labstand 1-94 concept

8/10/2019 Labstand 1-94 Concept

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PRELIMINARY TITLE

Art. 1 Name of decree . This decree shall be known as the Labor Code of the Philippines.

Art. 2 Date of effectivity . This code shall take effect 6 months after its promulgation.

LABOR LEGISLATIONS: DEFINITIONS

Labor legislation that w/c consists of statutes, regulations, & jurisprudence governing the relationsbetween capital and labor by providing for certain employment standards and a legal framework fornegotiating, adjucting, & administering those standards & other incidents of employment.

- Divided into:o Labor standards (book I-IV)

that w/c provides the least terms & conditions of employment that employers must complywith and to w/c employees are entitled as a matter of legal right

Minimum requirement prescribed by existing laws, rules& regulations relating to wages,hours of work, COLA, & other monetary & welfare benefits, including occupational, safety &health standards

o Labor relations (book V-VI) Defines the status, rights and duties and the institutional mechanisms that govern the

individual & collective interactions of employers. Employees or their representatives

Labor - physical toil (it does not necessarily exclude the application of skill, thus there is skilled &unskilled labor)

Skill- the familiar knowledge of any art or science, united w/ readiness & dexterity in execution or

performance or in the application of the art or science to practical purposes

Work - covers all forms of physical or mental exertion, or both combined, for the attainment of someobject other than recreation or amusement per se

Worker - the term is broader than employee & may refer to self -employed people & those working inthe service & under the control of another, regardless of rank, title, or nature of work

Employee - a salaried person working for another who controls or supervises the means, manner ormethod of doing the work

LABOR LAW & SOCIAL LEGISLATIONSocial legislation - laws that provide particular kinds of protection or benefits to society or segmentsthereof in furtherance of social justice. Labor laws are necessarily social legislations, but not all sociallegislations are labor laws

SOCIAL JUSTICE AS THE AIM


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- neither communism, nor despotism, nor atomism, nor anarchy but the humanization of laws and theequalization of social & economic forces by the State so that justice in its rational & objectively secularconception may at least be approximated.

- the promotion of the welfare of all the people, the adoption by the government of measures

calculated to insure economic stability of all the component elements of society through maintenance ofproper economic & social equilibrium in the interrelations of the members of the community,constitutionally, through the adoption of measures legally justifiable, or extra-constitutionally, throughthe exercise of powers underlying the existence of all governments, on the time-honored principle ofsalus populi est suprema lex .

-in essence both:

juridical principle- prescribes equality of people before the law, &

societal goal- attainment of decent quality of life of the masses through humane productive

efforts

CONSTITUTIONAL RIGHTS & MANDATES

Art II sec Section 18. The State affirms labor as a primary social economic force. It shall protect the rightsof workers and promote their welfare

Guaranteed basic rights of workers:

1. to organize themselves;

2. to conduct collective bargaining/negotiation w/ management;

3. to engage in peaceful concerted activities, including to strike in accordance w/ law;

4. to enjoy security of tenure;

5. to work under humane conditions;

6. to receive a living wage; and

7. to participate in policy & decision-making processes affecting rights & benefits as may be provided bylaw

Other Consti provisions that protect the Rights(R)/promote the welfare of workers

1. R to form unions, assocs or societies for purposes not contrary to law2. R of self-org even for govt employee. No officer/employee of the Civil Service shall be

removed/suspended for cause. Temporary employees of the Govt shall be given such protectionas may be provided by law


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3. Regular farmworkers shall have the R to own directly/collectively the lands they till. Landlessfarmworkers may be resettled by the govt in its own agricultural estates.

4. Continuing program of urban land reform & housing5. Protection for working women taking into acct their maternal functions, etc6. Labor sector is entitled to seats to party list7. Goals of national economy are a more equitable distribution of opportunities, income & wealth.8. Creation of an agency to promote the viability & growth of cooperatives as instruments for

social justice & economic devt 9. Govt shall increase the salary scales of the other officials & employees10. Career civil service employees shall be entitled to separation pay & retirement benefits, OR may

be considered for reemployment in the govt

BALANCING OF RIGHTS IN PRIVATE ENTERPRISE SYSTEM

PRIVATE ENTERPRISE- an economic system under which property of all kinds can be privately owned andin w/c individuals alone or in association with another, can embark on a business activity. (includesindustrial, agricultural, or agro-industrial establishments engaged in the production, manufacturing,processing, repacking or assembly of goods including services-oriented enterprises)

Constitution is pro-labor, but recognizes the indispensable role of the private sector, encourages privateenterprise and provides incentives to needed investments

POLICE POWER AS THE BASIS/FOUNDATION

- the power of the govt to enact laws, w/in Constitutional limits to promote the order, safety, health,morals & general welfare of society

- power inherent in govt to protect itself & all its constituents, & for this purpose to hold the govtimmune so far as necessary, from any limitations imposed in the past.

- An imposition of restraint upon liberty or property in order to foster the common good.

- every person has a right to pursue a business, occupation, or profession subject to the paramount rightof the government to impose such restrictions and regulations as the protection of the public marequire

BIRTH OF THE LC

Blas Ople - father of the LC

LC designed to be a dynamic & growing body of laws w/c will reflect continually the lessons of practicalapplication & experience


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common good. such contracts are subj. to the special laws on labor unions, collective bargaining, strikes& lockouts, closed shop, wages, working conditions, hrs of labor & similar subjs. Art 1700

Neither capital nor labor shall act oppressively against the other, or impair the interest or convenienceof the public Art 1701.

3. RPC punishes the use of violence or threats by either (employer) EER or (employee)EE.

4. Special Laws (SSS law, GSIS law, Agrarian Reform law, the 13 th month pay law, the Magna Carta forPublic Health Workers)

INTERNATIONAL ASPECT

On June 15, 1948, the Philippines became a member of the International Labor Organization (ILO),which is the UN specialized agency which seeks the promotion of social justice and internationallyrecognized human and labor rights.

The ILO formulates international labor standards in the form of Conventions and Recommendations

setting minimum standards of basic labor rights. An essential characteristic of ILO is tripartism, that is, it is composed not only of government

representatives but also of employers and workers organizations.

International Commitments

By being an ILO member, the country thereby subscribes to the fundamental principles on which theILO is based. Also, as an ILO member, the Philippines imbibes the obligation of the ILO to furtherprograms that will achieve ILO objectives.

ILO Core Conventions

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

Ratification Generally Needed ; ExceptionAs a rule ILO conventions are binding only for those In 1999, the ILO adopted a Declaration onFundamental Principles and Right at Work concerning an obligation of all ILO members to respect andpromote the fundamental rights even if they have not ratified the conventions.

Ratified ILO Conventions


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MGT RIGHTS

entitled to respect & enforcement in the interest of simple fair play.

1. R to manage, control, and use his property & conduct business in a manner satisfactory to himself(just discrimination in the rate of wages paid to the skillful & to the unskillful, to the efficient &inefficient.)

2. R to prescribe rules (they become part of the contract of EENT)

3. R to select EES & to decide when to engage them, except as restricted by statute or valid contract, ata wage & under conditions agreeable to them.

4. R to transfer & discharge EES in order to minimize expenses & to insure stability of the business &even to close the business, provided it is done in good faith & due to causes beyond control.

Art 5. [Rules & Regulations] the DOLE & other govt agencies charged w/ the administration &

enforcement of this Code or any of its parts shall promulgate the necessary IRRs. Such RRs shall becomeeffective 15 days after announcement of their adoption in the newspapers of gen. circulation.

- Only considered as invalid when promulgated by an administrative body to implement a law whenmade in excess of its rulemaking authority

Art 6. [Applicability] All Rs & benefits granted to workers under this Code shall, except as may otherwisebe provided herein, apply alike to all workers, whether agricultural or non-agricultural - also applies to agovt corp incorporated under the Corporation Code.

