366 Phil. 913
"Our evaluation of your company's application indicates that your retirement plan is not superior to Pag-IBIG Fund. Further, the amended Implementing Rules and & Regulations of R. A. 7742 provides that to qualify for waiver, a company must have retirement/provident and housing plans which are both superior to Pag-IBIG Funds."Petitioners thus filed a petition for certiorari and prohibition before the Regional Trial Court of Makati seeking to annul and declare void the Amendment and the Guidelines for having been issued in excess of jurisdiction and with grave abuse of discretion amounting to lack of jurisdiction alleging that in requiring the employer to have both a retirement/provident plan and an employee housing plan in order to be entitled to a certificate of waiver or suspension of coverage from the HDMF, the HDMF Board exceeded its rule-making power.
"1. The court a quo erred in the appreciation of the issue, as it mistakenly noted that petitioner is contesting the authority of respondent to issue rules pursuant to its rule-making power;Essentially, petitioners contend that it does not question the power of respondent HDMF, as an administrative agency, to issue rules and regulations to implement P.D. 1752 and Section 5 of R.A. 7742; however, the subject Amendment and Guidelines issued by it should be set aside and declared null and void for being irrevocably inconsistent with the enabling law, P.D. 1752, as amended by R.A. 7742, which merely requires as a pre-condition for exemption for coverage, the existence of either a superior provident (retirement) plan or a superior housing plan, and not the concurrence of both plans.
2. The court a quo erred in observing that the matter being assailed by the petitioners were the denial of their application for waiver (Annexes "H" and "I"), and therefore, appeal is the proper remedy."
"Section 19. Existing Provident/Housing Plans. - An employer and/or employee-group who, at the time this Decree becomes effective have their own provident and/or employee-housing plans, may register with the Fund, for any of the following purposes:On June 17, 1994, Republic Act No. 7742, amending certain sections of P.D. 1752 was approved. Section 5 of the said statute provides "that within sixty (60) days from the approval of the Act, the Board of Trustees of the Home Development Mutual Fund shall promulgate the rules and regulations necessary for the effective implementation of (this) Act."(a) For annual certification of waiver or suspension from coverage or participation in the Fund, which shall be granted on the basis of verification that the waiver or suspension does not contravene any effective collective bargaining agreement and that the features of the plan or plans are superior to the Fund or continue to be so; orThe establishment of a separate provident and/or housing plan after the effectivity of this Decree shall not be a ground for waiver of coverage in the Fund; nor shall such coverage bar any employer and/or employee-group from establishing separate provident and/or housing plans." (underscoring ours)
(b) For integration with the Fund, either fully or partially.
SECTION 1. Waiver or Suspension-Existing Provident or Retirement Plan.Subsequently, the HDMF Board adopted in its Special Board Meeting held on September 1, 1995, Amendments to the Rules and Regulations Implementing Republic Act 7742. As amended, Rule VII on "Waiver or Suspension" now reads:
An employer and/or employee group who has an existing provident or retirement plan as of the effectivity of Republic Act No. 7742, qualified under Republic Act No. 4917 and actuarially determined to be sound and reasonable by an independent actuary duly accredited by the Insurance Commission, may apply with the Fund for waiver or suspension of coverage. Such waiver or suspension may be granted by the President of the Fund on the basis of verification that the waiver or suspension does not contravene any effective collective bargaining or other existing agreement and that the features of the plan or plans are superior to the Fund and continue to be so. The certificate of waiver or suspension of coverage issued herein shall only be for a period of one (1) year but the same may be renewed for another year upon the filing of a proper application within a period of sixty (60) days prior to the expiration of the existing waiver or suspension.
SECTION 2. Waiver or Suspension-Existing Housing Plan.
