Professional Documents
Culture Documents
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xxxx
x x x Findings of fact of administrative agencies and quasi-judicial
bodies, which have acquired expertise because their jurisdiction is
confined to specific matters, are generally accorded not only
respect, but finality when affirmed by the Court of Appeals. Such
findings deserve full respect and, without justifiable reason, ought not to be
altered, modified or reversed.(Emphasis supplied)23
With the finding that respondent "was still employed under the first contract
when he negotiated with petitioners on the second contract",24 novation
became an unavoidable conclusion.
Equally settled is the rule that factual findings of labor officials, who are
deemed to have acquired expertise in matters within their jurisdiction, are
generally accorded not only respect but even finality by the courts when
supported by substantial evidence, i.e., the amount of relevant evidence
which a reasonable mind might accept as adequate to justify a
conclusion.25 But these findings are not infallible. When there is a showing
that they were arrived at arbitrarily or in disregard of the evidence on record,
they may be examined by the courts.26 In this case, there was no showing of
any arbitrariness on the part of the lower courts in their findings of facts.
Hence, we follow the settled rule.
We need not dwell on the issue of prescription. It was settled by the Court of
Appeals with its ruling that recovery of damages under the first contract was
already time-barred. Thus:
Accordingly, the prescriptive period of three (3) years within which
Medequillo Jr. may initiate money claims under the 1st contract commenced
on the date of his repatriation. xxx The start of the three (3) year prescriptive
period must therefore be reckoned on February 1992, which by Medequillo
Jr.s own admission was the date of his repatriation to Manila. It was at this
point in time that Medequillo Jr.s cause of action already accrued under the
first contract. He had until February 1995 to pursue a case for illegal
dismissal and damages arising from the 1st contract. With the filing of his
Complaint-Affidavit on March 6, 1995, which was clearly beyond the
prescriptive period, the cause of action under the 1st contract was already
time-barred.27
The issue that proceeds from the fact of novation is the consequence of the
non-deployment of respondent.
The petitioners argue that under the POEA Contract, actual deployment of
the seafarer is a suspensive condition for the commencement of the
employment.28 We agree with petitioners on such point. However, even
without actual deployment, the perfected contract gives rise to obligations
on the part of petitioners.
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Following the law, the claim is still cognizable by the labor arbiters of the
NLRC under the second phrase of the provision.
Applying the rules on actual damages, Article 2199 of the New Civil Code
provides that one is entitled to an adequate compensation only for such
pecuniary loss suffered by him as he has duly proved. Respondent is thus
liable to pay petitioner actual damages in the form of the loss of nine (9)
months worth of salary as provided in the contract.38 This is but proper
because of the non-deployment of respondent without just cause.
WHEREFORE, the appeal is DENIED. The 31 January 2007 Decision of the
Court of Appeals in CA-G.R. SP. No. 91632 is hereby AFFIRMED. The
Petitioners are hereby ordered to pay Sulpecio Medequillo, Jr., the award of
actual damages equivalent to his salary for nine (9) months as provided by
the Second Employment Contract.
SO ORDERED.
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SECOND DIVISION
[ G.R. No. 197528, September 05, 2012 ]
PERT/CPM MANPOWER EXPONENT CO., INC., PETITIONER, VS. ARMANDO A.
VINUY A. LOUIE M. ORDOVEZ, ARSENIO S. LUMANTA,. JR., ROBELITO S.
ANIPAN, VIRGILIO R. ALCANTARA, MARINO M. ERA, SANDY O. ENJAMBRE AND
NOEL T. LADEA, RESPONDENTS.
DECISION
BRION, J.:
We resolve the present petition for review on certiorari[1] assailing the
decision[2] dated May 9, 2011 and the resolution[3] dated June 23, 2011 of the
Court of Appeals (CA) in CA-G.R. SP No. 114353.
The Antecedents
On March 5, 2008, respondents Armando A. Vinuya, Louie M. Ordovez,
Arsenio S. Lumanta, Jr., Robelito S. Anipan, Virgilio R. Alcantara, Marino M.
Era, Sandy O. Enjambre and Noel T. Ladea (respondents) filed a complaint for
illegal dismissal against the petitioner Pert/CPM Manpower Exponent Co., Inc.
(agency), and its President Romeo P. Nacino.
The respondents alleged that the agency deployed them between March 29,
2007 and May 12, 2007 to work as aluminum fabricator/installer for the
agencys principal, Modern Metal Solution LLC/MMS Modern Metal Solution
LLC (Modern Metal) in Dubai, United Arab Emirates.
The respondents employment contracts,[4] which were approved by the
Philippine Overseas Employment Administration (POEA), provided for a twoyear employment, nine hours a day, salary of 1,350 AED with overtime pay,
food allowance, free and suitable housing (four to a room), free
transportation, free laundry, and free medical and dental services. They each
paid a P15,000.00 processing fee.[5]
On April 2, 2007, Modern Metal gave the respondents, except Era,
appointment letters[6] with terms different from those in the employment
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contracts which they signed at the agencys office in the Philippines. Under
the letters of appointment, their employment was increased to three years at
1,000 to 1,200 AED and food allowance of 200 AED.
The respondents claimed that they were shocked to find out what their
working and living conditions were in Dubai. They were required to work from
6:30 a.m. to 6:30 p.m., with a break of only one hour to one and a half hours.
When they rendered overtime work, they were most of the time either
underpaid or not paid at all. Their housing accommodations were cramped
and were shared with 27 other occupants. The lodging house was in Sharjah,
which was far from their jobsite in Dubai, leaving them only three to four
hours of sleep a day because of the long hours of travel to and from their
place of work; there was no potable water and the air was polluted.
When the respondents received their first salaries (at the rates provided in
their appointment letters and with deductions for placement fees) and
because of their difficult living and working conditions, they called up the
agency and complained about their predicament. The agency assured them
that their concerns would be promptly addressed, but nothing happened.
On May 5, 2007, Modern Metal required the respondents to sign new
employment contracts,[7] except for Era who was made to sign later. The
contracts reflected the terms of their appointment letters. Burdened by all
the expenses and financial obligations they incurred for their deployment,
they were left with no choice but to sign the contracts. They raised the
matter with the agency, which again took no action.
On August 5, 2007, despondent over their unbearable living and working
conditions and by the agencys inaction, the respondents expressed to
Modern Metal their desire to resign. Out of fear, as they put it, that Modern
Metal would not give them their salaries and release papers, the
respondents, except Era, cited personal/family problems for their resignation.
[8]
Era mentioned the real reason because I dont (sic) want the company
policy[9] for his resignation.
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On May 12, 2009, the NLRC granted the appeal.[11] It ruled that the
respondents had been illegally dismissed. It anchored its ruling on the new
employment contracts they were made to sign in Dubai. It stressed that it is
illegal for an employer to require its employees to execute new employment
papers, especially those which provide benefits that are inferior to the POEAapproved contracts.
The NLRC rejected the quitclaim and release executed by the respondents in
Dubai. It believed that the respondents executed the quitclaim documents
under duress as they were afraid that they would not be allowed to return to
the Philippines if they did not sign the documents. Further, the labor tribunal
disagreed with the labor arbiters opinion that the compromise agreement
they executed before the POEA had effectively foreclosed the illegal
dismissal complaint before the NLRC and that the respondents had been
guilty of forum shopping. It pointed out that the POEA case involved predeployment issues; whereas, the complaint before the NLRC is one for illegal
dismissal and money claims arising from employment.
Consequently, the NLRC ordered the agency, Nacino and Modern Metal to
pay, jointly and severally, the respondents, as follows:
WHEREFORE, the Decision dated 30 April 2008 is hereby REVERSED and SET
ASIDE, a new Decision is hereby issued ordering the respondents PERT/CPM
MANPOWER EXPONENTS CO., INC., ROMEO NACINO, and MODERN METAL
SOLUTIONS, INC. to jointly and severally, pay the complainants the following:
Employee
Exemplary
Damages
P20,000.00
P20,000.00
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AED
Era, MARINO
350 x 4 = 1400
AED
adea, NOEL
150 x 5 = 750
AED
Ordovez, LOUIE
250 X 3 = 750
AED
Anipan, ROBELITO 150 x 4 = 600
AED
Enjambre, SANDY 150 x 4 = 600
AED
Lumanta, ARSENIO 250 x 5 = 1250
AED
USD 400
8100 AED
P20,000.00
USD 400
8100 AED
P20,000.00
USD 400
8100 AED
P20,000.00
USD 400
8100 AED
P20,000.00
USD 400
8100 AED
P20,000.00
USD 400
8100 AED
P20,000.00
TOTAL:
6,850 AED
P400,000.0
0
or their peso equivalent at the time of actual payment plus attorney[]s fees
equivalent to 10% of the judgment award.[12]
The agency moved for reconsideration, contending that the appeal was
never perfected and that the NLRC gravely abused its discretion in reversing
the labor arbiters decision.
The respondents, on the other hand, moved for partial reconsideration,
maintaining that their salaries should have covered the unexpired portion of
their employment contracts, pursuant to the Courts ruling in Serrano v.
Gallant Maritime Services, Inc.[13]
The NLRC denied the agencys motion for reconsideration, but granted the
respondents motion.[14] It sustained the respondents argument that the
award needed to be adjusted, particularly in relation to the payment of their
salaries, consistent with the Courts ruling in Serrano. The ruling declared
unconstitutional the clause, or for three (3) months for every year of the
unexpired term, whichever is less, in Section 10, paragraph 5, of R.A. 8042,
limiting the entitlement of illegally dismissed overseas Filipino workers to
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their salaries for the unexpired term of their contract or three months,
whichever is less. Accordingly, it modified its earlier decision and adjusted
the respondents salary entitlement based on the following matrix:
Employee
Duration of
Contract
Departure Date
Unexpired portion of
date
dismissed contract
Vinuya,
ARMANDO
Alcantara,
VIRGILIO
Era, MARINO
2 years
Ladea, NOEL
2 years
29 March
2007
3 April
2007
12 May
2007
29 March
2007
3 April
2007
3 April
2007
29 March
2007
29 March
2007
2 years
2 years
2 years
2 years
2 years
8 August
2007
8 August
2007
8 August
2007
8 August
2007
26 July
2007
8 August
2007
26 July
2007
8 August
2007
19 months
days
20 months
days
21 months
days
19 months
days
21 months
days
20 months
days
20 months
days
19 months
days15
and 21
and 5
and 4
and 21
and 23
and 5
and 3
and 21
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The agency insists that it is not liable for illegal dismissal, actual or
constructive. It submits that as correctly found by the labor arbiter, the
respondents voluntarily resigned from their jobs, and even executed
affidavits of quitclaim and release; the respondents stated family concerns
for their resignation. The agency posits that the letters were duly proven as
they were written unconditionally by the respondents. It, therefore, assails
the conclusion that the respondents resigned under duress or that the
resignation letters were dubious.
The agency raises the same argument with respect to the compromise
agreements, with quitclaim and release, it entered into with Vinuya, Era,
Ladea, Enjambre, Ordovez, Alcantara, Anipan and Lumanta before the POEA,
although it submitted evidence only for six of them. Anipan, Lumanta, Vinuya
and Ladea signing one document;[19]Era[20] and Alcantara[21] signing a
document each. It points out that the agreement was prepared with the
assistance of POEA Conciliator Judy Santillan, and was duly and freely signed
by the respondents; moreover, the agreement is not conditional as it
pertains to all issues involved in the dispute between the parties.
On the third issue, the agency posits that the Serrano ruling has no
application in the present case for three reasons. First, the respondents were
not illegally dismissed and, therefore, were not entitled to their money
claims.Second, the respondents filed the complaint in 2007, while
the Serrano ruling came out on March 24, 2009. The ruling cannot be given
retroactive application. Third, R.A. 10022, which was enacted on March 8,
2010 and which amended R.A. 8042, restored the subject clause in Section
10 of R.A. 8042, declared unconstitutional by the Court.
The Respondents Position
In their Comment (to the Petition) dated September 28, 2011,[22] the
respondents ask the Court to deny the petition for lack of merit. They dispute
the agencys insistence that they resigned voluntarily. They stand firm on
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Art. 34. Prohibited Practices. It shall be unlawful for any individual, entity,
licensee, or holder of authority:
xxxx
(i) To substitute or alter employment contracts approved and verified by the
Department of Labor from the time of actual signing thereof by the parties
up to and including the periods of expiration of the same without the
approval of the Secretary of Labor[.]
Further, Article 38 of the Labor Code, as amended by R.A. 8042,35 defined
illegal recruitment to include the following act:
(i) 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[.]
Second. The agency and Modern Metal committed breach of contract.
Aggravating the contract substitution imposed upon them by their employer,
the respondents were made to suffer substandard (shocking, as they put it)
working and living arrangements. Both the original contracts the respondents
signed in the Philippines and the appointment letters issued to them by
Modern Metal in Dubai provided for free housing and transportation to and
from the jobsite. The original contract mentioned free and suitable housing.
[36]
Although no description of the housing was made in the letters of
appointment except: Accommodation: Provided by the company, it is but
reasonable to think that the housing or accommodation would be suitable.
As earlier pointed out, the respondents were made to work from 6:30 a.m. to
6:30 p.m., with a meal break of one to one and a half hours, and their
overtime work was mostly not paid or underpaid. Their living quarters were
cramped as they shared them with 27 other workers. The lodging house was
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in Sharjah, far from the jobsite in Dubai, leaving them only three to four
hours of sleep every workday because of the long hours of travel to and from
their place of work, not to mention that there was no potable water in the
lodging house which was located in an area where the air was polluted. The
respondents complained with the agency about the hardships that they were
suffering, but the agency failed to act on their reports. Significantly, the
agency failed to refute their claim, anchored on the ordeal that they went
through while in Modern Metals employ.
Third. With their original contracts substituted and their oppressive working
and living conditions unmitigated or unresolved, the respondents decision to
resign is not surprising. They were compelled by the dismal state of their
employment to give up their jobs; effectively, they were constructively
dismissed. A constructive dismissal or discharge is a quitting because
continued employment is rendered impossible, unreasonable or unlikely, as,
an offer involving a demotion in rank and a diminution in pay.[37]
Without doubt, the respondents continued employment with Modern Metal
had become unreasonable. A reasonable mind would not approve of a
substituted contract that pays a diminished salary from 1350 AED a month
in the original contract to 1,000 AED to 1,200 AED in the appointment letters,
a difference of 150 AED to 250 AED (not just 50 AED as the agency claimed)
or an extended employment (from 2 to 3 years) at such inferior terms, or a
free and suitable housing which is hours away from the job site, cramped
and crowded, without potable water and exposed to air pollution.
We thus cannot accept the agencys insistence that the respondents
voluntarily resigned since they personally prepared their resignation
letters[38] in their own handwriting, citing family problems as their common
ground for resigning. As the CA did, we find the resignation letters
dubious,[39] not only for having been lopsidedly worded to ensure that the
employer is rendered free from any liability, but also for the odd coincidence
that all the respondents had, at the same time, been confronted with urgent
family problems so that they had to give up their employment and go home.
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The truth, as the respondents maintain, is that they cited family problems as
reason out of fear that Modern Metal would not give them their salaries and
their release papers. Only Era was bold enough to say the real reason for his
resignation to protest company policy.
We likewise find the affidavits[40] of quitclaim and release which the
respondents executed suspect. Obviously, the affidavits were prepared as a
follow through of the respondents supposed voluntary resignation. Unlike
the resignation letters, the respondents had no hand in the preparation of
the affidavits. They must have been prepared by a representative of Modern
Metal as they appear to come from a standard form and were apparently
introduced for only one purpose to lend credence to the resignation
letters. In Modern Metals haste, however, to secure the respondents
affidavits, they did not check on the model they used. Thus, Lumantas
affidavit[41]mentioned a G & A International Manpower as his recruiting
agency, an entity totally unknown to the respondents; the same thing is true
for Eras affidavit.[42] This confusion is an indication of the employers hurried
attempt to avoid liability to the respondents.
The respondents position is well-founded. The NLRC itself had the same
impression, which we find in order and hereunder quote:
The acts of respondents of requiring the signing of new contracts upon
reaching the place of work and requiring employees to sign quitclaims before
they are paid and repatriated to the Philippines are all too familiar stories of
despicable labor practices which our employees are subjected to abroad.
While it is true that quitclaims are generally given weight, however, given
the facts of the case, We are of the opinion that the complainants-appellants
executed the same under duress and fear that they will not be allowed to
return to the Philippines.[43]
Fourth. The compromise agreements (with quitclaim and release)
[44]
between the respondents and the agency before the POEA did not
foreclose their employer-employee relationship claims before the NLRC. The
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respondents, except Ordovez and Enjambre, aver in this respect that they all
paid for their own airfare when they returned home[45] and that the
compromise agreements settled only their claim for refund of their airfare,
but not their other claims.[46] Again, this submission has not been refuted or
denied by the agency.
On the surface, the compromise agreements appear to confirm the agencys
position, yet a closer examination of the documents would reveal their true
nature. Copy of the compromise agreement is a standard POEA document,
prepared in advance and readily made available to parties who are involved
in disputes before the agency, such as what the respondents filed with the
POEA ahead (filed in 2007) of the illegal dismissal complaint before the NLRC
(filed on March 5, 2008).
