Labor Law: Title III; Chapter IV Employment of Night Workers Arts. 154 - 161

 Title III

Working Conditions for Special Groups of Employees

Chapter V

Employment of Night Workers

Arts. 154 - 161

Article 154. Coverage.

This chapter shall apply to all persons, who shall be employed or permitted or suffered to work at night, except those employed in agriculture, stock raising, fishing, maritime transport and inland navigation, during a period of not less than seven (7) consecutive hours, including the interval from midnight to five o'clock in the morning, to be determined by the Secretary of Labor and Employment, after consulting the workers' representatives/labor organizations and employers.

'Night worker' means any employed person whose work requires performance of a substantial number of hours of night work which exceeds a specified limit. This limit shall be fixed by the Secretary of Labor after consulting the workers' representatives/labor organizations and employers.

Article 155. Health Assessment. 

At their request, workers shall have the right to undergo a health assessment without charge and to receive advice on how to reduce or avoid health problems associated with their work:

(a) Before taking up an assignment as a night worker;

(b) At regular intervals during such an assignment; and

(c) If they experience health problems during such, an assignment which are not caused by factors other than the performance of night work.

With the exception of a finding of unfitness for night work, the findings of such assessments shall not be transmitted to others without the workers' consent and shall not be used to their detriment.

Article 156. Mandatory Facilities. 

Suitable first-aid facilities shall be made available for workers performing night work, including arrangements where such workers, where necessary, can be taken immediately to a place for appropriate treatment. The employers are likewise required to provide safe and healthful working conditions and adequate or reasonable facilities such as sleeping or resting quarters in the establishment and transportation from the work premises to the nearest point of their residence subject to exceptions and guidelines to be provided by the DOLE.

Article 157. Transfer.

Night workers who are certified as unfit for night work, due to health reasons, shall be transferred, whenever practicable, to a similar job for which they are fit to work.

 

If such transfer to a similar job is not practicable, these workers shall be granted the same benefits as other workers who are unable to work, or to secure employment during such period.

A night worker certified as temporarily unfit for night work shall be given the same protection against dismissal or notice of dismissal as other workers who are prevented from working for reasons of health.

Article 158. Women Night Workers. 

Measures shall be taken to ensure that an alternative to night work is available to women workers who would otherwise be called upon to perform such work:

(a) Before and after childbirth, for a period of at least sixteen (16) weeks, which shall be divided between the time before and after childbirth;

(b) For additional periods, in respect of which a medical certificate is produced stating that said additional periods are necessary for the health of the mother or child:

(1) During pregnancy;

(2) During a specified time beyond the period, after childbirth is fixed pursuant to subparagraph (a) above, the length of which shall be determined by the DOLE after consulting the labor organizations and employers.

During the periods referred to in this article:

(i) A woman worker shall not be dismissed or given notice of dismissal, except for just or authorized causes provided for in this Code that are not connected with pregnancy, childbirth and childcare responsibilities.

(ii) A woman worker shall not lose the benefits regarding her status, seniority, and access to promotion which may attach to her regular night work position.

Pregnant women and nursing mothers may be allowed to work .at night only if a competent physician, other than the company physician, shall certify their fitness to render night work, and specify, in the case of pregnant employees, the period of the pregnancy that they can safely work.

The measures referred to in this article may include transfer to day work where this is possible, the provision of social security benefits or an extension of maternity leave.

The provisions of this article shall not leave the effect of reducing the protection and benefits connected with maternity leave under existing laws.

Article 159. Compensation. 

The compensation for night workers in the form of working time, pay or similar benefits shall recognize the exceptional nature of night work.

Article 160. Social Services.

Appropriate social services shall be provided for night workers and, where necessary, for workers performing night work.

Article 161. Night Work Schedules. 

Before introducing work schedules requiring the services of night workers, the employer shall consult the workers' representatives/labor organizations concerned on the details of such schedules and the forms of organization of night work that are best adapted to the establishment and its personnel, as well as on the occupational health measures and social services which are required. In establishments employing night workers, consultation shall take place regularly.

Notes:

• The rules implementing R.A. No. 10151, i.e., D.O. No. 119-12 dated January 20, 2012, defines "night worker" as any employed person whose work covers the period from 10 o'clock in the evening to 6 o'clock the following morning provided that the worker performs no less than seven (7) consecutive hours of work.
• D.O. No. 119-12 is considered part of Book III of the Omnibus Rules Implementing Labor Code.

