Social Justice – Social Justice is neither communism, nor despotism, nor atomism nor anarchy, but the humanization of laws and the equalization of social and economic forces by the State so that justice in its rational and objectively secular conception may at least be approximated. Social justice means the promotion of the welfare of the people, the adoption by the government of measures calculated to ensure economic stability of all the component elements of the society through the maintenance of proper economic and social equilibrium In the interrelations of the members of the community, constitutionally, through the adoption of measures legally justifiable, or extra-constitutionally, through the exercise of powers underlying the existence of all governments, on the time-honored principle of salus populi est suprema lex (Calalang vs Williams)

ARTICLE 4

Art. 4. Construction in Favor of Labor. – All doubts in the implementation and interpretation of the provisions of this Code, including its implementing rules and regulations, shall be resolved in favor of labor.

It is in keeping with the constitutional mandate of promoting social justice and affording protection to laborRelated Civil Code ProvisionsArt. 10 – In case of doubt in the interpretation or application of laws, it is presumed that the law-making body intended right and justice to prevail.At. 1702 – In case of doubt, all labor legislation and all labor contracts shall be construed in favor of the safety and decent living of the laborer.Those who have less in life should have more in law.This rule of interpretation and construction in favor of labor does not mean that the capital should, at all times, be at the losing end of controversy.The Philippine Constitution, while inexorably committed towards the protection of the working class from exploitation and unfair treatment, nevertheless mandates the policy of social justice so as to strike balance between an avowed predilection for labor, on one hand, and the maintenance of the legal rights of the capital, on the other.Contracts which are not ambiguous are to be interpreted according to their literal meaning and not beyond their obvious intendment.

Rules and Regulations

Art. 5. Rules and regulations. The Department of Labor and other government agencies charged with the administration and enforcement of this Code or any of its parts shall promulgate the necessary implementing rules and regulations. Such

rules and regulations shall become effective fifteen (15) days after announcement of their adoption in newspapers of general circulation.

*It has been ruled that administrative regulations and policies enacted by administrative bodies to interpret the law which they are entrusted to enforce have the force of law, and are entitled to great respect.

QUASI-LEGISLATIVE POWER

This article vests the DOLE with RULE-MAKING POWERS in the enforcement thereof. However, a rule or regulation promulgated by an administrative body, such as the Department of Labor, to implement a law, in excess of its rule-making authority is VOID. An administrative interpretation which takes away a benefit granted in the law is utra vires, that is beyond one’s power.

ARTICLLE 6 : APPLICABILITY

GENERAL RULE : The Code applies to all workers, whether agricultural or non-agricultural, including employees in the a government corporation incorporated in the Corporation Code.

EXECEPTIONS:

Government Employees;Employees of the government corporations created by special or original charter;Foreign governments;Local Water districts;International Agencies and employees of intergovernmental organization;Corporate Officers/ Intra-corporate disputes which fall under P.D. No. 902-A and now fall under the jurisdiction of the Regular Courts pursuant to Securities Regulation Code

Employer ‐ Any person, natural or juridical, domestic or foreign, who carries on it the Philippines any trade, business, industry, undertaking or activity of any kind and uses the services of another person who is under his orders as regards the employment, except the Government and any of its political subdivisions, branches or instrumentalities, including corporations owned or controlled by the Government: Provided, That a self‐employed person shall be both employee and employer at the same time. (RA 8282, Sec. 8c)

Employee ‐ Any person who performs services for an employer in which either or both mental and physical efforts are used

and who receives compensation for such services, where there is an employer‐employee relationship: Provided, That a self‐employed person shall be both employee and employer at the same time. (RA 8282, Sec. 8d)

What is the 4-fold test of employee-employer relationship?

Selection and engagement of the employee;Payment of wages or salaries;Exercise of the power of dismissal;Exercise of the power to control the employee’s conduct. (Control Test)

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

It must be noted that the control test is the controlling test, meaning, the employer controls or has the right to control not only as to the result of the work to be done but also as t the means and methods by which the same is to be accomplished.

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

Rule to establish employee-employer relationship

It is not necessary that a written contract be secured for the creation and validity of employee-employer relationship, an oral contract may also serve the purpose.

The case of the Kasambahay is an exception to the rule wherein it is required that the contract of employment must be in writing.

Other Tests

Two-tiered approachEconomic dependence or economic reality test

1. Two-tiered Approach

The putative employer’s power to control employee with respect to the means and methods by which the work is to be accomplished; andThe underlying economic realities of the activity or relationship.

2. Economic Dependence or Economic Reality Test

Refers to whether the worker is dependent on the alleged employer for his continued employment in that line of business.

Existence of Employment Relationship

The Existence of an employee-employer relationship is determined by law; it cannot be negated simply by repudiating it in the

management or employment contract. It cannot be held that the worker is an “independent contractor” when the terms of the agreement clearly show otherwise. (Acuzena, 2014, p. 164)

Kinds of Employment

Regular employees referring to those who have been “engaged to perform activities which are usually necessary or desirable in the usual business or trade of the employer”;Project employees referring to those “whose employment has been fixed for a specific project or undertaking, the completion or termination of which has been determined at the time of the engagement of the employee”;Seasonal employees referring to those who work or perform services which are seasonal in nature, and the employment is for the duration of the season;Casual employees referring to those who are not regular, project, or seasonal employees;Fixed-term employees whose term is freely and voluntarily determined by the employer and the employee.

Regular EmploymentMay be attained in either of three ways, namelyBy nature of work. – The employment is deemed regular when the employee has been engaged to perform activities which are usually necessary or desirable in the usual business or trade of the employer.By period of service. – The employment is reckoned as regular when the employee has rendered at least one (1) year of service, whether such service is continuous or broken, with respect to the activity in which he is employed and his employment shall continue while such activity exist.By probationary employment. – The employment is considered regular when the employee is allowed to work after the probationary period.

Project EmploymentLitmus Test – is whether or not the project employees were assigned to carry out specific project or undertaking, the duration and scope of which were specified at the time the employees were engaged for that project.A true project employee should be assigned to a project which begins and ends at determined or determinable times and be informed thereof at the time of hiring.

Seasonal EmploymentA seasonal employee can become a regular seasonal employee provided that the following requisites are complied with:

The seasonal employee should perform work or services that are seasonal in nature; andThey must have also been employed for more than one (1) year.

Casual EmploymentThe most important distinction is that the work or job for which he was hired is merely incidental to the principal business of the employer and such work or job is for a definite period made known o the employee at the time of engagement.Casual employees become regular after one year of service by operation of law. The one (1) year period should be reckoned from the hiring date. Repeated rehiring of a casual employee makes him a regular employee.

Fixed-term EmploymentRequisites for a valid fixed-term employment:The fixed period of employment was knowingly and voluntarily agreed upon by the parties, without any force, duress or improper pressure being brought to bear upon the employee and absent any other circumstances vitiating his consent; orIt satisfactorily appears that the employer and employee dealt with each other on more or less equal terms with no moral dominance whatever being exercised by the former on the latter.

Note: The practice of hiring of employees on a uniformly fixed 5-month basis and replacing them upon the expiration of their contracts with other workers with the same employment status circumvents their right to security of tenure.

Cases Where Employee-Employer Relationship Exists

Jeepney drivers on boundary basis (Villamaria v. CA, GR 165881, April 19, 2006)Drivers or helpers of salesmen are employees of the company (Alhambra Industries v. CIR, GR L-15984, October 30, 1970)Employees of unregistered association (Orlando Farm Growers v. NLRC, GR 129076, November 25, 1998)Street-hired kargador (Caurdanetaan Piece Workers Union v. Laguesma, GR 113542, February 24, 1998)Workers in movie projects (Maraguinot v. NLRC, GR 120969, January 22, 1998)Salaried insurance agents as distinguished from registered agents on commission basis (Great Pacific Life Assurance Corp. v. Judico, GR 73887, December 21, 1989)Tailors, seamstresses, servers, basters, pantsadoras paid on piece-rate basis (Makati Haberdashery v. NLRC, GR 83380-83, November 15, 1989)In-house lawyer as distinguished from an outside retainer (Hydro Resources

Contractors Corp. v. Pagalilauan, GR L-62909, April 18, 1989)Resident physicians ( IRR LC Book III, Rule X, Sec. 15)University professors and instructors ( FEU v. CIR, GR L-17620, August 31, 1962)Taxi driver, barber (Citizen League of Free Workers v. Abbas, GR L-21212, September 23, 1966)Security guard with respect to the Security Agency (Agro Commercial Services Agency, Inc. v. NLRC, GR 82823, July 31, 1989)

Case where the is no Employee-Employer Relationship

Farm workers are not employees of the sugar central (Victoria Milling Co., Inc. v. NLRC, GR 116347, October 3, 1996)Caddies are not employees of the golf club (Manila Golf & Country Club v. IAC, GR 64948, September 27, 1998)Working scholars are not employees of the school (Filamer Christian Institute v. IAC, GR 75112), August 17, 1992)Collecting agents on commission basis (Singer Sewing Machine Company v. Drilon, GR 91116, January 24, 1991)Shoe shine boy (Besa v. Trajano, GR 72409, December 29, 1986)Independent contractor selling soft drinks (Mafinco Trading Corp. v. Ople, GR L-37790, March 25, 1976Commission salesman (Abante, Jr. v. Lammadrid Bearing & Parts Corporation, GR 159890, May 28, 2004)

Dismissal from Employment

Exercise of the two-fold due process requirement:

Substantive aspect which means that the dismissal must be for any of the (1) just cause provided under Article 282 of the Labor Code or the company rules and regulations promulgated by the employer; or (2) authorized causes under Articles 283 and 284 thereof; andProcedural aspect which means that the employee must be accorded due process, the elements of which are notice and opportunity to be heard and to defend himself.

A dismissal based on just cause means that the employee has committed a wrongful act or omission; while a dismissal based on authorized cause means that there exist a ground which the law itself allows or authorizes to be invoked to justify the termination of an employee even if he has not committed any wrongful act or omission such as installation of labor-saving devices, redundancy, retrenchment, closure or cessation of business operation or disease.

Just Causes mentioned in the Labor Code

ART. 282. Termination by employer. - An employer may terminate an employment for any of the following causes:

Serious misconduct or willful disobedience by the employee of the lawful orders of his employer or representative in connection with his work;Gross and habitual neglect by the employee of his duties;Fraud or willful breach by the employee of the trust reposed in him by his employer or duly authorized representative;Commission of a crime or offense by the employee against the person of his employer or any immediate member of his family or his duly authorized representatives; andOther causes analogous to the foregoing.

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

Union officers who knowingly participate in an illegal strike and therefore deemed to have lost their employment status.Any employee, union officer or ordinary member who knowingly participates in the commission of illegal acts during a strike (irrespective of whether the strike is legal or illegal), is deemed to have lost his employment status.

ART. 263(g). (National Interest Cases) where strikers who violate orders, prohibitions and/or injunctions as are issued by the DOLE Secretary or the NLRC, may be imposed immediate disciplinary action, including dismissal or loss of employment status.

