SENATE JOURNAL NO.

7 August 12, 2014

SIXTEENTH CONGRESS, SECOND REGULAR SESSION

INTERPELLATION OF SENATOR SOTTO AND DRILON FOR SENATE BILL 29-

2013

Expressing support for the measure, Senator Sotto asked whether Section 3 (b) of
the which states that “The right of the older applicants or employees to be treated equally
with the younger applicants or employees in terms of hiring, compensation, trainings,
benefits, promotions and other employment activities” would be construed as an
encouragement of the employment of over-aged people thereby reducing the chances of
younger applicants to be employed. Senator Cayetano (P) explained that the intention of
the bill is to address the situation currently obtaining where the age of 28 or 29 is already
considered as “too old to be employed” by some employers. She added that the provision
seeks to address the unacceptable development that has been occurring over the past few
years wherein some very able and qualified people are no longer considered for
employment because of their age, even while they are only in their late 20s or 30s. She
said while the bill does not mean to tackle senior citizen employment, it could be used
when a senior citizen is being discriminated against. She said that if a person is qualified,
age should not be used as a reason for disqualification.

Noting that some employers look for college graduates for jobs that do not require
a degree, Senator Sotto inquired on the possibility of also removing the requirement for
educational attainment so that the opportunity to be hired would become more
democratic.

Senator Cayetano (P) said that when she started drafting the bill and had the
opportunity to talk in various for a and to write about it, many other forms of
discrimination were brought to her attention, including gender discrimination, age, and
educational attainment, as mentioned by Senator Sotto. She said that as a business owner
herself, she takes pride in the fact that she does not look as much at the age and education
in filling up positions where a college degree is unnecessary. She said that what she looks
at are discipline, hard work, the right attitude and such virtues as honesty. She said that
educational attainment would only be specific to jobs like accountants where a college
degree with accounting background – not necessarily a CPA license – is required. She
added that depending on the level of management she does not even require her
managers to be college graduates but would prefer those who have been schooled or
trained specifically in management because a lot of management skills are acquired on
the job. She reiterated that while there are many forms of discrimination, the bill is
focused on age discrimination.

Asked whether educational attainment should be included in the bill, Senator

Cayetano (P) replied that educational attainment is already beyond the scope of the bill
and is no longer germane to the topic of age discrimination. She acknowledged that there
are other forms of discrimination that need to be addressed by the Body, but she pointed
out that expanding the bill to an anti-discrimination bill which will include all other forms
of discrimination was not the bill’s intent.

As to Senator Sotto’s suggestion to include the definition of “employee” under

Section 9(a) of the bill, all regular, project, casual or probationary employees, Senator
Cayetano (P) expressed willingness to accept the amendment at the proper time, as she
acknowledged that many of the rank-and-file employees, before they become regular, are
either probationary or contractual and, as such, should be given the opportunity to be
covered by the bill.

Adverting to the definition of “job applicant” in Section 4(c), Senator Sotto noted
that as written, it refers to a person who complied with the organization’s formal
recruitment practices. So as not to limit it to juridical entities, he proposed to rephrase the
definition to include “any person who applied for specific and vacant position for which
an employer is seeking candidates, met the predefined documented minimum
requirement related to specific open position applied for the position during the period
that the applicant flow log remained open and who complied with the hiring employer’s
formal recruitment practices.” Senator Cayetano (P) stated that, indeed, it was a better
definition.

On Section 8 (Prohibition of Age Discrimination), Senator Sotto pointed out that

paragraph a.2. prohibits requiring the declaration of age and birthday during the
application process. He asked whether the provision also includes casual question during
the interview and, if so, whether it would be possible to make it clear in the law that
asking casual question about age is a punishable act.

