RE: ENTITLEMENT TO HAZARD PAY A.M. No. 03-9-02-SC
OF SC MEDICAL AND DENTAL
CLINIC PERSONNEL,
Present:
PUNO, C.J.,
QUISUMBING,
YNARES-SANTIAGO,
CARPIO,
AUSTRIA-MARTINEZ,
CARPIO MORALES,
AZCUNA,
TINGA,
CHICO-NAZARIO,
VELASCO, JR.,
NACHURA,
REYES,
LEONARDO
DE CASTRO, and
BRION, JJ.
Promulgated:
November
27, 2008
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R E S O L U T I ON
Tinga, J.:
This administrative matter pertains to
the latest of the spate of requests of some of the members of the Supreme Court
Medical and Dental Services (SCMDS) Division in relation to the grant of hazard
allowance.
In the
Court’s Resolution[1] of
Administrative Circular No. 57-2004
(the subject Circular) initially classified SCMDS employees according to the
level of exposure to health hazards, as follows: (a) physicians, dentists,
nurses, medical technologists, nursing and dental aides, and physical
therapists who render direct, actual and frequent medical services in the form
of consultation, examination, treatment and ancillary care, were said to be
subject to high-risk exposure; and (b) psychologists, pharmacists,
optometrists, clerks, data encoders, utility workers, ambulance drivers, and
administrative and technical support personnel, to low-risk exposure.[4] Accordingly, employees exposed to high-risk
hazards belonging to Salary Grade 19 and below, and those belonging to Salary Grade
20 and above, were respectively given 27% and 7% of their basic monthly salaries
as hazard allowances; whereas employees open to low-risk hazards belonging to Salary
Grade 20 and above, and Salary Grade 19 and below, were respectively given 5%
and 25% of their basic monthly salaries as hazard allowances.[5]
This
classification, however, was abolished when the Department of Health
(DOH)—after reviewing the corresponding job descriptions of the members of the
SCMDS personnel and the nature of their exposure to hazards—directed that they
should all be entitled to a uniform hazard pay rate without regard for the
nature of the risks and hazards to which they are exposed.[6] The dual 25% and 5% hazard allowance rates
for all the members of the SCMDS personnel were retained.
In their Letter[7]
dated 21 January 2005 addressed to then Chief Justice Hilario Davide, Jr.,
eleven of the SCMDS personnel concerned—who claim to be doctors with salary grades
higher than 19[8]
and who allegedly render front-line and hands-on services but receive less
hazard allowance allocations than do those personnel who do not directly
deliver patient care—lamented that the classification and the rates of hazard
allowance implemented by the subject Circular seemed to favor only those
belonging to Salary Grade 19 and below, contrary to the very purpose of the
grant which is to compensate health workers according to the degree of exposure
to hazards regardless of rank or status.
They believe that the grant must be based
not on the salary
grade but rather on the degree of hazard to which they are actually exposed;
thus, they asked for a reexamination of the subject Circular.[9]
However, even before the request could
be acted upon by the Court, Secretary Francisco Duque III issued Administrative
Order (A.O.) No. 2006-0011[10]
on P4,989.75 without further increases.[11] In view of this development, some of the
SCMDS personnel concerned,[12]
in another Letter dated 19 December 2007 and addressed to Chief Justice Reynato
S. Puno, suggesting that the subject Circular be amended to conform to A.O. No.
2006-0011, and that they accordingly be paid hazard pay differentials accruing
by virtue thereof.[13]
SCMDS
Senior Chief Staff Officer Dr. Prudencio Banzon, Jr. indorsed the letter to
Deputy Clerk of Court and Chief Administrative Officer Atty. Eden Candelaria
(Atty. Candelaria).[14] On
In its Resolution[18]
dated
The OCAT posits that the subject
Circular may not be amended in accordance with A.O. No. 2006-0011 and in the
manner the personnel concerned desire because, first, the mechanics of payment established
by the administrative order is of doubtful validity; and second, the said
administrative order has not been duly published and hence not binding on the
Court.[19] It also points out that the administrative
order does not conform to Section 21 of R.A. No. 7305 in which the rates of
hazard pay are clearly based on salary grade.[20]
The FMBO
advances a contrary position. It
maintains that the subject Circular may be amended according to the terms of A.O.
