Title I WORKING CONDITIONS FOR SPECIAL GROUPS OF EMPLOYEES Chapter I EMPLOYMENT OF WOMEN ‘Art, 130 [132]. Factlities for Women. — The Secretary of Labor shall establish standards that will insure the safety and health of women employees. In appropriate cases, he shall, by regulations, require any employee to: (@) Provide seats proper for women and permit them to use such seats when they are free from work and during working hours, provided they can perform their duties in this position without detriment to their efficien (b) To establish separate toilet rooms and lavatories for men and women and provide at least a dressing room for women} (c) Toestablish a nursery ina workplace for the benefit of the women employees therein; and (@ To determine appropriate minimum age and other standards for retirement or termination in special ‘occupations such as those of flight attendants and the like. (The subsequent articles in Book Il, Title III, Chapter I to Chapter IV of P.D. 442 are renumbered accordingly pursuant to R.A, 10151, signed into law on 21 June 2011). NOTES AND COMMENTS 4. Legal basis to protect women-employees ‘The Constitution, cognizant of the disparity in rights between men and women in almost all phases of social and political life, 204 Ast, 130 WORKING CONDITIONS FOR SPECIAL 305 GROUPS OF EMPLOYEES Employment of Women provides a gamut of protective provisions. To cite a few of the primordial ones, Sec. 14, Art. II (The State recognizes the role of women. in nation-building, and shall ensure the fundamental ‘equality before the law of women and men [Sec. 14, Art, I}) on the Declaration of Principles and State Policies, expressly recognizes the role of women in nation-building and commands the State to ensure, at all times, the fundamental oquality before the law of women and men (PT& Co. v. NERC, G.R. No. 118978, 23 May 1997). Section 14, Art. XILL (The State shall protect working women. by providing safe and healthful working conditions, taking into account their maternal functions, and such facilities and opportunities that will enhance their welfare and onable them to realize their full potential in the service of the nation [See. 14, Art. XIII) mandates ‘hat the State shall protect working women through provisions for opportunities that would enable them to reach their full potential (PT&T Co. v. NLRO, G.R. No. 118978, 23 May 1997). ‘The United Nations Convention on the Elimination of All Forme of Diserimination Against Wamen (CEDAW) adopted in 1979 by the UN General Assembly, is regarded as the most comprehensive international treaty governing the rights of women. The Philippines became a signatory thereto a year after its adoption by the UN and in 1981, the country ratified it (Ibid). Jn accord with the above international commitment, curative labor and social legislations were enacted. Principal among these laws are R.A. 6727 (Approved, 9 June 1989) which explicitly prohibits discrimination against women with respect to terms and ‘conditions of employment, promotion, and training opportunities; B.A. 6955 (Approved, 13 -June 1990) which bans the mail-order-bride practice for a fee and the export of female labor to countries that cannot guarantee protection to the rights of women workers; RA. 7192 (Approved, 12 February 1992) also known as the Women in Development and Nation Building Act, which affords women equal opportunities with men to act and to enter into contracts, and for appointment, admission, training, graduation, and commissioning in all military or similar schools of the Armed Forces of the Philippines ‘and the Philippine National Police; R.A. 7322 (Approved, 30 March 1992) increasing the maternity benefits granted to women in the private sector; R.A. 7877 (Approved, 14 February 1995) which outlaws and punishes sexual harassment in the workplace and in the education and training environment; and R.A. 8042, (Approved,986 -—-«LABORSTANDARDS AND SOCIAL LEGISLATION Arts. 131-152 ‘With Notoe and Commonts 7 dune 1995) or the Migrant Workers and Overseas Filipinos Act of 1995, which prescribes as a matter of policy, inter alia, the deployment of migrant workers, with emphasis on women, only in countries where their rights are secure. Likewise, it would not be ‘amiss to point out that in tho Family Code (E/fective 3 August 1988) ‘women’s rights in the field of civil law have been greatly enhanced and expanded (Tbid.). 2. Facilities for women-employees Employers are roquired to provide the following facilities for the women-employees: (@) Seats that could be used by the women-employees during break time or during working hours, provided the same will not affect efficiency; ©) Separate toilet rooms and lavatories for women- ‘employees; (©) Separate dressing room; und @ Nursery ina workplace. 3. The torm “nursery” construed The term “nursery” refers to an area in a workplace where working mother feed their infants. Itis a safe place where the young children are left during working hours. What is contemplated under the law is natural feeding not artificial or bottle-feeding, for this can bbe undertaken by others such as house helpers and babysitters not in the workplace but can be done at home. Art. 131. [superseded by the Social Security Act of 1997 (RA. 6262)). Art. 182 [134]. Family Planning Services; Incentives for Family Planning. — (a) Establishments which are required by law to maintain a clinic or infirmary shall provide free family planning services to their employees which shall include but not be limited to the application or use of contraceptive pills and intra-uterine devices. (©) In coordination with other agencies of the Gov- ernment engaged in the promotion of family planning, the Department of Labor shall develop and prescribe incentive Arts. 181-182 WORKING CONDITIONS FOR SPECIAL on (GROUPS OF EMPLOYEES Employment of Women bonus schemes to encourage family planning among female workers in any establishment or enterprise. NOTES AND COMMENTS 1 ‘The provision of the Labor Code on maternity leave benefits is integrated under the Social Security Act of 1997 (R.A. 8282) which provides the following: “See, 14-A. Maternity Leave Benefit. — A female member who has paid at least three (8) monthly contributions in the twelve (12)-month period immediately preceding the semester of her childbirth or misearriage shall be paid a daily maternity benefit equivalent to 100% of her average daily salary credit for sixty (60) days or seventy-eight (78) days in case of caesarian delivery.” However, under the Expanded Maternity Leave Law of 2017 or Senate Bill 1305, all women-workers regardless of civil status or legitimacy of her child, shall be granted 120 days maternity leave with pay and an option to extend it for another thirty (80) days without pay. Single mothers shall be granted a total of 150 days maternity leave with pay; while the fathers shall be granted thirty (80) days of paternity leave ‘The counterpart measure in the House is Maternity Leave Law or House Bill 4118 which grants 100 days of paid leave to women-workers regardless of civil status, miscarriage, abortion and pending administrative cases. It ineludes an option for female employees in the government or private sector to seek an additional thirty ($0)-day leave without pay. It must be stressed, however, that it is the consolidated Senate Bill 1305 and House Bill 4113 which would be forwarded to tho Preeident for his approval bofore it becomes a law. 2, Conditions for entitlement to maternity benefits ‘The following are the conditions for entitlement to maternity bonefite: (@) ‘The covered female-employee should have been employed at the time of delivory, miscarriage or abortion;es“ LABORSTANDARDS AND SOCIAL LEGISLATION Arts. 191-182 ‘With Noves and Comments (®) She must have notified the SSS through her employer; and (©) Her employer must have paid at least three (3) months of maternity contributions within the twelve-month period immediately before the semester of contingeney (DOLE Handbook on Workers’ Monetary Benefits). 3. Pregnant woman regardless of status entitled to maternity leave benofits Every pregnant woman is entitled to maternity leave benefits regardless of her civil status, whether married or unmarried (Ibid.). Being an unmarried woman is not an obetacle for the grant of such benefits provided she is a covered employee. Her plight should be the ‘moving spirit for the law to grant such benefits to the less fortunate. 4. Maternity leave benefits excluded in the computation of 13th- month pay Matemity leave benefits and other benofito provided by the Social Security Act of 1997 (R.A. 8282) are granted to employees in liew of wages. Thus, the same are excluded in computing the ‘employee’s 13th-month pay for the calendar year (Ibid.). 