labor law - lab stan - reviewer (azucena)

Labor Law I Atty. C.A. AzucenaFinals Reviewer

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, and benefits of employment that employers must provide and comply with and to which employees are entitled to as a matter of right.

Labor relations law is that which defines the status, rights and duties, and the institutional mechanisms, that govern the individual and collective interactions of employers, employees or their representatives.

Labor is understood as physical toil, although it does not necessarily involve the application of skill. Skill, by dictionary definition, is the familiar knowledge of any art or science, united with readiness and dexterity in execution or performance or in the application of the science or art to practical purposes.

Work is broader than labor as work covers all forms of physical or mental exertion, or both combined, for the attainment of some object other than recreation or amusement per se.

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

particular kinds of protection or benefits to society or segments thereof in furtherance of social justice. In that sense, labor laws are necessarily social legislation.

1. 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 and overseas, organized and unorganized, and promote full employment and equality of employment opportunities for all.

This is because without the improvement of economic conditions, there can be no real enhancement of the political rights of the people.

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

Constitution are: the rights to organize themselves, to conduct collective bargaining or negotiation with management, to engage in peaceful concerted activities, including to strike in accordance with law, to enjoy security of tenure, to work under humane

Jojo Baetiong, Gel Baniqued, Elvira Castro, Denise Dy, Sheryl Harina, Giselle Remulla Page 1 of 993B 2006-2007


conditions, to receive a living wage, to participate in policy and decision making processes affecting their rights and benefits as may be provided by law.

1.1.Balancing of Rights; the Constitutional Principle of Shared Responsibility While labor is entitled to a just share in the

fruits of production, the enterprise has an equally important right not only to reasonable returns in investment but also to expansion and growth. The Constitution commands the State to promote the principle of shared responsibility between employers and workers and the preferential use of voluntary modes of settling disputes, including conciliation, and to enforce their mutual compliance therewith to foster industrial peace.

Constitutional outlook suggests a balanced treatment.

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

business, occupation or profession is subject to the paramount right of the government as a part of its police power to impose such restrictions and regulations as the protection of the public may require.

1. 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 of economic development and justice.

1. 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 labor policy

Availability of a global labor market to qualified Filipinos

Must command adequate resources and acquire capable machinery for effective and sustained implementation

There should be popular participation in national policy making through what is now called tripartism

1. SOME LABOR LAWS BEFORE THE PASSAGE OF THE CODE

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

in 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

1. SIGNIFICANCE OF FOREGOING DECISIONS Where are labor statutes are based upon or

patterned after statutes in foreign jurisdiction, the decisions of high courts in those jurisdictions should receive the careful attention of the SC in the application of our own law.

1. RELATED LAWS1.1.The Civil Code

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

Prohibition against involuntary servitude (Art. 1703)

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

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

either employer or employee (Art. 289)1.1.Special Laws

SSS law, GSIS law, Agrarian Reform Law, 13th

month Pay Law, etc.1. INTERNATIONAL ASPECT

On June 15, 1948, the Philippines became a member of the International Labor Organization (ILO), which is the UN specialized agency which seeks the promotion

of social justice and internationally recognized human and labor rights.

The ILO formulates international labor standards in the form of Conventions and Recommendations setting minimum standards of basic labor rights.

An essential characteristic of ILO is tripartism, that is, it is composed not onl of government representatives but also of employers and workers organizations.

1.1.International Commitments By being an ILO member, the country thereby

subscribes t the fundamental principles on which the ILO is based. Also, as an ILO member, the Philippines imbibes the obligation of the ILO to further programs that will achieve ILO objectives.

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

Forced Labor Convention (1930); Freedom of Association and Protection of the Right to Organize Convention (1948); Freedom to Organize and Collective Bargaining Convention (1949); equal remuneration Convention (1951); Abolition of Forced Labor Convention (1957); Discrimination (Employment and Occupation) Convention (1958); Minimum Age Convention (1973); and Worst Forms of Child Labor Convention (1999).

1.1.Ratification Generally Needed; Exception



In 1999, the ILO adopted a Declaration on Fundamental Principles and Right at Work concerning an obligation of all ILO members to respect and promote the fundamental rights even if they have not ratified the conventions.

1.1.Ratified ILO Conventions As of the end of 2000, the Philippines has

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

A labor law expert asserts that the Philippines can claim with some pride that it belongs to the upper 25% of the ILO members on the basis of efforts taken to 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 may,

depending on their provisions, make the rich richer and the poor poorer.

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

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

1. 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 are interdependent- one is inutile without the other.

The better understanding is that the basic policy is to balance or coordinate the rights and interests of both 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 the primordial and paramount consideration. The policy is to extend the Decrees applicability to a greater number of employees to enable them to avail of the benefits under the law, in consonance with the States avowed policy to give maximum aid and protection to labor.

1.1.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.



1.1.Reason for According Greater Protection to Employees In the matter of employment bargaining,

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

This is because there is a greater supply than demand for labor. Also, the need for employment comes from vital, even desperate, necessity.

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

entitled to respect and enforcement in the interest of simple fair play. 1.1.Right to ROI

The employer has the right to recover his investments and make profits. There is nothing dirty about profit per se it is profit that creates jobs and improves the workers lot. 1.1.Rights to Prescribe Rules

Employers have the right to make reasonable rules and regulations for the government of their employees, and when employees, with knowledge of an established rule, enter the service, the rule becomes a part of the contract of employment. 1.1.Right to Select Employees

An employer has the right to select his employees and to decide when to engage them. He has the right, under the law, to full freedom in employing any person free to accept employment from him, and this, except as restricted by valid statute and

valid contract, at a wage and under conditions agreeable to them.

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

The right of a laborer to sell his labor to such person as he may choose is, in its essence, the same as the right of an employer to purchase labor from any person whom it chooses. 1.1.Right to Transfer or Discharge Employees

The employer has the perfect right to transfer, reduce, or lay off personnel in order to minimize expenses and to insure the stability of the business, and even to close the business, and this right has been consistently upheld, provided the transfer or dismissal is not abused but is done in good faith and is due to causes beyond control.

Article 5: RULES AND REGULATIONS

COMMENTS AND CASES

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

If promulgated in excess of its rule making power, 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 the Corporation Code.

