Labor Rev Midterm

7/28/2019 Labor Rev Midterm

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PRELIMINARY TITLE

Chapter IGENERAL PROVISIONS

Article 1: NAME OF DECREEArticle 2: DATE OF EFFECTIVITY

COMMENTS AND CASES

1. LABOR LEGISLATION; DEFINITIONS Broadly divided into labor standards and

labor relations Labor standards law is that which sets out

the minimum terms, conditions, andbenefits of employment that employersmust provide and comply with and to whichemployees are entitled to as a matter ofright.

Labor relations law is that which defines thestatus, rights and duties, and theinstitutional mechanisms, that govern theindividual and collective interactions ofemployers, employees or their

representatives. Labor is understood as physical toil,

although it does not necessarily involve theapplication of skill. Skill, by dictionarydefinition, is the familiar knowledge of anyart or science, united with readiness anddexterity in execution or performance or inthe application of the science or art topractical purposes.

Work is broader than labor as work coversall forms of physical or mental exertion, orboth combined, for the attainment of someobject other than recreation or amusementper se.

2. LABOR LAW AND SOCIAL LEGISLATION Social legislation includes laws that provide

particular kinds of protection or benefits tosociety or segments thereof in furtheranceof social justice. In that sense, labor lawsare necessarily social legislation.

3. SOCIAL JUSTICE AS THE AIM The aim, reason, and justification for labor

laws is social justice. Section 3 of Article XIII says that the State

shall afford full protection to labor, local andoverseas, organized and unorganized, andpromote full employment and equality ofemployment opportunities for all.

This is because without the improvementof economic conditions, there can be no realenhancement of the political rights of thepeople.

4. CONSTITUTIONAL RIGHTS AND MADNESS The basic rights of workers guaranteed by

the Constitution are: the rights to organizethemselves, to conduct collective bargainingor negotiation with management, to engagein peaceful concerted activities, including tostrike in accordance with law, to enjoy

security of tenure, to work under humaconditions, to receive a living wage, participate in policy and decision makiprocesses affecting their rights and benefas may be provided by law.

4.1.Balancing of Rights; the Constitutional Principof Shared Responsibility

While labor is entitled to a just shain the fruits of production, tenterprise has an equally importa

right not only to reasonable returnsinvestment but also to expansion agrowth. The Constitution commanthe State to promote the principle shared responsibility betweemployers and workers and tpreferential use of voluntary modes settling disputes, includiconciliation, and to enforce thmutual compliance therewith to fostindustrial peace.

Constitutional outlook suggests balanced treatme

5. POLICE POWER AS THE BASIS The right of every person to pursue

business, occupation or profession is subjeto the paramount right of the governmeas a part of its police power to impose surestrictions and regulations as tprotection of the public may require.

6. BIRTH OF THE LABOR CODE Writing began under Blas Ople, Father

the Labor Code The objective was not merely to consolida

the then existing pieces of social legislatiobut also to reorient them to the needs

economic development and justice

7. PRINCIPLES UNDERLYING THE CODE Must be both responsive and responsible

national development Must substitute rationality for confrontati

in times of national emergencies Must be made expeditious witho

sacrificing due process Manpower development and employme

must be regarded as a major dimension labor policy

Availability of a global labor market qualified Filipinos

Must command adequate resources aacquire capable machinery for effective asustained implementation

There should be popular participation national policy making through what is nocalled tripartism

8. SOME LABOR LAWS BEFORE THE PASSAGE OTHE CODE

Act 1874 or the Employers Liability Act Act 2549 which prohibited payment

wages in non-cash form RA 1054 which required emergency medic

treatment for employees


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CA 444 or the Eight Hour Labor Law CA 103 which created the Court of

Industrial Relations (pre-NLRC) PD 21 which created the NLRC RA 875 or the Industrial Peace Act/ Magna

Carta of Labor RA 946 Blue Sunday Law RA 1052 or the Termination Pay Law

9. SIGNIFICANCE OF FOREGOING DECISIONS Where are labor statutes are based upon orpatterned after statutes in foreign

jurisdiction, the decisions of high courts inthose jurisdictions should receive thecareful attention of the SC in the applicationof our own law.

10. RELATED LAWS10.1.The Civil Code

Labor relations not merely contractual, butmust yield to the common good.

Prohibition against involuntary servitude(Art. 1703)

Also contains provisions regarding wages,househelpers and liabilities of employers.

Neither capital nor labor shall actoppressively against the other, or impair theinterest or convenience of the public (Art.1701)

10.2.The Revised Penal Code Punishes the use of violence or threats by

either employer or employee (Art. 289)10.3.Special Laws

SSS law, GSIS law, Agrarian Reform Law,13th month Pay Law, etc.

11. INTERNATIONAL ASPECT On June 15, 1948, the Philippines became a

member of the International LaborOrganization (ILO), which is the UNspecialized agency which seeks thepromotion of social justice andinternationally recognized human and laborrights.

The ILO formulates international laborstandards in the form of Conventions andRecommendations setting minimumstandards of basic labor rights.

An essential characteristic of ILO istripartism, that is, it is composed not onl ofgovernment representatives but also ofemployers and workers organizations.

11.1.International Commitments By being an ILO member, the country

thereby subscribes t the fundamentalprinciples on which the ILO is based. Also,as an ILO member, the Philippines imbibesthe obligation of the ILO to furtherprograms that will achieve ILO objectives.

11.2.ILO Core Conventions The eight core conventions are as follows:

Forced Labor Convention (1930); Freedomof Association and Protection of the Right toOrganize Convention (1948); Freedom toOrganize and Collective Bargaining

Convention (1949); equal remuneratiConvention (1951); Abolition of ForcLabor Convention (1957); Discriminati(Employment and Occupation) Conventi(1958); Minimum Age Convention (1973and Worst Forms of Child Labor Conventi(1999).

11.3.Ratification Generally Needed; Exception In 1999, the ILO adopted a Declaration

Fundamental Principles and Right at Wo

concerning an obligation of all ILO membeto respect and promote the fundamenrights even if they have not ratified tconventions.

11.4.Ratified ILO Conventions As of the end of 2000, the Philippines h

ratified thirty ILO Conventions, includisignificantly, the core conventions freedom of association, on abolition forced labor, on abolition of child labor, aon non-discrimination.

A labor law expert asserts that tPhilippines can claim with some pride thatbelongs to the upper 25% of the I

members on the basis of efforts taken approximate labor standards.

Article 3: DECLARATION OF BASIC POLICY

COMMENTS

1. LABOR LAWS AND SOCIAL-ECONOMIC GOALS Labor laws are devices for social equity. The ma

depending on their provisions, make the rich richand the poor poorer.

The value of labor laws is in their contribution national growth in the context of social justice.

The true task of a student of labor law is to examihow those laws hinder or help the attainment of tcountrys socio-economic goals.

2. INTERDEPENDENCE It should not be deduced that the basic policy is

favor labor to prejudice capital. The plain realitythat both sectors need each other. They ainterdependent- one is inutile without the other.

The better understanding is that the basic policyto balance or coordinate the rights and interests both workers and the employers.

Article 4: CONSTRUCTION IN FAVOR OF LABOR

All doubts in the implementation and interpretation

the provisions of this Code, including its implementirules and regulations, shall be resolved in favor labor.

COMMENTS AND CASES

1. INTERPRETATION AND CONSTRUCTION1.1.Laborers Welfare; Liberal Approach

The working mans welfare should be tprimordial and paramount consideratioThe policy is to extend the Decreeapplicability to a greater number employees to enable them to avail of t


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benefits under the law, in consonance withthe States avowed policy to give maximumaid and protection to labor.

1.2.Concern for Lowly Worker The Sc reaffirms its concern for the lowly

worker who, often at his employers mercy,must look up to the law for protection.

1.3.Reason for According Greater Protectionto Employees In the matter of employment bargaining,

there is no doubt that the employer standson higher footing than the employee.

This is because there is a greater supplythan demand for labor. Also, the need foremployment comes from vital, evendesperate, necessity.

2. MANAGEMENT RIGHTS Management also has its own rights which are

entitled to respect and enforcement in the interestof simple fair play.2.1.Right to ROI

The employer has the right to recover hisinvestments and make profits. There isnothing dirty about profit per se it is profit

that creates jobs and improves the workerslot.

2.2.Rights to Prescribe Rules Employers have the right to make

reasonable rules and regulations for thegovernment of their employees, and whenemployees, with knowledge of anestablished rule, enter the service, the rulebecomes a part of the contract ofemployment.

2.3.Right to Select Employees An employer has the right to select his

employees and to decide when to engagethem. He has the right, under the law, to

full freedom in employing any person free toaccept employment from him, and this,except as restricted by valid statute andvalid contract, at a wage and underconditions agreeable to them.

State cannot interfere with the liberty tocontract with respect to labor, except in theexercise of police power.

The right of a laborer to sell his labor tosuch person as he may choose is, in itsessence, the same as the right of anemployer to purchase labor from any personwhom it chooses.

2.4.Right to Transfer or Discharge Employees The employer has the perfect right to

transfer, reduce, or lay off personnel inorder to minimize expenses and to insurethe stability of the business, and even toclose the business, and this right has beenconsistently upheld, provided the transfer ordismissal is not abused but is done in goodfaith and is due to causes beyond control.

Article 5: RULES AND REGULATIONS

The Department of Labor and other governmentagencies charged with the administration and

enforcement of this Code or any of its parts shpromulgate the necessary implementing rules aregulations. Such rules and regulations shall becomeffective fifteen (15) days after announcement of thadoption in newspapers of general circulation.

