Social Justice – Social Justice isneither communism, nordespotism, nor atomism noranarchy, but the humanizationof laws and the equalization ofsocial and economic forces bythe State so that justice in itsrational and objectively secularconception may at least beapproximated. Social justicemeans the promotion of thewelfare of the people, theadoption by the government ofmeasures calculated to ensureeconomic stability of all thecomponent elements of thesociety through themaintenance of propereconomic and socialequilibrium In theinterrelations of the membersof the community,constitutionally, through theadoption of measures legallyjustifiable, or extra-constitutionally, through theexercise of powers underlyingthe existence of allgovernments, on the time-honored principle of saluspopuli est suprema lex(Calalang vs Williams)

ARTICLE 4

Art. 4. Construction in Favor of Labor. – Alldoubts in the implementation andinterpretation of the provisions of this Code,including its implementing rules andregulations, shall be resolved in favor oflabor.

It is in keeping with theconstitutional mandate ofpromoting social justice andaffording protection to laborRelated Civil Code ProvisionsArt. 10 – In case of doubt in theinterpretation or application oflaws, it is presumed that thelaw-making body intendedright and justice to prevail.At. 1702 – In case of doubt, alllabor legislation and all laborcontracts shall be construed infavor of the safety and decentliving of the laborer.Those who have less in lifeshould have more in law.This rule of interpretation andconstruction in favor of labordoes not mean that the capitalshould, at all times, be at thelosing end of controversy.The Philippine Constitution,while inexorably committedtowards the protection of theworking class from exploitationand unfair treatment,nevertheless mandates thepolicy of social justice so as tostrike balance between anavowed predilection for labor,on one hand, and the

maintenance of the legal rightsof the capital, on the other.Contracts which are notambiguous are to beinterpreted according to theirliteral meaning and not beyondtheir obvious intendment.

Rules and Regulations

Art. 5. Rules and regulations. TheDepartment of Labor and other governmentagencies charged with the administrationand enforcement of this Code or any of itsparts shall promulgate the necessaryimplementing rules and regulations. Suchrules and regulations shall become effectivefifteen (15) days after announcement of theiradoption in newspapers of generalcirculation.

*It has been ruled that administrativeregulations and policies enacted byadministrative bodies to interpret the lawwhich they are entrusted to enforce have theforce of law, and are entitled to great respect.

QUASI-LEGISLATIVE POWER

This article vests the DOLE with RULE-MAKING POWERS in the enforcementthereof. However, a rule or regulationpromulgated by an administrative body, suchas the Department of Labor, to implement alaw, in excess of its rule-making authority isVOID. An administrative interpretation whichtakes away a benefit granted in the law isutra vires, that is beyond one’s power.

ARTICLLE 6 : APPLICABILITY

GENERAL RULE : The Code applies to allworkers, whether agricultural or non-agricultural, including employees in the agovernment corporation incorporated in theCorporation Code.

EXECEPTIONS:

Government Employees;Employees of the governmentcorporations created by specialor original charter;Foreign governments;Local Water districts;International Agencies andemployees ofintergovernmentalorganization;Corporate Officers/ Intra-corporate disputes which fallunder P.D. No. 902-A and nowfall under the jurisdiction ofthe Regular Courts pursuant toSecurities Regulation Code

Employer ‐ Any person, natural or juridical,domestic or foreign, who carries on it thePhilippines any trade, business, industry,undertaking or activity of any kind and usesthe services of another person who is underhis orders as regards the employment,except the Government and any of itspolitical subdivisions, branches orinstrumentalities, including corporationsowned or controlled by the Government:Provided, That a self‐employed person shallbe both employee and employer at the sametime. (RA 8282, Sec. 8c)

Employee ‐ Any person who performsservices for an employer in which either orboth mental and physical efforts are usedand who receives compensation for suchservices, where there is an employer‐employee relationship: Provided, That a self‐employed person shall be both employeeand employer at the same time. (RA 8282,Sec. 8d)

What is the 4-fold test of employee-employerrelationship?

Selection and engagement ofthe employee;Payment of wages or salaries;Exercise of the power ofdismissal;Exercise of the power tocontrol the employee’sconduct. (Control Test)

However, the 4-fold test is not fool-proof as itadmits of exceptions.

It must be noted that the control test is thecontrolling test, meaning, the employercontrols or has the right to control not onlyas to the result of the work to be done butalso as t the means and methods by whichthe same is to be accomplished.

The greater the supervision and control thehirer exercises, the more likely the worker isdeemed an employee. The converse holdstrue as well – less control the hirer exercises,the more likely the worker is considered anindependent contractor. (Sonza v. ABS-CBN,GR 138051, June 10, 2004)

Rule to establish employee-employerrelationship

It is not necessary that a written contract besecured for the creation and validity ofemployee-employer relationship, an oralcontract may also serve the purpose.

The case of the Kasambahay is an exceptionto the rule wherein it is required that thecontract of employment must be in writing.

Other Tests

Two-tiered approachEconomic dependence oreconomic reality test

1. Two-tiered Approach

The putative employer’s powerto control employee withrespect to the means andmethods by which the work isto be accomplished; andThe underlying economicrealities of the activity orrelationship.

2. Economic Dependence or EconomicReality Test

Refers to whether the worker is dependenton the alleged employer for his continuedemployment in that line of business.

Existence of Employment Relationship

The Existence of an employee-employerrelationship is determined by law; it cannotbe negated simply by repudiating it in themanagement or employment contract. Itcannot be held that the worker is an“independent contractor” when the terms ofthe agreement clearly show otherwise.(Acuzena, 2014, p. 164)

Kinds of Employment

Regular employees referring tothose who have been “engagedto perform activities which areusually necessary or desirablein the usual business or tradeof the employer”;Project employees referring tothose “whose employment hasbeen fixed for a specific projector undertaking, the completionor termination of which hasbeen determined at the time ofthe engagement of theemployee”;Seasonal employees referringto those who work or performservices which are seasonal innature, and the employment isfor the duration of the season;Casual employees referring tothose who are not regular,project, or seasonalemployees;Fixed-term employees whoseterm is freely and voluntarilydetermined by the employerand the employee.

Regular EmploymentMay be attained in either ofthree ways, namelyBy nature of work. – Theemployment is deemed regularwhen the employee has beenengaged to perform activitieswhich are usually necessary ordesirable in the usual businessor trade of the employer.By period of service. – Theemployment is reckoned asregular when the employee hasrendered at least one (1) yearof service, whether such

service is continuous orbroken, with respect to theactivity in which he isemployed and his employmentshall continue while suchactivity exist.By probationary employment. –The employment is consideredregular when the employee isallowed to work after theprobationary period.

Project EmploymentLitmus Test – is whether or notthe project employees wereassigned to carry out specificproject or undertaking, theduration and scope of whichwere specified at the time theemployees were engaged forthat project.A true project employee shouldbe assigned to a project whichbegins and ends at determinedor determinable times and beinformed thereof at the time ofhiring.

Seasonal EmploymentA seasonal employee canbecome a regular seasonalemployee provided that thefollowing requisites arecomplied with:The seasonal employee shouldperform work or services thatare seasonal in nature; andThey must have also beenemployed for more than one(1) year.

Casual EmploymentThe most important distinctionis that the work or job forwhich he was hired is merelyincidental to the principalbusiness of the employer andsuch work or job is for adefinite period made known othe employee at the time ofengagement.Casual employees becomeregular after one year ofservice by operation of law.The one (1) year period shouldbe reckoned from the hiringdate. Repeated rehiring of acasual employee makes him aregular employee.

Fixed-term EmploymentRequisites for a valid fixed-term employment:The fixed period ofemployment was knowinglyand voluntarily agreed upon bythe parties, without any force,duress or improper pressurebeing brought to bear upon theemployee and absent any othercircumstances vitiating hisconsent; or

It satisfactorily appears thatthe employer and employeedealt with each other on moreor less equal terms with nomoral dominance whateverbeing exercised by the formeron the latter.

Note: The practice of hiring of employees ona uniformly fixed 5-month basis andreplacing them upon the expiration of theircontracts with other workers with the sameemployment status circumvents their right tosecurity of tenure.

Cases Where Employee-EmployerRelationship Exists

Jeepney drivers on boundarybasis (Villamaria v. CA, GR165881, April 19, 2006)Drivers or helpers of salesmenare employees of the company(Alhambra Industries v. CIR, GRL-15984, October 30, 1970)Employees of unregisteredassociation (Orlando FarmGrowers v. NLRC, GR 129076,November 25, 1998)Street-hired kargador(Caurdanetaan Piece WorkersUnion v. Laguesma, GR 113542,February 24, 1998)Workers in movie projects(Maraguinot v. NLRC, GR120969, January 22, 1998)Salaried insurance agents asdistinguished from registeredagents on commission basis(Great Pacific Life AssuranceCorp. v. Judico, GR 73887,December 21, 1989)Tailors, seamstresses, servers,basters, pantsadoras paid onpiece-rate basis (MakatiHaberdashery v. NLRC, GR83380-83, November 15, 1989)In-house lawyer asdistinguished from an outsideretainer (Hydro ResourcesContractors Corp. v.Pagalilauan, GR L-62909, April18, 1989)Resident physicians ( IRR LCBook III, Rule X, Sec. 15)University professors andinstructors ( FEU v. CIR, GR L-17620, August 31, 1962)Taxi driver, barber (CitizenLeague of Free Workers v.Abbas, GR L-21212, September23, 1966)Security guard with respect tothe Security Agency (AgroCommercial Services Agency,Inc. v. NLRC, GR 82823, July 31,1989)

Case where the is no Employee-EmployerRelationship

Farm workers are notemployees of the sugar central(Victoria Milling Co., Inc. v.

NLRC, GR 116347, October 3,1996)Caddies are not employees ofthe golf club (Manila Golf &Country Club v. IAC, GR 64948,September 27, 1998)Working scholars are notemployees of the school(Filamer Christian Institute v.IAC, GR 75112), August 17,1992)Collecting agents oncommission basis (SingerSewing Machine Company v.Drilon, GR 91116, January 24,1991)Shoe shine boy (Besa v.Trajano, GR 72409, December29, 1986)Independent contractor sellingsoft drinks (Mafinco TradingCorp. v. Ople, GR L-37790,March 25, 1976Commission salesman (Abante,Jr. v. Lammadrid Bearing &Parts Corporation, GR 159890,May 28, 2004)

Dismissal from Employment

Exercise of the two-fold due processrequirement:

Substantive aspect whichmeans that the dismissal mustbe for any of the (1) just causeprovided under Article 282 ofthe Labor Code or the companyrules and regulationspromulgated by the employer;or (2) authorized causes underArticles 283 and 284 thereof;andProcedural aspect which meansthat the employee must beaccorded due process, theelements of which are noticeand opportunity to be heardand to defend himself.

A dismissal based on just cause means thatthe employee has committed a wrongful actor omission; while a dismissal based onauthorized cause means that there exist aground which the law itself allows orauthorizes to be invoked to justify thetermination of an employee even if he hasnot committed any wrongful act or omissionsuch as installation of labor-saving devices,redundancy, retrenchment, closure orcessation of business operation or disease.

Just Causes mentioned in the Labor Code

ART. 282. Termination by employer. - Anemployer may terminate an employment forany of the following causes:

Serious misconduct or willfuldisobedience by the employeeof the lawful orders of hisemployer or representative inconnection with his work;

Gross and habitual neglect bythe employee of his duties;Fraud or willful breach by theemployee of the trust reposedin him by his employer or dulyauthorized representative;Commission of a crime oroffense by the employeeagainst the person of hisemployer or any immediatemember of his family or hisduly authorizedrepresentatives; andOther causes analogous to theforegoing.

ART. 264(a). (Prohibited Activities) whichprovides for the termination of the following:

Union officers who knowinglyparticipate in an illegal strikeand therefore deemed to havelost their employment status.Any employee, union officer orordinary member whoknowingly participates in thecommission of illegal actsduring a strike (irrespective ofwhether the strike is legal orillegal), is deemed to have losthis employment status.

ART. 263(g). (National Interest Cases) wherestrikers who violate orders, prohibitionsand/or injunctions as are issued by the DOLESecretary or the NLRC, may be imposedimmediate disciplinary action, includingdismissal or loss of employment status.

ART. 248(e). (Union Security Clause) whereviolation of the union security agreement inthe CBA may result in termination ofemployment. Under this clause, thebargaining union can demand from theemployer the dismissal of an employee whocommits a breach of union securityarrangement, such as failure to join theunion or to maintain his membership in goodstanding therein. The same union can alsodemand the dismissal of a member whocommits an act of disloyalty against it, suchas when the member organizes a rival union.

Just Cause under Jurisprudence

The following may be cited as just cause inaccordance with prevailing jurisprudence:

Violation of company rules andregulationsTheft of property owned by aco-employee as distinguishedfrom company-owned propertywhich is considered seriousmisconductIncompetence, inefficiency orineptitudeFailure to attain work quotaFailure to comply with weightstandards of employerAttitude problem

Other Analogous Causes

The following may be cited as analogouscauses:

Violation of company rules andregulationsTheft of property owned by aco-employee, as distinguishedfrom theft owned by theemployer.Incompetence, inefficiency orineptitudeFailure to attain work quotaFailure to comply with weightstandards of employer“Attitude problem” isanalogous to loss of trust andconfidence.

Authorized Causes

Two classes, namely:

Business-related causes –Referring to the groundsspecifically mentioned inArticle 283, to wit:Installation of labor-savingdevice;Redundancy;Retrench;Closure or cessation ofbusiness operation NOT due toserious business losses orfinancial reverses;Closure or cessation ofbusiness operation due toserious losses and financialreverses.Health-related causes –referring to disease covered byArticle 284 of the Labor Code.

