Proposed Rules to
Govern Term Employment
Allan Verman Y. Ong[1]
Introduction
I.
Definition of Term Employment and How the Doctrine was arrived at:
III.
Current Situation of Term Employees
IV.
Proposed Amendment to Rule
A. Should Term Employment Exist?
B. Proposed Amendments to the Implementing Rules
C. Rationale of the Proposed Amendments
D. Comparison with Other Proposed Solutions
Conclusion
Introduction
The unemployment rate is a chilling
statistic. Although the past year saw
an increase in employment in industry and services, the fact that 11.4% of the
total population[2] are jobless
has horrific implications. It means
that from the total population of 75.33 million, 8.58 million have no means by
which to sustain themselves. It also
means that the households[3]
to which these 8.58 million belong to, exist in uncertainty.
Certainly, the economy’s failure to
take off, especially in labor intensive industries such as manufacturing and
retail, contributes to this scenario.
But it is the rampant violation of labor laws which is occasioned by the
economic difficulty that adds to the problem of unemployment.[4] Because of the dismal economic situation,
employers resort to contractual services and impose “income sharing”
arrangements, where employees do not work for the entire eight hours in a
workday, or are employed for only five months, before being termination. Hence, apart from the 11.4% unemployment
rate, 16.9% of those who are employed, are underemployed. Limiting employment to an agreed upon
period, called Fixed Term Employment
is not altogether uncommon, and sadly, is even the norm in certain industries
such as retail and manufacturing.
Former Labor Secretary Nieves Confessor says that while this does not
violate the requirements of labor laws, this is against public policy and
should be discouraged.[5]
The Constitution[6]
is unequivocal when it says, “…all workers…shall be entitled to security of
tenure….” It admits of no
exception. Laws do not apply only when they
are convenient to those concerned.
Employees and their families do not stop needing food after five
months. Thus, this paper proposes the
adoption of rules to govern the application of fixed term employment.
I. Definition of Term Employment
and How the Doctrine was arrived at:
Fixed
term employment is a type of employment where an
employer and an employee enter into an employment contract where the term of
employment is fixed. It was first
recognized by the Supreme Court in Bibosa
vs. Victorias Milling, 76 SCRA 250 (1977), and it was formalized as type of
employment in Brent School vs. Zamora,
181 SCRA 702 (1990).
How is fixed term employment different
from the other types of employment?
Article 280 of the Labor Code provides that employees who do work that
is usually necessary or desirable to the usual trade or business of a company,
are considered regular employees. If however, one’s employment is fixed for a
specific project, whether one does the work of a regular employee or not, one
is a project employee. On the other hand, if one’s employment is
seasonal in nature, and the employment is for the duration of the season, one
is a seasonal employee. These are the basic classes. Article 280 of the Labor Code thus provides:
Art. 280. Regular and Casual Employment. The provisions of
written agreement to the contrary notwithstanding and regardless of the oral
agreement of the parties, 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 services to be performed is seasonal in nature
and the employment is for the duration of the season.
An employment shall
be deemed to be casual if it is not covered by the preceding paragraph. Provided, That any employee who has rendered
at least one year of service, whether such service is continuous or broken,
shall be considered a regular employee with respect to the activity in which he
is employed and his employment shall continue while such activity exists.
In
fixed term employment, there is a voluntary agreement on a fixed period of
employment. It is interesting to note
that the parties are not forbidden from agreeing on a period simply because the
duties of the employee consist of usually necessary or desirable to the usual
trade or business of the employer. In
order that the fixed contracts of employment cannot be said to be in
circumvention of security of tenure, the Court laid down two requisites for
term employment:
(1) that the fixed
period was knowingly and voluntarily agreed upon by the parties without force,
duress or improper pressure exerted on the employee and absent any other
circumstances vitiating his consent; or
(2) it
satisfactorily appears that the employer and employee dealt with each other on
more or less equal terms with no moral dominance whatever being exercised by
the former on the latter.[7]
Therefore, fixed term employment is
comparable to project employment. In
the former, employment terminates upon the arrival of the day certain, agreed
upon by the parties. In the latter,
employment terminates upon the cessation of the project wherein which the
employee was assigned to. Length of
service is therefore immaterial; the clause which provides “… Provided that any
employee who has rendered at least one year of service … shall be considered a
regular employee…” does not apply in either types of employment.[8]
Fixed term employment then becomes a
very attractive option for employers who wish to employ workers without giving
them security of tenure. It is
submitted that this type of arrangement was the precise situation sought to be
avoided by Article 280 of the Labor Code when it provided, “The provisions of written agreement to the contrary notwithstanding
and regardless of the oral agreement
of the parties….” How then did fixed
term employment gain recognition as a legitimate employment status? This was done in the leading case of Brent School vs. Zamora.
