On 16 September 2022, the Department of Labor and Employment (“DOLE”) passed the Revised Implementing Rules and Regulations (“IRR”) of the Philippine Telecommuting Act. The revised IRR introduces changes to the original IRR to clarify and adequately address the issues and concerns of the telecommuting sector.
Salient points and key changes
The revised IRR has the following salient points and key changes:
- Shift in the state’s policy regarding [1] Previously, the Philippine government held a neutral position on telecommuting arrangements between employers and employees. Under the revised IRR, however, in recognition of the benefits of technology and as a government measure to optimise the use of technology, it is now the policy of the state to encourage employers and employees to jointly adopt and implement telecommuting programs.
- Parameters of telecommuting are now more ascertainable. The amendments make the term telecommuting more ascertainable by defining the following technical terms:
- Alternative workplace – refers to any location where work, through the use of telecommunication and/or computer technology, is performed at a location away from the principal place of business of the employer, including but not limited to the employee’s residence, co-working spaces, or other spaces that allow for mobile working;
- Telecommunication – refers to a process of relaying and receiving voice, data, electronic messages, written or printed matter, fixed or moving pictures, words, music or visible or audible signals or any control signals of any design or for any purpose by wire, radio or other electromagnetic, spectral, optical or technological means;
- Computer technology – refers to all electronic media and services, including computers, software, electronic mail, telephones or mobile phones, voicemail, facsimile machines, online services, and the internet.
- There is greater emphasis on the applicability of minimum labor standards and existing company policies to telecommuting employees.[2] The amendments expressly state that the terms and conditions of telecommuting shall not be less than the minimum labor standards required by law. Further, the revised IRR also states that the terms and conditions of telecommuting shall not in any way diminish or impair the terms or conditions of employment contained in any applicable company policy or practice, individual contract, or collective bargaining agreement.
- Work performed in an alternative workplace is considered as work performed in the regular workplace[3] of the employer. The amendments expressly provide that work performed in an alternative workplace shall be considered as work performed in the regular workplace of the employer.
- Telecommuting employees are not considered field personnel[4] despite regularly performing their duties away from their employers’ principal place of business. The revised IRR expressly provides that telecommuting employees are not considered field personnel, unless their actual hours of work cannot be determined with reasonable certainty. This is significant as under Philippine employment law, field personnel are not entitled to certain minimum working conditions and benefits, such as overtime pay, night-shift differential pay, holiday pay, weekly rest day, service incentive leaves, etc. As a consequence of this pronouncement, telecommuting employees are entitled to such benefits.
- Notice of adoption of telecommuting program must be made through the DOLE online Establishment Report System. Under the revised IRR, notice of the adoption of a telecommuting program should be made through the DOLE online Establishment Report System (i.e., reports.dole.gov.ph). Previously, it was to be filed with the nearest DOLE Field or Provincial Office having jurisdiction over the area where the principal office is located.
Conclusion
It should be noted that the original Telecommuting Law IRR was passed in 2019, prior to the occurrence of the pandemic. During such time, telecommuting arrangements were not common in the Philippines and so, the regulators were not as well apprised of the issues surrounding telecommuting as they are now. Given that telecommuting has become a favored work arrangement for a considerable number of establishments, it is only appropriate for the IRR to be updated to meet the needs of the country’s telecommuting sector and to address any gaps that the previous regulations failed to address.
For further information, please contact:
Felix Sy, Partner, Zico Law
info@zicolaw.com
[1] Telecommuting refers to a work arrangement that allows an employee in the private sector to work from an alternative workplace with the use of telecommunication and/or computer technologies.
[2] A telecommuting employee refers to a person who is on telecommuting.
[3] Regular workplace refers to the principal place of business or any branch office or physical premises established or provided by the employer where employees regularly report to or perform work.
[4] Field personnel refer to non-agricultural employees who regularly perform their duties away from the principal place of business or branch office of the employer and whose actual hours of work in the field cannot be determined with reasonable certainty.