Requisites applicable to the authorizedcauses under Article 283

There is good faith in effectingthe termination;The termination is a matter oflast resort, there being noother option available to theemployer after resorting tocost-cutting measures;Two (2) separate notices areserved on both the affectedemployees and the DOLE atleast one (1) month prior to theintended date of termination;Separation pay is paid to theaffected employees, to wit:If based on (1) installation oflabor-saving device, or (2)redundancy. One (1) month payor at least one (1) month payfor every year of service,whichever is higher, a fractionof at least six (6) months shallbe considered as one (1) wholeyear.If based on (1) retrenchment,or (2) closure NOT due toserious business losses orfinancial reverses. One (1)month pay or at least one-half

pay for every year of service,whichever is higher, a fractionof at least six (6) months shallbe considered as one (1) wholeyear.If closure is due to seriousbusiness losses of financialreverses, NO separation pay isrequired to be paid.In case the CBA or companypolicy provides for a higherseparation pay, the same mustbe followed instead of the oneprovided in Article 283.Fair and reasonable criteria inascertaining what position areto be affected by thetermination, such as, but notlimited to: nature of work;status of employment (whethercasual, temporary or regular);experience; efficiency;seniority; dependability;adaptability; flexibility;trainability; job preference;discipline; and attitudetowards work. Failure to followfair and reasonable criteria inselecting who to terminatewould render the terminationinvalid.

Due Process

Twin-Notice RequirementHearing; Meaning ofOpportunity to be Heard

Due process means compliance with bothSTATUTORY due process andCONTRACTUAL due process.CONSTITUTIONAL due process is NOTapplicable.

Statutory due process refers to the oneprescribed in the Labor Code (Article 277(b));while contractual due process refers to theone prescribed in the Company Rules andRegulations.

Twin-Notice Requirement

Service of first written noticeContain the specific causes orgrounds for terminationagainst him;Contain a directive that theemployee is given theopportunity to submit hiswritten explanation within thereasonable period of FIVECALENDAR DAYS from receiptof the notice:To enable him to prepareadequately for his defense;To study the accusation againsthim;To consult a union official orlawyer;To gather data and evidence;andTo decide on the defense hewill raise against thecomplainant.

Contain a detailed narration ofthe facts and circumstancesthat will serve as basis for thecharge against the employee.This is required in order toenable him to intelligentlyprepare his explanation anddefenses. A general descriptionof the charge will not suffice.Specifically mention whichcompany rules, if any, areviolated and/or which amongthe grounds under Article 282is being charged against theemployee.

Conduct of hearing

The employer should schedule and conducta hearing or conference wherein theemployee will be given the opportunity to:

Explain and clarify his defensesto the charge/s against him;Present evidence in support ofhis defenses; andRebut the evidence presentedagainst him by themanagement.

The employee may defend himselfpersonally, with the assistance of arepresentative or counsel of his choice.Moreover, this conference or hearing couldbe used by the parties as an opportunity tocome to an amicable settlement.

Perez Doctrine

This is the new guiding principle on thehearing requirement. It has interpreted thatthe term “ample opportunity to be heard” asfollows:

“ample opportunity to beheard” mans any meaningfulopportunity (verbal or written)given to the employee toanswer the charges againsthim and submit evidence insupport of his defense,whether in a hearing,conference or some other fair,just and reasonable way.A formal hearing or conferenceis no longer mandatory. Itbecomes mandatory only underand of the followingcircumstances:When requested by employeein writing;When substantial evidentiarydisputes exist;When a company rule orpractice requires it;When similar circumstancesjustify it.The “ample opportunity to beheard” standard in the LaborCode prevails over the“hearing or conference”requirement in itsImplementing Rules andRegulations. Service of the of secondwritten notice

After determining thattermination of employment isjustified, the employer shallserve the employees a writtennotice of termination indicatingthat:All circumstances involving thecharge/s against the employeehave been considered; andGrounds have been establishedto justify the severance of hisemployment.

The Seven (7) Standard Situations inTermination Cases

The rules on termination of employment inthe Labor Code and pertinent jurisprudenceare applicable to the seven (7) differentsituations, namely:

1 The dismissal was for a justcause under Article 282, for anauthorized cause under Article283, or for health reasonsunder Article 284, and due processwas observed. – this termination isLEGAL

2 The dismissal was without a just orauthorized cause but due processwas observed. – this termination isILLEGAL

3 The dismissal was without a just orauthorized cause and due processwas not observed. – This terminationis ILLEGAL

4 The dismissal was for a just orauthorized cause but the due processwas not observed. – this terminationis LEGAL

5 The dismissal was for non-existentcause. This termination is ILLEGAL

6 The dismissal was not supported byany evidence of termination – thistermination is NEITHER LEGAL NORILLEGAL as there is no dismissal tospeak of. Reinstatement is orderednot as a relief for illegal dismissal buton equitable ground.

7 The dismissal was brought about bythe implementation of a law. Thistermination is LEGAL.

Reliefs for Illegal Dismissal

Under Article 279 of the Labor Code:

1 Reinstatement without loss ofseniority rights and other privileges;

2 Full backwages, inclusive ofallowances; and

3 Other benefits or their monetaryequivalent.

Other Reliefs Not Found in Article 279 ButAwarded in Illegal Dismissal Cases

1 Award of separation pay in lieu ofreinstatement

2 Award of penalty in the form ofnominal damages in case oftermination due to just or authorizedcause but without observance ofprocedural due process.

3 Reliefs to illegally dismissedemployee whose employment is for afixed period. The proper relief is onlythe payment of the employee’ssalaries corresponding to theunexpired portion of the employmentcontract.

4 Award of damages and attorney’sfees.

5 Award of financial assistance incases where the employee’sdismissal is declared legal butbecause of long years of service, andother considerations, financialassistance is awarded.

6 Imposition of legal interest onseparation pay, backwages and othermonetary awards.

APPRENTICESHIP

ART. 57. Statement of objectives. - This Titleaims:

(1) To help meet the demand of the economyfor trained manpower;

(2) To establish a national apprenticeshipprogram through the participation ofemployers, workers and government andnon-government agencies; and

(3) To establish apprenticeship standards forthe protection of apprentices.

ART. 58. Definition of Terms.

APPRENTICESHIP – a practicaltraining on the job supplemented byrelated theoretical instruction, for ahighly skilled or technical occupationfor a period of not less than 3 monthsbut not more than 6 months.

APPRENTICE – a person undergoingtraining for an approvedapprenticeable occupation during anestablished period assured by anapprenticeship agreement.

APPRENTICEABLE OCCUPATION –an occupation officially endorsed bya tripartite body and approved forapprenticeship by the TESDA.

APPRENTICESHIP AGREEMENT – anemployment contract wherein theemployer binds himself to train theapprentice and the apprentice in turnaccepts the terms of training.

ON-THE-JOB TRAINING – a practicalwork experience through actualparticipation in productive activitiesgiven to or acquired by anapprentice.

HIGHLY TECHNICAL INDUSTRIES –those trade, business, enterprise,industry or other activity which areengaged in the application ofadvanced technology.

ART. 59. Qualifications of apprentice.

1 At least 15 years of age (as amendedby R.A. 7610, Section 12) providedthat if below 18 years, he shall not beeligible for hazardous occupation;

2 Physically fit for the occupation inwhich he desires to be trained;

3 Possess vocational aptitude andcapacity for the particular occupationas established through appropriatetests; and

4 Possess the ability to comprehendand follow oral and written instructions.

ART. 60. Employment of apprentices.

Qualifications to be met by employer:

1 Only employers in highly technicalindustries may employ apprentices;and

2 Only in apprenticeable occupationsas determined by the TESDA

Requisites for a Valid Apprenticeship:

1 Qualifications of apprentice are met;2 Apprentice earns not less than 75%

of the prescribed minimum salary;3 Apprenticeship agreement duly

executed and signed;4 Apprenticeship agreement must be

approved by the TESDA; otherwiseapprentice shall be deemed a regularemployee; and

5 Period of apprenticeship shall notexceed 6 months. At the termination of the

apprenticeship, the employer isnot required to continue theemployment.

Number of Apprentices to be Taken in byCompanies

- Only up to a maximum number of20% of its total regular workforce.

There is no valid apprenticeship if:

1 The agreement submitted to theTESDA was made long after theworkers started undergoingapprenticeship;

2 The work performed by theapprenticeship was different fromthose allegedly approved by theTESDA;

3 The workers undergoingapprenticeship are already skilledworkers;

4 The workers were required tocontinue undergoing apprenticeshipbeyond 6 months.

ART. 61. Contents of apprenticeshipagreements. - Apprenticeship agreements,including the wage rates of apprentices,shall conform to the rules issued by theSecretary of Labor and Employment. Theperiod of apprenticeship shall not exceed sixmonths. Apprenticeship agreementsproviding for wage rates below the legal

minimum wage, which in no case shall startbelow 75 percent of the applicable minimumwage, may be entered into only inaccordance with apprenticeship programsduly approved by the Secretary of Labor andEmployment. The Department shall developstandard model programs ofapprenticeship. (As amended by Section 1,Executive Order No. 111, December 24, 1986).

Working hours of apprentices

- Shall not exceed the maximumnumber of hours prescribed by law, ifany, for a worker of his age and sex.

- An apprentice not otherwise barredby law from working 8 hours may berequested by his employer to workovertime and paid accordingly.

ART. 62. Signing of apprenticeship agreement. -Every apprenticeship agreement shall besigned by the employer or his agent, or by anauthorized representative of any of therecognized organizations, associations orgroups and by the apprentice.

An apprenticeship agreement with a minorshall be signed in his behalf by his parent orguardian, if the latter is not available, by anauthorized representative of the Departmentof Labor, and the same shall be bindingduring its lifetime.

Every apprenticeship agreement entered intounder this Title shall be ratified by theappropriate apprenticeship committees, ifany, and a copy thereof shall be furnishedboth the employer and the apprentice.

Defective Contract

- If the agreement is found to bedefective and serious damage wouldbe sustained by either party if suchdefect is not corrected, the DOLE-TESDA shall advise the employerwithin 5 working days not toimplement the agreement pendingamendment thereof.

ART. 63. Venue of apprenticeship programs. -Any firm, employer, group or association,industry organization or civic group wishingto organize an apprenticeship program maychoose from any of the followingapprenticeship schemes as the trainingvenue for apprentice:

(a) Apprenticeship conducted entirely by andwithin the sponsoring firm, establishment orentity;

(b) Apprenticeship entirely within aDepartment of Labor and Employmenttraining center or other public traininginstitution; or

(c) Initial training in trade fundamentals in atraining center or other institution withsubsequent actual work participation withinthe sponsoring firm or entity during the finalstage of training.

ART. 64. Sponsoring of apprenticeshipprogram. - Any of the apprenticeshipschemes recognized herein may beundertaken or sponsored by a singleemployer or firm or by a group or

association thereof or by a civicorganization. Actual training of apprenticesmay be undertaken:

(a) In the premises of the sponsoringemployer in the case of individualapprenticeship programs;

(b) In the premises of one or severaldesignated firms in the case of programssponsored by a group or association ofemployers or by a civic organization; or

(c) In a Department of Labor andEmployment training centeror other publictraining institution.

ART. 65. Investigation of violation ofapprenticeship agreement. - Upon complaint ofany interested person or upon its owninitiative, the appropriate agency of theDepartment ofLabor and Employment or itsauthorized representative shall investigateany violation of an apprenticeship agreementpursuant to such rules and regulations asmay be prescribed by the Secretaryof Labor and Employment.

ART. 66. Appeal to the Secretary of Labor andEmployment. - The decision of the authorizedagency of the Department ofLabor andEmployment may be appealed by anyaggrieved person to the Secretaryof Labor and Employment within five (5) daysfrom receipt of the decision. The decision ofthe Secretary of Labor and Employment shallbe final andexecutory.

ART. 67. Exhaustion of administrativeremedies. - No person shall institute anyaction for the enforcement of anyapprenticeship agreement or damages forbreach of any such agreement, unless hehas exhausted all available administrativeremedies.

ART. 68. Aptitude testing of applicants. -Consonant with the minimum qualificationsof apprentice-applicants required under thisChapter, employers or entities with dulyrecognized apprenticeship programs shallhave primary responsibility for providingappropriate aptitude tests in the selection ofapprentices. If they do not have adequatefacilities for the purpose, the Departmentof Labor and Employment shall perform theservice free of charge.

ART. 69. Responsibility for theoreticalinstruction. - Supplementary theoreticalinstruction to apprentices in cases where theprogram is undertaken in the plant may bedone by the employer. If the latter is notprepared to assume the responsibility, thesame may be delegated to an appropriategovernment agency.

ART. 70. Voluntary organization ofapprenticeship programs; exemptions. -(a) The organization of apprenticeshipprogram shall be primarily a voluntaryundertaking by employers;

(b) When national security or particularrequirements of economic development sodemand, the President of the Philippinesmay require compulsory training ofapprentices in certain trades, occupations,jobs or employment levels where shortage of

trained manpower is deemed critical asdetermined by the Secretary of Labor andEmployment. Appropriate rules in thisconnection shall be promulgated by theSecretary ofLabor and Employment as theneed arises; and

(c) Where services of foreign technicians areutilized by private companiesin apprenticeable trades, said companies arerequired to set up appropriateapprenticeship programs.

ART. 71. Deductibility of training costs. - Anadditional deduction from taxable income ofone-half (1/2) of the value oflabor trainingexpenses incurred for developing theproductivity and efficiency of apprenticesshall be granted to the person or enterpriseorganizing an apprenticeship program:Provided, That such program is dulyrecognized by the Department ofLabor andEmployment: Provided, further, That suchdeduction shall not exceed ten (10%) percentof direct labor wage: and Provided, finally,That the person or enterprise who wishes toavail himself or itself of this incentive shouldpay his apprentices the minimum wage.

ART. 72. Apprentices without compensation. -The Secretary ofLabor and Employment mayauthorize the hiring of apprentices withoutcompensation whose training on the job isrequired by the school or training programcurriculum or as requisite for graduation orboard examination.

