LABOR STANDARDS
Construction in favor of labor
I. GENERAL PRINCIPLES
Labor Code – principal labor law of the country. But
even now, there are Labor Laws that are not found in
the Labor Code.
Social Legislation – the promotion of the welfare of
all the people, the adoption by the government of
measures calculated to insure economic stability of
all the component elements of society thru the
maintenance of proper economic and social
equilibrium in the interrelations of the members of the
community, constitutionally, thru the adoption of
measures legally justifiable, or extra-constitutionally,
thru the exercise of powers underlying the existence
of all governments, on the time honored principle of
salus populi esta suprema lex (Calalang v. Williams,
02 December 1940)
Social Justice – humanization of laws and the
equalization of social and economic forces by the
State so that justice in its rational and objective
secular conception may at least be approximated
Labor Standards – sets out the minimum terms,
conditions, and benefits of employment that
employers must provide or comply with and to which
employees are entitled as a matter of legal right
Labor Relations – defines the status, rights and
duties, as well as the institutional mechanisms that
govern the individual and collective interactions
between employers, employees and their
representatives
Art. 3. Declaration of basic policy
• Afford protection to labor
• Promote full employment
• Ensure equal work opportunities regardless of
sex, race, or creed
• Regulate the relations between workers and
employers
• Assure worker’s rights to self-organization,
collective bargaining, security of tenure, and just
and humane conditions of work
Seven basic rights of workers guaranteed by the
Constitution:
1. right to organize
2. to conduct collective bargaining or negotiation
with management
3. to engage in peaceful concerted activities,
including strike in accordance with law
4. to enjoy security of tenure
5. to work under humane conditions
6. to receive a living wage
7. to participate in policy and decision-making
processes affecting their rights and benefits as
may be provided by law.
Art. 4.
• When the interest of labor and capital collide, the
heavier influence of capital should be
counterbalanced with the sympathy and
compassion of law for the less privileged
workers. But protection to labor does not mean
oppression or destruction of capital. The
employer’s act will be sustained when it is in the
right. [Eastern Shipping Lines v. POEA, 166
SCRA 523 (1998)]
• Court decisions adopt a liberal approach that
favors the exercise of labor rights. The mandate
is simply to resolve doubt in favor of labor. If
there is no doubt in implementing and interpreting
the law, labor will enjoy no built-in advantage and
the law will have to be applied as it is.
• When the subject matter is covered by the Labor
Code, doubts which involve implementation and
interpretation of labor laws should be resolved in
favor of labor, even if the question involves Rules
of Evidence.
Management Rights / Prerogative – except as
limited by special laws, an employer is free to
regulate, according to his own discretion and
judgment, all aspects of employment, including hiring,
work assignments, working methods, time, place and
manner of work, tools to be used, processes to be
followed, supervision of workers, working regulations,
transfer of employees, work supervision, lay-off of
workers and the discipline, dismissal and recall of
workers
• Capitol Medical Center, Inc. v. Meris (16
September 2005)
As long as the company’s exercise of the same is
exercised in good faith for the advancement of the
employer’s interest, and not for the purpose of defeating
or circumventing the rights of the employees under
special laws or valid agreements, the courts will uphold
them.
• Philippine Blooming Mills Employees Association
v. Philippine Blooming Mills, GR No. L-31195, 05
June 1973
The primacy of human rights – freedom ofexpression, of
peaceful assembly and of petition for redress of
grievances over property rights has been sustained.
• PAL v. NLRC, GR No. 85985 (1993)
The exercise of management prerogatives is not
unlimited. A line must be drawn between management
prerogatives regarding business operations per se and
those which affect the rights of employees. In treating
the latter, management should see to it that its
employees are at least properly informed of its decisions
and modes of action.
Art. 5. Rules and regulations
Department of Labor and Employment (DOLE)
- Lead agency in enforcing labor laws and it
possesses rule-making power in the enforcement
of the Code
• But a rule or regulation that exceeds the
Department’s rule-making authority is void.

Art. 6. Applicability of Labor Code

Applies alike to all workers, except as otherwise
provided by law, whether agricultural or nonagricultural.
Applies to a government corporation incorporated
under the Corporation CodeWork Relationship
 CHAPTER II. Concept of Employer-Employee
Relationship
1. Statutory definition of Employer and Employee,
Art(s). 97 (a) (b) (c), 167 (f) (g) (h), 212 (e) (f)
ART. 97. Definitions. - As used in this Title:
(a) "Person" means an individual, partnership,
association, corporation, business trust, legal
representatives, or any organized group of
persons.
(b) "Employer" includes any person acting
directly or indirectly in the interest of an
employer in relation to an employee and shall
include the government and all its branches,
subdivisions and instrumentalities, all
government-owned or controlled corporations
and institutions, as well as non-profit private
institutions, or organizations.
(c) "Employee" includes any individual employed
by an employer.
Art. 167. Definition of Terms.—As used in this Title,
unless the context indicates otherwise:
(f) “Employer” means any person, natural or
juridical, employing the services of the
employee.
(g) “Employee” means any person compulsorily
covered by the GSIS under Commonwealth Act
Numbered One hundred eighty-six, as
amended, including the members of the Armed
Forces of the Philippines, and any person
employed as casual, emergency, temporary,
substitute or contractual, or any person
compulsorily covered by the SSS under
Republic Act Numbered Eleven hundred sixty-
one, as amended.
(h) “Person” means any individual, partnership,
firm, association, trust, corporation or legal
representative thereof.
Art. 212.
(e) "Employer" includes any person acting in the
interest of an employer, directly or indirectly. The
term shall not include any labor organization or
any of its officers or agents except when acting
as employer.
(f) "Employee" includes any person in the
employ of an employer. The term shall not be
limited to the employees of a particular
employer, unless the Code so explicitly states. It
shall include any individual whose work has
ceased as a result of or in connection with any
current labor dispute or because of any unfair
labor practice if he has not obtained any other
substantially equivalent and regular
employment.
1.3 Tests of Employer-Employee Relationship (EER)
Jurisprudential Tests to Determine Existence of EER:
A. The employer has the ability (need not be actual) to
exercise control over the following:
1. Payment of Wages
• Payment of compensation by way of
commission does not militate against the conclusion
EER exists. Under Art. 97 of the Labor Code, "wage"
shall mean "however designated, capable of being
expressed in terms of money, whether fixed or
ascertained on a time, task, price or commission
basis…" (Insular Life Assurance Co., Ltd. V. NLRC, GR
No.119930, 12 March 1998)
• Wages are defined as remuneration or earnings,
however designated, capable of being expressed in
terms of money, whether fixed or ascertained on a time,
task, piece or commission basis, or other method of
calculating the same, which is payable by an employer
to an employee under a written or unwritten contract of
employment for work done or to be done, or for services
rendered or to be rendered, and included the fair and
reasonable value, as determined by the Secretary of
Labor, of board, lodging, or other facilities customarily
furnished by the employer to the employee. [Ruga v.
NLRC, 181 SCRA 266 (1990)]
2. Hiring – employment relation arises from contract of
hire, express or implied [Ruga v.NLRC, 181 SCRA 266
(1990)]
• Selection and engagement of the workers rests with
the employers
• Not a conclusive test since it can be avoided by the
use of subcontracting agreements or other
contracts other than employment contracts
3. Firing – disciplinary power exercised by
employer over the worker and the corresponding
sanction imposed in case of violation of any of its
rules and regulations
4. Control, not only over the end product / RESULT
of the work, but more importantly, control over
the MEANS through which the work is
accomplished. (most essential element; without
it, there is no EER)
B. Economic Relations Test – a subordinate /
alternative test. Existing economic conditions
between the parties are used to determine whether
EER exists.
1. payment of PAG-IBIG Fund contributions
2. payment / remittance of contributions to the State
Insurance Fund
3. deduction of withholding tax
4. deduction / remittance of SSS contributions
1.4. Elements of Employer-Employee Relationship

• Ruga v. NLRC, 181 SCRA 437 (1990)

The employer-employee relationship between
the crew members and the owners of the fishing vessels
engaged in deep-sea fishing is merely suspended during
the time the vessels are drydocked or undergoing
repairs or being loaded with the necessary provisions for
the next fishing trip. The said ruling is premised on the
principle that all these activities i.e., drydock, repairs,
loading of necessary provisions, form part of the regular
operation of the company fishing business.
Wages are defined as remuneration or earnings,
however designated, capable of being expressed in
terms of money, whether fixed or ascertained on a time,
task, piece or commission basis, or other method of
calculating the same, which is payable by an employer
to an employee under a written or unwritten contract of
employment for work done or to be done, or for services
rendered or to be rendered, and included the fair and
reasonable value, as determined by the Secretary of
Labor, of board, lodging, or other facilities customarily
furnished by the employer to the employee

• Perpetual Help Credit v. Faburada et al., 366

SCRA 693 (2001)

• Chavez v. NLRC, 448 SCRA 478 (2005)

• Angelina Francisco v. NLRC, et al., GR No.

170087, Aug. 31, 2006

• Television and Production Exponents, Inc. v. Servaña

c. Piercing the Corporate Veil

2. Independent Contractor and Labor-only
Contractor, Art. 106-107, 109; DO No. 18-02, S 2002
ART. 106. Contractor or subcontractor. - Whenever an
employer enters into a contract with another person
for the performance of the former’s work, the
employees of the contractor and of the latter’s
subcontractor, if any, shall be paid in accordance with
the provisions of this Code.
In the event that the contractor or subcontractor fails
to pay the wages of his employees in accordance with
this Code, the employer shall be jointly and severally
liable with his contractor or subcontractor to such
employees to the extent of the work performed under
the contract, in the same manner and extent that he is
liable to employees directly employed by him.
The Secretary of Labor and Employment may, by
appropriate regulations, restrict or prohibit the
contracting-out of labor to protect the rights of workers
established under this Code. In so prohibiting or
restricting, he may make appropriate distinctions
between labor-only contracting and job contracting as
well as differentiations within these types of
contracting and determine who among the parties
involved shall be considered the employer for
purposes of this Code, to prevent any violation or
circumvention of any provision of this Code.
There is "labor-only" contracting where the person
supplying workers to an employer does not have
substantial capital or investment in the form of tools,
equipment, machineries, work premises, among
others, and the workers recruited and placed by such
person are performing activities which are directly
related to the principal business of such employer. In
such cases, the person or intermediary shall be
considered merely as an agent of the employer who
shall be responsible to the workers in the same
manner and extent as if the latter were directly
employed by him.
ART. 107. Indirect employer. - The provisions of the
immediately preceding article shall likewise apply to
any person, partnership, association or corporation
which, not being an employer, contracts with an
independent contractor for the performance of any
work, task, job or project.
DEPARTMENT ORDER NO. 18 - 02
(Series of 2002)
RULES IMPLEMENTING ARTICLES 106 TO 109
OF THE LABOR CODE, AS AMENDED
By virtue of the power vested in the Secretary of
Labor and Employment under Articles 5 (Rulemaking)
and 106 (Contractor or Subcontractor) of the Labor Code
of the Philippines, as amended, the following regulations
governing contracting and subcontracting arrangements
are hereby issued:
Section 1. Guiding principles. - Contracting and
subcontracting arrangements are expressly allowed by
law and are subject to regulation for the promotion of
employment and the observance of the rights of workers
to just and humane conditions of work, security of
tenure, self-organization, and collective bargaining.
Labor-only contracting as defined herein shall be
prohibited.
Section 2 . Coverage. - These Rules shall apply to all
parties of contracting and subcontracting arrangements
where employer-employee relationship exists.
Placement activities through private recruitment and
placement agencies as governed by Articles 25 to 39 of
the Labor Code are not covered by these Rules.
Section 3. Trilateral Relationship in Contracting
rrangements. - In legitimate contracting, there exists a
trilateral relationship under which there is a contract for a
specific job, work or service between the principal and
the contractor or subcontractor, and a contract of
employment between the contractor or subcontractor
and its workers. Hence, there are three parties involved
in these arrangements, the principal which decides to
farm out a job or service to a contractor or subcontractor,
the contractor or subcontractor which has the capacity to
independently undertake the performance of the job,
work or service, and the contractual workers engaged by
the contractor or subcontractor to accomplish the
job work or service.
Section 4. Definition of Basic Terms. – The following
terms as used in these Rules, shall mean:
(a) "Contracting" or "subcontracting" refers to an
arrangement whereby a principal agrees to put out or
farm out with a contractor or subcontractor the
performance or completion of a specific job, work or
service within a definite or predetermined period,
regardless of whether such job, work or service is to be
performed or completed within or outside the premises
of the principal.
(b) "Contractor or subcontractor" refers to any person or
entity engaged in a legitimate contracting or
subcontracting arrangement.
(c) "Contractual employee" includes one employed by a
contractor or subcontractor to perform or complete a job,
work or service pursuant to an arrangement between the
latter and a principal.
(d) "Principal" refers to any employer who puts out or
farms out a job, service or work to a contractor or
subcontractor.
Section 5. Prohibition against labor-only
contracting. - Labor-only contracting is hereby declared
prohibited. For this purpose, labor-only contracting shall
refer to an arrangement where the contractor or
subcontractor merely recruits, supplies or places
workers to perform a job, work or service for a principal,
and any of the following elements are present:
(i) The contractor or subcontractor does not have
substantial capital or investment which relates to
the job, work or service to be performed and the
employees recruited, supplied or placed by such
contractor or subcontractor are performing activities
which are directly related to the main business of the
principal; or
(ii) the contractor does not exercise the right to
control over the performance of the work of the
contractual employee.
The foregoing provisions shall be without
prejudice to the application of Article 248 (C ) of
the Labor Code, as amended.
"Substantial capital or investment" refers to capital
stocks and subscribed capitalization in the case of
corporations, tools, equipment, implements, machineries
and work premises, actually and directly used by the
contractor or subcontractor in the performance or
completion of the job, work or service contracted out.
The "right to control" shall refer to the right
reserved to the person for whom the services of
the contractual workers are performed, to
determine not only the end to be achieved, but
also the manner and means to be used in
reaching that end.
Section 6. Prohibitions. - Notwithstanding Section
5 of these Rules, the following are hereby declared
prohibited for being contrary to law or public policy:
(a) Contracting out of a job, work or service when not
done in good faith and not justified by the exigencies of
the business and the same results in the termination of
regular employees and reduction of work hours or
reduction or splitting of the bargaining unit;
(b) Contracting out of work with a "cabo" as defined in
Section 1 (ii), Rule I, Book V of these Rules.
"Cabo" refers to a person or group ofpersons or to a
labor group which, in the guise of a labor organization,
supplies workers to an employer, with or without any
monetary or other consideration whether in the capacity
of an agent of the employer or as an ostensible
independent contractor;
(c) Taking undue advantage of the economic situation or
lack of bargaining strength of the contractual employee,
or undermining his security of tenure or basic rights, or
circumventing the provisions of regular employment, in
any of the following instances:
(i) In addition to his assigned functions, requiring the
contractual employee to perform functions which are
currently being performed by the regular employees of
the principal or of the contractor or subcontractor;
(ii) Requiring him to sign, as a precondition to
employment or continued employment, an antedated
esignation letter; a blank payroll; a waiver of labor
standards including minimum wages and social or
welfare benefits; or a quitclaim releasing the principal,
contractor or subcontractor from any liability as to
payment of future claims; and
(iii) Requiring him to sign a contract fixing the period of
employment to a term shorter than the term of the
contract between the principal and the contractor or
subcontractor, unless the latter contract is divisible into
phases for which substantially different skills are
required and this is made known to the employee at the
time of engagement;
(d) Contracting out of a job, work or service through an
in-house agency which refers to a contractor or
subcontractor engaged in the supply of labor which is
owned, managed or controlled by the principal and
which operates solely for the principal;
(e) Contracting out of a job, work or service directly
related to the business or operation of the principal by
reason of a strike or lockout whether actual or imminent;
(f) Contracting out of a job, work or service being
performed by union members when such will interfere
with, restrain or coerce employees in the exercise of
their rights to self organization as provided in Art. 248 (c)
of the Labor Code, as amended.
Section 7. Existence of an employer-employee
relationship. - The contractor or subcontractor shall be
considered the employer of the contractual employee for
purposes of enforcing the provisions of the Labor Code
and other social legislation. The principal, however, shall
be solidarily liable with the contractor in the event of any
violation of any provision of the Labor Code, including
the failure to pay wages.
The principal shall be deemed the employer of the
contractual employee in any of the following
cases as declared by a competent authority:
(a) where there is labor-only contracting; or
(b) where the contracting arrangement falls within the
prohibitions provided in Section 6 (Prohibitions) hereof.
Section 8. Rights of Contractual Employees. - Consistent
with Section 7 of these Rules, the contractual employee
shall be entitled to all the rights and privileges due a
regular employee as provided for in the Labor Code, as
amended, to include the following:
(a) Safe and healthful working conditions;
(b) Labor standards such as service incentive
leave, rest days, overtime pay, holiday pay, 13th
month pay and separation pay;
(c) Social security and welfare benefits;
(d) Self-organization, collective bargaining and
peaceful concerted action; and
(e) Security of tenure.
Section 9. Contract between contractor or
subcontractor and contractual employee. -
Notwithstanding oral or written stipulations to the
contrary, the contract between the contractor or
subcontractor and the contractual employee, which shall
be in writing, shall include the following terms and
conditions:
(a) The specific description of the job, work or service to
be performed by the contractual employee;
(b) The place of work and terms and conditions of
employment, including a statement of the wage rate
applicable to the individual contractual employee; and
(c) The term or duration of employment, which shall be
coextensive with the contract of the principal and
subcontractor, or with the specific phase for which the
contractual employee is engaged, as the case may be.
The contractor or subcontractor shall inform the
contractual employee of the foregoing terms and
conditions on or before the first day of his employment.
Section 10. Effect of Termination of Contractual
Employment. - In cases of termination of employment
prior to the expiration of the contract between the
principal and the contractor or subcontractor, the right of
the contractual employee to separation pay or other
related benefits shall be governed by the applicable laws
and jurisprudence on termination of employment.
Where the termination results from the expiration of the
contract between the principal and the contractor or
subcontractor, or from the completion of the phase of the
job, work or service for which the contractual employee
is engaged, the latter shall not be entitled to separation
pay. However, this shall be without prejudice to
completion bonuses or other emoluments, including
retirement pay as may be provided by law or in the
contract between the principal and the contractor or
subcontractor.
Section 11. Registration of Contractors or
Subcontractors. - Consistent with the authority of the
Secretary of Labor and Employment to restrict or prohibit
the contracting out of labor through appropriate
regulations, a registration system to govern contracting
arrangements and to be implemented by the Regional
Offices is hereby established.
The registration of contractors and subcontractors shall
be necessary for purposes of establishing an effective
labor market information and monitoring.
Failure to register shall give rise to the presumption that
the contractor is engaged in labor-only contracting.
Section 12. Requirements for registration. – A contractor
or subcontractor shall be listed in the registry of
contractors and subcontractors upon completion of an
application form to be provided by the DOLE. The
applicant contractor or subcontractor shall provide in the
application form the following information:
(a) The name and business address of the applicant and
the area or areas where it seeks to operate;
(b) The names and addresses of officers, if the applicant
is a corporation, partnership, cooperative or union;
(c) The nature of the applicant's business and the
industry or industries where the applicant seeks to
operate;
(d) The number of regular workers; the list of clients, if
any; the number of personnel assigned to each client, if
any and the services provided to the client;
(e) The description of the phases of the contract and the
number of employees covered in each phase, where
appropriate; and
(f) A copy of audited financial statements if the applicant
is a corporation, partnership, cooperative or a union, or
copy of the latest ITR if the applicant is a sole
poprietorship.
The application shall be supported by:
(a) A certified copy of a certificate of registration of firm
or business name from the Securities and Exchange
Commission (SEC), Department of Trade and Industry
(DTI), Cooperative Development Authority (CDA), or
from the DOLE if the applicant is a union; and
(b) A certified copy of the license or business permit
issued by the local government unit or units where the
contractor or subcontractor operates.
The application shall be verified and shall include an
undertaking that the contractor or subcontractor shall
abide by all applicable labor laws and regulations.
Section 13. Filing and processing of applications.- The
application and its supporting documents shall be filed in
triplicate in the Regional Offices where the applicant
principally operates. No application for registration shall
be accepted unless all the foregoing requirements are
complied with. The contractor or subcontractor shall be
deemed registered upon payment of a registration fee of
P100.00 to the Regional Office.
Where all the supporting documents have been
submitted, the Regional Office shall deny or approve the
application within seven (7) working days after its filing.
Upon registration, the Regional Office shall return one
set of the duly-stamped application documents to the
applicant, retain one set for its file, and transmit the
remaining set to the Bureau of Local Employment. The
Bureau shall devise the necessary forms for the
expeditious processing of all applications for registration.
Section 14. Duty to produce copy of contract between
the principal and the contractor or subcontractor. –
The principal or the contractor or subcontractor shall be
under an obligation to produce a copy of the contract
between the principal and the contractor in the ordinary
course of inspection. The contractor shall likewise be
under an obligation to produce a copy of the contract of
employment of the contractual worker when directed to
do so by the Regional Director or his authorized
representative.
A copy of the contract between the contractual employee
and the contractor or subcontractor shall be furnished
the certified bargaining agent, if there is any.
Section 15. Annual Reporting of Registered Contractors.
- The contractor or subcontractor shall submit in triplicate
its annual report using a prescribed form to the
appropriate Regional Office not later than the 15th of
January of the following year. The report shall include:
(a) A list of contracts entered with the principal during
the subject reporting period;
(b) The number of workers covered by each contract
with the principal;
(c) A sworn undertaking that the benefits from the Social
Security System (SSS), the Home Development Mutual
Fund (HDMF), PhilHealth, Employees Compensation
Commission (ECC), and remittances to the Bureau of
Internal Revenue (BIR) due its contractual employees
have been made during the subject reporting period.
The Regional Office shall return one set of the duly-
stamped report to the contractor or subcontractor, retain
one set for its file, and transmit the remaining set to the
Bureau of Local Employment within five (5) days from
receipt thereof.
Section 16. Delisting of contractors or
subcontractors. - Subject to due process, the Regional
Director shall cancel the registration of contractors or
subcontractors based on any of the following grounds:
(a) Non-submission of contracts between the principal
and the contractor or subcontractor when required to do
so;
(b) Non-submission of annual report;
(c) Findings through arbitration that the contractor or
subcontractor has engaged in labor only contracting and
the prohibited activities as provided in Section 6
(Prohibitions) hereof; and
(d) Non-compliance with labor standards and
working conditions.
Section 17. Renewal of registration of contractors
or subcontractors. - All registered contractors or
subcontractors may apply for renewal of registration
every three years. For this purpose, the Tripartite
Industrial Peace Council (TIPC) as created under
Executive Order No. 49, shall serve as the oversight
committee to verify and monitor the following:
(a) Engaging in allowable contracting activities; and
(b) Compliance with administrative reporting
requirements.
Section 18. Enforcement of Labor Standards and
Working Conditions. - Consistent with Article 128
(Visitorial and Enforcement Power) of the Labor Code,
as amended, the Regional Director through his duly
authorized representatives, including labor regulation
officers shall have the authority to conduct routine
inspection of establishments engaged in contracting or
subcontracting and shall have access to employer's
records and premises at any time of the day or night
whenever work is being undertaken therein, and the right
to copy therefrom, to question any employee and
investigate any fact, condition or matter which may be
necessary to determine violations or which may aid in
the enforcement of the Labor Code and of any labor law,
wage order, or rules and regulations issued pursuant
thereto.
The findings of the duly authorized representative shall
be referred to the Regional Director for appropriate
action as provided for in Article 128, and shall be
furnished the collective bargaining agent, if any.
Based on the visitorial and enforcement power of the
Secretary of Labor and Employment in Article 128 (a),
(b), (c) and (d), the Regional Director shall issue
compliance orders to give effect to the labor standards
provisions of the Labor Code, other labor legislation and
these guidelines.
Section 19. Solidary liability. - The principal shall be
deemed as the direct employer of the contractual
employees and therefore, solidarily liable with the
contractor or subcontractor for whatever monetary
claims the contractual employees may have against the
former in the case of violations as provided for in
Sections 5 (Labor-Only contracting), 6 (Prohibitions), 8
(Rights of Contractual Employees) and 16 (Delisting) of
these Rules. In addition, the principal shall also be
solidarily liable in case the contract between the principal
and contractor or subcontractor is preterminated for
reasons not attributable to the fault of the contractor or
subcontractor.
Section 20. Supersession. - All rules and regulations
issued by the Secretary of Labor and Employment
inconsistent with the provisions of this Rule are hereby
superseded. Contracting or subcontracting
arrangements in the construction industry, under the
licensing coverage of the PCAB and shall not include
shipbuilding and ship repairing works, however, shall
continue to be governed by Department Order No. 19,
series of 1993.
Section 21. Effectivity. - This Order shall be effective
fifteen (15) days after completion of its publication in two
(2) newspapers of general circulation.
Manila, Philippines, 21 February 2002.

