ii. Visitorial and Enforcement Powers (DO 238, s. 2023)

2. Visitorial and enforcement powers

a. Department Order No. 238, series of 2023

H. DOLE Secretary

• Visitorial and Enforcement Powers – Labor Code, arts. 128 and 289
• Power to Suspend Effects of Termination – Labor Code, art. 292 (b)

Jurisdiction of DOLE RDs

• Visitorial power. (Art. 128, Labor Code)
• Simple Money Claims not exceeding Php 5,000. (Art. 129, Labor Code)

Visitorial Power

Power of the Secretary of Labor or his duly authorized representative, including labor regulation officers to:

• Have access to employer’s records and premises at any time of the day or night whenever work is being undertaken therein
• Right to copy records
• To question any employee
• Investigate any fact, condition, or matter which may be necessary to determine violations or which may be necessary to aid in enforcement of the Labor Code or any labor law or order

Enforcement Power

Power of the Secretary of Labor or his duly authorized representative, including labor regulation officers to:

• Issue compliance orders to give effect to labor legislation based on the findings of employment and enforcement officers or industrial safety engineers made in the course of inspection
• Issue writs of execution to the appropriate authority for the enforcement of their orders, EXCEPT in cases where the employer contests the findings of the labor employment and enforcement officer and raises issues supported by documentary proofs which were not considered in the course of inspection and not verifiable in its normal course – in the latter case, the case will have to be forwarded to a Labor Arbiter
• Order Work Stoppage / Suspension of Operations when non-compliance with the law or IRR poses grave or imminent danger to the health and safety of the workers in the workplace
• Conduct hearings within 24 hours to determine whether:
• An order for stoppage of work / suspension of operations shall be lifted or not; and
• Employer shall pay the employees concerned their salary in case the violation is attributable to his fault

Note: EER must still exist at the time of the initiation of the action for the Secretary or his authorized representative to exercise Enforcement Power.

When Enforcement Power Cannot be Used

• Case does not arise from exercise of visitorial power
• When EER ceased to exist at the time of inspection
• If employer contests finding of the labor officer and such contestable issue is not verifiable in the normal course of inspection

Comparison: Enforcement Power under Art. 128 vs. Adjudicatory Power under Art. 129

Before the DOLE may exercise its power under Art. 128, two important things must be resolved:

• Does the employer – employee relationship still exist, or alternatively, was there ever an employer – employee relationship to speak of; and
• Are there violations of the Labor Code or any of the labor laws?

Note: The existence of EER is a statutory prerequisite to a limitation on the power of the Secretary of Labor, on which the legislative branch is entitled to impose.

Art. 128’s grant of visitorial and enforcement powers is for the purpose of determining violations of, and enforcing, the Labor Code and any labor law, wage order, or rules and regulations. If there is no employer-employee relationship in the first place, the duty of the employer to adhere to labor standards with respect to the non-employees is questionable.

Enforcement

Any law enforcement agency may be deputized by the DOLE Secretary or the NLRC.

Issuance of writ of execution on a judgment within 5 years from date it becomes final and executory motu proprio or in motion of any interested party.