In the case, Doroteo Alegre was hired
as an athletic director by Brent School for a fixed term of five (5)
years. He was not rehired after the
expiration of this term. He questioned
this and contended that he had become a regular employee, since his services as
a teacher were necessary and desirable in the usual business of the
school.
But the ponencia of Former Chief
Justice Andres Narvasa in Brent, held
that Article 280 of the Labor Code did not have the intent of denying validity
to employment for a definite period.
Furthermore, it was held that the Civil Code has always recognized the
validity of contracts with a fixed or definite period. It imposes no restraints on the freedom of
the parties to fix good and services other than the general admonition against
stipulations contrary to law, morals, good customs, public order or public
policy. Therefore, without a showing
that the periods have been imposed to preclude acquisition of tenurial security
by the employee, the contract is valid.
With the jurisprudential guidelines in
Brent, there are problems that become immediately apparent upon the
implementation of such guidelines.
First, negotiation for fixed term employment is rarely achieved in the
ideal conditions, where there is no force, duress or improper pressure exerted
on the employee, and the parties knowingly and voluntarily agree. Should a patently unfair employment contract
be offered to one of the 8,487,620[9]
who are unemployed, 8,487,619 are waiting to take his place, should he
refuse. Sometimes, it is not the
employer himself who should exert duress upon the employee – the prevailing
economic situation provides the greatest source of duress. Thus, the following scenarios arise:
Second, the employee who could have
filed a case for illegal termination, can no longer avail of the protection
granted by the law, which is, that the burden of proving that the termination
was for a valid or authorized cause shall rest upon the employer[10].
Since the Brent case has placed the
term employment contract at the level of an ordinary contract, there is no
presumption of illegal termination when the employment contract already
satisfies the two requisites. Thus, the
Supreme Court observed and ruled, “All men are presumed to be sane and normal
and subject to be moved by substantially the same motives. The fact that one may be worsted by
another…furnishes no cause of complaint.
One man cannot complain because another is more able, or better
trained.”[11] This is a
deviation from the usual procedure where it is the employer who has the burden
of proving the legality of the dismissal in a case.[12]
Lastly, because of the seeming
propriety of the fixed term contract, the parties having signed a written
agreement, the employees may be deterred from asserting their rights. It is true that in a “contract of adhesion”
where there is already a prepared form containing the stipulations of employment
and the employees merely sign the agreement, the interpretation of obscure provisions, in the event of
litigation, will not favor the party who drafted the instrument[13]. However, note that this rule[14]
applies only in the event that there is
an obscurity. Also, even if such
obscurity does exist, employees would often choose not to assert their rights,
since those who do often face the formidable arsenal of the employer’s legal
capabilities, financial resources, and political connections.
III. Current Situation of Term
Employees
Employees subject to fixed term
employment vary from white-collared workers such as professors, company
presidents and instructors, to blue-collared workers such as factory employees
and sales personnel. The cases to be
cited here which will narrate the current situation of term employees will
pertain mostly to the blue-collared wage earners. It is to be noted however, that a fixed term employment contract
with an employee of high educational attainment does not automatically mean
that there is no circumvention on the laws on security of tenure. These situations are however rare, and since
abuse is usually on the level of low-level workers, their situation merits a
more thorough discussion.
Fixed term employment was first
institutionalized in Brent School vs.
Zamora, 181 SCRA 702 (1990). This
case involved a physical education instructor, who is not among those
considered a low-level worker.
Subsequent cases filed in the Supreme Court however, involved such
parties. Purefoods Corp. vs. NLRC, G.
R. 122653, December 12, 1997, involved cannery workers. Here, the main bulk of the company’s
workforce consisted of its so-called “casual” employees. These employees were hired “casual” every month
for the duration of five months, after which their services were terminated and
other employees on the same five-month duration replaced them. These employees were actually doing work
that was necessary to the usual business of the company.
