azucena labor review

7/27/2019 AZUCENA Labor Review

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Labor Law I Atty. C.A. AzucenaFinals Reviewer

PRELIMINARY TITLE

Chapter I GENERAL

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, and benefits ofemployment that employers must provide andcomply with and to which employees areentitled to as a matter of right.

Labor relations law is that which defines thestatus, rights and duties, and the institutionalmechanisms, that govern the individual andcollective interactions of employers,employees or their representatives.

Labor is understood as physical toil, althoughit does not necessarily involve the applicationof skill. Skill, by dictionary definition, is thefamiliar knowledge of any art or science,united with readiness and dexterity inexecution or performance or in the

application of the science or art to practicalpurposes.

Work is broader than labor as work covers

all 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 furtherance ofsocial justice. In that sense, labor laws arenecessarily 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 improvement ofeconomic 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 engage in

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peaceful concerted activities, including tostrike in accordance with law, to enjoysecurity of tenure, to work under humane

conditions, to receive a living wage, toparticipate in policy and decision makingprocesses affecting their rights and benefitsas may be provided by law.

4.1.Balancing of Rights; the Constitutional Principleof Shared Responsibility

While labor is entitled to a just share inthe fruits of production, the enterprisehas an equally important right not onlyto reasonable returns in investment but

also to expansion and growth. TheConstitution commands the State topromote the principle of sharedresponsibility between employers andworkers and the preferential use ofvoluntary modes of settling disputes,including conciliation, and to enforcetheir mutual compliance therewith tofoster industrial peace.

Constitutional outlook suggests a

balanced treatment.5. POLICE POWER AS THE BASIS

The right of every person to pursue abusiness, occupation or profession is subjectto the paramount right of the government as apart of its police power to impose such

restrictions and regulations as the protectionof the public may require.

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

Labor Code The objective was not merely to consolidate

the then existing pieces of social legislation,but also to reorient them to the needs ofeconomic development and justice.

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

national development Must substitute rationality for confrontation in

times of national emergencies Must be made expeditious without sacrificing

due process Manpower development and employment must

be regarded as a major dimension of laborpolicy

Availability of a global labor market toqualified Filipinos

Must command adequate resources andacquire capable machinery for effective andsustained implementation

There should be popular participation innational policy making through what is nowcalled tripartism

8. SOME LABOR LAWS BEFORE THE PASSAGE OF THECODE

Act 1874 or the Employers Liability Act


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Act 2549 which prohibited payment of wagesin non-cash form

RA 1054 which required emergency medical

treatment for employees 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 or

patterned after statutes in foreignjurisdiction, 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.

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, 13

th

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 the promotionof social justice and internationallyrecognized human and labor rights.

The ILO formulates international laborstandards in the form of Conventions andRecommendations setting minimum standards

of basic labor rights. An essential characteristic of ILO is

tripartism, 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 fundamental principles onwhich the ILO is based. Also, as an ILOmember, the Philippines imbibes the

obligation of the ILO to further programs thatwill achieve ILO objectives.

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

Forced Labor Convention (1930); Freedom ofAssociation and Protection of the Right toOrganize Convention (1948); Freedom to


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Organize and Collective Bargaining Convention(1949); equal remuneration Convention(1951); Abolition of Forced Labor Convention

(1957); Discrimination (Employment andOccupation) Convention (1958); Minimum AgeConvention (1973); and Worst Forms of ChildLabor Convention (1999).

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

Fundamental Principles and Right at Workconcerning an obligation of all ILO membersto respect and promote the fundamentalrights even if they have not ratified the

conventions.11.4. Ratified ILO Conventions

As of the end of 2000, the Philippines hasratified thirty ILO Conventions, includingsignificantly, the core conventions onfreedom of association, on abolition of forcedlabor, on abolition of child labor, and on non-discrimination.

A labor law expert asserts that the Philippinescan claim with some pride that it belongs to

the upper 25% of the ILO members on thebasis of efforts taken to approximate laborstandards.

Article 3: DECLARATION OF BASIC POLICY

COMMENTS

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

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

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

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

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

favor labor to prejudice capital. The plain reality is

that both sectors need each other. They areinterdependent- one is inutile without the other.

The better understanding is that the basic policy isto balance or coordinate the rights and interests ofboth workers and the employers.

Article 4: CONSTRUCTION IN FAOVR OF LABOR

COMMENTS AND CASES

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

The working mans welfare should be theprimordial and paramount consideration. Thepolicy is to extend the Decrees applicabilityto a greater number of employees to enable


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them to avail of the benefits under the law, inconsonance with the States avowed policy togive maximum aid 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 Protection toEmployees In the matter of employment bargaining,

there is no doubt that the employer stands onhigher footing than the employee.

This is because there is a greater supply than

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 is

nothing dirty about profit per se it is profitthat creates jobs and improves the workerslot.

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

rules and regulations for the government oftheir employees, and when employees, with

knowledge of an established rule, enter theservice, the rule becomes a part of thecontract of employment.

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 fullfreedom in employing any person free toaccept employment from him, and this,except as restricted by valid statute and validcontract, at a wage and under conditionsagreeable to them.

State cannot interfere with the liberty to

contract with respect to labor, except in theexercise of police power.

The right of a laborer to sell his labor to suchperson as he may choose is, in its essence, thesame as the right of an employer to purchaselabor from any person whom it chooses.

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

transfer, reduce, or lay off personnel in orderto minimize expenses and to insure the

stability of the business, and even to close thebusiness, and this right has been consistentlyupheld, provided the transfer or dismissal isnot abused but is done in good faith and isdue to causes beyond control.

Article 5: RULES AND REGULATIONS


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COMMENTS AND CASES

1. RULES AND REGULATIONS TO IMPLEMENT THE CODE1.1.When Invalid

If promulgated in excess of its rule makingpower, the resulting rule or regulation is void.

Article 6:APPLICABILITY

COMMENTS AND CASES

1. APPLICABILITY TO GOVERNMENT CORPORATIONS The ruling now is that the Labor Code applies

to a corporation incorporated under theCorporation Code.

Government corporations created by specialcharter from Congress are subject to civilservice rules, while those incorporated underthe Corporation Code are covered by theLabor code.

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

The terms governmental agency orinstrumentality are synonymous in thesense that either of them is a means by whicha government acts, or by which a certaingovernment act or function is performed. Theword instrumentality with respect to thestate, contemplates an authority to which the

state delegates government power for theperformance of a state function.

Example: The National Parks Development

Committee is an agency of the government,not a government-owned or controlledcorporation. Its employees are covered bycivil service rules and regulations, since theyare civil service employees.

But if function is proprietary in nature, itsemployees are governed by the Labor Code.

3. APPLICABILITY WITHOUT EMPLOYER-EMPLOYEERELATIONSHIP

The Labor Code may apply even if the parties

are not employers and employees of eachother.

The Labor Code applies with or withoutemployment relationships between thedisputants, depending on the kind of issueinvolved.

