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Less-than-six-months contract periods: IS THE RETAIL INDUSTRY CIRCUMVENTING THE LAW? THE PHILIPPINE CASE

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Abstract

While the State has been steadfast in its cognizance on labor as the ―primary social economic force,‖ some circumstances have casted some doubts over the State's sincerity in upholding such public policy. One of this is the retail industry's practice of subcontracting employees for less than six months. This paper explores the legal basis of such practice and proposes some policy recommendations and a research agenda in aid of legislation.
International Journal of Information Technology and Business Management
29th November 2012. Vol.7 No.1
© 2012 JITBM & ARF. All rights reserved
ISSN 2304-0777 www.jitbm.com
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Less-than-six-months contract periods:
IS THE RETAIL INDUSTRY CIRCUMVENTING THE LAW? THE PHILIPPINE
CASE
Pamela F. Resurreccion
Faculty, Department of Marketing, Mindanao State University
Iligan Institute of Technology, Iligan City, Philippines
Ramon V. del Rosario
College of Business, De La Salle University, Manila, Philippines
Email: pamela.resurreccion@g.msuiit.edu.ph
ABSTRACT
While the State has been steadfast in its cognizance on labor as the ―primary social economic
force,‖ some circumstances have casted some doubts over the State’s sincerity in upholding such public
policy. One of this is the retail industry’s practice of subcontracting employees for less than six months.
This paper explores the legal basis of such practice and proposes some policy recommendations and a
research agenda in aid of legislation.
Keywords: subcontracting, contracting, contractualization, labor law, Philippines
1. RESEARCH BACKGROUND
The State has been steadfast in its
cognizance on the importance and value of labor.
In Article II, Section 18 of the 1987 Philippine
Constitution, the State clearly ―affirms labor as a
primary social economic force‖ and that ―it shall
protect the rights of workers and promote their
welfare.‖ This policy permeates in many other
legislations and implementing rules passed down
the hierarchy of laws of the State. For instance,
Article 3 of the Presidential Decree (P.D.) No. 442,
otherwise known as the Labor Code of the
Philippines, highlights the State’s policy to ―afford
protection to labor‖ and to ―promote full
employment. The same article manifests the
State’s mandate to assure the rights of workers to
security of tenure. These provisions emphasize that
security of tenure is a worker’s constitutional right.
Security of tenure has been defined in
Article 279 in P.D. No. 442 as, the non
termination of the services of an employee by the
employer, in cases of regular employment, except
for a just cause or authorized cause.
It was in the 1980s and 1990s that
workers’ security of tenure was observed to erode
very fast, particularly in industries which are
export-oriented and those with foreign equity, as
they employ workers under a contract even for
work that is ―desirable and necessary‖ or directly
connected with the main business of the company
(Center for Women Resources, 2003). According
to the same report, ―in many establishments, these
temporary workers are not called contractuals.‖
They are given a plethora of names: trainee,
apprentice, helper, casual, and piece rater. But they
have one thing in common - they are doing the
work of regular workers but for a specified period
of time usually less than six months.
[26]
In the Philippines, the combined share of
casual, contractual and part-time workers in total
enterprise-based employment was between 14-15%
from 1990 to 1994. This went up to 18.1%
between 1994 and 1995. In 1997, the figure was
already 21.1% (Center for Women Resources,
2003).
In 2002, 20 branches of the biggest retail trade store
in the country, had 92 % of the workers who are
either direct hired or concessionaire hired
contractuals; a plastic manufacturing firm in
Southern Metro-Manila, employed 78% of its work
force on contractual basis; a garments
manufacturing firm also in Southern Metro-Manila,
had contractuals composing 80% of its total
workforce; and a tuna canning factory in southern
Philippines, employed ―contractuals‖ comprising
96% of its workers (Center for Women Resources,
2003).