Government corporations created by special charter from Congress are subject to civil service rules, while those incorporated under the Corporation Code are covered by the Labor code.

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

The terms governmental agency or instrumentality are synonymous in the sense that either of them is a means by which a government acts, or by which a certain government act or function is performed. The word instrumentality with respect to the state, contemplates an authority to which the state delegates government power for the performance of a state function.

Example: The National Parks Development Committee is an agency of the government, not a government-owned or controlled corporation. Its employees are covered by civil service rules and regulations, since they are civil service employees.

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

1. APPLICABILITY WITHOUT EMPLOYER-EMPLOYEE RELATIONSHIP

The Labor Code may apply even if the parties are not employers and employees of each other.

The Labor Code applies with or without employment relationships between the disputants, depending on the kind of issue involved.

For example, when one speaks of employment benefits, then surely, employment relationship is an essential element. But when the issue, for instance, is an indirect employers liability, there is no employer-employee relationship and yet the pertinent Labor Code provisions find application.

Chapter IIEMANCIPATION OF TENANTS1

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

COMMENTS AND CASES

1. LEGISLATIVE HISTORY1 Amended by R.A. No. 6657, June 10, 1988



There is an acute imbalance in the distribution of land among our people. Hence, the Constitution of 1987 adopted a whole article containing provisions for the uplift of the common people, thus: The State shall, by law, undertake an agrarian reform program founded on the right of farmers and regular farmworkers, who are landless, to own directly or collectively the land they till or, in the case of other farmworkers, to receive a just share of the fruits thereof.

1. 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 government program of agrarian reform.

1. CONSTITUTIONAL PROVISIONS2. COMPENSATION SCHEME

Title to all expropriated properties shall be transferred to the State only upon full payment of compensation of the respective owners.

1. RETENTION LIMITS in no case shall retention by the landowner

exceed 5 hectares. 1. LANDS NOT COVERED

1.1. Lands Obtained Through Homestead Patent

The Philippine Constitution respects the superiority of the homesteaders rights over the rights of the tenants.

Homestead Act has been enacted for the welfare and protection of the poor. The law gives a needy citizen a piece of land where he may build a modest house for himself and his family and plant what is necessary for subsistence and for the satisfaction of lifes other needs. 1.1.Residential Subdivisions

An agricultural leasehold cannot be established on land which has ceased to be devoted to cultivation or farming because of its conversion to a residential subdivision. (Gonzales vs. CA)

1.1.Livestock, Poultry and Swine Raising Lands There is simply no reason to include livestock

and poultry lands in the coverage of agrarian reform.

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 by population growth that appears unchecked.

1. 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 the development and utilization of the countrys manpower resources;

b. The advancement of workers welfare by providing for just and humane working conditions and terms of employment;

c. The maintenance of industrial peace by promoting harmonious, equitable and employment relations that assure protection for the rights of all concerned parties.

Title IRECRUITMENT AND PLACEMENT OF WORKERS

Chapter IGENERAL PROVISIONS

Article 13: DEFINITIONS

COMMENTS

ARTICLE 13 (B) CONSTRUED; WHAT CONSTITUTES RECRUITMENT AND PLACEMENT

The number of persons is not an essential ingredient of the act of recruitment and placement of workers.

Any of the acts mentioned in the basic rule in Article 13 (b) will constitute recruitment and placement even if only one prospective worker is involved. (People vs. Panis)

It must be shown that the accused gave the complainant the distinct impression that she had the power or the ability to send the complainant abroad for work, such that the latter was convinced to part with her money to be so employed. Where such an act or representation is not proven, there is not recruitment activity and conviction for illegal recruitment has no basis. (People vs. Goce)

By themselves, procuring a passport, airline tickets and foreign visa for another individual, without more, can hardly qualify as recruitment activities. (Darvin vs. CA)

Article 14: EMPLOYMENT PROMOTION

COMMENTS

EMPLOYMENT PROMOTION To pursue its responsibility to promote employment

opportunities, the DOLE carries out programs for local and overseas employment.

Article 15: BUREAU OF EMPLOYMENT SERVICES

COMMENTS1. LOCAL EMPLOYMENT



The Bureau of Employment Services has been replaced 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 of operation. It regularly obtains a list of job vacancies from employers, publicizes them, invites and evaluates applicants, and refers them for probable hiring. Also holds special services for the public such as employment bazaars, etc.

Article 16: PRIVATE RECRUITMENT

COMMENTSAUTHORIZED ENTITIES

Based on the Rules Implementing the Code, the following entities are authorized to recruit and place workers for local or overseas employment:

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

representativese. POEAf. Construction contractors if authorized

to operate by DOLE and the Construction Industry Authority

g. Members of the diplomatic corps although hirings done by them have to be processed through the POEA

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

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 manpower shortage. The 200 Filipinos that initially went there were followed by many more until they formed about 70% of Hawaiis plantation labor.

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

1. 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 migrant workers.

EO 797: Enacted to streamline operations in the overseas employment program.

EO 247: Reorganization Act of the POEA



RA 8042: Migrant Workers and Overseas Filipinos Act of 1995

1. OVERSEAS EMPLOYMENT POLICY1.1.R.A. No. 8042

The State does not promote overseas employment as a means to sustain economic growth and achieve national development.

The existence of overseas employment program rests solely on the assurance that the dignity and fundamental human rights and freedoms of the Filipino citizen shall not, at any time, be compromised or violated.

1.1.Selective Deployment RA 8042 requires certain guarantee of

protection for the overseas worker before they are deployed in countries that meet some criteria:

It has existing labor and social laws protecting the rights of migrant workers;

It is a signatory to multilateral conventions, declarations or resolutions relating to the protection of migrant workers;

It has concluded a bilateral agreement or arrangement with the government protecting the rights of Filipino migrant workers;

It is taking positive, concrete measures to protect the rights of migrant workers.

Notwithstanding this the government, in pursuit of national interest or when public welfare so requires, may, at any time, terminate or impose a ban on the deployment of migrant workers.

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

formulation, implementation, and monitoring of the overseas employment of the Filipino workers and the protection of their rights to fair and equitable employment practices.