Imbuido
vs. NLRC, G. R. 114734, March 31, 2000, involves a data encoder in a
company involved in the business of data encoding and keypunching. Vivian Imbuido was made to enter into
thirteen separate employment contracts, each contract lasting only for a period
of three months. In Romares vs. NLRC, G. R. 122327, August
19, 1998, the petitioner was hired as a part of the
Maintenance/Projects/Engineering Department for a period of six months, after
which he was terminated, then hired again.
Here, the court observed that Romares performed tasks and functions
which were necessary in the operation of the business. The story is the same in several other cases.
Phil. Federation of Credit Cooperatives vs. NLRC, G. R. 121071,
December 11, 1998, hired the employee as a contractual, but also considered him
a probationary employee. Cielo vs. NLRC, G. R. 78693, January 28,
1991, takes the deception even further.
In this case, the employee is made to sign a contract that precludes any
sort of employer-employee relationship.
In these cases, the Supreme Court saw
through the manipulative scheme. The
court acknowledged the limitations of the test prescribed in Brent:
It could not be supposed that (the employees) knowingly and
voluntarily agreed to the five month employment contract. (Such workers) are never on equal terms with
their employers. Almost always, they
agree to any terms of an employment contract just to get employed considering
that it is difficult to find work given their ordinary qualifications. Their freedom to contract is empty and
hollow because there is the freedom to starve if they refuse to work as casual
or contractual workers. Indeed, to the
unemployed, security of tenure has no value.
It could not then be said that petitioner and private respondents “dealt
with each other on more or less equal terms with no moral dominance whatever
being exercised by the former over the latter.[15]
The Supreme Court observed and ruled
that the contracts were clear instances of circumventing the employee’s right
of security of tenure and other benefits.
The petitioner succeeded in evading the application of labor laws. It also saved itself from the trouble of
establishing just or authorized cause for terminating employees by the refusal
to renew the employment contract.[16]
IV. Proposed Amendment to Rule
From the current situation of fixed term
employment, it appears that this employment scheme will continue to be a viable
means of circumventing the law in order to prevent the acquisition of security
of tenure and other rights of the workers.
The only legal guidelines available add to the ease of this
circumvention, since the few requisites that need to be met are vague and can
be satisfied in a perfunctory manner.
Thus, it is proposed that the Implementing Rules of the Labor Code be
amended to include guidelines on fixed term employment.
A.
Should
Term Employment Exist?
A preliminary question to be addressed
should be whether or not fixed term employment should exist at all. Are there legitimate reasons why an employer
would want to employ a worker for a fixed term? Indeed there are.
Temporary
Non-regular Work.
The first scenario is when the employer needs the services of a worker
that is not usually business of the company for a temporary period, and is not
limited to a single project. Examples
of these are the setting up of websites and their maintenance, consultancy work
for a period of economic crisis, and the installation of fixtures and
equipment. All these are services that
are provided for by service firms.
However, it is often cheaper to contract individual employees to do this
temporary work, rather than to hire a company’s services.
Certain
cases of Temporary Regular Work. Employers may temporarily require the
services of a worker in an engagement that is necessary in the usual business
of a company. This is during the occasion
of unexpected but temporary increase in product demand.
Professional
Work. Part time teaching
personnel, coaches for sports teams, speakers and facilitators in seminars, and
professional translators, are professionals who demand flexibility with regard
to the length of time that they can offer their services. Part time teachers who often have other
professional engagements may, for instance, have time to teach a certain
subject for one semester, but not in the next semester. The fixed term employment scheme then works
to their advantage, since they will be able to work when they are able to.
Institutional
Positions. Lastly, fixed term employment is
applicable when it is the nature for the particular position in the institution
to be rotated among various personnel.
Common examples of this type of work are deans and principals in
schools, administrators, and chairpersons and directors of boards. Even if their designation is for a term that
would last for more than a year, they would not obtain security of tenure for
the particular job that they are doing.
These situations clearly do not fall
within project employment or seasonal employment. In cases of temporary non-regular work, the employer has valid
reasons to resort to fixed term workers instead of employees who will be
permanently in their payroll, since the work will only be temporary. Professional work and institutional
positions are situations wherein it can be said that they fall more into the categories
of managerial employees, where the top management has wider discretion as to
their hiring and termination.