Under the heading Post-Deployment, the agency agreed to pay Era[47] and
Alcantara[48] P12,000.00 each, purportedly in satisfaction of the respondents
claims arising from overseas employment, consisting of unpaid salaries,
salary differentials and other benefits, including money claims with the NLRC.
The last document was signed by (1) Anipan, (2) Lumanta, (3) Ladea, (4)
Vinuya, (5) Jonathan Nangolinola, and (6) Zosimo Gatchalian (the last four
signing on the left hand side of the document; the last two were not among
those who filed the illegal dismissal complaint).[49] The agency agreed to pay
them a total of P72,000.00. Although there was no breakdown of the
entitlement for each of the six, but guided by the compromise agreement
signed by Era and Alcantara, we believe that the agency paid them
P12,000.00 each, just like Era and Alcantara.
The uniform insubstantial amount for each of the signatories to the
agreement lends credence to their contention that the settlement pertained
only to their claim for refund of the airfare which they shouldered when they
returned to the Philippines. The compromise agreement, apparently, was
intended by the agency as a settlement with the respondents and others
with similar claims, which explains the inclusion of the two (Nangolinola and
Gatchalian) who were not involved in the case with the NLRC. Under the
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Further, C.F. Sharp Crew Management, Inc. is hereby found guilty of one (1)
count of violation of Art. 29 of the Labor Code in relation to Sec. 2 (k), Rule I,
Book VI of the Rules and Regulations Governing Overseas Employment, and
is imposed the penalty of two (2) months suspension of its license or in lieu
thereof, to pay a fine of P20,000.00.
The penalties of suspension for both violations shall be served cumulatively.
Out of the P230,000.00 cash supersedeas bond posted by the petitionerappellant, let the amount of P160,000.00 be released and refunded to it,
retaining P70,000.00 to be applied to the payment of the fines as imposed
above, should the petitioner opt to pay the fine instead of undergoing
suspension of its license. However, the suspension shall remain in force until
such fine is paid, or in the event that the petitioner-appellant further appeals
this Order.
The charge and finding of violation of Sec. 6 (b) of R.A. 8042 are hereby
referred to the Anti-Illegal Recruitment Branch for appropriate action.
SO ORDERED.[14]
C.F. Sharp's motion for reconsideration having been denied on February 5,
1999 by the then Undersecretary, Jose M. Espanol, Jr.,[15] it elevated the case
to this Court on petition for certiorari, with the case docketed as G.R. No.
137573. But, in the June 16, 1999 Resolution, this Court referred the petition
to the CA.
In the meantime, on April 15, 1999, C.F. Sharp requested the lifting of the
suspension decreed by the Secretary of Labor in his December 19, 1997
Order,[16] which was granted by Deputy Administrator for Licensing and
Adjudication Valentin C. Guanio. C.F. Sharp was allowed to deploy seafarers
for its principals.
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SO ORDERED.[23]
This Order was issued in response to C.F. Sharp's request to lift the
suspension decree of the Secretary of Labor. The request stated, viz.:
[W]e write in behalf of our client, C.F. Sharp Crew Management Inc.,
regarding the Advice To Operating Units dated April 15, 1999, which arose
from the Decision of the Office of the Secretary of Labor in the case entitled
C.F. Sharp Crew Management, Inc. versus Rizal Shipping and docketed as RV
97-01-004.
In this connection, we would like to express our option to have the cash bond
posted by us in the case entitled C.F. Sharp Crew Management, Inc. versus
Rizal Shipping and docketed as RV 97-01-044 to answer for any fine that the
Supreme Court may finally decide that our client should pay in the Case
entitled, C.F. Sharp Crew Management, Inc. vs. Secretary Leonardo
Quisumbing and Rizal International Shipping Services and docketed as G.R.
No. 137573.
Under the circumstances, it is most respectfully requested that the aforesaid
advice be RECALLED and that a clearance be issued in favor of our client, C.F.
Sharp Crew Management, Inc.
Hoping for your immediate and favorable action on the matter.[24] (Emphasis
supplied)
C.F. Sharp's letter was explicit that the cash bond posted would be
answerable for any fine that it may ultimately be held liable to pay by virtue
of a final decision. In fact, on March 25, 1999, prior to the filing of the abovequoted letter-request, C.F. Sharp had already filed a petition
for certiorari assailing the Orders of the Secretary of Labor. Furthermore,
there is no showing that the assailed Order of then Secretary Quisumbing
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was indeed executed to warrant the appellate court's conclusion that C.F.
Sharp was estopped from assailing the said Order. Clearly, there is no basis
for the CA to rule that C.F. Sharp voluntarily executed, or acquiesced to, the
execution of the unfavorable ruling of the Secretary of Labor.
The first issue having been settled, we now resolve whether C.F. Sharp is
liable for illegal recruitment.
C.F. Sharp denies committing illegal recruitment activities in December
1996. It posits that the interviews undertaken by Savva and Tjiakouris do
not amount to illegal recruitment under Section 6 of Republic Act No. 8042 or
the Migrants Workers Act. Further, it contends that the interviews conducted
were not for selection and recruitment purposes, but were in connection with
the seamen's past employment with Rizal, specifically, their complaints for
non-remittance of SSS premiums, withholding of wages, illegal exactions
from medical examinations and delayed allotments. It claims that it was only
upon approval of its application for accreditation that the employment
contracts were entered into and actual deployment of the seamen was
made. C.F. Sharp, thus, concludes that it cannot be held liable for illegal
recruitment.
The reasoning is specious.
Undoubtedly, in December 1996, LCL had no approved POEA license to
recruit. C.F. Sharp's accreditation as LCL's new manning agency was still
pending approval at that time. Yet Savva and Tjiakouris, along with C.F.
Sharp, entertained applicants for LCL's vessels, and conducted preparatory
interviews.
Article 13(b) of the Labor Code defines recruitment and placement as:
any act of canvassing, enlisting, contracting, transporting, utilizing, hiring or
procuring workers, and includes referrals, contract services, promising or
advertising for employment, locally or abroad whether for profit or not:
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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.
On the basis of this definition and contrary to what C.F. Sharp wants to
portray - the conduct of preparatory interviews is a recruitment activity.
The fact that C.F. Sharp did not receive any payment during the interviews is
of no moment. From the language of Article 13(b), the act of recruitment
may be "for profit or not." Notably, it is the lack of the necessary license or
authority, not the fact of payment, that renders the recruitment activity of
LCL unlawful.
C.F. Sharp's claim that the interviews were not for selection and recruitment
purposes does not impress. As the Secretary of Labor aptly said:
This Office cannot conceive of a good reason why LCL/Savva/Tjiakouris
should be interested at the time in unearthing alleged violations committed
by Rizal Shipping whose representative status as manning agency was to be
terminated in just a few weeks thereafter, spending valuable time and
money in the process. They stood to gain nothing from such taxing exercise
involving several hundreds of ex-crew members, which could be handled by
government agencies like the POEA, NLRC, SSS. The observation of the
POEA Administrator that the complaints of the crewmen were filed only after
Rizal Shipping filed its complaints with the POEA merely to bolster the
defense of CF Sharp/LCL/Savva and Tjiakouris, is telling.
Upon the other hand, it was more to LCL'S gain to interview, select and
recruit the disembarking crewmen previously recruited by Rizal Shipping,
using CF Sharp's facilities, as this would result in less recruitment time and
cost.
Finally, the claim of Savva and Tjiakouris that Savva "talked to the POEA
representative during their visit" about these interviews and the violations
which were confirmed, is just an afterthought to support their defense; there
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is no entry in the Inspection Report confirming such claim. If such claim were
true, then the "able officer" of CF Sharp (LCL's Attorney-in fact) who signed
his conformity on the 4th page of the report, and put his initial on the last
page of the report containing the handwritten findings of the inspectors on
the selection and recruitment activities of Savva and Tjiakouris, would have
insisted that an entry be made thereon about what Savva told the
inspectors, or he could simply himself have written thereon that the two LCL
officials merely conducted interviews on the violations committed by Rizal
Shipping. However, the report is bereft of anything to that effect. More
significant is the fact that the inspectors, in their Memorandum dated
December 11, 1996 (the very same day they conducted the inspection),
stated that they "approached said persons" (referring to Banawis, Savva and
Tjiakouris) "and told us that they were doing interview to select applicants"
to complement the crew of a passenger ship for [LOUIS] CRUISE LINES." [25]
Indeed, it was Savva and Tjiakouris that conducted the interviews, and
undertook selection and hiring. However, C.F. Sharp cannot steer clear of
liability for it conspired with LCL in committing illegal recruitment activities.
As the Secretary of Labor had taken pains to demonstrate:
x x x [T]here is substantial evidence on record that as alleged by Rizal
Shipping, CF Sharp conspired with LCL and its officers Savva and Tjiakouris to
conduct recruitment activities in its offices, at a time when LCL was not yet
its POEA-accredited principal, in violation of Sec. 6, R.A. 8042 in relation to
Article 13(b) and (f) and Article 16 of the Labor Code as amended; Rule II(jj)
Book I, and Sec. 1 and 6, Rule I, Book III, all of the POEA Rules and
Regulations Governing Overseas Employment.
Indeed, C.F. Sharp was aware of these violations when it alleged in its
Petition for Review that:
"in any and all events, the findings relied upon by the Public Respondent
show, at best, that the parties responsible for the alleged acts of illegal
recruitment are LCL and its officers alone, or at worst, LCL and its officers, in
conspiracy with petitioner. Yet, it is petitioner alone, who is severely
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authority under Sec. 6, R.A. 8042 in relation to Article 13(b) and (f) and
Article 16 of the Labor Code as amended; Rule II(jj), Book I, and Sec. 1 and 6,
Rule 1, Book III, POEA Rules and Regulations Governing Overseas
Employment.
The petitioner-appellant alleges that "there is no need for a license to enable
LCL's officers to conduct their alleged activities of interviewing, selecting and
hiring crewmen. Indeed, LCL's officers could have conducted these activities
without a license."
Such claim is without legal basis, as direct hiring by employers of Filipino
workers for overseas employment is banned; they can only do so through,
among others, licensed private recruitment and shipping/mining agencies
(Art. 18, Labor Code as amended; Sec. 1, Rule 1, Book II, POEA Rules and
Regulations Governing Overseas Employment).[26]
We need not say more.
C.F. Sharp also denies violating Article 29 of the Labor Code. It insists that
Henry Desiderio was neither an employee nor an agent of C.F. Sharp. Yet,
except for its barefaced denial, no proof was adduced to substantiate it.
Desiderio's name does not appear in the list of employees and officials
submitted by C.F. Sharp to the POEA. However, his name appeared as the
contact person of the applicants for the position of 2nd and 3rd assistant
engineers and machinist/fitter in C.F Sharp's advertisement in the February
2, 1997 issue of The Bulletin Today.[27]
Article 29 of the Labor Code is explicit, viz.:
Art. 29. NON-TRANSFERABILITY OF LICENSE OR AUTHORITY
No license or authority shall be used directly or indirectly by any person
other than the one in whose favor it was issued or at any place other than
that stated in the license or authority, nor may such license or authority be
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not bound by the technical niceties of law and procedure and the rules
obtaining in the courts of law.[29] Hence, whatever merit C.F. Sharp's
argument might have in the context of ordinary civil actions, where the rules
of evidence apply with greater rigidity, disappears when adduced in
connection with labor cases.
The claim of denial of due process on the part of C.F. Sharp must also be
rejected. The essence of due process lies in the reasonable opportunity
afforded a party to be heard and to submit any evidence in support of its
defense. What is vital is not the opportunity to cross-examine an adverse
witness, but an opportunity to be heard.[30]
In this case, C.F. Sharp was given ample opportunity to be heard, to adduce
evidence in support of its version of the material occurrences, and to
controvert Rizal's allegation and the Inspection Report. It submitted its
position paper with supporting affidavits and documents, and additionally
pleaded its causes on appeal before the Secretary of Labor. Under the
circumstances, a claim of denial of due process on C.F. Sharp's part is
completely unavailing.
C.F. Sharp next impugns the probative value given by the Administrator and
the Secretary of Labor to the Inspection Report. It alleges that the POEA
Administrator, the Labor Secretary and the CA relied only on the Inspection
Report and gave very little or no probative value to the affidavits that it
submitted in support of its claim.
C.F. Sharp would have us re-evaluate the factual veracity and probative value
of the evidence submitted in the proceedings a quo. C.F. Sharp may well be
reminded that it is not our function to review, examine, and evaluate or
weigh the evidence adduced by the parties. Elementary is the principle that
this Court is not a trier of facts. Judicial review of labor cases does not go
beyond the evaluation of the sufficiency of the evidence upon which the
labor officials' findings rest. Hence, where the factual findings of the labor
tribunals or agencies conform to, and are affirmed by, the CA, the same are
accorded respect and finality, and are binding upon this Court. It is only
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when the findings of the labor agencies and the appellate court are in
conflict that this Court will review the records to determine which findings
should be upheld as being more in conformity with the evidentiary facts.
Where the CA affirms the labor agencies on review and there is no showing
whatsoever that said findings are patently erroneous, this Court is bound by
the said findings.[31]
Although the rule admits of several exceptions, none of them are in point in
this case. In any event, we have carefully examined the factual findings of
the CA and found the same to be borne out of the record and sufficiently
anchored on the evidence presented.
WHEREFORE, the petition is DENIED. The Decision and Resolution of the
Court of Appeals in CA-G.R. SP. No. 53747 are AFFIRMED.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 152642
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On June 7, 1995 Congress enacted Republic Act (R.A.) 8042 or the Migrant
Workers and Overseas Filipinos Act of 1995 that, for among other purposes,
sets the Governments policies on overseas employment and establishes a
higher standard of protection and promotion of the welfare of migrant
workers, their families, and overseas Filipinos in distress.
G.R. 152642 and G.R. 152710
(Constitutionality of Sections 29 and 30, R.A. 8042)
Sections 29 and 30 of the Act1 commanded the Department of Labor and
Employment (DOLE) to begin deregulating within one year of its passage the
business of handling the recruitment and migration of overseas Filipino
workers and phase out within five years the regulatory functions of the
Philippine Overseas Employment Administration (POEA).
On January 8, 2002 respondents Rey Salac, Willie D. Espiritu, Mario
Montenegro, Dodgie Belonio, Lolit Salinel, and Buddy Bonnevie (Salac, et al.)
filed a petition for certiorari, prohibition and mandamus with application for
temporary restraining order (TRO) and preliminary injunction against
petitioners, the DOLE Secretary, the POEA Administrator, and the Technical
Education and Skills Development Authority (TESDA) Secretary-General
before the Regional Trial Court (RTC) of Quezon City, Branch 96. 2
Salac, et al. sought to: 1) nullify DOLE Department Order 10 (DOLE DO 10)
and POEA Memorandum Circular 15 (POEA MC 15); 2) prohibit the DOLE,
POEA, and TESDA from implementing the same and from further issuing rules
and regulations that would regulate the recruitment and placement of
overseas Filipino workers (OFWs); and 3) also enjoin them to comply with the
policy of deregulation mandated under Sections 29 and 30 of Republic Act
8042.
On March 20, 2002 the Quezon City RTC granted Salac, et al.s petition and
ordered the government agencies mentioned to deregulate the recruitment
and placement of OFWs.3 The RTC also annulled DOLE DO 10, POEA MC 15,
and all other orders, circulars and issuances that are inconsistent with the
policy of deregulation under R.A. 8042.
Prompted by the RTCs above actions, the government officials concerned
filed the present petition in G.R. 152642 seeking to annul the RTCs decision
and have the same enjoined pending action on the petition.
On April 17, 2002 the Philippine Association of Service Exporters, Inc.
intervened in the case before the Court, claiming that the RTC March 20,
2002 Decision gravely affected them since it paralyzed the deployment
abroad of OFWs and performing artists. The Confederated Association of
Licensed Entertainment Agencies, Incorporated (CALEA) intervened for the
same purpose.4
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On May 23, 2002 the Court5 issued a TRO in the case, enjoining the Quezon
City RTC, Branch 96, from enforcing its decision.
In a parallel case, on February 12, 2002 respondents Asian Recruitment
Council Philippine Chapter, Inc. and others (Arcophil, et al.) filed a petition for
certiorari and prohibition with application for TRO and preliminary injunction
against the DOLE Secretary, the POEA Administrator, and the TESDA
Director-General,6 before the RTC of Quezon City, Branch 220, to enjoin the
latter from implementing the 2002 Rules and Regulations Governing the
Recruitment and Employment of Overseas Workers and to cease and desist
from issuing other orders, circulars, and policies that tend to regulate the
recruitment and placement of OFWs in violation of the policy of deregulation
provided in Sections 29 and 30 of R.A. 8042.
On March 12, 2002 the Quezon City RTC rendered an Order, granting the
petition and enjoining the government agencies involved from exercising
regulatory functions over the recruitment and placement of OFWs. This
prompted the DOLE Secretary, the POEA Administrator, and the TESDA
Director-General to file the present action in G.R. 152710. As in G.R. 152642,
the Court issued on May 23, 2002 a TRO enjoining the Quezon City RTC,
Branch 220 from enforcing its decision.
On December 4, 2008, however, the Republic informed7 the Court that on
April 10, 2007 former President Gloria Macapagal-Arroyo signed into law R.A.