……………………….

DEPARTMENT ORDER NO. 68-04 Series of2004

GUIDELINES IN THE IMPLEMENTATION OFTHE KASANAYAN AT HANAPBUHAYPROGRAM

(An Apprenticeship and EmploymentProgram)

Objective

1 Provide opportunity for new entrantsto the labor force to acquireexperience and skills; generatecommitment from enterprises indeveloping the skills of the Filipinoworkforce; and

2 Facilitate the absorption ofapprentices into the regularworkforce after their apprenticeship.

Apprentice – a person undergoing training foran approved apprenticeable occupationduring an established period and covered byan apprenticeship agreement.

Who may apply to be an apprentice?

Any unemployed person 15 years oldand above may apply for apprenticeship withany participating enterprise. The apprenticesshall furnish the following requirements:

a Forge an Apprenticeship Agreementwith the participating enterprise;

b Comply with the enterpriserequirements (e.g. clearances,medical certificate, etc.); and

c Abide with the stipulations in theApprenticeship Agreement.

Additional requirements (PESO registration):

a Register at the PESO using theCNMRS Form;

b Submit to PESO the accomplishedCNMRS form in two (2) copies;

c Report to the enterprise forscreening, if referred by the PESO;and

d Inform the PESO on the result of theapplication.

What is the duration of the Apprenticeshipperiod?

The apprenticeship period shall notbe less than four (4) months but not morethan six (6) months. However, theparticipating employer has the option to hirethe apprentice even prior to the completionof the apprenticeship period.

What are the apprentices entitled to?

1 Apprentices shall be entitled toreceive a wage not less than 75percent of the prevailing minimumwage and benefits such as socialsecurity and health benefits, andovertime pay.

2 An apprentice can work overtimeprovided there are no regularworkers to do the job and the timespent on overtime work is dulycredited to his training hours.

Apprenticeship – training within employmentinvolving a contract between an apprenticeand an enterprise on an apprenticeableoccupation.

Apprenticeable Occupation – an occupationofficially approved for apprenticeship byTESDA.

Apprenticeship Agreement – a contractwherein a prospective enterprise bindshimself to train the apprentice who, in turn,accepts the terms of training for arecognized apprenticeable occupationemphasizing the rights, duties andresponsibilities of each party. Noapprenticeship training will commence untilan Apprenticeship Agreement has beenforged between an enterprise and anapprentice.

Enterprise – a participating establishmentthat directly engages an apprentice based onan approved Apprenticeship Program.

Training Certificate – a document issued bythe participating enterprise to an apprenticewho completes the apprenticeship period.

Letter of Application – a letter signifying theintentions of the enterprise to register in theApprenticeship Program.

Certificate of Registration – a document issuedby TESDA granting an authority to aparticipating enterprise to offer the programin a particular occupation.

Who may apply for Certificate ofRegistration?

Any enterprise duly registered withthe appropriate government authorities withten (10) or more regular workers is qualifiedto join the program. The number ofapprentices for each participating enterpriseshall not be more than 20 percent of its totalregular workforce.

The enterprise shall register itsapprenticeship program with any of theTESDA Provincial Offices. It shall submit thefollowing:

1 Letter of Application; 2 Certification that the number of

apprentices to be hired is not morethan 20 percent of the total regularworkforce; and

3 Skills Training Outline. (No enterprise shall be allowed to hireapprentices unless its apprenticeshipprogram is registered and approved byTESDA.)

What are the incentives given toparticipating enterprises?

1 Payment of 75% of the prevailingminimum wage to apprentices;“OR”

2 An additional deduction from taxableincome of one-half (1/2) of the valueof labor training expenses incurredfor developing the productivity andefficiency of apprentices shall begranted to the person or enterpriseorganizing an apprenticeshipprogram: Provided, however, thatsuch deduction shall not exceed ten(10%) percent of direct labor wage;and, that the person or enterprisewho wishes to avail himself or itselfof this incentive should pay hisapprentices the minimum wage. (Asprovided for under Book II, Title II,Chapter I, Article 71 of the LaborCode)

What are the Duties of the Enterprises?

a Forge an Apprenticeship Agreementwith qualified apprentice(s);

b Provide training to apprentices; c Supervise and monitor the progress

of the apprentice(s); d Issue Training Certificate to

apprentices who successfullycomplete the program and pass theassessment;

e Pay the apprentices their allowablewage and other social security andhealth benefits; and

f Submit reports (Enrollment andTerminal Report) to TESDA Regional/Provincial Office.

Who are the Government Agencies andStakeholders involved in DO 68-04?

TESDA (Office of Apprenticeship) andDepartment of Labor and Employment(Bureau of Local Employment) shall jointly:

a Formulate guidelines on theimplementation of the program;

b Develop information materials; c Conduct briefing, training and

orientation for DOLE and TESDARegional and Provincial Offices;

d Initially, assist DOLE and TESDARO/PO with the advocacy of theprogram; and

e Monitor and evaluate programimplementation and recommendmeasures to improve, strengthen andsustain the program.

TESDA-OA shall:

a Facilitate the approval of newapprenticeable occupations; and

b Build and maintain a Kasanayan atHanapbuhay Registry of Enterprisesin coordination with TESDA –Planning Office (PO).

TESDA Regional/ Provincial Office

a Conduct promotion and advocacy ofthe program in coordination withDOLE Regional Offices;

b Identify prospective enterprises incoordination with DOLE RegionalOffices;

c Evaluate and approve programs ofparticipating enterprises;

d Issue Certificate of Registration toparticipating enterprises;

e Provide list of registered enterpriseswith corresponding skills forapprenticeship to DOLE Regional/Provincial Offices;

f Assist enterprises in thedevelopment of competencyassessment instrument;

g Administer competency assessmentto apprentices, whenever applicableand issue Certificate of Competency;

h Submit enrollment and terminalreports to OA, copy furnished DOLERegional/ Provincial Office; and Incases where there is no presence ofDOLE in the province, TESDA

Provincial Office shall assist theapplicant-apprentice.

BLE shall:

a Build and maintain the Kasanayan atHanapbuhay Manpower Registry inthe Phil-JobNet as part of theComputerized National ManpowerRegistry of Skills (CNMRS)

DOLE Regional Offices (DOLE-RO):

b Conduct promotion and advocacy ofthe program in coordination withTESDA Regional Office;

c Provide technical supervision andassistance to PESO in theimplementation of the program;

d Maintain a separate database for theKasanayan at Hanapbuhay ManpowerRegistry in the region;

e Identify prospective enterprises incoordination with TESDA RO; and

f Submit reports on registered andreferred applicants to BLE, copyfurnished TESDA Regional/ProvincialOffice.

Public Employment Service Office (PESO)

a Receive application, register, matchand refer applicant-apprentice toparticipating enterprises and submitto DOLE-RO duplicate copy;

b Facilitate absorption of anapprentice-graduate into regularemployment;

c Submit required reports onapplicants registered to the DOLERegional/Provincial Office;

d Assist the DOLE and TESDA RO/POin the conduct of promotion, andadvocacy of the program;and

e Assist the DOLE and TESDA RO/POin the identification of prospectiveenterprises.

………………..

Tesda Act of 1994

Section 3(j) – “Apprenticeship” trainingwithin employment with compulsoryrelated theoretical instructions involving acontract between an apprentice and anemployer on an approved apprenticeableoccupation.

Section 3(l) - “Apprenticeship Agreement”is a contract wherein a prospectiveemployer binds himself to train theapprentice who in turn accepts the termsof training for a recognized apprenticeableoccupation emphasizing the rights, dutiesand responsibilities of each party.

Section 3(n) – “Learners” refer to personshired as trainees in semi-skilled and otherindustrial occupations which are non-apprenticeable. Learnership programsmust be approved by the Authority.

Section 14(f) – Creation of the Office ofApprenticeship which has the followingfunctions:1 to provide direction, policies and

guidelines on the implementation ofthe Apprenticeship system;

2 to accredit, coordinate, monitor andevaluate all apprenticeship schemesand program implemented by variousinstitutions and enterprises;

3 to establish a network of institutionsand enterprises conductingapprenticeship schemes andprograms;

4 to perform such other powers andfunctions as may be authorized.

SECTION 18. Transfer of theApprenticeship Program. — TheApprenticeship Program of the Bureau ofLocal Employment of the Department ofLabor and Employment shall betransferred to the Authority which shallimplement and administer said program inaccordance with existing laws, rules andregulations.

SECTION 23. Administration of TrainingPrograms. — The Authority shall designand administer training programs andschemes that will develop the capabilitiesof public and private institutions toprovide quality and cost-effective technicaleducational and skills development andrelated opportunities. Such trainingprograms and schemes shall includeteacher’s trainers’ training, skills trainingfor entrepreneur development andtechnology development, cost-effectivetraining in occupational trades and relatedfields of employment, and valuedevelopment as an integral component ofall skills training programs.……………………

Learners Art. 73-77

Learners Art 73

persons hired as trainees in semi-skilledand other industrial occupations

non-apprenticeable

may be learned through practicaltraining on the job in a relatively shortperiod of time

shall not exceed three (3) months.

Prerequisites before learners may be validlyemployed or hired (Article 74)

no experienced workers are available

the employment of learners is necessaryto prevent curtailment of employmentopportunities, and

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

Art. 75.Learnership agreement.

Employment and training contract entered intobetween the employer and the learner

subject to inspection by the Secretary of Laborand Employment or his duly authorizedrepresentative

Learnership agreement shall include:

1 The names and addresses of thelearners;

2 The duration of the learnership period,which shall not exceed three (3) months;

3 The wages or salary rates of thelearners which shall begin at not lessthan seventy-five percent (75%) of theapplicable minimum wage; and

4 A commitment to employ the learners ifthey so desire, as regular employeesupon completion of the learnership.

Learners deemed regular employees

allowed or suffered to work during thefirst two (2) months

if training is terminated by the employerbefore the end of the stipulated period

without fault of the learners.

Parties to a learnership agreement:

employer or his duly authorized agent

learner

Employer shall furnish a copy of learnershipagreement within 5 working dsays following itsexecution by the parties, to the following:

learner

TESDA

Apprenticeship Division of theappropriate Regional Office

Employment of minors as Learners:

Below 15 years- not allowed

Below 18 yrs- only in non hazardous occupation

When does the employer or enterprise hasdan obligation to hire the learners asemployee?

under TESDA Circular No. 12 Series of 2004,after learnership period

Basis: Art 75 LCP

where it is required that the employermake a commitment to employ thelearners if they so desire, as regularemployees upon completion of thelearnership.

All learners who have been allowed orsuffered to work during the first two (2)months shall be deemed regularemployees if training is terminated bythe employer before the end of thestipulated period through no fault of thelearners.

.*OJT or practical training of a learner need NOTbe supplemented by THEORETICALINSTRUCTION

*Focus of training- Semis skilled/industrialoccupation (non apprenticeable)

*Salary- Not less than 75% of the applicableadjusted minimum wage

*Overtime pay-

Learners can work OT

When no regular workers to do the job

Time spent on OT work is duly creditedto his training hrs

Incentives to companyparticipating in theLearnership Programs:

Entitled to and additional deductionfrom taxable income ½ the value of thetraining expenses incurred fordeveloping the productivity andefficiency of learners

Said incentive shall be given providedthat such deduction shall not exceed 10% of the labor wage

Enterprise which wishes to avail suchincetive should pay the learners theminimum wage

Who may cancel Learnership program?

Secretary of Labor and Employment

If upon inquiry,it is found that the justification forthe program no longer exists

Learners in piecework Article 76

Learners employed:

during the training period

shall be paid in full for the work done.

Art. 77. Penalty clause.

Any violation of this Chapter or its implementingrules and regulations

shall be subject to the general penalty clauseprovided for in this Code.

It refers t o Art 288 LCP

Art. 288. Penalties. Except as otherwiseprovided in this Code, or unless the actscomplained of hinge on a question ofinterpretation or implementation ofambiguous provisions of an existingcollective bargaining agreement, anyviolation of the provisions of this Codedeclared to be unlawful or penal in natureshall be punished with a fine of not less thanOne Thousand Pesos (P1,000.00) nor morethan Ten Thousand Pesos (P10,000.00) orimprisonment of not less than three monthsnor more than three years, or both such fineand imprisonment at the discretion of thecourt.

In addition to such penalty, any alien foundguilty shall be summarily deported uponcompletion of service of sentence.

Any provision of law to the contrarynotwithstanding, any criminal offensepunished in this Code, shall be under theconcurrent jurisdiction of the Municipal orCity Courts and the Courts of FirstInstance. (As amended by Section 3, BatasPambansa Bilang 70)

………………………..RA 7277: MAGNA CARTA FOR DISABLEDPERSONS

Disabled persons are those suffering fromrestriction or different abilities, as aresult of a mental, physical or sensoryimpairment, to perform an activity in themanner or within the range considerednormal for human being

Chapter I: Employment

Sec. 5 Equal Opportunity for Employment.A qualified disabled employee shallbe subject to the same terms andconditions of employment and thesame compensation, privileges,benefits, fringe benefits, incentives orallowances as qualified able bodiedperson. (Sec. 5, p.1)

Sec. 7. ApprenticeshipSubject to the provisions of the LaborCode as amended,

disabled persons shall be eligible asapprentices or learners: Provided, That theirhandicap is not as much as to effectivelyimpede the performance of job operations inthe particular occupation for which they arehired; Provided, further, That after thelapse of the period of apprenticeship, iffound satisfactory in the job performance,theyshall be eligible for employment.

Sec. 8. Incentives for Employers

(a) To encourage the active participation oftheprivate sector in promoting the welfare ofdisabled persons and to ensure gainfulemployment for qualified disabled persons,adequate incentives shall be provided toprivate entities which employ disabledpersons.