The common way that term employment is
resorted to as a means of circumventing the rule on security of tenure is when
employers hire workers to do work that is usually necessary to the business,
but a fixed term is placed on their employment. This differs from the recognized instance of term employment,
because here, the term employee is engaged in doing work that is in the primary
line of work of the business. The
examples from jurisprudence are the five month contractual factory workers in
manufacturing firms and three month contractual data encoders in data encoding
firms. These employees are made to
limit each particular period or phase of work, so they can be employed with the
same limited period after their first designation.
What are the reasons why employers
would prefer fixed term employees to regular workers? The first reason is of course to prevent the employees from
acquiring the status of a regular employee.
A term employee enjoys security of tenure only for the period wherein he
is engaged. After his period of
engagement, he can be terminated. Those
instances where term employment is resorted to usually last for no more than
six months. Thus, benefits such as sick
leave, maternity leave, and service incentive leave, are usually never acquired
by the employee. Also this scheme then
provides for flexibility in the hiring and firing of workers.
The second reason for the employer to
resort to term employment is to make it difficult for the employees to organize
unions for the purpose of collective bargaining. Indeed, the workers may organize unions, but their membership
will never be stable, and employee participation would be intermittent, at
best.
Lastly, term employment can be resorted
to, in order to impose a longer probationary period than allowed by law. Where six months is the legal norm,
employers can impose term employment/probationary periods that would last for years.
As a whole, term employment is a valid
employment scheme and may in fact, work for the benefit of both the employer
and the employee when it is resorted to in certain instances. The employer will not have to engage the
employee when the work no longer exists, and the employee may be free to sell
his services to other employers. But
because of its unique characteristics, term employment can also be subject to
abuse.
Therefore, it is evident that the
solution to the problem must balance the needs of employers with the
difficulties faces by the employees. As
Secretary Confessor has said, fixed term employment is not an illegal
employment scheme, but its use should be limited to those occasions where there
is a legitimate reason for doing so.
Fixed term employment should not be a means to evade the granting of
security of tenure. The solution must
be one that will prevent the problem, hence, avoid litigation, because a
curative solution may be too late.
Justice delayed is more often than not, justice denied.
B. Proposed Amendments to the
Implementing Rules
It is thus proposed following be added
to Rule I, of the Implementing Rules of Book VI of the Labor Code, as Section
6B, Fixed Term Employment.
Sec. 6B. Fixed Term Employment – There is fixed term
employment where there is an agreement where there is day certain agreed upon
by the employer and the employee for the commencement and termination of their
employment relationship.
Fixed term employment shall be governed by the following
rules:
(a) Fixed term employment shall be permitted only in the
following circumstances:
i.
when the employee is
hired to do work that is temporary work that is not usually necessary in the
usual trade or business of the company
ii.
when the employee is
hired to complement the regular work force on occasion of a unexpected but
temporary increase in demand.
iii. when it is the nature for the particular position or
designation to be rotated among various personnel, including, but not limited
to, academic institution and corporate bodies.
iv. other similar
circumstances of employment, provided that there shall be no term employment
agreement for work that is usually necessary or desirable as part of the
principal trade of the company.
(b) Fixed term employment shall only be
valid where:
i.
that the fixed period
was knowingly and voluntarily agreed upon by the parties without force, duress
or improper pressure exerted on the employee and absent any other circumstances
vitiating his consent; or
ii.
it satisfactorily
appears that the employer and employee dealt with each other on more or less
equal terms with no moral dominance whatever being exercised by the former on
the latter.
(c) In all cases of fixed term employment the employer and
the employee shall agree upon the day certain where the employment shall
cease. When no such period is
definitely agreed upon, or when such period is left with the discretion of the
employer, the fixed term employee shall be deemed to be a regular employee,
provided that he has rendered at least one year of service. This regular employment shall be with
respect to the activity in which he is employed and his employment shall
continue while such activity exists.
C. Rationale of the Proposed
Amendments
The proposed amendment of the
Implementing Rules of the Labor Code recognizes the need of term employment in
certain cases. But by limiting this
employment scheme with regard to workers whose services are usually necessary
in a company’s usual business to occasions of sudden increased demand, the problem
of the five month contractuals can be minimized.
Sec. 6B. Fixed Term Employment – There is fixed term
employment where there is an agreement where there is day certain agreed upon
by the employer and the employee for the commencement and termination of their
employment relationship.