94228 which expressly repealed Sections 29 and 30 of R.A. 8042 and adopted
the policy of close government regulation of the recruitment and deployment
of OFWs. R.A. 9422 pertinently provides:
xxxx
SEC. 1. Section 23, paragraph (b.1) of Republic Act No. 8042, otherwise
known as the "Migrant Workers and Overseas Filipinos Act of 1995" is hereby
amended to read as follows:
(b.1) Philippine Overseas Employment Administration The Administration
shall regulate private sector participation in the recruitment and overseas
placement of workers by setting up a licensing and registration system. It
shall also formulate and implement, in coordination with 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.
In addition to its powers and functions, the administration shall inform
migrant workers not only of their rights as workers but also of their rights as
human beings, instruct and guide the workers how to assert their rights and
provide the available mechanism to redress violation of their rights.
In the recruitment and placement of workers to service the requirements for
trained and competent Filipino workers of foreign governments and their
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(a) Any person found guilty of illegal recruitment 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 not less than two
hundred thousand pesos (P200,000.00) nor more than five hundred
thousand pesos (P500,000.00).
(b) The penalty of life imprisonment and a fine of not less than five
hundred thousand pesos (P500,000.00) nor more than one million
pesos (P1,000,000.00) shall be imposed if illegal recruitment
constitutes economic sabotage as defined herein.
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.10
Finally, Section 9 of R.A. 8042 allowed the filing of criminal actions arising
from "illegal recruitment" before the RTC of the province or city where the
offense was committed or where the offended party actually resides at the
time of the commission of the offense.
The RTC of Manila declared Section 6 unconstitutional after hearing on the
ground that its definition of "illegal recruitment" is vague as it fails to
distinguish between licensed and non-licensed recruiters11 and for that
reason gives undue advantage to the non-licensed recruiters in violation of
the right to equal protection of those that operate with government licenses
or authorities.
But "illegal recruitment" as defined in Section 6 is clear and unambiguous
and, contrary to the RTCs finding, actually makes a distinction between
licensed and non-licensed recruiters. By its terms, persons who engage in
"canvassing, enlisting, contracting, transporting, utilizing, hiring, or procuring
workers" without the appropriate government license or authority are guilty
of illegal recruitment whether or not they commit the wrongful acts
enumerated in that section. On the other hand, recruiters who engage in the
canvassing, enlisting, etc. of OFWs, although with the appropriate
government license or authority, are guilty of illegal recruitment only if they
commit any of the wrongful acts enumerated in Section 6.
The Manila RTC also declared Section 7 unconstitutional on the ground that
its sweeping application of the penalties failed to make any distinction as to
the seriousness of the act committed for the application of the penalty
imposed on such violation. As an example, said the trial court, the mere
failure to render a report under Section 6(h) or obstructing the inspection by
the Labor Department under Section 6(g) are penalized by imprisonment for
six years and one day and a minimum fine of P200,000.00 but which could
unreasonably go even as high as life imprisonment if committed by at least
three persons.
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Apparently, the Manila RTC did not agree that the law can impose such grave
penalties upon what it believed were specific acts that were not as
condemnable as the others in the lists. But, in fixing uniform penalties for
each of the enumerated acts under Section 6, Congress was within its
prerogative to determine what individual acts are equally reprehensible,
consistent with the State policy of according full protection to labor, and
deserving of the same penalties. It is not within the power of the Court to
question the wisdom of this kind of choice. Notably, this legislative policy has
been further stressed in July 2010 with the enactment of R.A. 1002212 which
increased even more the duration of the penalties of imprisonment and the
amounts of fine for the commission of the acts listed under Section 7.
Obviously, in fixing such tough penalties, the law considered the unsettling
fact that OFWs must work outside the countrys borders and beyond its
immediate protection. The law must, therefore, make an effort to somehow
protect them from conscienceless individuals within its jurisdiction who,
fueled by greed, are willing to ship them out without clear assurance that
their contracted principals would treat such OFWs fairly and humanely.
As the Court held in People v. Ventura,13 the State under its police power
"may prescribe such regulations as in its judgment will secure or tend to
secure the general welfare of the people, to protect them against the
consequence of ignorance and incapacity as well as of deception and fraud."
Police power is "that inherent and plenary power of the State which enables
it to prohibit all things hurtful to the comfort, safety, and welfare of society."14
The Manila RTC also invalidated Section 9 of R.A. 8042 on the ground that
allowing the offended parties to file the criminal case in their place of
residence would negate the general rule on venue of criminal cases which is
the place where the crime or any of its essential elements were committed.
Venue, said the RTC, is jurisdictional in penal laws and, allowing the filing of
criminal actions at the place of residence of the offended parties violates
their right to due process. Section 9 provides:
SEC. 9. Venue. 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 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.
But there is nothing arbitrary or unconstitutional in Congress fixing an
alternative venue for violations of Section 6 of R.A. 8042 that differs from the
venue established by the Rules on Criminal Procedure. Indeed, Section 15(a),
Rule 110 of the latter Rules allows exceptions provided by laws. Thus:
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SEC. 15. Place where action is to be instituted. (a) Subject to existing laws,
the criminal action shall be instituted and tried in the court of the
municipality or territory where the offense was committed or where any of its
essential ingredients occurred. (Emphasis supplied)
xxxx
Section 9 of R.A. 8042, as an exception to the rule on venue of criminal
actions is, consistent with that laws declared policy15 of providing a criminal
justice system that protects and serves the best interests of the victims of
illegal recruitment.
G.R. 167590, G.R. 182978-79,16 and G.R. 184298-9917
(Constitutionality of Section 10, last sentence of 2nd paragraph)
G.R. 182978-79 and G.R. 184298-99 are consolidated cases. Respondent
spouses Simplicio and Mila Cuaresma (the Cuaresmas) filed a claim for death
and insurance benefits and damages against petitioners Becmen Service
Exporter and Promotion, Inc. (Becmen) and White Falcon Services, Inc.
(White Falcon) for the death of their daughter Jasmin Cuaresma while
working as staff nurse in Riyadh, Saudi Arabia.
The Labor Arbiter (LA) dismissed the claim on the ground that the Cuaresmas
had already received insurance benefits arising from their daughters death
from the Overseas Workers Welfare Administration (OWWA). The LA also
gave due credence to the findings of the Saudi Arabian authorities that
Jasmin committed suicide.
On appeal, however, the National Labor Relations Commission (NLRC) found
Becmen and White Falcon jointly and severally liable for Jasmins death and
ordered them to pay the Cuaresmas the amount of US$113,000.00 as actual
damages. The NLRC relied on the Cabanatuan City Health Offices autopsy
finding that Jasmin died of criminal violence and rape.
Becmen and White Falcon appealed the NLRC Decision to the Court of
Appeals (CA).18 On June 28, 2006 the CA held Becmen and White Falcon
jointly and severally liable with their Saudi Arabian employer for actual
damages, with Becmen having a right of reimbursement from White Falcon.
Becmen and White Falcon appealed the CA Decision to this Court.
On April 7, 2009 the Court found Jasmins death not work-related or workconnected since her rape and death did not occur while she was on duty at
the hospital or doing acts incidental to her employment. The Court deleted
the award of actual damages but ruled that Becmens corporate directors
and officers are solidarily liable with their company for its failure to
investigate the true nature of her death. Becmen and White Falcon
abandoned their legal, moral, and social duty to assist the Cuaresmas in
obtaining justice for their daughter. Consequently, the Court held the foreign
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employer Rajab and Silsilah, White Falcon, Becmen, and the latters
corporate directors and officers jointly and severally liable to the Cuaresmas
for: 1) P2,500,000.00 as moral damages; 2) P2,500,000.00 as exemplary
damages; 3) attorneys fees of 10% of the total monetary award; and 4) cost
of suit.
On July 16, 2009 the corporate directors and officers of Becmen, namely,
Eufrocina Gumabay, Elvira Taguiam, Lourdes Bonifacio and Eddie De Guzman
(Gumabay, et al.) filed a motion for leave to Intervene. They questioned the
constitutionality of the last sentence of the second paragraph of Section 10,
R.A. 8042 which holds the corporate directors, officers and partners jointly
and solidarily liable with their company for money claims filed by OFWs
against their employers and the recruitment firms. On September 9, 2009
the Court allowed the intervention and admitted Gumabay, et al.s motion for
reconsideration.
The key issue that Gumabay, et al. present is whether or not the 2nd
paragraph of Section 10, R.A. 8042, which holds the corporate directors,
officers, and partners of recruitment and placement agencies jointly and
solidarily liable for money claims and damages that may be adjudged
against the latter agencies, is unconstitutional.
In G.R. 167590 (the PASEI case), the Quezon City RTC held as
unconstitutional the last sentence of the 2nd paragraph of Section 10 of R.A.
8042. It pointed out that, absent sufficient proof that the corporate officers
and directors of the erring company had knowledge of and allowed the illegal
recruitment, making them automatically liable would violate their right to
due process of law.
The pertinent portion of Section 10 provides:
SEC. 10. Money Claims. x x x
The liability of the principal/employer and the recruitment/placement agency
for any and all claims under this section shall be joint and several. This
provision shall be incorporated in the contract for overseas employment and
shall be a condition precedent for its approval. The performance bond to be
filed by the recruitment/placement agency, as provided by law, shall be
answerable for all money claims or damages that may be awarded to the
workers. If the recruitment/placement agency is a juridical being, the
corporate officers and directors and partners as the case may be, shall
themselves be jointly and solidarily liable with the corporation or partnership
for the aforesaid claims and damages. (Emphasis supplied)
But the Court has already held, pending adjudication of this case, that the
liability of corporate directors and officers is not automatic. To make them
jointly and solidarily liable with their company, there must be a finding that
they were remiss in directing the affairs of that company, such as sponsoring
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company nurse. The appellant was seated beside her and introduced himself
as a recruiter of workers for employment abroad. The appellant told her that
his sister is a head nurse in a nursing home in Los Angeles, California, USA
and he could help her get employed as a nurse at a monthly salary of Two
Thousand US Dollars ($2,000.00) and that she could leave in two (2) weeks
time. He further averred that he has connections with the US Embassy, being
a US Federal Bureau of Investigation (FBI) agent on official mission in the
Philippines for one month. According to the appellant, she has to pay the
amount of US$300.00 intended for the US consul. The appellant gave his
pager number and instructed her to contact him if she is interested to apply
for a nursing job abroad.
On January 21, 1996, the appellant fetched her at her office. They then went
to her house where she gave him the photocopies of her transcript of
records, diploma, Professional Regulatory Commission (PRC) license and
other credentials. On January 28 or 29, 1996, she handed to the appellant
the amount of US$300.00 at the McDonalds outlet in North EDSA, Quezon
City, and the latter showed to her a photocopy of her supposed US visa. The
appellant likewise got several pieces of jewelry which she was then selling
and assured her that he would sell the same at the US embassy. However,
the appellant did not issue a receipt for the said money and jewelry.
Thereafter, the appellant told her to resign from her work at SM because she
was booked with Northwest Airlines and to leave for Los Angeles, California,
USA on February 25, 1996.
The appellant promised to see her and some of his other recruits before their
scheduled departure to hand to them their visas and passports; however, the
appellant who was supposed to be with them in the flight failed to show up.
Instead, the appellant called and informed her that he failed to give the
passport and US visa because he had to go to the province because his wife
died. She and her companions were not able to leave for the United States.
They went to the supposed residence of the appellant to verify, but nobody
knew him or his whereabouts. They tried to contact him at the hotel where
he temporarily resided, but to no avail. They also inquired from the US
embassy and found out that there was no such person connected with the
said office. Thus, she decided to file a complaint with the National Bureau of
Investigation (NBI).
Prosecution witness Geraldine Lagman, for her part, testified that she is a
registered nurse by profession. In the morning of January 22, 1996, she went
to SM North EDSA, Quezon City to visit her cousin Imelda Bamba. At that
time, Bamba informed her that she was going to meet the appellant who is
an FBI agent and was willing to help nurses find a job abroad. Bamba invited
Lagman to go with her. On the same date at about 2:00 oclock in the
afternoon, she and Bamba met the appellant at the SM Fast-Food Center,
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Basement, North EDSA, Quezon City. The appellant convinced them of his
ability to send them abroad and told them that he has a sister in the United
States. Lagman told the appellant that she had no working experience in any
hospital but the appellant assured her that it is not necessary to have one.
The appellant asked for US$300.00 as payment to secure an American visa
and an additional amount of Three Thousand Four Hundred Pesos
(P3,400.00) as processing fee for other documents.
On January 24, 1996, she and the appellant met again at SM North EDSA,
Quezon City wherein she handed to the latter her passport and transcript of
records. The appellant promised to file the said documents with the US
embassy. After one (1) week, they met again at the same place and the
appellant showed to her a photocopy of her US visa. This prompted her to
give the amount of US$300.00 and two (2) bottles of Black Label to the
appellant. She gave the said money and liquor to the appellant without any
receipt out of trust and after the appellant promised her that he would issue
the necessary receipt later. The appellant even went to her house, met her
mother and uncle and showed to them a computer printout from Northwest
Airlines showing that she was booked to leave for Los Angeles, California,
USA on February 25, 1996.
Four days after their last meeting, Extelcom, a telephone company, called
her because her number was appearing in the appellants cellphone
documents. The caller asked if she knew him because they were trying to
locate him, as he was a swindler who failed to pay his telephone bills in the
amount of P100,000.00. She became suspicious and told Bamba about the
matter. One (1) week before her scheduled flight on February 25, 1996, they
called up the appellant but he said he could not meet them because his
mother passed away. The appellant never showed up, prompting her to file a
complaint with the NBI for illegal recruitment.
Lastly, witness Alma Singh who is also a registered nurse, declared that she
first met the appellant on February 13, 1996 at SM North EDSA, Quezon City
when Imelda Bamba introduced the latter to her. The appellant told her that
he is an undercover agent of the FBI and he could fix her US visa as he has a
contact in the US embassy. The appellant told her that he could help her and
her companions Haidee Raullo, Geraldine Lagman and Imelda Bamba find
jobs in the US as staff nurses in home care centers.
On February 14, 1996 at about 6:30 in the evening, the appellant got her
passport and picture. The following day or on February 15, 1996, she gave
the appellant the amount of US$300.00 and a bottle of cognac as "grease
money" to facilitate the processing of her visa. When she asked for a receipt,
the appellant assured her that there is no need for one because she was
being directly hired as a nurse in the United States.
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She again met the appellant on February 19, 1996 at the Farmers Plaza and
this time, the appellant required her to submit photocopies of her college
diploma, nursing board certificate and PRC license. To show his sincerity, the
appellant insisted on meeting her father. They then proceeded to the office
of her father in Barrio Ugong, Pasig City and she introduced the appellant.
Thereafter, the appellant asked permission from her father to allow her to go
with him to the Northwest Airlines office in Ermita, Manila to reserve airline
tickets. The appellant was able to get a ticket confirmation and told her that
they will meet again the following day for her to give P10,000.00 covering
the half price of her plane ticket. Singh did not meet the appellant as agreed
upon. Instead, she went to Bamba to inquire if the latter gave the appellant
the same amount and found out that Bamba has not yet given the said
amount. They then paged the appellant through his beeper and told him that
they wanted to see him. However, the appellant avoided them and reasoned
out that he could not meet them as he had many things to do. When the
appellant did not show up, they decided to file a complaint for illegal
recruitment with the NBI.
The prosecution likewise presented the following documentary evidence:
Exh. "A" Certification dated February 23, 1998 issued by Hermogenes C.
Mateo, Director II, Licensing Branch, POEA.
Exh. "B" Affidavit of Alma E. Singh dated February 23, 1996.3
On the other hand, the case for the appellant, as culled from his Brief, is as
follows:
Accused JOSEPH JAMILOSA testified on direct examination that he got
acquainted with Imelda Bamba inside an aircon bus bound for Caloocan City
when the latter borrowed his cellular phone to call her office at Shoe Mart
(SM), North Edsa, Quezon City. He never told Bamba that he could get her a
job in Los Angeles, California, USA, the truth being that she wanted to leave
SM as company nurse because she was having a problem thereat. Bamba
called him up several times, seeking advice from him if Los Angeles,
California is a good place to work as a nurse. He started courting Bamba and
they went out dating until the latter became his girlfriend. He met Geraldine
Lagman and Alma Singh at the Shoe Mart (SM), North Edsa, Quezon City thru
Imelda Bamba. As complainants were all seeking advice on how they could
apply for jobs abroad, lest he be charged as a recruiter, he made Imelda
Bamba, Geraldine Lagman and Alma Singh sign separate certifications on
January 17, 1996 (Exh. "2"), January 22, 1996 (Exh. "4"), and February 19,
1996 (Exh. "3"), respectively, all to the effect that he never recruited them
and no money was involved. Bamba filed an Illegal Recruitment case against
him because they quarreled and separated. He came to know for the first
time that charges were filed against him in September 1996 when a
preliminary investigation was conducted by Fiscal Daosos of the
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Department of Justice. (TSN, October 13, 1999, pp. 3-9 and TSN, December
8, 1999, pp. 2-9)4
On November 10, 2000, the RTC rendered judgment finding the accused
guilty beyond reasonable doubt of the crime charged.5 The fallo of the
decision reads:
WHEREFORE, judgment is hereby rendered finding accused guilty beyond
reasonable doubt of Illegal Recruitment in large scale; accordingly, he is
sentenced to suffer the penalty of life imprisonment and to pay a fine of Five
Hundred Thousand Pesos (P500,000.00), plus costs.
