WHEN Congress passed Republic Act 10911, also known as the anti-age discrimination

law, it wanted to prohibit discrimination against any individual in employment on account of

age.

Through RA 10911, the State declared its firm intent to promote equal opportunities in

employment for everyone. Pursuant to this, the State declared that it shall be its policy to: a)

promote employment of individuals on the basis of their abilities, knowledge, skills and

qualifications rather than their age; b) prohibit arbitrary age limitations in employment; and c)

promote the right of all employees and workers, regardless of age, to be treated equally in terms

of compensation, benefits, promotion, training and other employment opportunities.

Specifically, Section 5(7) of the law prohibits the imposition of an early retirement on the basis

of age.

There are exceptions provided for in the law, as enumerated in Section 6. Employers are allowed

to set age limitations in employment if “a) 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; b) the intent is to observe the terms of a bona fide

seniority system that is not intended to evade the purpose of this Act; c) the intent is to observe

the terms of a bona fide employee retirement or a voluntary early retirement plan consistent with

the purpose of this Act: provided, that such retirement or voluntary retirement plan is in

accordance with the Labor Code, as amended, and other related laws; or d) the action is duly

certified by the Secretary of Labor and Employment in accordance with the purpose of this Act.”
Unfortunately, the implementation of the law was complicated with the insertion of a new

provision in its implementing rules and regulations (IRR) issued by the Department of Labor and

Employment (DOLE) through Department Order 170 Series of 2017. Section 9 of the IRR states,

that all existing individual and/or collective agreements, employment contracts and company

policies prior to the effectivity of the law and the IRR shall be respected as agreed upon by the

parties.

Section 9 of the IRR is not a part of the law and is therefore a new provision. An IRR cannot

contain provisions that are not specified in the law, and which has the effect of impairing the

implementation of some of the stated provisions in it. This also renders mere contracts and

company policies to be enough to thwart the intent of the law. It makes the law useless since it

privileges existing company policies which may in fact be violating the real intent of the law.

In fact, Section 9 of the IRR may even be patently unconstitutional in that it could violate the

equal protection clause. It places at a disadvantage the employees hired before the

implementation of the law covered by existing contracts, in relation to the new employees hired

after the implementation of the law who do not have existing contracts and for which the law

will have to apply. While it may be defensible that Section 9 is in line with the constitutional

prohibition on the non-impairment of contracts, this then becomes a justiciable issue since there

is a conflict between two constitutional provisions. Employees can however bank on the fact that

jurisprudence has tended to resolve conflicts of provisions in favor of labor.

In fact, there is a prevailing jurisprudence on the legal meaning of retirement. In G.R. 188154

(Cercado v. Uniprom, October 13, 2010), the court clearly said that:
“We reiterate the well-established meaning of retirement in this jurisdiction: Retirement is the

result of a bilateral act of the parties, a voluntary agreement between the employer and the

employee whereby the latter, after reaching a certain age, agrees to sever his or her employment

with the former. Acceptance by the employees of an early retirement age option must be explicit,

voluntary, free, and uncompelled. While an employer may unilaterally retire an employee earlier

than the legally permissible ages under the Labor Code, this prerogative must be exercised

pursuant to a mutually instituted early retirement plan. In other words, only the implementation

and execution of the option may be unilateral, but not the adoption and institution of the

retirement plan containing such option. For the option to be valid, the retirement plan containing

it must be voluntarily assented to by the employees or at least by a majority of them through a

bargaining representative.”

Thus, Section 9 of the IRR should be read in conjunction with this ruling of the Court. Indeed, a

retirement policy that is agreed upon and is now embodied through an existing collective

bargaining agreement (CBA) or some equivalent employee manual crafted through a

consultative process between parties should be respected, but only until it expires. However, at

the time when fresh negotiations are being conducted between parties, then it becomes

imperative that the retirement plan should now be a product of an agreement between employer

and employee and must be in accordance with the anti-age discrimination law. While existing

retirement policies embodied in CBAs or employee manuals could not be disturbed, the crafting

of new agreements after the expiration of such CBAs or manuals, including faculty manuals,

should now be done within the ambit of RA 10911.

It is therefore patently problematic that some private companies, including some private

higher education institutions (HEIs), still insist on imposing on their employees and faculty a
mandatory early retirement age of 60. Some are even bold to hold hostage their employees who,

conscious of the anti-age discrimination law, now refuse to sign off on their new CBAs or

faculty manuals, by withholding the implementation of new benefits. Others use as an argument

for non-compliance the lack of retirement funds, even if this is not part of the enumerated

exceptions.

The law has bestowed on employees a right not to be discriminated against on the basis of their

age. It is particularly saddening when private universities whose mission is to educate their

students on human rights, more so if they are Catholic universities which preach the virtue of

charity, are the very first to deny their faculty employees a right already provided for by law.