COMMENTS AND CASES

1. RULES AND REGULATIONS TO IMPLEMENT THCODE

1.1.When Invalid If promulgated in excess of its rule maki

power, the resulting rule or regulation void.

Article 6:APPLICABILITY

COMMENTS AND CASES

1. APPLICABILITY TO GOVERNMENT CORPORATION The ruling now is that the Labor Co

applies to a corporation incorporated undthe Corporation Code.

Government corporations created by speccharter from Congress are subject to cservice rules, while those incorporatunder the Corporation Code are covered the Labor code.

1.1.PNOC-EDC, FTI, NHA2. NON-APPLICABILITY TO GOVERNMENT AGENCIE

The terms governmental agency instrumentality are synonymous in tsense that either of them is a means which a government acts, or by whichcertain government act or function performed. The word instrumentality wrespect to the state, contemplates authority to which the state delegat

government power for the performance ostate function.

Example: The National Parks DevelopmeCommittee is an agency of the governmenot a government-owned or controllcorporation. Its employees are covered civil service rules and regulations, sinthey are civil service employees.

But if function is proprietary in nature, employees are governed by the LabCode.

3. APPLICABILITY WITHOUT EMPLOYER-EMPLOYRELATIONSHIP

The Labor Code may apply even if tparties are not employers and employees each other.

The Labor Code applies with or withoemployment relationships between tdisputants, depending on the kind of issinvolved.

For example, when one speaks employment benefits, then sureemployment relationship is an essentelement. But when the issue, for instancis an indirect employers liability, there is employer-employee relationship and yet t


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pertinent Labor Code provisions findapplication.

Chapter IIEMANCIPATION OF TENANTS1

Article 7: STATEMENT OF OBJECTIVESArticle 8: TRANFER OF LANDS TO TENANT-WORKERS

Being a vital part of the labor force, tenant-farmers on

private agricultural lands primarily devoted to rice andcorn under a system of share crop or lease tenancywhether classified as landed estate or not shall bedeemed owner of a portion constituting a family-sizefarm of five (5) hectares, if not irrigated and three (3)hectares, if irrigated.

In all cases, the land owner may retain an area of notmore than seven (7) hectares if such landowner iscultivating such area or will now cultivate it.

Article 9: DETERMINATION OF LAND VALUE

For the purpose of determining the cost of the land tobe transferred to the tenant-farmer, the value of theland shall be equivalent to two and one-half (2-1/2)times the average harvest of three (3) normal cropyears immediately preceding the promulgation ofPresidential Decree No. 27 on October 21, 1972.

The total cost of the land, including interest at the rateof six percent (6%) per annum, shall be paid by thetenant in fifteen (15) years of fifteen (15) equal annualamortizations.

In case of default, the amortization due shall be paid by

the farmers cooperative in which the defaulting tenant-farmer is a member, with the cooperative having a rightof recourse against him.

The government shall guarantee such amortizationswith shares of stock in government-owned andgovernment-controlled corporations.

Article 10: CONDITION OF OWNERSHIP

No title to the land acquired by the tenant-farmer underPresidential Decree No. 27 shall be actually issued tohim unless and until he has become a full-fledgedmember of a duly recognized farmers cooperative.

Title to the land acquired pursuant to PresidentialDecree No. 27 or the Land Reform Program of theGovernment shall not be transferable except byhereditary succession or to the Government inaccordance with the provisions of Presidential DecreeNo. 27, the Code of Agrarian Reforms and other existinglaws and regulations.

Article 11:IMPMENTING AGENCY

1 Amended by R.A. No. 6657, June 10, 1988

COMMENTS AND CASES

1. LEGISLATIVE HISTORY There is an acute imbalance in the distribution

land among our people. Hence, the Constitution 1987 adopted a whole article containing provisiofor the uplift of the common people, thus: TState shall, by law, undertake an agrarian refoprogram founded on the right of farmers a

regular farmworkers, who are landless, to owdirectly or collectively the land they till or, in tcase of other farmworkers, to receive a just shaof the fruits thereof.

2. SHARE TENANCY ABOLISHED RA 3844 abolished and outlawed share tenancy a

put in its stead the agricultural leasehold system. RA 6389, amending RA 3844, declared sha

tenancy as contrary to law and public policy. The phasing out of share tenancy was the first st

towards the ultimate status of owner-cultivator,goal sought to be achieved by the governmeprogram of agrarian reform.

3. CONSTITUTIONAL PROVISIONSSec 4 *Constitution

4. COMPENSATION SCHEME Title to all expropriated properties shall

transferred to the State only upon full payment compensation of the respective owners.

5. RETENTION LIMITS in no case shall retention by the landown

exceed 5 hectares.6. LANDS NOT COVERED

6.1.Lands Obtained Through HomesteaPatent The Philippine Constitution respects t

superiority of the homesteaders rights ov

the rights of the tenants. Homestead Act has been enacted for t

welfare and protection of the poor. The lagives a needy citizen a piece of land whehe may build a modest house for himsand his family and plant what is necessafor subsistence and for the satisfaction lifes other needs.

6.2.Residential Subdivisions An agricultural leasehold cannot

established on land which has ceased to devoted to cultivation or farming because its conversion to a residential subdivisio(Gonzales vs. CA)

6.3.Livestock, Poultry and Swine RaisiLands There is simply no reason to inclu

livestock and poultry lands in the coveraof agrarian reform.

BOOK ONEPRE-EMPLOYMENT

Article 12: STATEMENT OF OBJECTIVES

COMMENTS


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1. THE UNEMPLOYMENT PROBLEM In a list of 18 countries, the Philippines

unemployment rate is the highest, at 10.2%,meaning more than three million jobless.

The unemployment problem is exacerbated bypopulation growth that appears unchecked.

2. THE DOLE: ITS RESPONSIBILITY The Administrative Code mandates the DOLE to

assume primary responsibility for:a. The promotion of gainful employment

opportunities and the optimization of thedevelopment and utilization of thecountrys manpower resources;

b. The advancement of workers welfare byproviding for just and humane workingconditions and terms of employment;

c. The maintenance of industrial peace bypromoting harmonious, equitable andemployment relations that assureprotection for the rights of all concernedparties.

Title IRECRUITMENT AND PLACEMENT OF WORKERS

Chapter IGENERAL PROVISIONS

Article 13: DEFINITIONS

"Worker" means any member of the labor force,whether employed or unemployed.

"Recruitment and placement" refers to any act ofcanvassing, enlisting, contracting, transporting,utilizing, hiring or procuring workers, and includesreferrals, contract services, promising or advertising foremployment, locally or abroad, whether for profit ornot: Provided, That any person or entity which, in anymanner, offers or promises for a fee, employment totwo or more persons shall be deemed engaged inrecruitment and placement.

"Private fee-charging employment agency" means anyperson or entity engaged in recruitment and placementof workers for a fee which is charged, directly orindirectly, from the workers or employers or both.

"License" means a document issued by the Departmentof Labor authorizing a person or entity to operate aprivate employment agency.

"Private recruitment entity" means any person orassociation engaged in the recruitment and placementof workers, locally or overseas, without charging,directly or indirectly, any fee from the workers oremployers.

"Authority" means a document issued by theDepartment of Labor authorizing a person or associationto engage in recruitment and placement activities as aprivate recruitment entity.

"Seaman" means any person employed in a vessengaged in maritime navigation.

"Overseas employment" means employment of worker outside the Philippines.

"Emigrant" means any person, worker or otherwiswho emigrates to a foreign country by virtue of immigrant visa or resident permit or its equivalent the country of destination.

COMMENTS

ARTICLE 13 (B) CONSTRUED; WHAT CONSTITUTRECRUITMENT AND PLACEMENT

The number of persons is not an essentingredient of the act of recruitment and placemeof workers. Any of the acts mentioned in the barule in Article 13 (b) will constitute recruitment aplacement even if only one prospective worker involved. (People vs. Panis)

It must be shown that the accused gave tcomplainant the distinct impression that she h

the power or the ability to send the complainaabroad for work, such that the latter was convincto part with her money to be so employed. Whesuch an act or representation is not proven, therenot recruitment activity and conviction for illegrecruitment has no basis. (People vs. Goce)

By themselves, procuring a passport, airline tickeand foreign visa for another individual, withomore, can hardly qualify as recruitment activitie(Darvin vs. CA)

Article 14: EMPLOYMENT PROMOTION

COMMENTS

EMPLOYMENT PROMOTION To pursue its responsibility to promote employme

opportunities, the DOLE carries out programs flocal and overseas employment.

Article 15: BUREAU OF EMPLOYMENT SERVICES

COMMENTS1. LOCAL EMPLOYMENT

The Bureau of Employment Services has bereplaced by the Bureau of Local Employment (BLthrough EO 797 (May 1, 1982)

1.1.The PESO Public Employment Service Office Intended to serve as employment servi

and information center in its area operation. It regularly obtains a list of jvacancies from employers, publicizthem, invites and evaluates applicanand refers them for probable hiring.

Also holds special services for the pubsuch as employment bazaars, etc.