5. Self-employed members not entitled to maternity leave ben- efits; exception Voluntary or self-employed members of the SSS are not entitled to maternity leave benefits because the law requires the corresponding maternity contributions to be paid by the employers. Voluntary or self-employed members have no employers to remit such contributions (Sec. 14-4, R.A, 8282). However under Circular 36-V issued by the SSS dated 24 May 1997, if they have qualifying contributions using the new contribution schedule, they shall be entitled to maternity benefits 6. Free family planning services Employers who habitually employ more than two hundred (200) workers in any locality shall provide free fomily planning service to their employees and their spouses which shall include, but not limited to, the application of use of contraceptives. ‘Subject to the approval of the Secretary of Labor, the Bureau ‘of Women and Minors shall prescribe tho minimum requirements of ‘Arts, 191-182 WORKING CONDITIONS FOR SPECIAL 390 GROUPS OF EMPLOYEES ‘Employment of Women family planning services to be given by employers to their employees (Sec. 11, Rule XII, Rules Implementing the Labor Code). 7. Family planning service delivery To insure the delivery of family planning services to workers, the following requirements shall be complied with: (a) The part-time physician must be physically present, in the clinic for not less than two (2) hours a day for at least five (8) days a week, (©) If the clinic staff is not yet competent or has not undergone the required training and/or the clinie is not yor adequately equipped to provide sterilization services, the client may be referred to other family planning clinies or hospitals. (¢) Clini personnel who may be separated from service should be replaced immediately. (@) Establishments exempted from putting up emergen- ey hospitals or clinics should maintain a family planning clinic in the workplace, unless the establishment has a contraet with ‘a hospital which can adequately provided the minimum clinic requirements (Sec. 4, Rule XI-A, Book IIT, Rules Implementing the Labor Code). 8. Training courses in family planning conducted by DOLE Covered establishments and duly registered unions are obliged to send representatives to the following training courses conducted by the Department of Labor and Employment: (@) Six @-day Live-in Seminar/Workshop for In-Plant ‘Management Coordinating Commitiee members to be attended by middle management roprosentative and labor union officials all of whom should be in # position to plan, implement and monitor an in-plant family planning program; and (b) Eleven (11)-day Special Course in Family Planning of Industrial Clinic personnel to be participated in by in-plant dlinic physicians and nurses or midwives who have undergone previous training in family planning conducted by a training institution duly accredited by the Commission on Population. ‘To promote and facilitate family planning acceptance among workers, the following training courses, seminars and meetings shall be considered as compensable working time (but not overtime even4 LABOR STANDARDS AND SOCIAL LEGISLATION Arts. 191-192 ‘With Notes and Comments if held outside working hours), with option to allow the employee to take time-off with pay for a period equivalent to the number of hours spent in the activity: @ Training course for family planning motivators; (b)_In-plant seminars on family planning for the workers to be held at loast quarterly; (©) Meetings of In-plant Labor-Management Coordinat- ing Committee membors (See. 5, Rule XI-A, Book 11, Rules Implementing the Labor Cod. 9. Paternity leave law Paternity leave law is one granting paternity leave of seven (7) days with full pay to all married male employees in the private and public sectors for the first four (4) deliveries of the legitimate spouse with whom he is cohabiting (R.A. 8187). 40. Meaning of paternity leave Paternity leave refers to the leave benefite granted to a married male employee allowing him not to report for work for seven (7) days but continues to earn the compensation on the condition that his epouse has delivered a child or suffered a miscarriage for the purpose of lending support to his wife during her period of recovery and/or in nursing of the newly born child (Tbid.). 44, Availment of benefits Paternity loave benefits shall be granted to the qualified ‘employeo after the delivery by his wife, without prejudice to an employer allowing an employee to avail of the benefit before or during the delivery; Provided, That the total number of days shall not excood seven (7) days for each delivery. The employee is entitled to his full pay consisting of basic salary for the seven (7) days during which he is allowed not to report for work; provided, that his pay shall not be loss than the mandated minimum wage (Secs. 5 and 6, ‘Revised Rules Implementing Rules and Regulations of R.A. 8187 for the Private Sector). 42. Non-commutation of benefits In the event that the paternity leave benefit is not availed of, said leave shall not be convertible to cash (See. 7, ibid.). ‘ams. 191-182 WORKING CONDITIONS FOR SPECIAL, sot (GROUPS OF EMPLOYEES Employment of Women 43. Craditing of existing benefits Where a male employee is already enjoying the paternity nefits by reason of contract, company policy or collective ing agreement, the following rules shall apply: (a) Ifthe existing paternity leave benefit is greater than the benefit herein provided, the greater benefit shall prevail; (b) If the oxisting paternity leave is less than that provided herein, such existing benefit shall be adjusted to the oxtent of the difference. However, where 2 contract, company policy or collective bargaining agreement provides for an emergency or contingency leave without specific provisions on paternity leave, the paternity eave as herein provided shall apply in full (Sec. 9, bid.). 14. Parental Leave for Solo Parents Under the Sec. 8 of R.A. 8972, otherwise known as the Solo Parents’ Act of 2000, solo parents are entitled to x wu-cumulative parental leave of seven (7) working days. This is designed to enable the solo parent to perform parental duties and responsibilities where his or her physical presence is needed. ‘The paréntal leave of solo parents ean be availed of under the following conditions: (a) The solo parent must render at least one (1) year of service, whether continuous or broken; (b) Tho solo parent must notify the employer of the availmont thereof within a reasonable period of time; and (©) The solo parent must present his Solo Identification Card to the employer (Sec. 19, Art. V, Rules Implementing R.A. 8972), 48, Categories of a solo parent 'A solo parent is one who falls under any of the following categories: (@) A woman who gives birth as a result of rape or crimes against chastity even without a final conviction of the offender, provided, that the mother keeps and raises the child;402 LABOR STANDARDS AND SOCTAL LEGISLATION Art. 138 ‘With Notes and Comments (@) Parent left solo or alone with the responsibility of parenthood due to: (@ death of spouse; (i) detention or service of sentence of spouse for a criminal eonviction for at least one (1) year; Gii)_ physical and/or mental incapacity of spouse as certified by a public medical practitionor; (Go) legal separation or de facto separation from spouse for at least one (1) year, as long as he/she is entrusted with the custody of the children; (¥) declaration of nullity or annulment of marriage as decreed by a court or by a church, as long a he/she is entrusted with the custody of the children; (i) abandonment of spouse for at east one (1) year; (© _ Unmarried mother/father who has preferred to keep and rear hie/her child/children instead of having others care for them or give them up to a welfare institution; (@ Any other person who solely provides parental eare and support to a child or children, provided he/she is duly licensed as a foster parent by the DSWD or duly appointed legal guardian by the court; (©) Any family member who assumes the responsibility of head of family as a result of the death, abandonment, disappearance, or prolonged absence of the parents or solo parent, provided that such abandonment, disappearance, or absence lasts for at least one (1) year (R.A. 8972). Art, 133 [136]. Discrimination Prohibited. — It shall be unlawful for any employer to discriminate against any woman employee with respect to terms and conditions of employment solely on account of her