This summary of age discrimination law in the Philippines has been prepared by Castillo Laman Tan Pantaleon & San Jose: www.cltpsj.com.ph.

Overview

Republic Act No. 10911, otherwise known as the “Anti-Age Discrimination in Employment Act” (“Act”), was signed into law to promote equal opportunities in employment for everyone. The Act encourages employers to hire individuals on the basis of their abilities, knowledge, skills, and qualifications, rather than their age. It prohibits arbitrary age limitations in employment and advances the rights of all employees and workers, regardless of age, to be treated equally in terms of compensation, benefits, promotion, training, and other employment opportunities.[1] The Philippine Department of Labor and Employment (“DOLE”) issued Department Order No. 170, Series of 2017, establishing the implementing rules and regulations (“Rules”) of the Act.

Who’s covered?

The provisions of the Act apply to the following:

1.      All employers, either natural or juridical, employing the services of an employee or worker and shall include the government and all its branches, subdivisions and instrumentalities, all government-owned and controlled corporations, and government financial institutions, as well as non-profit private institutions or organizations;[2]

 

2.     Publishers, which include any person or juridical entity engaged in the printing of information on paper and its distribution, buying or securing airtime or space on television, radio or the internet, and other similar media;[3]

 

3.     Labor contractors or subcontractors, natural or juridical or agent thereof, who regularly undertakes, with or without compensation, the procurement of employees or workers for an employer, including private placement agencies;[4] and

 

4.     Labor organizations, whether or not registered, including any union or association of employees or workers which exists in whole or in part for the purpose of collective bargaining or for dealing with employers concerning term and conditions of employment.[5]

What’S pROHIBITED

The Act declares as unlawful for an employer to:

 

1.     print or publish, or cause to be printed or published, in any form of media, including the internet, any notice of advertisement relating to employment suggesting preferences, limitations, specifications, and discrimination based on age;

2.     require the declaration of age or birth date during the application process;

3.     decline any employment application because of the individual's age;

4.     discriminate against an individual in terms of compensation, terms and conditions or privileges of employment on account of such individual's age;

5.     deny any employee's or worker's promotion or opportunity for training because of age;

6.     forcibly lay off an employee or worker because of old age; or

7.     impose early retirement on the basis of such employee's or worker's age.[6]

Similarly, the Act declares as unlawful for a:

·        labour contractor or subcontractor to refuse to refer for employment or otherwise discriminate against any individual because of such person’s age;[7]

·        labor organisation to: [i] deny membership to any individual on the basis of age; [ii] exclude from its membership any individual because of such individual’s age; or [iii] cause or attempt to cause an employer to discriminate against an individual in violation of the Act;[8] or

·        publisher to print or publish any notice of advertisement relating to employment suggesting preferences, limitations, specifications, and discrimination based on age.[9]

what enforcement/remedies exist?

An employee or a prospective employee who claims to have been discriminated on the basis of age may bring a suit against his/her employer and invoke the Act. Any violation of the Act shall be punished with a fine of not less than fifty thousand pesos (Php 50,000.00) but not more than five hundred thousand pesos (Php 500,000.00), or imprisonment of not less than three (3) months but not more than two (2) years, or both, at the discretion of the court. If the offense is committed by a corporation, trust, firm, partnership or association or other entity, the penalty shall be imposed upon the guilty officer or officers of such corporation, trust, firm, partnership or association or entity.[10]

 

In addition, the Act mandates the DOLE to: (a) conduct studies and researches on minimizing impediments to the employment of older persons, and furnish such information to employers, labor groups, and the general public; and (b) promote programs, in coordination with the public and private agencies, that will further enhance the knowledge and skills of every individual regardless of age.[11]

exceptions

While the Act may appear to be too restrictive, it still admits of several exceptions. As a rule, it is not unlawful for a covered person or entity to set an age limitation in employment if:

 

