G.R. No. 167614  -  ANTONIO M. SERRANO, petitioner, versus GALLANT MARITIME SERVICES, INC. AND MARLOW NAVIGATION CO., INC., respondents.

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SEPARATE CONCURRING OPINION

 

CARPIO, J.:

 

         I concur that the provision “or for three (3) months for every year of the unexpired term, whichever is less” in Section 10, paragraph 5,[1] of Republic Act (RA) No. 8042[2] is unconstitutional, but on a different ground.  The provision violates the prohibition against deprivation of property without due process of law.  It is an invalid exercise of police power.

 

         Section 1, Article III, of the Constitution states that no person shall be deprived of property without due process of law.  Protected property includes the right to work and the right to earn a living.  In JMM Promotion and Management, Inc. v. Court of Appeals,[3] the Court held that:

 

         A profession, trade or calling is a property right within the meaning of our constitutional guarantees.  One cannot be deprived of the right to work and the right to make a living because these rights are property rights, the arbitrary and unwarranted deprivation of which normally constitutes an actionable wrong.  (Emphasis supplied)

 

         The right to work and the right to earn a living necessarily includes the right to bargain for better terms in an employment contract and the right to enforce those terms.  If protected property does not include these rights, then the right to work and the right to earn a living would become empty civil liberties — the State can deprive persons of their right to work and their right to earn a living by depriving them of the right to negotiate for better terms and the right to enforce those terms.

 

         The assailed provision prevents the OFWs from bargaining for payment of more than three months’ salary in case the employer wrongfully terminates the employment.  The law may set a minimum amount that the employee can recover, but it cannot set a ceiling because this unreasonably curtails the employee’s right to bargain for better terms of employment.  The right to bargain for better terms of employment is a constitutional right that cannot be unreasonably curtailed by the State.  Here, no compelling State interest has been advanced why the employee’s right to bargain should be curtailed.  The claim that that the three-month salary cap provides an incentive to service contractors and manning agencies is specious because such incentive is at the expense of a protected and disadvantaged class — the OFWs.

 

         The right to property is not absolute — the prohibition against deprivation of property is qualified by the phrase “without due process of law.”  Thus, the State may deprive persons of property through the exercise of police power.[4]  However, the deprivation must be done with due process.  Substantive due process requires that the means employed in depriving persons of property must not be unduly oppressive.  In Social Justice Society v. Atienza, Jr.,[5] the Court held that:

 

[T]he State x x x may be considered as having properly exercised [its] police power only if the following requisites are met: (1) the interests of the public generally, as distinguished from those of a particular class, require its exercise and (2) the means employed are reasonably necessary for the accomplishment of the purpose and not unduly oppressive upon individuals.  In short, there must be a concurrence of a lawful subject and a lawful method.  (Emphasis supplied)

 

 

         Moreover, the exercise of police power, to be valid, must be reasonable and not repugnant to the Constitution.[6]  In Philippine Association of Service Exporters, Inc. v. Drilon,[7] the Court held that:

 

         Notwithstanding its extensive sweep, police power is not without its own limitations.  For all its awesome consequences, it may not be exercised arbitrarily or unreasonably.  Otherwise, and in that event, it defeats the purpose for which it is exercised, that is, to advance the public good.  (Emphasis supplied)

 

         The assailed provision is unduly oppressive, unreasonable, and repugnant to the Constitution.  It undermines the mandate of the Constitution to protect the rights of overseas workers and to promote their welfare.  Section 3, Article XIII, of the Constitution states that the State shall (1) afford full protection to overseas labor, (2) promote full employment and equality of employment opportunities for all, and (3) guarantee the rights of all workers to security of tenure, humane conditions of work, and a living wage.  Section 18, Article II, of the Constitution states that, “The State affirms labor as a primary social economic force.  It shall protect the rights of workers and promote their welfare.”

 

         The assailed provision also undermines the declared policies of RA No. 8042.  Section 2 of RA No. 8042 states that (1) the State shall, at all times, uphold the dignity of Filipino migrant workers; (2) the State shall afford full protection to overseas labor and promote full employment opportunities for all; (3) the existence of overseas employment program rests solely on the assurance that the dignity and fundamental human rights and freedoms of Filipinos shall not, at any time, be compromised or violated; and (4) it is imperative that an effective mechanism be instituted to ensure that the rights and interest of distressed Filipino migrant workers are adequately protected and safeguarded.

