RE: ENTITLEMENT TO HAZARD PAY A.M. No. 03-9-02-SC
OF SC MEDICAL AND DENTAL
LEONARDO DE CASTRO, and
November 27, 2008
R E S O L U T I ON
This administrative matter pertains to the latest of the spate of requests of some of the members of the Supreme Court Medical and Dental Services (SCMDS) Division in relation to the grant of hazard allowance.
Courts Resolution of
Administrative Circular No. 57-2004 (the subject Circular) initially classified SCMDS employees according to the level of exposure to health hazards, as follows: (a) physicians, dentists, nurses, medical technologists, nursing and dental aides, and physical therapists who render direct, actual and frequent medical services in the form of consultation, examination, treatment and ancillary care, were said to be subject to high-risk exposure; and (b) psychologists, pharmacists, optometrists, clerks, data encoders, utility workers, ambulance drivers, and administrative and technical support personnel, to low-risk exposure. Accordingly, employees exposed to high-risk hazards belonging to Salary Grade 19 and below, and those belonging to Salary Grade 20 and above, were respectively given 27% and 7% of their basic monthly salaries as hazard allowances; whereas employees open to low-risk hazards belonging to Salary Grade 20 and above, and Salary Grade 19 and below, were respectively given 5% and 25% of their basic monthly salaries as hazard allowances. This classification, however, was abolished when the Department of Health (DOH)after reviewing the corresponding job descriptions of the members of the SCMDS personnel and the nature of their exposure to hazardsdirected that they should all be entitled to a uniform hazard pay rate without regard for the nature of the risks and hazards to which they are exposed. The dual 25% and 5% hazard allowance rates for all the members of the SCMDS personnel were retained.
In their Letter dated 21 January 2005 addressed to then Chief Justice Hilario Davide, Jr., eleven of the SCMDS personnel concernedwho claim to be doctors with salary grades higher than 19 and who allegedly render front-line and hands-on services but receive less hazard allowance allocations than do those personnel who do not directly deliver patient carelamented that the classification and the rates of hazard allowance implemented by the subject Circular seemed to favor only those belonging to Salary Grade 19 and below, contrary to the very purpose of the grant which is to compensate health workers according to the degree of exposure to hazards regardless of rank or status. They believe that the grant must be based
not on the salary grade but rather on the degree of hazard to which they are actually exposed; thus, they asked for a reexamination of the subject Circular.
However, even before the request could
be acted upon by the Court, Secretary Francisco Duque III issued Administrative
Order (A.O.) No. 2006-0011
P4,989.75 without further increases. In view of this development, some of the
SCMDS personnel concerned,
in another Letter dated 19 December 2007 and addressed to Chief Justice Reynato
S. Puno, suggesting that the subject Circular be amended to conform to A.O. No.
2006-0011, and that they accordingly be paid hazard pay differentials accruing
by virtue thereof.
Senior Chief Staff Officer Dr. Prudencio Banzon, Jr. indorsed the letter to
Deputy Clerk of Court and Chief Administrative Officer Atty. Eden Candelaria
(Atty. Candelaria). On
In its Resolution
The OCAT posits that the subject Circular may not be amended in accordance with A.O. No. 2006-0011 and in the manner the personnel concerned desire because, first, the mechanics of payment established by the administrative order is of doubtful validity; and second, the said administrative order has not been duly published and hence not binding on the Court. It also points out that the administrative order does not conform to Section 21 of R.A. No. 7305 in which the rates of hazard pay are clearly based on salary grade.
The FMBO advances a contrary position. It maintains that the subject Circular may be amended according to the terms of A.O. No. 2006-0011 inasmuch as the latter could put to rest the objection of the personnel concerned to the allegedly unreasonable and unfair allocation of hazard pay. Additionally, it recommends that once the amendment is made, the hazard allowances due the SCMDS personnel be charged against the savings from the regular appropriations of the Court.