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

OFWs are classified by DOLE as either land-based or sea-based. 1.1.POEA Rules (2002)

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

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

1. ADJUDICATORY FUNCTIONS OF POEA Before the passage of RA 8042, POEA had original

and exclusive jurisdiction to hear and decide the ff cases:



a. Recruitment violation and related cases consisting of all preemployment cases which are administrative in character, involving or arising out of recruitment laws, rules and regulations, including money claims therefrom or violations of the conditions for issuance of license to recruit workers.

b. Employer-emploee relations cases consisting of all claims arising out of an employer-employee relationship or b virtue of any law or contract involving Filipino workers in overseas employment.

c. Disciplinary action cases consisting of all complaints against a contract worker for breach of discipline.

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

jurisdiction over employer-employee relations cases.

Section 10 of the said law provides that Labor Arbiters shall have the exclusive and original jurisdiction to hear and decide claims arising out of an employer-employee relationship or by virtue of any law or contract involving Filipino workers for overseas employment including claims for

actual, moral, exemplary and other forms of damages.

RA 8042 not only transferred from POEA to NLRC the jurisdiction over money claims of OFWs, it even expanded the scope of such money claim. When the jurisdiction was still with the POEA, the jurisdiction covered only money claims involving Filipino workers for overseas employment. Now the NLRC jurisdiction is over money claims involving Filipino workers for overseas deployment.

RA 8042 allows for claims for money or damages sustained during the period of deployment or before departure for abroad.

1.1.Jurisdiction Retained With POEA POEA retains the jurisdiction to

decide all cases which are administrative in character and disciplinary action cases.

1.1.Compromise Agreement RA 8042 allows also resolution by

compromise.1.1.Mandatory Principle

Non-compliance with the periods provided for under the law will subject the responsible officials to penalties such as withholding of



salaries until compliance, suspension, or dismissal from service.

1. EMPLOYER-EMPLOYEE RELATIONS CASES: TERMINATION OF EMPLOYMENT1.1.Contractual Employees

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

1.1.Premature Termination of Contract Where the workers employment

contract is terminated before its agreed termination date, and the termination is not shown to be based on lawful or valid grounds, the employer will be ordered to pay the workers their salaries corresponding to the unexpired portion of their employment contract. (Tierra Construction vs. NLRC)

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

The date of the employment termination is material. If it occurred on or after July 15, 1995, the law to apply is RA 8042.

Under Section 10, a worker dismissed from overseas employment without just, valid or authorized cause as defined by law or contract, is entitled to a full reimbursement of his placement fee with interest at 12%

per annum, plus his salary for the unexpired portion of his employment contract or for 3 months for every year of the unexpired term, whichever is less.

1. EMPLOYER-EMPLOYEE RELATIONS CASES: MONEY CLAIMS; EMPLOYERS NATIONALITY IMMATERIAL

Statutes and regulations do not limit the coverage to non-Filipino employers. Filipinos working overseas share the same risks and burdens whether their employers be Filipino or foreign.

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

seamen allows the payment of death benefit pension, funeral benefit, and burial gratuity for the private respondent.

These claims arose from the responsibility of the foreign employer together with the local agency for the safety of the employee during his repatriation and until his arrival in this country, i.e. the point of hire. (Inter-Orient Maritime Enterprises vs. NLRC)1.1.Illustrative Case: Death Benefit Under the

Standard Contract In order to evade liability for death benefit

under the standard contract, it must be sufficiently shown that the deaths of the seamen were caused by their own willful and deliberate act. In this case, the evidence does not substantially prove that the seamen contracted tetanus as a result of the



unsanitary surgical procedures they performed on themselves. Hence, the death benefits under the employment contract must be paid. (NFD International Manning Agents vs. NLRC)

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

to require payment of domestic obligations in foreign currency, this particular statute is not applicable in the case at bar. The fixing of the award in dollars was based on the parties employment contract, stipulating that wages and benefits in dollars, since private respondent was engaged as an overseas seaman on board petitioners foreign vessel. (Philippine International Shipping Corp. vs. NLRC)

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

disciplinary action against a worker for breach of discipline. It shall also establish a system of watching and blacklisting OCWs.

1.1.Grounds for Disciplinary Actiona. Commission of a felony punishable by

Philippine laws or laws of host country;

b. Drug addiction or possession or trafficking 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 or

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

weapons;l. Unjust refusal to depart for a

worksite after all documents have been prepared;

m. Violations of the law and sacred practices of the host country and unjustified breach of the employment contract.

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

decide a claim for enforcement of a foreign judgment. Such a claim must be brought before the regular courts. This is because the POEA is not a court, it is only an administrative agency.

1.1.No Jurisdiction Over Torts Intention must be to seek and claim

protection under the Labor Code and not the Civil Code. In the case at bar, the items demanded are not labor benefits such as wages, overtime pay or separation pay, but are items claimed as natural consequences of his dismissal (which he denominates as damages.) POEA has no jurisdiction.



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

COMMENTS Direct hiring of Filipino workers by a foreign

employer is not allowed except direct hiring by members of he diplomatic corps and others mentioned in this article. Also excepted are name hirees or those individual workers who are able to secure contracts for overseas employment on their own efforts and representations without the assistance or participation of any agency.

The Office of Emigrant Affairs has been abolished and its pertinent functions were transferred to the Commission on Filipinos Overseas (CFO) by Batasang Pambansa Blg. 79.

Article 20: NATIONAL SEAMEN BOARD

COMMENTS AND CASES1. NSB NOW POEA

EO 797 abolished the NSB and transferred its function to the POEA. But this adjudicatory function of the POEA has since been moved to the NLRC by RA 8042.

1. ARTICLE 20 CONSTRUED; SEAMENS EMPLOYMENT CONTRACTS AND THE INTERNATIONAL TRANSPORT FEDERATION (ITF)

Wallem Shipping vs. Ministry of Labor: Seamen who were dismissed because they demanded that they be paid the worldwide rate, instead of the lower Far East rate as provided in their contracts of employment, did not commit serious misconduct as to warrant their dismissal. They were only exercising their rights. Hence, dismissal was illegal.

Filipino seamen are admittedly as competent and reliable as seamen from any other country in the world; otherwise, there would not be so many of them in the vessels sailing in every ocean and sea on this globe. They are entitled to government protection when they ask for fair and decent treatment by their employers and when they exercise their right to petition for improved terms of employment, especially when they feel that these are substandard or are capable of improvement according to internationally accepted rules. Also, the standard forms embody the basic minimums which must be incorporated as parts of the employment contract. They are not collective bargaining agreements or immutable contracts which the parties cannot improve upon or modify in the course of the agreed peril of time. (Vir-jen Shipping vs. NLRC)

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

and benefits as contained in a POEA-approved contract is void, unless such subsequent agreement is approved by the POEA.