- Test WON a govt-owned/-controlled corp is subj to Civil Service Law or the manner of its creation.

- Govt corps created by congress (w/special charter) are subj to the civil service Law; those incorporatedunder the general Corp Law are covered by the Labor code.

PNOC-EDC (phil National oil corp- energy development corp) incorporated under the Corp Lawsubj to Labor CodeNHA incorp under Act 1459, the former corp law - LCGovt agencies Ees covered by CS Law

-may apply even if parties are not employers and employees of each other. Employment relationship isnot a pre- condition to LCs applicability

BOOK I: PRE-EMPLOYMENT

ART. 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 improved manpower training,allocation and utilization;

b) To protect every citizen desiring to work locally or overseas by securing for him the best possibleterms and conditions of employment;

c) To facilitate a free choice of available employment by persons seeking work in conformity withthe national interest;

d) To facilitate and regulate the movement of workers in conformity with the national interest;

e) To regulate the employment of aliens, including the establishment of a registration and/or workpermit system;

f) To strengthen the network of public employment offices and rationalize the participation of theprivate sector in the recruitment and placement of workers, locally and overseas, to serve nationaldevelopment objectives;

g) To insure careful selection of Filipino workers for overseas employment in order to protect thegood name of the Philippines abroad.

The DOLE

- by Administrative Code of 1987 (EO 292)

- the primary policy-making, programming, coordinating and administrative entity of the Executivebranch of the govt in the field of labor and employment

Its Primary responsibilities:

1. The promotion of gainful EENT opportunities and the optimization of the devt & utilization of thecountrys manpower resources;

2. The advancement of workers welfare by providing for just and humane working conditions and termsof EENT;

3. The maintenance of industrial peace by promoting harmonious, equitable and stable EENT, relationsthat assure protection for the Rs of all concerned parties.

Title I: RECRUITMENT AND PLACEMENT OF WORKERS

Chapter I: GENERAL PROVISIONS

ART. 13. Definitions.


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(a) "Worker" means any member of the labor force, whether employed or unemployed.

(b) "Recruitment and placement" refers to any act of canvassing, enlisting, contracting, transporting,utilizing, hiring or procuring workers, and includes referrals, contract services, promising oradvertising 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, employment to two or more personsshall be deemed engaged in recruitment and placement.

(c) "Private fee-charging employment agency" means any person or entity engaged in recruitmentand placement of workers for a fee which is charged, directly or indirectly, from the workers oremployers or both.

(d) "License" means a document issued by the Department ofLabor authorizing a person or entity tooperate a private employment agency.

(e) "Private recruitment entity" means any person or association engaged in the recruitment and

placement of workers, locally or overseas, without charging, directly or indirectly, any fee from theworkers or employers.

(f) "Authority" means a document issued by the Department ofLabor authorizing a person orassociation to engage in recruitment and placement activities as a private recruitment entity.

(g) "Seaman" means any person employed in a vessel engaged in maritime navigation.

(h) "Overseas employment" means employment of a worker outside the Philippines.

(i) "Emigrant" means any person, worker or otherwise, whoemigrates to a foreign country by virtueof an immigrant visa or resident permit or its equivalent in the country of destination.

WHAT CONSTITUTES RECRUITMENT AND PLACEMENT

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

Any of the acts mentioned in the basic rule in Article 13 (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 the poweror the ability to send the complainant abroad for work, such that the latter was convinced to part withher money to be so employed. Where such an act or representation is not proven, there is notrecruitment activity and conviction for illegal recruitment has no basis. (People vs. Goce)

By themselves, procuri ng a passport, airline tickets and foreign visa for another individual, withoutmore, can hardly qualify as recruitment activities. (Darvin vs. CA)


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ART. 14. Employment promotion. The Secretary of Labor shall have the power and authority:

(a) To organize and establish new employment offices in addition to the existing employment officesunder the Department of Labor as the need arises;

(b) To organize and establish a nationwide job clearance and information system to informapplicants registering with a particular employment office of job opportunities in other parts of thecountry as well as job opportunities abroad;

(c) To develop and organize a program that will facilitate occupational, industrial and geographicalmobility of labor and provide assistance in the relocation of workers from one area to another; and

(d) To require any person, establishment, organization or institution to submit such employmentinformation as may be prescribed by the Secretary of Labor.

ART. 15. Bureau of Employment Services. - (a) The Bureau of Employment Services shall be primarilyresponsible for developing and monitoring a comprehensive employment program. It shall have thepower and duty:

1. To formulate and develop plans and programs to implement the employment promotionobjectives of this Title;

2. To establish and maintain a registration and/or licensing system to regulate private sectorparticipation in the recruitment and placement of workers, locally and overseas, and to secure thebest possible terms and conditions of employment for Filipino contract workers and compliancetherewith under such rules and regulations as may be issued by the Minister of Labor;

3. To formulate and develop employment programs designed to benefit disadvantaged groups andcommunities;

4. To establish and maintain a registration and/or work permit system to regulate the employmentof aliens;

5. To develop a labor market information system in aid of proper manpower and developmentplanning;

6. To develop a responsive vocational guidance and testing system in aid of proper human resourcesallocation; and

7. To maintain a central registry of skills, except seamen.

LOCAL EMPLOYMENT The Bureau of Employment Services has been replaced by the Bureau of Local Employment (BLE)through EO 797 (May 1, 1982)


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PRPA (private recruitment & placement agency) agency that recruits applicants for local employment

- any individual, partnership, corporation or entity engaged in the recruitment & placement of personsfor local employment

- secures license from DOLE regional office, not transferrable, valid for 2 years & renewable. Requiressecurity bonds & cash bonds valid for 2 years, w/c answers for all valid legal claims arising from theillegal use of the license & serves as a guarantee of compliance with the provision of labor code

Service fee chargeable to employer

Shall not exceed 20% of the annual salary of the worker. Cannot be deducted from workers salary.Transportation expenses cannot, likewise, be deducted.

The PESO

Intended to serve as employment service and information center in its area of operation. It regularly

obtains a list of job vacancies from employers, publicizes them, invites and evaluates applicants, andrefers them for probable hiring.

- Also holds special services for the public such as employment bazaars, etc.

- primarily responsible for developing & monitoring a comprehensive EENT program.

The decisions of the NLRC shall be final & unappealable.

Minister of Labor has the power to impose & collect fees, based on rates recommended by the BES.Such fees shall be deposited in the National Treasury as a special acct of the General Fund, for thepromotion of the objectives of the BES, subj to the provisions of Sec 40 of PD 1177.

replaced BES w/ BLE, and created POEA

made licensing of local recruitment agencies and the issuance of work permits to non-resident aliens and EENT registration certificates to resident aliens a function of the regional offices ofDOLE

required the establishment of a Public Employment Service Office (PESO) in capital towns,cities and other strategic areas

o PESO - serves as EENT service & information center

- Regularly obtains lists of job vacancies from EERS, publicizes them, invites and evaluatesapplicants, and refers them for probable hiring

- Provides training and educational guidance and EENT counseling services


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- Also renders special services to the public such as holding of jobfairs, livelihood and self-employment bazaars

- Special credit assistance for placed overseas workers- Special program for EENT of students (SPES)during summer or semestral breaks

- Work appreciation seminars & conferences and

- Hiring of workers in infrastructure projects (WHIP)

Ra 6885 created WHIP, a program w/c requires the DPWH and private contractors to hire 30% ofskilled and 50% unskilled labor requirements from the area where the project is being undertaken

ART. 16. Private recruitment. - Except as provided in Chapter II of this Title, no person or entity otherthan the public employment offices, shall engage in the recruitment and placement of workers.