2.1 Requirements for Independent Contractor
• San Miguel Corp v. NLRC & Maliksi, GR No. 147566,
Dec. 6, 2006
Concept: Requirements for Independent Contractor
- The act if hiring and re-hiring the petitioners over a
period of time without considering them as regular
employees evidences bad faith on the part of private
respondent.
-Regularization is a labor benefit that should apply to all
qualified employees similarly situated and may not be
denied merely because some employees were allegedly
not parties to or were not impleaded in the voluntary
arbitration case.
-It must be noted that the Court extended the benefit of
regularization not only to the original complainants but
also to those workers who are “similarly situated” to
therein complainants.
Quotable Quote (Justice Garcia):
“The contrivances may be many and the schemes
ingenious and imaginative. But this Court will not
hesitate to put pen to a line and defend the worker’s right
to be secure in his (or her) proprietary right to regular
employment and his right to a secure employment.”
FACTS:
San Miguel Corporation (SMC) seeks to reverse a Court
of Appeals (CA) decision which affirmed an NLRC
declaration that private respondent Rafael Maliksi
(Maliksi) is a regular employee of SMC and must be
reinstated with benefits.
Maliksi in October 16, 1990 sued SMC-Magnolia
Division and Philippine Software Services and Education
Center (PHILSSEC) for them to recognize him as a
regular employee. Later on the same case he included
the charge of illegal dismissal when petitioners
terminated his services later that month. Maliksi’s
employment record shows he served SMC alternately as
budget head, accounting clerk and acting clerk under
Skillpower, Lipercon and PHILSSEC between 1981 up to
February 1985 “for periods spread apart,” or for at least
three years and seven months.
Respondent Maliksi maintained that he is an employee
of SMC-Magnolia and that Lipercon, Skillpower, Inc. and
PHILSSEC are labor-only contractors, none being his
employer. PHILSSEC meanwhile disclaimed liability as it
catered only to computerized accounting needs of
businesses like SMC-Magnolia, PHILSSEC’s principal
function being that of manual control of data needed
during the computerization. PHILSSEC added that it
controlled Maliksi’s work, paid his salary and required
him to report directly to it. Maliksi was terminated
because the project was completed on October 31,
1990. SMC for its part basically asserted the same,
contending that PHILSSEC exercised exclusive
managerial prerogative over the complainant as to
hiring, payment of salary, dismissal and the control over
his work. It was interested only in the result of the work
specified in the contract but not as to the means and
methods of accomplishing the same. Also, PHILSSEC
has substantial capital of its own. What it markets to
clients are computer programs and training systems on
computer technology and not the usual labor or
manpower supply to establishment concerns. Further,
SMC said, Maliksi’s service has no relation to the
principal business of SMC, which is food and beverage.
The Labor Arbiter declared Maliksi a regular employee of
PHILSSEC and absolved SMC from liability. Maliksi
appealed to the NLRC which in turn reversed the Labor
Arbiter’s decision, ordering SMC-Magnolia Division to
reinstate him without loss of seniority rights and with full
benefits. When the case reached the CA, the latter
affirmed in toto the NLRC’s decision, finding Lipercon
and Skillpower as mere conduits to circumvent Article
280 of the Labor Code, employing Maliksi as contractual
or project employee through these entities, thereby
undermining his right to gain regular employment status
under the law. The CA agreed with the NLRC that
Maliksi’s work was necessary or desirable in the
business of SMC in its Magnolia Division, for more than
the required one-year period, and that he became
permanent and regular with SMC after the statutory
period of one year of service. The CA also concluded
that on account of his past employment contracts with
SMC under Lipercon and Skillpower, Maliksi was already
a regular employee of SMC when he entered into SMC’s
computerization project as part of the PHILSSEC project
complement.
ISSUE: Whether or not Maliksi was a regular employee
of SMC?
HELD: Petition DENIED. Maliksi is a regular employee
of SMC. Lipercon and Skillpower are labor-only
ontractors providing as they do personnel services to the
public for a fee. There is an employer-employee
relationship and the Court gives due deference to this
factual findings of both the NLRC and the CA. Having
served SMC for an aggregate period of more than three
(3) years through employment contracts with these
Lipercon and Skillpower, Maliksi should be considered
as SMC’s regular employee. The fact is that he was
hired and re-hired by SMC to perform administrative and
clerical work that was necessary to SMC’s business on a
daily basis.
In Bustamante v. National Labor Relations Commission,
the Court ruled that petitioners were employees engaged
to perform activities necessary in the usual business of
the employer. The contract for probationary employment
was utilized by respondent company as a chicanery to
deny petitioners their status as regular employees and to
evade paying them the benefits attached to such status.
They were hired and re-hired in a span of from two to
four years to do the same type of work which
conclusively shows the necessity of petitioners’ service
to the respondent company’s business.
With respect to PHILSSEC, there was no need for
Maliksi to be employed under the former’s
computerization program to be considered a regular
employee of SMC at the time. Moreover, SMC itself
admits that Maliksi’s work under the computerization
program did “not require the operation of a computer
system, such as the software program being developed
by PHILSSEC.” Maliksi’s work under the PHILSSEC
project was mainly administrative in nature and
necessary to the development of SMC’s business.
Maliksi was juggled from one employment contract to
another in a continuous bid to circumvent labor laws.
The act of hiring and re-hiring workers over a period of
time without considering them as regular employees
evidences bad faith on the part of the employer making it
liable to pay damages. The contrivances may be many
and the schemes ingenious and imaginative. But this
Court will not hesitate to put pen to a line and defend the
worker’s right to be secure in his (or her) proprietary right
to regular employment and his right to a secure
employment, viz, one that is free from fear and doubt,
that anytime he could be removed, retrenched, his
contract not renewed or he might not be re-hired.
Considering, however, the supervening event that
SMC’s Magnolia Division has been acquired by another
entity, respondent Maliksi’s reinstatement it appears is
no longer feasible. Instead, he should be awarded
separation, in addition to the other monetary awards,
pay as an alternative. Likewise, owing to petitioner’s bad
faith in juggling the latter from one labor contractor to
another, it should be held liable to pay nominal damages
for causing undue injury and inconvenience to the
private respondent in its contractual hiring-firing-rehiring
scheme and for denying him his proprietary right to
regular employment.
√ following conditions are met:
Facts:
- SMC (San Miguel) seeks to reverse the decision of the
CA which affirmed the decision of the NLRC that Rafael
Maliksi is a REGULAR EMPLOYEE
- Oct. 16, 1990. Maliksi filed a complaint against SMC
compelling them to recgonize him as regular employee.
Oct 31, 1990, he was dismissed by SMC.
- His complaint then now includes illegal dismissal
- Maliksi thru Lipercon (contractor), was assigned to
SMC. After a while another contractor (Skillpower)
assigned him to SMC again then lastly, another
contractor (Philippine Sofware Services and Education
Center or PHILSEC) assgined him to SMC. (To clarify
things dear reader, Three different agencies assigned
him to SMC). Those assignments are from 1981 to 1985.
- Maliksi argued that he is an employee if Magnolia (a
division of SMC). He also argued that the contractors are
LABOR ONLY CONTRACTORS and not his employer.
- PHILSEC disclaimed liability as it catered only to
computerized accounting needs of businesses like SMC.
PHILSEC's principal funding being manual control of
data needed during computerization.
- Maliksi was terminated because the project ended.
- SMC contends that PHILSEC exercised sxclusive
managerial prerogative over Maliksi as ti hiring, payment
of salary, dismissal, and control of his work (take note
these are the requisites for employee-employer
relationship). PHILSEC has substantial capital of its own
and what it caters to clients are computer programs and
training systems on computer tech and not the usual
labor or man power supply (test for independent
contractor).
- SMC said that Maliksi's service has no relations to
SMC's primary business which is food and beverages.
(The court said that this contention has no merit since
accounting chorva is part of the business).
- The Labor Arbiter declared that Maliksi is an employee
of PHILSEC.
- Maliksi appealed to the NLRC, reversed the decision of
the Labor Arbiter, making SMC the employer.
- SMC appealed to the CA. CA affired the decision of the
NLRC.
- CA said that tho Lipercon and Skillpower are mere
conduits on Maliksi being on SMC, still made him
(Maliksi) a regular employee because of the required
one year period.
Issue: W/ON Maliksi is a regular employee
Held. Yes, he is a regular employee. Lipercon and
Skillpower are LABOR ONLY CONTRACTORS
providing personnel services for a fee. There is an
employee-employer relationship and the court gives due
deference ti the factual findings of the NLRS and CA.
Having served SMC for 3 years thru Lipercon and
Skillpower deemed Maliksi a regular employee.
• LIKHA-PMPB v. Burlinggame corp., GR No. 162833,
June 15, 2007
- Job contracting is permissible only if the
1) the contractor carries on an independent business
and undertakes the contract work on his own account
under his own responsibility according to his own
manner and method, free from the control and direction
of his employer or principal in all matters connected with
the performance of the work except as to the results
thereof; and
2) contractor has substantial capital or investment in the
form of tools, equipment, machineries, work premises,
and other materials which are necessary in the conduct
of the business.
- Mentioned sec. 5 of DO 18-02 which states the
prohibition against labor-only contracting (see DO)
- Promo-girls were directly related to the principal
business or operation of Burlingame. Marketing and
selling of products is an essential activity to the main
business of the principal.
- In labor-only contracting, the law creates an
employer-employee relationship to prevent a
circumvention of labor laws. The contractor is merely an
agent of the principal employer and the latter is
responsible to the employees of the labor-only contractor
as if such employees had been directly employed by the
principal employer.
Concept: Independent Contract and Labor Only
Contractor
Facts:
- Jan. 17, 2000, LIKHA-PMPB filed a petition for
certification before DOLE, it seeks to represent all RANK
and FILE EMPLOYEES (means the employee doesn't
occupy a high-level position within the organization) of
the respondent, which counts to 70 all in all.
- LIKA-PMPB said that there is no existing union in
Burlingame representing the regular rank and file
employees.
- It prayed that it be voluntarily recognized by
Burlingame to be a collective bargaining agent or the
alternative, that a certification/consent election be held
among regular rank and file employees.
- Burlingame filed a motion to dismiss the petition. It
argued that there exists no employee-employer
relationship between them and the members of the
LIKHA-PMPB. It further alleged that the members are
employee F.GARIL MANPOWER SERVICES, a duly
licensed local employment agency. To prove such
contention, respondent presented a copy of its contract
with F. Garil.
- June 29, 2000. Med-Arbiter Renato Panungo
dismissed the petition for lack of employee-employer
relationship, which lead LIKHA to file a appeal before the
secretary of labor and employment.
December 29, 2000. Secretary ordered the immediate
conduct of a certificaiton election.
- Respondents went to CA, CA revered the decision.
Petitioners filed for a motion of reconsideration. Denied.
Issue:
(1) Whether or not F. Garil is an independent contractor;
(2) Whether or not petitioner are employees of
Burlingame Corporation.
Ruling:
(1) NO. We agree with the Secretary that F. Garil is not
an independent contractor. First, F. Garil does not have
substantial capitalization or investment in the form of
tools, equipment, machineries, work premises, and other
materials, to qualify as an independent contractor. No
proof was adduced to show F. Garil‘s capitalization.
Second, the work of the promo-girls was directly related
to the principal business or operation of Burlingame.
Marketing and selling of products is an essential activity
to the main business of the principal. Lastly, F. Garil did
not carry on an independent business or undertake the
performance of its service contract according to its own
manner and method, free from the control and
supervision of its principal, Burlingame.
(2) YES. The “four-fold test” will show that respondent is
the employer of petitioner‘s members. The involvement
of F. Garil in the hiring process was only with respect to
the recruitment aspect because the actual hiring itself
was done through the deployment of personnel to
establishments by Burlingame. Burlingame would pay
the workers through F. Garil a certain sum per worker on
the basis of eight-hour work every 15th and 30th of each
calendar month which evinces the fact that F. Garil
merely served as conduit in the payment of wages to the
deployed personnel. Burlingame upon request to F. Garil
may replace any personnel found to be inefficient,
troublesome, uncooperative and not observing the rules
and regulations set forth by it.
There is no doubt that F. Garil was engaged in labor-
only contracting, and as such, is considered merely an
agent of Burlingame. Since F. Garil is a labor-only
contractor, the workers it supplied should be considered
as employees of Burlingame in the eyes of the law.
• Aliviado, et al. v. Proctor and Gamble Phil. & PROMM
GEM Inc., G.R. No. 160506 March 9, 2010
JOEB M. ALIVIADO, et al., Petitioners, v. PROCTER &
GAMBLE PHILS., INC., and PROMM-GEM INC.,
Respondents.
DEL CASTILLO, J.:
Facts:
Petitioners worked as merchandisers of P&G. They all
individually signed employment contracts with either
Promm-Gem or SAPS. They were assigned at different
outlets, supermarkets and stores where they handled all
the products of P&G. They received their wages from
Promm-Gem or SAPS.
SAPS and Promm-Gem imposed disciplinary measures
on erring merchandisers for reasons such as habitual
absenteeism, dishonesty or changing day-off without
prior notice.
To enhance consumer awareness and acceptance of the
products, P&G entered into contracts with Promm-Gem
and SAPS for the promotion and merchandising of its
products.
In December 1991, petitioners filed a complaint against
P&G for regularization, service incentive leave pay and
other benefits with damages.
Issue: WON P&G is the employer of petitioners.
Held:
In order to resolve the issue of whether P&G is the
employer of petitioners, it is necessary to first determine
whether Promm-Gem and SAPS are labor-only
contractors or legitimate job contractors
Clearly, the law and its implementing rules allow
contracting arrangements for the performance of specific
jobs, works or services. However, in order for such
outsourcing to be valid, it must be made to an
independent contractor because the current labor rules
expressly prohibit labor-only contracting.
To emphasize, there is labor-only contracting when the
contractor or sub-contractor merely recruits, supplies or
places workers to perform a job, work or service for a
principal and any of the following elements are present:
i) The contractor or subcontractor does not have
substantial capital or investment which relates to the job,
work or service to be performed andthe employees
recruited, supplied or placed by such contractor or
subcontractor are performing activities which are directly
related to the main business of the principal; or
ii) The contractor does not exercise the right to control
over the performance of the work of the contractual
Under the circumstances, Promm-Gem cannot be
considered as a labor-only contractor. We find that it is a
legitimate independent contractor.
Considering that SAPS has no substantial capital or
investment and the workers it recruited are performing
activities which are directly related to the principal
business of P&G, we find that the former is engaged in
“labor-only contracting”.
Where labor-only contracting exists, the Labor Code
itself establishes an employer-employee relationship
between the employer and the employees of the labor-
only contractor. The statute establishes this relationship
for a comprehensive purpose: to prevent a
circumvention of labor laws. The contractor is
considered merely an agent of the principal employer
and the latter is responsible to the employees of the
labor-only contractor as if such employees had been
directly employed by the principal employer.
Petition Granted
NOTE:
- Respondent filed MR, which was denied.
- In its resolution, the Court upheld its decision declaring
SAPS has no substantial capital, therefore, labor-only
contractor.
√ in nature.However, in order for such outsourcing to be
FACTS:
Petitioners worked as merchandisers of P&G from
various dates, allegedly starting as early as 1982 or as
late as June 1991, to either May 5, 1992orMarch 11,
1993.
They all individually signed employment contracts with
either Promm-Gem or SAPS for periods of more or less
five months at a time.They were assigned at different
outlets, supermarkets and stores where they handled all
the products of P&G.They received their wages from
Promm-Gem or SAPS.
SAPS and Promm-Gem imposed disciplinary measures
on erring merchandisers for reasons such as habitual
absenteeism, dishonesty or changing day-off without
prior notice.
P&G is principally engaged in the manufacture and
production of different consumer and health products,
which it sells on a wholesale basis to various
supermarkets and distributors. To enhance consumer
awareness and acceptance of the products, P&G
entered into contracts with Promm-Gem and SAPS for
the promotion and merchandising of its products.
In December 1991, petitioners filed a complaint against
P&G for regularization, service incentive leave pay and
other benefits with damages.The complaint was later
amendedto include the matter of their subsequent
dismissal.
On November 29, 1996, the Labor Arbiter dismissed the
complaint for lack of merit and ruled that there was no
employer-employee relationship between petitioners and
P&G.He found that the selection and engagement of the
petitioners, the payment of their wages, the power of
dismissal and control with respect to the means and
methods by which their work was accomplished, were all
done and exercised by Promm-Gem/SAPS.He further
found that Promm-Gem and SAPS were legitimate
independent job contractors. On appeal, the NLRC
dismissed the same. Petitioners filed a motion for
reconsideration but the motion was denied in
theNovember 19, 1998Resolution.
Petitioners likewise failed to have a favrable decision in
the CA hence, this petition.
ISSUE: Whether or not Promm-Gem and SAPS are
labor-only contractors or legitimate job contractors?
HELD: The petition is granted.
LABOR LAW
Article 106 of the Labor Code and its implementing rules
allow contracting arrangements for the performance of
specific jobs, works or services.Indeed, it is
management prerogative to farm out any of its activities,
regardless of whether such activity is peripheral or core
valid, it must be made to anindependent
contractorbecause the current labor rules expressly
prohibit labor-only contracting.
To emphasize, there is labor-only contracting when the
contractor or sub-contractor merely recruits, supplies or
places workers to perform a job, work or service for a
principalandanyof the following elements are present: (i)
The contractor or subcontractor does not have
substantial capital or investment which relates to the job,
work or service to be performedandthe employees
recruited, supplied or placed by such contractor or
subcontractor are performing activities which are directly
related to the main business of the principal;or (ii) The
contractor does not exercise the right to control over the
performance of the work of thecontractualemployee.
In the instant case,thefinancialstatementsof Promm-Gem
show that it
has authorized capital stock ofP1 million and a paid-in
capital, or capital available for operations, ofP500,000.00
as of 1990. It also has long term assets
worthP432,895.28 and current assets
ofP719,042.32.Promm-Gem has also proven that it
maintained its own warehouse and office space with a
floor area of 870 square meters. It also had under its
name three registered vehicles which were used for its
promotional/merchandising business.Promm-Gem also
has other clientsaside from P&G. Under the
circumstances, Promm-Gem has substantial investment
which relates to the work to be performed.These factors
negate the existence of the element specified in Section
5(i) of DOLE Department Order No. 18-02.
The records also show that Promm-Gem supplied its
complainant-workers with the relevant materials, such as
markers, tapes, liners and cutters, necessary for them to
perform their work.Promm-Gem also issued uniforms to
them. It is also relevant to mention that Promm-Gem
already considered the complainants working under it as
its regular, not merely contractual or project,
employees.This circumstance negates the existence of
element (ii) as stated in Section 5 of DOLE Department
Order No. 18-02, which speaks ofcontractualemployees.
This, furthermore, negates on the part of Promm-Gem
bad faith and intent to circumvent labor laws which
factors have often been tipping points that lead the Court
to strike down the employment practice or agreement
concerned as contrary to public policy, morals, good
customs or public order.
Under the circumstances, Promm-Gem cannot be
considered as a labor-only contractor. Thus, it is a
legitimate independent contractor.
On the other hand, the Articles of Incorporation of SAPS
shows that it has a paid-in capital of
onlyP31,250.00.There is no other evidence presented to
show how much its working capital and assets
are.Furthermore, there is no showing of substantial
investment in tools, equipment or other assets.
It is clear that SAPS having a paid-in capital of
onlyP31,250 - has no substantial capital.SAPS lack of
substantial capital is underlined by the records which
show that its payroll for its merchandisers alone for one
month would already totalP44,561.00.It had 6-month
contracts withP&G.Yet SAPS failed to show that it could
complete the 6-month contracts using its own capital and
investment.Its capital is not even sufficient for one
months payroll. SAPS failed to show that its paid-in
capital ofP31,250.00 is sufficient for the period required
for it to generate its needed revenue to sustain its
operations independently.Substantial capital refers to
capitalization used in theperformance or completionof
the job, work or service contracted out.In the present
case, SAPS has failed to show substantial capital.
Furthermore, the petitioners have been charged with the
merchandising and promotion of the products of P&G,
an activity that has already been considered by the
Court as doubtlessly directly related to the
manufacturing business, which is the principal business
of P&G.Considering that SAPS has no substantial
capital or investment and the workers it recruited are
performing activities which are directly related to the
principal business of P&G, we find that the former is
engaged in labor-only contracting.
Where labor-only contracting exists, the Labor Code
itself establishes an employer-employee relationship
between the employer and the employees of the labor-
only contractor. The statute establishes this relationship
for a comprehensive purpose: to prevent a
circumvention of labor laws. The contractor is
considered merely an agent of the principal employer
and the latter is responsible to the employees of the
labor-only contractor as if such employees had been
directly employed by the principal employer.
LABOR LAW
In cases of regular employment, the employer shall not
terminate the services of an employee except for a justor
authorized cause.
In the instant case, the termination letters given by
Promm-Gem to its employees uniformly specified the
cause of dismissal as grave misconduct and breach of
trust.
Misconduct has been defined as improper or wrong
conduct; the transgression of some established and
definite rule of action, a forbidden act, a dereliction of
duty, unlawful in character implying wrongful intent and
not mere error of judgment.The misconduct to be serious
must be of such grave and aggravated character and not
merely trivial and unimportant.To be a just cause for
dismissal, such misconduct (a) must be serious; (b) must
relate to the performance of the employees duties; and
(c) must show that the employee has become unfit to
continue working for the employer.
In the instant case, petitioners-employees of Promm-
Gem may have committed an error of judgment in
claiming to be employees of P&G, but it cannot be said
that they were motivated by any wrongful intent in doing
so.As such, they are only found them guilty of only
simple misconduct for assailing the integrity of Promm-
Gem as a legitimate and independent promotion firm.A
misconduct which is not serious or grave, as that
existing in the instant case, cannot be a valid basis for
dismissing an employee.
Meanwhile, loss of trust and confidence, as a ground for
dismissal, must be based on the willful breach of the
trust reposed in the employee by his employer.Ordinary
breach will not suffice.A breach of trust is willful if it is
done intentionally, knowingly and purposely, without
justifiable excuse, as distinguished from an act done
carelessly, thoughtlessly, heedlessly or inadvertently.
Loss of trust and confidence, as a cause for termination
of employment, is premised on the fact that the
employee concerned holds a position of responsibility or
of trust and confidence.As such, he must be invested
with confidence on delicate matters, such as custody,
handling or care and protection of the property and
assets of the employer.And, in order to constitute a just
cause for dismissal, the act complained of must be work-
related and must show that the employee is unfit to
continue to work for the employer. In the instant case,
the petitioners-employees of Promm-Gem have not been
shown to be occupying positions of responsibility or of
trust and confidence. Neither is there any evidence to
show that they are unfit to continue to work as
merchandisers for Promm-Gem. Thus, there was no
valid cause for the dismissal of petitioners-employees of
Promm-Gem.
While Promm-Gem had complied with the procedural
aspect of due process in terminating the employment of
petitioners-employees,i.e., giving two notices and in
between such notices, an opportunity for the employees
to answer and rebut the charges against them, it failed to
comply with the substantive aspect of due process as
the acts complained of neither constitute serious
misconduct nor breach of trust.Hence, the dismissal is
illegal.
With regard to the petitioners placed with P&G by SAPS,
they were given no written notice of dismissal.The
records show that upon receipt by SAPS of P&Gs letter
terminating their Merchandising Services Contact
effective March 11, 1993, they in turn verbally informed
the concerned petitioners not to report for work anymore.
Neither SAPS nor P&G dispute the existence of these
circumstances.Parenthetically, unlike Promm-Gem
which dismissed its employees for grave misconduct and
breach of trust due to disloyalty, SAPS dismissed its
employees upon the initiation of P&G.It is evident that
SAPS does not carry on its own business because the
termination of its contract with P&G automatically meant
for it also the termination of its employees services.It is
obvious from its act that SAPS had no other clients and
had no intention of seeking other clients in order to
further its merchandising business.From all indications
SAPS, existed to cater solely to the need of P&G for the
supply of employees in the latters merchandising
concerns only.Under the circumstances prevailing in the
instant case, we cannot consider SAPS as
anindependent contractor.
In termination cases, the burden of proof rests upon the
employer to show that the dismissal is for just and valid
cause. In the instant case, P&G failed to discharge the
burden of proving the legality and validity of the
dismissals of those petitioners who are considered its
employees. Hence, the dismissals necessarily were not
justified and are therefore illegal.
CIVIL LAW
Moral and exemplary damages are recoverable where
the dismissal of an employee was attended by bad faith
or fraud or constituted an act oppressive to labor or were
done in a manner contrary to morals, good customs or
public policy.
With regard to the employees of Promm-Gem, there
being no evidence of bad faith, fraud or any oppressive
act on the part of the latter, we find no support for the
award of damages.
As for P&G, the records show that it dismissed its
employees through SAPS in a manner oppressive to
labor. The sudden and peremptory barring of the
concerned petitioners from work, and from admission to
the work place, after just a one-day verbal notice,andfor
no valid cause bellows oppression and utter disregard of
the right to due process of the concerned
petitioners.Hence, an award of moral damages is called
for.
Attorneys fees may likewise be awarded to the
concerned petitioners who
wereillegallydismissedinbadfaithandwerecompelledtolitig
ateorincur expenses to protect their rights by reason of
the oppressive act of P&G.
LABOR LAW
Lastly, under Article 279 of the Labor Code, an
employee who is unjustly dismissed from work shall be
entitled to reinstatement without loss of seniority rights
and other privileges, inclusive of allowances, and other
