Primer: IRR of Safe Spaces Act

Summary

▪ The Department of Labor and Employment (DOLE) has issued Department Order No. 130, Series of 2021 (“DO 230-21”).

▪ DO 230-21 provided guidelines on support for workers in the informal sector under the Safe Spaces Act and its Implementing Rules and Regulations.

1. Purpose

DO 230-21 (the “Guidelines”) carries this title/heading: “Guidelines on Support for Workers in the Informal Sector under Republic Act No. 11313, otherwise known as the “Safe Spaces Act” and its Implementing Rules and Regulations.”

The Guidelines provides the appropriate mechanisms and interventions, including redress mechanisms, in cases of gender-based sexual harassment in the workplace. (Section 1, Part I, DO 230-21)

2. Coverage

The Guidelines apply to the following:

1) Employees covered by Republic Act No. 10361, otherwise known as the “Domestic Workers Act” or “Batas Kasambahay”;

2) Those employed in the informal economy; and,

3) Those employed in establishments with ten or fewer employees. (Ibid.)

a. Terms

As used in the Guidelines:

Committee on Decorum and Investigation (CODI) – refers to an independent internal grievance mechanism that will act as the main body in the investigation and resolution of cases involving gender-based sexual harassment. (Section 2[a], Part I, Ibid.)

Domestic worker or “Kasambahay” – refers to any person engaged in domestic work within an employment relationship such as, but not limited to, the following: general househelp, nursemaid or “yaya”, cook, gardener, or laundry person, but shall exclude any person who performs domestic work only occasionally or sporadically and not on an occupational basis. (Section 2[b], Part I, Ibid.)

It shall not include children who are under foster family arrangement, and are provided access to education and given an allowance incidental to education, i.e. “baon“, transportation, school projects and school activities. (Paragraph 2, Section 2[b], Part I, Ibid.)

Employee – refers to a person, who in exchange for remuneration, agrees to perform specified services for another person, whether natural or juridical, and whether private or public, who exercises fundamen tal control over the work, regardless of the term or duration of agreement: Provided, that for the purpose of this Guidelines, a person who is detailed to an entity under a subcontracting or secondment agreement shall be considered an employee. (Section 2[c], Part I, Ibid.)

Employer – refers to a person who exercises control over an employee: Provided, that for the purpose of this Guidelines, the status or conditions of the latter’s employment or engagement shall be disregarded. (Section 2[d], Part I, Ibid.)

Establishment – refers to an economic unit which engages in one or predominantly one kind of economic activity at a single fixed location. (Section 2[e], Part I, Ibid.)

Gender-Based Sexual Harassment (GBSH) – refers to specific acts penalized by R.A. 11313 which may be committed either in the following:

1) Streets and public spaces;

2) Online;

3) Workplace; and,

4) Educational and training institutions. (Section 2[f], Part I, Ibid.)

Informal economy – refers to all economic activities by workers and economic units that are – in law or in practice – not covered or insufficiently covered by formal arrangements. (Section 2[g], Part I, Ibid.)

3. Support for Domestic Workers or Kasambahay

a. Employer’s duties

The employers of the kasambahay shall adopt the following measures to protect and prevent the commission of acts of GBSH against the kasambahay in the workplace:

1) Acquaint oneself, his/her family members, and the kasambahay on the salient features of RA 11313, its IRR, this Guidelines, and other relevant laws, issuances and local ordinances;

2) Include the following stipulations in the contract of employment of the kasambahay:

(a) The kasambahay shall be protected from GBSH in the workplace; and,

(b) The kasambahay shall be given access to internet connectivity as part of the right to access to outside communication; and,

3) Provide adequate assistance to the kasambahay, even if the act is committed by an individual other than the employer or members of the employers’ household, in filing the GBSH complaint/case to appropriate government agencies, such as the nearest Barangay Local Government Units (LGUs), Philippine National Police (PNP) Women’s Desk, Prosecutor’s Office and/or other appropriate government authorities. (Section 1, Part II, Ibid.)