An employer and/or employee group who has an existing housing plan as of the effectivity of Republic Act No. 7742 may apply with the fund for waiver or suspension of coverage. Such waiver or suspension of coverage may be granted by the President of the Fund on the basis of verification that the waiver or suspension of coverage does not contravene any effective collective bargaining or other existing agreement and that the features of the plan or plans are superior to the Fund and continue to be so. The certificate of waiver or suspension of coverage issued herein shall only be for a period of one (1) year but the same may be renewed for another year upon the filing of a proper application within a period of sixty (60) days prior to the expiration of the existing waiver or suspension."
SECTION 1. Waiver or Suspension Because of Existing Provident/Retirement and Housing Plan.On October 23, 1995, HDMF Circular No. 124-B entitled "Revised Guidelines and Procedure for Filing Applications for Waiver or Suspension of Fund Coverage" under P.D. No. 1752, as amended by Republic Act No. 7742, was promulgated. The Circular pertinently provides:
Any employer with a plan providing both for a provident/retirement and housing benefits for all his employees and existing as of December 14, 1980, the effectivity date of Presidential Decree No. 1752, may apply with the Fund for waiver or suspension of coverage . The provident/retirement aspect of the plan must be qualified under R.A. 4917 and actuarially determined to be sound and reasonable by an independent, actuary duly accredited by the Insurance Commission. The provident/retirement and housing benefits as provided for under the plan must be superior to the provident/retirement and housing benefits offered by the Fund.
Such waiver or suspension may be granted by the Fund on the basis of actual verification that the waiver or suspension does not contravene any collective bargaining agreement, any other existing agreement or clearly spelled out management policy and that the features of the plan or plans are superior to the Fund and continue to be so.
Provided further that the application must be endorsed by the labor union representing a majority of the employees or in the absence thereof by at least a majority vote of all the employees in the said establishment in a meeting specifically called for the purpose. Provided, furthermore that such a meeting be held or be conducted under the supervision of an authorized representative from the Fund.
The certificate of waiver or suspension of coverage issued herein shall only be for a period of one (1) year effective upon issuance thereof. No certificate of waiver issued by the President of the Fund shall have retroactive effect. Application for renewal must be filled within-sixty (60) days prior to the expiration of the existing waiver or suspension and such application for renewal shall only be granted based on the same conditions and requirements under which the original application was approved. Pending the approval of the application for waiver or suspension of coverage or the application for renewal, the employer and his covered employees shall continue to be mandatorily covered by the Fund as provided for under R.A. 7742." (underscoring ours)
"I. GROUNDS FOR WAIVER OR SUSPENSION OF FUND COVERAGEAs above stated, when petitioners CBC and CBC-PCCI applied for the renewal of waiver of Fund coverage for the year 1996, the applications were disapproved on identical grounds namely, that the retirement plan is not superior to Pag-IBIG Fund and that the amended Implementing Rules and Regulations of R.A. 7742 provides that to qualify for waiver, a company must have retirement/provident and housing plan which are both superior to Pag-IBIG Funds.
A. SUPERIOR PROVIDENT/RETIREMENT PLAN AND HOUSING PLAN
ANY EMPLOYER WHO HAS A PROVIDENT, RETIREMENT, GRATUITY OR PENSION PLAN AND A HOUSING PLAN, EXISTING AS OF DECEMBER 14, 1980, THE EFFECTIVITY OF P.D. NO. 1752, may file an application for waiver or suspension from Fund coverage, provided, that - -
1. The retirement/provident plan is qualified as such under Republic Act No. 4917 (An Act Providing That Retirement Benefits of Employees of Private Firms Shall Not Be Subject to Attachment, Levy, or Execution or Any Tax Whatsoever), as certified by the Bureau of Internal Revenue;
2. The retirement/provident plan is actuarially determined to be financially sound and reasonable by an independent actuary duly accredited by the Insurance Commission;
3. The retirement/provident plan is superior to the retirement /provident benefits offered by the Fund in terms of:
- vesting features
-full and immediate crediting of employer's contribution to the employee's account, the TAV of which the employee carries with him in the event he transfers to another employer; or he becomes self-employed or unemployed;
-employer's contribution (* For provident plans)
-must be equal to or higher than two percent (2%) of employee's monthly compensation, defined in the HDMF Implementing Rules and Regulations as the employee's basic monthly salary plus Cost of Living Allowance;
-retirement age and years of service required to avail of plan benefits
-85 or lower
-10 years of service or less
-amount of benefits extended to EEs (* For retirement plans)
-at least fifty (50%) of monthly compensation, as defined in the HDMF IRR, for every year of service.
