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In brief

Recent developments

On 11 September 2020, President Rodrigo Duterte signed into law Republic Act No. 11494, otherwise known as the Bayanihan to Recover as One Act (Bayanihan 2), which details the measures to be implemented by the Philippine government to stimulate and accelerate the recovery of the Philippine economy from the adverse impact brought about the by the Coronavirus 2019 (COVID-19) pandemic.

The Bayanihan 2 took effect on 15 September 2020.


What the law says

The Bayanihan 2 authorizes the President to exercise powers that are necessary to implement measures and interventions to respond to the COVID 19 pandemic and to support and encourage business continuity and the resumption of economic activity, including, among others:

a.    Extend financial aid and loan subsidies, and require concessions on rent and utility payments

  • Provide subsidies to low income households, displaced workers, and access to livelihood assistance, skills training and programs, and loans assistance to repatriated and returning overseas Filipino workers;
  • Ensure the availability of credit to the productive sectors of the economy through lowering of effective lending rates of interest and reserve requirements of lending institutions;
  • Provide a minimum 30-day grace period on residential rents and commercial rents of lessees not permitted to work and medium, small and micro enterprises (MSMEs) and cooperatives ordered to not operate during the community quarantine, without incurring interests, penalties, fees, and other charges. Any increase in rent during the same period shall be prohibited;
  • Direct all banks, quasi-banks, financing companies, lending companies, and other financial institutions, including the Government Service Insurance System, Social Security System, and Pag-Ibig Fund, to implement a one-time 60-day grace period for the payment of all loans (e.g. salary, personal, housing, commercial, including credit card payments) falling due on or before 31 December 2020, without incurring interest on interests, penalties, fees, or other charges. Parties may mutually agree to a grace period longer than 60 days. Banks and non-bank financial institutions that agree to further loan extensions or restructuring pursuant to the Bayanihan 2 shall be entitled to regulatory relief, as may be determined by the Banko Sentral ng Pilipinas (BSP);
  • Direct all utility companies providing electricity, water, telecommunications, and other similar utilities to implement a minimum 30-day grace period for the payment of utilities falling due during the period of the community quarantine;
  • Provision of loan interest rate subsidies for learning institutions, on condition on that these entities (i) do not implement an increase in tuition and other fees for the next school/ academic year, and (ii) private schools, colleges and universities receiving grants will not retrench their employees for a period of nine months from receipt of grant;
  • Implement a program which would fast track the approval of all pending and new applications for housing loans, permits and licenses by simplifying the requirements and procedure; and
  • Direct the Department of Trade and Industry (DTI) to accelerate and undertake massive promotion of online commerce and offer technical and financial assistance through government financial institutions to those engaged in e-commerce, such as those involved in internet retail, digital financial services, digital media, and ride hailing.

b.    Grant regulatory relief to jumpstart and fast-track economic activity

  • Undertake the procurement of certain goods1 and services needed for the government’s COVID-19 response and social amelioration programs, in the most expeditious manner, without public bidding and as exemptions from the requirements of the Government Procurement Reform Act;
  • Move statutory deadlines and timelines for the filing and submission of any document, the payment of taxes, fees, and other charges required by law, and the grant of any benefit;
  • Undertake measures in partnership with internet and communication service providers in the acceleration of the deployment of critical Information and Communications Technology (ICT) infrastructure, particularly cell towers, equipment, software and wireless technologies, which shall include:
    • Except for permits required by the National Building Code, and the height clearance permit from the Civil Aviation Authority of the Philippines, the requirement to secure any other national and local permits and clearances for the construction of telecommunications and internet infrastructure, shall be suspended for a period of three years from the effectivity of Bayanihan 2.
    • All pending and new applications for construction of cell sites, cell towers, and other transmission or similar telecommunications and internet structure and facilities shall be acted upon within seven working days from the date the application was received. Applications not acted upon within the given period shall be deemed approved.
    • Only the Supreme Court can issue temporary restraining orders (TRO) and injunctions against the construction of telecommunications infrastructure, including cell sites and cell towers.
  • Encourage the BSP and Securities and Exchange Commission (SEC) to adopt measures, including the relaxation of regulatory and statutory restrictions and requirements for a period of not more than one year, to encourage the banking industry and other financial institutions to extend loans and other financial accommodations;
  • Direct all government agencies and local government units to act on all pending and new applications for permits, licenses, clearances and authorizations, except those involving administrative and enforcement investigations, within a non-extendible seven days;
  • Mergers and acquisitions with transaction values below Php 50 Billion and which are entered into within two years from effectivity of the law, shall be (i) exempt from compulsory notification under the Philippine Competition Act, and (ii) motu proprio review by the Philippine Competition Commission for a period of 1 year from effectivity of the law;
  • Expediting of infrastructure programs and projects, particularly the flagship projects identified by the government, by (i) waiving all permits and licenses, including local government permits, for flagship projects for a period of one year, except (ii) requirements relating to environmental laws, health and occupational safety, which must be processed within seven working days;
  • Permits, licenses, certifications and authorizations by the national government, except those relating to taxes, duties, border control and environmental laws, may be waived for private projects that are nationally significant or those with high economic return or high employment potential, as determined by a committee comprised of the Secretaries of the DTI, Department of Finance and Department of Natural Resources. Only the Supreme Court can issue TROs and injunctions against the actions of this committee, as well as the completion or operation of projects granted regulatory relief as identified by the committee; and
  • Directing the SEC and other regulatory agencies to desist from imposing fines and other monetary penalties for non-filing, late filing, failure to comply with compulsory notification and other reportorial requirements relating to business activities and transaction that promote continuity and capacity-building in all sectors of the economy during the community quarantine.

