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What is visitorial and enforcement power of the Secretary of Labor and Employment?

 

            These two complementary powers to administer and to enforce the law are conferred by the Labor Code of the Philippines, as amended, on the Secretary of Labor and Employment or his duly authorized representatives, i. e., the DOLE Regional Directors.

            The visitorial grants to said DOLE officials, including labor and employment  officers, access to employer's records and premises at any time of the day or night whenever work is being undertaken therein, and the right to copy there from such records, to question any employee and investigate any fact, condition or matter which may be necessary to determine violations or which may aid in the enforcement of the Labor Code and of any labor law, wage order or rules and regulations issued pursuant thereto (Art. 128 (a).

            The enforcement power  to issue compliance orders to give effect to the labor standards provisions of the Labor Code and other labor legislation based on the findings of labor and  employment officers or industrial safety engineers made in the course of inspection, and to issue writs of execution to the appropriate authority for the enforcement of their orders, except in cases where the employer contests the findings of the labor and employment  officers and raises issues supported by documentary proofs which were not considered in the course of inspection." (Art. 128 (b).

 

What is Labor Standards?

 

             LABOR STANDARDS refer to the minimum requirements prescribed by existing laws, rules and regulations relating to wages, hours of work, cost of living allowance and other monetary and welfare benefits, including occupational, safety and health standards.

 

How does one initiate a complaint for violations of labor standards laws, rules and regulations?

 

            If employer-employee relationship still exists, any aggrieved employee may file a complaint, regardless of the amount of monetary claims, before the DOLE regional office, or its provincial field offices, which has territorial jurisdiction over the workplace.

            On the other hand, if employer-employee no longer exists, either:

1.      before the DOLE regional office, provided, that the claim involves recovery of wages and other monetary claims and benefits, including legal interest, provided further, the following requisites are present: a) the claim is presented by an employee, or a person employed in domestic or household service, or house helper; b) the claim arise from employer-employee relations; c) the claimant does not seek reinstatement; and d) the aggregate money claim of each claimant does not exceed P5,000.00; or

2.      before the Regional Arbitration Branch of the National Labor Relations Commission, in the absence of any of the above enumerated requisites pursuant to Article 217 of the Labor Code, except claims for employees’ compensation, social security, medicare and maternity benefits.

 

What happens after the filing of a complaint before the DOLE regional office?

 

            All such complaints for violation of labor standards law, rules and regulations, including safety and health, shall immediately be forwarded to the Regional Director who shall refer the case to the appropriate unit in the Regional Office for assignment to a Labor and Employment Officer (LEO) for field inspection (Section 2, Rule II of the Rules on the Disposition of Labor Standards Cases in the Regional Offices). 

 

What is a Notice of Inspection Results?

 

            A "Notice of Inspection Results" refers to the inspection form duly accomplished and issued by the labor and employment officers or industrial safety engineers to the employer/s or any representative/s and the employee/s or any representative/s after the completion of the inspection. The notice shall specify the violations discovered, if any, together with the officers recommendation and computation of the unpaid benefits due each worker with notifications that said notice shall be posted conspicuously in the premises of the workplace, and removal thereof by the employer or by any of the workers shall be penalized in accordance with Article 288 of the Labor Code, as amended and that any question on the noted findings shall be submitted to the regional office concerned within five (5) working days from receipt thereof, otherwise an order of compliance shall be issued.

 

When can plant-level restitution be effected?

 

            Where the employer has agreed to make the necessary restitutions of violations discovered in the course of inspection, such restitutions may be effected at the plant-level within five (5) calendar days from receipt of the inspection results by the employer or his authorized representative.

            Plant-level restitutions may be effected for money claims not exceeding Fifty Thousand Pesos (P50,000.00). A report of the restitutions shall be immediately submitted to the Regional Director for verification and confirmation. In case the Regional Director finds that the restitutions effected at the plant-level are not in order, he may direct the TSSD Chief to check the correctness of the restitution report.

            Restitutions in excess of the aforementioned amount shall be effected at the Regional Office or at the worksite subject to the prior approval of the Regional Director. (Section 7, Rule II of the Rules on the Disposition of Labor Standards Cases in the Regional Offices)

 

What is a valid compromise agreement/ release, waiver, or quitclaim?

 

            Should the parties arrive at an agreement as to the whole or part of the dispute, said agreement shall be reduced in writing and signed by the parties in the presence of the Regional Director or his duly authorized representative (Section 8, Rule II of the Rules on the Disposition of Labor Standards Cases in the Regional Offices).

            The law looks with disfavor on releases, waivers, and quitclaims by employees who have been inveigled or pressured into signing them by unscrupulous employers seeking to evade their legal responsibilities and frustrate just claims of employees. However, in certain cases, the same is given effect if the employer is able to prove the following requisites, to wit: (1) the employee executes a deed of quitclaim voluntarily; (2) there is no fraud or deceit on the part of any of the parties; (3) the consideration of the quitclaim is credible and reasonable; and (4) the contract is not contrary to law, public order, public policy, morals or good customs, or prejudicial to a third person with a right recognized by law.