benefits or their monetary equivalent from the time the
compensation was withheld up to the time of actual
reinstatement. Hence, all the petitioners, having been
illegally dismissed are entitled to reinstatement without
loss of seniority rights and with full back wages and
other benefits from the time of their illegal dismissal up
to the time of their actual reinstatement.
The decision and resolution of the Court of Appeals are
reversed and set aside. The case is remanded to the
NLRC.
a. Desirable – Unnecessary
• Coca-Cola Bottlers Phil., Inc. v. NLRC, 307 SCRA
131 (1999)
- mentioned Singer Sewing Machine vs Drilon: the
definition that regular employees are those who perform
activities which are desirable and necessary for the
business of the employer is not determinative in this
case. Any agreement may provide that one party shall
render services for and in behalf of another for a
consideration (no matter how necessary for the latter’s
business) even without being hired as an employee. This
is precisely true in the case of an independent
contractorship as well as in an agency agreement.
- Art 280 is not the yardstick for determining the
existence of an employment relationship because it
merely distinguishes between two kinds of employees
i.e. regular and casual for purposes of determining the
right of an employee to certain benefits, to join or form a
union or to security of tenure. Art 280 does not apply
where the existence of an employment relationship is in
dispute (compare with Manila Water)
- Painting jobs performed we sporadic. The infrequency
or irregularity of assignments countervails Canonicato’s
submission that he was assigned to undertake the task
for the whole year round.
Q: Coca Cola entered into a contract of janitorial
services with BJS. Coca Cola then hired X first, as a
casual employee; after the casual employment was
terminated, Coca Cola again hired X as a painter in
contractual projects. He was also hired by BJS, which
assigned him to the Coca Cola considering his familiarity
with its premises. Goaded by information that Coca Cola
employed previous BJS employees who filed a
complaint against the company for regularization
pursuant to a compromise agreement, X submitted a
similar complaint against Coca Cola to the Labor Arbiter;
he included BJS therein as a co-respondent. He no
longer reported to work and when offered by BJS to
work in other firms, he refused. He amended the
complaint to illegal dismissal and underpayment of
wages. Is there an employee-employer relationship in
this case?
A: No. The Court takes judicial notice of the practice
adopted in several government and private institutions
and industries of hiring janitorial services on an
“independent contractor basis”. Although janitorial
services may be considered directly related to the
principal business of an employer, the Court deemed
them unnecessary in the conduct of the principal
business. This judicial notice rests on the assumption
that the independent contractor is a legitimate job
contractor so that there can be no doubt as to the
existence of an employer-employee relationship
between the contractor and the worker. It is also clear
that BJS exercises control over the work of X as most of
his assigned task dealt with the maintenance and
sanitation of the company premises pursuant to BJS’s
contract with the company.
The Court ruled that no employer-employee
relation exists between X and Coca Cola yet the latter
shall be jointly and severally liable with BJS for the wage
differentials and 13th Month pay of X. (Coca Cola
Bottlers Philippines v. NLRC, 307 SCRA 131, 17 May
1999)
2.2. Labor Contractor Only; Requisites and Prohibition
• Manila Water Co., Inc. v. Pena, 434 SCRA 52
(2004)
- ACGI was engaged in labor-only contracting and as
such, is considered merely an agent of the petitioner. In
labor-only contracting, the statute creates an employer-
employee relationship for a comprehensive purpose: to
prevent a circumvention of labor laws. The contractor is
considered merely an agent of the principal employer
and the latter is responsible to the employees of the
labor-only contractor as if such employees had been
directly employed by the principal employer.
- Private resp performed activities which were necessary
or desirable to its principal trade or business. Thus, they
were regular employees of petitioner regardless of
whether the engagement was merely an accommodation
of their request pursuant to Art. 280 (compare with Far
East Bank-blind employees).
- Art. 280: the provisions of written agreement to the
contrary notwithstanding and regardless of the oral
agreement of the parties, an employment shall be
deemed to be regular where the employee has been
engaged to perform activities which are usually
necessary or desirable in the usual business or trade of
the employer, except where the employment has been
fixed for a specific project or undertaking the completion
or termination of which has been determined at the time
of the engagement of the employee or where the work or
services to be performed is seasonal in nature and the
employment is for the duration of the season.
- Under this provision, the evil sought to be prevented is
singled out: agreements entered into precisely to
circumvent security of tenure. It has no application
where a fixed period of employment was agreed upon
knowingly and voluntarily by the parties, without any
force, duress or improper pressure being brought upon
the employee and absent any circumstances vitiating his
consent, or where it satisfactorily appears that the
employer and employee dealt with each other on more
or less terms with no moral dominance whatever being
exercised by the former over the latter.
- Under 279 of LC, an employee who is unjustly
dismissed form work is entitled to reinstatement without
loss of seniority rights and other privileges, and to his full
back wages, inclusive of allowances, and to his other
benefits or their monetary equivalent computed from the
time his compensation was withheld from him up to the
time of his actual reinstatement. If reinstatement is no
longer possible, the employer has the alternative of
paying the employee his separation pay in lieu of
reinstatement
FACTS: Manila Water Company, Inc. is contracted by
the etropolitan Waterworks and Sewerage System
(MWSS) to manage the water distribution system in the
East Zone of Metro Manila. Manila Water absorbed the
former
employees of the MWSS whose names and positions
were in the list furnished by the latter, while the
employment of those not in the list was terminated on
the day Manila Water took over the operation of the East
Zone. Respondents, being contractual collectors of the
MWSS, were among the 121 employees not included in
the list. Manila Water engaged their services without
written contract. Then, they signed a three-month
contract to perform collection services for 8 branches of
Manila Water in the East Zone. Before the end of the
three-month contract, the 121 collectors incorporated the
Association Collectors Group, Inc. (ACGI), which was
contracted by Manila Water to collect charges for the
Balara Branch. Subsequently, most of the 121 collectors
were asked by Manila Water to transfer to the First
Classic Courier Services, a newly registered corporation.
Respondents remained with ACGI. Later, Manila
Water terminated its contract with ACGI.
Respondents filed a complaint for illegal dismissal and
money claims, contending that they were Manila Water’s
employees as all the methods and procedures of their
collections were controlled by the latter. Manila Water
asserts that respondents were employees of ACGI, an
independent contractor. It maintained that it had no
control and supervision over private respondents’
manner of performing their work except as to the results.
Thus, Manila Water did not have an employer-employee
relationship with the private respondents, but only a
service contractor-client relationship with ACGI.
ISSUE: Is ACGI an independent contractor?
HELD: NO. ACGI was engaged in labor-only contracting,
and as such, is considered merely an agent of the
petitioner. Since ACGI is only a labor-only contractor, the
workers it supplied should be considered as employees
of Manila Water.
First, ACGI does not have substantial capitalization or
investment in the form of tools, equipment, machineries,
work premises, and other materials, to qualify as an
independent contractor. While it has an authorized
capital stock of P1,000,000.00, only P62,500.00 is
actually paid-in, which cannot be considered substantial
capitalization. The 121 collectors subscribed to four
shares each and paid only the amount of P625.00 in
order to comply with the incorporation requirements.
Respondents reported daily to the branch office of
Manila Water because ACGI has no office or work
premises. The corporate address of ACGI was the
residence of its president, Mr. Peña. Moreover, in
dealing with the consumers, respondents used the
receipts and identification cards issued by
Manila Water. Second, the work of the private
respondents was directly related to the principal
business or operation of Manila Water. Being in the
business of providing water to the consumers in the East
Zone, the collection of the charges by respondents for
Manila Water can only be categorized as clearly related
to, and in the pursuit of the latter’s business.
Lastly, ACGI did not carry on an independent business
or undertake the performance of its service contract
according to its own manner and method, free from the
control and supervision of its principal, petitioner. Prior to
respondents’ alleged employm ent with ACGI, they were
already working for petitioner, subject to its rules and
regulations in regard to the manner and method of
performing their tasks. This form of control and
supervision never changed although they were already
under the seeming employ of ACGI. Manila Water
issued memoranda regarding the billing methods and
distribution of books to the collectors; it required
respondents to report daily and to remit their collections
on the same day to the branch office or to deposit them
with Bank of the Philippine Islands; it monitored strictly
their attendance as when a collector cannot perform his
daily collection, he must notify petitioner or the branch
office in the morning of the day that he will be absent;
and although it was ACGI which ultimately disciplined
respondents, the penalty to be imposed was dictated by
petitioner as shown in the letters it sent to ACGI
specifying the penalties to be meted on the erring
respondents. These are indications that ACGI was not
left alone in the supervision and control of its alleged
employees. Consequently, it can be concluded that
ACGI was not an independent contractor since it did not
carry a distinct business free from the control and
supervision of petitioner.
2.3 Effect of Finding
• San Miguel Corporation v. Abella, 461 SCRA 392
(2005)
- Effect of finding: there being a finding of labor-only
contracting, liability must be shouldered by either SMC
(principal) or Sunflower (contractor) or shared by both.
SMC however should be held solely liable for Sunflower
became non-existent with the closure of the aquaculture
of business of SMC (CA reason).
- In legitimate labor contracting, the law creates an
employer-employee relationship for a limited purpose,
i.e. to ensure that the employees are paid their wages.
The principal employer becomes jointly and severally
liable with the job contractor, only for the payment of the
employees’ wages whenever the contractor fails to pay
the same. Other than that, the principal employer is not
responsible for any claim made by the employees.
- In labor-only contracting, the statute creates an
employer-employee relationship for a comprehensive
prupose: to prevent a circumvention of labor laws. The
contractor is considered merely an agent of the principal
employer and the latter is responsible to the employees
of the labor-only contractor as if such employees had
been directly employed by the principal employer.
- Retrenchment is a management prerogative
consistently recognized and affirmed by this Court. It is,
however, subject to faithful compliance with the
substantive and procedural requirements laid down by
law and jurisprudence.
- For retrenchment to be considered valid, the following
substantial requirements must be met:
1) the losses expected should be substantial and not
merely de minimis in extent
2) substantial losses apprehended must be reasonably
imminent such as can be perceived objectively and in
good faith by the employer
3) the retrenchment must be reasonably necessary and
likely to effectively prevent the expected losses
4) the alleged losses, if already incurred, and the
expected imminent losses sought to be forestalled, must
be proved by sufficient and convincing evidence.
- SMC proved substantial business reverses justifying
retrenchment of its employees
- For termination due to retrenchment be valid, the law
requires that written notices of the intended
retrenchment be served by the employer on the worker
and on the DOLE at least 1 month before the actual date
of the retrenchment in order to give employees some
time to prepare for the eventual loss of their jobs, as well
as to give DOLE the opportunity to ascertain the verity of
the alleged cause of termination.
- Where the dismissal is based on an authorized cause
under Art 283 but the employer failed to comply with the
notice requirement, the sanction should be stiff as the
dismissal process was initiated by the employer’s
exercise of his management prerogative, as opposed to
a dismissal based on a just cause under 282, because
the dismissal is imputable to the employee.
The language of a contract disavowing the existence of
an employer-employee relationship is not determinative
of the parties’ relationship. It is the totality of the facts
and surrounding circumstances of the case.
Facts: Petitioner San Miguel Corporation (SMC) and
Sunflower Multi-Purpose Cooperative (Sunflower)
entered into a one-year Contract of Service and such
contract is renewed on a monthly basis until terminated.
Pursuant to this, respondent Prospero Aballa et al.
rendered services to SMC.
After one year of rendering service, Aballa et al., filed a
complaint before National Labor Relations Commission
(NLRC) praying that they be declared as regular
employees of SMC. On the other hand, SMC filed before
the Department of Labor and Employment (DOLE) a
Notice of Closure due to serious business losses.
Hence, the labor arbiter dismissed the complaint and
ruled in favor of SMC. Aballa et al. then appealed before
the NLRC. The NLRC dismissed the appeal finding that
Sunflower is an independent contractor.
On appeal, the Court of Appeals reversed NLRC’s
decision on the ground that the agreement between
SMC and Sunflower showed a clear intent to abstain
from establishing an employer-employee relationship.
ISSUE:
Whether or not Aballa et al. are employees of SMC
HELD:
The test to determine the existence of independent
contractorship is whether one claiming to be an
independent contractor has contracted to do the work
according to his own methods and without being subject
to the control of the employer, except only as to the
results of the work.
In legitimate labor contracting, the law creates an
employer-employee relationship for a limited purpose,
i.e., to ensure that the employees are paid their wages.
The principal employer becomes jointly and severally
liable with the job contractor, only for the payment of the
employees’ wages whenever the contractor fails to pay
the same. Other than that, the principal employer is not
responsible for any claim made by the employees.
In labor-only contracting, the statute creates an
employer-employee relationship for a comprehensive
purpose: to prevent a circumvention of labor laws. The
contractor is considered merely an agent of the principal
employer and the latter is responsible to the employees
of the labor-only contractor as if such employees had
been directly employed by the principal employer.
The Contract of Services between SMC and Sunflower
shows that the parties clearly disavowed the existence of
an employer-employee relationship between SMC and
private respondents. The language of a contract is not,
however, determinative of the parties’ relationship; rather
it is the totality of the facts and surrounding
circumstances of the case. A party cannot dictate, by the
mere expedient of a unilateral declaration in a contract,
the character of its business, i.e., whether as labor-only
contractor or job contractor, it being crucial that its
character be measured in terms of and determined by
the criteria set by statute.
What appears is that Sunflower does not have
substantial capitalization or investment in the form of
tools, equipment, machineries, work premises and other
materials to qualify it as an independent contractor. On
the other hand, it is gathered that the lot, building,
machineries and all other working tools utilized by Aballa
et al. in carrying out their tasks were owned and
provided by SMC.
And from the job description provided by SMC itself, the
work assigned to Aballa et al. was directly related to the
aquaculture operations of SMC. As for janitorial and
messengerial services, that they are considered directly
related to the principal business of the employer has
been jurisprudentially recognized.
Furthermore, Sunflower did not carry on an independent
business or undertake the performance of its service
contract according to its own manner and method, free
from the control and supervision of its principal, SMC, its
apparent role having been merely to recruit persons to
work for SMC.
All the foregoing considerations affirm by more than
substantial evidence the existence of an employer-
employee relationship between SMC and Aballa et al.
Since Aballa et al. who were engaged in shrimp
processing performed tasks usually necessary or
desirable in the aquaculture business of SMC, they
should be deemed regular employees of the latter and
as such are entitled to all the benefits and rights
appurtenant to regular employment. They should thus be
awarded differential pay corresponding to the difference
between the wages and benefits given them and those
accorded SMC’s other regular employees.
San Miguel Corporation (SMC), entered into a one-year
Contract of Services with Sunflower Multi-Purpose
Cooperative (Sunflower) to be renewed on a month to
month basis until terminated by either party. Under the
contract, Sunflower agrees and undertakes to perform
and/or provide for the company the following services for
the Bacolod Shrimp Processing Plant:
Messengerial/Janitorial, Shrimp Harvesting/Receiving,
and Sanitation/Washing/Cold Storage.
 The cooperative shall employ the necessary personnel
and provide adequate equipment, materials, tools and
apparatus, to efficiently, fully and speedily accomplish
the work and services undertaken by the cooperative.
The cooperative shall have the entire charge, control
and supervision of the work and services. There is no
employer-employee relationship between the company
and the cooperative, or the cooperative and any of its
members, or the company and any members of the
cooperative. The cooperative shall, whenever possible,
maintain and keep under its control the premises where
the work under this contract shall be performed.
Respondents filed a complaint praying to be declared as
regular employees of SMC, with claims for recovery
of all benefits and privileges enjoyed by SMC rank and
file employees. Subsequently, they included illegal
dismissal as additional cause of action following SMC’s
closure of its Bacolod Shrimp Processing Plant which
resulted in the termination of their services. Moreover,
SMC insists that respondents are the employees of
Sunflower, an independent contractor. On the other
hand, respondents assert that Sunflower is a labor-only
contractor.
ISSUE: Is Sunflower an independent contractor?
HELD: NO. The following considerations affirm by more
than substantial evidence the existence of an employer-
employee relationship between SMC and respondents:
The Contract of Services between SMC and Sunflower
shows that the parties clearly disavowed the existence
of an employer-employee relationship between SMC and
respondents. The language of a contract is not,
however, determinative of the parties’ relationship; rather
it is the totality of the facts and surrounding
circumstances of the case. A party cannot dictate, by the
mere expedient of a unilateral declaration in a contract,
the character of its business, i.e., whether as labor-only
contractor or job contractor, it being crucial that its
character be measured in terms of and determined by
the criteria set by statute. What appears is that
Sunflower does not have substantial capitalization or
investment in the form of tools, equipment, machineries,
work premises and other materials to qualify it as an
independent contractor. And from the job description
provided by SMC itself, the work assigned to private
respondents was directly related to the aquaculture
operations of SMC. Undoubtedly, the nature of the work
performed by respondents in shrimp harvesting,
receiving and packing formed an integral part of the
shrimp processing operations of SMC. As for
janitorial and messengerial services, that they are
considered directly related to the principal business of
the employer has been jurisprudentially recognized.
Furthermore, Sunflower did not carry on an independent
business or undertake the performance of its service
contract according to its own manner and method, free
from the control and supervision of its principal, SMC,
its apparent role having been merely to recruit persons
to work for SMC.
Thus, it is gathered from the evidence adduced by
respondents before the LA that their daily time records
were signed by SMC supervisors which fact shows that
SMC exercised the power of control and supervision
over its employees. And control of the premises in which
private respondents worked was by SMC. These tend to
disprove the independence of the contractor.
2.4 Liability of Indirect Employer
• Eparwa Security and Janitorial Services, Inc. v. Liceo
Cagayan University, 508 SCRA 370 (2007)
FACTS:
On 1 December 1997, Eparwa and LDCU, through their
representatives, entered into a Contract for Security
Services which states that LCDU undertakes to pay
P5,000 per guard, in consideration of their services.
On 21 December 1998, 11 security guards whom
Eparwa assigned to LDCU filed a complaint before the
NLRC against both Eparwa and LDCU for underpayment
of salary, legal holiday pay, 13th month pay, rest day,
service incentive leave, night shift differential, overtime
pay, and payment for attorney’s fees.
LDCU made a cross-claim and prayed that Eparwa
should reimburse LDCU for any payment to the security
guards.
LA found that the security guards are entitled to wage
differentials and premium for holiday and rest day work.
The Labor Arbiter also held Eparwa and LDCU solidarily
liable pursuant to Article 109 of the Labor Code.
The NLRC held Eparwa and LDCU solidarily liable for
the wage differentials and premium for holiday and rest
day work but did not require Eparwa to reimburse LDCU
for its payments to the security guards. Upon an MR, the
NLRC declared that although Eparwa and LDCU are
solidarily liable to the security guards for the monetary
award, LDCU alone is ultimately liable.
The CA reinstated the Labor Arbiter’s decision. The
appellate court also allowed LDCU to claim
reimbursement from Eparwa.
ISSUE: Is LDCU alone ultimately liable to the security
guards for the wage differentials and premium for
holiday and rest day pay? - YES
HELD: This Court’s ruling in Eagle Security Agency, Inc.
v. NLRC[12] squarely applies to the present case. In
Eagle, we ruled that:
This joint and several liability of the contractor
and the principal is mandated by the Labor Code to
assure compliance of the provisions therein including the
statutory minimum wage. The contractor is made liable
by virtue of his status as direct employer. The principal,
on the other hand, is made the indirect employer of the
contractor’s employees for purposes of paying the
employees their wages should the contractor be unable
to pay them.
In the case at bar, it is beyond dispute that the
security guards are the employees of EAGLE. That they
were assigned to guard the premises of PTSI pursuant
to the latter’s contract with EAGLE and that neither of
these two entities paid their wage and allowance
increases under the subject wage orders are also
admitted.
The solidary liability of PTSI and EAGLE,
however, does not preclude the right of reimbursement
from his co-debtor by the one who paid. It is with respect
to this right of reimbursement that petitioners can find
support in the aforecited contractual stipulation and
Wage Order provision.
The Wage Orders are explicit that payment of the
increases are “to be borne” by the principal or client. “To
be borne”, however, does not mean that the principal,
PTSI in this case, would directly pay the security guards
the wage and allowance increases because there is no
privity of contract between them. The security guards’
contractual relationship is with their immediate employer,
EAGLE. As an employer, EAGLE is tasked, among
others, with the payment of their wages.
On the other hand, there existed a contractual
agreement between PTSI and EAGLE wherein the
former availed of the security services provided by the
latter. In return, the security agency collects from its
client payment for its security services. This payment
covers the wages for the security guards and also
expenses for their supervision and training, the guards’
bonds, firearms with ammunitions, uniforms and other
equipments, accessories, tools, materials and supplies
necessary for the maintenance of a security force.
Premises considered, the security guards’
immediate recourse for the payment of the increases is
with their direct employer, EAGLE. However, in order for
the security agency to comply with the new wage and
allowance rates it has to pay the security guards, the
Wage Orders made specific provision to amend existing
contracts for security services by allowing the
adjustment of the consideration paid by the principal to
the security agency concerned. What the Wage Orders
require, therefore, is the amendment of the contract as
to the consideration to cover the service contractor’s
payment of the increases mandated. In the end,
therefore, ultimate liability for the payment of the
increases rests with the principal.
In view of the foregoing, the security guards
should claim the amount of the increases from EAGLE.
Under the Labor Code, in case the agency fails to pay
them the amounts claimed, PTSI should be held
solidarily liable with EAGLE. Should EAGLE pay, it can
claim an adjustment from PTSI for an increase in
consideration to cover the increases payable to the
security guards.
However, in the instant case, the contract for
security services had already expired without being
amended consonant with the Wage Orders. It is also
apparent from a reading of a record that EAGLE does
not now demand from PTSI any adjustment in the
contract price and its main concern is freeing itself from
liability. Given these peculiar circumstances, if PTSI
pays the security guards, it cannot claim reimbursement
from EAGLE. But in case it is EAGLE that pays them,
the latter can claim reimbursement from PTSI in lieu of
an adjustment, considering that the contract had expired
and had not been renewed.
For the security guards, the actual source of the
payment of their wage differentials and premium for
holiday and rest day work does not matter as long as
they are paid. This is the import of Eparwa and LDCU’s
solidary liability. Creditors, such as the security guards,
may collect from anyone of the solidary debtors.
Solidary liability does not mean that, as between
themselves, two solidary debtors are liable for only half
of the payment.
LDCU’s ultimate liability comes into play because
of the expiration of the Contract for Security Services.
There is no privity of contract between the security
guards and LDCU, but LDCU’s liability to the security
guards remains because of Articles 106, 107 and 109 of
the Labor Code. Eparwa is already precluded from
asking LDCU for an adjustment in the contract price
because of the expiration of the contract, but Eparwa’s
liability to the security guards remains because of their
employer-employee relationship. In lieu of an
adjustment in the contract price, Eparwa may claim
reimbursement from LDCU for any payment it may make
to the security guards. However, LDCU cannot claim
any reimbursement from Eparwa for any payment it may
make to the security guards.
CHAPTER III – Special Group of Workers/Employee
1. OVERSEAS WORKERS
A. Pre-employment, Recruitment and Placement of
Workers
Reference: Arts. 12-42; POEA Rules; Book 1, Rules
IIIVIII, Omnibus Rules; Migrant Workers and Overseas
Filipinos Act of 1995 (RA 8042); Anti-Trafficking in
Persons Act 2003 (RA 9208) and Rules and Regulations
Implementing RA 9208
1. Pre-employment Policy – Statement of Objectives,
Art. 12 (a) (f); Const., Art. II, Sec. 9; RA 8042, Sec. 2, 4
& 5.
ART. 12. Statement of objectives. - It is the policy of
the State:
a) To promote and maintain a state of full employment
through improved manpower training, allocation and
utilization;
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;
1987 Constitution, Art II, Sec. 9
The State shall promote a just and dynamic social order
that will ensure the prosperity and independence of the
nation and free the people from poverty through policies
that provide adequate social services, promote full
employment, a rising standard of living, and an improved
quality of life for all.
REPUBLIC ACT NO. 8042
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.
SEC. 5. TERMINATION OR BAN ON DEPLOYMENT -
Notwithstanding the provisions of Section 4 hereof, the
government, in pursuit of the national interest or when
public welfare so requires, may, at any time, terminate or
impose a ban on the deployment of migrant workers.
2. Private Sector – Agencies and Entities
a. PARTIES
1. Worker – Art. 13 (a); RA 8042, Sec 3(a), as amended
ART. 13. Definitions. - (a) "Worker" means any member
of the labor force, whether employed or unemployed.
RA 8042, Sec 3(a)
(a) "Migrant worker" refers to a person who is to be
engaged, is engaged or has been engaged in a
enumerated activity in a state of which he or she is not a
legal resident to be used interchangeably with overseas
Filipino worker.

