G.R. No. 167614 – ANTONIO M. SERRANO,
petitioner, versus GALLANT MARITIME SERVICES, INC. AND MARLOW
NAVIGATION CO., INC., respondents.
Promulgated
on: March 24, 2009
--------------------------------------------------------------------------------------------
CONCURRING
OPINION
BRION, J.:
I concur with the ponencia’s
conclusion that Section 10 of Republic Act No. 8042, or the Migrant Workers
and Overseas Filipinos Act (R.A. No. 8042),
is unconstitutional insofar as it provides that –
In case of termination of overseas employment without just,
valid or authorized cause as defined by law or contract, the worker shall be
entitled to the full reimbursement of his
placement fee with interest at twelve percent (12%) per annum, plus his
salaries for the unexpired portion of his employment contract or for three (3) months for every year of
the unexpired term, whichever is less.
My conclusion,
however, proceeds from a different reason and constitutional basis. I believe that this provision should be struck
down for violations of the constitutional provisions in favor of labor[1]
and of the substantive aspect of the due process clause.[2] Given these bases, I see no necessity in
invoking the equal protection clause.
Underlying this restraint in invoking the equal protection clause is my
hesitation to join the ponencia in
declaring a classification as “suspect” and in using the strict scrutiny
standard without clearly defined parameters on when this approach applies.
I begin by reading the assailed provision
– Section 10, R.A. No. 8042 – in its constitutional context. Section 18, Article II of the Constitution declares it a state policy to affirm labor as a
primary social economic force and to protect the rights of workers and promote
their welfare. This policy is emphatically given more life
and vitality under Article
XIII, Section 3 of the Constitution which reads:
Section 3. The State shall
afford full protection to labor, local and overseas, organized and unorganized,
and promote full employment and equality of employment opportunities for all.
It shall guarantee the rights of all workers to self-organization,
collective bargaining and negotiations, and peaceful concerted activities,
including the right to strike in accordance with law. They shall be entitled to
security of tenure, humane conditions of work, and a living wage. They shall
also participate in policy and decision-making processes affecting their rights
and benefits as may be provided by law.
The State shall promote the principle of shared responsibility
between workers and employers and the preferential use of voluntary modes in
settling disputes, including conciliation, and shall enforce their mutual
compliance therewith to foster industrial peace.
The State shall regulate the relations between workers and
employers, recognizing the right of labor to its just share in the fruits of
production and the right of enterprises to reasonable returns to investments,
and to expansion and growth.
On
(b) The State shall afford full protection to labor,
local and overseas, organized and unorganized, and promote full employment and
equality of employment opportunities for all.
Towards this end, the State shall provide adequate and timely social,
economic and legal services to Filipino migrant workers.[4]
x x x
(e) Free access
to the courts and quasi-judicial bodies and adequate legal assistance shall not
be denied to any person by reason of poverty.
In this regard, it is imperative that an effective mechanism be
instituted to ensure that the rights and interests of distressed overseas
Filipinos, in general, and Filipino migrant workers, in particular, documented
or undocumented, are adequately protected and safeguarded.
These declared purposes patently characterize R.A. No. 8042
as a direct implementation of the constitutional objectives on Filipino
overseas work so that it must be read and understood in terms of these policy
objectives. Under this interpretative
guide, any provision in R.A. No. 8042 inimical to the interest of an overseas
Filipino worker (OFW) cannot have any place in the law.
Further examination of the law shows that
while it acknowledges that the State shall “promote
full employment,” it states at the same time that “the State does not promote overseas employment as a means to sustain
economic growth and national development.
The existence of overseas employment program rests solely on the assurance
that the dignity and fundamental human rights and freedoms of Filipino citizens
shall not, at any time, be compromised or violated.” In blunter terms, the overseas employment
program exists only for OFW protection.
Having said all these, the law concludes its Declaration of
Policies with a statement the lawmakers may have perceived as an exception to
the law’s previously declared policies, by stating – “[n]onetheless, the
deployment of Filipino overseas workers, whether land-based or sea-based, by
local service contractors and manning agencies employing them shall be
encouraged. Appropriate incentives may
be extended to them.” Thus, in
express terms, the law recognizes that there can be “incentives” to service
contractors and manning agencies in the spirit of encouraging greater
deployment efforts. No mention at all, however, was made of incentives to the
contractors’ and agencies’ principals, i.e., the foreign employers in
whose behalf the contractors and agencies recruit OFWs.