c.    Give tax breaks and exemptions on certain activities and industries

  • Liberalize the grant of incentives for the manufacturing or importation of critical equipment or supplies, including healthcare equipment and supplies, provided that exemption from import duties, taxes, and other fees for the manufacture and importation of such goods and equipment shall be determined by the Bureau of Customs and the Bureau of Internal Revenue;
  • Suspend, reduce or waive, at the discretion of the President and upon recommendation of the DTI and the Department of Interior and Local Government, the imposition of amusement taxes and other fees, for a period of six months;
  • Exemption of personal computers, laptops, tablets and other similar equipment donated for distribution to public schools, state universities and colleges, and vocational institutions, from import duties and taxes, including donor’s tax;
  • Net operating loss of businesses for taxable years 2020 and 2021 shall be carried over as a deduction from gross income for the next five consecutive taxable years immediately following the year of such loss;
  • Exclusion from gross income and exemption from tax of the retirement benefits received by officials and employees of private firms from 05 June 2020 until 31 December 2020; and
  • Repeal of the Section 127 (B) of the National Internal Revenue Code, as amended, on the tax on the sale, barter or exchange of shares of stock listed or traded sold or exchanged through initial public offering.

d.    Healthcare and other sectoral measures to respond to the COVID-19 pandemic

  • Expedite and streamline the accreditation of testing kits, facilitate prompt testing, and compulsory and immediate isolation and treatment of COVID-19 patients, with the cost of treatment to be covered under the National Health Insurance Program of the Philippine Health Insurance Corporation;
  • Adopt a protocol on the conduct of viral testing and other COVID-19 testing kits recommended by the Health Technology Assessment Council (HTAC);
  • Continuous delivery of immunization program against vaccine-preventable communicable diseases, especially for children;
  • Waive the requirement for a phase IV clinical trial for COVID 19 drugs and vaccines, subject to the recommendation or approval of internationally recognized health agencies and minimum standards determined by the HTAC and the Food and Drug Administration;
  • Enforce measures to protect people from hoarding, profiteering, manipulating prices, or other practices affecting the supply, distribution and movement of food, clothing, hygiene and sanitation products, medicine and medical supplies, fuel, fertilizers, chemicals, building materials, and equipment required in agriculture, industry and other essential services, and other articles of prime necessity, whether imported or locally produced;
  • Ensure the availability of essential goods, such as healthcare equipment and supplies, by adopting measures to facilitate and minimize disruption to the supply chain. The DTI may suspend the export requirement for export-oriented enterprises that produce essential goods and require them to supply locally;
  • Require businesses to prioritize and accept contracts, subject to fair and reasonable terms, for materials and services necessary to promote the declared national policy during the COVID-19 crisis;
  • Regulate the operation of all sectors of transportation through land, sea, or air, whether private or public; and
  • Direct the operation of any privately-owned hospitals and medical and health facilities, passenger vessels and other establishments, to house health workers, serve as quarantine areas, medical relief and aid distribution centers, or other temporary medical facilities.