sex. ‘The following are acts of diserimination: (@) Payment of a lesser compensation, including wage, salary or other forms of remuneration and fringe benefits, to a female employee as against a male employee, for work of equal value; and __(b) Favoring a male employee over a female employee with respect to promotion, assignment, transfer, training Art 138 WORKING CONDITIONS FOR SPECIAL 408 ‘GROUPS OF EMPLOYEES ‘Employment of Women opportunities, study and scholarship grants solely on account of their sexes. Criminal liability for the willful commission of any unlawful act as provided in this article or any violation of the rules and regulations issued pursuant to Section 2 hereof shalll be penalized as provided in Articles 294 and 295 of this Code, Provided, That the institution of any criminal action under this provision shall not bar the aggrieved employee from filing an entirely separate and distinet action for money claims, which may include claims for damages and other affirmative reliefs. The actions hereby authorized shall proceed independently of each other (As amended by RA. 6726). NOTES AND COMMENTS 4. Discrimination prohibited Republic Act 6725, which amended Art. 133 of the Labor Code, Was enacted purposely Uv strengthen the prohibition on diserimination against women with respect to terms and conditions of employment. Under the amended provision, it shall be unlawful for any employer to discriminate against any woman-employee with respect to terms and conditions of employment solely on account of her sex. 2. Diser “Discrimination Against Women’ refers to any gender-based distinction, exclusion, or restriction which has the effect or purpose of impairing or nullifying the recognition, enjoyment, or exercise by women, irrespective of their marital status, on a basis of equality of ‘men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil, or any other field. jination against women, defined It includes any act or omission, including by laws policy, administrative measure, or practice, that directly or indirectly excludes or restricts women in the recognition and promotion of their rrights and their access to and enjoyment of opportunities, benefits, or privileges. ‘A measure or practice of general application is discrimination against women if it fails to provide for mechanisms to ofiset or address sex or gender-based disadvantages or limitations of women,404 LABOR STANDARDS AND SOCIAL LEGISLATION Art. 193 With Notas and Comments ‘as a result of which women are denied or restricted in the recognition and protection of their rights and in their access to and enjoyment of opportunities, benefits, or privileges: or women, more than men, aro shown to have suffered the greater adverse effects of those measures ‘or practices. Provided, finally, that discrimination compounded by or inter- secting with other grounds, status, or condition, such as ethnicity, age, poverty, or religion shall be considered discrimination against women under this Act (Sec. 4[b], R.A. 9710). 3. Woman's physical well-being, an object of public interest ‘The woman's physical structure and the performance of maternal functioning place her at a disadvantage in the struggle for subsistence. This is specially true when the burdens of motherhood are upon her. Even when they are not, by abundant testimony of the medical fraternity, continuing for a long time on her feet at work, repeating this from day to day, tends to have injurious effects upon the body, and as healthy mothers sre essential to vigorous offspring. the physical well-being of a woman becomes an object of public interest and care in order to preserve the strength and vigor of the rrace (Miller v. Oregon, 208 U.S. 412). ‘As decreed in the Bible, it is the universal norm that women should be regarded with love and respect but, through the ages, men have responded to thet injunction with indifference, on the hubriotic conceit that women constitute tho inferior sex. Nowhere has that prejudice against womankind been so pervasive as in the field of labor, especially on the matter of equal opportunities and standards. In the Philippine setting, women have traditionally been considered as falling within the vulnerable groups or types of workers who must be safeguarded with preventive and remedial social legislation ‘against discrimination and exploitative practices in hiring, training, benefits, promotion and retention (PT & T Co. v. NERC, 272 SCRA 596). 4. Protection of working women Realizing the significant contribution of women in the labor force, the State is mandated to protect working women by providing safe and healthful working conditions, taking into account their maternal functions, and such facilities and opportunities that will enhaneo their welfare and enable them to realize their full Art 188 WORKING CONDITIONS FOR SPECIAL 405 GROUPS OF EMPLOYEES Employment of Women potential in the service of the nation (Sec. 14, Art. XII, 1987 Phil. Constitution). 5. Women in nation building ‘To strengthen the protection of working women, the "Women in Developing and Nation Building Act” provides for the equality before the law of women and men such as in the following: a) equality in capacity to act: b) equality im membership in clubs; c) equality in ‘admiscions to military schools; and d) voluntary coverage in SSS, GSIS and Pag-IBIG (Secs. 5-8, B.A. 7192). 6. Acts of discrimination ‘The following are acts of discrimination: (a) Discrimination in pay — Payment of a lesser com- pensation including wage, salary, or other forms of romunera- tion and fringe benefits, to a female employee as against.a male employee; and (©) Discrimination in employment opportunity — Favoring a male employee over a female employee with respect to promotion, assignment, transfer, training opportunities, study and scholarship grants solely on account of their sexes. “The following are also considered as acts of discrimination: © Discrimination in hiring — Favoring a male applicant with respect to hiring where the particular job can ‘equally be handled by a woman; and (@) Discrimination in dismissal — Pavoring a male employee over a female employeo with respect to dismissal of personnel or the application of the last in/first out principle or ‘other retrenchment policy of the empleyer. 7. Penalty for discriminatory acts Criminal liability for the willful commission of any unlawful act as provided in this article or any violation of the rules and regulations issued by the Secretary of Labor and Employment shall be ponalized as provided for under the Labor Code. However, the institution of any criminal action under thie provision shall not bar the aggrieved employee from money claims, which may include claims for damages and other affirmative reliefs. Furthermore, the actions authorized shall proceed independently of each other.406: LABORSTANDARDS AND SOCIAL LEGISLATION Are 1s ‘With Netos and Commonis| Art, 134 [136]. Stipulation Against Marriage. — It shall be unlawful for an employer to require as a condition of employment or continuation of employment that a woman ‘employee shall not get married, or to stipulate expressly or tacitly that upon getting married a woman employee shall be deemed resigned or separated, or to actually dismiss discharge, discriminate or otherwise prejudice a woman ‘employee merely by reason of her marriage. NOTES AND COMMENTS 4. Stipulation against marriage It shall be unlawful for any employer to require as a condition of employment or for continuation of employment that a woman- employee shall not get married or stipulate expressly or tacitly that upon getting married, a woman employee shall be deemed resigned or separated, or to actually dismiss, discharge, discriminate or otherwise prejudice a woman-employee merely by reason of maitiage. This provision is strengthened by Art. 198 of the Code which prohibits the employer to discriminate against any woman with respect to terms and conditions of employment on aecount of her sex. In one case, a flight attendant was dismissed for violating a company regulation which roads: "Flight attendant-applicants must be single. Flight attendants will be automatically be separated trom the employment in the event they subsequently get married.” It was ruled that this company policy runs against the mandate of Arts. 133 and 134 of the Labor Code and the protection to labor clause of the Constitution; thus, the same could not be legally enforced. The fear of the company that pregnancy will produce negative implications and marriage will make its flight attendants inefficiont or less efficient hhas no logical basis, for “to get married does not necessarily mean to et pregnant. One can get pregnant without getting married; in the ‘same way one can got married without getting prognant” (Zialeita v. PAL, Inc., Case No. RO43399, 27 May 1976; PT&T v. NLRC, 272 SCRA 596). Likewise in another case, the Supreme Court ruled that the company policy of not accepting or considering as disqualified from ‘work any woman-worker who contracts marriage runs afoul of the ‘test of, and the right against, discrimination, afforded to women- workers by our labor laws and by no less than the Constitution. It Art, 194 WORKING CONDITIONS FOR SPECTAL, 07 ‘GROUPS OF EMPLOYEES Emplosmont of Women assaults good morals and publie policy, tending as it does to deprive ‘a woman of the freedom to choose her status, a privilege that inheres in the individual as an intangible and inalienable right. Carried to its logical consequences, it may even be said that petitioner's policy ‘against legitimate marital bonds would indeed encourage illicit or common-law relations and subvert the sacrament of marriage (PT &T Co. v. NLRC, 272 SCRA 596). 