The first paragraph of this amendment
defines fixed term employment. This
differentiates fixed term employment from other forms of employment on the
basis of security of tenure.[17]
(a) Fixed term employment shall be permitted only in the
following circumstances:
i.
when the employee is
hired to do work that is temporary work that is not usually necessary in the
usual trade or business of the company
ii.
when the employee is
hired to complement the regular work force on occasion of a unexpected but
temporary increase in demand.
iii.
when it is the nature
for the particular position or designation to be rotated among various
personnel, including, but not limited to, academic institution and corporate
bodies.
iv.
other similar
circumstances of employment, provided that there shall be no term employment
agreement for work that is usually necessary or desirable as part of the
principal trade of the company.
This second paragraphs lays down an
exclusive enumeration of work that can be done by term employees. Included here are the situations wherein
there is a valid need for term employees.
But the situation observed in Purefoods
and Imbuido are specifically
enjoined with the stipulation that, “…there shall be no term employment
agreement for work that is usually necessary or desirable as part of the
principal trade”.
(b) Fixed term
employment shall only be valid where:
iii.
that the fixed period
was knowingly and voluntarily agreed upon by the parties without force, duress
or improper pressure exerted on the employee and absent any other circumstances
vitiating his consent; or
iv. it satisfactorily appears that the employer and employee
dealt with each other on more or less equal terms with no moral dominance
whatever being exercised by the former on the latter.
This portion of the amendment codifies
the jurisprudential guideline laid down in Palomares. It is, in essence, a general prohibition
from coercing an employee from undertaking an agreement that would grossly
place him at a disadvantage.
(c) In all cases of fixed term employment the employer and
the employee shall agree upon the day certain where the employment shall
cease. When no such period is
definitely agreed upon, or when such period is left with the discretion of the
employer, the fixed term employee may be deemed to be a regular employee,
provided that he has rendered at least one year of service. This regular employment shall be with
respect to the activity in which he is employed and his employment shall
continue while such activity exists.
The first sentence of this last
paragraph proposes the adoption of a jurisprudential rule that is applicable in
project employment. The length of
employment shall be set and agreed upon at the start of the period. It goes on to say that when such period is
not set at the start of the employment relationship, there is a presumption of
bad faith on the part of the employer.
Hence, the employee may be
deemed to be a regular employee, should the employee have rendered at least one
year of service. Note that the proposed
rule merely lays down a permissive rule rather than a mandatory rule. The intent of such phrasing is to preclude
the imposition of regular employment when the failure to have a clear contract
did not arise from the bad faith of the employer. This rule places the burden of proving that the termination was
due to the cessation of the term of the agreed upon. Unless the absence of bad faith can be proven when the term of
the contract was entered into, the employee is deemed regular.
When the employee, whose employment is
made temporary by a contract which period is not clearly provided for, works
for at least a year, the employee is deemed to be usually necessary and
desirable in the usual trade or business of the company and is deemed a regular
employee. This expands the application
of the one-year rule that previously has been imposed on casual employees only.
It is submitted that by making illegal
the practice of entering into fixed term employment contracts, employers will
be deterred from imposing such contract provisions on prospective
employees. Making the practice illegal
will solve the problem of circumventing the law on security of tenure. With this proposed amendment, the practice
can be prevented at the very beginning of the arrangement.
In the event of litigation, the burden
of proving the propriety of the contract is placed with the employer. The amendment will shift the burden of
proving the impropriety of the contract not with the party alleging it, but
with the other party who does not make any allegation. It appears that this provision runs counter
the civil law doctrine of mutuality of contracts, where it is said that the
contract must bind both contracting parties, and he who alleges something has
the burden of proving it. But it is to
be noted that the Civil Code itself provides exceptions for this general rule.[18] In fact, the Labor Code is itself a listing
of occasions where parties who may have validly agreed on a contract, but due
to public policy considerations, the law steps in and regulates the
stipulations that they agree on, limiting their freedom of contract.
D. Comparison with Other Proposed
Solutions
Two other researchers have studied the
problem of term employment and came up with their own proposals for the
problems concerning fixed term employment.
The first of them is Rosario Abigail Dris, JD ’95, who wrote Strengthening the Worker’s Right to Security
of Tenure. In this work, Dris
proposed that the solution to this problem is the enactment of more stringent
procedures to regulate term employment.
