73749842 labor standards reviewer

7/31/2019 73749842 Labor Standards Reviewer

1/99

Labor Law I Atty. C.A. AzucenaFinals Reviewer

PRELIMINARY TITLE

Chapter I

GENERAL PROVISIONS

Article 1: NAME OF DECREEArticle 2: DATE OF EFFECTIVITY

COMMENTS AND CASES

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

relations Labor standards law is that which sets out the

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

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

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

Work is broader than labor as work coversall forms of physical or mental exertion, orboth combined, for the attainment of some

object other than recreation or amusementper se.

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

particular kinds of protection or benefits tosociety or segments thereof in furtherance ofsocial justice. In that sense, labor laws arenecessarily social legislation.

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

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

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

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

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

Constitution are: the rights to organizethemselves, to conduct collective bargainingor negotiation with management, to engage inpeaceful concerted activities, including tostrike in accordance with law, to enjoysecurity of tenure, to work under humane

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conditions, to receive a living wage, toparticipate in policy and decision makingprocesses affecting their rights and benefits

as may be provided by law.1.1.Balancing of Rights; the Constitutional Principle

of Shared Responsibility While labor is entitled to a just share in the

fruits of production, the enterprise has anequally important right not only to reasonablereturns in investment but also to expansionand growth. The Constitution commands theState to promote the principle of sharedresponsibility between employers and workers

and the preferential use of voluntary modesof settling disputes, including conciliation,and to enforce their mutual compliancetherewith to foster industrial peace.

Constitutional outlook suggests a balancedtreatment.

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

business, occupation or profession is subjectto the paramount right of the government as a

part of its police power to impose suchrestrictions and regulations as the protectionof the public may require.

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

Labor Code The objective was not merely to consolidate

the then existing pieces of social legislation,

but also to reorient them to the needs ofeconomic development and justice.

1. PRINCIPLES UNDERLYING THE CODE

Must be both responsive and responsible tonational development

Must substitute rationality for confrontation intimes of national emergencies

Must be made expeditious without sacrificingdue process

Manpower development and employment mustbe regarded as a major dimension of laborpolicy

Availability of a global labor market to

qualified Filipinos Must command adequate resources and

acquire capable machinery for effective andsustained implementation

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

1. SOME LABOR LAWS BEFORE THE PASSAGE OF THECODE Act 1874 or the Employers Liability Act Act 2549 which prohibited payment of wages

in non-cash form RA 1054 which required emergency medical

treatment for employees CA 444 or the Eight Hour Labor Law CA 103 which created the Court of Industrial

Relations (pre-NLRC) PD 21 which created the NLRC


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RA 875 or the Industrial Peace Act/ MagnaCarta of Labor

RA 946 Blue Sunday Law

RA 1052 or the Termination Pay Law1. SIGNIFICANCE OF FOREGOING DECISIONS

Where are labor statutes are based upon orpatterned after statutes in foreignjurisdiction, the decisions of high courts inthose jurisdictions should receive thecareful attention of the SC in the applicationof our own law.

1. RELATED LAWS1.1.The Civil Code Labor relations not merely contractual, but

must yield to the common good. Prohibition against involuntary servitude (Art.

1703) Also contains provisions regarding wages,

househelpers and liabilities of employers.1.1.The Revised Penal Code Punishes the use of violence or threats by

either employer or employee (Art. 289)1.1.Special Laws SSS law, GSIS law, Agrarian Reform Law, 13th

month Pay Law, etc.1. INTERNATIONAL ASPECT

On June 15, 1948, the Philippines became amember of the International LaborOrganization (ILO), which is the UNspecialized agency which seeks the promotion

of social justice and internationallyrecognized human and labor rights.

The ILO formulates international labor

standards in the form of Conventions andRecommendations setting minimum standardsof basic labor rights.

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

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

subscribes t the fundamental principles on

which the ILO is based. Also, as an ILOmember, the Philippines imbibes theobligation of the ILO to further programs thatwill achieve ILO objectives.

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

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

(1949); equal remuneration Convention(1951); Abolition of Forced Labor Convention(1957); Discrimination (Employment andOccupation) Convention (1958); Minimum AgeConvention (1973); and Worst Forms of ChildLabor Convention (1999).

1.1.Ratification Generally Needed; Exception


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In 1999, the ILO adopted a Declaration onFundamental Principles and Right at Workconcerning an obligation of all ILO members

to respect and promote the fundamentalrights even if they have not ratified theconventions.

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

ratified thirty ILO Conventions, includingsignificantly, the core conventions onfreedom of association, on abolition of forcedlabor, on abolition of child labor, and on non-discrimination.

A labor law expert asserts that the Philippinescan claim with some pride that it belongs tothe upper 25% of the ILO members on thebasis of efforts taken to approximate laborstandards.

Article 3: DECLARATION OF BASIC POLICY

COMMENTS

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

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

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

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

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

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

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

Article 4: CONSTRUCTION IN FAOVR OF LABOR

COMMENTS AND CASES

1. INTERPRETATION AND CONSTRUCTION1.1.Laborers Welfare; Liberal Approach The working mans welfare should be the

primordial and paramount consideration. Thepolicy is to extend the Decrees applicabilityto a greater number of employees to enable

them to avail of the benefits under the law, inconsonance with the States avowed policy togive maximum aid and protection to labor.

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

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


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

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

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

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

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

1.1.Right to ROI The employer has the right to recover his

investments and make profits. There is nothing dirtyabout profit per se it is profit that creates jobs andimproves the workers lot.1.1.Rights to Prescribe Rules

Employers have the right to make reasonable rulesand regulations for the government of theiremployees, and when employees, with knowledge ofan established rule, enter the service, the rule

becomes a part of the contract of employment.1.1.Right to Select Employees

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

valid contract, at a wage and under conditionsagreeable to them.

State cannot interfere with the liberty to contract

with respect to labor, except in the exercise ofpolice power.

