New rules on night work

Finally, after 37 long years, the Labor Code of the Philippines, which was originally issued as Presidential Decree No. 442 during the martial law years, has been amended to meet the demands of 24/7 operations in the business community.

With the recent enactment into law of Republic Act No. 10151, the prohibition on women from working in industrial companies between 10 p.m. and 6 a.m. of the following day, and between midnight and 6 a.m. of the following day in commercial companies, has been lifted.

The erstwhile restriction on work hours was aimed at protecting the health of the so-called “weaker sex” and averting security risks in reporting for work late at night.

The ban, however, did not apply if the women’s services were needed to prevent loss of life or property, avoid serious damage to facilities or goods, or if they were engaged in health and welfare services.

Interestingly, women who held responsible management and technical positions were also excused.

The relaxation of the prohibition to meet the exigencies of the business is understandable. All hands have to be on deck, regardless of gender, when lives or properties are in danger.

But the inclusion of women who hold managerial or technical positions in the exemption hardly makes sense. They are as exposed to the perils of health and safety like the rest of their fellow women employees when they work late.

Employment

Under the new law, the rules on nighttime work are gender neutral. They focus instead on the health of employees who are permitted or made to work during the graveyard shift.

Night worker is defined as “any employed person whose work requires performance of a substantial number of hour of night work which exceeds a specified limit,” which shall be determined by the secretary of labor after consultations with labor organizations and employers.

The definition excludes those employed in agriculture, stock raising, fishing, maritime transport and inland navigation, during a period of not less than seven consecutive hours, including the interval from midnight to 5 a.m. of the following day.

The covered workers shall have the right, upon their request, to undergo a health assessment without charge and to receive advice on how to reduce or avoid the health problems associated with their work.

The health review may be conducted before the start of night work, at regular intervals during such work, and any time they experience health problems related to their work hours.

To promote the well-being of the workers, employers are required to provide them with safe and healthful working conditions, and adequate or reasonable sleeping or resting quarters.

Aware of the dangers that lurk late at night or in the early morning hours, employers have to provide them also with transportation from work to the nearest point of their residence, subject to the guidelines to be set by the Department of Labor.

Adjustments

Night workers who have been diagnosed and certified to be unfit for night work due to health reasons should be transferred by the employer, whenever practicable, to similar jobs to which they are fit to work.

In case similar jobs are unavailable, these workers have to be given the same benefits as other workers who are unable to work or secure employment during their period of inactivity.

Although meant to be gender neutral, certain concessions are nonetheless given to women workers when motherhood beckons.

Pregnant women and nursing mothers may be allowed to engage in night work only if a competent physician, other than the company physician, certifies to their fitness for such kind of work; in the case of pregnant employees, the certification should include the period that they can safely work.

In addition, employers must give women workers an alternative to night work before and after childbirth for a period of at least 16 weeks which shall be divided between the time before and after childbirth.

That period shall be extended if she can prove, by way of a medical certificate, that the extension is necessary for her and her baby’s health while she’s pregnant or after giving birth.

And while enjoying this benefit, she cannot be dismissed or served a notice of dismissal except for just and authorized causes that have no connection to pregnancy, childbirth and child care responsibilities.

Compensation

How much a worker should be paid for services during the graveyard shift is left to the employer’s discretion. The law simply says that “the compensation for night workers in the form of working time, pay or similar benefits shall recognize the exceptional nature of night work.”

This open-ended statement brings to the fore the night shift differential pay (equivalent to at least 10 percent of a worker’s hourly rate) that the Labor Code requires to be paid for work performed between 10 p.m. and 6 a.m. of the following day.

The add-on to the regular pay is meant to compensate the worker for the rest or sleep he had to give up to be able to work at night.

By giving the employer the discretion to determine the compensation for night work, does it mean the provision on night shift differential pay has been impliedly repealed or set aside?

Will there be no distinction anymore between day and night work as far as hourly rates are concerned? How will holiday pay be computed if the night work hours straddle a holiday? What is the effect of the law on collective bargaining agreements that provide for additional pay for night work?

These and other ticklish compensation issues have to be addressed by the Department of Labor and Employment when it draws up the appropriate guidelines to implement the law.

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