GR: No person/entity other than the public EENT offices, shall engage in the recruitment & placement ofworkers.

eptions

1. Public EEnt offices

2. Private recruitment entities

3. Private EENT agencies

4. Shipping or manning agents or representatives

5. The POEA

6. Construction contractors if authorized to operate by DOLE and the Construction Industry Authority

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

8. Other persons/entities as may be authorized by the Sec of DOLE

ART. 17. Overseas Employment Development Board. - An Overseas Employment Development Board ishereby created to undertake, in cooperation with relevant entities and agencies, a systematic programfor overseas employment of Filipino workers in excess of domestic needs and to protect their rights tofair and equitable employment practices. It shall have the power and duty:

1. To promote the overseas employment of Filipino workers through a comprehensive marketpromotion and development program;


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2. To secure the best possible terms and conditions of employment of Filipino contract workers on agovernment-to-government basis and to ensure compliance therewith;

3. To recruit and place workers for overseas employment on a government-to-governmentarrangement and in such other sectors as policy may dictate; and

4. To act as secretariat for the Board of Trustees of the Welfare and Training Fund for OverseasWorkers.

LEGISLATIVE BACKGROUND OF OVERSEAS EMPLOYMENT

industry.

workers.

ations in the overseas employment program.

OVERSEAS EMPLOYMENT POLICY

R.A. No. 8042

ain economic growth andachieve national development.

fundamental human rights and freedoms of the Filipino citizen shall not, at any time, be compromisedor violated.

Selective Deployment

countries that meet some criteria:

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

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

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


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

requires, may, at any time, terminate or impose a ban on the deployment of migrant workers.

THE POEA: OVERVIEW OF ITS FUNCTIONS AND POWERS

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

or has been engaged in a remunerated activity in a country of which he/she is not a legal resident.

-based or sea-based.

REGULATORY FUNCTION OF POEA

through its licensing ad registration system.

ADJUDICATORY FUNCTIONS OF POEA

cases:

a. Recruitment violation and related cases consisting of all preemployment cases which areadministrative in character, involving or arising out of recruitment laws, rules and regulations, including

money claims therefrom or violations of the conditions for issuance of license to recruit workers.

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

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

Jurisdiction Transferred to NLRC

-employee relations cases.

to hear and decide claims arising out of an employer-employee relationship or by virtue of any law orcontract involving Filipino workers for overseas employment including claims for actual, moral,exemplary and other forms of damages.

n over money claims of OFWs, it evenexpanded the scope of such money claim. When the jurisdiction was still with the POEA, the jurisdiction


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covered only money claims involving Filipino workers for overseas employment. Now the NLRC jurisdiction is over money claims involving Filipino workers for overseas deployment.

departure for abroad.

Jurisdiction Retained With POEA

cide all cases which are administrative in character and disciplinaryaction cases.

Compromise Agreement

Mandatory Principle

-compliance with the periods provided for under the law will subject the responsible officials topenalties such as withholding of salaries until compliance, suspension, or dismissal from service.

EMPLOYER-EMPLOYEE RELATIONS CASES: TERMINATION OF EMPLOYMENT

Contractual Employees

and Lagda vs. NLRC)

Premature Termination of Contract

termination is not shown to be based on lawful or valid grounds, the employer will be ordered to paythe workers their salaries corresponding to the unexpired portion of their employment contract. (TierraConstruction vs. NLRC)

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

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

cause as defined by law or contract, is entitled to a full reimbursement of his placement fee with

interest at 12% per annum, plus his salary for the unexpired portion of his employment contract or for 3months for every year of the unexpired term, whichever is less.

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

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


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Death and Other Benefits, Basis of Compensation

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

the safety of the employee during his repatriation and until his arrival in this country, i.e. the point ofhire. (InterOrient Maritime Enterprises vs. NLRC)

Illustrative Case: Death Benefit Under the Standard Contract

efit under the standard contract, it must be sufficiently shownthat the deaths of the seamen were caused by their own willful and deliberate act. In this case, theevidence does not substantially prove that the seamen contracted tetanus as a result of the unsanitarysurgical procedures they performed on themselves. Hence, the death benefits under the employmentcontract must be paid. (NFD International Manning Agents vs. NLRC)

Overseas Compensation Benefits in Dollars

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

DISCIPLINARY ACTION CASES

worker for breach of discipline. Itshall also establish a system of watching and blacklisting OCWs

Grounds for Disciplinary Action

a. Commission of a felony punishable by Philippine laws or laws of host country;

b. Drug addiction or possession or trafficking of prohibited drugs;

c. Desertion or abandonment;

d. Gambling;

e. Initiating or joining a strike, where prohibited;

f. Creating trouble at the work site;

g. Embezzlement of company funds or other properties;

h. Theft or robbery;


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i. Prostitution;

j. Vandalism;

k. Gunrunning or possession of deadly weapons;

l. Unjust refusal to depart for a worksite after all documents have been prepared;

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

OUTSIDE POEA JURISDICTION

claim must be brought before the regular courts. This is because the POEA is not a court, it is only anadministrative agency.

No Jurisdiction Over Torts

case at bar, the items demanded are not labor benefits such as wages, overtime pay or separation pay,but are items claimed as natural consequences of his dismissal (which he denominates as damages.)POEA has no jurisdiction. (Mckenzie, et al vs Cui)

ART. 18. Ban on direct-hiring . - No employer may hire a Filipino worker for overseas employment exceptthrough the Boards and entities authorized by the Secretary of Labor. Direct-hiring by members of thediplomatic corps, international organizations and such other employers as may be allowed by theSecretary of Labor is exempted from this provision.

GR: Direct hiring of Filipino workers for overseas EENT is not allowed

1. Members of Diplomatic corps;

2. International organizations;

3. Other employers as may be allowed by DOLE; and

4. Name hires individual workers who are able to secure contracts for overseas EENT on their ownefforts and representations w/o assistance/participation of any agency. Their hiring nonetheless, shallpass through the POEA for processing purposes. Name hires should submit to POEA for registration:

- employment contract

- valid passport

- employment visa or work permit, or equivalent document


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

-year statutory period, recovery therefore cannot bebarred by laches. Courts should never apply the doctrine of laches earlier than the expiration of time

limited for the commencement of actions at law. (Imperial Victory Shipping vs. NLRC)

MINIMUM EMPLOYMENT CONDITIONS

a. Guaranteed wages for regular working hours and overtime pay

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

c. Free food and accommodation, or offsetting benefit;

d. Just and authorized causes for termination of contract taking into consideration the customs andnorms of the host country.

FREEDOM TO STIPULATE

these minimum requirements, provided the whole employment package should be more beneficial tothe worker than the minimum, and that the same not be contrary to law, public policy, and morals.

ART. 21. Foreign service role and participation. - To provide ample protection to Filipino workersabroad, the labor attaches, the labor reporting officers duly designated by the Secretary ofLabor and thePhilippine diplomatic or consular officials concerned shall, even without prior instruction or advice fromthe home office, exercise the power and duty:

(a) To provide all Filipino workers within their jurisdiction assistance on all matters arising out ofemployment;

(b) To insure that Filipino workers are not exploited or discriminated against;

(c) To verify and certify as requisite to authentication that the terms and conditions of employmentin contracts involving Filipino workers are in accordance with the Labor Code and rules andregulations of the Overseas Employment Development Board and National Seamen Board;

(d) To make continuing studies or researches and recommendations on the various aspects of the

employment market within their jurisdiction;

(e) To gather and analyze information on the employment situation and its probable trends, and tomake such information available; and

(f) To perform such other duties as may be required of them from time to time.

PROTECTION AND ASSISTANCE BY GOVERNMENT AGENCIES


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workers and, as far as practicable, of all overseas Filipinos: DFA,DOLE, POEA, and OWWA.

THE RPM CENTER Re-Placement and Monitoring Center

omotion house for local employment of these returning workers and to tap their skillsfor national development.

THE OWWA Overseas Workers Welfare Administration

placement assistance, and remittance services to OFWs.

POEA and BLE.

REPATRIATION OF WORKERS

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

e fault of the worker, the principal or agency may recover the costof repatriation from the worker after return to the country.

advance the repatriation cost with recourse to the agency or principal.

