CURRENT SOCIETAL CONCERNS
Elpidio V. Peria
19 March 2017
from : http//www.bulatlat.com
When all labor groups in the country from the conservative ones (TUCP, which calls it “loss-loss”) to the radical (KMU rejects it outright) raise their collective howl and the employers’ groups only issue tepid statements warning of job losses and the most telling here is the statement of an SM official, SM being one of the country’s largest mall operator and is seen as an active practitioner of “endo”, who said the new policy has no impact to their group, then something is seriously wrong with the recently-issued Department Order No. 174 of the Department of Labor and Employment which is supposed to stop the practice of “endo”, a term which describes the nature of short-term employment in the country which usually lasts for five months maximum and avoids all the mandatory benefits usually given to a regular employee.
We have compared the contents of Department Order No. 174 with its predecessor, Department Order No. 18-A issued in 2011, and we can confirm the labor groups are correct in saying the two government issuances are largely the same since the evil they have long wanted to stamp out, the contractualization of labor, has remained, no wonder there is not much serious objection on DO 174 from the employers’ groups, as they said they can largely live with it, which means in real terms, they can continue with what they were doing even after DO 174 goes into effect.
Take for example, their guiding principles, while DO 18-A talks about contracting and subcontracting arrangements as expressly allowed by law and are subject to regulations and explicitly stating that “labor-only” contracting shall be prohibited, DO 174 talks about non-permissible forms of contracting and subcontracting arrangements undermine the Constitutional and statutory right to security of tenure of workers. This statement about non-permissibility is legal gobbledygook or nonsense since what it means is that its opposite, the permissible forms of contracting and subcontracting arrangements will remain, and they are basically what DO 18-A talks about.
Going to the essence of the rules, both DO 18-A (in its sec. 6) and DO 174 (sec. 5) prohibit “labor-only” contracting, though as if to add intensity or magnification of the rules which are totally uncalled-for as they will have the same effect, thus they are all a charade which will only convince fools, DO 174 adds adjectives like “absolute” in the title of the section thus making it “absolute” prohibition while putting in the operative provision the word “totally”, thus making the enumeration of various labor-only contracting forms “totally” prohibited. What does the DOLE think about labor groups, “uto-uto”? There is a better Tagalog word for this : “ginagago” or to make pun of the President’s nickname on this, how about : “ginagagong”?
Anyway, enough of that wordplay, what this boils down to are the exceptions to the prohibitions and if we compare what DO 18-A and DO 174 are allowing employers to do, let’s list them down for our perusal. DO 18-A allows these kinds of contracting, when the following circumstances occur:
a) The contractor must be registered in accordance with these Rules and carries a distinct and independent business and undertakes to perform the job, work or service on its own responsibility, according to its own manner and method, and free from control and direction of the principal in all matters connected with the performance of the work except as to the results thereof;
b) The contractor has substantial capital and/or investment; and
c) The Service Agreement ensures compliance with all the rights and benefits under Labor Laws.
What DO 174 allows as forms of labor contracting are the following :
a) The contractor or subcontractor is engaged in a distinct and independent business and undertakes to perform the job or work on its own responsibility, according to its own manner and method;
b) The contractor has substantial capital to carry out the job farmed out by the principal on his account, manner and method, investment in the form of tools, equipment, machinery and supervision;
c) In performing the work farmed out, the contractor or subcontractor is free from the control and/or direction of the principal in all matters connected with the performance of the work except as to the result thereto; and
d) The Service Agreement ensures compliance with all the rights and benefits for all the employees of the contractor under the labor laws
Our observation is that DO 18-A and DO 174 practically allows the same contracting practices, the item (a) in DO 18-A is now item (a) and (c) in DO 174 and some parts of it are in item (b) of DO 174 and the item (b) in DO 18-A is the same item (b) in DO 174 and the former item (c) in DO 18-A is the same item (d) in DO 174, and in fact, in writing them, we merely did a copy-paste of what’s stated in the Service Agreement and there were just some minor innocuous additions in DO 174 which actually means the same thing.
What is the next step here ? It should not be difficult for President Duterte to throw this draft in the waste-basket and start all over again and our suggestion is to do away with any of the allowable contracting practices both permitted by DO 18-A and DO 174 that we have compared and found to be largely intact, which is what we discussed above.
Summing up, what this exercise has shown us is that it merely zeroed in on the nefarious practices on the contractualization practices of employers, and perhaps the labor groups were clear about it, they don’t want contractualization of labor, but our DOLE officials were just acting by force of habit and they brought to the fore the prohibition on labor-only contracting, which has long been prohibited by the Secretary of Labor back in 1997.