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| The Supreme Court says OFWs should not be forced to pay for SSS before getting an OEC |
All overseas Filipino workers must be covered by social security benefits as required by Republic Act No 11199, or the Social Security Act of 2018, according to a Philippine Supreme Court in a decision handed down on Mar 26.
However, the SC declared that requiring land-based OFWs to pay
their SSS contributions before they can be issued with an overseas employment
certificate (OEC) violates their constitutional right to work and travel.
In a decision written by Associate Justice Maria
Filomena D. Singh, the SC en banc declared as unconstitutional Rule 14, Section
7 (iii) of the Implementing Rules and Regulation of RA 11199 requiring advance
payment of SSS contributions as a precondition to the issuance of the OEC.
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| PINDUTIN PARA SA DETALYE |
All concerned government agencies such as the SSS, the Philippine Overseas Employment Administration and the Department of Labor and Employment (or Department of Migrant Workers now) are permanently prohibited from implementing the requirement.
Migrante International, which led the filing of the case with the Supreme Court, hailed the decision as a victory in its long-running campaign to reverse all mandatory collection of fees from OFWs which were made part of the law during the term of former President Rodrigo Duterte.
Migrante also recalled in a statement how it led the protest against the mandatory collection of PhilHealth contributions, compulsory insurance for all OFWs, payments for affidavits of support, and many other oppressive collection of fees from OFWs.
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| Basahin ang detalye! |
In upholding the argument that linking the OEC to SSS contributions was unconstitutional, the SC said: “To truly honor the sacrifices of our OFWs, often hailed as modern-day heroes, it is crucial to refrain from oppressive policies that unfairly burden them,” said the country’s highest court.
But at the same time, the SC ruled that all OFWs
must be covered by the SSS law, calling it both as a benefit and a right.
“[Mandatory social security coverage] is especially
beneficial to OFWs, who leave their families behind to work abroad. Aside from
enduring separation from their loved ones, OFWs often face harsh working
conditions, including long hours, excessive workloads and inadequate safety
measures. Through coverage in the SSS, OFWs and their beneficiaries are
safeguarded…,” said the SC.
The Court thus placed the responsibility of ensuring
OFWs’ social security coverage on the Department of Foreign Affairs and the
DMW, by securing agreements with host countries that will ensure foreign
employers are made to pay their share.
Migrante and other petitioners had
sought to nullify RA 11199 and its IRR, saying it discriminated against
land-based OFWs who are treated as self-employed workers, as their foreign
employers are not compelled by law to pay their share.
In contrast, sea-based OFWs are covered by standard
contracts that require recruitment agencies to cover their SSS contributions.
For HK OFWs, this would have meant paying around Php5,500
in monthly contributions, which amounts to 15% of the minimum wage for migrant workers
here. Under the SSS charter, employers are supposed to pay 10% of the monthly
salary, while the worker pays 5%.
According to Migrante, categorizing land-based OFWs
as self-paying members was discriminatory, while making the payment of SSS contributions
a pre-condition to the issuance of OEC was unfair, and restricted their right
to work and travel.
The SC agreed that linking the OEC to mandatory SSS
contribution contradicts the principle of protecting workers’ rights as OFWs are
forced to pay up even before they started work or received salaries. The SC
also ruled that this violates the right to travel for land-based OFWs.
However, it said that the law did not discriminate
against land-based OFWs as it was only through necessity that both the employer
and the employee’s contributions are levied against them.
The SC said RA 11199 places the burden of ensuring
proper collection from foreign employers on the DFA and DOLE (now DMW), suggesting
this could be done through negotiating social security and labor agreements
with the host countries.
In his separate concurring and dissenting opinion,
Senior Associate Justice Marvic Leonen agreed that the IRR which links the collection
of SSS contributions to the issuance of the OEC unfairly shifts the financial burden
on land-based OFWs for the lack of labor and security agreements.
It is thus discriminatory to compel OFWs whose
employers are not bound by bilateral agreements to pay their share of the SSS
contributions. He said the real issue lies in the lack of a legal mechanism to
require foreign employers to pay their share, a system that the State must
establish.
In her dissenting opinion, Associate Justice Amy C. Lazaro-Javier argued that the payment of SSS contributions as a precondition to the issuance of OECs is a valid and efficient way to ensure compulsory coverage before deployment in the absence of social security or labor agreements with host countries.
While this imposes a burden on workers, it is essential to protect their welfare and that of their families, she said.
Associate Justice Alfredo Benjamin S. Caguioa wrote
a separate concurring and dissenting opinion, where he said it is not discriminatory
to make land-based OFWs to pay both employee and employer contribution, as they
can demand for a higher salary, or collect it from the employer later.
He also said linking the OEC to SSS payments does not
violate the land-based OFWs’ right to travel as they are not prevented from
leaving the country.
