The labor standards law cannot be amended or repealed by executive fiat. The spring cannot be above the source.
Under the law, suspension of employment cannot exceed six (6) months. The DOLE’s proposal allowing an extension of the period when employment is suspended for six (6) more months does not have any support in law.
Article 301 of the Labor Code only allows for a bona fide suspension of operation of a business or undertaking for a period not exceeding six months.
The DOLE has no authority to issue a Department Order or Advisory in violation of the Labor Code, which it is mandated to implement. In the words of the Supreme Court, “the law prevails over administrative regulations implementing it. The authority to promulgate implementing rules proceeds from the law itself. To be valid, a rule or regulation must conform to and be consistent with the provisions of the enabling statute. As such, it cannot amend the law either by abridging or expanding its scope.” (Perez v PT&T, G.R. No. 152048, April 7, 2009)
Only Congress can amend the law, if it agrees with the DOLE’s intent to prolong the floating status of employment.
As it now stands, an executive fiat cannot validly be done via the issuance of a Department Order.
Nagkaisa is gravely concerned with the various extra-legal measures that have recently been proposed in the guise of coping with the current pandemic including the extension of employment floating status and the deferment of the payment of 13th month pay and other benefits.
Instead of removing this labor protection, Nagkaisa urges the Duterte administration not to be inutile and remain a by-stander while the Labor Department exacerbates the suffering of workers. It needs to spur the economy and grant subsidies to SMEs for them to maintain their workforce and pay the required labor standards.
In this time of COVID-19 pandemic, the sympathy and compassion of the law for the less privileged workers is imperative, not to be disregarded but considered.