ART. 22. Mandatory remittance of foreign exchange earnings. - It shall be mandatory for all Filipino

workers abroad to remit a portion of their foreign exchange earnings to their families, dependents,and/or beneficiaries in the country in accordance with rules and regulations prescribed by theSecretary of Labor.

- All OFWs are required to remit a portion of their foreign exchange earnings ranging from 50% -80% depending on the workers kind of job, to thei r families, dependents, and/or beneficiaries.

Seamen/Mariners 80%

Workers for Filipino Contractors & Construction companies 70%

Professionals whose EENT contract provide for lodging facilities 70%

Professionals w/o Board & Lodging 50%

Domestic and other service workers 50%

1. Fil servicemen working in US military installations;


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2. Where the workers immediate family members, dependents, or beneficiaries are residing w/him abroad;

3. Immigrants and Fil professionals and EEs working w/ UN agencies or specialized bodies

Effects of Failure to Remit:

1. Workers who fail to comply w/ the mandatory remittance requirement shall be suspended/excludedfrom the list of eligible workers for overseas EENT. Subsequent violations shall warrant his repatriation.

2. EERS who fail to comply shall be excluded from the overseas EENT program. Private EENTagencies/entities shall face cancellation or revocation of their licenses or authority to recruit, w/oprejudice to other liabilities under existing laws and regulations

ART. 23. Composition of the Boards.

(a) The OEDB shall be composed of the Secretary of Labor and Employment as Chairman, theUndersecretary of Labor as Vice-Chairman, and a representative each of the Department of ForeignAffairs, the Department of National Defense, the Central Bank, the Department of Education,Culture and Sports, the National Manpower and Youth Council, the Bureau of Employment Services,a workers organization and an employers organization and the Executive Director of theOEDB as members.

(b) The National Seamen Board shall be composed of the Secretary of Labor and Employment asChairman, the Undersecretary of Labor as Vice-Chairman, the Commandant of the Philippine CoastGuard, and a representative each of the Department of Foreign Affairs, the Department ofEducation, Culture and Sports, the Central Bank, the Maritime Industry Authority, the Bureau ofEmployment Services, a national shipping association and the Executive Director of the NSB asmembers.

The members of the Boards shall receive allowances to be determined by the Board which shall notbe more than P2,000.00 per month.

(c) The Boards shall be attached to the Department of Labor for policy and program coordination.They shall each be assisted by a Secretariat headed by an Executive Director who shall be a Filipinocitizen with sufficient experience in manpower administration, including overseas employment

activities. The Executive Director shall be appointed by the President of the Philippines upon therecommendation of the Secretary of Laborand shall receive an annual salary as fixed by law. TheSecretary of Labor shall appoint the other members of the Secretariat.

(d) The Auditor General shall appoint his representative to the Boards to audit their respectiveaccounts in accordance with auditing laws and pertinent rules and regulations.


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ART. 24. Boards to issue rules and collect fees. - The Boards shall issue appropriate rules and regulationsto carry out their functions. They shall have the power to impose and collect fees from employersconcerned, which shall be deposited in the respective accounts of said Boards and be used by themexclusively to promote their objectives.

Chapter II: REGULATION OF RECRUITMENT AND PLACEMENT ACTIVITIES

ART. 25. Private sector participation in the recruitment and placement of workers. - Pursuant tonational development objectives and in order to harness and maximize the use of private sectorresources and initiative in the development and implementation of a comprehensive employmentprogram, the private employment sector shall participate in the recruitment and placement of workers,locally and overseas, under such guidelines, rules and regulations as may be issued by the Secretary

of Labor.

POEAs retained jurisdiction:

RA 8042 transferred from POEA to NLRC the jurisdiction over OFWs claims rising from employeremployee relationship.

POEA retained original & exclusive jurisdiction over cases involving violations of POEA rules andregulations, disciplinary cases& other cases that are administrative in character involving OFWs.performs regulatory, enforcement, & limited or special adjudicatory functions

VALIDITY OF POEA REGULATIONS

, however it could end up being unenforceableif it shall lack of publication

Private Sectors that can participate

1. Private EENT agencies;

2. Private recruitment agencies;

3. Shipping or manning agencies;

4. Such other persons as may be authorized by the Sec of DOLE; and

5. Construction contractors w/ a duly issued authority to operate private recruitment entities


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Qualifications for Participation

1. Citizenship requirement

a. Filipino citizens; or

b. Corporations, partnerships or entities at least 75% of the authorized and voting capital stock of w/c isowned & controlled by Filipino citizens.

2. Capitalization

a. Private EENT agency for local EENT

i. For single proprietorship or partnership minimum net worth of 200k pesos

ii. For corporations a minimum paid up capital of 5ook pesos

b. Private recruitment or manning agency for overseas EENT

i. For single proprietorship or partnership P2M minimum capital

ii. For corps P2M minimum paid up capital, Provided, that those w/ existing licenses shall, w/in 4yrs from effectivity hereof, increase their capitalization or paid-up capital, as the case may be, toP2M at the rate of 250K every yr.

3. Those not otherwise disqualified by law or other govt regulations to engage in the recruitment &placement of workers for overseas EENT Disqualified from Recruitment & Placement of Workers forOverseas EEnt whether for profit or not

1. Travel agencies & sales agencies of airline companies;

2. Officers/members of the board of any corp or members in a partnership engaged in the business of atravel agency;

3. Corps & partnerships, when any of its officers, members of the board or partners, is also an officer,member of the board or partner of a corp or partnership engaged in the business of a travel agency(interlocking officers)

4. Persons, partnerships or corps which have derogatory records, such as but not limited to:

a. Those certified to have derogatory record/info by the NBI or by the Anti-illegal RecruitmentBranch of the POEA;

b. Those against whom probable cause or prima facie finding of guilt for illegal recruitment or otherrelated cases exists;


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e. Medicare;

f. Trade test, if necessary;

g. Inoculation, when required;

h. Medical Examination fees.

be collected from a hired worker. No other charges in whatever form, manner or purpose, shall beimposed on and be paid by the worker without prior approval by the POEA.

facilities of the recruitment agency.

ART. 33. Reports on employment status. - Whenever the public interest requires, the Secretaryof Labor may direct all persons or entities within the coverage of this Title to submit a report on the

status of employment, including job vacancies, details of job requisitions, separation from jobs, wages,other terms and conditions and other employment data.

ART. 34. Prohibited practices. - It shall be unlawful for any individual, entity, licensee, or holder ofauthority:

(a) To charge or accept, directly or indirectly, any amount greater than that specified in the scheduleof allowable fees prescribed by the Secretary of Labor, or to make a worker pay any amount greaterthan that actually received by him as a loan or advance;

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

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

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

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

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

(g) To obstruct or attempt to obstruct inspection by the Secretary of Labor or by his duly authorizedrepresentatives;


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(h) To fail to file reports on the status of employment, placement vacancies, remittance of foreignexchange earnings, separation from jobs, departures and such other matters or information as maybe required by the Secretary of Labor.

(i) To substitute or alter employment contracts approved and verified by the Department

of Labor from the time of actual signing 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 any corporation engaged in travel agency or tobe engaged directly or indirectly in the management of a travel agency; and

(k) To withhold or deny travel documents from applicant workers before departure for monetary orfinancial considerations other than those authorized under this Code and its implementing rules andregulations.

PROHBITED PRACTICES

It isalso a deterrant to loan sharks who lend money at usurious interests.

publishing false notice or information in relation to recruitment or employment.

ART. 35. Suspension and/or cancellation of license or authority. - The Minister of Labor shall have thepower to suspend or cancel any license or authority to recruit employees for overseas employment forviolation of rules and regulations issued by the Ministry of Labor, the Overseas EmploymentDevelopment Board, or for violation of the provisions of this and other applicable laws, General Ordersand Letters of Instructions.

