Nightwork Prohibition on Women: Protective or Restrictive?

Nightwork Prohibition on Women: Protective or Restrictive?
By: Ashleigh Panopio


Because I am a woman, I must make unusual efforts to succeed. If I fail, no one will say, "She doesn't have what it takes." They will say, "Women don't have what it takes.”
~Clare Boothe Luce

I. INTRODUCTION

A. Advent of Nightwork

Night work is a derivative of the industrial revolution of the eighteenth and nineteenth centuries. Most manual labor was compelled to cease as nighttime falls in. In agriculture, both human and animal labor occurred from sunrise to sunset. The conception was changed upon the construction of machineries that could work around the clock plus the furnishing of artificial lights. In the early stages of industrialization, working conditions were harsh. Not only were working hours long, but the manual labor was strenuous. Women workers were felt to be particularly affected as, in many cases, when they left the factory they returned to a home stripped of labor-saving equipments and faced the additional burdens of housework, cooking and child rearing.

B. Adoption of Nightwork Prohibition

The advent of night time working in factories disrupted long established social patterns predicated on working days and a weekly day of rest. Those concerned with improving the miserable circumstances of factory workers were struck by the particularly harsh impact of nightwork on women and children and thus made the adoption of measures to protect women and children from the harmful effects of night work a priority. In 1844, nightwork for women was first prohibited in England. Thirty years later succeeding the initiated prohibition, England’s approach was pursued by Switzerland in 1877, New Zealand in 1881, Austria in 1885, the Netherlands in 1889 and France in 1892. Law makers of that era perceived adult women and children as belonging to a special class of workers needing special attention, who, in fact, were not considered to be competent to make valid choices. The legislator’s motivation in promulgating this night work prohibition is not primarily because women were viewed as physically weaker than men, as more susceptible to exploitation, and primarily as mothers and housekeepers but the concern for women’s safety, moral integrity and health and for family welfare.


C. Filipina at Work

The Labor Code, otherwise known as Presidential Decree No. 442, is the principal labor law of the Filipina worker. It contains most of our labor laws, such as those on illegal recruitment, wages of workers, rights of union members, collective bargaining, and employment termination. It also deals with the rights of employers, such as the right to make and enforce reasonable regulations, to reorganize and economize, and to lay off lazy and undisciplined employees. Particulary, a specific title on the Code provides for acceptable and regulating working conditions for special groups of employees. The Filipina worker is embraced in the said group.

On Labor Day, May 1, 1974, a draft labor code was signed into law by Pres. Ferdinand E. Marcos. But because further revisions were necessary, the effectivity date was moved to November 1 of the same year. Further, Pres. Corazon C. Aquino did not repeal the Code but made necessary changes. Proposals to amend the Code still wait at the legislative mill but they are not milled so easily as before. While labor laws cannot be static, neither should they always be in a state of flux.

Almost 35 years had passed since the birth of the Labor Code. The birth of new business industries waged for amendments in labor policies as it may be considered obsolete. It can even be said that the Code has become prohibitive rather than protective. A myriad had transpired yet few amendments had been done. The timing is perfect more than ever to conduct an urgent and thorough review of the Philippine Labor Code to make it in tune with the sweeping changes in the labor market, specifically Article 130-131 on Nightwork Prohibition on Women.










II. BODY

A. Status Quo

1. Conventional Female Worker

There are many jobs which both men and women have come to regard as “women’s work” though they are not the same jobs in all countries. In time, no doubt, the field will widen considerably but, in the short term, endeavors to increase employment for women will often be centered around those occupations in which women have already made their mark. These female occupations usually have at least one of the following characteristics:

• The job is largely an extension of what women do in their homes;
• The training and experience requirements for the job fit in with women’s attitudes to work and home life;
• The educational requirements are very low, so that the job may be performed by a woman who has had little formal schooling;
• The educational and intellectual standards are very high, and much more important than the physical attributes;
• The job is one calling for delicacy of touch or digital dexterity;
• The job is of part-time nature.

The list is not exhaustive but it illustrates the characteristics which society as a whole, and women themselves, generally accept.