b. PEA duties

The concerned Private Employment Agency shall adopt, as practicable, the following measures to prevent the commission of acts of GBSH against the kasambahay:

1) Provide brief orientation to the kasambahay as well as the employer on the salient features of RA 11313 and its IRR, as well as other pertinent laws, issuances, and local ordinances, in a language understood by the kasambahay and the employers;

2) Provide assistance to the kasambahay in filing the GBSH complaint to the appropriate government agencies, such as the nearest DOLE Field Office, Barangay LGUs, PNP Women’s Desk, Prosecutor’s Office and/or other appropriate government authorities, if the offender is the employer or any of the employer’s household members; and,

3) Require that the contract of employment between the employer and the kasambahay should include the following stipulations:

(a) The kasambahay shall be protected from GBSH in the workplace, and,

(b) The kasambahay shall be given access to internet connectivity as part of his or her right to access to outside communication. (Section 2, Part II, Ibid.)

3. DOLE assistance

The DOLE shall provide appropriate assistance in the filling of a GBSH complaint. It shall perform the following:

1) Assess whether the GBSH complaint is proper for the conduct of appropriate labor dispute mechanisms such as the Single-Entry Approach (SEnA) under the existing rules and regulations of the DOLE;

2) Assist the kasambahay in filing the Request for Assistance under the SEnA, as practicable; for purposes of claiming the unpaid/underpayment of wages and other labor-related disputes that might arise from the violation of RA 11313, its IRR, and this Guidelines;

3) Refer and assist the kasambahay in filing the GBSH case before the appropriate government authorities;

4) Recognize and make use, if applicable, of local mechanisms established through pertinent local ordinances or other similar mechanisms such as the Workers’

Assistance Desk and Barangay Kasambahay Desk; and,

5) Coordinate with the barangay where the kasambahay is working, whenever rescue operations is necessary, together with the local social welfare officer, in accordance with the Joint Memorandum Circular No. 2015-002 (Protocol on the Rescue and Rehabilitation of Abused Kasambahay Pursuant to RA 10361 entitled An Act Instituting Policies for the Protection and Welfare of Domestic Workers). (Section 3, Part II, Ibid.)

3. Support for workers in the informal economy

a. Filing and assistance on GBSH Complaint

Workers in the informal economy seeking assistance concerning GBSH acts committed against them shall be assisted by the DOLE in accordance with No. 5 hereunder. (Section 1, Part III, Ibid.)

4. Support for workers in establishments employing ten or fewer

a. Duties of Employers

In establishments employing ten or fewer employees, employers or other persons of authority, influence or moral ascendancy shall have the duty to prevent, deter, or punish the commission of acts of GBSH in the workplace. They shall perform, as practicable, the following:

1) Disseminate or post in a conspicuous place in the workplace a copy of RA 11313, its IRR, and this Guidelines;

2) Adopt measures to prevent GBSH in the workplace, such as the conduct of anti­ sexual harassment seminars and orientation on the salient features of RA 11313, its IRR, and this Guidelines;

3) Create an independent internal mechanism or a CODI to investigate and address GBSH complaints;

4) Carry out functions enumerated in Section 17(c) of RA 11313 and as further outlined in Section 33 of its IRR;

5) Develop and disseminate, in consultation with employees a code of conduct or workplace policy which shall:

(a) Expressly reiterate the prohibition on GBSH.

(b) Outline the procedures of the internal mechanism in investigating and addressing GBSH complaints.

(c) Set administrative penalties for the violation of the code of conduct or

workplace policy on GBSH.