1. DELAY IN FILING CLAIM



There is no absolute rule as to what constitute laches; each case is to be determined according to its particular circumstances. The question of laches is addressed to the sound discretion of the court and since it is an equitable doctrine, its application is controlled by equitable considerations. It cannot be worked to defeat justice or perpetrate fraud or injustice.

Where the claim was filed within the three-year statutory period, recovery therefore cannot be barred by laches. Courts should never apply the doctrine of laches earlier than the expiration of time limited for the commencement of actions at law. (Imperial Victory Shipping vs. NLRC)

1. MINIMUM EMPLOYMENT CONDITIONSa. Guaranteed wages for regular working

hours and overtime payb. Free transportation to and from the

worksite, or offsetting benefit;c. Free food and accommodation, or

offsetting benefit;d. Just and authorized causes for

termination of contract taking into consideration the customs and norms of the host country.

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

conditions and other benefits not provided under these minimum requirements, provided the whole employment package should be more beneficial to the

worker than the minimum, and that the same not be contrary to law, public policy, and morals.

Article 21: FOREIGN SERVICE ROLE AND PARTICIPATION

COMMENTS

1. PROTECTION AND ASSISTANCE BY GOVERNMENT AGENCIES

RA 8042 assigns four government agencies to promote the welfare and protect the rights of migrant workers and, as far as practicable, of all overseas Filipinos: DFA, DOLE, POEA, and OWWA.

1. 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.

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

including insurance coverage, legal assistance, placement assistance, and remittance services to OFWs.

Funded with contributions from the workers themselves and the fees and charges imposed by the POEA and BLE.

1. 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 recruited or deployed the worker.

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

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

Article 22: MANDATORY REMITTANCE OF FOREIGN EXCHANGE EARNINGS

COMMENTSREMMITTANCE

Article 23: COMPOSITION OF THE BOARDS

COMMENTS

1. COMPOSITION OF THE POEA

Article 24: BOARDS TO ISSUE RULES AND COLLECT FEES

Chapter IIREGULATIONS OF RECRUITMENT AND

PLACEMENT ACTIVITIES

Article 25: PRIVATE SECTOR PARTICIPATION IN THE RECRUITMENT AND PLACEMENT OF WORKERS

COMMENTS AND CASES

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, cannot be used as a basis for the imposition of administrative sanctions.

Article 26: TRAVEL AGENCIES PROHIBITED TO RECRUIT

COMMENTS The POEA rules also disqualify persons with

derogatory records such as those convicted for illegal recruitment or other crimes involving moral turpitude, an official or employee of DOLE, POEA, OWWA, DFA and other government agencies directly involved in the implementation of RA 8042 or any of their 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 single



proprietorship or partnership and a minimum paid-up capital of the same amount for a corporation.

Article 29: NON-TRANSFERABILITY OF LICENSE OR AUTHORITY

COMMENTS

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

authorized representatives may, as a rule, undertake recruitment and placement activities only at their authorized official address.

Under existing regulations, however, they may be allowed to conduct provincial recruitment only upon written authority from the POEA.

Recruitment of workers for overseas employment cannot be lawfully undertaken on a house-to-house basis, 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 liable for applicants and workers claims. (Finman General Assurance vs. Innocencio)

Article 32: FEES TO BE PAID BY WORKERS

COMMENTS AND CASES

1. 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 from its hired workers a placement fee in an amount equivalent to one month salary, exclusive of documentation 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 documentation costs are the only authorized payments that may be collected from a hired worker. No other charges in whatever form, manner or purpose, shall be imposed 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 the facilities of the recruitment agency.

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

collected fees.

Article 33: REPORTS ON EMPLOYMENT STATUSArticle 34: PROHIBITED PRACTICES

COMMENTS AND CASES

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

fees greater than that allowed by regulations. It is also a deterrant to loan sharks who lend money at usurious interests.

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

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

Article 35: SUSPENSION AND/OR CANCELLATION OF LICENSE OR AUTHORITY

COMMENTS AND CASES

1. SUSPENSION OR CANCELLATION OF LICENSE

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

1.1.Concurrent Jurisdiction to Suspend or Cancel a License

The SC has affirmed the concurrent jurisdiction of the DOLE Secretary and the POEA Administrator to suspend or cancel a license.

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

unpaid salaries of a worker it recruited for employment with a foreign principal.

Even if the recruitment agency and the principal had already severed their agency agreement at the time the worker was injuredm the recruitment agency may still be sued for violation of the employment contract, 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 until the expiration of the employment contracts of the employees recruited and employed pursuant to the said employment agreement.

1. SOLIDARY LIABILITY ASSUMED BY RECRUITMENT AGENT



Contract contained a provision empowering the agency to sue and be sued jointly and solidarily with the foreign principal for any of the violations of the recruitment agreement and the contracts of employment. These contractual undertakings constitute the legal basis for private agencies being liable jointly and severally with its principal, for all claims filed by recruited workers which may arise in connection with the implementation of the service agreements or employment contracts. (Royal Crown Inernationale vs. NLRC)

1.1.Required Undertaking by Agent1.2.Contract by Principal

It has been held that even if it was the petitioners principal which entered into a contract with the private respondent, nevertheless, petitioner, as the manning agent in the Philippines, is jointly and solidarily responsible with its principal. (Seagull Maritime Corp vs. Balatongan)1.1.Proper Party

A sister in the Philippines of a maltreated Filipino domestic helper in Abu Dhabi is a proper party to file a complaint.

1. SUABILITY OF A FOREIGN CORPORATION WHICH HIRES FILIPINO WORKERS

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

1. DEREGULATION AND PHASE OUT

RA 8042 envisions a phase-out of POEAs regulatory function so that the migration of workers will become strictly a matter between the worker and his employer. This projected deregulation has stirred 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 restrict and regulate the recruitment and placement activities of all agencies within the coverage of this Title and is hereby authorized to issue orders and promulgate rules and regulations to carry out the objectives and implement the provision of this Title.

