‘Endo’ problem remains

Today is Labor Day.

It is a public holiday that is celebrated almost world wide to pay tribute to the working men and women whose efforts contribute to the growth and development of their societies.

In the Philippines, rather than an occasion for merriment, it’s a day that, for years, has been observed with mass demonstrations and protests by the people who are supposed to be at the center of its celebration.

Earlier, the country’s major labor organizations expressed optimism that the much-awaited executive order banning “endo” or illegal job contracting would be signed today by President Duterte.

Although the Department of Labor and Employment (DOLE) issued last year Department Order No. 34 tightening the rules on the capitalization and operation of service contractors, the labor sector felt it fell short of the promise of then candidate Rodrigo Duterte to put an end to the practice of employing workers in five-month intervals to avoid their becoming regular employees.

That hope was dashed when Labor Secretary Silvestre Bello III announced no such order will be forthcoming and that the President is leaving it to Congress to enact a law that would abolish the illegal employment scheme.

In an effort to appease the disgruntled labor groups, the administration has ordered a crackdown on labor-only contractors (or “cabos”) who engage in the illegal practice of acting as conduits for the recruitment of temporary workers.

So it’s back to square one for the labor sector on its decades-old campaign for security of tenure and its corresponding benefits to the other half of society that makes possible the country’s economic development.

The working class would have to pin its hopes for salvation from “endo” on Congress, a prospect that may take years to accomplish considering the slow pace of the legislative process and the expected contrary lobby efforts by the business sector.

If it’s any consolation, the House of Representatives approved last January on final reading House Bill No. 6908 which seeks to, among others, stop abusive forms of labor contracting.

Significantly, the bill does not prohibit fixed-term employment contracts, which, in essence, is the bone of contention of the protested labor contracting scheme.

Fixed-term contracts will be allowed for: (a) overseas Filipino workers (OFW), (b) workers on probation, (c) relievers who are temporary replacements of absent regular employees whose engagements shall not exceed six months, (d) project employees, and (e) seasonal workers.

The exemption of OFWs is justified. Their rules on employment are governed by the laws of their host countries. Philippine labor laws do not have extraterritorial application.

Predetermined periods of employment are understandable for relievers and project employees. Depending on the specific needs of the work involved, the start and end of their employment can be figured out and agreed upon ahead of time by the employer and employee.

The situation is different for seasonal workers. The bill states “seasonal employment is based on the existence of a season in a type of work. A season is that established in agricultural work or established periods of increased work demand inherent to the industry as determined by the Department of Labor and Employment in consultation with the National Tripartite Industrial Peace Council.”

The quoted provision uses the phrase “in consultation with” and not “with the consent or approval” of the council which includes representatives from the business and labor sectors. This means DOLE will have the final say on which industry may employ seasonal workers and it may or may not take into consideration the recommendations of the council.

Noticeably, the bill does not spell out the criteria that the DOLE has to follow in making that determination. Its authority is open-ended and, with no guidelines in place, the resolution of the question of what constitutes seasonal work may result in either sharp disagreement among the council members or court litigation.

From the looks of it, today’s Labor Day celebration will be no different from the past years—frustrating. Expect the “endo” problem to make its presence felt again next year.