2. Private Employment Agency – Arts. 13 (c) (d), 12
(f), 14 (a)
ART. 13.
(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.
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;
ART. 14. Employment promotion. – The Secretary of
Labor shall have the power and authority:
(a) To organize and establish new employment offices in
addition to the existing employment offices under the
Department of Labor as the need arises;
3. Private Recruitment Entity – Arts. 13 (e) (f), 12 (f),
14 (a)
ART. 13.
(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
. employed to quit his employment in order to offer him
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;
ART. 14. Employment promotion. - The
Secretary of Labor shall have the power and
authority:
(a) To organize and establish new employment offices in
addition to the existing employment offices under the
Department of Labor as the need arises;
b. RECRUITMENT AND PLACEMENT
1. Local Employment, Art. 13 (b)
ART 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.
2. Overseas Employment, Sec. 6, RA 8042
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
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, and 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.
c. ALLOWED AND PROTECTED ENTITIES
1) Allowed Private Agencies and Entities, Arts. 16,
18, 25, 12 (f); 2002 POEA Rules & Regulations, Part I,
Rule II, Sec. 2
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. 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. 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;
2002 POEA Rules & Regulations, Part I, Rule II, Sec. 1
Section 1. Qualifications. Only those who possess the
following qualifications may be permitted to engage in
the business of recruitment and placement of Filipino
workers:
a. Filipino citizens, partnerships or corporations at least
seventy five percent (75%) of the authorized capital
stock of which is owned and controlled by Filipino
citizens;
b. A minimum capitalization of Two Million Pesos
(P2,000,000.00) in case of a single proprietorship
or partnership and a minimum paid-up capital of Two
Million Pesos (P2,000,000.00) in case of a corporation;
Provided that those with existing licenses shall, within
four years from effectivity hereof, increase their
capitalization or paid up capital, as the case may be, to
Two Million Pesos (P2,000,000.00) at the rate of Two
Hundred Fifty Thousand Pesos (P250,000.00) every
year.
c. Those not otherwise disqualified by law or other
government regulations to engage in the
recruitment and placement of workers for overseas
employment.
2. Prohibited Business Agencies and Entities,
Arts.16, 18, 25, 26; 2002 POEA Rules & Regulations,
Part I, Rule II, Sec. 2
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. 25. Private sector participation in the recruitment • Hornales v. NLRC, 364 SCRA 778 (2001)
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.