Art. 37 Visitorial PowerThe Secretary of Labor or his duly authorized representatives 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 reports regularly on prescribed forms, and act on any violations of this Title.

Art. 38 ILLEGAL RECRUITMENT2 As stated in the Code: (a) Any recruitment activities, including prohibited practices enumerated under Art. 34 of this Code, to be undertaken by non-licensees or non-

2 Amended by Republic Act 8042 or The Migrant Workers and Overseas Filipinos Act of 1995



holders of authority shall be deemed illegal and punishable under Art. 39 of this Code. The DOLE or any law enforcement officer may initiate complaints under this Article.

(b) Illegal Recruitment, when committed by a syndicate or in large scale shall be considered an offense involving economic sabotage and shall be penalized in accordance with Art. 39 hereof.

Illegal Recruitment is deemed committed by a syndicate if carried out by a group of three (3) or more persons conspiring and/or confederating with one another in carrying out any unlawful of illegal transaction, enterprise or scheme, defined under the first paragraph hereof. Illegal Recruitment is deemed committed in large scale if committed against three (3) or more persons individually or as a group.

(c) The Secretary of Labor and Employment or his duly authorized representatives shall have the power to cause the arrest and detention of such non-licensee or non-holder of authority if after investigation it is determined that his activities constitute danger to national security and public order or will lead to further exploitation of job-seekers. The Minister shall order the search of the office or premises and seizure of documents, paraphernalia, properties and other implements used in illegal recruitment activities and the closure of companies, establishments and entities found to be engaged in the recruitment of workers for overseas employment without having been licensed or authorized to do so.

Now, under RA 8042, the abovementioned article has been amended to also include LICENSED or AUTHORIZED entities; the list of ACTS CONSIDERED AS ILLEGAL RECRUITMENT has also been EXPANDED as found in SECTION 6, RA 8042:

Definition: xxx Illegal Recruitment shall mean any act of canvassing, enlisting, contracting, transporting, utilizing, hiring, or procuring workers and includes referring contract services, promising or advertising for employment abroad, whether for profit or not, when undertaken by a non-licensee or non-holder of authority as contemplated under the Labor Code; Provided, that any such non-licensee or non-holder who, in any manner, offers or promises for a fee employment abroad to two or more persons shall be deemed so engaged. It shall likewise include the following acts whether committed by any person, WHETHER A NON-LICENSEE, NON-HOLDER, LICENSEE OR HOLDER OF AUTHORITY:

a) To change or accept directly or indirectly any amount greater than that specified in the schedule of allowable fees prescribed by the DOLE Secretary, or to make a worker pay any amount greater than



that actually received by him as a loan or advance;

b) To furnish of publish any false notice or information or document in relation to recruitment or employment;

c) To give any false notice, testimony, information or document or commit any act of misrepresentation for the purpose of securing a license or authority under the Labor Code;

d) To induce or attempt to induce a worker already employed to quit his employment in order to offer him another unless the transfer is designed to liberate a worker from oppressive terms and conditions of employment;

e) To influence or attempt to influence any person or entity not to employ any worker who has not applied for employment through his agency;

f) To engage in the recruitment or placement of workers in jobs harmful to public health or morality or to the dignity of the Republic of the Philippines;

g) To obstruct or attempt to obstruct inspection by the DOLE

Secretary or by his duly authorized representative;

h) To fail to submit reports on the status of employment, placement vacancies, remittance of forex earnings, separation from jobs, departures and such other information as may be required by the DOLE Secretary;

i) To substitute or alter to the prejudice of the worker, employment contracts approved and verified by the DOLE from the time of the actual signing thereof by the parties up to and including the period of the expiration of the same without the approval of the DOLE;

j) For an officer or agent of a recruitment or placement agency to become an officer or member of the Board of any corporation engaged in travel agency or to be engaged directly or indirectly in the management of a travel agency;

k) To withhold or deny travel documents from applicant workers before departure for monetary or financial considerations other than those



authorized under the provisions of the Labor Code and its IRRs;

l) Failure to actually deploy without valid reason as determined by the DOLE;

m) Failure to reimburse expenses incurred by the worker in connection with his documentation and processing for purposes of deployment, in cases where the deployment does not actually take place without the workers fault.

Illegal Recruitment when committed by a

syndicate 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) or more persons conspiring and/or confederating with one another. It is deemed committed in large scale if committed against three (3) or more persons individually or as a group.

Persons Liable: Principals, Accomplices, and Accessories; for Juridical Persons: the officers HAVING CONTROL, MANAGEMENT, OR DIRECTION of their business

General Rule: Employees who have no control, do not manage nor direct the business may not be held liable; UNLESS, it is shown that such employees

ACTIVELY AND CONSCIOUSLY PARTICIPATED in the illegal recruitment

LACK OF RECEIPTS: will not defeat the purpose of criminal prosecution AS LONG AS THE WITNESSES CAN POSITIVELY SHOW THROUGH THEIR RESPECTIVE TESTIMONIES that the accused was the one involved in the prohibited recruitment; credible testimonies suffice

ECONOMIC SABOTAGE: IR committed by syndicate and IR committed in large scale; each is an independent and separate category that can stand on their own and need not coincide or concur within the same case

ESTAFA: CONVICTION for Illegal Recruitment is not a bar for filing suit against such person for ESTAFA under the RPC as long as the requisites for said felony are present

THE POWER TO ISSUE SEARCH AND ARREST WARRANTS AS FOUND IN ART. 38 (C) DEEMED UNCONSTITUTIONAL see Salazar v. Achacoso and Marquez, G.R. No. 81510, March 14, 1990

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

the Secretary of Labor is not a judge hence is no longer granted the power to issues said warrants. Authorities must now undergo judicial process

Exception: Deportation or Illegal and Undesirable Aliens Casesthe President or the Commissioner of Immigration may order



arrested following a final order of deportation for the purpose of deportation

SUBJECT TO ARREST: Illegal Recruiters are still subject to arrest, upon compliance with the procedure as provided for by law namely through a warrant of arrest issued by a judge of an RTC where a criminal information was filed after preliminary investigation; also RULES ON WARRANTLESS ARRESTS under Rule 113, Section 5 of the ROC may still apply to illegal recruiters when they fall under the circumstances enumerated therein; WARRANTLESS SEARCHES: INCIDENTAL to lawful arrest; PLAIN VIEW; with INDIVIDUALS CONSENT