2. Marital discrimination; absence of law prohibiting marital discrimination cannot benefit management ‘The following are the two (2) types of employment policies involving spouses: (@) No-spouse employment policies - those that only ban spouses from working in the same company; and (b)_Anti-nepotism employment policies - those that ban all immediate family members, including spouses from working in the same company. However, the absence ofa statute expressly prohibiting marital discrimination in our jurisdiction cannot benefit management. A “no-spouse employment policy” arbitrarily discriminates against all spouses of present employees without regard to the actual effect on the individual's qualifications or work performance. Thus, proof of that “reasonable business necessity,” which required the imposition of such occupational qualification, must be presented. Otherwise, the ‘questioned policy is not a valid exercise of management prerogative (Star Paper Corp. v. Simbol, 487 SCRA 228). 3. Standard of reasonable test; bona fide occupational qualifi- cation test ‘Under the standard of reasonable test. which is parallel to the concept of a bona fide occupational qualification test in American jurisdictions, the employer has the burden of proof to prove the existenee of a reasonable business necessity that would justify an employment policy (Star Paper Corp. v. Simbol, G.R. No. 164774, 12 April 2006). ‘Thus, the employer's policy prohibiting an employee from having a relationship with an employee of a competitor company is a valid exercise of management prerogative for it has the right to guard its trade eccrets, manufacturing formulas, marketing408 LABOR STANDARDS AND SOCIAL LEGISLATION ‘xt. 135 ‘With Notas and Comments strategies and othor confidential programs and information from competitors especially s0 that they are rival companies in the highly competitive pharmaceutical industry (Duncan Ass. of Detailmen v. Glaxo Welleome Phils., Ine., 17 September 2004). ‘The prohibition against personal or marital relationships with ‘employees of competitor companies upon its employees was held reasonable under the circumstances because relationships of that nature might compromise the interests of the company. In laying down the assailed company policy, the employer aims to protect its interests against the possibility that a competitor company will gain access to its secrets and procedures (Ibid.). It is valid exercise of management prerogative, Art. 135 [187]. Prohibited Acts. — (a) It shall be unlawful for any employer: (a) To deny any woman employee the benefits provid- ed for in this Chapter or to discharge any woman employed by him for the purpose of preventing her from enjoying any of the benefits provided under this Code; (b) To discharge such woman on account of her pregnancy, or while on leave or in confinement due to her pregnancy; (©) To discharge or refuse the admission of such wom- an upon returning to her work for fear that she may again be pregnant. NOTES AND COMMENTS 1. Unlawful acts a It shall be unlawful for any employer to: inst women (@) Discharge any woman employed by him for the purpose of preventing such woman from enjoying the maternity leave, facilities and other benefits provided under the Code; ©) Discharge such woman on account of her pregnancy, or while on leave or in confinement due to her pregnancy; (© Discharge or refuse the admission of such woman upon returning to her work for fear that she may again be pregnant; Art. 135 WORKING CONDITIONS FOR SPECIAL 409 GROUPS OF EMPLOYEES Employment of Women (@_ Discharge any woman or any other employee for having filed a complaint or having testified or being about to testify under the Code; (© Require as a condition for or continuation of employment that 2 woman employee shall not get married or to stipulate expressly or tacitly that upon getting married a woman-employee shall be deemed resigned or separated, or to actually dismiss, discharge, discriminate or otherwise prejudice a woman employee merely by reason of her marriage (Sec. 18, Rule XII, Rules Implementing the Labor Code); and () Deny any woman the benefits of employment or other statutory benefits under our laws by reason of her sex, ‘age, ethnic origin or beliefs, or relations, either by affinity or consanguinity. 2, Discharge on account of pregnancy, illegal Complainant was dismissed for having incurred sixteen (16) Gays of absences and for her failure to report to the employer her pregnancy. It was aggravated by the charge of disobedience when she was issued a memorandum to report for work. In the words of the Supreme Court, the alleged misconduct barely falls within the situation contemplated by the law. Her absence for sixteen (16) days was justified considering that she had just delivered a child, which can hardly be considered a forbidden set, a dereliction of duty; much Jess does it imply wrongful intent. The employer harps on the alleged concealment of her pregnancy. This argument, however, begs the question as to how one can conceal a full-term pregnancy (Lakpue Drug, Inc. v. Belga, G.R. No. 166379, 20 Ociober 2005). Failure to formally inform the employer of her pregnancy ‘cannot be considered as grave misconduct directly connected to her work as to constitute just cause for her separation, Likewise, the charge of disobedience for failure to comply with the memoranda must likewise fail. Disobedience, as a just cause for termination, must be willful or intentional. Willfulness is characterized by a wrongful and perverse mental attitude rendering ‘the employee's act inconsistent with proper subordination (St. Michaels Institute v. Santos, 422 Phil. 723, 734 [2001)). In the instant case, the memoranda were given two (2) days after she had given birth. It was thus physically impossible to report for work and explain her absence (Ibid)a0 LABOR STANDARDS AND SOCIAL LEGISLATION Ant 186 With Notes and Comments 3. _Anti-violence against women and thelr children law ‘The law that dofines violence against women and their children, providing for protective measures for the victims, and prescribing the penalties for the violation is R.A. 9262, otherwise known as the “Anti-Violence Against Women and their Children Act of 2004.” 4, State's declared policy for the protection of women and chil- ron It has been a declared policy that the State values the dignity of women and children and guarantees full respect for human rights. The State also recognizes the nocd to protect the family and its members particularly women and children, from violence and threats to their personal safety and security (Sec. 2, R.A. 9262). Meaning and concept of “violence against women and their children” “Violence against women and their children” refers to any aot oF a corice of acts committed by any person against a waman who is his wife, former wife, or against a woman with whom the person has or had a sexual or dating relationship, or with whom he has a common child, or against her child whether legitimate or illegitimate, within or without the family abode, which result in or is likely to result in physical, sexual, psychological harm or suffering, ‘or economie abuse including threats of such acts, battery, assault, coercion, harsenment or erbitzary deprivation of liberty (Seo. 3, ibid.) ‘The above concept includes physical violence, sexual violence, psychological violence and economic abuse (Ibid.). 