The Department of Labor and Employment (DOLE), through Secretary Silvestre H. Bello III, approved and signed the Implementing Rules and Regulations (IRR) of R.A. No. 11058 entitled “An Act Strengthening Compliance with Occupational Safety and Health Standards and Providing Penalties for Violations Thereof” during the 85th anniversary of the DOLE held last December 6, 2018. The signed OSH IRR is also known as Department Order No. 198-18.
It should be noted that Undersecretary Benjo M. Benavidez mentioned during the last joint TEC/TWG meeting on November 26, 2018 that the draft OSH IRR as presented in the body would be more or less the same as the final version. However, during the Tripartite Industrial Peace Council (TIPC) meeting on December 5, 2018, ECOP noticed a substantial change in one of its key provisions, particularly section 29.
Section 29 of the final version of the OSH IRR states that “the penalties shall be computed on a per day basis until full compliance reckoned from the date of the notice of violation or service of the compliance order to the employer without prejudice to the filing of a criminal or civil case in the regular courts as the case may be”.
On the other hand, Section 28 of the previous draft version of the OSH IRR provided for a “remediation period” before penalties for non-compliance can be imposed, to wit:
“For purposes of the computation of administrative fines, the following are the remediation period of the following concerns/issues:
Imminent danger – one (1) day
PPE – three (3) days
Other – not exceeding ninety (90) days based on the approved action plan”
Thus, it is evident that the remediation period included in Section 28 of the draft OSH IRR was removed from the version presented during the TIPC meeting.
This prompted ECOP to immediately write a letter addressed to the DOLE urging it to reinstate the remediation period in the final IRR in accordance with the constitutional right of a person to due process of law. Simply put, ECOP submits that before the OSH law may impose a penalty for a deliberate, intentional and voluntary non-compliance, a person should first be given the opportunity to be heard. This is a basic fundamental right to due process of every individual without which, any penalty imposed upon a person should be deemed unconstitutional.
Thereafter, DOLE responded to ECOP’s letter stating that “the wording from the latest IRR is a mere lift from Section 28 of the OSH Law and that due process will be observed in the determination of the willful refusal or failure to comply of such law. “
In the end, we must all understand and believe in the spirit of tripartism. The drafting of laws, policies and programs affecting labor and management such as the said IRR is subject to numerous consultative processes involving the various stakeholders. The DOLE is duty bound to hear and accept the interests and positions of both labor and management groups. However, on certain critical issues when management and labor cannot reach a consensus, it is the DOLE which has the final say or determination without prejudice to any further action that either party may take within the bounds allowed by the law.
Hereunder are some of the critical issues of the OSH law where ECOP contributed inputs in the IRR of the OSH law:
- Application of the OSH law to micro and small enterprises – Initially, only micro establishments were not covered by the OSH standards as they have their own separate compliance standards. However, ECOP reiterated that small enterprises should likewise have their own separate compliance standards as their technical and financial capabilities are different from those of medium-sized and large enterprises. The DOLE disagreed. In the end, there was a compromise that small enterprises with 10 to 49 workers shall have their own separate OSH compliance program provided they are in the category of low risk. In sum, micro and small enterprises with 10 to 49 number of workers shall have their own separate OSH compliance program.
- On the penalty imposed – ECOP highlighted the constitutional provision stating that “Excessive fines shall not be imposed”, and added that the penalties imposed under the IRR may be excessive depending on the establishment’s ability to pay. The penalties imposed under the IRR was then lowered and “fixed” based on the severity of the ground for non-compliance rather than a graduated penalty to prevent giving too much discretion to the imposing authorities.
ECOP is scheduling an executive labor update (ELU) on the IRR of the new OSH law on Wednesday, 19 December 2018, from 12:30 to 5:00 pm at the Makati Diamond Residences. We have invited officials of DOLE to explain the salient features of the IRR. A panel of reactors consisting of employers and practitioners will also be constituted to shed light on the practical and operational implications of the IRR. Interested parties may call 896-5006; 896-5006 or email us at email@example.com / firstname.lastname@example.org