The matter of money claims – the immediate subject of the
present case – is governed by Section 10 of the law. This section grants the National Labor
Relations Commission (NLRC)
jurisdiction over OFW money claims. On liability for money claims, the sections
states:
SECTION 10. Money Claims. — Notwithstanding any provision
of law to the contrary, the Labor Arbiters of the National Labor Relations
Commission (NLRC) shall have the original and exclusive jurisdiction to hear
and decide, within ninety (90) calendar days after the filing of the complaint,
the claims arising out of an employer-employee relationship or by virtue of any
law or contract involving Filipino workers for overseas deployment including
claims for actual, moral, exemplary and other forms of damages.
The liability of the
principal/employer and the recruitment/placement agency for any and all claims
under this section shall be joint and several. This provision shall be
incorporated in the contract for overseas employment and shall be a condition
precedent for its approval. The performance bond to be filed by the
recruitment/placement agency, as provided by law, shall be answerable for all
money claims or damages that may be awarded to the workers. If the
recruitment/placement agency is a juridical being, the corporate officers and
directors and partners as the case may be, shall themselves be jointly and
solidarily liable with the corporation or partnership for the aforesaid claims
and damages.
Such liabilities shall
continue during the entire period or duration of the employment contract and
shall not be affected by any substitution, amendment or modification made
locally or in a foreign country of the said contract.
Any compromise/amicable
settlement or voluntary agreement on money claims inclusive of damages under
this section shall be paid within four (4) months from the approval of the
settlement by the appropriate authority.
In case of termination of
overseas employment without just, valid or authorized cause as defined by law
or contract, the worker shall be entitled to the full reimbursement of his
placement fee with interest at twelve percent (12%) per annum, plus his
salaries for the unexpired portion of his employment contract or for three (3)
months for every year of the unexpired term, whichever is less.
Under
these terms, the law protects the OFW as against the employer and the
recruitment agency in case of illegal termination of service, but limits this
liability to the reimbursement of the placement fee and interest, and the
payment of “his salaries for the
unexpired portion of his employment contract or for three (3) months for every
year of the unexpired term, whichever is less.” After earlier declaring the
principal/employer and the contractor/recruitment agency jointly and solidarily
liable, the limitation of liability appears to be a step backward that can only
be justified, under the terms of the law, if it is an “appropriate incentive.”
To be “appropriate,” the incentive must necessarily relate to the law’s purpose
with reasonable expectation that it would serve this purpose; it must also accrue
to its intended beneficiaries (the recruitment/placement agencies), and not to
parties to whom the reason for the grant does not apply.
These considerations bring us to the question – can the disputed portion
of Section 10 stand constitutional scrutiny?
I submit that it cannot as it violates the
constitutional provisions in favor of labor, as well as the requirements of substantive
due process.
The best indicator of the effect of the disputed portion of
Section 10 on OFWs can be seen from the results of the pre-R.A. No. 8042 rulings
of this Court that the ponencia
painstakingly arranged in tabular form.
The ponencia’s table shows
that by our own past rulings, before R.A.
No. 8042, all illegal dismissals merited the payment of the salaries that
the OFWs would have received for the unexpired portion of their contracts.[5] After
R.A. No. 8042, our rulings vary on the computation of what should be paid
to illegally dismissed OFWs, but in all cases the principal’s/agency’s adjudged
liability was for less than the unexpired portion of the OFW’s contract.[6]
Anyway viewed, the situation of
illegally dismissed OFWs changed for the worse after R.A. No. 8042.
In this sense, the disputed portion of Section 10 is one that goes against
the interests of labor, based on R.A. No. 8042’s own declared purposes and,
more importantly, on constitutional standards.
Section 10 diminished rather than
enhanced the protection the Constitution envisions for OFWs.
The more significant violation, however, that the disputed
portion of Section 10 spawns relates to its character as a police power measure,
and its failure to meet the substantive due process requirements of Article
III, Section 1 of the Constitution.