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

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

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

Article 5: RULES AND REGULATIONS

COMMENTS AND CASES

1. RULES AND REGULATIONS TO IMPLEMENT THE CODE1.1.When Invalid If promulgated in excess of its rule making

power, the resulting rule or regulation is void.

Article 6:APPLICABILITY

COMMENTS AND CASES


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

to a corporation incorporated under theCorporation Code.

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

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

The terms governmental agency or

instrumentality are synonymous in thesense that either of them is a means by whicha government acts, or by which a certaingovernment act or function is performed. Theword instrumentality with respect to thestate, contemplates an authority to which thestate delegates government power for theperformance of a state function.

Example: The National Parks DevelopmentCommittee is an agency of the government,

not a government-owned or controlledcorporation. Its employees are covered bycivil service rules and regulations, since theyare civil service employees.

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

1. APPLICABILITY WITHOUT EMPLOYER-EMPLOYEERELATIONSHIP

The Labor Code may apply even if the partiesare not employers and employees of eachother.

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

For example, when one speaks of employmentbenefits, then surely, employmentrelationship is an essential element. But whenthe issue, for instance, is an indirectemployers liability, there is no employer-employee relationship and yet the pertinent

Labor Code provisions find application.

Chapter IIEMANCIPATION OF TENANTS1

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

Article 9: DETERMINATION OF LAND VALUEArticle 10: CONDITION OF OWNERSHIPArticle 11: IMPMENTING AGENCY

COMMENTS AND CASES

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


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There is an acute imbalance in the distribution ofland among our people. Hence, the Constitution of1987 adopted a whole article containing provisions

for the uplift of the common people, thus: TheState shall, by law, undertake an agrarian reformprogram founded on the right of farmers and regularfarmworkers, who are landless, to own directly orcollectively the land they till or, in the case of otherfarmworkers, to receive a just share of the fruitsthereof.

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

put in its stead the agricultural leasehold system.

RA 6389, amending RA 3844, declared share tenancyas contrary to law and public policy.

The phasing out of share tenancy was the first steptowards the ultimate status of owner-cultivator, agoal sought to be achieved by the governmentprogram of agrarian reform.

1. CONSTITUTIONAL PROVISIONS2. COMPENSATION SCHEME Title to all expropriated properties shall be

transferred to the State only upon full payment of

compensation of the respective owners.1. RETENTION LIMITS in no case shall retention by the landowner

exceed 5 hectares.1. LANDS NOT COVERED

1.1. Lands Obtained Through Homestead Patent

The Philippine Constitution respects the superiorityof the homesteaders rights over the rights of thetenants.

Homestead Act has been enacted for the welfare andprotection of the poor. The law gives a needy citizena piece of land where he may build a modest housefor himself and his family and plant what isnecessary for subsistence and for the satisfaction oflifes other needs.1.1.Residential Subdivisions An agricultural leasehold cannot be

established on land which has ceased to bedevoted to cultivation or farming because of

its conversion to a residential subdivision.(Gonzales vs. CA)

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

and poultry lands in the coverage of agrarianreform.

BOOK ONEPRE-EMPLOYMENT

Article 12: STATEMENT OF OBJECTIVES

COMMENTS

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

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


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The unemployment problem is exacerbated bypopulation growth that appears unchecked.

1. THE DOLE: ITS RESPONSIBILITY

The Administrative Code mandates the DOLE toassume primary responsibility for:

a. The promotion of gainful employmentopportunities and the optimization of thedevelopment and utilization of the countrysmanpower resources;

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

c. The maintenance of industrial peace by

promoting harmonious, equitable andemployment relations that assure protectionfor the rights of all concerned parties.

Title IRECRUITMENT AND PLACEMENT OF WORKERS

Chapter IGENERAL PROVISIONS

Article 13: DEFINITIONS

COMMENTS

ARTICLE 13 (B) CONSTRUED; WHAT CONSTITUTESRECRUITMENT AND PLACEMENT The number of persons is not an essential ingredient

of the act of recruitment and placement of workers.

Any of the acts mentioned in the basic rule in Article13 (b) will constitute recruitment and placementeven if only one prospective worker is involved.

(People vs. Panis) It must be shown that the accused gave the

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

By themselves, procuring a passport, airline tickets

and foreign visa for another individual, withoutmore, can hardly qualify as recruitment activities.(Darvin vs. CA)

Article 14: EMPLOYMENT PROMOTION

COMMENTS

EMPLOYMENT PROMOTION To pursue its responsibility to promote employment

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

Article 15: BUREAU OF EMPLOYMENT SERVICES

COMMENTS1. LOCAL EMPLOYMENT


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

1.1.The PESO Public Employment Service Office

Intended to serve as employment service andinformation center in its area of operation. Itregularly obtains a list of job vacancies fromemployers, publicizes them, invites and evaluatesapplicants, and refers them for probable hiring. Also holds special services for the public such asemployment bazaars, etc.

Article 16: PRIVATE RECRUITMENT

COMMENTSAUTHORIZED ENTITIES Based on the Rules Implementing the Code, the

following entities are authorized to recruit and placeworkers for local or overseas employment:

a. public employment officesb. Private recruitment entities

c. Private employment agenciesd. Shipping or manning agents or

representativese. POEAf. Construction contractors if authorized

to operate by DOLE and theConstruction Industry Authority

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

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

Article 17: OVERSEAS EMPLOYMENT DEVELOPMENTBOARD

COMMENTS AND CASES

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

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

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

1. LEGISLATIVE BACKGROUND OF OVERSEAS EMPLOYMENT Act 2486: first law passed by Philippine Congress

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

government regulation of the overseas employmentindustry.

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

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

EO 247: Reorganization Act of the POEA


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RA 8042: Migrant Workers and Overseas Filipinos Actof 1995

1. OVERSEAS EMPLOYMENT POLICY

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

employment as a means to sustain economicgrowth and achieve national development.