This Court has to deny the request because the subject Circular cannot be amended according to the mechanism of hazard pay allocation under AO No. 2006-0011 without denigrating established administrative law principles.
Essentially, hazard pay is the premium granted by law to health workers who, by the nature of their work, are constantly exposed to various risks to health and safety. Section 21 of R.A. No. 7305 provides:
SEC. 21. Hazard Allowance.Public health workers in hospitals, sanitaria, rural health units, main health centers, health infirmaries, barangay health stations, clinics and other health-related establishments located in difficult areas, strife-torn or embattled areas, distressed or isolated stations, prison camps, mental hospitals, radiation-exposed clinics, laboratories or disease-infested areas or in areas declared under state of calamity or emergency for the duration thereof which expose them to great danger, contagion, radiation, volcanic activity/eruption, occupational risks or perils to life as determined by the Secretary of Health or the Head of the unit with the approval of the Secretary of Health, shall be compensated hazard allowances equivalent to at least twenty-five percent (25%) of the monthly basic salary of health workers receiving salary grade 19 and below, and five percent (5%) for health workers with salary grade 20 and above.
The implementing rules of R.A. No. 7305 likewise stipulate the same rates of hazard pay. Rule 7.1.5 thereof states:
7.1.5 Rates of Hazard Pay
a. Public health workers shall be compensated hazard allowances equivalent to at least twenty-five percent (25%) of the monthly basic salary of health workers receiving salary grade 19 and below, and five percent (5%) for health workers with salary grade 20 and above. This may be granted on a monthly, quarterly or annual basis. x x x
In a language too plain to be mistaken, R.A. No. 7305 and its implementing rules mandate that the allocation and distribution of hazard allowances to public health workers within each of the two salary grade brackets at the respective rates of 25% and 5% be based on the salary grade to which the covered employees belong. These same rates have in fact been incorporated into the subject Circular to apply to all SCMDS personnel. The computation of the hazard allowance due should, in turn, be based on the corresponding basic salary attached to the position of the employee concerned.
To be sure, the law and the implementing rules obviously prescribe the minimum rates of hazard pay due all health workers in the government, as in fact this is evident in the self-explanatory phrase at least used in both the law and the rules. No compelling argument may thus be offered against the competence of the DOH to prescribe, by rules or orders, higher rates of hazard allowance, provided that the same fall within the limits of the law. As the lead agency in the implementation of the provisions of R.A. No. 7305, it has in fact been invested with such power by Section 35. Be that as it may, the question that arises is whether that power is broad enough to vest the DOH with authority to fix an exact amount of hazard pay accruing to public health workers with Salary Grade 20 and above, deviating from the 5% monthly salary benchmark prescribed by both the law and its implementing rules.
The DOH possesses no such power.
Fundamental is the precept in administrative law that the rule-making power delegated to an administrative agency is limited and defined by the statute conferring the power. For this reason, valid objections to the exercise of this power lie where it conflicts with the authority granted by the legislature.
A mere fleeting glance at A.O. No. 2006-0011 readily reveals that the DOH, in issuing the said administrative order, has exceeded its limited power of implementing the provisions of R.A. No. 7305. It undoubtedly sought to modify the rates of hazard pay and the mechanism for its allocation under both the law and the implementing rules by prescribing a uniform ratelet alone a fixed and exact amountof hazard allowance for government health workers occupying positions with salary grade 20 and above. The effect of this measure can hardly be downplayed especially in view of the unmistakable import of the law to establish a scalar allocation of hazard allowances among public health workers within each of the two salary grade brackets.
Section 19 of R.A. No. 7305 recognizes, for its own purposes, the applicability of the provisions of R.A. No. 6758 (The Salary Standardization Act of 1989) in the determination of the salary scale of all covered public health workers. Telling is this reference to the scalar schedule of salaries when viewed in light of the fact that factoring in the salaries of individual employees and the applicable uniform rate of hazard allowance would yield different results which, when charted against each other, would also bear the scalar schedule intended by the law.
