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» A message from LBPEA Visayas Director SONIA D. BROTARLO
SUSPENSION OF BENEFITS FOR THOSE W/ ADM CASES Icon_minitime1Thu Nov 16, 2017 10:30 am by sonia

A message from LBPEA Visayas Director SONIA D. BROTARLO
SUSPENSION OF BENEFITS FOR THOSE W/ ADM CASES Icon_minitime1Thu Nov 16, 2017 10:30 am by sonia
SUSPENSION OF BENEFITS FOR THOSE W/ ADM CASES Sonia10

It has been two (2) years and six (6) months that this website was closed.  Many were disappointed with the closure but we have to keep up with the fast changing technology - facebook and twitter, among others.  
 
With the remaining one month and a half of my stint as Director for Visayas, I have been ruminative as to the manner of my “consummatum est” in LBPEA.  Thus  here I am re-opening the website pro hac vice for my grand exit. 
 
This is the medium where you first knew me and this is where I want to personally reach out to you to express my deepest and heartfelt “THANK YOU” for all the years that you trusted me. 
 


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 SUSPENSION OF BENEFITS FOR THOSE W/ ADM CASES

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sonia
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Number of posts : 1428
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PostSubject: SUSPENSION OF BENEFITS FOR THOSE W/ ADM CASES   SUSPENSION OF BENEFITS FOR THOSE W/ ADM CASES Icon_minitime1Sat Apr 09, 2011 8:17 pm

Hereunder is the basis in the suspension of benefits for employees with administrative cases:

Executive Order No. 43 Series of 2006
Rules on Administrative Disciplinary Cases
Page 8
------------------

M. No. 4 Effect of Pendency of Administrative Cases

a. Pendency of the administrative case shall disqualify the respondent from promotion but shall entitle him/her to the following:
-Salary
-PERA/ACA
-RATA
-Year-end bonus
-Cash Gift

b. Benefits granted by the Bank which are non-statutory shall be withheld during the pendency of administrative case except those charged with light offenses. Benefits are withheld upon the issuance/signing of the Formal Charge.


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semaj501



Number of posts : 280
Registration date : 2010-09-15

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PostSubject: Re: SUSPENSION OF BENEFITS FOR THOSE W/ ADM CASES   SUSPENSION OF BENEFITS FOR THOSE W/ ADM CASES Icon_minitime1Sat Apr 09, 2011 10:39 pm

Thanks Madam Sonia for the timely reply...

The posted EO 43 which provides for the Rules on Administrative Disciplinary Cases is an internal rule of LBP. Enumerated under item M. No. 4 are the effects of the pendency of an administrative case. It says that when an administrative case is pending, the respondent shall be disqualified from promotion but shall entitle him/her to salaries, PERA/ACA, RATA, Year-end bonus, and Cash Gift. It further states that benefits granted by the Bank which are non-statutory shall be withheld during the pendency of administrative case except those charged with light offenses.

Scrutiny of the said provisions of the EO is worthwhile because this is the basis of management governing administrative charges within the institution. Are the provisions legal or are there gray areas or infirmities which may be brought to the attention of management for correction? Before we are able to address these issues, we must first examine the existing rules of CSC on this subject, supported by valid arguments.

CSC Rules (MC 19, s. of 1999):

MC No. 19, s.1999 otherwise known as the “REVISED UNIFORM RULES ON ADMINISTRATIVE CASES IN THE CIVIL SERVICE” adopts and promulgates the rules that shall govern disciplinary and non-disciplinary proceedings in administrative cases. Coverage of the rule is expressly indicated under Rule I thus:

Sec. 2. Coverage and Definition of Terms. – These Rules shall be applicable to all cases brought before the Civil Service Commission and other government agencies, except where a special law provides otherwise.
The terms hereunder shall be construed as follows:
a. CIVIL SERVICE is the generic term which refers to all men and women in all branches, subdivisions, instrumentalities and agencies of the Government, including government-owned or controlled corporations with original charters.

