In the recent Department Order No. 238, series of 2023 (D.O. 238), the Department of Labor and Employment (DOLE) provided three (3) new approaches to the administration and enforcement of labor standards, to wit: 1) Technical and Advisory Visit (TAV); 2) Labor Inspection; and 3) Occupational Safety and Health (OSH) Investigation.[1]
D.O. No. 238 supplements Article 128 of the Labor Code granting the DOLE visitorial and enforcement powers,[2] as well as Republic Act No. 11058 which strengthens compliance with occupational and health standards in the workplace.[3]
D.O. No. 238 likewise enumerates the establishments which shall be prioritized for inspection, namely those engaged in hazardous work, those employing children and/or women, construction projects, Philippine-registered ships or vessels engaged in domestic shipping, fishing vessels, those engaged in contracting and subcontracting agreements, those subject of Single-Entry Approach (SEnA) referral, anonymous complaint, or request for inspection, and other establishments as may be determined by the Secretary of Labor and Employment.[4]
Technical Advisory Visit (TAV)
This first approach empowers the DOLE’s Labor Inspector (LI) or the Assistant Labor Inspector (ALI) to conduct the TAV on micro establishments employing less than ten (10) workers. The TAV—which may be conducted online, onsite, or through hybrid sessions—shall cover general labor standards, OSH standards, productivity toolbox, child and family welfare program, and other DOLE policies and programs.[5]
The LI or ALI shall require micro establishments to accomplish and submit a Visit Checklist at the end of the TAV session. In case of compliance gaps, the LI or ALI shall also require these micro establishments to accomplish an Action Plan indicating the interventions and further technical assistance needed, and subsequently correct the noted non-compliances within three (3) months from receipt of the Action Plan. The Action Plan serves as the basis of the micro establishments in developing strategies to eventually comply with labor standards and increase productivity.[6]
The LI or ALI shall monitor the micro establishments’ compliance with the Action Plan.[7] At the end of the three-month period, the Regional Director shall issue an Authority to Visit through which the LI will validate the Visit Checklist and further review employment records, interview the employees, and inspect the work premises.[8]
In case there are violations by the micro establishments, the LI shall issue a Notice of Visit Results indicating the noted violations with the applicable standards. Further, if there is unjustifiable failure to attend the TAV session despite receipt of two (2) invitations, failure to accomplish the TAV checklist after receipt of two (2) notifications, or failure to prepare an action plan, the LI may proceed to inspect the said micro establishments.[9]
More importantly, in case the LI discovers non-coverage of employees and/or non-remittance of premiums to the SSS, Pag-IBIG, and PhilHealth, the Regional Director shall immediately endorse the LI’s finding to their respective offices after the lapse of the twenty-day correction period.[10]
Labor Inspection
The second approach of Labor Inspection involves the LI’s examination of employment records [of establishments] for the past three (3) years, the interview of employees, and the inspection of work premises to validate employment relationships based on the four-fold test or the economic dependence test and to determine compliance with general labor standards, OSH standards, and other social legislation.[11]
After inspection, the LI shall conduct a Closing Conference and issue the Notice of Inspection Results to the representative of the employer and employees, including legitimate labor organizations complaining on behalf of the employees. The Notice shall contain findings on labor standards, OSH standards, and other social legislation.[12]
In case of violations of labor standards, D.O. No. 238 requires the employer to correct such violations within twenty (20) days from receipt of the Notice of Inspection Results.[13] Should immediate danger or dangerous occurrence exist during the inspection, the LI shall direct the employer to implement corrective actions to prevent further danger. The LI shall likewise submit a Narrative Report to the Regional Director having 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 twenty-four (24) hours from issuance of the said Order, which shall not be lifted until the imminent danger has been abated.[14]
OSH Investigation
