towards decent employment and

income, enhanced coverage of social protection, respect for human rights and strengthened

social dialogue;

(c) The State recognizes the need to protect the rights of domestic workers against abuse,

harassment, violence, economic exploitation and performance of work that is hazardous to their

physical and mental health; and


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(d) The State, in protecting domestic workers and recognizing their special needs to ensure safe

and healthful working conditions, promotes gender-sensitive measures in the formulation and

implementation of policies and programs affecting the local domestic work.

Reviewing the entire law, it has established several distinctions and some issues thatmight arise if the law is now applied.

5First subject of scrutiny is the coverage of the law. RA 10361 stated that it covers all

Domestic Workers employed and working within the country. Domestic Worker or

Kasambahay Domestic workeror Kasambahay refers to any person engaged in domestic

work within an employment relationship such as, but not limited to, the following: general house

help, nursemaid or yaya, cook, gardener, or laundry person, but shall exclude any person who

performs domestic work only occasionally or sporadically and not on an occupational basis.

Also, this means the list excludes service providers, family drivers, children under foster and

family arrangement; and as aforementioned, any other person who performs work occasionally

or sporadically and not on an occupational and regular basis.

In reality and based on observation, the common setup for a kasambahay is usually he

or she is a relative or somehow related to the employer. For example a daughter of the

employers cousin who lives in far flung provinces, is usually a preference for a kasambahay.

Someone who is around the age of 12 14 years is very common as house help. The

enumeration has made the list exclusive and affords no protection from children who are willing

to work as kasambahay at an early age; neither will they be entitled the same benefits as to

those mentioned in Article III Section 16. In the face of poverty, some Filipinos who believe they

can never enter a formal education will be forced by their parents or relatives to work as

kasambahay. The law could have considered aiding those who are willing to work at an early

age by decreasing a year from the minimum age requirement.

The law also does not include a maximum age for the kasambahay. Efficiency of a

kasambahay is also dependent on the age. A younger kasambahay may be quicker with

household chores compared to a kasambahay who is in the age of 50s. Thus, considering the

said law does not provide, anyone can apply to be a kasambahay as long as he or she is not

below 15 years of age.


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6Second subject, Article II SEC. 6. Board, Lodging and Medical Attendance. The

employer shall provide for the basic necessities of the domestic worker to include at least three

(3) adequate meals a day and humane sleeping arrangements that ensure safety.

The employer shall provide appropriate rest and assistance to the domestic worker incase of illnesses and injuries sustained during service without loss of benefits.

At no instance shall the employer withdraw or hold in abeyance the provision of these

basic necessities as punishment or disciplinary action to the domestic worker. 7Also to add,

SEC. 7. Guarantee of Privacy. Respect for the privacy of the domestic worker shall be

guaranteed at all times and shall extend to all forms of communication and personal effect.

Does this mean that a kasambahayshould now be entitled to his or her own personal

space or a room in the household where he or she is employed? In reality, hiring a kasambahay

does not necessarily mean you have a lot of money, but considering that one should designate

a space or a room for a kasambahaywill now make it a lot expensive.

Since expense has been introduced, the following subjects of scrutiny will involve the

expenses that an employer should bear for the kasambahay. 8The employer shall afford the

domestic worker the opportunity to finish basic education and may allow access to alternative

learning systems and, as far as practicable, higher education or technical and vocational

training. The employer shall adjust the work schedule of the domestic worker to allow such

access to education or training without hampering the services required by the employer. 9The

basic education is not clearly defined by the law and in the absence of which, means that the

new basic education program signed by President Benigno Aquino III , or the so called K TO

12 should now be afforded by the employer. Also take note that the provision has mentioned

that the employer shall adjust the work schedule of the domestic worker to allow the access of

education, defeats the purpose of hiring a kasambahay. Usually, an employer hires a

kasambahayto run around daily chores or for a specific purpose in the household and to have a

kasambahaywhom the employer also had sent to finish the basic education, would mean a time

constraint for the kasambahay. It should also be taken into consideration that to enter education

or schooling means assignments and exams for the kasambahay and these will cause

inefficiency for the said kasambahay. 10Also take note, that it was mentioned that a domestic

worker shall be entitled to an aggregate daily rest period of eight (8) hours per day. How can a


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kasambahay work efficiently work for an employer considering that the kasambahay needs to

attend classes and has to rest for 8 hours?

11Third concern is that the law requires the employer should bear the expenses of the

deployment of the kasambahay.12

Though the law allows the employer to recover costs ofdeployment from a kasambahay whose service has been terminated within 6 months, it does

not afford the employer any protection from a kasambahaywho would just want to be able to

travel to Manila or somewhere else, and made use of his her employment to achieve the same.