Article 16: PRIVATE RECRUITMENT


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COMMENTSAUTHORIZED ENTITIES

Based on the Rules Implementing the Code, thefollowing entities are authorized to recruit and placeworkers for local or overseas employment:

a. public employment officesb. Private recruitment entitiesc. Private employment agenciesd. Shipping or manning agents or

representatives

e. POEAf. Construction contractors ifauthorized to operate by DOLEand the Construction IndustryAuthority

g. Members of the diplomatic corpsalthough hirings done by themhave to be processed through thePOEA

h. Other persons or entities as maybe authorized by the DOLESecretary.

Article 17: OVERSEAS EMPLOYMENT DEVELOPMENT

BOARD

COMMENTS AND CASES

1. OVERSEAS EMPLOYMENT, A BRIEF HISTORY Labor migration in the Philippines began in the

1900s when Hawaii experienced severe manpowershortage. The 200 Filipinos that initially went therewere followed by many more until they formedabout 70% of Hawaiis plantation labor.

Other countries such as the US, Canada, Australia,Japan and Saudi Arabia eventuall followed suit.

2. LEGISLATIVE BACKGROUND OF OVERSEASEMPLOYMENT

Act 2486: first law passed by Philippine Congressrelating to overseas employment

PD 442: Labor code, paved the way for strictergovernment regulation of the overseas employmentindustry.

PD 1412: revived private sector participation in therecruitment and placement of Filipino migrantworkers.

EO 797: Enacted to streamline operations in theoverseas employment program.

EO 247: Reorganization Act of the POEA RA 8042: Migrant Workers and Overseas Filipinos

Act of 19953. OVERSEAS EMPLOYMENT POLICY

3.1.R.A. No. 8042 The State does not promote overseas

employment as a means to sustaineconomic growth and achieve nationaldevelopment.

The existence of overseas employmentprogram rests solely on the assurance thatthe dignity and fundamental human rightsand freedoms of the Filipino citizen shallnot, at any time, be compromised orviolated.

3.2.Selective Deployment

RA 8042 requires certain guarantee protection for the overseas worker befothey are deployed in countries that mesome criteria:

oIt has existing labor and social laprotecting the rights of migraworkers;

oIt is a signatory to multilateconventions, declarations resolutions relating to the protecti

of migrant workers;oIt has concluded a bilateral agreeme

or arrangement with tgovernment protecting the rights Filipino migrant workers;

oIt is taking positive, concremeasures to protect the rights migrant workers.

Notwithstanding this the government, pursuit of national interest or when pubwelfare so requires, may, at any timterminate or impose a ban on tdeployment of migrant workers.

4. THE POEA: OVERVIEW OF ITS FUNCTIONS ANPOWERS Among the principal functions of the POEA are t

formulation, implementation, and monitoring of toverseas employment of the Filipino workers athe protection of their rights to fair and equitabemployment practices.

Overseas Filipino Worker (OFW) is understood asFilipino worker who is to be engaged, is engaged, has been engaged in a remunerated activity incountry of which he/she is not a legal resident.

OFWs are classified by DOLE as either land-based sea-based.4.1.POEA Rules (2002)

5. REGULATORY FNCTION OF POEA POEA regulates the private sector participation

the recruitment and overseas placement of workethrough its licensing ad registration system.

6. ADJUDICATORY FUNCTIONS OF POEA Before the passage of RA 8042, POEA had origin

and exclusive jurisdiction to hear and decide thecases:

a. Recruitment violation and relatcases consisting of preemployment cases which aadministrative in charactinvolving or arising out recruitment laws, rules a

regulations, including monclaims therefrom or violations the conditions for issuance license to recruit workers.

b. Employer-emploee relations casconsisting of all claims arising oof an employer-employrelationship or b virtue of any laor contract involving Filipiworkers in overseas employmesuch as but not limited to:1. violation of the terms aconditions of employment


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2. disputes relating to theimplementation andinterpretation of employmentcontracts

3. money claims of workersagainst their employers andduly authorized agents in thePhilippines and vice versa

4. claims for death, disability andother benefits arising out of

employment5. violation of or noncompliance

with any compromiseagreement entered into by andbetween the parties in anoverseas employment contract

c. Disciplinary action casesconsisting of all complaintsagainst a contract worker forbreach of discipline.

6.1.Jurisdiction Transferred to NLRC RA 8042 transferred to the NLRC

the jurisdiction over employer-employee relations cases.

Section 10 of the said lawprovides that Labor Arbiters shallhave the exclusive and originaljurisdiction to hear and decideclaims arising out of an employer-employee relationship or by virtueof any law or contract involvingFilipino workers for overseasemployment including claims foractual, moral, exemplary andother forms of damages.

RA 8042 not only transferred fromPOEA to NLRC the jurisdictionover money claims of OFWs, it

even expanded the scope of suchmoney claim. When thejurisdiction was still with thePOEA, the jurisdiction coveredonly money claims involvingFilipino workers for overseasemployment. Now the NLRCjurisdiction is over money claimsinvolving Filipino workers foroverseas deployment.

RA 8042 allows for claims formoney or damages sustainedduring the period of deploymentor before departure for abroad.

6.2.Jurisdiction Retained With POEA POEA retains the jurisdiction to

decide all cases which areadministrative in character anddisciplinary action cases.

6.3.Compromise Agreement RA 8042 allows also resolution by

compromise.it states:Any

compromise/amicable settlementor voluntary agreement on moneyclaims inclusive of damages underthis section shall be paid within 4

months from the approval settlement by appropriaauthority.

6.4.Mandatory Principle Non-compliance with the perio

provided for under the law wsubject the responsible officials penalties such asa. withholding of salaries uncompliance,

b. suspension for not more th90 days,

or dismissal from service wdisqualification to hold aappointive public office foryears.

7. EMPLOYER-EMPLOYEE RELATIONS CASETERMINATION OF EMPLOYMENT7.1.Contractual Employees

Sea farers are contractuemployees. (Millares and Lagda vNLRC)

7.2.Premature Termination of Contract Where the workers employme

contract is terminated before agreed termination date, and ttermination is not shown to based on lawful or valid groundthe employer will be ordered pay the workers their salarcorresponding to the unexpirportion of their employmecontract. (Tierra Construction vNLRC)

7.3.Pretermination Under R.A. No. 8042; July 11995 Onward

The date of the employmetermination is material. If

occurred on or after July 11995, the law to apply is RA 804

Under Section 10, a workdismissed from overseemployment without just, valid authorized cause as defined law or contract, is entitled to full reimbursement of placement fee with interest 12% per annum, plus his salafor the unexpired portion of hemployment contract or for months for every year of tunexpired term, whichever is les

is unconstitutional. (Serrano Gallant)

7.4 Due Process Required Terminate Employment

Procedural due process requirthat a seaman be furnished twnotices

1. the writtcharge

2. written dismis( POEA RevisStandardEmployment


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Terms andConditions)

7.5 Contracted but not Deployed If the contract is perfected give

rise to the birth of certain rights andobligations, the breach of which may give riseto a cause of action against the erring party

. EMPLOYER-EMPLOYEE RELATIONS CASES: MONEYCLAIMS; EMPLOYERS NATIONALITY IMMATERIAL

Statutes and regulations do not limit the coverageto non-Filipino employers. Filipinos workingoverseas share the same risks and burdens whethertheir employers be Filipino or foreign.

8.1.Death and Other Benefits, Basis ofCompensation The standard contract for employment for

Filipino seamen allows the payment ofdeath benefit pension, funeral benefit,and burial gratuity for the privaterespondent.

These claims arose from the responsibilityof the foreign employer together with the

local agency for the safety of theemployee during his repatriation and untilhis arrival in this country, i.e. the point ofhire. (Inter-Orient Maritime Enterprisesvs. NLRC)

8.2. Illustrative Case: Death Benefit Under theStandard Contract In order to evade liability for death benefit

under the standard contract, it must besufficiently shown that the deaths of theseamen were caused by their own willfuland deliberate act. In this case, theevidence does not substantially prove thatthe seamen contracted tetanus as a result

of the unsanitary surgical procedures theyperformed on themselves. Hence, the deathbenefits under the employment contractmust be paid. (NFD International ManningAgents vs. NLRC)

8.3.Overseas Compensation Benefits in Dollars While it is true that RA 529 makes it

unlawful to require payment of domesticobligations in foreign currency, thisparticular statute is not applicable in thecase at bar. The fixing of the award indollars was based on the partiesemployment contract, stipulating thatwages and benefits in dollars, since private

respondent was engaged as an overseasseaman on board petitioners foreign vessel.(Philippine International Shipping Corp. vs.NLRC)

9. Jurisdiction Retained With POEA(a) all cases, which are administrative in

character, involving or arising out ofviolations of rules and regulationsrelating to licensing and registrationof recruitment and employmentagencies or entities; and

b) disciplinary action cases and othspecial cases, which aadministrative in character, involviemployers, principals, contractipartners and Filipino migraworkers.

9.1 Regulatory function of POEA Regulates the private sect

participation in the recruitment overseas placement of worke

through its licensing and registratisystem

9.2 DISCIPLINARY ACTION CASES The POEA may motu propio underta

a disciplinary action against a workfor breach of discipline. It shall alestablish a system of watching ablacklisting Overseas ContraWorkers.

Complaint for breach of discipline shbe filed with the Adjudication Offior Regional Office of POEA

9.3 Grounds for Disciplinary Actiona. Commission of a felo

punishable by Philippine laws laws of host country;

b. Drug addiction or possession trafficking of prohibited drugs;

c. Desertion or abandonment;d. Gambling;e. Initiating or joining a strik

where prohibited;f. Creating trouble at the work siteg. Embezzlement of company fun

or other properties;h. Theft or robbery;i. Prostitution;j. Vandalism;k. Gunrunning or possession deadly weapons;l. Unjust refusal to depart for

worksite after all documents habeen prepared;

m. Violations of the law and sacrpractices of the host country aunjustified breach of temployment contract.