·        age is a bona fide occupational qualification reasonably necessary in the normal operation of a particular business or where the differentiation is based on reasonable factors other than age;

·        the intent is to observe the terms of a bona fide seniority system that is not intended to evade the purpose of the Act:

·        the intent is to observe the terms of a bona fide employee retirement or a voluntary early retirement plan consistent with the purpose of the Act; Provided, that such retirement plan is in accordance with the Labor Code of the Philippines (“Labor Code”) and other related laws; and

·        the action is duly certified by the Secretary of the DOLE after consultation with the stakeholders in accordance with the purpose of the Act and the Rules.[12]

retirement ages

Under the Labor Code and other related laws, any employee may retire upon reaching the retirement age established in the collective bargaining agreement (“CBA”) or other applicable employment contract. In cases where there is no retirement plan or agreement providing for retirement benefits of employees in an establishment, an employee may retire and shall be entitled to retirement pay upon reaching the age of sixty (60) years old, but not exceeding sixty-five (65) years, which is the compulsory retirement age, provided that he/she has served at least five (5) years in the said establishment.

 

However, retail, service and agricultural establishments or operations employing not more than ten (10) employees or workers are exempted to comply with the foregoing. In addition, underground mining employees may already retire and receive the appropriate retirement benefits upon reaching the age of fifty (50) years or more, but not beyond sixty (60) years which is the compulsory retirement age for the said kind of employee, and who has served at least five (5) years as such kind of employee.[13]

how common are claims

Claims relating to discrimination in the application process are rare in the Philippines prior to the enactment of the Act in view of the prevailing rule that an employer is free to regulate, according to his discretion and best business judgment, all aspects of employment, “from hiring to firing,” except in cases of unlawful discrimination or those which may be provided by law.[14]

 

Claims relating to discrimination during employment are more common. Discrimination during employment usually leads to cases alleging constructive dismissal. Constructive dismissal is a cessation of work because continued employment is rendered impossible, unreasonable or unlikely; when there is a demotion in rank or diminution in pay or both; or when a clear discrimination, insensibility, or disdain by an employer becomes unbearable to the employee.[15] In deciding these cases, the courts will usually apply the test of whether a reasonable person in the employee’s position would have felt compelled to give up his/her employment/position under the alleged circumstances. 

iNTERESTING CASES

While the Act has been in place since 2016, the Philippine Supreme Court (“Court”) has not yet had the opportunity to decide on a case invoking the same.

 

Albeit not controlling, in a 2023 case decided by the Court, a separate concurring opinion stated that a stipulation in the CBA which imposes a compulsory retirement age at 55 years old for female cabin attendants should be declared void for being contrary to the Act.

The opinion further states that, while the Act admits certain exceptions including if the age is a bona fide occupational qualification, the employer in this case failed to prove the existence of any reasonable business necessity that would trigger the application of the exception.

The opinion ratiocinated that “[w]hile it is true that aging generally entails the slowing down of all bodily functions, there is no reasonable connection to one’s age and his or her sex vis-à-vis capacity to perform his or her duties as flight attendant. To be sure, both female and male cabin attendants are exposed to same tasks, work demands, stress, and dangers.” [16]

 

[1] The Act, Section 2 and Rules, Section 1.

[2] Rules, Sections 3 and 2(b).

[3] Id., Section 2(g).

[4] Id., Section 2(d).

[5] Id., Section 2(e).

[6] Id., Section 4(a).

[7] Id., Section 4(b).

[8] Id., Section 4(c).

[9] Id., Section 4(d).

[10] Id., Section 8.

[11] Id., Section 7.

[12] Id., Section 5.

[13] Labor Code, Article 302.

[14] Philippine Telegraph and Telephone Co. v. National Labor Relations Commission, 272 SCRA 596 (1997).

[15] Galang v. Malasugui, 683 Phil. 590 (2012).

[16] Halagueña v. Philippine Airlines, Inc., G.R. No. 243259 (2023).