SUSPENSION OR CANCELLATION OF LICENSE

for the purpose of securing a license or renewal thereof, etc. The acts prohibited under Art. 34 are not just grounds for suspension or cancellation of license or authority. They likewise constitute illegal

recruitment under RA 8042.Concurrent Jurisdiction to Suspend or Cancel a License

suspend or cancel a license.

PERSONS LIABLE; DURATION OF LIABILITY


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with a foreign principal.

vered their agency agreement at thetime the worker was injured the recruitment agency may still be sued for violation of the employment

contract, if no notice of the agency agreements termination was given to the employee.

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

SOLIDARY LIABILITY ASSUMED BY RECRUITMENT AGENT

Contract contained a provision empowering the agency 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 undertakings constitute the legal basis for private agencies being liable

jointly and severally with its principal, for all claims filed by recruited workers which may arise inconnection with the implementation of the service agreements or employment contracts. (Royal CrownInernationale vs. NLRC)

Contract by Principal

private respondent, nevertheless, petitioner, as the manning agent in the Philippines, is jointly andsolidarily responsible with its principal. (Seagull Maritime Corp vs. Balatongan)

Proper Party

a complaint.

SUABILITY OF A FOREIGN CORPORATION WHICH HIRES FILIPINO WORKERS

in and found liable by Philippine courts.

DEREGULATION AND PHASE OUT

-out of POEAs regulatory function so that t he migration of workers willbecome strictly a matter between the worker and his employer. This projected deregulation has stirredsome controversies which, to this day, continue to remain unresolved.

Non License or Non-Holder of Authority any person/corp/entity w/c has not been issued a validlicense or authority to engage in recruitment & placement by the Sec of Labor, or whose license orauthority has been suspended, revoked or cancelled by the POEA and the Secretary.

Grounds for Revocation of License


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1. Incurring an accumulated 3 counts of suspension by an agency based on final and executor ordersw/in the validity period of its license;

2. Violation/s of the conditions of license;

3. Engaging in acts of misrepresentation for the purpose of securing a license or renewal thereof;and

4. Engaging in the recruitment or placement of workers to jobs harmful to the public health ormorality or to the dignity of the RP

Grounds for Suspension/Cancellation of License

1. The acts prohibited under Art 34;

2. Charging a fee before the worker is employed or in excess of the authorized amt;

3. Doing recruitment in places outside its authorized area;

4. Deploying workers w/o processing through the POEA; and

5. Publishing job announcements w/o POEAs prior approval

Jurisdiction

The DOLE Sec and the POEA Admin have concurrent jurisdiction to suspend or cancel a license

Liability of Recruitment Agency

the agency is required to submit a doc containing its power to sue and be sued jointly and solidarily w/the principal or foreign-based employer for any of the violations of the recruitment agreement, and thecontracts of employment

Note: The recruitment agency may still be sued even if agency agreement bet recruitment agency &principal is already severed if no notice of the termination was given to the EE

Exception to Liability of Recruitment agency

send them back to their foreign EER

despite their knowledge of its inability to pay their wages

Contract by Principal

contract w/ the EE, the manningagent in the PH is jointly & solidarily liable w/ the principal

Suability of Foreign Corps


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country may be suid in and foundliable by Ph courts

Chapter III: MISCELLANEOUS PROVISIONS

ART. 36. Regulatory power. - The Secretary of Labor shall have the power to restrict and regulate therecruitment and placement activities of all agencies within the coverage of this Title and is herebyauthorized to issue orders and promulgate rules and regulations to carry out the objectives andimplement the provisions of this Title.

ART. 37. Visitorial Power. - The Secretary of Labor or his duly authorized representatives may, at anytime, inspect the premises, books of accounts and records of any person or entity covered by this Title,require it to submit reports regularly on prescribed forms, and act on violation of any provisions of thisTitle.

ART. 38. Illegal recruitment .

(a) Any recruitment activities, including the prohibited practices enumerated under Article 34 of thisCode, to be undertaken by non-licensees or non-holders of authority, shall be deemed illegal andpunishable under Article 39 of this Code. The Department of Labor and Employment or any lawenforcement officer may initiate complaints under this Article.

(b) Illegal recruitment when committed by a syndicate or in large scale shall be considered anoffense involving economic sabotage and shall be penalized in accordance with Article 39 hereof.

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

(c) The Secretary of Labor and Employment or his duly authorized representatives shall have thepower to cause the arrest and detention of such non-licensee or non-holder of authority if afterinvestigation it is determined that his activities constitute a danger to national security and publicorder or will lead to further exploitation of job-seekers. The Secretary shall order the search of the

office or premises and seizure of documents, paraphernalia, properties and other implements usedin illegal recruitment activities and the closure of companies, establishments and entities found tobe engaged in the recruitment of workers for overseas employment, without having been licensedor authorized to do so.

AUTHORIZED entities;


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the list of ACTS CONSIDERED AS ILLEGAL RECRUITMENT has also been EXPANDED as found in SECTION 6,RA 8042: Definition: xxx Illegal Recruitment shall mean any act of canvassing, enlisting, contracting,transporting, utilizing, hiring, or procuring workers and includes referring contract services, promising oradvertising for employment abroad, whether for profit or not, when undertaken by a non-licensee ornon-holder of authority as contemplated under the Labor Code; Provided, that any such non-licensee or

non-holder who, in any manner, offers or promises for a fee employment abroad to two or morepersons shall be deemed so engaged. It shall likewise include the following acts whether committed byany person, WHETHER A NON-LICENSEE, NON-HOLDER, LICENSEE OR HOLDER OF AUTHORITY:

a.) To change or accept directly or indirectly any amount greater than that specified in theschedule of allowable fees prescribed by the DOLE Secretary, or to make a worker pay anyamount greater than that actually received by him as a loan or advance;

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

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

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

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

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

g.) To obstruct or attempt to obstruct inspection by the DOLE Secretary or by his duly authorizedrepresentative;

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

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

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


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k.) To withhold or deny travel documents from applicant workers before departure formonetary or financial considerations other than those authorized under the provisions of theLabor Code and its IRRs;

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

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

Illegal Recruitment when committed by a syndicate or in large scale shall be considered an offenseinvolving economic sabotage. Illegal Recruitment is deemed committed by a syndicate if carried out by agroup of three (3) or more persons conspiring and/or confederating with one another. It is deemedcommitted in large scale if committed against three (3) or more persons individually or as a group.

Persons Liable: Principals, Accomplices, and Accessories ;

for Juridical Persons: the officers HAVING CONTROL, MANAGEMENT, OR DIRECTION of their business

liable; UNLESS, it is shown that such employees ACTIVELY AND CONSCIOUSLY PARTICIPATED in theillegal recruitment

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

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

filing suit against such person for ESTAFAunder the RPC as long as the requisites for said felony are present

UNCONSTITUTIONAL see Salazar v. Achacoso and Marquez, G.R. No. 81510, March 14, 1990

- under the Constitution (Art. III, Sec. 2, 1987 Constitution) only a judge may issue a warrant of arrest ora search warrant - the Secretary of Labor is not a judge hence is no longer granted the power to issuessaid warrants. Authorities must now undergo judicial process - Exception: Deportation or Illegal andUndesirable Aliens Cases the President or the Commissioner of Immigration may order arrestedfollowing a final order of deportation for the purpose of deportation


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BJECT TO ARREST: Illegal Recruiters are still subject to arrest, upon compliance with the procedureas provided for by law namely through a warrant of arrest issued by a judge of an RTC where a criminalinformation was filed after preliminary investigation; also RULES ON WARRANTLESS ARRESTS under Rule113, Section 5 of the ROC may still apply to illegal recruiters when they fall under the circumstancesenumerated therein; WARRANTLESS SEARCHES: INCIDENTAL to lawful arrest; PLAIN VIEW; withINDIVIDUALS CONSENT

issue and order closure of illegal recruitment establishes, this being an ADMINISTRATIVE andREGULATORY action; Issuance after an ex parte preliminary examination to determine whether theactivities of a non-licensee constitute a danger to national security and public order or will lead tofurther exploitation of job seekers

