Kapisanan ng mga Kawani ng Energy Regulatory Board vs. Commissioner Fe B.

Barin, et al,

FACTS
 § 38, EPIRA (enacted on 8 June 2001 and took effect on the 26th) abolished the ERB and created the
ERC, composed of a Chairman and 4 members to be appointed by the President.
 At the time of the petition, Barin, et al were the ERC Commissioners who assumed office on 15 August
2001.
o They issued guidelines for hiring new employees since, they argued, EPIRA abolished the ERB
and that RA 6656 (Act to Protect the Security of Tenure of Civil Service Officers and EEs in the
Implementation of Government Reorganization) does not apply to them. They also maintained
that Civil Service Laws apply suppletorily.
 KERB objected to this stand.
o They insisted that EPIRA merely changed the name of ERB to ERC and expanded the functions
and objectives.
o The sent letters requests + Barin’s replies
1) Date of filing job applications + use of Civil Service form 212
 Barin: form 212 and the ERC format are essentially the same
2) Creation of placement/recruitment committee without prejudice to CSL
 Barin: Not necessary, there were guidelines set for this already and they hired an
independent consultant
3) Copies of plantilla positions + qualifications
 Barin: ERC already posted plantilla positions + higher standards as approved by
DBM and that ERC positions did not need prior approval of CSC.
 Later, ERC published a job ad in the Star and 2 days after, they sent CSC a list of vacancies +
qualifications. They finally formed a Selection Committee to oversee.
 KERB filed an Urgent Ex Parte Motion to Enjoin Termination of ERB Employees but before the
pleadings were received by ERC, the Selection Committee had already submitted a proposed list of
appointees.
o Commissioners commented on the pleading and said that [138 out of 212 ERB ee were rehired
and appointed to plantilla positions and 60 opted to retire/separate] = 96% of total ERB ee
o 8 ERB ee cannot be appointed because of unavailability of positions and they were given
notice, separation pay, and benefits.

ISSUES + RULING
(note: procedural defects such as KERB’s personality was disregarded due to public interest)
Is § 38, EPIRA constitutional? YES.
 Power to create an office comes with the power to abolish (Cory Aquino created and abolished).
 The question of whether a law abolishes an office is a question of legislative intent – there should be no
problem if there was express abolition like in the EPIRA.
 Note that abolishing an office and removal of an incumbent are different.
o Abolishing means there is no office to occupy, meaning no tenure to speak of.
o Removal implies that office subsists and the occupants are merely separated therefrom.
 A valid order of abolition must come from proper office + be done in good faith.
o KERB claims there is no valid abolition, only bad faith in reorganizing ERB.
o Their evidence: §2(b), RA 6656 – no removal of ee where an office is abolished and another
performing substantially the same functions is created.
 Although ERB and ERC functions are the same (see: §43, EPIRA), there are new and expanded
functions of the ERC (see: §§6, 8, 23, 28-32, 34-36, 40, 41, 45, 51, 60, 65, 67, and 69) intended to
meet specific needs of a deregulated power industry.
o Throughout the years, the scope of the regulation has gradually narrowed from that of public
services in 1902 to the electricity industry and water resources in 1972 to the electric power
industry and oil industry in 1977 to the electric industry alone in 1998. The ERC retains the
ERBÊs traditional rate and service regulation functions. However, the ERC now also has to
promote competitive operations in the electricity market. RA 9136 expanded the ERC’s
concerns to encompass both the consumers and the utility investors.
 o „Thus, the EPIRA provides a framework for the restructuring of the industry, including the
privatization of the assets of the National Power Corporation (NPC), the transition to a
competitive structure, and the delineation of the roles of various government agencies and the
private entities. The law ordains the division of the industry into four (4) distinct sectors, namely:
generation, transmission, distribution and supply. Corollarily, the NPC generating plants have to
privatized and its transmission business spun off and privatized thereafter.

Are the ERC Commissioners correct that the protection of tenure under RA 6656 is merely suppletory? No
need to discuss because there is no tenure to speak of.