PART TWO LABOR STANDARDS LAW:
documents to accompany said petition. The petitioner then moved
PURPOSE:
MARIVELES SHIPYARD CORP. VS. CA et al.
G.R. No. 144134
November 11, 2003
FACTS: Petitioner engaged the services of Longest Force
Investigation and Security Agency, Inc. to render security services
at its premises. Longest Force then deployed its security guards,
herein private respondents, at the petitioners shipyard. However,
petitioner found the services rendered by private respondents
unsatisfactory and inadequate causing it to terminate its contract
with Longest Force and in turn, the latter terminated the
employment of said respondents.
Consequently, private respondents filed a case for illegal dismissal,
underpayment of wages pursuant to the PNPSOSIA-PADPAO rates,
non-payment of overtime pay, premium pay for holiday and rest
day, service incentive leave pay, 13th month pay and attorneys
fees, against both Longest Force and petitioner, before NLRC, who
in turn sought the guards reinstatement with full backwages and
without loss of seniority rights.
Petitioner appealed to the NLRC, contending that it should not be
held jointly and severally liable with Longest Force for
underpayment of wages and overtime pays because it had been
religiously and promptly paying the bills for the security services
sent by Longest Force and that these are in accordance with the
statutory minimum wage.
Also, petitioner contends that it should not be held liable for
overtime pay as private respondents failed to present proof that
overtime work was actually performed. However, the labor tribunal
affirmed in toto the decision of the Labor Arbiter. Petitioner moved
for reconsideration, but this was denied by the NLRC.
The petitioner then filed a special civil action for certiorari assailing
the NLRC judgment for having been rendered with grave abuse of
discretion with the Court of Appeals, which was also outright
dismissed by the respondent court due to a defective certificate of
non-forum shopping and non-submission of the required
for reconsideration of the order of dismissal but was also denied by
the appellate court, hence, this petition.
ISSUE: W/N petitioner is jointly and severally liable with Longest
Force?
HELD:
Yes, Petitioners liability is joint and several with that of Longest
Force, pursuant to Articles 106, 107 and 109 of the Labor Code.
When the petitioner contracted with Longest Force, petitioner
became an indirect employer of private respondents pursuant to
Article 107. Following Article 106, when the agency as contractor
failed to pay the guards, the corporation as principal becomes
jointly and severally liable for the guards wages.
This is mandated by the Labor Code to ensure compliance with its
provisions, including payment of statutory minimum wage. The
security agency is held liable by virtue of its status as direct
employer, while the corporation is deemed the indirect employer of
the guards for the purpose of paying their wages in the event of
failure of the agency to pay them.
This statutory scheme gives the workers the ample protection
consonant with labor and social justice provisions of the
Constitution. Petitioner cannot evade its liability by claiming that it
had religiously paid the compensation of guards as stipulated
under the contract with the security agency.
Labor standards are enacted by the legislature to alleviate the
plight of workers whose wages barely meet the spiraling costs of
their basic needs.
Labor laws are considered written in every contract. Stipulations
in violation thereof are considered null.
Similarly, legislated wage increases are deemed amendments to
the contract. Thus, employers cannot hide behind their contracts
in order to evade their (or their contractors or subcontractors)
liability for noncompliance with the statutory minimum wage.
1. EMPLOYMENT POLICY;
1.01. PRE EMPLOYMENT POLICY STATEMENT OF
OBJECTIVES ART. 12 LABOR CODE.
BOOK ONE
PRE-EMPLOYMENT
Art. 12. Statement of objectives. It is the policy of the State:
To promote and maintain a state of full employment through
improved manpower training, allocation and utilization;
To protect every citizen desiring to work locally or overseas by
securing for him the best possible terms and conditions of
employment;
To facilitate a free choice of available employment by persons
seeking work in conformity with the national interest;
To facilitate and regulate the movement of workers in conformity
with the national interest;
To regulate the employment of aliens, including the establishment
of a registration and/or work permit system;
To strengthen the network of public employment offices and
rationalize the participation of the private sector in the recruitment
and placement of workers, locally and overseas, to serve national
development objectives;
To insure careful selection of Filipino workers for overseas
employment in order to protect the good name of the Philippines
abroad.
2. RECRUITMENT AND PLACEMENT OF WORKERS;
* STATUTORY REFERENCE: ART. 13 29, LABOR CODE;
Title I
RECRUITMENT AND PLACEMENT OF WORKERS
Chapter I
GENERAL PROVISIONS
Art. 13. Definitions.
"Worker" means any member of the labor force, whether employed
or unemployed.
"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.
"Private fee-charging employment agency" means any person or
entity engaged in recruitment and placement of workers for a fee
which is charged, directly or indirectly, from the workers or
employers or both.
"License" means a document issued by the Department of Labor
authorizing a person or entity to operate a private employment
agency.
"Private recruitment entity" means any person or association
engaged in the recruitment and placement of workers, locally or
overseas, without charging, directly or indirectly, any fee from the
workers or employers.
"Authority" means a document issued by the Department of Labor
authorizing a person or association to engage in recruitment and
placement activities as a private recruitment entity.
"Seaman" means any person employed in a vessel engaged in
maritime navigation.
"Overseas employment" means employment of a worker outside
the Philippines.
"Emigrant" means any person, worker or otherwise, who emigrates
to a foreign country by virtue of an immigrant visa or resident
permit or its equivalent in the country of destination.
Art. 14. Employment promotion. The Secretary of Labor shall have
the power and authority:
To organize and establish new employment offices in addition to
the existing employment offices under the Department of Labor as
the need arises;
To organize and establish a nationwide job clearance and
information system to inform applicants registering with a
particular employment office of job opportunities in other parts of
the country as well as job opportunities abroad;
To develop and organize a program that will facilitate occupational,
industrial and geographical mobility of labor and provide assistance
in the relocation of workers from one area to another; and
To require any person, establishment, organization or institution to
submit such employment information as may be prescribed by the
Secretary of Labor.
Art. 15. Bureau of Employment Services.
The Bureau of Employment Services shall be primarily responsible
for developing and monitoring a comprehensive employment
program. It shall have the power and duty:
To formulate and develop plans and programs to implement the
employment promotion objectives of this Title;
To establish and maintain a registration and/or licensing system to
regulate private sector participation in the recruitment and
placement of workers, locally and overseas, and to secure the best
possible terms and conditions of employment for Filipino contract
workers and compliance therewith under such rules and
regulations as may be issued by the Minister of Labor;
To formulate and develop employment programs designed to
benefit disadvantaged groups and communities;
To establish and maintain a registration and/or work permit
system to regulate the employment of aliens;
To develop a labor market information system in aid of proper
manpower and development planning;
To develop a responsive vocational guidance and testing system in
aid of proper human resources allocation; and
To maintain a central registry of skills, except seamen.
The regional offices of the Ministry of Labor shall have the original
and exclusive jurisdiction over all matters or cases involving
employer-employee relations including money claims, arising out
of or by virtue of any law or contracts involving Filipino workers for
overseas employment except seamen: Provided, That the Bureau
of Employment Services may, in the case of the National Capital
Region, exercise such power, whenever the Minister of Labor
deems it appropriate. The decisions of the regional offices of the
Bureau of Employment Services, if so authorized by the Minister of
Labor as provided in this Article, shall be appealable to the
National Labor Relations Commission upon the same grounds
provided in Article 223 hereof. The decisions of the National Labor
Relations Commission shall be final and inappealable. (Superseded
by Exec. Order 797, May 1, 1982).
The Minister of Labor shall have the power to impose and collect
fees based on rates recommended by the Bureau of Employment
Services. Such fees shall be deposited in the National Treasury as
a special account of the General Fund, for the promotion of the
objectives of the Bureau of Employment Services, subject to the
provisions of Section 40 of Presidential Decree No. 1177.
Art. 16. Private recruitment. Except as provided in Chapter II of
this Title, no person or entity other than the public employment
offices, shall engage in the recruitment and placement of workers.
Art. 17. Overseas Employment Development Board. An Overseas
Employment Development Board is hereby created to undertake,
in cooperation with relevant entities and agencies, a systematic
program for overseas employment of Filipino workers in excess of
domestic needs and to protect their rights to fair and equitable
employment practices. It shall have the power and duty:
To promote the overseas employment of Filipino workers through a
comprehensive market promotion and development program;
To secure the best possible terms and conditions of employment of
Filipino contract workers on a government-to-government basis
and to ensure compliance therewith;
To recruit and place workers for overseas employment on a
government-to-government arrangement and in such other sectors
as policy may dictate; and
To act as secretariat for the Board of Trustees of the Welfare and
Training Fund for Overseas Workers.
Art. 18. Ban on direct-hiring. No employer may hire a Filipino
worker for overseas employment except through the Boards and
entities authorized by the Secretary of Labor. Direct-hiring by
members of the diplomatic corps, international organizations and
such other employers as may be allowed by the Secretary of Labor
is exempted from this provision.
Art. 19. Office of Emigrant Affairs.
Pursuant to the national policy to maintain close ties with Filipino
migrant communities and promote their welfare as well as
establish a data bank in aid of national manpower policy
formulation, an Office of Emigrant Affairs is hereby created in the
Department of Labor. The Office shall be a unit at the Office of the
Secretary and shall initially be manned and operated by such
personnel and through such funding as are available within the
Department and its attached agencies. Thereafter, its
appropriation shall be made part of the regular General
Appropriations Decree.
The office shall, among others, promote the well-being of
emigrants and maintain their close link to the homeland by:
serving as a liaison with migrant communities;
provision of welfare and cultural services;
promote and facilitate re-integration of migrants into the national
mainstream;
promote economic; political and cultural ties with the
communities; and
generally to undertake such activities as may be appropriate to
enhance such cooperative links.
Art. 20. National Seamen Board.
A National Seamen Board is hereby created which shall develop
and maintain a comprehensive program for Filipino seamen
employed overseas. It shall have the power and duty:
To provide free placement services for seamen;
To regulate and supervise the activities of agents or
representatives of shipping companies in the hiring of seamen for
overseas employment and secure the best possible terms of
employment for contract seamen workers and secure compliance
therewith;
To maintain a complete registry of all Filipino seamen.
The Board shall have original and exclusive jurisdiction over all
matters or cases including money claims, involving employer-
employee relations, arising out of or by virtue of any law or
contracts involving Filipino seamen for overseas employment. The
decisions of the Board shall be appealable to the National Labor
Relations Commission upon the same grounds provided in Article
223 hereof. The decisions of the National Labor Relations
Commission shall be final and inappealable.
Art. 21. Foreign service role and participation. To provide ample
protection to Filipino workers abroad, the labor attaches, the labor
reporting officers duly designated by the Secretary of Labor and
the Philippine diplomatic or consular officials concerned shall, even
without prior instruction or advice from the home office, exercise
the power and duty:
To provide all Filipino workers within their jurisdiction assistance
on all matters arising out of employment;
To insure that Filipino workers are not exploited or discriminated
against;
To verify and certify as requisite to authentication that the terms
and conditions of employment in contracts involving Filipino
workers are in accordance with the Labor Code and rules and
regulations of the Overseas Employment Development Board and
National Seamen Board;
To make continuing studies or researches and recommendations
on the various aspects of the employment market within their
jurisdiction;
To gather and analyze information on the employment situation
and its probable trends, and to make such information available;
and
To perform such other duties as may be required of them from
time to time.
Art. 22. Mandatory remittance of foreign exchange earnings. It
shall be mandatory for all Filipino workers abroad to remit a
portion of their foreign exchange earnings to their families,
dependents, and/or beneficiaries in the country in accordance with
rules and regulations prescribed by the Secretary of Labor.
Art. 23. Composition of the Boards.
The OEDB shall be composed of the Secretary of Labor and
Employment as Chairman, the Undersecretary of Labor as Vice-
Chairman, and a representative each of the Department of Foreign
Affairs, the Department of National Defense, the Central Bank, the
Department of Education, Culture and Sports, the National
Manpower and Youth Council, the Bureau of Employment Services,
a workers organization and an employers organization and the
Executive Director of the OEDB as members.
The National Seamen Board shall be composed of the Secretary of
Labor and Employment as Chairman, the Undersecretary of Labor
as Vice-Chairman, the Commandant of the Philippine Coast Guard,
and a representative each of the Department of Foreign Affairs,
the Department of Education, Culture and Sports, the Central
Bank, the Maritime Industry Authority, the Bureau of Employment
Services, a national shipping association and the Executive
Director of the NSB as members.
The members of the Boards shall receive allowances to be
determined by the Board which shall not be more than P2,000.00
per month.
The Boards shall be attached to the Department of Labor for policy
and program coordination. They shall each be assisted by a
Secretariat headed by an Executive Director who shall be a Filipino
citizen with sufficient experience in manpower administration,
including overseas employment activities. The Executive Director
shall be appointed by the President of the Philippines upon the
recommendation of the Secretary of Labor and shall receive an
annual salary as fixed by law. The Secretary of Labor shall appoint
the other members of the Secretariat.
The Auditor General shall appoint his representative to the Boards
to audit their respective accounts in accordance with auditing laws
and pertinent rules and regulations.
Art. 24. Boards to issue rules and collect fees. The Boards shall
issue appropriate rules and regulations to carry out their functions.
They shall have the power to impose and collect fees from
employers concerned, which shall be deposited in the respective
accounts of said Boards and be used by them exclusively to
promote their objectives.
Chapter II
REGULATION OF RECRUITMENT AND PLACEMENT ACTIVITIES
Art. 25. Private sector participation in the recruitment and
placement of workers. Pursuant to national development objectives
and in order to harness and maximize the use of private sector
resources and initiative in the development and implementation of
a comprehensive employment program, the private employment
sector shall participate in the recruitment and placement of
workers, locally and overseas, under such guidelines, rules and
regulations as may be issued by the Secretary of Labor.
Art. 26. Travel agencies prohibited to recruit. Travel agencies and
sales agencies of airline companies are prohibited from engaging in
the business of recruitment and placement of workers for overseas
employment whether for profit or not.
Art. 27. Citizenship requirement. Only Filipino citizens or
corporations, partnerships or entities at least seventy-five percent
(75%) of the authorized and voting capital stock of which is owned
and controlled by Filipino citizens shall be permitted to participate
in the recruitment and placement of workers, locally or overseas.
Art. 28. Capitalization. All applicants for authority to hire or
renewal of license to recruit are required to have such substantial
capitalization as determined by the Secretary of Labor.
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 be transferred,
conveyed or assigned to any other person or entity. Any transfer
of business address, appointment or designation of any agent or
representative including the establishment of additional offices
anywhere shall be subject to the prior approval of the Department
of Labor.
BOOK 1, RULES III-VIII, OMNIBUS RULES;
BOOK ONE
Pre-Employment
RULE III
Recruitment and Placement
SECTION 1. Private recruitment. No person or entity shall
engage in the recruitment and placement of
workers either for local or overseas employment except the
following:
(a) Public employment offices;
(b) Overseas Employment Development Board;
(c) National Seamen Board;
(d) Private recruitment offices;
(e) Private employment agencies;
(f) Shipping or manning agents or representatives; and
(g) Such other persons or entities as may be authorized by the
Secretary.
SECTION 2. Ban on direct hiring. No employer may hire a
Filipino worker for overseas employment
except through the person or entities enumerated in the preceding
section or as authorized by the law or
by the Secretary. Direct hiring by members of the diplomatic
service, officials and employees of
international organizations and such other employers as may be
authorized by the Secretary is exempted
from this provision. Such hirings shall be processed by the
Overseas Employment Development Board.
RULE IV
Private Sector Participation in Recruitment and Placement
SECTION 1. Who may participate in the private sector.
Only the following persons or entities in the
private sector may engage in the recruitment and placement of
workers either for local or overseas
employment:
(a) Private employment agencies;
(b) Private recruitment entities;
(c) Shipping or manning agents or representatives; and
(d) Such other persons or entities as may be authorized by the
Secretary.
SECTION 2. Citizenship requirement. Only Filipino citizens or
corporations, partnerships or entities at
least seventy-five percent (75%) of the authorized and voting
capital stock of which is owned and
controlled by Filipino citizens shall be permitted to participate in
the recruitment and placement of
workers, locally or overseas.
RULE V
Private Employment Agencies
SECTION 1. Qualifications of applicants. All applicants for
license to operate private employment
agencies either for local or overseas recruitment and placement
shall possess the following qualifications:
(a) Citizenship requirement as provided for in Rule IV of these
Rules;
(b) Appropriate capitalization as follows:
1. For overseas recruitment and placement, a minimum networth
of P150,000.00 in the case of single
proprietorship, and a paid-up capital or networth of P150,000.00 in
the case of a corporation or
partnership, as the case may be;
2. For local recruitment and placement, a minimum networth of
P25,000.00 in the case of single
proprietorship; and a paid-up capital or networth of P25,000.00 in
the case of partnership or corporation,
as the case may be;
(c) Applicants not otherwise disqualified by law, rule or regulations
as may be determined by competent
authority to engage in recruitment and placement. (Repealed by
POEA Rules and Regulations)
SECTION 2. Application for license for overseas recruitment
and placement. Every applicant for license to operate a private
employment agency for overseas recruitment and placement shall
submit to the Bureau the following documents in support of the
application:
(a) A certified copy of the Articles of Incorporation in the case of a
corporation, or the registration with the
Bureau of Domestic Trade in the case of a single proprietorship or
partnership;
(b) If the applicant is a corporation, proof of financial capacity of
the major stockholders such as sworn
statements of assets and verified income tax returns for the last
two years;
(c) Clearance from the Philippine Constabulary and the Bureau of
Internal Revenue for all the
incorporators, partners or single proprietor; chan robles virtual law
library
(d) A verified statement that the applicant has in its employ
persons with adequate competence to
evaluate and test recruits and to consider them for employment
strictly on the basis of merit and fitness,
without any undue discrimination and in accordance with the
qualifications prescribed by the employer;
(e) A verified undertaking to assume all responsibilities for the
proper use of its license/authority and the
implementation of the contracts of employment with the workers;
and
(f) Such other requirements that the Secretary may require upon
recommendation of the Bureau Director.
(Amended by Sec. 1, Rule II, Book II, POEA Rules and
Regulations)
SECTION 3. Action on application. Within the thirty (30) days
from the receipt of the application for
license, the Bureau shall recommend its denial or approval to the
Secretary. Upon considering the
findings and recommendations of the Bureau, the Secretary may
either deny or approve the application.
(Amended by POEA Rules and Regulations)
SECTION 4. Fees and bonds. Upon approval of the application,
the applicant shall pay to the
Department a license fee of P6,000.00, post a cash bond of
P50,000.00 or negotiate bonds of equivalent
amount convertible to cash issued by banking or financial
institutions duly endorsed to the Department,
as well as a surety bond of P150,000.00 from an accredited
bonding company to answer for valid and
legal claims arising from violations of the conditions of the license
or the contracts of employment and
guarantee compliance with the provisions of the Code, its
implementing rules and regulations and
appropriate issuances of the Department. (Amended by Sec. 2 & 4
Rule II Book II, POEA Rules and
Regulations)
SECTION 5. Issuance of license. Upon payment of the license
fee and the posting of the appropriate
bonds, the Bureau shall issue the corresponding licensing to the
applicant. (Modified by Sec. 5, Rule II,
Book II, POEA Rules and Regulations)
SECTION 6. Duration of license. Every license shall be valid for
one year from the date of approval,
unless sooner cancelled, revoked or suspended by the Secretary
for violation of any of the conditions of
the license or any of applicable provisions of the Code and these
Rules. (As amended by Sec. 6, Rule II,
Book II, POEA Rules and Regulations)
SECTION 7. Non-transferability of license. No license shall be
transferred, conveyed or assigned to
any other person or entity, or used in any place other than that
stated in the license. Any transfer of
business address, appointment or designation, of any agent or
representative, including the
establishment of additional offices elsewhere, shall be subject to
the final approval of the Bureau. (As
amended by Sec. 7, Rule II, Book II, POEA Rules and Regulations)
SECTION 8. Change of Ownership of Business. Transfer or
change of ownership of a single
proprietorship licensed or authorized to engage in overseas
employment shall cause the automatic
revocation of the license or authority. The new owner shall be
required to apply for a license or authority
in accordance with these Rules. (Added by Sec. 8, Rule II, Book II,
POEA Rules and Regulations)
A change in the relationship of the partners in a partnership duly
authorized or licensed to engage in
overseas employment which materially interrupt the course of the
business or results in the actual
dissolution of the partnership shall likewise cause the automatic
revocation of the license or authority.
SECTION 9. Upgrading of Single Proprietorship or partnership.
Licensees or authority holders which
are single proprietorships or partnerships may, subject to the
guidelines of the Administration, convert into
corporations for purposes of upgrading or raising their capabilities
to meet the stiff competition in the
international labor market and to enable them to better comply
with their responsibilities arising from the
recruitment and deployment of workers overseas. (Added by Sec.
9, Rule II, Book II, POEA Rules and
Regulations)
The prohibition on the issuance of new license under L.O.I. 1190
shall not apply to the new entity created
by reason of the above merger, consolidation or upgrading.
The approval of merger, consolidation or upgrading shall
automatically revoke or cancel the license or
authorities of the single proprietorships, partnerships or
corporations so merged, consolidated or
upgraded.
SECTION 10. Change of Directors of Corporations. Every change
in the composition of the Board of
Directors of a corporation licensed or authorized to participate in
overseas employment shall be
registered with the Administration within 30 days from the date
the change was decided or approved. The
corporation shall be required to submit to the Administration the
bio-data and clearances of the new
members of the Board from the government agencies identified in
Section 1 (c) Rule II, Book II of these
Rules. (Added by Sec. 10, Rule II, Book II, POEA Rules and
Regulations)
SECTION 11. Change of Other Officers and Personnel. Every
change of officers or representatives
and termination of appointment of personnel shall be registered
with the Administration within 30 days
from the date the change or termination occurred. (Added by Sec.
11, Rule II, Book II, POEA Rules and
Regulations)
SECTION 12. Transfer of Business Address. Any transfer of
business address, including the
establishment of additional offices elsewhere, shall be effected only
with prior authority or approval of the
Administration. The approval shall be issued only upon formal
notice of the intention of transfer with the
following attachments: (Added by Sec. 12, Rule II, Book II, POEA
Rules and Regulations)
(a) Copy of the company's formal notice to the BDT or SEC on the
transfer of business address;
(b) In case of a corporation, Board Resolution duly registered with
the SEC authorizing transfer of
business address;
(c) Copy of the BDT or SEC acknowledgment of the notice to
transfer;
(d) Copy of the contract of lease or proof of building ownership.
The new office space shall be subject to the normal ocular
inspection procedures by duly authorized
representatives of the Administration.
A notice to the public of the new address shall be punished in a
newspaper of general circulation.
SECTION 13. Conduct of Recruitment Outside of Registered Office.
No licensed or authorized agency
or entity shall conduct recruitment activities outside of the address
stated in the licensed authority without
first securing prior authority from the Administration. (Added by
Sec. 13, Rule II, Book II, POEA Rules and
Regulations)
SECTION 14. Appointment of Representatives. Every
appointment of representatives or agents of
licensed or authorized agency or entity shall be subject to the prior
approval or authority of the
Administration. The approval may be issued upon submission of or
compliance with the following
requirements:(Added by Sec. 14, Rule II, Book II, POEA Rules and
Regulations)
(a) Proposed appointment or special power of attorney;
(b) Philippine Constabulary (PC-CIS) and National Bureau of
Investigation (NBI) clearances of the
proposed representative or agent;
(c) Two (2) copies of passport-size pictures of the proposed
representative or agent;
(d) A sworn or verified statement by the designating or appointing
person or company assuming full
responsibility for all acts of the agent or representative done in
connection with the recruitment and
placement of workers.
Approval by the Administration of the appointment or designation
does not authorize the agent or
representative to establish a branch or extension office of the
licensed agency represented.
Any revocation or amendments in the appointment should be
communicated to the Administration,
otherwise the designation or appointment shall be deemed as not
revoked or amended.
SECTION 15. Renewal of license. Not later than forty five (45)
days before the expiry date of the
license, a private employment agency shall submit to the Bureau
an application for renewal of license.
Such application shall be supported by the following documents:
(a) A report under oath of its operations during the period covered
by the license containing the following
information, among other:
1) Number and categories of workers recruited and placed
overseas during the period, names and
addresses of their respective employer(s)/principal(s), total basic
wages and salaries earned of workers
placed by it and reported foreign exchange earnings remitted
during the period as certified by the Central
Bank;
2) Total amount paid to the welfare fund and processing fees paid
during the period;
3) Names and addresses of its principals and the amount of service
fees per worker charged against
them; and
(b) Verified financial statement of operation during the period,
including latest income tax payment.
(Amended by Sec. 15, Rule II, Book II, POEA Rules and
Regulations)
SECTION 16. Processing of application for renewal. Within thirty
(30) days from receipt of the
application for renewal of license, the Bureau shall complete the
processing of the same. Upon evaluation
of the documents submitted and the agency's performance
records, the Bureau shall recommend its
denial or renewal to the Secretary who may accept or deny the
Bureau's recommendation. The Bureau
shall release the license subject to payment of a license fee of
P6,000.00, posting of a cash bond of
P50,000.00 or its acceptable equivalent, and the renewal of the
surety bond of P150,000.00. (Amended
by Sec. 16 to 18, Rule II, Book II, POEA Rules and Regulations)
(a) Replenishment of Cash or Surety Bonds. Within thirty (30)
days from notice by the Administration
that the bonds or any part thereof had been garnished, the agency
or entity shall replenish the same.
Failure to replenish shall cause the suspension or cancellation of
the license or authority.
(b) Refund of Cash Bond. A licensed agency or entity which
voluntarily surrenders its license or authority
shall be entitled to the refund of its cash bond only after posting a
surety bond of similar amount valid for
three (3) years.