13Fourth burden for the employers is the sole payment of contributions for Social

Security System (SSS), the Philippine Health Insurance Corporation (PhilHealth), and the Home

Development Mutual Fund or Pag-IBIG. This was never in the consideration of the employers

and now will be additional pay for the kasambahay since, such contributions for the benefits

constitute an expense for the employer. Considering a kasambahay has a wage of P2, 500

monthly, 14the employer has to pay P270 for SSS contribution, 15P100 for PhilHealth monthly

premium, 16and P200 for PAG-IBIG. The law now imposes a full responsibility for the

government mandated benefits despite the facts the employer and a kasambahay has an

unconventional employer employee relationship. These are all just figures but in reality, this

makes having a kasambahayas a privilege. It is no longer affordable.

Also take note that the law did not mention regarding increase of salary for the

kasambahay. For example a kasambahay is earning P4500 monthly from the employer;

therefore the employer is responsible for the government benefits. Should an employer decides

to increase the kasambahays wage by P 500; can a kasambahay refuse the said increase? 17A

salary of P5, 000 or more means the kasambahaywill now make the contributions for himself or

herself. Hence, the new contributions would be the following P 530 for SSS, P 125, and P 200

for PAG-IBIG, all at the expense now of the kasambahay. This means that a kasambahaywho

was earning P 4500 and free from contributions will now only have a take home wage of P4,

145 if the kasambahaywould pay for his or her contributions.

18Fifth issue is the weekly rest period of a kasambahay. Should the kasambahay totally

leave the employers residence to enjoy the 24 hour rest period? Also, the law requires the

kasambahay will be compensated if he or she opted to not to take a day off. This means

additional expense for the employer. Applying this into the real world, a kasambahay who

decided to stay at home for his or rest day would be burdensome for the employer for the former


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will be consuming water, food to be exact 3 meals, and electricity for the day off. The day off

will make the kasambahaya liability for a day and a liability for four (4) times in a month, as the

case maybe.

Also take note, that a kasambahay who has worked for at least one year are nowentitled for 5 days of leave in a year. The said leaves are not convertible to cash but come to

think of it, if a kasambahaywishes to stay in the household for the his or her leave, it will cost

more on the part of the employer.

19Sixth issue is the 13th month pay. Again, as stated earlier it would be expensive on the

part of the employer20and that the law requires it to be paid not later than December 24.

21Seventh concern is the Araw ng Kasambahay set on every 18 th day of January. Will

this relieve all kasambahaysfrom the days work?

22Eighth is the Access for Outside Communication, the said law grants the access during

free times. In the real world, or in an ordinary setup, is there a specific time for a free time?

Basically with the said issues, as mentioned earlier, to have a kasambahayis now like a

luxury and to keep someone working for you not following the standards of the said law will

make one liable. However, 23the law believes that those who have less in life should have more

in law, and therefore protection for the kasambahay is vital.

To weigh things out, the kasambahay law should also be praised for its protection for

both the kasambahay and the employer. First, an employer may now require the following

Medical certificate or a health certificate issued by a local government health officer;(b)

Barangay and police clearance;(c) National Bureau of Investigation (NBI) clearance; and (d)

Duly authenticated birth certificate or if not available, any other document showing the age of

the domestic worker such as voters identification card, baptismal record or passport. 24The

doctrine of management prerogative acts in spirit with this law since it allows to the employer to

carefully select the kasambahays to be hired. The employer can now choose kasambahays who

are free from any legal impediments or those kasambahays that are skilled, most especially to

those kasambahayhired through a Private Employment Agencies, whereas the25kasambahay

must have taken the test from TESDA, to ensure productivity and quality of work.


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26The kasambahay law now requires the employers to furnish a clear contract for the

kasambahay. Such contract shall contain (a) Duties and responsibilities of the domestic

worker;(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. This

serves as protection for the kasambahay, in case the employer decides to terminate the service,

the former can clearly establish to the courts the existence of the employer employee

relationship. Also the contract now contains a period so there is a guarantee of compensation

for the aggrieved kasambahay.Also [a] 2715-day salary is awarded in the form of an indemnity

due to unjust dismissal, i.e., dismissal without just cause and notice and before the lapse of the

contract term. The amount is in addition to and not a substitute for the house helpers salary for

the unexpired portion of the contract. The Salary for the unexpired portion of the contract, as a

settled rule, is awarded as a result of the violation of her security of tenure under the contract

term. 28Only for just reasons mentioned in Section 33 and 34 will be the only valid reasons to

terminate the employment of either one of them.