The existence of overseas employmentprogram rests solely on the assurance that thedignity and fundamental human rights andfreedoms of the Filipino citizen shall not, atany time, be compromised or violated.

1.1.Selective Deployment

RA 8042 requires certain guarantee ofprotection for the overseas worker beforethey are deployed in countries that meetsome criteria:

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

It is a signatory to multilateralconventions, declarations or resolutionsrelating to the protection of migrantworkers;

It has concluded a bilateral agreementor arrangement with the governmentprotecting the rights of Filipino migrantworkers;

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

Notwithstanding this the government, inpursuit of national interest or when publicwelfare so requires, may, at any time,terminate or impose a ban on the deploymentof migrant workers.

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

formulation, implementation, and monitoring of theoverseas employment of the Filipino workers and the

protection of their rights to fair and equitableemployment practices.

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

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

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

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

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

and exclusive jurisdiction to hear and decide the ffcases:


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a. Recruitment violation and relatedcases consisting of all preemploymentcases which are administrative in

character, involving or arising out ofrecruitment laws, rules andregulations, including money claimstherefrom or violations of theconditions for issuance of license torecruit workers.

b. Employer-emploee relations casesconsisting of all claims arising out ofan employer-employee relationship orb virtue of any law or contract

involving Filipino workers in overseasemployment.

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

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

jurisdiction over employer-employeerelations cases.

Section 10 of the said law provides

that Labor Arbiters shall have theexclusive and original jurisdiction tohear and decide claims arising out ofan employer-employee relationship orby virtue of any law or contractinvolving Filipino workers for overseasemployment including claims for

actual, moral, exemplary and otherforms of damages.

RA 8042 not only transferred from

POEA to NLRC the jurisdiction overmoney claims of OFWs, it evenexpanded the scope of such moneyclaim. When the jurisdiction was stillwith the POEA, the jurisdictioncovered only money claims involvingFilipino workers for overseasemployment. Now the NLRCjurisdiction is over money claimsinvolving Filipino workers for overseas

deployment. RA 8042 allows for claims for money

or damages sustained during theperiod of deployment or beforedeparture for abroad.

1.1.Jurisdiction Retained With POEA POEA retains the jurisdiction to

decide all cases which areadministrative in character anddisciplinary action cases.

1.1.Compromise Agreement RA 8042 allows also resolution by

compromise.1.1.Mandatory Principle

Non-compliance with the periodsprovided for under the law willsubject the responsible officials topenalties such as withholding of


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salaries until compliance, suspension,or dismissal from service.

1. EMPLOYER-EMPLOYEE RELATIONS CASES: TERMINATION

OF EMPLOYMENT1.1.Contractual Employees

Sea farers are contractualemployees. (Millares and Lagda vs.NLRC)

1.1.Premature Termination of Contract Where the workers employment

contract is terminated before itsagreed termination date, and thetermination is not shown to be based

on lawful or valid grounds, theemployer will be ordered to pay theworkers their salaries correspondingto the unexpired portion of theiremployment contract. (TierraConstruction vs. NLRC)

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

The date of the employmenttermination is material. If it occurred

on or after July 15, 1995, the law toapply is RA 8042.

Under Section 10, a worker dismissedfrom overseas employment withoutjust, valid or authorized cause asdefined by law or contract, is entitledto a full reimbursement of hisplacement fee with interest at 12%

per annum, plus his salary for theunexpired portion of his employmentcontract or for 3 months for every

year of the unexpired term,whichever is less.

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

Statutes and regulations do not limit the coverage tonon-Filipino employers. Filipinos working overseasshare the same risks and burdens whether theiremployers be Filipino or foreign.

1.1.Death and Other Benefits, Basis of Compensation

The standard contract for employment for Filipinoseamen allows the payment of death benefitpension, funeral benefit, and burial gratuity for theprivate respondent.

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

Standard Contract In order to evade liability for death benefit

under the standard contract, it must besufficiently shown that the deaths of theseamen were caused by their own willful anddeliberate act. In this case, the evidence doesnot substantially prove that the seamencontracted tetanus as a result of the


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Article 18: BAN ON DIRECT-HIRING

Article 19: OFFICE OF EMIGRANT AFFAIRS

COMMENTS Direct hiring of Filipino workers by a foreign

employer is not allowed except direct hiringby members of he diplomatic corps and othersmentioned in this article. Also excepted arename hirees or those individual workerswho are able to secure contracts for overseasemployment on their own efforts and

representations without the assistance orparticipation of any agency.

The Office of Emigrant Affairs has beenabolished and its pertinent functions weretransferred to the Commission on FilipinosOverseas (CFO) by Batasang Pambansa Blg. 79.

Article 20: NATIONAL SEAMEN BOARD

COMMENTS AND CASES

1. NSB NOW POEA EO 797 abolished the NSB and transferred its

function to the POEA. But this adjudicatory functionof the POEA has since been moved to the NLRC by RA8042.

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

Wallem Shipping vs. Ministry of Labor: Seamen whowere dismissed because they demanded that they bepaid the worldwide rate, instead of the lower Far

East rate as provided in their contracts ofemployment, did not commit serious misconduct asto warrant their dismissal. They were only exercisingtheir rights. Hence, dismissal was illegal.

Filipino seamen are admittedly as competent andreliable as seamen from any other country in theworld; otherwise, there would not be so many ofthem in the vessels sailing in every ocean and sea onthis globe. They are entitled to governmentprotection when they ask for fair and decent

treatment by their employers and when theyexercise their right to petition for improved terms ofemployment, especially when they feel that theseare substandard or are capable of improvementaccording to internationally accepted rules. Also,the standard forms embody the basic minimumswhich must be incorporated as parts of theemployment contract. They are not collectivebargaining agreements or immutable contracts whichthe parties cannot improve upon or modify in the

course of the agreed peril of time. (Vir-jen Shippingvs. NLRC)

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

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

1. DELAY IN FILING CLAIM


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There is no absolute rule as to what constitutelaches; each case is to be determined according toits particular circumstances. The question of laches

is addressed to the sound discretion of the court andsince it is an equitable doctrine, its application iscontrolled by equitable considerations. It cannot beworked to defeat justice or perpetrate fraud orinjustice.