CLOSURE ORDER: DOLE Secretary or his duly authorized representative still has power or authority to issue and order closure of illegal recruitment establishes, this being an ADMINISTRATIVE and REGULATORY action; Issuance after an ex parte preliminary examination to determine whether the activities of a non-licensee constitute a danger to national security and public order or will lead to further exploitation of job seekers

PROCEDURE FOR CLOSURE: Rules Secs. 14 27; these cover the POEAs Anti-Illegal Recruitment Programs; Provision for Legal Assistance; Complaints Desk; 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 One

Hundred Thousand Pesos (P100,000) shall be imposed if illegal recruitment constitutes economic sabotage as defined herein;

(B) Any licensee or holder of authority found violating or causing another to violate any provision of this Title or its implementing rules and regulations shall upon conviction thereof, suffer the penalty of imprisonment of not less than two years nor more than five years or a fine not less than P10,000 nor more than P50,000, or both such imprisonment and fine, at the discretion of the court;

(C) Any person who is neither a licensee nor a holder of authority under this Title found violating any provision thereof or its IRRS shall, upon conviction thereof, suffer the penalty of imprisonment of not less than four years nor more than eight years or a fine not less than P20,000 nor more than P100,000 or 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 imposed upon the officer or officers of the corporation, partnership, association, or entity responsible for the violation, and if such officer is an alien, he shall, in addition to the penalties herein prescribed, be deported without further proceedings;

3 Amended by RA 8042, Section 7



(E) In every case, conviction shall cause and carry the automatic revocation of the license or authority and all the permits and privileges granted to such person or entity under this Title, and the forfeiture of the cash and surety bonds in favor of the Overseas Employment Board or the National Seamen Board, as the case may be, both of which are authorized to use the same exclusively to promote their 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 THA TWELVE (12) YEARS and A FINE OF NOT LESS THAN TWO HUNDRED THOUSAND PESOS (P200,000.00) NOR MORE THAN FIVE HUNDRED THOUSAND PESOS (P500,000.00)

The penalty of LIFE IMPRISONMENT and a FINE NOT LESS THAN FIVE HUNDRED THOUSAND PESOS (P500,000.00) NOR MORE THAN ONE MILLION PESOS (P1,000,000.00) shall be imposed if IR CONSTITUTES ECONOMIC SABOTAGE

Provided however, That the MAXIMUM PENALTY shall be imposed if the PERSON ILLEGALLY RECRUITED is LESS THAN 18 YEARS OF AGE or committed by a non-licensee or non-holder of authority.

VENUE (Sec. 9, RA 8042): Criminal Action arising from IR shall be filed with the REGIONAL TRIAL COURT of the province or city WHERE THE OFFENDED PARTY ACTUALLY RESIDES AT THE TIME OF THE COMMISSION OF THE OFFENSE

MANDATORY PERIODS for Resolution of IR cases (Sec. 11, RA 8042): terminate within 30 days from date of filing: preliminary investigation; file information within 24 hours from termination of investigation; file information within 48 hours from the date of receipt of case records if preliminary investigation conducted by judge and prima facie case is established

PRESCRIPTIVE PERIODS (Sec. 12, RA 8042): General IR: 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 for employment purposes and any domestic or foreign employer who desires to engage an alien for employment in the Philippines shall obtain an employment 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 the Philippines who is competent, able and willing at the



time of the application to perform the services for which the alien is desired.For an enterprise registered in preferred areas of investments, said employment permit may be issued upon recommendation of the government agency charged with the supervision of said registered enterprise.

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 his employer without prior approval from the Secretary of DOLE

(b) Any non-resident alien who shall take up employment in violation of provision of this Title and its IRRs shall be punished in accordance with Arts. 2894 and 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 employment permits; instead, they need an ALIEN EMPLOYMENY REGISTRATION CARD (AERC)

NATIONALIZED INDUSTRIES and the ANTI-DUMMY LAW (C.A. no. 108 as amended by PD715) Foreigners may not be employed in certain nationalized industries; law provides and subjects reservation of ownership and control of such

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

corporations to the 60% requirement, i.e. public utility, natural resources; financing companies; however, media and advertising requires 100% Filipino ownership and management (Consti)

DOJ OPINION 143, series 1976: provides instances when aliens may be allowed to engage in employment within nationalized industries: a.) where the DOJ Secretary specifically authorizes the employment of foreign technical personnel, or, b.) where the aliens are elected members of the Board of Directors or governing body of corporations or associations in proportion to their allowable participation in the capital of such entities

DEPARTMENT ORDER no. 12, SERIES 2001: Omnibus Guidelines for the Issuance of Employment Permits to 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 the services of foreign professional to practice



their professions in the Philippines under reciprocity and international agreements;

5) Non-Indo Chinese Refugees who are asylum seekers and given refugee status by the UN High Commissioner on Refugees (UNHCR) of the 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 notice the requirement for Resident Foreign Nationals to secure AEP)

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

1) All members of the diplomatic services and foreign government officials accredited by the Philippine Government;

2) Officers and staff of the international organizations of which the Philippine government is a cooperating member, and their legitimate spouses desiring to work in the Philippines;

3) Foreign nationals elected as members of the Governing Board who do not occupy any other position, but have only voting rights in the corporation, and

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

Basis for issuing AEP:a) Compliance by the applicant

employer or the foreign national with the substantive and documentary requirements;

b) Determination of the DOLE Secretary that there is no Filipino national who is competent, able and willing to do the job for which the services of the applicant is desired;

c) Assessment of the DOLE Secretary that the employment of the Foreign national will redound to national benefit.

Understudy Program is no longer required for the issuance of AEP

G.R. Validity of AEP is for ONE YEAR unless the employment contract, consultancy services, or other modes of engagement or term of office for elective officers, provides for a longer period;

RENEWAL OF AEP: application must be filed at least 15 days before its expiration;

EFFECTIVITY OF RENEWAL: one day after the expiration of previous permit; regardless of whether or not the renewal is granted before or after the expiration of the previous permit;

GENERAL RULE: PERMITS VALID ONLY FOR THE POSITION AND EMPLOYER FOR WHICH THEY WERE



ISSUED; except in cases of holders of MULTIPLE POSITIONS 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 of such nationals to the Secretary of Labor within thirty (30) days after such date indicating their names, citizenship, foreign and local addresses, nature of employment and status of stay in the country. The Secretary of Labor shall then determine if they are entitled to an employment permit.