Lastly, under the third approach, D.O. No. 238 authorizes the LI to conduct an OSH investigation where there exists disabling injury, imminent danger, or dangerous occurrence in the workplace. The LI shall direct the employer to implement corrective actions to immediately abate imminent danger, or temporary measures to prevent further disabling injury or dangerous occurrence should it exist during the inspection. The LI shall also check the compliance of the employer with other OSH standards.[15]
After investigation, the LI shall issue a Notice of Investigation Results to the representatives of the employer and employees containing the facts surrounding the incident, initial findings on the proximate cause of the imminent danger or dangerous occurrence, the violative act or fault of the employer, affected workplace or part thereof, names, numbers, and positions of the employees who shall be affected, recommendation for the abatement of the cause of imminent danger, and reason for the failure of the employer to abate the imminent danger or dangerous occurrence.[16]
In case the imminent danger cannot be abated during the investigation, or non-compliance with OSH standards poses grave and imminent danger to the health and safety of the employees or has resulted in a dangerous occurrence, the DOLE may immediately order stoppage of work or suspension of operation of any unit or department of an establishment.[17] Upon submission of proof of abatement of imminent danger, the Regional Director shall issue an Order lifting the Work Stoppage Order within twenty-four (24) hours, effective immediately. If imminent danger is due to the violation or fault of the employer, the latter shall pay the wages of the affected employees during the period of stoppage of work or suspension of operations.[18]
Similar to the TAV, the OSH Investigation also requires the LI to assist the employer in the preparation of the Action Plan for the remaining violations found during the investigation, and to monitor the same. The employer shall then submit proof of compliance to the Action Plan within twenty (20) days from the OSH investigation.[19]
Further, when the employer commits OSH violations in plain view or in the presence of the LI, the latter shall conduct an investigation and require the correction of said violations. The LI shall also direct the implementation of corrective actions and submit a Narrative Report with recommendation for immediate issuance of a Work Stoppage Order.[20]
Refusal of Access and Penalties
To further ensure compliance with labor standards, D.O. No. 238 mandates the filing of a criminal action against the employer or responsible officers of the establishment in case access to records, work premises, or employees has been refused during the conduct of inspection or investigation.[21] If denied on the first attempt, the LI issues a Notice for the Conduct Of Subsequent Inspection or Investigation. On the second attempt, however, the LI may already issue a Notice of Inspection Results or Notice of Investigation Results requiring the employer to attend a conference and explain the refusal of access.[22] If there is a continuing refusal to provide access, the Regional Director shall then indorse to the DOLE Legal Service the authority to inspect or investigate, notice of inspection results or notice of investigation results, narrative report of the LI, affidavit of refusal, minutes of the conference, and other pertinent documents for filing of the criminal complaint.[23]
We write this article to provide an overview about DOLE’s visitorial and enforcement powers and the required degree of compliance with labor standards. This article should not be taken as a form of legal advice. Should you need legal assistance on enforcement and compliance with labor standards, please send an email to ryan@romanolaw.ph.
[1] Section 1, Rule III, D.O. No. 238, Department of Labor and Employment (2023) [2] Article 128, Labor Code of the Philippines, renumbered, (2017) [3] R.A. No. 11058, otherwise known as “An Act Strengthening Compliance With Occupational Safety and Health Standards and Providing Penalties for Violations Thereof” (2017) [4] Id, Section 2 [5] Id, Section 1(c) [6] Id, Section 1(e) [7] Id, Section 1(f) [8] Id, Section 1(g) [9] Id, Section 1(h) [10] Id, Section 3 [11] Section 1b, Rule V, D.O. No. 238 [12] Id, Section 1(c) [13] Id, Section 1(d) [14] Id. [15] Section 1(b), Rule VI, D.O. No. 238 [16] Id, Section 1(c) [17] Id, Section 1(d) [18] Id, Section 1(e) [19] Id, Section 1(f) [20] Id, Section 1(g) [21] Section 1, Rule VII, D.O. No. 238 [22]Id, Section 2 [23] Id, Section 4