6. Meaning of “physical violence” and “sexual violence” “Physical Violence” refers to acts that include bodily or physical harm. On the other hand, “Secual violence” refers to an act: which is sexual in nature, committed against a woman or her child. It includes, but is not limited to the following: ) rape, sexual harassment, acts of lasciviousness, treating a woman or her child as a sex object, making demean- ing and sexually suggestive remarks, physically attacking the sexual parts of the victim's body, forcing her/him to watch obscene publications and indecent shows or forcing the woman or her child to do indecent acts and/or make films thereof, xt. 135 WORKING CONDITIONS HOR SPECIAL aa ‘GROUPS OF EMPLOYEES “Employment of Women forcing the wife and mictrose/lover to live in the conjugal home or sleep together in the same room with the abuser, (b) acts causing or attempting to cause the victim to engage in any sexual activity by force, threat of foree, physical or other harm or threat of physical or other harm or coercion; and (© Prostituting the woman or child (Sec. 2, ibid). 7. Meaning of psychological violence “Psychological violence” refers to acts or omissions causing or likely to cause mental or emotional suffering of the victim such as but not limited to intimidation, harassment, stalking, damage to property, public ridicule or humiliation, repeated verbal abuse and mental infidelity. It includes eausing or allowing the victim to witness the physical, sexual or psychological abuse of a member of the family to which the victim belongs, or to witness pornography in any form or to witness abusive injury to pets or to unlawful or unwanted deprivation of the right to custody andior visitation of common children (Sec. 2, ibid). 8. Meaning of economic abuse “Economic abuse” refers to acts that make or attempt to make woman financially dependent which includes, but is not limited to the following: (@) withdrawal of financial support or preventing the victim from engaging in any legitimate profession, occupation, business or activity, except. in cases wherein the other spouse! partner objects on valid, sorious and moral grounds as defined in Art. 73 of the Family Code; (©) deprivation or threat of deprivation of financial resources and the right to the use and enjoyment of the ‘conjugal, community or property owned in common; (© destroying household property; (@ controlling the victims’ own money or properties or solely controlling the conjugal money or properties (Ibid.). 9. Meaning of battery; battered woman syndrome “Battery” refers to an act of inflieting physical harm upon the woman or her child resulting to the physical and psychological412 _ LABOR STANDARDS AND SOCIAL LEGISLATION ‘Art, 185 ‘With Netos and Commonts ‘or emotional distress. On the other hand, “Battered Woman Syndrome” refers to a seientifically defined pattern of psychological and behavioral symptoms found in women living in battering relationships as a result of cumulative abuse (Ibid.). 10. Moaning of dating relationship “Dating relationship" refers to a situation wherein the parties live as husband and wife without the benefit of marriage or are romantically involved over time and on a continuing basis during the course of the relationship. A casual acquaintance or ordinary socialization between two (2) individuals in a business or social context is not a dating relationship (Toid.). 11. Acts of violence against women and children ‘The crime of violence against women and their children is committed through any of the following acts: (@) Causing physical harm to the woman or her child; (@) Threatening to cause the woman or her child physical harm; (©) Attempting to cause the woman or her child physical harm; (@ _ Placing the woman or her child in fear of imminent physical harm; (©) Attempting to compel or compelling the woman or her child to engage in conduct which the woman or her child ‘has the right to desist from or desist from conduct which the woman or her child has the right to engage in, or attempting +o restrict or restricting the woman’s or her child’s freedom of movernent or conduct by force or threat of force, physical or other harm or threat of physical or other harm, or intimidation directed against the woman or child. ‘This shall include, but not limited to, the following acts committed with the purpose or effect of controlling or restricting the woman's or her child's movement or eonduet: 1. ‘Threatening to deprive or actually depriving the woman or her child of eustody to her/his family; 2. Depriving or threatening to deprive the woman or her children of financial support legally due her or her Art 135 WORKING CONDITIONS POR SPECIAL 413 (GROUPS OF EMPLOYEES Employment of Women family, or deliberately providing the woman's children insufficient financial support; 3. _Depriving or threatening to deprive the woman or her child of a legal right; Preventing the woman in engaging in any legitimate profession, occupation, business or activity or controlling the victim’s own money or properties, or solely controlling the conjugal or common money, or properties. (© Infiicting or threatening to inflict physical harm on ‘oneself for the purpose of controlling her actions or decisions; (®) Causing or attempting to cause the woman or her child to engage in any sexual activity which does not constitute rape, by force or threat of force, physical harm, or through intimidation directed against the woman or her child or her/ his immediate family; (hb) Engaging in purposoful, knowing, or reckloss con- duct, personally or through xnother, that #larms or eauses sub- stantial emotional or psychological distress to the woman or her child. This shall include, but not be limited to, the following acts: Stalking or following the woman or her child in public or private places; 2. Peering in the window or lingering outside the residence of the woman or her child; 3. Entering or remaining in the dwelling or on the ‘property of the woman or her child against her/his will; 4. Destroying the property and personal bolongingness or inflicting harm to animals or pets of the ‘woman or her child; and 5. Engaging in any form of harassment or vio- ence. (@ Causing mentalor emotional anguish, publicridicule or humiliation to the woman or her child, including, but not limited to, repeated verbal and emotional abuse, and denial of financial support or custody of minor children of access to the ‘woman's childichildren (Sec. 5, tid.)414 LABORSTANDARDS AND SOCIAL LEGISLATION Ant 195 ‘With Notes and Comments 42. Jurisdiction over cases of violence The Regional Trial Court designated as a Family Court shall have original and exclusive jurisdiction over cases of violence against women and their children under this law. In the absence of such court in the place where the offense was committed, the case shall be filed in the Regional Trial Court where the crime or any of its clements was committed at the option of the complainant (Sec. 1, ibid.) 13. Protection Order; who may file petition A protection order is an order issued under this act for the purpose of preventing further acts of violence against a woman or hher child and granting other necessary relief. The relief granted under a protection order serves the purpose of safeguarding the victim from further harm, minimizing any disruption in the vietim’s daily life, and facilitating the opportunity and ability of the victim to independently regain control over her life. The provisions of the protection order chall be onforced by law onforcoment agencies (Soe, 8, ibid). A petition for protection order may be filed by any of the following: (@) the offended party; (®) parents or guardians of the offended party; (© ascendants, descendants or collateral relatives ‘within the fourth civil degree of consanguinity or affinity; @ officers or social workers of the DSWD or social workers of local government units (LGUs); (©) _ police officers, preferably those in charge of women and children’s desks; (9 Punong Barangay or Barangay Kagawad; (®) lawyer, counselor, therapist or healtheare provider ofthe petitioner; and (@) at least two (2) concerned responsible citizens of the city or municipality where the violence against women and ‘their children occurred and who has personal knowledge of the offense committed (Sec. 9, ibid.). Art 185 WORKING CONDITIONS FOR SPECIAL a6 GROUPS OF EMPLOYEES ployment of Women 14. Where to apply protection order An application for a Temporary Protection Order or Permanent Protection Order may be filed in the regional trial court, metropolitan trial court, municipal trial court, municipal cireuit trial eourt with territorial jurisdiction over the place of residence of the petitioner. However, if a family court exists in the place of residence of the petitioner, the application chall be filed with that court (See. 10, ibid). 