 

When should hearing be conducted?

 

            Where no proof of compliance is submitted by the employer after seven (7) calendar days from receipt of the inspection results, the Regional Director shall summon the employer and the complainants to a summary investigation. In regular routine inspection cases, however, such investigation shall be conducted where no complete field investigation can be made for reasons attributable to the fault of the employer or his representatives, such as those but not limited to instances when the field inspectors are denied access to the premises, employment records, or workers of the employer (Section 11, Rule II of the Rules on the Disposition of Labor Standards Cases in the Regional Offices).

 

When should a compliance order be issued?

 

            If the Regional Director finds after hearing that violations have been committed, he shall issue an Order directing the employer to restitute other corrective measures within ten (10) calendar days upon receipt of the Order and to submit proof of compliance. The Order shall specify the amount due each worker and shall include the computations on which the Order was based (Section 18, Rule II of the Rules on the Disposition of Labor Standards Cases in the Regional Offices).

How to assail a compliance order issued by the Regional Director?

 

            The aggrieved party may assail the order of the Regional Director by filing a motion for reconsideration or an appeal pursuant to the Rules on the Disposition of Labor Standards Cases in the Regional Offices.

            A motion for reconsideration from the Order of the Regional Director is filed within seven (7) calendar days from receipt of a copy thereof. A motion for reconsideration filed beyond the seven-day reglementary period shall be treated as an appeal if filed within the ten-day reglementary period for appeal, but subject to the requirements for the perfection of an appeal. Further, no second motion for reconsideration shall be entertained (Section 19, Rule II of the Rules on the Disposition of Labor Standards Cases in the Regional Offices).

            An appeal from the Order/Resolution of the Regional Director shall be filed within ten (10) calendar days from receipt thereof; otherwise, the same shall be rendered final and executory.

 

Where to file an appeal?

 

            The appeal shall be filed in five (5) legibly typewritten copies with the Regional Office which issued the Order. The appeal shall not be deemed perfected if it is filed with any other office or entity (Section 3, Rule IV of the Rules on the Disposition of Labor Standards Cases in the Regional Offices).

 

What are the requirements for filing an appeal?

 

            The appeal shall be filed within ten (10) calendar days from receipt of a copy of the assailed order/resolution and subject to the following mandatory requirements:

a)      It shall be under oath and accompanied by a memorandum of appeal which shall state the date appellant received the Order/Resolution, and the grounds relied upon and the arguments in support thereof (Section 4(a), Rule IV of the Rules on the Disposition of Labor Standards Cases in the Regional Offices).

b)      In case said Order/Resolution involves a monetary award, an appeal by the employer may be perfected only upon the posting of a cash or surety bond issued by a reputable bonding company duly accredited by the Secretary of Labor and Employment in the amount equivalent to the monetary award in the order/resolution appealed from (Article 128 (b) of the Labor Code of the Philippines, as amended by Republic Act No. 7730). No motion for the reduction of appeal bond is  allowed under the Rules.

 

What is Labor Standards Enforcement Framework (LSEF)?

 

            To remedy severe shortage of labor inspectors and to build a culture of compliance among employers based on voluntariness instead of compulsion, the Department of Labor and Employment issued Department Order No. 57-04, also called the Labor Standards Enforcement Framework (LSEF) which involves three approaches: 1) self-assessment; 2) inspection; and 3) advisory service. Also, under D.O. No. 57-04, the DOLE may delegate to local government units the conduct of technical safety inspection required under Article 165 of the Labor Code.

 

What is Self-assessment approach?

 

            Self-assessment is a voluntary mode applicable to and encouraged in establishments with at least 200 workers and is unionized establishments with certified collective bargaining agreement, regardless of the number of workers. The employers of these establishments will be provided with a checklist in the first quarter of every year. Within a month after receipt of such checklist, a committee composed of the employer and the employee representatives shall accomplish the same which shall be submitted to the concerned DOLE regional office not later than five (5) days from assessment.

 

What is a training and inspection approach?

 

            An inspection approach is the conduct of inspection in all workplaces with 10-199 workers which shall be undertaken by labor inspectors based on the following inspection priorities:

1.      Existence of complaints, imminent danger or imminent occurrence of accidents and illnesses/injuries;

2.      Highly hazardous and hazardous workplaces;

3.      Construction sites; and

4.      Establishments employing women/child workers.

 

What is an advisory service approach?

 

            This approach shall be undertaken in workplaces with less than 10 workers and those registered as barangay micro-business enterprises (BMBEs). The conduct of training and advisory visits (TAVs) by the DOLE regional offices is designed to assist small and micro establishments to improve their productivity, thereby facilitating their eventual compliance with labor standards.