16th Apr 2013

night work

Under the old Labor Code, women were prohibited from engaging in night work. As such, Article 130 of the Labor Code provides:

Art. 130. Nightwork prohibition. No woman, regardless of age, shall be employed or permitted or suffered to work, with or without compensation:
a. In any industrial undertaking or branch thereof between ten o’clock at night and six o’clock in the morning of the following day; or

b. In any commercial or non-industrial undertaking or branch thereof, other than agricultural, between midnight and six o’clock in the morning of the following day; or

c. In any agricultural undertaking at nighttime unless she is given a period of rest of not less than nine (9) consecutive hours.

However, there are exceptions to the said rule. Article 131 of the Labor Code enunciates that the prohibition shall not apply in any of the following cases:

a. In cases of actual or impending emergencies caused by serious accident, fire, flood, typhoon, earthquake, epidemic or other disasters or calamity, to prevent loss of life or property, or in cases of force majeure or imminent danger to public safety;

b. In case of urgent work to be performed on machineries, equipment or installation, to avoid serious loss which the employer would otherwise suffer;

c. Where the work is necessary to prevent serious loss of perishable goods;

d. Where the woman employee holds a responsible position of managerial or technical nature, or where the woman employee has been engaged to provide health and welfare services;

e. Where the nature of the work requires the manual skill and dexterity of women workers and the same cannot be performed with equal efficiency by male workers;

f. Where the women employees are immediate members of the family operating the establishment or undertaking; and

g. Under other analogous cases exempted by the Secretary of Labor and Employment in appropriate regulations.

The aforementioned provisions of the Labor Code seemingly undermine gender equality and deprive women of equal opportunities of employment. Recognizing this reality, the Philippine Legislature passed on 21 June 2011 Republic Act No. 10151, “An Act Allowing The Employment Of Night Workers, Thereby Repealing Articles 130 And 131 Of The Labor Code”.

It must be emphasized that RA 10151 repealed Articles 130 and 131 of the Labor Code. Thus, the law as it stands, allow women to work at night. Nonetheless, measures shall be taken to ensure that an alternative to night work is available to women workers who would otherwise be called upon to perform such work:

(a) Before and after childbirth, for a period of at least sixteen (16) weeks, which shall be divided between the time before and after childbirth;
(b) For additional periods, in respect of which a medical certificate is produced stating that said additional periods are necessary for the health of the mother or child:
(1) During pregnancy;
(2) During a specified time beyond the period, after childbirth is fixed pursuant to subparagraph (a) above, the length of which shall be determined by the DOLE after consulting the labor organizations and employers.

During the aforementioned periods, a woman worker shall not be dismissed or given notice of dismissal, except for just or authorized causes provided for in the Labor Code that are not connected with pregnancy, childbirth and childcare responsibilities. Furthermore, a woman worker shall not lose the benefits regarding her status, seniority, and access to promotion which may attach to her regular night work position.

Pregnant women and nursing mothers may be allowed to work at night only if a competent physician, other than the company physician, shall certify their fitness to render night work, and specify, in the ease of pregnant employees, the period of the pregnancy that they can safely work.

RA 10151 does not only emasculate women’s rights but also expands the benefits for all night workers. Thus, RA 10151 applies to all persons, who shall be employed or permitted or suffered to work at night, except those employed in agriculture, stock raising, fishing, maritime transport and inland navigation, during a period of not less than seven (7) consecutive hours, including the interval from midnight to five o’clock in the morning. It imposes additional obligations to employers with regard to night workers.

In fact, at their request, workers shall have the right to undergo a health assessment without charge and to receive advice on how to reduce or avoid health problems associated with their work:

(a) Before taking up an assignment as a night worker;
(b) At regular intervals during such an assignment; and
(c) If they experience health problems during such an assignment which are not caused by factors other than the performance of night work.

With the exception of a finding of unfitness for night work, the findings of such assessments shall not be transmitted to others without the workers’ consent and shall not be used to their detriment.

Furthermore, the employer is obliged to make available for their night workers, suitable first-aid facilities, including arrangements where such workers, where necessary, can be taken immediately to a place for appropriate treatment. In addition, employers are mandated to provide safe and healthful working conditions and adequate or reasonable facilities such as sleeping or resting quarters in the establishment and transportation from the work premises to the nearest point of their residence subject to exceptions and guidelines to be provided by the DOLE. Moreover, appropriate social services shall be provided for night workers.

RA 10151 further enunciates that night workers who are certified as unfit for night work, due to health reasons, shall be transferred, whenever practicable, to a similar job for which they are fit to work.

However, if such transfer to a similar job is not practicable, these workers shall be granted the same benefits as other workers who are unable to work, or to secure employment during such period.

A night worker certified as temporarily unfit for night work shall be given the same protection against dismissal or notice of dismissal as other workers who are prevented from working for reasons of health.

Before introducing work schedules requiring the services of night workers, the employer shall consult the workers’ representatives or labor organizations concerned on the details of such schedules and the forms of organization of night work that are best adapted to the establishment and its personnel, as well as on the occupational health measures and social services which are required. In establishments employing night workers, consultation shall take place regularly.

It must be emphasized that violation of RA 10151 is a criminal offense. Violators shall be punished with a fine of not less than Thirty thousand pesos (P30,000.00) nor more than Fifty thousand pesos (P50,000.00) or imprisonment of not less than six (6) months, or both, at the discretion of the court. If the offense is committed by a corporation, trust, firm, partnership or association, or other entity, the penalty shall be imposed upon the guilty officer or officers of such corporation, trust, firm, partnership or association, or entity.

Nicolas & De Vega Law Offices is a full service law firm in the Philippines. You may visit us at the 16th Flr., Suite 1607 AIC Burgundy Empire Tower, ADB Ave., Ortigas Center, 1605 Pasig City, Metro Manila, Philippines. You may also call us at +632 4706126+632 4706130+632 4016392.

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