2002 POEA Rules & Regulations, Part I, Rule II, Sec. 2

Section 2. Disqualification. The following are not
qualified to engage in the business of recruitment and
placement of Filipino workers overseas:
a. Travel agencies and sales agencies of airline
companies;
b. Officers or members of the Board of any corporation
or members in a partnership engaged in the business of
a travel agency;
c. Corporations and partnerships, when any of its
officers, members of the board or partners, is also an
officer, member of the board or partner of a corporation
or partnership engaged in the business of a travel
agency;
d. Persons, partnerships or corporations which have
derogatory records, such as but not limited to the
following:
1) Those certified to have derogatory record or
information by the National Bureau of Investigation or by
the Anti-Illegal Recruitment Branch of the POEA;
2) Those against whom probable cause or prima facie
finding of guilt for illegal recruitment or other related
cases exists;
3) Those convicted for illegal recruitment or other related
cases and/or crimes involving moral turpitude; and
4) Those agencies whose licenses have been previously
revoked or cancelled by the Administration for violation
of RA 8042, PD 442 as amended and their implementing
rules and regulations as well as these rules and
regulations.
All applicants for issuance/renewal of license shall be
required to submit clearances from the National Bureau
of Investigation and Anti-illegal Recruitment Branch,
POEA, including clearances for their respective officers
and employees.
e. Any official or employee of the DOLE, POEA, OWWA,
DFA and other government agencies directly involved in
the implementation of R.A. 8042, otherwise known as
Migrant Workers and Overseas Filipino Act of 1995
and/or any of his/her relatives within the fourth civil d. GOVERNMENT TECHNIQUES OF REGULATION –
degree of consanguinity or affinity; and PRIVATE RECRUITMENT
f. Persons or partners, officers and Directors of 1. Licensing
corporations whose licenses have been previously
cancelled or revoked for violation of recruitment laws
a. Qualifications Arts. 27, 28, 29, 30, 31, 2002 POEA
Rules and Regulations, Part II, Rule I, Section 1 (a) (b)
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.
2002 POEA rules and Regulations, Part II, Rule I,
Section (a) (b)
PART II
LICENSING AND REGULATION
RULE I
PARTICIPATION OF THE PRIVATE SECTOR IN THE
OVERSEAS EMPLOYMENT PROGRAM
Section 1. Qualifications. Only those who possess the
following qualifications may be permitted to engage in
the business of recruitment and placement of Filipino
workers:
a. Filipino citizens, partnerships or corporations at least
seventy five percent (75%) of the authorized capital
stock of which is owned and controlled by Filipino
citizens;
b. A minimum capitalization of Two Million Pesos
(P2,000,000.00) in case of a single proprietorship or
partnership and a minimum paid-up capital of Two
Million Pesos (P2,000,000.00) in case of a corporation;
Provided that those with existing licenses shall, within
four years from effectivity hereof, increase their
capitalization or paid up capital, as the case may be, to
Two Million Pesos (P2,000,000.00) at the rate of Two
Hundred Fifty Thousand Pesos (P250,000.00) every
year.
c. Those not otherwise disqualified by law or other
government regulations to engage in the recruitment and
placement of workers for overseas employment.
b. Issuance of License Arts. 29, 30, 31; 2002 POEA
Rules and Regulations, Part II, Rule II, Secs. 4, 5, 6, 7, 8
&9
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.
POEA Rules and Regulations, Part II, Rule II, Secs. 4, 5,
6, 7, 8 & 9
RULE II
ISSUANCE OF LICENSE
Section 4. Payment of Fees and Posting of Bonds.
Upon approval of the application, the applicant shall pay
a license fee of P50,000.00. It shall submit an Escrow
Agreement in the amount of P1,000,000.00, confirmation
of escrow deposit with an accredited reputable bank and
a surety bond of P100,000.00 from a bonding company
acceptable to the Administration and accredited with the
Insurance Commission. Agencies with existing licenses
shall, within four years from effectivity hereof, increase
their Escrow Deposit to One Million Pesos .
The bonds and escrow shall answer for all valid and
legal claims arising from violations of the conditions for
the grant and use of the license, and/or accreditation
and contracts of employment.
The bonds and escrow shall likewise guarantee
compliance with the provisions of the Code and its
implementing rules and regulations relating to
recruitment and placement, the Rules of the
Administration and relevant issuances of the Department
and all liabilities which the Administration may impose.
The surety bonds shall include the condition “that notice
to the principal is notice to the surety and that any
judgment against the principal in connection with matters
falling under POEA’s/NLRC’s jurisdiction shall be binding
and conclusive on the surety. The surety bonds shall
cover the validity period of the license.
Section 5. Provisional License. Applicants for new
license shall be issued a provisional license which shall
be valid for a limited period of one (1) year within which
the applicant should be able to comply with its
undertaking to deploy 100 workers to its new principal.
The license of a complying agency shall be upgraded to
a full license entitling them to another three years of
operation. Non-complying agencies will be notified of the
expiration of their license.
Section 6. Validity of the License. Except in case of a
provisional license, every license shall be valid for four
(4) years from the date of issuance unless sooner
cancelled, revoked or suspended for violation of
applicable Philippine law, these rules and other pertinent
issuances. Such license shall be valid only at the place/s
stated therein and when used by the licensed person,
partnership or corporation.
Section 7. Non-Transferability of License. No license
shall be transferred, conveyed or assigned to ny person,
partnership or corporation. It shall not be used directly or
indirectly by any person, partnership or corporation other
than the one in whose favor it was issued. In case of
death of the sole proprietor and to prevent disruption of
operation to the prejudice of the interest of legitimate
heirs, the license may be extended upon request of the
heirs, to continue only for the purpose of winding up
business operations.
Section 8. Change of Ownership/Relationship of Single
Proprietorship or Partnership. Transfer or change of
ownership of a single proprietorship licensed to engage
in overseas employment shall cause the automatic
revocation of the license.
A change in the relationship of the partners in a
partnership duly licensed to engage in overseas
employment which materially interrupts the course of the
business or results in the actual dissolution
of the partnership shall likewise cause the automatic
revocation of the license.
Section 9. Upgrading of Single Proprietorship or
Partnerships. License holders which are single
proprietorships or partnerships may, subject to the
guidelines of the Administration, convert into corporation
for purposes of upgrading or raising their capabilities to
respond adequately to developments/changes in the
international labor market and to enable them to better
comply with their responsibilities arising from the
recruitment and deployment of workers overseas.
The approval of merger, consolidation or upgrading shall
automatically revoke or cancel the licenses of the single
proprietorships, partnerships or corporations so merged,
consolidated or
upgraded.
2. Worker’s Fees, Art. 32
ART. 32. Fees to be paid by workers. – Any person
applying with a private fee-charging employment agenc
y for employment assistance shall not be charged an
y 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 ofallowable fees.
3. Reports/Employment Information, Arts.33, 14 (d)
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. 14. Employment promotion. – The Secretary of
Labor shall have the power and authority
(d) To require any person, establishment, organization or
institution to submit such employment information as ma
y be prescribed by the Secretary of Labor.
4. Illegal Recruitments, Art. 34, 38, RA 8042, Sec. 6 &
7 as amended, 8, 9, 10 as amended, 11, 12.
Article 34. Prohibited practices. It shall be unlawful for
any individual, entity, licensee, or holder of authority:
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;
To furnish or publish any false notice or information or
document in relation to recruitment or employment;
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.
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;
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;
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;
To obstruct or attempt to obstruct inspection by the
Secretary of Labor or by his duly authorized
representatives;

