The e-Newsletter of the Gender Network

December 2012 | Vol. 6, No. 3

Promoting Gender Equality in the Labor Market for More Inclusive Growth - Review of Philippine Legislation
by Myla Magsombol1 As part of an ADB regional technical assistance project, Promoting Gender Equality in the Labor Market, a legal study analyzed existing labor legislation in terms of promoting access to employment for women, eliminating constraints to their employment and improving their working conditions2. The desk study and review of the existing legal and policy framework of the Philippines focused primarily on labor laws. The objectives included an analysis of Philippine laws, rules and regulations, establishing how such legislation and systems affect the work conditions of women, and making recommendations for legislative reforms that will promote decent and expanded employment opportunities for them. The study highlighted several gender issues: On promoting access to employment A range of legislation covers access to employment in the Philippines, including recruitment and placement of workers.3 However, an effective employment agency system which includes both free public employment agencies and regulated private fee charging employment agencies should also ensure that workers are treated
National Consultant on RDTA 7700, Technical Assistance Project, Promoting Gender Equality in the Labor Market for more Inclusive Growth. 2 In the course of the study, the team conducted visits to several governmental agencies including the Bureau of Working Conditions, the Bureau of Workers with Special Concerns and the Institute of Labor Studies of the Department of Labor and Employment (DOLE). Likewise, meetings were held with heads of the Bureau of Micro, Small and Medium Enterprises and Development (BMSMED) of the Department of Trade and Industry (DTI); as well as with officers from the Philippines Commission on Women (PCW), Overseas Workers Welfare Administration (OWWA), and representatives from the Federation of Free Workers (FFW), a labor union. 3 The Republic Act 8759 (An Act Institutionalizing A National Facilitation Service Network Through The Establishment Of A Public Employment Service Office In Every Province, Key City And Other Strategic Areas Throughout The Country) enacted on February 14, 2000, which created the Philippines Employment Service Office (PESO) likewise provides for public employment service, functioning as a referral and information center for job exchange purposes. Access to self-employment is afforded to women through the passage of the Republic Act No. 7882, An Act Providing Assistance to Women Engaging in Micro and Cottage Business Enterprises, and for Other Purposes", the National Dairy Development Act of 1995, the Agriculture and Fisheries Modernization Act of 2004, as well as the Social Reform and Poverty Alleviation Act of 1997, which provides assistance to women entrepreneurs to secure funds for capitalization. Likewise, the right of women to apply for, hold, and own land in their names finds support in the Comprehensive Agrarian Reform Law of 1988.
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without discrimination on the basis of sex, and provide decent work conditions. As such, the present legislation needs to be revised and/or amended to be fully effective if full access to employment is to be truly afforded to women. Government should pursue a more proactive role in ensuring that gender based discrimination does not occur at the early stages of the pre-employment process. While the aim of overall legislation is to afford women their right to economic independence, in practice, women are hampered as they frequently depend upon the economic decisions of men in the family. Men control, to a considerable degree, the finances of the family, as well as decision making in matters pertaining to the administration of property and family assets. Access to employment is necessary to ensure women gain economic independence. However, this will not be achieved if women remain subject to the decisions of men, particularly in matters concerning family finances and property. In terms of access to contract employment, the offering of short term contracts appears to be prevalent in large companies or industries, and mostly involves using workers who are engaged as contractors through external service providers. The Labor Code provides for 6 months probationary employment. An employee who is allowed to work after the probationary period is to be considered a regular employee. However, some employers, in order to avoid making their employees regular employees, will instead offer 5 months contracts to employees, subject to renewals, to avoid having to regularize their employment. Although both men and women are affected, by and large women make up significant numbers of the nonregularized workforce. Similarly, independent service providers have been found to maintain their employees as casuals or contractual workers (largely women), who have terms of employment which are set to expire before the 5-month mark is reached. On eliminating constraints to womens employment Despite the passage of several laws prohibiting discrimination against women, gender discriminatory acts persist. Domestic helpers, home workers or workers in cottage industries, mostly women, remain disadvantaged in the application of many labor standards including that of minimum wages and leave benefits. Article 98 of the Labor Code specifically provides for the exclusion of domestic service and persons working in their respective homes in needlework or in any cottage industry duly registered in accordance with law, in the application of the provisions on wages. Minimum wage rates for domestic helpers are provided under Articles 141-152 of the Labor Code, and are considerably much lower than the applicable wage rates prevailing in ther regions. While it has become mandatory for the registration and inclusion of domestic helpers to enable them to receive social service benefits, very few employers actually comply with these requirements, due to the absence of effective

monitoring mechanisms to ensure compliance. indirect gender discrimination.