Where the claim was filed within the three-yearstatutory period, recovery therefore cannot bebarred by laches. Courts should never apply thedoctrine of laches earlier than the expiration of timelimited for the commencement of actions at law.

(Imperial Victory Shipping vs. NLRC)1. MINIMUM EMPLOYMENT CONDITIONS

a. Guaranteed wages for regular workinghours and overtime pay

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

c. Free food and accommodation, oroffsetting benefit;

d. Just and authorized causes fortermination of contract taking into

consideration the customs and normsof the host country.

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

conditions and other benefits not provided underthese minimum requirements, provided the wholeemployment package should be more beneficial to the

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

Article 21: FOREIGN SERVICE ROLE AND PARTICIPATION

COMMENTS

1. PROTECTION AND ASSISTANCE BY GOVERNMENTAGENCIES

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

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

these returning workers and to tap their skills fornational development.

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

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

OFWs. Funded with contributions from the workers

themselves and the fees and charges imposed by thePOEA and BLE.

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

including his or her remains and personal effects,


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belongs to the principal or the agency that recruitedor deployed the worker.

If the termination is due solely to the fault of the

worker, the principal or agency may recover the costof repatriation from the worker after return to thecountry.

If the principal of agency does not comply with thisobligation, the POEA shall notify the OWWA toadvance the repatriation cost with recourse to theagency or principal.

Article 22:MANDATORY REMITTANCE OF FOREIGNEXCHANGE EARNINGS

COMMENTSREMMITTANCE

Article 23: COMPOSITION OF THE BOARDS

COMMENTS

1. COMPOSITION OF THE POEA

Article 24: BOARDS TO ISSUE RULES AND COLLECT FEES

Chapter IIREGULATIONS OF RECRUITMENT AND

PLACEMENT ACTIVITIES

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

COMMENTS AND CASES

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

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

the National Administrative Register, hence, cannotbe used as a basis for the imposition ofadministrative sanctions.

Article 26: TRAVEL AGENCIES PROHIBITED TO RECRUIT

COMMENTS The POEA rules also disqualify persons with

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

Article 27: CITIZENSHIP REQUIREMENTArticle 28: CAPITALIZATION

COMMENTS The required capitalization, according to POEA rules,

is a minimum of two million pesos in case of single


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

Article 29: NON-TRANSFERABILITY OF LICENSE ORAUTHORITY

COMMENTS

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

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

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

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

Article 30: REGISTRATION FEESArticle 31: BONDS

COMMENTS AND CASES The POEA possesses the power to enforce liability

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

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

Article 32: FEES TO BE PAID BY WORKERS

COMMENTS AND CASES

1. CHARGEABLE FEES Unless otherwise provided, the principal shall be

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

A land-based agency may charge and collect from itshired workers a placement fee in an amount

equivalent to one month salary, exclusive ofdocumentation costs. These documentation costsshall include expenses for the ff:

a. Passport;b. NBI/ Police/ Barangay clearance;c. Authentication;d. Birth Certificate;e. Medicare;f. Trade test, if necessary;g. Inoculation, when required;

h. Medical Examination fees. The abovementioned placement and documentation

costs are the only authorized payments that may becollected from a hired worker. No other charges inwhatever form, manner or purpose, shall be imposedon and be paid by the worker without prior approvalby the POEA.


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Such fees shall be collected from the hired workeronly after he has obtained employment through thefacilities of the recruitment agency.

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

collected fees.

Article 33: REPORTS ON EMPLOYMENT STATUSArticle 34: PROHIBITED PRACTICES

COMMENTS AND CASES

PROHBITED PRACTICES

Article 34(a) prohibits the charging or accepting offees greater than that allowed by regulations. It isalso a deterrant to loan sharks who lend money atusurious interests.

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

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

Article 35: SUSPENSION AND/OR CANCELLATION OFLICENSE OR AUTHORITY

COMMENTS AND CASES

1. SUSPENSION OR CANCELLATION OF LICENSE

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

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

1.1.Concurrent Jurisdiction to Suspend or Cancel aLicense

The SC has affirmed the concurrent jurisdiction ofthe DOLE Secretary and the POEA Administrator tosuspend or cancel a license.

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

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

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

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

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

1. SOLIDARY LIABILITY ASSUMED BY RECRUITMENT AGENT


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

recruitment agreement and the contracts ofemployment. These contractual undertakingsconstitute the legal basis for private agencies beingliable jointly and severally with its principal, for allclaims filed by recruited workers which may arise inconnection with the implementation of the serviceagreements or employment contracts. (Royal CrownInernationale vs. NLRC)

1.1.Required Undertaking by Agent

1.2.Contract by Principal It has been held that even if it was the petitioners

principal which entered into a contract with theprivate respondent, nevertheless, petitioner, as themanning agent in the Philippines, is jointly andsolidarily responsible with its principal. (SeagullMaritime Corp vs. Balatongan)1.1.Proper Party

A sister in the Philippines of a maltreated Filipinodomestic helper in Abu Dhabi is a proper party to file

a complaint.1. SUABILITY OF A FOREIGN CORPORATION WHICH HIRES

FILIPINO WORKERS A foreign corporation which, through unlicensed

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

1. DEREGULATION AND PHASE OUT

RA 8042 envisions a phase-out of POEAs regulatoryfunction so that the migration of workers willbecome strictly a matter between the worker and

his employer. This projected deregulation has stirredsome controversies which, to this day, continue toremain unresolved.

