DOLE Labor Advisory 17-B series of 2020 and the Trolley Dilemma

CAL Gallardo; Paladins of Law

Heard of the trolley problem? Consider this: you see that a trolley is moving through a track, but it is going to hit a group of 5 innocent bystanders in its path. You happen to be standing however next to a switch that can divert the train to another track where only a single person is standing. What would you do? Are you going to be utilitarian and save 5 lives over 1? Or be passive and let nature take its course by letting the 5 people be ran over?[1] There are many variations to the dilemma- one of which even involves an option to push a fat person onto the track to prevent the trolley from running over 5 people. (Oops. No to fat shaming!)

What’s the connection of this to DOLE?

I know. By now you might be wondering, what does this ethical dilemma have to do with the subject Labor Advisory? Well, let’s just say that DOLE is facing a similar dilemma at the moment. The purpose of issuing Labor Advisory 17 series of 2020, and its predecessor Labor Advisory 17-B series of 2020, is to help the ailing employers in keeping afloat with the economic downturn brought by the pandemic through giving them flexibility in managing the wages and benefits of its employees. It is in keeping with the fact that many employers took a huge blow in this “new normal”. Hence, Section 4 of the original issuance enumerates some of the alternative work schemes, which includes reduction of workdays and job rotations[2]. Moreover, Section 5 of which provides for the consented reduction of wages and wage-related benefits[3].

However, DOLE steers clear and stays on the safe side with Labor Advisory 17-B series of 2020. It amends and summarizes the former Section 4 and section 5 of Labor Advisory 17 into one provision: Section 4 which provides that alternative work arrangements and reduction of wages and wage-related benefits shall be governed by existing laws, rules and regulations, jurisprudence and collective bargaining agreement on the matter.[4] To put it bluntly, it is implementing a “hands off” policy over the matter, which it states, must be made in accordance with the law.

Does this mean that wage and benefit adjustments are now prohibited?

This is the tricky part. The new Labor Advisory did not state it is, per se, illegal. It just states the obvious: to be legal, it must be made in accordance with the existing law.

To see this more than a wordplay however, one must understand the hierarchy of laws in the country. Foremost is the Constitution, or what they call as the “supreme law of the land”, which declares principles as to how the Philippines shall remain an orderly and progressive society. It basically has a lot of motherhood statements, such as the famous line “the State shall afford full protection to labor…”[5]. Next in line are the laws, which are enacted to implement the general principles provided for by the Constitution, such as the Labor Code providing for the just and authorized causes of termination.[6] The Rules and Regulations shall then aid in the enforcement of the law through providing for the procedures in its implementation and clarifying some ambiguous provisions thereon, such as the Omnibus Rules to Implement the Labor Code which has a provision for a suspension of employer-employee relationship during the temporary suspension of operations of a business.[7] Last are the Labor Advisories which are legal opinions by the Labor Law experts in the DOLE, made primarily to clarify some confusing aspects of the law or the rules, especially in light of recent advancements or situations that were not considered during the enactment of the law or the rules and regulations.

Okay, that may be a little confusing. To understand it better, imagine a traditional office setting following a hierarchical command system. Line staff would have to defer to the authority of their immediate supervisors, who in turn follow the orders of first line managers who, on the other hand, report to the President of the company. DOLE, in this case, would have to defer to the laws passed by the Congress, subject of course to the limits posed by the Constitution. Essentially therefore, DOLE 17-B series of 2020 is made in recognition of this hierarchy.

Alright then. It is established that wage and benefit adjustments must be made in accordance with the law. So, is it valid under existing laws and jurisprudence?

To answer this, it must be remembered that labor contracts are but special contracts imbued with national interest.[8] They are special because it affects the quality of life of the employee and his/her family. Moreover, it is highly regulated as historically, employees are always at the losing end when bargaining with the employers, especially in terms of wages and benefits. Thus, there are a lot of cases proscribing diminution of benefits.[9]

It must be noted however that the cases on non-diminution of benefits have a common theme: it was done unilaterally by the employer, either directly as when an employer did not negotiate the same with the employee, or impliedly as when the employer had prior consultations with the employee but the consent of the latter was wrestled during these “consultations”. The law and jurisprudence however is silent as to when the diminution of benefits was made after a negotiation was made in good faith for a valid cause. In the end, it must be remembered that, albeit special, a labor contract is still a contract- a product of negotiation between parties who are not, in any way, forced to enter such.

Going back to the trolley problem, it is obvious that there is no right or wrong answer to the dilemma. After all, the open-ended anecdote goes to show that the world we live in is not black and white, and more often than not, we are stuck in situations where we had to make difficult decisions involving sacrifices and compromise. Similarly, there are various situations in which the legality of an act is ambiguous. What is clear however is that you should join our facebook group BUSINESS AND LABOR FORUM for more legal updates and information, in the link provided below.

https://www.facebook.com/groups/businesslaborforum/

Christian Andrew Labitoria Gallardo recently graduated with a degree of Juris Doctor at the Ateneo School of Law and is currently an associate of the Sangalang & Gaerlan, Business Lawyers. You may reach him at andrew.gallardo@paladinslaw.org

[1] Omid Panahi, Philosophy Now, Could There be a Solution to the Trolley Problem, available at https://philosophynow.org/issues/116/Could_There_Be_A_Solution_To_The_Trolley_Problem (last accessed September 18, 2020.) [2] § 4, Department of Labor and Employment, Labor Advisory 17 series of 2020. [3] § 5, Id. [4] § 4, Department of Labor and Employment, Labor Advisory 17-B series of 2020 [5] Art XIII, Section 3, Philippine Constitution. [6] Art 273 to 275, Labor Code. [7] Book VI Title I Section 12, Omnibus Rules Implementing the Labor Code. [8] Leyte Geothermal Power Progressive Employees Union-ALU TUCP v Philippine National Oil Company- Energy Development Corporation, G.R. No. 170351 (2011). [9] Vergara v Coca-Cola Bottlers, G.R. No. 176985 (2013), in relation to Art 100, Labor Code.