Perhaps because he thought that he wasn’t going to win anyway, candidate Rodrigo Duterte made a number of extravagant promises to the voters in the 2016 Presidential election. One related to the labor sector. If elected, Mr. Duterte said, he would lose no time working for the eradication of the endo (end of contract) practice, under which employers hired workers on a contractual basis, repeatedly renewing the four-month or five-month contracts after brief intervals.
True to his word, newly-elected Rodrigo Duterte lost no time instructing DoLE (the Department of Labor and Employment) to issue no-more-endo orders to business establishments determined to be employing their workers on a contractual basis. It was no secret that the biggest endo practitioners were”•and remain”•the leading retailing and fast-food (QSR, or quick service restaurant) companies. Newly-appointed DoLE head Silvestre Bello III and his minions dutifully went to work, conducting meetings with the top officials of the targeted establishments and obtaining the employment profiles of their workforces.
During the past year and a half there has been no hard information, from DoLE or the companies, as to the progress of the drive against endo. (Although it is widely believed that DoLE has met firm resistance from the no. 1 conglomerate in this country). As a result, the Filipino people have been left to speculate as to whether the anti-endo campaign has been a successful government initiative.
Then, three weeks ago, the no-information situation came to an end. President Duterte declared that the government “could not force” business establishment to stop engaging in the endo employment practice, in effect admitting (1) that there has been push-back from the private sector and (2) that consequently the anti-endo drive has been less than successful. Secretary Bello, a lawyer steeped in the nature of employment and the rights of employers and employees, heartily agreed.
One would have thought that that was the end of the endo story. But it wasn’t. A few days ago the head of the NCR (National Capital Region) office of DoLE issued an order to the nation’s largest fast-food group Jollibee, to regularize 7,500 of its employees. The order has raised two questions. One is more immediate than the other.
The immediate question is whether the Jollibee group will comply with the DoLE-NCR order. Already some labor lawyer have pointed out that an order of that nature should have been issued by the Secretary of Labor and Employment, not a mere regional director. I don’t know much about the approach of Jollibee management to these matters, but I am certain that the company’s legal advisers will point out to Jollibee management the implications of Jollibee compliance with the DoLE regional director’s order.
By far the most important implication will be legal, nay constitutional. One of the freedom enshrined in the Constitution is the freedom to contract with regard to matters that are not illegal or immoral or harmful to public health and safety. Going beyond freedom to contract, the Constitution safeguards the inviolability of lawful contracts. There has been no determination that the endo contracts have been unlawful.
The endo practitioners’ resort to this approach to employee hiring is based on sound economic considerations revolving around cost. No one will dispute the proposition that labor regulation cannot be about profits alone, with worker welfare enjoying low priority. But these interests are not irreconcilable. The correct approach to reconciling the business sector’s concerns with the workers’ desire for employment stability is to examine why regularization produces higher operational costs.
In time, enhancing the welfare of Filipino workers must be pursued within the framework of the Constitution, more specifically the Basic Law’s provision on freedom to contract. Employment regularization must not be done in a manner violative of the Constitution.