In 2010, the Department of Labor and
Employment reports that the number of
establishments resorting to outsourcing or
contracting out of job, work or service was placed
at 2,471. This figure represents 10.4% of the
estimated 23,723 establishments. This suggests that
this type of working arrangement is not a common
practice among establishments (Bureau of Labor
and Employment Statistics, 2012).
The bulk of establishments resorting to
this type of work arrangement were mainly in
manufacturing (31.2%); wholesale and retail trade
(19.9%); and real estate, renting and business
activities (11.1%). Altogether, they comprised
62.2% of total establishments engaged in
contracting out (Bureau of Labor and Employment
Statistics, 2012).
Contracting out jobs/services emerged in
the 1980s as a response of firms to deal with the
increasing competitions brought about by trade
globalization. This flexible measure allows
establishments to cope with the fluctuating
demands for their products in the market and
reduce cost by concentrating on their core business
and outsourcing non-core activities (e.g., back-
office jobs, logistics and courier services, HR and
training services, etc.) to other parties (Bureau of
Labor and Employment Statistics, 2012).
It must be recalled that on February 21,
2002, Department of Labor and Employment
(DOLE) promulgated Department Order (D.O.) No.
18 02 specifying the rules implementing Articles
106 to 109 of the Labor Code, as amended. D.O.
No. 18 2 was criticized by labor oriented groups
as legitimizing contracting and subcontracting
which gravely undermine workers’ rights to
security of tenure, self-organization, and collective
bargaining; more inclined to protect principal
employers rather than protect workers employed
contracting and subcontracting arrangements;
shifting accountability from principal (indirect
employer) to contractors; and weakening the state’s
capacity to monitor and regulate working
conditions by promoting tripartite mechanisms and
voluntary codes of good practices (EILER, 2012).
Contractualization has eroded salary and wages, job
security and the exercise of unionism (Natividad,
2008).
The changing labor law and movement
toward contractualization poses questions as to
whether labor law will be able to continue to play
the role of protecting wage earners for which it was
originally developed (Gilles, 2003).
Workers who do find jobs in the
Philippines find that they face another big hurdle
after being hired: contractualization. Big
businesses, whether foreign or local, have long
mastered the fine art of labor flexibilization in
employment such that seven out of ten firms in the
country practice contractualization. Some of the
worst ―contractualizers‖ among companies are also
among the biggest. Such widespread destruction of
the security of tenure of labor has had a profound
impact on Philippine workers’ freedom to exercise
their trade union and other democratic rights. Most
of all, massive contractualization has greatly
reduced the variable capital for wages, with the
monopoly capitalists seeking ever-increasing super
profits in the face of the current world capitalist
crisis of overproduction (EILER, 2008).
2. RESEARCH PROBLEM
This paper generally aims to determine the
legal basis or lack thereof of the practice of the
retail industry to subcontract most of their
employees for a period of less than six months.
Specifically, it aims to seek answers to the
following:
a. What are the laws that support the lack of
legal basis of the practice to subcontract
employees for a period of less than six
months?
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b. What are the laws that provide the legal
basis for the practice of subcontracting
employees for a period of less than six
months?
c. What are the gaps and/or misalignments in
legislations pertaining to subcontracting
for a period of less than six months?
d. What are some possible improvements in
terms of policy making that could be
instituted to bridge the gaps or to correct
the misalignment in legislations pertaining
to subcontracting for a period of less than
six months?
e. What are the potential research agenda
pertaining to subcontracting for a period of
less than six months that could be
undertaken to aid legislation?
3. REVIEW OF RELATED LITERATURE
The Supreme Court has ruled a relatively
substantial number of cases on contracting or
subcontracting in the context of Articles 106 to 109
of P.D. No. 442 or the Labor Code of the
Philippines, as amended.
It is once again emphasized that the issue
at hand revolves around the legality of engaging a
worker under a contract for a period lesser than six
months. Hence, the following Supreme Court
Rulings are cited.
The Supreme Court has recognized that
private institutions, and even some government
offices, are observing the general practice of
employing the services of independent contractors.