For example, when one speaks of employmentbenefits, then surely, employmentrelationship is an essential element. But whenthe issue, for instance, is an indirect

employers liability, there is no employer-employee relationship and yet the pertinentLabor Code provisions find application.


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Chapter II EMANCIPATION OFTENANTS

1

Article 7: STATEMENT OF OBJECTIVESArticle 8: TRANFER OF LANDS TO TENTN-WORKERSArticle 9: DETERMINATION OF LAND VALUEArticle 10: CONDITION OF OWNERSHIPArticle 11: IMPMENTING AGENCY

COMMENTS AND CASES

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

land among our people. Hence, the Constitution of1987 adopted a whole article containing provisionsfor the uplift of the common people, thus: TheState shall, by law, undertake an agrarian reformprogram founded on the right of farmers and regularfarmworkers, who are landless, to own directly orcollectively the land they till or, in the case of otherfarmworkers, to receive a just share of the fruitsthereof.

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

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

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

towards the ultimate status of owner-cultivator, a

goal sought to be achieved by the governmentprogram of agrarian reform.

3. CONSTITUTIONAL PROVISIONS

4. COMPENSATION SCHEME Title to all expropriated properties shall be

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

5. RETENTION LIMITS in no case shall retention by the landowner exceed

5 hectares.6. LANDS NOT COVERED

6.1.Lands Obtained Through Homestead Patent The Philippine Constitution respects the

superiority of the homesteaders rights overthe rights of the tenants.

Homestead Act has been enacted for thewelfare and protection of the poor. The lawgives a needy citizen a piece of land where hemay build a modest house for himself and hisfamily and plant what is necessary forsubsistence and for the satisfaction of lifesother needs.

6.2.Residential Subdivisions An agricultural leasehold cannot be

established on land which has ceased to bedevoted to cultivation or farming because ofits conversion to a residential subdivision.(Gonzales vs. CA)

6.3.Livestock, Poultry and Swine Raising Lands

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


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There is simply no reason to include livestockand poultry lands in the coverage of agrarianreform.

BOOK ONEPRE-EMPLOYMENT

Article 12: STATEMENT OF OBJECTIVES

COMMENTS

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 the countrys

manpower resources;b. The advancement of workers welfare by

providing for just and humane workingconditions and terms of employment;

c. The maintenance of industrial peace bypromoting harmonious, equitable and

employment relations that assure protectionfor the rights of all concerned parties.

Title IRECRUITMENT AND PLACEMENT OF WORKERS

Chapter I GENERALPROVISIONS

Article 13: DEFINITIONS

COMMENTS

ARTICLE 13 (B) CONSTRUED; WHAT CONSTITUTESRECRUITMENT AND PLACEMENT

The number of persons is not an essential ingredientof the act of recruitment and placement of workers.Any of the acts mentioned in the basic rule in Article13 (b) will constitute recruitment and placementeven if only one prospective worker is involved.(People vs. Panis)

It must be shown that the accused gave thecomplainant the distinct impression that she had the

power or the ability to send the complainant abroadfor work, such that the latter was convinced to partwith her money to be so employed. Where such anact or representation is not proven, there is notrecruitment activity and conviction for illegalrecruitment has no basis. (People vs. Goce)


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By themselves, procuring a passport, airline ticketsand foreign visa for another individual, withoutmore, can hardly qualify as recruitment activities.

(Darvin vs. CA)

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

Article 16: PRIVATE RECRUITMENT

Article 14: EMPLOYMENT PROMOTION

AUTHORIZED ENTITIESCOMMENTS

COMMENTS

EMPLOYMENT PROMOTION To pursue its responsibility to promote employment

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

Article 15: BUREAU OF EMPLOYMENT SERVICES

COMMENTS1. LOCAL EMPLOYMENT

The Bureau of Employment Services has beenreplaced by the Bureau of Local Employment (BLE)through EO 797 (May 1, 1982)

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

and information center in its area ofoperation. It regularly obtains a list of jobvacancies from employers, publicizes them,invites and evaluates applicants, and refersthem for probable hiring.

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

a. public employment offices b.Private recruitment entities c.Private employment agenciesd. Shipping or manning agents or

representativese. POEAf. Construction contractors if authorized

to operate by DOLE and theConstruction Industry Authority

g. Members of the diplomatic corpsalthough hirings done by them haveto be processed through the POEA

h. Other persons or entities as may beauthorized by the DOLE Secretary.

Article 17: OVERSEAS EMPLOYMENT DEVELOPMENTBOARD

COMMENTS AND CASES


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1. OVERSEAS EMPLOYMENT, A BRIEF HISTORY Labor migration in the Philippines began in the 1900s

when Hawaii experienced severe manpower

shortage. 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 OVERSEAS EMPLOYMENT Act 2486: first law passed by Philippine Congress

relating to overseas employment PD 442: Labor code, paved the way for stricter

government regulation of the overseas employment

industry. PD 1412: revived private sector participation in the

recruitment 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 sustain economicgrowth and achieve national development.

The existence of overseas employmentprogram rests solely on the assurance that thedignity and fundamental human rights and

freedoms of the Filipino citizen shall not, atany time, be compromised or violated.

3.2.Selective Deployment RA 8042 requires certain guarantee of

protection for the overseas worker beforethey are deployed in countries that meetsome criteria:

o It has existing labor and social lawsprotecting the rights of migrantworkers;

o It is a signatory to multilateralconventions, declarations or resolutionsrelating to the protection of migrant

workers;o It has concluded a bilateral agreement or

arrangement with the governmentprotecting the rights of Filipino migrantworkers;

o It is taking positive, concrete measuresto protect the rights of migrantworkers.

Notwithstanding this the government, inpursuit of national interest or when public

welfare so requires, may, at any time,terminate or impose a ban on the deploymentof migrant workers.

4. THE POEA: OVERVIEW OF ITS FUNCTIONS AND POWERS Among the principal functions of the POEA are the

formulation, implementation, and monitoring of the


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overseas employment of the Filipino workers and theprotection of their rights to fair and equitableemployment practices.

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

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

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

the recruitment and overseas placement of workers

through its licensing ad registration system.6. ADJUDICATORY FUNCTIONS OF POEA

Before the passage of RA 8042, POEA had originaland exclusive jurisdiction to hear and decide the ffcases:

a. Recruitment violation and relatedcases consisting of all preemploymentcases which are administrative incharacter, involving or arising out ofrecruitment laws, rules and

regulations, including money claimstherefrom or violations of theconditions for issuance of license torecruit workers.

b. Employer-emploee relations casesconsisting of all claims arising out ofan employer-employee relationship or

b virtue of any law or contractinvolving Filipino workers in overseasemployment.

c. Disciplinary action cases consisting ofall complaints against a contractworker for breach of discipline.

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

jurisdiction over employer-employeerelations cases.

