By: Cassandra Marie Mendoza
The year 2020 has unexpectedly become a year of international health crisis. Since January 2020, the whole world has been coping with the impact of the Coronavirus disease 2019 (COVID-19) pandemic.
COVID-19’s local transmission in the Philippines prompted President Duterte to sign proclamation No. 9221 declaring a state of public health emergency throughout the country. Consequently, a sudden deployment ban of Filipino health workers was put into effect through the Philippine Overseas Employment Administration (POEA) Governing Board Resolution No. 9 series of 2020.
The deployment ban included physicians, nurses, microbiologists, molecular biologists, medical technologists, clinical analysts, respiratory therapists, pharmacists, laboratory technicians, radiologic technicians, nursing aides, operators of medical equipment, supervisors of health services and personal care, and repairman of medical-hospital equipment.
The ban serves two purposes. First, it sought to address the shortage of health workers in the country. The Human Resources for Health Network (HRHN), an inter-agency policy and program support network led by the Department of Health (DOH), reported that “there was a shortage of about 290,000 health workers in the country, and that an average annual migration of 13,000 health care professionals aggravates the deficiency in the national supply”. Second is to ensure the safety health workers. Not allowing the health workers to go to countries where the pandemic is at its peak is said to be the government’s preventive measure to secure the safety of health workers. The deployment ban has already affected around 700 nurses throughout the country. However, albeit noble in its purposes, the ban seems to tread upon the brink of unconstitutionality. Thus, the question arises: Is the deployment ban of health workers, specifically, of nurses constitutional?
LEGAL AND CONSTITUTIONAL GAPS
The International Convention on Economic, Social, and Cultural Rights (ICESCR), acceded to by the Philippines, provides for the recognition of the people’s right to work. This right includes the opportunity to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right. It also includes the right to just and favorable conditions of work, including remunerations which provide all workers, as a minimum, with fair wages and equal remuneration for work of equal value without distinction of any kind, and safe and healthy working conditions.
By virtue of the doctrine of incorporation in the Constitution, the Philippines adopted the abovementioned international policy. The same is strengthened by Section 3, Article XIII of the 1987 Constitution which states that the workers “… shall be entitled to security of tenure, humane conditions of work, and a living wage. They shall also participate in policy and decision-making processes affecting their rights and benefits as may be provided by law.”
Among the rights of labor protected under the Constitution are the right to choose one’s employment and the right to security of tenure. The latter provides for the right of the workers not to be terminated except for a just cause and with due process. Filipino nurses and other labor advocates have appealed to lift the ban for being violative of the nurses’ constitutional rights to choose employment and to security of tenure.
On the Nurses’ Right to Work
Even before the pandemic, the problem regarding the salary of the nurses was already present. In 2019, a petition has been filed before the Supreme Court (SC) seeking to increase the salary of the Filipino nurses and to declare unconstitutional the executive order issued by former president Gloria Macapagal Arroyo which downgraded the nurses’ salary from Salary Grade 11 to Salary Grade 10. However, such petition was objected to by the Office of the Solicitor General (OSG) for lack of legal basis contending that granting the petition would result in inequity among the wages of government workers.
Towards the end of August 2020, an international information aggregator, i-Price, through Economic Research Institute-powered company, Salary Expert, published data indicating salaries of various front liners during the COVID-19 pandemic in six countries within Southeast Asia. The study showed that the Filipino health care workers are the least paid workers in Southeast Asian countries next to Vietnam with only 40,000 pesos.
More and more nurses, especially during this time of crisis, opted to work abroad to uplift the living conditions of the families they left behind in the country. However, with the deployment ban in place, these nurses had no choice but to stay in the country, without assurance of any gainful employment from the government. Worse, just to make ends meet, they may be forced to work on temporary employment offered by the government to health workers against the battle with COVID-19 pandemic.
Insofar as the right of labor is concerned, it may be said that the deployment ban has deprived the nurses the right to choose to work abroad and to choose the work environment that they believe is the most suitable for them and which could give them better compensation. However, it bears noting that this right is not absolute.
In PASEI v. Drilon (1988), the Supreme Court En Banc upheld the validity of the temporary deployment ban of Filipino domestic and household workers ruling that the reliance of the petitioner on the constitutional right to work of labors is not well-taken because such right granted by Sec. 3, Article XIII of the Constitution must submit to the demands of State’s power of regulation. The Court further held that the term “protection to labor” afforded by the constitution does not signify promotion of employment alone. Rather, it is more concerned with providing employment to labor that is decent, just, and humane.