15. Violence against women and children considered a public of- fonse ‘Violence against women and their children shall be considered a public offense which may be prosecuted upon the filing of complaint by any citizon having personal Imowledge of the circumstances involving the commission of the crime (See. 25, ibid.) 16. Prescriptive period under R.A. 9262 Acts falling under Sees. 5(@) to 5(f) challl proseribe in twonty (20) years. Acts falling under Sers, 5(g) to 5() shall preseribe in ten (20) years (See. 24, ibid.). 17. Battered woman syndrome as a defense Victim-survivors who are found by the courts to be suffering from battered woman syndrome do not incur any criminal and civil liability notwithstanding the absence of any of the elements for justifying circumstances of self-defense under the Revised Penal Code (Sec. 24, ibid.). In the determination of the state of mind of the woman who was suffering from battered woman syndrome at the time of the commission of the crime, the courts shall be assisted by expert paychiatrists/psychologists (Ibid.). In People v. Genosa, the accused wife anchored her prayer ‘of acquittal on a novel theory — the “battered woman syndrome” (BWS) which allegediy constituted self-defense. But the Supreme Court ruled that under the proven facts, she was not entitled to complete exoneration because there was no unlawful aggression, that is, there was no immediate and unexpected attack on her by her batterer-husband at the time she shot him (People v. Genosa, G.R. No, 135981, 15 January 2004). In other words, the existence of the eyndrome in a relationship does notin itaolf established thea6 LABOR STANDARDS AND SOCIAL LEGISLATION Art 185 ‘With Notes and Commen's legal right of the woman to kill her abusive partner. Evidence must still be considered in the context of self-defense (Ibid). Being under the influence of aleobol, any illicit drug, or any other mind-altering substance is not a defense under the law (Sec. 27, RA. 9262), 18, Persons intervening exempt from liability In every case of violence against women and their children, any person, private individual or police authority or barangay official who, acting in accordance with law, responds or intervenes without using violence or restraint greater than necessary to ensure the safety of the victim, shall not be liable for any criminal, civil or administrative liability resulting therefrom (Sec. 34, ibid,). 19. Custody of children, given to the woman-victim ‘The woman-vietim of violence shall be entitled to the custody and support of her child/children. Children below seven (7) years ald older but with mental or physical disabilities shall automatically be given to the mother, with right to support, unless the court finds compelling reasons to order otherwise (Sec. 28, ibid.) A vietim who is suffering from battered woman syndrome shall not be disqualified from having custody of her children. In no case shall custody of minor children be given to the perpetrator of ‘a. woman who is euffering from battered woman syndrome (Ibid.). 20. Victims of violence entitled to damages and other rights In addition to their rights under existing laws, victims of violence against women and their children shall have the following rights: (a) ‘Tobe treated with respect and dignity: (b)_ Toavail oflegal assistance from the Public Attorney's Office of the Dopartment of Justice (DOJ) or any public legal assistance office; (©) To be entitled to support services from the DSWD and local government units; (@ To be entitled to all legal remedies and support as provided for under the Family Code; and st. 195 WORKING CONDITIONS FOR SPECTAr, an ‘GROUPS OF fMPLOYEES Employment of Wonten (e) To be informed of their rights and the services available to them including their right to apply for a protection order (Sec. 85, ibid.). Any victim of violence shall be entitled to actual, compensatory, moral and exemplary damages (Sec. 36, ibid.). 21. Sexual harassment of women penalized; persons liable ‘The “Anti-Sexual Harasement Act of 1995" is also aimed at promoting the lot of the working women. ‘As defined, work, education or training-related sexual harass- ‘ment is committed by an employer, employee, manager, supervisor, agent of the employer, teachor, instructor, professor, coach, trainor or any other person who, having authority, influence or moral ascen- daney aver another in a work or training or education envionment, demands, request or otherwise requires any sexual favor from the other, regardless of whether the demand, request or requirement for submission is accepted by the object of said act (Sec. 3, R.A. 7877). ‘Also, equally Tiable are persons who direct or induce another to com- mit any act of sexual harassment, or cooperate in the commission thereof (Ibid.). 22. Two (2) types of sexual harassment ‘The following are the two (2) types of sexual harassment: (@) Quid pro quo sexual harassment - takes place whereby sexual favors are demanded as a condition for hiring, promotion or grant of other employment benefits. It generally involves some express or implied linkage between the employees’ submission to sexually oriented behavior and tangible job consequences. Thus, whon an employee refuses to submit, she suffers an adverse “tangible job detriment” as a result. To exemplify is the act of a superior officer in firing his secretary for refusing to have sexual relations with him (Lusk Series, Business Law and the Regulatory Environment, p. 1227) ‘Also it is a phrase that simply means ‘something for something” In the context of employment, it deals with requests of a superior officer for sexual favors for economic benefits. Refusal to such sexual demand will result in an adverse employment action.418 LABOR STANDARDS AND SOCIAL LEGISLATION Art 135 ‘With Notas and Comments (©) Hostile work environment - under this classification, the superior officer’s conduct caused some anxieties in the working environment which may include, sexual remarks or utterances, unwelcome sexual flirtations or propositions of a sexual nature. Such conduct has the effect of creating an intimidating, hostile or offensive working environment. 23. Doctrinal rulings on sexual harassment ‘The following are some instructive doctrinal rulings on sexual harassment: (@) Should the demand or request of a sexwal favor be articulated in categorical oral or written statement? No. — In a work-related or employment environment, sexual harassment is committed when: (0) The sexual favor is made as a condition in the hiring or in the employment, re-employment or continued employment of said individual, or in granting said individual favorable compensation, terms, couditions, promotions, or privileges; or the refusal to grant the sexual favor results in limiting, sogrogating or classifying the employee which in a way would discriminate, dept or diminish employment opportunities or otherwise adversely affect eaid employee (Domingo v. Rayala, G.R. No. 155831, 18 February 2008), The above provision calls for a demand, request or requirement of a sexual favor. But it is not necessary that the demand, request or requirement of a sexual favor be articulated in a categorical oral or written statement. It may be discerned, with equal certitude, from the acts of the offender. Holding and squeezing the giz!’s shoulders, running his fingers across her neck and tickling her ear, having inappropriate conversations with her, giving her money allegedly for school expenses with a promise of future privileges, and making statements with ‘unmistakable sexual overtones all these acts resound with deafening clarity the unspoken request for a sexual favor (Tbid.). It is not essential that the demand, request or re- ‘quirement be made as a condition for continued employ- ‘ment or for promotion to higher position. It is enough Ast 185 WORKING CONDITIONS FOR SPECIAL a9 ‘GROUPS OF EMPLOYEES Employment of Women that tho respondent’s acts result in creating an intimi- dating, hostile or offensive environment for the employoo (RA. 7877, Sec. 3a] [3]; AO 250, Rule II, See. 3 [d)). () Managerial employee, bound by a more exacting work ethics - A managerial employee was validly dismissed when he failed to live up to the higher standard of responsibility when he succumbed to his moral perversity. And when such moral perversity is perpetrated against his subordinate, he provides justifiable ground for his dismissal for lack of trust and confidence. It is the right, nay, the duty of every ‘employer to protect its employees from over sexed superiors, ‘As