Senator Cayetano (P) replied that the Committee would be proposing

amendments to Section 8 (a)(2) as it was brought to her attention that checking on the age
should be a requirement. She said that there are other provision in the bill that would
ensure that even if the age of an applicant is disclosed, age would not be used to
discriminate against the person.
 At this point, Senate President Drilon inquired how the bill would prove the intent
of the employer that an applicant was not hired or prejudiced by reason of age, as he
stressed that the crux of the bill was that there should be no discrimination solely by
reason of age. Senator Cayetano (P) admitted that in a country like the Philippines where
the supply of labor is so high, it would be difficult to pinpoint guilt. She hoped that the
bill, when passed into law, would clarify that the practice of publishing the age
requirement, thereby hindering the applicant from the start to even go through the
application process, is prohibited. She said that clearly, when the employer checks on an
applicant’s age and after that the applicant does not get interviewed, then the employer
earns culpability.

Senate President Drilon said that while getting a copy of the publication of the age
requirement can be used as evidence against an employer, other unlawful acts relative to
age discrimination could not be as easily determined.

Senator Cayetano (P) said that a lot of young people have informed her about
employers who tell them to their face that the company does not hire people beyond a
particular age. She said that aside from such actual testimonies by applicants, the make-
up staff of an organization, or an employer’s office, could be used as a circumstantial
evidence, in addition to other pieces of evidence which would prove such violation. She
said that while it is not easy to prove age discrimination cases, prohibiting inclusion of
an age requirement in job vacancy publication is a good deterrent.

Senator Cayetano (P) disclosed that in her discussion with some HR managers, she
was informed that some companies have started revising their hiring policy because they
are starting to realize that is biased towards younger age.

Following up on the query of the Senate President Drilon, Senator Sotto inquired
how the law will work in real life, for instance, in the case of two applicants to a
hamburger server position and the employer hires the 25-year old over the 50-year old
applicant.

Senator Cayetano (P) said that all things being equal, with age as only basis left,
the 50-year old applicant has a standing in court. She admitted that this is not easy to
prove but hoped that passing the bill into law would set the standard on what the country
should follow. She expressed confidence that the measure is a step towards the right
direction.

Senator Sotto adverted to Section 9 (Exception) of the bill states: “Age is a bonafide
occupational qualification reasonably necessary in the normal operation of the particular
business or where the differentiation is based on reasonable factors other than age.” He
then asked who decides on the bonafide qualifications. In reply, Senator Cayetano (P)
said that in the formation of the IRR, the DOLE will be consulting with different
industries and from there, every industry will come up with their own set of guidelines
based on the recommendations. She stated that it is not possible to come up with just one
standard for the various industries because the circumstances and situations vary in very
industry, and that what may be valid distinction in a very labor-intensive type of work
may be very different or non-existent in a job that requires more of one’s intellectual
capacity. She said that such technical matters should be addressed by the DOLE after
consultation.

Senator Sotto said that the matter of bonafide occupational qualification should be
very clear in the IRR and better yet, should be included in the bill. Senator Cayetano (P)
said that firmer guidelines could be put in the IRR, with the help of DOLE and the Blas
Ople Center who expressed willingness to work on the matter on a tripartile level –
national government, employers, and employees at the technical level.

Asked whether airline companies would be prevented from employing younger

flight attendants who could better stand the rigors of regular flights and long hours,
Senator Cayetano (P) replied that there is nothing in the law that prevent an airline
company, for instance, hiring a young flight attendants. She revealed that the existing
practice is that flight attendants have a forced retirement at age 40 for both genders
although it is a women-dominated profession.

