Proclamation No. 1017

I appeared on local TV and drew some flak via text phone from a lawyer friend regarding my take on Proclamation No. 1017. Basically my position (i.e., IMHO) is that there is no substantial difference between the words of Proclamation 1017 (including General Order No. 5) (BTW – thanks to PCIJ for the link) and Art. 7, Sec. 18 of the Phil. Constitution. On its face the document appears sound and probably will survive a constitutional challenge. Any criticism levelled against it should be deemed applicable to the constitution itself, if the critic is to be consistent, because, as I’ve said, the wordings used in both documents are essentially similar. The proclamation talks about preventing and suppressing lawless violence, insurrection and rebellion. The Constitution talks about preventing or suppressing lawless violence, invasion or rebellion. Looks more or less the same to me. In fact, I think the proclamation is (to use a word I heard on the Dong Puno show – thanks to Rizalist for the MP3) a legal superfluity. It doesn’t invest the president with new powers. With or without the proclamation the president under the constitution has the power, whenever it becomes necessary, to call out the armed forces to prevent or suppress lawless violence, invasion or rebellion. As to who determines whether such a necessity exists the Supreme Court held in IBP vs. Zamora that the President “necessarily exercises a discretionary power solely vested in his wisdom. This is clear from the intent of the framers and from the text of the Constitution itself. The Court, thus, cannot be called upon to overrule the President’s wisdom or substitute its own.” Moreover, “In view of the constitutional intent to give the President full discretionary power to determine the necessity of calling out the armed forces, it is incumbent upon the petitioner to show that the President’s decision is totally bereft of factual basis.”

It seems to me the proclamation only serves to complicate matters; under the constitution PGMA can already do the things she wants to do in her proclamation even without the proclamation! My lawyer friend thinks she wants to exercise martial law without calling it martial law so that she can evade the oversight power of Congress in Sec. 18 of Art. 7 of the Constitution. On my part I don’t read the constitution as requiring the president to proclaim martial law in cases of rebellion and invasion before she can call out the armed forces. The way I see it it’s optional on the part of the President to proclaim martial law in cases of rebellion and invasion. The Constitution simply says that if she thinks it necessary she can call out the armed forces in cases of lawless violence, rebellion and invasion, with or without proclaiming martial law. That’s her choice and she has a constitutional right to it. However, if she chooses to proclaim martial law, then Congress’ oversight powers come into play. The same applies if she suspends the privilege of the writ of habeas corpus. But if she merely wants to call out the armed forces and do nothing else – that’s her constitutional option. And Congress can’t complain that it can’t use its oversight power.

Besides, I have a problem with reading between the lines of the document, no matter how well-founded such reading may be. If people think the document is intended to intimidate and is evil they are probably right, and they have the right to express their opinion vehemently and to peacably assemble against what they perceive as evil. If the document is eeriely similar to Marcos’ Proclamation 1081 then people have a right to be afraid (be very afraid!). They can condemn it all they want (I might even march beside them doing precisely that). But they have to do better than that when it comes to challenging the constitutionality of the document before the Supreme Court.

My parting shot was: “No matter how politically and morally valid our sentiments against the President and her proclamation may be, they remain mere sentiments and have no legally compelling force unless converted into formal legal justifications.” That, as I see it, is how our system works under the Rule of Law.

Compulsory Overtime

Can a school require the personnel of its school clinic to work overtime in view of circumstances which the school thinks necessitate the presence of these personnel? There seems to be no clear answer to this. The relevant rules on the matter can be found in The Omnibus Rules Implementing the Labor Code of the Philippines, specifically Book III, Rule 1, Section 10 and Rule I-A, as follows:

SECTION 10. Compulsory overtime work. — In any of the following cases, an employer may require any of his employees to work beyond eight (8) hours a day, provided that the employee required to render overtime work is paid the additional compensation required by these regulations:

(a) When the country is at war or when any other national or local emergency has been declared by Congress or the Chief Executive;

(b) When overtime work is necessary to prevent loss of life or property, or in case of imminent danger to public safety due to actual or impending emergency in the locality caused by serious accident, fire, floods, typhoons, earthquake, epidemic or other disaster or calamities;

(c) When there is urgent work to be performed on machines, installations, or equipment, in order to avoid serious loss or damage to the employer or some other causes of similar nature;

(d) When the work is necessary to prevent loss or damage to perishable goods;

(e) When the completion or continuation of work started before the 8th hour is necessary to prevent serious obstruction or prejudice to the business or operations of the employer; or

(f) When overtime work is necessary to avail of favorable weather or environmental conditions where performance or quality of work is dependent thereon.

In cases not falling within any of these enumerated in this Section, no employee may be made to work beyond eight hours a day against his will.

RULE I-A
Hours of Work of Hospital and Clinic Personnel

SECTION 1. General statement on coverage. — This Rule shall apply to:

(a) All hospitals and clinics, including those with a bed capacity of less than one hundred (100) which are situated in cities or municipalities with a population of one million or more; and

(b) All hospitals and clinics with a bed capacity of at least one hundred (100), irrespective of the size of the population of the city or municipality where they may be situated.

SECTION 2. Hospitals or clinics within the meaning of this Rule. — The terms “hospitals” and “clinics” as used in this Rule shall mean a place devoted primarily to the maintenance and operation of facilities for the diagnosis, treatment and care of individuals suffering from illness, disease, injury, or deformity, or in need of obstetrical or other medical and nursing care. Either term shall also be construed as any institution, building, or place where there are installed beds, or cribs, or bassinets for twenty-four (24) hours use or longer by patients in the treatment of disease, injuries, deformities, or abnormal physical and mental states, maternity cases or sanitorial care; or infirmaries, nurseries, dispensaries, and such other similar names by which they may be designated.

