15 june 2013 labor 1 compilation (prof. filemon ray javier syllabus)

7/28/2019 15 June 2013 Labor 1 Compilation (Prof. Filemon Ray Javier Syllabus)

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I. Requisite Relationship

a. Uy v. Bueno (484 SCRA 628)b. Light Railway Transit Authority v. Venus (485 SCRA 301)c. Ebro III v. NLRC (261 SCRA 399)d. Chiang Kaishek College v. CA (437 SCRA 171)

e. National Mines and Allied Workers Union v. San Ildefonso College (299SCRA 24)

f. Austria v. NLRC (312 SCRA 410)

II. Employer - Employee Relationshipa. Employer

i. Article 97 (b) of the Labor Codeii. Article 167 of the Labor Codeiii. Article 212 (e) of the Labor Code

b. Employeei. Article 97 (c) of the Labor Codeii. Article 212 (f) of the Labor Code

c. C.F. Sharp & Co., Inc and John J. Rocha v. Pioneer Insurance, G.R. No.179469, 15 February 2012

d. Uy v. Villanueva (526 SCRA 73)e. Television and Production Exponents Inc. v. Servana (542 SCRA 578)f. Insular Life v NLRC (179 SCRA 459)g. Francisco v NLRC (500 SCRA 690)h. Chavez v NLRC (448 SCRA 478)i. Bitoy Javier (Danilo P. Javier) v. Fly Ace Corporation G.R. No. 192558,

15 February 2012.

III. Employment Policies, Recruitment and Placement of Workers,and Agencies

References Arts. 12-39 (Labor Code), Local Employment, OverseasEmployment; POEA Rules R.A. 8042 (1995) as amended by R.A. 10022(2010); RA 9422 (amending RA 8042)

a. Employment Policies 3, 12 (a) (f); Constitution, Art. II, Sec. 9; Art. XIII,Sec. 3, par. 1; RA 8042, Secs. 2 (a) (b) in rel. to (g) (c), 4 & 5 (MigrantWorkers and Overseas Filipinos Act of 1995 as amended)

ART. 3. Declaration of basic policy. - The State shall afford protection to labor,promote full employment, ensure equal work opportunities regardless of sex,race or creed and regulate the relations between workers and employers. TheState shall assure the rights of workers to self-organization, collectivebargaining, security of tenure, and just and humane conditions of work.

BOOK ONEPRE-EMPLOYMENTARTICLE 12. Statement of objectives. - It is the policy of the State:

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a) To promote and maintain a state of full employment through improvedmanpower training, allocation and utilization;

xxxf) To strengthen the network of public employment offices and rationalize theparticipation of the private sector in the recruitment and placement ofworkers, locally and overseas, to serve national development objectives;

Section 9. The State shall promote a just and dynamic social order that willensure the prosperity and independence of the nation and free the peoplefrom poverty through policies that provide adequate social services, promotefull employment, a rising standard of living, and an improved quality of life forall.

LABORSection 3. The State shall afford full protection to labor, local and overseas,organized and unorganized, and promote full employment and equality ofemployment opportunities for all.

It shall guarantee the rights of all workers to self-organization, collectivebargaining and negotiations, and peaceful concerted activities, including theright to strike in accordance with law. They shall be entitled to security oftenure, humane conditions of work, and a living wage. They shall alsoparticipate in policy and decision-making processes affecting their rights andbenefits as may be provided by law.

The State shall promote the principle of shared responsibility betweenworkers and employers and the preferential use of voluntary modes insettling disputes, including conciliation, and shall enforce their mutualcompliance therewith to foster industrial peace.

The State shall regulate the relations between workers and employers,recognizing the right of labor to its just share in the fruits of production andthe right of enterprises to reasonable returns to investments, and toexpansion and growth.

SEC. 2. DECLARATION OF POLICIES--

(a) In the pursuit of an independent foreign policy and while consideringnational sovereignty, territorial integrity, national interest and the right toself-determination paramount in its relations with other states, the Stateshall, at all times, uphold the dignity of its citizens whether in country oroverseas, in general, and Filipino migrant workers, in particular, continuouslymonitor international conventions, adopt/be signatory to and ratify those thatguarantee protection to our migrant workers, and endeavor to enter intobilateral agreements with countries hosting overseas Filipino workers."

(b) The State shall afford full protection to labor, local and overseas,organized and unorganized, and promote full employment and equality ofemployment opportunities for all. Towards this end, the State shall provideadequate and timely social, economic and legal services to Filipino migrant

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workers.

"(g) The State recognizes that the most effective tool for empowerment is thepossession of skills by migrant workers. The government shall provide themfree and accessible skills development and enhancement programs. Pursuantto this and as soon as practicable, the government shall deploy and/or allow

the deployment only of skilled Filipino workers."

(c) While recognizing the significant contribution of Filipino migrant workersto the national economy through their foreign exchange remittances, theState does not promote overseas employment as a means to sustaineconomic growth and achieve national development. The existence of theoverseas employment program rests solely on the assurance that the dignityand fundamental human rights and freedoms of the Filipino citizens shall not,at any time, be compromised or violated. The State, therefore, shallcontinuously create local employment opportunities and promote theequitable distribution of wealth and the benefits of development.