Accused is ordered to indemnify each of the complainants, Imelda Bamba,
Geraldine Lagman and Alma Singh the amount of Three Hundred US Dollars
($300.00).
SO ORDERED.6
In rejecting the defenses of the appellant, the trial court declared:
To counter the version of the prosecution, accused claims that he did not
recruit the complainants for work abroad but that it was they who sought his
advice relative to their desire to apply for jobs in Los Angeles, California, USA
and thinking that he might be charged as a recruiter, he made them sign
three certifications, Exh. "2," "3" and "4," which in essence state that
accused never recruited them and that there was no money involved.
Accuseds contention simply does not hold water. Admittedly, he executed
and submitted a counter-affidavit during the preliminary investigation at the
Department of Justice, and that he never mentioned the aforesaid
certifications, Exhibits 2, 3 and 4 in said counter-affidavit. These
certifications were allegedly executed before charges were filed against him.
Knowing that he was already being charged for prohibited recruitment, why
did he not bring out these certifications which were definitely favorable to
him, if the same were authentic. It is so contrary to human nature that one
would suppress evidence which would belie the charge against him.
Denials of the accused can not stand against the positive and categorical
narration of each complainant as to how they were recruited by accused who
had received some amounts from them for the processing of their papers.
Want of receipts is not fatal to the prosecutions case, for as long as it has
been shown, as in this case, that accused had engaged in prohibited
recruitment. (People v. Pabalan, 262 SCRA 574).
That accused is neither licensed nor authorized to recruit workers for
overseas employment, is shown in the Certification issued by POEA, Exh. "A."
In fine, the offense committed by the accused is Illegal Recruitment in large
scale, it having been committed against three (3) persons, individually. 7
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Anent the claim of the appellant that the trial court erred in not giving weight
to the certifications (Exhs. "2," "3" & "4") allegedly executed by the
complainants to the effect that he did not recruit them and that no money
was involved, the same deserves scant consideration.
The appellant testified that he was in possession of the said certifications at
the time the same were executed by the complainants and the same were
always in his possession; however, when he filed his counter-affidavit during
the preliminary investigation before the Department of Justice, he did not
mention the said certifications nor attach them to his counteraffidavit.lavvphil.net
We find it unbelievable that the appellant, a college graduate, would not
divulge the said certifications which would prove that, indeed, he is not an
illegal recruiter. By failing to present the said certifications prior to the trial,
the appellant risks the adverse inference and legal presumption that, indeed,
such certifications were not genuine. When a party has it in his possession or
power to produce the best evidence of which the case in its nature is
susceptible and withholds it, the fair presumption is that the evidence is
withheld for some sinister motive and that its production would thwart his
evil or fraudulent purpose. As aptly pointed out by the trial court:
"x x x These certifications were allegedly executed before charges were filed
against him. Knowing that he was already being charged for prohibited
recruitment, why did he not bring out these certifications which were
definitely favorable to him, if the same were authentic. It is so contrary to
human nature that one would suppress evidence which would belie the
charge against him." (Emphasis Ours)21
At the preliminary investigation, appellant was furnished with copies of the
affidavits of the complaining witnesses and was required to submit his
counter-affidavit. The complaining witnesses identified him as the culprit who
"recruited" them. At no time did appellant present the certifications
purportedly signed by the complaining witnesses to belie the complaint
against him. He likewise did not indicate in his counter-affidavit that the
complaining witnesses had executed certifications stating that they were not
recruited by him and that he did not receive any money from any of them.
He has not come forward with any valid excuse for his inaction. It was only
when he testified in his defense that he revealed the certifications for the
first time. Even then, appellant lied when he claimed that he did not submit
the certifications because the State Prosecutor did not require him to submit
any counter-affidavit, and that he was told that the criminal complaint would
be dismissed on account of the failure of the complaining witnesses to
appear during the preliminary investigation. The prevarications of appellant
were exposed by Public Prosecutor Pedro Catral on cross-examination, thus:
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go over this and tell us when did Alma Singh allegedly issue to you this
Certification?
A On February 19, 1996, Sir.
Q And also during the direct examination, you were asked to identify a
Certification which was already marked as Exh. "4" for the defense dated
January 22, 1996 allegedly issued by Geraldine M. Lagman, one of the
complainants in this case, will you please tell the court when did Geraldine
Lagman give you this Certification?
A January 22, 1996, Sir.
Q During that time, January 22, 1996, January 17, 1996 and February 19,
1996, you were in possession of all these Certification. Correct, Mr. Witness?
A Yes, Sir.
Q These were always in your possession. Right?
A Yes, Sir, with my papers.
Q Do you know when did the complainants file cases against you?
A I dont know, Sir.
Q Alright. I will read to you this Counter-Affidavit of yours, and I quote "I,
Joseph Jamilosa, of legal age, married and resident of Manila City Jail, after
having duly sworn to in accordance with law hereby depose and states that:
1) the complainants sworn under oath to the National Bureau of Investigation
that I recruited them and paid me certain sums of money assuming that
there is truth in those allegation of this (sic) complainants. The charge filed
by them should be immediately dismissed for certain lack of merit in their
Sworn Statement to the NBI Investigator; 2) likewise, the complainants
allegation is not true and I never recruited them to work abroad and that
they did not give me money, they asked me for some help so I [helped] them
in assisting and processing the necessary documents, copies for getting US
Visa; 3) the complainant said under oath that they can show a receipt to
prove that they can give me sums or amount of money. That is a lie. They
sworn (sic), under oath, that they can show a receipt that I gave to them to
prove that I got the money from them. I asked the kindness of the state
prosecutor to ask the complainants to show and produce the receipts that I
gave to them that was stated in the sworn statement of the NBI; 4) the
allegation of the complainants that the charges filed by them should be
dismissed because I never [received] any amount from them and they can
not show any receipt that I gave them," Manila City Jail, Philippines, June 16,
1997. So, Mr. Witness, June 16, 1997 is the date when you prepared this.
Correct?
A Yes, Sir.
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Q Now, my question to you, Mr. Witness, you said that you have with you all
the time the Certification issued by [the] three (3) complainants in this case,
did you allege in your Counter-Affidavit that this Certification you said you
claimed they issued to you?
A I did not say that, Sir.
Q So, it is not here in your Counter-Affidavit?
A None, Sir.
Q What is your educational attainment, Mr. Witness?
A I am a graduate of AB Course Associate Arts in 1963 at the University of
the East.
Q You said that the State Prosecutor of the Department of Justice did not
accept your Counter-Affidavit, are you sure of that, Mr. Witness?
A Yes, Sir.
Q Did you receive a copy of the dismissal which you said it was dismissed?
A No, Sir. I did not receive anything.
Q Did you receive a resolution from the Department of Justice?
A No, Sir.
Q Did you go over the said resolution you said you received here?
A I just learned about it now, Sir.
Q Did you read the content of the resolution?
A Not yet, Sir. Its only now that I am going to read.
COURT
Q You said it was dismissed. Correct?
A Yes, Your Honor.
Q Did you receive a resolution of this dismissal?
A No, Your Honor.
FISCAL CATRAL
Q What did you receive?
A I did not receive any resolution, Sir. Its just now that I learned about the
finding.
Q You said you learned here in court, did you read the resolution filed against
you, Mr. Witness?
A I did not read it, Sir.
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Q Did you read by yourself the resolution made by State Prosecutor Daosos,
Mr. Witness?
A Not yet, Sir.
Q What did you take, if any, when you received the subpoena from this
court?
A I was in court already when I asked Atty. Usita to investigate this case.
Q You said a while ago that your Affidavit was not accepted by State
Prosecutor Daosos. Is that correct?
A Yes, Sir.
Q Will you please read to us paragraph four (4), page two (2) of this
resolution of State Prosecutor Daosos.
(witness reading par. 4 of the resolution)
Alright. What did you understand of this paragraph 4, Mr. Witness?
A Probably, guilty to the offense charge.22
It turned out that appellant requested the complaining witnesses to sign the
certifications merely to prove that he was settling the cases:
COURT
Q These complainants, why did you make them sign in the certifications?
A Because one of the complainants told me to sign and they are planning to
sue me.
Q You mean they told you that they are filing charges against you and yet
you [made] them sign certifications in your favor, what is the reason why you
made them sign?
A To prove that Im settling this case.
Q Despite the fact that they are filing cases against you and yet you were
able to make them sign certifications?
A Only one person, Your Honor, who told me and he is not around.
Q But they all signed these three (3) certifications and yet they filed charges
against you and yet you made them sign certifications in your favor, so what
is the reason why you made them sign?
(witness can not answer)23
The Court notes that the trial court ordered appellant to refund US$300.00 to
each of the complaining witnesses. The ruling of the appellate court must be
modified. Appellant must pay only the peso equivalent of US$300.00 to each
of the complaining witnesses.
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SECOND DIVISION
[ G.R. No. 180926, December 10, 2008 ]
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. LOURDES
VALENCIANO Y DACUBA, ACCUSED-APPELLANT.
DECISION
VELASCO JR., J.:
This is an appeal from the Decision[1] dated July 24, 2007 of the Court of
Appeals (CA) in CA-G.R. CR-H.C. No. 01390 which upheld the Decision [2] of the
Regional Trial Court (RTC), Branch 116 in Pasay City in Criminal Case No. 979851. The RTC convicted Lourdes Valenciano of the crime of Illegal
Recruitment in Large Scale.
The Facts
In May 1996, Lourdes Valenciano, claiming to be an employee of Middle East
International Manpower Resources, Inc., went with one Susie Caraeg to the
house of Agapito De Luna, and told him he could apply for a job in Taiwan. A
week later, De Luna went to Valenciano's house, there to be told to undergo
a medical examination, with the assurance that if there were a job order
abroad, he would be able to leave. He was also told that the placement fee
for his employment as a factory worker in Taiwan was PhP 70,000.
After passing the medical examination, De Luna paid Valenciano at the
latter's residence the following amounts: PhP 20,000 on June 21, 1996; PhP
20,000 on July 12, 1996; and PhP 30,000 on August 21, 1996. The first and
last payments were turned over by Valenciano to Teresita Imperial, who
issued the corresponding receipts, and the second payment was turned over
by Valenciano to Rodante Imperial, who also issued a receipt.
Also in May 1996, Valenciano visited the house of Allan De Villa,
accompanied by Euziel N. Dela Cuesta, Eusebio T. Candelaria, and De Luna,
to recruit De Villa as a factory worker in Taiwan. De Villa was also asked for
PhP 70,000 as placement fee. He paid Valenciano the following amounts: PhP
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20,000 on May 16, 1996 at Valenciano's residence; PhP 20,000 on May 30,
1996 at the Rural Bank of Calaca, Batangas; PhP 20,000 on July 8, 1996 at
Valenciano's residence; and PhP 10,000 on August 14, 1996, also at her
residence. Valenciano turned over the amounts to either Teresita or Rodante.
Teresita issued receipts for the May 16, July 8, and August 14, 1996
payments, while Rodante issued a receipt for the payment made on May 30,
1996.
On May 20, 1996, Valenciano, accompanied by Rodante and Puring Caraeg,
went to the house of Dela Cuesta to recruit her for employment as a factory
worker in Taiwan. Dela Cuesta paid Valenciano PhP 20,000 as initial payment
on May 20, 1996. On May 30, 1996, she paid Valenciano another PhP 20,000.
On August 12, 1996, she paid PhP 15,000, and on August 21, 1996, she paid
PhP 7,000. Valenciano turned the May 20 and 30, 1996 payments over to
Rodante, who issued receipts for these payments. The payments made on
August 12 and 21, 1996 were turned over to Teresita, who also issued
receipts for them. These payments were to cover the placement fee and
other expenses for the processing of the requirements for the employment of
Dela Cuesta in Taiwan.
On May 1, 1996, Valenciano, with Rodante, Teresita, and Rommel Imperial,
went to Lian, Batangas to recruit workers for employment abroad. Candelaria
applied for a job as a factory worker in Taiwan when Valenciano went to his
residence in Lian. Valenciano asked him for an initial payment of PhP 20,000.
On May 30, 1996, Candelaria paid Valenciano PhP 20,000 when she returned
to Lian. He then paid PhP 20,000 on June 24, 1996 and PhP 29,000 on July
17, 1996 at Valenciano's residence in Manila. These payments were to cover
the placement fee and the expenses for the processing of his passport and
other papers connected with his application for employment as a factory
worker in Taiwan. The payments made on May 30 and July 17, 1996 were
turned over to Rodante, who issued a receipt for the said payments. The
payment made on June 24, 1996 was turned over by Valenciano to Teresita.
After the payments were made, Valenciano brought the prospective workers
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(b)
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appellant, and this finding was upheld by the CA. Nothing is more entrenched
than the rule that where, as here, the findings of fact of the trial court are
affirmed by the CA, these are final and conclusive upon this Court. [8] And
even if it were true that no money changed hands, money is not material to
a prosecution for illegal recruitment, as the definition of "recruitment and
placement" in the Labor Code includes the phrase, "whether for profit or
not." We held in People v. Jamilosa that it was "sufficient that the accused
promises or offers for a fee employment to warrant conviction for illegal
recruitment."[9] Accused-appellant made representations that complainants
would receive employment abroad, and this suffices for her conviction, even
if her name does not appear on the receipts issued to complainants as
evidence that payment was made.
Neither accused-appellant nor her co-accused had authority to recruit
workers for overseas employment. The Philippine Overseas Employment
Administration (POEA), through its employee, Corazon Aquino, issued on July
8, 1997 the following certification to that effect:
This is to certify that per available records of this Office, MIDDLE EAST
INTERNATIONAL MANPOWER RESOURCES INC., with office address at 2119 P.
Burgos St., cor. Gil Puyat Ave., Pasay City represented by SAPHIA CALAMATA
ASAAD is a licensed landbased agency whose license expired on October 13,
1996. Per record, said agency has not filed any application for renewal of
license.
Per available records, the names of RODANTE IMPERIAL a.k.a. ROMEO
MARQUEZ, TERESITA IMPERIAL a.k.a. TERESITA MARQUEZ, ROMMEL
MARQUEZ a.k.a. ROMMEL IMPERIAL and LOURDES VALENCIANO do not
appear on the list of employees submitted by agency.
This certification is being issued for whatever legal purpose it may serve.[10]
Another certification dated July 9, 1997 stated that accused-appellant in her
personal capacity was not licensed or authorized to recruit workers for
overseas employment and that any recruitment activities undertaken by her
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FIRST DIVISION
[ G.R. No. 184058, March 10, 2010 ]
PEOPLE OF THE PHILIPPINES, APPELLEE, VS. MELISSA CHUA, APPELLANT.
DECISION
CARPIO MORALES, J.:
Melissa Chua (appellant) was indicted for Illegal Recruitment (Large Scale)
and was convicted thereof by the Regional Trial Court (RTC) of Manila. She
was also indicted for five counts of Estafa but was convicted only for three.
The Court of Appeals, by Decision[1] dated February 27, 2008, affirmed
appellant's conviction.
The Information[2] charging appellant, together with one Josie Campos (Josie),
with Illegal Recruitment (Large Scale), docketed as Criminal Case No. 04222596, reads:
The undersigned accuses JOSIE CAMPOS and MELISSA CHUA of violation of
Article 38 (a) PD 1413, amending certain provisions of Book I, PD 442,
otherwise known as the New Labor Code of the Philippines, in relation to Art.
13 (b) and (c ) of said Code, as further amended by PD Nos. 1693, 1920 and
2019 and as further amended by Sec. 6 (a), (1) and (m) of RA 8042
committed in a [sic] large scale as follows:
That sometime during the month of September, 2002, in the City of Manila,
Philippines, the said accused, conspiring and confederating together and
mutually helping each other, representing themselves to have the capacity
to contract, enlist and transport Filipino workers for employment abroad, did
then and there willfully, unlawfully and knowingly for a fee, recruit and
promise employment/job placement abroad to ERIK DE GUIA TAN, MARILYN
O. MACARANAS, NAPOLEON H. YU, JR., HARRY JAMES P. KING and ROBERTO C.
ANGELES for overseas employment abroad without first having secured the
required license from the Department of Labor and Employment as required
by law, and charge or accept directly from:
P73,000
.00
MARILYN D.
MACARANAS
83,000.
00
23,000.
00
23,000.
00
ROBERTO C. ANGELES -
23,000.
00
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The five Informations[3] charging appellant and Josie with Estafa, docketed as
Criminal Case Nos. 04-222597-601, were similarly worded and varied only
with respect to the names of the five complainants and the amount that each
purportedly gave to the accused. Thus each of the Information reads:
xxxx
That on or about . . . in the City of Manila, Philippines, the said accused,
conspiring and confederating together and mutually helping each other, did
then and there willfully, unlawfully and feloniously defraud xxx in the
following manner, to wit: the said accused by means of false manifestations
which they made to the said . . . to the effect that they had the power and
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capacity to recruit the latter as factory worker to work in Taiwan and could
facilitate the processing of the pertinent papers if given the necessary
amount to meet the requirements thereof, and by means of other similar
deceits, induced and succeeded in inducing said xxx to give and deliver, as
in fact he gave and delivered to the said accused the amount of . . . on the
strength of said manifestations and representations, said accused well
knowing that the same were false and fraudulent and were made solely to
obtain, as in fact they did obtain the amount of . . . which amount once in
their possession, with intent to defraud, they willfully, unlawfully and
feloniously misappropriated, misapplied and converted to their own personal
use and benefit, to the damage of said . . . in the aforesaid amount of . . .,
Philippine Currency.
xxxx
Appellant pleaded not guilty on arraignment. Her co-accused Josie remained
at large. The cases were consolidated, hence, trial proceeded only with
respect to appellant.