27; these cover the POEAs Anti -Illegal RecruitmentPrograms; Provision for Legal Assistance; Complaints Desk; Surveillance; Issuance of Closure Order;Implementation of Closure Order; Report on CO, Institution of Criminal Action; Motion to Lift CO; Whomay file such Motion; Grounds for Lifting or Reopening; Appeal and Re-padlocking of Office

Elements of Illegal Recruitment

1. The offender is a licensee/non-licensee or holder/non-holder of authority engaged in the recruitment& placement of workers; and

2. The offender undertakes either any recruitment activities devided under Art 13 (b) or any prohibitedpractices in Art 34

Simple Illegal Recruitment Where a person:

1. undertakes any recruitment activity defined under Art 13(b) or any prohibited practice enumeratedunder Arts 34 & 38 of the LC; and

2. does not have a license or authority to lawfully engage in the recruitment & placement of anyworkers.Illegal Recruitment in Large Scale further requires a 3rd element:

3. The offense is committed against 3/more persons, individually or as a group

Illegal Recruitment as Economic Sabotage:1. When illegal recruitment is committed by a syndicate (when 3/more persons conspire or confederatew/ one another in carrying out an unlawful or illegal transaction, enterprise or scheme);

2. When illegal recruitment is committed in a large scale (if committed against 3/more personsindividually or as a group

Consequences of Conviction


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1. Automatic revocation of license/authority;

2. Forfeiture of the cash & surety bonds;

3. Conviction for the crime of estafa, if found guilty thereof

Illegal Recruitment vs Estafa

Acts Constituting Estafa - the accused represented themselves to complainants to have the capacity tosend workers abroad although they did not have any authority or license, enabling them to obtainplacement fee

Venue of criminal action arising from Illegal Recruitment

The complainant may, at his option file at the RTC of the province/city:

a.) where the offense was committed; or

b.) where the offended party resides at the time of the commission of the

offense

Prescriptive Period Imprisonment Fine:

Simple: 5 yrs 12-20 yrs P1-2M

Economic Sabotage:

20 yrs Life P2-5M

Note: Max penalty if the person illegally recruited is less than 18 y/o or committed by a non-licensee ornon-holder of authority

Absence of receipts evidencing payment, not fatal to prosecutions case for illegal recruitment as longas the witnesses can positively show through their respective testimonies that the accused is the one

involved in prohibited recruitment

Liability of Local EEnt agency solidarily liable w/ the foreign principal for unpaid salaries of a workerrecruited. Before recruiting, the agency is required to submit a doc containing its power to sue and besued jointly and solidarily w/ the principal or foreign-based EER for any of the violations of therecruitment agreement and the contracts of EEnt Liability of Company Engaged in Illegal Recruitment may be held as principal, zogether his EER, if it is shown that he actively & consciously participated in


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ART. 40. Employment permit of non-resident aliens . - Any alien seeking admission to the Philippines foremployment purposes and any domestic or foreign employer who desires to engage an alien foremployment in the Philippines shall obtain an employment permit from the Department of Labor.

The employment permit may be issued to a non-resident alien or to the applicant employer after adetermination of the non-availability of a person in the Philippines who is competent, able and willing atthe time of application to perform the services for which the alien is desired.

For an enterprise registered in preferred areas of investments, said employment permit may be issuedupon recommendation of the government agency charged with the supervision of said registeredenterprise.

All foreign nationals who intend to engage in gainful EENT in the PH shall apply for AEP EmploymentPermit Required

1. all foreign nationals seeking admission to the PH for the purpose of EENT;

2. all non-resident foreign nationals already working in the PH;

3. non-resident foreign nationals admitted to the PH on non-working visas and who wish to seekEENT; and

4. missionaries or religious workers who intend to engage in gainful EENT.

Note: AEP should be secured regardless of the source of compensation and duration of the EENT,whether the EENT is part-time or temp

An AEP is issued based on the ff :

1. Compliance by the applicant EER or the foreign national w/ the substantive & documentaryrequirements;

2. Determination of DOLE Sec that there is no available Filipino national who is competent, able andwilling to do the job for the EER; and

3. Assessment of the DOLE Sec that the EENT of the foreign national will redound to national benefit

Note: Understudy Training Program is no longer a requirement in the issuance of AEP and the EEr has

now the option to implement transfer of technology

Requisite for EENT of Resident Aliens :

their Alien Employment Registration Cert (AERC)

Exemption from Permit


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1. All members of the Diplomatic service and foreign govt officials accredited by and w/ reciprocityarrangement w/ the Ph govt;

2. Officers and staff of international orgs of w/c the PH is a member, and their legitimate spousesdesiring to work in the PH;

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

4. All foreign nationals granted exemption by law;5. Owners & representatives of foreign nationalswhose companies are accredited by the POEA who come to the PH for a limited period and solely forthe purpose of interviewing Filipino applicants for EENT abroad;

6. Foreign nationals who come to the PH to teach, present and/or conduct research studies in univsand colleges as visiting, exchange or adjunct professors under formal agreements bet the univs orcolleges in the PH an foreign univs or colleges; or bet the Ph govt and foreign govt; provided that the

exemption is on a reciprocal basis; and

7. Resident foreign nationals.

Grounds for denial of Application of AEP

1. Misrepresentation of facts in the application;

2. Submission of falsified docs;

3. The foreign national has a derogatory record; or

4. Availability of a Fil who is competent, able and willing to the job intended for the alien.

Grounds for suspension of AEP

1. The continued stay of the foreign national my result in damage to the interest of the industry ofthe country; and

2. the EENT of the alien is suspended by the EER or by the order of the court

Grounds for revocation of AEP

1. Non-compliance w/ any of the requirement/conditions for w/c the AEP was issued;

2. Misrepresentation of facts in the application;

3. Submission of falsified docs;

4. Meritorious objection or information against the EENT of foreign national as determined by theRegional Dir;


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5. Foreign national has a derogatory record; and

6. EER has terminated the EENT of the foreign national.

Validity of EENT Permit

ct, consultancy services or other modes of engagement providesotherwise, w/c shall in no case exceed 5yrs

Rule on Nationalized Business

GR: Foreigners may NOT be employed in certain nationalized business.

Anti-Dummy Law 2-A prohibits the EENT of aliens in entities engaged in business whose exercise orenjoyment is reserved only to Fils or to corporations or assocs whose capital should be at least 60% Fil-

owned

Exceptions:

1. Where the Sec of Justice specifically authorizes the EEnt of technical personnel;

2. Aliens who are members of the Board of directors of corps in proportion to their allowableparticipation in the capital of such entities; and

3. Enterprises registered under the Omnibus Investment Code in case of technical, supervisory oradvisory positions, but for a limited periodd.

ART. 41. Prohibition against transfer of employment.

(a)After the issuance of an employment permit, the alien shall not transfer to another job or changehis employer without prior approval of the Secretary of Labor.

(b) Any non-resident alien who shall take up employment in violation of the provision of this Titleand its implementing rules and regulations shall be punished in accordance with the provisions ofArticles 289 and 290 of the Labor Code.

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

(a) After the issuance of the employment permit, the alien shall not transfer to another job or change hisemployer without prior approval from the Secretary of DOLE

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


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and its IRRs shall be punished in accordance with Arts. 2894 and 290 of the Labo r Code. In addition, thealien worker shall be subject to deportation after service of his sentence.