(c) Evaluation of Performance of Agencies and Entities. The
Administration shall undertake the evaluation
and rating of the performance of licensed agencies and entities and
determine the merits of their
continued participation in the overseas employment program
taking into consideration compliance with
laws and regulations and such other criteria as it may deem
proper. (Sec. 21 Rule II, Book III, POEA
Rules and Regulations)
(d) Classification and Ranking. The Administration may
undertake the classification and ranking of
agencies and entities. (Sec. 22 Rule II, Book III, POEA Rules and
Regulations)
(e) Incentives and Recognition. The Administration may
undertake incentives and recognition to
deserving agencies and contractors for exemplary performance.
(Sec. 23 Rule II, Book III, POEA Rules
and Regulations)
SECTION 17. Requirement before recruitment. Before recruiting
any worker, the private employment
agency shall submit to the Bureau the following documents:
(a) A formal appointment or agency contract executed by a
foreign-based employer in favor of the license
holder to recruit and hire personnel for the former duly
authenticated or attested by the Philippine Labor
Attach or duly authorized Philippine foreign service official or, in
his absence by an appropriate official,
agency or organization in the country where the employer
conducts his business. In case any of the
foregoing documents is executed in the Philippines, the same may
be authenticated by the duly
authorized official of the Department of Foreign Affairs or of the
employer's consulate or Embassy or of
the Department of Labor and Employment official as may be
appropriate. Such formal appointment or
recruitment agreement shall contain the following provisions,
among others:
(1) Terms of recruitment, including the responsibility of the parties
relative to the employment of workers;
(2) Power of the agency to sue and be sued jointly and solidarily
with the principal or foreign-based
employer for any of the violations of the recruitment agreement
and the contracts of employment;
(3) Compensation or payment schedule, including payment of
documentation costs, government fees,
service from the transportation fare and the mode of payments;
(4) Period of validity, which shall be not less than one year and up
to the expiration date of the last
employment contract signed with its recruits; and
(5) Institutions of systems or procedure to be implemented for
mandatory remittance of a portion of the
worker's salary as provided under the Code and the Affidavit of
undertaking.
(b) Commercial registration and other pertinent documents
proving the legal personality of the foreign
principal, including its authority to hire and recruit foreign workers;
(c) Job order or requisition of the foreign-based employer or
principal, including the number for categories
of workers needed, salary and benefit schedule, qualification
guidelines and testing procedures and
master employment contract; and
(d) Work permits or work visas where such are required by the
country of destination.
SECTION 18. Submission of employment contracts. (a) Every
private employment agency shall submit
to the Bureau, for evaluation and approval, the master
employment contract to be used for its recruits and
the service/recruitment agreement which shall be written in
English and in the language of the country of
work whenever necessary.
(b) All applicants for passport or travel of recruited workers shall
be properly endorsed by the Bureau.
SECTION 19. Standard format of service agreement and
employment contract. The Bureau shall
adopt a standard format of service agreement and employment
contract in accordance with pertinent
labor and social legislation and prevailing international standard
and conventions. The standard format
shall set the minimum standards of the terms and conditions to
govern the employment of land-based
overseas Filipinos. All employers shall adopt the model contract in
connection with the hiring and
engagement of the services of overseas workers. (Modified by Sec.
2 Rule I, Book V, POEA Rules and
Regulations)
SECTION 20. Worker's deployment. It shall be the responsibility
of the private employment agency to
facilitate the deployment of the recruits. If the worker is unable to
depart within forty-five (45) days from
the release of passport through no fault of his and without any
valid reason on the part of the agency, he
shall be entitled to the refund of his expenses, if any, and standby
pay, if he is made to wait for his
deployment. On the other hand, if after the applicant worker has
been properly documented and
processed, he decides to withdraw without any valid reason, he
shall reimburse the agency all expenses
of processing and documentation. The Bureau shall issue as
appropriate, orders to implement this
provision.
SECTION 21. Contents of employment contracts. The
employment contracts shall in no case provide
for terms of employment below the standards established by the
Department, which shall not be below
the basic requirements of Philippine labor and social legislation or
practices, and shall include the
following: (Modified by Sec. 1 Rule I, Book V, POEA Rules and
Regulations)
(a) Guaranteed wages for regular working hours and overtime pay
for services rendered in excess of
basic working hours as established by the Ministry;
(b) Free transportation from point of hire to site of employment
and return, including expenses for travel
documentation;
(c) Adequate board and lodging facilities;
(d) Free emergency medical and dental treatment and facilities;
(e) Just causes for the termination of the contract or of the service
of the workers;
(f) Workmen's compensation benefits and war hazard protection,
including life and accident insurance
coverage during the term of employment;
(g) Immediate transportation of the worker's remains and property
in case of death to the point of hire or if
this is not possible under the circumstances, the proper disposition
thereof, upon previous arrangement
with the worker's next-of-kin and the nearest Philippine Embassy
or Consulate; and
(h) Remittance of the worker's salaries, allowances and/or
allotments to his beneficiaries through the
Philippine banking system.
SECTION 21. (a) Allowable Salaries and Wages. Workers hired
for overseas employment shall receive
salaries or wages in accordance with the standards promulgated by
the Administration. The
Administration shall undertake the periodic review of salaries and
wages prevailing at worksites. (Sec. 3
Rule I, Book V, POEA Rules and Regulations)
SECTION 22. Renewal of contracts. Every contract worker shall
advise the Department of the renewal
or extension of his employment contract in any of the following
manner:
(a) Through the labor attach, or in his absence through a duly
designated foreign service official in the
area of employment who is authorized to renew the contract; or
(b) By furnishing the Bureau directly with a copy of the renewed
contract.
SECTION 23. Allowable fees chargeable against the workers.
(a) Unless otherwise provided by the Secretary, private
employment agencies may collect a placement
fee from every worker in accordance with a schedule to be
approved by him. Such fee shall be paid only
when the employment contract of the worker has been approved
by the Bureau and he is about to
commence employment through the efforts of the agency. Every
payment shall be covered by an
appropriate receipt indicating the amount paid and the purpose of
such payment. In addition and subject
to the approval of the Secretary the applicant workers may be
required to post a bond to guarantee
compliance with the employment contract.
(b) A recruit may be required to shoulder the cost of the following
requirements provided that the same
shall be covered by an appropriate receipt and unless paid by the
employer of principal:
(1) Medical and psychological examination;
(2) Inoculation certificate;
(3) Passport.
(c) Records of payment shall be available for inspection by an
authorized representative of the Bureau
any time during regular office hours. (Amended by Sec. 2 Rule IV,
Book II, POEA Rules and Regulations)
SECTION 24. Fees chargeable against the employer. A private
employment agency shall charge a
minimum mobilization fee to cover costs of recruitment, processing
and documentation in accordance
with a schedule approved by the Secretary in addition to service
charges which may be negotiated with a
foreign employer or principal.
(a) Fees Chargeable Against Principals. Agencies shall charge from
their principals a service of manning
fee to cover services rendered in the recruitment, documentation
and placement of workers. (Sec. 1 Rule
IV, Book II, POEA Rules and Regulations)
(b) Charges deductible from Fees Paid by Withdrawing Workers. In
case of the withdrawal of the worker
within one hundred twenty (120) days from the signing of the
employment contracts the agency or entity
shall refund the amount paid by him after deducting such actual
expenses incurred in the documentation
of the worker as may be supported by receipts. (Sec. 3 Rule IV,
Book II, POEA Rules and Regulations)
(c) Prohibition on Charging of Other Fees. No other fees or charges
shall be imposed against any worker.
(Sec. 4 Rule IV, Book II, POEA Rules and Regulations)
(d) Processing Fees and Welfare Fund Contribution. Contract
processing fees and the Welfare Fund
contributions shall in no case be charged to the worker. However,
this shall not apply in the case of
Seafarers' Welfare Fund which is contributory in nature.
SECTION 25. Recruitment Advertisement.
(a) No advertisement for overseas recruitment including training or
review activities for overseas
employment shall be placed in any newspaper by a private
employment agency without prior
authorization by the Bureau. Such advertisement shall contain the
following information, among others:
(1) The number and nature of jobs available, including wage and
benefit schedule;
(2) A brief description of the skills needed;
(3) The name, nationality and address of the employer; and
(4) The name, address and license number of the agency.
(b) No press notice or announcement regarding the availability of
overseas jobs shall be released by the
agency prior to the accreditation of one principal. (As amended by
Sec. 2 Rule II Book III, POEA Rules
and Regulations)
SECTION 25. (a) Recruitment from the Administration's Manpower
Registry. Agencies or entities may
recruit workers for their accredited principals or projects from the
manpower registry of the Administration
in accordance with the guidelines set by it. (Sec. 1, Rule II Book
III, POEA Rules and Regulations)
(b) Advertisement for Manpower Pooling By Agencies or Entities.
Agencies or entities desiring to
generate qualified applicants for prospective principal or project
may advertise in accordance with the
format prescribed by the Administration. Such undertakings shall
not involve payment of any fee by
applicants. (Sec. 3, Rule II Book III, POEA Rules and Regulations)
(c) Press Releases on Recruitment. For purposes of these rules,
press releases on negotiations with
principals or contracting partners and/or involving overseas job
openings shall be considered as
advertisements. (Sec. 4, Rule II Book III, POEA Rules and
Regulations)
(d) Sanctions. False and deceptive advertisements published by
agencies or entities including those
published not in accordance with the prescribed format shall be
valid ground for suspension or
cancellation of license or authority. (Sec. 3, Rule I, Book III, POEA
Rules and Regulations)
SECTION 26. Application for license for local recruitment and
placement.
(a) Every applicant for license to operate a private employment
agency for local recruitment and
placement shall submit the following documents in support of the
application;
(1) A certified copy of the Articles of Incorporation in the case of a
corporation or the registration with the
Bureau of Domestic Trade in the case of a single proprietorship or
partnership; and
(2) Clearance from the Philippine Constabulary and the Bureau of
Internal Revenue for all the
incorporators, partners or single proprietor.
(3) List of officers/personnel and corresponding bio-data.
(b) An agency licensed to recruit and place workers overseas need
not apply for a separate license to
engage in domestic recruitment and placement.
SECTION 27. Action on application. Within thirty (30) days from
receipt of the application for license,
the Bureau Director shall either deny or approve the same. The
denial by the Bureau Director may be
appealed by the applicant to the Secretary within ten (10) days
from the receipt of the notice of denial.
SECTION 28. Notice of approval or denial. The Bureau shall
immediately transmit the notice of denial
or approval of the application to the applicant.
SECTION 29. Fees and bonds. Upon approval of the application,
the applicant shall pay to the
Department a license fee of P1,000.00 and post cash and surety
bonds of P5,000.00 and P25,000.00,
respectively.
The bonds shall guarantee compliance with the provisions of the
Code, its implementing rules and the
terms and conditions of the employment contracts.
SECTION 30. Issuance of License. Upon payment of the license
fee and the posting of the appropriate
bonds, the Bureau Director shall issue the corresponding license to
the applicant.
SECTION 31. Duration of license. The license shall be valid for
one year from the date of approval
unless sooner cancelled, revoked or suspended by the Bureau
Director for violation of any of the
conditions prescribed in the license or applicable provisions of the
Code or these Rules.
SECTION 32. Non-transferability of license. No license shall be
transferred, conveyed or assigned to
any other person or entity, or used in any place other than that
stated in the license. Any transfer of
business address, appointment, or designation of any agent or
representatives, including the
establishment of additional offices elsewhere shall be subject to
the prior approval of the Bureau.
SECTION 33. Registration of local private recruitment entities.
Educational institutions and civic
organizations setting up placement offices to service their students
or members shall register their
operations with the nearest public employment office or the
Bureau under such guidelines as may be
prescribed by the Secretary. Such entities shall coordinate their
recruitment activities with the public
employment offices in the area where they operate.
SECTION 34. Allowable fees. An employment agency which
recruits a domestic worker for an
employer may charge the latter a service fee to be determined by
the Bureau which shall cover the
maintenance of the recruit including board and lodging prior to
placement. The transportation fare of the
recruit from place of work may be charged against the latter.
Every payment shall be covered by an appropriate receipt
indicating the amount paid and purpose of
such payment.
SECTION 35. Replacement without costs. An employer shall be
entitled to a replacement without
additional charges within one (1) month from the date of
engagement of the first recruit on any of the
following grounds:
(a) The recruit is found to be suffering from an incurable or
contagious disease;
(b) The recruit is physically or mentally incapable of discharging
the minimum normal requirements of the
job;
(c) The recruit abandons the job, voluntarily resigns, commits theft
or any other act prejudicial to the
employer or to any immediate members of his family; and
(d) Other grounds analogous to the foregoing.
SECTION 36. Acknowledgment of contracts. Every recruitment
contract shall be acknowledged before
the appropriate Regional Director or his duly authorized
representative, or in his absence, before the
municipal mayor, judge, notaries public or any person authorized
by law to administer oath of the place
where the recruit resides. If the recruit is a minor, the consent of
the parent or guardian, similarly
acknowledged, shall be attached to the contract.
RULE VI
Cancellation or Suspension of License
SECTION 1. Scope of Application. These Rules shall apply to all
persons, agencies or entities duly
licensed or authorized to recruit and deploy Filipino workers for
overseas employment. (Sec. 1, Rule VI
Book I, POEA Rules and Regulations)
SECTION 2. Grounds for Suspension, Cancellation or Revocation.
A license or authority shall be
cancelled, suspended or revoked on any of the following grounds,
among others:
a. Imposing or accepting directly or indirectly any amount of
money, goods or services, or any fee or bond
in excess of what is prescribed by the Administration;
b. Engaging in act(s) of misrepresentation, such as publication or
advertisement of false or deceptive
notices or information in relation to the recruitment and placement
of workers;
c. Engaging in act(s) of misrepresentation, such as giving false
statements, false testimonies or falsified
documents;
d. Inducing or attempting to induce an already employed worker to
transfer from or leave his employment
to another unless such transfer is advantageous or beneficial to
the worker;
e. Influencing or attempting to influence any person or entity to
prevent employment of any worker;
f. Engaging in the recruitment and placement of workers in jobs
harmful to public health or morality or to
the dignity of the Republic of the Philippines;
g. Obstructing or attempting to obstruct inspection by the
Secretary, the Administrator or by their duly
authorized representatives;
h. Substituting or altering employment contracts and other
documents approved and verified by the
Administration from the time of actual signing thereof by the
parties up to and including the period of
expiration of the same without the Administration's approval;
i. Failure to file report on the remittance of foreign exchange
earnings and such matters as may be
required by the Administration;
j. Where the owner, partner or majority stockholder, licensee or
holder of authority, or principal officers
become officer or member of the Board of any corporation or
partnership engaged in travel or engaged
directly or indirectly in the management of a travel agency;
k. Withholding or denying travel and other documents from
workers for monetary considerations or
reasons other than those authorized under the Labor Code and its
implementing Rules and Regulations;
l. Engaging in recruitment activities in places other than specified
in the license or authority without
previous authorization from the Administration;
m. Appointing or designating agents or representatives without
prior approval of the Administration;
n. Falsifying or altering workers' employment contracts or travel
documents;
o. Deploying workers or seamen to vessels or principals not
accredited by the Administrator;
p. Deploying workers whose employment and travel documents
were not processed by the
Administration;
q. Publishing or causing the publication of overseas job vacancies
in violation of the prescribed rules;
r. Failure to deploy workers without valid reasons within the
prescribed period as provided under Section
5, Rule III, Book III hereof;
s. Failure to pay or replenish cash bond and renew surety bond;
t. Disregard of lawful orders, summons, etc;
u. Withholding of workers' salaries or remittances without
justifiable reasons;
v. Coercing workers overseas to accept prejudicial arrangements in
exchange of certain benefits that
rightfully belong to the worker; and
w. Violation of other pertinent provisions of the Labor Code and
other relevant laws, rules and regulations.
(Sec. 2, Rule Sec. 4, Rule II Book III, POEA Rules and
Regulations)I Book II, POEA Rules and
Regulations)
SECTION 3. Complaints against private employment agency.
Any complaint or report against private
employment agency shall be filed with the Bureau. If the
complainant or report shows any violation of the
conditions of the license or the pertinent provisions of the Code or
of these rules, the Bureau shall
immediately conduct an investigation and require the private
employment agency concerned to submit its
comments or explanation within five (5) working days upon receipt
of the copy of order/notice of the
Bureau. ( Amended by Sec. 3, Rule VI Book II, POEA Rules and
Regulations)
(a) Contents of the Complaint. The complaint shall state the name
and address of the complainant as well
as that of the respondent, the specific offense or omission, the
date when the offense was committed,
and the relief(s) sought. (Sec. 4, Rule VI Book I, POEA Rules and
Regulations)
(b) Action on the Complaint. Upon receipt of the complaint, the
Administration shall furnish the
respondent with a copy of the complaint and its supporting
documents, if any, and require him to file his
answer within ten (10) working days from receipt thereof.
The respondent's answer should be filed with the Licensing and
Regulation Office within the reglementary
period, attaching thereto proof of service of a copy thereof to the
complainant.
Within five (5) days from receipt of the last responsive pleading,
the Hearing Officer, shall schedule the
hearing of the case if he finds from the submitted pleadings that
there is a prima facie case of violation of
the rules. Should there be a finding to the contrary, a minute
resolution/summary judgment can be
rendered motu proprio. (Amended by Sec. 5, Rule VI Book II,
POEA Rules and Regulations)
(c) Failure to Answer/Appear During Hearing. Failure of the
respondent to file an answer within the period
prescribed or appear during the hearing, as the case may be, shall
render the respondent in default and
hearing or investigation may proceed ex parte. Decision/resolution
of the case shall be based on the
evidence presented by the complainant. ( Amended by Sec. 6,
Rule VI Book II, POEA Rules and
Regulations)
SECTION 4. Suspension of license pending investigation. (a)
Pending investigation of the complaint or
report, the Secretary may suspend the license of the private
employment agency concerned upon
recommendation of the Bureau on any of the following grounds:
(1) Failure on the part of the agency to submit its comments or
explanation within five (5) days;
(2) There is a strong prima facie case for violation of the Labor
Code as amended, its implementing Rules
and Regulations and the Bureau's policies, memoranda and
circulars; or
(3) There exists reasonable ground showing that the continued
operations of the agency will lead to
further violation of the conditions of the license or the exploitation
of the workers being recruited, or
imperil friendly relations with any country or otherwise prejudice
national interest or security.
(b) Similar action may be taken by the Bureau Director in the case
of private agencies licensed for
domestic recruitment and placement.
SECTION 5. Conduct of investigation. The Bureau shall summon
the owner or official of the private
employment agency and other parties concerned if any, receive
such evidence as may be relevant and
necessary, and otherwise take such other actions as may be
warranted to inform itself of true facts and
circumstances of the case. The investigation shall be terminated
not later than thirty (30) working days
from the first hearing. The Bureau shall submit its findings and
recommendations to the Department of
Labor and Employment within fifteen (15) days from the
termination of the investigation. (Amended by
Sec. 7, Rule VI Book II, POEA Rules and Regulations)
SECTION 6. Duration of Suspension. The order of suspension
may carry with it the period of effectivity
which shall be in accordance with the scale of penalties which the
Administration may promulgate. (Sec.
11, Rule VI Book II, POEA Rules and Regulations)
SECTION 7. Effects of Settlement. A mutually agreed settlement
of the case or the desistance of the
complainant shall not bar the Administration from proceeding with
the investigation. The Secretary or the
Administrator shall act on the case as may be merited by the
results of the investigation and impose such
penalties on the erring agency or entity as may be deemed
appropriate. Such settlement when reached to
the full satisfaction of the complainant may, however, mitigate the
liability of the respondent. (Sec. 12,
Rule VI Book II, POEA Rules and Regulations)
SECTION 8. Imposition of Fines. In addition to or in lieu of the
penalties of suspension or cancellation
the Secretary or the Administrator may impose fines. (Sec. 13,
Rule VI Book II, POEA Rules and
Regulations)
SECTION 9. Suspension of Documentary Processing. The
Administration may order the suspension of
the processing of documents pertaining to a respondent agency or
entity on any of the grounds under
Section 2 of this Rule or for violation of any provision of these
Rules. (Sec. 14, Rule VI Book II, POEA
Rules and Regulations)
SECTION 10. Who May Issue Orders. Orders of cancellation shall
be issued by the Secretary. Orders
for suspension of license or authority or the lifting thereof shall be
issued by the Administrator, or in his
absence by the Acting Administrator, in behalf of the Secretary. All
other orders or resolutions which do
not involve the suspension, cancellation or revocation of license or
authority may be issued by the
Director, LRO. (Sec. 14, Rule VI Book II, POEA Rules and
Regulations)
SECTION 11. Effect of Order of Suspension of License. An order
suspending a license or authority
shall be immediately executory and shall have the effect of
suspending all activities of the agency or
entity which fall under the definitions of recruitment and
placement. The Administration may seek the
assistance of other government institutions, agencies, or offices to
ensure that suspension or revocation
orders are carried out. (Sec. 16, Rule VI Book II, POEA Rules and
Regulations)
SECTION 12. Authority to Administer Oath, Issue Subpoena, Etc.
The Administrator, the Director, LRO
and the Hearing Officers shall have the authority to administer
oath and/or affirmations, issue subpoena,
take evidence, compel the attendance of the parties and/or
witnesses and require the production of any
book, paper, correspondence, memoranda and other records
relevant or material to the case or inquiry.
(Sec. 17, Rule VI Book II, POEA Rules and Regulations)
SECTION 13. Motion for Reconsideration or Appeal. A motion for
the reconsideration of an order of
suspension or an appeal to the Secretary from an order cancelling
a license or authority may be
entertained only when filed with the LRO within ten (10) working
days from service of the order or
decision.
The filing of a motion for reconsideration or appeal shall not
automatically stay the execution of the order.
The Secretary or the Administrator may order the stay of
execution and require the posting of
supersedeas bond. (Sec. 18, Rule VI Book II, POEA Rules and
Regulations)
SECTION 14. Action by the Secretary or Bureau Director. (a)
Where the case arises from overseas
recruitment and placement activities, the Bureau shall submit its
findings and recommendations to the
Secretary within fifteen (15) days from the termination of the
investigation, on the basis of which the
Secretary may lift the suspension of the license or maintain the
same until the violation are corrected, or
cancel the license. (Repealed by POEA Rules and Regulations)
(b) Where the case involves domestic recruitment and placement
activities, the Bureau Director may take
similar action as provided for in paragraph (a) hereof. His decision
may be appealed to the Secretary by
an aggrieved party within ten (10) days from receipt of decision.
(c) The decision of the Secretary in both cases shall be final and
unappealable.
(d) Where the decision of the Secretary is to suspend the
license/authority, the duration of said
suspension shall not be less than sixty (60) days, unless sooner
lifted by him.
SECTION 15. Inspection and enforcement. (a) The Bureau shall
establish an inspectorate system to
ensure effective supervision of the activities of all license and
authority holders as well as of aliens
employed in the Philippines and the implementation of the
understudy training program of the employers
of such aliens.
(b) The Bureau Director or his duly authorized representative may,
during regular office hours, inspect the
premises, books and records of license and authority holders and
of establishments employing aliens to
determine compliance with the Code and of these Rules. (Amended
by Sec. 3, Rule III Book II, POEA
Rules and Regulations)
SECTION 16. Inspection Before Licensing. Before issuance or
renewal of license or authority the
Administration shall conduct an inspection of the premises and
pertinent documents of the applicant.
(Sec. 1, Rule III, Book II, POEA Rules and Regulations)
SECTION 17. Inspection of Agencies and Entities. All Agencies
and entities shall be subject to periodic
inspection by the Administration to determine compliance with
existing rules and regulations. Inspection
shall likewise be conducted by the Administration in case of
transfer of office or establishment of a branch
office or upon complaint or report of violations of existing rules and
regulations. (Sec. 2, Rule III, Book II,
POEA Rules and Regulations)
SECTION 18. Subject of Inspection. Depending on the purpose
of inspection, the authorized
representative(s) of the Administration shall require the
presentation of and examine the necessary
documents, records and premises of an agency or entity. (Sec. 4,
Rule III, Book II, POEA Rules and
Regulations)
SECTION 19. Inspection Procedures.
a) Inspection shall be conducted by a team of at least two duly
authorized persons during office hours,
unless otherwise authorized in accordance with Section 3 of this
Rules;
b) Inspection shall be conducted in the presence of the Manager of
the office or any office personnel;
c) Inspection reports shall be submitted to the Administrator or the
Director, LRO, within 24 hours after the
inspection. (Sec. 5, Rule III, Book II, POEA Rules and Regulations)
SECTION 20. Violations Found in the Course of Inspection.
Violations found in the course of
inspection such as non-compliance with the Administration's rules,
issuances, directives, etc. may be
grounds for the imposition of appropriate sanctions or for the
denial of application for renewal of license.
(Sec. 6, Rule III, Book II, POEA Rules and Regulations)
SECTION 21. Issuance of Policy Guidelines on Inspection. The
Director, LRO, shall issue appropriate
guidelines which shall ensure an effective and comprehensive
system of inspection. (Sec. 7, Rule III,
Book II, POEA Rules and Regulations)
SECTION 22. Guidelines on functions and responsibilities.
Consistent with these rules and regulations
and appropriate instructions of the Secretary, the Bureau shall
issue guidelines governing its functions
and responsibilities.
RULE VII
The Overseas Construction Industry and the Corporate Export
Program
SECTION 1. Registration of Filipino Construction Contractors.
Subject to guidelines issued jointly by
the Secretary and the Construction Industry Authority of the
Philippines, construction contractors shall be
issued authority to operate as private recruitment entities.
SECTION 2. Corporate Export Program. The Bureau, in
coordination with other relevant agencies and
entities shall develop programs for the hiring of workers in
organized or corporate groups.