Of the five complainants, only three testified, namely, Marilyn D. Macaranas
(Marilyn), Erik de Guia Tan (Tan) and Harry James King (King). The substance
of their respective testimonies follows:
Marilyn's testimony:
After she was introduced in June 2002 by Josie to appellant as capacitated to
deploy factory workers to Taiwan, she paid appellant P80,000 as placement
fee and P3,750 as medical expenses fee, a receipt[4] for the first amount of
which was issued by appellant.
Appellant had told her that she could leave for Taiwan in the last week of
September 2002 but she did not, and despite appellant's assurance that she
would leave in the first or second week of October, just the same she did not.
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She thus asked for the refund of the amount she paid but appellant claimed
that she was not in possession thereof but promised anyway to raise the
amount to pay her, but she never did.
She later learned in June 2003 that appellant was not a licensed recruiter,
prompting her to file the complaint against appellant and Josie.
Tan's testimony:
After he was introduced by Josie to appellant at the Golden Gate, Inc.,
(Golden Gate) an agency situated in Paragon Tower Hotel in Ermita, Manila,
he underwent medical examination upon appellant's assurance that he could
work in Taiwan as a factory worker with a guaranteed monthly salary of
15,800 in Taiwan currency.
He thus paid appellant, on September 6, 2002, P70,000[5] representing
placement fees for which she issued a receipt. Appellant welched on her
promise to deploy him to Taiwan, however, hence, he demanded the refund
of his money but appellant failed to. He later learned that Golden Gate was
not licensed to deploy workers to Taiwan, hence, he filed the complaint
against appellant and Josie.
King's testimony:
His friend and a fellow complainant Napoleon Yu introduced him to Josie who
in turn introduced appellant as one who could deploy him to Taiwan.
On September 24, 2002,[6] he paid appellant P20,000 representing partial
payment for placement fees amounting to P80,000, but when he later
inquired when he would be deployed, Golden Gate's office was already
closed. He later learned that Golden Gate's license had already expired,
prompting him to file the complaint.
Appellant denied the charges. Claiming having worked as a temporary
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cashier from January to October, 2002 at the office of Golden Gate, owned by
one Marilyn Calueng,[7] she maintained that Golden Gate was a licensed
recruitment agency and that Josie, who is her godmother, was an agent.
Admitting having received P80,000 each from Marilyn and Tan, receipt of
which she issued but denying receiving any amount from King, she claimed
that she turned over the money to the documentation officer, one Arlene
Vega, who in turn remitted the money to Marilyn Calueng whose present
whereabouts she did not know.
By Decision of April 5, 2006, Branch 36 of the Manila RTC convicted appellant
of Illegal Recruitment (Large Scale) and three counts of Estafa, disposing as
follows:
WHEREFORE, the prosecution having established the guilt of accused Melissa
Chua beyond reasonable doubt, judgment is hereby rendered convicting the
accused as principal of a large scale illegal recruitment and estafa three (3)
counts and she is sentenced to life imprisonment and to pay a fine of Five
Hundred Thousand Pesos (P500,000.00) for illegal recruitment.
The accused is likewise convicted of estafa committed against Harry James P.
King and she is sentenced to suffer the indeterminate penalty of Four (4)
years and Two (2) months of prision correctional as minimum, to Six (6) years
and One (1) day of prision mayor as maximum; in Criminal Case No. 0422598; in Criminal Case No. 04-222600 committed against Marilyn
Macaranas, accused is sentence [sic] to suffer the indeterminate penalty of
Four (4) years and Two (2) months of prision correctional as minimum, to
Twelve (12) years and one (1) day of reclusion temporal as maximum; and in
Criminal Case No. 04-222601 committed against Erik de Guia Tan, she is
likewise sentence [sic] to suffer an indeterminate penalty of Four (4) years
and Two (2) months of prision correctional as minimum, to Eleven (11) years
and One (1) day of prision mayor as maximum.
Accused Melissa Chua is also ordered to return the amounts of P20,000.00 to
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as promised; and that the complainants suffered damages when they failed
to be reimbursed the amounts they paid.
Hence, the present appeal, appellant reiterating the same arguments she
raised in the appellate court.
The appeal is bereft of merit.
The term "recruitment and placement" is defined under Article 13(b) of the
Labor Code of the Philippines as follows:
(b) "Recruitment and placement" refers to any act of canvassing,
enlisting, contracting, transporting, utilizing, hiring, or procuring
workers, and includes referrals, contract services, promising or
advertising for employment, locally or abroad, whether for profit or
not. Provided, That any person or entity which, in any manner, offers or
promises for a fee employment to two or more persons shall be deemed
engaged in recruitment and placement. (emphasis supplied)
On the other hand, Article 38, paragraph (a) of the Labor Code, as amended,
under which appellant was charged, provides:
Art. 38. Illegal Recruitment. - (a) Any recruitment activities, including
the prohibited practices enumerated under Article 34 of this Code,
to be undertaken by non-licensees or non-holders of authority shall
be deemed illegal and punishable under Article 39 of this Code. The
Ministry of Labor and Employment or any law enforcement officer may
initiate complaints under this Article.
(b) Illegal recruitment when committed by a syndicate or in large scale shall
be considered an offense involving economic sabotage and shall be
penalized in accordance with Article 39 hereof.
Illegal recruitment is deemed committed by a syndicate if carried out by a
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group of three (3) or more persons conspiring and/or confederating with one
another in carrying out any unlawful or illegal transaction, enterprise or
scheme defined under the first paragraph hereof. Illegal recruitment is
deemed committed in large scale if committed against three (3) or
more persons individually or as a group. (emphasis supplied)
From the foregoing provisions, it is clear that any recruitment activities to be
undertaken by non-licensee or non-holder of contracts, or as in the present
case, an agency with an expired license, shall be deemed illegal and
punishable under Article 39 of the Labor Code of the Philippines. And illegal
recruitment is deemed committed in large scale if committed against three
or more persons individually or as a group.
Thus for illegal recruitment in large scale to prosper, the prosecution has to
prove three essential elements, to wit: (1) the accused undertook a
recruitment activity under Article 13(b) or any prohibited practice under
Article 34 of the Labor Code; (2) the accused did not have the license or the
authority to lawfully engage in the recruitment and placement of workers;
and (3) the accused committed such illegal activity against three or more
persons individually or as a group.[9]
In the present case, Golden Gate, of which appellant admitted being a
cashier from January to October 2002, was initially authorized to recruit
workers for deployment abroad. Per the certification from the POEA, Golden
Gate's license only expired on February 23, 2002 and it was delisted from the
roster of licensed agencies on April 2, 2002.
Appellant was positively pointed to as one of the persons who enticed the
complainants to part with their money upon the fraudulent representation
that they would be able to secure for them employment abroad. In the
absence of any evidence that the complainants were motivated by improper
motives, the trial court's assessment of their credibility shall not be
interfered with by the Court.[10]
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Even if appellant were a mere temporary cashier of Golden Gate, that did not
make her any less an employee to be held liable for illegal recruitment as
principal by direct participation, together with the employer, as it was shown
that she actively and consciously participated in the recruitment process. [11]
Assuming arguendo that appellant was unaware of the illegal nature of the
recruitment business of Golden Gate, that does not free her of liability either.
Illegal Recruitment in Large Scale penalized under Republic Act No. 8042, or
"The Migrant Workers and Overseas Filipinos Act of 1995," is a special law, a
violation of which is malum prohibitum, not malum in se. Intent is thus
immaterial. And that explains why appellant was, aside from Estafa,
convicted of such offense.
[I]llegal recruitment is malum prohibitum, while estafa is malum in
se. In the first, the criminal intent of the accused is not necessary
for conviction. In the second, such an intent is
imperative. Estafa under Article 315, paragraph 2, of the Revised
Penal Code, is committed by any person who defrauds another by
using fictitious name, or falsely pretends to possess power,
influence, qualifications, property, credit, agency, business or
imaginary transactions, or by means of similar deceits executed
prior to or simultaneously with the commission of fraud.[12] (emphasis
supplied)
WHEREFORE, the appeal is hereby DENIED.
SO ORDERED.
SECOND DIVISION
PEOPLE OF THE PHILIPPINES,
Appellee,
Present:
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CARPIO,*
CARPIO MORALES,
BRION, and
ABAD, JJ.
Promulgated:
Appellant.
October 26, 2009
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
DECISION
QUISUMBING, J.:
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Contrary to law.[5]
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Appellant appealed her conviction but the same was affirmed by the
Court of Appeals in its Decision dated June 28, 2007. The appellate court did
not give credence to appellants denials and found that the prosecution
evidence fully supports the finding that appellant and her co-accused
engaged in recruitment and placement as defined under the Labor Code
despite having no authority to do so. It likewise held that the same evidence
proving the commission of the crime of illegal recruitment also established
that appellant and her co-accused acted in unity in defrauding Palo and in
misrepresenting to her that upon payment of the placement fee, they could
obtain employment abroad for her. The appellants act of deception and the
resultant damage suffered by Palo render appellant guilty of estafa.
In this appeal, appellant raises the following lone assignment of error:
THE [APPELLATE] COURT GRAVELY ERRED IN CONVICTING THE
ACCUSED-APPELLANT OF THE CRIME CHARGED DESPITE THE
FAILURE OF THE PROSECUTION TO PROVE HER GUILT BEYOND
REASONABLE DOUBT.[11]
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the evil scheme orchestrated by Roberto and Chang as her signature did not
even appear on the vouchers issued to Palo.
Appellant likewise contends that the elements of the crime of illegal
recruitment were not established with moral certainty. Naples was never into
recruitment as it was only engaged in the business of assisting clients
procure passports and visas. She argues that it should be Roberto and Chang
who should be convicted as she had no hand in recruiting Palo.
Appellants arguments are bereft of merit.
Illegal recruitment is committed when these two elements concur: (1)
the offenders have no valid license or authority required by law to enable
them to lawfully engage in the recruitment and placement of workers, and
(2) the offenders undertake any activity within the meaning
of recruitment and placementdefined in Article 13(b) or any prohibited
practices enumerated in Article 34 of the Labor Code. Under Article 13(b),
recruitment and placement refers to any act of canvassing, enlisting,
contracting, transporting, utilizing, hiring or procuring workers and includes
referrals, contract services, promising or advertising for employment, locally
or abroad, whether for profit or not. In the simplest terms, illegal recruitment
is committed by persons who, without authority from the government, give
the impression that they have the power to send workers abroad for
employment purposes.[12] The law imposes a higher penalty when the crime
is committed by a syndicate as it is considered as an offense involving
economic sabotage. Illegal recruitment is deemed committed by a syndicate
if carried out by a group of three (3) or more persons conspiring and/or
confederating with one another in carrying out any unlawful or illegal
transaction, enterprise or scheme defined under the first paragraph of Article
38 of the Labor Code.[13]
Undoubtedly, what transpired in the instant case is illegal recruitment
by a syndicate. As categorically testified by Palo and Caraig, appellant,
together with her co-accused, made representations to Palo that they could
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315(2) (a) of the Revised Penal Code provided the elements of estafa are
present. Estafa under Article 315, paragraph 2(a) of the Revised Penal Code
is committed by any person who defrauds another by using a fictitious name,
or falsely pretends to possess power, influence, qualifications, property,
credit, agency, business or imaginary transactions, or by means of similar
deceits executed prior to or simultaneously with the commission of the
fraud. The offended party must have relied on the false pretense, fraudulent
act or fraudulent means of the accused and as a result thereof, the offended
party suffered damage.[18]
Such is the case before us. Palo parted with her money upon the
prodding and enticement of appellant and her co-accused on the false
pretense that they had the capacity to deploy her for employment
in Australia. Unfortunately, however, Palo was not able to work abroad nor
get her Australian visa.Worse, she did not get her money back.
As to the penalties, Section 7 of Republic Act No. 8042[19] or the
Migrant Workers Act of 1995 provides the penalties for illegal recruitment:
SEC. 7. Penalties.
(a) Any person found guilty of illegal recruitment 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
not less than Two hundred thousand pesos (P200,000.00) nor
more than Five hundred thousand pesos (P500,000.00).
(b) The penalty of life imprisonment and a fine of not
less than Five hundred thousand pesos (P500,000.00) nor
more than One million pesos (P1,000,000.00) shall be
imposed if illegal recruitment constitutes economic
sabotage as defined herein. (Emphasis supplied.)
xxxx
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SECOND DIVISION
[ G.R. No. 176169, November 14, 2008 ]
ROSARIO NASI-VILLAR, PETITIONER, VS. PEOPLE OF THE PHILIPPINES,
RESPONDENT.
DECISION
TINGA, J.:
This is a Petition for Review[1] under Rule 45 of the Rules of Court filed by
petitioner Rosario Nasi-Villar assailing the Decision[2] dated 27 June 2005 and
Resolution[3] dated 28 November 2006 of the Court of Appeals. This case
originated from an Information[4] for Illegal Recruitment as defined under
Sections 6 and 7 of Republic Act (R.A.)
No. 8042[5] filed by the Office of the Provincial Prosecutor of Davao del Sur on
5 October 1998 for acts committed by petitioner and one Dolores Placa in or
about January 1993. The Information reads:
That on [sic] or about the month of [January 1993], in the Municipality of Sta.
Cruz, Province of Davao del Sur, Philippines and within the jurisdiction of the
Honorable Court, the aforenamed accused, conspiring together,
confederating with and mutually helping one another through fraudulent
representation and deceitful machination, did then and there [willfully],
unlawfully and feloniously recruit Nila Panilag for employment abroad[,]
demand and receive the amount of P6,500.00 Philippine Currency [sic] as
placement fee[,] the said accused being a non-licensee or non-holder of
authority to engage in the recruitment of workers abroad to the damage and
prejudice of the herein offended party.
CONTRARY TO LAW.[6]
On 3 July 2002, after due trial, the Regional Trial Court (RTC), Br. 18, Digos
City, Davao del Sur found the evidence presented by the prosecution to be
more credible than that presented by the defense and thus held petitioner
liable for the offense of illegal recruitment under the Labor Code, as
amended.[7] The dispositive portion of the decision reads:
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Davao del Sur, finding Rosario Nasi-Villar guilty beyond reasonable doubt o
the crime of Illegal Recruitment is AFFIRMED with MODIFICATION in that
Rosario Nasi-Villar isORDERED to pay Nila Panilag the sum of P10,000.00 as
temperate damages.
SO ORDERED.[10]
On 28 November 2006, the appellate court denied petitioner's motion for
reconsideration.[11]
Hence, petitioner filed the instant petition for review.
Petitioner alleges that the Court of Appeals erred in failing to consider that
R.A. No. 8042 cannot be given retroactive effect and that the decision of the
RTC constitutes a violation of the constitutional prohibition against ex post
facto law. Since R.A. No. 8042 did not yet exist in January 1993 when the
crime was allegedly committed, petitioner argues that law cannot be used as
the basis of filing a criminal action for illegal recruitment. What was
applicable in 1993 is the Labor Code, where under Art. 38, in relation to Art.
39, the violation of the Code is penalized with imprisonment of not less than
four (4) years nor more than eight (8) years or a fine of not less than
P20,000.00 and not more than P100,000.00 or both. On the other hand, Sec.
7(c) of R.A. No. 8042 penalizes illegal recruitment with a penalty of
imprisonment of not less than six (6) years and one (1) day but not more
than twelve (12) years and a fine not less than P200,000.00 nor more than
P500,000.00. Thus, the penalty of imprisonment provided in the Labor Code
was raised or increased by R.A. No. 8042. Petitioner concludes that the
charge and conviction of an offense carrying a penalty higher than that
provided by the law at the time of its commission constitutes a violation of
the prohibition against ex post facto law and the retroactive application of
R.A. No. 8042.
In its Comment[12] dated 7 September 2007, the Office of the Solicitor
General (OSG) argues that the Court of Appeals' conviction of petitioner
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under the Labor Code is correct. While conceding that there was an
erroneous designation of the law violated by petitioner, the OSG stresses
that the designation of the offense in the Information is not determinative of
the nature and character of the crime charged against her but the acts
alleged in the Information. The allegations in the Information clearly charge
petitioner with illegal recruitment as defined in Art. 38, in relation to Art.
13(b) of the Labor Code, and penalized under Art. 39(c) of the same Code.
The evidence on record substantiates the charge to a moral certainty. Thus,
while there was an erroneous specification of the law violated by petitioner in
the Information, the CA was correct in affirming the RTC's imposition of the
penalty for simple illegal recruitment under the Labor Code, the OSG
concludes.
The petition is denied. We find no reversible error in the decision arrived at
by the Court of Appeals.