9.4 OUTSIDE POEA JURISDICTION The POEA has no jurisdiction to he

and decide a claim for enforcemeof a foreign judgment. Such a clamust be brought before the regu

courts. This is because the POEAnot a court, it is only administrative agency.

9.5 No Jurisdiction Over Torts Intention must be to seek and cla

protection under the Labor Code anot the Civil Code. In the case at bathe items demanded are not labbenefits such as wages, overtime por separation pay, but are itemclaimed as natural consequences his dismissal (which he denominat


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as damages.) POEA has nojurisdiction.

Article 18: BAN ON DIRECT-HIRING

No employer may hire a Filipino worker for overseasemployment except through the Boards and entitiesauthorized by the Secretary of Labor. Direct-hiring bymembers of the diplomatic corps, internationalorganizations and such other employers as may beallowed by the Secretary of Labor is exempted from thisprovision.

Article 19: OFFICE OF EMIGRANT AFFAIRS

COMMENTS Direct hiring of Filipino workers by a foreign

employer is not allowed except direct hiring bymembers of he diplomatic corps and othersmentioned in this article. Also excepted are namehirees or those individual workers who are able tosecure contracts for overseas employment on theirown efforts and representations without theassistance or participation of any agency.

The Office of Emigrant Affairs has been abolishedand its pertinent functions were transferred to theCommission on Filipinos Overseas (CFO) byBatasang Pambansa Blg. 79.

Name hires should register with POEA by submittingthe following:

a. Employment contractb. Valid passportc. Employment visa or work permitd. certificate of medical fitnesse. certificate of attendance to the

required employment orientation

Article 19: Office of Emigrant Affairs Abolished and functions were transferred to the

Commission on Filipino Overseas Provides advice and assistance to the President

and the Congress in the formulation of policiesand measures affecting Filipinos overseas

Article 20: NATIONAL SEAMEN BOARD

COMMENTS AND CASES. NSB NOW POEA EO 797 abolished the NSB and transferred its

function to the POEA. But this adjudicatory functionof the POEA has since been moved to the NLRC byRA 8042.

. ARTICLE 20 CONSTRUED; SEAMENS EMPLOYMENTCONTRACTS AND THE INTERNATIONAL TRANSPORTFEDERATION (ITF)

Wallem Shipping vs. Ministry of Labor: Seamen whowere dismissed because they demanded that theybe paid the worldwide rate, instead of the lower FarEast rate as provided in their contracts of

employment, did not commit serious misconduct to warrant their dismissal. They were onexercising their rights. Hence, dismissal was illega

Filipino seamen are admittedly as competent areliable as seamen from any other country in tworld; otherwise, there would not be so many them in the vessels sailing in every ocean and son this globe. They are entitled to governmeprotection when they ask for fair and decetreatment by their employers and when th

exercise their right to petition for improved terms employment, especially when they feel that theare substandard or are capable of improvemeaccording to internationally accepted rules. Alsthe standard forms embody the basic minimumwhich must be incorporated as parts of temployment contract. They are not collectibargaining agreements or immutable contracwhich the parties cannot improve upon or modifythe course of the agreed peril of time. (Vir-jShipping vs. NLRC)

3. INVALID SIDE AGREEMENT An agreement that diminishes the employees [

and benefits as contained in a POEA-approv

contract is void, unless such subsequent agreemeis approved by the POEA.

4. DELAY IN FILING CLAIM There is no absolute rule as to what constitu

laches; each case is to be determined according its particular circumstances. The question of lachis addressed to the sound discretion of the couand since it is an equitable doctrine, its applicatiis controlled by equitable considerations. It cannbe worked to defeat justice or perpetrate fraud injustice.

Where the claim was filed within the three-yestatutory period, recovery therefore cannot barred by laches. Courts should never apply t

doctrine of laches earlier than the expiration of timlimited for the commencement of actions at law(Imperial Victory Shipping vs. NLRC)

5. MINIMUM EMPLOYMENT CONDITIONSa. Guaranteed wages for regu

working hours and overtime payb. Free transportation to and fro

the worksite, or offsetting benefc. Free food and accommodation,

offsetting benefit;d. Just and authorized causes f

termination of contract taking inconsideration the customs anorms of the host country.

6. FREEDOM TO STIPULATEParties are allowed to stipulate other terms a

conditions and other benefits not provided undthese minimum requirements, provided the whoemployment package should be more beneficial to tworker than the minimum, and that the same not contrary to law, public policy, and morals.

Article 21: FOREIGN SERVICE ROLE ANPARTICIPATION

COMMENTS


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. PROTECTION AND ASSISTANCE BY GOVERNMENTAGENCIES

RA 8042 assigns four government agencies topromote the welfare and protect the rights ofmigrant workers and, as far as practicable, of alloverseas Filipinos: DFA, DOLE, POEA, and OWWA.

. THE RPM CENTER Re-Placement and Monitoring Center Serves as a promotion house for local employment

of these returning workers and to tap their skills for

national development.. THE OWWA Overseas Workers Welfare Administration Intended to provide social and welfare services,

including insurance coverage, legal assistance,placement assistance, and remittance services toOFWs.

Funded with contributions from the workersthemselves and the fees and charges imposed bythe POEA and BLE.

4. REPATRIATION OF WORKERS The primary responsibility to repatriate a worke

including his or her remains and personal effecbelongs to the principal or the agency that recruitor deployed the worker.

If the termination is due solely to the fault of tworker, the principal or agency may recover tcost of repatriation from the worker after return the country.

If the principal of agency does not comply with thobligation, the POEA shall notify the OWWA advance the repatriation cost with recourse to tagency or principal.

Article 22: MANDATORY REMITTANCE OF FOREIGEXCHANGE EARNINGS

COMMENTSREMMITTANCE

. seafarer 80%

. construction companies 70%

. professional workers - 70%

4. Domestic 50%5. other 50

Article 23: COMPOSITION OF THE BOARDS

COMMENTS

COMPOSITION OF THE POEA

Article 24: BOARDS TO ISSUE RULES AND COLLECTFEES

Chapter IIREGULATIONS OF RECRUITMENT AND

PLACEMENT ACTIVITIES

Article 25: PRIVATE SECTOR PARTICIPATION IN THERECRUITMENT AND PLACEMENT OF WORKERS

COMMENTS AND CASES

. VALIDITY OF POEA REGULATIONS Valid under the principle of subordinate legislation

1.1.POEA Circular No. 11 (1983) Unenforceable This circular has not yet been published or filed with

the National Administrative Register, hence, cannot

be used as a basis for the imposition

administrative sanctions.

Article 26: TRAVEL AGENCIES PROHIBITED TRECRUIT

COMMENTS The POEA rules also disqualify persons w

derogatory records such as those convicted fillegal recruitment or other crimes involving moturpitude, an official or employee of DOLE, POEOWWA, DFA and other government agencidirectly involved in the implementation of RA 80or any of their relatives within the fourth cidegree.

Article 27: CITIZENSHIP REQUIREMENT

Only Filipino citizens or corporations, partnershior entities at least seventy-five percent (75%) the authorized and voting capital stock of which

owned and controlled by Filipino citizens

Article 28: CAPITALIZATION

COMMENTS The required capitalization, according to POEA rule

is a minimum of two million pesos in case of singproprietorship or partnership and a minimum pa

up capital of the same amount for a corporation.

Article 29: NON-TRANSFERABILITY OF LICENSE OAUTHORITY

COMMENTS

PLACE OF RECRUITMENT Licensees or holders of authority or their du

authorized representatives may, as a ruundertake recruitment and placement activities onat their authorized official address.


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Under existing regulations, however, they may beallowed to conduct provincial recruitment only uponwritten authority from the POEA.

Recruitment of workers for overseas employmentcannot be lawfully undertaken on a house-to-housebasis, in residences, or secluded places.

Article 30: REGISTRATION FEESArticle 31: BONDS

COMMENTS AND CASES The POEA possesses the power to enforce liability

under cash or surety bonds. These are means of ensuring prompt and effective

recourse against such companies when held liablefor applicants and workers claims. (FinmanGeneral Assurance vs. Innocencio)

Article 32: FEES TO BE PAID BY WORKERS

COMMENTS AND CASES

. CHARGEABLE FEES Unless otherwise provided, the principal shall be

liable to pay for the ff:a. visa fee;b. airfare;c. POEA processing fee; andd. OWWA membership fee.

A land-based agency may charge and collect fromits hired workers a placement fee in an amountequivalent to one month salary, exclusive ofdocumentation costs. These documentation costs

shall include expenses for the ff:a. Passport;b. NBI/ Police/ Barangay clearance;c. Authentication;d. Birth Certificate;e. Medicare;f. Trade test, if necessary;g. Inoculation, when required;h. Medical Examination fees.

The abovementioned placement and documentationcosts are the only authorized payments that may becollected from a hired worker. No other charges inwhatever form, manner or purpose, shall beimposed on and be paid by the worker without prior

approval by the POEA. Such fees shall be collected from the hired worker

only after he has obtained employment through thefacilities of the recruitment agency.

. REFUND FEES POEA has the power to order the refund of illegally

collected fees.