Section 34. Effect of the Pendency of an Administrative Case. – Pendency of an administrative case shall not disqualify respondent for promotion or from claiming maternity/paternity benefits.
For this purpose, a pending administrative case shall be construed as follows:
a. When the disciplining authority has issued a formal charge; or
b. In case of a complaint filed by a private person, a prima facie case is found to exist by the disciplining authority.

R.A. 7907

This law is commonly referred to as the LBP’s amended charter enacted in 1995. It is the basis of the exemption from salary standardization laws and qualification standards. Second paragraph of Sec. 90 specifically mentions that:

"All positions in the Bank shall be governed by a compensation, position classification system and qualification standards approved by the Bank's Board of Directors based on a comprehensive job analysis and audit of actual duties and responsibilities. The compensation plan shall be comparable with the prevailing compensation plans in the private sector and shall be subject to periodic review by the Board no more than once every two (2) years without prejudice to yearly merit reviews or increases based on productivity and profitability. The Bank shall thereforee be exempt from existing laws, rules and regulations on compensation, position classification and qualification standards. It shall however endeavor to make its system conform as closely as possible with the principles under Republic Act No. 6758.

Comparison between EO 43 and MC 19:

Effects of the Pendency of Administrative Cases:

Under CSC MC No. 19, pendency of an administrative case shall not disqualify respondent for promotion or from claiming maternity/paternity benefits. These are the only effects stated. On the other hand, LBP’s EO 43 provides that when an administrative case is pending, the following are the consequences: 1) respondent is disqualified from promotion but shall entitle him/her to salaries, PERA/ACA,RATA, Year-end bonus, and Cash Gift; and 2) Benefits granted by the Bank which are non-statutory shall be withheld during the pendency of administrative case except those charged with light offenses.

Observations:

Before proceeding with our scrutiny, we must settle first if LBP is covered by CSC Rule No. 19.

Sec. 2 of MC 19 defines its coverage which includes government-owned or controlled corporations with original charters. Certainly, LBP is a GOCC with original charte. The subsequent enactment of R.A. 7907 exempts LBP from existing laws, rules and regulations on compensation, position classification and qualification standards. The exemption, however, as stated, covers only compensation, position classification, and qualification standards, no more no less. Therefore, LBP is covered by CSC MC No. 19.

With the apparent conflict between the provisions of the two rules, which shall prevail?
In G.R. No. 148083, July 21, 2006, in cases of conflict between the law and the rules and regulations implementing the law, the law shall always prevail. It went on saying that this case should remind all heads of executive agencies which are given the power to promulgate rules and regulations, that they assume the roles of lawmakers. It is well-settled that a regulation should not conflict with the law it implements. Thus, those drafting the regulations should study well the laws their rules will implement, even to the extent of reviewing the minutes of the deliberations of Congress about its intent when it drafted the law. They may also consult the Secretary of Justice or the Solicitor General for their opinions on the drafted rules. Administrative rules, regulations and orders have the efficacy and force of law so long as they do not contravene any statute or the Constitution. It is then the duty of the agencies to ensure that their rules do not deviate from or amend acts of Congress, for their regulations are always subordinate to law.

Conclusion:

Provision of EO 43 on the effects of the pendency of an administrative case should be recommended to be corrected in accordance with CSC’s MC No. 19 because of the conflicts as explained in the foregoing. First, while an administrative case is pending, respondent is not disqualified from promotion. Second, he is entitled to receive all financial due him because there is no prohibition on this matter.