No. 2006-0011 inasmuch as the latter could put to rest the objection of the
personnel concerned to the allegedly unreasonable and unfair allocation of
hazard pay. Additionally, it recommends
that once the amendment is made, the hazard allowances due the SCMDS personnel
be charged against the savings from the regular appropriations of the Court.[21]
This Court has to deny the request
because the subject Circular cannot be amended according to the mechanism of
hazard pay allocation under AO No. 2006-0011 without denigrating established
administrative law principles.
Essentially, hazard pay is the
premium granted by law to health workers who, by the nature of their work, are
constantly exposed to various risks to health and safety.[22] Section 21 of R.A. No. 7305 provides:
SEC.
21. Hazard Allowance.—Public health
workers in hospitals, sanitaria, rural health units, main health centers,
health infirmaries, barangay health stations, clinics and other health-related
establishments located in difficult areas, strife-torn or embattled areas,
distressed or isolated stations, prison camps, mental hospitals,
radiation-exposed clinics, laboratories or disease-infested areas or in areas
declared under state of calamity or emergency for the duration thereof which
expose them to great danger, contagion, radiation, volcanic activity/eruption,
occupational risks or perils to life as determined by the Secretary of Health
or the Head of the unit with the approval of the Secretary of Health, shall be
compensated hazard allowances equivalent to at least twenty-five percent (25%)
of the monthly basic salary of health workers receiving salary grade 19 and
below, and five percent (5%) for health workers with salary grade 20 and above.
The implementing rules of R.A. No.
7305 likewise stipulate the same rates of hazard pay. Rule 7.1.5 thereof states:
7.1.5 Rates
of Hazard Pay
a. Public health workers shall be compensated
hazard allowances equivalent to at least twenty-five percent (25%) of the
monthly basic salary of health workers receiving salary grade 19 and below, and
five percent (5%) for health workers with salary grade 20 and above. This may be granted on a monthly, quarterly
or annual basis. x x x
In a language too plain to be
mistaken, R.A. No. 7305 and its implementing rules mandate that the allocation
and distribution of hazard allowances to public health workers within each of
the two salary grade brackets at the respective rates of 25% and 5% be based on
the salary grade to which the covered employees belong. These same rates have in fact been
incorporated into the subject Circular to apply to all SCMDS personnel. The computation of the hazard allowance due
should, in turn, be based on the corresponding basic salary attached to the
position of the employee concerned.
To be sure, the law and the
implementing rules obviously prescribe the minimum rates of hazard pay due all
health workers in the government, as in fact this is evident in the
self-explanatory phrase “at least” used in both the law and the rules. No
compelling argument may thus be offered against the competence of the DOH to
prescribe, by rules or orders, higher rates of hazard allowance, provided that
the same fall within the limits of the law.
As the lead agency in the implementation of the provisions of R.A. No.
7305, it has in fact been invested with such power by Section 35.[23] Be that as it may, the question that arises
is whether that power is broad enough to vest the DOH with authority to fix an exact
amount of hazard pay accruing to public health workers with Salary Grade 20 and
above, deviating from the 5% monthly salary benchmark prescribed by both the
law and its implementing rules.
The
DOH possesses no such power.
Fundamental is the precept in
administrative law that the rule-making power delegated to an administrative
agency is limited and defined by the statute conferring the power. For this reason, valid objections to the
exercise of this power lie where it conflicts with the authority granted by the
legislature.[24]
A mere fleeting glance at A.O. No.
2006-0011 readily reveals that the DOH, in issuing the said administrative
order, has exceeded its limited power of implementing the provisions of R.A.
No. 7305. It
undoubtedly sought to modify the rates of hazard pay and the mechanism for its
allocation under both the law and the implementing rules by prescribing a
uniform rate—let alone a fixed and exact amount—of hazard allowance for
government health workers occupying positions with salary grade 20 and
above. The effect of this measure can
hardly be downplayed especially in view of the unmistakable import of the law
to establish a scalar allocation of hazard allowances among public health
workers within each of the two salary grade brackets.
Section 19[25]
of R.A. No. 7305 recognizes, for its own purposes, the applicability of the
provisions of R.A. No. 6758[26]
(The Salary Standardization Act of 1989) in the determination of the salary
scale of all covered public health workers. Telling is this
reference to the scalar schedule of salaries when viewed in light of the fact
that factoring in the salaries of individual employees and the applicable
uniform rate of hazard allowance would yield different results which, when
charted against each other, would also bear the scalar schedule intended by the
law.
