Congress recently passed Republic Act No. 10151, signed into law by President Benigno Aquino on 21 June 2011, allowing the employment of night workers, including women. Here’s a primer on the Employment of Night Workers.
What is the effect of R.A. 10151 on the Labor Code?
Women were generally not allowed work during night time. This was the rule before the enactment of Republic Act No. 10151. Article 130 of the Labor Code (Presidential Decree No. 442) contains the general prohibition while Article 131 spells out the exceptions. R.A. 10151 amends the Labor Code by repealing Articles 130 and 131 thereof (under Book III [Conditions of Employment]). In short, there is no longer any need to determine if a particular industry or a particular scenario is covered by the general rule or the exception. Women are now allowed to perform night work, one of the amendments introduced under R.A. 10151.
Who are “night workers”?
A “night worker” refers to any employed person whose work requires performance of a substantial number of hours of night work which exceeds a specified limit. This limit shall be fixed by the Secretary of Labor after consulting the workers’ representatives/labor organizations and employers.
What is the coverage of the amendments introduced under R.A. 10151?
The amendments shall apply 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, to be determined by the Secretary of Labor and Employment, after consulting the workers’ representatives/labor organizations and employers.
Can workers demand a free health assessment before undergoing night work?
Yes. Workers, at their request, 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:
- Before taking up an assignment as a night worker;
- At regular intervals during such an assignment; and
- 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.
What happens to employees who are unfit for night work?
When transfer to similar job practicable. 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.
When transfer not practicable. 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.
Temporary unfitness. 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.
Can women be employed as night workers?
Yes. However, 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:
- Before and after childbirth, for a period of at least sixteen (16) weeks, which shall be divided between the time before and after childbirth;
- 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: (a) During pregnancy; and (b) 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 periods mentioned above:
- 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.
- 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 he 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.
The measures to ensure an alternative to night work for women workers may include transfer to day work where this is possible, the provision of social security benefits or an extension of maternity leave.
Nothing in these provisions shall not have the effect of reducing the protection and benefits connected with maternity leave under existing laws.
What are the factors to be considered in fixing the salary for night workers?
The compensation for night workers in the form of working time, pay or similar benefits shall recognize the exceptional nature of night work.
How does the employer fix the night work schedule?
Before introducing work schedules requiring the services of night workers, the employer shall consult the workers’ representatives/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.
What are the mandatory facilities required from employers?
First aid. These are suitable first-aid facilities that shall be made available for workers performing night work, including arrangements where such workers, where necessary, can be taken immediately to a place for appropriate treatment. The employers are likewise required 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.
Social services. Appropriate social services shall be provided for night workers and, where necessary, for workers performing night work.
When must the measures implemented?
The measures referred to in this chapter shall be applied not later than six (6) months from the effectivity of R.A. 10151. This law becomes effective after fifteen (15) days following its publication in two (2) national newspapers of general circulation.
What are the imposable penalties in case of violations?
Any violation of R.A. 10151 and its Implementing Rules and Regulations shall be punished with a fine of not less than Thirty Thousand Pesos (PhP30,000) nor more than Fifty Thousand Pesos (PhP50,000) 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.