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Labor - VIII - . Week 7 - Working Conditions for Special Group of Workers,…

- - - - Law on its face equal. But, implemented disparate impact. (Starpaper v. Simbol)
        
        There, no marriage between co-workers. Application hit women worse.
        
        Test for discrimination in Disparate Impact - Rational Basis test for discrimination as per Starpaper v. Simbol.
        
        To justify a bona fide occupational qualification, the employer must prove two factors: (1) that the employment qualification is reasonably related to the essential operation of the job involved; and, (2) that there is a factual basis for believing that all or substantially all persons meeting the qualification would be unable to properly perform the duties of the job
      - Disparate Treatment - plaintiff must prove that the employment policy is discriminatory on its face. (Starpaper v. Simbol)
  - - - XIII SECTION 14. The State shall protect working women by providing safe and healthful working conditions, taking into account their maternal functions, and such facilities and opportunities that will enhance their welfare and enable them to realize their full potential in the service of the nation.
        
        RA 9710 SECTION 2. Declaration of Policy. — Recognizing that the economic, political, and sociocultural realities affect women’s current condition, the State affirms the role of women in nation building and ensures the substantive equality of women and men. It shall promote empowerment of women and pursue equal opportunities for women and men and ensure equal access to resources and to development results and outcome. Further, the State realizes that equality of men and women entails the abolition of the unequal structures and practices that perpetuate discrimination and inequality. To realize this, the State shall endeavor to develop plans, policies, programs, measures, and mechanisms to address discrimination and inequality in the economic, political, social, and cultural life of women and men.
        
        Par. 2 - The State condemns discrimination against women in all its forms and pursues by all appropriate means and without delay the policy of eliminating discrimination against women in keeping with the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and other international instruments consistent with Philippine law. The State shall accord women the rights, protection, and opportunities available to every member of society.
  - - - CEWDA - treaty obligation, more recent than ILO. There, bound to repeal all discriminatory laws. This covers nightwork laws preventing women from working.
        
        ILO 171 - repealed ILO 89, allowed nightwork. ILO 171 incorporated in current RA 10151
        
        Repealed LC 130-131 which prevented nightwork for women.
        
        Protection for Pregnant and Nursing - Pregnant women and nursing mothers may be allowed to work at night only if a competent physician, other than the company physician, shall certify their fitness to render night work, and specify, in the case of pregnant employees, the period of the pregnancy that they can safely work.
        
        Transfer Period Before and after childbirth. Covering (16) weeks. Additional periods for daywork given pending certification by doctor. (Not public)
        
        Maternity Leave - If no transfer, maternity leave extended using earned leave credits.
        
        Allowances - if they continue nightshift, allowances are given.
        
        ARTICLE 158. Women Night Workers. — Measures shall be taken to ensure that an alternative to night work is available to women workers who would otherwise be called upon to perform such 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, in respect of which a medical certificate is produced stating that said additional periods are necessary for the health of the mother or child
        A. During pregnancy
        B. During a specified time beyond the period after childbirth is fixed pursuant to subparagraph (a) above, the length of which shall be determined by the DOLE after consulting the labor organizations and employers.
        
        Covers persons working not less than (7) hours, including midnight up to 5AM
    - - Exception - Government and to government-owned or controlled corporations and employers of household helpers and persons in their personal service insofar as such workers are concerned
        
        WOMEN - Only Pregnant and Nursing Women.
  - - - Stipulation Against Marriage
        
        Discharge
        
        Employment Benefits
        
        Art. 135. Discrimination prohibited. It shall be unlawful for any employer to discriminate against any woman employee with respect to terms and conditions of employment solely on account of her sex.
        
        The following are acts of discrimination:
        a. Payment of a lesser compensation, including wage, salary or other form of remuneration and fringe benefits, to a female employees as against a male employee, for work of equal value; and
        
        Pregnancy (b) To discharge such woman on account
        of her pregnancy, or while on leave or in confinement due to her pregnancy;
        (c) To discharge or refuse the admission of such woman upon returning to her work for fear that she may again be pregnant.
        
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        ILO 100 and CEDAW
        
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        Testimony
        
        135 - (d) To discharge any woman or child or
        any other employee for having filed a complaint or having testified or being about to testify under the Code;
        
        Expulsion of Women in Education (9710)
        
        (c) Expulsion and non readmission of women faculty due to pregnancy;- outside of marriage
        shall be outlawed.
        
        No school shall turn out or refuse admission to a female student solely on the account of her having contracted pregnancy outside of marriage during her term in school.
        
        Anti-Sexual Harassment Act
        
        Safe Spaces (RA 11313)
        
        Section 4. Gender-Based Streets and Public Spaces Sexual Harassment - contemplates gender-based harassment.
        