29Also, a kasambahaycan now request for a copy of Certificate of Employment - another

way of proving the employer employee relationship, since 30the [said] employeremployee

relationship is the jurisdictional foundation for a compensation claim.

The 31kasambahay law also protects both the interests of the employer and the

kasambahayby limiting the allowable amount loan not exceeding the total of the kasambahays

salary for six months. 32This protects the employee from debt bondage likewise; it protects the

employer to be stuck with a kasambahaythat cannot be terminated by reason of the excessive

debts of the latter from the former.

33The additional government mandated benefits if placed on a better view is beneficial to

kasambahay for he or she may now be eligible to apply for loans subject to requisites of SSS,

PHILHEALTH, or PAG- IBIG. The law also protects the employer from the said benefits since,

any loans applied by the kasambahay, the payment of which will be shouldered solely by the

latter.

34The kasambahay law strengthens and builds trust between the employer and

kasambahay by regulating Private Employment Agencies. It has been existing for the longest


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time the mediation made by PEA between kasambahays and employers. Through the

Kasambahay Act, PEAs should obtain licenses from and register to DOLE to ensure the

protection of the kasambahay and employers. The license contains the Authority to Recruit

and Authority to Establish a Branch prior to any recruitment and deployment activities. The

PEAs are also required to register with the barangay where they recruit. 35For example a very

well off employer can just go to any PEA of his or her choice, and the latter will make all the

necessary arrangements as well as the selection process of the kasambahay to be employed.

36In case the kasambahay, in less than a month,cannot fulfil the minimum requirements of the

job, as specified in the contract, or the kasambahay is found to be suffering from incurable

contagious disease, or mental illness, or the kasambahay, without justified reason, voluntarily

resigns or commits theft or other acts prejudicing the employer, the beauty of the law comes in

because it entitles the employer the right to have a replacement of the kasambahay from the

PEA, and if the latter cannot provide after 1 month, the former is now entitled to a refund of 75%

of the fees paid to the PEA.

37Another good point of the law is that it gives the kasambahaythe right to exercise their

own religious beliefs and cultural practices. The law requires that the employer should respect

the religion in setting days off for the kasambahay. A kasambahay and the employer may

decide on any days of the week as well as long as it is a 24 hour day off.

38The kasambahay is now also protected in cases wherein he or she gets sick during

work, the employer shall provide first- aid medicines allow him or her to rest, without any loss of

benefits. This is in line with cases on domestic helpers who are abused by their employers and

to force them to work despite illness and sick condition.

The kasambahaylaw, based on the history of wage controversies with the employer and

the kasambahay, strengthened the protection of wages for the kasambahay. The law now

requires the employers to furnish payslip for the kasambahays. 39The payslip shall contain the

amount paid in cash every pay day, and indicating all deductions made, if any. This is for future

reference of the kasambahay if ever he or she is required by another employer to submit proof

of employment and could also serve as a basis of salary determination. Likewise, it builds

credibility on the part of the kasambahay, knowing the fact that the said kasambahayhas been

complying with the standards and could build confidence to the hiring employer. Also, the law

prohibits the direct or indirect withholding of a kasambahays salary. With long line of cases of


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labor injustices when it comes to pay, and the usual setup of the domestic helper with the

employer, the legislative has learned to protect the kasambahaywith this law. Also, just like an

ordinary teleserye where kasambahays do not understand much of what they are receiving from

their employers, the payslip will serve as their guide if there are any deductions made. 40The law

now requires any deductions made on the salary shall be made known to the kasambahay and

must be consented and made in writing.

41In any event that a kasambahay shall be subject to any forms of abuse by the

employer, the Kasambahay Law is great in providing provisions to rescue any abused

kasambahay. The Law also orders Local Social and Welfare Development Offices (LSWDO) to

provide temporary shelter, Counselling, Free Legal Services, Medical or Psychological Services,

Livelihood and Skills Training, and other services.

The effect of this law is yet to unfold and numerous complaints regarding the said

standards are getting louder and louder over the social media. For some, the said law is absurd

while the others say that it is about time for the protection of our beloved kasambahays. Others

make a joke out of it and consider being a kasambahayas their profession. Indeed, the said law

has established strong points and created a clear employer employee relationship. As

mentioned in the Constitution,42 the State shall afford full protection to labor, local, and

overseas, organized and unorganized, and promote full employment and equality of

employment opportunities for all. It is undeniable that the state continues to promote social

justice and equality in labor.