She proposed (1) a mandatory clearance requirement, where employers are
required to submit a termination notice to the Department of Labor and
Employment thirty days before the contract expires, and (2) placing the burden
of proving the validity of the contract with the employer. She proposed that when the employee does
services that are usually necessary in the business of the employer, the
employee should be presumed to be regular, regardless of the contract
stipulations.
The Dris proposals, particularly the
second proposed measure, is similar to the proposed amendment to the
implementing rules. A burden of proof
is placed upon the employer. However,
it is to be noted that Dris proposes that the employer have the burden of proving
contract’s validity. The proposed amendments to the rules places
with the employer only the burden of proving the absence of bad faith in the occasion that the period for employment
is absent or not clearly stated. It
seems that to put the validity of the whole contract into issue during
litigation is a needless burden, because the issues can be refined for a more
efficient disposition.
Also, requiring a government agency to
pass upon the termination of every contract entered into providing for fixed
term employment would unduly tax government resources, and only be a source of
possible graft and corruption practices in the government. It is true that a similar requirement is
placed when employees are terminated for authorized causes.[19] However, the termination of fixed term
employment should not be presumed to be done in bad faith, in contrast to the
presumption when the employee is terminated for authorized causes.
The second paper written on the subject
of fixed term employment was Fixed Term
Employment, a Prohibited Scheme by Margie P. Colinayao, JD ’98.
The proposal of Ms. Colinayao took a different twist – after analyzing
the problem of term employment, she proposed that the solution to this problem
is totally do away with term employment.
This would be done through the enactment of Senate Bill No. 426 (10th
Congress of the RP, 1st Regular Session) co-authored by Senators
Anna Dominique Coseteng and Ernesto Herrera.
This would be done by means of limiting “temporary employment” to
project employment and seasonal employment only. Thus, SB 426 proposed to amend Art. 280 of the Labor Code by
adding the following (proposed amendment underscored):
Art. 280. Regular and Casual Employment. The provisions of
written agreement to the contrary notwithstanding and regardless of the oral
agreement of the parties, 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 services to be performed is seasonal in
nature and the employment is for the duration of the season.
An employment shall be deemed to be casual if it is not
covered by the preceding paragraph.
Provided, That any employee who has rendered at least one year of
service, whether such service is continuous or broken, shall be considered a
regular employee with respect to the activity in which he is employed and his
employment shall continue while such activity exists.
Any stipulation in any written or oral contract of
employment for a definite or fixed period, term or similar forms covering
regular employment as defined under this title shall, except in cases allowed
in this article, be null and void ab
initio, without prejudice however, to the right of the employee to file
claims for damages arising from the contract.
Nothing in the provisions of this article shall preclude
schools and universities from engaging the services of persons under employment
contracts with a term or for a definite or fixed period involving teaching
positions during the probationary period of such employment as authorized under
existing laws, rules and regulars.
But as it was submitted earlier in this
study, fixed term employment has its benefits.
As to academic personnel, it is in academic institutions or corporate
bodies where appointments to positions of dean, assistant dean, college
secretary, principal, and other administrative offices, which are by practice
or tradition rotated among the academic professionals. Fixed term employment is
a necessity without which no reasonable rotation would be possible. Similarly, certain company officials may be
elected for what would amount to fixed periods, at the expiration of which they
would have to step down. Company
presidents, chief executive officers, or executive vice president, have tenure
only insofar as the stockholders may have confidence in their abilities for a
single period. By removing term
employment as a valid employment scheme, these individuals are left without
rules to govern their mode of employment.
It would indeed be a scenario wherein which the arbitrary rules imposed
by employers would reign supreme, unfettered by any laws or regulations.
Conclusion
In a survey conducted[20],
it was discovered that Filipinos see job security as their primary
concern. It is almost surprising that
their concerns were not in receiving a living wage, or working in humane
conditions that they considered primary since this has often been the issue in
many a bitter conflict with employers.
Their primary concern was to make sure that they would have something to
sustain themselves, no matter how meager or humble.
Our labor laws have often been subject
to much criticism – that it is pro-labor, anti-capitalist, and that it is
obsolete[21]. Indeed, with the globalization of economies,
companies have to be free to utilize or to dispense with the manual resources
that it may need. We see this type of
scenario in developed countries such as the United States and Australia. But in our developing economy, our people
need protection from tenurial instability badly. Whereas ordinary people in developed countries can manage to be
temporarily unemployed for some periods, even the shortest period of
unemployment can have far-reaching consequences our ordinary people.