2. Filipina Worker and the Code

Last Labor Day of 2007, Sen. Edgardo J. Angara called for an urgent press release and proclaimed, “We have an almost unprecedented number of women entering the workforce. The nightwork prohibition against women currently in the Labor Code makes no sense now because we already have thousands of women working in call centers at unusual hours”. The Articles that the Senator is referring to is Article 130 on Nightwork Prohibition on women of the Labor Code:

Art. 130 NIGHTWORK PROHIBITION. – No woman regardless of age, shall be employed or permitted or suffered to work, with or without compensation:
(a) In any industrial undertaking or branch thereof between ten o’ clock at night and six o’clock in the morning of the following day; or
(b) in any commercial or non-industrial undertaking or branch thereof, other than agricultural, between midnight and six o’ clock in the morning of the following day; or
(c) In any agricultural undertaking at nighttime unless she is given a period of not less than nine (9) consecutive hours.



The above-stated law is made applicable for the purpose of protecting women’s reproductive health as well as from crimes prevalent at nighttime. It is however, coupled with partial fairness, rather, exceptions in the succeeding article:

Art. 131 EXCEPTIONS. – The prohibitions prescribed by the preceding article shall not apply in the following cases:
(a) In cases of actual or impending emergencies caused by serious accident, fire, flood, typhoon, earthquake, epidemic or other disasters or calamity, to prevent loss of life or property, or in cases of force majeure or imminent danger to public safety;
(b) In case of urgent work to be performed on machineries, equipment or installation, to avoid serious loss which the employer would otherwise suffer;
(c) Where the work is necessary to prevent serious loss of perishable goods;
(d) Where the woman employee holds a responsible position of managerial or technical nature, or where the woman employee has been engaged to provide health and welfare services;
(e) Where the nature of the work requires the manual skill and dexterity of women workers and the same cannot be performed with equal efficiency by male workers;
(f) Where the women employees are immediate members of the family operating the establishment or undertaking; and
(g) Under other analogous cases exempted by the Secretary of Labor in appropriate regulations.


Note that in paragraphs (a) to (c), the provisions were worded specially to allow nightwork of women in case of unexpected events to prevent losses. The same exists in 3 out of the 5 paragraphs in Article 89 of the Labor Code entitled “Emergency Overtime Work” . In the latter article, paragraph (a) permits overtime work in case of a national or local emergency as it is as equally important to preserve serious loss or damage in perishable goods and equipments and to provide aid in calamities. The exception on nightwork prohibition on women failed to consider the said paragraph thus preventing the female worker to render overtime service and aid in case of national or local emergency from 10:00 PM until 6:00 AM. Similarly, paragraph (e) of Article 89 calls for overtime work needed in completion or continuation of work to prevent serious obstruction in business operations. The job definition of the employee to whom the article may be applied seems to be in the commercial sector as maintenance of machines and loss of perishable goods belong to the industrial sector and agricultural sector respectively. Without the incorporation of the same paragraph in the exception on nightwork prohibition on women, businesses with female employers are left to suffer in case urgent completion of work needs to be done. An arm in operations can be seriously delayed; further, other business segments may be paralyzed.

The exclusion of paragraphs (a) and (e) of Article 89 on “Emergency Overtime Work” in the nightwork prohibition on women impedes women’s career development as being able to work extended working hours is seen by employers as an important indicator of work commitment. Clearly, female employees with whole-hearted dedication are left to be swept by male workers. The law permitted unfair competition in which the women are made to strive twice, thrice or even more to gain recognition and promotion from the employers. Another possible result of this legislation might be a limitation of working opportunity for those to whom such legislation applies. In other words, if certain standards are prohibitive legally on the employment of women, an employer might seek to evade this standard by dismissing his women employees and substituting men.

Continuing, the exceptional cases where women are prohibited work at night do not recognize the capabilities of female workers other than those engaged in health and welfare services. An implication exists that women are no better than health and welfare providers; women are discouraged to pursue fields in which male dominance in the workplace prevails. The end-result is that women are prevented from obtaining employment thus restricting their access to specific jobs and certain occupations. The prohibition is thus seen as contravening the principle of equality as they prevent women from exercising their right to equal access to jobs. Such case is more alarming than the previously stated unfair competition for commitment and dedication at work cannot be exhibited by any worker if at the first place, the person is unemployed.

An exception to the nightwork prohibition was also made in paragraph (e) for jobs which requires the dexterity of women employees and the same cannot be performed with equal efficiency by male employees. The approach in the clause is a remedial in a sense that a female worker is only sought because the same cannot be performed by a male worker. The very wording of the law suggests that a Filipina worker, a special group of worker under the Labor Code, is only a secondary option in case of non-fulfillment or inadequacies of a male worker.