BOOK TWOHUMAN RESOURCES DEVELOPMENT

TITLE I:MANPOWER DEVELOPMENT PROGRAM

CHAPTER 1NATIONAL POLICIES AND ADMINISTRATIVE MACHINERY

FOR THEIR IMPLEMENTATION

Articles 43 56; pertaining to National Manpower and Youth Council has been replaced and absorbed by the TESDA (Technical Education and Skills Development Authority) created under RA7796 which was approved on August 25, 2994.

For the complete copy of Republic Act 7796: The TESDA 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 the State to provide relevant, accessible, high quality and efficient technical education and skills development in support of the development of high quality Filipino middle-level manpower responsive to and in accordance with Philippine development goals and priorities.

Private Sector Participation The State shall encourage the active participation of various concerned sectors, particularly private enterprises, being direct participants in and immediate beneficiaries of a trained and skilled workforce, in providing technical education and skills development opportunities.

TITLE II TRAINING AND EMPLOYMENT OF SPECIAL WORKERS

Chapter 1: APPRENTICES

Art. 57 Statement of ObjectivesArt. 58 Definition of TermsAs used in this Title: a.) Apprenticeship means any practical training on the job supplemented by related theoretical instruction; b.) An Apprentice is a worker who is covered by a written apprenticeship agreement with an individual employer or any entities recognized



under this Chapter; c.) An Apprenticeable Occupation means any trade, form of employment or occupation which requires more than three (3) months of practical training on the job supplemented by related theoretical instruction; (see R.A. 7796) d.) Apprenticeship Agreement is an employment contract wherein the employer binds himself to train the apprentice and the apprentice in turn accepts the terms of training.

Art. 59 Qualifications of an ApprenticeTo 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 and capacity for appropriate tests; and

(c) Possess the ability to comprehend and follow oral and written instructions.

Trade and industry associations may recommend to the Secretary 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-on training, more or less formal, to learn the ropes of a skilled job. It is usually the point of entry to the world of work.

Department Order no. 8; March 9, 1989 DOLE Policy on Apprenticeship; by virtue of which, the DOLE is required to undertake the review of trades,

occupation, and jobs in all sectors of the economy to 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 is an explicit prohibition on employment of children below 15 years of age, although the said law recognizes certain exceptions, an apprenticeship is not included in the enumeration.

Art. 61 Contents of Apprenticeship Agreements

Apprenticeship need DOLEs prior approval, or Apprentice becomes regular employee

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

It is mandated that apprenticeship agreements entered into by an employer and an apprentice shall be entered only in accordance with the apprenticeship program duly approved by the Minister of Labor and Employment; hence, since the apprenticeship agreement between petitioner and private respondent has no force and effect in the absence of a valid apprenticeship program duly approved by the DOLE, private respondents assertion that he was hired not as an apprentice but as a delivery boy deserves credence.

Art. 62 Signing of Apprenticeship Agreement



Art. 63 Venue of Apprenticeship ProgramsArt .64 - Sponsoring of Apprenticeship ProgramArt. 65 -Investigation of Violation of Apprenticeship AgreementArt. 66 - Appeal to the Secretary of LaborArt. 67 - Exhaustion of Administrative RemediesArt. 68 - Aptitude Testing of ApplicantsArt. 69 - Responsibility for Theoretical InstructionArt. 70 - Voluntary Organization of Apprenticeship Programs, ExceptionsArt. 71 - Deductibility of Training CostsArt. 72 - Apprentices without Compensation

Implementing Rules (Section X, Rule 14) provide, in relation to Art. 72: There is no employer-employee relationship between students on one hand and schools, colleges or universities, on the other, where there is a written agreement between them under which the former agree to work for the latter in exchange for the privilege to study free of charge, provided the students are given real opportunities, including such facilities as may be reasonable and necessary to finish their chosen courses 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 the Labor Code was promulgated by the Secretary of Labor and Employment only for the purpose of administering and enforcing the

provisions of the Labor Code on conditions of employment. Particularly, Rule X of Book III provides guidelines on the matter by which the powers of the Labor Secretary shall be exercised; on what records should be kept or maintained, etc Rule X is merely a guide to the enforcement of the substantive law on labor. The case does not deal with a labor dispute on conditions of employment between an alleged employer and employee reliance of petitioner on the IRR is misplaced. An IRR on labor cannot be used by an employer as a shield to avoid liability under the 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 through practical training on the job in a relatively short period of 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 unfair competition in terms of labor costs or impair or lower working standards.

Art. 75 Learnership AgreementAny employer desiring to employ learners shall enter into a learnership agreement with them, which agreement 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 legal minimum wage; and

d) a commitment to employ the learners if they so desire, as regular employees upon completion of the learnership. All learners who have been allowed or suffered to work during the first two (2) months shall be deemed regular employees if training is terminated by the employer before the end of the stipulated period through no fault of the learner.

The learnership agreement shall be subject to inspection by the Secretary of Labor, or his duly authorized representatives.

Art. 76 Learners in Piecework

Learners employed in piecework or incentive-rate jobs during the training period shall be paid in full for the work done.

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

Learnership v. Apprenticeship:BOTH: Training periods for jobs requiring skills that can be acquired through actual work experience; both learner and apprentice may be paid wages twenty-five (25%) percent lower than the applicable legal minimum wage

Learnership Apprenticeship- training in semi-skilled job; industrial occupations that require training for less than 3 months- job is non-apprenticeable because its practical skills can be learned in 3 (not 6) months - commitment to hire a learner after the period- no need for prior approval from DOLE in terms of hiring

- training in highly-skilled job; job found in highly-technical industry; training period exceeds 3 months- minimum period is 6 months- no commitment to hire an apprentice even after completion of period- prior DOLE approval required for hiring apprentices



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

Chapter III HANDICAPPED WORKERS

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

Art. 79 When EmployableHandicapped workers may be employed when:

a) their employment is necessary to prevent curtailment of employment opportunities; and

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

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

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

b) the rate to be paid the handicapped workers to be employed which shall be not less than seventy-five (75%) percent of the applicable legal minimum wage;

c) the duration of the employment period; and

d) the work to be performed by the handicapped workers.