In Gabriel v. Court of Appeals,[13] we held that the real nature of the crime
charged is determined, not from the caption or preamble of the information
nor from the specification of the law alleged to have been violatedthese
being conclusions of lawbut by the actual recital of facts in the complaint
or information. What controls is not the designation but the description of the
offense charged. From a legal point of view, and in a very real sense, it is of
no concern to the accused what the technical name of the crime of which he
stands charged is. If the accused performed the acts alleged in the body of
the information, in the manner stated, then he ought to be punished and
punished adequately, whatever may be the name of the crime which those
acts constitute.[14]
In the case at bar, the prosecution established beyond reasonable doubt that
petitioner had performed the acts constituting the offense defined in Art. 38,
in relation to Art. 13(b) and punished by Art. 39 of the Labor Code, as alleged
in the body of the Information. To prove illegal recruitment, two elements
must be shown, namely: (1) the person charged with the crime must have
undertaken recruitment activities, or any of the activities enumerated in
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Article 34 of the Labor Code, as amended; and (2) said person does not have
a license or authority to do so.[15] Art. 13(b) defines "recruitment and
placement" as "any act of canvassing, enlisting, contracting, transporting,
utilizing, hiring, or procuring workers, and includes referrals, contract
services, promising, or advertising for employment, locally or abroad,
whether for profit or not; Provided that any person or entity which, in any
manner, offers or promises for a fee employment to two or more persons, is
considered engaged in recruitment and placement." The trial court found
these two elements had been proven in the case at bar. Petitioner has not
offered any argument or proof that countervails such findings.
The basic rule is that a criminal act is punishable under the law in force at
the time of its commission. Thus, petitioner can only be charged and found
guilty under the Labor Code which was in force in 1993 when the acts
attributed to her were committed. Petitioner was charged in 1998 under an
Information that erroneously designated the offense as covered by R.A. No.
8042, but alleged in its body acts which are punishable under the Labor
Code. As it was proven that petitioner had committed the acts she was
charged with, she was properly convicted under the Labor Code, and not
under R.A. No. 8042.
There is no violation of the prohibition against ex post facto law nor a
retroactive application of R.A. No. 8042, as alleged by petitioner. An ex post
facto law is one which, among others, aggravates a crime or makes it greater
than it was when committed or changes the punishment and inflicts a
greater punishment than the law annexed to the crime when committed.[16]
Penal laws and laws which, while not penal in nature, nonetheless have
provisions defining offenses and prescribing penalties for their violation
operate prospectively. Penal laws cannot be given retroactive effect, except
when they are favorable to the accused.[17]
R.A. No. 8042 amended pertinent provisions of the Labor Code and gave a
new definition of the crime of illegal recruitment and provided for its higher
penalty. There is no indication in R.A. No. 8042 that said law, including the
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penalties provided therein, would take effect retroactively. A law can never
be considered ex post facto as long as it operates prospectively since its
strictures would cover only offenses committed after and not before its
enactment.[18] Neither did the trial court nor the appellate court give R.A. No.
8042 a retroactive application since both courts passed upon petitioner's
case only under the aegis of the Labor Code. The proceedings before the
trial court and the appellate court did not violate the prohibition against ex
post facto law nor involved a retroactive application of R.A. No. 8042 in any
way.
WHEREFORE, the petition is DENIED. The assailed Decision dated 27 June
2005 and Resolution dated 28 November 2006 of the Court of Appeals
are AFFIRMED.
SO ORDERED.
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EN BANC
[ G.R. No. 167614, March 24, 2009 ]
ANTONIO M. SERRANO, PETITIONER, VS. GALLANT MARITIME SERVICES, INC.
AND MARLOW NAVIGATION CO., INC., RESPONDENTS.
DECISION
AUSTRIA-MARTINEZ, J.:
For decades, the toil of solitary migrants has helped lift entire families and
communities out of poverty. Their earnings have built houses, provided
health care, equipped schools and planted the seeds of businesses. They
have woven together the world by transmitting ideas and knowledge from
country to country. They have provided the dynamic human link between
cultures, societies and economies. Yet, only recently have we begun to
understand not only how much international migration impacts
development, but how smart public policies can magnify this effect.
United Nations Secretary-General Ban Ki-Moon Global Forum on Migration
and Development Brussels, July 10, 2007[1]
For Antonio Serrano (petitioner), a Filipino seafarer, the last clause in the
5th paragraph of Section 10, Republic Act (R.A.) No. 8042,[2] to wit:
Sec. 10. Money Claims. - x x x In case of termination of overseas
employment without just, valid or authorized cause as defined by law or
contract, the workers shall be entitled to the full reimbursement of his
placement fee with interest of twelve percent (12%) per annum, plus his
salaries for the unexpired portion of his employment contract or for three
(3) months for every year of the unexpired term, whichever is less.
x x x x (Emphasis and underscoring supplied)
does not magnify the contributions of overseas Filipino workers (OFWs) to
national development, but exacerbates the hardships borne by them by
unduly limiting their entitlement in case of illegal dismissal to their lump-sum
salary either for the unexpired portion of their employment contract "or for
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three months for every year of the unexpired term, whichever is less"
(subject clause). Petitioner claims that the last clause violates the OFWs'
constitutional rights in that it impairs the terms of their contract, deprives
them of equal protection and denies them due process.
By way of Petition for Review under Rule 45 of the Rules of Court, petitioner
assails the December 8, 2004 Decision[3] and April 1, 2005 Resolution[4] of the
Court of Appeals (CA), which applied the subject clause, entreating this Court
to declare the subject clause unconstitutional.
Petitioner was hired by Gallant Maritime Services, Inc. and Marlow Navigation
Co., Ltd. (respondents) under a Philippine Overseas Employment
Administration (POEA)-approved Contract of Employment with the following
terms and conditions:
Duration of contract
12 months
Position
Chief Officer
US$1,400.00
Hours of work
Overtime
On March 19, 1998, the date of his departure, petitioner was constrained to
accept a downgraded employment contract for the position of Second Officer
with a monthly salary of US$1,000.00, upon the assurance and
representation of respondents that he would be made Chief Officer by the
end of April 1998.[6]
Respondents did not deliver on their promise to make petitioner Chief Officer.
[7]
Hence, petitioner refused to stay on as Second Officer and was repatriated
to the Philippines on May 26, 1998.[8]
Petitioner's employment contract was for a period of 12 months or from
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March 19, 1998 up to March 19, 1999, but at the time of his repatriation on
May 26, 1998, he had served only two (2) months and seven (7) days of his
contract, leaving an unexpired portion of nine (9) months and twenty-three
(23) days.
Petitioner filed with the Labor Arbiter (LA) a Complaint[9] against respondents
for constructive dismissal and for payment of his money claims in the total
amount of US$26,442.73, broken down as follows:
May 27/31, 1998 (5 days) incl. Leave US$ 413.90
pay
June 01/30, 1998
2,590.00
2,590.00
2,590.00
2,590.00
2,590.00
2,590.00
2,590.00
2,590.00
2,590.00
1,640.00
25,382.23
1,060.50[10]
TOTAL CLAIM
US$ 26,442.73[11]
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US$4,200.00
45.00
US$4,245.00
3. 10% Attorney's fees
TOTAL
424.50
US$4,669.50
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The NLRC corrected the LA's computation of the lump-sum salary awarded to
petitioner by reducing the applicable salary rate from US$2,590.00 to
US$1,400.00 because R.A. No. 8042 "does not provide for the award of
overtime pay, which should be proven to have been actually performed, and
for vacation leave pay."[20]
Petitioner filed a Motion for Partial Reconsideration, but this time he
questioned the constitutionality of the subject clause.[21] The NLRC denied the
motion.[22]
Petitioner filed a Petition for Certiorari[23] with the CA, reiterating the
constitutional challenge against the subject clause.[24] After initially
dismissing the petition on a technicality, the CA eventually gave due course
to it, as directed by this Court in its Resolution dated August 7, 2003 which
granted the petition for certiorari, docketed as G.R. No. 151833, filed by
petitioner.
In a Decision dated December 8, 2004, the CA affirmed the NLRC ruling on
the reduction of the applicable salary rate; however, the CA skirted the
constitutional issue raised by petitioner.[25]
His Motion for Reconsideration[26] having been denied by the CA,[27] petitioner
brings his cause to this Court on the following grounds:
I
The Court of Appeals and the labor tribunals have decided the case in a way
not in accord with applicable decision of the Supreme Court involving similar
issue of granting unto the migrant worker back wages equal to the unexpired
portion of his contract of employment instead of limiting it to three (3)
months
II
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In the alternative that the Court of Appeals and the Labor Tribunals were
merely applying their interpretation of Section 10 of Republic Act No. 8042, it
is submitted that the Court of Appeals gravely erred in law when it failed to
discharge its judicial duty to decide questions of substance not theretofore
determined by the Honorable Supreme Court, particularly, the constitutional
issues raised by the petitioner on the constitutionality of said law, which
unreasonably, unfairly and arbitrarily limits payment of the award for back
wages of overseas workers to three (3) months.
III
Even without considering the constitutional limitations [of] Sec. 10 of
Republic Act No. 8042, the Court of Appeals gravely erred in law in excluding
from petitioner's award the overtime pay and vacation pay provided in his
contract since under the contract they form part of his salary. [28]
On February 26, 2008, petitioner wrote the Court to withdraw his petition as
he is already old and sickly, and he intends to make use of the monetary
award for his medical treatment and medication.[29] Required to comment,
counsel for petitioner filed a motion, urging the court to allow partial
execution of the undisputed monetary award and, at the same time, praying
that the constitutional question be resolved.[30]
Considering that the parties have filed their respective memoranda, the
Court now takes up the full merit of the petition mindful of the extreme
importance of the constitutional question raised therein.
On the first and second issues
The unanimous finding of the LA, NLRC and CA that the dismissal of
petitioner was illegal is not disputed. Likewise not disputed is the salary
differential of US$45.00 awarded to petitioner in all three fora. What remains
disputed is only the computation of the lump-sum salary to be awarded to
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Petitioner further underscores that the insertion of the subject clause into
R.A. No. 8042 serves no other purpose but to benefit local placement
agencies. He marks the statement made by the Solicitor General in his
Memorandum, viz.:
Often, placement agencies, their liability being solidary, shoulder the
payment of money claims in the event that jurisdiction over the foreign
employer is not acquired by the court or if the foreign employer reneges on
its obligation. Hence, placement agencies that are in good faith and which
fulfill their obligations are unnecessarily penalized for the acts of the foreign
employer. To protect them and to promote their continued helpful
contribution in deploying Filipino migrant workers, liability for
money claims was reduced under Section 10 of R.A. No.
8042. [37] (Emphasis supplied)
Petitioner argues that in mitigating the solidary liability of placement
agencies, the subject clause sacrifices the well-being of OFWs. Not only that,
the provision makes foreign employers better off than local employers
because in cases involving the illegal dismissal of employees, foreign
employers are liable for salaries covering a maximum of only three months
of the unexpired employment contract while local employers are liable for
the full lump-sum salaries of their employees. As petitioner puts it:
In terms of practical application, the local employers are not limited to the
amount of backwages they have to give their employees they have illegally
dismissed, following well-entrenched and unequivocal jurisprudence on the
matter. On the other hand, foreign employers will only be limited to giving
the illegally dismissed migrant workers the maximum of three (3) months
unpaid salaries notwithstanding the unexpired term of the contract that can
be more than three (3) months.[38]
Lastly, petitioner claims that the subject clause violates the due process
clause, for it deprives him of the salaries and other emoluments he is
entitled to under his fixed-period employment contract.[39]
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Lastly, the OSG defends the rationale behind the subject clause as a police
power measure adopted to mitigate the solidary liability of placement
agencies for this "redounds to the benefit of the migrant workers whose
welfare the government seeks to promote. The survival of legitimate
placement agencies helps [assure] the government that migrant workers are
properly deployed and are employed under decent and humane
conditions."[46]
The Court's Ruling
The Court sustains petitioner on the first and second issues.
When the Court is called upon to exercise its power of judicial review of the
acts of its co-equals, such as the Congress, it does so only when these
conditions obtain: (1) that there is an actual case or controversy involving a
conflict of rights susceptible of judicial determination;[47] (2) that the
constitutional question is raised by a proper party[48] and at the earliest
opportunity;[49] and (3) that the constitutional question is the very lis mota of
the case,[50] otherwise the Court will dismiss the case or decide the same on
some other ground.[51]
Without a doubt, there exists in this case an actual controversy directly
involving petitioner who is personally aggrieved that the labor tribunals and
the CA computed his monetary award based on the salary period of three
months only as provided under the subject clause.
The constitutional challenge is also timely. It should be borne in mind that
the requirement that a constitutional issue be raised at the earliest
opportunity entails the interposition of the issue in the pleadings before
a competent court, such that, if the issue is not raised in the pleadings
before that competent court, it cannot be considered at the trial and, if not
considered in the trial, it cannot be considered on appeal.[52] Records disclose
that the issue on the constitutionality of the subject clause was first raised,
not in petitioner's appeal with the NLRC, but in his Motion for Partial
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In the case at bar, the challenged proviso operates on the basis of the salary
grade or officer-employee status. It is akin to a distinction based on
economic class and status, with the higher grades as recipients of a
benefit specifically withheld from the lower grades. Officers of the BSP
now receive higher compensation packages that are competitive with the
industry, while the poorer, low-salaried employees are limited to the rates
prescribed by the SSL. The implications are quite disturbing: BSP rank-andfile employees are paid the strictly regimented rates of the SSL while
employees higher in rank - possessing higher and better education and
opportunities for career advancement - are given higher compensation
packages to entice them to stay. Considering that majority, if not all,
the rank-and-file employees consist of people whose status and
rank in life are less and limited, especially in terms of job
marketability, it is they - and not the officers - who have the real
economic and financial need for the adjustment. This is in accord with
the policy of the Constitution "to free the people from poverty, provide
adequate social services, extend to them a decent standard of living, and
improve the quality of life for all." Any act of Congress that runs counter
to this constitutional desideratum deserves strict scrutiny by this
Court before it can pass muster. (Emphasis supplied)
Imbued with the same sense of "obligation to afford protection to labor," the
Court in the present case also employs the standard of strict judicial scrutiny,
for it perceives in the subject clause a suspect classification prejudicial to
OFWs.
Upon cursory reading, the subject clause appears facially neutral, for it
applies to all OFWs. However, a closer examination reveals that the subject
clause has a discriminatory intent against, and an invidious impact on, OFWs
at two levels:
First, OFWs with employment contracts of less than one year vis--vis OFWs
with employment contracts of one year or more;
Second, among OFWs with employment contracts of more than one year;
Twenty19 116
and
Third, OFWs vis--vis local workers with fixed-period employment;
OFWs with employment contracts of less than one year vis-vis OFWs with employment contracts of one year or more
As pointed out by petitioner,[78] it was in Marsaman Manning Agency, Inc. v.
National Labor Relations Commission[79] (Second Division, 1999) that the
Court laid down the following rules on the application of the periods
prescribed under Section 10(5) of R.A. No. 804, to wit:
A plain reading of Sec. 10 clearly reveals that the choice of which
amount to award an illegally dismissed overseas contract worker,
i.e., whether his salaries for the unexpired portion of his
employment contract or three (3) months' salary for every year of
the unexpired term, whichever is less, comes into play only when
the employment contract concerned has a term of at least one (1)
year or more. This is evident from the words "for every year of the
unexpired term" which follows the words "salaries x x x for three
months." To follow petitioners' thinking that private respondent is entitled to
three (3) months salary only simply because it is the lesser amount is to
completely disregard and overlook some words used in the statute while
giving effect to some. This is contrary to the well-established rule in legal
hermeneutics that in interpreting a statute, care should be taken that every
part or word thereof be given effect since the law-making body is presumed
to know the meaning of the words employed in the statue and to have used
them advisedly. Ut res magis valeat quam pereat.[80](Emphasis supplied)
In Marsaman, the OFW involved was illegally dismissed two months into his
10-month contract, but was awarded his salaries for the remaining 8 months
and 6 days of his contract.
Prior to Marsaman, however, there were two cases in which the Court made
conflicting rulings on Section 10(5). One was Asian Center for Career and
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Contract
Period
Period of Unexpired
Service
Period
Period
Applied in
the
Computation
of the
Monetary
Twenty19 118
Award
2 months 4 months
4 months
Bahia Shipping v.
Reynaldo Chua [85]
9 months
8 months 4 months
4 months
Centennial
Transmarine v. dela
Cruz l[86]
9 months
4 months 5 months
5 months
Talidano v. Falcon[87]
3 months
3 months
Univan v. CA
[88]
12 months
more than
10 months
2 months
3 months
PCL v. NLRC[90]
12 months
3 months
Olarte v. Nayona[91]
12 months 21 days
11 months and
3 months
9 days
JSS v. Ferrer[92]
12 months 16 days
11 months and
3 months
24 days
Pentagon v.
Adelantar[93]
9 months
2 months and 2 months and
12 months and 7
23 days
23 days
days
Phil. Employ v.
Paramio, et al.[94]
12 months
Oriental v. CA
[89]
Flourish Maritime v.
Almanzor [95]
2 years
10
months
2 months
26 days
6 months or 3
23 months and months for
4 days
each year of
contract
1 year, 10
Athenna Manpower v. months
1 month
Villanos [96]
and 28
days
Unexpired
portion
6 months or 3
1 year, 9
months for
months and 28
each year of
days
contract
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As the foregoing matrix readily shows, the subject clause classifies OFWs into
two categories. The first category includes OFWs with fixed-period
employment contracts of less than one year; in case of illegal dismissal, they
are entitled to their salaries for the entire unexpired portion of their contract.