EMPLOYMENY REGISTRATION CARD (AERC)

and the ANTI-DUMMY LAW (C.A. no. 108 as amended by PD715) Foreigners may not be employed in certain nationalized industries; law provides and subjectsreservation of ownership and control of such corporations to the 60% requirement, i.e. public utility,natural resources; financing companies; however, media and advertising requires 100% Filipinoownership and management (Consti)

employment within nationalized industries:

a.) where the DOJ Secretary specifically authorizes the employment of foreign technical personnel,

orb.) where the aliens are elected members of the Board of Directors or governing body of

corporations or associations in proportion to their allowable participation in the capital of suchentities

Permits to Foreign Nationals; the following are required to apply for an Alien Employment Permit (AEP):

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

2.) Missionaries or religious workers who intend to engage in gainful employment;

3.) Holders of Special Investors Resident Visa (SIRV), Special Retirees Resident Visa (SRRV), TreatyTrades Visa, or Special NonImmigration Visa, who occupy any advisory, supervisory, or technicalposition in any establishment;

4.) Agencies, organizations, or individuals whether public or private, who secure the services offoreign professional to practice their professions in the Philippines under reciprocity andinternational agreements;

5.) Non-Indo Chinese Refugees who are asylum seekers and given refugee status by the UN HighCommissioner on Refugees (UNHCR) of the DOJ under the DOJ Department Order no. 49, 1998.

6.) Resident foreign Nationals seeking employment in the Philippines (see D.O. no. 21-02 whichsuspends until further notice the requirement for Resident Foreign Nationals to secure AEP)

-01 further, EXEMPTS the following from AEP requirements:

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


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

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

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

a.) Compliance by the applicant employer or the foreign national with the substantive anddocumentary requirements;

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

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

- Understudy Program is no longer required for the issuance of AEP

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

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

- EFFECTIVITY OF RENEWAL: one day after the expiration of previous permit; regardless of whether or

not the renewal is granted before or after the expiration of the previous permit;

ISSUED; except in cases of holders of MULTIPLE POSITIONS IN ONE CORPORATION

ART. 42. Submission of list. - Any employer employing non-resident foreign nationals on the effectivedate of this Code shall submit a list of such nationals to the Secretary of Labor within thirty (30) daysafter such date indicating their names, citizenship, foreign and local addresses, nature of employmentand status of stay in the country. The Secretary of Labor shall then determine if they are entitled to anemployment permit.

BOOK TWO: HUMAN RESOURCES DEVELOPMENT PROGRAM

Title I: NATIONAL MANPOWER DEVELOPMENT PROGRAM


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Chapter I: NATIONAL POLICIES AND ADMINISTRATIVE MACHINERY FOR THEIR IMPLEMENTATION

ART. 43. Statement of objective . - It is the objective of this Title to develop human resources, establishtraining institutions, and formulate such plans and programs as will ensure efficient allocation,development and utilization of the nations manpower and thereby promote employment andaccelerate economic and social growth.

ART. 44. Definitions. - As used in this Title:

(a) "Manpower" shall mean that portion of the nations population which has actual or potentialcapability to contribute directly to the production of goods and services.

(b) "Entrepreneurship" shall mean training for self-employment or assisting individual or small industrieswithin the purview of this Title.

Art 43-56 TECHNICAL EDUCATION AND SKILLS DEVT AUTHORITY (TESDA)

- replaced the National Manpower & Youth Council under RA 7796

Statement of Goals & Objectives

1. To attain international competitiveness;

2. To meet demands for quality middle-level manpower;

3. To disseminate scientific & technical knowledge base;

4. To recognize & encourage the complementary roles of pub & private institutions; and

5. To inculcate desirable values.

Middle-level Manpower

1. Those who have acquired practical skills & knowledge through formal or non-formal educ &training equivalent to at least a secondary educ but preferably a post-secondary educ w/ acorresponding degree/diploma; or

2. Skilled workers who have become highly competent in their trade or craft as attested by industry.

Title II: TRAINING AND EMPLOYMENT OF SPECIAL WORKERS

Chapter I:APPRENTICES


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ART. 57. Statement of objectives. - This Title aims:

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

(2) To establish a national apprenticeship program through the participation of employers, workersand government and non-government agencies; and

(3) To establish apprenticeship standards for the protection of apprentices.

ART. 58. Definition of Terms . - As used in this Title:

(a) "Apprenticeship" means practical training on the job supplemented by related theoreticalinstruction.

(b) An "apprentice" is a worker who is covered by a written apprenticeship agreement with an

individual employer or any of the entities recognized under this Chapter.

(c) An "apprenticeable occupation" means any trade, form of employment or occupation whichrequires more than three (3) months of practical training on the job supplemented by relatedtheoretical instruction.

(d) "Apprenticeship agreement" is an employment contract wherein the employer binds himself totrain the apprentice and the apprentice in turn accepts the terms of training.

On-the-job training practical work experience through actual participation in productive activitiesgiven to or acquired by an apprentice

Highly technical industries a trade, business, enterprise, industry or other activity, w/c is engaged inthe application of advanced technology

ART. 59. Qualifications of apprentice . - To qualify as an apprentice, a person shall:

(a) Be at least fourteen (14) years of age; now 15 years old by virtue of RA 7610 as amended by RA7658

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

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

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

(SPECIAL LAW)

1. At least 15 y/o, provided that if below 18 y/o, he shall not be eligible for hazardous occupation;


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2. Physically fit for the occupation in w/c he desires to be trained;

3. Possess vocational aptitude and capacity for the particular occupation as established throughappropriate tests; and

4. Possess the ability to comprehend and follow oral & written instructions.

Note: Total physical fitness is not required of the apprentice-applicant unless it is essential to theexpeditious and effective learning of the occupation.

Only physical defects w/c constitute real impediments to effective performance as determined by theplant apprenticeship committee may disqualify an applicant

ART. 60. Employment of apprentices. - Only employers in the highly technical industries may employapprentices and only inapprenticeable occupations approved by the Secretary of Labor andEmployment. (As amended by Section 1, Executive Order No. 111, December 24, 1986).

-ontraining, more or less formal, to learn the ropes of a skilled job. It is usually the point of entry to theworld of work.

DOLE Policy on Apprenticeship; by virtue of which, theDOLE is required to undertake the review of trades, occupation, and jobs in all sectors of the economyto determine the apprenticeability, after which it shall submit a list of apprenticeable occupations.

an explicit prohibition on employment of children below 15 years of age, although the said lawrecognizes certain exceptions, an apprenticeship is not included in the enumeration.

Qualifications to be met by EER:

1. Only EERS in highly technical industries may employ apprentices; and

2. Only in apprenticeable occupations as determined by the TESDA.

Requisites for a Valid apprenticeship

1. Qualifications of apprentice are met;

2. Apprentice earns not less than 75% of the prescribed minimum salary;

3. Apprenticeship agreemt duly executed & signed;

4. Apprenticeship program must be approved by the TESDA; otherwise the apprentice shall be deemed aregular EE;


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5. Period of apprenticeship shall not exceed 6 months

Note: at the termination of the apprenticeship, the EER is not required to continue the EENT

There is no valid apprenticeship if:

1. The agreemt submitted to the TESDA was made long after the workers started undergoingapprenticeship;

2. The work performed by the apprenticeship was different from those allegedly approved by TESDA;

3. The workers undergoing apprenticeship are already skilled workers;

4. The workers were required to continue undergoing apprenticeship beyond 6mos.

ART. 61. Contents of apprenticeship agreements. - Apprenticeship agreements, including the wagerates of apprentices, shall conform to the rules issued by the Secretary of Labor and Employment. Theperiod of apprenticeship shall not exceed six months. Apprenticeship agreements providing for wagerates below the legal minimum wage, which in no case shall start below 75 percent of the applicableminimum wage, may be entered into only in accordance with apprenticeship programs duly approvedby the Secretary of Labor and Employment. The Department shall develop standard model programs ofapprenticeship. (As amended by Section 1, Executive Order No. 111, December 24, 1986).

