Section 2 of “Executive Order No. 51 (EO 51) Implementing Article 106 of the Labor Code of the Philippines, As Amended, To Protect the Right to Security of All Tenure of All Workers Based on Social Justice in the 1987 Philippine Constitution” imposes “a prohibition against illegal contracting and subcontracting.” However, such labor arrangements are already banned by the Labor Code and several Department of Labor and Employment (DOLE) orders.
In the draft of the labor groups, Section 2 was written as: “Consistent with the policy of this government, direct hiring of the employee by the principal employer shall be the general norm in employment relations.” Renato Reyes added that “the signed EO on contractualization removes any reference to direct hiring being the norm, and how this is needed to strengthen security of tenure. This was an important policy declaration sought by workers in their draft EO. “
Bukluran ng Manggagawang Pilipino (BMP) President Luke Espiritu’s discusses Duterte’s insistence that an Executive Order to prohibit all forms of contractualization is a less powerful answer against contractualization.
“If we study closely Article 106 of the Labor Code it does not say that it establishes something like the trilateral work arrangement as opposed to bilateral work arrangement. Article 106 talks about wages NOT employment types. Instead of “ESTABLISHING” the trilateral, it PRESUPPOSES its existence .
Instead of the law ‘legalizing” or “allowing” trilateral, it is PRACTICE that started it. At that time, 1970s, there are trilateral arrangements in the construction industry and in agriculture where seasonal work is contracted out to encargados whose responsibility is to look for workers.
Therefore, Article 106 identifies who should be liable for the unpaid wages. The law at that time could not take account of all forms of trilateral being established by practice. So, it DELEGATED LEGISLATIVE power to the Executive, particularly the Secretary of Labor.
Two types of legislative power were delegated, (a) the power to RESTRICT, and (b) the power to PROHIBIT. As in all valid delegation of legislative power, Art. 106 provided the standard.
If the power to RESTRICT is used, the standard is to make distinction between labor-only contracting and job contracting; the former means the third party does not have capital in the form of tools, machineries and equipment and performs activities directly-related to the principal business of the employer.
If the power to PROHIBIT is used, the standard is clear, that is to PROTECT THE RIGHTS OF WORKERS ESTABLISHED UNDER THE LABOR CODE.
So it is mental dishonesty on the part of Duterte and Bello to argue (1) that the law allows contractualizatiion, i.e that the law “established” it; (2) that only Congress can stop it (how about the legislative power to PROHIBIT delegated to the Secretary of Labor?).
Under the doctrine of qualified political agency, the Secretary of Labor is just the alter-ego of the President. Ergo, if the Secretary of Labor has delegated legislative power to PROHIBIT contractualization, the President can also exercise that power.
See “Executive Order No. 51 Implementing Article 106 of the Labor Code of the Philippines, As Amended, To Protect the Right to Security of All Tenure of All Workers Based on Social Justice in the 1987 Philippine Constitution”
Labor groups, Kilusang Mayo Uno (KMU) Metro Manila, Alyansa ng mga Manggagawa Laban sa Kontraktwalisasyon (ALMA Kontraktwal) and Defend Job Philippines held a press conference today, May 3 to express their rage over the official release of Executive Order # 51, the signed EO of President Duterte on contractualization. Defend Job Philippines said leaders of the labor groups tore copies of the signed Executive Order No. 51 .
The groups said that EO 51 is nothing but a PR stunt, anti-workers, useless and deceptive as this not resolve the Filipino workers’ long-drawn demand to end all forms of contractualization in the country.
What do you think? Is the signed EO 51 just an reiteration of the current Labor law?