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.
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;
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
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.
Article 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.
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
worker's 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 latter's employment
contract has been prematurely terminated through no
fault of his or her own;
"(4) Impose a compulsory and exclusive arrangement
whereby an overseas Filipino worker is required to
undergo health examinations only from specifically
designated medical clinics, institutions, entities or
persons, except in the case of a seafarer whose medical
examination cost is shouldered by the
principal/shipowner;
"(5) Impose a compulsory and exclusive arrangement
whereby an overseas Filipino worker is required to
undergo training, seminar, instruction or schooling of any
kind only from specifically designated institutions,
entities or persons, except fpr recommendatory trainings
mandated by principals/shipowners where the latter
shoulder the cost of such trainings;
"(6) For a suspended recruitment/manning agency to
engage in any kind of recruitment activity including the
processing of pending workers' applications; and
"(7) For a recruitment/manning agency or a foreign
principal/employer to pass on the overseas Filipino
worker or deduct from his or her salary the payment of
the cost of insurance fees, premium or other insurance
related charges, as provided under the compulsory
worker's insurance coverage.
"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.
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.
SEC. 8. PROHIBITION ON OFFICIALS AND
EMPLOYEES. - Ot shall be unlawful for any official or
employee of the Department of Labor and Employment,
the Philippine Overseas Employment Administration, or
the Overseas Workers Welfare Administration, or the
Department of Foreign Affairs, or other government
agencies involved in the implementation of this Act, or
their relatives within the fourth civil degree of
consanguinity or affinity, to engage, directly or indirectly,
in the business of recruiting migrant workers as defined
in this Act. The penalties shall be imposed upon them.
SEC. 9. VENUE. - A criminal action arising from illegal
recruitment as defined herein shall be filed with the
Regional Trial Court of the province or city where the
offense was committed or where the offended party
actually resides at the same time of the commission of
the offense: Provided, That the court where the criminal
action is first filed shall acquire jurisdiction to the
exclusion of other courts. Provided, however, That the
aforestated provisions shall also apply to those criminal
actions that have already been filed in court at the time
of the effectivity of this Act.
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 worker's 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."
SEC. 11. MANADATORY PERIODS FOR
RESOLUTION OF ILLEGAL RECRUITMENT CASES. -
The preliminary investigations of cases under this Act
shall be terminated within a period of thirty (30) calendar
days from the date of their filing. Where the preliminary
investigation is conducted by a prosecution officer and a
prima facie case is established, the corresponding
information shall be filed in court within twenty-four (24)
hours from the termination of the investigation. If the
preliminary investigation is conducted by a judge and a
prima facie case is found to exist, prosecution officer
within forty-eight (48) hours from the date of receipt of
the records of the case.
SEC. 12. PRESCRIPTIVE PERIODS. - Illegal
recruitment cases under this Act shall prescribe in five
(5) years: Provided, however, That illegal recruitment
cases involving economic sabotage as defined herein
shall prescribe in twenty (20) years.
a. Prohibited Practices
b. Undertaken by non-licensees, non-holders
• People v. Domingo 584 SCRA 669 (2009)
PEOPLE OF THE PHILIPPINES v. LARRY “LAURO”
DOMINGO 584 SCRA 669 (2009), SECOND DIVISION
(Carpio Morales, J.)
A testimony solemnly given in court should not be set
aside lightly, least of all by a mere affidavit executed
after the lapse of considerable time.
FACTS: Appellant Larry Domingo (Domingo) was
charged with Illegal Recruitment (Large Scale) and two
(2) counts of Estafa before Regional Trial Court (RTC) of
Malolos, Bulacan. Domingo, denied all the accusations
against him and claimed that he was a driver hired by
the real recruiter, Gimeno, whom he met inside the
Victory Liner Bus bound for Manila in September, 2000
Domingo likewise presented as witnesses private
complainants Enrico Espiritu and Roberto Castillo who
corroborated his claim that it was Gimeno who actually
recruited them, and that the filing of the complaint
against appellant was a desperate attempt on their part
to get even because Gimeno could not be located.
Prosecution witness Simeon Cabigao (Cabigao) testified
that he was among those who were recruited by
Domingo, but he later on recanted his testimony. By
Joint Decision, the trial court found Domingo guilty
beyond reasonable doubt of Illegal Recruitment (Large
Scale) and of 2 counts of Estafa.
On appeal to the Court of Appeals, Domingo maintained
that the trial court erred for failing to give weight to
Cabigao‘s retraction. The Court of Appeals affirmed the
decision of the trial court on all accounts. Hence, the
present petition.
ISSUE: Whether or not the retraction of Cabigao should
be given weight
HELD: That one of the original complaining witnesses,
Cabigao, later recanted, via an affidavit and his
testimony in open court, does not necessarily cancel an
earlier declaration. Like any other testimony, the same is
subject to the test of credibility and should be received
with caution. For a testimony solemnly given in court
should not be set aside lightly, least of all by a mere
affidavit executed after the lapse of considerable time. In
the case at bar, the Affidavit of Recantation was
executed three years after the complaint was filed. It is
thus not unreasonable to consider his retraction an
afterthought to deny its probative value.
At all events, and even with Cabigao‘s recantation, the
Supreme Court finds that the prosecution evidence
consisting of the testimonies of the four other
complainants, whose credibility has not been impaired,
has not been overcome.
• People v. Gallo 616 SCRA 162 (2010)
PEOPLE OF THE PHILIPPINES, Petitioner,
vs. RODOLFO GALLO y GADOT, Accused-Appellant,
FIDES PACARDO y JUNGCO and PILAR MANTA y
DUNGO, Accused.
Facts: Accused-appellant Gallo... were charged with
syndicated illegal recruitment and eighteen (18) counts
of estafa. after trial, accused-appellant was found guilty
beyond reasonable doubt... for syndicated illegal
recruitment and estafa, respectively.
The present appeal concerns solely accused-appellant's
conviction for syndicated illegal recruitment... and for
estafa... the said accused... representing themselves to
have the capacity to... contract, enlist and transport
Filipino workers for employment abroad... and promise
employment/job placement abroad... in Korea as factory
workers... and charge or accept directly or indirectly...
from... the amount of P30,000.00
P120,000.00 as placement fees... and without valid
reasons and without the... fault of the said complainants
failed to actually deploy them and failed to reimburse the
expenses incurred by the said complainants in
connection with their documentation and processing for
purposes of their deployment.
Accused-appellant avers that he cannot be held
criminally liable for illegal recruitment because he was
neither an officer nor an employee of the recruitment
agency.
He alleges that the trial court erred in adopting the
asseveration of the private complainant that he was
indeed... an employee because such was not duly
supported by competent evidence.
Issues:
The court a quo gravely erred in finding the accused-
appellant guilty of illegal recruitment committed by a
syndicate despite the failure of the prosecution to prove
the same beyond reasonable doubt.
Ruling:
We disagree.
To commit syndicated illegal recruitment, three elements
must be established: (1) the offender undertakes either
any activity within the meaning of "recruitment and
placement" defined under Article 13(b), or any of the
prohibited practices enumerated under Art. 34 of the
Labor
Code; (2) he has no valid license or authority required by
law to enable one to lawfully engage in recruitment and
placement of workers;... and (3) the illegal recruitment is
committed by a group of three (3) or more persons
conspiring or confederating with... one another.
We believe that the prosecution was able to establish
the elements of the offense sufficiently. The evidence
readily reveals that MPM Agency was never licensed by
the POEA to recruit workers for overseas employment.
In the instant case,... Testimonial evidence presented by
the prosecution clearly shows that, in consideration of a
promise of foreign employment, accused-appellant
received the amount of Php 45,000.00 from
Dela Caza. When accused-appellant made
misrepresentations concerning the agency's purported
power and authority to recruit for overseas employment,
and in the process, collected money in the guise of
placement fees, the former clearly committed acts
constitutive of illegal... recruitment.
Additionally, accused-appellant cannot argue that the
trial court erred in finding that he was indeed an
employee of the recruitment agency. On the contrary, his
active participation in the illegal recruitment is
unmistakable. The fact that he was the one who issued
and signed... the official receipt belies his profession of
innocence.
This Court likewise finds the existence of a conspiracy
between the accused-appellant and the other persons in
the agency who are currently at large, resulting in the
commission of the crime of syndicated illegal
recruitment.
It cannot be denied that the accused-appellent together
with... the rest of the officers and employees of MPM
Agency participated in a network of deception. Verily, the
active involvement of each in the recruitment scam was
directed at one single purpose
To divest complainants with their money on the pretext
of guaranteed employment abroad.
√
FACTS: Originally, accused-appellant Gallo and
accused Fides Pacardo (“Pacardo”) and Pilar Manta
(“Manta”), together with Mardeolyn Martir (“Mardeolyn”)
and nine (9) others [including herein accused-appellant,
were charged with syndicated illegal recruitment and
eighteen (18) counts of estafa committed against
eighteen complainants.
NOTE: Basta ang nangyari, the trial proceeded while
some of the accused were at large. Some cases were
provisionally dismissed due to non-appearance. Pacardo
and Manta were acquitted. While herein accused-
appellant (GALLO) was convicted for syndicated illegal
recruitment. Hence, this appeal by Gallo alone.
In Criminal Case No. 02-206293, the information
charges the accused-appellant, together with the others,
as follows:
The undersigned accuses xxx of a violation of Section
6(a), (l) and (m) of Republic Act 8042, otherwise known
as the Migrant Workers and Overseas Filipino Workers
Act of 1995, committed by a syndicate and in large
scale,
When arraigned GALLO pleaded not guilty; pre-trial was
terminated and trial ensued, thereafter.
VERSION OF THE PROSECUTION: Dela Caza was
introduced by Eleanor Panuncio to accused-appellant
Gallo, Pacardo, Manta, Mardeolyn, Lulu Mendanes, Yeo
Sin Ung and another Korean national at the office of
MPM International Recruitment and Promotion Agency
(“MPM Agency”) located in Malate, Manila; Other
accused were introduced as board members, officers
and employees of MPM.
Accused-appellant Gallo then introduced himself as a
relative of Mardeolyn and informed Dela Caza that the
agency was able to send many workers abroad.
Together with Pacardo and Manta, he also told Dela
Caza about the placement fee of One Hundred Fifty
Thousand Pesos (PhP 150,000) with a down payment of
Forty-Five Thousand Pesos (PhP 45,000) and the
balance to be paid through salary deduction; Dela Caza,
together with the other applicants, were briefed.
With accused-appellant’s assurance that many workers
have been sent abroad, as well as the presence of the
two (2) Korean nationals and upon being shown the
visas procured for the deployed workers, Dela Caza was
convinced to part with his money. Thus, on May 29,
2001, he paid Forty-Five Thousand Pesos (PhP 45,000)
to MPM Agency through accused-appellant Gallo.
Two (2) weeks after paying MPM Agency, Dela Caza
went back to the agency’s office in Malate, Manila only
to discover that the office had moved to a new location
at Batangas Street, Brgy. San Isidro, Makati. He
proceeded to the new address and found out that the
agency was renamed to New Filipino Manpower
Development & Services, Inc. (“New Filipino”).
Dela Caza decided to withdraw his application and
recover the amount he paid; Gallo even denied any
knowledge about the money. After two (2) more months
of waiting in vain to be deployed, Dela Caza and the
other applicants decided to take action.
VERSION OF THE DEFENSE: For his defense,
accused-appellant denied having any part in the
recruitment of Dela Caza. In fact, he testified that he also
applied with MPM Agency for deployment to Korea as a
factory worker; in order to facilitate the processing of his
papers, he agreed to perform some tasks for the agency,
such as taking photographs of the visa and passport of
applicants, running errands and performing such other
tasks assigned to him, without salary except for some
allowance. He said that he only saw Dela Caza one or
twice at the agency’s office when he applied for work
abroad. Lastly, that he was also promised deployment
abroad but it never materialized.
DEVELOPMENT OF THE CASE: RTC rendered its
Decision convicting the accused of syndicated illegal
recruitment and estafa; CA affirmed; accused-appellant
filed a timely appeal before this Court.
ISSUE: WON accused-appellant is guilty of illegal
recruitment committed by a syndicate and estafa.
HELD: YES
The appeal has no merit.
Accused-appellant avers that he cannot be held
criminally liable for illegal recruitment because he was
neither an officer nor an employee of the recruitment
agency. He alleges that the trial court erred in adopting
the asseveration of the private complainant that he was
indeed an employee because such was not duly
supported by competent evidence.
We disagree.
To commit syndicated illegal recruitment, three elements
must be established: (1) the offender undertakes either
any activity within the meaning of “recruitment and
placement” defined under Article 13(b), or any of the
prohibited practices enumerated under Art. 34 of the
Labor Code; (2) he has no valid license or authority
required by law to enable one to lawfully engage in
recruitment and placement of workers;8 and (3) the
illegal recruitment is committed by a group of three (3) or
more persons conspiring or confederating with one
another.9 When illegal recruitment is committed by a
syndicate or in large scale, i.e., if it is committed against
three (3) or more persons individually or as a group, it is
considered an offense involving economic sabotage.
After a thorough review of the records, we believe that
the prosecution was able to establish the elements of the
offense sufficiently. The evidence readily reveals that
MPM Agency was never licensed by the POEA to recruit
workers for overseas employment.
Even with a license, however, illegal recruitment could
still be committed under Section 6 of Republic Act No.
8042 (“R.A. 8042”), otherwise known as the Migrants
and Overseas Filipinos Act of 1995 (See Notes).
In the instant case, accused-appellant committed the
acts enumerated in Sec. 6 of R.A. 8042. Testimonial
evidence presented by the prosecution clearly shows
that, in consideration of a promise of foreign
employment, accused-appellant received the amount of
Php 45,000.00 from Dela Caza. When accused-
appellant made misrepresentations concerning the
agency’s purported power and authority to recruit for
overseas employment, and in the process, collected
money in the guise of placement fees, the former clearly
committed acts constitutive of illegal recruitment.
Essentially, Dela Caza appeared very firm and
consistent in positively identifying accused-appellant as
one of those who induced him and the other applicants
to part with their money. His testimony showed that
accused-appellant made false misrepresentations and
promises in assuring them that after they paid the
placement fee, jobs in Korea as factory workers were
waiting for them and that they would be deployed soon.
On the contrary, his active participation in the illegal
recruitment is unmistakable. The fact that he was the
one who issued and signed the official receipt belies his
profession of innocence.
This Court likewise finds the existence of a conspiracy
between the accused-appellant and the other persons in
the agency who are currently at large, resulting in the
commission of the crime of syndicated illegal
recruitment. Verily, the active involvement of each in the
recruitment scam was directed at one single purpose –
to divest complainants with their money on the pretext of
guaranteed employment abroad.
Estafa
The prosecution likewise established that accused-
appellant is guilty of the crime of estafa as defined under
Article 315 paragraph 2(a) of the Revised Penal Code
(See notes)
The elements of estafa in general are: (1) that the
accused defrauded another (a) by abuse of confidence,
or (b) by means of deceit; and (2) that damage or
prejudice capable of pecuniary estimation is caused to
the offended party or third person.
All these elements are present in the instant case: the
accused-appellant, together with the other accused at
large, deceived the complainants into believing that the
agency had the power and capability to send them
abroad for employment; that there were available jobs
for them in Korea as factory workers; that by reason or
on the strength of such assurance, the complainants
parted with their money in payment of the placement
fees; that after receiving the money, accused-appellant
and his co-accused went into hiding by changing their
office locations without informing complainants; and that
complainants were never deployed abroad. As all these
representations of the accused-appellant proved false,
paragraph 2(a), Article 315 of the Revised Penal Code is
thus applicable.1avvphi1
Defense of Denial Cannot Prevail over Positive
Identification
APPEAL Denied.
________________
NOTES:
Contents of the Information
That in or about and during the period comprised
between November 2000 and December, 2001,
inclusive, in the City of Manila, Philippines, the said
accused conspiring and confederating together and
helping with one another, representing themselves to
have the capacity to contract, enlist and transport
Filipino workers for employment abroad, did then and
there willfully and unlawfully, for a fee, recruit and
promise employment/job placement abroad to xxxx in
Korea as factory workers and charge or accept directly
or indirectly from said xxxx as placement fees in
connection with their overseas employment, which
amounts are in excess of or greater than those specified
in the schedule of allowable fees prescribed by the
POEA Board Resolution No. 02, Series 1998, and
without valid reasons and without the fault of the said
complainants failed to actually deploy them and failed to
reimburse the expenses incurred by the said
complainants in connection with their documentation and
processing for purposes of their deployment.
Sec. 6 of RA 8042
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 a 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 act, 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 any amount
greater than that actually received by him as a loan or
advance;
xxxx
(l) Failure to actually deploy without valid reason as
determined by the Department of Labor and
Employment; and
(m) Failure to reimburse expenses incurred by the
worker in connection with his documentation and
processing for purposes of deployment and processing
for purposes of deployment, in cases where the
deployment does not actually take place without the
worker’s fault. Illegal recruitment when committed by a
syndicate or in large scale shall be considered an
offense involving economic sabotage.
nature of conspiracy in the context of illegal recruitment:
Conspiracy to defraud aspiring overseas contract
workers was evident from the acts of the malefactors
whose conduct before, during and after the commission
of the crime clearly indicated that they were one in
purpose and united in its execution. Direct proof of
previous agreement to commit a crime is not necessary
as it may be deduced from the mode and manner in
which the offense was perpetrated or inferred from the
acts of the accused pointing to a joint purpose and
design, concerted action and community of interest. As
such, all the accused, including accused-appellant, are
equally guilty of the crime of illegal recruitment since in a
conspiracy the act of one is the act of all.
ART. 315, RPC
Art. 315. Swindling (estafa). – Any person who shall
defraud another by any means mentioned hereinbelow…
xxxx
By means of any of the following false pretenses or
fraudulent acts executed prior to or simultaneously with
the commission of the fraud:
(a) By using fictitious name, or falsely pretending to
possess power, influence, qualifications, property, credit,
agency, business or imaginary transactions; or by
means of other similar deceits.
Note:
• Salazar v. Achacoso, 183 SCRA 145 (1990) Article 38
(c) was declared unconstitutional; only a judge may
issue warrants of search and arrest
5. Enforcement
a. Regulatory Power, Art. 36
Article 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.
b. Rule Making Power, Art. 36
Article 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.
c. Visitorial Power, Art. 37
Article 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.
6. Joint and Several Liability of Agent and Principal
POEA Rules, Part II, Rule II, Sec. 1 (f); RA 8042, Sec.
10, 2nd Paragraph
POEA Rules, Part II, Rule II, Sec. 1 (f)
PART II
LICENSING AND REGULATION
RULE II
ISSUANCE OF LICENSE
Section 1. Requirements for Licensing. Every applicant
for license to operate a private employment agency shall
submit a written application together with the following
requirements:
f. A verified undertaking stating that the applicant:
1. Shall select only medically and technically qualified
recruits;
2. Shall assume full and complete responsibility for all
claims and liabilities which may arise in connection with
the use of the license;
3. Shall assume joint and solidary liability with the
employer for all claims and liabilities which may arise in
connection with the implementation of the contract,
including but not limited to payment of wages, death and
disability compensation and repatriations;
4. Shall guarantee compliance with the existing labor
and social legislations of the Philippines and of the
country of employment of the recruited workers;
5. Shall assume full and complete responsibility for all
acts of its officials, employees and representatives done
in connection with recruitment and placement;
6. Shall negotiate for the best terms and conditions of
employment;
7. Shall disclose the full terms and conditions of
employment to the applicant workers;
8. Shall deploy at least 100 workers to its new markets
within one (1) year from the issuance of its license;
9. Shall provide orientation on recruitment procedures,
terms and conditions and other relevant information to its
workers and provide facilities therefor; and
10. Shall repatriate the deployed workers and his
personal belongings when the need arises.
For the purpose of compliance with item (1), the agency
may require the worker to undergo trade testing and
medical examination only after the worker has been pre-
qualified for employment.
RA 8042, Sec. 10, 2nd Paragraph
SEC. 10. MONEY CLAIMS
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.
7. Jurisdiction
a. RTC over Criminal Action arising from Illegal
Recruitment, RA No. 8042, Sec. 9
SEC. 9. VENUE. - A criminal action arising from illegal
recruitment as defined herein shall be filed with the
Regional Trial Court of the province or city where the
offense was committed or where the offended party
actually resides at the same time of the commission
of the offense: Provided, That the court where the
criminal action is first filed shall acquire jurisdiction to
the exclusion of other courts. Provided, however, that
the afore-stated provisions shall also apply to those
criminal actions that have already been filed in court
at the time of the effectivity of this Act.
b. LA over Money Claims, RA 8042, Sec. 10
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 priginal and exclusive jurisdiction to hear and
decide, within ninety (90) calendar days after filing of the
complaint, the claims
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.
• Flourish Maritime Shipping v. Almanzor, 568 SCRA
713 (2008) Nachura, J.
In case of unjust, invalid or unauthorized termination of
overseas employment, where the term of the
employment contract is atleast one year or more, the
worker shall be entitled to a salary of threemonths for
ever year of the unexpired term, in accord with Section
10 of RA8042
Nachura, J.
Labor Law. The choice of which amount to
award an illegally dismissed overseas contract worker,
i.e., whether his salaries for the unexpired portion of his
employment contract, or three (3) months’ salary for
every year of the unexpired term, whichever is less,
comes into play only when the employment contract
concerned has a term of at least one (1) year or more.
Facts: Respondent Almanzor entered into a two-year
employment contract with petitioner Flourish Maritime
Shipping as fisherman and was deployed to Taipei,
Taiwan. While on board, he was given an instruction
which he did not understand and therefore was unable to
obey. The master of the vessel struck him and refused
his requested medical assistance. Respondent was
repatriated to the Philippines but was not redeployed as
promised, thus the complaint for illegal dismissal,
payment for the unexpired portion of his employment
contract, earned wages, moral and exemplary damages
plus attorney’s fees.
Petitioners Flourish Maritime Shipping and Uy
contended that respondent voluntarily resigned and that
the same did not comply with the grievance machinery
and arbitration clause embodied in the employment
contract.
The Labor Arbiter rendered a decision in favour
of respondent, awarding him six months of his monthly
pay (3months for every year of the unexpired term). On
appeal, the NLRC affirmed in toto the Labor Arbiter’s
findings. The Court of Appeals, on petition for certiorari,
modified the NLRC decision by increasing the monetary
award due respondent. The Court of Appeals awarded
respondent the unexpired portion of the first year (11
months and 4 days) and 3 months for the unexpired
second year, for a total of 14 months and 4 days.
Issue No. 1: WON respondent was illegally dismissed
from employment.
Held: YES.
Ratio: Petitioners, as concluded by the Labor Arbiter,
failed to adduce any convincing evidence to establish its
claim that respondent voluntarily residned from
employment. Likewise, the NLRC held that petitioners
failed to show that respondent was not physically fit to
perform work due to his old age. Neither was it proved
that the employment contract indeed provided a
grievance machinery. Both labor tribunals correctly
concluded, as affirmed by the Court of Appeals, that
respondent was not redeployed for work, in violation of
their employment contract. Perforce, the termination of
respondent’s services is without just or valid cause.
Issue No. 2:
WON the award made by the Court of Appeals was
contrary to law.
Held: YES.
Ratio:
Section 10 of R.A. 8042 provides:
Section 10. Money Claims. – x x x
xxxx
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.
x x x x.
 The correct interpretation of this provision was
settled in Marsaman Manning Agency Inc. v. NLRC
where this Court held that “the choice of which amount
to award an illegally dismissed overseas contract
worker, i.e., whether his salaries for the unexpired
portion of his employment contract, or three (3) months’
salary for every year of the unexpired term, whichever is
less,” comes into play only when the employment
contract concerned has a term of at least one year or
more.
The employment contract involved in the instant
case covers a two-year period but the overseas contract
worker actually worked for only 26 days prior to his
illegal dismissal. Thus, the three months’ salary rule
applies. Respondent, therefore, is entitled to six (6)
months’ salary as correctly held by the Labor Arbiter and
affirmed by the NLRC.
Note: Serrano v. Galant Maritime Services, Inc., 582
SCRA 254 (2009) – The clause “or for three (3) months
for every year of the unexpired term, whichever is less”
is unconstitutional for being violative of the equal
protection clause.
• Sameer Overseas Placement Agency, Inc. vs. Cabiles
G.R. No. 170139, August 5, 2014
PONENTE: Leonen
TOPIC: Section 10 of RA 8042 vis-a-vis Section 7 of RA
10022
FACTS: Petitioner, Sameer Overseas Placement
Agency, Inc., is a recruitment and placement agency.
Respondent Joy Cabiles was hired thus
signed a one-year employment contract for a monthly
salary of NT$15,360.00. Joy was deployed to work for
Taiwan Wacoal, Co. Ltd. (Wacoal) on June 26, 1997.
She alleged that in her employment contract, she agreed
to work as quality control for one year. In Taiwan, she
was asked to work as a cutter.
Sameer claims that on July 14, 1997, a certain
Mr. Huwang from Wacoal informed Joy, without prior
notice, that she was terminated and that “she should
immediately report to their office to get her salary and
passport.” She was asked to “prepare for immediate
repatriation.” Joy claims that she was told that from June
26 to July 14, 1997, she only earned a total of
NT$9,000.15 According to her, Wacoal deducted
NT$3,000 to cover her plane ticket to Manila.
On October 15, 1997, Joy filed a complaint for
illegal dismissal with the NLRC against petitioner and
Wacoal. LA dismissed the complaint. NLRC reversed
LA’s decision. CA affirmed the ruling of the National
Labor Relations Commission finding respondent illegally
dismissed and awarding her three months’ worth of
salary, the reimbursement of the cost of her repatriation,
and attorney’s fees
ISSUE: Whether or not Cabiles was entitled to the
unexpired portion of her salary due to illegal dismissal.
HELD: YES. The Court held that the award of the three-
month equivalent of respondent’s salary should be
increased to the amount equivalent to the unexpired
term of the employment contract.
In Serrano v. Gallant Maritime Services, Inc.
and Marlow Navigation Co., Inc., this court ruled that the
clause “or for three (3) months for every year of the
unexpired term, whichever is less” is unconstitutional for
violating the equal protection clause and substantive due
process.
A statute or provision which was declared
unconstitutional is not a law. It “confers no rights; it
imposes no duties; it affords no protection; it creates no
office; it is inoperative as if it has not been passed at all.”
The Court said that they are aware that the
clause “or for three (3) months for every year of the
unexpired term, whichever is less” was reinstated in
Republic Act No. 8042 upon promulgation of Republic
Act No. 10022 in 2010.
Ruling on the constitutional issue
In the hierarchy of laws, the Constitution is
supreme. No branch or office of the government may
exercise its powers in any manner inconsistent with the
Constitution, regardless of the existence of any law that
supports such exercise. The Constitution cannot be
trumped by any other law. All laws must be read in light
of the Constitution. Any law that is inconsistent with it is
a nullity.
Thus, when a law or a provision of law is null
because it is inconsistent with the Constitution, the nullity
cannot be cured by reincorporation or reenactment of
the same or a similar law or provision. A law or provision
of law that was already declared unconstitutional
remains as such unless circumstances have so changed
as to warrant a reverse conclusion.
The Court observed that the reinstated clause,
this time as provided in Republic Act. No. 10022,
violates the constitutional rights to equal protection and
due process.96 Petitioner as well as the Solicitor
General have failed to show any compelling change in
the circumstances that would warrant us to revisit the
precedent.
The Court declared, once again, the clause,
“or for three (3) months for every year of the unexpired
term, whichever is less” in Section 7 of Republic Act No.
10022 amending Section 10 of Republic Act No. 8042 is
declared unconstitutional and, therefore, null and void.
c. POEA over Administrative Cases
1. Pre-employment Cases, Omnibus rules Impl.
RA No. 8042, Sec. 28 (a)
Sec. 28. Jurisdiction of the POEA. – The POEA shall
exercise original and exclusive jurisdiction to hear and
decide:
(a) all cases, which are administrative in character,
involving or arising out of violations of rules and
regulations relating to licensing and registration of
recruitment and employment agencies or entities;
2. Disciplinary Cases, Omnibus rules Impl.
RA No. 8042, Sec. 28 (b)
(b) disciplinary action cases and other
special cases, which are administrative in
character, involving employers,
principals, contracting partners and
Filipino migrant workers
3. Public Sector Agencies – Employment Offices,
Art. 12(f); 14 (a); Sec. 3, Reorganizing POEA (EO No.
247); POEA Rules and Regulations
Article 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;
Article 14. Employment promotion. The Secretary of
Labor shall have the power and authority:
(a) To organize and establish new employment offices in
addition to the existing employment offices under the
Department of Labor as the need arises;
EO No. 247, Sec. 3. Powers and Functions. - In the
pursuit of its mandate, the Administration shall have the
following powers and functions:
(a) Regulate private sector participation in the
recruitment and overseas placement of workers by
setting up a licensing and registration system;
(b) 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;
(c) Protect the rights of Filipino workers for overseas
employment to fair and equitable recruitment and
employment practices and ensure their welfare;
(d) Exercise original and exclusive jurisdiction to hear
and decide all claims arising out of an employer-
employee relationship or by virtue of any law or contract
involving Filipino workers for overseas employment
including the disciplinary cases; and all pre-employment
cases which are administrative in character involving or
arising out of violation or requirement laws, rules and
regulations including money claims arising therefrom, or
violation of the conditions for issuance of license or
authority to recruit workers.
All prohibited recruitment activities and practices which
are penal in character as enumerated and defined under
and by virtue of existing laws, shall be prosecuted in the
regular courts in close coordination with the appropriate
Departments and agencies concerned;
(e) Maintain a registry of skills for overseas placement;
(f) Recruit and place workers to service the requirements
for trained and competent Filipino workers by foreign
governments and their instrumentalities and such other
employers as public interest may require;
(g) Promote the development of skills and careful
selection of Filipino workers;
(h) Undertake overseas market development activities
for placement of Filipino workers;
(i) Secure the best terms and conditions of employment
of Filipino contract workers and ensure compliance
therewith;
(j) Promote and protect the well-being of Filipino workers
overseas;
(k) Develop and implement programs for the effective
monitoring of returning contract workers, promoting their
retraining and re-employment or their smooth re-
integration into the mainstream of national economy in
coordination with other government agencies;
(l) Institute a system for ensuring fair and speedy
disposition of cases involving violation or recruitment
rules and regulations as well as violation of terms and
conditions of overseas employment;
(m) Establish a system for speedy and efficient
enforcement of decisions laid down through the exercise
of its adjudicatory function;
(n) Establish and maintain close relationship and enter
into joint projects with the Department of Foreign Affairs,
Philippine Tourism Authority, Manila International Airport
Authority, Department of Justice, Department of Budget
and Management and other relevant government
entities, in the pursuit of its objectives. The
Administration shall also establish and maintain joint
projects with private organizations, domestic or foreign,
in the furtherance of its objectives.
4. Sanctions
a. Local Employment, Art. 39
Article 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.
b. Overseas Employment, Art. 35, RA 8042, Secs. 6, 7
& 10 as amended
Article 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.
RA 8042, Secs. 6, 7 & 10 as amended
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
worker's 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 latter's employment
contract has been prematurely terminated through no
fault of his or her own;
"(4) Impose a compulsory and exclusive arrangement
whereby an overseas Filipino worker is required to
undergo health examinations only from specifically
designated medical clinics, institutions, entities or
persons, except in the case of a seafarer whose medical
examination cost is shouldered by the
principal/shipowner;
"(5) Impose a compulsory and exclusive arrangement
whereby an overseas Filipino worker is required to
undergo training, seminar, instruction or schooling of any
kind only from specifically designated institutions,
entities or persons, except fpr recommendatory trainings
mandated by principals/shipowners where the latter
shoulder the cost of such trainings;
"(6) For a suspended recruitment/manning agency to
engage in any kind of recruitment activity including the
processing of pending workers' applications; and
"(7) For a recruitment/manning agency or a foreign
principal/employer to pass on the overseas Filipino
worker or deduct from his or her salary the payment of
the cost of insurance fees, premium or other insurance
related charges, as provided under the compulsory
worker's insurance coverage.
"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.
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.
SEC. 8. PROHIBITION ON OFFICIALS AND
EMPLOYEES. - Ot shall be unlawful for any official or
employee of the Department of Labor and Employment,
the Philippine Overseas Employment Administration, or
the Overseas Workers Welfare Administration, or the
Department of Foreign Affairs, or other government
agencies involved in the implementation of this Act, or
their relatives within the fourth civil degree of
consanguinity or affinity, to engage, directly or indirectly,
in the business of recruiting migrant workers as defined
in this Act. The penalties shall be imposed upon them.
SEC. 9. VENUE. - A criminal action arising from illegal
recruitment as defined herein shall be filed with the
Regional Trial Court of the province or city where the
offense was committed or where the offended party
actually resides at the same time of the commission of
the offense: Provided, That the court where the criminal
action is first filed shall acquire jurisdiction to the
exclusion of other courts. Provided, however, That the
aforestated provisions shall also apply to those criminal
actions that have already been filed in court at the time
of the effectivity of this Act.
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 worker's 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."
5. Issues and Questions on Overseas Employment
6. Trafficking in Persons, RA 9208 and Rules and
Regulations Implementing RA 9208
REPUBLIC OF THE PHILIPPINES
Congress of the Philippines
Metro Manila
Twelfth Congress
Second Regular Session
Begun held in Metro Manila on Monday, the twenty-
second day of July, two thousand two
Republic Act No. 9208
May 26, 2003
AN ACT TO INSTITUTE POLICIES TO ELIMINATE
TRAFFICKING IN PERSONS ESPECIALLY WOMEN
AND CHILDREN, ESTABLISHING THE NECESSARY
INSTITUTIONAL MECHANISMS FOR THE
PROTECTION AND SUPPORT OF TRAFFICKED
PERSONS, PROVIDING PENALTIES FOR ITS
VIOLATIONS, AND FOR OTHER
Be it enacted by the Senate and the House of
Representatives of the Philippines in Congress
assembled:
Section 1. Title. This Act shall be known as the “Anti-
Trafficking in Persons Act of 2003”.
Section 2. Declaration of Policy. – It is hereby declared
that the State values the dignity of every human person
and guarantees the respect of individual rights. In pursuit
of this policy, the State shall give highest priority to the
enactment of measures and development of programs
that will promote human dignity, protect the people from
any threat of violence and exploitation, eliminate
trafficking in persons, and mitigate pressures for
involuntary migration and servitude of persons, not only
to support trafficked persons but more importantly, to
ensure their recovery, rehabilitation and reintegration
into the mainstream of society.
It shall be a State policy to recognize the equal rights
and inherent human dignity of women and men as
enshrined in the United Nations Universal Declaration on
Human Rights, United Nations Convention on the Rights
of the Child, United Nations Convention on the
Protection of Migrant Workers and their Families. United
Nations Convention Against Transnational Organized
Crime Including its Protocol to Prevent, Suppress and
Punish Trafficking in Persons, Especially Women and
Children and all other relevant and universally accepted
human rights instruments and other international
conventions to which the Philippines is a signatory.
Section 3. Definition of Terms. – As used in this Act:
(a) Trafficking in Persons – refers to the recruitment,
transportation, transfer or harboring, or receipt of
persons with or without the victim’s consent or
knowledge, within or across national borders by means
of threat or use of force, or other forms of coercion,
abduction, fraud, deception, abuse of power or of
position, taking advantage of the vulnerability of the
person, or, the giving or receiving of payments or
benefits to achieve the consent of a person having
control over another person for the purpose of
exploitation which includes at a minimum, the
exploitation or the prostitution of others or other forms of
sexual exploitation, forced labor or services, slavery,
servitude or the removal or sale of organs.
The recruitment, transportation, transfer, harboring or
receipt of a child for the purpose of exploitation shall also
be considered as “trafficking in persons” even if it does
not involve any of the means set forth in the preceding
paragraph.
(b) Child – refers to a person below eighteen (18) years
of age or one who is over eighteen (18) but is unable to
fully take care of or protect himself/herself from abuse,
neglect, cruelty, exploitation, or discrimination because
of a physical or mental disability or condition.
(c) Prostitution – refers to any act, transaction, scheme
or design involving the use of a person by another, for
sexual intercourse or lascivious conduct in exchange for
money, profit or any other consideration.
(d) Forced Labor and Slavery – refer to the extraction of
work or services from any person by means of
enticement, violence, intimidation or threat, use of force
or coercion, including deprivation of freedom, abuse of
authority or moral ascendancy, debt-bondage or
deception.
(e) Sex Tourism – refers to a program organized by
travel and tourism-related establishments and individuals
which consists of tourism packages or activities, utilizing
and offering escort and sexual services as enticement
for tourists. This includes sexual services and practices
offered during rest and recreation periods for members
of the military.
(f) Sexual Exploitation – refers to participation by a
person in prostitution or the production of pornographic
materials as a result of being subjected to a threat,
deception, coercion, abduction, force, abuse of authority,
debt bondage, fraud or through abuse of a victim’s
vulnerability.
(g) Debt Bondage – refers to the pledging by the debtor
of his/her personal services or labor or those of a person
under his/her control as security or payment for a debt,
when the length and nature of services is not clearly
defined or when the value of the services as reasonably
assessed is not applied toward the liquidation of the
debt.
(h) Pornography – refers to any representation, through
publication, exhibition, cinematography, indecent shows,
information technology, or by whatever means, of a
person engaged in real or simulated explicit sexual
activities or any representation of the sexual parts of a
person for primarily sexual purposes.
(i) Council – shall mean the Inter-Agency Council
Against Trafficking created under Section 20 of this Act.
Section 4. Acts of Trafficking in Persons. – It shall be
unlawful for any person, natural or juridical, to commit
any of the following acts:
(a) To recruit, transport, transfer; harbor, provide, or
receive a person by any means, including those done
under the pretext of domestic or overseas employment
or training or apprenticeship, for the purpose of
prostitution, pornography, sexual exploitation, forced
labor, slavery, involuntary servitude or debt bondage;
(b) To introduce or match for money, profit, or material,
economic or other consideration, any person or, as
provided for under Republic Act No. 6955, any Filipino
woman to a foreign national, for marriage for the
purpose of acquiring, buying, offering, selling or trading
him/her to engage in prostitution, pornography, sexual
exploitation, forced labor, slavery, involuntary servitude
or debt bondage;
(c) To offer or contract marriage, real or simulated, for
the purpose of acquiring, buying, offering, selling, or
trading them to engage in prostitution, pornography,
sexual exploitation, forced labor or slavery, involuntary
servitude or debt bondage;
(d) To undertake or organize tours and travel plans
consisting of tourism packages or activities for the
purpose of utilizing and offering persons for prostitution,
pornography or sexual exploitation;
(e) To maintain or hire a person to engage in prostitution
or pornography;
(f) To adopt or facilitate the adoption of persons for the
purpose of prostitution, pornography, sexual exploitation,
forced labor, slavery, involuntary servitude or debt
bondage;
(g) To recruit, hire, adopt, transport or abduct a person,
by means of threat or use of force, fraud, deceit,
violence, coercion, or intimidation for the purpose of
removal or sale of organs of said person; and
(h) To recruit, transport or adopt a child to engage in
armed activities in the Philippines or abroad.
Section 5. Acts that Promote Trafficking in Persons. –
The following acts which promote or facilitate trafficking
in persons, shall be unlawful:
(a) To knowingly lease or sublease, use or allow to be
used any house, building or establishment for the
purpose of promoting trafficking in persons;
(b) To produce, print and issue or distribute unissued,
tampered or fake counseling certificates, registration
stickers and certificates of any government agency
which issues these certificates and stickers as proof of
compliance with government regulatory and pre-
departure requirements for the purpose of promoting
trafficking in persons;
(c) To advertise, publish, print, broadcast or distribute, or
cause the advertisement, publication, printing,
broadcasting or distribution by any means, including the
use of information technology and the internet, of any
brochure, flyer, or any propaganda material that
promotes trafficking in persons;
(d) To assist in the conduct of misrepresentation or fraud
for purposes of facilitating the acquisition of clearances
and necessary exit documents from government
agencies that are mandated to provide pre-departure
registration and services for departing persons for the
purpose of promoting trafficking in persons;
(e) To facilitate, assist or help in the exit and entry of
persons from/to the country at international and local
airports, territorial boundaries and seaports who are in
possession of unissued, tampered or fraudulent travel
documents for the purpose of promoting trafficking in
persons;
(f) To confiscate, conceal, or destroy the passport, travel
documents, or personal documents or belongings of
trafficked persons in furtherance of trafficking or to
prevent them from leaving the country or seeking
redress from the government or appropriate agencies;
and
(g) To knowingly benefit from, financial or otherwise, or
make use of, the labor or services of a person held to a
condition of involuntary servitude, forced labor, or
slavery.
Section 6. Qualified Trafficking in Persons. – The
following are considered as qualified trafficking:
(a) When the trafficked person is a child;
(b) When the adoption is effected through Republic Act
No. 8043, otherwise known as the “Inter-Country
Adoption Act of 1995” and said adoption is for the
purpose of prostitution, pornography, sexual exploitation,
forced labor, slavery, involuntary servitude or debt
bondage;
(c) When the crime is committed by a syndicate, or in
large scale. Trafficking 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;
(d) When the offender is an ascendant, parent, sibling,
guardian or a person who exercises authority over the
trafficked person or when the offense is committed by a
public officer or employee;
(e) When the trafficked person is recruited to engage in
prostitution with any member of the military or law
enforcement agencies;
(f) When the offender is a member of the military or law
enforcement agencies; and
(g) When by reason or on occasion of the act of
trafficking in persons, the offended party dies, becomes
insane, suffers mutilation or is afflicted with Human
Immunodeficiency Virus (HIV) or the Acquired Immune
Deficiency Syndrome (AIDS).
Section 6. Confidentiality. – At any stage of the
investigation, prosecution and trial of an offense under
this Act, law enforcement officers, prosecutors, judges,
court personnel and medical practitioners, as well as
parties to the case, shall recognize the right to privacy of
the trafficked person and the accused. Towards this end,
law enforcement officers, prosecutors and judges to
whom the complaint has been referred may, whenever
necessary to ensure a fair and impartial proceeding, and
after considering all circumstances for the best interest
of the parties, order a closed-door investigation,
prosecution or trial. The name and personal
circumstances of the trafficked person or of the accused,
or any other information tending to establish their
identities and such circumstances or information shall
not be disclosed to the public.
In cases when prosecution or trial is conducted behind
closed-doors, it shall be unlawful for any editor,
publisher, and reporter or columnist in case of printed
materials, announcer or producer in case of television
and radio, producer and director of a film in case of the
movie industry, or any person utilizing tri-media facilities
or information technology to cause publicity of any case
of trafficking in persons.
Section 8. Prosecution of Cases. – Any person who has
personal knowledge of the commission of any offense
under this Act, the trafficked person, the parents,
spouse, siblings, children or legal guardian may file a
complaint for trafficking.
Section 9. Venue. – A criminal action arising from
violation of this Act shall be filed where the offense was
committed, or where any of its elements occurred, or
where the trafficked person actually resides at the time
of the commission of the offense: Provided, That the
court where the criminal action is first filed shall acquire
jurisdiction to the exclusion of other courts.
Section 10. Penalties and Sanctions. – The following
penalties and sanctions are hereby established for the
offenses enumerated in this Act:
(a) Any person found guilty of committing any of the acts
enumerated in Section 4 shall suffer the penalty of
imprisonment of twenty (20) years and a fine of not less
than One million pesos (P1,000,000.00) but not more
than Two million pesos (P2,000,000.00);
(b) Any person found guilty of committing any of the acts
enumerated in Section 5 shall suffer the penalty of
imprisonment of fifteen (15) years and a fine of not less
than Five hundred thousand pesos (P500,000.00) but
not more than One million pesos (P1,000,000.00);
(c) Any person found guilty of qualified trafficking under
Section 6 shall suffer the penalty of life imprisonment
and a fine of not less than Two million pesos
(P2,000,000.00) but not more than Five million pesos
(P5,000,000.00);
(d) Any person who violates Section 7 hereof shall suffer
the penalty of imprisonment of six (6) years and a fine of
not less than Five hundred thousand pesos
(P500,000.00) but not more than One million pesos
(P1,000,000.00);
(e) If the offender is a corporation, partnership,
association, club, establishment or any juridical person,
the penalty shall be imposed upon the owner, president,
partner, manager, and/or any responsible officer who
participated in the commission of the crime or who shall
have knowingly permitted or failed to prevent its
commission;
(f) The registration with the Securities and Exchange
Commission (SEC) and license to operate of the erring
agency, corporation, association, religious group, tour or
travel agent, club or establishment, or any place of
entertainment shall be cancelled and revoked
permanently. The owner, president, partner or manager
thereof shall not be allowed to operate similar
establishments in a different name;
(g) If the offender is a foreigner, he shall be immediately
deported after serving his sentence and be barred
permanently from entering the country;
(h) Any employee or official of government agencies who
shall issue or approve the issuance of travel exit
clearances, passports, registration certificates,
counseling certificates, marriage license, and other
similar documents to persons, whether juridical or
natural, recruitment agencies, establishments or other
individuals or groups, who fail to observe the prescribed
procedures and the requirement as provided for by laws,
rules and regulations, shall be held administratively
liable, without prejudice to criminal liability under this Act.
The concerned government official or employee shall,
upon conviction, be dismissed from the service and be
barred permanently to hold public office. His/her
retirement and other benefits shall likewise be forfeited;
and
(i) Conviction by final judgment of the adopter for any
offense under this Act shall result in the immediate
rescission of the decree of adoption.