By the Office of the Solicitor General’s (OSG) own representations, the disputed
Section 10 is a police power measure adopted to mitigate the solidary liability
of placement agencies. It “redounds to
the benefit of the migrant workers whose welfare the government seeks to
promote. The survival of legitimate
placement agencies helps [assure] the government that migrant workers are
properly deployed and are employed under decent and humane conditions.”[7]
To constitutionally test the validity of this measure, substantive due process
requires that there be: (1) a lawful purpose; and (2) lawful means or method to
achieve the lawful purpose.[8]
I see nothing inherently unconstitutional in providing
incentives to local service contractors and manning agencies; they are
significant stakeholders in the overseas employment program and providing them
with encouragement – as R.A. No. 8042 apparently envisions in its Declaration
of Policies – will ultimately redound to the benefit of the OFWs they recruit
and deploy for overseas work. The
Constitution itself also expressly recognizes “the right of labor to its just share in the fruits of production and
the right of enterprises to reasonable returns on investments, and to expansion
and growth.”[9] As
entities acting for the principals/employers in the overseas employment
program, the recruitment/manning agencies deserve no less. Viewed from this perspective, the purpose of
encouraging greater efforts at securing work for OFWs cannot but be constitutionally
valid. Thus, the issue before us in
considering substantive due process is reduced to whether the means taken to
achieve the purpose of encouraging recruitment efforts (i.e., the incentive granted limiting the liability of recruitment/manning
agencies for illegal dismissals) is reasonable.
The first significant consideration in examining this issue is
the question of liability – who is liable when a foreign principal/employer
illegally terminates the services of an OFW?
Under Philippine law, the employer, as the contracting party who
violated the terms of the contract, is primarily liable.[10]
In the overseas employment situation, the protective measures adopted under the
law and the Philippine Overseas Employment Administration (POEA) rules to protect the OFW in his or her overseas contract best
tell us how we regard liability under this contract.
First, POEA Rules require, as a condition
precedent to an OFW deployment, the execution of a master contract signed by a
foreign principal/employer before it can be accredited by the POEA as an entity
who can source its manpower needs from the
These measures collectively protect OFWs by ensuring the
integrity of their contracts; by establishing the responsible parties; and by
providing the mechanisms for their enforcement.
In all these, the primary recourse is with the foreign principal
employer who has direct and primary responsibility under the employment
contract.
Section 10 of R.A. No. 8042 affects these well-laid rules and
measures, and in fact provides a hidden twist affecting the principal/employer’s
liability. While intended as an
incentive accruing to recruitment/manning agencies, the law, as worded, simply limits the OFWs’ recovery in wrongful
dismissal situations. Thus, it redounds
to the benefit of whoever may be liable, including the principal/employer – the
direct employer primarily liable for the wrongful dismissal. In this sense,
Section 10 – read as a grant of incentives to recruitment/manning agencies –
oversteps what it aims to do by effectively limiting what is otherwise the full
liability of the foreign principals/employers.
Section 10, in short, really operates
to benefit the wrong party and allows that party, without justifiable reason,
to mitigate its liability for wrongful dismissals. Because of this hidden twist, the limitation
of liability under Section 10 cannot be an “appropriate” incentive, to borrow
the term that R.A. No. 8042 itself uses to describe the incentive it envisions
under its purpose clause.
What worsens the situation is the chosen mode of granting the
incentive: instead of a grant that, to encourage greater efforts at
recruitment, is directly related to extra efforts undertaken, the law simply
limits their liability for the wrongful dismissals of already deployed OFWs. This is effectively a legally-imposed partial
condonation of their liability to OFWs, justified solely by the law’s intent to
encourage greater deployment efforts. Thus, the incentive, from a more
practical and realistic view, is really part of a scheme to sell Filipino overseas
labor at a bargain for purposes solely
of attracting the market. Ironically,
the OSG unabashedly confirmed this view in its Comment when it represented that
“[b]y limiting the liability to three
months, Filipino seafarers have better chance of getting hired by foreign
employees.”[17]
The so-called incentive is rendered particularly odious by
its effect on the OFWs - the benefits accruing
to the recruitment/manning agencies and their principals are taken from the
pockets of the OFWs to whom the full salaries for the unexpired portion of
the contract rightfully belong. Thus, the principals/employers and the
recruitment/manning agencies even profit from their violation of the security
of tenure that an employment contract embodies. Conversely, lesser protection
is afforded the OFW, not only because of the lessened recovery afforded him or
her by operation of law, but also because this same lessened recovery renders a
wrongful dismissal easier and less onerous to undertake; the lesser cost of
dismissing a Filipino will always be a consideration a foreign employer will take
into account in termination of employment decisions. This reality, unfortunately,
is one that we cannot simply wish away with the disputed Section 10 in place. Thus, this inherently oppressive, arbitrary, confiscatory
and inimical provision should be struck down for its conflict with the
substantive aspect of the constitutional due process guarantee. Specifically, the phrase “for three (3) months for every year of the unexpired terms, whichever
is less” in the fifth and final
paragraph of Section 10 of R.A. 8042 should be declared unconstitutional.
