WHO MAY BE EXEMPTED FROM PAYING THE SALARY DIFFERENTIAL OF FEMALE EMPLOYEE WHO AVAILED OF MATERNITY LEAVE

Read also: GUIDELINES ON THE COMPUTATION OF SALARY DIFFERENTIAL OF FEMALE WORKERS DURING HER MATERNITY LEAVE

• RA 11210 provides that workers availing of the maternity leave period and benefits must receive their full pay.

• Employers from the private sector shall be responsible for payment of the salary differential between the actual cash benefits received from the SSS by the covered female workers and their average weekly or regular wages, for the entire duration of the maternity leave.

• There are however establishments that are exempted from paying salary differential of employees who availed the maternity leave benefit.

RA 11210 or “An Act Increasing the Maternity Leave Period to One Hundred Five (105) Days for Female Workers With an Option to Extend for an Additional Thirty (30) Days Without Pay, and Granting an Additional Fifteen (15) Days for Solo Mothers, and for Other Purposes” provides that all covered female workers in government and the private sector, including those in the informal economy, regardless of civil status or the legitimacy of her child, shall be granted one hundred five (105) days maternity leave with full pay and an option to extend for an additional thirty (30) days without pay. The law further provides that workers availing of the maternity leave period and benefits must receive their full pay. Employers from the private sector shall be responsible for payment of the salary differential between the actual cash benefits received from the SSS by the covered female workers and their average weekly or regular wages, for the entire duration of the maternity leave. However, this is subject to exemption.

The following are exempted from paying salary differential of employees who availed the maternity leave benefit:

1. Those operating distressed establishments;
2. Those retail/service establishments and other enterprises employing not more than ten (10) workers;
3. Those considered as micro-business enterprises and engaged in the production, processing, or manufacturing of products or commodities including agro-processing, trading, and services, whose total assets are not more than Three million pesos (₱3,000,000.00); and
4. Those who are already providing similar or more than the benefits herein provided.

Department Advisory No. 01 Series of 2019 or “Guidelines on the Computation of Salary Differential of Female Workers During Her Maternity Leave and Its Criteria for Exemption Pursuant to Republic Act No. 11210 And Its Implementing Rules and Regulations” provides that:

Establishments applying for exemption from payment of salary differential shall submit within the first semester of every calendar year, in duplicate copies, at the DOLE Regional/ Provincial/ Field/ Satellite Office where the applicant principally operates, all of the following requirements:

1. DOLE-prescribed Application Form,
2. Copy of Certificate of Registration issued by the Department of Trade and Industry or the Securities and Exchange Commission or the Cooperative Development Authority, as the case may be, and
3. Copy of the latest Business Permit issued by the Local Government Unit.

Additional requirements, as applicable, for the following:

1. Distressed establishments
   1. Audited Financial Statement duly received by the Bureau of Internal Revenue and/or the Securities Exchange Commission or the Cooperative Development Authority or
   2. Certification from the Bangko Sentral ng Pilipinas that it is under receivership or liquidation.
2. Retail/service establishments and other enterprises regularly employing not more than ten (10) workers:
   1. Owner or President’s Affidavit as to the number of employees for the twelve-month period preceding the date of application.
3. Micro enterprises whose total assets are not more than Three Million Pesos (Php3,000,000.00):
   1. Barangay Micro Business Enterprise Certification.
4. Establishments already providing similar or more than the benefits provided in RA 11210 and its IRR (Implementing Rules and Regulations):
   1. Certified True Copy of existing Collective Bargaining Agreement or policy; or
   2. Employer and Workers Representative’s Certification of existing company practice.

The Certificate of Exemption shall be valid for one year from the date of issuance thereof. However, if an establishment was issued already a Certificate of Exemption by the Regional Tripartite Wage and Productivity Board (RTWPB) from payment of minimum wage for a certain year, the same Certificate shall also carry with it an exemption from payment of salary differential for the same year and no separate application shall be required in this case.

APPLICATION PROCESS

The application for exemption from payment of salary differential shall be filed in duplicate copies at the DOLE Regional/Provincial/Field/Satellite Office where the applicant principally operates.

No application for exemption shall be accepted unless all the requirements are complied with.

The DOLE Regional Director or his/her authorized representative shall conduct an inspection, if necessary, to verify the number of workers, nature of business, and other relevant information, within five (5) working days from receipt of the application.

Where the exemption being sought is for a particular project/branch/division, the consolidated Audited Financial Statements of the establishment shall be used as basis for determining its distressed condition.

A corporation/cooperative shall submit their Audited Financial Statement for the last accounting period immediately preceding the application, while a sole proprietorship or partnership shall submit their Audited Financial Statement for the last two (2) full accounting periods immediately preceding the application.

The DOLE Regional EML Committee shall evaluate all applications for exemption and/or results of inspection within five (5) working days. It shall submit its recommendation to the DOLE Regional Director or his/her authorized representative for approval within five (5) working days from receipt thereof.

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Alburo Alburo and Associates Law Offices specializes in business law and labor law consulting. For inquiries, you may reach us at info@alburolaw.com, or dial us at (02)7745-4391/0917-5772207.

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