The labor force is the pillar of the Philippine economy, and ensuring fair and just working conditions is vital in order maintain a productive and harmonious society. In this regard, various labor laws and social legislation which safeguard the interests of employees have been passed. With all these laws, the usual issues raised relate to the implementation of existing labor laws and regulations.
The visitorial and enforcement powers of the Secretary of Labor and Employment under Article 128 of the Labor Code plays a vital role in upholding workers’ rights and ensuring compliance with labor laws and regulations. Article 128 authorizes the Department of Labor and Employment (DoLE) to inspect the premises of employers to assess their compliance with labor laws and regulations.
On April 12, the DoLE issued Department Order (DO) No. 238, Series of 2023 or the “Rules on the Administration and Enforcement of Labor Standards pursuant to Article 128 of the Labor Code of the Philippines, as renumbered, and Republic Act No. 11058” (DO 238-23). DO 238-23 aims to strengthen the visitorial and enforcement powers of the Secretary towards securing a higher level of compliance with general labor standards, occupational safety and health standards, and other social legislations, and ensuring continuity and sustainability of compliance in all workplaces.
DO 238-23 also enumerated the following establishments prioritized for inspections:
- Establishments engaged in hazardous work;
- Establishments employing children and/or women;
- Construction projects;
- Philippine-registered ships or vessels engaged in domestic shipping;
- Fishing vessels;
- Establishments engaged in contracting and subcontracting arrangements;
- Establishments subject of Single-Entry Approach (SEnA) referral, anonymous complaint, or request for inspection; and,
- Other establishments as may be determined by the Secretary of Labor and Employment.
Further, DO 238-23 introduced three new approaches to be used by the DoLE. These are: a.) technical and advisory visits (TAV), b.) labor inspections, and, c.) occupational safety and health (OSH) investigations. Among these new approaches, the TAV appears to be the most innovative considering that the Labor Inspectors are directed to work with micro establishments to ensure compliance with all labor laws. The Labor Inspectors and micro establishments are expected to develop strategies so that the micro establishments will comply with all labor laws. Thereafter, the labor inspector shall monitor the compliance of the micro establishments for a period of three months. The TAV guarantees that employees of micro establishments get to enjoy everything that they are entitled to considering that micro establishments are usually the ones who are unaware of or have difficulty with complying with all labor laws and regulations.
The subject of the visitorial and enforcement powers granted to the Secretary and his duly authorized representatives is the establishment under inspection and not the employees thereof. Thus, if the inspection was caused by a complaint filed with the DoLE, the awards granted are not limited to the employees who signed the complaint. The awards are applicable to all the employees of the establishment at the time the complaint was filed, even if they were not signatories thereto. The reason is that the visitorial and enforcement powers are relevant to and may be exercised over the establishment and the powers are not limited to the employees who filed the complaint, and that the inspection is conducted to determine compliance with labor laws.
The visitorial powers of the DoLE give it, through the Labor Inspectors, the right to access and copy the employer’s records and premises at any time of the day or night whenever work is being undertaken therein. The Labor Inspectors also have the right 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 any labor law, wage order, or rules and regulations issued pursuant thereto. A criminal complaint may be initiated against the employer or responsible officers of the establishment if the employer insists on refusing to provide access to records, work premises, or employees.
If there is a determination that the employer has failed to comply, the DoLE may:
- Issue compliance orders to give effect to the labor standards provisions of the Labor Code and other labor legislations based on the findings of labor employment officers or industrial safety engineers made in the course of inspection;
- 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 employment and enforcement officer and raises issues supported by documentary proofs which were not considered in the course of inspection;
- Order stoppage of work or suspension of operations of any unit or department of an establishment when non-compliance with the law or implementing rules and regulations poses grave and imminent danger to the health and safety of workers in the workplace; or,
- Require employers, by appropriate regulations, to keep and maintain such employment records as may be necessary in aid of the visitorial and enforcement powers.
The visitorial and enforcement powers are essential since they allow the DoLE to proactively enforce labor laws without solely relying on employee complaints. While encouraging workers to report violations is crucial, inspections play a complementary role in detecting hidden and systematic violations which may otherwise go unnoticed.
Nevertheless, the exercise of these powers must be balanced with respect for the rights of employers and the need to maintain a conducive business environment. By cultivating a collaborative and communicative approach between the government and the private sector, we can strike an optimal balance that promotes worker protection, business growth, and overall national development. Ultimately, this synergy will strengthen the fabric of the nation, empowering both workers and employers to contribute to a flourishing economy and a just society.
This article is for general information and educational purposes only and not offered as legal advice or opinion.
For further information, please contact:
Martin Luigi G. Samson, ACCRALAW
mgsamson@accralaw.com