Chapter III Miscellaneous Provisions

Art. 36 Regulatory PowerThe Secretary of Labor shall have the power to restrictand regulate the recruitment and placement activitiesof all agencies within the coverage of this Title and is

hereby authorized to issue orders and promulgate rulesand regulations to carry out the objectives andimplement the provision of this Title.

Art. 37 Visitorial PowerThe Secretary of Labor or his duly authorizedrepresentatives may, at any time, inspect the premises,books of accounts and records of any person or entitycovered by this Title, require it to submit reportsregularly on prescribed forms, and act on any violations

of this Title.

Art. 38 ILLEGAL RECRUITMENT2As stated in the Code: (a) Any recruitment activities,including prohibited practices enumerated under Art. 34of this Code, to be undertaken by non-licensees or non-

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


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

this Article.(b) Illegal Recruitment, when

committed by a syndicate or in large scale shall beconsidered an offense involving economic sabotage andshall be penalized in accordance with Art. 39 hereof.

Illegal Recruitment is deemed committed by asyndicate if carried out by a group of three (3) or morepersons conspiring and/or confederating with oneanother in carrying out any unlawful of illegaltransaction, enterprise or scheme, defined under the

first paragraph hereof. Illegal Recruitment is deemedcommitted in large scale if committed against three (3)or more persons individually or as a group.

(c) The Secretary of Labor andEmployment or his duly authorized representatives shallhave the power to cause the arrest and detention ofsuch non-licensee or non-holder of authority if afterinvestigation it is determined that his activitiesconstitute danger to national security and public orderor will lead to further exploitation of job-seekers. The

Minister shall order the search of the office or premisesand seizure of documents, paraphernalia, propertiesand other implements used in illegal recruitmentactivities and the closure of companies, establishmentsand entities found to be engaged in the recruitment ofworkers for overseas employment without having beenlicensed or authorized to do so.

Now, under RA 8042, the abovementioned articlehas been amended to also include LICENSED or

AUTHORIZED entities; the list of ACTS CONSIDEREDAS ILLEGAL RECRUITMENT has also been EXPANDEDas found in SECTION 6, RA 8042:

Definition: xxx Illegal Recruitment shallmean any act of canvassing, enlisting,contracting, transporting, utilizing, hiring,or procuring workers and includes referringcontract services, promising or advertisingfor employment abroad, whether for profitor not, when undertaken by a non-licensee

or non-holder of authority as contemplatedunder the Labor Code; Provided, that anysuch non-licensee or non-holder who, inany manner, offers or promises for a feeemployment abroad to two or morepersons shall be deemed so engaged. Itshall likewise include the following actswhether committed by any person,WHETHER A NON-LICENSEE, NON-HOLDER,LICENSEE OR HOLDER OF AUTHORITY:

a) To change or accept directly orindirectly any amount greaterthan that specified in theschedule of allowable feesprescribed by the DOLESecretary, or to make a workerpay any amount greater than


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that actually received by him asa loan or advance;

b) To furnish of publish any false

notice 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;

d) To induce or attempt to induce a

worker already employed to quithis employment in order to offerhim another unless the transferis designed to liberate a workerfrom oppressive terms andconditions of employment;

e) To influence or attempt toinfluence any person or entitynot to employ any worker whohas not applied for employment

through his agency;f) To engage in the recruitment or

placement of workers in jobsharmful to public health ormorality or to the dignity of theRepublic of the Philippines;

g) To obstruct or attempt toobstruct inspection by the DOLE

Secretary or by his dulyauthorized representative;

h) To fail to submit reports on the

status of employment,placement vacancies, remittanceof forex earnings, separationfrom jobs, departures and suchother information as may berequired by the DOLE Secretary;

i) To substitute or alter to theprejudice of the worker,employment contracts approvedand verified by the DOLE from

the time of the actual signingthereof by the parties up to andincluding the period of theexpiration of the same withoutthe approval of the DOLE;

j) For an officer or agent of arecruitment or placementagency to become an officer ormember of the Board of anycorporation engaged in travel

agency or to be engaged directlyor indirectly in the managementof a travel agency;

k) To withhold or deny traveldocuments from applicantworkers before departure formonetary or financialconsiderations other than those


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authorized under the provisionsof the Labor Code and its IRRs;

l) Failure to actually deploy

without valid reason asdetermined by the DOLE;

m) Failure to reimburse expensesincurred by the worker inconnection with hisdocumentation and processingfor purposes of deployment, incases where the deploymentdoes not actually take placewithout the workers fault.

Illegal Recruitment when committed by a

syndicate or in large scale shall be considered anoffense involving economic sabotage.

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

Persons Liable: Principals, Accomplices, andAccessories; for Juridical Persons: the officersHAVING CONTROL, MANAGEMENT, OR DIRECTION oftheir business

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

ACTIVELY AND CONSCIOUSLY PARTICIPATED in theillegal recruitment

LACK OF RECEIPTS: will not defeat the purpose of

criminal prosecution AS LONG AS THE WITNESSESCAN POSITIVELY SHOW THROUGH THEIR RESPECTIVETESTIMONIES that the accused was the one involvedin the prohibited recruitment; credible testimoniessuffice

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

ESTAFA: CONVICTION for Illegal Recruitment is not abar for filing suit against such person for ESTAFAunder the RPC as long as the requisites for saidfelony are present

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

under the Constitution (Art. III, Sec. 2, 1987Constitution) only a judge may issue a

warrant of arrest or a search warrant the Secretary of Labor is not a judge hence is

no longer granted the power to issues saidwarrants. Authorities must now undergojudicial process

Exception: Deportation or Illegal andUndesirable Aliens Casesthe President orthe Commissioner of Immigration may order


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arrested following a final order ofdeportation for the purpose of deportation