I. DEPLOYMENT

SEC. 4. Deployment of Migrant Workers - The State shall deploy overseasFilipino workers only in countries where the rights of Filipino migrant workersare protected. The government recognizes any of the following as guaranteeon the part of the receiving country for the protection and the rights ofoverseas Filipino workers:

(a) It has existing labor and social laws protecting the rights of migrantworkers;

(b) It is a signatory to multilateral conventions, declaration or resolutionsrelating to the protection of migrant workers;

(c) It has concluded a bilateral agreement or arrangement with thegovernment protecting the rights of overseas Filipino workers; and

(d) It is taking positive, concrete measures to protect the rights of migrantworkers.

SEC. 5. TERMINATION OR BAN ON DEPLOYMENT - Notwithstanding theprovisions of Section 4 hereof, the government, in pursuit of the nationalinterest or when public welfare so requires, may, at any time, terminate orimpose a ban on the deployment of migrant workers.

b. Employment Agencies

b.1. Private Sector Agencies and Entities

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1) Parties

i. Worker 13 (a); RA 8042, Sec. 3 (a)

Title I RECRUITMENT AND PLACEMENT OF WORKERS

Chapter IGENERAL PROVISIONSART. 13. Definitions. - (a) "Worker" means any member of thelabor force, whether employed or unemployed.

"(a) "Overseas Filipino worker" refers to a person who is to beengaged, is engaged or has been engaged in a remuneratedactivity in a state of which he or she is not a citizen or on boarda vessel navigating the foreign seas other than a governmentship used for miliatry or non-commercial purposes or on aninstallation located offshore or on the high seas; to be usedinterchangeably with migrant worker."

ii. Private employment agency 13 (c) (d); 12 (f); 14 (a)(c) "Private fee-charging employment agency" means anyperson or entity engaged in recruitment and placement ofworkers for a fee which is charged, directly or indirectly, fromthe workers or employers or both.

(d) "License" means a document issued by the Department ofLabor authorizing a person or entity to operate a privateemployment agency.

***f) To strengthen the network of public employment offices andrationalize the participation of the private sector in therecruitment and placement of workers, locally and overseas, toserve national development objectives;

***ART. 14. Employment promotion. - The Secretary of Labor shallhave the power and authority:

(a) To organize and establish new employment offices inaddition to the existing employment offices under theDepartment of Labor as the need arises;

iii. Private recruitment entity 13 (e) (f); 12 (f); 14 (a)(e) "Private recruitment entity" means any person or associationengaged in the recruitment and placement of workers, locally oroverseas, without charging, directly or indirectly, any fee fromthe workers or employers.

(f) "Authority" means a document issued by the Department ofLabor authorizing a person or association to engage in

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recruitment and placement activities as a private recruitmententity.

***f) To strengthen the network of public employment offices andrationalize the participation of the private sector in therecruitment and placement of workers, locally and overseas, to

serve national development objectives;***

ART. 14. Employment promotion. - The Secretary of Labor shallhave the power and authority:(a) To organize and establish new employment offices inaddition to the existing employment offices under theDepartment of Labor as the need arises;

2) Recruitment and Placement

i. Local employment 13 (b)(b) "Recruitment and placement" refers to any act ofcanvassing, enlisting, contracting, transporting, utilizing, hiringor procuring workers, and includes referrals, contract services,promising or advertising for employment, locally or abroad,whether for profit or not: Provided, That any person or entitywhich, in any manner, offers or promises for a fee, employmentto two or more persons shall be deemed engaged in recruitmentand placement.

ii. Overseas employment RA 8042 as amended, Sec. 6"SEC. 6. Definition. - For purposes of this Act, illegal recruitmentshall mean any act of canvassing, enlisting, contracting,transporting, utilizing, hiring, or procuring workers and includesreferring, contract services, promising or advertising foremployment abroad, whether for profit or not, when undertakenby non-licensee or non-holder of authority contemplated underArticle 13(f) of Presidential Decree No. 442, as amended,otherwise known as the Labor Code of the Philippines: Provided,

That any such non-licensee or non-holder who, in any manner,offers or promises for a fee employment abroad to two or morepersons shall be deemed so engaged. It shall likewise includethe following acts, whether committed by any person, whether anon-licensee, non-holder, licensee or holder of authority:

"(a) To charge or accept directly or indirectly any amountgreater than that specified in the schedule of allowable feesprescribed by the Secretary of Labor and Employment, or tomake a worker pay or acknowledge any amount greaterthan that actually received by him as a loan or advance;

"(b) To furnish or publish any false notice or information ordocument in relation to recruitment or employment;

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"(c) To give any false notice, testimony, information ordocument or commit any act of misrepresentation for thepurpose of securing a license or authority under the LaborCode, or for the purpose of documenting hired workers withthe POEA, which include the act of reprocessing workers

through a job order that pertains to nonexistent work, workdifferent from the actual overseas work, or work with adifferent employer whether registered or not with the POEA;