RULE VIII
Private Recruitment Entities
SECTION 1. Qualifications of applicants. All applicants for
authority to operate private recruitment
entities for overseas work other than construction contractors shall
possess the following qualifications:
(a) Citizenship requirement as provided for in Rule IV of these
Rules;
(b) Appropriate capitalization as follows:
1. A minimum networth of P300,000 in the case of single
proprietorship; and a paid-up capital or networth
of P300,000 in the case of a corporation or partnership, as the
case may be.
SECTION 2. Application for authority for overseas private
recruitment. Every applicant for authority to
operate a private recruitment entity shall submit the following
documents in support of the application:
(a) A certified copy of the Articles of Incorporation in the case of a
corporation, or the registration with the
Bureau of Domestic Trade in the case of a single proprietorship or
partnership;
(b) If the applicant is a corporation, proof of financial capacity of
the major stockholders such as sworn
statements of assets and liabilities and verified income tax returns
for the last two years;
(c) If the applicant is a single proprietorship or a partnership, proof
of financial capacity of proprietor or
partners such as sworn statements of assets and liabilities and
verified income tax returns for the last two
years;
(d) Clearance from the Philippine Constabulary and the Bureau of
Internal Revenue for all the
incorporators, partners or single proprietor;
(e) A verified statement that the applicant has in its employ
persons with adequate competence to
evaluate and test recruits and to consider them for employment
strictly on the basis of merit and fitness,
without any undue discrimination and in accordance with the
qualifications prescribed by the employers;
(f) A verified undertaking to assume all responsibilities for the
proper use of its authority and the
implementation of the contract of employment with the workers;
and
(g) Such other requirements that the Secretary may require upon
recommendation of the Director.
SECTION 3. Action on application. Within thirty (30) days from
the receipt of the application for
authority, the Bureau shall recommend its denial or approval to
the Secretary. Upon considering the
findings and recommendations of the Bureau, the Secretary may
either deny or approve the application.
SECTION 4. Fees and bonds. Upon approval of the application,
the applicant shall pay to the
Department a registration fee of P2,000.00, and post a
performance bond of P200,000.00 from an
accredited bonding company to answer for valid and legal claims
arising from violations of the conditions
of the authority of the contracts of employment and guarantee
compliance with the provisions of the
Code, its implementing rules and appropriate issuances of the
Department.
SECTION 5. Action on application. Within thirty (30) days from
the receipt of the application for
authority, the Bureau shall recommend its denial or approval to
the Secretary. Upon considering the
findings and recommendations of the Bureau, the Secretary may
either deny or approve the application.
SECTION 6. Issuance of authority. Upon payment of the
registration fee and the posting of the
appropriate bonds the Secretary shall issue the corresponding
authority to the applicant.
SECTION 7. Duration/renewal and non-transferability of Authority.
(a) Every authority shall be valid for
one year from the date of approval, unless sooner cancelled,
revoked or suspended by the Secretary for
violations of any of the conditions of the authority or any
applicable provisions of the Code or these Rules.
(b) No authority shall be transferred, conveyed or assigned to any
other person or entity or used in any
place other than that stated in the authority. Any transfer of
business address, appointment or designation
of any agency or representative, including the establishment of
additional offices elsewhere, shall be
subject to the prior approval of the Bureau.
(c) The Secretary shall issue appropriate guidelines on the renewal
of authority in accordance with the
applicable provisions of these Rules and which may be similar to
those provided for licensed holders.
SECTION 8. Recruitment, hiring and employment of workers.
Every private recruitment entity shall
recruit, hire and employ workers for overseas job in accordance
with the applicable provisions of these
Rules. All applications for passport or travel of recruited and hired
workers shall be properly endorsed by
the Bureau.
SECTION 9. Allowable fees and charges. (a) A private
recruitment entity shall charge a minimum
mobilization fee to cover costs of recruitment, processing and
documentation in accordance with a
schedule approved by the Secretary in addition to service charges
it may negotiate with its principal.
(b) Subject to approval by the Secretary the recruited workers
may be required to post a bond to
guarantee compliance with the employment contract.
MIGRANT WORKERS AND OVERSEAS FILIPINOS ACT OF
1995 (R.A. 8042); AS AMENDED BY R.A. 9422 (2007) AND
R.A. 10022 (2010)
REPUBLIC ACT No. 10022
AN ACT AMENDING REPUBLIC ACT NO. 8042, OTHERWISE KNOWN
AS THE MIGRANT WORKERS AND OVERSEAS FILIPINOS ACT OF
1995, AS AMENDED, FURTHER IMPROVING THE STANDARD OF
PROTECTION AND PROMOTION OF THE WELFARE OF MIGRANT
WORKERS, THEIR FAMILIES AND OVERSEAS FILIPINOS IN
DISTRESS, AND FOR OTHER PURPOSES
Be it enacted by the Senate and House of Representatives of the
Philippines in Congress assembled:
Section 1. Paragraphs (a), (e), (g) and (h) of Section 2 of Republic
Act. No. 8042, as amended, otherwise known as the Migrant
Workers and Overseas Filipinos Act of 1995, is hereby amended
to read as follows:
(a) In the pursuit of an independent foreign policy and while
considering national sovereignty, territorial integrity, national
interest and the right to self-determination paramount in its
relations with other states, the State shall, at all times, uphold the
dignity of its citizens whether in country or overseas, in general,
and Filipino migrant workers, in particular, continuously monitor
international conventions, adopt/be signatory to and ratify those
that guarantee protection to our migrant workers, and endeavor to
enter into bilateral agreements with countries hosting overseas
Filipino workers.
(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 interest of
distressed overseas Filipinos, in general, and Filipino migrant
workers, in particular, whether regular/documented or
irregular/undocumented, are adequately protected and
safeguarded.
(g) The State recognizes that the most effective tool for
empowerment is the possession of skills by migrant workers. The
government shall provide them free and accessible skills
development and enhancement programs. Pursuant to this and as
soon as practicable, the government shall deploy and/or allow the
deployment only of skilled Filipino workers.
(h) The State recognizes non-governmental organizations, trade
unions, workers associations, stakeholders and their similar
entities duly recognized as legitimate, are partners of the State in
the protection of Filipino migrant workers and in the promotion of
their welfare. The State shall cooperate with them in a spirit of
trust and mutual respect. The significant contribution of
recruitment and manning agencies shall from part this
partnership.
Section 2. Section 3, paragraph (a) of Republic Act No. 8042, as
amended, is hereby amended to read as follows:
(a) Overseas Filipino worker refers to a person who is to be
engaged, is engaged or has been engaged in a remunerated
activity in a state of which he or she is not a citizen or on board a
vessel navigating the foreign seas other than a government ship
used for miliatry or non-commercial purposes or on an installation
located offshore or on the high seas; to be used interchangeably
with migrant worker.
Section 3. Section 4 of Republic Act No. 8042, as amended, is
hereby amended to rerad as follows:
SEC. 4. Deployment of Migrant Workers. The State shall allow
the deployment of overseas Filipino workers only in countries
where the rights of Filipino migrant workers are protected. The
government recognizes any of the following as a guarantee on the
part of the receiving country for the protection of the rights of
overseas Filipino workers:
(a) It has existing labor and social laws protecting the rights of
workers, including migrant workers;
(b) It is a signatory to and/or a ratifier of multilateral
conventions, declarations or resolutions relating to the protection
of workers, including migrant workers; and
(c) It has concluded a bilateral agreement or arrangement with
the government on the protection of the rights of overseas Filipino
Workers:
Provided, That the receiving country is taking positive, concrete
measures to protect the rights of migrant workers in furtherance of
any of the guarantees under subparagraphs (a), (b) and (c)
hereof.
In the absence of a clear showing that any of the aforementioned
guarantees exists in the country of destination of the migrant
workers, no permit for deployment shall be issued by the Philippine
Overseas Employment Administration (POEA).
The members of the POEA Governing Board who actually voted in
favor of an order allowing the deployment of migrant workers
without any of the aforementioned guarantees shall suffer the
penalties of removal or dismissal from service with disqualification
to hold any appointive public office for five (5) years, Further, the
government official or employee responsible for the issuance of the
permit or for allowing the deployment of migrant workers in
violation of this section and in direct contravention of an order by
the POEA Governing Board prohibiting deployment shall be meted
the same penalties in this section.
For this purpose, the Department of Foreign Affairs, through its
foreign posts, shall issue a certification to the POEA, specifying
therein the pertinent provisions of the receiving countrys
labor/social law, or the convention/declaration/resolution, or the
bilateral agreement/arrangement which protect the rights of
migrant workers.
The State shall also allow the deployment of overseas Filipino
workers to vessels navigating the foreign seas or to installations
located offshore or on high seas whose owners/employers are
compliant with international laws and standards that protect the
rights of migrant workers.
The State shall likewise allow the deployment of overseas Filipino
workers to companies and contractors with international
operations: Provided, That they are compliant with standards,
conditions and requirements, as embodied in the employment
contracts prescribed by the POEA and in accordance with
internationally-accepted standards.
Section 4. Section 5 of Republic Act No. 8042, as amended, is
hereby amended to read as follows:
SEC. 5. Termination or Ban on Deployment. Notwithstanding
the provisions of Section 4 hereof, in pursuit of the national
interest or when public welfare so requires, the POEA Governing
Board, after consultation with the Department of Foreign Affairs,
may, at any time, terminate or impose a ban on the deployment of
migrant workers.
Section 5. Section 6 of Republic Act No. 8042, as amended, is
hereby amended to read as follows:
SEC. 6. Definition. For purposes of this Act, illegal recruitment
shall mean any act of canvassing, enlisting, contracting,
transporting, utilizing, hiring, or procuring workers and includes
referring, contract services, promising or advertising for
employment abroad, whether for profit or not, when undertaken
by non-licensee or non-holder of authority contemplated under
Article 13(f) of Presidential Decree No. 442, as amended,
otherwise known as the Labor Code of the Philippines: Provided,
That any such non-licensee or non-holder who, in any manner,
offers or promises for a fee employment abroad to two or more
persons shall be deemed so engaged. It shall likewise include the
following acts, whether committed by any person, whether a non-
licensee, non-holder, licensee or holder of authority:
(a) To charge or accept directly or indirectly any amount greater
than that specified in the schedule of allowable fees prescribed by
the Secretary of Labor and Employment, or to make a worker pay
or acknowledge any amount greater than that actually received by
him as a loan or advance;
(b) To furnish or publish any false notice or information or
document in relation to recruitment or employment;
(c) To give any false notice, testimony, information or document
or commit any act of misrepresentation for the purpose of securing
a license or authority under the Labor Code, or for the purpose of
documenting hired workers with the POEA, which include the act of
reprocessing workers through a job order that pertains to
nonexistent work, work different from the actual overseas work, or
work with a different employer whether registered or not with the
POEA;
(d) To include or attempt to induce a worker already employed to
quit his employment in order to offer him another unless the
transfer is designed to liberate a worker from oppressive terms
and conditions of employment;
(e) To influence or attempt to influence any person or entity not
to employ any worker who has not applied for employment
through his agency or who has formed, joined or supported, or has
contacted or is supported by any union or workers organization;
(f) To engage in the recruitment or placement of workers in jobs
harmful to public health or morality or to the dignity of the
Republic of the Philippines;
(h) To fail to submit reports on the status of employment,
placement vacancies, remittance of foreign exchange earnings,
separation from jobs, departures and such other matters or
information as may be required by the Secretary of Labor and
Employment;
(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;
(j) For an officer or agent of a recruitment or placement agency to
become an officer or member of the Board of any corporation
engaged in travel agency or to be engaged directly or indirectly in
the management of travel agency;
(k) To withhold or deny travel documents from applicant workers
before departure for monetary or financial considerations, or for
any other reasons, other than those authorized under the Labor
Code and its implementing rules and regulations;
(l) Failure to actually deploy a contracted worker without valid
reason as determined by the Department of Labor and
Employment;
(m) Failure to reimburse expenses incurred by the worker in
connection with his documentation and processing for purposes of
deployment, in cases where the deployment does not actually take
place without the workers fault. Illegal recruitment when
committed by a syndicate or in large scale shall be considered an
offense involving economic sabotage; and
(n) To allow a non-Filipino citizen to head or manage a licensed
recruitment/manning agency.
Illegal recruitment is deemed committed by a syndicate if carried
out by a group of three (3) or more persons conspiring or
confederating with one another. It is deemed committed in large
scale if committed against three (3) or more persons individually
or as a group.
In addition to the acts enumerated above, it shall also be unlawful
for any person or entity to commit the following prohibited acts:
(1) Grant a loan to an overseas Filipino worker with interest
exceeding eight percent (8%) per annum, which will be used for
payment of legal and allowable placement fees and make the
migrant worker issue, either personally or through a guarantor or
accommodation party, postdated checks in relation to the said
loan;
(2) Impose a compulsory and exclusive arrangement whereby an
overseas Filipino worker is required to avail of a loan only from
specifically designated institutions, entities or persons;
(3) Refuse to condone or renegotiate a loan incurred by an
overseas Filipino worker after the latters employment contract has
been prematurely terminated through no fault of his or her own;
(4) Impose a compulsory and exclusive arrangement whereby an
overseas Filipino worker is required to undergo health
examinations only from specifically designated medical clinics,
institutions, entities or persons, except in the case of a seafarer
whose medical examination cost is shouldered by the
principal/shipowner;
(5) Impose a compulsory and exclusive arrangement whereby an
overseas Filipino worker is required to undergo training, seminar,
instruction or schooling of any kind only from specifically
designated institutions, entities or persons, except fpr
recommendatory trainings mandated by principals/shipowners
where the latter shoulder the cost of such trainings;
(6) For a suspended recruitment/manning agency to engage in
any kind of recruitment activity including the processing of pending
workers applications; and
(7) For a recruitment/manning agency or a foreign
principal/employer to pass on the overseas Filipino worker or
deduct from his or her salary the payment of the cost of insurance
fees, premium or other insurance related charges, as provided
under the compulsory workers insurance coverage.
The persons criminally liable for the above offenses are the
principals, accomplices and accessories. In case of juridical
persons, the officers having ownership, control, management or
direction of their business who are responsible for the commission
of the offense and the responsible employees/agents thereof shall
be liable.
In the filing of cases for illegal recruitment or any of the
prohibited acts under this section, the Secretary of Labor and
Employment, the POEA Administrator or their duly authorized
representatives, or any aggrieved person may initiate the
corresponding criminal action with the appropriate office. For this
purpose, the affidavits and testimonies of operatives or personnel
from the Department of Labor and Employment, POEA and other
law enforcement agencies who witnessed the acts constituting the
offense shall be sufficient to prosecute the accused.
In the prosecution of offenses punishable under this section, the
public prosecutors of the Department of Justice shall collaborate
with the anti-illegal recruitment branch of the POEA and, in certain
cases, allow the POEA lawyers to take the lead in the prosecution.
The POEA lawyers who act as prosecutors in such cases shall be
entitled to receive additional allowances as may be determined by
the POEA Administrator.
The filing of an offense punishable under this Act shall be without
prejudice to the filing of cases punishable under other existing
laws, rules or regulations.
Section 6. Section 7 of Republic Act No. 8042, as amended, is
hereby amended to read as follows:
SEC. 7. Penalties.
(a) Any person found guilty of illegal recruitment shall suffer the
penalty of imprisonment of not less than twelve (12) years and
one (1) day but not more than twenty (20) years and a fine of not
less than One million pesos (P1,000,000.00) nor more than Two
million pesos (P2,000,000.00).
(b) The penalty of life imprisonment and a fine of not less than
Two million pesos (P2,000,000.00) nor more than Five million
pesos (P5,000,000.00) shall be imposed if illegal recruitment
constitutes economic sabotage as defined therein.
Provided, however, That the maximum penalty shall be imposed if
the person illegally recruited is less than eighteen (18) years of
age or committed by a non-licensee or non-holder of authority.
(c) Any person found guilty of any of the prohibited acts shall
suffer the penalty of imprisonment of not less than six (6) years
and one (1) day but not more than twelve (12) years and a fine of
not less than Five hundred thousand pesos (P500,000.00) nor
more than One million pesos (P1,000,000.00).
If the offender is an alien, he or she shall, in addition to the
penalties herein prescribed, be deported without further
proceedings.
In every case, conviction shall cause and carry the automatic
revocation of the license or registration of the
recruitment/manning agency, lending institutions, training school
or medical clinic.
Section 7. Section 10 of Republic Act No. 8042, as amended, is
hereby amended to read as follows:
SEC. 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 damage.
Consistent with this mandate, the NLRC shall endeavor to update
and keep abreast with the developments in the global services
industry.
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 de
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.
Such liabilities shall continue during the entire period or duration
of the employment contract and shall not be affected by any
substitution, amendment or modification made locally or in a
foreign country of the said contract.
Any compromise/amicable settlement or voluntary agreement on
money claims inclusive of damages under this section shall be paid
within thirty (30) days from approval of the settlement by the
appropriate authority.
In case of termination of overseas employment without just, valid
or authorized cause as defined by law or contract, or any
unauthorized deductions from the migrant workers salary, the
worker shall be entitled to the full reimbursement if his placement
fee and the deductions made 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.
In case of a final and executory judgement against a foreign
employer/principal, it shall be automatically disqualified, without
further proceedings, from participating in the Philippine Overseas
Employment Program and from recruiting and hiring Filipino
workers until and unless it fully satisfies the judgement award.
Noncompliance with the mandatory periods for resolutions of case
provided under this section shall subject the responsible officials to
any or all of the following penalties:
(a) 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;
(b) Suspension for not more than ninety (90) days; or
(c) 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
incured under other existing laws or rules and regulations as a
consequence of violating the provisions of this paragraph.
Section 8. The first paragraph of Section 13 of Republic Act No.
8042, as amended is hereby amended to read as follows:
SEC. 13. Free Legal Assistance; Preferential Entitlement Under
the Witness Protection Program. A mechanism for free legal
assistance for victims of illegal recruitment shall be established in
the anti-illegal recruitment branch of the POEA including its
regional offices. Such mechanism shall include coordination and
cooperation with the Department of Justice, the Integrated Bar of
the Philippines, and other non-governmental organizations and
volunteer groups.
Section 9. Section 16 of Republic Act No. 8042, as amended, is
hereby amended to read as follows:
SEC. 16. Mandatory Repatriation of Underage Migrant Workers.
Upon discovery or being informed of the presence of migrant
workers whose ages fall below the minimum age requirement for
overseas deployment, the responsible officers in the foreign
service shall without delay repatriate said workers and advise the
Department of Foreign Affairs through the fastest means of
communication available of such discovery and other relevant
information. The license of a recruitment/manning agency which
recruited or deployed an underage migrant worker shall be
automatically revoked and shall be imposed a fine of not less than
Five hundred thousand pesos (Php 500,000.00) but not more than
One million pesos (Php 1,000,000.00). All fees pertinent to the
processing of papers or documents in the recruitment or
deployment shall be refunded in full by the responsible
recruitment/manning agency, without need of notice, to the
underage migrant worker or to his parents or guardian. The refund
shall be independent of and in addition to the indemnification for
the damages sustained by the underage migrant worker. The
refund shall be paid within thirty (30) days from the date of the
mandatory repatriation as provided for in this Act.
Section 10. Section 17 of Republic Act No. 8042, as amended, is
hereby amended to read as follows:
SEC. 17. Establishment of National Reintegration Center for
Overseas Filipino Workers. -A national reintegration center for
overseas Filipino workers (NRCO) is hereby created in the
Department of Labor and Employment for returning Filipino
migrant workers which shall provide a mechanism for their
reintegration into the Philippine society, serve as a promotion
house for their local employment, and tap their skills and
potentials for national development.
The Department of Labor and Employment, the Overseas Workers
Welfare Administration (OWWA), and the Philippine Overseas
Employment Administration (POEA) shall, within ninety (90) days
from the effectivity of this Act, formulate a program that would
motivate migrant workers to plan for productive options such as
entry into highly technical jobs or undertakings, livelihood and
entrepreneurial development, better wage employment, and
investment of savings.
For this purpose, the Technical Education and Skills Development
Authority (TESDA), the Technology Livelihood Resource Center
(TLRC), and other government agencies involved in training and
livelihood development shall give priority to returnees who had
been employed as domestic helpers and entertainers.
Section 11. Section 18 of Republic Act No. 8042, as amended is
hereby amended to read as follows:
SEC. 18. Functions of the National Reintegration Center for
Overseas Filipino Workers. -The Center shall provide the following
services:
(a) Develop and support programs and projects for livelihood,
entrepreneurship, savings, investments and financial literacy for
returning Filipino migrant workers and their families in
coordination with relevant stakeholders, service providers and
international organizations;
(b) Coordinate with appropriate stakeholders, service providers
and relevant international organizations for the promotion,
development and the full utilization of overseas Filipino worker
returnees and their potentials;
(c) Institute, in cooperation with other government agencies
concerned, a computer-based information system on returning
Filipino migrant workers shall be accessible to all local recruitment
agencies and employers, both public and private;
(d) Proved a periodic study and assessment of job opportunities
for returning Filipino migrant workers;
(e) Develop and implement other appropriate programs to
promote the welfare of returning Filipino migrant workers;
(f) Maintain an internet-based communication system for on-line
registration and interaction with clients, and maintain and upgrade
computer-based service capabilities of the NRCO;
(g) Develop capacity-building programs for returning overseas
Filipino workers and their families, implementers, service
providers, and stakeholders; and
(h) Conduct research for policy recommendations and program
development.
Section 12. The second paragraph of Section 19 of Republic Act
No. 8042, as amended, is hereby amended to read as follows:
The establishment and operations of the Center shall be a joint
undertaking of the various government agencies. The Center shall
be open for twenty-four (24) hours daily including Saturdays,
Sundays and holidays, and shall be staffed by Foreign Service
personnel, service attaches or officers who represent other
Philippine government agencies abroad and, if available, individual
volunteers and bona fide non-government organizations from the
host countries. In countries categorized as highly problematic by
the Department of Foreign Affairs and the Department of Labor
and Employment and where there is a concentration of Filipino
migrant workers, the government must provide a Sharia or human
rights lawyer, a psychologist and a social worker for the Center. In
addition to these personnel, the government must also hire within
the receiving country, in such number as may be needed by the
post, public relation officers or case officers who are conversant,
orally and in writing, with the local language, laws, customs and
practices. The Labor Attache shall coordinate the operation of the
Center and shall keep the Chief of Mission informed and updated
on all matters affecting it.
Section 13. Section 20 of Republic Act No. 8042, as amended, is
hereby amended to read as follows:
SEC. 20. Establishment of a Shared Government Information
System for Migration. An interagency committee composed of
the Department of Foreign Affairs and its attached agency, the
Commission on Filipinos Overseas, the Department of Labor and
Employment and its attached concerned agencies, the Department
of Tourism, the Department of Justice the Bureau of Immigration,
the National Bureau of Investigation, the Department of the
Interior and Local Government, the National Telecommunications
Commission, the Commission on Information and Communications
Technology, the National Computer Center, the National Statistical
and Coordination Board, the National Statistics Office and other
government agencies concerned with overseas employment shall
be established to implement a shared government information
system for migration. The interagency committee shall initially
make available to itself the information contained in existing data
bases/files. The second phase shall involve linkaging of computer
facilities on order to allow free-flow data exchanges and sharing
among concerned agencies.
The inter-agency committee shall be co-chaired by the
Department of Foreign Affairs and the Department of Labor and
Employment. TheNationalComputerCentershall provide the
necessary technical assistance and shall set the appropriate
information and communications technology standards to facilitate
the sharing of information among the member agencies.
The inter-agency committee shall meet regularly to ensure the
immediate and full implementation of this section and shall explore
the possibility setting up a central storage facility for the data on
migration. The progress of the implementation of this section shall
be include in the report to Congress of the Department of Foreign
Affairs and the Department of Labor and Employment under
Section 33.
The inter-agency committee shall convene to identify existing
data bases which shall be declassified and shared among member
agencies. These shared data bases shall initially include, but not be
limited to, the following information:
(a) Masterlists of Filipino migrant workers/overseas Filipino
classified according to occupation/job category, civil status, by
country/state of destination including visa classification;
(b) Inventory of pending legal cases involving Filipino migrant
workers and other Filipino nationals, including those serving prison
terms;
(c) Masterlists of departing/arriving Filipinos;
(d) Statistical profile on Filipino migrant workers/overseas
Filipinos/tourists;
(e) Blacklisted foreigners/undesirable aliens;
(f) Basic data on legal systems, immigration policies, marriage
laws and civil and criminal codes in receiving countries particularly
those with large numbers of Filipinos;
(g) List of Labor and other human rights instruments where
receiving countries are signatories;
(h) A tracking system of past and present gender disaggregated
cases involving male and female migrant workers, including
minors; and
(i) Listing of overseas posts which may render assistance to
overseas Filipinos, in general, and migrant workers, in particular.
Section 14. Subparagraph (b.1) of paragraph (b) of Section 23 of
Republic Act No. 8042, as amended, 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. It shall be
responsible for the regulation and management of overseas
employment from the pre-employment stage, securing the best
possible employment terms and conditions for overseas Filipino
workers, and taking into consideration the needs of vulnerable
sectors and the peculiarities of sea-based and land-based workers.
In appropriate cases, the Administration shall allow the lifting of
suspension of erring recruitment/manning agencies upon the
payment of fine of Fifty thousand pesos (P50,000.00) for every
month of suspension.
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. It shall also be responsible for the
implementation, in partnership with other law-enforcement
agencies, of an intensified program against illegal recruitment
activities. For this purpose, the POEA shall provide comprehensive
Pre-Employment Orientation Seminars (PEOS) that will discuss
topics such as prevention of illegal recruitment and gender-
sensitivity.
The Administration shall not engage in the recruitment and
placement of overseas workers except on a government-to-
government arrangement only.
In the recruitment and placement of workers to service the
requirements for trained and competent Filipino workers of foreign
governments and their instrumentalitys, and such other employers
as public interests may require, the Administration shall deploy
only to countries where the Philippine has conclude bilateral labor
agreements or arrangements: Provided, That such countries shall
guarantee to protect the rights of Filipino migrant workers; and
Provided, further, That such countries shall observe and/or comply
with the international laws and standards for migrant workers.