It is submitted that all financial benefits received by employees of LBP are statutory in nature. It is not only limited to those that are enumerated under M. No. 4 of EO No. 43 i.e. Salary, RATA, PERA/ACA, Year end Bonus, and Cash Gift, it should include all other financial benefits. The legal basis of this argument is our charter, R.A. 7907. Through this law, congress has validly delegated the setting of compensation to the BODs. The delegated authority includes approval of other financial benefits like grocery allowance, merit incentives, etc. When congress has delegated the authority, the actions of the BODs in approving the financial benefits are also acts of the person who have given the authority, in this case Congress. Therefore, all approvals of the BODs are statutory in character.
To further support the argument, the prevailing law governing unionism in the public sector proscribes as negotiable item those that are fixed by law – meaning those that are statutory in nature. Economic or financial benefits are included in the prohibition for the reason that these are fixed by law. This is the same reason why LBPEA could not validly negotiate economic benefits.

Recommendation:

Author has limited time preparing the comment, there may be other prevailing laws or rules that are contrary to his arguments. LBPEA may therefore endeavor to research further so that a more persuasive and legally supported position may be presented to management for their consideration. We hope for a favorable outcome…

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semaj501



Number of posts : 280
Registration date : 2010-09-15

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PostSubject: Re: SUSPENSION OF BENEFITS FOR THOSE W/ ADM CASES   SUSPENSION OF BENEFITS FOR THOSE W/ ADM CASES Icon_minitime1Sun Apr 10, 2011 10:43 am

I have this to say as my point of view on issues regarding the internal rules of LBP governing Administrative cases and also the existing policy on the 5 day program leave. The issues involved are not questions of law but questions on implementation of the rules/law. The subject rules are already there clearly provided. What is left upon the gov’t. agencies or instrumentalities is only to obey without any discretion or qualification on their part.

LBP’s internal rules were crafted in pursuance to the rules set by laws or the CSC. In short, without the laws and CSC rules, LBP may not validly set its own because authority to do so is not within its domain. Clearly, CSC has the authority because it is the central personnel agency of the Government (Sec. 3, Art. IX.B, 19887 Constitution), LBP has no legal power to alter the rules prescribed by laws or CSC rules unless authorize to do so. Absent any authority or exemption, there is no other recourse but to abide by the rules.

It is true that LBP may set its own internal rules and procedures in the conduct of its business. However, rule making should always be in accordance with prevailing laws, jurisprudence, and those set by the CSC. LBP may not deviate from the provisions unless duly authorized, as earlier stated. Any internal policy may be questioned for being invalid if any provision runs counter to prevailing laws or rules.

Just imagine if all government instrumentalities will not obey the rules of CSC by setting their own rules, what will happen? Conflicts will definitely occur and courts will be clogged with cases arising from the enforcement of flawed internal rules of the gov’t. institutions. This is the reason why a central personnel agency is created to set uniform rules to be followed by all under its jurisdiction…

Now, who are the interested parties who will question the validity of these internal rules?
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semaj501



Number of posts : 280
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PostSubject: Re: SUSPENSION OF BENEFITS FOR THOSE W/ ADM CASES   SUSPENSION OF BENEFITS FOR THOSE W/ ADM CASES Icon_minitime1Sun Apr 10, 2011 11:52 am

Quote :
What is then the policy/rule making authority of every agency if it cannot protect its own interest simply because the civil service has its own rules?

You answer my point on COLA Atty...despite existing laws the bank did not give in. If we have to question this policy we have to question it in court or with the Civil Service because I believe the bank would be firm enough to stand on its authority to regulate/supervise its operation and protect its interest.

Of course the omnibus uniform rules of CSC are there to protect not only the employees but also the institutions on matters relating to their employee-employer relationship. Those conditions are fixed by the rules, hence can never be the subject of negotiations. Left at the discretion or domain of the respective govt. institutions are matters that concern operational aspects in the conduct of their business. Those that are not provided by the rules, so to speak. However, their rule making power should not be contrary to the existing laws or rules of the govt, else the same will be struck down or declared void for being unconstitutional. Even the private sector may not prescribe their own rules in contrary to prevailing laws. For example, they may not say that the salary of an employee is only P100.00 per day if the minimum prevailing wage is P300.00/day. Or that she is not allowed to go on maternity leave if the labor laws provide that she is entitled to avail of the same.