"(d) To include or attempt to induce a worker alreadyemployed to quit his employment in order to offer himanother unless the transfer is designed to liberate a workerfrom oppressive terms and conditions of employment;

"(e) To influence or attempt to influence any person orentity not to employ any worker who has not applied foremployment through his agency or who has formed, joined

or supported, or has contacted or is supported by any unionor workers' organization;

"(f) To engage in the recruitment or placement of workersin jobs harmful to public health or morality or to the dignityof the Republic of the Philippines;

"(h) To fail to submit reports on the status of employment,placement vacancies, remittance of foreign exchangeearnings, separation from jobs, departures and such othermatters or information as may be required by the Secretaryof Labor and Employment;

"(i) To substitute or alter to the prejudice of the worker,employment contracts approved and verified by theDepartment of Labor and Employment from the time ofactual signing thereof by the parties up to and including theperiod of the expiration of the same without the approval ofthe Department of Labor and Employment;

"(j) For an officer or agent of a recruitment or placementagency to become an officer or member of the Board of anycorporation engaged in travel agency or to be engageddirectly or indirectly in the management of travel agency;

"(k) To withhold or deny travel documents from applicantworkers before departure for monetary or financialconsiderations, or for any other reasons, other than thoseauthorized under the Labor Code and its implementingrules and regulations;

"(l) Failure to actually deploy a contracted worker without

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valid reason as determined by the Department of Labor andEmployment;

"(m) Failure to reimburse expenses incurred by the workerin connection with his documentation and processing forpurposes of deployment, in cases where the deployment

does not actually take place without the worker's fault.Illegal recruitment when committed by a syndicate or inlarge scale shall be considered an offense involvingeconomic sabotage; and

"(n) To allow a non-Filipino citizen to head or manage alicensed recruitment/manning agency.

"Illegal recruitment is deemed committed by a syndicate ifcarried out by a group of three (3) or more persons conspiring orconfederating with one another. It is deemed committed in largescale if committed against three (3) or more persons individually

or as a group.

"In addition to the acts enumerated above, it shall also beunlawful for any person or entity to commit the followingprohibited acts:

"(1) Grant a loan to an overseas Filipino worker withinterest exceeding eight percent (8%) per annum, whichwill be used for payment of legal and allowable placementfees and make the migrant worker issue, either personallyor through a guarantor or accommodation party, postdatedchecks in relation to the said loan;

"(2) Impose a compulsory and exclusive arrangementwhereby an overseas Filipino worker is required to avail of aloan only from specifically designated institutions, entitiesor persons;

"(3) Refuse to condone or renegotiate a loan incurred by anoverseas Filipino worker after the latter's employmentcontract has been prematurely terminated through no faultof his or her own;

"(4) Impose a compulsory and exclusive arrangementwhereby an overseas Filipino worker is required to undergohealth examinations only from specifically designatedmedical clinics, institutions, entities or persons, except inthe case of a seafarer whose medical examination cost isshouldered by the principal/shipowner;

"(5) Impose a compulsory and exclusive arrangementwhereby an overseas Filipino worker is required to undergo

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training, seminar, instruction or schooling of any kind onlyfrom specifically designated institutions, entities or persons,except fpr recommendatory trainings mandated byprincipals/shipowners where the latter shoulder the cost ofsuch trainings;

"(6) For a suspended recruitment/manning agency toengage in any kind of recruitment activity including theprocessing of pending workers' applications; and

"(7) For a recruitment/manning agency or a foreignprincipal/employer to pass on the overseas Filipino workeror deduct from his or her salary the payment of the cost ofinsurance fees, premium or other insurance relatedcharges, as provided under the compulsory worker'sinsurance coverage.

"The persons criminally liable for the above offenses are the

principals, accomplices and accessories. In case of juridicalpersons, the officers having ownership, control, management ordirection of their business who are responsible for thecommission of the offense and the responsibleemployees/agents thereof shall be liable.

"In the filing of cases for illegal recruitment or any of theprohibited acts under this section, the Secretary of Labor andEmployment, the POEA Administrator or their duly authorizedrepresentatives, or any aggrieved person may initiate thecorresponding criminal action with the appropriate office. Forthis purpose, the affidavits and testimonies of operatives orpersonnel from the Department of Labor and Employment, POEAand other law enforcement agencies who witnessed the actsconstituting the offense shall be sufficient to prosecute theaccused.

"In the prosecution of offenses punishable under this section,the public prosecutors of the Department of Justice shallcollaborate with the anti-illegal recruitment branch of the POEAand, in certain cases, allow the POEA lawyers to take the lead inthe prosecution. The POEA lawyers who act as prosecutors insuch cases shall be entitled to receive additional allowances asmay be determined by the POEA Administrator.