Section 15. Sub-paragraph (b.2) of Paragraph (b) of Section 23 of
Republic Act No. 8042, as amended, is hereby amended to read as
follows:
(b.2) Overseas Workers Welfare Administration. The Welfare
officer of in his absence, the coordinating officer shall provide the
Filipino migrant worker and his family all the assistance they may
need in the enforcement of contractual obligations by agencies or
entities and/or by their principals. In the performance of this
function, he shall make representation and may call on the
agencies or entities concerned to conferences or conciliation
meetings for the purpose of settling the compliance or problems
brought to his attention. The OWWA shall likewise formulate and
implement welfare programs for overseas Filipino workers and
their families while they are abroad and upon their return. It shall
ensure the awareness by the overseas Filipino workers and their
families of these programs and other related governmental
programs.
In the repatriation of workers to be undertaken by OWWA, the
latter shall be authorized to pay repatriation-related expenses,
such as fines or penalties, subject to such guidelines as the OWWA
Board of Trustees may prescribe.
Section 16. Under Section 23 of Republic Act No. 8042, as
amended, add new paragraphs (c) and (d) with their
corresponding subparagraphs to read as follows:
(c) Department of Health. The Department of Health (DOH)
shall regulate the activities and operations of all clinics which
conduct medical, physical, optical, dental, psychological and other
similar examinations, hereinafter referred to as health
examinations, on Filipino migrant workers as requirement for their
overseas employment. Pursuant to this, the DOH shall ensure that:
(c.1) The fees for the health examinations are regulated,
regularly monitored and duly published to ensure that the said fees
are reasonable and not exorbitant;
(c.2) The Filipino migrant worker shall only be required to
undergo health examinations when there is reasonable certainty
that he or she will be hired and deployed to the jobsite and only
those health examinations which are absolutely necessary for the
type of job applied for or those specifically required by the foreign
employer shall be conducted;
(c.3) No group or groups of medical clinics shall have a monopoly
of exclusively conducting health examinations on migrant workers
for certain receiving countries;
(c.4) Every Filipino migrant worker shall have the freedom to
choose any of the DOH-accredited or DOH-operated clinics that will
conduct his/her health examinations and that his or her rights as a
patient are respected. The decking practice, which requires an
overseas Filipino worker to go first to an office for registration and
then farmed out to a medical clinic located elsewhere, shall not be
allowed;
(c.5) Within a period of three (3) years from the effectivity of this
Act, all DOH regional and/or provincial hospitals shall establish and
operate clinics that can be serve the health examination
requirements of Filipino migrant workers to provide them easy
access to such clinics all over the country and lessen their
transportation and lodging expenses and
(c.6) All DOH-accredited medical clinics, including the DOH-
operated clinics, conducting health examinations for Filipino
migrant workers shall observe the same standard operating
procedures and shall comply with internationally-accepted
standards in their operations to conform with the requirements of
receiving countries or of foreign employers/principals.
Any Foreign employer who does not honor the results of valid
health examinations conducted by a DOH-accredited or DOH-
operated clinic shall be temporarily disqualified from the
participating in the overseas employment program, pursuant to
POEA rules and regulations.
In case an overseas Filipino worker is found to be not medically fit
upon his/her immediate arrival in the country of destination, the
medical clinic that conducted the health examination/s of such
overseas Filipino worker shall pay for his or her repatriation back
to the Philippines and the cost of deployment of such worker.
Any government official or employee who violates any provision of
this subsection shall be removed or dismissed from service with
disqualification to hold any appointive public office for five(5)
years. Such penalty is without prejudice to any other liability which
he or she may have incurred under existing laws, rules or
regulations.
(d) Local Government Units. In the fight against illegal
recruitment, the local government units (LGUs), in partnership
with the POEA, other concerned government agencies, and non-
government organizations advocating the rights and welfare of
overseas Filipino workers, shall take a proactive stance by being
primarily responsible for the dissemination of information to their
constituents on all aspects of overseas employment. To carry out
this task, the following shall be undertaken by the LGUs:
(d.1) Provide a venue for the POEA, other concerned government
agencies and non-government organizations to conduct PEOS to
their constituents on a regular basis;
(d.2) Establish overseas Filipino worker help desk or kiosk in their
localities with the objective of providing current information to
their constituents on all the processes aspects of overseas
employment. Such desk or kiosk shall, as be linked to the
database of all concerned government agencies, particularly the
POEA for its updated lists of overseas job orders and licensed
recruitment agencies in good standing.
Section 17. Subparagraph ( c ) of Section of Republic Act No.
8042, as amended, is hereby amended to read as follows:
( c ) To tap the assistance of reputable law firms, the Integrated
Bar of the Philippines, other bar associations and other
government legal experts on overseas Filipino worker laws to
complement the governments efforts to provide legal assistance to
our migrant workers;
Section 18. Section 25 of Republic Act No. 8042, as amended, is
hereby amended to read as follows:
SEC. 25. Legal Assistance Fund. There is herby established a
legal assistance fund for migrant workers, hereinafter referred to
as the Legal Assistance Fund, in the amount of one hundred million
pesos (P100,000,000.00) to be constituted from the following
sources.
Fifty million pesos (50,000,000.00) from the Contingency Fund of
the President;
Thirty million pesos (30,000,000.00) from the Contingency Fund
of the President Social Fund;
Twenty million pesos (20,000,000.00) from the Welfare Fund for
Overseas Workers established under Letter of Instructions No. 537
as amended by Presidential Decree Nos. 1694 and 1809; and
An amount appropriated in the annual General Appropriations Act
(GAA) which shall not be less than Thirty million pesos
(30,000,000.00) per year: Provided, that the balance of the Legal
Assistance Fund (LAF) including the amount appropriated for the
year shall not be less than One hundred million pesos
(P100,000,000.00) : Provided, further, That the fund shall be
treated as a special fund in the National Treasury and its balance,
including the amount appropriated in the GAA, which shall form
part of the Fund, shall not revert to the General Fund.
Any balances of existing funds which have been set aside by the
government specifically as legal assistance or defense fund to help
migrant workers shall upon effectivity of this Act, be turned over
to, and form part of, the Fund created under this Act.
Section 19. Section 26 of Republic Act No. 8042, as amended, is
hereby amended to read as follows:
SEC. 26. Uses of the Legal Assistance Fund. The Legal
Assistance Fund created under the preceding section shall be used
exclusively6 to provide legal services to migrant workers and
overseas Filipinos in distress in accordance with the guidelines,
criteria and procedures promulgated in accordance with Section 24
( a ) herof. The expenditures to be charged against the Fund shall
include the fees for the foreign lawyers to be hired by the Legal
Assistant for Migrant Workers Affairs to represent migrant workers
facing charges or in filing cases against erring or abusive
employers abroad, bail bonds to secure the temporary releases
and other litigation expenses: Provided, That at the end of every
year, the Department of Foreign Affairs shall include in its report to
Congress, as provided for under Section 33 of this Act, the status
of the Legal Assistance Fund, including the expenditures from the
said fund duly audited by the Commission on Audit (COA):
Provided, further, That the hiring of foreign legal counsels, when
circumstances warrant urgent action, shall be exempt from the
coverage of Republic Act No. 9184 or the Government
Procurement Act.
Section 20. Section 32 of Republic Act No. 8042, as amended, is
hereby amended to read as follows:
SEC. 32. POEA, OWWA and other Boards; Additional
Memberships. Notwithstanding any provision of law to the
contrary, the respective Boards of the POEA and the OWWA shall,
in addition to their present composition, have three (3) members
each who shall come from the women, sea-based and land-based
sectors respectively, to be selected and nominated openly by the
general membership of the sector being represented.
The selection and nomination of the additional members from the
women, sea-based and land-based sectors shall be governed by
the following guidelines:
(a) The POEA and the OWWA shall launch a massive information
campaign on the selection of nominees and provide for a system of
consultative sessions for the certified leaders or representatives of
the concerned sectors, at least three (3) times, within ninety (90)
days before the boards shall be convened, for purposes of
selection. The process shall be open, democratic and transparent;

(b) Only non-government organizations that protect and promote
the rights and welfare of overseas Filipino workers, duly registered
with the appropriate Philippine government agency and in good
standing as such, and in existence for at least three (3) years prior
to the nomination shall be qualified to nominate a representative
for each sector to the Board;
(c) The nominee must be at least twenty-five (25) years of age,
able to read and write, and a migrant worker at the time of his or
her nomination or was a migrant worker with at least three (3)
years experience as such; and
(d) A final list of all the nominees selected by the OWWA/POEA
governing boards, which shall consist of three(3) names for each
sector to be represented, shall be submitted to the President and
published in a newspaper of general circulation;
Within thirty (30) days from the submission of the list, the
President shall select and appoint from the list, the representatives
to the POEA/OWWA governing boards.
The additional members shall have a term of three (3) years and
shall be eligible for reappointment for another three (3) years. In
case of vacancy, the President shall in accordance with the
provisions of this Act, appoint a replacement who shall serve the
unexpired term of his or her predecessor.
Any executive issuances or orders issued that contravene the
provisions of this section shall have no force and effect.
All other government agencies and government-owned or
controlled corporations which require at least one (1)
representative from the overseas workers sector to their
respective boards shall follow all the applicable provisions of this
section.
Section 21. The first and last paragraph of Section 33 of Republic
Act No. 8042, as amended, is hereby amended to read as follows:
SEC. 33. Report to Congress. In order to inform the Philippine
Congress on the implementation of the policy enunciated in
Section 4 hereof, the Department of Foreign Affairs and the
Department of Labor and Employment shall submit separately to
the said body a semi-annual report of Philippine foreign posts
located in countries hosting Filipino migrant workers. The mid-year
report covering the period January to June shall be submitted not
later than October 31 of the same year while the year-end report
covering the period July to December shall be submitted not later
than May 31 of the following year. The report shall include, but
shall not limited to, the following information:
xxx
Any officer of the government who fails to submit the report as
stated in this section shall be subject to an administrative penalty
of dismissal from the service with disqualification to hold any
appointive public office for five (5) years.
Section 22. Section 35 of Republic Act No. 8042, as amended, is
hereby amended to read as follows:
SEC. 35. Exemption from Travel Tax Documentary Stamp and
Airport Fee. All laws to the contrary notwithstanding, the migrant
workers shall be exempt from the payment of travel tax and
airport-fee upon proper showing of proof entitlement by the POEA.
The remittances of all overseas Filipino workers, upon showing of
the same proof of entitlement by the overseas Filipino workers
beneficiary or recipient, shall be exempt from the payment of
documentary stamp tax.
Section 23. A new Section 37-A. of Replublic Act No. 8042, as
amended, is hereby added to read as follows:
SEC. 37-A. Compulsory Insurance Coverage for Agency-Hired
Workers. In addition to the performance bond to be filed by the
recruitment/manning agency under Section 10, each migrant
worker deployed by a recruitment/manning agency shall be
covered by a compulsory insurance policy which shall be secured
at no cost to the said worker. Such insurance policy shall be
effective for the duration of the migrant workers employment and
shall cover, at the minimum:
(a) Accidental death, with at least Fifteen thousandUnited
Statesdollars (US$10,000.00) survivors benefit payable to the
migrant workers beneficiaries;
(c) Permanent total disablement, with at least Seven thousand
five hundredUnited Statesdollars (US$7,500.00) disability benefit
payable to the migrant worker. The following disabilities shall be
deemed permanent: total, complete loss of sight of both eyes; loss
of two(2) limbs at or above the ankles or wrists; permanent
complete paralysis of two (2) limbs; brain injury resulting to
incurable imbecility or insanity;
(d) Repatriation cost of the worker when his/her employment is
terminated without any valid cause, including the transport of his
or her personal belongings. In case of death, the insurance
provider shall arrange and pay for the repatriation or return of the
workers remains. The insurance provider shall also render any
assistance necessary in the transport including, but not limited to,
locating a local licensed funeral home, mortuary or direct
disposition facility to prepare the body for transport, completing all
documentation, obtaining legal clearances, procuring consular
services, providing necessary casket or air transport container, as
well as transporting the remains including retrieval from site of
death and delivery to the receiving funeral home;
(e) Subsistence allowance benefit, with at least One
hundredUnited Statesdollars (US$100.00) Per month for a
maximum of six (6) months for a migrant worker who is involved
in a case or litigation for the protection of his/her rights in the
receiving country;
(f) Money claims arising from employers liability which may be
awarded or given to the worker in a judgment or settlement of his
or her case in the NLRC. The insurance coverage for money claims
shall be equivalent to at least three (3) months for every year of
the migrant workers employment contract;
In addition to the above coverage, the insurance policy shall also
include:
(g) Compassionate visit. When a migrant worker is hospitalized
and has been confined for at least seven (7) consecutive days, he
shall be entitled to a compassionate visit by one (1) family
member or a requested individual. The insurance company shall
pay for the transportation cost of the family member or requested
individual to the major airport closest to the place of
hospitalization of the worker. It is, however, the responsibility of
the family member or requested individual to meet all visa and
travel document requirements;
(h) Medical evacuation. When an adequate medical facility is not
available proximate to the migrant worker, as determined by the
insurance companys physician and/or a consulting physician,
evacuation under appropriate medical supervision by the mode of
transport necessary shall be undertaken by the insurance provider;
and
(i) Medical repatriation. When medically necessary as determined
by the attending physician, repatriation under medical supervision
to the migrant workers residence shall be undertaken by the
insurance provider at such time that the migrant worker is
medically cleared for travel by commercial carrier. If the period to
receive medical clearance to travel exceeds fourteen (14) days
from the date of discharge from the hospital, an alternative
appropriate mode of transportation, such as air ambulance, may
be arranged. Medical and non-medical escorts may be provided
when necessary.
Only reputable private insurance companies duly registered with
the Insurance Commission (IC), which are in existence and
operational for at least Five hundred million pesos
(P500,000,000.00) to be determined by the IC, and with a current
year certificate of authority shall be qualified to provide for the
workers insurance coverage. Insurance companies who have
directors, partners, officers, employees or agents with relatives,
within the fourth civil degree of consanguinity or affinity, who work
or have interest in any of the licensed recruitment/manning
agencies or in any of the government agencies involved in the
overseas employment program shall be disqualified from providing
this workers insurance coverage.
The recruitment/manning agency shall have the right to choose
from any of the qualified insurance providers the company that will
insure the migrant worker it will deploy. After procuring such
insurance policy, the recruitment/manning agency shall provide an
authenticated copy thereof to the migrant worker. It shall then
submit the certificate of insurance coverage of the migrant worker
to POEA as a requirement for the issuance of an Overseas
Employment Certificate (OEC) to the migrant worker. In the case
of seafarers who are insured under policies issued by foreign
insurance companies, the POEA shall accept certificates or other
proofs of cover from recruitment/manning agencies: Provided,
That the minimum coverage under sub-paragraphs (a) to (i) are
included therein.
Any person having a claim upon the policy issued pursuant to
subparagraphs (a), (b), (c), (d) and (e) of this section shall
present to the insurance company concerned a written notice of
claim together with pertinent supporting documents. The insurance
company shall forthwith ascertain the truth and extent of the claim
and make payment within ten (10) days from the filing of the
notice of claim.
Any claim arising from accidental death, natural death or
disablement under this section shall be paid by the insurance
company without any contest and without the necessity of
providing fault or negligence of any kind on the part of the insured
migrant worker: Provided, That the following documents, duly
authenticated by the Philippine foreign posts, shall be sufficient
evidence to substantiate the claim:
(1) Death Certificate In case of natural or accidental death;
(2) Police or Accident Report In case of accidental death; and
(3) Medical Certificate In case of permanent disablement;
For repatriation under subparagraph (d) hereof, a certification
which states the reason/s for the termination of the migrant
workers employment and the need for his or her repatriation shall
be issued by the Philippine foreign post or the Philippine Overseas
Labor Office (POLO) located in the receiving country.
For subsistence allowance benefit under subparagraph (e), the
concerned labor attach or, in his absence, the embassy or
consular official shall issue a certification which states the name of
the case, the names of the parties and the nature of the cause of
action of the migrant worker.
For the payment of money claims under subparagraph (f), the
following rules shall govern:
(1) After a decision has become final and executor or a
settlement/compromise agreement has been reached between the
parties at the NLRC, an order shall be released mandating the
respondent recruitment/manning agency to pay the amount
adjudged or agreed upon within thirty (30) days;
(2) The recruitment/manning agency shall then immediately file a
notice of claim with its insurance provider for the amount of
liability insured, attaching therewith a copy of the decision or
compromise agreement;
(3) Within ten (10) days from the filing of notice of claim, the
insurance company shall make payment to the
recruitment/manning agency the amount adjudged or agreed
upon, or the amount of liability insured, whichever is lower. After
receiving the insurance payment, the recruitment/manning agency
shall immediately pay the migrant workers claim in full, taking
into account that in case the amount of insurance coverage is
insufficient to satisfy the amount adjudged or agreed upon, it is
liable to pay the balance thereof;
(4) In case the insurance company fails to make payment within
ten (10) days from the filing of the claim, the recruitment/
manning agency shall pay the amount adjudged or agreed upon
within the remaining days of the thirty (30)-day period, as
provided in the first subparagraph hereof;
(5) If the workers claim was not settled within the aforesaid
thirty (30)-day period, the recruitment/manning agencys
performance bond or escrow deposit shall be forthwith garnished
to satisfy the migrant workers claim;
(6) The provision of compulsory workers insurance under this
section shall not affect the joint and solidary liability of the foreign
employer and the recruitment/manning agency under Section 10;
(7) Lawyers for the insurance companies, unless the latter is
impleaded, shall be prohibited to appear before the NLRC in money
claims cases under this section.
Any question or dispute in the enforcement of any insurance
policy issued under this section shall be brought before the IC for
mediation or adjudication.
In case it is shown by substantial evidence before the POEA that
the migrant worker who was deployed by a licensed
recruitment/manning agency has paid for the premium or the cost
of the insurance coverage or that the said insurance coverage was
used as basis by the recruitment/manning agency to claim any
additional fee from the migrant worker, the said licensed
recruitment/manning agency shall lose its license and all its
directors, partners, proprietors, officers and employees shall be
perpetually disqualified from engaging in the business of
recruitment of overseas workers. Such penalty is without prejudice
to any other liability which such persons may have incurred under
existing laws, rules or regulations.
For migrant workers recruited by the POEA on a government-to-
government arrangement, the POEA shall establish a foreign
employers guarantee fund which shall be answerable to the
workers monetary claims arising from breach of contractual
obligations. For migrant workers classified as rehires, name hires
or direct hires, they may opt to be covered by this insurance
coverage by requesting their foreign employers to pay for the cost
of the insurance coverage or they may pay for the premium
themselves. To protect the rights of these workers, the POEA shall
provide them adequate legal assistance, including conciliation and
mediation services, whether at home or abroad.
At the end of every year, the Department of Labor and
Employment and the IC shall jointly make an assessment of the
performance of all insurance providers, based upon the report of
the NLRC and the POEA on their respective interactions and
experiences with the insurance companies, and they shall have the
authority to ban or blacklist such insurance companies which are
known to be evasive or not responsive to the legitimate claims of
migrant workers. The Department of Labor and Employment shall
include such assessment in its year-end report to Congress.
For purposes of this section, the Department of Labor and
Employment, IC, NLRC and the POEA, in consultation with the
recruitment/manning agencies and legitimate non-government
organizations advocating the rights and welfare of overseas Filipino
workers, shall formulate the necessary implementing rules and
regulations.
The foregoing provisions on compulsory insurance coverage shall
be subject to automatic review through the Congressional
Oversight Committee immediately after three (3) years from the
effectivity of this Act in order to determine its efficacy in favor of
the covered overseas Filipino workers and the compliance by
recruitment/manning agencies and insurance companies, without
prejudice to an earlier review if necessary and warranted for the
purpose of modifying, amending and/or repealing these subject
provisions.
Section 24. A new Section 37-B of Republic Act No. 8042, as
amended, is hereby added to read as follows:
Sec. 37-B. Congressional Oversight Committee. There is hereby
created a Joint Congressional Oversight Committee composed of
five (5) Senators and five (5) Representatives to be appointed by
the Senate President and the Speaker of the House of
Representatives, respectively. The Oversight Committee shall be
co-chaired by the chairpersons of the Senate Committee on Labor
and Employment and the House of Representatives Committee on
Overseas Workers Affairs. The Oversight Committee shall have the
following duties and functions:
(a) To set the guidelines and overall framework to monitor and
ensure the proper implementation of Republic Act No. 8042, as
amended, as well as all programs, projects and activities related to
overseas employment;
(b) To ensure transparency and require the submission of reports
from concerned government agencies on the conduct of programs,
projects and policies relating to the implementation of Republic Act
No. 8042, as amended;
(c) To approve the budget for the programs of the Oversight
Committee and all disbursements therefrom, including
compensation of all personnel;
(d) To submit periodic reports to the President of the Philippines
and Congress on the implementation of the provisions of Republic
Act No. 8042, as amended;
(e) To determine weaknesses in the law and recommend the
necessary remedial legislation or executive measures; and
(f) To perform such other duties, functions and responsibilities as
may be necessary to attain its objectives.
The Oversight Committee shall adopt its internal rules of
procedure, conduct hearings and receive testimonies, reports, and
technical advice, invite or summon by subpoena ad testificandum
any public official or private citizen to testify before it, or require
any person by subpoena duces tecum documents or other
materials as it may require consistent with the provisions of
Republic Act No. 8042, as amended.
The Oversight Committee shall organize its staff and technical
panel, and appoint such personnel, whether on secondment from
the Senate and the House of Representatives or on temporary,
contractual, or on consultancy, and determine their compensation
subject to applicable civil service laws, rules and regulations with a
view to ensuring a competent and efficient secretariat.
The members of the Oversight Committee shall not receive
additional compensation, allowances or emoluments for services
rendered thereto except traveling, extraordinary and other
necessary expenses to attain its goals and objectives.
The Oversight Committee shall exist for a period of ten (10) years
from the effectivity of this Act and may be extended by a joint
concurrent resolution.
Section 25. Implementing Rules and Regulations. The
departments and agencies charged with carrying out the provisions
of this Act, except as otherwise provided herein, in consultation
with the Senate Committee on Labor and Employment and the
House of Representatives Committee on Overseas Workers Affairs,
shall, within sixty (60) days after the effectivity of this Act,
formulate the necessary rules and regulations for its effective
implementation.
Section 26. Funding. The departments, agencies,
instrumentalities, bureaus, offices and government-owned and
controlled corporations charged with carrying out the provisions of
this Act shall include in their respective programs the
implementation of this Act, the funding of which shall be included
in the General Appropriations Act. The Congressional Oversight
Committee on Overseas Workers Affairs shall have the sum of
Twenty-five million pesos (P25,000,000.00), half of which shall be
charged against the current appropriations of the Senate while the
other half shall be charged against the current appropriations of
the House of Representatives, to carry out its powers and functions
for its initial operations and for fiscal years wherein the General
Appropriations Act is reenacted and no provision for its continued
operation is included in such Act. Thereafter, such amount
necessary for its continued operations shall be included in the
annual General Appropriations Act.
Section 27. Separability Clause. If, for any reason, may portion
of this Act is declared unconstitutional or invalid, the same shall
not affect the validity of the other provisions not affected thereby.
Section 28. Repealing Clause. All laws, decrees, executive
orders, issuances, rules and regulations or parts thereof
inconsistent with the provisions of this Act are hereby repealed or
modified accordingly.
Section 29. Effectivity. This Act shall take effect fifteen (15) days
after its publication in at least two (2) newspapers of general
circulation.
* R.A. 8759 (2000) PUBLIC EMPLOYMENT SERVICE
OFFICE ACT OF 1999 SECS. 2-3;
Section 2.- Declaration of Policy The state to provide full
employment and equality of employment opportunities for all, and
for this purpose, to strengthen and expand the existing
employment facilitation service machinery of the government
particularly at the local levels.

Section 3. Establishment of the Public Employment Service Office
To carry out the above-declared policy, there shall be established
in all capital towns of provinces, key cities, and other strategic
areas a Public Employment Service Office, Hereinafter referred to
as PESO, which shall be community-based and maintained
largely by local government units (LGUs) and a number of non-
governmental organizations (NGOs) or community-based
organizations (CBOs) and state universities and colleges (SUCs).
The PESOs shall be linked to the regional offices of the Department
of Labor and Employment (DOLE) for coordination and technical
supervision, and to the DOLE central office, to constitute the
national employment service network.
* E.O. 857 GOVERNING THE REMITTANCE TO THE
PHILIPPINES OF FOREGIN EXCHANGE EARNINGS OF
FILIPINO WORKERS ABROAD AND FOR OTHER PURPOSES
1984;
WHEREAS, existing laws and regulations governing remittances of
foreign exchange earnings of overseas Filipino workers to their
families, dependents and/or beneficiaries have not been fully
effective in ensuring that they are coursed through official financial
institutions of the Philippine Government of their authorized
agents;
WHEREAS, it is necessary to protect the welfare of families,
dependents and beneficiaries of Filipino workers abroad and to
ensure that the foreign exchange earnings of these workers are
remitted through authorized financial institutions of the Philippine
Government in line with the countrys economic development
program;
WHEREAS, non-compliance with these aforesaid laws and
regulations and recourse to the use of unauthorized and unofficial
financing institutions has led to the detriment of the countrys
balance of payments and economic development program;
WHEREAS, it is imperative that the mandatory remittance
requirement be fully complied with by all concerned through the
institution of appropriate remittance facilities and the imposition of
effective sanctions;
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the
Philippines, by virtue of the powers vested in me by the
Constitution, do hereby order and promulgate:
SECTION 1. It shall be mandatory for every Filipino contract
worker abroad to remit regularly a portion of his foreign exchange
earnings to his beneficiary in the Philippines through the Philippine
banking system. Licensed agencies and other entities authorized
by the Ministry of Labor and Employment to recruit Filipino workers
for overseas employment are similarly required to remit their
workers earnings as provided for in this Order.