ART. 248(e). (Union Security Clause) where violation of the union security agreement in the CBA may result in termination of employment. Under this clause, the bargaining union can demand from the employer the dismissal of an employee who commits a breach of union security arrangement, such as failure to join the union or to maintain his membership in good standing therein. The same union can also demand the dismissal of a member who commits an act of disloyalty against it, such as when the member organizes a rival union.

Just Cause under Jurisprudence

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

Violation of company rules and regulationsTheft of property owned by a co-employee as distinguished from company-owned property which is considered serious misconductIncompetence, inefficiency or ineptitudeFailure to attain work quotaFailure to comply with weight standards of employerAttitude problem

Other Analogous Causes

The following may be cited as analogous causes:

Violation of company rules and regulationsTheft of property owned by a co-employee, as distinguished from theft owned by the employer.Incompetence, inefficiency or ineptitudeFailure to attain work quotaFailure to comply with weight standards of employer“Attitude problem” is analogous to loss of trust and confidence.

Authorized Causes

Two classes, namely:

Business-related causes – Referring to the grounds specifically mentioned in Article 283, to wit:Installation of labor-saving device;Redundancy;Retrench;Closure or cessation of business operation NOT due to serious business losses or financial reverses;Closure or cessation of business operation due to serious losses and financial reverses.Health-related causes – referring to disease covered by Article 284 of the Labor Code.

Requisites applicable to the authorized causes under Article 283

There is good faith in effecting the termination;The termination is a matter of last resort, there being no other option available to the employer after resorting to cost-cutting measures;Two (2) separate notices are served on both the affected employees and the DOLE at least one (1) month prior to the intended date of termination;Separation pay is paid to the affected employees, to wit:If based on (1) installation of labor-saving device, or (2) redundancy. One (1) month pay or at least one (1) month pay for every year of service, whichever is higher, a fraction of at least six (6) months shall be considered as one (1) whole year.If based on (1) retrenchment, or (2) closure NOT due to serious business losses or financial reverses. One (1) month pay or at least one-half pay for every year of service, whichever is higher, a fraction of at least six (6) months shall be considered as one (1) whole year.If closure is due to serious business losses of financial reverses, NO separation pay is required to be paid.In case the CBA or company policy provides for a higher separation pay, the same must be followed instead of the one provided in Article 283.Fair and reasonable criteria in ascertaining what position are to be affected by the

termination, such as, but not limited to: nature of work; status of employment (whether casual, temporary or regular); experience; efficiency; seniority; dependability; adaptability; flexibility; trainability; job preference; discipline; and attitude towards work. Failure to follow fair and reasonable criteria in selecting who to terminate would render the termination invalid.

Due Process

Twin-Notice RequirementHearing; Meaning of Opportunity to be Heard

Due process means compliance with both STATUTORY due process and CONTRACTUAL due process. CONSTITUTIONAL due process is NOT applicable.

Statutory due process refers to the one prescribed in the Labor Code (Article 277(b)); while contractual due process refers to the one prescribed in the Company Rules and Regulations.

Twin-Notice Requirement

Service of first written noticeContain the specific causes or grounds for termination against him;Contain a directive that the employee is given the opportunity to submit his written explanation within the reasonable period of FIVE CALENDAR DAYS from receipt of the notice:To enable him to prepare adequately for his defense;To study the accusation against him;To consult a union official or lawyer;To gather data and evidence; andTo decide on the defense he will raise against the complainant.Contain a detailed narration of the facts and circumstances that will serve as basis for the charge against the employee. This is required in order to enable him to intelligently prepare his explanation and defenses. A general description of the charge will not suffice.Specifically mention which company rules, if any, are violated and/or which among the grounds under Article 282 is being charged against the employee.

Conduct of hearing

The employer should schedule and conduct a hearing or conference wherein the employee will be given the opportunity to:

Explain and clarify his defenses to the charge/s against him;Present evidence in support of his defenses; andRebut the evidence presented against him by the management.

The employee may defend himself personally, with the assistance of a representative or counsel of his choice. Moreover, this conference or hearing could

be used by the parties as an opportunity to come to an amicable settlement.

Perez Doctrine

This is the new guiding principle on the hearing requirement. It has interpreted that the term “ample opportunity to be heard” as follows:

“ample opportunity to be heard” mans any meaningful opportunity (verbal or written) given to the employee to answer the charges against him and submit evidence in support of his defense, whether in a hearing, conference or some other fair, just and reasonable way.A formal hearing or conference is no longer mandatory. It becomes mandatory only under and of the following circumstances:When requested by employee in writing;When substantial evidentiary disputes exist;When a company rule or practice requires it;When similar circumstances justify it.The “ample opportunity to be heard” standard in the Labor Code prevails over the “hearing or conference” requirement in its Implementing Rules and Regulations. Service of the of second written noticeAfter determining that termination of employment is justified, the employer shall serve the employees a written notice of termination indicating that:All circumstances involving the charge/s against the employee have been considered; andGrounds have been established to justify the severance of his employment.

The Seven (7) Standard Situations in Termination Cases

The rules on termination of employment in the Labor Code and pertinent jurisprudence are applicable to the seven (7) different situations, namely:

1. The dismissal was for a just cause under Article 282, for an authorized cause under Article 283, or for health reasons under Article 284, and due process was observed. – this termination is LEGAL

2. The dismissal was without a just or authorized cause but due process was observed. – this termination is ILLEGAL

3. The dismissal was without a just or authorized cause and due process was not observed. – This termination is ILLEGAL

4. The dismissal was for a just or authorized cause but the due process was not observed. – this termination is LEGAL

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

6. The dismissal was not supported by any evidence of termination – this termination is NEITHER LEGAL NOR ILLEGAL as there is no dismissal to

speak of. Reinstatement is ordered not as a relief for illegal dismissal but on equitable ground.

7. The dismissal was brought about by the implementation of a law. This termination is LEGAL.

Reliefs for Illegal Dismissal

Under Article 279 of the Labor Code:

1. Reinstatement without loss of seniority rights and other privileges;

2. Full backwages, inclusive of allowances; and

3. Other benefits or their monetary equivalent.

Other Reliefs Not Found in Article 279 But Awarded in Illegal Dismissal Cases

1. Award of separation pay in lieu of reinstatement

2. Award of penalty in the form of nominal damages in case of termination due to just or authorized cause but without observance of procedural due process.

3. Reliefs to illegally dismissed employee whose employment is for a fixed period. The proper relief is only the payment of the employee’s salaries corresponding to the unexpired portion of the employment contract.

4. Award of damages and attorney’s fees.

5. Award of financial assistance in cases where the employee’s dismissal is declared legal but because of long years of service, and other considerations, financial assistance is awarded.

6. Imposition of legal interest on separation pay, backwages and other monetary awards.

APPRENTICESHIP

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, workers and government and non-government agencies; and

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

ART. 58. Definition of Terms.

APPRENTICESHIP – a practical training on the job supplemented by related theoretical instruction, for a highly skilled or technical occupation for a period of not less than 3 months but not more than 6 months.

APPRENTICE – a person undergoing training for an approved apprenticeable occupation during an

established period assured by an apprenticeship agreement.

APPRENTICEABLE OCCUPATION – an occupation officially endorsed by a tripartite body and approved for apprenticeship by the TESDA.

APPRENTICESHIP AGREEMENT – an employment contract wherein the employer binds himself to train the apprentice and the apprentice in turn accepts the terms of training.

ON-THE-JOB TRAINING – a practical work experience through actual participation in productive activities given to or acquired by an apprentice.

HIGHLY TECHNICAL INDUSTRIES – those trade, business, enterprise, industry or other activity which are engaged in the application of advanced technology.

ART. 59. Qualifications of apprentice.

1. At least 15 years of age (as amended by R.A. 7610, Section 12) provided that if below 18 years, he shall not be eligible for hazardous occupation;

2. Physically fit for the occupation in which he desires to be trained;

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

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

ART. 60. Employment of apprentices.

Qualifications to be met by employer:

1. Only employers 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 agreement duly

executed and signed;4. Apprenticeship agreement must be

approved by the TESDA; otherwise apprentice shall be deemed a regular employee; and

5. Period of apprenticeship shall not exceed 6 months. At the termination of the

apprenticeship, the employer is not required to continue the employment.

Number of Apprentices to be Taken in by Companies

- Only up to a maximum number of 20% of its total regular workforce.

There is no valid apprenticeship if:

1. The agreement submitted to the TESDA was made long after the workers started undergoing apprenticeship;

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

3. The workers undergoing apprenticeship are already skilled workers;

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

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

Working hours of apprentices

- Shall not exceed the maximum number of hours prescribed by law, if any, for a worker of his age and sex.

- An apprentice not otherwise barred by law from working 8 hours may be requested by his employer to work overtime and paid accordingly.

ART. 62. Signing of apprenticeship agreement. - Every apprenticeship agreement shall be signed by the employer 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 the latter is not available, by an authorized representative of the Department of Labor, and the same shall be binding during its lifetime.

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

Defective Contract

- If the agreement is found to be defective and serious damage would be sustained by either party if such defect is not corrected, the DOLE-

TESDA shall advise the employer within 5 working days not to implement the agreement pending amendment thereof.

ART. 63. Venue of apprenticeship programs. - Any firm, employer, group or association, industry organization or civic group wishing to organize an apprenticeship program may choose from any of the following 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 other public training institution; or

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

ART. 64. Sponsoring of apprenticeship program. - Any of the apprenticeship schemes recognized herein may be undertaken or sponsored by a single employer or firm or by a group or association thereof or by a 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 or association of employers or by a civic organization; or

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

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

ART. 66. Appeal to the Secretary of Labor and Employment. - The decision of the authorized agency of the Department ofLabor and Employment may be appealed by any aggrieved person to the Secretary of Labor and Employment within five (5) days from receipt of the decision. The decision of the Secretary of Labor and Employment shall be final andexecutory.

ART. 67. Exhaustion of administrative remedies. - No person shall institute any action for the enforcement of any apprenticeship agreement or damages for breach of any such agreement, unless he has exhausted all available administrative remedies.

ART. 68. Aptitude testing of applicants. - Consonant with the minimum qualifications of apprentice-applicants required under this Chapter, employers or entities with duly recognized apprenticeship programs shall have primary responsibility for providing appropriate aptitude tests in the selection of apprentices. If they do not have adequate facilities for the purpose, the Department of Labor and Employment shall perform the service free of charge.

ART. 69. Responsibility for theoretical instruction. - Supplementary theoretical instruction to apprentices in cases where the program is undertaken in the plant may be done by the employer. If the latter is not prepared to assume the responsibility, the same may be delegated to an appropriate government agency.

ART. 70. Voluntary organization of apprenticeship programs; exemptions. - (a) The organization of apprenticeship program shall be primarily a voluntary undertaking by employers;

(b) When national security or particular requirements of economic development so demand, the President of the Philippines may require compulsory training of apprentices in certain trades, occupations, jobs or employment levels where shortage of trained manpower is deemed critical as determined by the Secretary of Labor and Employment. Appropriate rules in this connection shall be promulgated by the Secretary ofLabor and Employment as the need arises; and

(c) Where services of foreign technicians are utilized by private companies in apprenticeable trades, said companies are required to set up appropriate apprenticeship programs.