Section 10 of the said law providesthat Labor Arbiters shall have theexclusive and original jurisdiction to

hear and decide claims arising out ofan employer-employee relationship orby virtue of any law or contractinvolving Filipino workers for overseasemployment including claims foractual, moral, exemplary and otherforms of damages.

RA 8042 not only transferred fromPOEA to NLRC the jurisdiction overmoney claims of OFWs, it even

expanded the scope of such moneyclaim. When the jurisdiction was stillwith the POEA, the jurisdictioncovered only money claims involvingFilipino workers for overseasemployment. Now the NLRCjurisdiction is over money claims


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involving Filipino workers for overseasdeployment.

RA 8042 allows for claims for money

or damages sustained during theperiod of deployment or beforedeparture 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.6.4.Mandatory Principle

Non-compliance with the periodsprovided for under the law willsubject the responsible officials topenalties such as withholding ofsalaries until compliance, suspension,or dismissal from service.

7. EMPLOYER-EMPLOYEE RELATIONS CASES: TERMINATIONOF EMPLOYMENT

7.1.Contractual Employees Sea farers are contractual employees.(Millares and Lagda vs. NLRC)

7.2.Premature Termination of Contract Where the workers employment

contract is terminated before itsagreed termination date, and the

termination is not shown to be basedon lawful or valid grounds, theemployer will be ordered to pay the

workers their salaries correspondingto the unexpired portion of theiremployment contract. (TierraConstruction vs. NLRC)

7.3.Pretermination Under R.A. No. 8042; July 15,1995 Onward

The date of the employmenttermination is material. If it occurredon or after July 15, 1995, the law toapply is RA 8042.

Under Section 10, a worker dismissedfrom overseas employment withoutjust, valid or authorized cause asdefined by law or contract, is entitledto a full reimbursement of hisplacement fee with interest at 12%per annum, plus his salary for theunexpired portion of his employmentcontract or for 3 months for everyyear of the unexpired term,

whichever is less.8. EMPLOYER-EMPLOYEE RELATIONS CASES: MONEY CLAIMS;

EMPLOYERS NATIONALITY IMMATERIAL Statutes and regulations do not limit the coverage to

non-Filipino employers. Filipinos working overseasshare the same risks and burdens whether theiremployers be Filipino or foreign.


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

Filipino seamen allows the payment of deathbenefit pension, funeral benefit, and burialgratuity for the private respondent.

These claims arose from the responsibility ofthe foreign employer together with the localagency for the safety of the employeeduring his repatriation and until his arrival inthis country, i.e. the point of hire. (Inter-Orient Maritime Enterprises vs. NLRC)

8.2.Illustrative Case: Death Benefit Under the

Standard 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 willful anddeliberate act. In this case, the evidence doesnot substantially prove that the seamencontracted tetanus as a result of theunsanitary surgical procedures they performedon themselves. Hence, the death benefits

under the employment contract must be paid.(NFD International Manning Agents vs. NLRC)

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

to require payment of domestic obligations inforeign currency, this particular statute is notapplicable in the case at bar. The fixing of the

award in dollars was based on the partiesemployment contract, stipulating that wagesand benefits in dollars, since private

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

9. DISCIPLINARY ACTION CASES The POEA may motu propio undertake a

disciplinary action against a worker for breachof discipline. It shall also establish a system ofwatching and blacklisting OCWs.

9.1.Grounds for Disciplinary Action

a. Commission of a felony punishable byPhilippine laws or laws of hostcountry;

b. Drug addiction or possession ortrafficking of prohibited drugs;

c. Desertion or abandonment;d. Gambling;e. Initiating or joining a strike, where

prohibited;f. Creating trouble at the work site;

g. Embezzlement of company funds orother properties;

h. Theft or robbery;i. Prostitution;j. Vandalism;k. Gunrunning or possession of deadly

weapons;


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l. Unjust refusal to depart for aworksite after all documents havebeen prepared;

m. Violations of the law and sacredpractices of the host country andunjustified breach of the employmentcontract.

10. OUTSIDE POEA JURISDICTION The POEA has no jurisdiction to hear and

decide a claim for enforcement of a foreignjudgment. Such a claim must be broughtbefore the regular courts. This is because thePOEA is not a court, it is only an

administrative agency.10.1. No Jurisdiction Over Torts

Intention must be to seek and claimprotection under the Labor Code and not theCivil Code. In the case at bar, the itemsdemanded are not labor benefits such aswages, overtime pay or separation pay, butare items claimed as natural consequences ofhis dismissal (which he denominates asdamages.) POEA has no jurisdiction.

Article 18: BAN ON DIRECT-HIRINGArticle 19: OFFICE OF EMIGRANT AFFAIRS

COMMENTS

Direct hiring of Filipino workers by a foreignemployer is not allowed except direct hiring bymembers of he diplomatic corps and others

mentioned 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) by BatasangPambansa Blg. 79.

Article 20: NATIONAL SEAMEN BOARD

COMMENTS AND CASES1. NSB NOW POEA

EO 797 abolished the NSB and transferred itsfunction to the POEA. But this adjudicatory functionof the POEA has since been moved to the NLRC by RA8042.

2. ARTICLE 20 CONSTRUED; SEAMENS EMPLOYMENTCONTRACTS AND THE INTERNATIONAL TRANSPORT

FEDERATION (ITF) Wallem Shipping vs. Ministry of Labor: Seamen who

were dismissed because they demanded that they bepaid the worldwide rate, instead of the lower FarEast rate as provided in their contracts ofemployment, did not commit serious misconduct as


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to warrant their dismissal. They were only exercisingtheir rights. Hence, dismissal was illegal.

Filipino seamen are admittedly as competent and

reliable as seamen from any other country in theworld; otherwise, there would not be so many ofthem in the vessels sailing in every ocean and sea onthis globe. They are entitled to governmentprotection when they ask for fair and decenttreatment by their employers and when theyexercise their right to petition for improved terms ofemployment, especially when they feel that theseare substandard or are capable of improvementaccording to internationally accepted rules. Also,

the standard forms embody the basic minimumswhich must be incorporated as parts of theemployment contract. They are not collectivebargaining agreements or immutable contracts whichthe parties cannot improve upon or modify in thecourse of the agreed peril of time. (Vir-jen Shippingvs. NLRC)

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

and benefits as contained in a POEA-approved

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

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

laches; each case is to be determined according toits particular circumstances. The question of lachesis addressed to the sound discretion of the court and

since it is an equitable doctrine, its application iscontrolled by equitable considerations. It cannot beworked to defeat justice or perpetrate fraud or

injustice. Where the claim was filed within the three-year

statutory period, recovery therefore cannot bebarred by laches. Courts should never apply thedoctrine of laches earlier than the expiration of timelimited for the commencement of actions at law.(Imperial Victory Shipping vs. NLRC)

5. MINIMUM EMPLOYMENT CONDITIONSa. Guaranteed wages for regular working

hours and overtime pay

b. Free transportation to and from theworksite, or offsetting benefit;

c. Free food and accommodation, oroffsetting benefit;

d. Just and authorized causes fortermination of contract taking intoconsideration the customs and normsof the host country.