The employment agreement shall be subject to inspection by the Secretary of Labor or his duly authorized representatives. Art. 81 Eligibility for ApprenticeshipSubject to the appropriate provisions of this Code, handicapped workers may be hired as apprentices or learners if their handicap is not such as to effectively impede the performance of job operations in the particular occupations for which they are hired.

The MAGNA CART FOR DISABLED PERSONS- Republic Act no. 7277, March 24, 1992 insures equal opportunities for disabled persons and prohibits discrimination 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 undertakings

whether for profit or not BUT NOT TO govt employees, managerial employees [those whose



primary duty consists of the management of the establishment in which they are employed or of a dept or subdivision thereof, and to other officers or members of the managerial staff], field personnel [refer to non-agricultural employees who regularly perform their duties away from the principal place of business or branch office of the employer and whose actual hours of work in the field cannot be determined with reasonable certainty], members of the family who are dependent on him for support, domestic helpers, persons in the personal service of another, workers who are paid by results

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

Elements of employment relationship (4-fold test)

1. selection and engagement of the employee

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

employee with respect to the means and methods by which the work is to be accomplished aka control test

evidence of employment: id, vouchers, SSS registration, memorandum, appointment letters, payrolls, organization charts

pakiao workers are considered employees as long as the employer

exercises control over the means by which such workers are to perform their work (Zamudio vs NLRC)

mere fact that an entity is a labor union does not mean that it cannot be considered an employer of the persons who work for it; even unregistered association may be deemed an employer

LC defines an employer as any person who acts in the interest of an employer in/directly; the law does not require an employer to be registered in order to be considered as an employer (Orlando Farm Growers vs NLRC)

No employment relationship job contracting or independent contractor

Employer is free to regulate, accdg to his own discretion and judgment, all aspects of employment, including hiring, work assignments, working methods, time, place and manner of work, tools to be used, processes to be followed, supervision of workers, dismissal and recall of workers so long as the they are exercised in good faith for the advancement of the employers interest and not for the purpose of defeating or circumventing the rights



of the employees under special laws or under valid agreements

Excluded employees1. govt employees governed by CSC rules EXCEPT

govt employees of govt agencies and govt corporations incorporated under the Corporation Code

2. 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 are controlled or required by the employer and are pursued necessarily and primarily for the employers benefit

Whether waiting time constitutes working time depends on the circumstances of each case whether it is spent predominantly for the employers benefit or for the emmployees; considered as working time if waiting is an integral part of his work or if the employee is required or engaged by an employer to wait

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

Working while sleeping may be considered working if it is subject to interruption or takes place under conditions substantially less desirable than would likely to exist at employees home

on call compensable; within reach through cellphone or other contact device not compensable

Travel from home to work not worktime EXCEPT when employee receives an emergency call outside of his regular working hours and is required to travel to his regular place of business or some other work site, all of the time spent in such travel is working time

travel away from home travel that keeps an employee away from home overnight; worktime

attendance at lectures, meetings, training programs and other similar activities not considered worktime if it is outside employees regular working hours, it is voluntary, and the employee does not perform productive work during such attendance

time spent in grievence meetings considered worktime

regular full-time teachers are entitled to salary and emergency cost-of-living allowance during semestral breaks (UPang Faculty Union vs UPANG)

a laborer need not leave the premises of the workplace in order that his rest period shall not be



counted; it is enough that he ceases to work (case in point: seamen)

hours worked: employer has burden of proof

Art. 85 Meal Periods GR: not compensable

E: predominantly spent for employers benefit or where it is less than 60 minutes (but in no case shall it 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 shortened period

2. no diminution in the salary and other fringe benefits

3. work does not involve strenuous physical exertion and are provided w/ coffee breaks

4. value of the benefits derived by the employees from the proposed work arrangement is equal to or commensurate with the compensation due them

5. overtime pay of the employees will become due and demandable if ever they are permitted or made to work beyond 4:30pm

6. effectivity of proposed working time arrangement shall be of temporary duration as determined by DOLE

Art. 86 Night Shift Differential

not less than 10% of regular wage for each hour of work 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 other fringe benefits)

How work day is counted 24-hour period which commences from the time the employee regularly starts to work

Work in excess of 8 hours w/n a work day is considered as overtime regardless of whether this is performed in a work shift other than at which employee regularly works

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

Overtime pay in arrears retroacts to the date when services 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 in basic salary is not per se illegal; however, there



should have been express agreement to that effect and that the mathematical result shows that the agreed legal wage rate and the overtime pay,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 the following requisites are present:1. agree in writing to work 9 hours a day from

Monday to Friday 2. 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 or equal to the one-hour overtime pay that is due them during weekdays

4. overtime pay of the employees will become due and demandable if ever they are permitted or made to work on weekend

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

6. effectivity of proposed working time arrangement shall 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 local emergency has been declared by Congress or the President

2. necessary to prevent loss of life or property or in case of imminent danger to public safety due to impending emergency caused by accidents, fire, flood, typhoon, earthquake, epidemic, or other disaster or calamity

3. urgent work to be performed on the machines, ect. In order to avoid loss or damage 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 by employer

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 rest day



1. necessary to prevent loss of life or property or in case of imminent danger to public safety due to impending emergency caused by accidents, fire, flood, typhoon, earthquake, epidemic, or other disaster or calamity

2. urgent work to be performed on the machines, ect. In order to avoid loss or damage to employer

3. abnormal pressure of work due to special circumstances, where the employer cannot ordinarily be expected to resort to other measures

4. prevent loss or damage to perishable goods5. nature of work requires continuous

operations and stoppage of work may result in irreparable injury or loss to the employer

6. similar circumstances as determined by DOLE Sec.

Art. 93 Compensation for rest day, Sunday, or holiday work at least 30% of regular wage when such holiday falls on his rest day, addl

compensation of at least 50% CBA may stipulate higher premium pay 3 special days (holidays) Nov.1, Dec. 31, Aug. 21

30%

Chapter IIIHOLIDAYS, SERVICE INCENTIVE LEAVES, AND SERVICE

CHARGES

Art. 94 Right to (Regular) Holiday 100% addl compensation 10 regular holidays

1. 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.Riza

labor law - lab stan - reviewer (azucena)

Documents

labor laws

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