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Department of Labor and Employment Broadens the Visitorial and Enforcement Power of the Secretary of Labor and Employment

On 12 April 2023, the Department of Labor and Employment (“DOLE”) issued Department Order 238, Series of 2023 or the Rules on the Administration and Enforcement of Labor Standards Pursuant to Article 128 of the Labor Code (“Rules”). This was promulgated in view of further strengthening the exercise of the visitorial and enforcement power of the Secretary of Labor and Employment and securing a higher level of compliance with general labor standards, occupational safety and health standards, and other social legislation. In furtherance of the law, the following shall be implemented: (i) Technical and Advisory Visit, (ii) Labor Inspection; and (iii) Occupational Safety and Health Investigation. The Secretary of Labor and Employment may organize a Special Inspection Team composed of a group of labor inspectors (“LI”) and/or assistant labor inspectors (“ALIs”) from the regional offices to collaborate, as may be necessary, with other government agencies to conduct inspections. 

The following establishments shall be prioritized for inspection:

  1. Those engaged in hazardous work;
  2. Employing children and/or women;
  3. Construction projects;
  4. Philippine-registered ships or vessels engaged in domestic shipping;
  5. Fishing vessels;
  6. Engaged in contracting and subcontracting arrangements;
  7. Subject of single-entry approach referral, anonymous complaint, or request for inspection; and
  8. Other establishments as may be determined by the Secretary of Labor and Employment.

For purposes of the inspections, the following shall be the authorized representatives for the employer and employee:

  1. For the employer – owner, president, vice-president, manager, or any other officers holding managerial or supervisory positions.
  2. For the employee – if organized establishment, the representative shall be designated by the sole and exclusive bargaining agent; if unorganized establishment, the representative shall be from any of the following committees, in successive order: (i) Labor-Management Committee; (ii) Occupational Safety and Health Committee, and (iii) Family Welfare Committee. In the absence of these committees, the representative may be selected by the rank-and-file employees present during the visit, inspection, or investigation.

Further, all employers must keep and maintain employment records in and about the premises of all workplaces for at least 3 years, which records should be provided to the LI. These records may include employment contracts, daily time records, payrolls, proof of payment of 13th month pay, service incentive leave pay, and other labor standards and social registrations, among others.

Technical and Advisory Visit 

In the conduct of a Technical and Advisory Visit (“TAV”), the LI or ALI shall deliver the 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.

These technical and advisory services may be conducted through online, onsite, or in hybrid sessions. 

The LI is granted authority to inspect establishments under any of the following circumstances:

  1. Unjustifiable failure to attend the TAV session despite receipt of 2 invitations;
  2. Failure to accomplish the TAV checklist after receipt of 2 notifications; or
  3. Failure to prepare an action plan.

Labor Inspection

Before the inspection, an Authority to Inspect shall be issued by the Regional Director where the name and address of the establishment to be inspected are indicated. This shall be presented to the representatives of the employer and employees for purposes of conducting the inspection.

In the presence of the employer and employees’ representative, the LI shall (i) examine employment records for the last 3 years; (ii) interview employees; and (iii) inspect work premises to validate employment relationship 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.

After the inspection, a Notice of Inspection Results will be issued by the LI which shall contain the findings on general labor standards, occupational safety and health standards and other social legislation. Any violations of labor standards shall be corrected by the employer within 20 days from receipt of the Notice of Inspection Results. 

Should there be an imminent danger or dangerous occurrence during the inspection, the LI shall direct the employer to implement corrective actions to immediately abate such danger or temporary measures to prevent further dangerous occurrences. The LI shall submit a narrative report to the Regional Director that has jurisdiction over the workplace, together with the recommendation for the immediate issuance of a Work Stoppage Order. The Regional Director shall conduct a hearing within 24 hours from issuance of the Work Stoppage Order, which shall not be lifted until the imminent danger has been abated.

Occupational Safety and Health Investigation

To conduct a valid Occupational Safety and Health Investigation, an Authority to Investigate must first be issued to the LI within 24 hours from receipt of the information on the existence of disabling injury, imminent danger, or dangerous occurrence. This should be presented by the LI to the representatives of the employer and employees for purposes of investigation. 

Under the Rules, the Secretary of Labor and Employment or his/her duly authorized representative has the power to 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. 

Within 24 hours from the issuance of the Work Stoppage Order, the Regional Director shall determine the cause and abatement measures of the imminent danger. Upon submission of proof of abatement of the imminent danger, the Regional Director shall issue an Order lifting the Work Stoppage Order effective immediately. Should the imminent danger result from the violation of fault of the employer, such employer shall be directed by the Regional Director to pay the wages of the affected employees during the stoppage of work or suspension of operations.

Refusal of Access

Pursuant to the Rules, a criminal complaint can be filed against the employer or responsible officers of the establishment in case of continued refusal to provide access to records, work premises, or employees.

The LI shall issue to the employer a notice for the conduct of subsequent inspection or investigation if access is denied on the first attempt. If access is still denied on the second attempt, the LI shall issue a Notice of Inspection Results or Notice of Investigation Results requiring the employer to attend a conference and explain the refusal of access. Should there be a continuing refusal to provide access after the conduct of the conference, the Regional Director shall indorse it to the DOLE Legal Services, within 10 days of termination of the conference, for the filing of an appropriate criminal complaint.