SUBJECT TO ARREST: Illegal Recruiters are still

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

CLOSURE ORDER: DOLE Secretary or his dulyauthorized representative still has power orauthority to issue and order closure of illegalrecruitment establishes, this being anADMINISTRATIVE and REGULATORY action; Issuanceafter an ex parte preliminary examination todetermine whether the activities of a non-licenseeconstitute a danger to national security and publicorder or will lead to further exploitation of jobseekers

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

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

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

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

fine, at the discretion of the court;(C) Any person who is neither a licensee nor a holder of

authority under this Title found violating anyprovision thereof or its IRRS shall, upon convictionthereof, suffer the penalty of imprisonment of notless than four years nor more than eight years or afine not less than P20,000 nor more than P100,000or both such imprisonment and fine, at thediscretion of the court;

(D) If the offender is a corporation, partnership,

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

3 Amended by RA 8042, Section 7


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(E) In every case, conviction shall cause and carry theautomatic revocation of the license or authorityand all the permits and privileges granted to such

person or entity under this Title, and the forfeitureof the cash and surety bonds in favor of theOverseas Employment Board or the NationalSeamen Board, as the case may be, both of whichare authorized to use the same exclusively topromote their objectives.

Section 7, RA 8042 provides:Any person found guilty of IR shall suffer thepenalty of IMPRISONMENT of NOT LESS THAN SIX

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

The penalty of LIFE IMPRISONMENT and a FINENOT LESS THAN FIVE HUNDRED THOUSAND PESOS(P500,000.00) NOR MORE THAN ONE MILLIONPESOS (P1,000,000.00) shall be imposed if IR

CONSTITUTES ECONOMIC SABOTAGE

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

VENUE (Sec. 9, RA 8042): Criminal Action arisingfrom IR shall be filed with the REGIONAL TRIALCOURT of the province or city WHERE THE

OFFENDED PARTY ACTUALLY RESIDES AT THE TIMEOF THE COMMISSION OF THE OFFENSE

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

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

TITLE II EMPLOYMENT OF NON-RESIDENT ALIENS

Art. 40 EMPLOYMENT PERMIT OF NON-RESIDENTALIENSAny alien seeking admission to the Philippines for

employment purposes and any domestic or foreignemployer who desires to engage an alien foremployment in the Philippines shall obtain anemployment permit from the DOLE.The employment permit may be issued to a non-resident alien or to the applicant employer after adetermination of non-availability of a person in thePhilippines who is competent, able and willing at the


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time of the application to perform the services forwhich the alien is desired.For an enterprise registered in preferred areas of

investments, said employment permit may be issuedupon recommendation of the government agencycharged with the supervision of said registeredenterprise.

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

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

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

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

RESIDENT ALIENS: NOT required to have employmentpermits; instead, they need an ALIEN EMPLOYMENYREGISTRATION CARD (AERC)

NATIONALIZED INDUSTRIES and the ANTI-DUMMYLAW (C.A. no. 108 as amended by PD715) Foreigners may not be employed in certainnationalized industries; law provides and subjectsreservation of ownership and control of such

4 Re-check Codal; di nag-ma-match numbers e; Book 7: Title 1: PenalProvisions and Liabilities; 288 (Penalties) - 289 (Liable Officers of JuridicalPerson); Title 2: Prescription; 290: Offenses: 3 years

corporations to the 60% requirement, i.e. publicutility, natural resources; financing companies;however, media and advertising requires 100%

Filipino ownership and management (Consti) DOJ OPINION 143, series 1976: provides instances

when aliens may be allowed to engage inemployment within nationalized industries: a.)where the DOJ Secretary specifically authorizes theemployment of foreign technical personnel, or, b.)where the aliens are elected members of the Boardof Directors or governing body of corporations orassociations in proportion to their allowableparticipation in the capital of such entities

DEPARTMENT ORDER no. 12, SERIES 2001: OmnibusGuidelines for the Issuance of Employment Permitsto Foreign Nationals; the following are required toapply for an Alien Employment Permit (AEP):

1) All foreign nationals seeking admission to thePhilippines for the purpose of employment;

2) Missionaries or religious workers who intendto engage in gainful employment;

3) Holders of Special Investors Resident Visa(SIRV), Special Retirees Resident Visa (SRRV),

Treaty Trades Visa, or Special Non-Immigration Visa, who occupy any advisory,supervisory, or technical position in anyestablishment;

4) Agencies, organizations, or individualswhether public or private, who secure theservices of foreign professional to practice


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their professions in the Philippines underreciprocity and international agreements;

5) Non-Indo Chinese Refugees who are asylum

seekers and given refugee status by the UNHigh Commissioner on Refugees (UNHCR) ofthe DOJ under the DOJ Department Order no.49, 1998.

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

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

1) All members of the diplomatic services andforeign government officials accredited bythe Philippine Government;

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

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

4) All foreign nationals granted exemption byspecial laws and all other laws that may bepromulgated by Congress

Basis for issuing AEP:a) Compliance by the applicant

employer or the foreign national with

the substantive and documentaryrequirements;

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

c) Assessment of the DOLE Secretarythat the employment of the Foreignnational will redound to national

benefit. Understudy Program is no longer required for

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

the employment contract, consultancyservices, or other modes of engagement orterm of office for elective officers, providesfor a longer period;

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

EFFECTIVITY OF RENEWAL: one day after theexpiration of previous permit; regardless ofwhether or not the renewal is granted beforeor after the expiration of the previouspermit;

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


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ISSUED; except in cases of holders of MULTIPLEPOSITIONS IN ONE CORPORATION

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

BOOK TWOHUMAN RESOURCES DEVELOPMENT

TITLE I:MANPOWER DEVELOPMENT PROGRAM

CHAPTER 1NATIONAL POLICIES AND ADMINISTRATIVE MACHINERY

FOR THEIR IMPLEMENTATION

Articles 43 56; pertaining to National Manpower and

Youth Council has been replaced and absorbed by theTESDA (Technical Education and Skills DevelopmentAuthority) created under RA7796 which was approvedon August 25, 2994.