(b) Private entities that employ disabledpersons who meet the required skills orqualifications, either as regular employee,apprentice or learner, shall be entitled to anadditional deduction, from their grossincome, equivalent to twenty-five percent(25%)of the total amount paid as salaries andwages to disabled persons: Provided,however,That such entities present proof as certifiedby the Department of Labor andEmployment that disabled persons are undertheir employ: Provided, further, That thedisabled employee is accredited with theDepartment of Labor and Employment andtheDepartment of Health as to his disability,skills and qualifications.

(c) Private entities that improve or modifytheir physical facilities in order to providereasonable accommodation for disabledpersons shall also be entitled to anadditionaldeduction from their net taxable income,equivalent to fifty percent (50%) of the directcosts of the improvements or modifications.This Section, however, does not apply toimprovements or modifications of facilitiesrequired under Batas Pambansa Bilang 344.

....................................................

Topic # 12 Pre-employment

Art. 12. Statement of objectives. It is the policyof the State: [Pro2 Fac2ReSI]

a. To promote and maintain a state of fullemployment through improved manpowertraining, allocation

and utilization;

b. To protect every citizen desiring to worklocally or overseas by securing for him thebest possible

terms and conditions of employment;

c. To facilitate a free choice of availableemployment by persons seeking work inconformity with the

national interest;

d. To facilitate and regulate the movement ofworkers in conformity with the nationalinterest;

e. To regulate the employment of aliens,including the establishment of a registrationand/or work

permit system;

f. To strengthen the network of publicemployment offices and rationalize theparticipation of the

private sector in the recruitment andplacement of workers, locally and overseas,to serve national

development objectives;

g. To insure careful selection of Filipinoworkers for overseas employment in order toprotect the good

name of the Philippines abroad

The DOLE

- by Administrative Code of 1987 (EO292)

- the primary policy-making,programming, coordinating andadministrative entity of the Executive branchof the govt in the field of labor andemployment

Its Primary responsibilities:

1. The promotion of gainful employmentopportunities and the optimization of thedevt & utilization of the country’s manpowerresources;

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

3. The maintenance of industrial peace bypromoting harmonious, equitable and stableemployment, relations that assure protectionfor the rights of all concerned parties.

Art. 13. Definitions.

b. "Recruitment and placement" refers to anyact of: [CETCHUP]

canvassing, enlisting, transporting,contracting, utilizing, hiring or procuringworkers,

and includes: [CRAP]

contract services, referrals, advertising orpromising

for employment, locally or abroad, whetherfor profit or not: Provided, That any personor entity which, in any manner, offers orpromises for a fee, employment to two ormore persons shall be deemed engaged inrecruitment and placement.

Notes:

1.Recruitment includes the act ofreferral or the “act of passing along orforwarding of an applicant for employmentafter an initial interview of a selectedapplicant for employment to a selectedemployer, placement officer or bureau(Rodolfo v. PP)

2.The number of persons dealt with isnot an essential ingredient of the act ofrecruitment and placement of workers. Theproviso merely creates a presumption.

c. "Private fee-charging employment agency"means any person or entity engaged inrecruitment and

placement of workers for a fee which ischarged, directly or indirectly, from theworkers or

employers or both.

d. "License" means a document issued bythe Department of Labor authorizing aperson or entity to

operate a private employment agency.

e. "Private recruitment entity" means anyperson or association engaged in therecruitment and

placement of workers, locally or overseas,without charging, directly or indirectly, anyfee from the

workers or employers.

f. "Authority" means a document issued bythe Department of Labor authorizing aperson or

association to engage in recruitment andplacement activities as a private recruitmententity.

h. "Overseas employment" meansemployment of a worker outside thePhilippines.

Classification of OFWs

1 Sea-based or Seamen 2 Land-Based – contract workers other

than a seaman including workersengaged in offshore activities whoseoccupation requires that majority ofhis working or gainful hours spent onland.

i. "Emigrant" means any person, worker orotherwise, who emigrates to a foreigncountry by virtue of an immigrant visa orresident permit or its equivalent in thecountry of destination.

-now referred to as “legal resident”.He is a person who has obtained permanentresidency status in accordance w/ the law ofthe host country.

Art. 14. Employment promotion. The Secretaryof Labor shall have the power and authority:

a. To organize and establish newemployment offices in addition to theexisting employment offices

under the Department of Labor as the needarises;

b. To organize and establish a nationwide jobclearance and information system to informapplicants

registering with a particular employmentoffice of job opportunities in other parts ofthe country as

well as job opportunities abroad;

c. To develop and organize a program thatwill facilitate occupational, industrial andgeographical

mobility of labor and provide assistance inthe relocation of workers from one area toanother; and

d. To require any person, establishment,organization or institution to submit suchemployment

information as may be prescribed by theSecretary of Labor.

Allocation of Manpower Resources is Assignedto the:

1 Bureau of Local Employment (BLE) –assigned the effective allocation ofmanpower resources in local

2 Ph Overseas EmploymentAdministration (POEA) – for overseasemployment

Art 15. BUREAU OF EMPLOYMENTSERVICES (now BLE) - primarily responsible for developing& monitoring a comprehensive employmentprogram.

Powers & Duties:1. To formulate & develop plans & programsto implement the employment promotionobjectives of this Title;2. To establish & maintain a registrationand/or licensing system to regulate privatesector participation in the recruitment &placement of workers, locally & overseas,and to secure the best possible terms &conditions of employment for Filipinocontract workers and compliance therewithunder such rules & regulations as may beissued by the DOLE;3. To formulate & develop employmentprograms designed to benefit disadvantagedgroups & communities;4. To establish & maintain a registrationand/or work permit system to regulate theemployment of aliens;5. To develop a labor market informationsystem in aid of proper manpower anddevelopment planning;6. To develop a responsible vocationalguidance & testing system in aid of properhuman resources allocation; and7. To maintain a central registry of skills,except seamen

*EO 797, May 1, 1982, created BLE to assumefunctions of Bureau of Apprenticeship andthe Bureau of Employment Services (BES).

Original & Exclusive Jurisdiction of the regionaloffices of DOLE - over all matters/cases involving ER-EE relations including money claims, arisingout of or by virtue of any law or contractsinvolving Filipino workers for overseasemployment except seamen: Provided, thatthe (BES) (now BLE) may, in the case of theNCR, exercise such power, whenever theDOLE deems it appropriate.

The decisions of the regional officesof the BES if so authorized by the Sec ofDOLE shall be appealable to the NLRC uponthe same grounds provided in Art 233 hereof.

The decisions of the NLRC shall be final &unappealable.

Minister of Labor – has the power to impose& collect fees, based on rates recommendedby the BES. Such fees shall be deposited inthe National Treasury as a special acct of theGeneral Fund, for the promotion of theobjectives of the BES, subj to the provisionsof Sec 40 of PD 1177.

PD 850 – replaced BES w/ BLE, through EO797 which also created POEA AO 186 – made licensing of localrecruitment agencies and the issuance ofwork permits to non-resident aliens andemployment registration certificates toresident aliens a function of the regionaloffices of DOLE

Private Recruitment and Placement Agency(PRPA)

It refers to any individual,partnership, corporation or entity engaged inthe recruitment and placement of persons forlocal employment.

- Secures a license from a DOLEregional office.

Placement Fee

Under existing BLE regulations, a licensedPRPA may charge a worker placement fee w/shall not exceed 20% of the worker’s firstmonth’s basic salary, chargeable after actualcommencement of employment.

XPN: Sec. 13, Kasambahay Law:

Regardless if whether the domesticworker was hired through a privateemployment agency or a third party, no sharein the recruitment or finder’s fee shall becharged against the domestic worker by thesaid private employment agency.

Service Fee Chargeable to Employer

A licensed PRPA may charge theEMPLOYER service fee w/c shall not exceed20% of the annual salary of the worker. In nocase shall the service fee be deducted fromthe worker’s salary.

Transportation Expenses of the worker fromthe place of origin to the place of work shallbe charged against the employer and shall inno case be deductedfrom the worker’ssalary.

RA 8795 – required the establishment of aPublic Employment Service Office (PESO) incapital towns, cities and other strategic

areas

PESO - serves as employment service &information center - Regularly obtains lists of jobvacancies from employers, publicizes them,invites and evaluates applicants, and refersthem for probable hiring - Provides training and educationalguidance and employment counselingservices - Also renders special services to thepublic such as holding of jobfairs, livelihoodand self-employment bazaars - Special credit assistance for placedoverseas workers - Special program for employment ofstudents (SPES) during summer or semestralbreaks - Work appreciation seminars &conferences and - Hiring of workers in infrastructureprojects (WHIP) Ra 6885 – created WHIP, a program w/crequires the DPWH and private contractorsto hire 30% of skilled and 50% unskilledlabor requirements from the area where theproject is being undertaken.

Art 16. PRIVATE RECRUITMENT:GR: No person/entity other than the publicemployment offices, shall engage in therecruitment & placement of workers.

XPN: [P4CMONS] (based on RulesImplementing the Code, the ff. entities areauthorized to recruit and place workers forlocal and overseas employment)1. Public employment offices2. Private recruitment entities3. Private employment agencies4. POEA

5. Construction contractors if authorized tooperate by DOLE and the ConstructionIndustry Authority6. Members of the diplomatic corps althoughhirings done by them have to be processedthrough the POEA7. Other persons/entities as may beauthorized by the Sec of DOLE

8. Shipping or manning agents orrepresentatives

Art 17. OVERSEAS EMPLOYMENT DEVTBOARDPOEA – has taken over the functions of theOverseas Employment Development Board(OEDB) and the National Seamen Board(NSB)

Principal Functions of the POEA [FPD]1. Formulation, implementation andmonitoring of overseas employment ofFilipino workers;2. Protection of their rights to fair andequitable employment practices;3. Deployment of Filipino workers throughgovt-to-govt hiring

Regulatory Functions

The POEA shall: [RFI2S]1. Regulate private sector participation in therecruitment & overseas placement ofworkers through its licensing andregistration system;2. Formulate & implement, in coordination w/appropriate entities concerned, whennecessary, a system for promoting andmonitoring the overseas employment ofFilipino workers taking into considerationtheir welfare and the domestic manpowerrequirements;3. Inform migrant workers not only of theirrights as workers but also of their rights ashuman beings;4. Instruct and guide the workers how toassert their rights and provide the availablemechanism to redress violation of theirrights;5. In the recruitment & placement of workersto service the requirements for trained andcompetent Filipino workers of foreign govtsand their instrumentalities, and such otheremployers as public interest may require,deploy only to countries: [BOG] (underSelective Deployment) a. Where the PH has concludedBilateral labor agreements or arrangements; b. Observing and/or complying w/ theinternational laws and standards of migrantworkers; c. Guaranteeing to protect the rightsof Filipino migrant workers.

Adjudicatory Functions [AD]1. Administrative cases involving violationsof licensing rules & regulations andregistration of recruitment and employmentagencies/entities; and2. Disciplinary action cases and other specialcases w/c are administrative in character,involving employers, principals, contractingpartners and Filipino migrant workers.

Jurisdiction retained by POEA

After the passage of RA 8042, the POEAretains original and exclusive jurisdiction tohear and decide:1. all cases w/c are administrative incharacter, involving or arising out ofviolations of rules & regulations relating tolicensing & registration of recruitment andemployment agencies/entities; and2. disciplinary action cases and other specialcases w/c are administrative in character,involving employers, principals, contractingpartners and Filipino migrant workers

Outside of POEA Jurisdiction1. NO jurisdiction to enforce foreignjudgment (must be brought before theregular courts). POEA is an administrative(not a court), exercising adjudicatory orquasi-judicial functions2. NO jurisdiction over torts

Grounds for Disciplinary Action [PUG is VVEC’sGIFT to DAD]

1 Prostitution;2 Unjust refusal to depart for the

worksite after all employment and

travel documents have been dulyapproved by the appropriate govtagency/ies;

3 Gunrunning or possession of deadlyweapons;

4 Vandalism or destroying companyproperty;

5 Violation/s of the laws and sacredpractices of the host country andunjustified breach of govt-approvedemployment contract by a worker;

6 Embezzlement of company funds orof moneys and properties of a fellowworker entrusted for delivery to kinsor relatives in the PH;

7 Creating trouble at the worksite or inthe vessel;

8 Gambling, esp where the laws of thehost country prohibits the same;

9 Initiating/joining a strike or workstoppage where the laws of the hostcountry prohibit strikes or similaractions;

10 Commission of a felony punishableby Ph laws or by the laws of thehost country;

11 Theft/robbery;12 Desertion or abandonment; 13 Drug addiction/possession or

trafficking of prohibited drugs;14 and15 Drunkenness, esp where the laws of

the host country prohibit intoxicatingdrinks

COMPROMISE AGREEMENT -consistent w/ the policy encouragingamicable settlement of labor disputes Sec 10of RA 8042 allows resolution by compromiseof cases filed w/ the NLRC - any compromise agreement onmoney claims inclusive of damages shall bepaid w/in 4 months from the approval of thesettlement

Penalties for Non-compliance of the mandatoryperiod for resolution of cases 1. The salary of such official who failsto render his decision/resolution w/in theprescribed period shall be, or caused to be,withheld until such official compliestherewith;2. Suspension for not more than 90 days; or3. Dismissal w/ disqualification to hold anyappointive public office for 5 yrs

ER/EE Relations CasesMillares & Lagda v NLRC: SC: seafarers arecontractual EES

Premature Termination of ContractIf EE is terminated before end of contract w/ojust cause, employers will be orderedto pay their salaries corresponding to theunexpired portion of their employmentcontract

Pretermination Under RA 8042A worker dismissed from overseasemployment w/o just cause as defined bylaw/contract is entitled to ―full

reimbursement of his placement fee w/interest at 12% per annum, plus the salaryfor the unexpired portion of theiremploymentcontract.

Due Process required to terminateemploymentin case of seamen – must be given writtennotice of the charges against him, andafforded a formal investigation where he candefend himself or thrua representative beforehe can be dismissed & disembarked.