The object, in other words, of both
the law and its implementing rules in providing a uniform rate for each of the
two groups of public health workers is to establish a scalar allocation of the
cash equivalents of the hazard allowance within each of the two groups. A scalar schedule of hazard pay allocation
within the Salary Grade 20 and higher bracket can indeed be achieved only by
multiplying the basic monthly salary of the covered employees by a constant
factor that is 25% as the fixed legal rate.
Even without an express reference to the scalar schedule of salaries
under R.A. No. 6758, it can nevertheless be inferred that R.A. No. 7305, by
mandating a fixed rate of hazard allowance for each of the two groups of health
workers, intends to achieve the same effect.
Hence, it
can only be surmised that the issuance of AO No. 2006-0011 is an attempt to
amend the rates of hazard allowance and the mechanism for its allocation as
provided for in R.A. No. 7305 and the implementing rules because it has the
effect of obliterating the intended discrepancy in the cash equivalents of the hazard
allowance for employees falling within the bracket of Salary Grade 20 and above. Without unnecessarily belaboring this point,
the Court finds that the administrative order violates the established
principle that administrative issuances cannot amend an act of Congress.[27] It is void on its
face, but only insofar as it prescribes a predetermined exact amount in
cash of the hazard allowance for public health workers with Salary Grade 20 and
above.
Indeed, when an administrative agency
enters into the exercise of the specific power of implementing a statute, it is
bound by what is provided for in the same legislative enactment[28]
inasmuch as its rule-making power is a delegated legislative power which may not be used either to abridge the authority given
by the Congress or the Constitution or to enlarge the power beyond the scope
intended.[29]
The power may not be validly extended by
implication beyond what may be necessary for its just and reasonable execution.[30] In other words, the function of promulgating
rules and regulations may be legitimately exercised only for the purpose of
carrying out the provisions of a law, inasmuch as the power is confined to
implementing the law or putting it into effect.[31] Therefore, such rules and regulations must
not be inconsistent with the provisions of existing laws, particularly the
statute being administered and implemented by the agency concerned,[32]
that is to say, the statute to which the issuance relates. Constitutional and
statutory provisions control with respect to what rules and regulations may be
promulgated by such a body, as well as with respect to what fields are subject
to regulation by it.[33]
It must be stressed that
the DOH issued the rules and regulations implementing the provisions of R.A.
7305 pursuant to the authority expressly delegated by Congress. Hence, the DOH, as the delegate
administrative agency, cannot contravene the law from which its rule-making
authority has emanated. As the cliché
goes, the spring cannot rise higher than its source.[34] In this regard, Fisher observes:
x x x The often conflicting and ambiguous passages within a
law must be interpreted by executive officials to construct the purpose and
intent of Congress. As important as intent is the extent to
which a law is carried out. President Taft once remarked, “Let anyone
make the laws of the country, if I can construe them.”
To carry out the laws, administrators issue rules and regulations of their own.
The courts long ago appreciated this need. Rules and regulations “must be
received as the acts of the executive, and as such, be binding upon all within
the sphere of his legal and constitutional authority. Current law
authorizes the head of an executive department or military department to
prescribe regulations “for the government of his department, the conduct of its
employees, the distribution and performance of its business, and the custody,
use, and preservation of its records, papers, and property.
These duties, primarily of a “housekeeping” nature, relate only distantly to
the citizenry. Many regulations, however, bear directly on the public. It is here that administrative legislation must be
restricted in its scope and application. Regulations are not supposed to
be a substitute for the general policymaking that Congress enacts in the form
of a public law. Although administrative
regulations are entitled to respect, the authority to prescribe rules and
regulations is not an independent source of power to make laws. Agency
rulemaking must rest on authority granted directly or indirectly by Congress.[35]
(Emphasis supplied)
Moreover, although an
administrative agency is
authorized to exercise its discretion in the exercise of its power of
subordinate legislation, nevertheless, no similar authority exists to validate
an arbitrary or capricious enactment of rules and regulations.[36]
Rules which
have the effect of extending or conflicting with the authority-granting statute
do not represent a valid exercise of rule-making power but constitute an
attempt by the agency to legislate.[37] In such a situation, it is said that the
issuance becomes void not only for being ultra
vires but also for being unreasonable.[38] The law therefore prevails over the
administrative issuance.[39]
The Court takes notice of the fact that
the enactment of R.A. No. 7305 has touched off, within the public health
service sector, a surge of negative sentiments regarding the alleged
inequitableness and unfairness of the law—particularly the provisions thereof
relating to the allocation of hazard allowances. Certainly, the DOH can be reasonably expected
to respond to the well-meaning clamor of the public health workers; but while indeed
the DOH is entitled to a certain amount of hegemony over the statutes which it
is tasked to administer, it nevertheless may not go far beyond the letter of
the law even if it does perceive that it is acting in the furtherance of the
spirit of the law.[40]
A final note. Just as the power of the DOH to issue rules
and regulations is confined to the clear letter of the law, the Court’s hands
are likewise tied to interpreting and applying the law. In other words, the Court cannot infuse
vitality, let alone a semblance of validity, to an issuance which on its face
is inconsistent with the law and therefore void, by adopting its terms and in
effect implementing the same—lest we otherwise validate an undue exercise by
the DOH of its delegated and limited power of implementation. Suffice it to say
that questions relative to the seeming unfairness and inequitableness of the
law are matters that lie well within the legitimate powers of Congress and are well
beyond the competence of the Court to address.
