Labor sector frustrated by Duterte’s EO on contractualization
PRESIDENT Rodrigo Duterte finally signed on Labor Day ( May 1) the much awaited executive order putting an end to the practice of contractualization in the labor sector. However, a close reading of EO 51 shows that it simply reiterates the implementation of Article 106 of the existing Labor Code of the Philippines.
The present Labor Code has its origin in Presidential Decree 442, promulgated by then President Ferdinand Marcos in 1974. This law was amended, revised, and modified by subsequent laws. The last amendment was effected by the passing of Republic Act 10741 ( An Act Strengthening the Operations of the NLRC) in 2016.
What is Article 106? This article defines what a contractor or a subcontractor is. It does not prohibit contracting or subcontracting. Yet, it gives power to the Secretary of Labor to “restrict or prohibit the contracting- out of labor to protect the rights of workers established under this Code. In so prohibiting or restricting, he may make appropriate distinctions between labor- only contracting and job contracting as well as differentiations within these types of contracting and determine who among the parties involved shall be considered the employer for purposes of this Code, to prevent any violation or circumvention of any provision of this Code.” This can be done by mere issuance of department regulations.
Thus, if the Secretary of Labor really wanted to end contractualization, all he needs to do is to release new department regulations mandating the same. There is in fact no need for the President to issue an EO on contractualization.
Previous department issuances
Articles 106 to 109 of the Labor Code do not prohibit contractual arrangements but in reality allow it. Nonetheless, they lay down certain policies to protect the workers from unlawful and illegal acts of the employers.
The Department of Labor and
Article 295 defines who are regular and casual employees. An employment shall be deemed to be regular where the employee has been engaged to perform activities which are usually necessary or desirable in the usual business or trade of the employer, except where the employment has been fixed for a specific project or undertaking the completion or termination of which has been determined at the time of the engagement of the employee or where the work or service to be performed is seasonal in nature and the employment is for the duration of the season. These casual employees are normally called contractual employees because their engagement expires at the end of the contract term.
On the other hand, Article 296 defines what is a probationary employment. Note that a probationary employment shall not exceed six months from the date the employee started working, unless it is covered by an apprenticeship agreement stipulating a longer period. An employee who is allowed to work after a probationary period shall be considered a regular employee.
Finally, Article 297 lists the causes for which an employer may terminate the services of the employee.
A version of ‘Avengers: Infinity War’
The government should have sought the help of veteran labor lawyers in crafting the EO that would “terminate” the practice of endo. Article 106 is not the culprit. The villains are Articles 295 and 296.
The sole villain in the movie “Avengers: Infinity War” is the evil Thanos. We can liken endo to Thanos, and Articles 295 and 296 as two of the Infinity Stones. Which of the Avengers would stop Thanos? Supposedly it should be EO 51.
In the end, Thanos snaps his fingers and ends half of the universe, including most of the Avengers. As it is, it turns out that EO 51 suffers the same fate as Spiderman.