Section 11. Use of Trafficked Persons. – Any person
who buys or engages the services of trafficked persons
for prostitution shall be penalized as follows:
(a) First offense – six (6) months of community service
as may be determined by the court and a fine of Fifty
thousand pesos (P50,000.00); and
(b) Second and subsequent offenses – imprisonment of
one (1) year and a fine of One hundred thousand pesos
(P100,000.00).
Section 12. Prescriptive Period. – Trafficking cases
under this Act shall prescribe in ten (10) years: Provided,
however, That trafficking cases committed by a
syndicate or in a large scale as defined under Section 6
shall prescribe in twenty (20) years.
The prescriptive period shall commence to run from the
day on which the trafficked person is delivered or
released from the conditions of bondage and shall be
interrupted by the filing of the complaint or information
and shall commence to run again when such
proceedings terminate without the accused being
convicted or acquitted or are unjustifiably stopped for
any reason not imputable to the accused.
Section 13. Exemption from Filing Fees. – When the
trafficked person institutes a separate civil action for the
recovery of civil damages, he/she shall be exempt from
the payment of filing fees.
Section 14. Confiscation and Forfeiture of the Proceeds
and Instruments Derived from Trafficking in Persons. –
In addition to the penalty imposed for the violation of this
Act, the court shall order the confiscation and forfeiture,
in favor of the government, of all the proceeds and
properties derived from the commission of the crime,
unless they are the property of a third person not liable
for the unlawful act; Provided, however, That all awards
for damages shall be taken from the personal and
separate properties of the offender; Provided, further,
That if such properties are insufficient, the balance shall
be taken from the confiscated and forfeited properties.
When the proceeds, properties and instruments of the
offense have been destroyed, diminished in value or
otherwise rendered worthless by any act or omission,
directly or indirectly, of the offender, or it has been
concealed, removed, converted or transferred to prevent
the same from being found or to avoid forfeiture or
confiscation, the offender shall be ordered to pay the
amount equal to the value of the proceeds, property or
instruments of the offense.
Section 15. Trust Fund. – All fines imposed under this
Act and the proceeds and properties forfeited and
confiscated pursuant to Section 14 hereof shall accrue to
a Trust Fund to be administered and managed by the
Council to be used exclusively for programs that will
prevent acts of trafficking and protect, rehabilitate,
reintegrate trafficked persons into the mainstream of
society. Such programs shall include, but not limited to,
the following:
(a) Provision for mandatory services set forth in Section
23 of this Act;
(b) Sponsorship of a national research program on
trafficking and establishment of a data collection system
for monitoring and evaluation purposes;
(c) Provision of necessary technical and material support
services to appropriate government agencies and non-
government organizations (NGOs);
(d) Sponsorship of conferences and seminars to provide
venue for consensus building amongst the public, the
academe, government, NGOs and international
organizations; and
(e) Promotion of information and education campaign on
trafficking.
Section 16. Programs that Address Trafficking in
Persons. – The government shall establish and
implement preventive, protective and rehabilitative
programs for trafficked persons. For this purpose, the
following agencies are hereby mandated to implement
the following programs;
(a) Department of Foreign Affairs (DFA) – shall make
available its resources and facilities overseas for
trafficked persons regardless of their manner of entry to
the receiving country, and explore means to further
enhance its assistance in eliminating trafficking activities
through closer networking with government agencies in
the country and overseas, particularly in the formulation
of policies and implementation of relevant programs.
The DFA shall take necessary measures for the efficient
implementation of the Machine Readable Passports to
protect the integrity of Philippine passports, visas and
other travel documents to reduce the incidence of
trafficking through the use of fraudulent identification
documents.
It shall establish and implement a pre-marriage, on-site
and pre-departure counseling program on
intermarriages.
(b) Department of Social Welfare and Development
(DSWD) – shall implement rehabilitative and protective
programs for trafficked persons. It shall provide
counseling and temporary shelter to trafficked persons
and develop a system for accreditation among NGOs for
purposes of establishing centers and programs for
intervention in various levels of the community.
(c) Department of Labor and Employment (DOLE) –
shall ensure the strict implementation and compliance
with the rules and guidelines relative to the employment
of persons locally and overseas. It shall likewise monitor,
document and report cases of trafficking in persons
involving employers and labor recruiters.
(d) Department of Justice (DOJ) – shall ensure the
prosecution of persons accused of trafficking and
designate and train special prosecutors who shall handle
and prosecute cases of trafficking. It shall also establish
a mechanism for free legal assistance for trafficked
persons, in coordination with the DSWD, Integrated Bar
of the Philippines (IBP) and other NGOs and volunteer
groups.
(e) National Commission on the Role of Filipino Women
(NCRFW) – shall actively participate and coordinate in
the formulation and monitoring of policies addressing the
issue of trafficking in persons in coordination with
relevant government agencies. It shall likewise advocate
for the inclusion of the issue of trafficking in persons in
both its local and international advocacy for women’s
issues.
(f) Bureau of Immigration (BI) – shall strictly administer
and enforce immigration and alien administration laws. It
shall adopt measures for the apprehension of suspected
traffickers both at the place of arrival and departure and
shall ensure compliance by the Filipino fiancés/fiancées
and spouses of foreign nationals with the guidance and
counseling requirement as provided for in this Act.
(g) Philippine National Police (PNP) – shall be the
primary law enforcement agency to undertake
surveillance, investigation and arrest of individuals or
persons suspected to be engaged in trafficking. It shall
closely coordinate with various law enforcement
agencies to secure concerted efforts for effective
investigation and apprehension of suspected traffickers.
It shall also establish a system to receive complaints and
calls to assist trafficked persons and conduct rescue
operations.
(h) Philippine Overseas Employment Administration
(POEA) – shall implement an effective pre-employment
orientation seminars and pre-departure counseling
programs to applicants for overseas employment. It shall
likewise formulate a system of providing free legal
assistance to trafficked persons.
(i) Department of the Interior and Local Government
(DILG) – shall institute a systematic information and
prevention campaign and likewise maintain a databank
for the effective monitoring, documentation and
prosecution of cases on trafficking in persons.
(j) Local government units (LGUs) – shall monitor and
document cases of trafficking in persons in their areas of
jurisdiction, effect the cancellation of licenses of
establishments which violate the provisions of this Act
and ensure effective prosecution of such cases. They
shall also undertake an information campaign against
trafficking in persons through the establishment of the
Migrants Advisory and Information Network (MAIN)
desks in municipalities or provinces in coordination with
DILG, Philippine Information Agency (PIA), Commission
on Filipinos Overseas (CFO), NGOs and other
concerned agencies. They shall encourage and support
community based initiatives which address the trafficking
in persons.
In implementing this Act, the agencies concerned may
seek and enlist the assistance of NGOs, people’s
organizations (Pos), civic organizations and other
volunteer groups.
Section 17. Legal Protection to Trafficked Persons. –
Trafficked persons shall be recognized as victims of the
act or acts of trafficking and as such shall not be
penalized for crimes directly related to the acts of
trafficking enumerated in this Act or in obedience to the
order made by the trafficker in relation thereto. In this
regard, the consent of a trafficked person to the intended
exploitation set forth in this Act shall be irrelevant.
Section 18. Preferential Entitlement Under the Witness
Protection Program. – Any provision of Republic Act No.
6981 to the contrary notwithstanding, any trafficked
person shall be entitled to the witness protection
program provided therein.
Section 19. Trafficked Persons Who are Foreign
Nationals. – Subject to the guidelines issued by the
Council, trafficked persons in the Philippines who are
nationals of a foreign country shall also be entitled to
appropriate protection, assistance and services available
to trafficked persons under this Act: Provided, That they
shall be permitted continued presence in the Philippines
for a length of time prescribed by the Council as
necessary to effect the prosecution of offenders.
Section 20. Inter-Agency Council Against Trafficking. –
There is hereby established an Inter-Agency Council
Against Trafficking, to be composed of the Secretary of
the Department of Justice as Chairperson and the
Secretary of the Department of Social Welfare and
Development as Co-Chairperson and shall have the
following as members:
(a) Secretary, Department of Foreign Affairs;
(b) Secretary, Department of Labor and Employment;
(c) Administrator, Philippine Overseas Employment
Administration;
(d) Commissioner, Bureau of Immigration;
(e) Director-General, Philippine National Police;
(f) Chairperson, National Commission on the Role of
Filipino Women; and
(g) Three (3) representatives from NGOs, who shall be
composed of one (1) representative each from among
the sectors representing women, overseas Filipino
workers (OFWs) and children, with a proven record of
involvement in the prevention and suppression of
trafficking in persons. These representatives shall be
nominated by the government agency representatives of
the Council, for appointment by the President for a term
of three (3) years.
The members of the Council may designate their
permanent representatives who shall have a rank not
lower than an assistant secretary or its equivalent to
meetings, and shall receive emoluments as may be
determined by the Council in accordance with existing
budget and accounting, rules and regulations.
Section 21. Functions of the Council. – The Council shall
have the following powers and functions:
(a) Formulate a comprehensive and integrated program
to prevent and suppress the trafficking in persons;
(b) Promulgate rules and regulations as may be
necessary for the effective implementation of this Act;
(c) Monitor and oversee the strict implementation of this
Act;
(d) Coordinate the programs and projects of the various
member agencies to effectively address the issues and
problems attendant to trafficking in persons;
(e) Coordinate the conduct of massive information
dissemination and campaign on the existence of the law
and the various issues and problems attendant to
trafficking through the LGUs, concerned agencies, and
NGOs;
(f) Direct other agencies to immediately respond to the
problems brought to their attention and report to the
Council on action taken;
(g) Assist in filing of cases against individuals, agencies,
institutions or establishments that violate the provisions
of this Act;
(h) Formulate a program for the reintegration of
trafficked persons in cooperation with DOLE, DSWD,
Technical Education and Skills Development Authority
(TESDA), Commission on Higher Education (CHED),
LGUs and NGOs;
(i) Secure from any department, bureau, office, agency,
or instrumentality of the government or from NGOs and
other civic organizations such assistance as may be
needed to effectively implement this Act;
(j) Complement the shared government information
system for migration established under Republic Act No.
8042, otherwise known as the “Migrant Workers and
Overseas Filipinos Act of 1995” with data on cases of
trafficking in persons, and ensure that the proper
agencies conduct a continuing research and study on
the patterns and scheme of trafficking in persons which
shall form the basis for policy formulation and program
direction;
(k) Develop the mechanism to ensure the timely,
coordinated, and effective response to cases of
trafficking in persons;
(l) Recommend measures to enhance cooperative
efforts and mutual assistance among foreign countries
through bilateral and/or multilateral arrangements to
prevent and suppress international trafficking in persons;
(m) Coordinate with the Department of Transportation
and Communications (DOTC), Department of Trade and
Industry (DTI), and other NGOs in monitoring the
promotion of advertisement of trafficking in the internet;
(n) Adopt measures and policies to protect the rights and
needs of trafficked persons who are foreign nationals in
the Philippines;
(o) Initiate training programs in identifying and providing
the necessary intervention or assistance to trafficked
persons; and
(p) Exercise all the powers and perform such other
functions necessary to attain the purposes and
objectives of this Act.
Section 22. Secretariat to the Council. – The Department
of Justice shall establish the necessary Secretariat for
the Council.
Section 23. Mandatory Services to Trafficked Persons. –
To ensure recovery, rehabilitation and reintegration into
the mainstream of society, concerned government
agencies shall make available the following services to
trafficked persons:
(a) Emergency shelter or appropriate housing;
(b) Counseling;
(c) Free legal services which shall include information
about the victims’ rights and the procedure for filing
complaints, claiming compensation and such other legal
remedies available to them, in a language understood by
the trafficked person;
(d) Medical or psychological services;
(e) Livelihood and skills training; and
(f) Educational assistance to a trafficked child.
Sustained supervision and follow through mechanism
that will track the progress of recovery, rehabilitation and
reintegration of the trafficked persons shall be adopted
and carried out.
Section 24. Other Services for Trafficked Persons. –
(a) Legal Assistance. – Trafficked persons shall be
considered under the category “Overseas Filipino in
Distress” and may avail of the legal assistance created
by Republic Act No. 8042, subject to the guidelines as
provided by law.
(b) Overseas Filipino Resource Centers. – The services
available to overseas Filipinos as provided for by
Republic Act No. 8042 shall also be extended to
trafficked persons regardless of their immigration status
in the host country.
(c) The Country Team Approach. – The country team
approach under Executive Order No. 74 of 1993, shall
be the operational scheme under which Philippine
embassies abroad shall provide protection to trafficked
persons insofar as the promotion of their welfare, dignity
and fundamental rights are concerned.
Section 25. Repatriation of Trafficked Persons. – The
DFA, in coordination with DOLE and other appropriate
agencies, shall have the primary responsibility for the
repatriation of trafficked persons, regardless of whether
they are documented or undocumented.
If, however, the repatriation of the trafficked persons
shall expose the victims to greater risks, the DFA shall
make representation with the host government for the
extension of appropriate residency permits and
protection, as may be legally permissible in the host
country.
Section 26. Extradition. – The DOJ, in consultation with
DFA, shall endeavor to include offenses of trafficking in
persons among extraditable offenses.
Section 27. Reporting Requirements. – The Council shall
submit to the President of the Philippines and to
Congress an annual report of the policies, programs and
activities relative to the implementation of this Act.
Section 28. Funding. – The heads of the departments
and agencies concerned shall immediately include in
their programs and issue such rules and regulations to
implement the provisions of this Act, the funding of which
shall be included in the annual General Appropriations
Act.
Section 29. Implementing Rules and Regulations. – The
Council shall promulgate the necessary implementing
rules and regulations within sixty (60) days from the
effectivity of this Act.
Section 30. Non-restriction of Freedom of Speech and of
Association, Religion and the Right to Travel. – Nothing
in this Act shall be interpreted as a restriction of the
freedom of speech and of association, religion and the
right to travel for purposes not contrary to law as
guaranteed by the Constitution.
Section 31. Separability Clause. – If, for any reason, any
section or provision of this Act is held unconstitutional or
invalid, the other sections or provisions hereof shall not
be affected thereby.
Section 32. Repealing clause. – All laws, presidential
decrees, executive orders and rules and regulations, or
parts thereof, inconsistent with the provisions of this Act
are hereby repealed or modified accordingly: Provided,
That this Act shall not in any way amend or repeal the
provision of Republic Act No. 7610, otherwise known as
the “Special Protection of Children Against Child Abuse,
Exploitation and Discrimination Act”.
Section 33. Effectivity. – This Act shall take effect fifteen
(15) days from the date of its complete publication in at
least two (2) newspapers of general circulation.
RULES AND REGULATIONS IMPLEMENTING
REPUBLIC ACT NO. 9208, OTHERWISE KNOWN AS
THE “ANTI-TRAFFICKING IN PERSONS ACT
OF 2003”
Pursuant to the authority of the Inter-Agency
Council Against Trafficking (IACAT) under Section 29 of
Republic Act No. 9208 otherwise known as the “Anti-
Trafficking in Persons Act of 2003”, the following rules
and regulations are hereby promulgated to implement
the provisions of said Act:
Article I
GENERAL PROVISIONS
Sec. 1. Title. These rules and regulations shall
be known and cited as “The Rules and Regulations
Implementing the Anti-Trafficking in Persons Act of
2003”.
Sec. 2. Purpose. These rules and regulations are hereby
promulgated to institute policies, establish the
institutional mechanism for the support and protection of
trafficked persons and prescribe the procedures and
guidelines for the implementation of Republic Act No.
9208 in order to facilitate compliance therewith and
achieve the objectives thereof.
Sec. 3. Declaration of State Policy. The State values the
dignity of every human person and guarantees the
respect for individual rights. Towards this end, the State
shall give the highest priority to the enactment of
measures and development of programs that will
promote human dignity, protect the people from any
threat of violence and exploitation, eliminate
trafficking in persons, and mitigate pressures for
involuntary migration and servitude of persons,
not only to support trafficked persons but more
importantly, to ensure their recovery, rehabilitation and
reintegration into the mainstream of society.
The State also recognizes the equal rights and inherent
human dignity of women and men, as well as the rights
of children, as enshrined and guaranteed in the following
international instruments:
(i) Universal Declaration on Human Rights;
(ii) Convention for the Suppression of the Traffic in
Persons and Exploitation of the Prostitution of Others;
(iii) Convention on the Elimination of All Forms of
Discrimination Against Women;
(iv) Convention on the Rights of the Child and its
Optional Protocols;
(v) Convention on the Protection of Migrant Workers and
Members of their Families;
(vi) Convention Against Transnational Organized Crimes
including its Protocol to Prevent, Suppress and Punish
Trafficking in Persons, Especially Women and Children;
(vii) ILO Convention No. 182 (Convention Concerning
the Prohibition and Immediate Action for the Elimination
of the Worst Forms of Child Labor); and
(viii) All other relevant and universally accepted human
rights instruments and other international conventions
to which the Philippines is a State Party. In all actions
concerning children, their best interests shall be the
paramount consideration.
Sec. 4. Construction. These rules and regulations shall
be liberally construed in favor of the trafficked persons to
promote their human dignity; ensure their recovery,
rehabilitation and reintegration into the mainstream of
society; eliminate trafficking in persons; and achieve the
objectives of the Act.
Article II
DEFINITION OF TERMS
Sec. 5. Definition of Terms. As used in these rules and
regulations, unless the context otherwise requires, the
following terms shall be understood to mean:
(a) Act — refers to Republic Act No. 9208, otherwise
known as the “Anti-Trafficking in Persons Act of 2003”;
(b) Council — refers to the Inter-Agency Council Against
Trafficking (IACAT) created under Section 20 of the Act;
(c) Trafficking in Persons — refers to the recruitment,
transportation, transfer or harboring, or receipt of
persons, with or without the victim’s consent or
knowledge, within or across national borders by means
of threat or use of force, or other forms of coercion,
abduction, fraud, deception, abuse of power or of
position, taking advantage of the vulnerability of the
person, or, the giving or receiving of payments or
benefits to achieve the consent of a person having
control over another person for the purpose of
exploitation which includes at a minimum, the
exploitation or the prostitution of others or other forms of
sexual exploitation, forced labor or services, slavery,
servitude or the removal or sale of organs.
The recruitment, transportation, transfer, harboring or
receipt of a child for the purpose of exploitation
shall also be considered as “trafficking in persons” even
if it does not involve any of the means set forth in the
preceding paragraph.
(d) Child — refers to a person below eighteen (18) years
of age or one who is over eighteen (18) but is unable to
fully take care of or protect himself/herself from abuse,
neglect, cruelty, exploitation, or discrimination because
of a physical or mental disability or condition;
(e) Prostitution — refers to any act, transaction, scheme
or design involving the use of a person by another, for
sexual intercourse or lascivious conduct in exchange for
money, profit or any other consideration;
(f) Forced Labor and Slavery — refer to the extraction of
work or services from any person by meansof
enticement, violence, intimidation or threat, use of force
or coercion, including deprivation of freedom, abuse of
authority or moral ascendancy, debt-bondage or
deception;
(g) Sex Tourism — refers to a program organized by
travel and tourism-related establishments and individuals
which consists of tourism packages or activities, utilizing
and offering escort and sexual services as enticement
for tourists. This includes sexual services and practices
offered during rest and recreation periods for members
of the military;
(h) Sexual Exploitation — refers to participation by a
person in prostitution or the production of pornographic
materials as a result of being subjected to a threat,
deception, coercion, abduction, force, abuse of authority,
debt bondage, fraud or through abuse of a victim’s
vulnerability;
(i) Debt Bondage — refers to the pledging by the debtor
of his/her personal services or labor or those of a person
under his/her control as security or payment for a debt,
when the length and nature of services is not clearly
defined or when the value of the services as reasonably
assessed is not applied toward the liquidation of the
debt;
(j) Pornography — refers to any representation, through
publication, exhibition, cinematography, indecent shows,
information technology, or by whatever means, of a
person engaged in real or simulated explicit sexual
activities or any representation of the sexual parts of a
person primarily for sexual purposes; and
(k) Involuntary Servitude — refers to a condition of
enforced, compulsory service induced by means of any
scheme, plan or pattern, intended to cause a person to
believe that, if the person did not enter into or continue in
such condition, that person or another person would
suffer serious harm or other forms of abuse or physical
restraint, or the abuse or threatened abuse of the legal
process.
Article III
THE INTER-AGENCY COUNCIL AGAINST
TRAFFICKING (IACAT)
Sec. 6. Creation. The Inter-Agency Council Against
Trafficking (IACAT) shall be established which shall be
primarily tasked to coordinate, monitor and oversee the
implementation of the Act.
Sec. 7. Composition. The Council shall be
composed of the following:
(a) Secretary, Department of Justice (DOJ) as
Chairperson;
(b) Secretary, Department of Social Welfare and
Development (DSWD) as Co-Chairperson;
(c) Secretary, Department of Foreign Affairs (DFA) as
Member;
(d) Secretary, Department of Labor and Employment
(DOLE) as Member;
(e) Administrator, Philippine Overseas Employment
Administration (POEA) as Member;
(f) Commissioner, Bureau of Immigration (BI) as
Member;
(g) Director-General, Philippine National Police
(PNP) as Member;
(h) Chairperson, National Commission on the
Role of Filipino Women (NCRFW) as Member;
(i) One (1) representative from an NGO representing the
women sector as Member;
(j) One (1) representative from an NGO representing he
Overseas Filipino Workers (OFWs) sector as Member;
and
(k) One (1) representative from an NGO representing he
children sector as Member.
The members of the Council may designate their
permanent representatives who shall have a
rank not lower than an Assistant Secretary or its
equivalent to attend the meetings of the Council.
Sec. 8. Qualifications, Selection and Appointment of
NGO and its Representatives. The NGOs, with national
and international networks, and its representatives to
the Council must have a proven track record of
involvement in the prevention and suppression of
trafficking in persons. They shall be nominated by any
of the government agency representatives of the
Council and shall be selected by majority vote
thereof and endorsed to the President. They
shall be appointed by the President for a term of
three (3) years.
Sec. 9. Functions of the Council. The Council
shall have the following powers and functions:
(a) Formulate a comprehensive and integrated
program to prevent and suppress the trafficking
in persons;
(b) Promulgate rules and regulations as may be
necessary for the effective implementation of the
Act;
(c) Monitor and oversee the strict implementation of the
Act;
(d) Coordinate the programs and projects of the various
member agencies to effectively address the issues and
problems attendant to trafficking in persons;
(e) Coordinate the conduct of massive information
dissemination and campaign on the existence of the law
and the various issues and problems attendant to
trafficking through the local government units (LGUs),
concerned agencies, and NGOs;
(f) Direct other agencies to immediately respond
to the problems brought to their attention and report to
the Council on action taken;
(g) Assist in filing of cases against individuals, agencies,
institutions or establishments that violate the
provisions of the Act;
(h) Formulate a program for the reintegration of
trafficked persons in cooperation with DOLE, DSWD,
Technical Education and Skills Development Authority
(TESDA), Commission on Higher Education (CHED),
LGUs and NGOs;
(i) Secure from any department, bureau, office,
agency, or instrumentality of the government or
from NGOs and other civic organizations such
assistance as may be needed to effectively implement
the Act;
(j) Complement the shared government information
system for migration established under Republic Act No.
8042, otherwise known as the “Migrant Workers and
Overseas Filipinos
Act of 1995” with data on cases of trafficking in
persons, and ensure that the proper agencies
conduct a continuing research and study on the
patterns and scheme of trafficking in persons
which shall form the basis for policy formulation
and program direction;
(k) Develop the mechanism to ensure the timely
coordinated and effective response to cases of
trafficking in
persons;
(l) Recommend measures to enhance
cooperative efforts and mutual assistance
among foreign countries through bilateral and/or
multilateral arrangements to prevent and
suppress international trafficking in persons;
(m) Coordinate with the Department of
Transportation and Communications (DOTC),
Department of Trade and Industry (DTI), and
other NGOs in monitoring the promotion of
advertisement of trafficking in the Internet;
(n) Adopt measures and policies to protect the
rights and needs of trafficked persons who are
foreign nationals in the Philippines;
(o) Initiate training programs in identifying and
roviding the necessary intervention or
assistance to trafficked
persons; and
(p) Exercise all the powers and perform such
other functions necessary to attain the purposes
and objectives of the Act.
Sec. 10. Reportorial Function. Within sixty (60)
days after the closing of each calendar year, the
Council shall submit to the Office of the
President a comprehensive report on the actions
and programs
taken by the Council relative to and concerning
the implementation of the Act.
Sec. 11. Meetings of the Council. The Council
shall meet regularly at least once a month.
Special meetings may be called by the Chair as
the need arises. Majority of the members of the
Council
shall constitute a quorum to transact business.
Sec. 12. Honoraria or Emoluments. The
Members of the Council or their designated
permanent representatives shall receive
honoraria or emoluments as may be determined
by the Council in
accordance with existing budget and accounting
rules and regulations.
Sec. 13. Implementation of the Law at SubNational
and Local Levels. The Council shall,
as far as practicable, develop mechanisms to
ensure the implementation of the law and these
rules and regulations at the sub-national and
local levels
Article IV
SECRETARIAT
SEC. 14. Organization. The Department of
Justice shall establish a Secretariat to assist the
Council in the performance of its functions. The
Secretary of Justice shall determine the
organizational structure and staffing pattern of
the Secretariat.
Sec. 15. Functions. The Secretariat shall have
the following functions:
(a) Coordinate and monitor, under the direction
of the Council, the implementation of the policies
and guidelines promulgated by the Council;
(b) Establish, maintain and manage a central
database on trafficking in persons;
(c) Provide secretariat, records keeping and
other services to the Council; and
(d) Perform such other functions as may be
directed by the Council.
Article V
ROLES AND RESPONSIBILITIES
Sec. 16. Common Roles and Responsibilities
of Council Member Agencies. All member
government agencies of the Council shall have
the following common roles and responsibilities:
(a) Develop policies and programs supportive of
and consistent with the objectives of the Act;
(b) Enhance the capability of its officers and
personnel involved in trafficking issues and
Duman / Labor I / Prof. Battad / Page 41