With
these conclusions, I see no need to further test the validity of the assailed
clause under the equal protection guarantee.
My restraint in this regard rests on two reasons.
First, I
believe that the ponencia’s use of
the strict scrutiny standard of review – on the premise that the assailed
clause established a suspect
classification – is misplaced. Second,
I do not see the present case as an occasion to further expand the use of the
strict scrutiny standard which the Court first expanded in Central Bank Employees Association, Inc. v. Bangko Sentral ng Pilipinas,[18]
A suspect classification is one where distinctions are made based on the
most invidious bases for classification that violate the most basic human
rights, i.e., on the basis of race,
national origin, alien status, religious
affiliation, and to a certain extent, sex and sexual orientation.[19]
With a suspect classification, the scrutiny of the classification is raised to
its highest level: the ordinary presumption of constitutionality is reversed
and government carries the burden of proving that its challenged policy is
constitutional. To withstand strict
scrutiny, the government must show that its policy is necessary to achieve a
compelling state interest; if this is proven, the state must then demonstrate
that the legislation is narrowly tailored to achieve the intended result.[20]
In the present case, I do not see the slightest indication
that Congress actually intended to classify OFWs – between and among
themselves, and in relation with local workers – when it adopted the disputed
portion of Section 10. The congressional intent was to merely grant recruitment
and manning agencies an incentive and thereby encourage them into greater deployment
efforts, although, as discussed above, the incentive really works for the
foreign principals’ benefit at the expense of the OFWs.
Even assuming that a classification resulted from the law, the
classification should not immediately be characterized as a suspect classification
that would invite the application of the strict scrutiny standard. The disputed portion of Section 10 does not,
on its face, restrict or curtail the civil and human rights of any single group
of OFWs. At best, the disputed portion limits the
monetary award for wrongful termination of employment – a tort situation
affecting an OFW’s economic interest. This characterization and the unintended classification that unwittingly
results from the incentive scheme under Section 10, to my mind, render a strict
scrutiny disproportionate to the circumstances to which it is applied.
I believe, too, that we should tread lightly in further
expanding the concept of suspect classification after we have done so in Central Bank,[21]
where we held that classifications that result in prejudice to persons accorded special
protection by the Constitution[22]
requires a stricter judicial scrutiny. The use of a suspect classification
label cannot depend solely on whether the Constitution has accorded special protection
to a specified sector. While the
Constitution specially mentions labor as a sector that needs special
protection, the involvement of or relationship to labor, by itself, cannot
automatically trigger a suspect classification and the accompanying strict
scrutiny; much should depend on the circumstances of the case, on the impact of
the illegal differential treatment on the sector involved, on the needed
protection, and on the impact of recognizing a suspect classification on future
situations. In other words, we should
carefully calibrate our moves when faced with an equal protection situation so
that we do not misappreciate the
essence of what a suspect classification is, and thereby lessen its
jurisprudential impact and value. Reserving this approach to the worst cases of
unacceptable classification and discrimination highlights the importance of
striking at these types of unequal treatment and is a lesson that will not be
lost on all concerned, particularly the larger public. There is the added reason, too, that the
reverse onus that a strict scrutiny brings directly strikes, in the most
glaring manner, at the regularity of the performance of functions of a co-equal
branch of government; inter-government harmony and courtesy demand that we
reserve this type of treatment to the worst violations of the Constitution.
Incidentally, I believe that we can arrive at the same conclusion
and similarly strike down the disputed Section 10 by using the lowest level of scrutiny,
thereby rendering the use of the strict scrutiny unnecessary. Given the OSG’s
positions, the resulting differential treatment the law fosters between
Philippine-based workers and OFWs in illegal dismissal situations does not rest
on substantial distinctions that are germane to the purpose of the law. No reasonable basis for classification exists
since the distinctions the OSG pointed out do not justify the different treatment
of OFWs and Philippine-based workers, specifically, why one class should be excepted
from the consequences of illegal termination under the Labor Code, while the
other is not.
