May the Executive Department Handle the Certification Election of Judiciary?

ISSUE
We are asked in this petition to ascertain the power, if any, of the Department of Labor and Employment (DOLE), more specifically the Bureau of Labor Relations (BLR), to supervise the activities of government employees; in this case, unions of judiciary personnel who serve in the Court of Appeals.

The question of power is quite significant. Hitherto, the BLR has concentrated on labor relations in the private sector. Its enforcement machinery and the mass of law and jurisprudence governing its functions are entirely geared to the handling of the peculiar problems arising in private employment. In this case, the BLR has tasked itself to intervene not only in a quarrel between two groups of government employees but more important, in a quarrel between employees working for an independent branch of government, the Judiciary.

The issue of what governs and who supervises unions of government employees is of more than passing concern especially when those who organize and hope to engage in certain forms of concerted action are court employees.

What is the law which governs certification elections in the Court of Appeals?

RULING:  YES

All this does not mean that the separation of powers doctrine requires us to supervise the details of self-organization activities in the courts. In the same way that CSC validly conducts competitive examinations to grant requisite eligibilities to court employees, we see no constitutional objection to DOLE handling the certification process in the Court of Appeals, considering its expertise, machinery, and experience in this particular activity. Executive Order No. 180 requires organizations of government employees to register with both CSC and DOLE. This ambivalence notwithstanding, the CSC has no facilities, personnel, or experience in the conduct of certification elections. The BLR has to do the job.

Executive Order No. 180 states that certificates of registration of the legitimate employee representatives must be jointly approved by the CSC Chairman and the DOLE Secretary. Executive Order No. 180 is not too helpful in determining whose opinion shall prevail if the CSC Chairman and the DOLE Secretary arrive at different conclusions. At any rate, we shall deal with that problem when it occurs. Insofar as power to call for and supervise the conduct of certification elections is concerned, we rule against the petitioner.

References:

Association of Court of Appeals vs Ferrer - Calleja (Union of Concerned Employees of the Phils.)
GR 94716 (1991, Third Division)

Executive Order No. 180 issued on June 1, 1987
"Providing Guidelines for the Exercise of the Right to Organize of Government Employees; Creating a Public Sector Labor-Management Council; and for Other Purposes."

Do the Government Employees Enjoy the Right to Form and Join Union?

Yes. There is no question that government employees may organize provided the purposes behind such organization are legitimate.

While the Labor Code is silent, the 1987 Philippine Constitution under Article 3 - Bill of Rights provides :

Section 8. The right of the people, including those employed in the public and private sectors, to form unions, associations, or societies for purposes not contrary to law shall not be abridged.

Note: 
Employee Association is to Public Sector as Labor Organization or Union to Private Sector


References:

Executive Order No. 180 issued on June 1, 1987
"Providing Guidelines for the Exercise of the Right to Organize of Government Employees; Creating a Public Sector Labor-Management Council; and for Other Purposes."

Section 2. All government employees can form, join or assist employees’ organizations of their own choosing for the furtherance and protection of their interests. They can also form, in conjunction with appropriate government authorities, labor-management committees, works councils and other forms of workers’ participation schemes to achieve the same objectives.

Association of Court of Appeals vs Ferrer - Calleja (Union of Concerned Employees of the Phils.)
GR 94716 (1991, Third Division)

ISSUE
We are asked in this petition to ascertain the power, if any, of the Department of Labor and Employment (DOLE), more specifically the Bureau of Labor Relations (BLR), to supervise the activities of government employees; in this case, unions of judiciary personnel who serve in the Court of Appeals.

The question of power is quite significant. Hitherto, the BLR has concentrated on labor relations in the private sector. Its enforcement machinery and the mass of law and jurisprudence governing its functions are entirely geared to the handling of the peculiar problems arising in private employment. In this case, the BLR has tasked itself to intervene not only in a quarrel between two groups of government employees but more important, in a quarrel between employees working for an independent branch of government, the Judiciary.

The issue of what governs and who supervises unions of government employees is of more than passing concern especially when those who organize and hope to engage in certain forms of concerted action are court employees.

What is the law which governs certification elections in the Court of Appeals?

RULING
On BLR authority:

All this does not mean that the separation of powers doctrine requires us to supervise the details of self-organization activities in the courts. In the same way that CSC validly conducts competitive examinations to grant requisite eligibilities to court employees, we see no constitutional objection to DOLE handling the certification process in the Court of Appeals, considering its expertise, machinery, and experience in this particular activity. Executive Order No. 180 requires organizations of government employees to register with both CSC and DOLE. This ambivalence notwithstanding, the CSC has no facilities, personnel, or experience in the conduct of certification elections. The BLR has to do the job.