The object, in other words, of both the law and its implementing rules in providing a uniform rate for each of the two groups of public health workers is to establish a scalar allocation of the cash equivalents of the hazard allowance within each of the two groups. A scalar schedule of hazard pay allocation within the Salary Grade 20 and higher bracket can indeed be achieved only by multiplying the basic monthly salary of the covered employees by a constant factor that is 25% as the fixed legal rate. Even without an express reference to the scalar schedule of salaries under R.A. No. 6758, it can nevertheless be inferred that R.A. No. 7305, by mandating a fixed rate of hazard allowance for each of the two groups of health workers, intends to achieve the same effect.
Hence, it can only be surmised that the issuance of AO No. 2006-0011 is an attempt to amend the rates of hazard allowance and the mechanism for its allocation as provided for in R.A. No. 7305 and the implementing rules because it has the effect of obliterating the intended discrepancy in the cash equivalents of the hazard allowance for employees falling within the bracket of Salary Grade 20 and above. Without unnecessarily belaboring this point, the Court finds that the administrative order violates the established principle that administrative issuances cannot amend an act of Congress. It is void on its face, but only insofar as it prescribes a predetermined exact amount in cash of the hazard allowance for public health workers with Salary Grade 20 and above.
Indeed, when an administrative agency enters into the exercise of the specific power of implementing a statute, it is bound by what is provided for in the same legislative enactment inasmuch as its rule-making power is a delegated legislative power which may not be used either to abridge the authority given by the Congress or the Constitution or to enlarge the power beyond the scope intended. The power may not be validly extended by implication beyond what may be necessary for its just and reasonable execution. In other words, the function of promulgating rules and regulations may be legitimately exercised only for the purpose of carrying out the provisions of a law, inasmuch as the power is confined to implementing the law or putting it into effect. Therefore, such rules and regulations must not be inconsistent with the provisions of existing laws, particularly the statute being administered and implemented by the agency concerned, that is to say, the statute to which the issuance relates. Constitutional and statutory provisions control with respect to what rules and regulations may be promulgated by such a body, as well as with respect to what fields are subject to regulation by it.
It must be stressed that the DOH issued the rules and regulations implementing the provisions of R.A. 7305 pursuant to the authority expressly delegated by Congress. Hence, the DOH, as the delegate administrative agency, cannot contravene the law from which its rule-making authority has emanated. As the clich goes, the spring cannot rise higher than its source. In this regard, Fisher observes:
x x x The often conflicting and ambiguous passages within a law must be interpreted by executive officials to construct the purpose and intent of Congress. As important as intent is the extent to which a law is carried out. President Taft once remarked, Let anyone make the laws of the country, if I can construe them.
To carry out the laws, administrators issue rules and regulations of their own. The courts long ago appreciated this need. Rules and regulations must be received as the acts of the executive, and as such, be binding upon all within the sphere of his legal and constitutional authority. Current law authorizes the head of an executive department or military department to prescribe regulations for the government of his department, the conduct of its employees, the distribution and performance of its business, and the custody, use, and preservation of its records, papers, and property.
These duties, primarily of a housekeeping nature, relate only distantly to the citizenry. Many regulations, however, bear directly on the public. It is here that administrative legislation must be restricted in its scope and application. Regulations are not supposed to be a substitute for the general policymaking that Congress enacts in the form of a public law. Although administrative regulations are entitled to respect, the authority to prescribe rules and regulations is not an independent source of power to make laws. Agency rulemaking must rest on authority granted directly or indirectly by Congress. (Emphasis supplied)
Moreover, although an administrative agency is authorized to exercise its discretion in the exercise of its power of subordinate legislation, nevertheless, no similar authority exists to validate an arbitrary or capricious enactment of rules and regulations. Rules which have the effect of extending or conflicting with the authority-granting statute do not represent a valid exercise of rule-making power but constitute an attempt by the agency to legislate. In such a situation, it is said that the issuance becomes void not only for being ultra vires but also for being unreasonable. The law therefore prevails over the administrative issuance.