The second category consists of OFWs with fixed-period employment
contracts of one year or more; in case of illegal dismissal, they are entitled to
monetary award equivalent to only 3 months of the unexpired portion of
their contracts.
The disparity in the treatment of these two groups cannot be discounted.
In Skippers, the respondent OFW worked for only 2 months out of his 6month contract, but was awarded his salaries for the remaining 4 months. In
contrast, the respondent OFWs in Oriental and PCL who had also worked for
about 2 months out of their 12-month contracts were awarded their salaries
for only 3 months of the unexpired portion of their contracts. Even the OFWs
involved in Talidano and Univan who had worked for a longer period of 3
months out of their 12-month contracts before being illegally dismissed were
awarded their salaries for only 3 months.
To illustrate the disparity even more vividly, the Court assumes a
hypothetical OFW-A with an employment contract of 10 months at a monthly
salary rate of US$1,000.00 and a hypothetical OFW-B with an employment
contract of 15 months with the same monthly salary rate of US$1,000.00.
Both commenced work on the same day and under the same employer, and
were illegally dismissed after one month of work. Under the subject clause,
OFW-A will be entitled to US$9,000.00, equivalent to his salaries for the
remaining 9 months of his contract, whereas OFW-B will be entitled to only
US$3,000.00, equivalent to his salaries for 3 months of the unexpired portion
of his contract, instead of US$14,000.00 for the unexpired portion of 14
months of his contract, as the US$3,000.00 is the lesser amount.
The disparity becomes more aggravating when the Court takes into account
jurisprudence that, prior to the effectivity of R.A. No. 8042 on July 14,
1995,[97] illegally dismissed OFWs, no matter how long the period of their
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employment contracts, were entitled to their salaries for the entire unexpired
portions of their contracts. The matrix below speaks for itself:
Case Title
Contract
Period
Period of Unexpired
Service
Period
Period
Applied in
the
Computation
of the
Monetary
Award
2 years
2 months 22 months
22 months
23 months
23 months and
and
23 days
23 days
Phil. Integrated v.
NLRC[99]
2 years
7 days
JGB v. NLC[100]
2 years
9 months 15 months
15 months
Agoy v. NLRC[101]
2 years
2 months 22 months
22 months
2 years
5 months 19 months
19 months
Barros v. NLRC,
et al.[103]
8 months
6 months
Philippine Transmarine
5 months and 5 months and
12 months and 22
[104]
v. Carilla
18 days
18 days
days
It is plain that prior to R.A. No. 8042, all OFWs, regardless of contract periods
or the unexpired portions thereof, were treated alike in terms of the
computation of their monetary benefits in case of illegal dismissal. Their
claims were subjected to a uniform rule of computation: their basic salaries
multiplied by the entire unexpired portion of their employment contracts.
The enactment of the subject clause in R.A. No. 8042 introduced a
differentiated rule of computation of the money claims of illegally dismissed
OFWs based on their employment periods, in the process singling out one
category whose contracts have an unexpired portion of one year or more and
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who are illegally dismissed with one year or more remaining in their
contracts shall be covered by the subject clause, and their monetary benefits
limited to their salaries for three months only.
To concretely illustrate the application of the foregoing interpretation of the
subject clause, the Court assumes hypothetical OFW-C and OFW-D, who each
have a 24-month contract at a salary rate of US$1,000.00 per month. OFW-C
is illegally dismissed on the 12th month, and OFW-D, on the 13th month.
Considering that there is at least 12 months remaining in the contract period
of OFW-C, the subject clause applies to the computation of the latter's
monetary benefits. Thus, OFW-C will be entitled, not to US$12,000,00 or the
latter's total salaries for the 12 months unexpired portion of the contract, but
to the lesser amount of US$3,000.00 or the latter's salaries for 3 months out
of the 12-month unexpired term of the contract. On the other hand, OFW-D is
spared from the effects of the subject clause, for there are only 11 months
left in the latter's contract period. Thus, OFW-D will be entitled to
US$11,000.00, which is equivalent to his/her total salaries for the entire 11month unexpired portion.
OFWs vis--vis Local Workers
With Fixed-Period Employment
As discussed earlier, prior to R.A. No. 8042, a uniform system of computation
of the monetary awards of illegally dismissed OFWs was in place. This
uniform system was applicable even to local workers with fixed-term
employment.[107]
The earliest rule prescribing a uniform system of computation was actually
Article 299 of the Code of Commerce (1888),[108] to wit:
Article 299. If the contracts between the merchants and their shop
clerks and employees should have been made of a fixed
period, none of the contracting parties, without the consent of the
other, may withdraw from the fulfillment of said contract until the
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Citing Manresa, the Court in Lemoine v. Alkan[112] read the disjunctive "or" in
Article 1586 as a conjunctive "and" so as to apply the provision to local
workers who are employed for a time certain although for no particular skill.
This interpretation of Article 1586 was reiterated in Garcia Palomar v. Hotel
de France Company.[113] And in bothLemoine and Palomar, the Court adopted
the general principle that in actions for wrongful discharge founded on Article
1586, local workers are entitled to recover damages to the extent of the
amount stipulated to be paid to them by the terms of their contract. On the
computation of the amount of such damages, the Court in Aldaz v.
Gay[114]held:
The doctrine is well-established in American jurisprudence, and nothing has
been brought to our attention to the contrary under Spanish jurisprudence,
that when an employee is wrongfully discharged it is his duty to seek other
employment of the same kind in the same community, for the purpose of
reducing the damages resulting from such wrongful discharge. However,
while this is the general rule, the burden of showing that he failed to make
an effort to secure other employment of a like nature, and that other
employment of a like nature was obtainable, is upon the defendant. When
an employee is wrongfully discharged under a contract of
employment his prima facie damage is the amount which he would
be entitled to had he continued in such employment until the
termination of the period. (Howard vs. Daly, 61 N. Y., 362; Allen vs.
Whitlark, 99 Mich., 492; Farrell vs. School District No. 2, 98 Mich., 43.)
[115]
(Emphasis supplied)
On August 30, 1950, the New Civil Code took effect with new provisions on
fixed-term employment: Section 2 (Obligations with a Period), Chapter 3,
Title I, and Sections 2 (Contract of Labor) and 3 (Contract for a Piece of
Work), Chapter 3, Title VIII, Book IV.[116] Much like Article 1586 of the Civil
Code of 1889, the new provisions of the Civil Code do not expressly provide
for the remedies available to a fixed-term worker who is illegally discharged.
However, it is noted that in Mackay Radio & Telegraph Co., Inc. v. Rich,
[117]
the Court carried over the principles on the payment of damages
underlying Article 1586 of the Civil Code of 1889 and applied the same to a
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employment including claims for actual, moral, exemplary and other forms of
damages.
The liability of the principal and the recruitment/placement agency or any
and all claims under this Section shall be joint and several.
Any compromise/amicable settlement or voluntary agreement on any money
claims exclusive of damages under this Section shall not be less than fifty
percent (50%) of such money claims: Provided, That any installment
payments, if applicable, to satisfy any such compromise or voluntary
settlement shall not be more than two (2) months. Any
compromise/voluntary agreement in violation of this paragraph shall be null
and void.
Non-compliance with the mandatory period for resolutions of cases provided
under this Section shall subject the responsible officials to any or all of the
following penalties:
(1) The salary of any such official who fails to render his decision or
resolution within the prescribed period shall be, or caused to be, withheld
until the said official complies therewith;
(2) Suspension for not more than ninety (90) days; or
(3) Dismissal from the service with disqualification to hold any appointive
public office for five (5) years.
Provided, however, That the penalties herein provided shall be without
prejudice to any liability which any such official may have incurred under
other existing laws or rules and regulations as a consequence of violating the
provisions of this paragraph.
But significantly, Section 10 of SB 2077 does not provide for any rule on the
computation of money claims.
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A rule on the computation of money claims containing the subject clause was
inserted and eventually adopted as the 5th paragraph of Section 10 of R.A.
No. 8042. The Court examined the rationale of the subject clause in the
transcripts of the "Bicameral Conference Committee (Conference Committee)
Meetings on the Magna Carta on OCWs (Disagreeing Provisions of Senate Bill
No. 2077 and House Bill No. 14314)." However, the Court finds no discernible
state interest, let alone a compelling one, that is sought to be protected or
advanced by the adoption of the subject clause.
In fine, the Government has failed to discharge its burden of proving the
existence of a compelling state interest that would justify the perpetuation of
the discrimination against OFWs under the subject clause.
Assuming that, as advanced by the OSG, the purpose of the subject clause is
to protect the employment of OFWs by mitigating the solidary liability of
placement agencies, such callous and cavalier rationale will have to be
rejected. There can never be a justification for any form of government
action that alleviates the burden of one sector, but imposes the same burden
on another sector, especially when the favored sector is composed of private
businesses such as placement agencies, while the disadvantaged sector is
composed of OFWs whose protection no less than the Constitution
commands. The idea that private business interest can be elevated to the
level of a compelling state interest is odious.
Moreover, even if the purpose of the subject clause is to lessen the solidary
liability of placement agencies vis-a-vis their foreign principals, there are
mechanisms already in place that can be employed to achieve that purpose
without infringing on the constitutional rights of OFWs.
The POEA Rules and Regulations Governing the Recruitment and
Employment of Land-Based Overseas Workers, dated February 4, 2002,
imposes administrative disciplinary measures on erring foreign employers
who default on their contractual obligations to migrant workers and/or their
Philippine agents. These disciplinary measures range from temporary
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-- such as the working class or a section thereof -- the Court may recognize
the existence of a suspect classification and subject the same to strict
judicial scrutiny.
The view that the concepts of suspect classification and strict judicial
scrutiny formulated in Central Bank Employee Association exaggerate the
significance of Section 3, Article XIII is a groundless apprehension. Central
Bankapplied Article XIII in conjunction with the equal protection clause.
Article XIII, by itself, without the application of the equal protection clause,
has no life or force of its own as elucidated in Agabon.
Along the same line of reasoning, the Court further holds that the subject
clause violates petitioner's right to substantive due process, for it deprives
him of property, consisting of monetary benefits, without any existing valid
governmental purpose.[136]
The argument of the Solicitor General, that the actual purpose of the subject
clause of limiting the entitlement of OFWs to their three-month salary in case
of illegal dismissal, is to give them a better chance of getting hired by foreign
employers. This is plain speculation. As earlier discussed, there is nothing in
the text of the law or the records of the deliberations leading to its
enactment or the pleadings of respondent that would indicate that there is
an existing governmental purpose for the subject clause, or even just a
pretext of one.
The subject clause does not state or imply any definitive governmental
purpose; and it is for that precise reason that the clause violates not just
petitioner's right to equal protection, but also her right to substantive due
process under Section 1,[137] Article III of the Constitution.
The subject clause being unconstitutional, petitioner is entitled to his salaries
for the entire unexpired period of nine months and 23 days of his
employment contract, pursuant to law and jurisprudence prior to the
enactment of R.A. No. 8042.
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However, the payment of overtime pay and leave pay should be disallowed
in light of our ruling in Cagampan v. National Labor Relations Commission, to
wit:
The rendition of overtime work and the submission of sufficient proof that
said was actually performed are conditions to be satisfied before a seaman
could be entitled to overtime pay which should be computed on the basis of
30% of the basic monthly salary. In short, the contract provision guarantees
the right to overtime pay but the entitlement to such benefit must first be
established.
In the same vein, the claim for the day's leave pay for the unexpired portion
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of the contract is unwarranted since the same is given during the actual
service of the seamen.
WHEREFORE, the Court GRANTS the Petition. The subject clause "or for
three months for every year of the unexpired term, whichever is less" in the
5th paragraph of Section 10 of Republic Act No. 8042
is DECLAREDUNCONSTITUTIONAL; and the December 8, 2004 Decision
and April 1, 2005 Resolution of the Court of Appeals are MODIFIED to the
effect that petitioner is AWARDED his salaries for the entire unexpired
portion of his employment contract consisting of nine months and 23 days
computed at the rate of US$1,400.00 per month.
No costs.
SO ORDERED.
Puno, C.J., Ynares-Santiago, Corona, Carpio Morales, Tinga, Velasco, Jr.,
Nachura, Leonardo-De Castro, andPeralta, JJ., concur.
Quisumbing, J., join J. Carpio's opinion.
Carpio, and Brion, JJ., see separate concurring opinion.
Chico-Nazario, J., on leave.
[1]
http://www.un.org/News/Press/docs/2007/sgsm11084.doc.htm.
[2]
Migrant Workers and Overseas Filipinos Act of 1995, effective July 15,
1995.
[3]
Id. at 248.
[5]
Rollo, p. 57.
[6]
Id. at 58.
[7]
Id. at 59.
[8]
Id. at 48.
[9]
Id. at 55.
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[10]
[12]
Id. at 114.
[14]
[15]
Id. at 124.
[16]
Id. at 115.
[17]
[18]
[19]
Id. at 134.
[20]
[21]
Id. at 146-150.
[22]
Id. at 153.
[23]
Id. at 155.
[24]
Id. at 166-177.
[25]
[26]
Id. at 242.
[27]
Id. at 248.
[28]
[29]
Id. at 787.
[30]
Id. at 799.
[31]
Rollo, p. 282
[32]
[33]
Id. at 746-753.
[34]
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Section 18. The State affirms labor as a primary social economic force. It
shall protect the rights of workers and promote their welfare.
[35]
[36]
[37]
[38]
[39]
Id. at 761-763.
[40]
Twenty19 137
[41]
Alfredo L. Benipayo was Solicitor General at the time the Comment was
filed. Antonio Eduardo B. Nachura (now an Associate Justice of the Supreme
Court) was Solicitor General when the Memorandum was filed.
[42]
[43]
[44]
[45]
[46]
Id. at 682.
[47]
Twenty19 138
[49]
David v. Macapagal-Arroyo, G.R. No. 171396, May 3, 2006, 489 SCRA 160.
[50]
Arceta v. Mangrobang, G.R. No. 152895, June 15, 2004, 432 SCRA 136.
[51]
Moldex Realty, Inc. v. Housing and Land Use Regulatory Board, G.R. No.
149719, June 21, 2007, 525 SCRA 198; Marasigan v. Marasigan, G.R. No.
156078, March 14, 2008, 548 SCRA 409.
[52]
Matibag v. Benipayo, G.R. No. 149036, April 2, 2002, 380 SCRA 49.
[53]
Rollo, p. 145.
[54]
Id. at 166.
[55]
[58]
Ortigas & Co., Ltd. v. Court of Appeals, G.R. No. 126102, December 4,
2000, 346 SCRA 748.
[59]
Walker v. Whitehead, 83 U.S. 314 (1873); Wood v. Lovett, 313 U.S. 362,
370 (1941); Intrata-Assurance Corporation v. Republic of the Philippines, G.R.
No. 156571, July 9, 2008; Smart Communications, Inc. v. City of Davao, G.R.
No. 155491, September 16, 2008.
[61]
Executive Secretary v. Court of Appeals, G.R. No. 131719, May 25, 2004,
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429 SCRA 81, citing JMM Promotion and Management, Inc. v. Court of
Appeals, G.R. No. 120095, August 5, 1996, 260 SCRA 319.
[62]
[63]
Section 18. The State affirms labor as a primary social economic force. It
shall protect the rights of workers and promote their welfare.
[64]
Section 3, The State shall afford full protection to labor, local and
See City of Manila v. Laguio, G.R. No. 118127, April 12, 2005, 455 SCRA
308; Pimentel III v. Commission on Elections, G.R. No. 178413, March 13,
2008, 548 SCRA 169.
[66]
Los Angeles v. Almeda Books, Inc., 535 U.S. 425 (2002); Craig v. Boren,
429 US 190 (1976).
[69]
Twenty19 140
[70]
[72]
Twenty19 141
Nor need we enquire whether similar considerations enter into the review of
statutes directed at particular religious, Pierce v. Society of Sisters, 268 U.S.
510, or national, Meyer v. Nebraska, 262 U.S. 390; Bartels v. Iowa, 262 U.S.
404; Farrington v. Tokushige, 273 U.S. 284, or racial minorities, Nixon v.
Herndon, supra; Nixon v. Condon, supra: whether prejudice against discrete
and insular minorities may be a special condition, which tends seriously to
curtail the operation of those political processes ordinarily to be relied upon
to protect minorities, and which may call for a correspondingly more
searching judicial inquiry. Compare McCulloch v. Maryland, 4 Wheat. 316,
428; South Carolina v. Barnwell Bros., 303 U.S. 177, 184, n 2, and cases
cited.
[74]
Frontiero v. Richardson, 411 U.S. 677 (1973); U.S. v. Virginia, 518 U.S. 515
(1996).
[76]
[77]
[78]
[79]
[80]
Id. at 840-841.
[81]
[82]
Id.
[83]
Twenty19 142
[84]
[85]
[86]
[87]
[88]
[89]
[90]
[91]
[92]
[93]
[94]
[95]
[96]
[97]
[98]
[99]
[100]
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[101]
[102]
[103]
[104]
[105]
3:09.
[106]
See also Flourish, supra note 95; and Athena, supra note 96.