"The filing of an offense punishable under this Act shall bewithout prejudice to the filing of cases punishable under otherexisting laws, rules or regulations."

iii. Memorize: Article 13 (b) definition of recruitment andplacement (everyone will recite) CECTUHP-RCPA

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(b) "Recruitment and placement" refers to any act ofcanvassing, enlisting, contracting, transporting, utilizing, hiringor procuring workers, and includes referrals, contract services,promising or advertising for employment, locally or abroad,whether for profit or not: Provided, That any person or entity

which, in any manner, offers or promises for a fee, employmentto two or more persons shall be deemed engaged in recruitmentand placement.

a. People v. Panis, 142 SCRA 664 (1986)b. Darvin v. Court of Appeal and People, G.R. No. 125044, July

13, 1998.c. People v. dela Piedra, G.R. No. 121777, January 24, 2001d. People v. Ortiz v. Miyake, G.R. Nos. 115338-39, September

16, 1997

3) Allowed and Protected Entities

i. Allowed Private Agencies and Entities 16, 25, 18; 12 (f)ART. 16.Private recruitment. - Except as provided in Chapter IIof this Title, no person or entity other than the publicemployment offices, shall engage in the recruitment andplacement of workers.

Chapter IIREGULATION OF RECRUITMENT AND PLACEMENT ACTIVITIESART. 25.Private sector participation in the recruitment and

placement of workers. - Pursuant to national developmentobjectives and in order to harness and maximize the use ofprivate sector resources and initiative in the development andimplementation of a comprehensive employment program, theprivate employment sector shall participate in the recruitmentand placement of workers, locally and overseas, under suchguidelines, rules and regulations as may be issued by theSecretary of Labor.

ART. 18.Ban on direct-hiring. - No employer may hire a Filipinoworker for overseas employment except through the Boards andentities authorized by the Secretary of Labor. Direct-hiring bymembers of the diplomatic corps, international organizationsand such other employers as may be allowed by the Secretary ofLabor is exempted from this provision.

ART. 12.Statement of objectives. - It is the policy of the State:x x x

f) To strengthen the network of public employment offices andrationalize the participation of the private sector in the

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recruitment and placement of workers, locally and overseas, toserve national development objectives;

ii. Prohibited Business Agencies and Entities 16, 18, 25, 26ART. 16.Private recruitment

ART. 18.Ban on direct-hiringART. 25.Private sector participation in the recruitment and

placement of workersART. 26. Travel agencies prohibited to recruit. - Travel agenciesand sales agencies of airline companies are prohibited fromengaging in the business of recruitment and placement ofworkers for overseas employment whether for profit or not.

ii.1 Travel agencies 26; Part II, Rule I, Sec. 2

ART. 26. Travel agencies prohibited to recruit.

Exceptions: 18, 2nd sentence

ART. 18.Ban on direct-hiring. - No employer may hire a Filipinoworker for overseas employment except through the Boards andentities authorized by the Secretary of Labor. Direct-hiring bymembers of the diplomatic corps, internationalorganizations and such other employers as may beallowed by the Secretary of Labor is exempted from thisprovision.

ii.2 Direct hiring 18. ART. 18.Ban on direct-hiring.

Hornales v. NLRC, GR 118943 (September 10, 2001)

4) Government Techniques of Regulation Private Recruitment

i. Licensing

a. Citizenship 27, 2002 POEA Rule, Part II, Rule I, Sec. 1 (a)ART. 27. Citizenship requirement. - Only Filipino citizens or

corporations, partnerships or entities at least seventy-fivepercent (75%) of the authorized and voting capital stock of

which is owned and controlled by Filipino citizens shall bepermitted to participate in the recruitment and placement ofworkers, locally or overseas.

PART II - LICENSING AND REGULATIONRULE I -PARTICIPATION OF THE PRIVATE SECTOR INTHE OVERSEAS EMPLOYMENT PROGRAM

Section 1. Qualifications. Only those who possess the

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following qualifications may be permitted to engage in thebusiness of recruitment and placement of Filipino workers:

a. Filipino citizens, partnerships or corporations at leastseventy five percent (75%) of the authorized capital stock ofwhich is owned and controlled by Filipino citizens;

b. Capitalization 28, 2002 POEA RULES, Part II, Rule I, Sec. 1(b)ART. 28. Capitalization. - All applicants for authority to hire orrenewal of license to recruit are required to have suchsubstantial capitalization as determined by the Secretary ofLabor.

b. A minimum capitalization of Two Million Pesos(P2,000,000.00) in case of a single proprietorship orpartnership and a minimum paid-up capital of Two MillionPesos (P2,000,000.00) in case of a corporation; Provided thatthose with existing licenses shall, within four years fromeffectivity hereof, increase their capitalization or paid upcapital, as the case may be, to Two Million Pesos(P2,000,000.00) at the rate of Two Hundred Fifty ThousandPesos (P250,000.00) every year.

c. Validity of license 2002 POEA Rules, Part II, Rule II, Sec. 5, 6Section 5. Provisional License. Applicants for new licenseshall be issued a provisional license which shall be valid for alimited period of one (1) year within which the applicantshould be able to comply with its undertaking to deploy 100workers to its new principal. The license of a complyingagency shall be upgraded to a full license entitling them toanother three years of operation. Non-complying agencieswill be notified of the expiration of their license.