SECTION 3. Determination of bed capacity and population. — (a) For purposes of determining the applicability of this Rule, the actual bed capacity of the hospital or clinic at the time of such determination shall be considered, regardless of the actual or bed occupancy. The bed capacity of hospital or clinic as determined by the Bureau of Medical Services pursuant to Republic Act No. 4226, otherwise known as the Hospital Licensure Act, shall prima facie be considered as the actual bed capacity of such hospital or clinic.

(b) The size of the population of the city or municipality shall be determined from the latest official census issued by the Bureau of the Census and Statistics.

SECTION 4. Personnel covered by this Rule. — This Rule applies to all persons employed by any private or public hospital or clinic mentioned in Section 1 hereof, and shall include, but not limited to, resident physicians, nurses, nutritionists, dieticians, pharmacists, social workers, laboratory technicians paramedical technicians, psychologists, midwives, and attendants.

SECTION 5. Regular working hours. — The regular working hours of any person covered by this Rule shall not be more than eight (8) hours in any one day nor more than forty (40) hours in any one week.

For purposes of this Rule a “day” shall mean a work day of twenty-four (24) consecutive hours beginning at the same time each calendar year. A “week” shall mean the work of 168 consecutive hours, or seven consecutive 24-hour work days, beginning at the same hour and on the same calendar day each calendar week.

SECTION 6. Regular working days. — The regular working days of covered employees shall not be more than five days in a work week. The work week may begin at any hour and on any day, including Saturday or Sunday, designated by the employer.

Employers are not precluded from changing the time at which the work day or work week begins, provided that the change is not intended to evade the requirements of this Rule.

SECTION 7. Overtime work. — Where the exigencies of the service so require as determined by the employer, any employee covered by this Rule may be scheduled to work for more than five (5) days or forty (40) hours a week, provided that the employee is paid for the overtime work an additional compensation equivalent to his regular wage plus at least thirty percent (30%) thereof, subject to the provisions of this Book on the payment of additional compensation for work performed on special and regular holidays and on rest days.

SECTION 8. Hours worked. — In determining the compensable hours of work of hospital and clinic personnel covered by this Rule, the pertinent provisions of Rule 1 of this Book shall apply.

SECTION 9. Additional compensation. — Hospital and clinic personnel covered by this Rule, with the exception of those employed by the Government, shall be entitled to an additional compensation for work performed on regular and special holidays and rest days as provided in this Book. Such employees shall also be entitled to overtime pay for services rendered in excess of forty hours a week, or in excess of eight hours a day, whichever will yield the higher additional compensation to the employee in the work week.

SECTION 10. Relation to Rule I. — All provisions of Rule I of this Book which are not inconsistent with this Rule shall be deemed applicable to hospital and clinic personnel.

So the general rule is you can’t compel an employee to render overtime work except under the circumstances mentioned in Sec. 10 of Rule 1 of Book III of the Omnibus Rules. The rule is different with respect to hospital or clinic personnel. Under Sec. 7 of the above-mentioned Rule I-A these personnel may be scheduled to work overtime when the exigencies of the service so require. What these exigencies are is left to the determination of the employer. What is debatable is whether Rule I-A covers school clinics. I am not so sure it does.

Constructive Dismissal

When does transfer of an employee amount to constructive dismissal? Here’s the Supreme Court’s latest answer: Westmont Pharmaceuticals, Inc., et al. Vs. Ricardo C. Samaniego..G.R. Nos. 146653-54/G.R. Nos. 147407-08. February 20, 2006

Some excerpts:

“In constructive dismissal, the employer has the burden of proving that the transfer of an employee is for just and valid grounds, such as genuine business necessity. The employer must be able to show that the transfer is not unreasonable, inconvenient, or prejudicial to the employee. It must not involve a demotion in rank or a diminution of salary and other benefits. If the employer cannot overcome this burden of proof, the employee’s transfer shall be tantamount to unlawful constructive dismissal.

“Westmont and Unilab failed to discharge this burden. Samaniego was unceremoniously transferred from Isabela to Metro Manila. We hold that such transfer is economically and emotionally burdensome on his part. He was constrained to maintain two residences – one for himself in Metro Manila, and the other for his family in Tuguegarao City, Cagayan. Worse, immediately after his transfer to Metro Manila, he was placed “on floating status” and was demoted in rank, performing functions no longer supervisory in nature.

“There may also be constructive dismissal if an act of clear insensibility or disdain by an employer becomes so unbearable on the part of the employee that it could foreclose any choice by him except to forego his continued employment. This was what happened to Samaniego. Thus, he is entitled to reinstatement without loss of seniority rights, full backwages, inclusive of allowances, and other benefits or their monetary equivalent, computed from the time his compensation was withheld from him up to the time of his actual reinstatement.

“However, the circumstances obtaining in this case do not warrant the reinstatement of Samaniego. Antagonism caused a severe strain in the relationship between him and his employer. A more equitable disposition would be an award of separation pay equivalent to at least one month pay, or one month pay for every year of service, whichever is higher (with a fraction of at least six [6] months being considered as one [1] whole year), in addition to his full backwages, allowances and other benefits.”