K-12 = ? FINDING ANSWERS TO LEGAL ISSUES

AND LABOR CONCERNS

Atty. Joseph Noel M. Estrada

DECLARATION OF POLICY

Article XIV, Section 2(1) of the 1987 Philippine Constitution

The State shall establish, maintain, and support a complete, adequate, and integrated system of education relevant to the needs of the people and society;

SEC. 3. Basic Education. Basic education is intended to meet basic learning needs which provides the foundation on which subsequent learning can be based. It encompasses kindergarten, elementary and secondary education as well as alternative learning systems for out of-school learners and those with special needs.

Culled from Sec. 4(b) of REPUBLIC ACT NO. 9155, “GOVERNANCE OF BASIC EDUCATION, ACT”

ENHANCED BASIC EDUCATION

AT LEAST

one (1) year of kindergarten education

six (6) years of elementary education

six (6) years of secondary education

Secondary education includes:

four (4) years of junior high school, and

two (2) years of senior high school

THREE (3) STAGES IN BASIC EDUCATION

KINDERGARTEN EDUCATION

ELEMENTARY EDUCATION

SECONDARY EDUCATION

ENHANCED BASIC EDUCAITON

• R.A. 10157, “Kindergarten Act of 2012” – Institutionalization of Kindergarten Education.

• Elementary Education- compulsory; second stage; fixed at six years (no longer usually 6 or 7); entrants are typically 6 year olds

• Secondary Education- compulsory third stage; Junior HS and Senior HS; 14 and 16 year old entrants respectively

CHANGES INTRODUCED:

• Confirms the institutionalization of mandatory Kinder;

• Fixes Elementary education to 6 years;

• Basic Education now includes junior high school and senior high school; and

• Secondary education is made “compulsory”.

Compulsory Secondary Education?

Art. XIV, Constitution, Section 2. The State shall:

“Establish and maintain, a system of free public education in the elementary and high school levels. Without limiting the natural rights of parents to rear their children, elementary education is compulsory for all children of school age;”

Elementary Education Act of 1953

SECTION 5.It shall be compulsory for every parent or guardian or other person having custody of any child to enrol such child in a public school, the next school year following the seventh birthday of such child, and such child shall remain in school until the completion of an elementary education SUBJECT TO EXCEPTIONS.

By making secondary education compulsory, it creates an obligation that is legally demandable.

But whose primary obligation is it to provide elementary and secondary education?

•

The State recognizes its primary legal obligation to provide a free elementary and secondary education under Art. XIV Sec. 2 of the Constitution.

It is therefore compulsory for parents to keep their children in school as long as the government can provide free public schools, which now includes secondary education.

• Revised Penal Code, Art. 277. Abandonment of minor by person entrusted with his custody; indifference of parents. — The penalty of arresto mayor and a fine xxx

• shall be imposed upon the parents who shall neglect their children by not giving them the education which their station in life require and financial conditions permit.

NO TO MOTHER TONGUE!

YES TO MOTHER LANGUAGE!

Mother Language

Kinder and Grades 1-3 teaching materials shall be in native language

Grades 4-6- DepEd shall introduce mother language transition program introducing Filipino and English.

Mother Language – refers to the language/s first learned by the child, which he identifies with, used as a native language, knows best and uses most. Includes sign language of PWDs.

Native Language- traditional speech variety in the region, area, or place.

K-12 Labor

Issues Affecting

Private HEIs

2 Major Pains

1. Qualification of teachers

2. Retention and Displacement of

affected faculty

SECTION 8. a.

• DepEd and Private Education Institutions SHALL HIRE:

Graduates of science, mathematics, statistics, engineering, music and other degree courses with shortages in qualified LET applicants Provided, That they pass the LET within five (5) years after their date of hiring, EXCEPT for Part-Timers.

SECTION 8. b.

• Graduates of technical-vocational courses to teach in their specialized subjects in the secondary education: Provided, That these graduates possess the necessary certification issued by TESDA: Provided further, That they undergo appropriate in service training to be administered by DepEd or PEI at the expense of DepEd;

SECTION 8. c.

Faculty of higher education institutions (HEIs) be allowed to teach in their general education or subject specialties in the secondary education: Provided, That the faculty must be a holder of a relevant Bachelor’s Degree and must have satisfactorily served as full-time HEI faculty.

• Relevant Bachelor’s Degree

• No LET requirement

• Threshold tenure is up to the PEI

• No Master’s Degree Requirement?!

Full-Time Faculty, Defined

• DOLE-DECS-CHED-TESDA ORDER NO. 1, S.1996 Full-Time faculty is defined as one who possess at least the minimum academic qualifications set by DECS for basic ed, CHED for higher ed, and TESDA for tech-voc.

• Under the MORPHEI, to teach in HEIs, faculty must have relevant MA Degree.

Sec. 8. c.

DepEd and PEIs may hire expert practitioners to teach in Secondary education on a part-time basis only subject to standards to be adopted by DepEd and appropriate agencies.