        Everywhere. So long as public area. If harassment there,
        
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        HOW COMMITTED - Through any unwanted and uninvited sexual actions or remarks against any person regardless of the motive for committing such action or remarks.
        
        Peer-Relationship - here covers peer-peer harassment. Even subordinates. No requirement of superiority.
        
        Gender - No need to fall under the male or female sex. Looks at gender identity/expression.
        
        Section 16. Gender-Based Sexual Harassment in the Workplace. -The crime of gender-based sexual harassment in the workplace includes the following:
        
        A conduct of sexual nature and other conduct-based on sex affecting the dignity of a person, which is unwelcome, unreasonable, and offensive to the recipient, whether done verbally, physically or through the use of technology such as text messaging or electronic mail or through any other forms of information and communication systems;
        
        A conduct that is unwelcome and pervasive and creates an intimidating, hostile or humiliating environment for the recipient: Provided, That the crime of gender-based sexual harassment may also be committed between peers and those committed to a superior officer by a subordinate, or to a teacher by a student, or to a trainer by a trainee; and
        
        An act or series of acts involving any unwelcome sexual advances, requests or demand for sexual favors or any act of sexual nature, whether done verbally, physically or through the use of technology such as text messaging or electronic mail or through any other forms of information and communication systems, that has or could have a detrimental effect on the conditions of an individual’s employment or education, job performance or opportunities;
        
        INFORMATION - and communication system refers to a system for generating, sending, receiving, storing or otherwise processing electronic data messages or electronic documents and includes the computer system or other similar devices by or in which data are recorded or stored and any procedure related to the recording or storage of electronic data messages or electronic documents.
        
        Power - Issue of power. An act of violence. Use of advantage of position. (RA 9262 - VAWC) & (RA 7877 - Anti-Sexual Harassment Act)
        
        Considered as a form of sexual violence.
        
        Women are disproportionately affected by Sexual Harassment. Linked with power.
        
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        OFFENDER - committed by anyone who has the authority, influence or moral ascendancy over another in a work, education or training environment. (7877)
        
        OFFENSE - Demands, request or otherwise requires any sexual favor from another. Contemplates a quid pro quo form of sexual harassment. Regardless if accepted or not. (7877)
        
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        Place - workplace or education and training environment.
        
        Pregnancy - LC 135. Prohibited Acts. It shall be unlawful for any employer:
        
        To discharge such woman on account of her pregnancy, or while on leave or in confinement due to her pregnancy;
        
        To discharge or refuse the admission of such woman upon returning to her work for fear that she may again be pregnant.
        
        Article 134. Stipulation Against Marriage.- It shall be unlawful for an employer to require as a condition of employment or continuation of employment that a woman employee shall not get married, or to stipulate expressly or tacitly that upon getting married, a women employee shall be deemed resigned or separated, or to actually dismiss, discharge, discriminate or otherwise prejudice a woman employee merely by reason of her marriage.
        
        Stipulation Against Marriage, when justified - requiring a woman employee to remain unmarried could be justified as a “bona fide occupational qualification” where the particular requirements of the job would justify the same, but not on the ground of a general principle, such as the desirability of spreading work in the workplace (Philippine Telegraph v. NLRC)
        
        Bona Fide Occupational Qualification - (Starpaper v. Simbol)
        
        That the employment qualification is reasonably related to the essential operation of the job involved
        
        That there is a factual basis for believing that all or substantially all persons meeting the qualification would be unable to perform the duties of the job.
      - RA 9710 - Sec. 5 (b)Discrimination Against Women” refers to any gender-based distinction, exclusion, or restriction which has the effect or purpose of impairing or nullifying the recognition, enjoyment, or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil, or any other field.
        
        Section 12. Equal Treatment Before the Law. -The State shall take steps to review and, when necessary, amend and/or repeal existing laws that are discriminatory to women within three (3) years from the effectivity of this Act.
        
        Discriminatory Practices - in order to justify discriminatory practices, there must be a compelling business necessity and that there must be no other alternatives to the practice.
- - - - Leaves and Other Benefits
        
        Maternity (RA 11210)
        
        Battered Woman (Victim Leave) RA 9262
        
        Gynecological Leave RA 9710
        
        (60) days or (2) months. Granted only upon determination of the physician of the required amount of time for recovery.
        
        Conditions for Entitlement - atleast (6) months continuous service within a (12) month minimum period of employment prior to the surgery.
        
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        DURATION - (10) day paid leave of absence. Extendible when the necessity arises as specified in the protection order.
        
        DURATION - (105) days maternity leave with full pay.
        
        EXTENSION - (30) days without pay.
        
        SOLO PARENT - Additional (15) days with pay.
        
        WHEN AVAILED - In every instance of pregnancy. But, if miscarriage or emergency termination then (60) days.
        
        ALLOCATION TO FATHER - (7) days of benefits may be given to child's father OR alternate caregiver in the father's death, absence or incapacity.
        