Section 6. Validity of the License. Except in case of aprovisional license, every license shall be valid for four (4)years from the date of issuance unless sooner cancelled,revoked or suspended for violation of applicable Philippinelaw, these rules and other pertinent issuances. Such licenseshall be valid only at the place/s stated therein and whenused by the licensed person, partnership or corporation.

d. Non-transferability 29; 2002 POEA Rules, Part II, Rule II,Sec. 7, 8, 9Section 7. Non-Transferability of License. No license shall betransferred, conveyed or assigned to any person, partnershipor corporation. It shall not be used directly or indirectly byany person, partnership or corporation other than the one inwhose favor it was issued.

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In case of death of the sole proprietor and to preventdisruption of operation to the prejudice of the interest oflegitimate heirs, the license may be extended upon requestof the heirs, to continue only for the purpose of winding upbusiness operations.

Section 8. Change of Ownership/Relationship of SingleProprietorship or Partnership. Transfer or change ofownership of a single proprietorship licensed to engage inoverseas employment shall cause the automatic revocationof the license.

A change in the relationship of the partners in a partnershipduly licensed to engage in overseas employment whichmaterially interrupts the course of the business or results inthe actual dissolution of the partnership shall likewise causethe automatic revocation of the license.

Section 9. Upgrading of Single Proprietorship orPartnerships. License holders which are single proprietorshipsor partnerships may, subject to the guidelines of theAdministration, convert into corporation for purposes ofupgrading or raising their capabilities to respond adequatelyto developments/changes in the international labor marketand to enable them to better comply with theirresponsibilities arising from the recruitment and deploymentof workers overseas.

The approval of merger, consolidation or upgrading shallautomatically revoke or cancel the licenses of the singleproprietorships, partnerships or corporations so merged,consolidated or upgraded.

e. Registration fees 30; 2002 POEA Rules, Part II, Rule II, Sec.4ART. 30. Registration fees. - The Secretary of Labor shallpromulgate a schedule of fees for the registration of allapplicants for license or authority.

Section 4. Payment of Fees and Posting of Bonds. Uponapproval of the application, the applicant shall pay a licensefee of P50,000.00. It shall submit an Escrow Agreement in theamount of P1,000,000.00, confirmation of escrow depositwith an accredited reputable bank and a surety bond ofP100,000.00 from a bonding company acceptable to theAdministration and accredited with the InsuranceCommission.

Agencies with existing licenses shall, within four years fromeffectivity hereof, increase their Escrow Deposit to One

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Million Pesos .

The bonds and escrow shall answer for all valid and legalclaims arising from violations of the conditions for the grantand use of the license, and/or accreditation and contracts ofemployment.

The bonds and escrow shall likewise guarantee compliancewith the provisions of the Code and its implementing rulesand regulations relating to recruitment and placement, theRules of the Administration and relevant issuances of theDepartment and all liabilities which the Administration mayimpose. The surety bonds shall include the condition thatnotice to the principal is notice to the surety and that any

judgment against the principal in connection with mattersfalling under POEAs/NLRCs jurisdiction shall be binding andconclusive on the surety. The surety bonds shall cover thevalidity period of the license.

f. Bonds 31; 2002 POEA Rules, Part II, Rule II, Sec. 4ART. 31. Bonds. - All applicants for license or authority shallpost such cash and surety bonds as determined by theSecretary of Labor to guarantee compliance with prescribedrecruitment procedures, rules and regulations, and terms andconditions of employment as may be appropriate.

Section 4. Payment of Fees and Posting of Bonds. (supra)

ii. Workers Fees/Filing fees/License fees (Placement fee) 32;2002 POEA Rules, Part II, Rule V, Sec. 3ART. 32. Fees to be paid by workers. - Any person applying with

a private fee-charging employment agency for employmentassistance shall not be charged any fee until he has obtainedemployment through its efforts or has actually commencedemployment. Such fee shall be always covered with theappropriate receipt clearly showing the amount paid. TheSecretary of Labor shall promulgate a schedule of allowablefees.

Section 3. Fees/Costs Chargeable to the Workers. Except wherethe prevailing system in the country where the worker is to be

deployed, either by law, policy or practice, do not allow thecharging or collection of placement and recruitment fee, alandbased agency may charge and collect from its hired workersa placement fee in an amount equivalent to one month salary,exclusive of documentation costs.

Documentation costs to be paid by the worker shall include, butnot limited to, expenses for the following:

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a. Passportb. NBI/Police/Barangay Clearancec. Authenticationd. Birth Certificatee. Medicaref. Trade Test, if necessary

g. Inoculation, when required by host countryh. Medical Examination fees

In the event that the recruitment agency agrees to performdocumentation services, the worker shall pay only the actualcost of the document which shall be covered by official receipts.

The above-mentioned placement and documentation costs arethe only authorized payments that may be collected from ahired worker. No other charges in whatever form, manner orpurpose, shall be imposed on and be paid by the worker withoutprior approval of the POEA.