As for my overall view, I am in favour of the kasambahay law for it gives protection to the

kasambahays and it gives them the benefits of their hardwork. I personally believe that

somehow will decrease domestic violence in the Philippines, since to hire a kasambahay would

now be expensive. Also, complying with the standards needs more effort than before. However,

the law is not perfect and violations will still arise despite the existence of the said law, but this

law is a guarantee that our state is still 43enforcing laws that promotes equalization of the social

and economic forces.

Footnotes:

1http://newsinfo.inquirer.net/270162/couple-who-abused-maid-end-up-behind-bars

22http://www.congress.gov.ph/download/basic_15/HB01140.pdf
http://newsinfo.inquirer.net/270162/couple-who-abused-maid-end-up-behind-barshttp://newsinfo.inquirer.net/270162/couple-who-abused-maid-end-up-behind-bars


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3http://www.dole.gov.ph/files/Q%20&%20A%20on%20Batas%20Kasambahay%20(RA%20No%2010361).pdf

4http:// http://www.gov.ph/2013/01/18/republic-act-no-10361/

5http:// http://www.gov.ph/2013/01/18/republic-act-no-10361/

6[REPUBLIC ACT NO. 10361] AN ACT INSTITUTING POLICIES FOR THE PROTECTIONAND WELFARE OF DOMESTIC

WORK7

[REPUBLIC ACT NO. 10361] AN ACT INSTITUTING POLICIES FOR THE PROTECTIONAND WELFARE OF DOMESTICWORK8

SEC. 9. Right to Education and Training.[REPUBLIC ACT NO. 10361] AN ACT INSTITUTING POLICIES FOR THE

PROTECTIONAND WELFARE OF DOMESTIC WORK9

http://www.gov.ph/k-12/10

SEC. 20. Daily Rest Period. [REPUBLIC ACT NO. 10361] AN ACT INSTITUTING POLICIES FOR THE PROTECTIONAND

WELFARE OF DOMESTIC WORK11

(b) Deployment expenses refer to expenses that are directly used for the transfer of the domestic worker from

place of origin to the place of work covering the cost of transportation. Advances or loans by the domestic worker

are not included in the definition of deployment expenses.12

SEC. 32. Termination of Service. Neither the domestic worker nor the employer may terminate the contract

before the expiration of the term except for grounds provided for in Sections 33 and 34 of this Act. If the domestic

worker is unjustly dismissed, the domestic worker shall be paid the compensation already earned plus the

equivalent of fifteen (15) days work by way of indemnity. If the domestic worker leaves without justifiable reason,

any unpaid salary due not exceeding the equivalent fifteen (15) days work shall be forfeited. In addition, the

employer may recover from the domestic worker costs incurred related to the deployment expenses, if

any: Provided, that the service has been terminated within six (6) months from the domestic workers

employment.13

SEC. 30. Social and Other Benefits. A domestic worker who has rendered at least one (1) month of service shall

be covered by the Social Security System (SSS), the Philippine Health Insurance Corporation (PhilHealth), and the

Home Development Mutual Fund or Pag-IBIG, and shall be entitled to all the benefits in accordance with the

pertinent provisions provided by law. Premium payments or contributions shall be shouldered by the employer.

However, if the domestic worker is receiving a wage of Five thousand pesos (P5,000.00) and above per month, the

domestic worker shall pay the proportionate share in the premium payments or contributions, as provided by law.14

http://www.pagibigfund.gov.ph/voluntarybenpromembership.aspx15

http://www.philhealth.gov.ph/partners/employers/contri_tbl.html16http://www.pagibigfund.gov.ph/voluntarybenpromembership.aspx

17 SEC. 30. Social and Other Benefits. xxxHowever, if the domestic worker is receiving a wage of Five thousand

pesos (P5,000.00) and above per month, the domestic worker shall pay the proportionate share in the premium

payments or contributions, as provided by law.18

SEC. 21. Weekly Rest Period. The domestic worker shall be entitled to at least twenty-four (24) consecutive

hours of rest in a week. The employer and the domestic worker shall agree in writing on the schedule of the

weekly rest day of the domestic worker: Provided, That the employer shall respect the preference of the domestic

worker as to the weekly rest day when such preference is based on religious grounds. Nothing in this provision

shall deprive the domestic worker and the employer from agreeing to the following:(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; or (d) Other similar arrangements.19

SEC 25. Payment of Wages.xxx The domestic worker is entitled to a thirteenth month pay as provided for by

law.20

http://www.dole.gov.ph/files/Q%20&%20A%20on%20Batas%20Kasambahay%20(RA%20No%2010361).pdf21

http://www.ffcccii.org/wp-content/uploads/2013/06/IRR-of-RA-10361.pdf22

IRR Republic Act No. 10361 Rule IV. Section 1423

Eastern Shipping Lines V. POEA, GR No. L 2779, October 18, 195024

Rural Bank of Cantilla v Julve, GR NO. 169759, February 27, 200725

SEC. 18. Skills Training, Assessment and Certification. To ensure productivity and assure quality services, the