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

conditions and other benefits not provided underthese minimum requirements, provided the wholeemployment package should be more beneficial to theworker than the minimum, and that the same not becontrary to law, public policy, and morals.

Article 21: FOREIGN SERVICE ROLE AND PARTICIPATION


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COMMENTS

1. 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.

2. 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.3. 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 by thePOEA and BLE.

4. REPATRIATION OF WORKERS The primary responsibility to repatriate a worker,

including his or her remains and personal effects,belongs to the principal or the agency that recruitedor deployed the worker.

If the termination is due solely to the fault of theworker, the principal or agency may recover the cost

of repatriation from the worker after return to thecountry.

If the principal of agency does not comply with this

obligation, the POEA shall notify the OWWA toadvance the repatriation cost with recourse to theagency or principal.

Article 22:MANDATORY REMITTANCE OF FOREIGNEXCHANGE EARNINGS

COMMENTSREMMITTANCE

Article 23: COMPOSITION OF THE BOARDS

COMMENTS

1. COMPOSITION OF THE POEA

Article 24: BOARDS TO ISSUE RULES AND COLLECT FEES

Chapter II

REGULATIONS OF RECRUITMENT ANDPLACEMENT ACTIVITIES

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

COMMENTS AND CASES

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1. 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, cannotbe used as a basis for the imposition ofadministrative sanctions.

Article 26: TRAVEL AGENCIES PROHIBITED TO RECRUIT

COMMENTS The POEA rules also disqualify persons with

derogatory records such as those convicted forillegal recruitment or other crimes involving moralturpitude, an official or employee of DOLE, POEA,OWWA, DFA and other government agencies directlyinvolved in the implementation of RA 8042 or any oftheir relatives within the fourth civil degree.

Article 27: CITIZENSHIP REQUIREMENTArticle 28: CAPITALIZATION

COMMENTS The required capitalization, according to POEA rules,

is a minimum of two million pesos in case of singleproprietorship or partnership and a minimum paid-upcapital of the same amount for a corporation.

Article 29: NON-TRANSFERABILITY OF LICENSE ORAUTHORITY

COMMENTS

PLACE OF RECRUITMENT Licensees or holders of authority or their duly-

authorized representatives may, as a rule, undertakerecruitment and placement activities only at theirauthorized official address.

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 effectiverecourse against such companies when held liable forapplicants and workers claims. (Finman GeneralAssurance vs. Innocencio)

Article 32: FEES TO BE PAID BY WORKERS


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The grounds for imposition of administrativesanctions include engaging in acts ofmisrepresentation for the purpose of securing a

license or renewal thereof, etc. The acts prohibitedunder Art. 34 are not just grounds for suspension orcancellation of license or authority. They likewiseconstitute illegal recruitment under RA 8042.

1.1.Concurrent Jurisdiction to Suspend or Cancel aLicense

The SC has affirmed the concurrent jurisdictionof the DOLE Secretary and the POEAAdministrator to suspend or cancel a license.

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

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

Even if the recruitment agency and the principal hadalready severed their agency agreement at the timethe worker was injuredm the recruitment agencymay still be sued for violation of the employmentcontract, if no notice of the agency agreements

termination was given to the employee. The responsibilities of the recruitment agency and

the principal to the worker extends up to and untilthe expiration of the employment contracts of theemployees recruited and employed pursuant to thesaid employment agreement.

3. SOLIDARY LIABILITY ASSUMED BY RECRUITMENT AGENT

Contract contained a provision empowering theagency to sue and be sued jointly and solidarily withthe foreign principal for any of the violations of the

recruitment 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 CrownInernationale vs. NLRC)

3.1.Required Undertaking by Agent

3.2.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 agent inthe 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 tofile a complaint.

4. SUABILITY OF A FOREIGN CORPORATION WHICH HIRESFILIPINO WORKERS

A foreign corporation which, through unlicensedagents, recruits workers in the country may be suedin and found liable by Philippine courts.


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5. 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 has stirredsome controversies which, to this day, continue toremain unresolved.

Chapter III Miscellaneous Provisions

Art. 36 Regulatory PowerThe Secretary of Labor shall have the power to restrict

and regulate the recruitment and placement activitiesof all 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 entity

covered by this Title, require it to submit reportsregularly on prescribed forms, and act on any violationsof this Title.

Art. 38 ILLEGAL RECRUITMENT2

2Amended by Republic Act 8042 or The Migrant Workers and

Overseas

Filipinos Act of 1995

As stated in the Code: (a) Any recruitment activities,including prohibited practices enumerated under Art. 34of this Code, to be undertaken by non-licensees or non-

holders of authority shall be deemed illegal andpunishable under Art. 39 of this Code. The DOLE or anylaw enforcement officer may initiate complaints underthis Article.

(b) Illegal Recruitment, whencommitted by a syndicate or in large scale shall beconsidered an offense involving economic sabotage andshall be penalized in accordance with Art. 39 hereof.

Illegal Recruitment is deemed committed by asyndicate if carried out by a group of three (3) or more

persons conspiring and/or confederating with oneanother in carrying out any unlawful of illegaltransaction, enterprise or scheme, defined under thefirst paragraph hereof. Illegal Recruitment is deemedcommitted in large scale if committed against three (3)or more persons individually or as a group.

(c) The Secretary of Labor andEmployment or his duly authorized representatives shallhave the power to cause the arrest and detention ofsuch non-licensee or non-holder of authority if after

investigation it is determined that hisactivitiesconstitute danger to national security and public orderor will lead to further exploitation of job-seekers. TheMinister shall order the search of the office or premisesand seizure of documents, paraphernalia, propertiesand other implements used in illegal recruitmentactivities and the closure of companies, establishments

Jojo Baetiong, Gel Baniqued, Elvira Castro, Denise Dy, Sheryl Harina, Giselle Remulla Page 20 of 1033B 2006-2007


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and entities found to be engaged in the recruitment ofworkers for overseas employment without having beenlicensed or authorized to do so.