 

         The assailed provision is the reverse of the constitutional mandate and the declared policies of RA No. 8042: (1) instead of protecting the rights and promoting the welfare of OFWs, it unreasonably curtails their freedom to enter into employment contracts; (2) instead of empowering OFWs, it prevents them from bargaining for better terms; (3) instead of setting the minimum amount that OFWs are entitled to in case they are terminated without just, valid or authorized cause, it provides a ceiling; (4) instead of allowing OFWs who have been terminated without just, valid or authorized cause to recover what is rightfully due, it arbitrarily sets the recoverable amount to their three-month salary. 

 

         OFWs belong to a disadvantaged class, are oppressed, and need protection.  In Olarte v. Nayona,[8] the Court held that:

 

         Our overseas workers belong to a disadvantaged class.  Most of them come from the poorest sector of our society.  Their profile shows they live in suffocating slums, trapped in an environment of crimes.  Hardly literate and in ill health, their only hope lies in jobs they find with difficulty in our country.  Their unfortunate circumstance makes them easy prey to avaricious employers.  They will climb mountains, cross the seas, endure slave treatment in foreign lands just to survive.  Out of despondence, they will work under sub-human conditions and accept salaries below the minimum.  The least we can do is to protect them in our laws.  (Emphasis supplied)

 

In Philippine Association of Service Exporters, Inc.,[9] the Court held that:

 

What concerns the Constitution more paramountly is that x x x employment be above all, decent, just, and humane.  It is bad enough that the country has to send its sons and daughters to strange lands because it cannot satisfy their employment needs at home.  Under these circumstances, the Government is duty-bound to insure that our toiling expatriates have adequate protection, personally and economically, while away from home.  (Emphasis supplied)

 

With the inclusion of the assailed provision in RA No. 8042, the OFWs, whom the Constitution and the law particularly seek to protect, end up even more oppressed.

 

         In her ponencia, Justice Ma. Alicia Austria-Martinez held that the assailed provision violated the equal protection clause.  The application of the equal protection clause is improper because local workers and OFWs are differently situated.  Local workers who perform activities which are usually necessary or desirable in the usual business or trade of the employer are deemed regular after six months of service.  This is true even if the workers are for a fixed term.  In Glory Philippines, Inc. v. Vergara,[10] the Court held that:

 

[W]e cannot give credence to petitioner’s claim that respondents were fixed term employees.  x x x  In the instant case, respondents’ original employment contracts were renewed four times.  x x x

 

            In Philips Semiconductors (Phils.), Inc. v. Fadriquela, we held that such a continuing need for respondents’ services is sufficient evidence of the necessity and indispensability of their services to petitioner’s business.  Consequently, we find that respondents were regular employees defined under Article 280 of the Labor Code as those who have been engaged to perform activities which are usually necessary or desirable in the usual business or trade of petitioner.  (Emphasis supplied) 

 

         On the other hand, OFWs are never deemed regular.  In Brent School, Inc. v. Zamora,[11] the Court held that:

 

         Some familiar examples may be cited of employment contracts which may be neither for seasonal work nor for specific projects, but to which a fixed term is an essential and natural appurtenance: overseas employment contracts, for one, to which, whatever the nature of the engagement, the concept of regular employment with all that it implies does not appear ever to have been applied, Article 280 of the Labor Code notwithstanding.  (Emphasis supplied)

 

 

         Accordingly, I vote to declare the provision “or for three (3) months for every year of the unexpired term, whichever is less” in Section 10, paragraph 5, of Republic Act No. 8042 as unconstitutional for violation of the due process clause.

 

 

                                                                           ANTONIO T. CARPIO

                                                                               Associate Justice

        

          


[1]              Section 10, paragraph 5, of RA No. 8042 provides:

                     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.       

[2]              Otherwise known as “Migrant Workers and Overseas Filipinos Act of 1995.”

[3]              G.R. No. 120095, 5 August 1996, 260 SCRA 319, 330.

[4]              Philippine Association of Service Exporters, Inc. v. Drilon, No. L-81958, 30 June 1988, 163 SCRA                 386, 390.

[5]              G.R. No. 156052, 13 February 2008, 545 SCRA 92, 138.

[6]              Metropolitan Manila Development Authority v. Viron Transportation Co., Inc., G.R. No. 170656,  15 August 2007, 530 SCRA 341, 362.

[7]              Supra note 4 at 391.

[8]              461 Phil. 429, 431 (2003).

[9]              Supra note 4 at 397.

[10]             G.R. No. 176627, 24 August 2007, 531 SCRA 253, 262.

[11]             G.R. No. 48494, 5 February 1990, 181 SCRA 702, 714.