• Security of Tenure for all urgent but elusive

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    A measure that grants security of tenure to erstwhile contractual employees has been revived in the 16th Congress after getting swept under the rug the last time out.

    There are two versions of the bill which have been filed thus far: House Bill 573 or an Act Strengthening the Security of Tenure of Workers in the Private Sector filed by Reps. Walden Bello and Ibarra Gutierrez of Akbayan party-list and House Bill 124 or Security of Tenure Act of 2013 by Emmeline Aglipay of DIWA party-list.

    Under Akbayan’s version, all employees should enjoy security of tenure and probationary employment cannot exceed six months from the date the employee started working. Further, the services of an employee who has been engaged on a probationary basis may be terminated only for a just cause or when he/she fails to qualify as a regular employee in accordance with reasonable standards made known by the employer.

    An employee who is allowed to work after a probationary period, even under the guise of an extension, will then be considered a regular employee.

    ”The termination of a probationary employee cannot be valid if there is termination of almost all probationary employees and if the employer maintained probationary employees in excess of the 30 percent of the total workforce,” Akbayan said in its bill.

    Akbayan defined a regular employee as somebody engaged to perform activities which are usually necessary or desirable or directly related to the usual business or trade of the employer.

    ”The passage of Security of Tenure Act is very significant because without it, people’s wages will continually fall, thus preventing the creation of large market with significant purchasing power that will serve as the engine of sustained growth,” Bello told The Manila Times.

    ”We need strong pressure [to pass the bill]from labor groups and its allies, as well as well-organized support for casual employees,” Bello added.

    Likewise, Akbayan’s proposal provides for the right to notice in employment relations which requires any employer who seeks to dismiss a worker to furnish him/her a written notice stating the particular acts or omissions constituting the grounds for his/ her dismissal. In cases of abandonment of work, the written notice will be served at the workers’ last known address.

    The Akbayan bill also entitles the worker an opportunity to answer the allegations stated against him in the notice of dismissal within a period of five calendar days from the receipt of such notice and with the assistance of a representative if he or she so desires. This is on top of the fact that the right to notice requires the employer to afford the worker ample opportunity to be heard and to defend himself with an optional assistance of a representative.

    An employee who is dismissed from work in violation of his rights under these conditions, including the right to notice, will be entitled to immediate reinstatement without loss of seniority rights and other privileges, inclusive of allowances and to his other benefits or their monetary equipment computed from the time his compensation was withheld from him up to the time of his actual reinstatement.

    ”The proposal seeks to balance the legitimate business interests of the employer with the need for protection of workers from the prejudice of non-regularization. For as long as the employer profits through and by the labor of its employees, it is fair to recognize the workers’ right to remain employed absent any legal cause for his/her dismissal,” the Akbayan legislators said in their explanatory note.

    Aglipay’s version of the measure shared Akbayan’s take on banning the hiring of workers under fixed-term employment except for: project employment, extra employment, seasonal employment and in industries that are certified by the President in an Executive Order (as allowable, due to existing and substantial losses in the industry as a whole brought about by an inability to price goods competitively in the market despite implementing reasonable measures), Overseas Filipino Workers, those hired to play professional sports, those appointed to sensitive positions in educational institutions such as Dean, Assistant Dean, Principal and College Secretary and those employed as members of the managerial staff.

    Project employment is a tenure which has been fixed for a specific project and that the employee’s termination has been determined at the time of his/her engagement, while extra employment is additional work to be performed in restaurant and hotel establishments specifically for banquet functions, seminars and similar functions where regular employees cannot reasonably cope with increased demands of such events.

    Seasonal employment, on the other hand, refers to the performance of an agricultural work that is seasonal in nature (duration of the planting or harvesting season).

    Aglipay invoked that such scheme of fixed-term hiring and related casualization efforts have led to precarious employment because persons who are essential to the business of the employer are nevertheless denied the status and attendant benefits of a regular employees, often through the imposition of fixed term contracts or through the abuse of the probationary mechanism of employment.

    ”While it is reasonable that industries under distressed conditions should be allowed to engage in flexible labor practices, it is important that these instances be the exceptions, and that regular employment must be, in practice and well as on paper, the general rule,” Aglipay, a lawyer, pointed out.

    ”The necessity of regular employment which allows upward mobility as a reward for excellence and diligence to the Filipino family cannot be overemphasized. It is almost impossible to have a stable family or even to plan for the future if one does not have a stable job,” Aglipay said.

    Another provision found in both versions of the measure is the banning of Labor Only Subcontracting or an arrangement where the subcontractor merely recruits, supplies or places workers to perform a job, work or service for a principal, including instances where any of the following is present: a) the subcontractor does not have substantial capital and investment which relates to the job, work or service to be performed and b) employees recruited, supplied or placed by such subcontractor are performing activities which are usually necessary or desirable or directly related to the usual business of the principal or the principal has the right to control not only the end to be achieved but also the manner and means to be used in reaching that end.

    But unlike Aglipay’s stance, Akbayan took it a notch higher when it comes to holding the offenders accountable by providing penalties for erring employers.

    Akbayan pitched that an employer who deliberately categorizes or otherwise treats regualar employees to be any non-regular employee will be liable to compensate each misclassified employee no less than P50,000 without prejudice to other monetary awards to which subcontracted employee may be entitled such as back wages, monetary claims and benefits under an applicable certified bargaining agreement.

    In addition, any alien found guilty will be summarily deported upon completion of service of sentence.

    In closing, Aglipay underscored that abuses occur in the current system because some unscrupulous employers can take advantage of gray areas in the law in order to circumvent the right of employees to security of tenure, for no other reason than to enhance the profits of an already profitable enterprise.

    ”To maintain the status quo is to ignore the plight of those most in need of the protection of the law,” Aglipay said.

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