Now, under RA 8042, the abovementioned articlehas been amended to also include LICENSED orAUTHORIZED entities; the list of ACTS CONSIDEREDAS ILLEGAL RECRUITMENT has also been EXPANDEDas found in SECTION 6, RA 8042:

Definition: xxx Illegal Recruitment shallmean any act of canvassing, enlisting,contracting, transporting, utilizing, hiring,

or procuring workers and includes referringcontract services, promising or advertisingfor employment abroad, whether for profitor not, when undertaken by a non-licenseeor non-holder of authority as contemplatedunder the Labor Code; Provided, that anysuch non-licensee or non-holder who, inany manner, offers or promises for a feeemployment abroad to two or morepersons shall be deemed so engaged. It

shall likewise include the following actswhether committed by any person,WHETHER A NON-LICENSEE, NON-HOLDER,LICENSEE OR HOLDER OF AUTHORITY:

a.) To change or accept directly orindirectly any amount greaterthan that specified in the

schedule of allowable feesprescribed by the DOLESecretary, or to make a worker

pay any amount greater thanthat actually received by him asa loan or advance;

b.) To furnish of publish any falsenotice or information ordocument in relation torecruitment or employment;

c.) To give any false notice,testimony, information ordocument or commit any act of

misrepresentation for thepurpose of securing a license orauthority under the Labor Code;

d.) To induce or attempt to induce aworker already employed to quithis employment in order to offerhim another unless the transferis designed to liberate a workerfrom oppressive terms andconditions of employment;

e.) To influence or attempt toinfluence any person or entitynot to employ any worker whohas not applied for employmentthrough his agency;

f.) To engage in the recruitment orplacement of workers in jobs


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harmful to public health ormorality or to the dignity of theRepublic of the Philippines;

g.) To obstruct or attempt toobstruct inspection by the DOLESecretary or by his dulyauthorized representative;

h.) To fail to submit reports on thestatus of employment,placement vacancies, remittanceof forex earnings, separationfrom jobs, departures and suchother information as may be

required by the DOLE Secretary;i.) To substitute or alter to the

prejudice of the worker,employment contracts approvedand verified by the DOLE fromthe time of the actual signingthereof by the parties up to andincluding the period of theexpiration of the same withoutthe approval of the DOLE;

j.) For an officer or agent of arecruitment or placementagency to become an officer ormember of the Board of anycorporation engaged in travelagency or to be engaged directly

or indirectly in the managementof a travel agency;

k.) To withhold or deny travel

documents from applicantworkers before departure formonetary or financialconsiderations other than thoseauthorized under the provisionsof the Labor Code and its IRRs;

l.) Failure to actually deploywithout valid reason asdetermined by the DOLE;

m.) Failure to reimburse expenses

incurred by the worker inconnection with hisdocumentation and processingfor purposes of deployment, incases where the deploymentdoes not actually take placewithout the workers fault.

Illegal Recruitment when committed by asyndicate or in large scale shall be considered an

offense involving economic sabotage.Illegal Recruitment is deemed committed

by a syndicate if carried out by a group of three (3) ormore persons conspiring and/or confederating with oneanother. It is deemed committed in large scale ifcommitted against three (3) or more personsindividually or as a group.


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Persons Liable: Principals, Accomplices, andAccessories; for Juridical Persons: the officers

HAVING CONTROL, MANAGEMENT, OR DIRECTION oftheir business

General Rule: Employees who have no control, donot manage nor direct the business may not be heldliable; UNLESS, it is shown that such employeesACTIVELY AND CONSCIOUSLY PARTICIPATED in theillegal recruitment

LACK OF RECEIPTS: will not defeat the purpose ofcriminal prosecution AS LONG AS THE WITNESSESCAN POSITIVELY SHOW THROUGH THEIR RESPECTIVE

TESTIMONIES that the accused was the one involvedin the prohibited recruitment; credible testimoniessuffice

ECONOMIC SABOTAGE: IR committed by syndicateand IR committed in large scale; each is anindependent and separate category that can standon their own and need not coincide or concur withinthe same case

ESTAFA: CONVICTION for Illegal Recruitment is not abar for filing suit against such person for ESTAFA

under the RPC as long as the requisites for saidfelony are present

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, 1987Constitution) only a judge may issue awarrant of arrest or a search warrant

- the Secretary of Labor is not a judge hence isno longer granted the power to issues saidwarrants. Authorities must now undergojudicial process

- Exception: Deportation or Illegal andUndesirable Aliens Casesthe President orthe Commissioner of Immigration may orderarrested following a final order of deportationfor the purpose of deportation

SUBJECT TO ARREST: Illegal Recruiters are still

subject to arrest, upon compliance with theprocedure as provided for by law namely through awarrant of arrest issued by a judge of an RTC wherea criminal information was filed after preliminaryinvestigation; also RULES ON WARRANTLESS ARRESTSunder Rule 113, Section 5 of the ROC may still applyto illegal recruiters when they fall under thecircumstances enumerated therein; WARRANTLESSSEARCHES: INCIDENTAL to lawful arrest; PLAIN VIEW;with INDIVIDUALS CONSENT

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; Issuanceafter an ex parte preliminary examination todetermine whether the activities of a non-licensee


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constitute a danger to national security and publicorder or will lead to further exploitation of jobseekers

PROCEDURE FOR CLOSURE: Rules Secs. 14 27;these cover the POEAs Anti-Illegal RecruitmentPrograms; Provision for Legal Assistance; ComplaintsDesk; Surveillance; Issuance of Closure Order;Implementation of Closure Order; Report on CO,Institution of Criminal Action; Motion to Lift CO;Who may file such Motion; Grounds for Lifting or Re-opening; Appeal and Re-padlocking of Office

Art. 39 - PENALTIES3

(A) The penalty of life imprisonment and a fine of OneHundred 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 nor

more than P50,000, or both such imprisonment andfine, at the discretion of the court;

(C) Any person who is neither a licensee nor a holder ofauthority under this Title found violating anyprovision thereof or its IRRS shall, upon convictionthereof, suffer the penalty of imprisonment of not

less than four years nor more than eight years or afine not less than P20,000 nor more than P100,000or both such imprisonment and fine, at the

discretion of the court;(D) If the offender is a corporation, partnership,

association, or entity, the penalty shall be imposedupon the officer or officers of the corporation,partnership, association, or entity responsible forthe violation, and if such officer is an alien, heshall, in addition to the penalties herein prescribed,be deported without further proceedings;

(E) In every case, conviction shall cause and carry theautomatic revocation of the license or authority

and all the permits and privileges granted to suchperson or entity under this Title, and the forfeitureof the cash and surety bonds in favor of theOverseas Employment Board or the National SeamenBoard, as the case may be, both of which areauthorized to use the same exclusively to promotetheir objectives.

Section 7, RA 8042 provides:Any person found guilty of IR shall suffer the

penalty of IMPRISONMENT of NOT LESS THAN SIX(6) YEARS AND ONE (1) DAY BUT NOT MORE THATWELVE (12) YEARS and A FINE OF NOT LESSTHAN TWO HUNDRED THOUSAND PESOS(P200,000.00) NOR MORE THAN FIVE HUNDREDTHOUSAND PESOS (P500,000.00)

3Amended by RA 8042, Section 7


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The penalty of LIFE IMPRISONMENT and a FINENOT LESS THAN FIVE HUNDRED THOUSAND PESOS(P500,000.00) NOR MORE THAN ONE MILLION

PESOS (P1,000,000.00) shall be imposed if IRCONSTITUTES ECONOMIC SABOTAGE

Provided however, That the MAXIMUM PENALTYshall be imposed if the PERSON ILLEGALLYRECRUITED is LESS THAN 18 YEARS OF AGE orcommitted by a non-licensee or non-holder ofauthority.

