An uncanny feeling of déjà vu pervades Executive Order No. 51 signed by Rodrigo Duterte this past Labor Day. It says nothing new, its provisions virtually a re-hash of pertinent sections of the Labor Code. Contractual employees who had pinned their hopes of regular employment on this President may rue their decision for voting for him when they read this executive order. Yes, it prohibits contracting or subcontracting of labor when it is a subterfuge to undermine workers’ rights to security of tenure, self-organization and collective bargaining. However, article 106 of the Labor Code already says as much, which the executive order itself unashamedly admits by reference. Yes, the order recognizes the power of the Secretary ofLabor to visit places of work and to enforce compliance with labor laws, but again, those powers have always been there courtesy of the Labor Code. A yawn can be heard coming.
So to hear Malacañang crow that the President has fulfilled his campaign promise to hammer the nails on endo—“end of contract”—takes a colossal amount of nerve because if the Labor Code was never able to abolish labor-only contracting, what are the chances this executiveorder will do any better? Or any different? It will not, is the simplest answer. Malacañang can continue thumping itself on the back, maybe dislodge that choking hazard that’s somehow preventing it from speaking truthfully, and its lackeys can spin all day long, but they cannot hide the fact that security of tenure is a fluid concept as far as this administration is concerned.
It isn’t only laborers and contractual employees who are beginning to realize this. Maria Lourdes Sereno knows it for a fact. As an impeachable officer, she may be removed as Chief Justice only through the process of impeachment. The Constitution says as much and herposition appeared secure, that is, until the Solicitor General filed a petition for quo warranto against her. Which incredibly, the Supreme Court, the highest court of the land, proceeded to entertain and hear! The decision on Sereno’s fate is rumored to be due this month, andrumors are rampant that Sereno will not finish her term which, if the Constitution were to be followed, should have lasted until she turned 70—good behavior being presumed—until 2030.
On the other hand, there is the example of Nicanor Faeldon. He had been tagged by Rodrigo Duterte to head the Bureau of Customs, to do not a little spring-cleaning and to improve collections. Faeldon failed to do that; instead, he became the center of a billion-peso attempt to smuggle illegal drugs into the country, right through his very own ports. Under mounting public pressure—and to keep up appearances that he was an uncompromising law-and-order guy who will not abide by the slightest whiff of corruption—President Duterte relieved Faeldon of his post, then appointed him to another.
That is security of tenure, according to the dictionary relied upon by this President.
Labor unions therefore cannot be blamed for feeling betrayed by this executive order. It may say a lot, but it means nothing. Insofar as putting an end to end-of-contract arrangements, we see a lot of motion but not a lot of action. The two are distinctly different: the first implies gestures and posturing and speechifying, the second connotes movement toward a certain goal. When he was campaigning for the presidency, Rodrigo Duterte promised to improve labor conditions for Filipino workers. I do not know what happened between then and now, but I suspect that he was being nothing more than the politician which he has convinced many voters he isn’t, that is, he was willing and able to say what people wanted to hear. He also said that he was willing to include the Left in his administration, and then he left them—Judy Taguiwalo and Paeng Mariano—to hang during their Senate confirmations. In the end, no leftists in this government and quite a lot of military officers.
To be fair to President Duterte, “endos” did not start when he assumed office—the arrangement had become virtually an institution, illegal per se, but an institution all the same. It is an institution that, to borrow a descriptive from the 2008 global financial meltdown, is too big to fail. Employers favor this arrangement because it saves them a lot of money in the form of benefits they would have had to pay if their workers were deemed regular employees. Because these “endo” workers are contractual, they are entitled to zero benefits, and from the way the Labor Code is being implemented, the arrangement has become, more or less, “legal.”
I agree with Malacañang on one point: it will require an act of Congress to amend the Labor Code and make direct hiring the legal norm. Anything less should be unacceptable. And the amendment should come with teeth: all employer attempts to subvert the right to security of tenure should be declared a criminal offense and punished accordingly. Executive Order No. 51 carries no such penalties because it couldn’t—the power to declare what acts are criminal and punishable is legislative, not executive.
I can almost see the lobbying and horse-trading in Congress now.