PART 2: GMA’s arguments why TAG members are not regular employees
(READ PART 1 HERE: [Analysis] PART 1: GMA’s arguments why TAG members are not regular employees)
GMA Network Inc. filed an appeal before the National Labor Relations Commission (NLRC) contesting the Arbiter’s decision that members of the Talents Association of GMA (TAG) are regular employees of the Network. (READ: [News] GMA talents declared as regular employees by labor arbiter)
The Labor Code provides for a four-way test to determine whether a worker is a regular employee:
- GMA has the power to hire us
- GMA has the power to dismiss us
- GMA pays us wages
- GMA has control over our conduct
The fourth test—control over conduct—is the most important test. In the first part of this series, we showed you how GMA Network argued this test, and how they differentiate from facts. (READ: [Analysis] PART 1: GMA’s arguments why TAG members are not regular employees)
In the second and last part of this analysis, we will show you more details how they argued that test, and the remaining three tests—power to hire, power to dismiss and payment of wages.
NOT GOVERNED BY LABOR CODE?
We begin with their introductory argument:
WHAT GMA SAYS: Because the Broadcast Industry is a franchise granted by Congress, they are, to an extent, not covered by the Labor Code—the very law guiding this case.
FACT-CHECK: No law in the country provides this exemption for the Broadcast Industry. Telecommunications, for example, is subject to franchise granted by Congress, but they, too, are covered by the Labor Code. In fact, there are only two principal laws for employment: the Labor Code for private employees and the Civil Service Law for public employees, except for GOCCs formed under the Corporate Code. GMA Network, in this argument, could not even cite a law to support its claim.
Time and again, no less than the Supreme Court has affirmed the jurisdiction of the NLRC over cases brought forth by talents of the Broadcast Industry. These decisions, which, under the law, become part and parcel of the legal system, are but one of the many proof that Broadcast Industry talents come under the mantle of the Labor Code.
EXCLUSIVITY OF TALENTS
GMA’s appeal largely banks on a 2004 decision by the Supreme Court favoring ABS-CBN over Jose Sonza.
WHAT GMA SAYS: Citing the Sonza case, GMA is saying that even though we are exclusive to the Network, just like Sonza was to ABS-CBN, it does not mean it has control over us. They’re saying that not because we are exclusive talents, we are passing the “control” test. (You may read the Sonza decision here.)
FACT-CHECK: That was a 2004 decision. Let’s take a look at a Supreme Court decision last April 20, 2015. In its favorable ruling to talents of ABS-CBN Naga, the Supreme Court makes it clear there is a distinction between Sonza and the talents from ABS-CBN Naga. It also affords us that same distinction. Just like them, we are not television personalities with fat paychecks, therefore, the Sonza case could not be applied to us. Note also that Jose Sonza was not engaged with ABS-CBN as an individual, it was his company, Mel and Jay Management and Development Corporation, that was. We are not a company, we are individuals. (You may read the ABS-CBN Naga decision here.)
GMA CLAIMS THEY DO NOT HIRE TALENTS
Now let’s proceed to how they argued against the power to hire us.
WHAT GMA SAYS: GMA either invited Talents to come work for them, or that Talents offered their services to GMA.
FACT-CHECK: More than 10 years ago, Executive Producers can hire Talents directly. But talents were not invited as you would a contractor. Talents passed resumes and were interviewed by the EP. In the last 7 years or so, GMA has become more strict. Talents were hired by the GMA News and Public Affairs HR. They call their unit the Administrative Department but they handle hiring and other concerns similar to HR. Just like the Network’s regular employees, we went through the process. We submitted resumes, they called us, we took an examination, we went through interviews and when we were hired, we were made to submit requirements such as Medical Examination, Drug Examination, NBI Clearance, etc. the same with the Network’s regular employees. In fact, when Network Managers directly contacted talents because they either graduated with honors, had glowing recommendations from colleagues or were recipients of GMA’s Excellence Award (for MassComm/Engineering students), they still had to go through the same hiring process of the HR.
Furthermore, TAG members went through a training period before they were given their contracts, the same with the Network’s regular employees.
FORM OF TERMINATION
This is GMA’s argument pertaining to the second test: the power to dismiss.
WHAT GMA SAYS: GMA is simply saying that its grounds for dismissal do not fall under the Labor Code’s grounds for termination. Its sole basis is the Guidelines on Breach of Talents Agreements.
FACT-CHECK: Article 282 of the Labor Code provides for just cause on termination. Breach of Agreements fall under these conditions. In fact, when GMA Network terminated 11 TAG members last week, it cited the following reasons: abandonment of duties and disobedience, which are under the Labor Code.