ART. 71. Deductibility of training costs. - An additional deduction from taxable income of one-half (1/2) of the value oflabor training expenses incurred for developing the productivity and efficiency of apprentices shall be granted to the person or enterprise organizing an apprenticeship program: Provided, That such program is duly recognized by the Department ofLabor and Employment: Provided, further, That such deduction shall not exceed ten (10%) percent of direct labor wage: and Provided, finally, That the person or enterprise who wishes to avail himself or itself of this incentive should pay his apprentices the minimum wage.

ART. 72. Apprentices without compensation. - The Secretary ofLabor and Employment may authorize the hiring of apprentices without compensation whose training on the job is required by the school or training program curriculum or as requisite for graduation or board examination.

……………………….

DEPARTMENT ORDER NO. 68-04 Series of 2004

GUIDELINES IN THE IMPLEMENTATION OF THE KASANAYAN AT HANAPBUHAY PROGRAM

(An Apprenticeship and Employment Program)

Objective

1. Provide opportunity for new entrants to the labor force to acquire experience and skills; generate commitment from enterprises in developing the skills of the Filipino workforce; and

2. Facilitate the absorption of apprentices into the regular workforce after their apprenticeship.

Apprentice – a person undergoing training for an approved apprenticeable occupation during an established period and covered by an apprenticeship agreement.

Who may apply to be an apprentice?

Any unemployed person 15 years old and above may apply for apprenticeship with any participating enterprise. The apprentices shall furnish the following requirements:

a. Forge an Apprenticeship Agreement with the participating enterprise;

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

c. Abide with the stipulations in the Apprenticeship Agreement.

Additional requirements (PESO registration):

a. Register at the PESO using the CNMRS Form;

b. Submit to PESO the accomplished CNMRS form in two (2) copies;

c. Report to the enterprise for screening, if referred by the PESO; and

d. Inform the PESO on the result of the application.

What is the duration of the Apprenticeship period?

The apprenticeship period shall not be less than four (4) months but not more than six (6) months. However, the participating employer has the option to hire the apprentice even prior to the completion of the apprenticeship period.

What are the apprentices entitled to?

1. Apprentices shall be entitled to receive a wage not less than 75 percent of the prevailing minimum wage and benefits such as social security and health benefits, and overtime pay.

2. An apprentice can work overtime provided there are no regular

workers to do the job and the time spent on overtime work is duly credited to his training hours.

Apprenticeship – training within employment involving a contract between an apprentice and an enterprise on an apprenticeable occupation.

Apprenticeable Occupation – an occupation officially approved for apprenticeship by TESDA.

Apprenticeship Agreement – a contract wherein a prospective enterprise binds himself to train the apprentice who, in turn, accepts the terms of training for a recognized apprenticeable occupation emphasizing the rights, duties and responsibilities of each party. No apprenticeship training will commence until an Apprenticeship Agreement has been forged between an enterprise and an apprentice.

Enterprise – a participating establishment that directly engages an apprentice based on an approved Apprenticeship Program.

Training Certificate – a document issued by the participating enterprise to an apprentice who completes the apprenticeship period.

Letter of Application – a letter signifying the intentions of the enterprise to register in the Apprenticeship Program.

Certificate of Registration – a document issued by TESDA granting an authority to a participating enterprise to offer the program in a particular occupation.

Who may apply for Certificate of Registration?

Any enterprise duly registered with the appropriate government authorities with ten (10) or more regular workers is qualified to join the program. The number of apprentices for each participating enterprise shall not be more than 20 percent of its total regular workforce.

The enterprise shall register its apprenticeship program with any of the TESDA Provincial Offices. It shall submit the following:

1. Letter of Application; 2. Certification that the number of

apprentices to be hired is not more than 20 percent of the total regular workforce; and

3. Skills Training Outline. (No enterprise shall be allowed to hire apprentices unless its apprenticeship program is registered and approved by TESDA.)

What are the incentives given to participating enterprises?

1. Payment of 75% of the prevailing minimum wage to apprentices;“OR”

2. An additional deduction from taxable income of one-half (1/2) of the value of labor training expenses incurred for developing the productivity and efficiency of apprentices shall be granted to the person or enterprise organizing an apprenticeship program: Provided, however, that such deduction shall not exceed ten (10%) percent of direct labor wage; and, that the person or enterprise who wishes to avail himself or itself of this incentive should pay his apprentices the minimum wage. (As provided for under Book II, Title II, Chapter I, Article 71 of the Labor Code)

What are the Duties of the Enterprises?

a. Forge an Apprenticeship Agreement with qualified apprentice(s);

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

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

apprentices who successfully complete the program and pass the assessment;

e. Pay the apprentices their allowable wage and other social security and health benefits; and

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

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

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

a) Formulate guidelines on the implementation of the program;

b) Develop information materials; c) Conduct briefing, training and

orientation for DOLE and TESDA Regional and Provincial Offices;

d) Initially, assist DOLE and TESDA RO/PO with the advocacy of the program; and

e) Monitor and evaluate program implementation and recommend measures to improve, strengthen and sustain the program.

TESDA-OA shall:

a. Facilitate the approval of new apprenticeable occupations; and

b. Build and maintain a Kasanayan at Hanapbuhay Registry of Enterprises in coordination with TESDA – Planning Office (PO).

TESDA Regional/ Provincial Office

a. Conduct promotion and advocacy of the program in coordination with DOLE Regional Offices;

b. Identify prospective enterprises in coordination with DOLE Regional Offices;

c. Evaluate and approve programs of participating enterprises;

d. Issue Certificate of Registration to participating enterprises;

e. Provide list of registered enterprises with corresponding skills for apprenticeship to DOLE Regional/ Provincial Offices;

f. Assist enterprises in the development of competency assessment instrument;

g. Administer competency assessment to apprentices, whenever applicable and issue Certificate of Competency;

h. Submit enrollment and terminal reports to OA, copy furnished DOLE Regional/ Provincial Office; and In cases where there is no presence of DOLE in the province, TESDA Provincial Office shall assist the applicant-apprentice.

BLE shall:

a. Build and maintain the Kasanayan at Hanapbuhay Manpower Registry in the Phil-JobNet as part of the Computerized National Manpower Registry of Skills (CNMRS)

DOLE Regional Offices (DOLE-RO):

b. Conduct promotion and advocacy of the program in coordination with TESDA Regional Office;

c. Provide technical supervision and assistance to PESO in the implementation of the program;

d. Maintain a separate database for the Kasanayan at Hanapbuhay Manpower Registry in the region;

e. Identify prospective enterprises in coordination with TESDA RO; and

f. Submit reports on registered and referred applicants to BLE, copy furnished TESDA Regional/Provincial Office.

Public Employment Service Office (PESO)

a. Receive application, register, match and refer applicant-apprentice to participating enterprises and submit to DOLE-RO duplicate copy;

b. Facilitate absorption of an apprentice-graduate into regular employment;

c. Submit required reports on applicants registered to the DOLE Regional/Provincial Office;

d. Assist the DOLE and TESDA RO/PO in the conduct of promotion, and advocacy of the program;and

e. Assist the DOLE and TESDA RO/PO in the identification of prospective enterprises.

………………..

Tesda Act of 1994

Section 3(j) – “Apprenticeship” training within employment with compulsory related theoretical instructions involving a contract between an apprentice and an employer on an approved apprenticeable occupation.

Section 3(l) - “Apprenticeship Agreement” is a contract wherein a prospective employer binds himself to train the apprentice who in turn accepts the terms of training for a recognized apprenticeable occupation emphasizing the rights, duties and responsibilities of each party.

Section 3(n) – “Learners” refer to persons hired as trainees in semi-skilled and other industrial occupations which are non-apprenticeable. Learnership programs must be approved by the Authority.

Section 14(f) – Creation of the Office of Apprenticeship which has the following functions:1. to provide direction, policies and

guidelines on the implementation of the Apprenticeship system;

2. to accredit, coordinate, monitor and evaluate all apprenticeship schemes and program implemented by various institutions and enterprises;

3. to establish a network of institutions and enterprises conducting apprenticeship schemes and programs;

4. to perform such other powers and functions as may be authorized.

SECTION 18. Transfer of the Apprenticeship Program. — The Apprenticeship Program of the Bureau of Local Employment of the Department of Labor and Employment shall be transferred to the Authority which shall implement and administer said program in accordance with existing laws, rules and regulations.

SECTION 23. Administration of Training Programs. — The Authority shall design and administer training programs and schemes that will develop the capabilities of public and private institutions to provide quality and cost-effective technical educational and skills development and related opportunities. Such training programs and schemes shall include teacher’s trainers’ training, skills training for entrepreneur development and technology development, cost-effective training in occupational trades and related fields of employment, and value development as an integral component of all skills training programs.……………………

Learners Art. 73-77

Learners Art 73

persons hired as trainees in semi-skilled and other industrial occupations

non-apprenticeable

may be learned through practical training on the job in a relatively short period of time

shall not exceed three (3) months.

Prerequisites before learners may be validly employed or hired (Article 74)

no experienced workers are available

the employment of learners is necessary to prevent curtailment of employment opportunities, and

the employment does not create unfair competition in terms of labor costs or impair or lower working standards.

Art. 75.Learnership agreement.

Employment and training contract entered into between the employer and the learner

subject to inspection by the Secretary of Labor and Employment or his duly authorized representative

Learnership agreement shall include:

1. The names and addresses of the learners;

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

3. The wages or salary rates of the learners which shall begin at not less than seventy-five percent (75%) of the applicable minimum wage; and

4. A commitment to employ the learners if they so desire, as regular employees upon completion of the learnership.

Learners deemed regular employees

allowed or suffered to work during the first two (2) months

if training is terminated by the employer before the end of the stipulated period

without fault of the learners.

Parties to a learnership agreement:

employer or his duly authorized agent

learner

Employer shall furnish a copy of learnership agreement within 5 working dsays following its execution by the parties, to the following:

learner

TESDA

Apprenticeship Division of the appropriate Regional Office

Employment of minors as Learners:

Below 15 years- not allowed

Below 18 yrs- only in non hazardous occupation

When does the employer or enterprise hasd an obligation to hire the learners as employee?

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

Basis: Art 75 LCP

where it is required that the employer make a commitment to employ the learners if they so desire, as regular employees upon completion of the learnership.

All learners who have been allowed or suffered to work during the first two (2) months shall be deemed regular employees if training is terminated by the employer before the end of the stipulated period through no fault of the learners.

.*OJT or practical training of a learner need NOT be supplemented by THEORETICAL INSTRUCTION

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

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

*Overtime pay-

Learners can work OT

When no regular workers to do the job

Time spent on OT work is duly credited to his training hrs

Incentives to companyparticipating in the Learnership Programs:

Entitled to and additional deduction from taxable income ½ the value of the training expenses incurred for developing the productivity and efficiency of learners

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

Enterprise which wishes to avail such incetive should pay the learners the minimum wage

Who may cancel Learnership program?