VENUE (Sec. 9, RA 8042): Criminal Action arising

from IR shall be filed with the REGIONAL TRIALCOURT of the province or city WHERE THEOFFENDED PARTY ACTUALLY RESIDES AT THE TIMEOF THE COMMISSION OF THE OFFENSE

MANDATORY PERIODS for Resolution of IR cases (Sec.11, RA 8042): terminate within 30 days from date offiling: preliminary investigation; file informationwithin 24 hours from termination of investigation;file information within 48 hours from the date ofreceipt of case records if preliminary investigation

conducted by judge and prima facie case isestablished

PRESCRIPTIVE PERIODS (Sec. 12, RA 8042): GeneralIR: five (5) years; IR involving Economic Sabotage:twenty (20) years

TITLE II EMPLOYMENT OF NON-RESIDENT ALIENS

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 adetermination of non-availability of a person in thePhilippines who is competent, able and willing at the

time 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 of employment(a) After the issuance of the employment permit, the

alien shall not transfer to another job or change hisemployer without prior approval from the Secretaryof DOLE

(b) Any non-resident alien who shall take upemployment in violation of provision of this Title


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and its IRRs shall be punished in accordance withArts. 289

4and 290 of the Labor Code.

In addition, the alien worker shall be subject to

deportation after service of his sentence.

RESIDENT ALIENS: NOT required to have employmentpermits; instead, they need an ALIEN EMPLOYMENYREGISTRATION 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 such

corporations 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 Board

of Directors or governing body of corporations orassociations in proportion to their allowableparticipation in the capital of such entities

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

Provisions and Liabilities; 288 (Penalties) - 289 (Liable Officers ofJuridical Person); Title 2: Prescription; 290: Offenses: 3 years

DEPARTMENT ORDER no. 12, SERIES 2001: OmnibusGuidelines for the Issuance of Employment Permitsto Foreign Nationals; the following are required to

apply for an Alien Employment Permit (AEP):1.) All foreign nationals seeking admission to the

Philippines for the purpose of employment;2.) Missionaries or religious workers who intend

to engage in gainful employment;3.) Holders of Special Investors Resident Visa

(SIRV), Special Retirees Resident Visa (SRRV),Treaty Trades Visa, or Special Non-Immigration Visa, who occupy any advisory,supervisory, or technical position in any

establishment;4.) Agencies, organizations, or individuals

whether public or private, who secure theservices of foreign professional to practicetheir professions in the Philippines underreciprocity and international agreements;

5.) Non-Indo Chinese Refugees who are asylumseekers and given refugee status by the UNHigh Commissioner on Refugees (UNHCR) ofthe DOJ under the DOJ Department Order no.

49, 1998.6.) Resident foreign Nationals seeking

employment in the Philippines (see D.O. no.21-02 which suspends until further noticethe requirement for Resident ForeignNationals to secure AEP)



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D.O. 12-01 further, EXEMPTS the following from AEPrequirements:

1.) All members of the diplomatic services and

foreign government officials accredited bythe Philippine Government;

2.) Officers and staff of the internationalorganizations of which thePhilippinegovernment is a cooperating member, andtheir legitimate spouses desiring to work inthe Philippines;

3.) Foreign nationals elected as members of theGoverning Board who do not occupy any otherposition, but have only voting rights in the

corporation, and4.) All foreign nationals granted exemption by

special laws and all other laws that may bepromulgated by Congress

Basis for issuing AEP:a.) Compliance by theapplicant

employer or the foreign national withthe substantive and documentaryrequirements;

b.) Determination of the DOLE Secretarythat there is no Filipino national whois competent, able and willing to dothe job for which the services of theapplicant is desired;

c.) Assessment of the DOLE Secretarythat the employment of the Foreign

national will redound to nationalbenefit.

- Understudy Program is no longer required for

the issuance of AEP- G.R. Validity of AEP is for ONE YEAR unless

the employment contract, consultancyservices, or other modes of engagement orterm 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 after theexpiration of previous permit; regardless of

whether or not the renewal is granted beforeor after the expiration of the previouspermit;

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 nationals

on 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.


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B OO K TW O

HUMAN RESOURCES DEVELOPMENTTITLE I:

MANPOWER DEVELOPMENT PROGRAMCHAPTER 1

NATIONAL POLICIES AND ADMINISTRATIVE MACHINERYFOR THEIR IMPLEMENTATION

Articles 43 56; pertaining to National Manpower andYouth Council has been replaced and absorbed by theTESDA (Technical Education and Skills Development

Authority) 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 forR.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 accordancewith Philippine development goals and priorities.

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 OF SPECIALWORKERS

Chapter 1: APPRENTICES

Art. 57 Statement of ObjectivesArt. 58 Definition of TermsAs used in this Title: a.) Apprenticeship means anypractical training on the job supplemented by relatedtheoretical instruction; b.) An Apprentice is a workerwho is covered by a written apprenticeship agreementwith an individual employer or any entities recognizedunder this Chapter; c.) An Apprenticeable Occupationmeans any trade, form of employment or occupationwhich requires more than three (3) months of practical

training on the job supplemented by related theoreticalinstruction; (see R.A. 7796) d.) ApprenticeshipAgreement is an employment contract wherein theemployer binds himself to train the apprentice and theapprentice in turn accepts the terms of training.

Art. 59 Qualifications of an Apprentice



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To qualify as an apprentice, a person shall:(a) Be at least fourteen (14) years of

age; (but under the IRR, its 15 years)

(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 educationalrequirements for different occupations.

Art. 60 Employment of Apprentices

Apprenticeship is the arrangement and the periodwhen an upcoming worker undergoes hands-ontraining, more or less formal, to learn the ropes of askilled 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 it

shall submit a list of apprenticeable occupations. The apprenticeable age under this Article is 14, but

under the IRR, its 15, now under R.A. 7610 there isan explicit prohibition on employment of childrenbelow 15 years of age, although the said lawrecognizes certain exceptions, an apprenticeship isnot included in the enumeration.

Art. 61 Contents 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 employer andan apprentice shall be entered only inaccordance with the apprenticeship programduly approved by the Minister of Labor andEmployment; hence, since the apprenticeship

agreement between petitioner and privaterespondent has no force and effect in theabsence of a valid apprenticeship programduly approved by the DOLE, privaterespondents assertion that he was hired notas an apprentice but as a delivery boydeserves credence.

Art. 62 Signing of Apprenticeship AgreementArt. 63 Venue of Apprenticeship Programs

Art .64 - Sponsoring of Apprenticeship ProgramArt. 65 -Investigation of Violation of ApprenticeshipAgreementArt. 66 - Appeal to the Secretary of LaborArt. 67 - Exhaustion of Administrative RemediesArt. 68 - Aptitude Testing of ApplicantsArt. 69 - Responsibility for Theoretical Instruction



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Art. 70 - Voluntary Organization of ApprenticeshipPrograms, ExceptionsArt. 71 - Deductibility of Training Costs

Art. 72 - Apprentices without Compensation

Implementing Rules (Section X, Rule 14) provide, inrelation to Art. 72: There is no employer-employeerelationship between students on one hand andschools, colleges or universities, on the other,where there is a written agreement between themunder which the former agree to work for the latterin exchange for the privilege to study free ofcharge, provided the students are given real

opportunities, including such facilities as may bereasonable and necessary to finish their chosencourses under such agreement.