The fixed term employment scheme is
easy to take advantage of, on the part of employers, since the few laws
governing it does not really address the present situation of that which it
seeks to govern. Because of this we
have cases of the five month contractuals who never become regular employees. Thus, an employee can work for years under
different contracts, and never become regular.
Employers on the other hand, have the prerogative of renewing this
contract. The arbitrary exercise of
this prerogative are subject to little safeguard, save judicial
determination. But when the employee
chooses to seek recourse with the courts, he faces a long and harrowing battle
which may leave no clear winner.
The solution proposed in this paper is
to limit the instances wherein fixed term employment can be entered into, and
to require that the contract between the employer and employee set the period
in precise terms. It is further
proposed that where the term has not been clearly fixed in this contract, the burden
of proving that the employee is not a regular should be placed with the
employer. By imposing a preventive
measure, employers are precluded from entering into term employment contracts
when the nature of the work is not so covered.
Also, should litigation ever arise, the employee is given the upper hand
by the processual presumption imposed by the proposed amendment.
It is important to note that the laying
down of laws to prevent the abuse of laborers is merely a preliminary step in
the quest of improving the lives of the working class of the country. Because it is only when we understand that
labor is not simply a resource to be exploited but is in fact a partner in the
building of wealth, only then can labor truly obtain the protection it needs
and deserves.
1.
This essay is the
required output for Legal Writing under Atty. Jose Victor Chan-Gonzaga, for
school year 2000-2001 in the Ateneo Law School. The writer is a sophomore in the Ateneo Law School and is a
staffer in the Ateneo Law Journal.
2.
National Statistics
Office, Philippine National Statistics Office Official Website (visited, April
9, 2001) <http://www.census.gov.ph/>
[hereinafter, NSO, Unemployment Rate].
3. A household is composed of an average of 4.9 individuals,
based on the National Statistics Office, Census of Population and Housing
Highlights of the Preliminary Results (visited, April 9, 2001) <http://www.census.gov.ph/data/sectordata/c2khighlights.html>.
11.
Vales vs.
Villa, 35 Phil. 769 (1916), cited in Edgardo
Paras, Civil Code of the Philippines Annotated, 569 (Fourteenth
Edition).
12.
Rosario
Abigail Dris, Strengthening the Worker’s Right to Security of Tenure (1995)
(unpublished J.D. thesis, Ateneo de Manila).
13.
Joselito Guianan Chan, Law on Labor Relations and Termination of
Employment Annotated, 730 (2000 ED.).
14.
Provided for
in the Civil Code, Article 1377, “The interpretation of obscure words or
stipulations in a contract shall not favor the party who caused the obscurity.”
15.
Purefoods
Corp., vs. NLRC, G. R. 122653 (17 December 1997), cited in Cesario A. Azucena Jr., The Labor Code with
Comments and Cases 560 (1999 ED.).
17.
Namely,
regular employees, probationary employees, project employees, seasonal
employees and contractual employees (who are employees of a valid job
contracting arrangement, entered into between a principal and a subcontractor).
18.
For example,
Article 1332 of the Civil Code provides, “When one of the parties is unable to
read, or if the contract is in a language not understood by him, and mistake or
fraud is alleged, the person enforcing the contract must show that the terms
thereof have been fully explained to the former.”
19.
Article 283 of
the Labor Code which provides, “Closure of establishment and reduction of
personnel. - The employer may also terminate the employment of any employee due
to the installation of labor-saving devices, redundancy, retrenchment to
prevent losses or the closing or cessation of operation of the establishment or
undertaking unless the closing is for the purpose of circumventing the
provisions of this title, by serving a written notice on the workers and the
Department of Labor and Employment at least one (1) month before the intended
date thereof. In case of termination due to the installation of labor-saving
devices or redundancy, the worker affected thereby shall be entitled to a
separation pay equivalent to at least one (1) month pay or to at least one (1)
month pay for every year of service, whichever is higher. In case of
retrenchment to prevent losses and in cases of closures or cessation of
operations of establishment or undertaking not due to serious business losses or
financial reverses, the separation pay shall be equivalent to one (1) month pay
or at least one-half (1/2) month pay for every year of service, whichever is
higher. A fraction of at least six (6) months shall be considered one (1) whole
year.”