4. The housing plan must be superior to the PAG-IBIG Housing Loan Program in terms of:
-residency requirement as employee of the company or member of the plan to avail of housing loan under the plan
-six (6) months or less;
-equal to or lower than the prescribed rates under the PAG-IBIG Expanded Housing Loan Program (EHLP);
- repayment period
-25 years or more;
-equal to or greater than the maximum loan amount under the PAG-IBIG Expanded Housing Loan Program; and
-percentage of covered EEs benefitted by the Housing Plan
-EEs who have availed of the Housing Plan benefits as of date of waiver application must be no less than five (5%) of the total.
5. The application for waiver or suspension, based on actual verification of the Fund, does not contravene any effective collective bargaining or any other agreement existing between the employer and his employees.
6. The application must be endorsed by the labor union representing a majority of the employees, or, in the absence thereof, at least a majority vote of all company employees in a meeting specifically called for the purpose and conducted under the supervision of an authorized representative of the Fund."
"a. the effective administration, custody, development, utilization and disposition of the Fund or parts thereof including payment of amounts credited to members or to their beneficiaries or estates;The controversy lies in the legal signification of the words "and/or".
b. Extension of Fund coverage to other working groups and waiver or suspension of coverage or its enforcement for reasons therein stated.
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i. Other matters that, by express or implied provisions of this Act, shall require implementation by appropriate policies, rules and regulations."
"The term "and/or" means that effect shall be given to both the conjunctive "and" and the disjunctive "or;" or that one word or the other may be taken accordingly as one or the other will best effectuate the purpose intended by the legislature as gathered from the whole statute. The term is used to avoid a construction which by the use of the disjunctive "or" alone will exclude the combination of several of the alternatives or by the use of the conjunctive "and" will exclude the efficacy of any one of the alternatives standing alone."It is accordingly ordinarily held that the intention of the legislature in using the term "and/or" is that the word "and" and the word "or" are to be used interchangeably.
"Administrative regulations adopted under legislative authority by a particular department must be in harmony with the provisions of the law, and should be for the sole purpose of carrying into effect its general provisions. By such regulations, of course, the law itself cannot be extended. U.S. vs. Tupasi Molina, supra). An administrative agency cannot amend an act of Congress (Santos vs. Estenzo, 109 Phil. 419 422; Teoxon vs. Members of the Board of Administrators, L-25619, June 30, 1970, 33 SCRA 585; Manuel vs. General Auditing Office, L-28952, December 29, 1971, 42 SCRA 660; Deluao vs. Casteel, L-21906, August 29, 1969 SCRA 350).While it may be conceded that the requirement of the concurrence of both plans to qualify for exemption would strengthen the Home Development Mutual Fund and make it more effective both as a savings generation and a house building program, the basic law should prevail as the embodiment of the legislative purpose, and the rules and regulations issued to implement said law cannot go beyond its terms and provisions.
The rule making power must be confined to details for regulating the mode or proceeding to carry into effect the law as it has been enacted. The power cannot be extended to amending or expanding the statutory requirements or to embrace matters not covered by the statute. Rules that subvert the statute cannot be sanctioned. (University of Santo Tomas vs. Board of Tax Appeals, 93 Phil. 376, 382, citing 12 C. J. 845-46. As to invalid regulations, see Collector of Internal Revenue vs. Villaflor, 69 Phil. 319; Wise & Co. vs. Meer, 78 Phil. 655, 676; Del Mar vs. Phil. Veterans Administration, L-27299, June 27, 1973, 51 SCRA 340, 349). "