FORMER senator and trade union leader Ernesto Herrera of Samboan, Cebu and Calape, Bohol died on Oct. 29, 2015, less than two months after his 73rd birthday on Sept. 11.
Best remembered for his role as a member of Agrava Board that looked into the 1983 murder of then returning opposition leader Benigno “Ninoy” Aquino, Herrera was dragged into the longest-running controversy in his public career when he authored Republic Act #6175 of 1989. Which has just been revived by the furor over President Duterte’s executive order announced in Cebu City last May 1.
Duterte’s E.O. is supposed to stop “endo” (end of contract) but it does not. It does not ban all forms of “contractualization” and the labor practice itself. President Duterte admits that the law needs to be amended by Congress. His E.O. hasn’t killed “endo.”
And R.A. #6175 authored by Boy Herrera was to blame? Two camps disagreed with each other:
* That of Herrera and labor group TUCP (which Herrera defended at an April 15, 2014 press-con and his son Ernesto II repeated at the Senate funeral service for his dad on Nov. 5, 2015). Namely:
R.A. #6175 is pro-labor and protects the welfare of laborers and labor unions. The Department of Labor (Dole), they argued, used the martial law-era Presidential Decree 422 (Labor Code Art. 106) for its Department Order #10 allowing “contractualization.”
* That of other labor groups KMU and Ecumenical Institute for Labor Education and Research (EILER). In sum, it says: Herrera’s R.A. #6175 is the “plague” that legally enabled the work arrangement for janitors and other casual employees to become “the normal arrangement” so that it has cut across all areas and sectors of labor. Art. 106-109 of the Labor Code “gave Dole the power to issue the department order that promotes the hiring of contractual workers and other non-regular workers.”
Core of issue
Revisiting the controversy might lead to better understanding of what caused the fiasco: whether it is (a) failure of Dole, in which case it can amend or repeal its department order, or (b) failure of the law, in which case Congress can review the provision on casual employees.
Did Dole misinterpret R.A. 6175?
The Herreras and TUCP were right that most if not all of the law, as its title and provisions attest, refer to protection of laborers’ rights, strengthening labor unionism and CBAs, and the like. The law amended many “questionable” provisions of the Labor Code enacted by decree during Marcos’s martial law regime.
Gap in the law
While R.A. #6175’s intent was to “regularize” casuals by providing that they “automatically” become regular after six months, at the same time Art. 280 of the Dole rules implementing Herrera’s law allows two exceptions: (a) if the worker’s hiring was “fixed for a specified period” and (b) if contracted for a specified season.
It’s the first exception that apparently empowered the Dole implementing rules. See the gaping hole? If the employment contract specifies a period -- usually, inevitably for less than six months -- “automatic” regularization won’t apply.
Any law graduate of a Cebu law school who reads the Labor Code provision on automatic regularization, which is based on R.A. 6175, will tell you that while the law gives security of tenure in its first part, it provides in its second part the means to take that security of tenure away.
Where ball is
The president was candid about the E.O. although the labor sector was no longer surprised why he went through the ritual of raising its hopes and letting them fall.
He tossed the ball to Congress but he knows pretty well that he, with his party’s super-majority, can make Congress shoot it into the ring or, again, just stall.