Secretary of Labor and Employment

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

Learners in piecework Article 76

Learners employed:

during the training period

shall be paid in full for the work done.

Art. 77. Penalty clause.

Any violation of this Chapter or its implementing rules and regulations

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

It refers t o Art 288 LCP

Art. 288. Penalties. Except as otherwise provided in this Code, or unless the acts complained of hinge on a question of interpretation or implementation of ambiguous provisions of an existing collective bargaining agreement, any violation of the provisions of this Code declared to be unlawful or penal in nature shall be punished with a fine of not less than One Thousand Pesos (P1,000.00) nor more than Ten Thousand Pesos (P10,000.00) or imprisonment of not less than three months nor more than three years, or both such fine and imprisonment at the discretion of the court.

In addition to such penalty, any alien found guilty shall be summarily deported upon completion of service of sentence.

Any provision of law to the contrary notwithstanding, any criminal offense punished in this Code, shall be under the concurrent jurisdiction of the Municipal or City Courts and the Courts of First Instance. (As amended by Section 3, Batas Pambansa Bilang 70)

………………………..RA 7277: MAGNA CARTA FOR DISABLED PERSONS

Disabled persons are those suffering from restriction or different abilities, as a result of a mental, physical or sensory impairment, to perform an activity in the manner or within the range considered normal for human being

Chapter I: Employment

Sec. 5 Equal Opportunity for Employment.A qualified disabled employee shall be subject to the same terms and conditions of employment and the same compensation, privileges, benefits, fringe benefits, incentives or allowances as qualified able bodied person. (Sec. 5, p.1)

Sec. 7. Apprenticeship

Subject to the provisions of the Labor Code as amended,

disabled persons shall be eligible as apprentices or learners: Provided, That theirhandicap is not as much as to effectively impede the performance of job operations inthe particular occupation for which they are hired; Provided, further, That after thelapse of the period of apprenticeship, if found satisfactory in the job performance, theyshall be eligible for employment.

Sec. 8. Incentives for Employers

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

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

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

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

Topic # 12 Pre-employment

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

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 possible

terms and conditions of employment;

c. To facilitate a free choice of available employment by persons seeking work in conformity with the

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 work

permit system;

f. To strengthen the network of public employment offices and rationalize the participation of the

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

development objectives;

g. To insure careful selection of Filipino workers for overseas employment in order to protect the good

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 Executive branch of the govt in the field of labor and employment

Its Primary responsibilities:

1. The promotion of gainful employment opportunities and the optimization of the devt & utilization of the country’s manpower resources;

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

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

Art. 13. Definitions.

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

canvassing, enlisting, transporting, contracting, utilizing, hiring or procuring workers,

and includes: [CRAP]

contract services, referrals, advertising or promising

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 persons shall be deemed engaged in recruitment and placement.

Notes:

1.Recruitment includes the act of referral or the “act of passing along or forwarding of an applicant for employment after an initial interview of a selected applicant for employment to a selected employer, placement officer or bureau (Rodolfo v. PP)

2.The number of persons dealt with is not an essential ingredient of the act of recruitment and placement of workers. The proviso merely creates a presumption.

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

placement of workers for a fee which is charged, directly or indirectly, from the workers or

employers or both.

d. "License" means a document issued by the Department of Labor authorizing a person or entity to

operate 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 the

workers or employers.

f. "Authority" means a document issued by the Department of Labor authorizing a person or

association to engage in recruitment and placement activities as a private recruitment entity.

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

Classification of OFWs

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

than a seaman including workers engaged in offshore activities whose occupation requires that majority of his working or gainful hours spent on land.

i. "Emigrant" means any person, worker or otherwise, who emigrates to a foreign country by virtue of an immigrant visa or resident permit or its equivalent in the country of destination.

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

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 offices

under the Department of Labor as the need arises;

b. To organize and establish a nationwide job clearance and information system to inform applicants

registering with a particular employment office of job opportunities in other parts of the country as

well as job opportunities abroad;

c. To develop and organize a program that will facilitate occupational, industrial and geographical

mobility 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 employment

information as may be prescribed by the Secretary of Labor.

Allocation of Manpower Resources is Assigned to the:

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

2. Ph Overseas Employment Administration (POEA) – for overseas employment

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

Powers & Duties:1. To formulate & develop plans & programs to implement the employment promotion objectives of this Title;2. To establish & maintain a registration and/or licensing system to regulate private sector participation in the recruitment & placement of workers, locally & overseas, and to secure the best possible terms & conditions of employment for Filipino contract workers and compliance therewith under such rules & regulations as may be issued by the DOLE;3. To formulate & develop employment programs designed to benefit disadvantaged groups & communities;4. To establish & maintain a registration and/or work permit system to regulate the employment of aliens;5. To develop a labor market information system in aid of proper manpower and development planning;6. To develop a responsible vocational guidance & testing system in aid of proper human resources allocation; and7. To maintain a central registry of skills, except seamen

*EO 797, May 1, 1982, created BLE to assume functions of Bureau of Apprenticeship and the Bureau of Employment Services (BES).

Original & Exclusive Jurisdiction of the regional offices of DOLE - over all matters/cases involving ER-EE relations including money claims, arising out of or by virtue of any law or contracts involving Filipino workers for overseas employment except seamen: Provided, that the (BES) (now BLE) may, in the case of the NCR, exercise such power, whenever the DOLE deems it appropriate.

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

The decisions of the NLRC shall be final & unappealable.

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

PD 850 – replaced BES w/ BLE, through EO 797 which also created POEAAO 186 – made licensing of local recruitment agencies and the issuance of work permits to non-resident aliens and employment registration certificates to resident aliens a function of the regional offices of DOLE

Private Recruitment and Placement Agency (PRPA)

It refers to any individual, partnership, corporation or entity engaged in the recruitment and placement of persons for local employment.

- Secures a license from a DOLE regional office.

Placement Fee

Under existing BLE regulations, a licensed PRPA may charge a worker placement fee w/ shall not exceed 20% of the worker’s first month’s basic salary, chargeable after actual commencement of employment.

XPN: Sec. 13, Kasambahay Law:

Regardless if whether the domestic worker was hired through a private employment agency or a third party, no share in the recruitment or finder’s fee shall be charged against the domestic worker by the said private employment agency.

Service Fee Chargeable to Employer

A licensed PRPA may charge the EMPLOYER service fee w/c shall not exceed 20% of the annual salary of the worker. In no case shall the service fee be deducted from the worker’s salary.

Transportation Expenses of the worker from the place of origin to the place of work shall be charged against the employer and shall in no case be deductedfrom the worker’s salary.

RA 8795 – required the establishment of a Public Employment Service Office (PESO) in capital towns, cities and other strategic areas

PESO - serves as employment service & information center - Regularly obtains lists of job vacancies from employers, publicizes them, invites and evaluates applicants, and refers them for probable hiring - Provides training and educational guidance and employment counseling services - 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 employment 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% of skilled and 50% unskilled labor requirements from the area where the project is being undertaken.

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

XPN: [P4CMONS] (based on Rules Implementing the Code, the ff. entities are authorized to recruit and place workers for local and overseas employment)1. Public employment offices2. Private recruitment entities3. Private employment agencies4. POEA

5. Construction contractors if authorized to operate by DOLE and the Construction Industry Authority6. Members of the diplomatic corps although hirings done by them have to be processed through the POEA7. Other persons/entities as may be authorized by the Sec of DOLE

8. Shipping or manning agents or representatives

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

Principal Functions of the POEA [FPD]

1. Formulation, implementation and monitoring of overseas employment of Filipino workers;2. Protection of their rights to fair and equitable employment practices;3. Deployment of Filipino workers through govt-to-govt hiring

Regulatory Functions

The POEA shall: [RFI2S]1. Regulate private sector participation in the recruitment & overseas placement of workers through its licensing and registration system;2. Formulate & implement, in coordination w/ appropriate entities concerned, when necessary, a system for promoting and monitoring the overseas employment of Filipino workers taking into consideration their welfare and the domestic manpower requirements;3. Inform migrant workers not only of their rights as workers but also of their rights as human beings;4. Instruct and guide the workers how to assert their rights and provide the available mechanism to redress violation of their rights;5. In the recruitment & placement of workers to service the requirements for trained and competent Filipino workers of foreign govts and their instrumentalities, and such other employers as public interest may require, deploy only to countries: [BOG] (under Selective Deployment) a. Where the PH has concluded Bilateral labor agreements or arrangements; b. Observing and/or complying w/ the international laws and standards of migrant workers; c. Guaranteeing to protect the rights of Filipino migrant workers.

Adjudicatory Functions [AD]1. Administrative cases involving violations of licensing rules & regulations and registration of recruitment and employment agencies/entities; and2. Disciplinary action cases and other special cases w/c are administrative in character, involving employers, principals, contracting partners and Filipino migrant workers.

Jurisdiction retained by POEA

After the passage of RA 8042, the POEA retains original and exclusive jurisdiction to hear and decide:1. all cases w/c are administrative in character, involving or arising out of violations of rules & regulations relating to licensing & registration of recruitment and employment agencies/entities; and2. disciplinary action cases and other special cases w/c are administrative in character, involving employers, principals, contracting partners and Filipino migrant workers

Outside of POEA Jurisdiction1. NO jurisdiction to enforce foreign judgment (must be brought before the regular courts). POEA is an administrative

(not a court), exercising adjudicatory or quasi-judicial functions2. NO jurisdiction over torts

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

1. P rostitution;2. U njust refusal to depart for the

worksite after all employment and travel documents have been duly approved by the appropriate govt agency/ies;

3. G unrunning or possession of deadly weapons;

4. V andalism or destroying company property;

5. V iolation/s of the laws and sacred practices of the host country andunjustified breach of govt-approved employment contract by a worker;

6. E mbezzlement of company funds or of moneys and properties of a fellow worker entrusted for delivery to kins or relatives in the PH;

7. C reating trouble at the worksite or in the vessel;

8. G ambling, esp where the laws of the host country prohibits the same;

9. I nitiating/joining a strike or work stoppage where the laws of the hostcountry prohibit strikes or similar actions;

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

11. T heft/robbery;12. D esertion or abandonment; 13. Drug addiction/possession or

trafficking of prohibited drugs;14. and15. D runkenness, esp where the laws of

the host country prohibit intoxicatingdrinks

COMPROMISE AGREEMENT -consistent w/ the policy encouraging amicable settlement of labor disputes Sec 10 of RA 8042 allows resolution by compromise of cases filed w/ the NLRC - any compromise agreement on money claims inclusive of damages shall be paid w/in 4 months from the approval of the settlement

Penalties for Non-compliance of the mandatory period for resolution of cases 1. The salary of such official who fails to render his decision/resolution w/in the prescribed period shall be, or caused to be, withheld until such official complies therewith;2. Suspension for not more than 90 days; or3. Dismissal w/ disqualification to hold any appointive public office for 5 yrs

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

Premature Termination of ContractIf EE is terminated before end of contract w/o

just cause, employers will be orderedto pay their salaries corresponding to the unexpired portion of their employmentcontract

Pretermination Under RA 8042A worker dismissed from overseas employment w/o just cause as defined by law/contract is entitled to ―full reimbursement of his placement fee w/ interest at 12% per annum, plus the salary for the unexpired portion of their employmentcontract.