SECTION 2. All contracts of employment and agency or service
agreements submitted to the Ministry of Labor and Employment
shall contain a proviso that shall make it mandatory for workers to
remit to the Philippines in foreign exchange at least the following
portions of their earnings:
a) Seamen or mariners: Seventy (70) percent of basic salary;
b) Workers of Filipino contractors and construction companies:
Seventy (70) percent of basic salary;
c) Doctors, engineers, teachers, nurses and other professional
workers whose contract provide for free board and lodging:
Seventy (70) percent of basic salary;
d) All other professional workers whose employment contracts do
not provide for free board and lodging facilities: Fifty (50) percent
of basic salary;
e) Domestic and other service workers: Fifty (50) percent of basic
salary;
f) All other workers not falling under the aforementioned
categories: Fifty (50) percent of basic salary.
SECTION 3. Passports issued to Filipino contract workers shall
have an initial period of validity of one year provided that the
Ministry of Foreign Affairs may adjust, as circumstances may
require, the initial passport validity period. The passport shall be
renewable every year upon submission of usual requirements and
presentation of documentary proof of compliance to the remittance
requirement in the percentages provided for in this Order. The
Ministry of Foreign Affairs shall not extend or renew the passport
of any contract worker unless proof of his compliance with the
mandatory remittance requirement is submitted.
SECTION 4. The Ministry of Labor and Employment shall not
approve the renewal of employment contracts and agency or
service agreements unless proof of remittance of foreign exchange
earnings is submitted.
SECTION 5. For purposes of this Order, proof of compliance with
the mandatory remittance requirement as mentioned in Section 1
hereof, may consist of any of the following documents or such
alternative as may be approved by the Central Bank of the
Philippines showing that the contract worker had in fact effected
aforesaid remittance and had caused the surrender of the same for
pesos through the Philippine banking system:
a. Confirmed bank (foreign) remittance form;
b. Certification from employer, duly authenticated, that remittance
has been effected;
c. Certification as to the surrender for pesos to the Philippine
banking system; and
d. Receipt of International Postal Money Order.
SECTION 6. Remittances of foreign exchange earnings may be
undertaken individually by the contract worker or collectively
through the employer under a payroll deduction scheme, in
accordance with Central Bank regulations and applicable
guidelines.
SECTION 7. As a prerequisite for accreditation by the Ministry of
Labor and Employment, an employer shall commit to provide
facilities to effect the remittances and monitoring of foreign
exchange earnings of Filipino workers in his employ.
SECTION 8. The Central Bank of the Philippines shall cause
necessary arrangements to be made with the appropriate financing
institutions to handle the remittances called for in this Order. In
the absence of appropriate banking facilities, the Embassy or
Consulate nearest to the job site, in accordance with local laws and
regulations, may act in the interim as the channel for remittance of
foreign exchange earnings. The Ministry of Foreign Affairs shall
immediately inform the Central Bank of the Philippines these
arrangements and shall remit all funds thereto.
SECTION 9. Contract workers who fail to comply with the
requirements of this Order shall be suspended or excluded from
the list of eligible workers for overseas employment. In cases of
subsequent violations, he shall be repatriated from the job site at
the expense of the employer or at his expense, as the case may
be.
Filipino or foreign employers and/or their representatives who fail
to comply with the requirements under this Order shall be
excluded from the overseas employment program. In the case of
local private employment agencies and entities, failure to comply
with the provisions hereof shall be a ground for cancellation of
their license or authority to recruit workers for overseas
employment, without prejudice to their liabilities under existing
laws and regulations.
SECTION 10. The Ministries of Labor and Employment and Foreign
Affairs and the Central Bank of the Philippines shall draw up the
necessary rules and procedures for the proper implementation of
this Order within ten (10) days from the signing hereof.
SECTION 11. All provisions of existing orders, rules and regulations
inconsistent herewith are hereby repealed.
SECTION 12. This Order shall take effect thirty (30) days after the
promulgation of implementing rules and procedures.
Done in the City of Manila, this 13th day of December, in the year
of our Lord, Nineteen Hundred and Eighty Two.
2.01. RECRUITMENT AND PLACEMENT OF WORKERS
DEFINITION ART. 13 (a); 13 (b);
13 (a): "Worker" means any member of the labor force, whether
employed or unemployed.
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: 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.
DEFINITION LAW STRUCTURE
PEOPLE V PANIS
142 SCRA 664 1986
FACTS: Four informations were filed on January 9, 1981, in the
Court of First Instance of Zambales and Olongapo City alleging
that SerapioAbug, private respondent herein, "without first
securing a license from the Ministry of Labor as a holder of
authority to operate a fee-charging employment agency, did then
and there wilfully, unlawfully and criminally operate a private fee-
charging employment agency by charging fees and expenses
(from) and promising employment in Saudi Arabia" to four
separate individuals named therein, in violation of Article 16 in
relation to Article 39 of the Labor Code.
Abug filed a motion to quash on the ground that the informations
did not charge an offense because he was accused of illegally
recruiting only one person in each of the four informations. Under
the proviso in Article 13(b), he claimed, there would be illegal
recruitment only "whenever two or more persons are in any
manner promised or offered any employment for a fee."
The posture of the petitioner is that the private respondent is
being prosecuted under Article 39 in relation to Article 16 of the
Labor Code; hence, Article 13(b) is not applicable. However, as the
first two cited articles penalize acts of recruitment and placement
without proper authority, which is the charge embodied in the
informations, application of the definition of recruitment and
placement in Article 13(b) is unavoidable.
ISSUE: W/N the petitioner is guilty of violating Article 13(b) of P.
D. 442, otherwise known as the Labor Code?
HELD: Article 13(b) of P. D. 442, otherwise known as the Labor
Code, states that, "(b) 'Recruitment and placement' refers to any
act of canvassing, 'enlisting, contracting, transporting, 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."
As we see it, the proviso was intended neither to impose a
condition on the basic rule nor to provide an exception thereto but
merely to create a presumption. The presumption is that the
individual or entity is engaged in recruitment and placement
whenever he or it is dealing with two or more persons to whom, in
consideration of a fee, an offer or promise of employment is made
in the course of the "canvassing, enlisting, contracting,
transporting, utilizing, hiring or procuring (of) workers."
At any rate, the interpretation here adopted should give more
force to the campaign against illegal recruitment and placement,
which has victimized many Filipino workers seeking a better life in
a foreign land, and investing hard-earned savings or even
borrowed funds in pursuit of their dream, only to be awakened to
the reality of a cynical deception at the hands of their own
countrymen.
PEOPLE vs. SUALO
EXECUTIVE SECRETARY vs. CA 429 SCRA 81 (04)
FACTS: Republic Act 8042 (Migrant Workers and Overseas Filipino
Act of 1995) took effect on 15 July 1995. Prior to its effectivity,
Asian Recruitment Council Philippine CHaptr Inc (ARCO-Phil) filed
petition for declaratory relief. The alleged that Section 6,
subsections (a) to (m) is unconstitutional because licensed and
authorized recruitment agencies are placed on equal footing with
illegal recruiters. It contended that while the Labor Code
distinguished between recruiters who are holders of licenses and
non-holders thereof in the imposition of penalties, Rep. Act No.
8042 does not make any distinction. The penalties in Section 7(a)
and (b) being based on an invalid classification are, therefore,
repugnant to the equal protection clause, besides being excessive;
hence, such penalties are violative of Section 19(1), Article III of
the Constitution. In their answer to the petition, they contend that
ARCO-Phil has no legal standing, it being a non-stock, non-profit
organization; hence, not the real party-in-interest as petitioner in
the action. It is service-oriented while the recruitment agencies it
purports to represent are profit-oriented.
ISSUE: W/N ARCO-Phil has legal standing to assail RA 8042?
HELD:
The modern view is that an association has standing to complain of
injuries to its members. This view fuses the legal identity of an
association with that of its members. An association has standing
to file suit for its workers despite its lack of direct interest if its
members are affected by the action. An organization has standing
to assert the concerns of its constituents. However, the respondent
has no locus standi to file the petition for and in behalf of unskilled
workers. We note that it even failed to implead any unskilled
workers in its petition.
2.02. EMPLOYMENT AGENCY ART. 13 (c), (d), (e), (f);
Art. 13. Definitions.
(c) "Private fee-charging employment agency" means any person
or entity engaged in recruitment and placement of workers for a
fee which is charged, directly or indirectly, from the workers or
employers or both.
(d) "License" means a document issued by the Department of
Labor authorizing a person or entity to operate a private
employment agency.
(e) "Private recruitment entity" means any person or association
engaged in the recruitment and placement of workers, locally or
overseas, without charging, directly or indirectly, any fee from the
workers or employers.
(f) "Authority" means a document issued by the Department of
Labor authorizing a person or association to engage in recruitment
and placement activities as a private recruitment entity.
2.03 Allowed Entities;
A. GENERAL RULE Art. 16, 18, 26 and 12 (f)
Art. 16. Private recruitment. Except as provided in Chapter II
of this Title, no person or entity other than the public
employment offices, shall engage in the recruitment and
placement of workers.
Art. 18. Ban on direct-hiring. No employer may hire a Filipino
worker for overseas employment except through the Boards
and entities authorized by the Secretary of Labor. Direct-hiring
by members of the diplomatic corps, international
organizations and such other employers as may be allowed by
the Secretary of Labor is exempted from this provision.
Art. 26. Travel agencies prohibited to recruit. Travel agencies
and sales agencies of airline companies are prohibited from
engaging in the business of recruitment and placement of
workers for overseas employment whether for profit or not.
Art. 12. Statement of objectives. It is the policy of the State:
(f) To strengthen the network of public employment offices and
rationalize the participation of the private sector in the
recruitment and placement of workers, locally and overseas, to
serve national development objectives;
B. ALLOWED ENTITIES ART. 13 (c),(e);
Art. 13. Definitions.
(c) "Private fee-charging employment agency" means any person
or entity engaged in recruitment and placement of workers for a
fee which is charged, directly or indirectly, from the workers or
employers or both.
(e) "Private recruitment entity" means any person or association
engaged in the recruitment and placement of workers, locally or
overseas, without charging, directly or indirectly, any fee from the
workers or employers.
1. Private Art. 13 (c), (e);
(c) "Private fee-charging employment agency" means any
person or entity engaged in recruitment and placement of
 workers for a fee which is charged, directly or indirectly,
from the workers or employers or both.
(e) "Private recruitment entity" means any person or
association engaged in the recruitment and placement of
workers, locally or overseas, without charging, directly or
indirectly, any fee from the workers or employers.
2. Public Art. 12 (f), 14(g) ;
Art. 12. Statement of objectives. It is the policy of the
State:
(f) To strengthen the network of public employment offices
and rationalize the participation of the private sector in the
recruitment and placement of workers, locally and
overseas, to serve national development objectives;
(g) To insure careful selection of Filipino workers for
overseas employment in order to protect the good name of
the Philippines abroad.
2.04 DEPLOYMENT OF MIGRANT WORKERS;
http://www.poea.gov.ph/laws&rules/files/Migrant%20Workers%20
Act%20of%201995%20(RA%208042).html
2.05 PROHIBITED ENTITY ART. 16, 18, 26
Title I
RECRUITMENT AND PLACEMENT OF WORKERS
Chapter I
GENERAL PROVISIONS
Art. 16. Private recruitment. Except as provided in Chapter II of
this Title, no person or entity other than the public employment
offices, shall engage in the recruitment and placement of workers.
Art. 18. Ban on direct-hiring. No employer may hire a Filipino
worker for overseas employment except through the Boards and
entities authorized by the Secretary of Labor. Direct-hiring by
members of the diplomatic corps, international organizations and
such other employers as may be allowed by the Secretary of Labor
is exempted from this provision.
Chapter II
REGULATION OF RECRUITMENT AND PLACEMENT ACTIVITIES;
Art. 26. Travel agencies prohibited to recruit. Travel agencies and
sales agencies of airline companies are prohibited from engaging in
the business of recruitment and placement of workers for overseas
employment whether for profit or not.
2.06 TECHNIQUES OF REGULATION ART. 25 39;
Chapter II
REGULATION OF RECRUITMENT AND PLACEMENT ACTIVITIES
Art. 25. Private sector participation in the recruitment and
placement of workers. Pursuant to national development objectives
and in order to harness and maximize the use of private sector
resources and initiative in the development and implementation of
a comprehensive employment program, the private employment
sector shall participate in the recruitment and placement of
workers, locally and overseas, under such guidelines, rules and
regulations as may be issued by the Secretary of Labor.
Art. 26. Travel agencies prohibited to recruit. Travel agencies and
sales agencies of airline companies are prohibited from engaging in
the business of recruitment and placement of workers for overseas
employment whether for profit or not.
Art. 27. Citizenship requirement. Only Filipino citizens or
corporations, partnerships or entities at least seventy-five percent
(75%) of the authorized and voting capital stock of which is owned
and controlled by Filipino citizens shall be permitted to participate
in the recruitment and placement of workers, locally or overseas.
Art. 28. Capitalization. All applicants for authority to hire or
renewal of license to recruit are required to have such substantial
capitalization as determined by the Secretary of Labor.
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 be transferred,
conveyed or assigned to any other person or entity. Any transfer
of business address, appointment or designation of any agent or
representative including the establishment of additional offices
anywhere shall be subject to the prior approval of the Department
of Labor.
Art. 30. Registration fees. The Secretary of Labor shall promulgate
a schedule of fees for the registration of all applicants for license or
authority.
Art. 31. Bonds. All applicants for license or authority shall post
such cash and surety bonds as determined by the Secretary of
Labor to guarantee compliance with prescribed recruitment
procedures, rules and regulations, and terms and conditions of
employment as may be appropriate.
Art. 32. Fees to be paid by workers. Any person applying with a
private fee-charging employment agency for employment
assistance shall not be charged any fee until he has obtained
employment through its efforts or has actually commenced
employment. Such fee shall be always covered with the
appropriate receipt clearly showing the amount paid. The
Secretary of Labor shall promulgate a schedule of allowable fees.
Art. 33. Reports on employment status. Whenever the public
interest requires, the Secretary of Labor may direct all persons or
entities within the coverage of this Title to submit a report on the
status of employment, including job vacancies, details of job
requisitions, separation from jobs, wages, other terms and
conditions and other employment data.
Art. 34. Prohibited practices. It shall be unlawful for any individual,
entity, licensee, or holder of authority:
1. To charge or accept, directly or indirectly, any amount
greater than that specified in the schedule of allowable
fees prescribed by the Secretary of Labor, or to make a
worker pay any amount greater than that actually received
by him as a loan or advance;
2. To furnish or publish any false notice or information or
document in relation to recruitment or employment;
3. To give any false notice, testimony, information or
document or commit any act of misrepresentation for the
purpose of securing a license or authority under this Code.
4. To induce or attempt to induce a worker already employed
to quit his employment in order to offer him to another
unless the transfer is designed to liberate the worker from
oppressive terms and conditions of employment;
5. To influence or to attempt to influence any person or entity
not to employ any worker who has not applied for
employment through his agency;
6. To engage in the recruitment or placement of workers in
jobs harmful to public health or morality or to the dignity
of the Republic of the Philippines;
7. To obstruct or attempt to obstruct inspection by the
Secretary of Labor or by his duly authorized
representatives;
8. To fail to file reports on the status of employment,
placement vacancies, remittance of foreign exchange
earnings, separation from jobs, departures and such other
matters or information as may be required by the
Secretary of Labor.
9. 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;
10. To become an officer or member of the Board of any
corporation engaged in travel agency or to be engaged
directly or indirectly in the management of a travel
agency; and
11. To withhold or deny travel documents from applicant
workers before departure for monetary or financial
considerations other than those authorized under this Code
and its implementing rules and regulations.

Art. 35. Suspension and/or cancellation of license or authority. The
Minister of Labor shall have the power to suspend or cancel any
license or authority to recruit employees for overseas employment
for violation of rules and regulations issued by the Ministry of
Labor, the Overseas Employment Development Board, or for
violation of the provisions of this and other applicable laws,
General Orders and Letters of Instructions.
Chapter III
MISCELLANEOUS PROVISIONS
Art. 36. Regulatory power. The Secretary of Labor shall have the
power to restrict and regulate the recruitment and placement
activities of all agencies within the coverage of this Title and is
hereby authorized to issue orders and promulgate rules and
regulations to carry out the objectives and implement the
provisions of this Title.
Art. 37. Visitorial Power. The Secretary of Labor or his duly
authorized representatives may, at any time, inspect the premises,
books of accounts and records of any person or entity covered by
this Title, require it to submit reports regularly on prescribed
forms, and act on violation of any provisions of this Title.
Art. 38. Illegal recruitment.
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 Department of
Labor and Employment or any law enforcement officer may initiate
complaints under this Article.
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 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.
The Secretary of Labor and Employment or his duly authorized
representatives shall have the power to cause the arrest and
detention of such non-licensee or non-holder of authority if after
investigation it is determined that his activities constitute a danger
to national security and public order or will lead to further
exploitation of job-seekers. The Secretary shall order the search of
the office or premises and seizure of documents, paraphernalia,
properties and other implements used in illegal recruitment
activities and the closure of companies, establishments and
entities found to be engaged in the recruitment of workers for
overseas employment, without having been licensed or authorized
to do so.
Art. 39. Penalties.
The penalty of life imprisonment and a fine of One Hundred
Thousand Pesos (P1000,000.00) shall be imposed if illegal
recruitment constitutes economic sabotage as defined herein;
Any licensee or holder of authority found violating or causing
another to violate any provision of this Title or its implementing
rules and regulations shall, upon conviction thereof, suffer the
penalty of imprisonment of not less than two years nor more than
five years or a fine of not less than P10,000 nor more than
P50,000, or both such imprisonment and fine, at the discretion of
the court;
Any person who is neither a licensee nor a holder of authority
under this Title found violating any provision thereof or its
implementing rules and regulations shall, upon conviction thereof,
suffer the penalty of imprisonment of not less than four years nor
more than eight years or a fine of not less than P20,000 nor more
than P100,000 or both such imprisonment and fine, at the
discretion of the court;
If the offender is a corporation, partnership, association or entity,
the penalty shall be imposed upon the officer or officers of the
corporation, partnership, association or entity responsible for
violation; and if such officer is an alien, he shall, in addition to the
penalties herein prescribed, be deported without further
proceedings;
In every case, conviction shall cause and carry the automatic
revocation of the license or authority and all the permits and
privileges granted to such person or entity under this Title, and the
forfeiture of the cash and surety bonds in favor of the Overseas
Employment Development Board or the National Seamen Board, as
the case may be, both of which are authorized to use the same
exclusively to promote their objectives.
CASE: TECHNIQUES OF REGULATION; Art. 25 39;
PEOPLE OF THE PHILIPPINES VS ALONA BULI-E 404 SCRA
105 (03)
FACTS:The following people namely ALONA BULI-E, JOSEFINA
(JOSIE) ALOLINO and JOSE ALOLINO was accused of violating
Article38 of PD no.442 as further amended by PD no.2018 which is
an act of economic sabotage, and by a syndicate in such a manner
that they represented themselves to have the capacity to contract,
enlist and hire and transport Filipino workers for employment
abroad for a fee, recruit and promise employment / job placement
of 8 persons in Taiwan without first obtaining or securing license or
authority from the proper government agency. They were also
accused of 8 counts of estafa.
Upon arraignment, appellants pleaded not guilty to each of the
nine informations filed against them. Buli-e contended that she
was, in fact, recruiting contract workers for Taiwan and that,
although she did not have a license of her own to recruit, her boss
in Manila who was a licensed recruiter, was in the process of
getting her one which would soon be issued. Buli-e identified her
superiors in Manila to be the spouses Jose and Josefina Alolino.
Further, Josefina was connected with Rodolfo S. Ibuna
Employment Agency (RSI for brevity), a private employment
agency licensed to recruit overseas contract workers.
In rendering the decision, the trial court ruled that by their acts,
Buli-e and Josefina, conspired and confederated with one another
in the illegal recruitment of complainants for overseas
employment. Hence, this petition.
ISSUE: W/N herein accused is guilty beyond reasonable doubt of
illegal recruitment and estafa?
HELD/Ratio:
Pursuant to the POEA rules and regulations, Josefina could recruit
applicants for overseas employment and process their applications
only at the RSI office in Mandaluyong, Metro Manila since there
was no showing that RSI had an acknowledged branch or
extension office in Baguio City or that the prior approval of the
POEA for provincial recruitment or recruitment activities outside
the RSI office was obtained. Thus, the court was not persuaded by
Josefina's claim that no recruitment activity was being done
outside of the territorial permit of RSI and it was only incidental
that complainants who were referred to her by Buli-e were
residents of Baguio City.
As earlier discussed, there is no indication that complainants ever
set foot in the RSI office. They were always brought by Buli-e to
Las Pias, Metro Manila where they were entertained by one or
both of the spouses Alolino who repeatedly assured them that they
would be able to fly to Taiwan in a matter of months. Josefina,
who claims to have authority to recruit applicants for overseas
employment in behalf of RSI, should have known that licensed
agencies are prohibited from conducting any provincial
recruitment, job fairs or recruitment activities of any form outside
of the address stated in the license, acknowledged branch or
extension office, without securing prior authority from the POEA.
Finally, the trial court did not make a mistake in finding appellants
guilty of eight (8) counts of estafa. It is settled that a person
convicted of illegal recruitment under the Labor Code can also be
convicted of violation of the Revised Penal Code provisions on
estafa provided that the elements of the crime are present. The
elements for estafa are: (a) that the accused defrauded another by
abuse of confidence or by means of deceit, and (b) that damage or
prejudice capable of pecuniary estimation is caused to the
offended party or third person.
Appellants deceived complainants into believing that they had the
authority and capability to send them to Taiwan for employment.
By reason or on the strength of such assurance, complainants
parted with their money in payment of the placement fees. Since
the representations of appellants proved to be false, paragraph
2(a), Article 315 of the Revised Penal Code is applicable. Buli-e's
claim that she did not benefit from the money collected from
complainants since she gave the payments to Josefina is of no
moment. It was clearly established that she acted in connivance
with Josefina in defrauding complainants. As regards Josefina, the
fact that she returned the payment of some of the complainants
will not exculpate her from criminal liability. Criminal liability for
estafa is not affected by compromise or novation, for it is a public
offense which must be prosecuted and punished by the
government on its own motion even though complete reparation
has been made of the damage suffered by the offended party.
2.07 ILLEGAL RECCRUITMENT; ART. 38, 34 LABOR CODE;
SEC. 6, R.A. 8042; SEC. 2 & 5, R.A. 10022;
Chapter III
MISCELLANEOUS PROVISIONS
Art. 38. Illegal recruitment.
1. 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 Department of Labor and Employment or
any law enforcement officer may initiate complaints under
this Article.
2. 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.
3. 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 hereof. Illegal
recruitment is deemed committed in large scale if
committed against three (3) or more persons individually
or as a group.
4. The Secretary of Labor and Employment or his duly
authorized representatives shall have the power to cause
the arrest and detention of such non-licensee or non-
holder of authority if after investigation it is determined
that his activities constitute a danger to national security
and public order or will lead to further exploitation of job-
seekers. The Secretary shall order the search of the office
or premises and seizure of documents, paraphernalia,
properties and other implements used in illegal recruitment
activities and the closure of companies, establishments
and entities found to be engaged in the recruitment of
workers for overseas employment, without having been
licensed or authorized to do so.
Chapter II
REGULATION OF RECRUITMENT AND PLACEMENT ACTIVITIES
Art. 34. Prohibited practices. It shall be unlawful for any individual,
entity, licensee, or holder of authority:
1. To charge or accept, directly or indirectly, any amount
greater than that specified in the schedule of allowable
fees prescribed by the Secretary of Labor, or to make a
worker pay any amount greater than that actually received
by him as a loan or advance;
2. To furnish or publish any false notice or information or
document in relation to recruitment or employment;
3. To give any false notice, testimony, information or
document or commit any act of misrepresentation for the
purpose of securing a license or authority under this Code.
4. To induce or attempt to induce a worker already employed
to quit his employment in order to offer him to another
unless the transfer is designed to liberate the worker from
oppressive terms and conditions of employment;
5. To influence or to attempt to influence any person or entity
not to employ any worker who has not applied for
employment through his agency;
 6. To engage in the recruitment or placement of workers in
jobs harmful to public health or morality or to the dignity
of the Republic of the Philippines;
7. To obstruct or attempt to obstruct inspection by the
Secretary of Labor or by his duly authorized
representatives;
8. To fail to file reports on the status of employment,
placement vacancies, remittance of foreign exchange
earnings, separation from jobs, departures and such other
matters or information as may be required by the
Secretary of Labor.
9. 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;
10. To become an officer or member of the Board of any
corporation engaged in travel agency or to be engaged
directly or indirectly in the management of a travel
agency; and
11. To withhold or deny travel documents from applicant
workers before departure for monetary or financial
considerations other than those authorized under this Code
and its implementing rules and regulations.
R.A 8042
II. ILLEGAL RECRUITMENT
Sec. 6. DEFINITIONS. - For purposes of this Act, illegal recruitment
shall mean any act of canvassing, enlisting, contracting,
transporting, utilizing, hiring, procuring workers and includes
referring, contact services, promising or advertising for
employment abroad, whether for profit or not, when undertaken
by a non-license or non-holder of authority contemplated under
Article 13(f) of Presidential Decree No. 442, as amended,
otherwise known as the Labor Code of the Philippines. Provided,
that such non-license or non-holder, who, in any manner, offers or
promises for a fee employment abroad to two or more persons
shall be deemed so engaged. It shall likewise include the following
acts, whether committed by any persons, whether a non-licensee,
non-holder, licensee or holder of authority.