Article 33: REPORTS ON EMPLOYMENT STATUS

Whenever the public interest requires, the Secretary ofLabor may direct all persons or entities within thecoverage of this Title to submit a report on the status of

employment, including job vacancies, details of jrequisitions, separation from jobs, wages, other termand conditions and other employment data.

Article 34: PROHIBITED PRACTICES

COMMENTS AND CASES

PROHBITED PRACTICES Article 34(a) prohibits the charging or accepting

fees greater than that allowed by regulations. Italso a deterrant to loan sharks who lend money usurious interests.

Article 34(b) includes the act of furnishing faemployment documents to a worker, and the act publishing false notice or information in relation recruitment or employment.

In Article 34(d), it is not necessary that the workwas actually induced or did quit the employment.

Article 35: SUSPENSION AND/OR CANCELLATION OLICENSE OR AUTHORITY

COMMENTS AND CASES

1. SUSPENSION OR CANCELLATION OF LICENSE The grounds for imposition of administrati

sanctions include engaging in acts misrepresentation for the purpose of securing license or renewal thereof, etc. The acts prohibitunder Art. 34 are not just grounds for suspension cancellation of license or authority. They likewiconstitute illegal recruitment under RA 8042.

1.1.Concurrent Jurisdiction to Suspend or CanceLicense

The SC has affirmed the concurrejurisdiction of the DOLE Secretary and tPOEA Administrator to suspend or cancellicense.

2. PERSONS LIABLE; DURATION OF LIABILITY A recruitment agency is solidarily liable for t

unpaid salaries of a worker it recruited femployment with a foreign principal.

Even if the recruitment agency and the principhad already severed their agency agreement at t

time the worker was injuredm the recruitmeagency may still be sued for violation of temployment contract, if no notice of the agenagreements termination was given to temployee.

The responsibilities of the recruitment agency athe principal to the worker extends up to and unthe expiration of the employment contracts of temployees recruited and employed pursuant to tsaid employment agreement.

3. SOLIDARY LIABILITY ASSUMED BY RECRUITMEAGENT


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Contract contained a provision empowering theagency to sue and be sued jointly and solidarily withthe foreign principal for any of the violations of therecruitment agreement and the contracts ofemployment. These contractual undertakingsconstitute the legal basis for private agencies beingliable jointly and severally with its principal, for allclaims filed by recruited workers which may arise inconnection with the implementation of the serviceagreements or employment contracts. (Royal Crown

Inernationale vs. NLRC)

3.1.Required Undertaking by Agent3.2.Contract by Principal It has been held that even if it was the

petitioners principal which entered into acontract with the private respondent,nevertheless, petitioner, as the manning agentin the Philippines, is jointly and solidarilyresponsible with its principal. (Seagull MaritimeCorp vs. Balatongan)

3.3.Proper Party A sister in the Philippines of a maltreated

Filipino domestic helper in Abu Dhabi is a proper

party to file a complaint.. SUABILITY OF A FOREIGN CORPORATION WHICH

HIRES FILIPINO WORKERS A foreign corporation which, through unlicensed

agents, recruits workers in the country may be suedin and found liable by Philippine courts.

. DEREGULATION AND PHASE OUT RA 8042 envisions a phase-out of POEAs regulatory

function so that the migration of workers willbecome strictly a matter between the worker andhis employer. This projected deregulation hasstirred some controversies which, to this day,continue to remain unresolved.

Chapter III Miscellaneous Provisions

Art. 36 Regulatory PowerThe Secretary of Labor shall have the power to restrictand regulate the recruitment and placement activities ofall agencies within the coverage of this Title and ishereby authorized to issue orders and promulgate rulesand regulations to carry out the objectives andimplement the provision of this Title.

Art. 37 Visitorial PowerThe Secretary of Labor or his duly authorizedrepresentatives may, at any time, inspect the premises,

books of accounts and records of any person or entitycovered by this Title, require it to submit reportsregularly on prescribed forms, and act on any violationsof this Title.

Art. 38 ILLEGAL RECRUITMENT2As stated in the Code:

(a) Any recruitment activities, includingprohibited practices enumerated under Art. 34

2 Amended by Republic Act 8042 or The Migrant Workers and

Overseas Filipinos Act of 1995

of this Code, to be undertaken by non-licenseor non-holders of authority shall be deemillegal and punishable under Art. 39 of tCode. The DOLE or any law enforcement officmay initiate complaints under this Article.

(b) Illegal Recruitment, when committed bysyndicate or in large scale shall be consideran offense involving economic sabotage ashall be penalized in accordance with Art.

hereof.Illegal Recruitment is deem

committed by a syndicate if carried out bygroup of three (3) or more persons conspiriand/or confederating with one another carrying out any unlawful of illegal transactioenterprise or scheme, defined under the fiparagraph hereof. Illegal Recruitment is deemcommitted in large scale if committed againthree (3) or more persons individually or asgroup.(c) The Secretary of Labor and Employment his duly authorized representatives shall hathe power to cause the arrest and detention

such non-licensee or non-holder of authorityafter investigation it is determined that activities constitute danger to national securand public order or will lead to furthexploitation of job-seekers. The Minister shorder the search of the office or premises aseizure of documents, paraphernalia, propertand other implements used in illegrecruitment activities and the closure companies, establishments and entities found be engaged in the recruitment of workers foverseas employment without having belicensed or authorized to do so.

Now, under RA 8042, the abovementioned artichas been amended to also include LICENSED AUTHORIZED entities; the list of ACCONSIDERED AS ILLEGAL RECRUITMENT has abeen EXPANDED as found in SECTION 6, RA 8042

Definition: xxx Illegal Recruitment shmean any act of canvassing, enlistincontracting, transporting, utilizinhiring, or procuring workers aincludes referring contract servicepromising or advertising employment abroad, whether for proor not, when undertaken by a no

licensee or non-holder of authority contemplated under the Labor CodProvided, that any such non-licensee non-holder who, in any manner, offeor promises for a fee employmeabroad to two or more persons shall deemed so engaged. It shall likewinclude the following acts whethcommitted by any person, WHETHERNON-LICENSEE, NON-HOLDELICENSEE OR HOLDER OF AUTHORITY

a.) To change or accept direcor indirectly any amou


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greater than that specifiedin the schedule of allowablefees prescribed by the DOLESecretary, or to make aworker pay any amountgreater than that actuallyreceived by him as a loan oradvance;

b.) To furnish of publish anyfalse notice or information

or document in relation torecruitment or employment;

c.) To give any false notice,testimony, information ordocument or commit anyact of misrepresentation forthe purpose of securing alicense or authority underthe Labor Code;

d.) To induce or attempt toinduce a worker alreadyemployed to quit hisemployment in order tooffer him another unless the

transfer is designed toliberate a worker fromoppressive terms andconditions of employment;

e.) To influence or attempt toinfluence any person orentity not to employ anyworker who has not appliedfor employment through hisagency;

f.) To engage in therecruitment or placement ofworkers in jobs harmful topublic health or morality or

to the dignity of theRepublic of the Philippines;

g.) To obstruct or attempt toobstruct inspection by theDOLE Secretary or by hisduly authorizedrepresentative;

h.) To fail to submit reports onthe status of employment,placement vacancies,remittance of forexearnings, separation fromjobs, departures and suchother information as may be

required by the DOLESecretary;

i.) To substitute or alter to theprejudice of the worker,employment contractsapproved and verified bythe DOLE from the time ofthe actual signing thereof bythe parties up to andincluding the period of theexpiration of the samewithout the approval of theDOLE;

j.) For an officer or agent ofrecruitment or placemeagency to become an officor member of the Board any corporation engaged travel agency or to engaged directly indirectly in tmanagement of a travagency;

k.) To withhold or deny travdocuments from applicaworkers before departufor monetary or financconsiderations other ththose authorized under tprovisions of the Labor Coand its IRRs;

l.) Failure to actually deplwithout valid reason determined by the DOLE;

m.)Failure to reimburexpenses incurred by tworker in connection w

his documentation aprocessing for purposes deployment, in cases whethe deployment does nactually take place withothe workers fault.

Illegal Recruitment when committed a syndicate or in large scale shall be considered offense involving economic sabotage.

Illegal Recruitment is deemcommitted by a syndicate if carried out by a group three (3) or more persons conspiring and/confederating with one another. It is deem

committed in large scale if committed against three (or more persons individually or as a group.