Due Process required to terminate employmentin case of seamen – must be given written notice of the charges against him, and afforded a formal investigation where he can defend himself or thrua representative before he can be dismissed & disembarked.

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

Contracted but not Deployed: Perfected Contract

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

XPN: death is caused by their own doing

Disability – loss or impairment of a physical or mental function resulting from injury/sickness

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

Total Disability – disablement of an EE to earn wages in the same kind of work of similar nature that he was trained for or accustomed to perform, or any kind of work w/c a person of his mentality and attainments could do. It does not mean absolute helplessness. In disability compensation, it is not the injury w/c is compensated, but rather it is the incapacity to work resulting in the impairment of one’s earning capacity

Disability benefits by seamen – a matter governed not only by medical findings but by law & contract - shall be paid beginning on the 1 st day of such disability. If caused by an injury/sickness it shall not be paid longer than 120 consecutive days;

Except: where such injury/sickness still requires medical attendance beyond 120 days but not to exceed 240 days from onset of disability in w/c case benefit for temporary total disability shall be paid.

In case of differing medical assessment

a.) when a seafarer sustains a work-related illness/injury while on board, his fitness/unfitness to work shall be determined by the company-designated physician. b.) If the physician appointed by the seafarer disagrees w/ the company designated physician’s assessment, the opinion of a 3rd doctor may be agreed jointly bet the employer and the seafarer to be the decision final and binding on them

Invalid Agreements

1. Signing satisfaction receipts is not a waiver. Any agreement to receive less compensation than what the worker is entitled to recover is invalid.

2. An agreement that diminishes the employee’s pay and benefits as contained in a POEA-approved contract is void, unless such subsequent agreement is approved by POEA.

Agencies Given the Duty to promote the welfare & rights of migrant workers:1.DFA2.DOLE3.POEA4. OWWA – Overseas Workers Welfare Administration – provides social & welfare services including insurance coverage, legal assistance, placement assistance and remittance services to Filipino overseas workers. Under RA8042, it shall provide the Filipino migrant worker & his family assistance in the enforcement of contractual obligations by agencies, entities and/or their principals;5. RPM - Re-Placement and Monitoring Center – develops livelihood programs for the returning workers to reintegrate the returning migrant workers to the Ph society;6. NLRC – tasked w/ the settlement/adjudication of labor disputes

Art 18: BAN ON DIRECT HIRINGGR: Direct hiring of Filipino workers for overseas employment is not allowedXPN: 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 employment on their own efforts and representations w/o assistance/participation of any agency. Their hiring nonetheless, shall pass through the POEA for processing purposes

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

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

A: Yes. If upon preliminary examination or surveillance, the DOLE Secretary, the POEA Administrator or DOLE Regional Director is satisfied that such danger or exploitation exists, a written order may be issued for the closure of the establishment being used for illegal recruitment activity.

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

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

Minimum Employment Conditions of Overseas Employment [GF3J WAR]

1. G uaranteed wages for regular working hours and overtime pay;

2. F ree transportation from point of hire to site or return;

3. F ree emergency medical and dental treatment and facilities;

4. F ree and adequate board and lodging facilities or compensatory food allowance;

5. J ust causes for termination of the services of the workers;

6. A ssistance on remittance of worker’s salaries and allowances;

7. W orkmen’s compensation benefits and war hazard protection; and

8. R epatriation of worker’s remains and properties in case of death.

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

- necessary to monitor the status of OFWs in their respective areas of assignment and insure that they are not exploited or abused by their foreign principal employers

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 the Secretary of Labor.

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

Exceptions to Mandatory Remittance [URU]1. Fil servicemen working in US military installations;2. Where the worker’s 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 Remit1. Workers who fail to comply w/ the mandatory remittance requirement shall be suspended/excluded from the list of eligible workers for overseas employment. Subsequent violations shall warrant his repatriation.2. Employers who fail to comply shall be excluded from the overseas employment program. Private employment agencies/entities shall face cancellation or revocation of their licenses or authority to recruit, w/o prejudice to other liabilities under existing laws and regulations.

Note:

Legitimate relationship – not a requirement to be a beneficiary.

Art. 23. Composition of the Boards.

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

……………………….

ARTICLE 25: PRIVATE EMPLOYMENT PARTICIPATION IN THE RECRUIMENT AND PLACEMENT OF WORKERS

PRIVATE SECTORS WHO CAN PARTICIPATE IN R and P:

1. Private employment agencies;2. Private recruitment agencies;3. Shipping and manning agnecies;4. Such other persons as may maybe

authorized by the Secretary of Labor and Employment;

5. Construction and Contractors- But with a duly issued authority

to operate private recruitment entitites.

QULFIFICATIONS:

A. Article 27: Citizenship Filipino Citizens or Corporations, partnerships or

entities atleat 75 of the authorized and voting capital stock of which is owned and controlled by Filipino Citizen.

B. Article 28: Capitalization Private Employment Agency for

Local Employment – Minimum networth pf P 1, 000,000 in case of single proprietorship and a minimum paid up capital of 1, 000, 000 in case of partnership and corporation;

For Overseas Employment-P 3, 000,000 for both single and corporations

Note. Pachek kung tama ung sa overseas hehehehe 3 million alam ko e..

C. Those not otherwise disqualified by law or other government regulations to engage in the recruitment and placement of workers for overseas employment;

D. In local, Employment, the owner, partner or the corporation must be of good moral character and not disqualified by law and have an office space with a minimum floor area of 50 square meters.

VALIDITY OF LICENSE:

For overseas employement- every license shall be valid for four years from the date of issue unless sooner cancelled, revoked or suspended.

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

PROVISIONAL LICENSE FOR OVERSEAS EMLOYMENT

Applicants for new license shall be issued provisional license valid for one (1) year within which the applicant should be able to comply with the undertaking to deploy 100 workers to its principal (POEA 2002 Rules and regulations)

DISQUALIFICATION

FOR OVERSEAS EMPLOYMENT WHETEHER FOR PROFIT OR NOT:

1. Travel Agencies and sales agencies of airline companies (ART. 26 of Laborcode)

2. Officers or members of the board of any corporation or members in partnership engaged in business of a travel agency;

3. Coporations and partneships when any of its officers and members of the board or partners is also an officer, member of the board or partner of corporation or partnership engaged in the business of a travel agency;

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

a. Those certified to have derogatory record in the National Bureau of Investigation or by the Anti illegal Recrutment Branch of POEA;

b. Those against whom probable cause or a prima facie finding of guilt for illegal recruitment other related cases exist;

c. Those convicted for illegal recruitment or other related cases and/ or crimes involving moral turpitude;

d. Those agencies whose licenses have been previously cancelled or revoked by POEA ;

5. Official or employees of DOLE or other government agencies directly involved in overseas employment program and their relatives with the 4t degree of consanguinity or affinity;

6. Those license have previously cancelled of revoke.

FOR LOCAL EMPLOYMENT:

1. Those who are convicted of illegal recruitment, trafficking in persons , anti chiled labor violation or crimes involving moral turpitude;

2. Those against whom probable cause or a prima facie finding of guilt for illegal recruitment other related cases exist;

3. Those agencies whose licenses have been previously revoked or cancelled by the department under Sec. 54 these rules;

4. Cooperatives whether registered or not under the Cooperative Act of the Pil.

5. Law enforcers and any official and employee of the Department of Labor of Employment

6. Sole proprietors of duly licensed agencies are prohibited from securing another license to engage in recruitment and placement

7. Sole proprietors, partnerships or corporation licensed to engage in private recruitment and placement for local employment are prohibited from engaging in job contracting or sub contracting activities.

ARTICLE 29: NON- TRANSFERABILITY OF LICENSE OR AUTHORITY

1. It may be used only by the one in whose favor it was issued, hence it cannot be assigned conveyed or transferred to any other person or entity.

2. It must be used only in the Place stated in the license. Thus, could only undertake recruitment and placement activities in the region where the license was granted.

3. The recruitment and placement activities must be undertaken at their authorized official addresses.

4. Provincial Recruitment and/ or job fairs maybe allowed only when authorized by POEA in writing.

Note: Change of ownership or relationship of single proprietorship licensed to engage in

overseas employment shall cause the automatic revocation of license.

In case of death single proprietorship licensee and upon the request of heir, license maybe extended to continue only for the purpose of winding up the business operations because a single proprietor does not have the power of succession.

ARTICLE 30: Registration Fees

The secretary of labor shall promulgate a schedule of fees for the registration of all applicants for license or authority.

ARTICLE 31: BONDS

For overseas employment

a. Prior to the approval- all applicants fro license shall post such cash bond and surety bonds as determined by the Secretary of labor including escrow deposits

b. Upon Approval License Fee of 50, 000 Escrow of 1,000, 000 Surety bond of 100,000

For Local Employment

a. Prior to Approval Cash bond of 25, 000 Surety of 100,000 Both valid for two years License fee of 6000

Exemption from garnishment:

Cash bond filed by applicants for license or authority is not subject to garnishment by a judgment creditor of the agency.

ARTICLE 32: Fees to be paid by workers

The fees should be collected from a hired worker only after he has signed the employment contract and the same covered by the receipts showing the amount paid

Except when the prevailing system in country where the worker to be deployed either by law policy or practice do not allow charging or collecting of placement and recruitment fees, a land based agency may charge and collect from its hired workers:

1. Placement fee equivalent to one month salary;

2. Documentation costs such as following

a. Passportb. Nbi/police/ barangay

clearancec. Authentication

d. Birth Certificatee. Trade test if necessaryf. Inoculation when required

by the host countryg. Medical Examination

Manning agencies shall not charge any fee from seafearer applicants for its recruitment and placement services. All expense for hiring seaman shall be shouldered by foreign principals.

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

EO 797-REORGANIZING THE MINISTRY OF LABOR AND EMPLOYMENT, CREATING THE PHILIPPINE OVERSEAS EMPLOYMENT ADMINISTRATION, AND FOR OTHER PURPOSES

RA

AGENCIES OF DOLE TO MONITOR EMPLOYMENT: Lecture of Comm. Belle

1. Bureua of Local Employment-

Incharge with the regulation and licensing of local recruitment agency

Regulation of Alien Employees

Issuance of Alien Employment

Issuance of Alien Resident Cert.