DOLE, through the Technical Education and Skills Development Authority (TESDA), shall facilitate access of


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domestic workers to efficient training, assessment and certification based on a duly promulgated training

regulation.26

SEC. 11. Employment Contract. An employment contract shall be executed by and between the domestic

worker and the employer before the commencement of the service in a language or dialect understood by both

the domestic worker and the employer.27

PHIL. INTEGRATED LABOR ASSISTANCE CORPORATION vs. NATIONAL LABOR RELATIONS COMMISSION ANDLEONORA L. DAYAG G.R. No. 123354 November 19, 199628

SEC. 33. Termination Initiated by the Domestic Worker. The domestic worker may terminate the employment

relationship at any time before the expiration of the contract for any of the following causes:(a) Verbal or

emotional abuse of the domestic worker by the employer or any member of the household;(b) Inhuman treatment

including physical abuse of the domestic worker by the employer or any member of the household;(c) Commission

of a crime or offense against the domestic worker 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 this

law;(e) Any disease prejudicial to the health of the domestic worker, the employer, or member/s of the household;

and(f) Other causes analogous to the foregoing.

SEC. 34. Termination Initiated by the Employer. An employer may terminate the services of the domestic worker

at any time before the expiration of the contract, for any of the following causes:(a) Misconduct or willful

disobedience by the domestic worker of the lawful order of the employer in connection with the formers work;(b)

Gross or habitual neglect or inefficiency by the domestic worker in the performance of duties;(c) Fraud or willful

breach of the trust reposed by the employer on the domestic worker;(d) Commission of a crime or offense by the

domestic worker against the person of the employer or any immediate member of the employers family;(e)

Violation by the domestic worker of the terms and conditions of the employment contract and other standards set

forth under this law;(f) Any disease prejudicial to the health of the domestic worker, the employer, or member/s of

the household; and(g) Other causes analogous to the foregoing.29

SEC. 35. Employment Certification. Upon the severance of the employment relationship, the employer shall

issue the domestic worker within five (5) days from request a certificate of employment indicating the nature,

duration of the service and work performance.30

Asia Steel Corporation V. WCC, L 7636, July 27, 195531

IRR Republic Act No. 10361, Rule IV , Section 10. Loan Assistance.32

(a) Debt bondage refers to the rendering of service by the domestic worker as security or payment for a debt

where the length and nature of service is not clearly defined or when the value of the service is not reasonablyapplied in the payment of the debt.33

IRR Republic Act No. 10361, Rule IV , Section 9. Social Security Benefits34

IRR Republic Act No. 10361, Rule III, Section 1. Regulation of Private Employment Agencies35

[REPUBLIC ACT NO. 10361] AN ACT INSTITUTING POLICIES FOR THE PROTECTION AND WELFARE OF DOMESTIC

WORK, ART VI, Sec 36. Paragraph 4, PEAs shall have the following responsibilities:(a) Ensure that domestic workers

are not charged or levied any recruitment or placement fees;(b) Ensure that the employment agreement between

the domestic worker and the employer stipulates the terms and conditions of employment and all the benefits

prescribed by this Act;(c) Provide a pre-employment orientation briefing to the domestic worker and the employer

about their rights and responsibilities in accordance with this Act;(d) Keep copies of employment contracts and

agreements pertaining to recruited domestic workers which shall be made available during inspections or

whenever required by the DOLE or local government officials;(e) Assist domestic workers with respect to

complaints or grievances against their employers; and(f) Cooperate with government agencies in rescue

operations involving abused or exploited domestic workers.36

IRR Republic Act No. 10361, Rule III, Rule III, Section 4. Replacement of Kasambahays by PEA.37

IRR Republic Act No. 10361 Rule IV. Section 6. Weekly Rest Period38

IRR Republic Act No. 10361 Rule IV. Section 13, Paragraph C39

IRR Republic Act No. 10361 Rule V. Section 240

SEC 25. Payment of Wages. Payment of wages shall be made on time directly to the domestic worker to whom

they are due in cash at least once a month. The employer, unless allowed by the domestic worker through a

written consent, shall make no deductions from the wages other than that which is mandated by law.


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41IRR Republic Act No. 10361 Rule X. Section 6

42Article XIII, Sec. 3 1987 Constitution

43Calalang V. Williams GR. No, 47800, December 2, 1940

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