"Ensuring the right to security of tenure by recognizing the power of " by Aster Beane L. Araneta, Rexcia Maria B. Baldeo et al.

Ensuring the right to security of tenure by recognizing the power of the secretary of labor to order regularization of employees

Date of Publication

5-2017

Document Type

Master's Thesis

Degree Name

Juris Doctor

Subject Categories

Labor and Employment Law

College

College of Law

Department/Unit

Law

Thesis Adviser

Domingo Anonuevo

Defense Panel Chair

Joeven Dellosa

Defense Panel Member

Vyva Victoria M. Aguirre
Ryan Jeremiah D. Quan

Abstract/Summary

The Constitution, under state policies, recognizes labor as the primary social economic workforce. It shall protect the rights of workers and promote their welfare. The Labor Code has identified the various employment contracts to determine employer employee relationship. However, misclassification of employees still exist. The misclassification of employees to other kinds of employment other than regular are among the schemes and abhorrent practices used by some employers that result to violation of the right to security of tenure of their employees. This is a scheme whereby employers make it appear that employees are engaged in other forms of employment, but in truth and in fact, are regular employment arrangements. This study resolves the issue of the failure of the Labor Code to clearly establish who has jurisdiction in ordering the regularization of misclassified employees and the fact that the Secretary of Labor, possessing general powers, have sufficient power, to not only determine whether such illegal hiring practices and employment arrangements exists, but also, to issue an order of regularization pursuant to its Visitorial and Enforcement power. The Visitorial and Enforcement power found under Article 128 of the Labor Code recognizes that the Secretary of Labor has the primary function to enforce labor law provisions. This is implemented through various modes, such as the Joint Assessment, Compliance Visit, Occupational Safety and Health Standards Investigation and The Special Assessment or Visit Enforcement. This study examined how each mode is implemented and from there, have made a finding that these modes are insufficient to clearly establish the power of the Secretary of Labor in ordering the regularization of employees, upon a clear finding that the employee is a regular employee. This vague area, is where the relevance of this thesis comes into play. Drawing from the very nature of the office of the Secretary of Labor having authority to determine illegal hiring practices of employer, it must also have the power to order the regularization of employees. However, it appears that the Secretary of Labor is hesitant to use such power, as there are no clear guidelines nor express provision. But, this study will clearly establish that the absence of an explicit statement will not preclude the Secretary of Labor from exercising the power to order the regularization of employees as the power to determine regularization of employees is an inherent power of the Secretary of Labor. Verily, the rights, especially the right to Security of Tenure, of misclassified employees would be protected and given full effect as they do not only receive their benefits but more importantly, their employment. Management prerogative cannot be used to circumvent the constitutionally protected rights of the employers particularly the right to security of tenure since the finding of the Secretary of Labor that a violation was committed using its Visitation and Enforcement Power, through inspection that when it had already been ruled through inspection that an employer is guilty of such illegal hiring practices is conclusive. The employer’s exercise of judgment and discretion is already circumscribed by that legal finding.

Abstract Format

html

Language

English

Format

Electronic

Accession Number

CDTG006987

Shelf Location

Archives, The learning Commons, 12F Henry Sy, Sr. Hall

Physical Description

1 computer disc, 4 3/4 in.

Keywords

Job security—Law and legislation--Philippines

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Embargo Period

10-14-2024

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