In light of the foregoing, there
appears to be no more necessity to discuss the issue of the non-publication of
A.O. No. 2006-0011.
WHEREFORE, the request of the Supreme
Court Medical and Dental Services Division to amend Administrative Circular (A.C.)
No. 57-2004 according to the provisions of Department of Health Administrative
Order No. 2006-0011 is DENIED. The Court
DIRECTS that the payment of hazard allowance in favor of the personnel
concerned be made in accordance with A.C.
No. 57-2004.
SO ORDERED.
Associate Justice
WE CONCUR:
REYNATO S. PUNO
Chief Justice
|
LEONARDO A. QUISUMBING Associate
Justice |
CONSUELO YNARES-SANTIAGO Associate Justice |
|
ANTONIO T. CARPIO Associate
Justice |
MA. ALICIA AUSTRIA-MARTINEZ Associate Justice |
|
RENATO C. CORONA Associate
Justice |
CONCHITA CARPIO MORALES Associate Justice |
|
ADOLFO S. AZCUNA Associate
Justice |
MINITA V. CHICO-NAZARIO Associate Justice |
|
PRESBITERO J. VELASCO, JR. Associate
Justice |
ANTONIO EDUARDO B. NACHURA Associate Justice |
|
RUBEN T. REYES Associate
Justice |
TERESITA J. LEONARDO DE CASTRO Associate
Justice |
ARTURO D. BRION
Associate Justice
[2]The
law was approved on
[3]The
Circular, entitled Prescribing the
Guidelines for the Grant of Hazard Allowance to the Personnel of the Medical
and Dental Services (SCMDS), was issued on
[4]Supreme
Court Administrative Circular No. 57-2004.
II.
Eligibility:
SCMDS employees, whether permanent,
temporary, casual, or co-terminus, including those assigned or detailed at the
SC Clinic who render actual medical, dental and/or other health-related
services, as well as those who provide administrative and technical support are
entitled to receive hazard allowance.
For the purpose of these guidelines, SCMDS
personnel are classified as follows:
1. Those who, by the nature of their functions, are
subject to high risk exposure being directly and frequently exposed to
communicable, contagious, infectious and biological hazards. These are the
physicians, dentists, nurses, medical technologists, nursing aides, dental
aides and physical therapists who render direct, actual, and frequent medical services
in the form of consultations, physical examinations, treatment and ancillary
care; and
2. Those who are subject to low risk exposure in view of their
indirect and/or infrequent exposure to patients with communicable and
infectious ailments in the Supreme Court clinics. These personnel include
psychologists, pharmacists, optometrists, who render health-related services as
well as clerks, data encoders, utility workers, ambulance drivers and all those
who, regardless of their official job titles, provide administrative and
technical support to the SCMDS.
[5]A.C. No. 57-2004.
III. Rates of Payment:
x x x
1.
SCMDS personnel exposed to high-risk hazard with Salary Grades 19 and below
shall receive hazard allowance equivalent to twenty-seven percent (27%) of
their monthly basic salary. Those with Salary Grades 20 and above shall receive
hazard allowance equivalent to seven percent (7%) of their basic salary.
2. SCMDS personnel
exposed to low risk hazard with Salary Grades 19 and below shall receive hazard
allowance equivalent to twenty five percent (25%) of their monthly basic
salary. Those with Salary Grades 20 and above shall receive hazard allowance
equivalent to five percent (5%) of their basic salary.