Persons Liable: Principals, Accomplices, aAccessories; for Juridical Persons: the officeHAVING CONTROL, MANAGEMENT, OR DIRECTIOof their business

General Rule: Employees who have no control, not manage nor direct the business may not held liable; UNLESS, it is shown that suemployees ACTIVELY AND CONSCIOUSPARTICIPATED in the illegal recruitment

LACK OF RECEIPTS: will not defeat the purpose criminal prosecution AS LONG AS THE WITNESS

CAN POSITIVELY SHOW THROUGH THERESPECTIVE TESTIMONIES that the accused wthe one involved in the prohibited recruitmencredible testimonies suffice

ECONOMIC SABOTAGE: IR committed by syndicaand IR committed in large scale; each is independent and separate category that can staon their own and need not coincide or concur withthe same case

ESTAFA: CONVICTION for Illegal Recruitment is na bar for filing suit against such person for ESTAunder the RPC as long as the requisites for safelony are present


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THE POWER TO ISSUE SEARCH AND ARRESTWARRANTS AS FOUND IN ART. 38 (C) DEEMEDUNCONSTITUTIONAL see Salazar v. Achacoso andMarquez, G.R. No. 81510, March 14, 1990

- under the Constitution (Art. III, Sec. 2,1987 Constitution) only a judge may issuea warrant of arrest or a search warrant

- the Secretary of Labor is not a judge henceis no longer granted the power to issuessaid warrants. Authorities must now

undergo judicial process- Exception: Deportation or Illegal and

Undesirable Aliens Casesthe President orthe Commissioner of Immigration mayorder arrested following a final order ofdeportation for the purpose of deportation

SUBJECT TO ARREST: Illegal Recruiters are stillsubject to arrest, upon compliance with theprocedure as provided for by law namely through awarrant of arrest issued by a judge of an RTCwhere a criminal information was filed afterpreliminary investigation; also RULES ONWARRANTLESS ARRESTS under Rule 113, Section 5of the ROC may still apply to illegal recruiters when

they fall under the circumstances enumeratedtherein; WARRANTLESS SEARCHES: INCIDENTALto lawful arrest; PLAIN VIEW; with INDIVIDUALSCONSENT

CLOSURE ORDER: DOLE Secretary or his dulyauthorized representative still has power orauthority to issue and order closure of illegalrecruitment establishes, this being anADMINISTRATIVE and REGULATORY action;Issuance after an ex parte preliminary examinationto determine whether the activities of a non-licensee constitute a danger to national securityand public order or will lead to further exploitationof job seekers

PROCEDURE FOR CLOSURE: Rules Secs. 14 27;these cover the POEAs Anti-Illegal RecruitmentPrograms; Provision for Legal Assistance;Complaints Desk; Surveillance; Issuance of ClosureOrder; Implementation of Closure Order; Report onCO, Institution of Criminal Action; Motion to LiftCO; Who may file such Motion; Grounds for Liftingor Re-opening; Appeal and Re-padlocking of Office

Art. 39 - PENALTIES3(A) The penalty of life imprisonment and a fine of One

Hundred Thousand Pesos (P100,000) shall beimposed if illegal recruitment constitutes economicsabotage as defined herein;

(B) Any licensee or holder of authority found violatingor causing another to violate any provision of thisTitle or its implementing rules and regulations shallupon conviction thereof, suffer the penalty ofimprisonment of not less than two years nor morethan five years or a fine not less than P10,000 normore than P50,000, or both such imprisonmentand fine, at the discretion of the court;

(C) Any person who is neither a licensee nor a holderof authority under this Title found violating anyprovision thereof or its IRRS shall, upon conviction

3 Amended by RA 8042, Section 7

thereof, suffer the penalty of imprisonment of nless than four years nor more than eight years orfine not less than P20,000 nor more thP100,000 or both such imprisonment and fine, the discretion of the court;

(D) If the offender is a corporation, partnershassociation, or entity, the penalty shall be imposupon the officer or officers of the corporatiopartnership, association, or entity responsible fthe violation, and if such officer is an alien,

shall, in addition to the penalties hereprescribed, be deported without furthproceedings;

(E) In every case, conviction shall cause and carry tautomatic revocation of the license or authorand all the permits and privileges granted to superson or entity under this Title, and the forfeituof the cash and surety bonds in favor of tOverseas Employment Board or the NationSeamen Board, as the case may be, both of whiare authorized to use the same exclusively promote their objectives.

Section 7, RA 8042 provides:Any person found guilty of IR shall suffer tpenalty of IMPRISONMENT of NOT LESS THASIX (6) YEARS AND ONE (1) DAY BUT NOMORE THA TWELVE (12) YEARS and A FINE ONOT LESS THAN TWO HUNDRED THOUSANPESOS (P200,000.00) NOR MORE THAN FIHUNDRED THOUSAND PESOS (P500,000.00)

The penalty of LIFE IMPRISONMENT and a FINOT LESS THAN FIVE HUNDRED THOUSANPESOS (P500,000.00) NOR MORE THAN OMILLION PESOS (P1,000,000.00) shall imposed if IR CONSTITUTES ECONOMSABOTAGE

Provided however, That the MAXIMUM PENALshall be imposed if the PERSON ILLEGALRECRUITED is LESS THAN 18 YEARS OF AGE committed by a non-licensee or non-holder authority.

VENUE (Sec. 9, RA 8042): Criminal Action arisifrom IR shall be filed with the REGIONAL TRICOURT of the province or city WHERE TOFFENDED PARTY ACTUALLY RESIDES AT TTIME OF THE COMMISSION OF THE OFFENSE

MANDATORY PERIODS for Resolution of IR cas(Sec. 11, RA 8042): terminate within 30 days fro

date of filing: preliminary investigation; finformation within 24 hours from termination investigation; file information within 48 hours frothe date of receipt of case records if preliminainvestigation conducted by judge and prima faccase is established

PRESCRIPTIVE PERIODS (Sec. 12, RA 8042General IR: five (5) years; IR involving EconomSabotage: twenty (20) years

TITLE II EMPLOYMENT OF NON-RESIDENALIENS


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Art. 40 EMPLOYMENT PERMIT OF NON-RESIDENT ALIENSAny alien seeking admission to the Philippines foremployment purposes and any domestic or foreignemployer who desires to engage an alien foremployment in the Philippines shall obtain anemployment permit from the DOLE.The employment permit may be issued to a non-resident alien or to the applicant employer after a

determination of non-availability of a person in thePhilippines who is competent, able and willing at thetime of the application to perform the services forwhich the alien is desired.For an enterprise registered in preferred areas ofinvestments, said employment permit may be issuedupon recommendation of the government agencycharged with the supervision of said registeredenterprise.

Art. 41 Prohibition against transfer ofemployment(a) After the issuance of the employment permit, the

alien shall not transfer to another job or change his

employer without prior approval from the Secretaryof DOLE

(b) Any non-resident alien who shall take upemployment in violation of provision of this Titleand its IRRs shall be punished in accordance withArts. 2894 and 290 of the Labor Code.

In addition, the alien worker shall be subject todeportation after service of his sentence.

RESIDENT ALIENS: NOT required to haveemployment permits; instead, they need an ALIENEMPLOYMENY REGISTRATION CARD (AERC)

NATIONALIZED INDUSTRIES and the ANTI-DUMMYLAW (C.A. no. 108 as amended by PD715)

Foreigners may not be employed in certainnationalized industries; law provides and subjectsreservation of ownership and control of suchcorporations to the 60% requirement, i.e. publicutility, natural resources; financing companies;however, media and advertising requires 100%Filipino ownership and management (Consti)

DOJ OPINION 143, series 1976: provides instanceswhen aliens may be allowed to engage inemployment within nationalized industries: a.)where the DOJ Secretary specifically authorizes theemployment of foreign technical personnel, or, b.)where the aliens are elected members of the Boardof Directors or governing body of corporations or

associations in proportion to their allowableparticipation in the capital of such entities

DEPARTMENT ORDER no. 12, SERIES 2001:Omnibus Guidelines for the Issuance ofEmployment Permits to Foreign Nationals; thefollowing are required to apply for an AlienEmployment Permit (AEP):

4 Re-check Codal; di nag-ma-match numbers e; Book 7: Title 1:

Penal Provisions and Liabilities; 288 (Penalties) - 289 (Liable

Officers of Juridical Person); Title 2: Prescription; 290:

Offenses: 3 years

1.) All foreign nationals seeking admission the Philippines for the purpose employment;

2.) Missionaries or religious workers wintend to engage in gainful employment;

3.) Holders of Special Investors Resident Vi(SIRV), Special Retirees Resident V(SRRV), Treaty Trades Visa, or Special NoImmigration Visa, who occupy aadvisory, supervisory, or technical positi

in any establishment;4.) Agencies, organizations, or individu

whether public or private, who secure tservices of foreign professional to practtheir professions in the Philippines undreciprocity and international agreements;

5.) Non-Indo Chinese Refugees who aasylum seekers and given refugee status the UN High Commissioner on Refuge(UNHCR) of the DOJ under the DDepartment Order no. 49, 1998.

6.) Resident foreign Nationals seekiemployment in the Philippines (see D.no. 21-02 which suspends until furth

notice the requirement for ResideForeign Nationals to secure AEP)

D.O. 12-01 further, EXEMPTS the following froAEP requirements:

1.) All members of the diplomatic services aforeign government officials accredited the Philippine Government;

2.) Officers and staff of the internationorganizations of which the Philippigovernment is a cooperating member, atheir legitimate spouses desiring to work the Philippines;

3.) Foreign nationals elected as members the Governing Board who do not occuany other position, but have only votirights in the corporation, and

4.) All foreign nationals granted exemption special laws and all other laws that may promulgated by Congress

Basis for issuing AEP:a.) Compliance by the applica

employer or the foreign nationwith the substantive adocumentary requirements;

b.) Determination of the DOSecretary that there is no Filipi

national who is competent, aband willing to do the job for whithe services of the applicant desired;

c.) Assessment of the DOSecretary that the employment the Foreign national will redouto national benefit.

