Asia employment law bulletin 2021
In the beginning of 2020, following the eruption of the Taal Volcano, the Department of Labour and Employment (DOLE) issued a Labour Advisory in January 2020, setting out rules for work suspension and payment of wages (i.e. no work, no pay) during natural or man-made calamities. It also provides that employees cannot be administratively sanctioned for their failure or refusal to work by reason of imminent danger resulting from natural or man-made calamities.
This first Labour Advisory set the tone for the rest of the year as two months later, a nationwide lockdown was implemented due to the COVID-19 pandemic, resulting in more work suspensions in non-essential industries.
Developments in the light of COVID-19
A series of new legislation
As a response to the COVID-19 pandemic, the Philippine Congress enacted two Republic Acts, one known as Bayanihan to Heal As One Act, and the other as Bayanihan to Recover as One Act. Signed into law in March 2020 and September 2020 respectively, these laws provide for, amongst other things, government funding for the implementation of the DOLE’s cash-for-work programs. The Bayanihan to Recover as One Act also provided for tax exemption of retirement benefits received by officials and employees who opted to retire between 5 June 2020 and 31 December 2020 subject to certain conditions.
Further, the DOLE issued rules and regulations implementing these laws, including the guidelines on the implementation of the COVID-19 Adjustment Measures Program (CAMP), which is a safety net program that provides a one-time financial support to affected workers due to the COVID-19 pandemic. Other issuances of the DOLE in 2020 aimed at mitigating the effects of the pandemic on businesses and employees that include the following:
- Guidelines on the implementation of flexible work arrangements (FWA) as a remedial measure due to the ongoing outbreak of COVID-19. Initially issued pre-lockdown, it aims to assist employers and employees in the implementation of temporary FWAs or alternative work schemes other than the traditional or standard workhours/days/week. The DOLE highly encourages the adoption of any of the flexible working arrangement schemes, such as reduction of workhours or workdays, rotation of workers or forced leave;
- Interim guidelines on workplace prevention and control of COVID-19, issued in April 2020 by the DOLE and the Department of Trade and Industry, that provides directions to the private institutions that are allowed to operate during the quarantine;
- The guidelines on employment preservation upon the resumption of business operations, issued in August 2020, which aims to assist employers to resume their business operations while preserving the employment of their workers. This applies to all employers and employees, in the private sector, regardless of the employment status, as long as they are allowed to resume business operations under the quarantine arrangements; and
- The department Order, issued by the DOLE in October, which sanctioned the fact that businesses may suspend their businesses for more than six months due to the pandemic. Prior to this order, an employment relationship could be suspended in given circumstances for a maximum of six months only.
Labour administration switches to the use of online proceedings
The DOLE shifted from manual to online filings and online hearings by establishing the Online Systems, a web-based programme developed to monitor compliance of employers on labour laws and other relevant issuances. The preferred mode of hearing for both the DOLE and the National Labour Relations Commissions is now videoconferencing.
Expected legal developments on the gig economy
With work from home becoming more prevalent, the rise of the gig economy is expected this year. A Senate Bill, known as the National Digital Careers Act, which aims “to create, design and develop programs to ensure access to training, market and other forms of support or innovation strategies for digital careers,” is now pending before the Philippines Senate. A version of this bill is expected to be approved in the coming months to prepare Filipinos and the government for the skills needed for the gig economy under the “new normal.” The expected challenge would be the determination of the status of freelance workers and the rights and benefits that will come with it.
Leslie C. Dy, SyCip Salazar Hernandez & Gatmaitan