[6]See the
Memorandum of Undersecretary Milagros L. Fernandez, dated
[7]
[8]Except
Madonna Catherine G. Dimaisip who as Dentist III occupies a position belonging
to Salary Grade 19. Geslaine C. Juan and
Nora T. Juat are, respectively, supervising judicial staff officer and chief
judicial staff officer. See Hazard Pay
Payroll for 15 November-
[10]Department
of Health A.O. No. 2006-0011 carries the title, Amended Guidelines on the Payment of Hazard Pay to Public Health
Workers (PHWs) UNDER R.A. 7305.
It states that its effective date is
[11]
[12]Prudencio
P. Banzon, Jr., M.D., Ramon S. Armedilla, Elmer R. Ruñez, M.D., Consuelo M.
Bernal, M.D., Remedios L. Patricio, M.D., Gislaine C. Juan, M.D., Celeste Aida
P. Vista, M.D., Mary Ann D. Barrientos and Angel S. Ambata, D.M.D..
[13]
[15]
[16]
[17]
[18]
[20]
[21]Rollo, pp. 199, 201.
[22]Rule
III.18 of the Implementing Rules of R.A. No. 7305 defines “hazard” as the risk
to the health and safety of public health workers.
[23]SEC.
35. Rules and Regulations.—The
Secretary of Health after consultation with appropriate agencies of the
Government as well as professional and health workers’ organizations or unions,
shall formulate and prepare the necessary rules and regulations to implement
the provisions of this Act.
[25]SEC.
19. Salaries.—In the determination of
the salary scale of public health workers, the provisions of Republic Act No.
6758 shall govern, except that the benchmark for Rural Health Physicians shall
be upgraded to Grade 24.
[26]Entitled,
An Act Prescribing a Revised
Compensation and Position Classification System in the Government and For Other
Purposes.
[28]Melendres, Jr. v. Commission on Elections,
377 Phil. 275, 291 (1999); Blaquera v.
Alcala, 356 Phil. 678 (1998).
[29]Conte v.
[30]United BF Homeowners Association v. BF
Homes, Inc., 369 Phil. 568, 579 (1999); Nasipit
Lumber Co., Inc. v. National Wages and Productivity Commission, 352 Phil.
503 (1998).
[31]Metropolitan Bank and Trust Co., Inc. v.
National Wages and Productivity Commission, G.R. No. 144322, 6 February 2007, 514 SCRA 346, 364-365.
[32]United BF Homeowners Association v. BF
Homes, Inc., 369 Phil. 568, 580 (1999); Conte
v. Commission on Audit, 332 Phil. 21, 36 91996); Lina, Jr. v. Cariñno, G.R. No. 100127, 23 April 1993, 221 SCRA 515, 531.
[33]Conte v.
[34]Cf. ABAKADA
GURO Party List, et al. v. Hon. Cesar V. Purisima, et al., G.R. No. 166715,
[T]he power to formulate or adopt implementing rules…is a
legislative function traditionally delegated by Congress to the executive
branch x x x.
This delegable rule-making power may be classified into two
types: (1) rules intended to regulate the internal management of the agencies
themselves; and (2) rules supplementing a statute and intended to affect
persons and entities outside the government made subject to agency regulation.
Either case, the power of the executive branch to promulgate such rules springs
from legislative delegation. In the
[35]L. Fisher.
Constitutional Conflicts Between Congress and the President. (4th ed., 1997), p. 90, citing Wayman v. Southhard, 10 Wheat. 1, 46
(1825).
[36]Thompson v. Consolidated Gas Utilities
Corp., 300
[37]United BF Homeowners Association v. BF
Homes, Inc., 369 Phil. 568, supra note 32.
[38]Metropolitan Bank and Trust Co., Inc. v.
National Wages and Productivity Commission, G.R. No. 144322, 6 February
2007, 514 SCRA 346, 365, citing Executive
Secretary v. Southwing Heavy Industries, Inc., G.R. Nos. 164171, 164172 and
168741, 20 February 2006, 482 SCRA 673, 699 (2006).
[39]Commissioner of Internal Revenue v.
Bicolandia Drug Corp., G.R. No. 148083, 21 July 2006, 496 SCRA 176, 188; Department of Agrarian Reform v. Sutton, G.R. No. 162070, 19 October
2005, 473 SCRA 392, 401-402.