Such fees shall be collected from a hired worker only after hehas obtained employment through the facilities of therecruitment agency.

iii. Reports/Employment Information 33; 14 (d); 34 (h); RA 8042,Sec. 6 (h)ART. 33. Reports on employment status. - Whenever the public

interest requires, the Secretary of Labor may direct all personsor entities within the coverage of this Title to submit a report onthe status of employment, including job vacancies, details of jobrequisitions, separation from jobs, wages, other terms andconditions and other employment data.

ART. 14. Employment promotion. - The Secretary of Labor shallhave the power and authority:

(d) To require any person, establishment, organization orinstitution to submit such employment information as may beprescribed by the Secretary of Labor.

ART. 34. Prohibited practices. - It shall be unlawful for anyindividual, entity, licensee, or holder of authority:

(h) To fail to file reports on the status of employment, placementvacancies, remittance of foreign exchange earnings, separationfrom jobs, departures and such other matters or information asmay be required by the Secretary of Labor.

"SEC. 6. Definition. - For purposes of this Act, illegal recruitmentshall mean any act of canvassing, enlisting, contracting,transporting, utilizing, hiring, or procuring workers and includes

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referring, contract services, promising or advertising foremployment abroad, whether for profit or not, when undertakenby non-licensee or non-holder of authority contemplated underArticle 13(f) of Presidential Decree No. 442, as amended,otherwise known as the Labor Code of the Philippines: Provided,

That any such non-licensee or non-holder who, in any manner,

offers or promises for a fee employment abroad to two or morepersons shall be deemed so engaged. It shall likewise includethe following acts, whether committed by any person, whether anon-licensee, non-holder, licensee or holder of authority:

x x x"(h) To fail to submit reports on the status of employment,placement vacancies, remittance of foreign exchange earnings,separation from jobs, departures and such other matters orinformation as may be required by the Secretary of Labor andEmployment;

iv. Illegal Recruitment: Simple/Syndicated 34, 38 (a) (b); Secs. 6-12, RA 8042ART. 34. Prohibited practices. - It shall be unlawful for anyindividual, entity, licensee, or holder of authority:

(a) To charge or accept, directly or indirectly, any amountgreater than that specified in the schedule of allowable feesprescribed by the Secretary of Labor, or to make a worker payany amount greater than that actually received by him as a loanor advance;

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

(c) To give any false notice, testimony, information or documentor commit any act of misrepresentation for the purpose ofsecuring a license or authority under this Code.

(d) To induce or attempt to induce a worker already employed toquit his employment in order to offer him to another unless thetransfer is designed to liberate the worker from oppressiveterms and conditions of employment;

(e) To influence or to attempt to influence any person or entitynot to employ any worker who has not applied for employmentthrough his agency;

(f) To engage in the recruitment or placement of workers in jobsharmful to public health or morality or to the dignity of theRepublic of the Philippines;

(g) To obstruct or attempt to obstruct inspection by theSecretary of Labor or by his duly authorized representatives;

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(h) To fail to file reports on the status of employment, placementvacancies, remittance of foreign exchange earnings, separationfrom jobs, departures and such other matters or information asmay be required by the Secretary of Labor.

(i) To substitute or alter employment contracts approved andverified by the Department of Labor from the time of actualsigning thereof by the parties up to and including the periods ofexpiration of the same without the approval of the Secretary ofLabor;

(j) To become an officer or member of the Board of anycorporation engaged in travel agency or to be engaged directlyor indirectly in the management of a travel agency; and

(k) To withhold or deny travel documents from applicant workersbefore departure for monetary or financial considerations other

than those authorized under this Code and its implementingrules and regulations.

ART. 35. Suspension and/or cancellation of license or authority. -The Minister of Labor shall have the power to suspend or cancelany license or authority to recruit employees for overseasemployment for violation of rules and regulations issued by theMinistry of Labor, the Overseas Employment DevelopmentBoard, or for violation of the provisions of this and otherapplicable laws, General Orders and Letters of Instructions.Chapter III - MISCELLANEOUS PROVISIONSART. 38. Illegal recruitment. - (a) Any recruitment activities,including the prohibited practices enumerated under Article 34of this Code, to be undertaken by non-licensees or non-holdersof authority, shall be deemed illegal and punishable underArticle 39 of this Code. The Department of Labor andEmployment or any law enforcement officer may initiatecomplaints under this Article.

(b) Illegal recruitment when committed by a syndicate or inlarge scale shall be considered an offense involving economicsabotage and shall be penalized in accordance with Article 39hereof.

Illegal recruitment is deemed committed by a syndicate ifcarried out by a group of three (3) or more persons conspiringand/or confederating with one another in carrying out anyunlawful or illegal transaction, enterprise or scheme definedunder the first paragraph hereof. Illegal recruitment is deemedcommitted in large scale if committed against three (3) or more

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persons individually or as a group.

SEC. 6. Definition.

SEC. 7. Penalties. -

"(a) Any person found guilty of illegal recruitment shall suffer thepenalty of imprisonment of not less than twelve (12) years andone (1) day but not more than twenty (20) years and a fine ofnot less than One million pesos (P1,000,000.00) nor more than

Two million pesos (P2,000,000.00).