Unfitness for Night Work

Q: Is inability to do night work a lawful reason to terminate one's employment?

• The answer is given, rather implicitly, in Article 157, Section Five of the D.O. No. 119-12. The inability to do night work must be grounded on reason adequately supported by medical findings and certifications. For this purpose, the Implementing Rules and Regulations provides for health assessment. It states:

Article 155 (inserted by RA 10151). Health Assessment. — 

At their request, workers shall have the right to undergo a health assessment without charge and to receive advice on how to reduce or avoid health problems associated with their work:

1. Before taking up an assignment as a night worker;
2. At regular intervals during such an assignment; and
3. If they experience health problems during such an assignment which are not caused by factors other than the performance of night work.

With the exception of a finding of unfitness for night work, the findings of such assessments shall be confidential and shall not be used to their detriment, subject however to applicable company policies.

• As a worker who is medically certified as unfit for night work has the right to remain or be transferred to a job for which he is fit to work whenever practicable.

Q: Supposed the worker is unable to do night work for an indefinite length of time?

• If such an ability continues for no less than six months, then the employer may consider applying Article 299, the situation of a sick employee.
• The requisites, the procedure and the statutory benefits under that article, such as separation pay of one month or one half month per year service will have to be complied with ultimately therefore unfitness to do night work that  business operations legitimately require becomes a lawful cause of separation as a last recourse, assuming absence of contractual or policy barriers. Genuine business reason, unsullied by bad faith discrimination or unfair labor practice act will ultimately prevail. 
• But employment termination is a last recourse.
• If the worker involved is a woman, the road to separation is still an option but there are regulatory requisites. 

Women Night Workers, Alternative Measures to Night Work for Pregnant and Nursing Employees.

• Employers shall ensure that measures shall be undertaken to provide an alternative to night work for pregnant and nursing employees who would otherwise be called upon to perform such work. 
• Such measures may include:
• transfer to day work, where it is possible
• provision of social security benefits, or
• extension of maternity leave

(a) Transfer to day work. 

• As far as practicable, pregnant or nursing employees shall be assigned to day work, before and after childbirth for a period of at least sixteen (16) weeks which shall be divided between the time before and after childbirth. 
• Medical certificate issued by competent physician (i.e., Obstetrician/Gynecologist, Pediatrician, etc.) is necessary for the grant of: 
1. additional periods of assignment to day work during pregnancy or after childbirth other than the period mentioned in the foregoing paragraph, provided that the length of additional period should not be more than four (4) weeks or for a longer period as may be agreed upon by the employer and the worker; 
2. extension of maternity leave; and 
3. clearance to render night work.

(b) Provision of social security benefits.

• Social security benefits, such as paid maternity leave shall be provided to women workers in accordance with the provisions of Republic Act No. 8282 (Social Security Act of 1997) and other existing company policy or collective bargaining agreement. 

(c) Extension of maternity leave.

• Where transfer to day work is not possible, a woman employee may be allowed to extend, as recommended by a competent physician, her maternity leave without pay or using earned leave credits of the worker, if any.

Protection Against Dismissal and Loss of Benefits Attached to Employment Status, Seniority and Access to Promotion

• Where no alternative work can be provided to a woman employee who is not in a position to render night work, she shall be allowed to go on leave or on extended maternity leave, using her earned leave credits. 
• A woman employee shall not be dismissed for reasons of pregnancy, childbirth and childcare responsibilities as defined under this Rule. She shall not lose the benefits regarding her employment status, seniority, and access to promotion which may attach to her regular night work position.

Consultations Night Work Schedules

• The employer shall at its own initiative, consult the recognized workers' representatives or union in the establishment on the details of the night work schedules and the forms of organization of night work that are best adapted to the establishment and its personnel, as well as on the occupational health measures and social services which are required. 
• In establishments employing night workers, consultation shall take place regularly and appropriate changes of work schedule shall be agreed upon before it is implemented.

Penalty Clause

• Any violation of this Act, and the Rules and Regulations issued in pursuant hereof shall be punishable with a fine of not less than Thirty Thousand Pesos (P30,000.00) nor more than Fifty Thousand Pesos (P50,000.00) or imprisonment of not less than six (6) months or both, at the discretion of the court. 
• If the offense is committed by a corporation, trust, firm, partnership or association or other entity, the penalty shall be imposed upon the guilty officer or officers of such corporation, trust, firm, partnership or association, or entity.