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Phil. consulate assistant wants labor case junked
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Posted on Apr 18 2005
A consular assistant at the Philippine consulate general on Saipan has sought the dismissal of a federal labor case filed against him by his former houseworker, invoking his consular immunity pursuant to the Vienna Convention.
Ricardo P. Bautista Jr. is asking the U.S. District Court to dismiss the case filed by one Glenda R. Tinay, saying that the houseworker has no valid federal claim against him since her employment is exempt from overtime provisions of the Fair Labor Standards Act.
Bautista also asserted that the Nonresident Workers Act does not apply to him and Tinay.
“Defendant Bautista represents the government of the Philippines in an official capacity, and assists in such representation. Accordingly, the NWA does not apply to him, and, indeed, his contract with plaintiff [Tinay] was not entered into pursuant to the NWA, and plaintiff’s own status in the CNMI is not that of a nonresident worker,” his lawyer, Joseph Horey said in court pleadings.
“The Philippine government recognizes the unique importance of domestic service to a consular worker by authorizing issuance of an official passport to the servant—the same type of passport issued to the consular worker himself. Similarly, the CNMI government issues the same type of entry permit to both,” Horey added.
The lawyer said that failure of the FLSA cause of action should result in the dismissal of other claims by Tinay, including those anchored on alleged violations of the NWA and the CNMI’s Minimum Wage and Hour Act, since the federal court would lose jurisdiction on those claims.
Tinay sued Bautista in federal court on various causes of action, including breach of contract. Bautista hired her on July 7, 2002 after the consular assistant drafted an employment contract that she would work for the defendant for at least two years. Tinay served Bautista from July 7, 2002 to Feb. 1, 2005.
Based on the employment contract, Tinay would be paid an hourly rate of $5.25 per hour plus overtime. She also alleged that she could not be required to remain on his workplace after working hours without compensation. The helper claimed that she only got paid $200 monthly.