The employer is required to furnish him w/ 2notices: (1) written notice of charge; and (2)written notice of dismissal

Contracted but not Deployed: PerfectedContract

Death benefits of Seafarers - entitled to death and other benefitsunder w/c ever is higher (foreign law or Phlaw) - entitled to death benefits if deathoccurs during the term of his contract ofemployment, even if death is not work-related;

XPN: death is caused by their owndoing

Disability – loss or impairment of a physicalor mental function resulting frominjury/sickness

Permanent disability – the inability of aworker to perform his job for more than 120days, regardless of WON he loses the use ofany part of his body

Total Disability – disablement of an EE toearn wages in the same kind of work ofsimilar nature that he was trained for oraccustomed to perform, or any kind of workw/c a person of his mentality andattainments could do. It does not meanabsolute helplessness. In disability compensation, it is notthe injury w/c is compensated, but rather it isthe incapacity to work resulting in theimpairment of one’s earning capacity

Disability benefits by seamen – a mattergoverned not only by medical findings but bylaw & contract - shall be paid beginning on the 1 stday of such disability. If caused by aninjury/sickness it shall not be paid longerthan 120 consecutive days;

Except: where such injury/sickness stillrequires medical attendance beyond 120days but not to exceed 240 days from onsetof disability in w/c case benefit for temporarytotal disability shall be paid.

In case of differing medical assessment

a.) when a seafarer sustains a work-related illness/injury while on board, hisfitness/unfitness to work shall be determinedby the company-designated physician. b.) If the physician appointed by theseafarer disagrees w/ the companydesignated physician’s assessment, theopinion of a 3rd doctor may be agreed jointlybet the employer and the seafarer to be thedecision final and binding on them

Invalid Agreements

1 Signing satisfaction receipts is not awaiver. Any agreement to receive lesscompensation than what the workeris entitled to recover is invalid.

2 An agreement that diminishes theemployee’s pay and benefits ascontained in a POEA-approvedcontract is void, unless suchsubsequent agreement is approvedby POEA.

Agencies Given the Duty to promote the welfare& rights of migrant workers:1.DFA2.DOLE3.POEA4. OWWA – Overseas Workers WelfareAdministration – provides social & welfareservices including insurance coverage, legalassistance, placement assistance andremittance services to Filipino overseasworkers. Under RA8042, it shall provide theFilipino migrant worker & his familyassistance in the enforcement of contractualobligations by agencies, entities and/or theirprincipals;5. RPM - Re-Placement and MonitoringCenter – develops livelihood programs forthe returning workers to reintegrate thereturning migrant workers to the Ph society;6. NLRC – tasked w/ thesettlement/adjudication of labor disputes

Art 18: BAN ON DIRECT HIRINGGR: Direct hiring of Filipino workers foroverseas employment is not allowedXPN: 1. Members of Diplomatic corps; 2. International organizations; 3. Other employers as may beallowed by DOLE; and 4. Name hires – individual workerswho are able to secure contracts foroverseas employment on their own effortsand representations w/oassistance/participation of any agency. Theirhiring nonetheless, shall pass through thePOEA for processing purposes

Rationale of the Prohibition1. To assure the best possible terms &conditions of work to the EE; and2. To assure the foreign ER that he hires onlyqualified Filipino workers

Q: Does POEA Administrator or the DOLESecretary or DOLE Regional Director havethe power to issue closure order?

A: Yes. If upon preliminary examination orsurveillance, the DOLE Secretary, the POEAAdministrator or DOLE Regional Director issatisfied that such danger or exploitationexists, a written order may be issued for theclosure of the establishment being used forillegal recruitment activity.

Art. 19. Office of Emigrant Affairs. (Dead Article)

Art. 20. National Seamen Board (NSB)pursuant to EO 797, now POEA (See Art. 17)

Minimum Employment Conditions ofOverseas Employment [GF3J WAR]

1 Guaranteed wages for regularworking hours and overtime pay;

2 Free transportation from point of hireto site or return;

3 Free emergency medical and dentaltreatment and facilities;

4 Free and adequate board and lodgingfacilities or compensatory foodallowance;

5 Just causes for termination of theservices of the workers;

6 Assistance on remittance of worker’ssalaries and allowances;

7 Workmen’s compensation benefitsand war hazard protection; and

8 Repatriation of worker’s remains andproperties in case of death.

Art. 21. Foreign service role and participation(Superseded by B.P. Blg. 79, An Act creatingthe Commission on Filipinos Overseas andfor other Purposes)

- necessary to monitor the statusof OFWs in their respective areasof assignment and insure thatthey are not exploited or abusedby their foreign principalemployers

Art. 22. Mandatory remittance of foreignexchange earnings. It shall be mandatory forall Filipino workers abroad to remit a portionof their foreign exchange earnings to theirfamilies, dependents, and/or beneficiaries inthe country in accordance with rules andregulations prescribed by the Secretary ofLabor.

- All OFWs are required to remit a portion oftheir foreign exchange earnings rangingfrom 50% - 80% depending on the worker’skind of job, to their families, dependents,and/or beneficiaries. (POEA Rules, Book III,Rule VIII)

Exceptions to Mandatory Remittance [URU]1. Fil servicemen working in US militaryinstallations;2. Where the worker’s immediate familymembers, dependents, or beneficiaries areResiding w/ him abroad;3. Immigrants and Fil professionals and EEsworking w/ UN agencies or specializedbodies

Effects of Failure to Remit1. Workers who fail to comply w/ the

mandatory remittance requirement shall besuspended/excluded from the list of eligibleworkers for overseas employment.Subsequent violations shall warrant hisrepatriation.2. Employers who fail to comply shall beexcluded from the overseas employmentprogram. Private employmentagencies/entities shall face cancellation orrevocation of their licenses or authority torecruit, w/o prejudice to other liabilitiesunder existing laws and regulations.

Note:

Legitimate relationship – not a requirementto be a beneficiary.

Art. 23. Composition of the Boards.

Art. 24. Boards to issue rules and collect fees.

……………………….

ARTICLE 25: PRIVATE EMPLOYMENTPARTICIPATION IN THE RECRUIMENT ANDPLACEMENT OF WORKERS

PRIVATE SECTORS WHO CAN PARTICIPATEIN R and P:

1 Private employment agencies;

2 Private recruitment agencies;

3 Shipping and manning agnecies;

4 Such other persons as may maybeauthorized by the Secretary of Laborand Employment;

5 Construction and Contractors

- But with a duly issued authorityto operate private recruitmententitites.

QULFIFICATIONS:

A Article 27: Citizenship

Filipino Citizens or

Corporations, partnerships orentities atleat 75 of theauthorized and voting capitalstock of which is owned andcontrolled by Filipino Citizen.

B Article 28: Capitalization

Private Employment Agency forLocal Employment – Minimumnetworth pf P 1, 000,000 in caseof single proprietorship and aminimum paid up capital of 1,000, 000 in case of partnershipand corporation;

For Overseas Employment-

P 3, 000,000 for both single andcorporations

Note. Pachek kung tama ung saoverseas hehehehe 3 million alamko e..

C Those not otherwise disqualified bylaw or other government regulationsto engage in the recruitment andplacement of workers for overseasemployment;

D In local, Employment, the owner,partner or the corporation must be ofgood moral character and notdisqualified by law and have an officespace with a minimum floor area of50 square meters.

VALIDITY OF LICENSE:

For overseas employement- everylicense shall be valid for four yearsfrom the date of issue unless soonercancelled, revoked or suspended.

For Local Employment- two (2) yearsfrom the date of issuance.

PROVISIONAL LICENSE FOR OVERSEASEMLOYMENT

Applicants for new license shall be issuedprovisional license valid for one (1) yearwithin which the applicant should be able tocomply with the undertaking to deploy 100workers to its principal (POEA 2002 Rulesand regulations)

DISQUALIFICATION

FOR OVERSEAS EMPLOYMENT WHETEHERFOR PROFIT OR NOT:

1 Travel Agencies and sales agenciesof airline companies (ART. 26 ofLaborcode)

2 Officers or members of the board ofany corporation or members inpartnership engaged in business of atravel agency;

3 Coporations and partneships whenany of its officers and members ofthe board or partners is also anofficer, member of the board orpartner of corporation or partnershipengaged in the business of a travelagency;

4 Persons, partnerships orcorporations which have derogatoryrecords such as but not limited to theff:

a Those certified to havederogatory record in the NationalBureau of Investigation or by the

Anti illegal Recrutment Branch ofPOEA;

b Those against whom probablecause or a prima facie finding ofguilt for illegal recruitment otherrelated cases exist;

c Those convicted for illegalrecruitment or other related casesand/ or crimes involving moralturpitude;

d Those agencies whose licenseshave been previously cancelledor revoked by POEA ;

5 Official or employees of DOLE orother government agencies directlyinvolved in overseas employmentprogram and their relatives with the4t degree of consanguinity or affinity;

6 Those license have previouslycancelled of revoke.

FOR LOCAL EMPLOYMENT:

1 Those who are convicted of illegalrecruitment, trafficking in persons ,anti chiled labor violation or crimesinvolving moral turpitude;

2 Those against whom probable causeor a prima facie finding of guilt forillegal recruitment other relatedcases exist;

3 Those agencies whose licenses havebeen previously revoked or cancelledby the department under Sec. 54these rules;

4 Cooperatives whether registered ornot under the Cooperative Act of thePil.

5 Law enforcers and any official andemployee of the Department of Laborof Employment

6 Sole proprietors of duly licensedagencies are prohibited fromsecuring another license to engage inrecruitment and placement

7 Sole proprietors, partnerships orcorporation licensed to engage inprivate recruitment and placement forlocal employment are prohibited fromengaging in job contracting or subcontracting activities.

ARTICLE 29: NON- TRANSFERABILITY OFLICENSE OR AUTHORITY

1 It may be used only by the one inwhose favor it was issued, hence itcannot be assigned conveyed ortransferred to any other person orentity.

2 It must be used only in the Placestated in the license. Thus, couldonly undertake recruitment andplacement activities in the regionwhere the license was granted.

3 The recruitment and placementactivities must be undertaken at theirauthorized official addresses.

4 Provincial Recruitment and/ or jobfairs maybe allowed only whenauthorized by POEA in writing.

Note: Change of ownership or relationship ofsingle proprietorship licensed to engage inoverseas employment shall cause theautomatic revocation of license.

In case of death single proprietorshiplicensee and upon the request of heir,license maybe extended to continue only forthe purpose of winding up the businessoperations because a single proprietor doesnot have the power of succession.

ARTICLE 30: Registration Fees

The secretary of labor shall promulgate aschedule of fees for the registration of allapplicants for license or authority.

ARTICLE 31: BONDS

For overseas employment

a Prior to the approval- all applicantsfro license shall post such cash bondand surety bonds as determined bythe Secretary of labor includingescrow deposits

b Upon Approval

License Fee of 50, 000

Escrow of 1,000, 000

Surety bond of 100,000

For Local Employment

a Prior to Approval

Cash bond of 25, 000

Surety of 100,000

Both valid for two years

License fee of 6000

Exemption from garnishment:

Cash bond filed by applicants for license orauthority is not subject to garnishment by ajudgment creditor of the agency.

ARTICLE 32: Fees to be paid by workers

The fees should be collected from ahired worker only after he has signedthe employment contract and thesame covered by the receiptsshowing the amount paid

Except when the prevailing system incountry where the worker to bedeployed either by law policy orpractice do not allow charging orcollecting of placement andrecruitment fees, a land basedagency may charge and collect fromits hired workers:

1 Placement fee equivalent to onemonth salary;

2 Documentation costs such asfollowing

a Passport

b Nbi/police/ barangayclearance

c Authentication

d Birth Certificate

e Trade test if necessary

f Inoculation when requiredby the host country

g Medical Examination

Manning agencies shall not chargeany fee from seafearer applicants forits recruitment and placementservices. All expense for hiringseaman shall be shouldered byforeign principals.

No other fees charge shall beimposed including processing feesshall imposed against a worker.

EO 797-REORGANIZING THE MINISTRY OFLABOR AND EMPLOYMENT, CREATING THEPHILIPPINE OVERSEAS EMPLOYMENTADMINISTRATION, AND FOR OTHERPURPOSES

RA

AGENCIES OF DOLE TO MONITOREMPLOYMENT: Lecture of Comm. Belle

1 Bureua of Local Employment-

Incharge with the regulationand licensing of localrecruitment agency

Regulation of AlienEmployees

Issuance of AlienEmployment

Issuance of Alien ResidentCert.

Referral of Local Employment

2 POEA- actively engaged in theRecruitment and placement overseas

Assume the function of OverseasEmployment Development Board(OEDB) and Seaman’s Board

Regulatory Function- to regulatelocal and foreign principal

Disciplinary action cases-complaint filed by the recruitmentand placement or OFW

a Suspend or cancel license;

b Order refund or reimbursement ofsuch illegally collected fees

Original and exclusive jurisdiction toinspect recruitment and placementagency and manning agency

VISITORIAL AND ENFORCEMENT

a On the spot inspection at the timethe applicant files application tooperated and recruit

b Routine inspection duringoperations

c Complaint inspection every timethere is a complaint filed

ARTICLE 34 AND SEC 6 RA NO. 8042(PROHIBITED PRRACTICES)

1 To charge greater amount that thatspecified in the schedule allowablefees;

2 To furnish any false information inrelation to recruitment oremployment

3 To give nay false notice, testimonyetc, or commit any act ofmisrepresentation to secure a licenseor authority

4 To induce or attempt to induce aworker to quit his job in liue ofanother offer unless it is designed toliberate the worker from oppressiveterms of employment

5 To influence or attempt to influenceany person or entity not to employany worker who has not applied tohis her agency

6 To engage in the recruitment orplacement of jobs harmful to publichealth, morality or to the dignity ofthe Philippines

7 To obstruct or attempt to obstructinspection by the secretary of laboror his authorized representative

8 To fail to file reports on the status ofemployment placement etc. and suchother matters as maybe required bythe secretary of labor

9 To substitute or alter employmentcontracts without the approval of theSecretary of Labor

10 To become an officer or member ofthe board or corporation engaged inthe management of travel agency

11 To withhold travel documents fromapplicant workers before departurefor nauthorized monetaryconsderations

12 Failure to actually deploy acontracted worker without validreasons as determine by departmentof labor

13 Failure to reimburse incurredexpenses in case of non deployment

14 To allow a non- Filipino Citizen tohead or manage a licensedrecruitment manning agency

ARTICLE 35: Suspension and/ orcancellation of license or authority

Non license or holder of authority is anyperson, corporation or entity which has notbeen issued a valid license or authority toenage a receruitment and placement by theSecrtary of Labor, whose license or authorityhas been suspended, revoked, or cancelledby the POEA and the Secretary.