Penalties for Acts of Discrimination

In addition to acts and omissions already penalized by existing law, any person found to have committed any act of discrimination against (i) persons declared confirmed, suspected, probable, exposed or recovered from COVID-19 virus, (ii) returning overseas Filipino workers, (iii) health workers and other service workers, and (iv) indigents, shall be penalized with imprisonment of six months and a fine of PhP100,000.00. Acts of discrimination can be any act or series of acts which result in “unjust distinction, exclusion, restriction, physical, psychological harm or suffering, intimidation, harassment, damage to property, public ridicule or humiliation, verbal abuse, arbitrary ejectment from dwelling, or unlawful deprivation of liberty”.

Actions to consider

Businesses are encouraged to understand and consider how measures in Bayanihan 2 can aid them to restart and recover from the effects of the community quarantine and the COVID-19 pandemic, and identify areas of opportunity that are in line with the sectors and activities that are promoted and supported under the law.

Businesses in key industries must also ensure that their policies, practices and businesses adhere to and comply with the law, especially considering the broad range of acts that may be considered discriminatory and which may result to liability and penalties.

Quisumbing Torres will provide updates on the implementation of the Bayanihan 2, including supplemental alerts with respect to specific measures for key industries and activities under the law.


1 The “goods” shall include: PPE such as gloves, gowns, masks, goggles, and face shields; surgical equipment and supplies; laboratory equipment and its reagents; medical equipment and devices; support and maintenance for laboratory and medical equipment, surgical equipment and supplies; medical supplies, tools and consumable such as alcohol, sanitizers, tissue, thermometers, hand soap, detergent, sodium hypochlorite, cleaning materials, povidone iodine, common medicines (e.g. paracetamol tablet and suspension, mefanamic acid, vitamins tablet and suspension, hyoscine tablet and suspension, oral rehydration solution, and cetirizine tablet and suspension); testing kits, and such other supplies or equipment as may be determined by the DOH and other relevant government agencies.

Author

Maria Christina Macasaet-Acaban is a partner, and the head of the Corporate & Commercial Practice Group, the Healthcare Industry Group, and the Competition Focus Group, in Quisumbing Torres, a member firm of Baker & McKenzie International. She is a member of Baker & McKenzie International's Asia Pacific Healthcare Steering Committee, and the Asia Pacific Competition Steering Committee. She has 19 years of experience advising and representing multinational corporations on domestic and cross-border transactions.

Author

Dennis Quintero is a partner in the Corporate & Commercial Practice Group of Quisumbing Torres. He heads the Firm's Energy, Mining & Infrastructure Industry Group and Insurance Focus Group. He is cited as a Market Leader by the IFLR 1000: Financial and Corporate Guide 2018. He is consistently ranked as a leading individual in Corporate and M&A by The Legal 500 Asia Pacific and as a leading individual in Projects, Infrastructure, and Energy/Natural Resources and Mining by the leading international legal directories (i.e., Chambers Global and Asia Pacific, IFLR1000/The Petroleum Economist, and The Legal 500 Asia Pacific). Dennis is also a Certified Public Accountant. He was appointed co-chair of the 2013 Conference of the International Bar Association and Australian Resources and Energy Law Association Southeast Asia in Singapore. He is a member of the Association of International Petroleum Negotiators. Dennis is also among Asia Business Law Journal’s inaugural “A-List” of the Top 100 lawyers in the Philippines.

Author

Eliseo Zuñiga, Jr. is a partner in the Employment and Dispute Resolution Practice Groups. He is also a member of the Industrial, Manufacturing & Telecommunications and the Healthcare industry groups in Manila. He has 19 years of experience advising clients on general employment issues, employee termination, executive compensation, benefits transfers and terminations, and general litigation. He actively participates as a speaker and presenter in various regional and local seminars and conferences on labor and employment-related issues. He serves as a Chairperson of the People Management Association of the Philippines’ Labor Policy Reforms and Industrial Relations Committee and Co-Chairperson of the European Chamber of Commerce Human Capital Committee. He has been cited as a Leading Individual in Employment by The Legal 500 Asia Pacific (2019-2020) and the Chambers Asia Pacific (2018-2020).