Executive Order No. 180 states that certificates of registration of the legitimate employee representatives must be jointly approved by the CSC Chairman and the DOLE Secretary. Executive Order No. 180 is not too helpful in determining whose opinion shall prevail if the CSC Chairman and the DOLE Secretary arrive at different conclusions. At any rate, we shall deal with that problem when it occurs. Insofar as power to call for and supervise the conduct of certification elections is concerned, we rule against the petitioner.

Do the Government Employees Enjoy the Right to Strike?

RULING:

In contrast, other labor experts and delegates to the 1971 Constitutional Convention enlightened the members of the Committee on Labor on the divergent situation of government workers under the 1935 Constitution, and called for its rectification. Thus, in a Position Paper dated November-22, 1971, submitted to the Committee on Labor, 1971 Constitutional Convention, then Acting Commissioner of Civil Service Epi Rev Pangramuyen declared:

It is the stand, therefore, of this Commission that by reason of the nature of the public employer and the peculiar character of the public service, it must necessarily regard the right to strike given to unions in private industry as not applying to public employees and civil service employees. It has been stated that the Government, in contrast to the private employer, protects the interests of all people in the public service, and that accordingly, such conflicting interests as are present in private labor relations could not exist in the relations between government and those whom they employ.

REFERENCE:
Alliance of Government Workers vs Minister of Labor and Employment
GR L-60403 (1983, En Banc)

Is the Government Considered An Employer With Regard to 13th Month Pay?

ISSUE:

Are the branches, agencies, subdivisions, and instrumentalities of the Government, including government owned or controlled corporations, included among the 4 "employers"" under PD 851 which are required to pay their employees receiving a basic salary of not more than P1,000 a month, a thirteenth (13th) month pay not later than December 24 of every year?

RULING:
"It is an old rule of statutory construction that restrictive statutes and acts which impose burdens on the public treasury or which diminish rights and interests, no matter how broad their terms do not embrace the Sovereign, unless the Sovereign is specifically mentioned. (See Dollar Savings Bank v. United States, 19 Wall (U.S.) 227; United States v. United Mine Workers of America, 330 U.S. 265). The Republic of the Philippines, as sovereign, cannot be covered by a general term like "employer" unless the language used in the law is clear and specific to that effect."


REFERENCES:

Alliance of Government Workers vs Minister of Labor and Employment
GR L-60403 (1983, En Banc)

DOLE's FAQs on 13th Month Pay

1987 Philippine Constitution, Article 9 (b) Civil Service:

Section 5. The Congress shall provide for the standardization of compensation of government officials and employees, including those in government-owned or controlled corporations with original charters, taking into account the nature of the responsibilities pertaining to, and the qualifications required for their positions.

Sonza Case: Employee or Independent Contractor?

G.R. No. 138051             June 10, 2004

JOSE Y. SONZA, petitioner,
vs.
ABS-CBN BROADCASTING CORPORATION, respondent.

SC Ruling: WHEREFORE, we DENY the petition.

The present controversy is one of first impression. Although Philippine labor laws and jurisprudence define clearly the elements of an employer-employee relationship, this is the first time that the Court will resolve the nature of the relationship between a television and radio station and one of its "talents." There is no case law stating that a radio and television program host is an employee of the broadcast station.

Case law has consistently held that the elements of an employer-employee relationship are: (a) the selection and engagement of the employee; (b) the payment of wages; (c) the power of dismissal; and (d) the employer’s power to control the employee on the means and methods by which the work is accomplished.1

4-Fold Test #1 - Selection Test (Emphasis provided)

Independent contractors often present themselves to possess unique skills, expertise or talent to distinguish them from ordinary employees. The specific selection and hiring of SONZA, because of his unique skills, talent and celebrity status not possessed by ordinary employees, is a circumstance indicative, but not conclusive, of an independent contractual relationship. If SONZA did not possess such unique skills, talent and celebrity status, ABS-CBN would not have entered into the Agreement with SONZA but would have hired him through its personnel department just like any other employee.

4-Fold Test #2 - Wage Test (Emphasis provided)

SONZA’s talent fees, amounting to ₱317,000 monthly in the second and third year, are so huge and out of the ordinary that they indicate more an independent contractual relationship rather than an employer-employee relationship. ABS-CBN agreed to pay SONZA such huge talent fees precisely because of SONZA’s unique skills, talent and celebrity status not possessed by ordinary employees 

4-Fold Test #3 - Dismissal Test (Emphasis provided)

For violation of any provision of the Agreement, either party may terminate their relationship. SONZA failed to show that ABS-CBN could terminate his services on grounds other than breach of contract, such as retrenchment to prevent losses as provided under labor laws. 