To be sure, the difference in work locations and working
conditions that the OSG pointed out are not valid grounds for distinctions that
should matter in the enforcement of employment contracts. Whether in the
Significantly, the OSG could not even point to any reason
other than the protection of recruitment agencies and the expansion of the
Philippine overseas program as justification for the limitation of liability
that has effectively distinguished OFWs from locally-based workers. These reasons,
unfortunately, are not on the same plane as protection to labor in our
constitutional hierarchy of values. Even
RA 8042 repeats that “the State does not
promote overseas employment as a means to sustain economic growth and national
development.” Under RA 8042’s own
terms, the overseas employment program exists only for OFW protection. Thus viewed, the expansion of the Philippine overseas
deployment program and the need for incentives to achieve results are simply
not valid reasons to justify a classification, particularly when the incentive
is in the form of oppressive and confiscatory limitation of liability
detrimental to labor. No valid basis for classification thus exists to justify
the differential treatment that resulted from the disputed Section 10.
In light of all these, I vote to strike down the disputed
portion of Section 10 of R.A. No. 8042.
ARTURO D. BRION
Associate Justice
[1] CONSTITUTION, Article II, Section 18 and
Article XIII, Section 3; see p. 2 of this Concurring opinion.
[2]
[3] Long title of
R.A. No. 8042. Its short title is “Migrant
Workers and Overseas Filipinos Act of 1995.” The law came soon after the Gancayco
Commission rendered its report on the situation of overseas Filipino workers.
The Commission was convened following the execution of Flor Contemplacion, a
Filipino domestic helper executed in
[4] See
and compare with Section 3, Article XIII of the Constituion
[5] See: Ponencia, p. 23.
[6] Ibid.,
pp. 21-22.
[7] OSG Memorandum, rollo, pp. 668-678; cited in the ponencia, p. 11.
[8] See: City
of Manila v. Laguio, Jr., G.R. No. 118127, April 12, 2005, 455
SCRA 308; Planters Committee v. Arroyo, G.R. Nos. 79310 and 79744, July
14, 1989, 175 SCRA 343; Balacuit v. CFI of Agusan del Norte, G.R. No.
L-38429,
[9] CONSTITUTION, Article XIII, Section 3.
[10]
LABOR CODE, Article 279; Vinta
Maritime Co., Inc and Elkano Ship Management, Inc. v. NLRC, et al., G.R.
No. 113911, January 23, 1998; Tierra
International Construction, et al., v. NLRC, G.R. No. 101825, April 2, 1996.
[11] POEA Rules and Regulations Governing the
Recruitment and Employment of Land-Based Workers (POEA Rules for Land-Based Workers), Part III, Rule 1, Sections 1 to
4; Rule 2, Section 2.
[12] POEA Rules for Land-Based Workers, Part
V, Rile I, Sections 1 to 4; POEA Rules and Regulations Governing Recruitment
and Employment of Seafarers (POEA Rules
for Seafarers), Part IV, Rule I, Sections 1 and 2.
[13] POEA Rules for Land-Based Workers, Part
III, Rule 1, Section 1; POEA Rules for Seafarers, Part III, Rule 1, Sections 1
to 4
[14] POEA Rules for Land-Based Workers, Part
III, Rule 1, Sections 2 (a) to 3, and Rule 2, Section 2 (a); POEA Rules for
Seafarers, Part III, Rule 1, Sections 2 (b) and 4, and Rule 2, Section 2(a).
[15] POEA Rules for Land-Based Workers, Part
II, Rule 2, Section 1 (f) (3); POEA Rules for Seafarers, Part II, Rule 2,
Section 1 (e) (8); Datuman v. First
Cosmopolitan Manpower and Promotion Services, G.R. No. 156029, November 14,
2008; See: Implementing Rules and
Regulations of the Labor Code (1976), Book I, Rule V, Section 10; See also: Catan v. NLRC, G.R. No. 77279, April 15, 1988, 160 SCRA 691, and Royal Crown International v. NLRC, G.R.
No. 78085, October 16, 1989, 178 SCRA 569.
[16] Assistance
is provided by Labor Attaches who report to the DOLE functionally and to the
Philippine Ambassador at the foreign post.
Assisting him are welfare officers of the Overseas Workers Welfare
Administration (OWWA) and the POEA representatives, all of them functionally
reporting to the DOLE.
[17] OSG Comment; rollo, p. 555.
[18] G.R. No. 148208,
[19]
[20] Grutter v. Bollinger, 539
[21] Supra
note 18.
[22] In the Central Bank case, the
classification was based on salary grade or officer-employee status. In the words of the decision, “It is akin to
a distinction based on economic class and status, with the higher grades as
recipients of a benefit specifically withheld from the lower grades.”