GROUNDS FOR REVOCATION OF LICENSE

1 Incurring an accumulated threecounts of suspension by an agencybased on final and executory orderswithin the validity period of itslicense;

2 Violation of the conditions of license

3 Engagaing in the To engage in therecruitment or placement of jobsharmful to public health, morality orto the dignity of the Philippines

Grounds for the Suspension orCancellation of License

1 The acts prohibited under article 34of Labor Code

2 Charging Fee before the worker isemployedto in excess of theauthorized amount

3 Doung recruitmen in palces outsideits authorized area

4 Deploying workers withoutprocessing through the POEA

5 Publishing job announcementswithout the POEA’s prior approval

Jursidiction

The DOLE Secratry and POEA Administratorhave concurrent jurisdiction to suspend orcancel license.

Suability of Foreign Corporations

A Foreign Corporation that through anunlicensed agnet, recruits workers in thecountry may be sued in and found liable bythe Philippine Courts.

Lecture Com Belle

Foreign Placement Agency

Cannot engaged in recruitment andplacement in the Philippines

But they can accredited as foreignprincipal/ or employer

Registration of Foreign Principal canbe transferred from one to anotherjust as lng as the second recruitmentagency shall assume for all theresponsibilities in the fristrecruitment agency.

………………………………

Local Employment

Executive Order No. 797 issued on May 1,1982 created the Bureau of Local Employment(BLE) which assumed the functions of theBureau of Apprenticeship and the domesticfunctions of the Bureau of EmploymentServices (BES). With this development, theBureau of Employment Services is nowcalled Bureau of Local Employment.

Its overseas employment functions wereassumed by the Philippine OverseasEmployment Administration (POEA) on May1, 1982 by virtue of the same ExecutiveOrder. (Philippine-Singapore Ports Corp. v.NLRC, 218SCRA77, 1993)

In line with the mandate to decentralizegovernment operations and in order to makemore effective and efficient the delivery ofthe Department of Labor and Employment’sservices, the line functions of the Bureau ofLocal Employment were turned over to theRegional Offices as follows:

a Regulation and licensing of localrecruitment agencies in the region,including registration of regionalbranch offices and issuance oftemporary authority to recruit outsidethe region;

b Regulation of Alien employment andunderstudy programs;

c Issuance of non-resident alienemployment permits;

d Issuance of resident alien employmentregistration certificates;

e Regulation and monitoring of theapprenticeship and the learnershipprograms; and

f Referral and placement of workersfor local employment. (AO No. 186,Series of 1987)

The BLE is a policy making body for localrecruitment and placement and alienrelations; and is further tasked in coming-upof strategies in addressing local employmentissues.

Department Order 141-14

-important because it instructs us pertainingto local recruitment and placement(Commissioner Ortiguera)

Definition of terms:

a “Bureau” refers to the Bureau of LocalEmployment.

b “Department” – refers to theDepartment of Labor andEmployment.

c “Secretary” – refers to the Secretary ofthe Department of Labor andEmployment.

d “Regional Office” – refers to theRegional Offices of the Department.

e “Regional Director” – refers to theRegional Director of the RegionalOffice.

f “Field Office” refers to the district orprovincial offices of the Department.

g “Private employment agency or agency”refers to any person, partnership orcorporation engaged in therecruitment and placement ofworkers for local employment.It also refers to any individual,partnership, corporation or entitylicensed by the Department of Laborand Employment (DOLE) to engage inthe recruitment and placement ofKasambahay for local employment.

h “License” refers to a document issuedby the Secretary through theRegional Director authorizing aperson, partnership or corporation tooperate a private employmentagency.

i “Authority to operate branch office”refers to a document issued by theSecretary through the RegionalDirector authorizing a privateemployment agency to establish andoperate a branch office.

j “Authority to recruit” refers to adocument issued by the Secretarythrough the Regional Directorauthorizing a person to conductrecruitment activities for localemployment on behalf of a privateemployment agency.

k “Representative” refers to a personacting as an agent of a privateemployment agency registered withthe Regional Office and grantedAuthority to Recruit.

l “Domestic Seafarer” refers to anyperson who is employed or engaged towork in any capacity on board ship asdefined herein.

As compared with the definitiongiven by the Labor Code (Art. 13)"Seaman" means any personemployed in a vessel engaged inmaritime navigation.

As compared with the definitionstated in RA 8042 as amended by RA10022 (Rule II, Sec. 1), Seafarer -refers to any person who is employedor engaged in overseas employment inany capacity on board a ship otherthan a government ship used formilitary or non-commercial purposes.The definition shall include fishermen,cruise ship personnel and those servingon mobile offshore and drilling units inthe high seas.

m “Ship” refers to a Philippine registeredship or vessel which navigates withinthe territorial jurisdiction of thePhilippines or closely adjacent to,sheltered areas or areas where portregulations apply.

n “Public Employment Service Office orPESO” refers to a non-fee chargingmulti-employment service facility orentity established, recognized oraccredited pursuant to Republic ActNo. 8759 or the PESO Act of 1999 andits implementing rules andregulation.

o “Recruit” refers to any Filipinoindividual promised, contracted, orenlisted for employment.

p “Domestic Worker or Kasambahay”refers to any person engaged indomestic work within an employmentrelationship, whether on a live in orlive out arrangement, such as, but notlimited to general househelp, yaya,cook, gardener, or laundry person,but shall exclude service providers,family drivers, children who areunder foster family arrangement, orany person who performs domesticwork only occasionally orsporadically and not on occupationalbasis.

q “Recruitment contract” refers to theagreement entered into between aprivate employment agency or itsrepresentative and a recruit statingthe terms and conditions of therecruitment in a language known andunderstood by the recruit.

r “Employment contract” refers to theindividual written agreement betweenthe employer and the worker statingclearly the terms and conditions ofemployment in a language knownand understood by the worker.

s “Service contract” refers to theagreement entered into between theemployer and the private employmentagency stating clearly the terms andconditions of the service.

t “Service fee” refers to the amountcharged by a private employmentagency to a local employer aspayment for actual services renderedin relation to the recruitment andplacement of workers.

u “Deployment Expenses” refers toexpenses that are directly used for

the transfer of the Kasambahay fromthe place of origin to the place ofwork covering the cost oftransportation, meals,communication expense, and otherincidental expenses. Advances orloans by the Kasambahay are notincluded in the definition ofdeployment expenses.

v “Employer” refers to any person,partnership, corporation or entityengaging the services of a workerthrough the private employmentagency, and who is party to theemployment contract with the worker.It also refers to any person whoengages and controls the services ofa Kasambahay and is party to theemployment contract.

w “Non-license or non-holder of authority”refers to any person, partnership orcorporation who has not been issueda license or authority to recruit, orwhose license or authority to recruithas been revoked or cancelled by theRegional Director.

Qualifications for Local Recruitment andPlacement Agency for Local Employment

The applicant for a license to operate a PRPAmust possess the following:

1 Must be a Filipino Citizen, if singleproprietorship. In case of apartnership or a corporation, at least75% of the authorized capital stockmust be owned and controlled byFilipino citizen;

2 Must have a minimum net worth ofP1,000,000 in the case of singleproprietorship and partnership or aminimum paid-up capital of P1,000,000in the case of corporation.

3 The owner, partners or the officers ofthe corporation must be of good moralcharacter and not otherwise disqualifiedby law.

Disqualification set under Sec. 5 ofDO 141-14:

Section 5. Disqualification. – Thefollowing are not qualified to engagein the business of recruitment andplacement for local employment:

a. Those who are convicted of illegalrecruitment, trafficking in persons,anti-child labor violation, or crimesinvolving moral turpitude;

b. Those against whom probablecause or prima facie finding of guilt forillegal recruitment or other relatedcases exist particularly to owners ordirectors of agencies who havecommitted illegal recruitment orother related cases.

c. Those agencies whose licenseshave been previously revoked orcancelled by the Department underSec. 54 of these rules.

d. Cooperatives whether registered ornot under the Cooperative Act of thePhilippines.

e. Law enforcers and any official andemployee of the Department of Laborand Employment (DOLE).

f. Sole proprietors of duly licensedagencies are prohibited from securinganother license to engage inrecruitment and placement.

g. Sole proprietors, partnerships orcorporations licensed to engage inprivate recruitment and placementfor local employment are prohibitedfrom engaging in job contracting or subcontracting activities.

4. Must have an office space withminimum floor area of fifty (50)square meters.

The license application shall be filed in theRegional Office/Field Office having jurisdictionover the place where the applicant’s intendsto establish its office. In case the documentssubmitted are incomplete, the applicationmust not be received and/or accepted.

Appeal from the Denial of Application

The order of the Regional Director may beappealed to the Office of the Secretary withinten (10) days from receipt of the order. Thesame will be resolved by the secretary 10day from receipt of notice of appeal. Amotion for reconsideration can be filedwithin 10 days from receipt of the decision. Asecond motion for reconsideration shall notbe allowed.

Validity of the License

The license shall be valid all over thePhilippines for three (3) years from the date ofissuance, upon submission of proof ofpublication, unless sooner suspended,cancelled or revoked by DOLE RegionalDirector.

It must be noted that license shall not betransferred, conveyed or assigned to any otherperson or entity.

Fees and Charges

No fees whatsoever shall be collectedneither deducted from the salaries or wagesof the workers.

An agency may charge the following:

1 Service fee. – An agency may chargethe employers a service fee as maybe agreed upon by the agency andthe employer. In no care shall theservice fee be deducted from theworker’s salary.

2 Transportation expenses. – Thetransportation expenses for thetransfer of the worker from the placeof residence to the place of workshall be charged to the employer, andshall in no case be deducted from theworker’s salary.

Replacement of Worker without Cost or Refundof Service Fee

An employer shall be entitled to a replacementof a worker without additional cost or a refund of75% of the service fee and transportationexpenses subject to the followingconditions:

a If the worker is certified by acompetent/government physician tobe suffering from a medical or mentalillness within one (1) month from thefirst day of work rendering himincapable of discharging theminimum requirements of the job; or

b If the worker abandons the job,voluntarily resigns, commits theft or anyother acts prejudicial to the employer orhis family within three (3) months fromthe first day of his work.

If the request for a preplacement is beyondthe abovementioned periods, the employershall pay an additional service fee as agreedby both parties. (Sec. 37)

The employer is entitled to a refund of seventyfive (75%) percent of the service fee if theagency failed to provide a replacement ofworker based on any grounds enumerated inthe preceding section after the lapse of one (1)month from receipt of the request unless theparties agreed on a longer period. (Sec. 38………………………….

• It is not the policy of the State topromote foreign employment. The policy ofthe State towards foreign employment isselective, protective and ameliorative.

• The State shall deploy overseasworkers only if the receiving country:1. Has similar laws with PH2. Is a signatory of ILO Conventions3. Is a signatory to bilateral and

multilateral conventions

While recognizing the significantcontribution of Filipino migrant workers tothe national economy through their foreignexchange remittances, the State does notpromote overseas employment as a meansto sustain economic growth and achievenational development.

PRIVATE FEE CHARGING EMPLOYMENTAGENCY- Any person or entity engaged in therecruitment and placement of workers for afee which is charged, directly or indirectly,from the workers or employers or both.

PRIVATE RECRUITMENT ENTITY- any person or association engaged in therecruitment and placement of workers,locally or overseas, without charging,directly or indirectly, any fee from theworkers or employers.

RECRUITMENT/PLACEMENT AGENCY

General Rule:- Can only engage in acts of

recruitment in the place stated in thelicense.

Exceptions:1. When recruitment is done by PESO - recruitment can be done anywhere in

the Philippines where there is a PESOOffice

2. When the agency has been issued aSpecial Recruitment Authority (SRA)

- The term is self-limiting. Anexclusion of term must be with theapproval of the POEA.

A foreigner cannot be actively involved in themanagement of a local recruitment agency.

FOREIGN RECRUITMENT AGENCIES (FPA)- Cannot engage in recruitment in the

Philippines but can be accredited as principalor employer.

General Rule:- One accreditation per foreign

principal/employer.

Exception:- When the foreign employer can still offer a

uniform compensation package, and has aunified job order covering at least 50 workers.

OVERSEAS FILIPINOS- Migrant workers, other Filipino nationals and

their dependents abroad.

SEAMAN- any person employed in a vessel engagedin maritime navigation.

OVERSEAS EMPLOYMENT- the employment of a worker outside thePhilippines covered by a valid contract.

OVERSEAS FILIPINO WORKER(MIGRANT WORKER)- a person who is to be engaged, is engagedor ahs been engaged in a remuneratedactivity in a state of which he or she is not acitizen or on board a vessel navigating theforeign seas other than a government shipused for military or non-commercialpurposes or on an installation locatedoffshore or on the high seas.

Recruited construction workers of aPhilippine corporation which secured a projectabroad are not considered OFWs.

Recruitment whether done for profit or not isimmaterial

OFWs cannot acquire regularity of employment.They can only be contractual or fixed-termemployees.

