Knowing more about labor law compliance inspections

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This article was originally published on April 14, 2018 and has been updated to reflect recent legal developments.

The following post does not create a lawyer-client relationship between Alburo Alburo and Associates Law Offices (or any of its lawyers) and the reader. It is still best for you to engage the services of a lawyer or you may directly contact and consult Alburo Alburo and Associates Law Offices to address your specific legal concerns, if there is any.

Also, the matters contained in the following were written in accordance with the law, rules, and jurisprudence prevailing at the time of writing and posting, and do not include any future developments on the subject matter under discussion.

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AT A GLANCE:

DOLE Department Order No. 238 reinforces DOLE’s authority to uphold workers’ rights and workplace safety. It emphasizes proactive assistance through Technical and Advisory Visits, strict enforcement through Labor Inspections, and immediate intervention in cases of imminent danger in order to ensure fair, safe and humane working conditions for every Filipino worker.

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Behind every thriving economy are the workers whose efforts sustain industries, communities, and progress. Recognizing this, the 1987 Constitution under Article XIII, Section 3 mandates that the State shall afford full protection to labor and that all workers shall be entitled to security of tenure, humane conditions of work, and a living wage.

 

To carry out this constitutional directive, the Labor Code grants the Secretary of Labor and Employment authority to enforce policies and programs that uphold and protect the rights of workers. Through this mandate, the Secretary ensures that labor laws are properly enforced and that the rights guaranteed by the Constitution are upheld in every workplace.

 

In support of this, DOLE Department Order No. 238, was issued to further strengthen the exercise of the Secretary’s powers under the Labor Code. The Order seeks to secure 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.

 

Approaches in the Administration and Enforcement of Labor Standards

 

The following shall be the approaches in the administration and enforcement of labor standards:

1. Technical and Advisory Visit;
2. Labor Inspection; and
3. Occupational Safety and Health Investigation. [Rule III, Sec. 1]

 

The Secretary of Labor and Employment may organize a Special Inspection Team composed of a group of labor inspectors (Lis) and/or assistant labor inspectors (ALIs) from the regional offices to collaborate, as may be necessary, with other government agencies exercising regulatory or enforcement functions to conduct inspections. [Rule III, Sec. 5].

 

Technical and Advisory Visit

 

The Conduct of a Technical and Advisory Visit shall be by the Labor Inspector (LI) or Assistant Labor Inspector (ALI). They shall render technical and advisory services covering the following:

1. General labor standards;
2. Occupational safety and health standards;
3. Productivity toolbox;
4. Child and family welfare program; and
5. Other DOLE policies and programs. [Rule IV, Sec. 1(c)].

 

The Technical and Advisory Visit may be conducted through any of the following:

1. Online Session
2. Onsite Session
3. Hybrid Session. [Rule IV, Sec. 1(c)].

 

The Regional Directors shall promote compliance of micro establishments and gain the support of LGUs in the implementation of technical and advisory visits and labor inspection at the Regional Development Council. They shall work closely with the LGUs, Department of Trade and Industry, and other government agencies in the implementation of community-based compliance programs and provision of further business services to micro establishments. [Rule IV, Sec. 2].

 

Labor Inspection

 

The LI shall conduct an opening conference to discuss the scope of the inspection and determine the appropriate representatives of the employer and employees. In the presence of the employer and employees’ representative, the LI shall

1. Examine employment records for the last three (3) years;
2. Interview employees; and
3. Inspect work premises to validate employment relationships based on the four-fold test, or the economic dependence test and to determine compliance with general labor standards, occupational safety and health standards, and other social legislations. [Rule V, Sec. 1(b)].

 

Thereafter, the LI shall conduct a closing conference and issue the Notice of Inspection Results to the representatives of the employer and employees. The employer is required to correct violations of labor standards within twenty (20) days from receipt of the Notice of Inspection Results. [Rule V, Sec. 1(c)].

  

Occupational Safety and Health (OSH) Standards Investigations

 

The LI, in coordination with the designated safety officer of the employer, shall investigate the existence of disabling injury, imminent danger or dangerous occurrence. The LI shall direct the employer to implement corrective actions to immediately abate imminent danger or temporary measures to prevent further disabling injury or dangerous occurrence should it exist during the inspection. The LI shall also check the compliance of the employer with other occupational safety and health standards. [Rule VI, Sec. 1(b)].

 

When OSH standards violations are committed in Plain View or in the presence of the Labor Inspector, it is mandated that the LI shall direct the employer to implement corrective actions to immediately abate imminent danger or temporary measures to prevent further disabling injury or dangerous occurrence should it exist during inspection. [Rule VI, Sec. 1(g)].

Refusal of Access

 

In case of refusal of access to records, work premises or employees during the conduct of inspection or investigation shall result in the filing of a criminal action against the employer or responsible officers of the establishment. [Rule VII, Sec. 1].

 

If there is a continuing refusal to provide access after the conduct of conference, the Regional Director shall indorse to the DOLE Legal Service within ten (10) days from the termination of the conference, the authority to inspect or investigate together with the pertinent documents relevant for filing of the appropriate criminal complaint. [Rule VII, Sec.4].

 

Failure to correct violations

 

In case of failure to correct the violations found during the inspection, the following shall be undertaken:

1. Work Stoppage Order – The Secretary of Labor and Employment or the duly authorized representative may immediately order stoppage of work or suspension of operation of any unit or department of an establishment when the imminent danger cannot be abated during the investigation, or non-compliance with occupational safety and health standards poses grave and imminent danger to the health and safety of the workers in the workplace or has resulted in a dangerous occurrence. [Rule VI, Sec. 1(d)].
2. Failure of employer to correct violation of labor standards – If within (20) days from receipt of the Notice of Inspection Results, an employer’s failure or refusal to comply with occupational safety and health standards shall be deemed willful if done voluntarily, deliberately, and intentionally. It is also deemed willful if the employer unjustifiably or unreasonably failed to correct the noted violations despite attendance to or notification of the inspection activities, receipt of the Notice of Inspection results, receipt of the notice of mandatory conference, attendance to the mandatory conference, and continuously failed to submit compliance documents within ten (10) days after the submission of the case for the decision of the Regional Director. [Rule VI, Sec. 1(c)].
3. Imminent danger or dangerous occurrence exist during inspection – LI shall direct the employer to implement corrective actions to immediately abate the imminent danger or temporary measures to prevent further dangerous occurrences. The Regional Director shall immediately issue a Work Stoppage Order after the submission of the narrative report by the LI. A hearing shall be conducted within twenty-four (24) hours from issuance of the Work Stoppage Order, which shall not be lifted until the imminent danger has been abated. [Rule V, Sec. 1(d)].
4. Mandatory Conference – It is scheduled within five (5) days from the issuance of notice of visit results or lapse of the correction period. [Rule VIII, Sec. 1)].

 

In view of the foregoing, it is clear that the Department of Labor can flex its muscle to make sure that establishments are compliant with what our labor laws provide. This makes it crucial for employers to have an idea on what to expect once DOLE visits them for inspections, so that they will be well equipped to handle the situation better.

 

Related Article: Employer’s Guide on the Minimum Terms and Conditions of Employment

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Alburo Alburo and Associates Law Offices specializes in business law and labor law consulting. For inquiries regarding legal services, you may reach us at info@alburolaw.com, or dial us at (02)7745-4391/ 09175772207/ 09778050020.

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