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

For the complete copy of the Implementing Rules forR.A. 7796,

see Appendix II-1.1. of Azucenas Labor Book

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

Private Sector Participation The State shall encourage

the active participation of various concerned sectors,particularly private enterprises, being directparticipants in and immediate beneficiaries of a trainedand skilled workforce, in providing technical educationand skills development opportunities.

TITLE II TRAINING AND EMPLOYMENT OF SPECIALWORKERS

Chapter 1: APPRENTICES

Art. 57 Statement of ObjectivesArt. 58 Definition of TermsAs used in this Title: a.) Apprenticeship means anypractical training on the job supplemented by relatedtheoretical instruction; b.) An Apprentice is a workerwho is covered by a written apprenticeship agreementwith an individual employer or any entities recognized


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under this Chapter; c.) An Apprenticeable Occupationmeans any trade, form of employment or occupationwhich requires more than three (3) months of practical

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

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

(a) Be at least fourteen (14) years ofage; (but under the IRR, its 15 years)

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

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

Trade and industry associations may recommend to theSecretary of Labor appropriate educationalrequirements for different occupations.

Art. 60 Employment of Apprentices

Apprenticeship is the arrangement and the periodwhen an upcoming worker undergoes hands-ontraining, more or less formal, to learn the ropes of askilled job. It is usually the point of entry to theworld of work.

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

occupation, and jobs in all sectors of the economyto determine the apprenticeability, after which itshall submit a list of apprenticeable occupations.

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

Art. 61 Contents of Apprenticeship Agreements

Apprenticeship need DOLEs prior approval, or

Apprentice becomes regular employee Nitto Enterprises v. NLRC and R. Capili (G.R.

no. 114337) September 29, 1995 It is mandated that apprenticeship

agreements entered into by an employer andan apprentice shall be entered only inaccordance with the apprenticeship programduly approved by the Minister of Labor andEmployment; hence, since the apprenticeshipagreement between petitioner and private

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

Art. 62 Signing of Apprenticeship Agreement


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Art. 63 Venue of Apprenticeship ProgramsArt .64 - Sponsoring of Apprenticeship ProgramArt. 65 -Investigation of Violation of Apprenticeship

AgreementArt. 66 - Appeal to the Secretary of LaborArt. 67 - Exhaustion of Administrative RemediesArt. 68 - Aptitude Testing of ApplicantsArt. 69 - Responsibility for Theoretical InstructionArt. 70 - Voluntary Organization of ApprenticeshipPrograms, ExceptionsArt. 71 - Deductibility of Training CostsArt. 72 - Apprentices without Compensation

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

courses under such agreement. Filamer Christian Institue v. Hon.

Intermediate Appellate Court, et a, (G.R. no.75112) August 17, 1992

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

provisions of the Labor Code on conditions ofemployment. Particularly, Rule X of Book IIIprovides guidelines on the matter by which

the powers of the Labor Secretary shall beexercised; on what records should be kept ormaintained, etc Rule X is merely a guide tothe enforcement of the substantive law onlabor. The case does not deal with a labordispute on conditions of employmentbetween an alleged employer and employeereliance of petitioner on the IRR is misplaced.An IRR on labor cannot be used by anemployer as a shield to avoid liability under

the substantive provisions of the Civil Code.

Chapter II LEARNERS

Art. 73 DefinitionLearners are persons hired as trainees in semi-skilledand other industrial occupations which are non-apprenticeable and which may be learned throughpractical training on the job in a relatively short period

of time which shall not exceed three (3) months.Art. 74 When Learners may be hiredLearners may be hired when:

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

prevent curtailment of opportunities; and


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

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

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

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

which shall begin at not less than seventy-five

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

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

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

Art. 76 Learners in Piecework

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

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

Learnership v. Apprenticeship:BOTH: Training periods for jobs requiring skillsthat can be acquired through actual workexperience; both learner and apprentice may bepaid wages twenty-five (25%) percent lower than

the applicable legal minimum wage

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

months- commitment to hire alearner after the period- no need for priorapproval from DOLE interms of hiring

- training in highly-skilledjob; job found in highly-technical industry; trainingperiod exceeds 3 months- minimum period is 6months- no commitment to hire

an apprentice even aftercompletion of period- prior DOLE approvalrequired for hiringapprentices


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

Chapter III HANDICAPPED WORKERS

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

Art. 79 When EmployableHandicapped workers may be employed when:

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

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

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

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

b) the rate to be paid the handicapped workersto be employed which shall be not less thanseventy-five (75%) percent of the applicablelegal minimum wage;

c) the duration of the employment period; and

d) the work to be performed by the handicappedworkers.

The employment agreement shall be subject to

inspection by the Secretary of Labor or his dulyauthorized representatives.Art. 81 Eligibility for ApprenticeshipSubject to the appropriate provisions of this Code,handicapped workers may be hired as apprentices orlearners if their handicap is not such as to effectivelyimpede the performance of job operations in theparticular occupations for which they are hired.

