On Tuesday, the technical working group tasked by the House Committee on Government Reorganization met at the Microtel Hotel in Quezon City. TWG chair Congressman Joey Salceda and cochair Congressman Eric Pineda of 1-PACMAN Party-list made the purpose of the second formal TWG meeting clear: come up with a final draft that is reflective of all the inputs of stakeholders.
This writer was present on behalf of the Blas F. Ople Policy Center. The pace was frenetic, and those who came unprepared to hand over their desired language or amendments to the first draft could no longer be accommodated. Salceda reminded the stakeholders—from government, recruitment agencies, and civil society—that the TWG was but a first step in a long journey toward actual enactment. Still, everyone seized the day and sought to include the sections that they deemed necessary.
The recruitment industry’s agenda was quite clear. Chief among them was Section 39, to wit:
“Section 39. Liability for Money Claims—The liability for money claims arising out of an employer-employee relationship, or by virtue of any law, or overseas employment contract including claims for actual, moral, exemplary, and other forms of damages, shall be the sole responsibility and shall attach exclusively on the principal or employer who is responsible for acts and/or omissions giving rise to the cause of actions for such claims.”
“For this purpose, each principal or employer shall procure and maintain an Employment Practices Liability Insurance, which is hereby included in the coverage of the compulsory overseas Filipino workers insurance provided for under Republic Act 10022, amending RA 8042—Further Improving the Standard of Protection and Promotion of the Welfare of Migrant Workers, Their Families and Overseas Filipinos in Distress, shall be answerable for any claims and/or that may be awarded to the aggrieved OFW: Provided, however, that the PRAs and/or manning agencies shall continue to be the agents of the foreign employer in prosecuting or defending the latter’s interest before the courts, quasi-judicial tribunals, or similar agencies in the Philippines.”
“In case of any violation of the PRA and/or manning agency of any recruitment rules and regulations prevailing at the time of the OFW’s deployment which directly resulted and/or contributed [emphasis supplied] to the cause of action of the OFW against the employer, the liability of the foreign employer or principal and the private recruitment agency/manning agency shall be joint and solidary; Provided, however, that such liability is limited only to the employment provisions of the employment contract.”
This entire section weakens the joint and solidary liability mechanism that has made private agencies jointly accountable with their foreign agency counterparts and foreign employers. There is an impression among the congressmen present that the JSL provision enshrined in the rules and regulations of the Philippine Overseas Employment Administration (POEA) and in existing laws revolve solely around money claims. To my mind, it goes beyond that. It is the proverbial sword in the scabbard that the State in behalf of aggrieved workers can use to ensure migrant workers’ protection.
The principle behind the JSL is this: as a business entity bestowed the authority to deploy Filipino workers (people, not goods), then you have the same accountability as your foreign partner and the employer that would be receiving the OFW. Given that accountability, every agency must now exercise due diligence in accepting job orders and choosing their foreign counterparts and foreign employers.
If a licensed agency was remiss in finding out whether a foreign employer has had a series of runaway domestic workers, or consistently failed to act in helping the worker that it deployed at the time she needed help most, then the JSL provision will kick in. In the TWG version, there must be proof that the violation of the licensed agency directly contributed to the cause of action of an OFW against his or her employer for it to be held jointly liable. If Congress approves this, then the burden of proof is shifted to the weary shoulders of our OFWs, most of who cannot afford to pay for a private lawyer.
Rep. Ron Salo of the Kabayan Party-list pushed for the creation an OFW Malasakit sa Kabayan Fund that would cover money claims of OFWs and seafarers arising from disputes with their employers. The Fund will be raised from contributions of private recruitment agencies, with an initial amount pegged at $25 per deployed worker. According to Salo, this will enable distressed workers to draw money claims from the Fund, which can also be replenished through congressional appropriations.
If the licensed recruitment agencies alone will shoulder the cost of the Fund, how many years will it take to even make it viable and sustainable given the sheer number of overseas workers with money claims? And, would it be right to use State funds to pay in advance for what a foreign employer owes our workers?
To be fair, there are a lot of good provisions incorporated in the TWG bill. The new department will have the POEA structure as its core, and Overseas Workers Welfare Administration as an attached agency. The Office of the Undersecretary for Migrant Workers’ Affairs under the Department of Foreign Affairs will be transferred to the proposed department. Essentially, our modern-day heroes and all Filipino emigrants will now have a single and quite powerful house in government to call their own.
I only hope that more OFW groups can be actively involved, together with relevant government agencies, because this is their home after all.
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Susan V. Ople heads the Blas F. Ople Policy Center and Training Institute, a nonprofit organization that deals with labor and migration issues. She also represents the OFW sector in the Inter-Agency Council Against Trafficking.