One of the principal socio-economic issues that were raised during the 2016 electoral campaign was labor contractualization, i.e., the practice of employers’ signing workers to renewable contracts of less than six months’ duration instead of making them regular employees. Realizing that from the standpoint of competitiveness they had no choice but to match the other candidates’ commitment, all of the five presidential candidates promised to work for the ending of labor contractualization immediately upon election.
The issue of putting an end to contractualization brings to mind the old saying, “The road to hell is paved with good intentions.” With regard to the contractualization issue, the saying should be changed to “The road to no-more-contractualization is paved with good intentions. Here the good intention is to provide all workers with the legally mandated benefits—chiefly coverage by SSS, Philhealth and Pag-IBIG—that come with regular-employee status. No conscientious and fair-minded employer wants to deprive his employees of these and other legally mandated benefits.
For any contractualization-related government action to be widely acceptable and easily implementable, it is necessary to determine the reasons why some employers resort to contractualization. The reasons will determine whether the Department of Labor and Employment will experience much difficulty in enforcing a no-contractualization law. There are three reasons.
The first reason is, quite simply, an employer’s instinctive desire, in the absence of adverse government policy, to derive the maximum profit from his business operations. Additional costs reduce profit and SSS, Philhealth and Pag-IBIG coverage for employees are additional costs. Why, the typical businessman asks himself, should I provide benefits for my workers if with the use of legal savvy, I can get away with not providing them with such benefits? The tactic for such legal evasion is of course the hiring of workers for periods shorter than the six-months threshold for compulsory regularization. “Endo,” the shorthand for end of contract, usually comes after five months’ employment.
The second reason for the resort of many employers to contractualization is pure-and-simple avoidance (not evasion) of the law. The choice for employers has been clear-cut. They can place their employees on regular status after six months in the establishment—and begin incurring the costs of the legally mandated benefits—or they can avoid incurring those costs through the before-six-months “endo” arrangement. Why incur all those additional costs when the nation’s labor laws leave you a way out?
The third reason for many employers’ resort to labor contractualization is the most important because of its virtually certain negative impact on the economy, especially on investment and employment.
The plain truth is that the great majority of contractualizing business establishments—mostly small and medium-scale entities, who, according to the government statisticians account for approximately 99 percent of all business establishments—simply cannot afford the financial trappings that go with regular-status employment. They can afford only the basic costs of operating a business, such as rent, wages, utilities and business fees; they cannot afford separation pay, paid leaves, bonuses and social welfare coverages (SSS, Philhealth and Pag-IBIG) for their employees.
Putting an end to contractualization has been declared to be one of the legislation priorities in the House of Representatives; the Duterte administration should be able to obtain passage of a no-contractualization law. What would be the impact of such legislation and how are prospective investors likely to react to the enactment of a no-contractualization law?
Employees of most of the one percent of business establishments that are classified as big already enjoy the benefits due regular-status employees and those who do not yet enjoy such benefits will be given them once a no-contractualization law is passed. Because they are big—and therefore conspicuous—will have no choice but to comply. The SMEs have a choice: they can either decide to close shop (if their owners are unwilling to break, or are fearful of breaking, the law) or they can decide to defy the law (if their owners are not law-abiding and believe that they can get away with law-breaking).
The danger to the economy will come from the reaction of law-abiding would-be investors to a no-contractualization law. If paying the benefits required by such a law will mean that they will not be able to derive profits from their capital, they will not establish businesses. There are such people; they will not go into business if they will be able to make money only by breaking the law.
A halfway point, a win-win solution, to the negative economic impact of a no-contractualization law would be to replicate what was done by Congress to mitigate the harshness of the Minimum Wage Act, viz., make allowance for SMEs. In the same manner that business establishments with less than a certain number of employees are exempt from the operation of the Minimum Wage Act, so similarly situated business establishments can be made exempt from no-contractualization.
The probable negative impact of a no-contractualization law on investment and employment is one pitfall of legislation placing a ban on contractualization. The other is the usual bugaboo of regulating legislation in this country: enforcement. Not so long ago the head of the Department of Labor and Employment estimated that the agency was able to effectively monitor only around 11 percent of business establishments for compliance with the nation’s labor laws. Given the Labor Department’s present enforcement capability, I doubt very much if a no-contractualization law will be effectively enforced. It has been asked before, but I will ask the question again: what is the point of passing a law that will be widely violated?
If the proposed no-contractualization law is not tweaked so as to not discourage investment in SMEs, such a law should, in my view, not be passed at all.
Note: In my June 30 column titled “Duterte’s Economic Management Team” I inadvertently left out the Secretary of Public Works and Highways. Mark A. Villar is a key part of the team. My apologies.