- Filamer Christian Institue v. Hon.Intermediate Appellate Court, et a, (G.R. no.75112) August 17, 1992

- Section 14, Rule X, Book III of the IRR of theLabor Code was promulgated by the Secretaryof Labor and Employment only for thepurpose of administering and enforcing the

provisions of the Labor Code on conditions ofemployment. Particularly, Rule X of Book IIIprovides guidelines on the matter by whichthe powers of the Labor Secretary shall beexercised; on what records should be kept ormaintained, etc Rule X is merely a guide tothe enforcement of the substantive law on

labor. The case does not deal with a labordispute on conditions of employmentbetween an alleged employer and employee

reliance of petitioner on the IRR is misplaced.An IRR on labor cannot be used by anemployer as a shield to avoid liability underthe substantive provisions of the Civil Code.

Chapter II LEARNERS

Art. 73 DefinitionLearners are persons hired as trainees in semi-skilled

and 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; and

c.) the employment does not create unfaircompetition in terms of labor costs or impairor lower working standards.

Art. 75 Learnership Agreement


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Any 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 learnerswhich shall begin at not less than seventy-five(75%) percent of the applicable legalminimum wage; and

d.) a commitment to employ the learners if theyso desire, as regular employees uponcompletion of the learnership. All learners

who have been allowed or suffered to workduring the first two (2) months shall bedeemed regular employees if training isterminated by the employer before the end ofthe stipulated period through no fault of thelearner.

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 Clause

Any 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 bepaid wages twenty-five (25%) percent lower thanthe applicable legal minimum wage

Learnership Apprenticeship- training in semi-skilledjob; industrial occupations

that require training forless than 3 months- job is non-apprenticeablebecause its practical skillscan be learned in 3 (not 6)months- commitment to hire alearner after the period- no need for priorapproval from DOLE in

terms of hiring

- 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- prior DOLE approvalrequired for hiringapprentices

Learner is not an apprentice, but an apprentice isconsidered a learner.

Chapter III HANDICAPPED WORKERS


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Art. 78 DefinitionHandicapped workers are those whose earning capacity

is impaired by age, or physical or mental deficiency orinjury.

Art. 79 When EmployableHandicapped workers may be employed when:

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

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

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

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

b.) the rate to be paid the handicappedworkers to be employed which shall be notless than seventy-five (75%) percent of the

applicable legal minimum wage;c.) the duration of the employment period; andd.) the work to be performed by the handicapped

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

Art. 81 Eligibility for ApprenticeshipSubject to the appropriate provisions of this Code,

handicapped workers may be hired as apprentices orlearners if their handicap is not such as to effectivelyimpede the performance of job operations in theparticular occupations for which they are hired.

The MAGNA CART FOR DISABLED PERSONS- RepublicAct no. 7277, March 24, 1992 insures equalopportunities for disabled persons and prohibitsdiscrimination against them

Book 3Conditions of Employment

Title IWorking Conditions and Rest Periods

Chapter 1HOURS OF WORK

Art. 82 Coverage of Title 1

Employees in all establishments and undertakingswhether for profit or not BUT NOT TO govtemployees, managerial employees [those whose

primary duty consists of the management of theestablishment in which they are employed or of adept or subdivision thereof, and to other officers ormembers of the managerial staff], field personnel


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[refer to non-agricultural employees who regularlyperform their duties away from the principal placeof business or branch office of the employer and

whose actual hours of work in the field cannot bedetermined with reasonable certainty], members ofthe family who are dependent on him for support,domestic helpers, persons in the personal service ofanother, workers who are paid by results

Employer-employee must exist; existence isdetermined by law, not by contract

Elements of employment relationship(4-fold test)

1. selection and engagement of the

employee2. payment of wages3. power of dismissal4. employers power to control the

employee with respect to themeans and methods by whichthe work is to be accomplishedaka control test

evidence of employment: id, vouchers,SSS registration, memorandum,

appointment letters, payrolls,organization chartspakiao workers are considered employees

as long as the employer exercisescontrol over the means by which suchworkers are to perform their work(Zamudio vs NLRC)

mere fact that an entity is a labor uniondoes not mean that it cannot beconsidered an employer of the persons

who work for it; even unregisteredassociation may be deemed anemployer

LC defines an employer as any personwho acts in the interest of an employerin/directly; the law does not require anemployer to be registered in order tobe considered as an employer (OrlandoFarm Growers vs NLRC)

No employment relationship job

contracting or independent contractorEmployer is free to regulate, accdg to his

own discretion and judgment, allaspects of employment, includinghiring, work assignments, workingmethods, time, place and manner ofwork, tools to be used, processes to befollowed, supervision of workers,dismissal and recall of workers so longas the they are exercised in good faith

for the advancement of the employersinterest and not for the purpose ofdefeating or circumventing the rightsof the employees under special laws orunder valid agreements

Excluded employees



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1. govt employees governed by CSC rules EXCEPTgovt employees of govt agencies and govtcorporations incorporated under the Corporation

Code2. managerial employees or staff3. outside or field sales personnel4. employers family members5. domestic helpers6. persons rendering personal service7. workers paid by result

Art. 83 Normal Hours of Work

8-hour law prescribes the minimum

Art. 84 Hours worked Prelim and postlim activities are deemed performed

during working hours, where such activities arecontrolled or required by the employer and arepursued necessarily and primarily for the employersbenefit

Whether waiting time constitutes working timedepends on the circumstances of each case whether it is spent predominantly for the employers

benefit or for the emmployees; considered asworking time if waiting is an integral part of his workor if the employee is required or engaged by anemployer to wait

Working while eating not compensable if completely freed from duites even though heremains in the workplace

Working while sleeping may be consideredworking if it is subject to interruption or takes placeunder conditions substantially less desirable thanwould likely to exist at employees home

on call compensable; within reach throughcellphone or other contact device notcompensable

Travel from home to work not worktime EXCEPTwhen employee receives an emergency call outsideof his regular working hours and is required to travelto his regular place of business or some other worksite, all of the time spent in such travel is workingtime

travel away from home travel that keeps anemployee away from home overnight; worktime

attendance at lectures, meetings, training programsand other similar activities not considered worktimeif it is outside employees regular working hours, it isvoluntary, and the employee does not performproductive work during such attendance

time spent in grievence meetings consideredworktime

regular full-time teachers are entitled to salary andemergency cost-of-living allowance during semestralbreaks (UPang Faculty Union vs UPANG)

a laborer need not leave the premises of theworkplace in order that his rest period shall not becounted; it is enough that he ceases to work (case inpoint: seamen)

hours worked: employer has burden of proof


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Art. 85 Meal Periods

GR: not compensable

E: predominantly spent for employers benefit orwhere it is less than 60 minutes (but in no case shallit be shorter than 20 minutes)