Referral of Local Employment

2. POEA- actively engaged in the Recruitment and placement overseas

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

Regulatory Function- to regulate local and foreign principal

Disciplinary action cases- complaint filed by the recruitment and placement or OFW

a. Suspend or cancel license;b. Order refund or reimbursement of

such illegally collected fees

Original and exclusive jurisdiction to inspect recruitment and placement agency and manning agency

VISITORIAL AND ENFORCEMENT

a. On the spot inspection at the time the applicant files application to operated and recruit

b. Routine inspection during operations

c. Complaint inspection every time there is a complaint filed

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

1. To charge greater amount that that specified in the schedule allowable fees;

2. To furnish any false information in relation to recruitment or employment

3. To give nay false notice, testimony etc, or commit any act of misrepresentation to secure a license or authority

4. To induce or attempt to induce a worker to quit his job in liue of another offer unless it is designed to liberate the worker from oppressive terms of employment

5. To influence or attempt to influence any person or entity not to employ any worker who has not applied to his her agency

6. To engage in the recruitment or placement of jobs harmful to public health, morality or to the dignity of the Philippines

7. To obstruct or attempt to obstruct inspection by the secretary of labor or his authorized representative

8. To fail to file reports on the status of employment placement etc. and such other matters as maybe required by the secretary of labor

9. To substitute or alter employment contracts without the approval of the Secretary of Labor

10. To become an officer or member of the board or corporation engaged in the management of travel agency

11. To withhold travel documents from applicant workers before departure for nauthorized monetary consderations

12. Failure to actually deploy a contracted worker without valid reasons as determine by department of labor

13. Failure to reimburse incurred expenses in case of non deployment

14. To allow a non- Filipino Citizen to head or manage a licensed recruitment manning agency

ARTICLE 35: Suspension and/ or cancellation of license or authority

Non license or holder of authority is any person, corporation or entity which has not been issued a valid license or authority to enage a receruitment and placement by the Secrtary of Labor, whose license or authority has been suspended, revoked, or cancelled by the POEA and the Secretary.

GROUNDS FOR REVOCATION OF LICENSE

1. Incurring an accumulated three counts of suspension by an agency based on final and executory orders

within the validity period of its license;

2. Violation of the conditions of license3. Engagaing in the To engage in the

recruitment or placement of jobs harmful to public health, morality or to the dignity of the Philippines

Grounds for the Suspension or Cancellation of License

1. The acts prohibited under article 34 of Labor Code

2. Charging Fee before the worker is employedto in excess of the authorized amount

3. Doung recruitmen in palces outside its authorized area

4. Deploying workers without processing through the POEA

5. Publishing job announcements without the POEA’s prior approval

Jursidiction

The DOLE Secratry and POEA Administrator have concurrent jurisdiction to suspend or cancel license.

Suability of Foreign Corporations

A Foreign Corporation that through an unlicensed agnet, recruits workers in the country may be sued in and found liable by the Philippine Courts.

Lecture Com Belle

Foreign Placement Agency

Cannot engaged in recruitment and placement in the Philippines

But they can accredited as foreign principal/ or employer

Registration of Foreign Principal can be transferred from one to another just as lng as the second recruitment agency shall assume for all the responsibilities in the frist recruitment agency.

………………………………

Local Employment

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

Its overseas employment functions were assumed by the Philippine Overseas Employment Administration (POEA) on May 1, 1982 by virtue of the same Executive Order. (Philippine-Singapore Ports Corp. v. NLRC, 218SCRA77, 1993)

In line with the mandate to decentralize government operations and in order to make

more effective and efficient the delivery of the Department of Labor and Employment’s services, the line functions of the Bureau of Local Employment were turned over to the Regional Offices as follows:

a. Regulation and licensing of local recruitment agencies in the region, including registration of regional branch offices and issuance of temporary authority to recruit outside the region;

b. Regulation of Alien employment and understudy programs;

c. Issuance of non-resident alien employment permits;

d. Issuance of resident alien employment registration certificates;

e. Regulation and monitoring of the apprenticeship and the learnership programs; and

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

The BLE is a policy making body for local recruitment and placement and alien relations; and is further tasked in coming-up of strategies in addressing local employment issues.

Department Order 141-14

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

Definition of terms:

a. “Bureau” refers to the Bureau of Local Employment.

b. “Department” – refers to the Department of Labor and Employment.

c. “Secretary” – refers to the Secretary of the Department of Labor and Employment.

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

e. “Regional Director” – refers to the Regional Director of the Regional Office.

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

g. “Private employment agency or agency” refers to any person, partnership or corporation engaged in the recruitment and placement of workers for local employment.It also refers to any individual, partnership, corporation or entity licensed by the Department of Labor and Employment (DOLE) to engage in the recruitment and placement of Kasambahay for local employment.

h. “License” refers to a document issued by the Secretary through the Regional Director authorizing a person, partnership or corporation to operate a private employment agency.

i. “Authority to operate branch office” refers to a document issued by the Secretary through the Regional Director authorizing a private

employment agency to establish and operate a branch office.

j. “Authority to recruit” refers to a document issued by the Secretary through the Regional Director authorizing a person to conduct recruitment activities for local employment on behalf of a private employment agency.

k. “Representative” refers to a person acting as an agent of a private employment agency registered with the Regional Office and granted Authority to Recruit.

l. “Domestic Seafarer” refers to any person who is employed or engaged to work in any capacity on board ship as defined herein.

As compared with the definition given by the Labor Code (Art. 13) "Seaman" means any person employed in a vessel engaged in maritime navigation.

As compared with the definition stated in RA 8042 as amended by RA 10022 (Rule II, Sec. 1), Seafarer - refers to any person who is employed or engaged in overseas employment in any capacity on board a ship other than a government ship used for military or non-commercial purposes. The definition shall include fishermen, cruise ship personnel and those serving on mobile offshore and drilling units in the high seas.

m. “Ship” refers to a Philippine registered ship or vessel which navigates within the territorial jurisdiction of the Philippines or closely adjacent to, sheltered areas or areas where port regulations apply.

n. “Public Employment Service Office or PESO” refers to a non-fee charging multi-employment service facility or entity established, recognized or accredited pursuant to Republic Act No. 8759 or the PESO Act of 1999 and its implementing rules and regulation.

o. “Recruit” refers to any Filipino individual promised, contracted, or enlisted for employment.

p. “Domestic Worker or Kasambahay” refers to any person engaged in domestic work within an employment relationship, whether on a live in or live out arrangement, such as, but not limited to general househelp, yaya, cook, gardener, or laundry person, but shall exclude service providers, family drivers, children who are under foster family arrangement, or any person who performs domestic work only occasionally or sporadically and not on occupational basis.

q. “Recruitment contract” refers to the agreement entered into between a private employment agency or its representative and a recruit stating the terms and conditions of the recruitment in a language known and understood by the recruit.

r. “Employment contract” refers to the individual written agreement between the employer and the worker stating clearly the terms and conditions of employment in a language known and understood by the worker.

s. “Service contract” refers to the agreement entered into between the employer and the private employment agency stating clearly the terms and conditions of the service.

t. “Service fee” refers to the amount charged by a private employment agency to a local employer as payment for actual services rendered in relation to the recruitment and placement of workers.

u. “Deployment Expenses” refers to expenses that are directly used for the transfer of the Kasambahay from the place of origin to the place of work covering the cost of transportation, meals, communication expense, and other incidental expenses. Advances or loans by the Kasambahay are not included in the definition of deployment expenses.

v. “Employer” refers to any person, partnership, corporation or entity engaging the services of a worker through the private employment agency, and who is party to the employment contract with the worker.It also refers to any person who engages and controls the services of a Kasambahay and is party to the employment contract.

w. “Non-license or non-holder of authority” refers to any person, partnership or corporation who has not been issued a license or authority to recruit, or whose license or authority to recruit has been revoked or cancelled by the Regional Director.

Qualifications for Local Recruitment and Placement Agency for Local Employment

The applicant for a license to operate a PRPA must possess the following:

1. Must be a Filipino Citizen, if single proprietorship. In case of a partnership or a corporation, at least 75% of the authorized capital stock must be owned and controlled by Filipino citizen;

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

3. The owner, partners or the officers of the corporation must be of good moral character and not otherwise disqualified by law.

Disqualification set under Sec. 5 of DO 141-14:

Section 5. Disqualification. – The following are not qualified to engage in the business of recruitment and placement for local employment:

a. Those who are convicted of illegal recruitment, trafficking in persons, anti-child labor violation, or crimes involving moral turpitude;

b. Those against whom probable cause or prima facie finding of guilt for illegal recruitment or other related cases exist particularly to owners or directors of agencies who have committed illegal recruitment or other related cases.

c. Those agencies whose licenses have been previously revoked or cancelled by the Department under Sec. 54 of these rules.

d. Cooperatives whether registered or not under the Cooperative Act of the Philippines.

e. Law enforcers and any official and employee of the Department of Labor and Employment (DOLE).

f. Sole proprietors of duly licensed agencies are prohibited from securing another license to engage in recruitment and placement.

g. Sole proprietors, partnerships or corporations licensed to engage in private recruitment and placement for local employment are prohibited from engaging in job contracting or sub contracting activities.

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

The license application shall be filed in the Regional Office/Field Office having jurisdiction over the place where the applicant’s intends to establish its office. In case the documents submitted are incomplete, the application must not be received and/or accepted.

Appeal from the Denial of Application

The order of the Regional Director may be appealed to the Office of the Secretary within ten (10) days from receipt of the order. The same will be resolved by the secretary 10 day from receipt of notice of appeal. A motion for reconsideration can be filed within 10 days from receipt of the decision. A second motion for reconsideration shall not be allowed.

Validity of the License

The license shall be valid all over the Philippines for three (3) years from the date of issuance, upon submission of proof of publication, unless sooner suspended, cancelled or revoked by DOLE Regional Director.

It must be noted that license shall not be transferred, conveyed or assigned to any other person or entity.

Fees and Charges

No fees whatsoever shall be collected neither deducted from the salaries or wages of the workers.

An agency may charge the following:

1. Service fee. – An agency may charge the employers a service fee as may be agreed upon by the agency and the employer. In no care shall the service fee be deducted from the worker’s salary.

2. Transportation expenses. – The transportation expenses for the transfer of the worker from the place of residence to the place of work shall be charged to the employer, and shall in no case be deducted from the worker’s salary.

Replacement of Worker without Cost or Refund of Service Fee

An employer shall be entitled to a replacement of a worker without additional cost or a refund of 75% of the service fee and transportation expenses subject to the following conditions:

a. If the worker is certified by a competent/government physician to be suffering from a medical or mental illness within one (1) month from the first day of work rendering him incapable of discharging the minimum requirements of the job; or

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

If the request for a preplacement is beyond the abovementioned periods, the employer shall pay an additional service fee as agreed by both parties. (Sec. 37)

The employer is entitled to a refund of seventy five (75%) percent of the service fee if the agency failed to provide a replacement of worker based on any grounds enumerated in the preceding section after the lapse of one (1) month from receipt of the request unless the parties agreed on a longer period. (Sec. 38………………………….

• It is not the policy of the State to promote foreign employment. The policy of the State towards foreign employment is selective, protective and ameliorative.

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

multilateral conventions

While recognizing the significant contribution of Filipino migrant workers to the national economy through their foreign exchange remittances, the State does not promote overseas employment as a means to sustain economic growth and achieve national development.