- Understudy Program is no longer requirfor the issuance of AEP

- G.R. Validity of AEP is for ONE YEAR unlethe employment contract, consultanservices, or other modes of engagement


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term of office for elective officers, providesfor a longer period;

- RENEWAL OF AEP: application must be filedat least 15 days before its expiration;

- EFFECTIVITY OF RENEWAL: one day afterthe expiration of previous permit;regardless of whether or not the renewal isgranted before or after the expiration of theprevious permit;

GENERAL RULE: PERMITS VALID ONLY FOR THEPOSITION AND EMPLOYER FOR WHICH THEY WEREISSUED; except in cases of holders of MULTIPLEPOSITIONS IN ONE CORPORATION

Art. 42 Submission of ListAny employer employing non-resident foreign nationalson the effective date of this Code, shall submit a list ofsuch nationals to the Secretary of Labor within thirty(30) days after such date indicating their names,citizenship, foreign and local addresses, nature ofemployment and status of stay in the country. TheSecretary of Labor shall then determine if they areentitled to an employment permit.

BOOK TWOHUMAN RESOURCES DEVELOPMENTTITLE I:MANPOWER DEVELOPMENT PROGRAMCHAPTER 1NATIONAL POLICIES AND ADMINISTRATIVE

MACHINERY FOR THEIR IMPLEMENTATION

Articles 43 56; pertaining to National Manpower andYouth Council has been replaced and absorbed by theTESDA (Technical Education and Skills DevelopmentAuthority) created under RA7796 which was approvedon August 25, 2994.

For the complete copy of Republic Act 7796: TheTESDA Act of 1994,see Appendix II-1 of Azucenas Labor Book

For the complete copy of the Implementing Rules

for R.A. 7796,see Appendix II-1.1. of Azucenas Labor Book

Declaration of Policy: It is the declared policy of theState to provide relevant, accessible, high quality andefficient technical education and skills development insupport of the development of high quality Filipinomiddle-level manpower responsive to and in

accordance with Philippine development goals andpriorities.

Private Sector Participation The State shall encouragethe active participation of various concerned sectors,particularly private enterprises, being directparticipants in and immediate beneficiaries of a trainedand skilled workforce, in providing technical educationand skills development opportunities.

TITLE II TRAINING AND EMPLOYMENT OFSPECIAL WORKERS

Chapter 1: APPRENTICES

Art. 57 Statement of Objectives1. To help meet the demand of the econom

for trained manpower;2. To establish a national apprenticesh

program through the participation employers, workers and governmeand non-government agencies; and

3. To establish apprenticeship standards f

the protection of apprentices.

Art. 58 Definition of TermsAs used in this Title:

a.) Apprenticeship means any practitraining on tjobsupplementedby relattheoreticalinstruction;

b.) An Apprentice is a worker who is covered a writtapprenticeshi

agreement wan individuemployer any entitrecognizedunder tChapter;

c.) An Apprenticeable Occupation means atrade, form employment occupationwhich requirmore ththree (

months practicaltraining on tjobsupplementedby relattheoreticalinstruction;(see R.A. 779d.)ApprenticeshiAgreement an employmecontract

wherein temployer binhimself to trathe apprentand tapprentice turn accepthe terms training.

Art. 59 Qualifications of an ApprenticeTo qualify as an apprentice, a person shall:


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(a) Be at least fourteen (14) years ofage;

(b) Possess vocational aptitude andcapacity for appropriate tests;and

(c) Possess the ability to comprehendand follow oral and writteninstructions.

Trade and industry associations may recommend to theSecretary of Labor appropriate educational

requirements for different occupations.

Art. 60 Employment of Apprentices Apprenticeship is the arrangement and the period

when an upcoming worker undergoes hands-ontraining, more or less formal, to learn the ropes ofa skilled job. It is usually the point of entry to theworld of work.

Department Order no. 8; March 9, 1989 DOLEPolicy on Apprenticeship; by virtue of which, theDOLE is required to undertake the review of trades,occupation, and jobs in all sectors of the economyto determine the apprenticeability, after which itshall submit a list of apprenticeable occupations.

The apprenticeable age under this Article is 14, butunder the IRR, its 15, now under R.A. 7610 thereis an explicit prohibition on employment of childrenbelow 15 years of age, although the said lawrecognizes certain exceptions, an apprenticeship isnot included in the enumeration.

Art. 61Contents of Apprenticeship Agreements

Apprenticeship need DOLEs prior approval, orApprentice becomes regular employee

- Nitto Enterprises v. NLRC and R. Capili(G.R. no. 114337) September 29, 1995

- It is mandated that apprenticeshipagreements entered into by an employerand an apprentice shall be entered only inaccordance with the apprenticeshipprogram duly approved by the Minister ofLabor and Employment; hence, since theapprenticeship agreement betweenpetitioner and private respondent has noforce and effect in the absence of a validapprenticeship program duly approved bythe DOLE, private respondents assertionthat he was hired not as an apprentice butas a delivery boy deserves credence.

Art. 62 Signing of Apprenticeship Agreement

Every apprenticeship agreement shall be signed by theemployer or his agent, or by an authorizedrepresentative of any of the recognized organizations,associations or groups and by the apprentice.

An apprenticeship agreement with a minor shall besigned in his behalf by his parent or guardian, if thelatter is not available, by an authorized representativeof the Department of Labor, and the same shall bebinding during its lifetime.

Every apprenticeship agreement entered into under tTitle shall be ratified by the appropriate apprenticeshcommittees, if any, and a copy thereof shall furnished both the employer and the apprentice.

Art. 63 Venue of Apprenticeship Programs

Any firm, employer, group or association, industorganization or civic group wishing to organize apprenticeship program may choose from any of tfollowing apprenticeship schemes as the training venfor apprentice:

Apprenticeship conducted entirely by and within tsponsoring firm, establishment or entity;

Apprenticeship entirely within a Department of Laband Employment training center or other public trainiinstitution; or

Initial training in trade fundamentals in a training centor other institution with subsequent actual woparticipation within the sponsoring firm or entity durithe final stage of training.

Art .64 - Sponsoring of Apprenticeship Program

Any of the apprenticeship schemes recognized heremay be undertaken or sponsored by a single employor firm or by a group or association thereof or by a civorganization. Actual training of apprentices may

undertaken:

In the premises of the sponsoring employer in the caof individual apprenticeship programs;

In the premises of one or several designated firms the case of programs sponsored by a group association of employers or by a civic organization; or

In a Department of Labor and Employment trainicenter or other public training institution.

Art. 65 -Investigation of Violation Apprenticeship Agreement

Upon complaint of any interested person or upon own initiative, the appropriate agency of tDepartment of Labor and Employment or its authorizrepresentative shall investigate any violation of apprenticeship agreement pursuant to such rules aregulations as may be prescribed by the Secretary Labor and Employment.


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Learners are persons hired as trainees in semi-skilledand other industrial occupations which are non-apprenticeable and which may be learned throughpractical training on the job in a relatively short periodof time which shall not exceed three (3) months.

Art. 74 When Learners may be hiredLearners may be hired when:

a.) no experienced workers are available,b.) the employment of learners is necessary to

prevent curtailment of opportunities; andc.) the employment does not create unfair

competition in terms of labor costs or impairor lower working standards.

Art. 75 Learnership AgreementAny employer desiring to employ learners shall enterinto a learnership agreement with them, whichagreement shall include:

a.) the names and addresses of the learners;b.) the duration of the learnership period,

which shall not exceed three (3) months;c.) the wages or salary rates of the learners

which shall begin at not less than seventy-

five (75%) percent of the applicable legalminimum wage; and

d.) a commitment to employ the learners ifthey so desire, as regular employees uponcompletion of the learnership. All learnerswho have been allowed or suffered to workduring the first two (2) months shall bedeemed regular employees if training isterminated by the employer before the endof the stipulated period through no fault ofthe learner.

The learnership agreement shall be subject toinspection by the Secretary of Labor, or his dulyauthorized representatives.

Art. 76 Learners in PieceworkLearners employed in piecework or incentive-rate jobsduring the training period shall be paid in full for thework done.

Art. 77 Penalty ClauseAny violation of this Chapter or its IRRs shall be subjectto the general penalty clause provided for in this Code.

Learnership v. Apprenticeship:BOTH: Training periods for jobs requiring skillsthat can be acquired through actual workexperience; both learner and apprentice may be

paid wages twenty-five (25%) percent lowerthan the applicable legal minimum wage

Learnership Apprenticeship

- training in semi-skilledjob; industrial occupationsthat require training forless than 3 months- job is non-apprenticeablebecause its practical skillscan be learned in 3 (not 6)months- commitment to hire a

- training in highly-skilledjob; job found in highly-technical industry; trainingperiod exceeds 3 months- minimum period is 6months- no commitment to hirean apprentice even aftercompletion of period

learner after the period- no need for priorapproval from DOLE interms of hiring

- prior DOLE approvrequired for hiriapprentices

Learner is not an apprentice, but an apprentis considered a learner.

Chapter III HANDICAPPED WORKERS

Art. 78 DefinitionHandicapped workers are those whose earning capacis impaired by age, or physical or mental deficiency injury.

Art. 79 When EmployableHandicapped workers may be employed when:

a.) their employment is necessary to prevecurtailment of employment opportunities; and

b.) it does not create unfair competition in labcosts or impair or lower working standards.

Art. 80 Employment AgreementAny employer who employs handicapped workers shenter into an employment agreement with them, whiagreement shall include:

a.) the names and addresses of thandicapped workers to be employed;

b.) the rate to be paid the handicapped worketo be employed which shall be not less thseventy-five (75%) percent of tapplicable legal minimum wage;

c.) the duration of the employment period; and.) the work to be performed by t

handicapped workers.The employment agreement shall be subject

inspection by the Secretary of Labor or his duauthorized representatives.