These independent contractors render services such
as security, utility, and other specialized services
which may be deemed directly related to the
principal business of the indirect employer but are
not necessary in the conduct of its operation as in
the case of Filipinas Synthetic Fiber Corporation
(FILSYN) vs. NLRC, et. al. (1996).
Meanwhile, jurisprudence has a generous
number of cases to ascertain the existence of an
employee employer relationship, to wit: (1) the
selection and engagement of the employee; (2) the
payment of wages; (3) the power of dismissal; and
(4) the power to control the employee’s conduct, or
the so called ―control test,‖ which is considered the
most important element as in the cases of TAPE,
Inc. vs. Servana (2008) and South Davao
Development Company, Inc. vs. Trade Union of the
Phils., et. al. (2009). This withstanding, the
parameters are very clear on the conditions that
characterize subcontracted labor through an
independent contractor and subcontracted labor
who are directly hired.
3.1 Project based Subcontracted Labor
As it is among the common arguments of
parties in explaining why there is an engagement
period specified in some contracts as in the case of
Philex Mining Corp. vs. NLRC (1999), the
elements of a project based subcontracted labor is
herein reviewed. Expounding on contractual
employees being hired for projects, the Supreme
Court, in Philex Mining Corp. vs. NLRC (1999),
held:
Project employees are those
workers hired (1) for a specific project or
undertaking, and (2) the completion or
termination of such project has been
determined at the time of the engagement
of the employee. The principal test for
determining whether particular employees
as project employees as distinguished
from regular employees, is whether or not
the project employees were assigned to
carry out a specific project or undertaking,
the duration and scope of which were
specified at the time the employees were
engaged for that project (citing Violeta vs.
NLRC, 1997).
3.2 Regular and Project Employment
Distinguished
To establish a clear definition of regular
employment as against project employment,
reference is made to Article 280, paragraph 1 of
P.D. No. 442, to wit:
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
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completion or termination of which has
been determined at the time of the
engagement of the employee or where the
work or service to be performed is
seasonal in nature and the employment is
for the duration of the season.
Henceforth, any employment that does not
meet the aforementioned definition is considered a
casual employee. However, if an employee has
worked for at least one year, regardless if said work
engagement is ―continuous or broken,‖ the said
employee shall be deemed a regular employee with
due consideration to the work for which he has
been employed and his employment shall remain to
be so concurrent to the existence of such work.
In this explanation, the Supreme Court
contemplates four (4) kinds of employees as
enumerated in the case of Leyte Geothermal Power
Progressive Employees Union - ALU TUCP vs.
PNOC - Energy Development Corp. (2011): (a)
regular employees or those who have been
"engaged to perform activities which are usually
necessary or desirable in the usual business or trade
of the employer"; (b) project employees or those
"whose 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"; (c)
seasonal employees or those who work or perform
services which are seasonal in nature, and the
employment is for the duration of the season;8 and
(d) casual employees or those who are not regular,
project, or seasonal employees. Jurisprudence has
added a fifth kind a fixed-term employee (Asia
World Recruitment Inc. v. NLRC, 1999; Palomares
v. NLRC, 1997).
3.3 On Fixed term Employment
The Civil Code of the Philippines, which
was approved on June 18, 1949 and subsequently
enforced on August 30, 1950, contains specific
provisions pertaining to ―obligations with a period,‖
particularly in Section 2, Chapter 3, Title 1, Book
IV. The same statute covers ―contracts of labor and
for a piece of work,‖ specifically found in Sections
2 and 3, Chapter 3, Title VIII, respectively, of Book
IV. The Court, in Brent School, Inc. & Dimache
vs. Zamora & Alegre (1990), firmly contended,
with reference to P.D. No. 442, that there is ―no
prohibition against term-or fixed-period
employment contained in any of its articles or is
otherwise deducible therefrom.‖
The Supreme Court further expounded, in
the same case,
It is plain then that when the
employment contract was signed between
Brent School and Alegre on July 18, 1971,
it was perfectly legitimate for them to
include in it a stipulation fixing the
duration thereof. Stipulations for a term
were explicitly recognized as valid by this
Court, for instance, in Biboso v. Victoria’s
Milling Co., Inc., promulgated on March
31, 1977, and J. Walter Thompson Co.