(a) To charge or accept directly or indirectly any amount greater
than the specified in the schedule of allowable fees prescribed by
the Secretary of Labor and Employment, or to make a worker pay
any amount greater than that actually received by him as a loan or
advance;
(b) To furnish or publish any false notice or information or
document in relation to recruitment or employment;
(c) To give any false notice, testimony, information or document or
commit any act of misrepresentation for the purpose of securing a
license or authority under the Labor Code;
(d) To induce or attempt to induce a worker already employed to
quit his employment in order to offer him another unless the
transfer is designed to liberate a worker from oppressive terms
and conditions of employment;
(e) To influence or attempt to influence any persons or entity not
to employ any worker who has not applied for employment
through his agency;
(f) To engage in the recruitment of placement of workers in jobs
harmful to public health or morality or to dignity of the Republic of
the Philippines;
(g) To obstruct or attempt to obstruct inspection by the Secretary
of Labor and Employment or by his duly authorized representative;
(h) To fail to submit reports on the status of employment,
placement vacancies, remittances of foreign exchange earnings,
separations from jobs, departures and such other matters or
information as may be required by the Secretary of Labor and
Employment;
(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;
(j) For an officer or agent of a recruitment or placement agency to
become an officer or member of the Board of any corporation
engaged in travel agency or to be engaged directly on indirectly in
the management of a travel agency;
(k) To withhold or deny travel documents from applicant workers
before departure for monetary or financial considerations other
than those authorized under the Labor Code and its implementing
rules and regulations;
(l) Failure to actually deploy without valid reasons as determined
by the Department of Labor and Employment; and
(m) Failure to reimburse expenses incurred by the workers in
connection with his documentation and processing for purposes of
deployment, in cases where the deployment does not actually take
place without the worker's fault. Illegal recruitment when
committed by a syndicate or in large scale shall be considered as
offense involving economic sabotage.
Illegal recruitment is deemed committed by a syndicate carried out
by a group of three (3) or more persons conspiring or
confederating with one another. It is deemed committed in large
scale if committed against three (3) or more persons individually
or as a group.
The persons criminally liable for the above offenses are the
principals, accomplices and accessories. In case of juridical
persons, the officers having control, management or direction of
their business shall be liable.
Republic Act No. 10022
Section 2. Section 3, paragraph (a) of Republic Act No.
8042, as amended, is hereby amended to read as follows:
(a) Overseas Filipino worker refers to a person who is to be
engaged, is engaged or has been engaged in a remunerated
activity in a state of which he or she is not a citizen or on board a
vessel navigating the foreign seas other than a government ship
used for miliatry or non-commercial purposes or on an installation
located offshore or on the high seas; to be used interchangeably
with migrant worker.
Section 5. Section 6 of Republic Act No. 8042, as amended,
is hereby amended to read as follows:
SEC. 6. Definition. For purposes of this Act, illegal recruitment
shall mean any act of canvassing, enlisting, contracting,
transporting, utilizing, hiring, or procuring workers and includes
referring, contract services, promising or advertising for
employment abroad, whether for profit or not, when undertaken
by non-licensee or non-holder of authority contemplated under
Article 13(f) of Presidential Decree No. 442, as amended,
otherwise known as the Labor Code of the Philippines: Provided,
That any such non-licensee or non-holder who, in any manner,
offers or promises for a fee employment abroad to two or more
persons shall be deemed so engaged. It shall likewise include the
following acts, whether committed by any person, whether a non-
licensee, non-holder, licensee or holder of authority:
(a) To charge or accept directly or indirectly any amount greater
than that specified in the schedule of allowable fees prescribed by
the Secretary of Labor and Employment, or to make a worker pay
or acknowledge any amount greater than that actually received by
him as a loan or advance;
(b) To furnish or publish any false notice or information or
document in relation to recruitment or employment;
(c) To give any false notice, testimony, information or document
or commit any act of misrepresentation for the purpose of securing
a license or authority under the Labor Code, or for the purpose of
documenting hired workers with the POEA, which include the act of
reprocessing workers through a job order that pertains to
nonexistent work, work different from the actual overseas work, or
work with a different employer whether registered or not with the
POEA;
(d) To include or attempt to induce a worker already employed to
quit his employment in order to offer him another unless the
transfer is designed to liberate a worker from oppressive terms
and conditions of employment;
(e) To influence or attempt to influence any person or entity not
to employ any worker who has not applied for employment
through his agency or who has formed, joined or supported, or has
contacted or is supported by any union or workers organization;
(f) To engage in the recruitment or placement of workers in jobs
harmful to public health or morality or to the dignity of the
Republic of the Philippines;
(h) To fail to submit reports on the status of employment,
placement vacancies, remittance of foreign exchange earnings,
separation from jobs, departures and such other matters or
information as may be required by the Secretary of Labor and
Employment;
(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;
(j) For an officer or agent of a recruitment or placement agency to
become an officer or member of the Board of any corporation
engaged in travel agency or to be engaged directly or indirectly in
the management of travel agency;
(k) To withhold or deny travel documents from applicant workers
before departure for monetary or financial considerations, or for
any other reasons, other than those authorized under the Labor
Code and its implementing rules and regulations;
(l) Failure to actually deploy a contracted worker without valid
reason as determined by the Department of Labor and
Employment;
(m) Failure to reimburse expenses incurred by the worker in
connection with his documentation and processing for purposes of
deployment, in cases where the deployment does not actually take
place without the workers fault. Illegal recruitment when
committed by a syndicate or in large scale shall be considered an
offense involving economic sabotage; and
(n) To allow a non-Filipino citizen to head or manage a licensed
recruitment/manning agency.
Illegal recruitment is deemed committed by a syndicate if carried
out by a group of three (3) or more persons conspiring or
confederating with one another. It is deemed committed in large
scale if committed against three (3) or more persons individually
or as a group.
In addition to the acts enumerated above, it shall also be unlawful
for any person or entity to commit the following prohibited acts:
(1) Grant a loan to an overseas Filipino worker with interest
exceeding eight percent (8%) per annum, which will be used for
payment of legal and allowable placement fees and make the
migrant worker issue, either personally or through a guarantor or
accommodation party, postdated checks in relation to the said
loan;
(2) Impose a compulsory and exclusive arrangement whereby an
overseas Filipino worker is required to avail of a loan only from
specifically designated institutions, entities or persons;
(3) Refuse to condone or renegotiate a loan incurred by an
overseas Filipino worker after the latters employment contract has
been prematurely terminated through no fault of his or her own;
(4) Impose a compulsory and exclusive arrangement whereby an
overseas Filipino worker is required to undergo health
examinations only from specifically designated medical clinics,
institutions, entities or persons, except in the case of a seafarer
whose medical examination cost is shouldered by the
principal/shipowner;
(5) Impose a compulsory and exclusive arrangement whereby an
overseas Filipino worker is required to undergo training, seminar,
instruction or schooling of any kind only from specifically
designated institutions, entities or persons, except fpr
recommendatory trainings mandated by principals/shipowners
where the latter shoulder the cost of such trainings;
(6) For a suspended recruitment/manning agency to engage in
any kind of recruitment activity including the processing of pending
workers applications; and
(7) For a recruitment/manning agency or a foreign
principal/employer to pass on the overseas Filipino worker or
deduct from his or her salary the payment of the cost of insurance
fees, premium or other insurance related charges, as provided
under the compulsory workers insurance coverage.
The persons criminally liable for the above offenses are the
principals, accomplices and accessories. In case of juridical
persons, the officers having ownership, control, management or
direction of their business who are responsible for the commission
of the offense and the responsible employees/agents thereof shall
be liable.
In the filing of cases for illegal recruitment or any of the
prohibited acts under this section, the Secretary of Labor and
Employment, the POEA Administrator or their duly authorized
representatives, or any aggrieved person may initiate the
corresponding criminal action with the appropriate office. For this
purpose, the affidavits and testimonies of operatives or personnel
from the Department of Labor and Employment, POEA and other
law enforcement agencies who witnessed the acts constituting the
offense shall be sufficient to prosecute the accused.
In the prosecution of offenses punishable under this section, the
public prosecutors of the Department of Justice shall collaborate
with the anti-illegal recruitment branch of the POEA and, in certain
cases, allow the POEA lawyers to take the lead in the prosecution.
The POEA lawyers who act as prosecutors in such cases shall be
entitled to receive additional allowances as may be determined by
the POEA Administrator.
The filing of an offense punishable under this Act shall be without
prejudice to the filing of cases punishable under other existing
laws, rules or regulations.
CASES: ELEMENTS OF CRIME;
PEOPLE VS. SAGAYAGA, 423 SCRA 105 (04)
FACTS: Complainants, Elmer Janer, Eric Farol and Elmer Ramos
filed a case of Illegal Recruitment against the accused, Sagaya, So,
So Yan Han and Burgos who were the personnels of the Alvis
Placement Service Corporation.
They promised the complainants an overseas job (Factory Worker)
in Taiwan. Upon completion of the necessary requirements for
employment and the placement fee amounting to Php 70, 000 -
Php 75, 000, the accused failed to render the job that was
promised.
The complainant contested a refund but the accused failed to
render and reimburse the money which made them decide to file a
complaint of Illegal Recruitment to the court. The other accused
remained at large while Sagayaga, in her expense, pleaded not
guilty contesting that she had no participation in the operation of
the Alavis Placement Service Corporation and she was just part of
her job as a treasurer of the said company to receive the
placement fees of the complainants.
ISSUE: W/N the appellant Sagayaga will be held guilty of Illegal
Recruitment?
HELD:
YES, Wherefore, the appeal of Sagayaga was erred without merit
for she acted as a principal by direct participation on the offense of
Illegal Recruitment. She participated actively and consciously in
the illegal recruitment as manifested by the fact that she signed in
her capacity as the corporations Assistant General Manager.
The court also erred the provisions under Republic Act No. 8042
Section 6, which provides that illegal recruitment shall be
considered an offense involving economic sabotage if committed in
large scale, viz, committed agaiits three (3) or more persons
individually or as a group, the imposable penalty for which is life
imprisonment and a fine not less than Php 500, 000 nor more that
Php 1,000,000. In which, in this case, there were three (3) private
complainants, namely, Elmer Janer, Eric Farol and Elmer Ramos.
Thus, the trial court denied the appeal and convicted the appellant
of large scale illegal recruitment and sentenced her to suffer life
imprisonment.
PEOPLE vs. BAYTIC, 398 SCRA 18 (03)
CF SHARP MANAGEMENT, INC. vs. ESPANOL, 533 SCRA 424
LAPASARAN vs. PEOPLE, G.R. 179907, (09) 578 SCRA 658
CASES: LARGE SCALE;
PEOPLE vs. BULI E (SAME 2.06)
PEOPLE vs. DUJUA, 422 SCRA 169 (04)
FACTS: Complainant Beldon Caluten, went to the accuseds office,
the World Pack Travel and Tours. Upon Beldons inquiry, Ramon
Dujua said that he sends applicants abroad and gave Beldon an
application form. Beldon filled up the form and submitted it to
Ramon, who told him that he must pay a processing fee and make
an advance payment. Beldon was promised work as a factory
worker in Japan.
He advanced money for his processing fees and other expenses.
Despite such payments, the promise to send Beldon to work in
Japan remained unfulfilled, Beldon asked Ramon to give him back
his money. Beldon never recovered his payments, however,
prompting him and his fellow applicants to file a complaint at the
National Bureau of Investigation (NBI). Private complainants
Jaime Cabus, Roberto Perlas and Romulo Partos suffered the same
fate as Beldon. He also filed a compliaint against the accused.
The prosecution presented a Certification issued by Hermogenes C.
Mateo, Director II, Licensing Branch of the POEA, stating that
Ramon Dujua is not licensed or authorized by the POEA to recruit
workers abroad. Another Certification, of even date shows that
neither is the World Pack Travel and Tours authorized to recruit
workers abroad. The accused Ramon Dujua denied that he was a
recruiter. He claimed that he was a mere janitor, messenger and
errand boy of the World Pack Travel and Tours. The company is
owned by his aunt, Editha Singh, and managed by his mother Rose
Dujua. He admitted he did not have a license to recruit,but
acknowledged receiving the money given by complainants but
denied knowing what it was for. He said, however, that his mother
only asked him to count the money.
RTC convicted Dujua of illegal recruitment in large scale,
committed against Jaime Cabus, Beldon Caluten and Roberto
Perlas, and of two counts of estafa, committed against Cabus and
Perlas.
ISSUE: W/N the prosecution proved the guilt of the accused in
illegal recruitment in large scale by means of proof beyond
reasonable doubt?
HELD:
Yes. The essential elements of the crime of illegal recruitment in
large scale are: (1) the accused engages in acts of recruitment and
placement of workers defined under Article 13(b) or in any
prohibited activities under Art. 34 of the Labor Code; (2) the
accused has not complied with the guidelines issued by the
Secretary of Labor and Employment, particularly with respect to
the securing of a license or an authority to recruit and deploy
workers, either locally or overseas; and (3) the accused commits
the unlawful acts against three or more persons, individually or as
a group. All three elements have been established beyond
reasonable doubt.
First, the testimonies of the complaining witnesses satisfactorily
prove that appellant promised them employment and assured
them placement overseas. Complainants were firm and
categorical. All of them positively identified appellant as the
person who recruited them for employment abroad. Their
testimonies dovetail each other on material points. There is no
adequate showing that any of them was impelled by any ill motive
to testify against appellant.
Second, appellant did not have any license or authority to recruit
persons for overseas work, as shown by the Certification issued by
the POEA. Neither did his employer, the World Pack Travel and
Tours, possess such license or authority.
PEOPLE vs. REYES, 242 SCRA 264 (95)
CASES: REFERRALS;
PEOPLE vs MERIS, 329 SCRA 33 (00)
Labor And Social Legislation; Labor Code; Illegal Recruitment;
Recruitment and Placement; Defined. Art. 13, par. (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; 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."
Labor And Social Legislation; Labor Code; Illegal Recruitment;
Making Referrals to Agency Constitutes Recruitment. In People
v. Agustin, therein appellant argued that she could not be
convicted of illegal recruitment because in introducing the
complainants to the alleged recruiters, she merely acted "out of
the goodness of her heart." In resolving said case, the Court ruled:
The testimonial evidence hereon show that she indeed further
committed acts constitutive of illegal recruitment. All four
prosecution witnesses testified that it was Agustin whom they
initially approached regarding their plans of working overseas. It
was from her that they learned about the fees they had to pay, as
well as the papers that they had to submit. It was after they had
talked to her that they met the accused spouses who owned the
placement agency. As such, the Court concluded that appellant
was an employee of the Goce spouses, as she was actually making
referrals to the agency. She was, therefore, engaged in
recruitment activities.
Labor And Social Legislation; Labor Code; Illegal Recruitment;
Case at Bar. Although accused-appellant was not an employee
of the alleged illegal recruiter Julie Micua, the evidence show that
she was the one who approached complainants and prodded them
to seek employment abroad. It was through her that they met
Julia Micua. This is clearly an act of referral. Worse, accused-
appellant declared that she was capable of placing them in jobs
overseas. Suffice it to say that complainants' recruitment would
not have been consummated were it not for the direct participation
of accused-appellant in the recruitment process.
Labor And Social Legislation; Labor Code; Illegal Recruitment In
Large Scale; Elements. Illegal recruitment is conducted in a
large scale if perpetrated against three (3) or more persons
individually or as a group. This crime requires proof that the
accused: (1) engaged in the recruitment and placement of workers
defined under Article 13 or in any of the prohibited activities under
Article 34 of the Labor Code; (2) does not have a license or
authority to lawfully engage in the recruitment and placement of
workers; and (3) committed the infraction against three or more
persons, individually or as a group.
Labor And Social Legislation; Labor Code; Illegal Recruitment In
Large Scale; Case at Bar. All these three essential elements are
present in the case at bar. As earlier discussed, accused-appellant
recruited the six complainants. Further, the Philippine Overseas
Employment Administration certified that neither accused-
appellant nor Julie Micua is licensed to recruit workers for overseas
employment. Moreover, accused-appellant and her husband's acts
of receiving almost all the payments of the complainants and
issuing receipts signed by Julie Micua contradict her claim of being
a mere applicant. There were even times that accused-appellant
herself signed the receipts for the placement fees. Taken as a
whole, the evidence shows that accused-appellant conspired and
actively participated in the deceitful plan adopted by her co-
accused Julie Micua, Rico Cordova and her own husband, Renato
Meris, to hire without license or authority, gullible and naive
applicants for non-existent overseas jobs.
FACTS: Leonida Meris was convicted of six (6) counts of estafa and
one count of illegal recruitment for defrauding the six (6)
complainants, Meris townmates in Pampanga and relatives in large
scale in the amount of P30,000.00 each for five complainants and
one complainant for P20,000.00 for alleged overseas employment
which did not materialize.

Meris, who voluntarily appeared in court, pleaded not guilty to the
charges and actively participated in her defense. She interposed
the defense of denial claiming that she merely introduced
complainants to Julie Micua, her recruiter in Manila, with whom
complainants transacted with for their employment abroad upon
payment of placement fees denied having represented herself as
having the capacity to deploy workers abroad.
Evidence for the prosecution, however, disclosed, that
complainants would not have known Julie Micua were if not for
appellant who even accompanied them to Manila to see Julie
Micua. It was appellant and her husband who received almost all
the payments of complainants and who issued receipts signed by
Julie Micua. Certification from the POEA showed that Meris and
Julie Micua were not licensed to recruit workers for overseas
employment.
In this appeal, appellant assailed the lack of jurisdiction of the trial
court over his person because of the warrantless arrest and its
findings of fact.
ISSUE: W/N Meris committed the crimes large-scale illegal
recruitment and estafa?
HELD:
Yes, The prosecution undoubtedly proved that Meris, without
license or authority, engaged in recruitment and placement
activities. This was done in collaboration with Julie Micua, when
they promised complainants employment in Hong Kong. Art. 13,
par. (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; 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.
Although Meris was not an employee of the alleged illegal recruiter
Julie Micua, the evidence show that she was the one who
approached complainants and prodded them to seek employment
abroad. It was through her that they met Julia Micua. This is
clearly an act of referral. Worse, accused-appellant declared that
she was capable of placing them in jobs overseas. Suffice it to say
that complainants recruitment would not have been consummated
were it not for the direct participation of accused-appellant in the
recruitment process.
PEOPLE vs. FORTUNA, 395 SCRA 354 (03)
FACTS: Ganot, Magpayo, Andasan, De Leon, Nuque and Salvador
met Fortuna in a seminar on Tupperware products. Fortuna took
the occasion to converse with private complainants, along with
some of the attendees, offering job placements in Taiwan.
Convinced, they each gave her the amount of P5,400.00 to take
care of the processing fee for medical examination and other
expenses for securing their respective passports. Weeks went by
but the promised departure had not materialized.
Suspecting that something was not right, they finally demanded
that Fortuna return their money. Fortuna, in the meanwhile, went
into hiding.After having later learned that Fortuna had neither a
license nor an authority to undertake recruiting activities, Magpayo
filed a complaint which, in due time, ultimately resulted in the
indictment of Fortuna for illegal recruitment. During the
preliminary investigation, as well as later at the trial, Fortuna gave
assurance to have the money she had received from private
complainants returned to them but was unable to make good her
promise.
Dominga Fortuna, in her testimony, admitted having attended the
seminar where she then met Nuque,De Leon, Andasan,
Salvador,Magpayo and Ganot. During the seminar, she purchased
Tupperware products from private complainants after she was
convinced to be their sub-agent. Initially, she was able to remit
payments to private complainants on her sales but, when she
failed to make subsequent remittances, she was threatened with
criminal prosecution. In order to settle the matter, she executed
separate promissory notes. When she again failed to pay, private
complainants filed the case for illegal recruitment against her.
Originally, there were six private complainants but eventually only
three of them pursued the case because the others were finally
able to leave for abroad.
The RTC held Fortuna guilty of Illegal Recruitment in Large Scale.
Hence, the appeal to the SC.
ISSUE: W/N Fortuna is guilty of said crime?
HELD:
Yes, Fortuna is guilty of the said crime.
The Court finds the information which has charged appellant with
the offense of Illegal Recruitment in Large Scale, defined and
penalized in Republic Act No. 8042, to be sufficient in form and
substance. While the information cited Section 6, paragraph (m),
of Republic Act No. 8042, its factual averments, however, are
sufficient to constitute the crime of Illegal Recruitment in Large
Scale under the aforequoted provisions of the law. It is not the
specific designation of the offense in the information that controls
but it is the allegations therein contained directly apprising the
accused of the nature and cause of the accusation against him that
matter.
The requisites constituting the offense of Illegal Recruitment in
Large Scale have sufficiently been proven by the prosecution. First,
appellant, undeniably, has not been duly licensed to engage in
recruitment activities; second, she has engaged in illegal
recruitment activities, offering private complainants employment
abroad for a fee; and third, she has committed the questioned
illegal recruitment activities against three or more persons. Illegal
recruitment in large scale (when committed against three or more
persons), like illegal recruitment committed by a syndicate (when
carried out by a group of three or more persons), would be
deemed constitutive of economic sabotage carrying a penalty,
under section 7, paragraph (b), of Republic Act 8042, of life
imprisonment and a fine of not less than five hundred thousand
(P500,000.00) pesos nor more than one million (P1,000,000.00)
pesos. The sentence imposed by the trial court thus accords with
the penalty prescribed by law.
RODOLFO vs. PEOPLE, G.R. 146964, (06), 498 SCRA 377
FACTS: Promises or offers for a fee employment is sufficient to
warrant conviction for illegal recruitment.
Petitioner Rosa C. Rodolfo approached private complainants
Necitas Ferre and Narciso Corpus individually and invited them to
apply for overseas employment in Dubai. Rodolfo, being their
neighbor, Ferre and Corpus agreed and went to the formers office.
The office bore the business name Bayside Manpower Export
Specialist. In that office, Ferre gave P1,000.00 as processing fee
and another P4,000.00. Likewise, Corpus gave Rodolfo P7,000.00.
Rodolfo then told Ferre and Corpus that they were scheduled to
leave for Dubai. However, private complainants and all the other
applicants were not able to depart on the scheduled date as their
employer allegedly did not arrive. Thus, their departure was
rescheduled, but the result was the same. Suspecting that they
were being hoodwinked, Ferre and Corpus demanded of Rodolfo to
return their money. Except for the refund of P1,000.00 to Ferre,
Rodolfo was not able to return Ferres and Corpus money. Ferre,
Corpus and three others then filed a case for illegal recruitment in
large scale with the Regional Trial Court (RTC) against Rodolfo.
The RTC rendered judgement against Rodolfo but in imposing the
penalty, the RTC took note of the fact that while the information
reflected the commission of illegal recruitment in large scale, only
the complaint of two (Ferre and Corpus) of the five complainants
was proven. Rodolfo appealed to the Court of Appeals (CA). The
CA dismissed the petition but modified the penalty imposed by the
trial court. The CA also dismissed Rodolfos Motion for
Reconsideration.
ISSUE: W/N Rodolfo is guilty of illegal recruitment in large scale?
HELD:
The elements of the offense of illegal recruitment, which must
concur, are: (1) that the offender has no valid license or authority
required by law to lawfully engage in recruitment and placement of
workers; and (2) that the offender undertakes any activity within
the meaning of recruitment and placement under Article 13(b), or
any prohibited practices enumerated under Article 34 of the Labor
Code. If another element is present that the accused commits the
act against three or more persons, individually or as a group, it
becomes an illegal recruitment in a large scale.
Article 13 (b) of the Labor Code defines recruitment and
placement as [a]ny 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.
That the first element is present in the case at bar, there is no
doubt. Jose Valeriano, Senior Overseas Employment Officer of the
Philippine Overseas Employment Administration, testified that the
records of the POEA do not show that Rodolfo is authorized to
recruit workers for overseas employment. A Certification to that
effect was in fact issued by Hermogenes C. Mateo, Chief of the
Licensing Division of POEA.
The second element is doubtless also present. The act of referral,
which is included in recruitment, is the act of passing along or
forwarding of an applicant for employment after an initial interview
of a selected applicant for employment to a selected employer,
placement officer or bureau. Rodolfos admission that she brought
private complainants to the agency whose owner she knows and
her acceptance of fees including those for processing betrays her
guilt.
Rodolfo issued provisional receipts indicating that the amounts she
received from the private complainants were turned over to
Luzviminda Marcos and Florante Hinahon does not free her from
liability. For the act of recruitment may be for profit or not. It is
sufficient that the accused promises or offers for a fee
employment to warrant conviction for illegal recruitment.
Parenthetically, why Rodolfo accepted the payment of fees from
the private complainants when, in light of her claim that she
merely brought them to the agency, she could have advised them
to directly pay the same to the agency, she proferred no
explanation.
On Rodolfos reliance on Seoron, true, the Court held that
issuance of receipts for placement fees does not make a case for
illegal recruitment. But it went on to state that it is rather the
undertaking of recruitment activities without the necessary license
or authority that makes a case for illegal recruitment.
CASES: EMPLOYEES;
PEOPLE vs. CORPUZ, 412 SCRA 479 (03)
Nature: This is an appeal from the decision of the Regional Trial
Court of Manila finding appellant Elizabeth Corpuz guilty beyond
reasonable doubt of Illegal Recruitment in Large Scale constituting
economic sabotage under Sec. 6 (l) and (m) in relation to Sec.
7(b) of R.A. No. 8042, otherwise known as the Migrant Workers
and Overseas Filipinos Act of l995, and sentencing her to life
imprisonment and to pay a fine of P500,000.00.
FACTS: In June 1998, private complainants Belinda Cabantog,
Concepcion San Diego, Erlinda Pascual and Restian Surio went to
Alga-Moher International Placement Services Corporation at 1651
San Marcelino Street, Malate, Manila to apply for employment as
factory workers in Taiwan.
