Knowing more about labor law compliance inspections

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Published — April 14, 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.

Related Article: Employer’s Guide on the Minimum Terms and Conditions of Employment

The Constitution mandates that the State shall afford full protection to labor and ensure that the workers shall be entitled to security of tenure, humane conditions of work and just living wages. To pursue this, the Secretary of Labor and Employment under the Labor Code exercises visitorial and enforcement power over workplaces and worksites, to monitor compliance of establishments with labor standards that are intended to protect workers from hazards in the workplace, and promote their welfare by ensuring safe and healthy work environment [Explanatory Note to HB 4659].

With this, D.O. No. 183 was promulgated to further strengthen the implementation of the visitorial and enforcement powers under the Labor Code towards securing a higher level of compliance with labor laws and standards, and ensuring continuity and sustainability of compliance at workplaces.

Modes of implementation

The visitorial power of the Secretary of Labor, or his duly authorized representatives (e.g. Regional Director, Labor Inspectors, etc.), shall be implemented through any of the following:

1. Routine inspection
2. Complaint inspection
3. Occupational safety and health standards investigation [Rule III, Sec. 1]

The implementation of inspection programs and activities and the performance of labor inspectors shall be periodically reviewed by the Audit Team constituted as such by the Secretary of Labor and Employment [Rule III, Sec. 7].

Routine inspections

In the conduct of routine inspection, the priority establishments and workplaces shall be those engaged in hazardous work, those employing children, those engaged in contracting and subcontracting arrangements, those employing 10 or more employees, and such other establishments or industries as may be determined by the Secretary of Labor as priority for routine inspection [Rule V, Sec. 2]. Thus, even without any complaint being filed against the establishment, as long as it is classified as a “priority establishment”, a routine inspection may be conducted.

Complaint inspections

Complaint inspection shall be undertaken when there is SENA referral, when there is an anonymous complaint, or where there is a request in a conciliation-mediation proceedings at the National Conciliation and Mediation Board to verify violation of labor standards [Rule VI, Sec. 1]. In short, these complaint inspections are triggered when there are complaints filed against the establishment, even though it may not be considered to fall among the priority establishments.

Procedure for both routine and complaint inspections

To begin with, the Regional Director shall issue to the Labor Inspector an authority to inspect, specifying the establishment, including its contracts, which shall be presented to the establishment to be inspected [Rule V, Sec. 3(a & b); Rule VI, Sec. 2(a & b)]. Be sure to look for that authority, because without which, no inspection can be valid.

In the presence of the representatives of the employer, the Labor Inspector shall examine employment records, interview employees, and inspect work premises to determine compliance with labor laws and social legislation [Rule V, Sec. 3(c); Rule VI, Sec. 2(c)]. If the establishment is found to be compliant, the Labor Inspector shall issue a Notice of Results to the representatives of the employer, indicating therein the fact that the establishment is compliant with labor laws and social legislation. Such establishments, however, shall be subject to random validation by the concerned Regional Office [Rule V, Sec. 3(d.1); Rule VI, Sec. 2(d.1)]. On the other hand, regarding non-compliant establishments, the Labor Inspector shall issue a Notice of Results to the representatives of the employer indicating therein the noted violations [Rule V, Sec. 3(d.2); Rule VI, Sec. 2(d.2)].

In both cases, the contents of the Notice of Results shall be explained by the Labor Inspector to the employer representatives, who shall thereafter affix their respective signatures therein to signify their acknowledgment of the inspection findings. Any representative who disagrees with the findings may note his comment on the Notice of Results before affixing his signature [Ibid]. All inspected establishments with noted violations are required to institute their respective corrective actions within given prescribed periods [Rule V, Sec. 3(e); Rule VI, Sec. 2(e)].

Occupational safety and health standards investigations

The occupational safety and health (OSH) standards investigations are conducted to cover existence of imminent danger, dangerous occurrences, accident resulting in disabling injury, or OSH violations committed in plain view or in the presence of the Labor Inspector [Rule VII, Sec. 1].

In case of imminent danger situations or dangerous occurrences, the Regional Director shall direct the Labor Inspector to conduct inspection within 24 hours from receipt of information on the existence of imminent danger or dangerous occurrence [Rule VII, Sec. 2(a)]. The Inspector shall then recommend the necessary corrective action to immediately abate the danger [Rule VII, Sec. 2(b.2)]. If not abated within 24 hours, then a Notice of Results will be issued with a recommendation for a Work Stoppage Order within 24 hours from employer’s failure to abate the imminent danger [Rule VII, Sec. 2(b.3)].

Work stoppage order

The Secretary of Labor or his representative such as the Regional Director may direct to stop, wholly or partly, the work or operation of any unit of an establishment when non-compliance with OSH standards poses imminent danger to the health and safety of the employees in the workplace. Under exceptional circumstances, the Labor Secretary may even issue an industry-wide Work Stoppage Order [Rule VIII, Sec. 1].

Upon receipt of proof and certification from the safety officer of the employer or DOLE-accredited practitioner that the cause of the imminent danger has been abated, the Regional Director shall issue an order lifting the Work Stoppage Order, with his directive of whether the employer shall pay monetary benefits to employees if found that the accident was due to his fault [Rule VII, Sec. 3].

Failure to correct violations

In case of failure to correct the violations found during the inspection, the following shall be undertaken:

1. General labor standards violation – The violations are to be docketed as a labor standards case, which may lead to monetary award to employees.
2. Contracting or subcontracting rules – Mandatory conference will be set, usually for purposes of hearing whether there is labor-only contracting that would cause the employer to absorb the contractor’s employees as his own, and to cancel the contractor’s registration.
3. Occupational Safety and Health Standards – A compliance order will be issued where the employer will be directed to pay employees monetary award, or even the issuance of a Work Stoppage Order in unabated imminent danger situations [Rule V, Sec. 3(i.3)].

In view of the foregoing, it is clear that the Department of Labor can flex its muscle to make sure that establishments are compliant with what our labor laws provide. This makes it crucial for employers to have an idea on what to expect once DOLE visits them for inspections, so that they will be well equipped to handle the situation better.

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

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