(Phil.) v. NLRC, promulgated on
December 29, 1983. The Thompson case
involved an executive who had been
engaged for a fixed period of three (3)
years. Biboso involved teachers in a
private school as regards whom, the
following pronouncement was made:
What is decisive is that petitioners
(teachers) were well aware at the time that
their tenure was for a limited duration.
Upon its termination, both parties to the
employment relationship were free to
renew it or to let it lapse. (p. 254)
Under American law the principle
is the same. "Where a contract specifies
the period of its duration, it terminates on
the expiration of such period." "A
contract of employment for a definite
period terminates by its own terms at the
end of such period."
The status of legitimacy continued
to be enjoyed by fixed-period employment
contracts under the Labor Code
(Presidential Decree No. 442), which went
into effect on November 1, 1974. The
Code contained explicit references to fixed
period employment, or employment with a
fixed or definite period. Nevertheless,
obscuration of the principle of illicitness
of term employment began to take place at
about this time.
Fixed term employment is further cited
in Mercado, et. al. vs. AMA Computer College
(2010) as a valid employment mode under
Philippine law and jurisprudence.
According to Abad (2001), a stipulation
in employment contracts providing for term
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employment or fixed period employment are valid
when the period was agreed upon knowingly, and
voluntarily by the parties without force, duress or
improper pressure exerted on the employee; and
when such stipulations were not designed to
circumvent the laws on security of tenure. Hence,
an agreement or contract of employment with a
stipulated period of effectivity expires on the last
day of such period. He further emphasized that
―the decisive determinant in term employment
should not be the activities that the employee is
called upon to perform but the day certain agreed
upon by the parties for the commencement and the
termination of their employment relation.
In the case of Felix Buenaseda vs. NLRC
(1995), when an appointment is not renewed at a
clearly stipulated date, it implies an expiration of
term and not dismissal.
3.4 When Contract and Statutes are Misaligned
In the case of Pakistan Airlines vs. Ople
(as cited in Innodata Phils., Inc. vs. Quejada-Lopez
& Natividad-Pascual, 2006)
Indeed, a contract of employment
is impressed with public interest. For this
reason, provisions of applicable statutes
are deemed written into the contract.
Hence, the "parties are not at liberty to
insulate themselves and their relationships
from the impact of labor laws and
regulations by simply contracting with
each other."
It was also emphasized in Phil. Federation
of Credit Cooperative, Inc. vs. NLRC (as cited in
Innodata Phils., Inc. vs. Quejada-Lopez &
Natividad-Pascual, 2006), ―in case of doubt, the
terms of a contract should be construed in favor of
labor.
4. THEORETICAL FRAMEWORK
This study is anchored on the hierarchy of
Laws in the Philippines as its theoretical
framework.
Furthermore, much of the issues raised by
stakeholders led to the notion that there appears to
be some misalignment in some laws of different
levels in the hierarchy and even in laws within the
same level of the hierarchy. These areas are
indicated by the broken lines in Figure 1 and herein
constitute the subject of this research.
Figure 1. Hierarchy of Laws in the Philippines
5. DISCUSSION OF RESEARCH PROBLEM
5.1 The Philippine Constitution
It is indubitable that the State recognizes
―labor as a primary social economic force‖ and that
it shall protect the rights of workers and promote
their welfare.‖ This has been clearly provided for
in the Philippine Constitution as a policy of the
State. In the same manner, the State also manifests,
as a national policy, that the private sector has an
indispensable role; that private enterprise is
encouraged; and that incentives are provided to
needed investments. This can easily be construed
that the State equally favors both. In most
situations, in fact, both labor and private enterprise
have been regarded as having conflicting interests.
