by Paula Määttä

X. Philippines

B. Scope of the concepts on equal pay

1. The definition of "pay"

Pay includes wage, salary or any other form of remuneration, and fringe benefits. In the Philippines Labour Code, the term "wage" is defined as follows:

"... the remuneration or earnings, however designated, capable of being expressed in terms of money, whether fixed or ascertained on a time, task, piece, or commission basis, or other method of calculating the same, which is payable by an employer to an employee under a written or unwritten contract of employment for work done or to be done, or for services rendered or to be rendered and includes the fair and reasonable value, as determined by the Secretary of Labour, of board, lodging, or other facilities customarily furnished by the employer to an employee. Fair and reasonable value shall not include any profit to the employer or to any person affiliated with the employer."

Fringe benefits include welfare leave, maternity leave (six weeks with full pay), separation or retirement pay, paternity leave, emergency leave, death assistance, holiday and sick leave, and union business leave. (cedaw 1989, 130.)

The 13^th month pay required by law is included in the total basic salary earned by an employee within a calendar year. Also included are cost-of-living allowances. The basic salary includes all remuneration and earnings, but does not include allowances in the computation of the amount of retirement and other benefits payable to an employee. (Azucena 1991, III-70.)

Since most employees are paid on a piece rate basis, they end up being paid at levels below the legislated minimum wage, which restricts the application of equal pay. Users of so-called non-wage labour are by law not obliged to pay the minimum wage, provide social benefits, or award bonuses that are normally afforded to wage employees. Moreover, it is difficult for the Government to enforce the laws because the transactions between the "users" of labour and employees are usually informal. At any rate, such non wage employees tend not to be organized.

As a rule, a bonus is an amount paid to an employee for diligence and loyalty. From the legal point of view, payment of a bonus not normally an enforceable obligation, but it is legally payable when it is made part of the wage, in which case it would be a fixed amount. (Azucena 1991, III-82.) Because the specific terms of a bonus system are known only known to the employer and the employee concerned and is not regulated by law, the result may be increased wage differentials between men and women.

2. The definition of "equal work"

The legislation of the Philippines requires that equal remuneration is to be paid to both men and women for work of equal value. Rule XI, Book III, § 5(a) of the Rules implementing the Republic Act No. 6725, which is the 1989 legislation that amended the Labour Code, provides that "work of equal value refers to activities, jobs, tasks, duties or services of workers or employees are required or called upon to perform and which are identical or substantially identical".

In regard to work of equal value, salaries and wages are determined through grade and rank in the public sector and through position and responsibilities in the private sector.

The Government of Philippines reply to the Direct Request, 1990, of the Committee of Experts was:

"Although it is admitted that more men occupy higher positions or jobs, which exact greater physical demands, this is attributable more to personal preference (i.e. most married women prefer to stay at home and most do not prefer physically demanding jobs) than anything else. The prohibition against night work is also a factor in this regard. In any case, it should be noted that Filipino males do not find it at all uncomfortable working for women."

3. Scope of the equal pay provisions

The Labour Code of the Philippines (Presidential ecree No. 442) applies to private companies, which are required to implement equality in their policies. Rule XII, § 1 states that the rules implementing the Labour Code in respect to the employment of women applies "to all employees whether operating for profit or not, including educational, religious and charitable institutions, except to the Government and to government-owned or controlled corporations and to employers of household helpers and persons in their personal service insofar as such workers are concerned."

The Civil Service Law (Presidential Decree No 807) requires all government departments to observe equality in relation to their employment practices.

The equal pay provisions also cover night work in cases where women are allowed to work at night, which is defined as beyond 10 oclock at night, or beyond midnight in the case of employees of commercial or non-agricultural enterprises (Rule XII, § 5). Women are prohibited from doing night work with some exceptions: in cases of actual or impending emergencies caused by serious accident, urgent work to be performed on machinery to avoid serious economic loss or loss of perishable goods, where the female employee holds a responsible position of managerial or technical nature, where the nature of the work requires the manual skill and dexterity of women workers, or where the women employees are immediate members of the family operating the establishment.

The relevant provisions cover different kinds of work forms, whether fixed or ascertained on a time, task or piece basis. It covers all kinds of contracts, written or unwritten contracts of employment for work or for services.