OPTIONS FOR PEIs

1) FOR BASIC EDUCATION SCHOOLS WITHOUT A COLLEGE:

OFFER SHS;

or

PARTNER WITH OTHER SCHOOLS TO OFFER SHS

2) FOR COLLEGES WITHOUT BASIC EDUCATION:

OFFER STAND ALONE SHS;

OR

PARTNER WITH BASIC EDUCATION SCHOOLS TO OFFER SHS.

3) FOR BASIC EDUCATION SCHOOLS WITH COLLEGE:

OFFER GRADES 11 AND 12

OR

PARTNER WITH FEEDER SCHOOLS

PERSONNEL IMPLICATIONS

1. PEI HIRES NEW Teachers

2. PEI ABSORBS EXISTING Faculty WHO ARE QUALIFIED TO TEACH GEN.ED. OR SHS SUBJECTS

What PEIs/HEIs need to decide Faculty to Retain:

• CHED curriculum on GE

• Number of years of Tertiary Programs

K-12-16!

What happens to those who don’t qualify?

OPTIONS FOR THE SCHOOL

I. PROBATIONARY AND PART-TIME FACULTY:

Non-Renewal Of Contracts

OPTIONS FOR THE SCHOOLS

II. FOR TENURED FACULTY:

1. Re-classify to administrative or academic support positions

2. Assign Faculty to do research for 2 years

3. Payroll employment for 2 years

4. Floating Status

5. Offer Redundancy or Retrenchment Programs

6. Sabbatical Leave

7. Apply Retirement Plan or Offer Early Retirement Package

8. Offer Voluntary Redundancy Program

IMPLICATIONS TO RETAINED FACULTY

1. Pay rates: Public vs. Private; annualized vs. per unit; lower academic rank

2. Teaching Load

3. Diminution of Pay?

LABOR CODE

ART. 100. PROHIBITION AGAINST ELIMINATION OR DIMINUTION OF BENEFITS.

Diminution in Pay

• Change of Assignment/Change in curriculum

• De-Loading of Full-time Faculty

Tests to Apply

Inherent Management Prerogative?

Proprietary Right of the School?

Vs.

Entitlements enforceable/demandable obligation against the school?

• APPLY RETIREMENT PLAN

• OFFER EARLY RETIREMENT PLAN

• RETRENCHMENT

• REDUNDANCY

VOLUNTARY REDUNDANCY

PROOF OF REDUNDANCY

• Evidence must be presented to substantiate redundancy such as but not limited to the new staffing pattern, feasibility studies/proposal, on the viability of the newly created positions, job description and the approval by the management of the restructuring (Panlilio vs. NLRC, 1997).

PROOF OF REDUNDANCY

• It is the employer’s burden to show that redundancy exists. It is not enough for a company to merely declare that it has become overmanned. It must produce adequate proof of such redundancy to justify the dismissal of the affected employees (Asufrin vs. San Miguel Corporation, 2004).

“JUDICIAL NOTICE”

• DOLE SHOULD TAKE “JUDICIAL NOTICE” OF THE CONSEQUENCES IN IMPLEMENTING K-12: ADDITIONAL 2 YEARS OF BASIC EDUCATION AND DISRUPTION OF YEARS IN HIGHER EDUCATION.

Dear DOLE,

PLEASE RELAX THE BURDEN

OF PROOF OF REDUNDANCY. Love, Private Educational Institutions

REQUIREMENTS OF VALID REDUNDANCY PROGRAM

• A written notice served on both the employees and the Department of Labor and Employment (DOLE) at least one month prior to the intended date of retrenchment as required by the Labor Code;

• Payment of separation pay equivalent to at least one month pay or at least one month pay for every year of service, whichever is higher;

• Good faith in abolishing the redundant positions; and

•

• Fair and reasonable criteria in ascertaining what positions are to be declared redundant and accordingly abolished. (See Caltex vs. NLRC, 2007, )

Separation Pay

• Section 32 (B)(6)(b) of the Tax Code, as amended, provides that any amount received by an official or employee, or by his heirs, from the employer as a consequence of separation from service because of death, sickness or other physical disability — or for any cause beyond the control of said official or employee, such as retrenchment, redundancy, or cessation of business — is exempt from income tax and, consequently, from withholding tax.

• The phrase "for any cause beyond the control of the said official or employee" connotes involuntariness on the part of the official or employee. Separation from the service of the official or employee must not be asked for or initiated by him. This means the separation was not of his own doing.

• It is noted that the same treatment applies to benefits given to an employee who voluntarily resigns due to health reasons that have prevented him from returning to work. The Tax Code provides that amounts received by an employee due to sickness or physical disability are also exempt from income tax.

Dear BIR:

PLEASE EXEMPT FROM TAXES ANY SEPARATION PAY RECEIVED UNDER VOLUNTARY REDUNDANCY PROGRAM IN IMPLEMENTING K-12.

Love, Faculty

Exodus of faculty to other industries or to public schools will likely cause many

private HEIs to close.

LET IT BE KNOWN:

HEIs need to keep their qualified faculty because it would cost them more to lay

them off.

Thank you!