PRIVATE FEE CHARGING EMPLOYMENT AGENCY- Any person or entity engaged in the recruitment and placement of workers for a fee which is charged, directly or indirectly, from the workers or employers or both.

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

RECRUITMENT/PLACEMENT AGENCY

General Rule:- Can only engage in acts of

recruitment in the place stated in the license.

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

the Philippines where there is a PESO Office

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

- The term is self-limiting. An exclusion of term must be with the approval of the POEA.

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

FOREIGN RECRUITMENT AGENCIES (FPA)- Cannot engage in recruitment in the Philippines but can be accredited as principal or employer.

General Rule:- One accreditation per foreign principal/employer.

Exception:- When the foreign employer can still offer a uniform compensation package, and has a unified job order covering at least 50 workers.

OVERSEAS FILIPINOS- Migrant workers, other Filipino nationals and their dependents abroad.

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

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

OVERSEAS FILIPINO WORKER(MIGRANT WORKER)

- a person who is to be engaged, is engaged or ahs been engaged in a remunerated activity in a state of which he or she is not a citizen or on board a vessel navigating the foreign seas other than a government ship used for military or non-commercial purposes or on an installation located offshore or on the high seas.

Recruited construction workers of a Philippine corporation which secured a project abroad are not considered OFWs.

Recruitment whether done for profit or not is immaterial

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

Indefinite period of employment of OFWs is not valid as it contravenes the explicit rule on fixed-term employment.

It shall be mandatory for all OFWs to remit a portion of their foreign exchange earnings to their families, dependents, and/or beneficiaries in the country through the Philippine banking system. The OFW cannot designate himself as allotee thereof.

CLASSIFICATION OF OFWs:

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

2. Land-based- contract workers other than a seaman including workers engaged in offshore activities whose occupation requires that majority of his working or gainful hours are spent on land.

ALLOCATION OF MANPOWER RESOURCES IS ASSIGNED TO THE:

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

a. Coming up with strategies to address and improve unemployment in the Philippines

b. Policy-making body for local recruitment and placement, for promotion of employment, and for alien employment.

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

PRIVATE RECRUITMENT:

General Rule:

No person or entity shall engage in the recruitment and placement of workers, locally or overseas.

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

authorized by the DOLE and the Construction Industry Authority

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

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

representatives

POWERS OF THE SECRETARY OF LABOR AND EMPLOYMENT:

1. Cannot issue search warrants and warrants of arrest

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

powers over recruitment and manning agencies

4. Can ban deployment of OFWs in the exercise of police power to protect public interest

JURISDICTION OF THE POEA:

1. Original and Exclusive when it comes to the regulation of recruitment and placement agencies

2. Adjudication of complaints which are administrative in character

3. Adjudication of disciplinary action cases and other special cases which are administrative in character, involving employers, principals, recruitment and placement agencies and OFWs.

4. Original and exclusive jurisdiction to inspect all recruitment and placement agencies as well as manning agencies, in relation to the visitorial powers of the Secretary of Labor and Employment.

VISITORIAL POWERS OF THE DOLE SECRETARY:

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

DISCIPLINARY ACTION CASES

- Should be filed with the Adjudication Office or Regional Office of the POEA, as the case may be.

- The POEA may motu proprio undertake disciplinary action against a worker.

- It shall establish a system of watvhing and blacklisting.

RECOURSE OF AGGRIEVED EMPLOYEES:

DOLE Regional Office

10 days

Secretary of Labor

10 days

Motion for Reconsideration

No further recourse

Finality of Decision

GRAVEST PENALTY FOR RECRUITMENT VIOLATIONS- Suspension or cancellation of license plus fines.CONSEQUENCES OF CONVICTION

1. Automatic revocation of license or authority

2. Forfeiture of cash and surety bonds3. Conviction for the crime of Estafa, if

found guilty thereof

A person may be charged and convicted for both illegal recruitment and estafa

ILLEGAL

RECRUITMENTESTAFA

Malum prohibitum Malum in se

Criminal intent is not necessary

Criminal intent is requried

PENALTY AND PRESCRIPTIVE PERIOD FOR ILLEGAL RECRUITMENT

SIMPLEECONOMIC

SABOTAGE

Prescriptive

Period5 years 20 years

Imprisonment

12 years and 1 day to

20 years

Life imprisonme

nt

FineP 1 to 2 million

P 2 to 5 million

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

Absence of receipts evidencing payment is not fatal to prosecution’s case for illegal recruitment for as long as the witnesses can positively show through their respective testimonies that the accused is the one involved in prohibited recruitment.

Alteration of contract is prohibited.

Venue for Filing Action for Illegal Recruitment:

- A criminal action arising from illegal recruitment as defined herein shall be filed

with the Regional Trial Court of the province or city where the offense was committed or where the offended party actually resides at the same time of the commission of the offense: Provided, That the court where the criminal action is first filed shall acquire jurisdiction to the exclusion of other courts. Provided, however, That the aforestated provisions shall also apply to those criminal actions that have already been filed in court at the time of the effectivity of this Act.

CONCURRENT JURISDICTION- Employees constructively dismissed can file before LA for illegal dismissal and before POEA for violation of terms and conditions of the contract, simultaneously.- The DOLE Secretary and the POEA Administrator have concurrent jurisdiction to suspend or cancel a license.

RULE ON PRE-TERMINATION OF CONTRACT

1. If terminated other than those that are lawful and valid before the agreed termination date, the employer will pay the workers their salaries corresponding to the unexpired portion of the employment contract.

2. If the date of employment termination occurred on or after July 15, 1995, a worker dismissed from overseas employment without just, valid or authorized cause or there is any unauthorized deductions from his salary, he is entitled to full reimbursement of his placement fee with interest at 12% per annum plus salaries for the unexpired portion of his contract.

An OFW is not entitled to overtime pay, even if guaranteed, if he failed to present any evidence to prove that he rendered service in excess of the regular 8 working hours a day.

In case of unauthorized deductions from OFW’s salary, he shall be entitled to the full reimbursement of the deductions at 12% interest per annum.

SECTION 10 (RA 8042)SECTION 7 (RA 10022)- The clause “or for three (3) months for every year of the unexpired term, whichever is less” has been declared unconstitutional for violation of the equal protection clause and of substantive due process.

- Claims arising out of an employer-employee relationship or by virtue of any law or contract involving Filipino workers for overseas deployment including claims for actual, moral exemplary and other forms of damages is transferred to the Labor Arbiters of the NLRC.

Venue:Regional Arbitration branch of the NLRC where the complainant resides or where the

principal office of the respondent/employer is situated at the option of the complainant.

- In cases of claims and disputes arising from collective bargaining agreements, the parties shall submit the same to the original and exclusive jurisdiction of the voluntary arbitrator or panel of arbitrators.

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

DUE PROCESS REQUIRED TO TERMINATE EMPLOYMENT

1. Procedural due process requires that a seaman must be given:

a. Written notice of the charges against him; and

b. Formal investigation where he can defend himself personally or through a representative before he can be dismissed and disembarked from the vessel.

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

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

in case that is the penalty imposed

BOTH the recruitment agency and its foreign principal have the burden of proof to show that the dismissal was legal.

RELIEFS TO WHICH OFWs ARE ENTITLED:

- Monetary in nature.

1. All salaries for the unpexpired portion of the contract.

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

DOCTRINE OF PROCESSUAL PRESUMPTION

-Where a foreign law is not pleaded or, even if pleaded, is not proved, the presumption is that foreign law is the same as Philippine law.

POEA SEC 2010

Sec 2 (a) – The employment contract commence upon concurring with the following requisites:

1. Actual departure of the seafarer from the point of hire; and

2. The acquiring and bringing of a POEA approved contract.

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

Sec 2 (b) – The period of employment must be mutually agreed and must not exceed 12 months. Any extension is subject to mutual consent of both parties.

Sec 8 - The seafarer is required to make an allotment in the Philippines of at least eighty percent (80%) of his monthly basic salary.

The allottee may be any person. It is not required that the allottee of the seafarer be his relative.

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

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

overtime work; shall not exceed 105 hours a month.

Managerial personnel of seafarers may render overtime work.

For seafarers, there is still obligation to prove he rendered overtime work based on:

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

and3. Particularity of the work done.

The following are considered Holidays at sea and in port:

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

Unica Doctrine – If the contract of a seafarer is terminated and he is onboard; voluntary work must be compensated but such work is not tantamount to implied renewal of the contract of the seafarer.

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

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

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

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

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

3. When the seafarer is discharged for just cause;

4. Voluntary Resignation; and5. Voluntary Repatriation by the employer.

Medical Repartriation

When the seafarer signs off due to medical reason(Medical Repatriation), he must report within 3 days from arrival to the manning agency for his Post-Medical Examination (POME).

If the seafarer did not report within three days for his POME, unless for a valid reason, it is an implied waiver of his right to claim for sickness and disability benefits.

The only valid reason that the seafarer is allowed not to report within three days must be caused by his physical incapability due to his sickness, in which he must send a written notice that he will not be able to report within the three-day period.

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

and2. The sickness must exist during the

term of the seafarer’s employment contract.

Aside from the report, the seafarer is required to visit the company-designated physician in a regular basis.

If during the POME, the company-designated physician declares the illness as not work-related, the employer may cease the giving of the benefits.

The employee, in cases of declaration by the company-designated physician of the illness as not work-related, may consult another physician for the declaration of his illness of work-relatedness.

When the finding of the physician chosen by the seafarer is contrary to the finding of the company-designated physician, the employee may initiate a conflict resolution procedure. The following steps are to be followed:

1. presenting a copy of the report of the chosen physician to the employer;

2. the employer will send both reports to a mutually-agreed physician for another assessment.

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

If the seafarer failed to present to the employer the assessment made by his chosen physician, the report of the company physician is binding and the employer may cease the giving of the benefits to the seafarer.

The benefits given by the employer is considered separate and distinct from the benefits given to the seafarer under Philippine laws (SSS, OWWA, ECC,

Philhealth, PAG-IBIG) as the seafarer is the one who paid the premiums from such benefits.

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

The seafarer is entitled to earn wages, reparation at the employer’s cost and termination pay; UNLESS agreements have been made for the seafarer to join another ship belonging to the same principal to complete his contract.

The seafarer must agree in joining another ship. If he does not agree, he is entitled to wages, reparation and, termination pay.

Voluntary Resignation of the seafarer

A seafarer who requests for an early termination of his contract shall be liable for his repatriation costs as well as the transportation cost of his replacement.

The employer, upon compassionate grounds, may assume the transportation costs of the seafarer’s replacement.

Voluntary Repatriation by the employer

If the ship arrives in a convenient port within a period of three (3) months before the expiration of the contract of a seafarer, the employer may repatriate the seafarer from such port provided that the seafarer shall be paid all of his wages.

Just cause dismissal

When a seafarer is discharged for just cause, the employer has the right to recover the cost of his replacement and repatriation from the seafarer’s wage and other earnings.