Moreover, because subcontracting allows for
flexible arrangements and lesser employee benefits
costs, this has been the easy lure for investors.
While the constitution recognizes the
indispensable role of the private sector (Section
20), the incentives for investments may not
necessarily involve subcontracting.
It is in this light that the 1987 Philippine
Constitution becomes vulnerable to differing
interpretations.
5.2 The Statutes
The primary applicable statute in labor
matters is P.D. No. 442 otherwise known as the
Labor Code of the Philippines, as amended.
Embodied in this law is a policy of the State to
[30]
promote labor’s security of tenure, among others.
Security of tenure has been defined as the non
termination of the services of an employee by the
employer, in cases of regular employment, except
for a just cause or authorized cause. The disconnect
lies in the succeeding provisions concerning
contracting and subcontracting, specifically covered
by Articles 106 to 109 of the Labor Code. Labor
has the impression that these provisions have
legitimized subcontracting which, considering its
temporary nature, deviates from the State’s policy
of promoting security of tenure and labor’s welfare
in general both emphasized in Section 18 of the
Philippine Constitution and Article 3 of the Labor
Code of the Philippines.
In the practice of subcontracting majority
of their employees by most retail establishments,
particularly by, but not limited to, department
stores, it appears that these establishments have
observed a subcontracted employee engagement
period of less than six months. This certainly
elicited cynicism from among the labor advocates
since six months is the maximum prescribed
probationary period preluding a regular tenure.
It must be noted that once an eligible
person enters in to an employment contract with a
specified period of engagement, an obligation is
imposed upon the person. Another statute supports
this, particularly Article 1193 of Republic Act No.
386, otherwise known as the Civil Code of the
Philippines which provides that obligations for
whose fulfillment a day certain has been fixed, shall
be demandable only when that day comes.
Considering that a subcontracted employee
voluntarily enters into a contract with a principal
with the knowledge of the employment period of
less than six months, such contract is deemed valid
and void.
Philippine jurisprudence have
demonstrated that the State does not tolerate such
practice if ―it is apparent that periods have been
imposed to preclude acquisition of tenurial security
by the employees‖ as in the case of Cielo vs. NLRC
(1991). However, Abad (2001) notes that ―the
critical consideration in determining its validity is
the presence or absence of a substantial indication
that the period specified in the employment
agreement was designed to circumvent the security
of tenure of regular employees. Hence, if the net
effect of the agreement is to render the employment
basically at the pleasure of the employer thus
intended to prevent security of tenure from accruing
in favor of the employees even during the specified
period, then it is unlawful as in the case of
Pakistan International Airlines Corp. vs. Ople
(1990).
5.3 The Implementing Rules and Regulations
(IRRs)
The Department of Labor and
Employment (DOLE), being the implementing
agency of the State in matters concerning labor, has
issued IRRs pertinent to subcontracting. One of
these IRRs is Department Order No. 3, Series of
2001, entitled: ―Revoking Department Order No.
10 of 1997 and continuing to prohibit labor-only
contracting‖ which was signed by DOLE Secretary
Patricia A. Sto. Tomas on 08 May 2001, revoked
the rules implementing Articles 106 to 109 of Book
III of the Labor Code embodied in Department
Order No. 10, series of 1997. In 2002, Department
Order No. 18 02 was issued by DOLE, specifying
the ―Rules Implementing Articles 106 to 109 of the
Labor Code, as Amended.‖ These IRRs have
drawn more specific lines in the implementation of
the subcontracting mode of employment. It must
be noted that these IRRs does not in any way
outlaw fixed term employment. In this context,
the employees are, once again, placed at the mercy
of the conditions validating a fixed term
employment contract.
Although it has been emphasized that the
State shall exercise its police powers if and when
there is ―substantial indication that the period
specified in the employment agreement was
designed to circumvent the security of tenure of
regular employees,‖ the burden of proof lies with
the employees. Given the economic constraints
these employees have, the necessary trigger for
investigation may not be undertaken.
