Monday, 20 May 2019
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A Position Paper on D.O. No. 118-12, Rules and Regulations Governing the Employment and Working Conditions of Drivers and Conductors in the Public Utility Bus Transport Industry

Department Order No. 118-12 addresses the many problems faced by workers in the public utility bus transport industry. In a time when bus companies sacrifice the rights and welfare of bus drivers and conductors in order to increase corporate profits, the DOLE has asserted its authority to protect the rights of workers and secure for them benefits that they have long struggled for. In the experience of the Yellow Bus Lines Employees Union (YBLEU), the exclusive bargaining representative of the regular rank-and-file employees, including bus drivers and conductors, of Yellow Bus Lines, Inc, based in Koronadal, South Cotabato, these gains come in the form of their own collective bargaining agreements (CBA) negotiated with the management. With the issuance of the said Order, transport workers need not undergo the same amount of struggle faced by YBLEU leaders and members, but would benefit for what we have fought for.

We highlight the following as indicated in the D.O. 118-12:

•    Minimum benefits- establishing these in the Order emphasizes that bus drivers and conductors are properly entitled to the same benefits as other employees. Specifically, they are entitled to a rest day of twenty-four (24) consecutive hours for every six (6) consecutive working days, night shift pay, and overtime pay premiums. This puts a premium on the need for transport workers to have the adequate rest to be able to be more productive in an industry plagued by accidents resulting from fatigue and overwork.

•    Hours of work and rest- this is an important step in recognizing the normal work of bus drivers and conductors which should not exceed eight (8) hours a day.  Work rendered beyond that is considered overtime, subject to premium pay. Jurisprudence supports this, but this has been a constant struggle by the YBLEU in CBA negotiations, and even resulted to a case, still pending in our courts.  DO 118 gives workers in the transport industry leverage in convincing employers that work beyond the maximum 8 hours requires the payment of overtime pay.

•    Occupational Safety and Health, and Social Protection- this is a step in the right direction in requiring bus owners and operators to adopt, implement, and promote occupational safety and health programs, including implementing programs on Anti-Smoking, Anti-Sexual Harassment and Disaster and Climate Change, consistent with existing OSH standards and other guidelines set by government agencies.  Although the work in the transport industry is inherently difficult and affects countless members of the public (passengers and road users alike), OSHS is typically the first item to be neglected by employers.  It is hoped that the proper implementation of DO 118 will result in an overall improvement of the safety and health not only of the workers in the transport industry but to the public that they serve as well.

•    Compliance and Enforcement- YBLEU has high expectations from the enactment of the provisions on enforcement of DO 118, considering that a region-based tripartite monitoring body should have been constituted. YBLEU expects to engage such body to further protect not just the rights of its members, but other drivers and conductors in the bus industry.

Nevertheless, DO 118 can still be improved when the following are considered:

•    Right to security of tenure

YBLEU has long fought for its members’ tenurial security, but illegal dismissals are still a frequent threat to their work. Not only is this prevalent in the YBL workplace, but in other bus companies as well. However, the provision can highlight the struggle of newly-hired workers in attaining regular status of employment by including the 6-month probationary period, after which the said employees is considered regular and cannot be terminated without cause.

•    Observance of the required standards for due process.

The required standards might set a good model for companies in their disciplinary actions of employees, the reality is drivers and conductors are vulnerable to the traditional perspectives of employees looking at the whole aspect of work as purely management prerogative that they can formulate policies prejudicial to the workers. There is a need to review the due process and notice requirements in consultation with the affected bus drivers and workers with the end view of having stringent due process requirement consistent with the doctrine that employers have the burden of proof in complaints filed against drivers and conductors.

First, under Section 5 (a) (2), it should be stated that it is the employer who should be the first one to present its case before the employee, having such burden in the first place. While indeed the employee be afforded ample opportunity to be heard and defend himself/herself, it is not the burden of the employee to explain without the employer first presenting the charges against him during that hearing. Second, a formal hearing should be mandatory, and not only when certain conditions exist warranting such hearing. These are consistent with the burden of the employer.

•    Employment Agreement for Drivers and Conductors.

It is indeed important to have an employment agreement for drivers and conductors, but it should be stressed however that the date of the agreement is not necessarily the date when the employment commenced, particularly for workers previously employed by the bus owner or operator.  It is worth noting that there is no data required as to the date of hiring of such employee is indicated in the agreement. To include that information would be ideal, together with adequate safeguards for current workers who might be forced to indicate such information under pain of termination. Another provision that should be included is that employees shall be provided with these written agreements on the first day of employment with the company, otherwise considered as regular employees.

•    Fixed and performance based compensation scheme.

The purpose and importance for this provision are clearly recognized. However, as written in the Order, these seems to be a misappreciation of how drivers and workers receive their compensation, when what is mandated in Sec. 1, Rule III is to adopt a “part-fixed, part-performance” based compensation scheme, instead of what is defined under Rule I, Sec. 2 as “fixed” compensation not lower than the applicable minimum wage, and another compensation based on safety, business and other related performance parameters. Under the YBL-YBLEU CBA, workers have a salary, and in addition, additional performance related compensation, and these are not merely “part-fixed, part-performance” based compensation scheme.

Some of these performance-based compensation benefits include productivity incentive bonuses, such as when drivers and conductors receive gross quota commission for every trip completed, or when a certain quota is reached. Additional bonuses are also granted when there are additional trips required when such required trips have already been made. There are also incentive bonuses to drivers and conductors when they rendered actual service during a month, have not been involved in a vehicular accident or damage to the bus due to negligence for drivers or shortages for conductors, and there are no work-connected complaints has been filed against the driver or conductor. These can be some of the other performance-based compensation scheme that can be considered.

A submission by the Yellow Bus Lines Employees Union (YBLEU) and the Sentro ng Alternatibong Lingap Panligal (SALIGAN). For more information, contact SALIGAN Mindanaw at  086-2984161.