They were accompanied by a certain Aling Josie who introduced
them to the agencys President and General Manager Mrs. Evelyn
Gloria H. Reyes.
Mrs. Reyes asked them to accomplish the application forms.
Thereafter, they were told to return to the office with P10,000.00
each as processing fee.
On July 30, 1998, private complainants returned to the agency to
pay the processing fees.
Mrs. Reyes was not at the agency that time, but she called
accused CORPUZ (secretary) on the telephone to ask her to
receive the processing fees.
Thereafter, CORPUZ advised them to wait for the contracts to
arrive from the Taiwan employers.
Two months later, nothing happened to their applications.
Thus, private complainants decided to ask for the refund of their
money from CORPUZ who told them that the processing fees they
had paid were already remitted to Mrs. Reyes.
When they talked to Mrs. Reyes, she told them that the money she
received from CORPUZ was in payment of the latters debt.
On January 13, 1999, private complainants filed their complaint
with the National Bureau of Investigation which led to the arrest
and detention of CORPUZ.

CORPUZ contends that she is not liable for the foregoing illegal
recruitment activities considering that she was merely an
employee having no control over the recruitment business of the
Alga-Moher International Placement Services Corporation and that
she did not actually recruit the private complainants. Moreover,
she did not appropriate for her own use the processing fees she
received and she had no knowledge that the agencys license was
suspended by the POEA.
ISSUE/S:
1. W/N accused CORPUZ is criminally liable despite the fact that
she was merely an employee of the recruitment agency. NO.
2. WON accused Corpuz knowingly and intentionally participated in
the commission of the crime charged. NO.
HELD:
1. NO, From the testimonial evidence presented, it is clear that all
appellant did was receive the processing fees upon instruction of
Mrs. Reyes. She neither convinced the private complainants to
give their money nor promised them employment abroad.
Moreover, as stated in the last sentence of Section 6 of RA 8042,
the persons who may be held liable for illegal recruitment are the
principals, accomplices and accessories. In case of juridical
persons, the officers having control, management or direction of
their business shall be liable.
In the case at bar, we have carefully reviewed the records of the
case and found that the prosecution failed to establish that
CORPUZ, as secretary, had control, management or direction of
the recruitment agency.
Appellant started her employment with the agency on May 1, 1998
and she was tasked to hold and document employment contracts
from the foreign employers. She did not entertain applicants and
she had no discretion over how the business was managed. The
trial courts finding that CORPUZ, being the secretary of the
agency, had control over its business, is not only non sequitur but
has no evidentiary basis.
DOCTRINES used in the CASE
An employee of a company or corporation engaged in
illegal recruitment may be held liable as principal, together with his
employer, if it is shown that he actively and consciously
participated in illegal recruitment.
Settled is the rule that the existence of the corporate
entity does not shield from prosecution the corporate agent who
knowingly and intentionally causes the corporation to commit a
crime. The corporation obviously acts, and can act, only by and
through its human agents, and it is their conduct which the law
must deter. The employee or agent of a corporation engaged in
unlawful business naturally aids and abets in the carrying on of
such business and will be prosecuted as principal if, with
knowledge of the business, its purpose and effect, he consciously
contributes his efforts to its conduct and promotion, however slight
his contribution may be. The law of agency, as applied in civil
cases, has no application in criminal cases, and no man can escape
punishment when he participates in the commission of a crime
upon the ground that he simply acted as an agent of any party.
The culpability of the employee therefore hinges on his
knowledge of the offense and his active participation in its
commission. Where it is shown that the employee was merely
acting under the direction of his superiors and was unaware that
his acts constituted a crime, he may not be held criminally liable
for an act done for and in behalf of his employer.
2. NO, In the appreciation of evidence in criminal cases, it is a
basic tenet that the prosecution has the burden of proof in
establishing the guilt of the accused for the offense with which he
is charged.
In the case at bar, the prosecution failed to adduce sufficient
evidence to prove CORPUZ active participation in the illegal
recruitment activities of the agency.
As already established, CORPUZ received the processing fees of
the private complainants for and in behalf of Mrs. Reyes who
ordered her to receive the same. She neither gave an impression
that she had the ability to deploy them abroad nor convinced them
to part with their money. More importantly, she had no knowledge
that the license was suspended the day before she received the
money.

PEOPLE vs. SAGAYAGA, 423 SCRA 468 (04)
PEOPLE vs. GUTIERREZ, 422 SCRA 32 (04)
FACTS: With the promises of jobs abroad unfulfilled,
complainants decided to verify if the accused was a licensed
recruiter. Upon learning from the POEA that she was not so
licensed, they proceeded to the Philippine Anti-Crime Commission
(PACC) to execute their respective affidavits. The investigator
confirmed with the POEA that the accused was not licensed or
authorized to recruit overseas contract workers. The accused was
arrested on an entrapment operation.
In her defense, the accused claimed that as an employee of a
duly licensed agency who was tasked to recruit and offer job
placements abroad, she could not be held liable for illegal
recruitment. She admitted that she had no authority to recruit in
her personal capacity, but that her authority emanated from a
Special Power of Attorney (SPA) and a Certification issued by a
licensed agency. At the time complainants applied for overseas
employment, the accused was employed as a Marketing
Directress of Sarifudin Manpower and General Services, a duly
licensed agency with License No. OS-91-LB-61193-NL issued by
the Department of Labor and Employment.[58] A Special Power of
Attorney (SPA) from Sarifudin, dated May 1, 1994, states that she
was authorized. Accused Flor Gutierrez filed the present appeal
seeking the reversal of her conviction.
ISSUE: W/N the conviction of the accused should be upheld even
though she is licensed recruiter.
HELD:
Illegal recruitment is committed when two elements concur,
namely: (1) the offender has no valid license or authority required
by law to enable one to lawfully engage in recruitment and
placement of workers; and (2) he undertakes either any activity
within the meaning of recruitment and placement defined under
Art. 13(b), or any of the prohibited practices enumerated under
Art. 34 of the Labor Code. Art. 13(b) of the Labor Code defines
recruitment and placement as any act of canvassing, enlisting, Art. 38. Illegal recruitment.
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.
The crime becomes Illegal Recruitment in Large Scale when the
two elements concur, with the addition of a third element: the
recruiter committed the same against three or more persons,
individually or as a group. As found by the trial court, the
evidence on record, notably appellants own version, indicates that
she was running her own labor recruitment business.
Appellant cannot escape liability by claiming that she was not
aware that before working for her employer in the recruitment
agency, she should first be registered with the POEA. Illegal
recruitment in large scale is malum prohibitum, not malum in se.
Good faith is not a defense. As appellant committed illegal
recruitment against three or more persons, she is liable for Illegal
Recruitment in Large Scale.
2.08 ENFORCEMENT AND SANCTIONS ART. 36 39,
LABOR CODE; SEC. 7 R.A. 10022
Chapter III
MISCELLANEOUS PROVISIONS
Art. 36. Regulatory power. The Secretary of Labor shall have the
power to restrict and regulate the recruitment and placement
activities of all agencies within the coverage of this Title and is
hereby authorized to issue orders and promulgate rules and
regulations to carry out the objectives and implement the
provisions of this Title.
Art. 37. Visitorial Power. The Secretary of Labor or his duly
authorized representatives may, at any time, inspect the premises,
books of accounts and records of any person or entity covered by
this Title, require it to submit reports regularly on prescribed
forms, and act on violation of any provisions of this Title.
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 Department of
Labor and Employment or any law enforcement officer may initiate
complaints under this Article.
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 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.
The Secretary of Labor and Employment or his duly authorized
representatives shall have the power to cause the arrest and
detention of such non-licensee or non-holder of authority if after
investigation it is determined that his activities constitute a danger
to national security and public order or will lead to further
exploitation of job-seekers. The Secretary shall order the search of
the office or premises and seizure of documents, paraphernalia,
properties and other implements used in illegal recruitment
activities and the closure of companies, establishments and
entities found to be engaged in the recruitment of workers for
overseas employment, without having been licensed or authorized
to do so.
Art. 39. Penalties.
The penalty of life imprisonment and a fine of One Hundred
Thousand Pesos (P1000,000.00) shall be imposed if illegal
recruitment constitutes economic sabotage as defined herein;
Any licensee or holder of authority found violating or causing
another to violate any provision of this Title or its implementing
rules and regulations shall, upon conviction thereof, suffer the
penalty of imprisonment of not less than two years nor more than
five years or a fine of not less than P10,000 nor more than
P50,000, or both such imprisonment and fine, at the discretion of
the court;
Any person who is neither a licensee nor a holder of authority
under this Title found violating any provision thereof or its
implementing rules and regulations shall, upon conviction thereof,
suffer the penalty of imprisonment of not less than four years nor
more than eight years or a fine of not less than P20,000 nor more
than P100,000 or both such imprisonment and fine, at the
discretion of the court;
If the offender is a corporation, partnership, association or entity,
the penalty shall be imposed upon the officer or officers of the
corporation, partnership, association or entity responsible for
violation; and if such officer is an alien, he shall, in addition to the
penalties herein prescribed, be deported without further
proceedings;
In every case, conviction shall cause and carry the automatic
revocation of the license or authority and all the permits and
privileges granted to such person or entity under this Title, and the
forfeiture of the cash and surety bonds in favor of the Overseas
Employment Development Board or the National Seamen Board, as
the case may be, both of which are authorized to use the same
exclusively to promote their objectives.
Section 7. Section 10 of Republic Act No. 8042, as amended,
is hereby amended to read as follows:
SEC. 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 damage.
Consistent with this mandate, the NLRC shall endeavor to update
and keep abreast with the developments in the global services
industry.
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 de
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.
Such liabilities shall continue during the entire period or duration
of the employment contract and shall not be affected by any
substitution, amendment or modification made locally or in a
foreign country of the said contract.
Any compromise/amicable settlement or voluntary agreement on
money claims inclusive of damages under this section shall be paid
within thirty (30) days from approval of the settlement by the
appropriate authority.
In case of termination of overseas employment without just, valid
or authorized cause as defined by law or contract, or any
unauthorized deductions from the migrant workers salary, the
worker shall be entitled to the full reimbursement if his placement
fee and the deductions made 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.
In case of a final and executory judgement against a foreign
employer/principal, it shall be automatically disqualified, without
further proceedings, from participating in the Philippine Overseas
Employment Program and from recruiting and hiring Filipino
workers until and unless it fully satisfies the judgement award.
Noncompliance with the mandatory periods for resolutions of case
provided under this section shall subject the responsible officials to
any or all of the following penalties:
(a) 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;
(b) Suspension for not more than ninety (90) days; or
(c) 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
incured under other existing laws or rules and regulations as a
consequence of violating the provisions of this paragraph.
CASE: EXECUTIVE SECRETARY vs. CA, 429 SCRA 81 (04)
2.09 LIABILITY OF AGENCY;
CASE:
G & M (PHIL.) INC. vs. BATO MALAQUZ, 461 SCRA 111
(05)
FACTS: Abdul Aziz Abdullah Al Muhaimid Najad Car Maintenance
Association (Abdul Aziz) hired Willie Batomalaque as car painter
through a recruiter and agent petitioner G & M Phil., Inc. (G&M).
Their contract is for 2 years.
Batomalaque started working on March 10, 1992, but on June 7,
1994, he was repatriated. He then filed a complaint against G&M,
Abdul Aziz and Country Empire Insurance Company for non-
payment and underpayment of salaries and damages with the
Philippine Overseas Employment Administration (POEA). The Labor
Arbiter (LA) credited Batomalaques complaint for underpayment of
salaries during the first year of his contract but denied his other
claims, and ordered G&M and other defendants to pay
Batomalaque. On appeal, the National Labor Relations Commission
affirmed the decision of the LA.
ISSUE: W/N G&M has the obligation to prove that Batomalaque
was paid his salaries in full
HELD:
Specifically with respect to labor cases, the burden of proving
payment of monetary claims rests on the employer, the rationale
being that the pertinent personnel files, payrolls, records,
remittances and other similar documents which will show that
overtime, differentials, service incentive leave and other claims of
workers have been paid are not in the possession of the worker
but in the custody and absolute control of the employer.
Aside, however, from its bare allegation that its principal Abdul
Aziz had fully paid Batomalaques salaries, G&M did not present
any evidence, e.g., payroll or payslips, to support its defense of
payment. G&M thus failed to discharge the onus probandi. G&M, as
the recruiter and agent of Abdul Aziz, is thus solidarily liable with
the latter for the unpaid wages of Batomalaque.
On repeated occasions, the Court ruled that the debtor has the
burden of showing with legal certainty that the obligation has been
discharged by payment. To discharge means to extinguish an
obligation, and in contract law discharge occurs either when the
parties have performed their obligations in the contract, or when
an event the conduct of the parties, or the operation of law
releases the parties from performing. Thus, a party who alleges
that an obligation has been extinguished must prove facts or acts
giving rise to the extinction.
The fact of underpayment does not shift the burden of evidence to
Batomalaque because partial payment does not extinguish the
obligation. Only when the debtor introduces evidence that the
obligation has been extinguished does the burden of evidence shift
to the creditor who is then under a duty of producing evidence to
show why payment does not extinguish the obligation.
DATUMAN vs. FIRST COSMOPOLITAN MANPOWER AND
PROMOTION SERVICES INC., G.R. 156029, (08), 571 SCRA
41
2.10 MIGRANT WORKERS ACT R.A. 8042, SECS. 2,4,6 &
10;
SEC. 2. DECLARATION OF POLICIES--
(a) In the pursuit of an independent foreign policy and while
considering national sovereignty, territorial integrity, national
interest and the right to self-determination paramount in its
relations with other states, the State shall, at all times, uphold the
dignity of its citizens whether in country or overseas, in general,
and Filipino migrant workers, in particular.
(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.
(c) While recognizing the significant contribution of Filipino migrant
workers to the national economy through their foreign exchange
remittances, the State does not promote overseas employment as
a means to sustain economic growth and achieve national
development. The existence of the overseas employment program
rests solely on the assurance that the dignity and fundamental
human rights and freedoms of the Filipino citizens shall not, at any
time, be compromised or violated. The State, therefore, shall
continuously create local employment opportunities and promote
the equitable distribution of wealth and the benefits of
development.
(d) The State affirms the fundamental equality before the law of
women and men and the significant role of women in nation-
building. Recognizing the contribution of overseas migrant women
workers and their particular vulnerabilities, the State shall apply
gender sensitive criteria in the formulation and implementation of
policies and programs affecting migrant workers and the
composition of bodies tasked for the welfare of migrant workers.
(e) Free access to the courts and quasi-judicial bodies and
adequate legal assistance shall not be denied to any persons by
reason of poverty. In this regard, it is imperative that an effective
mechanism be instituted to ensure that the rights and interest of
distressed overseas Filipinos, in general, and Filipino migrant
workers, in particular, documented or undocumented, are
adequately protected and safeguarded.
(f) The right of Filipino migrant workers and all overseas Filipinos
to participate in the democratic decision-making processes of the
State and to be represented in institutions relevant to overseas
employment is recognized and guaranteed.
(g) The State recognizes that the ultimate protection to all
migrant workers is the possession of skills. Pursuant to this and as
soon as practicable, the government shall deploy and/or allow the
deployment only to skilled Filipino workers.
(h) Non-governmental organizations, duly recognized as
legitimate, are partners of the State in the protection of Filipino
migrant workers and in the promotion of their welfare, the State
shall cooperate with them in a spirit of trust and mutual respect.
(I) Government fees and other administrative costs of
recruitment, introduction, placement and assistance to migrant
workers shall be rendered free without prejudice to the provision
of Section 36 hereof.
Nonetheless, 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.
I. DEPLOYMENT
SEC. 4. Deployment of Migrant Workers - The State shall deploy
overseas Filipino workers only in countries where the rights of
Filipino migrant workers are protected. The government recognizes
any of the following as guarantee on the part of the receiving
country for the protection and the rights of overseas Filipino
workers:
(a) It has existing labor and social laws protecting the rights of
migrant workers;
(b) It is a signatory to multilateral conventions, declaration or
resolutions relating to the protection of migrant workers;
(c) It has concluded a bilateral agreement or arrangement with the
government protecting the rights of overseas Filipino workers; and
(d) It is taking positive, concrete measures to protect the rights of
migrant workers.
II. ILLEGAL RECRUITMENT
Sec. 6. DEFINITIONS. - For purposes of this Act, illegal recruitment
shall mean any act of canvassing, enlisting, contracting,
transporting, utilizing, hiring, procuring workers and includes
referring, contact services, promising or advertising for
employment abroad, whether for profit or not, when undertaken
by a non-license or non-holder of authority contemplated under
Article 13(f) of Presidential Decree No. 442, as amended,
otherwise known as the Labor Code of the Philippines. Provided,
that such non-license or non-holder, who, in any manner, offers or
promises for a fee employment abroad to two or more persons
shall be deemed so engaged. It shall likewise include the following
acts, whether committed by any persons, whether a non-licensee,
non-holder, licensee or holder of authority.
(a) To charge or accept directly or indirectly any amount greater
than the specified in the schedule of allowable fees prescribed by
the Secretary of Labor and Employment, or to make a worker pay
any amount greater than that actually received by him as a loan or
advance;
(b) To furnish or publish any false notice or information or
document in relation to recruitment or employment;
(c) To give any false notice, testimony, information or document or
commit any act of misrepresentation for the purpose of securing a
license or authority under the Labor Code;
(d) To induce or attempt to induce a worker already employed to
quit his employment in order to offer him another unless the
transfer is designed to liberate a worker from oppressive terms
and conditions of employment;
(e) To influence or attempt to influence any persons or entity not
to employ any worker who has not applied for employment
through his agency;
(f) To engage in the recruitment of placement of workers in jobs
harmful to public health or morality or to dignity of the Republic of
the Philippines;
(g) To obstruct or attempt to obstruct inspection by the Secretary
of Labor and Employment or by his duly authorized representative;
(h) To fail to submit reports on the status of employment,
placement vacancies, remittances of foreign exchange earnings,
separations from jobs, departures and such other matters or
information as may be required by the Secretary of Labor and
Employment;
(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;
(j) For an officer or agent of a recruitment or placement agency to
become an officer or member of the Board of any corporation
engaged in travel agency or to be engaged directly on indirectly in
the management of a travel agency;
(k) To withhold or deny travel documents from applicant workers
before departure for monetary or financial considerations other
than those authorized under the Labor Code and its implementing
rules and regulations;
(l) Failure to actually deploy without valid reasons as determined
by the Department of Labor and Employment; and
(m) Failure to reimburse expenses incurred by the workers in
connection with his documentation and processing for purposes of
deployment, in cases where the deployment does not actually take
place without the worker's fault. Illegal recruitment when
committed by a syndicate or in large scale shall be considered as
offense involving economic sabotage.
Illegal recruitment is deemed committed by a syndicate carried out
by a group of three (3) or more persons conspiring or
confederating with one another. It is deemed committed in large
scale if committed against three (3) or more persons individually
or as a group.
The persons criminally liable for the above offenses are the
principals, accomplices and accessories. In case of juridical
persons, the officers having control, management or direction of
their business shall be liable.
SEC. 10. MONEY CLAIMS. - Botwithstanding any provision of law to
the contrary, the Labor Arbiters of the National Labor Relations
Commission (NLRC) shall have the priginal and exclusive
jurisdiction to hear and decide, within ninety (90) calendar days
after 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 provisions 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.
Such liabilities shall continue during the entire period or
duration of the employment contract and shall not be affected by
any substitution, amendment or modification made locally or in a
foreign country of the said contract.
Any compromise/amicable settlement or voluntary
agreement on money claims inclusive of damages under this
section shall be paid within four (4) months from the approval of
the settlement by the appropriate authority.
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.

Non-compliance with the mandatory periods for
resolutions of cases provided under this section shall subject the
responsible officials to any or all of the following penalties:
(a) The salary of any such official who fails to render his
decision or resolutions within the prescribed period shall be, or
caused to be, withheld until the said official complies therewith;
(b) Suspension for not more than ninety (90) days; or
(c) Dismissal from the service with disqualifications 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.
CASES:
FLOURISH MARITIME SHIPPING vs. ALMANZOR, 548 SCRA
713 (08)
RATIO DECIDENDI: In case of unjust, invalid or unauthorized
termination of overseas employment, where the term of the
employment contract is at least one year or more, the worker shall
be entitled to a salary of three months for ever year of the
unexpired term, in accord with Section 10 of RA 8042.
FACTS:.Donato (respondent) was a fisherman illegally dismissed.
The monetary award, which was increased by the CA, is also
questioned by the petitioner.
Name of Petitioner: Flourish Maritime Shipping and Lolita Uy
Name of Respondent: Donato Almanzor (employee)
49-yo Donato entered into a 2-year employment contract with
petitioner Flourish Maritime Shipping as a fisherman, with a
monthly salary of NT15,8400 including free meals everyday.
However, when he was deployed to Taipei as part of a crew of the
fishing vessel FV Tsang Cheng 66, he found out that there were
only 5 crew members and that he had to buy food. Worse, the
master of the vessel, gave orders that Donato couldnt
understandwhich caused the master to be enraged and to hit
Donato. Lolita talked to the master of the vessel and when they
were docked at the airport, Donato was told that he was going to
eb repatriated.
When Donato arrived at the Philippines, he reported to Fluorish
Maritime and was declared fit for work. He was promised that the
was going to be redeployed, but it turned out that it was no longer
possible because he was 49 years oldallegedly no longer fit for
work.
Donato filed a complaint for illegal dismissal for the unexpired
portion of his employment contract, earned wages, moral and
exemplary damages, and attorneys fees.
Petitioners, on the other hand, said that Donato voluntarily
resigned, that he failed to comply with the machinery and
arbitration clause in the employment contract, and that he failed to
discharge the burden of proof of illegal dismissal.
Labor Arbiter Held that respondents were guilty of illegal
dismissal and entitled to six months total of salary
(NT95,040,000).
NLRC: Affirmed in toto the Labor Arbiters decision
CA: Upheld the decision and Labor Arbiter and the NLRC, and
increased the monetary award, due to the interpretation of Section
10 of RA8042.
Section 10, RA 8042: Money Claims. 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.
According to the NLRC and Labor Arbiter, Donato was entitled to
six months because the contract covered a two-year period and he
was dismissed only after 26 days of actual work. The CA, on the
other hand, said that he actually worked for 26 days, so the
unexpired portion of the contract was actually 1 yr, 11 months,
and 4 days. The CA held that he was entitled to full compensation
for 11 months and 4 days of the first year, with a total salary
equivalent of 14 months and 4 days.
ISSUES:
1. W/N respondent was illegally dismissed from employment
2. W/N the award of the Court of Appeals was correct
DECISION: The SC partially granted the petition in that the
monetary award should be lessened.
HELD:
1.
No, The LA and the NLRC correctly concluded, as affirmed by the
CA, that respondent was not actually redeployed for work, in
violation of their employment contract. The respondent failed give
conclusive evidence that respondent voluntarily resigned from
employment, that respondent was not physically fit to perform
work due to his old age and that the employment contract
provided a grievance machinery. Therefore, the termination of
respondents services was without valid cause. Further, the Court
is not a trier of facts, and factual issues have been resolved
already by the Labor Arbiter and NLRC, as affirmed by the CA.
2.
No, The correct interpretation of Section 10, RA 802 has already
been resolved in Marsaman Manning Agency, Inc. vs. NLRC. The
provision comes into play only when the employment contract has
a term of at least 1 year or more. In this case, the contract was for
two years, and the overseas contract worker actually worked for
only 26 days prior to the dismissal. Thus, the three months salary
rule applies.
PHIL. EMPLOY SERVICES, ETC. vs. PARAMIO, 427 SCRA 732
(04)
FACTS: Respondents Paramio, Navarra, Sarmiento, Guillermo,
Bautista and Curameng applied for employment in Taiwan witg Phil
Employ Services and Resource (PSRI), a domestic corp engaged in
the recruitment and deployment of ofws. They paid 19000 each as
placement fee and then they executed a one-year contract
employment with employer Taiwan Kuan Yuan Fiber with a
monthly salary of NTS$15,360. They were deployed but upon their
arrival, they discovered that their quarters had no beddings,
pillows and blankets. There was also a mandatory imposition of
overtime work exceeding 10 hrs without just overtime
compensation, and there were irregular deductions amounting to
400 NT for littering violation of only one employee.
They brought their problems to the attention of the management.
However, the manager of PSRI cautioned them not to air their
complaints and just forget about their plans. Disappointed, they
contacted OWWA but their requests were not favorably acted
upon. Respondent Navarra was repatriated without being informed
of the cause, and worse, he was escorted by the police to the
airport. The other respondents decided to go home, however, they
were informed that they should pay to their employer NT$30k,
otherwise they cannot go home. They failed to pay.
Then the management gave them two options, imprisonment or
signing separate agreement authorizing the employer to deduct
the 30k from their salaries and another 10k as bond. However,
they were still not repatriated. Conditions in the workplace
worsened. Respondent Paramio got ill as a result of the employers
failure to give breakfast and dinner the night before but he was
still ordered to go to work.
He was made to carry a container weighing 30kg. Due to his
condition, the container slipped from his hands and he injured his
thumb. The employer told him to return to the philippines, then
the Taiwanese Labor Dept intervened and told them that employer
had no right to repatriate him as the injury happened at the
workplace. When Paramio reported for work, after recuperating
from may 14 to june 30, he was given the second hardest job and
then later, he was assigned to the hardest, carry 200m of maong.
There was also a deduction in his salary.
As to the other respondents, they could no longer bear the
worsening working conditions. they decided to go home. Their
employer agreed to have them repatriated and to return their
respective bonds, but required them to write letters of resignation.
All of them were repatriated but they paid for their own plane
ticket.
When they returned, the six respondents filed complaints before
NLRC for illegal dismissal, refund of placement fees and plane
fares and litigation expenses.
The respondents argued that under Section 10, Republic Act No.