1. Full name & address of the contracting parties;

2. Date of birth of the apprentice;

3. Name of trade, occupation or job in w/c the apprentice shall be trained and the dates on w/c suchtraining will begin and will proximately end;

4. Approp number of hrs of OJT w/ compulsory theoretical instruction w/c the apprentice shallundergo during his training;

5. Schedule of the work processes of the trade/occupation in w/c the apprentice shall be trainedand the approx. time to be spent on the job in each process;

6. Graduated scale of wages to be paid to the apprentice;

7. Probationary pd of the apprentice during wc either party ay summarily terminate their agreemt;and

8. A clause that if the EER is unable to fulfill his training oblig, he may transfer the agreemt, w/ theconsent of the apprentice to any other EER who is willing to assume such oblig.

Working Hrs shall not exceed the max number of hrs prescribed by law, if any, for a worker of hisage and sex. Time spent in compulsorily theoretical instruction shall be considered hrs of work. An


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apprentice not otherwise barred by law from working 8hrs may be requested by his EER to workovertime and paid accordingly.

- Nitto Enterprises v. NLRC and R. Capili (G.R. no. 114337) September 29, 1995 - It is mandated thatapprenticeship agreements entered into by an employer and an apprentice shall be entered only inaccordance with the apprenticeship program duly approved by the Minister of Labor and Employment;hence, since the apprenticeship agreement between petitioner and private respondent has no force andeffect in the absence of a valid apprenticeship program duly approved by the DOLE, privaterespondents assertion that he was hired not as an apprentice but as a delivery boy deserves credence.

ART. 62. Signing of apprenticeship agreement. -Every apprenticeship agreement shall be signed by theemployer or his agent, or by an authorized representative of any of the recognized organizations,

associations or groups and by the apprentice.

An apprenticeship agreement with a minor shall be signed in his behalf by his parent or guardian, if thelatter is not available, by an authorized representative of the Department of Labor, and the same shallbe binding during its lifetime.

Every apprenticeship agreement entered into under this Title shall be ratified by the appropriateapprenticeship committees, if any, and a copy thereof shall be furnished both the employer and theapprentice.

Who signs:

1. The apprentice, if of age, otherwise, by his parent or guardian, or in the latters absence, by anauthorized rep of TESDA; and

2. EER or his duly authorized rep

ART. 63. Venue of apprenticeship programs. - Any firm, employer, group or association, industryorganization or civic group wishing to organize an apprenticeship program may choose from any of thefollowing apprenticeship schemes as the training venue for apprentice:

(a) Apprenticeship conducted entirely by and within the sponsoring firm, establishment or entity;

(b) Apprenticeship entirely within a Department of Labor and Employment training center or otherpublic training institution; or

(c) Initial training in trade fundamentals in a training center or other institution with subsequent actualwork participation within the sponsoring firm or entity during the final stage of training.


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ART. 64. Sponsoring of apprenticeship program . - Any of the apprenticeship schemes recognized hereinmay be undertaken or sponsored by a single employer or firm or by a group or association thereof or bya civic organization. Actual training of apprentices may be undertaken:

(a) In the premises of the sponsoring employer in the case of individual apprenticeship programs;

(b) In the premises of one or several designated firms in the case of programs sponsored by a group orassociation of employers or by a civic organization; or

(c) In a Department of Labor and Employment training center or other public training institution.

ART. 65. Investigation of violation of apprenticeship agreement. - Upon complaint of any interestedperson or upon its own initiative, the appropriate agency of the Department of Labor and Employmentor its authorized representative shall investigate any violation of an apprenticeship agreement pursuantto such rules and regulations as may be prescribed by the Secretary of Labor and Employment.

Valid Cause to terminate agreement

1. By the EER:

a. Habitual absenteeism in OJT and related theoretical instructions;

b. Willful disobedience of company rules or insubordination to lawful order of a superior;

c. Poor physical condition, permanent disability or prolonged illness w/c incapacitates theapprentice from working;

d. Theft or malicious destruction of company property and/or equipment

e. Poor efficiency or perf on the job or in the classroom for a prolonged period despite warnings dulygiven to the apprentice; and

f. Engaging in violence or other forms of gross misconduct inside the EERs premises

2. By the apprentice:

a. Substandard or deleterious working conditions w/in the EERs premises;

b. Repeated violations by the EER of the terms of the apprenticeship agreemt;

c. Cruel or inhumane treatment by the EER or his subordinates;

d. Personal problem s/c in the opinion of the apprentice shall prevent him from a satisfactory perf ofhis job; and

e. Bad health or continuing illness.


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ANTONIO M. SERRANO VS. GALLANT MARITIME SERVICES, INC.

FACTS:

Petitioner Antonio Serrano was hired by respondents Gallant Maritime Services, Inc. and MarlowNavigation Co., Inc., under a POEA-approved contract of employment for 12 months, as Chief Officer,with the basic monthly salary of US$1,400, plus $700/month overtime pay, and 7 days paid vacationleave per month.

On the date of his departure, Serrano was constrained to accept a downgraded employment contractupon the assurance and representation of respondents that he would be Chief Officer by the end ofApril 1998.

Respondents did not deliver on their promise to make Serrano Chief Officer. Hence, Serrano refused tostay on as second Officer and was repatriated to the Philippines, serving only two months and 7 days,leaving an unexpired portion of nine months and twenty-three days.

Upon complaint filed by Serrano before the Labor Arbiter (LA), the dismissal was declared illegal.

On appeal, the NLRC modified the LA decision based on the provision of RA 8042. Serrano filed a Motionfor Partial Reconsideration, but this time he questioned the constitutionality of the last clause in the 5thparagraph of Section 10 of RA 8042.

ISSUES:

1. Whether or not the subject clause violates Section 10, Article III of the Constitution on non-impairment of contracts;

2. Whether or not the subject clause violate Section 1, Article III of the Constitution, and Section 18,Article II and Section 3, Article XIII on labor as a protected sector.

HELD:

On the first issue.

The answer is in the negative. Petitioners claim that the subject clause unduly interferes with thestipulations in his contract on the term of his employment and the fixed salary package he will receive isnot tenable.

The subject clause may not be declared unconstitutional on the ground that it impinges on theimpairment clause, for the law was enacted in the exercise of the police power of the State to regulate abusiness, profession or calling, particularly the recruitment and deployment of OFWs, with the nobleend in view of ensuring respect for the dignity and well-being of OFWs wherever they may be employed.

On the second issue.

The answer is in the affirmative.


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US$300.00 and 2 bottles of black label without any receipt issued by the appellant. Four days after theirmeeting, a telephone company called her because her number was appearing in appellants cell phonedocuments. The caller is trying to locate him as he was a swindler. She became suspicious and toldBamba about the matter. One week before her scheduled flight, appellant told her he could not meetthem because his mother passed away.

Lastly, Alma Singh, who is also a registered nurse, declared that she first met the appellant at SM NorthEdsa when Imelda Bamba introduced the latter to her. Appellant told her that he is an undercover agentof FBI and he could fix her US visa. On their next meeting, she gave all the pertinent documents.Thereafter, she gave P10,000 to the appellant covering half price of her plane ticket. They paged theappellant through his beeper to set up another appointment but the appellant avoided them as he hadmany things to do.

The accused Jamilosa testified on direct examination that he never told Bamba that he could get her a job in USA, the truth being that she wanted to leave SM as company nurse because she was having aproblem thereat. Bamba called him several times, seeking advices from him. He started courting Bambaand went out dating until latter became his girlfriend. He met Lagman and Singh thru Bamba. Ascomplainants seeking advice on how to apply for jobs abroad, lest he be charged as a recruiter, he madeBamba, Lagman and Singh sign separate certifications, all to effect that he never recruited them and nomoney was involved. Bamba filed an illegal recruitment case against him because they quarreled andseparated.

RTC rendered judgment finding accused guilty beyond reasonable doubt of illegal recruitment

labstand 1-94 concept

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