"(b) The penalty of life imprisonment and a fine of not less thanTwo million pesos (P2,000,000.00) nor more than Five millionpesos (P5,000,000.00) shall be imposed if illegal recruitmentconstitutes economic sabotage as defined therein.

"Provided, however, That the maximum penalty shall be

imposed if the person illegally recruited is less than eighteen(18) years of age or committed by a non-licensee or non-holderof authority.

"(c) Any person found guilty of any of the prohibited acts shallsuffer the penalty of imprisonment of not less than six (6) yearsand one (1) day but not more than twelve (12) years and a fineof not less than Five hundred thousand pesos (P500,000.00) normore than One million pesos (P1,000,000.00).

"If the offender is an alien, he or she shall, in addition to thepenalties herein prescribed, be deported without furtherproceedings.

"In every case, conviction shall cause and carry the automaticrevocation of the license or registration of therecruitment/manning agency, lending institutions, trainingschool or medical clinic."

SEC. 8. PROHIBITION ON OFFICIALS AND EMPLOYEES. - Ot shall be unlawful forany official or employee of the Department of Labor and Employment, thePhilippine Overseas Employment Administration, or the Overseas WorkersWelfare Administration, or the Department of Foreign Affairs, or othergovernment agencies involved in the implementation of this Act, or their

relatives within the fourth civil degree of consanguinity or affinity, to engage,directly or indirectly, in the business of recruiting migrant workers as definedin this Act. The penalties shall be imposed upon them.

SEC. 9. VENUE. - A criminal action arising from illegal recruitment as definedherein shall be filed with the Regional Trial Court of the province or city wherethe offense was committed or where the offended party actually resides at thesame time of the commission of the offense: Provided, That the court wherethe criminal action is first filed shall acquire jurisdiction to the exclusion of

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other courts. Provided, however, That the aforestated provisions shall alsoapply to those criminal actions that have already been filed in court at thetime of the effectivity of this Act.

SEC. 10. Money Claims. - Notwithstanding any provision of law tothe contrary, the Labor Arbiters of the National Labor Relations

Commission (NLRC) shall have the original and exclusivejurisdiction to hear and decide, within ninety (90) calendar daysafter the filing of the complaint, the claims arising out of anemployer-employee relationship or by virtue of any law orcontract involving Filipino workers for overseas deploymentincluding claims for actual, moral, exemplary and other forms ofdamage. Consistent with this mandate, the NLRC shall endeavorto update and keep abreast with the developments in the globalservices industry.

"The liability of the principal/employer and therecruitment/placement agency for any and all claims under this

section shall be joint and several. This provision shall beincorporated in the contract for overseas employment and shallbe a condition precedent for its approval. The performance bondto de filed by the recruitment/placement agency, as provided bylaw, shall be answerable for all money claims or damages thatmay be awarded to the workers. If the recruitment/placementagency is a juridical being, the corporate officers and directorsand partners as the case may be, shall themselves be jointly andsolidarily liable with the corporation or partnership for theaforesaid claims and damages.

"Such liabilities shall continue during the entire period or

duration of the employment contract and shall not be affectedby any substitution, amendment or modification made locally orin a foreign country of the said contract.

"Any compromise/amicable settlement or voluntary agreementon money claims inclusive of damages under this section shallbe paid within thirty (30) days from approval of the settlementby the appropriate authority.

"In case of termination of overseas employment without just,valid or authorized cause as defined by law or contract, or anyunauthorized deductions from the migrant worker's salary, the

worker shall be entitled to the full reimbursement if hisplacement fee and the deductions made with interest at twelvepercent (12%) per annum, plus his salaries for the unexpiredportion of his employment contract or for three (3) months forevery year of the unexpired term, whichever is less.

"In case of a final and executory judgement against a foreignemployer/principal, it shall be automatically disqualified, without

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further proceedings, from participating in the PhilippineOverseas Employment Program and from recruiting and hiringFilipino workers until and unless it fully satisfies the judgementaward.

"Noncompliance with the mandatory periods for resolutions of

case provided under this section shall subject the responsibleofficials to any or all of the following penalties:

"(a) The salary of any such official who fails to render hisdecision or resolution within the prescribed period shall be, orcaused to be, withheld until the said official complies therewith;

"(b) Suspension for not more than ninety (90) days; or

"(c) Dismissal from the service with disqualification to hold anyappointive public office for five (5) years.

"Provided, however, That the penalties herein provided shall bewithout prejudice to any liability which any such official mayhave incured under other existing laws or rules and regulationsas a consequence of violating the provisions of this paragraph."

SEC. 11. MANADATORY PERIODS FOR RESOLUTION OF ILLEGAL RECRUITMENTCASES. - The preliminary investigations of cases under this Act shall beterminated within a period of thirty (30) calendar days from the date of theirfiling. Where the preliminary investigation is conducted by a prosecutionofficer and a prima facie case is established, the corresponding informationshall be filed in court within twenty-four (24) hours from the termination of theinvestigation. If the preliminary investigation is conducted by a judge and a

prima facie case is found to exist, prosecution officer within forty-eight (48)hours from the date of receipt of the records of the case.

