Laws and Rules Governing Family Drivers and Kasambahay
Are family drivers and kasambahay governed by the Labor Code?
Prior to R.A. 10361 or the Kasambahay law, Article 141, Chapter III, Book III on Employment of Househelpers of the Labor Code provides that family drivers are covered in the term domestic or household service. It states that such Chapter shall apply to all persons rendering services in household for compensation.
“Domestic or household service” is defined as service in the employer’s home which is usually necessary or desirable for the maintenance and enjoyment thereof and includes ministering to the personal comfort and convenience of the members of the employer’s household, including services of family drivers.
Thus, under the Labor Code, the rules for indemnity in case a family driver is terminated from the service shall be governed by Article 149.
If the period of household service is fixed, neither the employer nor the househelper may terminate the contract before the expiration of the term, except for a just cause. If the househelper is unjustly dismissed, he or she shall be paid the compensation already earned plus that for fifteen (15) days by way of indemnity.
If the househelper leaves without justifiable reason, he or she shall forfeit any unpaid salary due him or her not exceeding fifteen (15) days.
However, Section 44 of Republic Act No. 10361, otherwise known as the “Domestic Workers Act” or “Batas Kasambahay” (Kasambahay Law), expressly repealed Chapter III (Employment of Househelpers) of the Labor Code, which includes Articles 141 and 149 mentioned above.
The Kasambahay Law, on the other hand, made no mention of family drivers in the enumeration of those workers who are covered by the law. This is unlike Article 141 of the Labor Code.
Section 4(d) of the Kasambahay Law states that Domestic worker or “Kasambahay” refers to any person engaged in domestic work within an employment relationship such as, but not limited to, the following: general househelp, nursemaid or “yaya”, cook, gardener, or laundry person, but shall exclude any person who performs domestic work only occasionally or sporadically and not on an occupational basis.
The term shall not include children who are under foster family arrangement, and are provided access to education and given an allowance incidental to education, i.e.[,] “baon”, transportation, school projects
Acquire Mastery of HR/Labor Doctrines, Rules and Principles with Atty. Elvin’s HR Bundle Books at Discounted Rate
and school activities.
Thus, Section 4(d) of the Kasambahay Law pertaining to who are included in the enumeration of domestic or household help cannot also be interpreted to include family drivers because the latter category of worker is clearly not included.
According to the Supreme Court in the case of Atienza vs. Saluta [G.R. No. 233413, June 17, 2019], it is a settled rule of statutory construction that the express mention of one person, thing, or consequence implies the exclusion of all others — this is expressed in the familiar maxim, expressio unius est exclusio alterius.
Moreover, Section 2 of the Implementing Rules and Regulations of the Kasambahay Law provides that the IRR shall apply to all parties to an employment contract for the services of the following Kasambahay, whether on a live-in or live-out arrangement, such as but not limited to:
(a) General househelp;
(b) Yaya;
(c) Cook;
(d) Gardener;
(e) Laundry person; or
(f) Any person who regularly performs domestic work in one household on an occupational basis.
The following are not covered:
(a) Service providers;
(b) Family drivers;
(c) Children under foster family arrangement; and
(d) Any other person who performs work occasionally or sporadically and not on an occupational basis. (Emphasis supplied)The above rule clarified the status of family drivers as among those not covered by the definition of domestic or household help as contemplated in Section 4(d) of the Kasambahay Law.
According to the SC, such provision should be respected by the courts, as the interpretation of an administrative government agency, which is tasked to implement the statute, is accorded great respect and ordinarily controls the construction of the courts. Moreover, the statutory validity of the same administrative rule was never challenged.
The SC held that the constitutionality or validity of laws, orders, or such other rules with the force of law cannot be attacked collaterally. There is a legal presumption of validity of these laws and rules.
Unless a law or rule is annulled in a direct proceeding, the legal presumption of its validity stands. And while it is true that constitutional provisions on social justice demand that doubts be resolved in favor of labor, it is only applicable when there is doubt. Social justice principles cannot be used to expand the coverage of the law to subjects not intended by the Congress to be included.
According to the SC, due to the express repeal of the Labor Code provisions pertaining to househelpers, which includes family drivers, by the Kasambahay Law; and the non-applicability of the Kasambahay Law to family drivers, there is a need to revert back to the Civil Code provisions, particularly Articles 1689, 1697 and 1699, Section 1, Chapter 3, Title VIII, Book IV thereof.
With the reversion to the said provisions, the relationship shall be governed accordingly. Article 1689 provides that household service shall always be reasonably compensated. Any stipulation that household service is without compensation shall be void. Such compensation shall be in addition to the househelper’s lodging, food, and medical attendance.
While Article 1697 provides that if the period for household service is fixed neither the head of the family nor the househelper may terminate the contract before the expiration of the term, except for a just cause. If the househelper is unjustly dismissed, he shall be paid the compensation already earned plus that for fifteen days by way of indemnity. If the househelper leaves without justifiable reason, he shall forfeit any salary due him and unpaid, for not exceeding fifteen days.
In Art. 1699, upon the extinguishment of the service relation, the househelper may demand from the head of the family a written statement on the nature and duration of the service and the efficiency and conduct of the househelper.
Thus, according to the SC, the reason for reverting back to the Civil Code provisions on household service is because Section 44 of the Kasambahay Law expressly repealed Articles 141 to 152 of the Labor Code which deals with the rights of family drivers. Obviously, an expressly repealed statute is not anymore binding for it has no more force and effect.
On the other hand, Article 302 of the Labor Code, its repealing clause, which provides that all labor laws not adopted as part of thereof either directly or by reference are repealed. All provisions of existing laws, orders, decrees, rules and regulations inconsistent herewith are likewise repealed.
It did not repeal the said Civil Code provisions since they are not inconsistent with the Labor Code. Besides, repeals by implication are not favored as laws are presumed to be passed with deliberation and full knowledge of all laws existing on the subject, the congruent application of which the courts must generally presume.
Since what were expressly repealed by the Kasambahay Law were only Articles 141 to 152, Chapter III of the Labor Code on Employment of Househelpers; and the Labor Code did not repeal the Civil Code provisions concerning household service which impliedly includes family drivers as they minister to the needs of a household, the said Civil Code provisions stand. To rule otherwise would leave family drivers without even a modicum of protection. Certainly, that could not have been the intent of the lawmakers.
Learn how to Validly Terminate Employee in the Philippines with this Tutorial Video of Atty. Elvin 
Read more on procedural due process discussion by Atty. Elvin:
Read more on procedural due process by Atty. Villanueva:
Twin Requirements of Notice and Hearing