The Court takes notice of the fact that the enactment of R.A. No. 7305 has touched off, within the public health service sector, a surge of negative sentiments regarding the alleged inequitableness and unfairness of the lawparticularly the provisions thereof relating to the allocation of hazard allowances. Certainly, the DOH can be reasonably expected to respond to the well-meaning clamor of the public health workers; but while indeed the DOH is entitled to a certain amount of hegemony over the statutes which it is tasked to administer, it nevertheless may not go far beyond the letter of the law even if it does perceive that it is acting in the furtherance of the spirit of the law.
A final note. Just as the power of the DOH to issue rules and regulations is confined to the clear letter of the law, the Courts hands are likewise tied to interpreting and applying the law. In other words, the Court cannot infuse vitality, let alone a semblance of validity, to an issuance which on its face is inconsistent with the law and therefore void, by adopting its terms and in effect implementing the samelest we otherwise validate an undue exercise by the DOH of its delegated and limited power of implementation. Suffice it to say that questions relative to the seeming unfairness and inequitableness of the law are matters that lie well within the legitimate powers of Congress and are well beyond the competence of the Court to address.
In light of the foregoing, there appears to be no more necessity to discuss the issue of the non-publication of A.O. No. 2006-0011.
WHEREFORE, the request of the Supreme Court Medical and Dental Services Division to amend Administrative Circular (A.C.) No. 57-2004 according to the provisions of Department of Health Administrative Order No. 2006-0011 is DENIED. The Court DIRECTS that the payment of hazard allowance in favor of the personnel concerned be made in accordance with A.C. No. 57-2004.
REYNATO S. PUNO
LEONARDO A. QUISUMBING
ANTONIO T. CARPIO
MA. ALICIA AUSTRIA-MARTINEZ
RENATO C. CORONA
CONCHITA CARPIO MORALES
ADOLFO S. AZCUNA
MINITA V. CHICO-NAZARIO
PRESBITERO J. VELASCO, JR.
ANTONIO EDUARDO B. NACHURA
RUBEN T. REYES
TERESITA J. LEONARDO DE CASTRO
ARTURO D. BRION
law was approved on
Circular, entitled Prescribing the
Guidelines for the Grant of Hazard Allowance to the Personnel of the Medical
and Dental Services (SCMDS), was issued on
Supreme Court Administrative Circular No. 57-2004.
SCMDS employees, whether permanent, temporary, casual, or co-terminus, including those assigned or detailed at the SC Clinic who render actual medical, dental and/or other health-related services, as well as those who provide administrative and technical support are entitled to receive hazard allowance.
For the purpose of these guidelines, SCMDS personnel are classified as follows:
1. Those who, by the nature of their functions, are subject to high risk exposure being directly and frequently exposed to communicable, contagious, infectious and biological hazards. These are the physicians, dentists, nurses, medical technologists, nursing aides, dental aides and physical therapists who render direct, actual, and frequent medical services in the form of consultations, physical examinations, treatment and ancillary care; and
2. Those who are subject to low risk exposure in view of their indirect and/or infrequent exposure to patients with communicable and infectious ailments in the Supreme Court clinics. These personnel include psychologists, pharmacists, optometrists, who render health-related services as well as clerks, data encoders, utility workers, ambulance drivers and all those who, regardless of their official job titles, provide administrative and technical support to the SCMDS.
A.C. No. 57-2004.
III. Rates of Payment:
x x x
1. SCMDS personnel exposed to high-risk hazard with Salary Grades 19 and below shall receive hazard allowance equivalent to twenty-seven percent (27%) of their monthly basic salary. Those with Salary Grades 20 and above shall receive hazard allowance equivalent to seven percent (7%) of their basic salary.
2. SCMDS personnel exposed to low risk hazard with Salary Grades 19 and below shall receive hazard allowance equivalent to twenty five percent (25%) of their monthly basic salary. Those with Salary Grades 20 and above shall receive hazard allowance equivalent to five percent (5%) of their basic salary.