Indefinite period of employment of OFWs is notvalid as it contravenes the explicit rule onfixed-term employment.

It shall be mandatory for all OFWs to remit aportion of their foreign exchange earnings totheir families, dependents, and/orbeneficiaries in the country through thePhilippine banking system. The OFW cannotdesignate himself as allotee thereof.

CLASSIFICATION OF OFWs:

1. Sea-based (Seamen)- those employed in a vessel engaged inmaritime navigation.

2. Land-based- contract workers other than a seamanincluding workers engaged in offshoreactivities whose occupation requires thatmajority of his working or gainful hours arespent on land.

ALLOCATION OF MANPOWER RESOURCESIS ASSIGNED TO THE:

1. Bureau of Local Employment (BLE)- for local employment- assumed the functions of the defunctBureau of Employment Services.- FUCTIONS:

a. Coming up with strategies to addressand improve unemployment in thePhilippines

b. Policy-making body for localrecruitment and placement, forpromotion of employment, and foralien employment.

2. Philippine Overseas EmploymentAdministration (POEA)- for overseas employment.- assumed the functions of the defunct OEBBand Seamen’s Board- created by EO 797

PRIVATE RECRUITMENT:

General Rule:No person or entity shall engage in

the recruitment and placement of workers,locally or overseas.

Exceptions:1. Public Employment Offices2. Private Recruitment Entities3. Private Employment Agencies4. POEA5. Construction Contractors if

authorized by the DOLE and theConstruction Industry Authority

6. Members of the Diplomatic Corps7. Other persons or entities as may by

authorized by the DOLE Secretary8. Name hires9. Shipping or manning agents or

representatives

POWERS OF THE SECRETARY OF LABORAND EMPLOYMENT:

1. Cannot issue search warrants andwarrants of arrest

2. Can issue seize and desist orders3. Can exercise visitorial and employment

powers over recruitment and manningagencies

4. Can ban deployment of OFWs in theexercise of police power to protectpublic interest

JURISDICTION OF THE POEA:

1. Original and Exclusive when it comesto the regulation of recruitment andplacement agencies

2. Adjudication of complaints which areadministrative in character

3. Adjudication of disciplinary actioncases and other special cases whichare administrative in character,involving employers, principals,recruitment and placement agenciesand OFWs.

4. Original and exclusive jurisdiction toinspect all recruitment and placementagencies as well as manningagencies, in relation to the visitorialpowers of the Secretary of Labor andEmployment.

VISITORIAL POWERS OF THE DOLESECRETARY:

1. On-the-spot inspection2. Routine inspection3. Complaint inspection

DISCIPLINARY ACTION CASES

- Should be filed with the AdjudicationOffice or Regional Office of thePOEA, as the case may be.

- The POEA may motu proprioundertake disciplinary action againsta worker.

- It shall establish a system of watvhingand blacklisting.

RECOURSE OF AGGRIEVED EMPLOYEES:

DOLE Regional Office

10 days

Secretary of Labor

10 days

Motion for Reconsideration

No further recourse

Finality of Decision

GRAVEST PENALTY FOR RECRUITMENTVIOLATIONS

- Suspension or cancellation of license plusfines.CONSEQUENCES OF CONVICTION

1. Automatic revocation of license orauthority

2. Forfeiture of cash and surety bonds

3. Conviction for the crime of Estafa, iffound guilty thereof

A person may be charged and convictedfor both illegal recruitment and estafa

ILLEGAL

RECRUITMENTESTAFA

Malum prohibitum Malum in se

Criminal intent is notnecessary

Criminal intent isrequried

PENALTY AND PRESCRIPTIVE PERIOD FORILLEGAL RECRUITMENT

SIMPLEECONOMIC

SABOTAGE

Prescriptive

Period5 years 20 years

Imprisonment

12 yearsand 1day to

20 years

Lifeimprisonme

nt

FineP 1 to 2million

P 2 to 5million

Maximum Penalty shall be imposed if theperson illegally recruited is less than 18years of age or if committed by a non-licensee or non-holder or authority.

Absence of receipts evidencing payment isnot fatal to prosecution’s case for illegalrecruitment for as long as the witnesses canpositively show through their respectivetestimonies that the accused is the oneinvolved in prohibited recruitment.

Alteration of contract is prohibited.

Venue for Filing Action for IllegalRecruitment:

- A criminal action arising from illegalrecruitment as defined herein shall be filedwith the Regional Trial Court of the provinceor city where the offense was committed orwhere the offended party actually resides atthe same time of the commission of theoffense: Provided, That the court where thecriminal action is first filed shall acquirejurisdiction to the exclusion of other courts.Provided, however, That the aforestatedprovisions shall also apply to those criminalactions that have already been filed in courtat the time of the effectivity of this Act.

CONCURRENT JURISDICTION- Employees constructively dismissed can file

before LA for illegal dismissal and before

POEA for violation of terms and conditionsof the contract, simultaneously.

- The DOLE Secretary and the POEAAdministrator have concurrent jurisdiction tosuspend or cancel a license.

RULE ON PRE-TERMINATION OF CONTRACT

1. If terminated other than those that are lawful andvalid before the agreed termination date, theemployer will pay the workers their salariescorresponding to the unexpired portion ofthe employment contract.

2. If the date of employment termination occurredon or after July 15, 1995, a worker dismissedfrom overseas employment without just,valid or authorized cause or there is anyunauthorized deductions from his salary, heis entitled to full reimbursement of hisplacement fee with interest at 12% perannum plus salaries for the unexpiredportion of his contract.

An OFW is not entitled to overtime pay, even ifguaranteed, if he failed to present anyevidence to prove that he rendered service inexcess of the regular 8 working hours a day.

In case of unauthorized deductions fromOFW’s salary, he shall be entitled to the fullreimbursement of the deductions at 12%interest per annum.

SECTION 10 (RA 8042)SECTION 7 (RA 10022)

- The clause “or for three (3) months for everyyear of the unexpired term, whichever is less”has been declared unconstitutional forviolation of the equal protection clause andof substantive due process.

- Claims arising out of an employer-employeerelationship or by virtue of any law orcontract involving Filipino workers foroverseas deployment including claims foractual, moral exemplary and other forms ofdamages is transferred to the Labor Arbiters ofthe NLRC.

Venue:Regional Arbitration branch of the NLRCwhere the complainant resides or where theprincipal office of the respondent/employeris situated at the option of the complainant.

- In cases of claims and disputes arising fromcollective bargaining agreements, the partiesshall submit the same to the original andexclusive jurisdiction of the voluntaryarbitrator or panel of arbitrators.

- It is only in the absence of a CBA that partiesmay opt to submit the dispute to either theNLRC or to voluntary arbitration.

DUE PROCESS REQUIRED TO TERMINATEEMPLOYMENT

1. Procedural due process requires that aseaman must be given:

a. Written notice of the chargesagainst him; and

b. Formal investigation where hecan defend himselfpersonally or through arepresentative before he canbe dismissed anddisembarked from thevessel.

2. The employer is bound to furnish him 2notices:

a. The written charge; andb. The written notice of dismissal

in case that is the penaltyimposed

BOTH the recruitment agency and its foreignprincipal have the burden of proof to showthat the dismissal was legal.

RELIEFS TO WHICH OFWs ARE ENTITLED:

- Monetary in nature.

1. All salaries for the unpexpired portion ofthe contract.

2. Full reimbursement of placement fees anddeductions at an interest of 12% per annum.

DOCTRINE OF PROCESSUAL PRESUMPTION

- Where a foreign law is not pleaded or, even ifpleaded, is not proved, the presumption isthat foreign law is the same as Philippinelaw.

POEA SEC 2010

Sec 2 (a) – The employment contractcommence upon concurring with thefollowing requisites:

1 Actual departure of the seafarerfrom the point of hire; and

2 The acquiring and bringing of aPOEA approved contract.

The Pre-Employment Medical Examination(PEME) is required for a seafarer beforehe is allowed to depart for his work.

Sec 2 (b) – The period of employmentmust be mutually agreed and must notexceed 12 months. Any extension issubject to mutual consent of both parties.

Sec 8 - The seafarer is required to make anallotment in the Philippines of at leasteighty percent (80%) of his monthly basicsalary.

The allottee may be any person. It is notrequired that the allottee of the seafarer behis relative.

Sec 11 – Overtime – There are two types ofovertime for seafarers:1 Open Overtime – 125% of basic hourly

work; basic is 208 hours monthly;2 Guaranteed Overtime – fixed rate of

overtime work; shall not exceed 105hours a month.

Managerial personnel of seafarers mayrender overtime work.

For seafarers, there is still obligation toprove he rendered overtime work basedon:

1 No. of Hours;2 Permission to render overtime work;

and3 Particularity of the work done.

The following are considered Holidays atsea and in port:

1 New Years’ Day;2 Maundy Thursday;3 Good Friday;4 Araw ng Kagitingan;5 Labor Day;6 Independence Day;7 National Heroes Day;8 All Saints’ Day;9 Bonifacio Day;10 Christmas; and11 Rizal Day.

Unica Doctrine – If the contract of aseafarer is terminated and he is onboard;voluntary work must be compensated butsuch work is not tantamount to impliedrenewal of the contract of the seafarer.

Sec 18 – Termination of Employment –Generally, the employment ceaseswhen(Sec 18[a]):1 the seafarer completes his period of

contractual service aboard the ship;2 he signs-off from the ship; and 3 he arrives in the point of hire.

Other Causes of Termination of Employment(Sec 18[b]):1 When the seafarer disembarks for

medical reasons(Medical Repatriation);2 When the seafarer signs off due to

shipwreck, ship’s sale, lay-up of ship,discontinuance of voyage, or change orprincipal;

3 When the seafarer is discharged forjust cause;

4 Voluntary Resignation; and5 Voluntary Repatriation by the employer.

Medical Repartriation

When the seafarer signs off due tomedical reason(Medical Repatriation), hemust report within 3 days from arrival to themanning agency for his Post-MedicalExamination (POME).

If the seafarer did not report within threedays for his POME, unless for a validreason, it is an implied waiver of his right toclaim for sickness and disability benefits.

The only valid reason that the seafarer isallowed not to report within three daysmust be caused by his physical incapabilitydue to his sickness, in which he must senda written notice that he will not be able toreport within the three-day period.

In order for the injury or illness benefitsbe given to the seafarer, two requisitesmust concur:1 The sickness must be work-related;

and2 The sickness must exist during the

term of the seafarer’s employmentcontract.

Aside from the report, the seafarer isrequired to visit the company-designatedphysician in a regular basis.

If during the POME, the company-designated physician declares the illnessas not work-related, the employer maycease the giving of the benefits.

The employee, in cases of declaration bythe company-designated physician of theillness as not work-related, may consultanother physician for the declaration of hisillness of work-relatedness.

When the finding of the physician chosenby the seafarer is contrary to the findingof the company-designated physician, theemployee may initiate a conflict resolutionprocedure. The following steps are to befollowed:

1 presenting a copy of the report of thechosen physician to the employer;

2 the employer will send both reports toa mutually-agreed physician foranother assessment.

The finding of the third physician is finaland binding upon both parties.

If the seafarer failed to present to theemployer the assessment made by hischosen physician, the report of thecompany physician is binding and theemployer may cease the giving of thebenefits to the seafarer.

The benefits given by the employer isconsidered separate and distinct from thebenefits given to the seafarer underPhilippine laws (SSS, OWWA, ECC,Philhealth, PAG-IBIG) as the seafarer isthe one who paid the premiums from suchbenefits.

Termination due to sale of ship, lay-up, ordiscontinuance of voyage(Sec 23)

The seafarer is entitled to earn wages,reparation at the employer’s cost andtermination pay; UNLESS agreements havebeen made for the seafarer to join anothership belonging to the same principal tocomplete his contract.

The seafarer must agree in joining anothership. If he does not agree, he is entitled towages, reparation and, termination pay.

Voluntary Resignation of the seafarer

A seafarer who requests for an earlytermination of his contract shall be liablefor his repatriation costs as well as thetransportation cost of his replacement.

The employer, upon compassionategrounds, may assume the transportationcosts of the seafarer’s replacement.

Voluntary Repatriation by the employer

If the ship arrives in a convenient portwithin a period of three (3) months beforethe expiration of the contract of a seafarer,the employer may repatriate the seafarerfrom such port provided that the seafarershall be paid all of his wages.

Just cause dismissal

When a seafarer is discharged for justcause, the employer has the right torecover the cost of his replacement andrepatriation from the seafarer’s wage andother earnings.

Seafarer is not entitled to procedural dueprocess for the termination if he is a cleardanger to the safety of the ship. If he is aclear danger to the safety of the ship, thefollowing steps must be followed:

1 The seafarer must be secured in aseparate facility;

2 The seafarer must be surrenderedin the proper authority uponarriving in a convenient port; and

3 The master of the ship must senda complete report to the localmanning agency substantiated bywitnesses, testimonies, and otherdocuments in support thereof.

When the seafarer is not a clear danger tothe safety of the ship, he is entitled toprocedural due process for histermination.

The two-notice rule is effected for theprocedural due process of seafarers:

1 The seafarer must be furnishedwith a written notice whichcontains the Grounds for thecharges and the time, place, anddate of the formal investigation ofthe charges.

2 If after the investigation orhearing, the Master is convincedthat an imposition or penalty isjustified, the master shall issue awritten notice of penalty and thereasons for it to the seafarer, withcopies furnished to the Philippineagent.

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Miscellaneous Provisions of the New LaborCode (PD442)

Article. 36

Regulatory powers – Secretary ofLabor shall have the power to restrict,regulate, issue orders and promulgate rulesand regulations to carry out the objectivesand implement the provisions of the LaborCode

Article. 37

Visitorial Power – Secretary of Laboror his duly authorized representatives may,at any time, inspect the premises, books ofaccounts and records of any person or entitycovered by the Labor code, require to submitreports regularly on prescribed forms, andact on violation of any provisions of thisLabor Code.