6) Report confirmed instances of GBSH and coordinate with concerned government authorities and ensure that the victim-employee receives prompt and appropriate assistance. (Section 1, Part IV, Ibid.)

b. Inclusion of GBSH Code of Conduct or Workplace Policy in the establishment’s OSH Program

In relation to Section 12 of Department Order No. 198, Series of 20186 (DO 198-18), the establishment’s OSH Program shall also include its compliance to Section 1, Part IV of this Guidelines. (Section 2, Part IV, Ibid.)

c. Constitution of the Occupational Safety and Health Committee (OSH) as CODI

If the creation of an independent internal mechanism or CODI is not feasible, the establishment’s OSH Committee may serve as the CODI. As provided in Section 13{a) of DO 198-18, the OSH Committee shall be comprised of the following:

 Alternatively, for two (2) or more establishments situated in multi-tenant building or complex, a common CODI may be established and shall be composed as follows:

d. Filing of GBSH Complaint Before a CODI

The victim-employee is encouraged to file the GBSH complaint before the CODI of the establishment. (Section 4, Part IV, Ibid.)

The filing of the GBSH complaint and/or the consequent resolution of the CODI shall not preclude the victim-employee from filing the complaint before any appropriate government office. (Paragraph 2, Section 4, Part IV, Ibid.)

e. Conduct of Routine and Complaint Inspection

To ensure compliance of employers to RA 11313, its IRR, and this Guidelines, the DOLE shall conduct yearly spontaneous, random, and unannounced inspections pursuant to existing rules and regulations relative to Article 128, in relation to Article 303, of the Labor Code of the Philippines, as renumbered. (Section 5, Part IV, Ibid.)

Non-compliance of employers to Section 1, Part IV of this Guidelines shall be reported to DOLE. (Paragraph 2, Section 5, Part IV, Ibid.)

5. Common provisions

a. Filing of GBSH Complaints before a Government Office

GBSH complaints may be filed before any of the following government authorities having jurisdiction over the place where the alleged act of GBSH was committed:

1) DOLE Attached Agencies;

2) DOLE Regional, Provincial, Field, or Satellite Offices;

3) PNP Women and Children’s Desk;

4) Barangay Anti-Sexual Harassment (ASH) Desk, Kasambahay Desk, or other similar desks as established in the LGU;

5) Commission on Human Rights (CHR);

6) Public Attorney’s Office (PAO);

7) Provincial or City Prosecutor; or,

8) Other law enforcement agencies. (Section 1, Part V, Ibid.)

The complaint may likewise be filed directly with the aforementioned government authorities in the following cases:

1) The victim is a worker in the informal economy;

2) Absence of an independent internal mechanism, CODI, or OSH Committee in establishments employing not more than ten employees; or,

3) The offender is a member of the independent internal mechanism, CODI, or OSH Committee. (Paragraph 2, Section 1, Part V, Ibid.)

b. DOLE assistance to GBSH Complaints filed with the DOLE

Upon receipt of a GBSH complaint, the concerned DOLE office shall immediately perform the following:

1) Assist the victim by referring his/her complaint to the appropriate government authorities; and

2) Determine whether a conduct of complaint inspection under the existing rules

and regulations of the DOLE is appropriate. (Section 2, Part V, Ibid.)

c. Repository of data on GBSH Complaints in the DOLE

The Bureau of Workers with Special Concerns (BWSC) shall act as the repository of data on all GBSH complaints filed with and referred to the DOLE. (Section 3, Part V, Ibid.)

d. Confidentiality

At any stage of the investigation, prosecution and trial of an offense under RA 11313, the rights of the victim and the accused, especially involving a child, shall be recognized. (Section 4, Part V, Ibid.)

e. Reporting of cases involving children

The DOLE and the employer shall report to the Department of Social Welfare and Development (DSWD) within ninety (90) working days all GBSH complaints involving children. (Section 5, Part V, Ibid.)

f. Administrative sanction

Penalties provided under RA 11313 are without prejudice to any administrative sanction that may be imposed by the Secretary of Labor and Employment or his/her duly authorized representatives pursuant to Article 128 of the Labor Code, as amended, and other relevant laws. (Section 6, Part V, Ibid.)

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References

▪ DOLE Department Order No. 230, Series of 2021