a managerial employee he is bound by a more exacting work ethics (Villarama v. NLRC, G.R. No. 106341, 2 September 1994). (©) Delay in instituting a complaint for sexual harassment, not an ofterthought ~ The claim that the delay in instituting the complaint shows that it was only an afterthought should not be given eredit, it eauld be expected ‘since respondent was vietim’s immediate superior, fear of retaliation and backlash, not to forget the social humiliation and embarrassment that victims of this human frailty usually suffer, are all realities that complainant had to contend with. Moreover, tho delay did not detract from the truth derived from the facts (Libres v. NLRC, G.R. No. 123737, 28 May 1999) 24, Sexual harassment in work-related environment Sexual harassment in work-related environment, is committed in the following manner: fa) ‘Tho coxual favor is made as a condition in the hir ingor in the employment, re-employment or continued employ- ment of said individual, or in granting said individual favorable ‘compensation, terms, conditions, promotions, or privileges: oF the refusal to grant the sexual favor results in limiting, seg- rogating or classifying the employee which in any way would discriminate, deprive or diminish employment opportunities or otherwise adversely affect said employee (quid pro quo sexual harassment). b) Tho above acts would impair the employee's rights and privileges under existing labor laws; or420 LABOR STANDARDS AND SOCIAL LEGISLATION Art 135 With Notes and Comments ost, ont Be, shove acts would result in an intimidating wostile, or offensive environment for the employee (hostile work environment). __,, The employer or head of office is liable in solidum for damages arising from the acts of sexual harassment committed in the employment, education or training environment if the employer or head of office is informed of such acts by the offended party and no immediate action is taken thereon (See. 6, ibid.). 25. Sexual harassment in education or training-related environ- ment In an education or training-related environment, sexual harassment is committed as follows: (@) Against one who is under the care, custody or supervision of the offender; (b) Against one whose education, training, apprentice- ship or tutorship is entrusted to the offender; (©) When the sexual favor is made a condition to the giving of a passing grade, or the granting of honors and scholarships, or the payment of a stipend, allowance or other benefits, privileges, or considerations; or (@ When the sexual advances result in an intimidating, hostile or offensive environment for the student, trainees or apprentice (Ibid. ). 28. Duty of employer or head of office It shall be the duty of the employer or head of office of the work, education, or training-related environment or institution to prevent the commission of acts of sexual harassment and to provide the procedures for the resolution or prosecution thereof. ‘The employer or head of office shall perform the following: (@) Promulgate appropriate rules and regulations in consultation with and jointly approved by the employees or students or trainees, through their duly designated representatives, prescribing the procedure for the investigation of sexual harassment eases and the administrative sanctions therefore, ‘The said rules and regulations issued shall include, among others, guidelines on proper decorum in the workplace and educational or training institutions, Art 136 WORKING CONDITIONS FOR SPECIAL aa (GROUPS OF EMPLOYEES Employment of Womoa (©) Create a committee on decorum and investigation of cases on sexual harassment. The committee shall conduct meetings, as the case may be, with officers and employees, teachers, instructions, professors, coaches, trainors and stu- dents or trainees to increase understanding and prevent inei- dents of sexual harassment. It shall also conduet the investiga- tion of alleged cases constituting sexual harassment: (Tbid.). Art, 136 [138]. Classification of Certain Women Workers. — Any woman who is permitted or suffered to work, with or without compensation, in any night club, cocktail lounge, massage clinic, bar or similar establishment, under the effective control or supervision of the employer for a substantial period of time as determined by the Secretary of Labor, shall be considered as an employee of such establishment for purposes of labor and social legislation. NOTES AND COMMENTS 1. Status of women-workers in certain workplaces Any woman who is permitted or suffered to work with or without compensation, in any night club, cocktail lounge, beer house, massage clinic, bar or similar establishments, under the effective control or supervision of the employer for a substantial period of time as determined by the Secretary of Labor, shall be considered as an employee of such establishments for purposes of labor and social legislation. No employer shall discriminate against such employees or in any manner reduce whatever benofits they are now enjoying (Sec. 4, Rule XII, Rules Implementing the Labor Code). 2. Hospitality girls not employees in certain instances If the night club operator neither controls nor directs the host- esses on the details and manner of their work in the entertainment of night club patrons and thet, having no fixed hours of work, said hostesses may come and go as they please; they are, therefore, not employees of the night club operators (Opinion of the Secretary of Justice, 27 October 1954). In other words, they shall be considered employees of such establishments for purposes of labor and social legislation if they are under the effective control or supervision of the employer for a substantial poriod of time.422 LABOR STANDARDS AND SOCIAL LEGISLATION Art. 187 ‘With Notes and Comments Chapter It EMPLOYMENT OF MINORS Art, 187 [139]. Minimum Fmployable 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. (Repealed by R.A. 7610, as ‘amended by R.A. Nos, 7658 and 9231). (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 may be determined by the Secretary of Labor and Employment in appropriate regulations. (©) 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 ax determined hy the Secretary of Labor and Employment. NOTES AND COMMENTS 1. Employment of children in doloterious undertaking, prohib- ited Children may have been employed in dangerous and unhealthful conditions, oblivious of the fact that such working conditions would greatly expose to risk their life and safety. Employment of children may also have adverse social or economic effects. Socioty in particular may get affected as this may trigger injurious effects such as family break-up and juvenile delinquency. At the workplace, a child may be exposed to abnormal working conditions and criminal elements, thereby destroying his healthy development, Children who are employed may already lose their interest to attend school. From the psychological point, child. hood period must be seriously devoted to the development. of mind and body which includes activities such as recreation, education and the like. It is social truth that the best period to inculcate loyalty and love of country to the children is during their developmental stage. Moreover, young workers tend to be inexperienced and unskilled and thus, they are paid less compared to skilled older workers. Art 187 WORKING CONDITIONS FOR SPECIAL 42s ‘GROUPS OF EMPLOYEES Employment of Minors 2. Employment of children below fifteen (15) years of age ‘As a general rule, employment of children below fifteen (15) ‘years of age is prohibited (Sec. 12, RA. 7610, as amended by RA 9231). 