Published — February 6, 2019
The following post does not create a lawyer-client relationship between Alburo Alburo and Associates Law Offices (or any of its lawyers) and the reader. It is still best for you to engage the services of your own lawyer to address your legal concerns, if any.
Also, the matters contained in the following were written in accordance with the law, rules, and jurisprudence prevailing at the time of writing and posting, and do not include any future developments on the subject matter under discussion.
Related article: Employer’s Guide on the Minimum Terms and Conditions of Employment
The employment of Night Workers is now governed by Republic Act No. 10151 also known as “An Act Allowing the Employment of Night Workers, thereby repealing Articles 130 and 131 of Presidential Decree Number 442 otherwise known as The Labor Code of the Philippines”.
Coverage
The law on night workers 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, to be determined by the Secretary of Labor and Employment, after consulting the workers’ representatives/labor organizations and employers (Article 154, par.1 of the Labor Code, as amended by R.A. No. 10151).
Night workers defined
“Night worker” means any employed person whose work covers the period from 10 o’clock in the evening to 6 o’clock the following morning provided that the worker performs not less than seven (7) consecutive hours of work (Article 154, par.2 of the Labor Code, as amended by R.A. No. 10151).
Workers can demand a free health assessment
As provided for in Article 155 of the Labor Code, as amended by R.A. No. 10151:
“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”.
Mandatory Facilities
The following facilities as provided for in Section 4 of Department Order 119-12 (Rules Implementing Republic Act No. 10151), should be made available for workers performing night work which include the following:
- Suitable first-aid and emergency facilities as provided for under Rule 1960 (Occupational Health Services) of the Occupational Safety and Health Standards (OSHS);
- Lactation station in required companies pursuant to Republic Act No., 10028 (The Expanded Breastfeeding Promotion Act of 2009);
- Separate toilet facilities for men and women;
- Facility for eating and potable drinking water; and
- Facilities for transportation and/or properly ventilated temporary sleeping or resting quarters, separate for male and female workers, shall be provided except where any of the following circumstances is present:
- Where there is an existing company guideline, policy or practice, collective bargaining agreement (CBA) or similar agreement between management and workers providing for an equivalent or superior benefit;
- Where the start or end of the night work does not fall within 12 in the midnight to 5 o’clock in the morning; or
- Where the workplace is located in an area that is accessible twenty four (24) hours to public transportation;
- Where the number of employees does not exceed the specified number as may be provided for by the Secretary of Labor and Employment in subsequent issuances.
Transfer Due to Unfitness for Work for Health Reasons
Article 157 of the Labor Code of the Philippines, as amended by R.A. No. 10151 provides 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.
“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.”
Women Night Workers; Alternative to Night Work for Pregnant and Nursing Employees
Measures shall be taken to ensure that an alternative to night work is available to women workers, pregnant and nursing employees, who would otherwise be called upon to perform such work:
She may be transferred to a day 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 of assignment to day work, pregnant women and nursing mothers may be allowed to work but a medical certificate is required stating the limits to additional periods which are necessary for the health of the mother or child.
It is important to note that 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.
Also, there should be no diminution of benefits of a woman worker particularly as to her status, seniority, and access to promotion which may attach to her regular night work position, those relating to provision of social security benefits or the protection and benefits connected with maternity leave under existing laws (Article 158 of the Labor Code, as amended by R.A. No. 10151).
Night Work Schedules
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 (Article 154, par.2 of the Labor Code, as amended by R.A. No. 10151).
Penalty for Violation of R.A. No. 10151
Section 8 of R.A. No. 10151 provides for the penalties for violation of said Act involving night Workers which states that:
“Any violation of this Act, and the rules and regulations issued pursuant hereof 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 at 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”.
Alburo Alburo and Associates Law Offices specializes in business law and labor law consulting. For inquiries, you may reach us at info@alburolaw.com, or dial us at (02)7745-4391/0917-5772207.
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