At this point, Senate President Drilon informed the Body that age 40 as a forced
retirement age for flight attendants has long been removed from the statute books. He
said that there are flight attendants beyond 40 years old who are still flying.
Senator Cayetano (P) replied that the retirement age of flight attendants depends on the
CBA in place at the time of the employee's entry in the organization. She said that the
retirement age for flight attendants used to be 55 for female and 60 for male; however,
the Court of Appeals modified the compulsory retirement age when it promulgated its
decision in CA-G.R. SP No. 1947, Philippine Airlines Inc. vs. Flight Attendants and
Stewards Association and the Department of Labor and Employment (PAL vs. FASAP
& DOLE) on June 28, 2013 - for those hired before November 22, 1966, the compulsory
age of retirement is 55 for female and 60 for male; those hired after November 22,
1996,45 for female and 45 for male; those hired after November 22, 121 2000, 40 for both
male and female; and those hired after July 16, 2007, 40 for both male and female. She
clarified that what was presented was only for PAL and that she was not aware of the
retirement age of other airlines.
 Asked by Senate President Drilon whether the practice of being separated from
service or retired at 40 years old for flight attendants would be rendered illegal if the
bill is passed into law, Senator Cayetano (P) replied in the affirmative, but she pointed
out that the law is not retroactive. She explained that the intention of the bill is to get rid
of such discriminatory practices but because of existing CBA and cases, she would have
to hold her opinion at the moment.

Senator Sotto said that there are jobs that are truly age-sensitive and the bill
should not remove the 40-year-old limit because as worded even those who are
applying at age 45 at the Philippine Airlines (PAL) should not be discriminated.

Asked what the retirement age should be, Senator Cayetano (P) said it would be
according to the regular retirement age as provided by law.

As regards the possibility of exempting from the measure certain jobs, Senator
Cayetano (P) said that it was actually the essence of Section 9a. As an advocate for
women's rights, she said that imposing an age requirement for flight attendants would
be tantamount to gender discrimination.

Senator Cayetano (P) stated that the general impression of flight attendants,
especially when the industry of flying was still new, was women who looked like
models. She cited a case study in the United States where the flight attendants were not
allowed to get married and were only hired for a very limited period of time. She said
that she would leave it to the experts to determine if the manual labor involved in the
job would prevent the flight attendants from doing their job after a certain age, but
definitely not immediately after 40 which is way too young.

Senator Sotto said that he would propose a way to be able to get a better
perspective of the particular provision as well as exceptions, adding that he is unaware
of the existence of other jobs that are age sensitive.

Asked if there are other jobs with age limitations, Senator Cayetano (P) replied
that those that have r 122 age limitations are the race jockeys, the miners, and even the
pilots, their jobs having to do with eyesight and strength. She clarified that she wanted
the provision to be settled in the Department of Labor and Employment level because of
the peculiar characteristic of each industry. She cited that even in U.S. military practices,
the women used to be barred from the frontline but it has since been changed in
recognition of the capability of women to do the same.
 Asked if the Committee considered the United States' Age Discrimination in
Employment Act of 1967 in the crafting of the bill, Senator Cayetano (P) said that the
Committee used a lot of its provisions as a model for the bill, and that in fact, the
provisions on age- discrimination are similarly worded.
At this point, Senate President Drilon asked about the retirement age if the hiring took
place at present. Senator Cayetano (P) replied that it is age 40 because the hiring was
done after July 16, 2007. Senate President Drilon opined that the court, in effect,
sustained the stipulation in the collective bargaining agreement which is applicable
only to PAL.
Citing as an example an airline company retirement plan for flight attendants at
age 45 and a retirement plan for an office employee at age 65, Senate President Drilon
asked if the measure, once enacted, would render the policy of the airline company void
and could subject the employer to criminal sanction. Senator Cayetano (P) replied in the
affirmative.

Senate President Drilon asked if the law would prohibit male flight attendants
who would want to be compulsorily retired at age 50 even if the measure set the
retirement age at 65. Senator Cayetano (P) replied that if it falls within the exceptions
provided for in Section 9, then there would be no violation. She stated that if there are
valid reasons to retire flight attendants at age 50, then they should be retired at that age.
Senator Sotto informed the Body that at EVA Air, the flight attendants kneel down
while serving food which an older flight attendants would have difficulty doing.
Senator Cayetano (P) said that if such practice is a requirement of the job and if the
employers consider it a valid reason, then it is an argument that the company can
invoke.

Senator Sotto said that he would propose amendments on the measure,

especially on the exceptions. Senator Cayetano (P) said that she would he happy to
accept the proposed amendments and that she would present the documents on
discriminatory practices in the case of the flight attendants.