3. Employment of children below fifteen (15) years of ago allowed in certain instances ‘The following are the instances: 2) _ When the child works directly under the responsibil- ity of his/her parente or legal guardian who employ members of his/her family only but under the following conditions, to wit: 1) The employment does not endanger the childs life, safety, health and morals; 2) ‘The employment does not impair the child's normal development; and 3) Theemployer-parent or legal guardian providee the child with primary andior secondary education prescribed by the Department of Education, Culture and Sports, 1b) When the child's employment or participation in public entertainment or information through cinema, theater, radio or television is essential, provided the following conditions are complied with: 1) The employment does not involve advertise ‘ments or commercials promoting alcohol, beverages, in- toxicating drinks, tobacco and its by-products or exhibit ing violence; 2) There is a written contract approved by the Department of Labor and Employment, and such contract ‘was concluded by the child’s parents or legal guardians with the express agreement of the child concerned; and 8) The conditions prescribed above are met (Sec. 9, DOLE Dept. Order No. 18; Secs. 12 and 14, R.A. 7610; ibid ‘An employer, who engages a child for employment under the above exceptions, is required under the law to first secure a work424 LABOR STANDARDS AND SOCIAL LEGISLATION An 137 With Notes and Comments permit isoued by the Department of Labor and Employment havis jurisdiction over the workplace (Sec. 12, A. 7610, ibid.) " 4. Absolutely prohibited employment Employment is absolutely prohibited in the following instances: 2) Employment of a child below eighteen (18) years of age in an undertaking which is hazardous or doleterious in nature as determined by the Secretary of Labor and Employment. A hazardous work or undertaking is one where the employee is exposed to any risk which constitutes an imminent danger to his safety, health (Sec. 2, Rule XI, Rules Implementing the Labor Code), morals and normal development; and ave json employment of child models in all commercial or advertisements promoting aleoholie beverages, intoxicatiny dzinks, tobacco and its by-products, and violence (See. 14, R.A. 7610, as amended by R.A. 9231; R.A. 9262). 5. Strict compliance ot the requirements on th: sete rents on the employment of ‘The following requirements shall be strictly com; ,e plied with in all instances governing employment of children: (@) The employer shall ensure the protection, health, safety, morals and normal development of the child; (©) | The employer shall institute measures to prevent the child’s exploitation or discrimination taking into account the system and level of remuneration, and the duration and arrangement of working time; and © _ Theemployershall formulate andimplement, subject to tho approval and supervision of competent authorities, a continuing program for training and skills acquisition child (Sec. 2 R.A. 92381). rte Hours of work of a working child under R.A. 9234 Sections 12-A (2) and (3) of R.A, 9231, which added said secti toR.A. 7610, and Sec, 15(b) and (©) of D.O. 65-04, implem A 9231, provide as follows: > ringonendg Section 12-4. Hours of Work of a Working Child. — Under the exceptions provided in Section 12 of this Act, as amended: ‘Ast 197 WORKING CONDITIONS FOR SPECIAL 135 ‘GROUPS OF EMPLOYEES Bmployment of Minors (2) A child fiftoon (15) years of age but below oighteen (18) shall not be allowed to work for more than eight (8) hours fa day, and in no case beyond forty (40) hours a week; @) No child below fifteen (15) years of age shall be allowed to work between eight o'clock in the evening and six clock in the morning of the following day and no child fifteen (45) years of age but below eighteen (18) shall be allowed to work between ten o'clock in the evening and six o'clock in the ‘morning of the following day. (R.A. 9231) Section 15. Hours of Work of a Working Child — The following hours of work shall be observed for any child allowed to work under Republic Act No. 9231 and these Rules: (&) For achild 15 years of age, but below 18, the hours of work shall not be more than eight hours a day, and in no case beyond 40 hours a week; and (©) Nochild 15 years of age but below 18 shall be allowed to work between ton o'slook in the evening and six o'clock in the morning of the following day. 7. Administration of the working child’s income ‘The wages, salaries, earnings and other income of the working child shall belong to him/her in ownership and shall be sot aside primarily for his/her support, education or skills acquisition and secondarily to the collective needs of the family: Provided, That not more than twenty percent (20%) of the child's income may be used for the collective needs of the family. ‘The income of the working child and/or the property acquired through the work of the child shall be administered by both parents In the absence or incapacity of either of the parents, the other parent shall administer the same. In case both parents are absont or incapacitated, the order of preferenc or parental authority as provided for under the Family Code shall apply (See. 3, ibid). 8. Trust fund of the working child's income ‘The parent or legal guardian of a working child below eighteen (18) years of age shall set up a trust fund for at least thirty percont (803%) of the earnings of the child whose wagos and salaries from work and other income amount to at least Two hundred thousand425. LABOR STANDARDS AND SOCTAL LEGISLATION Art 138 ‘With Notes and Comments esos (P200,000.00) annually, for which he/she shall rendor a semi- annual accounting of the fund to the Department of Labor and Employment, in compliance with the provisions of this Act. The child shall have full control over the trust fund upon reaching the age of majority (Sec. 3, ibid.) 9. Access to education and training for working children In order to provide working children with access to education and training, the following rules are provided: (a) No child shall be deprived of formal or non-formal education, In all cases of employment allowed in this Act, the employer shall provide a working child with access to at least primary and secondary education. (©) To ensure and guarantee the access of the working child to education and training, the Department of Education (DepEd) shall: (1) formulate, promulgate, and implement relevant and effective course designs and educational programs; 2) conduct the necessary training for the implomentation of the appropriate curriculum for the purpose; (3) ensure the availability of the needed educational facilities and materials; and (4) conduct continuing research and development program. for the necessary and relevant alternative education of the working child. (© | The DepEd shall promulgate a course design under its non-formal education program aimed at promoting the intellectual, moral and vorational 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 cireumstances (See. 4, ibid,). Art, 188 [140]. Prohibition Against Child Diserimination. — No employer shall discriminate against any person in respect to terms and conditions of employment on account of his age. NOTES AND COMMENTS: 1. Purpose of prohibiting child discrimination The children are easy preys of abusive employers as they are unskilledand inexperienced. Itisonly properthen forthe Government Art 138 WORKING CONDITIONS FOR SPECIAL, ar (GROUPS OF EMPLOYEES Employment of Minors to enact laws that would prohibit practices that discriminate against children on terms and conditions of employment. The prohibition is designed to effect the constitutional mandate of affording protection to labor. Thus, any child of either sex between fifteen (15) and eighteen (18) years of age may not be employed in hazardous work, that is, any work or activity that would expose to risk the health, safety, morals and normal development of the child-employee. D.O. 04, series of 1999 of the DOLE prohibite children to work in a casino (gambling place) as it is classified as deleterious, 2. Art. 137(a) of the Labor Code, repealed Article 137(a) of the Labor Code was repealed by R.A. 7610, a3 amended by RAs. 7658 and 9231. R.A. 7610, known as “Special Protection of Children Against Abuse, Exploitation and Discrimination Act,” was approved on 17 June 1992. Despite the repeal of Art. 137(@), Art. 137(b) and (¢) are still applicable. 3. State policy for special protection to children Under R.A. 9231, otherwise known as “An Act for the Elimination of the Worst Forms of Labor and Affording Stronger Protection for the Working Child,” it has been the declared policy of the State to provide special protection to children from all forms of abuse, neglect, cruelty, exploitation and discrimination, and other conditions prejudicial to their development including child labor and its worst forms (Sec. 1, R.A. 9231) 4. State as “parens patriae” for the child ‘The State shall intervene on behalfof the child when the parent, guardian, teacher or person having care or custody of the child fails or is unable to protect the child against abuso, exploitation and discrimination or when such sets against the child are committed by the said parent, guardian, teacher or person having care and custody of the same (Ibid). ‘Thus, when the victim of child labor institutes a separate civil action for the recovery of civil damages, he shall be exempt from payment of filing foes. Furthermore, he has the right to free legal, medical and psycho-social services to be provided by the State (Sec. 9, ibid).