Amending a law, undermining a law: A tale of endo and of age discrimination

BY ANTONIO P. CONTRERAS, Manila Times, Jan. 27, 2017

WE are supposed to be a government of laws. It is our body of laws that ensures that our rights will be protected, and that the restraints which the Constitution has imposed on state power will be translated into opportunities to harness the state to serve not the whims and caprices of governments and of the elites, but the public interest and the common good with a preferential treatment for the poor and the marginalized.

One of the sectors that need legal protection is the labor sector. Our jurisprudence is a clear manifestation of this intent, for it is pregnant with settled cases where it is the interest of labor that takes precedence. In fact, while there is no government department that takes care of the needs and interests of employers and corporations, there is the Department of Labor and Employment. And there are special administrative bodies that are tasked to settle the grievances of labor.

When the President promised during the campaign that he will put an end to labor contractualization, it was seen as a bright ray of hope for thousands of contractual workers employed in the service industry and in manufacturing who are forced to eke out a living in a highly exploitative, but legal arrangement. Contracts are designed to expire in five months to avoid the benefits prescribed by law, only to be renewed again which only the dense would not know to be a deliberate attempt to undermine the intent of the state to protect the interest of labor. What is ironic is that this deliberate attempt to undermine the welfare of workers is allowed in the same labor code that was enacted to protect their interests.

The difficulty of ending “endo,” which is how the practice has come to be named, is structural in nature. This was clearly manifested in the fate of Department Order No. 30 drafted by DOLE to purportedly comply with the promise made by the President which on closer scrutiny could not go further to end the practice without amending the law. Instead of directly addressing contractual employment, it only ended up regulating the process of labor sub-contracting. Short-term direct contracts are perfectly legal under the law, and the loopholes can only be plugged if we amend the Labor Code.

Right now, the draft order is still in limbo and has yet to be cleared by Malacanang. Organized labor opposes it for the simple reason that it has not really fully addressed the problem of labor contractualization.

The case of “endo” is one where there is a law that needs to be amended, because a practice that is inimical to labor is enabled by the loopholes found in the law itself.

Unfortunately, many of our laws seem to be crafted in such a way that loopholes can be found, and can be exploited by parties which the law wants to regulate, to the detriment of those which it wants to protect.

The case of the Anti-Age Discrimination Law, RA 10911, another pro-labor legislation, is poised to fall into the same fate.

The main intent of the law is to prohibit discrimination on the basis of age in hiring and promotion. In addition, it also prohibits employers to impose a forced retirement age of 60 without the consent of the employee as manifested in a contract, or a collectively negotiated CBA.

The law is clear in its exceptions. It allows companies to have early retirement plans provided that these are voluntary.

This early, some companies are already circumventing the law, some as blatant as holding their employees to their current, pre-RA 10911 retirement age of 60 and forcing them to retire on the flimsy excuse that the IRR of the law has not been released yet. Any freshman law student would know that a law is already in full force even prior to the release of the IRR, provided that it has complied with the publication requirement. The act of unilaterally imposing a term of contract that violates the intent of RA 10911 while the IRR is still being crafted patently reeks of bad faith.

Worse, some companies are already arguing that the law only covers hiring and not retiring, when it is clear in the law that the coverage includes promotion, training and retirement.

And worst, some are toying with the loophole of insisting that their current CBAs or employment contracts signed prior to the enactment of the law should be respected, thereby deploying the legally untenable argument that CBAs and employment contracts should supersede the law.

The boldness of employers to blatantly undermine laws by exploiting loopholes, even of laws whose IRRs are still being crafted, should not be allowed to be left unchecked. Legislators should stop making laws that have loopholes, even as courts should be summoned to reiterate the protectionist intent of the Constitution in relation to labor, and to punish those who violate such.