Don’t clip security of tenure

THERE are many ways to attract fresh investments into the country. The government could, for instance, offer stability, standards and predictability of process and outcome to potential business investors, both local and foreign. But Trade Secretary Gregory Domingo’s recent proposal to do so by cutting short the right to security of tenure enjoyed by workers is certainly not one of them.

The right of workers to security of tenure is guaranteed not just by any law, but by the Constitution itself. Secretary Domingo should read the Constitution. His proposal is unimaginative, just like everyday calls for government to spur business activity by simply freezing wages.

Government should stop using workers as sacrificial lambs in the drive to lure new capital. Instead, government should reduce administrative red tape; lessen crime and corruption; build up the country’s human resources; ensure stable supply of electricity nationwide; and check unfair trade practices, including smuggling and copyright infringement, that dampen investments.

Domingo earlier sought the easing of the Labor Code’s provision on security of tenure. “I think we are one of the few countries with a security of tenure provision,” he said.

Security of tenure means the right to continue in employment and the right to be protected against dismissal except for just and authorized cause under conditions required by law.

“The stricter the law, the less competitive we are. We have to relax some of our labor laws to be more competitive,” Domingo said.

What Secretary Domingo wants in effect is for employers to have even more leeway in arbitrarily throwing workers out of their jobs, so that they may be replaced wholesale with new and cheaper labor.

But the law’s security of tenure provision could not be amended without violating the Constitution. Let me quote Article XIII, Section 3, paragraph 2 of the Constitution, which reads as follows: “It (the State) shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations, and peaceful concerted activities, including the right to strike in accordance with law. They shall be entitled to security of tenure, humane conditions of work, and a living wage. They shall also participate in policy and decision-making processes affecting their rights and benefits as may be provided by law.”

To give flesh to the mandate of the Constitution, Article 279 of the Labor Code reads as follows:
“Security of tenure. – In cases of regular employment, the employer shall not terminate an employee except for a just cause. An employee who is unjustly dismissed from work shall be entitled to reinstatement without loss of seniority rights and other privileges and to his full back wages, inclusive of allowances, and to his other benefits or their monetary equivalent computed from the time his compensation was withheld from him up to the time of his actual reinstatement.”

Article 277 of the same Code also requires the employer to provide due process to every worker facing termination. Once removed, the worker may contest the validity of his dismissal before the labor court.
The burden of proving that the discharge was for a valid cause rests on the employer.

The government cannot institutionalize contractualization either because contractualization is illegal. No less than the National Labor Relations Commission, the Court of Appeals and the Supreme Court affirmed this in the case of Joel Taripe.

In November 1999, Taripe was employed as a power press machine operator by Rowell Industrial Corp. (RIC), a corporation which is engaged in manufacturing tin cans used for consumer products like canned goods and paint. He was dismissed five months after, short of the 6-month requirement for regularization.

Taripe sued his employer and won.

The NLRC sided with Taripe and ruled that his employment was regular in status and therefore he was dismissed illegally. The NLRC said there is no doubt that as machine operator Taripe was engaged to perform work that is necessary and desirable in the business of manufacturing tin cans. It ordered RIC to reinstate him and to pay him full backwages in June 2002.

The company appealed but in September 2004, the CA affirmed the NLRC decision. The case reached the Supreme Court, and the SC also affirmed the previous decisions favoring Taripe in what could be considered a landmark case against contractualization.

When President Aquino attended the 43rd Asean Foundation Day in the Department of Foreign Affairs, he told Asean ambassadors that under his watch the country will be “an exemplar, as well as exponent, of the rule of law, including international law.”

But let us not flout our own laws, which are very much in line with international commitments to protect the dignity of labor.

Even as we try to make the country a predictable and consistent place for investment, by honoring contracts and giving due protection to investors and potential employers, we should also make sure that investors honor our laws, and that government should also protect the interests of our workers.

It’s not an either-or proposition. We can do both. –ERNESTO F. HERRERA, Manila Times

ernestboyherrera@yahoo.com