Moreover, the Network seems to flip-flop on its stance. During the mediation period of this case, GMA said in its position paper that they were “not in the position to dismiss or sanction complainants in whatever manner because they are not its employees.” When they terminated 11 of our members citing breach of agreement, they demonstrated this power to dismiss.
We also would like to reiterate that this termination targeted only 11 of our members, when the “breach” they are citing applies to the rest of the group when we staged a protest last June.
The termination of 11 of our members only strengthens our case that we are regular employees, and that we are protected by the right to form, and petition our employer, also provided for by the Labor Code.
TALENT FEES NOT SALARIES?
With regards to the payment of wages, GMA has this to say:
WHAT GMA SAYS: GMA does not pay us “wages”, it pays us a “talent fee”.
FACT-CHECK: The Labor Code is not concerned with terminologies. The law only asks: does GMA pay you? Yes, it does. We are paid every 10th and 25th of the month, every month, similar to how it pays its regular employees, the only difference is that it pays them every 15th and 30th of the month. Aside from the dates, we are paid similarly with regular employees—even our pay slips from the Network’s Finance Department look the same, except that pay slips of regular employees have details of deductions of government-mandated benefits which the Network has been denying us. Our pay slips, however, show our tax deductions, which the Network freely does on our behalf, as it would for a regular employee.
‘FREEDOM TO NEGOTIATE SALARY’?
Moreover, GMA Network is claiming we could negotiate our salary.
WHAT GMA SAYS: GMA is saying that talents were “allowed to freely negotiate” with the Network. They are saying we could name our price, just like celebrities. And when GMA cannot give us that price, we “could offer our services to the highest bidder.”
FACT-CHECK: The Network dictates our Talent Fee. Our Talent Fee was revealed to us when the HR interviewed us, so we could decide whether we were still willing to take the job. Some talents have been receiving the same wage for years without increase.
GMA also says this:
WHAT GMA SAYS: We signed the Talent Agreements voluntarily. We were not forced.
FACT-CHECK: Yes, we signed them because it meant we could continue doing the jobs we love, and we could continue providing for our families. It may have taken long, but we are finally questioning the power of this agreement. The court allows this, it’s what this case is all about.
But now that we’re on the topic of “without any force, coercion, duress and improper pressure,” let us reveal what happens when our contracts are renewed. Our Program Administrators (employees of the Network) hand us our contracts, give us a pen and wait right then and there so we could sign it. Other administrators do not let us have ample time to read it, others are more considerate, giving us until the end of the day to turn over signed contracts. We could not take home a copy of our contracts. If we try to photocopy it, we are apprehended. If confronted, they will cite “management instructions.” Can you call that “without force, coercion, duress and improper pressure”? Of course they have changed this now. TAG members were finally given copies of Talent Agreements, and non-case filers who were moved to the Project Employment Contract (PEC) scheme are finally furnished with copies of their contracts. But you can ask any of the talents (now project employees) from the News and Public Affairs Department, they will tell you the same.
And finally, we come to their closing argument.
GMA is saying that we are highly educated, highly experienced media practitioners who must have known this was the Industry practice.
At least, these are facts. Yes, we come from reputable universities and have experience in the industry and yes, we understand both the Filipino and the English language—we cannot argue that.
So we’re going to argue on the basis of morality. Not because it has been a system implemented for a long time doesn’t mean it is a system that’s right, and it definitely does not mean you cannot correct it.
That is why laws can be repealed and amended, to correct the flaws and cope with the changing times. Surely, GMA Network was also “clearly aware and familiar” with that.
If not, then we urge them to review history. One must not go far. Just two years ago, the Supreme Court declared the Priority Development Assistance Fund or the “Pork Barrel” unconstitutional. This is a system that can be traced back to the pre-Martial Law era. And yet, the High Court is saying that this practice that has existed for so long is illegal.
The Filipino people was also “clearly aware and familiar” with the pork barrel practice, but that didn’t mean they could not fight it. And it certainly did not mean they would not win. They did, we did.
As citizens of this country, we trust in the justice system, and as journalists, we trust in the good judgment of the Filipino people.
These are the facts, and let it be known that we are fighting on the basis of facts and on the basis of law.
We urge our colleagues in the Media industry and the rest of the labor force to come out and demand labor justice. History says that we could fight long-standing practices, and that we could change it, finally, for the better.
(READ PART 1 HERE: [Analysis] PART 1: GMA’s arguments why TAG members are not regular employees)