The applicability of the case of PASEI to the temporary ban on health workers is, at the least, questionable. In PASEI, the temporary deployment ban was justified due to the apparently unhappy plight of the Filipino domestic servants abroad brought about by the exploitative working conditions and cases of abuse against these laborers. Under the present ban however, there was no showing of any kind of abuse from abroad towards Filipino nurses due to the pandemic. In fact, hospitals abroad offer more sustainable and just conditions of work than hospitals in our country. The Philippine government cannot validly claim that this deployment ban ensures the nurses just and humane conditions of work while nurses in the Philippines are being overworked and underpaid. The current condition of nurses is awful. While risking their lives to save Covid-19 patients, they are stigmatized –some are evicted from their apartments, others discriminated in public transportation, and still others get viciously attacked by bystanders.
It bears stressing that the government is not confined to the choice of restricting the nurses’ right to work as a response towards COVID-19. Instead of unduly compelling these laborers to work in the country, the government should afford better salaries to our nurses and allow them to choose whether to stay in the country or to work abroad. By doing so, the government is acting its mandate to uphold the nurses’ right to work.
On Nurses’ Right to Security of Tenure
The deployment ban has affected the nurses’ rights to freely choose their employment as it precluded them from working overseas where there is stable employment, better job offers, and a higher standard of living. It also left nurses with no choice but to look for other sustainable work–given the lack of contingency plan from the government to address their temporary unemployment.
With regard to the employment contract of nurses under this emergency hiring program, even the DOH’s Director of the Office for Policy and Health Systems, Dr. Kenneth Ronquillo, admitted that the primary reason they are having difficulty in getting applicants is that they only offer short-term job contracts that would end in December with a very little assurance that it will be renewed in the 2021, versus the more stable and better job offers abroad.
In this instance, the right of the nurses to security of tenure is impaired by the government’s temporary employment scheme as the nurses are subjected to contractual employment, without assurance of being regularized or having their three-month contracts under the Emergency Hiring Program extended. This set-up denies the rights of the laborers to the benefits associated with regularization and thus, can be classified as an anti-tenurial security scheme frowned upon by the Labor Code.
Whether the deployment ban imposed by the government is constitutional is an issue that only the courts can determine, taking into consideration the provisions of the supreme law of the land.
Nevertheless, the government, in the exercise of its inherent police power, must recognize that while it is true that the right to health and safety may present a sufficient justification for the government’s imposition of the deployment ban against the Philippine nurses and other health workers, there is absolutely no need to stake their freedom to choose their work and their tenurial security rights. The government can do better than forcing them in the country. These rights, conferred by the Constitution, must be enjoyed by the people to the fullest extent possible without having to choose one over the other. If the government is to be true to its mandate of protecting these workers, curtailing its rights should be the last resort. The government should first afford the statutory rights of labor such as humane living conditions and competitive benefits.
Even if the deployment ban on nurses is upheld, the government should start seeing the irony of protecting workers’ rights not by actual grants but by curtailment of rights under the pretense of securing their health and safety.
 Proclamation 922 s. 2020. DECLARING A STATE OF PUBLIC HEALTH EMERGENCY THROUGHOUT THE PHILIPPINES. https://www.officialgazette.gov.ph/downloads/2020/02feb/20200308-PROC-922-RRD-1.pdf
 POEA Governing Board Resolution No. 9 Series of 2020. http://poea.gov.ph/gbr/2020/GBR-09-2020.pdf
 POEA Governing Board Resolution No. 9 Series of 2020. http://poea.gov.ph/gbr/2020/GBR-09-2020.pdf
 Salud, Joel Pablo. “Nursing Wounds: A Closer Look at the Nurses’ Deployment Ban” (Manila, Business Mirror: The broader look, June 4, 2020) https://businessmirror.com.ph/2020/06/04/nursing-wounds-a-closer-look-at-the-nurses-deployment-ban/
 INTERNATIONAL COVENANT ON ECONOMICS, SOCIAL, AND CULTURAL RIGHTS, Article 6
 INTERNATIONAL COVENANT ON ECONOMICS, SOCIAL, AND CULTURAL RIGHTS, Article 7
 CONST., Sec 3, Article XIII.
 Tomacruz, Sofia. “Calida Blocks Petition Seeking to Increase Nurses’ Salary” (Manila, February 26, 2019) https://www.rappler.com/nation/calida-blocks-petit1ion-seeking-increase-nurses-salary.
 iPrice. “Filipino Frontliners Earn The Least Compared To Their Southeast Asian Peers, Data Shows” (Marketing in Asia, September 3, 2020) https://marketinginasia.com/2020/09/03/filipino-frontliners-earn-the-least-compared-to-their-southeast-asian-peers-data-shows/
 G.R. No. 81958
 Santos, Ana. “Attacked and Underpaid: Medics in Philippines battle stigma and virus.” (Manila, April 2, 2020) https://www.aljazeera.com/news/2020/04/02/attacked-underpaid-medics-in-philippines-battle-stigma-virus/.
 Terrazola, Vanne Alaine. “DOLE recommends lifting deployment ban for 600 nurses” (Manila, August 25, 2020) https://mb.com.ph/2020/08/25/dole-recommends-lifting-deployment-ban-for-600-nurses/
Cover Photo from Rappler