4-Fold Test #4 - Control Test (Emphasis provided)

Applying the control test to the present case, we find that SONZA is not an employee but an independent contractor. To perform his work, SONZA only needed his skills and talent. How SONZA delivered his lines, appeared on television, and sounded on radio were outside ABS-CBN’s control. SONZA had a free hand on what to say or discuss in his shows provided he did not attack ABS-CBN or its interests. ABS-CBN did not instruct SONZA how to perform his job. ABS-CBN merely reserved the right to modify the program format and airtime schedule "for more effective programming." ABS-CBN’s sole concern was the quality of the shows and their standing in the ratings. Clearly, ABS-CBN did not exercise control over the means and methods of performance of SONZA’s work.

SONZA claims that ABS-CBN’s power not to broadcast his shows proves ABS-CBN’s power over the means and methods of the performance of his work. Although ABS-CBN did have the option not to broadcast SONZA’s show, ABS-CBN was still obligated to pay SONZA’s talent fees... Thus, even if ABS-CBN was completely dissatisfied with the means and methods of SONZA’s performance of his work, or even with the quality or product of his work, ABS-CBN could not dismiss or even discipline SONZA. All that ABS-CBN could do is not to broadcast SONZA’s show but ABS-CBN must still pay his talent fees in full.

Clearly, ABS-CBN’s right not to broadcast SONZA’s show, burdened as it was by the obligation to continue paying in full SONZA’s talent fees, did not amount to control over the means and methods of the performance of SONZA’s work. ABS-CBN could not terminate or discipline SONZA even if the means and methods of performance of his work - how he delivered his lines and appeared on television - did not meet ABS-CBN’s approval. This proves that ABS-CBN’s control was limited only to the result of SONZA’s work, whether to broadcast the final product or not. In either case, ABS-CBN must still pay SONZA’s talent fees in full until the expiry of the Agreement.

Different Tax Treatment of Talents and Broadcasters

The National Internal Revenue Code ("NIRC") in relation to Republic Act No. 7716, as amended by Republic Act No. 8241, treats talents, television and radio broadcasters differently. Under the NIRC, these professionals are subject to the 10% value-added tax ("VAT") on services they render. Exempted from the VAT are those under an employer-employee relationship. This different tax treatment accorded to talents and broadcasters bolters our conclusion that they are independent contractors, provided all the basic elements of a contractual relationship are present as in this case.

Kasambahay Law four years later: ‘masaket poh koyah’

Kasambahay Law four years later: ‘masaket poh koyah’


Four years after the Kasambahay Law (RA 10361) took effect, this column is sorely tempted to say “I told you so.” But the mature individuals that we are, we won’t.

Instead, as we wrote before the law took effect, “if we must have such laws, let it be that which promotes accountability, responsibility, and merit. But if a Kasambahay Law (as it’s drafted now) gets enacted, then it would be better, particularly for those of the middle class, not to hire maids anymore. Better save your money and just do the chores you can do better anyway.”

So far, that comment seems more and more prescient everyday.

The problem with the Kasambahay Law is that it works on the bizarre assumption that most employers and household owners are complete jerks.

One sees this in the Declaration of Policies, which focuses in giving the household help protection against violence, exploitation, abuse, discrimination, and even going so far as to mention -- again, bizarrely -- “gender sensitive measures.”

No requirement whatsoever of professional development, skills training, and personal accountability.

It’s all about doling more rights without demanding any form of personal responsibility.

RA 10361 ignores the fact that in the Philippines, household helps have a special relationship with their employers not present in the developed or Western world (whose laws the Kasambahay Law seem patterned after).

That’s why they’re called Kasambahay: household helps are not merely employed servants, they’re considered part of the employer’s extended family.

Hence, if the household help gets sick, physically or emotionally (i.e., heartbroken), the employer cares and consoles, an uncle dies the employer handles the funeral costs, the help’s grandmother gets sick and she’s allowed immediate vacation leave to visit. Even without RA 10361 Filipino employers gets the willing (and able) household help through school, paying for her tuition, books, and allowance.

No Western (and perhaps even developed ASEAN country) employer would generally go through that crap. The relationship is purely contractual and professional. And the Kasambahay Law blithely ignores this.

Instead, it self-righteously demands that the employer give the household help professional treatment and compensation but without requiring reciprocal professionalism and competence from the latter.

Remember, this is within the unbelievable context -- despite a supposed national literacy rate of 99% -- that many of those applying to be household helpers don’t even know how to cook, boil water, clean furniture, launder clothes.

And breakages in dishes, ceramics, and appliances would be common.

Yet these are the people who demand substantial rest periods, cellphone loads, cable TV, and Wi-Fi access. But most only get their skills after they’re employed, assuming they stay long enough.

Regarding that last sentence, a peculiar trend is seemingly sweeping the country and coincidentally it gathered force after the enactment of the Kasambahay Law: that of absconding maids.

By which we mean those applying to be household helps from the provinces (and even through agencies) demand they be given transportation and allowance money first before moving to Manila. The good employer, after cabling the funds, would then never hear of that applicant again.