On the COLA case, the issues raised are entirely different. Questioned in that case is the legality of the integration of the COLA to the standardized salaries which is left to the determination of the courts. In short, the matter raised is a pure question of law. LBP may not grant COLA outright because of the question of law. This is the reason why the case has reached the courts for their determination as to its legality. The issues on PVL and EO 43 of LBP are not questions of law because the rules set by CSC are clearly provided. Provisions were not questioned in the proper courts. What we are saying in the case of PVL and EO 43 is that the issues arose because of the failure of our institution to comply with the provisions - for altering by introducing riders or other provisions that are not provided in the uniform rules. Are they legally allowed to do so?

I am bringing this matter with the hope that it will be brought to the attention of management during the collective negotiation period.
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MATEO



Number of posts : 11
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PostSubject: Re: SUSPENSION OF BENEFITS FOR THOSE W/ ADM CASES   SUSPENSION OF BENEFITS FOR THOSE W/ ADM CASES Icon_minitime1Fri Apr 15, 2011 7:16 pm

cheers GALING 2DMAX KA ATTY IDOL!!!
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sonia
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Number of posts : 1428
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PostSubject: Re: SUSPENSION OF BENEFITS FOR THOSE W/ ADM CASES   SUSPENSION OF BENEFITS FOR THOSE W/ ADM CASES Icon_minitime1Sat Apr 16, 2011 9:24 pm

semaj501 wrote:
LBP’s internal rules were crafted in pursuance to the rules set by laws or the CSC. In short, without the laws and CSC rules, LBP may not validly set its own because authority to do so is not within its domain. Clearly, CSC has the authority because it is the central personnel agency of the Government (Sec. 3, Art. IX.B, 1987 Constitution), LBP has no legal power to alter the rules prescribed by laws or CSC rules unless authorize to do so. Absent any authority or exemption, there is no other recourse but to abide by the rules.

For Atty James:

The arguments you raised on this particular issue are really exhaustive.

One argument that I would like to highlight is that the CSC is the central personnel agency of the Government under Sec. 3, Art. IX B of the 1987 Constitution, LBP has no legal power to alter the rules prescribed by laws or CSC rules unless authorized to do so.

It is the CSC then being the central personnel agency who will determine as to the propriety and legality of this policy since the issue is on the diminution of benefits of an employee charged but whose culpability has not yet been proven under administrative due process.

Upon receipt of notice by an employee that he has been administratively charged based on prima facie findings, some of his benefits are suspended. Therefore, an employee is made to suffer for an offense that is yet to be proven.

Thank you for generously sharing ex gratia your legal expertise!
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semaj501



Number of posts : 280
Registration date : 2010-09-15

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PostSubject: Re: SUSPENSION OF BENEFITS FOR THOSE W/ ADM CASES   SUSPENSION OF BENEFITS FOR THOSE W/ ADM CASES Icon_minitime1Sat Apr 16, 2011 11:17 pm

Well said Madam Sonia. The internal rule of suspending some economic benefits of employees administratively charged with grave offenses is punitive in nature. I can't think of any basis in law considering that a penalty is already imposed while culpability is not yet determined by the disciplining authority. It is hard to explain this provision on the internal rule because of the clear inconsistencies or conflicts with CSC's Uniform Rules. Legality of the provision re suspension of some benefits may be brought to CSC for their legal opinion because the Commission has power and function to: Render opinion and rulings on all personnel and other Civil Service matters which shall be binding on all heads of departments, offices and agencies and which may be brought to the Supreme Court on certiorari (Administrative Code of 1987, Chapter 3, ORGANIZATION AND FUNCTIONS OF THE CIVIL SERVICE COMMISSION, Section 12.2)

It is hoped that with LBPEA's intercession, this issue will be finally resolved...
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