        Maternity Leave - Where there is a similar benefit, same nature and purpose.
      - Rule XII, Sec. 136, Sec. 4
        
        Art. 136. Classification of certain women workers. Any woman who is permitted or suffered to work, with or without compensation, in any night club, cocktail lounge, massage clinic, bar or similar establishments under the effective control or supervision of the employer for a substantial period of time as determined by the Secretary of Labor and Employment, shall be considered as an employee of such establishment for purposes of labor and social legislation.
        
        SECTION 4. Status of women workers in certain work places. — Any woman who is permitted or suffered to work with or without compensation, in any night club, cocktail lounge, beer house, massage clinic, bar or similar establishments, under the effective control or supervision of the employer for a substantial period of time as determined by the Secretary of Labor and Employment, shall be considered as an employee of such establishments for purposes of labor and social legislation. No employer shall discriminate against such employees or in any manner reduce whatever benefits they are now enjoying by reason of the provisions of this Section
    - - RA 9710 - Sec. 17, 22b
        
        Sec. 17(a) Comprehensive Health Services. - The State shall, at all times, provide for a comprehensive, culture-sensitive, and gender-responsive health services and programs covering all stages of a woman's life cycle and which addresses the major causes of women's mortality and morbidity:
        Provided, That in the provision for comprehensive health services, due respect shall be accorded to women's religious convictions, the rights of the spouses to found a family in accordance with their religious convictions, and the demands of responsible parenthood, and the right of women to protection from hazardous drugs, devices, interventions, and substances.
        
        Access to the following services shall be ensured:
        
        Maternal care to include pre- and postnatal services to address pregnancy and infant health and nutrition;
        
        Promotion of breastfeeding;
        
        Responsible, ethical, legal, safe, and effective methods of family planning;
        
        Family and State collaboration in youth sexuality education and health services without prejudice to the primary right and duty of parents to educate their children;
        
        Prevention and management of reproductive tract infections, including sexually transmitted diseases, HIV, and AIDS;
        
        Prevention and management of reproductive tract cancers like breast and cervical cancers, and other gynecological conditions and disorders;
        
        Prevention of abortion and management of pregnancy-related complications;
        
        In cases of violence against women and children, women and children victims and survivors shall be provided with comprehensive health services that include psychosocial, therapeutic, medical, and legal interventions and assistance towards healing, recovery, and empowerment;
        
        Prevention and management of infertility and sexual dysfunction pursuant to ethical norms and medical standards;
        
        Care of the elderly women beyond their child-bearing years; and
        
        Management, treatment, and intervention of mental health problems of women and girls. In addition, healthy lifestyle activities are encouraged and promoted through programs and projects as strategies in the prevention of diseases.
      - Establishments required by law to maintain a clinic or infirmary shall also provide free family planning services.
        
        Family Planning Services - Includes, but not limited to application or use of contraceptives. SOLE with Bureau of Women and Young workers shall prescribe minimum requirements of family planning services.
        
        DOLE shall develop and prescribe incentive bonus schemes to encourage family planning among female workers in any establishment or enterprise.
        
        Employers who habitually employ more than (200) workers required to provide free-family planning services.
  - - - Sec. 11 - Lactation Stations - The lactation stations shall be adequately provided with the necessary equipment and facilities, such as: lavatory for hand-washing, unless there is an easily-accessible lavatory nearby; refrigeration or appropriate cooling facilities for storing expressed breastmilk; electrical outlets for breast pumps; a small table; comfortable seats; and other items, the standards of which shall be defined by the Department of Health. The lactation station shall not be located in the toilet
        
        All health and non-health facilities, establishments or institutions required. Unless, they are exempted due to not feasible or necessary due to the peculiar circumstances of the workplace or public place.
        
        Sec. 12 Lactation Period - Nursing employees shall granted break intervals in addition to the regular time-off for meals to breastfeed or express milk. These intervals, which shall include the time it takes an employee to get to and from the workplace lactation station, shall be counted as compensable hours worked.
        
        Such intervals shall not be less than (40) minutes for every (8) hour working period. DOLE may adjust such intervals.
        
        Exemption DO 143-15
        
        Exemptible Establishments (1) Establishments with no nursing or lactating employee; (2) Establishments with no pregnant employees.
      - “Expanded Breastfeeding Promotion Act of 2009”.
    - - Provide seats proper for women and permit use of seats when they are free from work and during working hours. Provided that they can perform their duties in this position without detriment to efficiency;
        
        To establish separate toilet rooms and lavatories and separate dressing room for women;
        
        To establish a nursery in a workplace
        
        To determine appropriate minimum age and other standards for retirement and termination in special occupations such as those of flight attendants and the like.
      - Sec. 14 - SOLE & Bureau of Women and Young workers determine appropriate issuance of work situations for facilities under Sec. 130