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

Book 3Conditions of Employment

Title IWorking Conditions and Rest Periods

Chapter 1HOURS OF WORK

Art. 82 Coverage of Title 1 Employees in all establishments and undertakings

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


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primary duty consists of the management of theestablishment in which they are employed or of adept or subdivision thereof, and to other officers or

members of the managerial staff], field personnel[refer to non-agricultural employees who regularly

perform their duties away from the principal placeof business or branch office of the employer andwhose actual hours of work in the field cannot bedetermined with reasonable certainty], members ofthe family who are dependent on him for support,domestic helpers, persons in the personal service ofanother, workers who are paid by results

Employer-employee must exist; existence is

determined by law, not by contract Elements of employment relationship

(4-fold test)1. selection and engagement of the

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

employee with respect to themeans and methods by which

the work is to be accomplishedaka control test

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

pakiao workers are consideredemployees as long as the employer

exercises control over the means bywhich such workers are to performtheir work (Zamudio vs NLRC)

mere fact that an entity is a laborunion does not mean that it cannot beconsidered an employer of the personswho work for it; even unregisteredassociation may be deemed anemployer

LC defines an employer as any personwho acts in the interest of an employerin/directly; the law does not require anemployer to be registered in order to

be considered as an employer (OrlandoFarm Growers vs NLRC)

No employment relationship jobcontracting or independent contractor

Employer is free to regulate, accdg tohis own discretion and judgment, allaspects of employment, includinghiring, work assignments, workingmethods, time, place and manner ofwork, tools to be used, processes to be

followed, supervision of workers,dismissal and recall of workers so longas the they are exercised in good faithfor the advancement of the employersinterest and not for the purpose ofdefeating or circumventing the rights


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of the employees under special laws orunder valid agreements

Excluded employees

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

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

Art. 83 Normal Hours of Work 8-hour law prescribes the minimum

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

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

Whether waiting time constitutes working timedepends on the circumstances of each case whether it is spent predominantly for theemployers benefit or for the emmployees;considered as working time if waiting is an integralpart of his work or if the employee is required orengaged by an employer to wait

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

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

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

Travel from home to work not worktime EXCEPTwhen employee receives an emergency call outsideof his regular working hours and is required to travel

to his regular place of business or some other worksite, all of the time spent in such travel is workingtime

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

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

time spent in grievence meetings consideredworktime

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

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


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

hours worked: employer has burden of proof

Art. 85 Meal Periods GR: not compensable

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

Continuous shiftsE to E: shortened break is upon employees request

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

and waive overtime pay for such shortenedperiod

2. no diminution in the salary and other fringebenefits

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

4. value of the benefits derived by theemployees from the proposed workarrangement is equal to or commensuratewith the compensation due them

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

6. effectivity of proposed working timearrangement shall be of temporary durationas determined by DOLE

Art. 86 Night Shift Differential

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

NSD not waivable since it is founded on public policy

Burden of proof of payment rests upon the employer

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

hours a day Multiply the overtime hourly rate by the number of

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

NSD Overtime rate based on regular wage (excludes

money received in different concepts and otherfringe benefits)

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

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

Estoppel and laches cannot be invoked against

employees in an action for the recovery ofcompensation for overtime work

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

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

Agreement that overtime pay will be integrated inbasic salary is not per se illegal; however, there


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should have been express agreement to that effectand that the mathematical result shows that theagreed legal wage rate and the overtime

pay,computed separately, are equal to or higherthan the separate amounts legally due Compressed workweek (45 hours in 5 days) as an

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

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

benefits3. value of the benefits that will accrue to the

employees under the proposed work schedule ismore than or at least commensurate with orequal to the one-hour overtime pay that is duethem during weekdays

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

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

6. effectivity of proposed working time arrangement

shall be of temporary duration as determined byDOLE

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

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

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

accidents, fire, flood, typhoon, earthquake,epidemic, or other disaster or calamity3. urgent work to be performed on the

machines, ect. In order to avoid loss ordamage to employer

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

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

environmental conditions where performance

or quality of work is dependent thereon

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

deduction on account of facilities provided byemployer

Chapter IIWEEKLY REST PERIODS

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

consecutive normal work days

Art. 92 When employer may require work on a restday


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

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

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

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

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

operations and stoppage of work mayresult in irreparable injury or loss to theemployer

6. similar circumstances as determined byDOLE Sec.

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

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

compensation of at least 50% CBA may stipulate higher premium pay 3 special days (holidays) Nov.1, Dec. 31, Aug. 21 30%

Chapter IIIHOLIDAYS, SERVICE INCENTIVE LEAVES, AND SERVICE

CHARGES

Art. 94 Right to (Regular) Holiday100% addl compensation10 regular holidays1. New Year (Jan.1)2. Maundy Thursday3. Good Friday4. Araw ng Kagitingan (Apr 9)5. Labor Day (May 1)6. Independence Day (Jun 12)

7. National Heroes Day (Last Sunday of Aug)8. Bonifacio Day (Nov 30)9. Christmas Day (Dec 25)10.Rizal Day (Dec 30)11. Eidul Fitras - 1st day after 30-day fasting period12.Eidul Adha regl holiday in the ARMM

Muslim Holidays shall be observed in the provinces of

Basilan, Lanao del Norte/ Sur,

Maguindanao, North Cotabato, SultanKudarat, Sulu, Tawi-tawi, Zamboanga delNorte/Sur, cities of Cotabato, Iligan,Marawi, Pagadian, and Zamboanga, and insuch other Muslim provinces and cities asmay be created. Upon proclamation by thePresident, Muslim holidays may also be


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officially observed in other provinces andcities

PP 1198 all private corps, offices, and

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

Both Muslim and Christian employees

within the Muslim areas may not report forwork on the designated Muslim holidays1. amun jadid (new year)2. mauled-un-nabi (birthday of Mohammed)3. lailatul isra wal mi rai (nocturnal journey and

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

a legal holiday falling on a Sunday creates no legal

obligation for the employer to pay extra, aside fromthe usual holiday pay, to its monthly-paid employees(Wellington Investment vs Trajano)double holiday: 2 regular holidays on same day

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

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

double holiday rule for monthly-paid employees if

worked, additional 100% of regular salarysuccessive regular holidays an employee may notbe paid for both holidays if he absents himself fromwork on the day immediately preceding the 1st

holiday, unless he works on the 1st holiday, in whichcase, he is entitled to his holiday pay on the 2nd

holidayholiday pay of hourly-paid faculty members duringsemestral break employer-school is exempted from paying

hourly paid faculty members their pay for regularholidays, whether the same be during the regularsemester or during semestral, Christmas, or HolyWeek vacations employer-school must

73749842 labor standards reviewer

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