Continuous shiftsE to E: shortened break is upon employees request

Requisites:1. agree in writing to a shortened meal break

and waive overtime pay for such shortenedperiod

2. no diminution in the salary and other fringe

benefits3. work does not involve strenuous physical

exertion and are provided w/ coffee breaks4. value of the benefits derived by the

employees from the proposed workarrangement is equal to or commensuratewith the compensation due them

5. overtime pay of the employees will becomedue and demandable if ever they arepermitted or made to work beyond 4:30pm

6. effectivity of proposed working timearrangement shall be of temporary duration asdetermined by DOLE

Art. 86 Night Shift Differential

not less than 10% of regular wage for each hour ofwork performed b/w 10pm to 6am

NSD not waivable since it is founded on public policy

Burden of proof of payment rests upon the employer

Art. 87 Overtime Work Compensation for work rendered in excess of 8 hours

a day Multiply the overtime hourly rate by the number of

hours worked in excess of 8 Receipt of overtime pay does not preclude right to

NSD Overtime rate based on regular wage (excludes

money received in different concepts and otherfringe benefits)

How work day is counted 24-hour period whichcommences from the time the employee regularlystarts to work

Work in excess of 8 hours w/n a work day isconsidered as overtime regardless of whether this isperformed in a work shift other than at whichemployee regularly works

Estoppel and laches cannot be invoked againstemployees in an action for the recovery of compensation for overtime work

Overtime pay in arrears retroacts to the date whenservices were actually rendered

GR: NO waiver or quitclaim of overtime payE: waiver is in exchange for certain benefits

Agreement that overtime pay will be integrated inbasic salary is not per se illegal; however, thereshould have been express agreement to that effect


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and that the mathematical result shows that theagreed legal wage rate and the overtimepay,computed separately, are equal to or higher

than the separate amounts legally due Compressed workweek (45 hours in 5 days) as an

exception to the non-waiver of overtime pay if thefollowing requisites are present:1. agree in writing to work 9 hours a day from

Monday to Friday2. no diminution in the salary and other fringe

benefits3. value of the benefits that will accrue to the

employees under the proposed work schedule is

more than or at least commensurate with orequal to the one-hour overtime pay that is duethem during weekdays

4. overtime pay of the employees will become dueand demandable if ever they are permitted ormade to work on weekend

5. work does not involve strenuous physical exertionand are provided w/ coffee breaks

6. effectivity of proposed working time arrangementshall be of temporary duration as determined by

DOLE

Art. 88 Undertime not offset by OvertimeArt. 89 Emergency Overtime Work

1. country is at war or when any national or localemergency has been declared by Congress orthe President

2. necessary to prevent loss of life or property orin case of imminent danger to public safetydue to impending emergency caused by

accidents, fire, flood, typhoon, earthquake,epidemic, or other disaster or calamity

3. urgent work to be performed on themachines, ect. In order to avoid loss ordamage to employer

4. to prevent loss or damage to perishable goods5. to prevent serious obstruction ot prejudice to

the business or operations of the employer6. to avail of favorable weather or

environmental conditions where performance

or quality of work is dependent thereon

Art. 90 Computation of Additional Compensation regular wage shall include cash wage only, w/o

deduction on account of facilities provided byemployer

Chapter IIWEEKLY REST PERIODS

Art. 91 Right to weekly rest day rest period of not less than 24 hours after every 6

consecutive normal work days

Art. 92 When employer may require work on a restday



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1. necessary to prevent loss of life orproperty or in case of imminent danger topublic safety due to impending emergency

caused by accidents, fire, flood, typhoon,earthquake, epidemic, or other disaster orcalamity

2. urgent work to be performed on themachines, ect. In order to avoid loss ordamage to employer

3. abnormal pressure of work due to specialcircumstances, where the employer cannotordinarily be expected to resort to othermeasures

4. prevent loss or damage to perishable goods5. nature of work requires continuousoperations and stoppage of work mayresult in irreparable injury or loss to theemployer

6. similar circumstances as determined byDOLE Sec.

Art. 93 Compensation for rest day, Sunday, orholiday work

at least 30% of regular wage when such holiday falls on his rest day, addlcompensation of at least 50%

CBA may stipulate higher premium pay 3 special days (holidays) Nov.1, Dec. 31, Aug. 2130%

Chapter IIIHOLIDAYS, SERVICE INCENTIVE LEAVES, AND SERVICE

CHARGES

Art. 94 Right to (Regular) Holiday100 % addl compensation

10 regular holidays1. New Year (Jan.1)2. Maundy Thursday3. Good Friday4. Araw ng Kagitingan (Apr 9)5. Labor Day (May 1)

6. Independence Day (Jun 12)7. National Heroes Day (Last Sunday of Aug)8. Bonifacio Day (Nov 30)9. Christmas Day (Dec 25)10. Rizal Day (Dec 30)11. Eidul Fitras - 1

stday after 30-day fasting period

12. Eidul Adha regl holiday in the ARMM

Muslim Holidays shall be observed in the provinces of

Basilan, Lanao del Norte/ Sur,Maguindanao, North Cotabato, SultanKudarat, Sulu, Tawi-tawi, Zamboanga delNorte/Sur, cities of Cotabato, Iligan,Marawi, Pagadian, and Zamboanga, and insuch other Muslim provinces and cities asmay be created. Upon proclamation by the

Jojo Baetiong, Gel Baniqued, Elvira Castro, Denise Dy, Sheryl Harina, Giselle Remulla Page 37 of1033B 2006-2007


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President, Muslim holidays may also beofficially observed in other provinces andcities

PP 1198 all private corps, offices, andagencies operating within the provincesand cities enumerated herein shall observethe legal holidays as proclaimed, provided,that all Muslim employees working outsideof the Muslim provinces and cities shall beexcused from work during the observanceof Muslim holidays as recognized by law,without diminution of salary during saidperiod

Both Muslim and Christian employeeswithin the Muslim areas may not report forwork on the designated Muslim holidays

1. amun jadid (new year)2. mauled-un-nabi (birthday of Mohammed)3. lailatul isra wal mi rai (nocturnal journey and

ascension of the Prophet Mohammed)4. id-ul-fitr (hari raja pausa) end of fasting season5. id-ul-adha (hari raha haji)

a legal holiday falling on a Sunday creates no legalobligation for the employer to pay extra, aside fromthe usual holiday pay, to its monthly-paid employees(Wellington Investment vs Trajano)

double holiday: 2 regular holidays on same day

if unworked covered employees are entitled toat least 200% of their basic wage even if saidholiday is unworked

if worked entitled to compensation equivalentto at least 300% of his basic wage

double holiday rule for monthly-paid employeesifworked, additional 100% of regular salary

successive regular holidays an employee may notbe paid for both

azucena labor review

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