Seafarer is not entitled to procedural due process for the termination if he is a clear danger to the safety of the ship. If he is a clear danger to the safety of the ship, the following steps must be followed:

1. The seafarer must be secured in a separate facility;

2. The seafarer must be surrendered in the proper authority upon arriving in a convenient port; and

3. The master of the ship must send a complete report to the local manning agency substantiated by witnesses, testimonies, and other documents in support thereof.

When the seafarer is not a clear danger to the safety of the ship, he is entitled to procedural due process for his termination.

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

1. The seafarer must be furnished with a written notice which contains the Grounds for the charges and the time, place, and date of the formal investigation of the charges.

2. If after the investigation or hearing, the Master is convinced that an imposition or penalty is justified, the master shall issue a written notice of penalty and the reasons for it to the seafarer, with copies furnished to the Philippine agent.

…………………..

Miscellaneous Provisions of the New Labor Code (PD442)

Article. 36

Regulatory powers – Secretary of Labor shall have the power to restrict, regulate, issue orders and promulgate rules and regulations to carry out the objectives and implement the provisions of the Labor Code

Article. 37

Visitorial Power – Secretary of Labor or his duly authorized representatives may, at any time, inspect the premises, books of accounts and records of any person or entity covered by the Labor code, require to submit reports regularly on prescribed forms, and act on violation of any provisions of this Labor Code.

Articles 38–39, RECRUITMENT AND PLACEMENT

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

For purposes of this Act, illegal recruitment shall mean any act of canvassing, enlisting, contracting, transporting, utilizing, hiring or procuring of workers which includes referring, contract services, promising or advertising for employment abroad, whether for profit or not, when undertaken by a non-license or non-holder of authority contemplated under Article 13 (f) of Presidential Decree No. 442, as amended , otherwise known as the Labor Code of the Philippines: Provided, That any such non-license or non-holder who, in any manner, offers or promises for a fee employment abroad for two or more persons shall be deemed so engaged. It shall likewise include the following acts, whether committed by any person, whether a non-licensee, non-holder, licensee or holder of authority:

(a) To charge or accept directly or indirectly any amount greater than that specified in the schedule of allowable fees prescribed by the Secretary of Labor and Employment, or to make a worker pay or acknowledge any amount greater than 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 or employment;

(c) To give any false notice, testimony, information or document or commit any act of misrepresentation for the

purpose of securing a license or authority under the Labor Code, or for the purpose of documenting hired workers with the POEA, which include the act of reprocessing workers through a job order that pertains to nonexistent work, work different from the actual overseas work, or work with a different employer whether registered or not with the POEA;

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

(e) To influence or attempt to influence any person or entity not to employ any worker who has not applied for employment through his agency or who has formed, joined or supported, or has contacted or is supported by any union or workers' organization;

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

(g) To fail to submit reports on the status of employment, placement vacancies, remittance of foreign exchange earnings, separation from jobs, departures and such other matters or information as may be required by the Secretary of Labor and Employment;

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

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

(j) To withhold or deny travel documents from applicant workers before departure for monetary or financial considerations, or for any other reasons, other than those authorized under the Labor Code and its implementing rules and regulations;

(k) Failure to actually deploy a contracted worker without valid reason as determined by the Department of Labor and Employment;

(l) Failure to reimburse expenses incurred by the worker in connection with his documentation and processing for purposes of deployment, in cases where the deployment does not actually take place without the worker's fault. Illegal recruitment when committed by a syndicate or in large scale shall be considered an offense involving economic sabotage; and

(m) To allow a non-Filipino citizen to head or manage a licensed recruitment/manning agency.

"Illegal recruitment is deemed committed by a syndicate if carried out by a group of three (3) or more persons conspiring or confederating with one another. It is deemed committed in large scale if committed against three (3) or more persons individually or as a group.

"In addition to the acts enumerated above, it shall also be unlawful for any person or entity to commit the following prohibited acts:

(1) Grant a loan to an overseas Filipino worker with interest exceeding eight percent (8%) per annum, which will be used for payment of legal and allowable placement fees and make the migrant worker issue, either personally or through a guarantor or accommodation party, postdated checks in relation to the said loan;

(2) Impose a compulsory and exclusive arrangement whereby an overseas Filipino worker is required to avail of a loan only from specifically designated institutions, entities or persons;

(3) Refuse to condone or renegotiate a loan incurred by an overseas Filipino worker after the latter's employment contract has been prematurely terminated through no fault of his or her own;

(4) Impose a compulsory and exclusive arrangement whereby an overseas Filipino worker is required to undergo health examinations only from specifically designated medical clinics, institutions, entities or persons, except in the case of a seafarer whose medical examination cost is shouldered by the principal/shipowner;

(5) Impose a compulsory and exclusive arrangement whereby an overseas Filipino worker is required to undergo training, seminar, instruction

or schooling of any kind only from specifically designated institutions, entities or persons, except fpr recommendatory trainings mandated by principals/shipowners where the latter shoulder the cost of such trainings;

(6) For a suspended recruitment/manning agency to engage in any kind of recruitment activity including the processing of pending workers' applications; and

(7) For a recruitment/manning agency or a foreign principal/employer to pass on the overseas Filipino worker or deduct from his or her salary the payment of the cost of insurance fees, premium or other insurance related charges, as provided under the compulsory worker's insurance coverage.

What are the Elements of Illegal Recruitment?

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

2. The offender undertakes either any recruitment activities defined under Article 13 (b), or any prohibited practices enumerated under Article 34.

What are the Classifications of Illegal Recruitment?

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

II. IR involving economic sabotage:

a. Large Scale – committed against three (3) or more persons individually or as a group

b. Syndicated – committed by a group of three (3) or more persons conspiring or confederating with one another.

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

Simple IR –five (5) years

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

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

Simple Illegal Recruitment

(a) Any person found guilty of illegal recruitment shall suffer the penalty of imprisonment of not less than twelve (12) years and one (1) day but not

more than twenty (20) years and a fine of not less than One million pesos (P1,000,000.00) nor more than Two million pesos (P2,000,000.00).

Illegal Recruitment constituting economic sabotage (large scale and syndicated)

(b) The penalty of life imprisonment and a fine of not less than Two million pesos (P2,000,000.00) nor more than Five million pesos (P5,000,000.00) shall be imposed if illegal recruitment constitutes economic sabotage as defined therein. "Provided, however, That the maximum penalty shall be imposed if the person illegally recruited is less than eighteen (18) years of age or committed by a non-licensee or non-holder of authority.

“Any person found guilty of any of the prohibited acts shall suffer the penalty of imprisonment of not less than six (6) years and one (1) day but not more than twelve (12) years and a fine of not less than Five hundred thousand pesos (P500,000.00) nor more than One million pesos (P1,000,000.00). “

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

"In every case, conviction shall cause and carry the automatic revocation of the license or registration of the recruitment/manning agency, lending institutions, training school or medical clinic."

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

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

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

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

the time of the commission of the offense.

REMEDIES AVAILABLE TO VICTIMS OF IR

Administrative Remedy

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

B. Complaint/Report requesting conduct of surveillance / entrapment and other special operations – filed with the Anti illegal Recruitment Branch of theLicensing and Regulation Office, POEA

C. Complaints / reports – may also filed with the DOLE regional Offices and/ or the POEA Regional Extension Units/Centers nearest the place where the offense was committed

REMEDIES AVAILABLE TO VICTIMS OF IR Criminal Remedy

Complaints for Estafa and/or Illegal Recruitment against an illegal recruiter or a responsible officer of a licensed agency may be filed with the assistance of the POEA Anti illegal Recruitment Branch (AIRB), NBI, PNPCIDG, or directly with the prosecutor’s office or with law enforcement agencies.

Eg. Accused represented themselves to complainant to have the capacity to send workers abroad, although they did not have any authority or license. It is by this representation that they induced complainants to pay a placement fee. Such act constitute estafa under Art. 315, par 2 of the RPC.

SUPREME COURT DECISIONS

“REFERRAL is the act of passing along or forwarding of an applicant for employment after an initial interview of a selected applicant for employment to a selected employer, placement officer or bureau.” (People vs. Goce, 247 SCRA 780)

SUPREME COURT DECISIONS

“There is illegal recruitment when one purports to have the ability to send a worker abroad though without authority or license to do so” (Pp vs Villas, 277 SCRA 391)

“It is the lack of necessary license or authority that renders the recruitment activity unlawful or criminal.” (Pp vs Borromeo, 305 SCRA 180)

SUPREME COURT DECISIONS

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

It suffices that he gives an impression of his ability to enlist the complainants for employment abroad, in order to include them to tender payment of fees.” (Pp vs. Peralta, 283 SCRA 81)

“Lack of receipts does not mean no transaction for recruitment for overseas job was made.” (People vs. Naparan, 225 SCRA 714)

SUPREME COURT DECISIONS

“Failure of the complainants to ask for the receipts for the fees they paid, x x x, is not fatal to their case if they are able to duly prove by their testimonies the involvement of the accused in the recruitment process.” (People vs. Comia, 136 SCRA 185)

Liability of Recruitment Agency:

The recruitment agency is solidarily liable with the foreign principal for unpaid salaries of a worker it recruited. Before recruiting, the agency is required to submit a document containing its power to sue and be sued jointly and severally with the principal or foreign-based employer for any of the violations of the recruitment agreement, and the contract of employment.

NOTE: The recruitment agency may still be sued even if agency agreement between recruitment agency and principal is already severed if no notice of the termination was given to the employee based on Art. 1921 of the New Civil Code.

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

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

Exception to Liability of Recruitment Agency:

Where the workers themselves insisted for the recruitment agency to send them back to their foreign employer despite their knowledge of its inability to pay their wages.

Liability of Employee of company engaged in Illegal Recruitment:

Any employee of a company or corporation engaged in illegal recruitment may be held as principal together with his employer, if it is shown that he actively and consciously participated in illegal recruitment.

Issuance of Warrant or Warrant of arrest:

Art. 38 is unconstitutional inasmuch as it gives the Secretary of Labor the power to issue search or arrest warrants (the Secretary not being a judge, the authorities must go through the judicial process)

The exception is in cases of deportation of illegal and undesirable aliens whom the President or the Commissioner of Immigration may order arrest, following a final order of deportation.

The Secretary of Labor may order closure of illegal recruitment establishments because it is only administrative and regulatory in nature.

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

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

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

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

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

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

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

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

Some relevant principles: Same evidence to prove illegal

recruitment may be used to prove estafa.

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

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

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

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

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

What is meant by Theory of Imputed Knowledge?

The theory of imputed knowledge is a rule that any information material to the transaction, either possessed by the agent at the time of the transaction or acquired by him before its completion, is deemed to be the knowledge of the principal, at least insofar as the transaction is concerned, even though the knowledge, in fact, is not communicated to the principal at all.

“Imputed knowledge” means the knowledge attributed to a party because of his position, or his relationship with or responsibility for another party. Such knowledge is attributed for the reason that the facts in issue were open to discovery and it was that person’s duty to apprise him of such facts