Articles 38–39, RECRUITMENT ANDPLACEMENT

What is Illegal Recruitment? (sec. 6, R.A. 8042)

For purposes of this Act, illegal recruitmentshall mean any act of canvassing, enlisting,contracting, transporting, utilizing, hiring orprocuring of workers which includesreferring, contract services, promising oradvertising for employment abroad, whetherfor profit or not, when undertaken by a non-license or non-holder of authoritycontemplated under Article 13 (f) ofPresidential Decree No. 442, as amended ,otherwise known as the Labor Code of thePhilippines: Provided, That any such non-license or non-holder who, in any manner,offers or promises for a fee employmentabroad for two or more persons shall bedeemed so engaged. It shall likewise includethe following acts, whether committed byany person, whether a non-licensee, non-holder, licensee or holder of authority:

a To charge or accept directly orindirectly any amount greaterthan that specified in theschedule of allowable feesprescribed by the Secretary ofLabor and Employment, or tomake a worker pay oracknowledge any amountgreater than that actuallyreceived by him as a loan oradvance;

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

c To give any false notice,testimony, information ordocument or commit any act ofmisrepresentation for thepurpose of securing a license orauthority under the Labor Code,or for the purpose ofdocumenting hired workers withthe POEA, which include the actof reprocessing workers througha job order that pertains tononexistent work, work differentfrom the actual overseas work,or work with a differentemployer whether registered ornot with the POEA;

d To include or attempt to inducea worker already employed to

quit his employment in order tooffer him another unless thetransfer is designed to liberate aworker from oppressive termsand conditions of employment;

e To influence or attempt toinfluence any person or entitynot to employ any worker whohas not applied for employmentthrough his agency or who hasformed, joined or supported, orhas contacted or is supportedby any union or workers'organization;

f To engage in the recruitment orplacement of workers in jobsharmful to public health ormorality or to the dignity of theRepublic of the Philippines;

g To fail to submit reports on thestatus of employment,placement vacancies,remittance of foreign exchangeearnings, separation from jobs,departures and such othermatters or information as maybe required by the Secretary ofLabor and Employment;

h To substitute or alter to theprejudice of the worker,employment contracts approvedand verified by the Departmentof Labor and Employment fromthe time of actual signingthereof by the parties up to andincluding the period of theexpiration of the same withoutthe approval of the Departmentof Labor and Employment;

i 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 engageddirectly or indirectly in themanagement of travel agency;

j To withhold or deny traveldocuments from applicantworkers before departure formonetary or financialconsiderations, or for any otherreasons, other than thoseauthorized under the LaborCode and its implementing rulesand regulations;

k Failure to actually deploy acontracted worker without validreason as determined by theDepartment of Labor andEmployment;

l Failure to reimburse expensesincurred by the worker inconnection with hisdocumentation and processingfor purposes of deployment, incases where the deploymentdoes not actually take placewithout the worker's fault. Illegalrecruitment when committed bya syndicate or in large scaleshall be considered an offenseinvolving economic sabotage;and

m To allow a non-Filipino citizen tohead or manage a licensedrecruitment/manning agency.

"Illegal recruitment is deemed committed bya syndicate if carried out by a group of three(3) or more persons conspiring orconfederating with one another. It is deemedcommitted in large scale if committedagainst three (3) or more personsindividually or as a group.

"In addition to the acts enumerated above, itshall also be unlawful for any person orentity to commit the following prohibitedacts:

1 Grant a loan to an overseasFilipino worker with interestexceeding eight percent (8%)per annum, which will beused for payment of legal andallowable placement fees andmake the migrant workerissue, either personally orthrough a guarantor oraccommodation party,postdated checks in relationto the said loan;

2 Impose a compulsory andexclusive arrangementwhereby an overseas Filipinoworker is required to avail ofa loan only from specificallydesignated institutions,entities or persons;

3 Refuse to condone orrenegotiate a loan incurred byan overseas Filipino workerafter the latter's employmentcontract has beenprematurely terminatedthrough no fault of his or herown;

4 Impose a compulsory andexclusive arrangementwhereby an overseas Filipinoworker is required to undergohealth examinations onlyfrom specifically designatedmedical clinics, institutions,entities or persons, except inthe case of a seafarer whosemedical examination cost isshouldered by theprincipal/shipowner;

5 Impose a compulsory andexclusive arrangementwhereby an overseas Filipinoworker is required to undergotraining, seminar, instructionor schooling of any kind onlyfrom specifically designatedinstitutions, entities orpersons, except fprrecommendatory trainingsmandated byprincipals/shipowners wherethe latter shoulder the cost ofsuch trainings;

6 For a suspendedrecruitment/manning agencyto engage in any kind ofrecruitment activity including

the processing of pendingworkers' applications; and

7 For a recruitment/manningagency or a foreignprincipal/employer to pass onthe overseas Filipino workeror deduct from his or hersalary the payment of the costof insurance fees, premium orother insurance relatedcharges, as provided underthe compulsory worker'sinsurance coverage.

What are the Elements of Illegal Recruitment?

1 The offender is a licensee/non-licensee or holder/non-holder ofauthority engaged in the recruitmentand placement of workers; and

2 The offender undertakes either anyrecruitment activities defined underArticle 13 (b), or any prohibitedpractices enumerated under Article34.

What are the Classifications of IllegalRecruitment?

I. Simple IR – involves less than three (3)victims or recruiters

II. IR involving economic sabotage:

a Large Scale – committed againstthree (3) or more persons individuallyor as a group

b Syndicated – committed by a groupof three (3) or more personsconspiring or confederating with oneanother.

What is the prescriptive period for prosecutingIllegal Recruitment cases? (Sec.12, R.A. 8042)

Simple IR –five (5) years

IR involving economic sabotage(Large Scale and Syndicated) – twenty (20)years

What are the penalties for Illegal Recruitment?(sec. 7, R.A. 8042)

Simple Illegal Recruitment

a Any person found guilty ofillegal recruitment shall sufferthe penalty of imprisonmentof not less than twelve (12)years and one (1) day but notmore than twenty (20) yearsand a fine of not less thanOne million pesos(P1,000,000.00) nor more thanTwo million pesos(P2,000,000.00).

Illegal Recruitment constituting economicsabotage (large scale and syndicated)

b The penalty of lifeimprisonment and a fine ofnot less than Two millionpesos (P2,000,000.00) normore than Five million pesos

(P5,000,000.00) shall beimposed if illegal recruitmentconstitutes economicsabotage as defined therein."Provided, however, That themaximum penalty shall beimposed if the person illegallyrecruited is less than eighteen(18) years of age orcommitted by a non-licenseeor non-holder of authority.

“Any person found guilty of any of theprohibited acts shall suffer the penalty ofimprisonment of not less than six (6) yearsand one (1) day but not more than twelve (12)years and a fine of not less than Fivehundred thousand pesos (P500,000.00) normore than One million pesos (P1,000,000.00).“

"If the offender is an alien, he or she shall, inaddition to the penalties herein prescribed,be deported without further proceedings.

"In every case, conviction shall cause andcarry the automatic revocation of the licenseor registration of the recruitment/manningagency, lending institutions, training schoolor medical clinic."

“Maximum penalty shall be imposed if theperson recruited is less than 18 years of ageor if committed by a non-holder or authority.”

Where can ILLEGAL RECRUITMENT Cases beFiled? (sec. 9, RA 8042)

Illegal Recruitment cases may be filed inplaces where (RTC: Regional Trial Court):

a The offense was committed; orb The offended party actually resides at

the time of the commission of theoffense.

REMEDIES AVAILABLE TO VICTIMS OF IR

Administrative Remedy

A. Complaint for recruitment violation –against a licensed agency and filed with theAdjudication Office of the POEA

B. Complaint/Report requesting conduct ofsurveillance / entrapment and other specialoperations – filed with the Anti illegalRecruitment Branch of theLicensing andRegulation Office, POEA

C. Complaints / reports – may also filed withthe DOLE regional Offices and/ or the POEARegional Extension Units/Centers nearestthe place where the offense was committed

REMEDIES AVAILABLE TO VICTIMS OF IRCriminal Remedy

Complaints for Estafa and/or IllegalRecruitment against an illegal recruiter or aresponsible officer of a licensed agency maybe filed with the assistance of the POEA Antiillegal Recruitment Branch (AIRB), NBI,

PNPCIDG, or directly with the prosecutor’soffice or with law enforcement agencies.

Eg. Accused represented themselvesto complainant to have the capacity to sendworkers abroad, although they did not haveany authority or license. It is by thisrepresentation that they inducedcomplainants to pay a placement fee. Suchact constitute estafa under Art. 315, par 2 ofthe RPC.

SUPREME COURT DECISIONS

“REFERRAL is the act of passing along orforwarding of an applicant for employmentafter an initial interview of a selectedapplicant for employment to a selectedemployer, placement officer or bureau.”(People vs. Goce, 247 SCRA 780)

SUPREME COURT DECISIONS

“There is illegal recruitment when onepurports to have the ability to send a workerabroad though without authority or license todo so” (Pp vs Villas, 277 SCRA 391)

“It is the lack of necessary license orauthority that renders the recruitmentactivity unlawful or criminal.” (Pp vsBorromeo, 305 SCRA 180)

SUPREME COURT DECISIONS

“An illegal recruiter need not present himselfto the victim as duly licensed recruiter.

It suffices that he gives an impression of hisability to enlist the complainants foremployment abroad, in order to include themto tender payment of fees.” (Pp vs. Peralta,283 SCRA 81)

“Lack of receipts does not mean notransaction for recruitment for overseas jobwas made.” (People vs. Naparan, 225 SCRA714)

SUPREME COURT DECISIONS

“Failure of the complainants to ask for thereceipts for the fees they paid, x x x, is notfatal to their case if they are able to dulyprove by their testimonies the involvement ofthe accused in the recruitment process.”(People vs. Comia, 136 SCRA 185)

Liability of Recruitment Agency:

The recruitment agency is solidarilyliable with the foreign principal for unpaidsalaries of a worker it recruited. Beforerecruiting, the agency is required to submit adocument containing its power to sue and besued jointly and severally with the principalor foreign-based employer for any of theviolations of the recruitment agreement, andthe contract of employment.

NOTE: The recruitment agency may still besued even if agency agreement betweenrecruitment agency and principal is alreadysevered if no notice of the termination was

given to the employee based on Art. 1921 ofthe New Civil Code.

Is the solidary liability of corporate officers with the recruitment agency “automatic” in character?

No. In order to hold the officers of the agency solidarily liable, it is required that there must be proof of their culpability therefor. Thus, in the 2013 case of Gagui V. Dejero. Thus, while it is true that R.A. 8042 and the Corporation code for solidary liability, must be sostated in the decision sought to be implemented.Absent this express statement, a corporate officer may not be impleaded and made to personally answer for the liability of the corporation.

Exception to Liability of Recruitment Agency:

Where the workers themselvesinsisted for the recruitment agency to sendthem back to their foreign employer despitetheir knowledge of its inability to pay theirwages.

Liability of Employee of company engaged inIllegal Recruitment:

Any employee of a company or corporationengaged in illegal recruitment may be heldas principal together with his employer, if itis shown that he actively and consciouslyparticipated in illegal recruitment.

Issuance of Warrant or Warrant of arrest:

Art. 38 is unconstitutional inasmuch as itgives the Secretary of Labor the power toissue search or arrest warrants (theSecretary not being a judge, the authoritiesmust go through the judicial process)

The exception is in cases ofdeportation of illegal and undesirable alienswhom the President or the Commissioner ofImmigration may order arrest, following afinal order of deportation.

The Secretary of Labor may orderclosure of illegal recruitment establishmentsbecause it is only administrative andregulatory in nature.

What are some relevant principles on illegal recruitment involving economic sabotage?

1 The number of persons victimized isdeterminative of the crime. A conviction for large scale illegal recruitment must be based on a finding in each case of illegal recruitment of three (3) or more persons having been recruited, whether individually or as a group.

2 Failure to prove at least 3 persons recruited makes the crime a case of simple illegal recruitment.

3 There is no illegal recruitment in large scale based on several informations filed by only one complainant.

4 The number of offenders is not material in illegal recruitment in large scale.

5 Recruitment in large scale or by a syndicate is malum prohibitum and not malum in se.

ILLEGAL RECRUITMENT VS. ESTAFACan a person be charged and convicted separately for illegal recruitment and estafa involving one and the same act of recruitmen?

Yes. It is clear that conviction under the Labor Code does not preclude conviction for estafa orother crimes under other laws.

Some relevant principles: Same evidence to prove illegal

recruitment may be used to prove estafa.

Conviction for both illegal recruitment and estafa, not double jeopardy.

What are some relevant principles on the persons liable for illegal recruitment?

1 Employees of a licensed recruitment agency may be held liable for illegal recruitment as principal by direct participation, together with his employer,if it is shown that he actively and consciously participated in illegal recruitment.

2 Good faith and merely following orders of superiors are not valid defenses of anemployee.

3 A manager of a recruitment/manning agency is not a mere employee. As such, he receives job applications, interviews applicants and informs them of the agency’s requirement of payment of performance or cash bond prior to applicant’s deployment. As the crewing manager, he was at the forefront of the company’s recruitment activities.

What is meant by Theory of Imputed Knowledge?

The theory of imputed knowledge is arule that any information material to thetransaction, either possessed by theagent at the time of the transaction oracquired by him before its completion, isdeemed to be the knowledge of theprincipal, at least insofar as thetransaction is concerned, even thoughthe knowledge, in fact, is notcommunicated to the principal at all.

“Imputed knowledge” means theknowledge attributed to a party becauseof his position, or his relationship with orresponsibility for another party. Suchknowledge is attributed for the reasonthat the facts in issue were open todiscovery and it was that person’s dutyto apprise him of such facts