Clarifications on night work prohibition

Taxwise or Otherwise

By Leonard Vinz O. Ignacio, 02 July 2009

Labor concerns in the BPO industry Part 1
Read Part 2 | Part 3 | Part 4

"Work is the grand cure of all the maladies and miseries that ever beset mankind." ~ Thomas Carlyle (1795-1881), British historian and essayist

"Employment is nature’s physician, and is essential to human happiness." ~ Galen, Greek philosopher

The call center and rest of business process outsourcing (BPO) services have been dubbed as the Philippines’ latest sunshine industries, and, being labor-intensive, are expected to generate around thousands of jobs in the coming years.

With the employment rate now at a low due to the global recession, the jobs that will be generated by these call centers and BPOs will be a welcome solution to an otherwise increasing unemployment rate.

However, not all is sunny in this corner of the world.

Call centers and BPOs usually operate on a 24-hour work schedule. Most of these companies work on several shifts to provide a 24-hour service that caters to the needs of clients operating in various time zones around the world. This necessitates the employment of men and women even after late hours of the night to wee hours of the morning which brings us to the legal provisions on night work.

Article 130 of the Labor Code (Code) provides for nightwork prohibition on women employees, which reads as follows:

Employment of WomenARTICLE 130. Nightwork prohibition — No woman, regardless of age, shall be employed or permitted or suffered to work with or without compensation:(a) in any industrial undertaking or branch thereof between 10 o’clock at night and 6 o’clock in the morning of the following day;(b) in any commercial or non-industrial undertaking or branch thereof, other than agricultural, between midnight and 6 o’clock in the morning of the following day; or(c) in any agricultural undertaking at night time unless she is given a period of rest of not less than nine consecutive hours.

This prohibition is in recognition of the danger to women imposed by street conditions at night.

This general rule, however, is not without exceptions.

Article 131 of the same Code enumerates the following exceptions:

ARTICLE 131. Exceptions — The prohibitions prescribed by the preceding Article shall not apply in any of the following cases:(a) in cases of actual or impending emergencies caused by serious accident, fire, flood, typhoon, earthquake, epidemic or other disasters or calamity, to prevent loss of life or property, or in cases of force majeure or imminent danger to public safety;(b) in case of urgent work to be performed on machineries equipment or installation, to avoid serious loss which the employer would otherwise suffer;(c) where the work is necessary to prevent serious loss of perishable goods;(d) where the woman employee holds a responsible position of managerial or technical nature, or where the woman employee has been engaged to provide health and welfare service;(e) where the nature of the work requires the manual skill and dexterity of women workers and the same cannot be performed with equal efficiency by male workers;(f) where the women employees are immediate members of the family operating the establishment or undertaking; and(g) under other analogous cases exempted by the Secretary of Labor and Employment in appropriate regulations.

In connection with the item (g) of the foregoing exemptions from night work prohibition, the Secretary of the Department of Labor and Employment (DoLE) said in a recent ruling that call centers and BPOs are exempted from Article 130 of the Code, for as long as there are facilities and conditions which will ensure the safety and health of women employees, in accordance with Article 132 of the same Code. This section provides:

ARTICLE 132. Facilities for women — The Secretary of Labor shall establish standards that will ensure the safety and health of women employees. In appropriate cases, he shall, by regulations, require any employer to:(a) provide seats proper for women and permit them to use such seats when they are free from work and during working hours, provided they can perform their duties in this position without detriment to efficiency;(b) to establish separate toilet rooms and lavatories for men and women and provide at least a dressing room for women;(c) to establish a nursery in a workplace for the benefit of the women employees therein; and(d) to determine appropriate minimum age and other standards for retirement or termination in special occupations, such as those of flight attendants and the like.

In view of the foregoing, and given the importance of the Constitutional mandate to provide equal work opportunities to all, call centers and other BPO facilities should be exempted from the night work prohibition for women under Article 130 of the Labor Code.

However, in order to be prudent and risk-averse, it may be wise for the call centers and other BPO facilities to secure prior DoLE ruling for exemption from the night work prohibition and submit proof of their compliance with the facilities and conditions required under the Code which will ensure the safety and health of women employees working in the graveyard shift.