Art. 81 Eligibility for ApprenticeshipSubject to the appropriate provisions of this Codhandicapped workers may be hired as apprentices learners if their handicap is not such as to effectiveimpede the performance of job operations in tparticular occupations for which they are hired.

The MAGNA CART FOR DISABLED PERSONRepublic Act no. 7277, March 24, 1992 insurequal opportunities for disabled persons aprohibits discrimination against them

Article 106.Contractor or subcontractor. Whenever employer enters into a contract with another person fthe performance of the formers work, the employeesthe contractor and of the latters subcontractor, if anshall be paid in accordance with the provisions of thCode.

In the event that the contractor or subcontractor fails pay the wages of his employees in accordance with thCode, the employer shall be jointly and severally liabwith his contractor or subcontractor to such employe


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completion of the jobm work or service contractedout.

Neri v. NLRC (1993)Law does not require both substantial capital andinvestment in the form of tools, eqpt, machineries,etc.

Filipinas Synthetic Fiber v. NLRC (1996)Where the contractor is a going concern duly

registered with the SEC with substantialcapitalization of P1.6M, P400T of which is actuallysubscribed, such contractor cannot be considered asengaged in LoC being a highly capitalized venture.

Control right reserved to the person for whomthe service of contractual workers are performed, todetermine not only the end to be achieved but alsothe manner and means to be used in reachingthat end.

Insular Life v. NLRC (1989)The fact that the complainant worker was requiredto solicit business exclusively for the alleged

employer could hardly be considered as control inlabor jurisprudence. Under the memo issued by theInsurance Commission, insurance agents are barredfrom serving more than 1 insurance company.

AFP MBAI v.NLRC (1997)Exclusive servicing does not necessarily mean beingunder the control, or employment of the entitybeing served.

1.3Consequence of LoC Worker supplied byAgency becomes employee of client company

PBCOM v. NLRC (1986)There is of course nothing illegal about hiringpersons to carry out a specific project orundertaking the completion or termination of which(was) determined at the time of the engagement ofthe employee, or where the work or service to beperformed is seasonal in nature and theemployment is for the duration of the season.

Given te circumstances of this case, CESI wasengaged in LoC vis--vis the petitioner bank. Thebank is liable to the employee as if the employeehad been directly employed not only by CESI butalso by the bank. But the bank may in turn proceed

against CESI to obtain reimbursement of, or somecontribution to, the amounts which the bank willhave to pay to Orpiada.

1.4Consequence of LoC Agency hired employeebecomes entitled to benefits under CBA of clientcompany

Tabas v. California Manufacturing Co (1989)The existence of an employer-empoyee relation is aquestion of law and being such, cannot be made thesubject of agreement.

Employee is reinstated with the full status arights of regular employees; all benefits as may provided by existing CBA or other relations or law.

2. 2nd set of prohibitions Arrangements thviolate public policy (DO 18-02)

Not LoC but are likewise prohibited because thcontravene public policy:

Prohibitions:

a) Contracting not done in good faith and njustified by the exigencies of the busineand the same results in the termination regular employees and reduction of wohours or reduction or splitting of tbargaining unit

b) Contracting with caboc) Contracting with in house agencyd) Contracting bec of strike or lockoute) Contracting that constitutes ULP under A

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3. 3RD set of prohibitions Exploitative actsTaking undue advantage of the econom

situation or lack of bargaining strength of tcontractual employee or undermining security of tenure or basic rights, circumventing the provisions of reguemployment, in any of the ff instances:i) in addition to his assigned function

requiring the contractual employee perform functions done by reguemployees

ii) Requiring him to sign as a preconditito employment/continuance: antedatresignation letter; blank payroll; waivof labor standards incl min wage, socor welfare benefits; quitclaim

iii) Contract with period of employmeshorter than term of contract bprincipal & contractor/subcon, unlecontract is divisible into phases for wsubstantially different skills are reqdthis known to employee at time engagement

4. Extent of employer;s liability in invacontracting and violation of othpohibitions

Liability is immediately and directly imposed upthe principal, as if directly hired by the employe

(Broadway Motors v. NLRC)

Rosewood ProcessingIf the liability is in the nature of a penalty, such backwages and separation pay because of wrongful dismissal, the liabilithy should be solethat of the contractor if there is no proof that tprincipal conspired with the contractor committing the wrongful dismissal of tcontractors worker.

5. Legitimate Contracting IndependeContractor/Job Contracting


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Legitimate when the following circumstancesconcur:i) Contractor carries on a distinct and

independent business & undertakes toperform job, work or service on its ownaccount and under its own responsibility,according to its own manner and methodand free from the control and direction ofthe principal in all matter connected withthe perf of work except as to the results

thereofii) Contractor has substantial capital or

investmentiii) Contractual agreement assures contractual

employees entitlement to all labor,occupational safety and health standards,right to self organization, security of tenure,social and welfare benefits.

In legitimate or valid contracting, what is contractedis the performance of a job and the contractor is anindependent businessman capable of doing the jobby his own means and methods. (Andovo v. MRR)

An independent contractor is one who exercisesindependent employment and contracts to do apiece of work according to his own methods andwithout being subject to control of his employerexcept as to the result of the work. (MafincoTrading v. Ople)

To restate, the significant factor in determining therelationship of the parties is the presence orabsence of supervisory authority to control themethod and the details of performance of theservice being rendered and the degree to which theprincipal may intervene to exercise such control(AFP MBAI v. NLRC).

7.1 Summary of Legitimate LaborContractingLegitimate when:i) contractor is a job contractor and not a

labor only contractorii) properly registered in accordance with DO

18-02does not fall under Sec 5 or 6 of DO 18-02.

7.2 Examples of Independent Contractor

DealershipMafinco Trading Corp v. OpleWhere the peddler shall have the right to employ

his own workers, shall post a bond to protect themanufacturer against losses, shall be responsiblefor damages caused to 3rd persons, shall obtainnecessary licenses and permits and bear theexpenses incurred in the sale of soft drinks is not acontract of employment. independentcontractors.

Commission AgentInsular Life v. NLRCUnder the contract, Basiao is not an employee ofInsular life but a commission agent, an independentcontractor whose claim for unpaid commissions

should have been litigated in an ordinary caction.

Messengerial/Janitorial ServiceRhone-Poulenc Phils v. NLRCThe respondents themselves admitted that thwere selected and hired by CSI and were assignto Union Carbide. [Union Carbide was bought Rhoune Poulenc.]The janitors drew their salaries from CSI whi

exercised control over them. Moreover, CSI hthe power to assign its janitors to various clienand to pull out.

Independent OperatorUshio v. NLRCSeverino is one of those independent, free lanoperators who offer services to customers of auparts shops along Banawe.The power to control the employees conduct absent, with respect to the means and methods which his work was to be accomplished.

Private respodent was free to offer his services

other stores along Banawe.

5.3Judicial Notice of Job ContractingNeri v. NLRCJudicial notice of general practice adopted in govtprivateinstitutions of hiring independecontractings to perform special services janitorisecurity or even technical or other specific service

6. A manpower company may be a LoC in oncase but an independent contractor another

Coca Cola Bottlers v. HingpitIn 1st case, it failed to prove that Lipercon h

substantial capital, investment, tools, etc. present case, Lipercon established its character an independent contractor.

Escario v. NLRCIn earlier case of Tabas v. CMC, Livi was determinto be an LoC. But reliance of Tabas case misplaced because Livi was a mere placemeagency that had simply supplied CMC wmanpower necessary to carry out the companmerchandizing activity.

But in this case, applying the 4-fold test determining employer-employee relationship, t

status of Admark as the true employer of tpetitioners is further established.

7. Extent of Principals liability in legcontracting

Contractor considered being the employer of tcontractual employee for purposes of enforcing tprovisions of the Labor Code and other Soclegislation. (DO 18-02)

The principal shall be solidarily liable with tcontractor in the event of any violation of t


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provisions of the Labor Code, including failure topay wages. (DO 18-02).

9.1 As to payment of wages/money claimsWhen a contractor fails to pay the wages of hisemployees in accordance with the Labor Code, theemployer who contracted out the job becomesjointly and severally liable with the contractor to theextent of the work performed under the contract. as if such employer were the employer of the

contractors employee. (PBCOM v. NLRC)

Legislated wage increases are deemed amendmentsto the contract. (Rosewood Processing; also NFA)

9.2 As to other violationsUnder DO 18-02, Sec 7 par 1, indirectemployer is solidarily liable.

Rosewood Processing v. NLRCLiability does not extend to the payment ofbackwages and separation pay of employees whowere constructively or illegally dismissed by thecontractor no showing that principal conspired in

effecting illegal dismissal.An order to pay backwages and separation pay isinvested with a punitive character such that anindirect employer should not be made liable withouta finding that it had committed ot conspired in theillegal dismissal.

Solidary Liability - Limitation to extent of workperformed under contract, to perf of any work, taskjob or project, to extent of their civil liability onpayment of wages.

8. Rights of contractual employeesContractual employees entitled to all rights and

privileges due a regular employee as providedunder labor code to include:

a) safe and healthgul working conditionsb) Labor standardsc) Social security and welfare benefitsd) Self organizations, CBA, peaceful concerted

actione) Security of Tenure

8.1 Security of TenureIn case of pre-termination of contract bet principal& contractor governed by applicable lawsExpiration of contract bet principal & contractor not entitled to separation pay

9. Registration of ContractorsRegistration of contractor with DOLE regional office.An unregistered contractor is presumed to be alabor-only contractor.

Documents

Labor Rev Midterm