6. CONCLUSION AND
RECOMMENDATIONS
The Philippine Constitution clearly
demonstrates its resolute thrust to support and
protect labor and promote its welfare. This is
further reflected in the policy declarations of
succeeding statutes. Although subcontracting
appears to contradict with this basic public policy,
based on the pertinent statutes and implementing
rules and regulations, contracting or subcontracting
a worker, whether through an agency or directly
hired, is well supported. Specifically, a fixed
term contract has a legal basis by virtue of Article
1193 of the Civil Code of the Philippines and as
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well as Philippine jurisprudence with particular
reference to Brent School, Inc. vs. Zamora, (1990).
However, these do not correct the
misalignments between the Philippine Constitution
and statutes and IRRs in the context of public
policy and the ambiguity among statutes. The
Philippine Constitution remains to be the supreme
law of the land thus all other laws must mirror what
the Constitution promulgates.
Anent to this, the following is hereby
recommended:
a. The Department of Labor and Employment
(DOLE) must intensify its campaign for the
compliance of labor standards as the law clearly
provides that labor standards must be strictly
observed even in subcontracted employment
arrangements. Henceforth, probes and audits
are highly desirable.
b. The DOLE must enjoin organizations to use
performance management systems to increase
worker productivity. If performance standards
are clearly made known prior to employee
engagement and coaching and training is
properly done and administered, employees are
in a better position to positively contribute to
business performance. Any persistent non
adherence to established and mutually agreed
performance standards despite coaching and
other performance improvement trainings may
be just grounds for termination.
c. In aid of legislation, the following research
agenda is laid out:
1. A comprehensive employment survey on
subcontracted employees in department
stores. The objective of this study is to
capture a clear and updated picture of the
employment practices of the retail industry.
Though DOLE has conducted periodic
studies on this aspect, it only limits its
studies to the number of ―contractuals‖ and
does not include compensation and benefits,
hiring, and security of tenure.
2. An inquiry into the subcontracting practices
of more advanced economies. The objective
of this study is to benchmark best
subcontracting practices and to initially
establish the impact of subcontracting to
business performance at the micro level
and national economic performance at the
macro level.
7. REFERENCES
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http://ablelawfirm.tripod.com/do3.htm
Asia World Recruitment Inc. v. NLRC (1999), 371
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[32]
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Article
Investigates what is happening in North America with regard to labour relations law. Examines, first, collective labour relations and labour law and, second, focuses on the legal regulation of the individual relationship, also known as employment law. Goes on to cover these two separate, but intertwined, entities in depth and as they are interpreted in both Canada and the USA. Concludes that labour law is changing and moving toward contractualization and proceduralization. Wonders whether labour law will be able to continue to play the role of protecting wage earners for which it was originally developed.
The Life and Struggle of Women Workers under Contractualization from Asia-Pacific Research Network: http://aprnet.org/journals-a-policy-papers/58- volume-8-june-2003/264-the-life-and-struggle-of- women-workers-under-contractualization Cielo vs
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Center for Women Resources. (2003, June 18). The Life and Struggle of Women Workers under Contractualization. Retrieved March 22, 2012, from Asia-Pacific Research Network: http://aprnet.org/journals-a-policy-papers/58- volume-8-june-2003/264-the-life-and-struggle-of- women-workers-under-contractualization Cielo vs. NLRC (1991), 193 SCRA 410.
  • Felix Buenaseda
Felix Buenaseda vs. NLRC (1995), 240 SCRA 139.
  • Mercado
Mercado, et. al. vs. AMA Computer College (April 13, 2010), G.R. 183572.
Philippine National Oil Company -Energy Development Corporation
  • Alu Tucp
Leyte Geothermal Power Progressive Employees Union -ALU – TUCP vs. Philippine National Oil Company -Energy Development Corporation (March 30, 2011), G.R. No. 170351.
  • Palomares Vs
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