Finally, the law provided for other circumstances analogous to the above-presented cases which may be exempted by the Secretary of Labor under “appropriate regulations”. The law is vaguely constructed and the clause “appropriate regulations” is prone to subjectivity. While it is ideal that a pending case shall be dealt similarly with a decided case of the same facts, reality presents that employers and employees can maneuver and make the unlawful into lawful. Bribery might be staged rendering the nightwork prohibition on women ineffective and useless.

B. Proposals
1. Senate Bill No. 265
Senator Francis N. Pangilinan authored Senate Bill No. 265 entitled “An Act Expanding the Exceptions From the Night Work Prohibition of Women Employees x x x” which has a pending legislative status since August 8, 2007. The bill recognizes that an increase in the IT industry has taken over the country and is expected to fill more than 24,000 jobs. It provided that “With the unemployment rate now at 11.3% as of January 2005, the possible jobs that will be generated by these call centers will be a welcome solution to the increasing unemployment rate.” The facts and figures are antiquated and yet current observation reveals that the author’s forecast is unmistaken.

The author proposed to expand the nightwork prohibition on women by including the exception “Where increasing demand for work provide equal opportunities to work at night” . The proposed expansion is vaguely worded and can be interpreted in various ways. Assuming therefore that the proposal is approved, would not the added paragraph only confuse parties? Demand for work in the country is never depleting and the unemployment rate is always high in number. Does this necessarily mean that every woman is exempted? The logic is that the proposed expansion, if taken literally, will exempt all female job seekers from the nightwork prohibition. For this reason, it will appear that the nightwork prohibition on women is absolutely without effect yet the prohibition remains written in the Code.

The expansion can also be interpreted to be exclusive for call center workers. In the explanatory note of the author, such around the clock industry was faithfully mentioned as a provider of a considerable number of employments. It can be said that spirit of the proposal are those caused by the emergence of call centers. In such case, the proposed expansion is insufficient for nothing is fully achieved for as long as a woman is deprived of equal employment opportunity.
2. Author’s Proposal

In a study presented by Yana van der Meulen Rodgers to the World Bank, she concluded that:


Social policies designed to protect female workers and promote workplace equality have controversial effects on labor market outcomes. Empirical evidence tends to support the prediction that protective measures will reduce women’s welfare by limiting the choice set of compensation packages. This conclusion holds most strongly for measures that directly exclude women from certain types of work.


Clearly, the nightwork prohibition on women is discriminatory in numerous ways. The system supports occupational segregation by preventing women from entering the industries where night work is an essential practice. Women are deprived to higher pay due to the night differential pay and premium pay offered by outsourcing and local companies. Moreover, it impedes women’s career growth as being able to work extended working hours and night shifts - traits seen by employers as an important indicator of work commitment.

The exceptions granted in the Code are not an acknowledgment of women’s needs but is more a response to capitalist interests. The woman as implied by the law is seen only as a reliever, one who can work at nighttime when loss is feared by the employers. Furthermore, to argue protection of a woman’s reproductive health is unacceptable for a man’s reproductive is equally at risk. After all, for conception to occur, both partners must be sterile and is not the sole responsibility of the woman.

The nightwork prohibition prohibits the mobility of women at night. It oversees the peril that neither threatens women nor protects workplaces and thoroughfares for them. It is ideal that women should have the freedom of movement at any time of the day. Legislations like the night work prohibition exhibits the so-called “preventive approach” by the government. “An attribute of this approach is an unquestioning acceptance of and focus on the immediate dangers faced by women, ignoring or glossing over the analysis of why there are such dangers in the first place and why women are especially vulnerable to them.” The nighttime prohibition fails to acknowledge women’s financial burdens - when survival forces them to work even at nighttime, or when available work for them is only at night.

Republic Act No. 7192, promulgated on February 12, 1992, pushed for the integration of women as full and equal partners of men in development and nation-building. In its declaration of policy, R.A. No. 7192 provides that “The state recognizes the role of women in nation-building and shall ensure the fundamental equality before the law of women and men.” The State is required to provide women rights and opportunities equal to those of men. Equal opportunity cannot be stressed enough as it is embodied in the Constitution, the law that is paramount to all laws. Section 15 mentions, “The State recognizes the role of women in nation-building, and shall ensure the fundamental equality before the law of women and men.” For these reasons, an abolition of Articles 130-131 is only valid and necessary.

