Knowing the consequences of employment of children

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Published — July 13, 2018

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.

Read Also: Management Prerogative and Rights of Employers

Though selection and hiring of employees is a management prerogative, the exercise of such prerogative is necessarily limited by the pertinent provisions of law, and has to be be exercised in consonance with its provisions. Therefore, even though it is well within the rights of an employer to choose from among a pool of applicants as to who he may want to hire, the mandate of the law must always be taken into account when hiring children as employees.

The relations between the employer and the employee are not merely contractual. They are so impressed with public interest that labor contracts must yield to the common good [See: Art. 1700, Civil Code]. Considering that employment of children is subject to a stricter regulation, businesses enterprises employing children have to make sure that they comply with the conditions imposed by law.

Prohibition against child labor

D.O. No. 65-04 issued by the Department of Labor and Employment (“DOLE”) defines a child as any person under 18 years of age [See: Sec: 3(a)]. In this regard, child labor refers to any work or economic activity performed by a child that subjects him/her to any form of exploitation or is harmful to his/her health and safety, or to his/her physical, mental and psychological development [See: Sec: 3(b)].

The worst forms of child labor where absolutely no child shall be engaged refer to any of the following situations:

1. All forms of slavery or practice similar to slavery such as sale or trafficking of children, debt bondage and serfdom, and forced or compulsory labor, including recruitment of children for use in armed conflict;
2. The use, procuring, offering or exposing a child for prostitution, for the production of pornography, or for pornographic performances;
3. The use, procuring or offering a child for illegal or illicit activities including the production or trafficking of dangerous drugs or volatile substances prohibited under existing laws; or
4. Work which, by its nature or the circumstances in which it is carried out, is hazardous or likely to be harmful to the health, safety or morals of children [See: Sec. 5].

Also, no child shall be employed as a model in any advertisement directly or indirectly promoting alcoholic beverages, intoxicating drinks, tobacco and its byproducts, gambling or any form of violence or pornography [See: Sec. 6].

Under what circumstances may a child be employed?

By way of exception to the prohibition against employment of children, a child may nevertheless be employed if he is 15 to 18 years old, provided that the employment does not involve any job subjects or exposes the child to any form of exploitation, or anything that is harmful to the child’s health and safety, and should not be prejudicial to his physical, mental and psychological development.

Even a child below 15 years old may likewise be employed, provided that the employment must be under any of the following circumstances only:

1. The child must be working directly under the responsibility of the child’s parents or legal guardian, or where only members of the child’s family are employed; or
2. The child must be working in public entertainment or information [See: Sec. 3(c)]. Examples of this are child actors and actresses, or other children involved in artistic, literary and cultural performances for television, radio, film/cinema, theater, commercials or advertisements, public relation campaigns, print materials, internet and other media [See: Sec. 3(m)].

Conditions to be observed in employment of children

In such instances where employment of children may be allowed, such employment shall be strictly under the following conditions.

1. The employment does not endanger the child’s life, safety, health and morals, nor impair the child’s normal development, and
2. The child is provided with at least the mandatory elementary or secondary education [See: Sec. 7].

Hours of work for working children

For children below 15 years old – Work shall not be more than 20 hours a week, and not more than 4 hours on any given day. The child should not also be allowed to work beyond 8:00 PM until 6:00 AM of the following day.

For children 15 to 18 years old – Work shall not be more than 40 hours a day, and not more than 8 hours on any given day. The child should not also be allowed to work beyond 10:00 PM until 6:00 AM of the following day [See: Sec. 15].

Hours of work include (a) all time during which a child is required to be at a prescribed workplace, (2) all time during which a child is required or permitted to work. For those who are engaged in public entertainment or information, hours of work shall include wardrobe/costume fitting, make-up application, practice or rehearsal while in the workplace, including waiting time. Rest periods of short duration during work hours shall be counted as hours worked [See: 2.2., D.O. No. 2, Series of 2017].

When work permit is required

No child below 15 years old shall be allowed to work without a work permit. It is the employer’s responsibility to secure such work permit from the DOLE Regional Office of the place where the child would be working. In case the work is done in more than one workplace, then the permit shall be secured from the DOLE Regional Office where the employer’s principal office is located [See: Sec. 8]. This notwithstanding, no permit shall be required in employment of children who are 15 years old and above.

For children who are engaged in public entertainment or information, the working children below 15 years old, as a rule, still have to secure a permit. However, D.O. No. 2, Series of 2017 provides that such permit would not be required anymore if the child:

1. Is a mere spot extra, or is included in the cast on the day of filming or taping of the project;
2. Will join auditions or VTR screenings;
3. Is part of the audience of a live television show, unless the child’s participation is expected;
4. Is picked or chosen as a contestant from the audience of a live television show;
5. Is a contestant of a singing, dance or talent contest for a television show before being selected as a semi-finalist;
6. Is a recipient of gift-giving activities in television;
7. Is a participant in school-related performance such as play, skit or recital;
8. Is a participant in sports activities, trainings or workshops aimed at developing the child’s talent or skills [See: 1.2. D.O. No. 2, Series of 2017].

Considering that children are among those who are most vulnerable to being abused and exploited, it is understandable when the law gives them special protection by imposing strict conditions that must be observed in their employment, when allowed. Employment of children is generally prohibited, and thus, employers are discouraged to hire children, especially if grown men and women are ready, able and available to do the task at hand.

Alburo Alburo and Associates Law Offices specializes in business law and labor law consulting. For inquiries regarding management rights and employment conditions, you may reach us at info@alburolaw.com, or dial us at (02)7745-4391/0917-5772207.

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