PLEASE read the bill carefully first before commenting.
This was the emphatic response of the Alliance of Progressive Labor to what it described as the height of absurdity of a major labor organization when it wildly claimed that APL and the Akbayan partylist are “helping legitimize the widespread contractualization… in the country with their security of tenure bill and for promoting illusions that the Aquino government can still be pro-labor.” Roger Soluta, Kilusang Mayo Uno secretary general, was the purported author of the said “malicious statement,” which was posted on the group’s website.
It will be quite pathetic if the KMU made the wild allegations without reading the bill. But it will be extremely alarming if the KMU actually understood the bill and at the same time still opposed it, as that would align them with the employers who are now up in arms against it.
“Had they bothered reading the Security of Tenure bill pending in the Congress, our KMU friends will find that the SOT bill would actually make it very difficult for unscrupulous employers to use subcontracting and other forms of precarious work as a way to avoid regularizing workers and to deny them their basic labor and trade unions rights,” Josua Mata, APL secretary general, clarified.
Mata also stressed that while many of its affiliates provided ‘critical support’ for Aquino, particularly in the last elections, “APL’s official declarations – that are openly put up on its website and issued as statements during its various activities, especially in rallies and seminars, and even on its internal documents – as well as its continuing mass actions, which more often than not criticize his administration, will unequivocally prove that APL was not and will never be a lapdog of President Aquino or any government for that matter.” APL itself did not officially endorse President Aquino after he failed to sign the “Labor Platform for Full Employment, Labor Rights, Labor Justice and Social Protection” that was crafted by trade unions of varying ideological persuasions.
Mata stated that it is imperative for all labor groups to challenge whoever is in power, to back the SOT bill. After all, the primary role of governments is to uphold the Constitutional mandate for workers’ security of tenure. It is in this light that Mata reminded KMU that ‘daring’ or ‘challenging’ Aquino to back the SOT bill should not be distorted to mean harboring ‘illusion’ that Aquino ‘can still be pro-labor.’”
“It is like saying that by simply voting for either Noynoy of the Aquino-Cojuangco landed gentry or the big capitalist Manny will bring about ‘socialism’ or a utopia in the Philippines,” Mata added, alluding to Sen. Manuel Villar, the country’s richest senator and reputed as a shrewd businessman, who was KMU’s losing “candidate” in last year’s presidential polls.
Strange bedfellows; resistance since 2001
The APL said that “no wonder the big employers’ organizations or the various local and foreign chambers of commerce and industry are up in arms against the SOT,” thus “we’re wondering why our KMU friends are harping on baseless allegations making them strange bedfellows with our sworn ‘class enemies.’”
If the SOT bill was indeed “pro-capitalist,” it should have easily hurdled congressional approval, but it remains pending for a decade now since it was first filed on July 2, 2001 during the 12th Congress (2001-2004), and was only re-filed in the next congresses until the current 15th Congress (2010-2013), the APL bared.
“The Big Business, through their numerous lackeys, supporters, and even ‘unlikely allies’ within and beyond the Congress are, as expected, mounting stiff opposition to the SOT bill, including smear campaigns against it and its backers, just like the way they did since Day One of the bill 10 years ago,” the APL reported.
Although the original bill in 2001, House Bill No. 224, was sponsored by another congressman to gain wider endorsement among the members of the House of Representatives, Akbayan and APL were deeply involved in its formulation by providing much needed inputs and active support inside and outside Congress.
The main bill now, HB 4853, is a consolidated version of eight similar or interrelated house bills – led by HB 303 of Akbayan, and HBs 891, 892, 1049, 1060, 1451, 2983 and 3402 – and was submitted only last month by the Committee on Labor and Employment for eventual plenary discussion and voting.
HB 4853 is officially titled “An Act Strengthening the Security of Tenure of Workers in the Private Sector, Amending for the Purpose Articles 248, 279, 280, 281 and 288, and Introducing New Articles 106, 106-A, 106-B, 106-C, 106-D, 106-E, 280-A and 280-B to Presidential Decree No. 442, as Amended, Otherwise Known as the Labor Code of the Philippines.”
Highlights of HB 4853: Are these ‘anti-labor’?
As shown in its lengthy title, HB 4853’s proposed extensive amended and additional provisions are aimed at wide-ranging measures to correct and prevent many forms of contractualization or subcontracting, Akbayan said.
APL said that the primary objective of SOT, as its title implies, is to strengthen security of tenure in the private sector – there is a separate SOT bill for public sector employees – by instituting stringent measures against many methods in perpetuating contractual jobs to prevent workers from attaining regular work status and all the rights, benefits and privileges attached to it:
- Strengthens definition of regular employment
- Prohibits fixed-term employment
- Further curbs labor-only contracting
- Provides added protections for workers against willful outsourcing
- Imposes tough regulations to become authorized subcontractors
- Introduces penalties to violators
- Enhances provisions against management ULPs (unfair labor practices)
- Sets a 20% cap on the number of legitimate contractuals in a company. In other words, if the employee should be considered as regular, she will be considered as regular even if she is only 0.000001% of the total work force.