The proposed elimination of the nightwork prohibition is not absolute. Minors shall be excluded from nightwork. Pregnant mothers should also be excluded and instead be transferred to day shift. For this process, the pregnant mother must seek the approval and advice of a medical professional in determining the appropriate time to be transferred to day shift.


Furthermore, mere abolition of the restrictive provision does not solve the of equal employment opportunity. Factors such as safe and healthful working conditions uniquely applicable to nightwork should be thought of as written in the Constitution:


Sec. 14. The State shall protect working women by providing safe and healthful working conditions, taking into account their maternal functions, and such facilities and opportunities that will enhance their welfare and enable them to realize their full potential in the service of the nation.



As such is protected and promoted in the Constitution, the following are proposals in addition to the abolition of the nightwork prohibition:

(1) While during the day, a mother can bring her children to a nursery or a house helper, such services and facilities are unavailable at night. A nursery should then be made available in partnership with the employer. With the establishment of nurseries, the women may no longer be nailed at home to look over the kids at night;
(2) Lack of transportation and necessity to commute in naturally more insecure time of the day further question night work safety. Employers should be able to provide transportation from the workplace to the nearest and most secure commuting station. Expenses may be shouldered by the employees for the suggested private transportation is the same as boarding a public vehicle. The former is of course safer for it will be under the control of the management;
(3) Programs in self-defense are encouraged to be taught by businesses operating at night. This will armor the night employees if and when all else fails and the person is left helpless because of grave and imminent danger; and
(4) Provision of free-lodging at the workplace should be made available for employees who wish to wait for sunrise before leaving work.


Thinking critically, the additional proposals benefit not only the women but also the men. The four proposals is not only applicable if the nightwork prohibition is lifted but even now when all men and some exempted women are made to suffer to work at night. Clearly, lawmakers should



III. SUMMARY, CONCLUSION AND RECOMMENDATION
The advent of nightwork was during the industrial revolution of the eighteenth and nineteenth centuries. Working hours were long and labor was strenuous. Women workers were felt to be particularly affected as, in many cases, when they left the factory they returned to a home stripped of labor-saving equipments and faced the additional burdens of housework, cooking and child rearing. Through the years, several legislations adopted policies restricting nightwork on women. The Philippines adopted the same and it is reflected in the Labor Code which was written in 1974.

Thirty-five years later, technological advances were made and businesses are booming like never before. A handful of foreign companies are dependent into business process outsourcing. Local business are operating non-stop in an effort to meet profit.

The Filipina worker however cannot wholly reap the benefits that globalization had caused. Due to the nightwork prohibition law as embodied by Articles 130-131 of the Labor Code, the Filipina worker are made to suffer:
(1) The system supports occupational segregation by preventing women from entering the industries where night work is an essential practice;
(2) Women are deprived to higher pay due to the night differential pay and premium pay offered by outsourcing and local companies; and
(3) Impedes women’s career growth as being able to work extended working hours and night shifts - traits seen by employers as an important indicator of work commitment.

A proposal by Senator Pangilinan attempts to expand the prohibition by adding the clause “Where increasing demand for work provide equal opportunities to work at night”. The addition, however, are subject to vague interpretations and such does not resolve the cry of the Filipina worker. The protective law in turn transforms to be restrictive as women are deprived of equal employment opportunity.

A complete abolition of the nightwork prohibition is deemed necessary. The legislation should prioritize the proposed amendment for the Filipinas have suffered far too long. Yet, if women are denied access to nightwork it does not mean that simply by abolishing the ban one can establish gender quality at workplace. One should carefully examine why the nightwork prohibtion refer to the detrimental effects of night work on women’s health and safety. Beyond the said reasons, a stereotyping of societal roles prevents a quantity of women to earn at night. A woman is said to be concerned with housework, child-rearing and cooking. Women bear the multiple burden or double day, meaning a woman’s work is never over even when she arrives home as compared to a man’s work day. With the never-ending responsibilities, a woman may not opt to work at night for a change in body clock will impose additional stress even if higher pay is offered.

Along with the abolition of the said law, the government should seek the establishment of the following as responses not only for the health and safety of women:
(1) A nursery should then be made available in partnership with the employer. With the establishment of nurseries, the women may no longer be nailed at home to look over the kids at night.
(2) Employers should be able to provide transportation from the workplace to the nearest and most secure commuting station
(3) Programs in self-defense are encouraged to be taught by businesses operating at night.
(4) Provision of free-lodging at the workplace should be made available for employees who wish to wait for sunrise before leaving work.