Memorandum of Undersecretary Milagros L. Fernandez, dated
Madonna Catherine G. Dimaisip who as Dentist III occupies a position belonging
to Salary Grade 19. Geslaine C. Juan and
Nora T. Juat are, respectively, supervising judicial staff officer and chief
judicial staff officer. See Hazard Pay
Payroll for 15 November-
of Health A.O. No. 2006-0011 carries the title, Amended Guidelines on the Payment of Hazard Pay to Public Health
Workers (PHWs) UNDER R.A. 7305.
It states that its effective date is
P. Banzon, Jr., M.D., Ramon S. Armedilla, Elmer R. Ruez, M.D., Consuelo M.
Bernal, M.D., Remedios L. Patricio, M.D., Gislaine C. Juan, M.D., Celeste Aida
P. Vista, M.D., Mary Ann D. Barrientos and Angel S. Ambata, D.M.D..
Rollo, pp. 199, 201.
Rule III.18 of the Implementing Rules of R.A. No. 7305 defines hazard as the risk to the health and safety of public health workers.
SEC. 35. Rules and Regulations.The Secretary of Health after consultation with appropriate agencies of the Government as well as professional and health workers organizations or unions, shall formulate and prepare the necessary rules and regulations to implement the provisions of this Act.
SEC. 19. Salaries.In the determination of the salary scale of public health workers, the provisions of Republic Act No. 6758 shall govern, except that the benchmark for Rural Health Physicians shall be upgraded to Grade 24.
Entitled, An Act Prescribing a Revised Compensation and Position Classification System in the Government and For Other Purposes.
Melendres, Jr. v. Commission on Elections, 377 Phil. 275, 291 (1999); Blaquera v. Alcala, 356 Phil. 678 (1998).
United BF Homeowners Association v. BF Homes, Inc., 369 Phil. 568, 579 (1999); Nasipit Lumber Co., Inc. v. National Wages and Productivity Commission, 352 Phil. 503 (1998).
Metropolitan Bank and Trust Co., Inc. v. National Wages and Productivity Commission, G.R. No. 144322, 6 February 2007, 514 SCRA 346, 364-365.
United BF Homeowners Association v. BF Homes, Inc., 369 Phil. 568, 580 (1999); Conte v. Commission on Audit, 332 Phil. 21, 36 91996); Lina, Jr. v. Carino, G.R. No. 100127, 23 April 1993, 221 SCRA 515, 531.
GURO Party List, et al. v. Hon. Cesar V. Purisima, et al., G.R. No. 166715,
[T]he power to formulate or adopt implementing rulesis a legislative function traditionally delegated by Congress to the executive branch x x x.
This delegable rule-making power may be classified into two
types: (1) rules intended to regulate the internal management of the agencies
themselves; and (2) rules supplementing a statute and intended to affect
persons and entities outside the government made subject to agency regulation.
Either case, the power of the executive branch to promulgate such rules springs
from legislative delegation. In the
L. Fisher. Constitutional Conflicts Between Congress and the President. (4th ed., 1997), p. 90, citing Wayman v. Southhard, 10 Wheat. 1, 46 (1825).
Thompson v. Consolidated Gas Utilities
United BF Homeowners Association v. BF Homes, Inc., 369 Phil. 568, supra note 32.
Metropolitan Bank and Trust Co., Inc. v. National Wages and Productivity Commission, G.R. No. 144322, 6 February 2007, 514 SCRA 346, 365, citing Executive Secretary v. Southwing Heavy Industries, Inc., G.R. Nos. 164171, 164172 and 168741, 20 February 2006, 482 SCRA 673, 699 (2006).
Commissioner of Internal Revenue v. Bicolandia Drug Corp., G.R. No. 148083, 21 July 2006, 496 SCRA 176, 188; Department of Agrarian Reform v. Sutton, G.R. No. 162070, 19 October 2005, 473 SCRA 392, 401-402.