SEC. 12. PRESCRIPTIVE PERIODS. - Illegal recruitment cases under this Act shallprescribe in five (5) years: Provided, however, That illegal recruitment casesinvolving economic sabotage as defined herein shall prescribe in twenty (20)years.

a. When undertaken by non-licensees, non-holders

b. Prohibited practices

People of the Philippines v. Domingo, GR No. 181475;April 7, 2009

People of the Philippines v. Gallo GR No. 185277; March18, 2010

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Note: Art 38 (c) -- Declared Unconstitutional per Salazar v. Achacoso,183 SCRA 145 (1990) relying on Const., Art III, Sec. 2

ART. 38.Illegal recruitment.x x x

(c) The Secretary of Labor and Employment or his duly authorizedrepresentatives shall have the power to cause the arrest and detention ofsuch non-licensee or non-holder of authority if after investigation it isdetermined that his activities constitute a danger to national securityand public order or will lead to further exploitation of job-seekers. TheSecretary shall order the search of the office or premises and seizure ofdocuments, paraphernalia, properties and other implements used inillegal recruitment activities and the closure of companies,establishments and entities found to be engaged in the recruitment of

workers for overseas employment, without having been licensed orauthorized to do so.

v. Enforcement Powers

a. Regulatory power 35, 36

ART. 35.Suspension and/or cancellation of license orauthority. - The Minister of Labor shall have the powerto suspend or cancel any license or authority to recruitemployees for overseas employment for violation of rules

and regulations issued by the Ministry of Labor, theOverseas Employment Development Board, or for

violation of the provisions of this and other applicablelaws, General Orders and Letters of Instructions.

Chapter III - MISCELLANEOUS PROVISIONS

ART. 36.Regulatory power. - The Secretary of Laborshall have the power to restrict and regulate therecruitment and placement activities of all agencies

within the coverage of this Title and is hereby authorizedto issue orders and promulgate rules and regulations tocarry out the objectives and implement the provisions ofthis Title.

b. Rule making power 36 -ART. 36.Regulatory power.

c. Visitorial power 35, 3720


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ART. 35. Suspension and/or cancellation of license orauthority.

ART. 37. Visitorial Power. - The Secretary of Labor or hisduly authorized representatives may, at any time, inspect

the premises, books of accounts and records of anyperson or entity covered by this Title, require it to submitreports regularly on prescribed forms, and act on

violation of any provisions of this Title.

vi. POEA Standard Employment Contract: Disability benefits

Abante v. KJGS Fleet Management, Manila, et al., GR No.182430; Dec. 4, 2009

vii. Joint and Several Liability of Employment agent and principal

2002 POEA Rules, Part II, Rule II, Sec. 1 (f) (3); RA 8042, Sec. 10,2nd par.f. A verified undertaking stating that the applicant:

x x x3. Shall assume joint and solidary liability with the employer for all claims andliabilities which may arise in connection with the implementation of the contract,including but not limited to payment of wages, death and disability compensationand repatriations;

OSM Shipping Phil, Inc. v. NLRC, GR 138193 (Mar. 5,

2003)

viii. Responsibilities of local recruitment agencies/liability fordamages and attys fees

5) Jurisdiction

i. RTC over criminal action arising from illegal recruitment RA8042, Sec. 9 (Venue).

ii. Labor Arbiter over money claims RA 8042, Sec. 10 (MoneyClaims).

Note: A phrase thereof was declared unconstitutional by SC perSerrano v. Gallant Maritime Services, Inc. GR No. 167614; Mar.24, 2009

Flourish Maritime Shipping v. Donato Almazor, GR No.177948; Mar. 14, 2008

iii. POEA over administrative cases

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a. Pre-employment cases Omnibus Rules Impl. RA 8042, Sec.28 (a)

b. Disciplinary cases Sec. 28 (b)

b.2. Public Sector AgenciesEmployment Offices 12 (F); 14 (A); Sec. 3, EO No. 247 ReorganizingPOEA (July 24, 1987); POEA Rules

c. Sanctions 35, 39 (a, b, c, d, e); RA 8042, Secs. 6 & 7, Sec. 10, pars. 5-6

1.) Local Employment 39 (e)2.) Overseas Employment 35; RA 8042, Sec. 7

IV. Alien Employment Regulation

References Arts. 12 (e), 40 - 42; Omnibus Rules, Book I, Rule XIV; D.O. No.12, November 16, 2001, Omnibus Guidelines for Issuance of EmploymentPermits to Foreign Nationals); D.O. Nos. 19-02, 26-02 (S. of 2002); D.O. No.41-03 (S. of 2003); D.O. No. 59-04 (S. of 2004); D.O. No. 075-06 (S. of 2006);D.O. No. 97-09 (S. 2009) Const., Art. XII, Sec. 12

Almodiel v NLRC, G.R. No. 100641, June 14, 1993

General Milling Corp. v Torres, G.R. No. 93666, April 22, 1991

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15 june 2013 labor 1 compilation (prof. filemon ray javier syllabus)

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