Or the applicant does arrive in Manila, stays for a few days with her employer, then suddenly develops an obsession for education, a needy husband, or a relative gets terminally ill, and she has to go home.

In both instances, the prospective employer will be unable to recover his money (normally in the thousands of pesos).

Whoever made the Kasambahay Law apparently has delusions about our Philippine criminal justice system.

Frankly, I don’t mind giving professional compensation, contractual arrangements, etc., so long as the maid herself is competent and professional. That is but reasonable.

A glance at one of the recruitment pages in the US reveal the following capabilities demanded of domestic helpers: competent housekeeping; prepare family meals; garden maintenance; supervising children, grocery shopping; knowledge of cleaning procedures; experienced caregiver to elderly adults; ability to read and follow instructions; and knowledgeable of safety practices.

A review of such recruitment pages and related US laws would show that their meals are not part of the compensation. Furthermore, breakages and other result of negligent or incompetent acts could (under specific conditions) lead to a deduction from the wages. Let’s have that.

And let’s have a national database system to track down household helps who cheated, stole, did incompetent work, etc., so that they can be blacklisted and never have the opportunity to harm another prospective employer.

And let’s have a non-appealable fast track judicial system that can immediately fine, impose damages, or imprison (after all, absconding with someone else’s money as described above is actually swindling) wayward household helps.

There are (according to some estimates) around 2.5 million domestic helps in the country today. That’s potentially 2.5 million Filipinos the Kasambahay Law is signaling they are entitled to do whatever they want without consequences.

So, yes, let us indeed protect the rights of Kasambahays. But we should never forget that employers have rights too.

Jemy Gatdula is a Senior Fellow of the Philippine Council for Foreign Relations and a Philippine Judicial Academy law lecturer for constitutional philosophy and jurisprudence.

jemygatdula@yahoo.com

www.jemygatdula.blogspot.com

facebook.com/jemy.gatdula

Twitter @jemygatdula

source:  Businessworld

ECoP: Labor contracting penalties ‘unconstitutional’

THE security of tenure of workers is “not an absolute right,” the Employer’s Confederation of the Philippines (ECoP) said, noting that businesses also have a right to pursue a reasonable return on investment.

In a 15-page position paper on 25 measures pending at the House of Representatives, which all seek to strengthen the security of tenure of workers, the employers’ group cited jurisprudence in defending the industry’s right to pursue “expansion and growth.”

“Jurisprudence has reiterated time and again that the exercise of management prerogative is not subject to interference so long as it is done in good faith based on the exigencies of business and not intended to circumvent the legal rights of labor,” the ECoP said in its position paper submitted to the House committee on labor and employment.

A total of 25 versions of the measure are pending in the House panel, which seek to strengthen the security of tenure of employees by prohibiting the practice of labor contracting and promote regular employment.

“Security of tenure is not an absolute right. It cannot be pleaded to avoid the exercise of management prerogative. Such exercise becomes objectionable only when it is not for ‘reasonable returns on investments,’ and for ‘expansion and growth’ which are constitutionally recognized employer’s rights, but is sought merely as a convenient cover for oppression,” the employers group added.

The ECoP said that some of the 25 bills seek to “prohibit fixed-term employment” which is contrary to the established jurisprudence.

“Prohibiting fixed-period employment violates the freedom of contract of both parties who knowingly, willingly and without any moral pressure gave their consent to the execution of the contract guaranteed by the Constitution,” the ECoP said.

The group also said that job contracting is “invariably legitimate” as long as the right to contract out is motivated by good faith based upon the exigencies of business; not resorted to circumvent the law; or not the result of malicious or arbitrary action.

TUCP party-list Rep. Raymon Democrito C. Mendoza filed House Bill (HB) 4444, which prohibits all forms of contractualization and fixed-term employment.

However, the ECoP said that the proposal is “ultra vires and unconstitutional,” reiterating that it is the right of the employers to exercise an “inherent prerogative and its best business judgment to determine whether it should contract out performance of some if its work to independent contractors.”

HB 1208, filed by Bayan Muna Rep. Carlos Isagani T. Zarate, seeks a penalty of between P1 million and P10 million or imprisonment of at least six months for violators.

However, the ECoP said that the proposed penalties are “oppressive and unconstitutional.”

“Excessive fines especially if imposed on employers of micro establishments is violative of Section 19 of the Bill of Rights of the Constitution which prohibits the imposition of excessive fines,” the ECoP noted. Moreover, the ECoP said that provisions in some of the bills to allow contractual arrangements which are “not usually necessary or desirable, or directly related to the usual business of the principal” will result to prohibition of any form of contracting or outsourcing, because what is being contracted out is part of the work of the employer.

source:  Businessworld