- Stipulates rights of contractual workers (including written contract)
- Incorporates pro-labor provisions in Department Order (DO) 18-02
- Revives “Serrano doctrine” (especially vs. illegal dismissals)
Had KMU read the bill, they will realize that if passed, the bill:
1. Will prevent ENDO, or the practice of terminating workers every 6 months;
2. Will prevent what happened to PAL, because both the reduction of the bargaining unit or the termination of regular employees through outsourcing will not be allowed;
3. DOES NOT allow the outsourcing of ANY job directly related to the business or those which are necessary and desirable;
4. Provides that contractuals and casuals hired to replace regular workers will likewise be considered REGULAR;
5. Widens the definition of the “labor-only contracting” to include cases where:
a. EVEN IF the contractor has capital and equipment, it will still be considered a labor-only contractor if the work done is directly related to the work of the principal or necessary and desirable it the latter’s trade or business; and
b. EVEN if there is substantial capital and equipment and even if the work is NOT necessary and desirable and not directly related, the principal will be considered the real employer and the contractor only a labor-only contractor, if the principal has the “right to control”;
6. The use of the subcontractor of the equipment, facilities, machineries, and tools of the principal is an indication that the subcontractor has no substantial capital and investment, and is therefore only a labor-only contractor;
7. Will address the current abuse perpetrated by the use of so-called “COOPERATIVE’, which are really nothing but labor-only contractors;
8. Provides that the refusal to recognize regular status will also be considered unfair labor practice;
9. Provides that P50,000 damages shall be paid to each employee who is found to be regular based on the above, on top of backwages, money claims, moral and exemplary damages.
APL surmised that the SOT bill’s admission that some form of contractual jobs may be allowed by law could have been blown out of proportion by Soluta and his colleagues and used it as a basis for their outrageous allegation. However, the APL added that the SOT clearly specifies that a certain degree of contract labor may be permitted only in some highly technical or specialized jobs that are not “necessary or desirable” to a particular company’s overall operation.
Thus, the following will be considered as regular employees at the place where they render actual service, and not contractual employees of the agency:
- Janitors, security guards, clerks, sales clerks, “extras”, “casual”, “contractuals”, messengers, helpers, assistants, and others working in banks, offices, malls, department stores;
- Factory workers, regardless of the type of work; and,
- Truck helpers purportedly working for delivery services of manufacturers will be treated as workers of the manufacturers.
The question then is what type of subcontracting will the bill allow? Very few…
- Painters and construction workers asked to paint or construct the building, although they will be treated as regular workers of the company to which the work was subcontracted.
- Landscaping of premises, although the workers will be considered as regular workers of the landscaping company.
- Computer technicians called in on a very intermittent basis to check the computer files, although they will be considered as regular employees of the computer tech company. (In-house computer technicians will be considered regular employees.)
… but wait… there is more…
The painters, landscapers, computer technicians given as examples above should enjoy all of the benefits of a regular worker as far as their direct employer is concerned, including the right to self-organization and collective bargaining.
More importantly, the APL reiterated, all types of non-regular or contractual jobs will become strictly regulated if the SOT bill is enacted, from specific requirements for companies and subcontractors to the rights and minimum benefits that all contractual workers are entitled to receive, including labor, health and safety standards, social security, and even the prospects of regularization and the rights to organize and collectively bargain.
Why not totally ban subcontracting and other flexible work arrangements?
While acknowledging that the current SOT bill is not “perfect” to fully address the rampant contractualization that is wreaking havoc on the workers and the labor movement – fewer regular workforce means fewer union members – the APL said that an “absolute ban” is not yet feasible at present given the political alignments in Congress.
Emphasizing that APL remains totally committed to the global campaigns to eliminate all forms of precarious work, including subcontracting, “but this cannot be done solely by legislation, especially not at this time when the elites still reign – a reality that our KMU friends know so well.”
APL added that the SOT bill will at least promptly tackle the widespread abuse of contractualization even in jobs that are “necessary or desirable” to certain businesses to enable them to deny their workers the opportunity to enjoy all the rights, benefits and privileges of regular workers.
APL said that the SOT bill is also “obviously a result of years of legislative lobbying and is the ‘closest’ thing to be passed,” and disclosed that “as early as 1997 when contractualization was just beginning to intensify, the APL had already taken the position to put a 10 percent-cap on the use of non-regular workers (while many employers agreed to a 20-percent limit) – but unfortunately, our friends in KMU, TUCP and FFW all objected at that time.”
Today, it is now common for companies to employ contractual workers equivalent to 30 percent to 60 percent (or even higher) of their respective total workforce, the APL revealed.
“Thus, blocking the bill or finding fault at the SOT bill as less than perfect is an excuse for not doing anything, which, in effect, will merely support the employers’ initiative to kill it,” the APL said.