[107]
It is noted that both petitioner and the OSG drew comparisons between
OFWs in general and local workers in general. However, the Court finds that
the more relevant comparison is between OFWs whose employment is
necessarily subject to a fixed term and local workers whose employment is
also subject to a fixed term.
[108]
[110]
[111]
See also Wallem Philippines Shipping, Inc. v. Hon. Minister of Labor, No. L50734-37, February 20, 1981, 102 scra 835, where Madrigal Shipping
Company, Inc. v. Ogilvie is cited.
[112]
[113]
[114]
[115]
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[116]
Brent School, Inc. v. Zamora, No. L-48494, February 5, 1990, 181 SCRA
702.
[117]
[118]
The Labor Code itself does not contain a specific provision for local
workers with fixed-term employment contracts. As the Court observed
in Brent School, Inc., the concept of fixed-term employment has slowly faded
away from our labor laws, such that reference to our labor laws is of limited
use in determining the monetary benefits to be awarded to fixed-term
workers who are illegally dismissed.
[119]
[120]
[121]
[122]
[123]
[124]
See Estrada v. Escritor, A.M. No. P-02-1651, August 4, 2003, 408 SCRA 1.
[125]
Id.
[126]
Roe v. Wade, 410 U.S. 113 (1971); see also Carey v. Population Service
International, 431 U.S. 678 (1977).
Twenty19 145
[127]
Sabio v. Gordon, G.R. Nos. 174340, 174318, 174177, October 16, 2006,
504 SCRA 704.
[128]
[129]
[130]
Id. at p. 693.
[131]
Section 3. The State shall afford full protection to labor, local and
overseas, organized and unorganized, and promote full employment and
equality of employment opportunities for all.
It shall guarantee the rights of all workers to self-organization, collective
bargaining and negotiations, and peaceful concerted activities, including the
right to strike in accordance with law. They shall be entitled to security of
tenure, humane conditions of work, and a living wage. They shall also
participate in policy and decision-making processes affecting their rights and
benefits as may be provided by law.
The State shall promote the principle of shared responsibility between
workers and employers and the preferential use of voluntary modes in
settling disputes, including conciliation, and shall enforce their mutual
compliance therewith to foster industrial peace.
The State shall regulate the relations between workers and employers,
recognizing the right of labor to its just share in the fruits of production and
the right of enterprises to reasonable returns to investments, and to
expansion and growth.
[132]
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[135]
[136]
G.R. No. 180719, August 22, 2008. See also PCL Shipping Philippines, Inc.
v. National Labor Relations Commission. G.R. No. 153031, December 14,
2006, 511 SCRA 44.
Twenty19 147
includes the right to work and the right to earn a living. In JMM Promotion
and Management, Inc. v. Court of Appeals,[3] the Court held that:
A profession, trade or calling is a property right within the meaning
of our constitutional guarantees. One cannot be deprived of the
right to work and the right to make a living because these rights are
property rights, the arbitrary and unwarranted deprivation of which
normally constitutes an actionable wrong. (Emphasis supplied)
The right to work and the right to earn a living necessarily includes the right
to bargain for better terms in an employment contract and the right to
enforce those terms. If protected property does not include these rights, then
the right to work and the right to earn a living would become empty civil
liberties -- the State can deprive persons of their right to work and their right
to earn a living by depriving them of the right to negotiate for better terms
and the right to enforce those terms.
The assailed provision prevents the OFWs from bargaining for payment of
more than three months' salary in case the employer wrongfully terminates
the employment. The law may set a minimum amount that the employee can
recover, but it cannot set a ceiling because this unreasonably curtails the
employee's right to bargain for better terms of employment. The right to
bargain for better terms of employment is a constitutional right that cannot
be unreasonably curtailed by the State. Here, no compelling State interest
has been advanced why the employee's right to bargain should be curtailed.
The claim that that the three-month salary cap provides an incentive to
service contractors and manning agencies is specious because such
incentive is at the expense of a protected and disadvantaged class -- the
OFWs.
The right to property is not absolute -- the prohibition against deprivation of
property is qualified by the phrase "without due process of law." Thus, the
State may deprive persons of property through the exercise of police power.
[4]
However, the deprivation must be done with due process. Substantive
due process requires that the means employed in depriving persons
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[1]
[3]
[4]
[6]
[7]
[8]
[9]
[10]
[11]
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CONCURRING OPINION
BRION, J.:
I concur with the ponencia's conclusion that Section 10 of Republic Act No.
8042, or the Migrant Workers and Overseas Filipinos Act (R.A. No. 8042), is
unconstitutional insofar as it provides that
In case of termination of overseas employment without just, valid or
authorized cause as defined by law or contract, the worker shall be
entitled to the full reimbursement of his placement fee with interest at
twelve percent (12%) per annum, plus his salaries for the unexpired
portion of his employment contract or for three (3) months for every
year of the unexpired term, whichever is less.
My conclusion, however, proceeds from a different reason and constitutional
basis. I believe that this provision should be struck down for violations of the
constitutional provisions in favor of labor[1] and of the substantive aspect of
the due process clause.[2] Given these bases, I see no necessity in invoking
the equal protection clause. Underlying this restraint in invoking the equal
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express policy declarations of R.A. No. 8042 show that its purposes are
reiterations of the very same policies enshrined in the Constitution. R.A. No.
8042, among others, recites that:
(b) The State shall afford full protection to labor, local and overseas,
organized and unorganized, and promote full employment and equality of
employment opportunities for all. Towards this end, the State shall provide
adequate and timely social, economic and legal services to Filipino migrant
workers.[4]
xxx
(e) Free access to the courts and quasi-judicial bodies and adequate legal
assistance shall not be denied to any person by reason of poverty. In this
regard, it is imperative that an effective mechanism be instituted to ensure
that the rights and interests of distressed overseas Filipinos, in general, and
Filipino migrant workers, in particular, documented or undocumented, are
adequately protected and safeguarded.
These declared purposes patently characterize R.A. No. 8042 as a direct
implementation of the constitutional objectives on Filipino overseas work so
that it must be read and understood in terms of these policy objectives.
Under this interpretative guide, any provision in R.A. No. 8042 inimical to the
interest of an overseas Filipino worker (OFW) cannot have any place in the
law.
Further examination of the law shows that while it acknowledges that the
State shall "promote full employment," it states at the same time that "the
State does not promote overseas employment as a means to sustain
economic growth and national development. The existence of overseas
employment program rests solely on the assurance that the dignity and
fundamental human rights and freedoms of Filipino citizens shall not, at any
time, be compromised or violated." In blunter terms, the overseas
employment program exists only for OFW protection.
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Having said all these, the law concludes its Declaration of Policies with a
statement the lawmakers may have perceived as an exception to the law's
previously declared policies, by stating - "[n]onetheless, the deployment of
Filipino overseas workers, whether land-based or sea-based, by local service
contractors and manning agencies employing them shall be encouraged.
Appropriate incentives may be extended to them." Thus, in express terms,
the law recognizes that there can be "incentives" to service contractors and
manning agencies in the spirit of encouraging greater deployment efforts. No
mention at all, however, was made of incentives to the contractors' and
agencies' principals, i.e., the foreign employers in whose behalf the
contractors and agencies recruit OFWs.
The matter of money claims - the immediate subject of the present case - is
governed by Section 10 of the law. This section grants the National Labor
Relations Commission (NLRC) jurisdiction over OFW money claims. On
liability for money claims, the sections states:
SECTION 10. Money Claims. -- Notwithstanding any provision of law to the
contrary, the Labor Arbiters of the National Labor Relations Commission
(NLRC) shall have the original and exclusive jurisdiction to hear and decide,
within ninety (90) calendar days after the filing of the complaint, the 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.
The liability of the principal/employer and the recruitment/placement agency
for any and all claims under this section shall be joint and several. This
provision shall be incorporated in the contract for overseas employment and
shall be a condition precedent for its approval. The performance bond to be
filed by the recruitment/placement agency, as provided by law, shall be
answerable for all money claims or damages that may be awarded to the
workers. If the recruitment/placement agency is a juridical being, the
corporate officers and directors and partners as the case may be, shall
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program.[11] The master contract contains the terms and conditions the
foreign principal/employer binds itself to in its employment relationship with
the OFWs it will employ. Second, signed individual contracts of employment
between the foreign principal/employer or its agent and the OFW, drawn in
accordance with the master contract, are required as well.[12] Third, the
foreign aspects or incidents of these contracts are submitted to the
Philippine labor attachs for verification at site.[13] This is a protective
measure to ensure the existence and financial capability of the foreign
principal/employer. Labor attaches verify as well the individual employment
contracts signed by foreign principals/employers overseas.Fourth, the POEA
Rules require the issuance by the foreign principal-employer of a special
power of attorney authorizing the recruitment/manning agency to sign for
and its behalf, and allowing itself to sue or be sued on the employment
contracts in the Philippines through its authorized recruitment/manning
agency.[14] Fifth, R.A. No. 8042 itself and its predecessor laws have always
provided that the liability between the principal and its agent (the
recruitment/manning agency) is joint and solidary,[15] thus ensuring that
either the principal or the agent can be held liable for obligations due to
OFWs. Finally, OFWs themselves can sue at the host countries with the
assistance of Philippine embassies and labor offices.[16]
These measures collectively protect OFWs by ensuring the integrity of their
contracts; by establishing the responsible parties; and by providing the
mechanisms for their enforcement. In all these, the primary recourse is with
the foreign principal employer who has direct and primary responsibility
under the employment contract.
Section 10 of R.A. No. 8042 affects these well-laid rules and measures, and in
fact provides a hidden twist affecting the principal/employer's liability. While
intended as an incentive accruing to recruitment/manning agencies, the law,
as worded, simply limits the OFWs' recovery in wrongful dismissal
situations. Thus, it redounds to the benefit of whoever may be liable,
including the principal/employer - the direct employer primarily liable for the
wrongful dismissal. In this sense, Section 10 - read as a grant of incentives to
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we cannot simply wish away with the disputed Section 10 in place. Thus, this
inherently oppressive, arbitrary, confiscatory and inimical provision should be
struck down for its conflict with the substantive aspect of the constitutional
due process guarantee. Specifically, the phrase "for three (3) months for
every year of the unexpired terms, whichever is less" in the fifth and
final paragraph of Section 10 of R.A. 8042 should be declared
unconstitutional.
With these conclusions, I see no need to further test the validity of the
assailed clause under the equal protection guarantee. My restraint in this
regard rests on two reasons.
First, I believe that the ponencia's use of the strict scrutiny standard of
review - on the premise that the assailed clause established a suspect
classification - is misplaced. Second, I do not see the present case as an
occasion to further expand the use of the strict scrutiny standard which the
Court first expanded in Central Bank Employees Association, Inc. v. Bangko
Sentral ng Pilipinas,[18]
A suspect classification is one where distinctions are made based on the
most invidious bases for classification that violate the most basic human
rights, i.e., on the basis of race, national origin, alien status, religious
affiliation, and to a certain extent, sex and sexual orientation.[19] With a
suspect classification, the scrutiny of the classification is raised to its highest
level: the ordinary presumption of constitutionality is reversed and
government carries the burden of proving that its challenged policy is
constitutional. To withstand strict scrutiny, the government must show that
its policy is necessary to achieve a compelling state interest; if this is proven,
the state must then demonstrate that the legislation is narrowly tailored to
achieve the intended result.[20]
In the present case, I do not see the slightest indication that Congress
actually intended to classify OFWs - between and among themselves, and in
relation with local workers - when it adopted the disputed portion of Section
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10. The congressional intent was to merely grant recruitment and manning
agencies an incentive and thereby encourage them into greater deployment
efforts, although, as discussed above, the incentive really works for the
foreign principals' benefit at the expense of the OFWs.
Even assuming that a classification resulted from the law, the classification
should not immediately be characterized as a suspect classification that
would invite the application of the strict scrutiny standard. The disputed
portion of Section 10 does not, on its face, restrict or curtail the civil and
human rights of any single group of OFWs. At best, the disputed portion
limits the monetary award for wrongful termination of employment - a tort
situation affecting an OFW's economic interest. This characterization and
the unintended classification that unwittingly results from the incentive
scheme under Section 10, to my mind, render a strict scrutiny
disproportionate to the circumstances to which it is applied.
I believe, too, that we should tread lightly in further expanding the concept
of suspect classification after we have done so in Central Bank,[21] where we
held that classifications that result in prejudice to persons accorded
special protection by the Constitution[22] requires a stricter judicial
scrutiny. The use of a suspect classification label cannot depend solely on
whether the Constitution has accorded special protection to a specified
sector. While the Constitution specially mentions labor as a sector that needs
special protection, the involvement of or relationship to labor, by itself,
cannot automatically trigger a suspect classification and the accompanying
strict scrutiny; much should depend on the circumstances of the case, on the
impact of the illegal differential treatment on the sector involved, on the
needed protection, and on the impact of recognizing a suspect classification
on future situations. In other words, we should carefully calibrate our moves
when faced with an equal protection situation so that we do
not misappreciate the essence of what a suspect classification is, and
thereby lessen its jurisprudential impact and value. Reserving this approach
to the worst cases of unacceptable classification and discrimination
highlights the importance of striking at these types of unequal treatment and
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is a lesson that will not be lost on all concerned, particularly the larger public.
There is the added reason, too, that the reverse onus that a strict scrutiny
brings directly strikes, in the most glaring manner, at the regularity of the
performance of functions of a co-equal branch of government; intergovernment harmony and courtesy demand that we reserve this type of
treatment to the worst violations of the Constitution.
Incidentally, I believe that we can arrive at the same conclusion and similarly
strike down the disputed Section 10 by using the lowest level of scrutiny,
thereby rendering the use of the strict scrutiny unnecessary. Given the OSG's
positions, the resulting differential treatment the law fosters between
Philippine-based workers and OFWs in illegal dismissal situations does not
rest on substantial distinctions that are germane to the purpose of the law.
No reasonable basis for classification exists since the distinctions the OSG
pointed out do not justify the different treatment of OFWs and Philippinebased workers, specifically, why one class should be excepted from the
consequences of illegal termination under the Labor Code, while the other is
not.
To be sure, the difference in work locations and working conditions that the
OSG pointed out are not valid grounds for distinctions that should matter in
the enforcement of employment contracts. Whether in the Philippines or
elsewhere, the integrity of contracts - be they labor, commercial or political is a zealously guarded value that we in the Philippines should not demean by
allowing a breach of OFW contracts easy to undertake. This is true whatever
may be the duration or character of employment; employment contracts,
whatever their term and conditions may be subject only to their consistency
with the law, must be respected during the whole contracted term and under
the conditions agreed upon.
Significantly, the OSG could not even point to any reason other than the
protection of recruitment agencies and the expansion of the Philippine
overseas program as justification for the limitation of liability that has
effectively distinguished OFWs from locally-based workers. These reasons,
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[1]
Id.; Article III, Section 1 contains both the due process and equal protection
clauses of the Constitution, as follows: Section 1. No person shall be
deprived of life, liberty, or property without due process of law, nor shall any
person be denied the equal protection of the laws.
[3]
Long title of R.A. No. 8042. Its short title is "Migrant Workers and Overseas
Filipinos Act of 1995." The law came soon after the Gancayco Commission
rendered its report on the situation of overseas Filipino workers. The
Commission was convened following the execution of Flor Contemplacion, a
Filipino domestic helper executed in Singapore on March 17, 1995.
[4]
[5]
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[6]
[7]
[8]
See: City of Manila v. Laguio, Jr., G.R. No. 118127, April 12, 2005, 455 SCRA
308; Planters Committee v. Arroyo, G.R. Nos. 79310 and 79744, July 14,
1989, 175 SCRA 343; Balacuit v. CFI of Agusan del Norte, G.R. No. L-38429,
June 30, 1998, 163 SCRA 182.
[9]
[10]
LABOR CODE, Article 279; Vinta Maritime Co., Inc and Elkano Ship
Management, Inc. v. NLRC, et al., G.R. No. 113911, January 23, 1998; Tierra
International Construction, et al., v. NLRC, G.R. No. 101825, April 2, 1996.
[11]
POEA Rules for Land-Based Workers, Part III, Rule 1, Section 1; POEA Rules
for Seafarers, Part III, Rule 1, Sections 1 to 4
[14]
POEA Rules for Land-Based Workers, Part III, Rule 1, Sections 2 (a) to 3,
and Rule 2, Section 2 (a); POEA Rules for Seafarers, Part III, Rule 1, Sections 2
(b) and 4, and Rule 2, Section 2(a).
[15]
POEA Rules for Land-Based Workers, Part II, Rule 2, Section 1 (f) (3); POEA
Rules for Seafarers, Part II, Rule 2, Section 1 (e) (8); Datuman v. First
Cosmopolitan Manpower and Promotion Services, G.R. No. 156029,
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November 14, 2008; See: Implementing Rules and Regulations of the Labor
Code (1976), Book I, Rule V, Section 10; See also: Catan v. NLRC, G.R. No.
77279, April 15, 1988, 160 SCRA 691, and Royal Crown International v. NLRC,
G.R. No. 78085, October 16, 1989, 178 SCRA 569.
[16]
[18]
[19]
[21]
[22]
In the Central Bank case, the classification was based on salary grade or
officer-employee status. In the words of the decision, "It is akin to a
distinction based on economic class and status, with the higher grades as
recipients of a benefit specifically withheld from the lower grades."