This act of omission is a form of

In terms of vocational training, training courses undertaken by women are still largely concentrated in traditional female jobs. Thus, there needs to be a strategy which informs women and encourages their participation in a wider range of courses for skill development for present and future employment prospects. The Paternity Leave Act grants special leave benefits to men whose legitimate spouses give birth to a child. In a similar manner, such benefits are also provided under the Republic Act No. 7322 providing maternity benefits to mothers. The Solo Parents Welfare Act of 2000 also provides leave benefits to solo parents. Although the enactment of such legislation recognizes the shared parental responsibilities of men and women in the rearing of the family, an obligation previously delegated to women alone, further amendments are necessary in order to make these laws fully apply to women, without distinction to their marital status. The Paternity Leave Act should likewise be extended to include unmarried males who father illegitimate children, so that the female partner can enjoy shared parental responsibility with the father of her child, and thus lessen the burden of rearing the child on her own. As the apparent objective of the law is to afford protection to the family, the legislation should not be limited to married couples, disregarding similar needs of those not married to each other. Furthermore, gender gaps in employment remain, affecting both public and private sectors. The study shows that despite their educational achievements, women have not fared well in the Philippine labor market. Women appear to be concentrated in industrial sectors with low daily wage rates, particularly in the lower part of the wage distribution ladder, the sticky floors domain, where labor market gender segregation most occurs.4 While the Magna Carta for Women provides for temporary special measures5 to address gender gaps in employment, specifically in the public sector, its effectiveness remains undetermined. On improving womens work conditions In the Philippines, the right to form and join associations and unions is a right afforded to all. However, women workers are often a minority in the workforce and their needs are not necessarily taken into account by male members. In addition, if women wish to set up a union or association themselves, the membership requirement for registration set out in Article 234(c) of the Labor Code is a minimum of 20% of all employees in the bargaining unit. This often poses a deterrent to such a minority group acquiring legitimate status through registration as a labor union. The requirements need to be flexible if womens participation is to be encouraged.
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Part III of the Report. Within the next (5) years, the number of women in third (3rd) level positions in government shall be incrementally increased to achieve fifty-fifty (50-50) gender balance. (Section 11(a), Chapter IV of the Magna Carta of Women.

In addition, women working within the public service may similarly suffer from indirect gender discrimination in relation to forming their own union as a consequence of Executive Order 180 of 2004. This Order increased membership requirements for a Public Service Union to gain legal personality, from 10% to 30% of the total rank-and-file across the country. Again, if women wished to form their own union, this requirement would impair their right to freedom of association. Further, women have lower labor force participation rates in comparison to men. The numbers of women who are workers on own account or otherwise working in the informal sector, are very large and in the absence of them collaborating by occupation or by locality, their voices are not heard about matters which could improve their working circumstances. Existing unions could assist with that process by expanding their activities to include the informal sector. The Labor Code could also be amended to expressly include representation of informal workers or micro and small enterprises. Further, programs could be developed by DOLE to encourage the participation of women in collectives or associations to enable them to improve their own bargaining position in the labor market. Unions are often also fragmented. Under the Labor Code, collective bargaining takes place at the individual enterprise level; and the legislation does not allow collective bargaining by industry. Data taken from the Philippine Labor and Employment Plan reveal that collective bargaining agreements and collective negotiation agreements (2004-2009) cover workers mostly from the public sector, representing a small proportion of the overall workforce. The overall weakness of unions could be improved by temporary special measures which essentially aim to encourage women members and representation in the higher levels of the unions and ensure that the unions are gender responsive to their needs, including leadership development and opportunities. Such activities would have the combined effect of improving the numbers and potential impact as well as empowering women. Laws which seek to improve better working conditions to women include (i) "An Act Establishing a Day Care Center in Every Barangay, Instituting Therein a Total Development and Protection of Children Program, Appropriating Funds Thereof, and for Other Purposes"; (ii) An Act Declaring Sexual Harassment Unlawful in the Employment, Education of training Environment, and for other Purpose, which penalizes the use or demand of sexual favor as a condition in the hiring or in the employment, re-employment or continued employment of an employee, women being the usual victims; and (iii) An Act Allowing the Employment of Night Workers, Thereby Repealing Articles 130 and 131 of Presidential Decree Number Four Hundred Forty-Four, as Amended Otherwise Known as the Labor Code of the Philippines. Despite the passage of a variety of legislation, there remains a disconnect between government policies aimed at promoting gender equality and the participation of the private sector in achieving gender balance in the work place. Preference still weighs in favor of hiring men over women sharing similar skills and qualifications. 4

More men occupy executive positions, even in the public sector. Harassment in the workplace still also persists. All in all, there is a failure to launch effective government programs to enjoin and even encourage firms and industries into actually complying and observing gender equality initiatives. Monitoring by the government of such compliance, or lack thereof, remains lax, as labor inspections are not undertaken seriously, allowing discriminatory practices to remain uncorrected. For growth to be inclusive, it must include women. The Philippines has enacted various gender equality legislation and pursues womens empowerment policies. Nonetheless, much work needs to be done. Laws need to be revisited to ensure that gender discriminatory or other disadvantaging provisions are completely eliminated. Active interventions need to be pursued by the government to achieve real gender equality and promote the advancement of women. Effective implementation of policies and programs must be undertaken if these goals are to be achieved.

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The views expressed in this paper are the views of the authors and do not necessarily reflect the views or policies of the Asian Development Bank (ADB), or its Board of Governors, or the governments they represent. ADB does not guarantee the accuracy of the data included in this paper and accepts no responsibility for any consequence of their use. The countries listed in this paper do not imply any view on ADB's part as to sovereignty or independent status or necessarily conform to ADB's terminology.