As I was preparing my KYR in this issue, I came across an article that I believe will really make migrant workers happy. Here, I will share the important parts of the article and towards the end, I will just add few sentences to elaborate the points raised for the consumption of our readers. Here is good news indeed.
According to an opinion piece by Atty. Josephus B. Jimenez published at www.philstar.com on October 7 and was entitled “Good news for OFWs, bad news for recruiters”, the Supreme Court, en banc (with the exception of the Chief Justice because she was on leave) decided positively on a case of an illegally dismissed OFW in Taiwan. The decision, he said, which was written by Justice Mario Victor Leonen, tackled many practices of abuse against Filipino migrants.
The salient features, according to Atty. Jimenez, of the decision were:
- The Supreme Court stressed that OFWs are entitled to security of tenure whether they are contractual or employee with a predetermined tenure. This means that an OFW has job security during their two-year contract period;
- Foreign employers cannot dismiss OFWs without just causes (expressed in the Labor Code), and such reasons that are based on the contract approved by the Labour Attache or the DOLE
- OFWs are entitled to due process;
- As the contract was executed in the Philippines, the law of the country shall be the rule and not that of the host government
- The Philippine recruiters are bound by the illegal acts of the foreign employer.
- Since recruiters in the Philippines are jointly and severally liable, they have an obligation to pay the entire extent of the liability that they can collect from their principal if they could.
- The illegally dismissed OFW is entitled for all the unpaid salaries for the remaining portion of the contract, in contrast to the current payout that is limited to only three months. What does this mean? For example, if an OFW on a two-year contract is dismissed illegally by the employer after only three months of working, he/she should also be paid by the employer, through the recruiter of the remaining 21 months. If the OFW salary is US$1000, he or she should be paid US$ 21,000.
- The provision of RA 10022 (amended Magna Carta for OFWs) that limits backwages to three months was declared unconstitutional.
- In accordance with Section 15, in relation to 10, of RA 8042 (Magna Carta for OFWs), the backwages shall be subject to a 12 percent interest, and;
- There should be reimbursement of her placement fees and other expenses.
The author also quoted Justice Leonen as saying that ” This government loses its soul if we fail to ensure decent treatment for all Filipinos. We default by limiting the contractual wages that should be paid to the workers when their contracts are breached by foreign employers. While we sit, this Court will ensure that our laws will reward our overseas workers with what they deserve: their dignity. Inevitably, their dignity is ours as well.”
Atty. Jimenez revealed that the amended Magna Carta for OFWs or the RA 10022 somehow provided for the decrease of backwages that can be claimed. He said that such practice of limiting backwages has already been annulled by the Supreme Court in another case but has somehow found its way into the Magna Carta and practiced on OFWs. The Supreme Court’s new decision has annulled it again.
The writer also quoted Justice Cruz’s writing on another case: ” While these workers may indeed have little defense against exploitation while they are abroad, that disadvantage must not continue to burden them when they return to their own territory to voice their muted complaint. There is no reason why, in their very own land, the protection of our own laws cannot be extended to them in full measure.”
Indeed the decision and writings of the highest court of the Philippines bear wonderful news for many OFWs. The favourable decision shall not only impact the claimant OFW from Taiwan but may also benefit future OFW claimants. For sure there will still be a lot of OFWs who will suffer from various forms of abuses and degrees of exploitation.
Not to douse cold water on the jubilation that may arise from this decision, I will just add some points on the Court’s decision on the said case:
First, let us be clear that this case was heard and decided upon in the Philippine Supreme Court, thus the law that applies is that of the Philippines and not Hong Kong.
Secondly, the first point mentioned about security of tenure which means that employment contract cannot just be terminated at the whims and caprices of the employer anytime they want. The Filipino overseas workers are protected under the Philippine Constitution on the security of tenure.
But still, one may ask what will happen to Clause 10 of the employment contract in Hong Kong that gives the right to terminate the contract by issuing a notice of termination? This security of tenure is related to points 2 and 3. If the contract was terminated illegally or without just cause and no due process was undertaken by the employer to justify the termination of contract then point in number one will be applied. The Court’s explanation was:
“To show that dismissal resulting from inefficiency in work is valid, it must be shown that: 1) the employer has set standards of conduct and workmanship against which the employee will be judged; 2) the standards of conduct and workmanship must have been communicated to the employee; and 3) the communication was made at a reasonable time prior to the employee’s performance assessment.”
The other points in the article are self-explanatory. But in case you need further explanation, you can contact the Mission office at 2522 8264 or visit us at St. John’s Cathedral.