Women and Children in Labor
Our 1987 Constitution provides that the state shall promote equal employment opportunities for all. To implement this constitutional mandate, the authors of Presidential Decree No. 422 (as amended), otherwise known as the Philippine Labor Code, thought it wise to specifically prohibit discrimination against two special groups of workers: women and children, seeming to give official recognition of the Philippines’ bias for male workers. Male workers are seen as more efficient because of the perception that men are the stronger sex. Or perhaps, business wise, male workers seem more efficient because they do not get pregnant and absent themselves for long periods of time.
As an employer, one should therefore be aware of the explicit acts that are considered discriminatory under the law:
- Payment of lesser compensation and/or benefits to a female employee as against a male employee, for work of equal value
- Favoring a male employee over a female employee with respect to promotion, training opportunities, study and scholarship grant solely on account of gender
- Discrimination against a child worker in terms and conditions of employment on account of age
The operative phrases on discriminatory acts listed above are “for work equal value” , “solely on account of gender’” and “on account of age.” The law is merely saying that employers must practice equal pay for equal work and provide equal opportunities for all.
Being a female or a child must never be the deciding factor in the grant of higher pay, benefits or other advantages. Moreover, employers must bear in mind that the willful commission of (1) and (2) is considered criminal under Republic Act No. 6725. Under the Implementing Rules of R.A. 6725, payment of lower compensation or benefits may be allowed if the basis between the rates of pay s founded on factors such as length of service/seniority, location/geographical area of employment. What is important is that the factor is not gender.
Despite the mandate of equal opportunity and equal pay, there are special laws enacted which grant special privileges for women and children.
The succeeding provisions applies to all employers, whether operating for profit or not, and also includes educational, religious and charitable institutions. The government, government-owned and controlled corporations, employers of house help, or persons under the personal employ of another are not covered.
A. Nighttime work
Generally, employers are not allowed to let women work on certain hours of the night. Specifically, women workers are not allowed to work between 10:00 p.m. and 6:00 a.m. in an industrial setting and between 12:00 a.m. (midnight) and 6:00 a.m. in an commercial or non-industrial set-up. In an agricultural undertaking, women are not allowed to work during nighttime unless she is given a period of not less than nine (9) consecutive hours.
However, women may still be allowed to work during nighttime if the following circumstances are present: (1) The woman holds a responsible position, managerial or technical in nature, or if she is engaged to provide health and welfare service. (2) The nature of the work requires the manual skill and dexterity of women and the same cannot be performed with equal efficiency by men (3) In cases of actual or impending emergencies caused by serious accident, fire, flood, typhoon, earthquake, epidemic or other disasters/calamity, to prevent loss of life or property, or in cases of force majeure or imminent danger to public data (4) In case of urgent work to be performed on machineries, equipment or installations, to avoid serious loss which the employer would otherwise suffer (5) Where the work is necessary to prevent loss of perishable goods (6) Where the women are immediate members of the family operating establishments (7) Under analogous circumstances as exempted by the Secretary of Labor. B. Women & Pregnancy
Employers are required by law to grant maternity leave with pay to women employees, but only to the extent covered by the Social Security System (SSS). Under the law, the SSS shall reimburse the employer 100% for the maternity leave benefit advanced, for the first four (4) pregnancies only, and after satisfactory proof of the advance payment and its legitimacy.
In order to be qualified for the maternity leave benefit, the female employee must have paid at least three months worth of SSS contributions within the twelve month period before the semester of her childbirth or miscarriage. The maternity leave benefit is computed based on the average salary credit of the female employee multiplied by sixty (60) days for normal birth or miscarriage or by seventy-eight (78) days for caesarian births.
Finally, to be entitled to the maternity leave benefit, the female employee must file a notice with her employer indicating her pregnancy and probable date of birth. The employer is also required to advance the maternity benefit within 30 days from the filing of the maternity notification.
Employers should be aware that Article 137 of the Labor Code explicitly prohibits the following:
- Discharging any woman employed by him for the purpose of preventing her from enjoying the maternity leave benefits
- Discharging a woman employee on account of her pregnancy, or while on leave or in confinement due to her pregnancy
- Discharging or refusing admission to a woman employee upon return to work for fear that she may be pregnant again
C. Women & Marriage
Marriage is a very special contract under the Philippine law. It is a contract promoted and protected by the State to the fullest extent of its capability because it is the foundation of our society. It goes without saying, therefore, that employers are prohibited from obliquely destroying this foundation by requiring, even if tacitly, as a condition for employment or for continuation of employment, that a woman must remain single. More so is it prohibited to deem as resigned or separated or to actually dismiss, discharge, or discriminate against a woman employee by reason solely of her marriage.
The age of majority in the Philippines is eighteen (18) years old. Child workers are therefore defined as those workers who are below 18 or those over but are unable to fully take care of themselves or protect themselves from abuse, neglect, cruelty, exploitation or discrimination because of a physical or mental disability or condition. They are called minors.
As a general rule, we do not allow minors to work. This is perhaps because a majority of Filipinos value education and minors are supposed to be at school during this time. Also, in the ideal world, the parents are supposed to provide for their children and not the other way around.
However, the law also recognizes that ideals, more frequently than not, bow to the realities of life – especially the economically difficult environment we consider everyday. Therefore, minor workers are divided into categories: those between 15 – below 18 years old, and those under 15 years old.
Children between 15 years old to below 18 years old may be employed in non—hazardous/ non-deleterious undertakings as defined by the Department of Labor and Employment (DOLE) Department Order No. 4 Series of 1999.
- Work which exposes children to physical, psychological re sexual abuse
- Work underground, underwater, at dangerous heights or unguarded heights of two meters and above, or in confined places
- Work with dangerous machinery, equipment tools, or which involves manual handling of transport of heavy loads
- Work in an unhealthy environment which expose children to hazardous processes, to temperatures, noise levels or vibrations damaging to health, to toxic, corrosive, poisonous, noxious, explosive, flammable and combustible substances of comp, to harmful biological agents, or to other dangerous chemicals including pharmaceuticals
- Work under particularly difficult conditions such as work for long hours or during the night or where the child is unreasonably confined to the premises of the employer
On the other hand, children under 15 years of age may be allowed to work only when the above conditions are not present plus the following additional conditions as stated in Republic Act No. 7610 as amended by Republic Act No. 7658:
- The child works directly under the sole responsibility of his parents or legal guardian who employs members of his family and provided the employment does not endanger his life, health, safety and morals, the employment does not impair the child's’ normal development, and the employer-parent/ legal guardian provides the child with the primary and/or secondary education prescribed by the Department of Education.
- Where the child’s employment or participation in public entertainment or information is through cinema, theater, radio or television is essential, aside from having his parent or legal guardian as direct/sole employer, the employment must not involve advertisements or commercial promoting of alcoholic beverages, intoxicating drinks, tobacco and its by products or exhibit violence. Finally, there should also be a written contract approved by the Department of Labor and Employment.
Once a child worker is legitimately employed, it shall be unlawful for employers to give them less pay and/or benefits merely on account of their minority.
Caveat: This is merely a general overview of our existing Labor-related rules. There are exceptions and limitations that may apply to each specific employer-environment.