A confused and confusing law

There is that old tired saying, “If it ain’t broke, don’t fix it.” But what if something broken ended up in a worse state after an attempt to fix it? Well, if it were a broken-down car rendered even more useless in a repair shop, I bet the owner would be red-faced and screaming for a refund. But what if the object in question is not a car but an existing law? Case in point: Amendments to the Migrant Workers’ Act of 1995, as contained in Republic Act No. 10022.

This new law has provisions that are undoubtedly well-meaning, and when applied, could only redound to the benefits of our overseas Filipinos. There are provisions in it, however, that may have far-reaching and profound implications on our foreign affairs.

For example, under Rule III of RA 10022, Section 1 states: (underscoring is mine)

The State shall allow the deployment of OFWs only in countries where the rights of Filipino migrant workers are protected. The government recognizes any of the following as a guarantee on the part of the receiving country for the protection of the rights of OFWs:

(a) It has existing labor and social laws protecting the rights of workers, including migrant workers; or

(b) It is a signatory to and/or a ratifier of multilateral conventions, declarations or resolutions relating to the protection of workers, including migrant workers; or

(c) It has concluded a bilateral agreement or arrangement with the government on the protection of the rights of overseas Filipino workers;

Provided, that the receiving country is taking positive and concrete measures to protect the rights of migrant workers in furtherance of any of the guarantees under subparagraphs (a), (b), and (c) hereof.

For purposes of the preceding paragraphs, the DFA shall issue a certification that a receiving country complies with any of the guarantees under subparagraphs (a), (b), and (c) hereof, and that the receiving country is taking such positive and concrete measures to protect workers, including migrant workers. The DFA shall issue such certification to the POEA, specifying therein the pertinent provisions of the receiving country’s labor/social law, or the convention/declaration/resolution, or the bilateral agreement/arrangement which protect the rights of migrant workers. Such a certification shall be subject to review by the DFA as often as may be deemed necessary.

The POEA Governing Board shall, in a Resolution, allow only the deployment of OFWs to receiving countries which have been certified by the DFA as compliant with the above stated guarantees.

The POEA shall register OFWs only for receiving countries allowed by the POEA Governing Board, subject to existing standards of accreditation of foreign employers/principals and qualification requirements for workers.

As an OFW advocate, I am all for empowering our workers with the right kind of information that could only lead to informed decisions. But there is a reason why migration issues are complex and multi-layered – there is always more than one country involved. To ask our ambassadors through the DFA to check on the compliance of host governments or labor-receiving countries with our self-defined notions of acceptable labor standards is asking them to be both labor-inspectors and diplomats. Can’t they be both? Sure, but at what cost?

Remember that the provisions of the law do not just specify migrant workers, it also uses the more generic and thus domestic term of “workers.” If the same spotlight is aimed at our own application of labor laws, what would our grade be? There is a reason why comparative studies are often the realm of third parties, and not governments. For example, Transparency International rates countries on corruption, and Freedom House checks press freedom in every state.

And what if the POEA fails to comply with the law and by chance, a worker is deployed to a country with a failing grade from the DFA? There are sanctions involved, including removal or dismissal from service and disqualification to an appointive position for five years.

What then is the liability of ambassadors and DFA officials who refuse to issue such certifications? The IRR is silent on this matter. Yet it gives a definite timeline. The DFA shall issue the certification for countries where we have embassies within 90 days from the effectivity of the law’s rules and guidelines (Note: The IRR was published in two dailies on July 29.)

Couldn’t the gathering of data simply be a research function under the aegis of the Foreign Service Institute? No. The law prescribes that the DFA must issue a standard format to be used by all Foreign Service posts.

At the end of this certification process lays a serious constitutional question – does government have the right to curtail an individual’s right to travel? And on a more practical vein – given an official travel advisory based on DFA certifications and a job contract promising (not even assuring) a monthly salary of $1,000, which paper would have more weight from the point of view of a desperate job applicant?  This new law deserves an urgent review, before irreparable damage is done. (Send comments to toots.ople@yahoo.com)

Author: Susan Ople

Susan "Toots" Ople is the President of the Blas F. Ople Policy and Training Institute. She's an OFW and labor advocate based in the Philippines.

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