8042, otherwise known as the Migrant Workers and Overseas
Filipinos Act of 1995, PSRI was solidarily liable with Kuan Yuan for
their claims. Since they were repatriated prior to the expiration of
their respective contracts for no valid reason, PSRI was liable to
pay their salaries for the unexpired portion of their contracts.
The petitioner denied any liability on the respondents claims and
asserted that the latter were validly dismissed.
It averred that since complainant Paramio could no longer do his
job because of his thumb injury, the termination of his contract
was valid, and his dismissal proper. Anent respondent Navarras
claim, the petitioner PSRI ratiocinated that the termination of his
services was for a valid cause because of an altercation he had
with his supervisor. As for the claims of the other respondents, the
petitioner alleged that the respondents Guillermo, Bautista and
Curameng, Jr. voluntarily resigned.
On October 29, 1998, Labor Arbiter Felipe P. Pati rendered a
decision declaring that the dismissal of the respondents was illegal
and awarded the salaries due them for the unexpired portion of
their contracts, as well as the refund of their plane fare. NLRC
reversed. CA reinstated the decision of Labor Arbiter however it
reduced the award of refund of placement fee from 75k to 19k.
ISSUE: W/N the respondents were illegally dismissed?
HELD:
SC ruled that the respondents dismissal was not based on just,
valid and legal grounds. Preliminarily, it bears stressing that the
respondents who filed complaints for illegal dismissal against the
petitioner were overseas Filipino workers whose employment
contracts were approved by the Philippine and Overseas
Employment Administration (POEA) and were entered into and
perfected here in the Philippines. As such, the rule lex loci
contractus (the law of the place where the contract is made)
governs. Therefore, the Labor Code, its implementing rules and
regulations, and other laws affecting labor, apply in this case.
In order to effect a valid dismissal of an employee, the law
requires that there be just and valid cause as provided in Article
282 and that the employee was afforded an opportunity to be
heard and to defend himself. Applying the law and the rule, the
employer is burdened to prove that the employee was suffering
from a disease which prevented his continued employment, or that
the employees wound prevented his continued employment.
In the case at bar, the petitioner did not adduce in evidence a
certification from a public authority to the effect that respondent
Paramio had been heavily wounded. It also failed to show that by
reason of his thumb injury, he lost the ability to work. Respondent
Paramio was not, for a time, able to perform the backbreaking
tasks required by his manager.
However, despite his injury, he managed to perform the other
tasks assigned to him.
The claim of petitioner that respondent Navarra shouted invectives
against his supervisor was, likewise, unsubstantiated. The
petitioner did not even present an affidavit of the superior with
whom the respondent reportedly fought. As to the other
respondents, the petitioner alleges that they refused to go to work
and, in fact, voluntarily resigned. We do not agree. The records
reveal that the three respondents agreed to execute the foregoing
because they could no longer bear the working conditions in their
place of employment. there can be no other conclusion than that
the aforementioned respondents were illegally dismissed, and their
employment contract illegally terminated.
Under Section 10, paragraph 5 of Rep. Act No. 8042, respondents
Sarmiento, Bautista, Curameng and Guillermo are entitled to the
full reimbursement of their placement fees. Since each of the
respondents remitted only P19,000 to the petitioner, each of them
is entitled to P19,000, plus 12% interest per annum. According to
Section 10, paragraph 2 of Rep. Act No. 8042, the agency which
deployed the employees whose employment contract were
adjudged illegally terminated, shall be jointly and solidarily liable
with the principal for the money claims awarded to the aforesaid
employees. Consequently, the petitioner, as the agency of the
respondents, is solidarily liable with its principal Kuan Yuan for the
payment of the salaries due to the respondents corresponding to
the unexpired portion of their contract, as well as the
reimbursement of their placement fees.
PETITION OF PSRI DENIED. PAY RESPONDENTS THEIR
RESPECTIVE SALARIES CORRESPONDING TO THE UNEXPIRED
PORTION OF RESPECTIVE CONTRACTS. 4,300 FOR EXPENSE
INCURRED AND RETURN PLACEMENT FEE.
CHAVEZ vs. BONTO PEREZ, 242 SCRA 73 (95)
FACTS: Labor Standards Standard Employment Contract for
Entertainers Laches
Chavez is a dancer who was contracted by Centrum Placement &
Promotions Corporation to perform in Japan for 6 months. The
contract was for $1.5k a month, which was approved by POEA.
After the approval of said contract, Chavez entered into a side
contract reducing her salary with her Japanese employer through
her local manager-agency (Jaz Talents Promotion). The salary was
reduced to $500 and $750 was to go to Jaz Talents. In February
1991 (two years after the expiration of her contract), Chavez sued
Centrum Placement and Jaz Talents for underpayment of wages
before the POEA.
The POEA ruled against her. POEA stated that the side agreement
entered into by Chavez with her Japanese employer superseded
the Standard Employment Contract; that POEA had no knowledge
of such side agreement being entered into; that Chavez is barred
by laches for sleeping on her right for two years.
ISSUE: W/N Chavez is entitled to relief?
HELD:
Yes, The SC ruled that the managerial commission agreement
executed by Chavez to authorize her Japanese Employer to deduct
her salary is void because it is against our existing laws, morals
and public policy. It cannot supersede the standard employment
contract approved by the POEA with the following stipulation
appended thereto:
It is understood that the terms and conditions stated in this
Employment Contract are in conformance with the Standard
Employment Contract for Entertainers prescribed by the POEA
under Memorandum Circular No. 2, Series of 1986. Any alterations
or changes made in any part of this contract without prior approval
by the POEA shall be null and void;
The side agreement which reduced Chavezs basic wage is null and
void for violating the POEAs minimum employment standards, and
for not having been approved by the POEA. Here, both Centrum
Placement and Jaz Talents are solidarily liable.
Laches does not apply in the case at bar. In this case, Chavez filed
her claim well within the three-year prescriptive period for the
filing of money claims set forth in Article 291 of the Labor Code.
For this reason, laches is not applicable.
PLACEWELL INTL. SERVICES CORP. vs. CAMOTE, 492 SCRA
761 (06)
FACTS: Petitioner Placewell International Services Corporation
(PISC) deployed respondent Ireneo B. Camote to work as building
carpenter for SAAD Trading and Contracting Co. (SAAD) at the
Kingdom of Saudi Arabia (KSA) for a contract duration of two
years, with a corresponding salary of US$370.00 per month. At the
job site, respondent was allegedly found incompetent by his
foreign employer; thus the latter decided to terminate his services.
However, respondent pleaded for his retention and consented to
accept a lower salary of SR 800.00 per month. Thus, SAAD
retained respondent until his return to the Philippines two years
after.
On November 27, 2001, respondent filed a sworn Complaint for
monetary claims against petitioner alleging that when he arrived at
the job site, he and his fellow Filipino workers were required to
sign another employment contract written in Arabic under the
constraints of losing their jobs if they refused; that for the entire
duration of the new contract, he received only SR 590.00 per
month; that he was not given his overtime pay despite rendering
nine hours of work everyday; that he and his co-workers sought
assistance from the Philippine Embassy but they did not succeed in
pursuing their cause of action because of difficulties in
communication.

ISSUE: W/N there is estoppel by laches?
HELD:
R.A. No. 8042 explicitly prohibits the substitution or alteration to
the prejudice of the worker, of employment contracts already
approved and verified by the Department of Labor and
Employment (DOLE) 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 DOLE. The subsequently executed side
agreement of an overseas contract worker with her foreign
employer which reduced her salary below the amount approved by
the POEA is void because it is against our existing laws, morals
and public policy. The said side agreement cannot supersede her
standard employment contract approved by the POEA.
Petitioners contention that respondent is guilty of laches is without
basis. Laches has been defined as the failure of or neglect for an
unreasonable and unexplained length of time to do that which by
exercising due diligence, could or should have been done earlier,
or to assert a right within reasonable time, warranting a
presumption that the party entitled thereto has either abandoned
it or declined to assert it. Thus, the doctrine of laches presumes
that the party guilty of negligence had the opportunity to do what
should have been done, but failed to do so. Conversely, if the said
party did not have the occasion to assert the right, then, he can
not be adjudged guilty of laches. Laches is not concerned with the
mere lapse of time; rather, the party must have been afforded an
opportunity to pursue his claim in order that the delay may
sufficiently constitute laches.
In the instant case, respondent filed his claim within the three-
year prescriptive period for the filing of money claims set forth in
Article 291 of the Labor Code from the time the cause of action
accrued. Thus, we find that the doctrine of laches finds no
application in this case.
PNB vs. CABANSAG, 460 SCRA 514 (05)
FACTS: Florence Cabansag went to Singapore as a tourist. While
she was there, she looked for a job and eventually applied with the
Singapore Branch of the Philippine National Bank. PNB is a private
banking corporation organized and existing under Philippine laws.
She was eventually employed and was issued an employment
pass. In her job offer, it was stated, among others, that she was to
be put on probation for 3 months and termination of her
employment may be made by either party after 1 day notice while
on probation, and 1 month notice or 1 month pay in lieu of notice
upon confirmation. She accepted the terms and was issued an OEC
by the POEA. She was commended for her good work. However,
she was informed by Ruben Tobias, the bank president, that she
would have to resign in line with some cost cutting and
realignment measures of the company. She refused but was
informed by Tobias that if she does not resign, he will terminate
her instead.
ISSUES:
1. W/N the arbitration branch of the NLRC has jurisdiction
2. W/N the arbitration of the NLRC in the NCR is the proper venue
3. W/N Cabansag was illegally dismissed
HELD:
Labor arbiters have original and exclusive jurisdiction over claims
arising from employer-employee relations including termination
disputes involving all workers, including OFWs. Here, Cabansag
applied for and secured an OEC from the POEA through the
Philippine Embassy. The OEC authorized her working status in a
foreign country and entitled her to all benefits and processes under
our statutes. Although she may been a direct hire at the
commencement of her employment, she became an OFW who was
covered by Philippine labor laws and policies upon certification by
the POEA. When she was illegally terminated, she already
possessed the POEA employment certificate.
A migrant worker refers to a person who is to be engaged, is
engaged or has been engaged in a remunerated activity in a state
of which he or she is not a legal resident; to be used
interchangeably with overseas Filipino worker. Here, Cabansag
was a Filipino, not a legal resident of Singapore, and employed by
petitioner in its branch office in Singapore. She is clearly an
OFW/migrant worker. Thus, she has the option where to file her
Complaint for illegal dismissal. She can either file at the Regional
Arbitration Branch where she resides or the RAB where the
employer is situated. Thus, in filing her Complaint before the RAB
office in Quezon City, she has made a valid choice of proper venue.
The appellate court was correct in holding that respondent was
already a regular employee at the time of her dismissal, because
her three-month probationary period of employment had already
ended. This ruling is in accordance with Article 281 of the Labor
Code: An employee who is allowed to work after a probationary
period shall be considered a regular employee. Indeed, petitioner
recognized respondent as such at the time it dismissed her, by
giving her one months salary in lieu of a one-month notice,
consistent with provision No. 6 of her employment Contract.
SIM vs. NLRC, 543 SCRA 515 (07)
FACTS: Corazon Sim filed a case for illegal dismissal with the
Labor Arbiter, alleging that she was initially employed by Equitable
PCI-Bank in 1990 as Italian Remittance Marketing Consultant to
the Frankfurt Representative Office.
Eventually, she was promoted to Manager position, until
September 1999, when she received a letter from Remegio David -
- the Senior Officer, European Head of PCIBank, and Managing
Director of PCIB- Europe -- informing her that she was being
dismissed due to loss of trust and confidence based on alleged
mismanagement and misappropriation of funds.
Equitable PCI Bank denied any employer-employee relationship
between them, and sought the dismissal of the complaint.
The Labor Arbiter rendered its Decision dismissing the case for
want of jurisdiction and/or lack of merit. According to the Labor
Arbiter: It should be stressed at this juncture that the labor
relations system in the Philippines has no extra-territorial
jurisdiction. It is limited to the relationship between labor and
capital within the Philippines.
Sim was accused of withdrawing P3,000,000.00 lire from the
bank's account.
Sim does not deny withdrawing the said amount. What she
submits is that she used said amount for the Radio Pilipinas sa
Roma radio program of the company.
Equitable PCI-Bank countered that at the time Sim withdrew said
amount, the radio program was already off the air. She is a
managerial employee. Thus, loss of trust and confidence is a valid
ground for her dismissal.
ISSUE/S:
1. W/N the Labor Relations System of the Philippines has
extraterritorial jurisdiction
2. W/N the National Labor Relations Commission has jurisdiction
over overseas Filipino workers
HELD:
Yes to both issues, The Labor relations system in the Philippines
has extra-territorial jurisdiction and the Labor Arbiters of the
National Labor Relations Commission (NLRC) have jurisdiction to
hear and decide, within 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.
Article 217 of the Labor Code provides for the jurisdiction of the
Labor Arbiter and the National Labor Relations Commission, viz.:
ART. 217. Jurisdiction of Labor Arbiters and the Commission.
(a) Except as otherwise provided under this Code the Labor
Arbiters shall have original and exclusive jurisdiction to hear and
decide, within thirty (30) calendar days after the submission of the
case by the parties for decision without extension, even in the
absence of stenographic notes, the following cases involving all
workers, whether agricultural or non-agricultural:
1. Unfair labor practice cases;
2. Termination disputes;
3. If accompanied with a claim for reinstatement, those
cases that workers may file involving wage, rates of pay,
hours of work and other terms and conditions of
employment;
4. Claims for actual, moral, exemplary and other forms of
damages arising from the employer-employee relations;
 5. Cases arising from any violation of Article 264 of this
Code, including questions involving the legality of strikes
and lockouts; and
6. Except claims for Employees Compensation, Social
Security, Medicare and maternity benefits, all other claims,
arising from employer-employee relations, including those
of persons in domestic or household service, involving an
amount of exceeding five thousand pesos (P5,000.00)
regardless of whether accompanied with a claim for
reinstatement.
(b) The commission shall have exclusive appellate jurisdiction over
all cases decided by Labor Arbiters.
Moreover, Section 10 of Republic Act (R.A.) No. 8042, or the
Migrant Workers and Overseas Filipinos Act of 1995, provides:
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.
Also, Section 62 of the Omnibus Rules and Regulations
Implementing R.A. No. 8042 provides that the Labor Arbiters of
the NLRC shall have the original and exclusive jurisdiction to hear
and decide all claims arising out of 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, subject to the rules and procedures
of the NLRC. In Philippine National Bank v. Cabansag, the Court
pronounced:
Whether employed locally or overseas, all Filipino workers enjoy
the protective mantle of Philippine labor and social legislation,
contract stipulations to the contrary notwithstanding. This
pronouncement is in keeping with the basic public policy of the
State to afford protection to labor, promote full employment,
ensure equal work opportunities regardless of sex, race or creed,
and regulate the relations between workers and employers. For the
State assures the basic rights of all workers to self-organization,
collective bargaining, security of tenure, and just and humane
conditions of work [Article 3 of the Labor Code of the Philippines;
See also Section 18, Article II and Section 3, Article XIII, 1987
Constitution]. This ruling is likewise rendered imperative by Article
17 of the Civil Code which states that laws "which have for their
object public order, public policy and good customs shall not be
rendered ineffective by laws or judgments promulgated, or by
determination or conventions agreed upon in a foreign country."
DISPOSITIVE: Petition was denied due to procedural issues. The
CA did not commit any error in dismissing the petition before it for
failure to file a prior motion for reconsideration with the NLRC. The
Labor Arbiter and the NLRC's factual findings as regards the
validity of petitioner's dismissal are accorded great weight and
respect and even finality when the same are supported by
substantial evidence.
DOCTRINE: Labor arbiters have original and exclusive jurisdiction
over claims arising from employer-employee relations, including
termination disputes involving all workers, among whom are
overseas Filipino workers.
SERRANO vs. GALLANT MARITIME SERVICES, INC. G.R.
167641 (09), 582 SCRA 254
By way of Petition for Review under Rule 45 of the Rules of Court,
petitioner assails the Decision and Resolution of the Court of
Appeals (CA).
FACTS: 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
Basic monthly salary US$1,400.00
Hours of work 48.0 hours per week
Overtime US$700.00 per month
Vacation leave with pay 7.00 days per month
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.
Respondents did not deliver on their promise to make petitioner
Chief Officer. Hence, petitioner refused to stay on as Second
Officer and was repatriated to the Philippines on May 26, 1998.
Petitioners employment contract was for a period of 12 months or
from 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 against
respondents for constructive dismissal and for payment of his
money claims in the total amount of US$26,442.73.
The LA rendered a Decision dated July 15, 1999, declaring the
dismissal of petitioner illegal and awarding him monetary benefits,
to wit:
WHEREFORE, premises considered, judgment is hereby rendered
declaring that the dismissal of the complainant (petitioner) by the
respondents in the above-entitled case was illegal and the
respondents are hereby ordered to pay the complainant
[petitioner], jointly and severally, in Philippine Currency, based on
the rate of exchange prevailing at the time of payment, the
amount of EIGHT THOUSAND SEVEN HUNDRED SEVENTY U.S.
DOLLARS (US $8,770.00), representing the complainants salary
for three (3) months of the unexpired portion of the aforesaid
contract of employment.
The claims of the complainant for moral and exemplary damages
are hereby DISMISSED for lack of merit.
In awarding petitioner a lump-sum salary of US$8,770.00, the LA
based his computation on the salary period of three months only
rather than the entire unexpired portion of nine months and 23
days of petitioners employment contract applying the subject
clause. However, the LA applied the salary rate of US$2,590.00,
consisting of petitioners [b]asic salary, US$1,400.00/month +
US$700.00/month, fixed overtime pay, + US$490.00/month,
vacation leave pay = US$2,590.00/compensation per month.
Respondents appealed to the National Labor Relations Commission
(NLRC) to question the finding of the LA that petitioner was
illegally dismissed.
The NLRC modified the LA Decision and corrected the LAs
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.
Petitioner filed a Motion for Partial Reconsideration, but this time
he questioned the constitutionality of the subject clause. The NLRC
denied the motion.
Petitioner filed a Petition for Certiorari with the CA, reiterating the
constitutional challenge against the subject clause. After initially
dismissing the petition on a technicality, the CA eventually gave
due course to it, as directed by this Court in its Resolution which
granted the petition for certiorari,filed by petitioner.
The CA affirmed the NLRC ruling on the reduction of the applicable
salary rate; however, the CA skirted the constitutional issue raised
by petitioner.
His Motion for Reconsideration having been denied by the CA,
petitioner brings his cause to this Court on the following grounds:
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.

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 petitioners award the overtime pay and vacation
pay provided in his contract since under the contract they form
part of his salary.
The Court now takes up the full merit of the petition mindful of the
extreme importance of the constitutional question raised therein.
ISSUES:
W/N Section 10 (par 5) of RA 8042 is unconstitutional
Proper computation of the Lump-sum salary to be awarded to
petitioner by reason of his illegal dismissal
Whether the overtime and leave pay should form part of the salary
basis in the computation of his monetary award
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.
Applying the subject clause, the NLRC and the CA computed the
lump-sum salary of petitioner at the monthly rate of US$1,400.00
covering the period of three months out of the unexpired portion of
nine months and 23 days of his employment contract or a total of
US$4,200.00.
Impugning the constitutionality of the subject clause, petitioner
contends that, in addition to the US$4,200.00 awarded by the
NLRC and the CA, he is entitled to US$21,182.23 more or a total of
US$25,382.23, equivalent to his salaries for the entire nine
months and 23 days left of his employment contract, computed at
the monthly rate of US$2,590.00.31
Arguments of the Petitioner
For Antonio Serrano (petitioner), a Filipino seafarer, the last clause
in the 5th paragraph of Section 10, Republic Act (R.A.) No. 8042,
violates the OFWs constitutional rights in that it impairs the terms
of their contract, deprives them of equal protection and denies
them due process.
The Arguments of Respondents
Respondents contend that the constitutional issue should not be
entertained, for this was belatedly interposed by petitioner in his
appeal before the CA, and not at the earliest opportunity, which
was when he filed an appeal before the NLRC.40
The Arguments of the Solicitor General
The Solicitor General (OSG)41 points out that as R.A. No. 8042
took effect on July 15, 1995, its provisions could not have impaired
petitioners 1998 employment contract. Rather, R.A. No. 8042
having preceded petitioners contract, the provisions thereof are
deemed part of the minimum terms of petitioners employment,
especially on the matter of money claims, as this was not
stipulated upon by the parties.
The Courts Ruling:
First Issue
Does the subject clause violate Section 1, Article III of the
Constitution, and Section 18, Article II and Section 3, Article XIII
on Labor as protected sector?
The answer is in the affirmative.
Section 1, Article III of the Constitution guarantees:
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 law.
Section 18, Article II and Section 3, Article XIII accord all
members of the labor sector, without distinction as to place of
deployment, full protection of their rights and welfare.
To Filipino workers, the rights guaranteed under the foregoing
constitutional provisions translate to economic security and parity:
all monetary benefits should be equally enjoyed by workers of
similar category, while all monetary obligations should be borne by
them in equal degree; none should be denied the protection of the
laws which is enjoyed by, or spared the burden imposed on, others
in like circumstances.
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
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 petitioners right to equal protection, but
also her right to substantive due process under Section 1, Article
III of the Constitution.
Second Issue
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 subjecting them to the
peculiar disadvantage of having their monetary awards limited to
their salaries for 3 months or for the unexpired portion thereof,
whichever is less, but all the while sparing the other category from
such prejudice, simply because the latters unexpired contracts fall
short of one year.
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.
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 petitioners right to equal protection, but
also her right to substantive due process under Section 1, 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.
Third Issue
Petitioner contends that his overtime and leave pay should form
part of the salary basis in the computation of his monetary award,
because these are fixed benefits that have been stipulated into his
contract.
Petitioner is mistaken.
The word salaries in Section 10(5) does not include overtime and
leave pay. For seafarers like petitioner, DOLE Department Order
No. 33, series 1996, provides a Standard Employment Contract of
Seafarers, in which salary is understood as the basic wage,
exclusive of overtime, leave pay and other bonuses; whereas
overtime pay is compensation for all work performed in excess of
the regular eight hours, and holiday pay is compensation for any
work performed on designated rest days and holidays.
In the same vein, the claim for the days leave pay for the
unexpired portion 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 DECLARED UNCONSTITUTIONAL; 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.
2.11 PRE TERMINATION;
FLOURISH MARITIME SHIPPING vs. ALMANZOR, 548 SCRA
713 (08)
RATIO DECIDENDI: In case of unjust, invalid or unauthorized
termination of overseas employment, where the term of the
employment contract is at least one year or more, the worker shall
be entitled to a salary of three months for ever year of the
unexpired term, in accord with Section 10 of RA 8042.
FACTS:.Donato (respondent) was a fisherman illegally dismissed.
The monetary award, which was increased by the CA, is also
questioned by the petitioner.
Name of Petitioner: Flourish Maritime Shipping and Lolita Uy
Name of Respondent: Donato Almanzor (employee)
49-yo Donato entered into a 2-year employment contract with
petitioner Flourish Maritime Shipping as a fisherman, with a
monthly salary of NT15,8400 including free meals everyday.
However, when he was deployed to Taipei as part of a crew of the
fishing vessel FV Tsang Cheng 66, he found out that there were
only 5 crew members and that he had to buy food. Worse, the
master of the vessel, gave orders that Donato couldnt
understandwhich caused the master to be enraged and to hit
Donato. Lolita talked to the master of the vessel and when they
were docked at the airport, Donato was told that he was going to
eb repatriated.
When Donato arrived at the Philippines, he reported to Fluorish
Maritime and was declared fit for work. He was promised that the
was going to be redeployed, but it turned out that it was no longer
possible because he was 49 years oldallegedly no longer fit for
work.
Donato filed a complaint for illegal dismissal for the unexpired
portion of his employment contract, earned wages, moral and
exemplary damages, and attorneys fees.
Petitioners, on the other hand, said that Donato voluntarily
resigned, that he failed to comply with the machinery and
arbitration clause in the employment contract, and that he failed to
discharge the burden of proof of illegal dismissal.
Labor Arbiter Held that respondents were guilty of illegal
dismissal and entitled to six months total of salary
(NT95,040,000).
NLRC: Affirmed in toto the Labor Arbiters decision
CA: Upheld the decision and Labor Arbiter and the NLRC, and
increased the monetary award, due to the interpretation of Section
10 of RA8042.
Section 10, RA 8042: Money Claims. 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.
According to the NLRC and Labor Arbiter, Donato was entitled to
six months because the contract covered a two-year period and he
was dismissed only after 26 days of actual work. The CA, on the
other hand, said that he actually worked for 26 days, so the
unexpired portion of the contract was actually 1 yr, 11 months,
and 4 days. The CA held that he was entitled to full compensation
for 11 months and 4 days of the first year, with a total salary
equivalent of 14 months and 4 days.
ISSUES:
1. W/N respondent was illegally dismissed from employment
2. W/N the award of the Court of Appeals was correct
DECISION: The SC partially granted the petition in that the
monetary award should be lessened.

HELD:
1.
No, The LA and the NLRC correctly concluded, as affirmed by the
CA, that respondent was not actually redeployed for work, in
violation of their employment contract. The respondent failed give
conclusive evidence that respondent voluntarily resigned from
employment, that respondent was not physically fit to perform
work due to his old age and that the employment contract
provided a grievance machinery. Therefore, the termination of
respondents services was without valid cause. Further, the Court
is not a trier of facts, and factual issues have been resolved
already by the Labor Arbiter and NLRC, as affirmed by the CA.
2.
No, The correct interpretation of Section 10, RA 802 has already
been resolved in Marsaman Manning Agency, Inc. vs. NLRC. The
provision comes into play only when the employment contract has
a term of at least 1 year or more. In this case, the contract was for
two years, and the overseas contract worker actually worked for
only 26 days prior to the dismissal. Thus, the three months salary
rule applies.