concerns through appropriate training and staff
support programs;
(c) Undertake information, education and
advocacy campaigns against trafficking in
persons;
(d) Maintain a databank on trafficking in persons
to be shared among relevant agencies and
complement the central databank to be
established by the Council; and
(e) Document good practices as bases for policy
formulation and program development.
Sec. 17. Specific Roles and Responsibilities
of National Government Agencies which are
Members of the Council. The following national
government agencies, which are member
agencies of the Council, shall have, but not
limited to, the following roles and responsibilities
in the prevention and suppression of trafficking
in persons:
(a) Department of Justice (DOJ)
(i) Ensure the prosecution of persons for
violations of the Act;
(ii) Designate and train special prosecutors who
shall investigate and prosecute cases of
trafficking;
(iii) Establish a mechanism for free legal
assistance for trafficked persons, in coordination
with the DSWD, Commission on Human Rights
(CHR), Integrated Bar of the Philippines (IBP)
and other NGOs and volunteer groups;
(iv) Provide, witness protection to trafficked
victims and their witnesses;
(v) Conduct training and continuing education
program on investigation and prosecution for
trafficking in
persons and other related offenses for
prosecutors and law enforcement officers;
(vi) Receive, evaluate, process and investigate
claims for compensation by trafficked victims, when
applicable, pursuant to Republic Act No. 7309 (Victims
Compensation Act);
(vii) Review and recommend policies and measures to
enhance protection against trafficking in persons;
(viii) Recommend the negotiation of mutual legal
assistance and extradition treaties with other countries in
coordination with the DFA; and
(ix) Coordinate with and/or provide assistance to
the Anti-Money Laundering Council (AMLC) on cases of
trafficking in persons with possible money laundering
underpinnings.
(b) Department of Social Welfare and Development
(DSWD)
(i) Provide psycho-social counseling, temporary shelter
and other support services to victims/survivors of
trafficking and their families;
(ii) Make available skills training and livelihood services
to victims/survivors of trafficking;
(iii) Develop program and other support interventions to
facilitate the recovery and reintegration of trafficked
victims into their families and communities;
(iv) Provide social welfare services to Filipino victims of
trafficking in other countries through the DSWD
Social Welfare Attaché and social workers posted in
foreign countries, which may include but not limited to
stress management, repatriation and other appropriate
psychosocial interventions for their protection and
welfare;
(v) Conduct technical assistance and capability building
activities for social welfare officers/social workers
of LGUs and NGOs;
(vi) Accredit NGOs that provide programs and services
to ensure that they meet the standards set by the
Department; and
(vii) Provide temporary shelter and psychosocial
services to foreign nationals who are victims of
trafficking in persons as confirmed by the Bureau of
Immigration.
(c) Department of Foreign Affairs (DFA)
(i) Make available its resources and facilities overseas
and to provide services for trafficked persons regardless
of the manner of their entry to the receiving country;
(ii) Explore means to further enhance its assistance in
eliminating trafficking activities through closer networking
with government agencies in the country and overseas,
particularly in the formulation of policies and
implementation of relevant programs;
(iii) Actively participate in bilateral, regional and
international initiatives and cooperative arrangements
aimed at suppressing trafficking in persons and
protecting and assisting victims of trafficking to include
monitoring of inter-country adoption cases.
(iv) Take necessary measures for the efficient
implementation of the Machine Readable Passports and
Visas to protect the integrity of Philippine passports,
visas, and other travel documents to reduce the
incidence of trafficking in persons through the use of
fraudulent identification documents;
(v) Establish and implement pre-marriage, onsite
and pre-departure counseling program on
inter-marriages
For this purpose, the DFA shall promulgate the
necessary guidelines to implement the said program;
and
(vi) Integrate into the pre-departure orientation seminars
for foreign service personnel a training module on
trafficking in persons.
(d) Department of Labor and Employment (DOLE)
(i) Ensure the strict implementation of and compliance
with rules and guidelines relative to the employment of
persons locally and overseas; and
(ii) Monitor, document and report cases of trafficking in
persons involving employers and labor recruiters;
(iii) Make available existing resources such as
employment and livelihood programs as part of the
government’s measure to suppress trafficking in
persons; and
(iv) Conduct public awareness programs and activities to
prevent victimization.
(e) Philippine Overseas Employment
Administration (POEA)
(i) Implement an effective pre-employment orientation
seminar and pre-departure counseling program to
applicants for overseas employment;
(ii) Formulate a system providing free legal assistance to
trafficked persons which shall include the following:
(a) Provision of legal assistance to victims of trafficking
in persons by means of, or in the guise of, recruitment
for overseas employment, as defined in Section 6 of
R.A. No. 8042, such as free legal advice, assistance in
the preparation and filing of administrative and criminal
actions for trafficking as defined in the Act, without
prejudice to the filing of administrative and/or criminal
actions for illegal recruitment, as defined in R.A.No.
8042, when proper;
(b) Assistance in the prosecution of persons who engage
in, promote and facilitate trafficking in persons by means
of, or in the guise of, recruitment for overseas
employment, as defined in Section 6 of R.A. 8042;
In this connection, the POEA shall likewise adopt a
policy of confidentiality in all cases referred to it involving
possible violations of the Act.
(iii) Adopt policies and procedures, prepare and
implement programs geared towards the eradication of
trafficking in persons as well as acts that promote
trafficking in persons such as, but not limited to, the
following:
(a) Comprehensive and Integrated Education
Program on overseas employment which shall be
undertaken in partnership with other relevant
organizations and government entities. Such education
program shall cover all stages of recruitment and
employment and shall provide information useful for
overseas workers including a module on anti-trafficking
program and measures;
(b) Nationwide multi-media and sustainable grassroots
information campaign to create public awareness on the
realities of overseas employment and dangers of
becoming victims of illegal trafficking activities;
(c) Conduct special operations, complementary to the
power of the PNP, on persons and entities engaged
in recruitment for overseas employment reported to be
violating the provisions of the Act for the purpose of
effecting closure of said establishments pursuant to the
provisions of R.A. No. 8042; and
(d) Database of cases involving, and personalities
involved in, trafficking persons separate and distinct from
its illegal Recruitment cases for monitoring purposes;
(iv) In cases of repatriation involving workers recruited
and deployed by licensed agencies, the POEA shall
notify the agency concerned to provide a plane ticket or
Prepaid Travel Advice (PTA) and shall impose sanctions
on said agencies for failure to cooperate in providing
welfare assistance to OFWs they have deployed; and
(v) Continue to regulate private sector participation in the
recruitment and overseas placement of workers through
its licensing and registration system pursuant to its rules
and regulation on overseas employment. It shall
formulate and implement, in coordination with
appropriate entities concerned, when necessary, a
system of promoting and monitoring the overseas
employment of Filipino workers, taking into consideration
their welfare and protection from the dangers and risks
inherent in overseas employment, including illegal
trafficking.
(f) Bureau of Immigration (BI)
(i) Strictly administer and enforce immigration
and alien registration laws;
(ii) Adopt measures for the apprehension of suspected
traffickers both at the place of arrival and departure;
(iii) Ensure compliance by the Filipino fiancés/fiancées
and spouses of foreign nationals with the predeparture
and counseling program requirement of the Act;
(iv) Strictly implement the requirement for a parental
travel authority duly processed by the DSWD for minors
traveling abroad unaccompanied by one parent, and the
travel clearance for minors traveling abroad
unaccompanied by both parents;
(v) Ensure compliance by Overseas Filipino Workers of
the departure requirements of the POEA;
(vi) Conduct periodic training and seminar on fraudulent
document detection and passenger assessment to
enhance the level of skill and competence of all its
immigration officers and agents in document fraud
detection;
(vii) Conduct periodic study of the trends, routes and
modus operandi employed by the traffickers including
its recruitment base, transit countries and country of
destination;
(viii) Establish a network with other law enforcement
agencies and immigration counterparts of source, transit
and destination countries to facilitate exchange and
sharing of information on the activities of
trafficking syndicates;
(ix) Establish network with LGUs for the effective
apprehension of suspected traffickers and their cohorts;
(x) Develop a program for the procurement and
installation of International Civil Aviation Organization
(ICAO) — compliant machine readers and fraud
detection equipment at all international airports and
seaports in the country to deter trafficking in persons;
and
(xi) Develop and distribute materials containing advisory
and other pertinent information to enhance awareness
against trafficking in persons.
(g) Philippine National Police (PNP)
(i) Undertake surveillance, investigation and
arrest of individuals or persons suspected to be
engaged in trafficking;
(ii) Coordinate closely with various law enforcement
agencies to secure concerted efforts for effective
investigation and apprehension of suspected traffickers.
For this purpose, it shall also:
(a) Pursue the detection and investigation of suspected
or alleged trafficking activities at airports through its
Aviation Security Group, at seaports and/or harbors
through its Maritime Group, and at land transportation
terminals through its police station and when proper, file
the appropriate charges against traffickers in the proper
court;
(b) Coordinate with the Philippine Ports Authority (PPA)
which may have initially processed complaints at their
“Balay Silungan sa Daungan”; and
(c) Coordinate with local and barangay officials with
espect to the apprehension and/or arrest of traffickers.
(iii) Establish a system to receive complaints and calls to
assist trafficked persons, and the conduct of rescue
operations;
(iv) Direct and supervise the enforcement of its mandate
under the Act and its rules and regulations;
(v) Supervise the conduct of investigations relating to
apprehension occurring at land transportation terminals,
domestic seaports and airports and monitor the filing of
appropriate cases against traffickers;
(vi) Formulate plans and programs for the prevention
and/or reduction of trafficking in persons;
(vii) Integrate in the program of instruction
comprehensive, gender sensitive and child-friendly
investigation and handling of cases of trafficking in
persons in the Philippine National Police Academy
(PNPA), Philippine Public Safety College (PPSC) and
other training schools operated and managed by the
PNP; and
(viii) Establish anti-trafficking section under the Women
and Children Complaint Desk (WCCD) in all city
and municipal police stations.
(h) National Commission on the Role of Filipino
Women (NCRFW)
(i) Actively advocate and participate in international and
regional discussion and initiatives in trafficking in women
and include the same in all of its international
commitments and policy pronouncements. Where
possible and appropriate, work with the Department of
Foreign Affairs in forging bilateral and multilateral
collaborative projects on trafficking;
(ii) Assist the Council in the formulation and monitoring
of policies addressing the issue of trafficking in persons
in coordination with relevant government agencies;
(iii) Assist the Council in the conduct of information
dissemination and training to frontline government
agencies, NGOs and the general public;
(iv) Assist in the development of gender responsive
documentation system in coordination with other
agencies and the National Statistical Coordination Board
(NSCB) through its monitoring of the situation of women
particularly on violence against women;
(v) Assist the Council in the formulation of prevention
and reintegration programs for victims of trafficking
including the demand side; and
(vi) Conduct studies on the root causes, magnitude
and forms of trafficking in women and document
best practices in prevention programs.
Sec. 18. Roles and Responsibilities of Other
Relevant National Government Agencies. —
Consistent with their mandates under existing laws, the
following agencies shall integrate human trafficking
issues in their strategy and program formulation and
implement programs and services for the prevention and
suppression of trafficking and for the protection of
trafficked victims.
They shall likewise have the following roles and
responsibilities:
(a) Department of the Interior and Local
Government (DILG)
(i) Conduct a systematic information
dissemination/advocacy and prevention campaign
against trafficking in persons;
(ii) Maintain a databank for the effective monitoring,
documentation and prosecution of cases on
trafficking in persons;
(iii) Issue directives to the LGUs and barangays to
institutionalize recruiter-monitoring mechanisms and
increase public awareness regarding trafficking
in persons;
(iv) Promote family and community empowerment to
prevent trafficking in persons; and
(v) Strengthen, activate and mobilize existing
committees, councils, similar organizations and special
bodies at the local level to prevent and suppress
trafficking in persons.
(b) Department of Tourism (DOT)
(i) Formulate and implement preventive measures to
stop sex tourism packages and other activities of tourism
establishments which might contribute to the trafficking
in persons in coordination with local governmentunits;
and
(ii) Provide training to tourist security officers on
surveillance, investigation and rescue operation
strategies.
(c) Department of Education (DepEd)
(i) Integrate in the appropriate subject areas
core messages on migration and trafficking in
the elementary and secondary levels by providing lesson
with emphasis on their implications and social costs
to persons and country;
(ii) Provide opportunities for trafficked persons in the
educational mainstream through the basic education
and non-formal education curricula; and
(iii) Provide education and raise consciousness of
boys/men in schools and communities in order to
discourage the “demand side” or the use/buying of
trafficked women and children.
(d) Department of Health (DOH)
(i) Make available its resources and facilities in providing
health care to victims of trafficking which shall, at all
times, be held confidential.
(e) Department of Transportation and Communication
(DOTC)
(i) Provide guidelines for the land, sea and air transport
providers to train their personnel in trafficking
in persons;
(ii) Standardize guidelines for monitoring trafficking in
persons in every port; and
(iii) Monitor the promotion of advertisement of trafficking
in the Internet.
(f) Commission on Human Rights (CHR)
(i) Conduct advocacy and training programs relating to
anti-trafficking;
(ii) Investigate and recommend for prosecution violations
of the Act;
(iii) Provide legal and financial assistance to victims of
trafficking; and
(iv) Integrate anti-trafficking efforts in the Barangay
Human Rights Action Center (BHRAC); and
(v) Monitor government compliance to international
human rights treaty obligations related to the
suppression/elimination of trafficking, particularly the
Convention for the Suppression of Traffic in Persons and
Exploitation of the Prostitution of Others, the Convention
on the Elimination of All Forms of Discrimination Against
Women, the Convention on the Rights of the Child, the
Convention on the Protection of Migrant Workers and
Members of Their Families, and the UN Convention
Against Transnational Organized Crimes including its
Protocol to Prevent, Suppress and Punish Trafficking in
Persons, Especially Women and Children.
(g) National Bureau of Investigation (NBI)
(i) Conduct surveillance, monitor and investigate
recruiters, travel agencies, hotels and other
establishments suspected to be engaged in trafficking in
persons;
(ii) Coordinate closely with all the Council member
agencies for effective detection and investigation of
suspected traffickers;
(iii) Formulate plans and programs for the detection and
prevention of trafficking, and the arrest and
prosecution of suspected traffickers;
(iv) Share intelligence information on suspected
traffickers to all Council member agencies when
necessary; and
(v) Foster cooperation and coordination with the law
enforcement agencies of other countries and the
INTERPOL in the investigation and apprehension of
suspected traffickers.
(h) Philippine Center on Transnational Crime (PCTC)
(i) Continue to function in accordance with its mandate
pursuant to Executive Order No. 62, s.
1999, on matters concerning trafficking in persons with
transnational dimension;
(ii) Undertake strategic researches on the structure and
dynamics of trafficking in persons with transnational
crime dimension, predict trends and analyze given
factors for the formulation of individual and collective
strategies for the prevention and detection of trafficking
in persons and the apprehension of criminal elements
involved;
(iii) Conduct case operations in coordination with other
law enforcement agencies; and
(iv) Serve as the focal point in international law
enforcement coordination on trafficking in persons
particularly with the INTERPOL.
(i) Overseas Workers Welfare Administration
(OWWA)
(i) Assist in the information and advocacy campaign
among OFWs to prevent trafficking in persons;
(ii) Assist in the documentation of cases of trafficking
and ensure the provision of its programs and
services to OFWs and their families; and
(iii) Include a module on anti-trafficking to its
pre-departure seminar.
(j) Council for the Welfare of Children (CWC)
(i) Integrate in its development and strategic frameworks
issues and concerns affecting trafficking in children and
ensure the adoption of such frameworks by the LGUs
and other stakeholders;
(ii) Vigorously advocate against trafficking of children;
(iii) Improve data on trafficking in children through
integration of critical and relevant indicators into the
monitoring system for children;
(iv) Adopt policies and measures that will protect and
promote the rights and welfare of children victims of
trafficking and coordinate and monitor their
implementation; and
(v) Address issues on trafficking of children through
policy and program interventions.
(k) Philippine Information Agency (PIA)
(i) Enhance public awareness on trafficking in persons,
pertinent laws and possible actions to prevent
victimization and re-victimization by developing public
advocacy program as well as printing and distributing
appropriate information materials.
(l) Technical Education and Skills Development
Authority (TESDA)
(i) Provide skills and entrepreneurial training to
trafficked victims; and
(ii) Formulate a special program to ensure the provision
of appropriate skills training for trafficked victims.
Sec. 19. Roles and Responsibilities of Local
Government Units (LGUs). The LGUs shall
have the following roles and responsibilities:
(a) Monitor and document cases of trafficked persons in
their areas of jurisdiction;
(b) Effect the cancellation of licenses of establishments
which violate the provisions of the Act and
ensure its effective prosecution;
(c) Undertake an information campaign against
trafficking in persons through the establishment of the
Migrants Advisory and Information Network (MAIN)
desks in municipalities and provinces in coordination
with the DILG, PIA, Commission on Filipino Overseas
(CFO), NGOs and other concerned agencies;
(d) Encourage and support community based initiatives
which address trafficking in persons;
(e) Provide basic social services for the prevention,
rescue, recovery, rehabilitation and reintegration/after
care support services to victims of trafficking in persons
and their families;
(f) Enact ordinances or issuances aimed at
providing protection and support to trafficked
persons and adopt measures to prevent and
suppress trafficking in persons; and
(g) Strengthen, activate and mobilize existing
committees, councils, similar organizations and
special bodies at the provincial, city, municipal and
barangay levels to prevent and suppress trafficking in
persons.
Sec. 20. Roles and Responsibilities of NonGovernment
Organizations which are Members of the Council. The
NGO members of the Council shall have the following
roles and responsibilities:
(a) Assist government agencies in formulating and
implementing policies, programs and IEC campaign
against trafficking;
(b) Assist in capability-building activities of government
personnel and share their experiences and
expertise in handling trafficking cases;
(c) Coordinate with concerned government agencies,
LGUs and other NGOs in reporting alleged perpetrators,
rescuing victims of trafficking, and conducting
investigation/ surveillance, if indicated;
(d) Undertake programs and activities for the prevention,
rescue, recovery and reintegration of the victims of
trafficking and other support services for their families;
(e) Document and/or assist in the documentation of
cases of trafficking;
(f) Disseminate guidelines to all its network members,
local and international, on policies and programs
addressing issues on trafficking in persons;
(g) Formulate educational module to address thedemand
side of trafficking; and
(h) Perform such other tasks as may be agreed upon by
the Council.
Sec. 21. Assistance of Other Agencies and Institutions.
In implementing the Act and these rules and regulations,
the agencies concerned may seek and enlist the
assistance of NGOs, people’s organizations (POs), civic
organizations and other volunteer groups, which will all
likewise be encouraged to assume the same roles and
responsibilities enumerated in the preceding
Section.
Article VI
REPORTING OF SUSPECTED/ ALLEGED
TRAFFICKING INCIDENT
Sec. 22. Who May and To Whom to Report.
Any person who has any knowledge or learns of facts or
circumstances that give rise to a reasonable belief that a
person will be, or may be, or has been trafficked shall
immediately report the same, either orally, in writing or
through other means, to any member of the ouncil, the
barangay authorities, the nearest police or other law
enforcement agency, the local social welfare and
development office or the local Council for the Protection
of Children.
In the case of trafficking cases abroad, the report shall
be made to the Philippine Embassy/Consulate which has
jurisdiction over the place where the trafficking occurred
or where the trafficked person is found.
Sec. 23. Action on the Report. The agency, entity or
person to whom the report is made shall immediately
act as soon as the report is received in coordination with
other relevant government agency for appropriate
intervention. For this purpose, the Council shall develop
a mechanism to ensure the timely, coordinated and
effective response to cases of trafficking in persons.
Article VII
INTERCEPTION, ARREST AND INVESTIGATION OF
TRAFFICKERS
Sec. 24. Procedure in the Interception, Arrest and
Investigation of Traffickers in Persons at International
Airport or Seaport. When an offense punishable under
the Act or any other offense in relation thereto or in
furtherance thereof has been committed, or is actually
being committed in the presence of an immigration
officer assigned at the international airport or seaport,
he/she shall immediately cause the interception and/or
arrest of the persons involved for investigation. The DOJ
Task Force Against Trafficking shall cause the filing of
appropriate case in court when evidence warrants. If the
person arrested is a foreigner, the concerned B.I.
investigating unit shall take full custody over the arrested
person, conduct the investigation proper motu proprio
and endorse the complaint and supporting documents to
the prosecutor for inquest or MTC Judge for appropriate
proceedings.
Sec. 25. Procedure in the Interception, Arrest and
Investigation of Traffickers in Persons at Local Airport,
Seaport and Land Transportation Terminals. In cases
where the violation is committed at local seaport, airport
or in land transportation terminals, the members of
the law enforcement agency shall immediately cause the
interception and/or arrest of the suspected traffickers.
Thereafter, the investigation shall be conducted by the
law enforcement agency on the person/s
intercepted/arrested, and referred to the Prosecutor’s
Office of the place where the offense was committed or
to the DOJ Task Force Against Trafficking in Persons or
Task Force on Passport Irregularities or Municipal Trial
Court of the place where the crime was committed in
case of municipalities and non-chartered cities for
purposes of inquest or preliminary investigation as the
case may be.
Sec. 26. Creation of a Joint Task Force Against
Trafficking in Persons. For the purpose of the above
provisions, there shall be created a Joint Task Force
Against Trafficking in Persons to be assigned at airports
composed of Prosecution, BI, PNP, and NBI personnel
and another Task Force at land transportation terminals
and local seaports and airports to be composed of
Prosecution, PNP, BI, PPA, and PCG personnel. The
DOJ National Task Force Against Trafficking in Persons
shall issue the necessary operational guidelines for the
effective coordination, apprehension, investigation and
prosecution of violations of the Act. The DOJ Task Force
assigned at local seaports, airports and land
transportation terminals shall cooperate or coordinate
with the local authorities, local social welfare and
development officers or active NGOs concerned with
trafficking in persons in the locality.
Sec. 27. Rights of the Person Arrested, Investigated or
Detained. In all cases, the rights of the person arrested,
investigated or detained as provided by the Philippine
Constitution and under Republic Act No. 7438 (An Act
Defining Certain Rights of Persons Arrested, Detained or
Under Custodial Investigation As Well As The Duties of
the Arresting, Detaining and Investigating Officers, and
Providing Penalties For Violations Thereof) shall, at all
times, be respected.
Article VIII
RESCUE/RECOVERY AND REPATRIATION
OF VICTIMS
Sec. 28. The Country Team Approach. The country team
approach under Executive Order No. 74, series of 1993
and further enunciated in Republic Act No. 8042 shall be
the operational scheme under which Philippine
embassies abroad shall provide protection to trafficked
persons regardless of their immigration status. Under the
Country Team Approach, all officers, representatives
and personnel of the Philippine government posted
abroad regardless of their mother agencies shall, on a
per country basis, act as one-country team with mission
under the leadership of the Ambassador or the head of
mission.
Sec. 29. Rescue at the Country of
Destination. —
(a) Procedure. When the victim is a Filipino national and
at the time of rescue is residing abroad, the embassy or
consulate which has jurisdiction over the place where
the victim is residing shall verify the veracity of the report
of incidence of trafficking and inquire about the
condition of the victim. Consistent with the country team
approach, the Post concerned shall send a team
composed of a consular officer and personnel from the
Philippine Overseas Labor Office (POLO) or the Filipino
Workers Resource Center (FWRC), the Office of the
Social Welfare Attaché as the case may be, to conduct a
visit to the jail, establishment, work site or residence of
the victim. In the case of Posts without attached
services, the team will be composed of a consular officer
and personnel from the Assistance-to-Nationals
section. The Post shall make representations with the
police authorities or other relevant law enforcement
agencies with respect to the conduct of rescue
operations. Rescue operation shall also be made in
cooperation and close coordination with some NGO’s,
local contacts or private individuals when necessary.
In countries and areas where the services of the FWRC
is not accessible, a mobile type of services shall be
extended by the country team members to trafficked
persons regardless of their status in the host country.
Thereafter, the victim will be encouraged to execute a
sworn statement, recounting among others, the
people/establishment involved in the recruitment/transfer
and deployment, the modus operandi employed to
recruit, transport and deploy the victim, and other
pertinent information which could provide a lead in the
investigation and eventual prosecution of the
perpetrators.
(b) Assistance to Trafficked Persons. The trafficked
person shall be provided with temporary shelter and
other forms of assistance. In countries where there is an
Filipino Workers Resource Center, the services available
to overseas Filipinos as provided for in Republic Act No.
8042 shall also be extended to trafficked persons
regardless of their status in the host country.
(c) Legal Assistance Fund. Trafficked persons shall be
considered under the category “Overseas Filipinos in
Distress” and may avail of the Legal Assistance
Fund created by Republic Act No. 8042, subject to the
guidelines as provided by law, including rules and
regulations issued by the DFA as to its utilization and
disbursement.
Sec. 30. Repatriation of Trafficked Persons.
The DFA, in coordination with DOLE and other
appropriate agencies, shall have the primary
responsibility for the repatriation of trafficked persons,
regardless of whether they are documented or
undocumented.
If, however, the repatriation of trafficked persons shall
expose the victims to greater risks, the DFA shall make
representation with the host government for the
extension of appropriate residency permits and
protection, as may be legally permissible in the host
country.
Sec. 31. Procedure for Repatriation. In accordance with
existing rules and regulations on the use and
disbursement of Assistance-to-Nationals Fund of the
DFA for the repatriation of distressed OFWs, the Post
shall immediately request the DFA, through the Office of
the Undersecretary for Migrant Workers’ Affairs
(OUMWA), allocation of funds for the repatriation of the
victim. In appropriate cases and to avoid re-victimization,
the Post may withdraw the passport of the victim and
forward it to the DFA and in its place issue a Travel
Document (FA Form 79(B)) valid for direct travel to the
Philippines. The Post concerned shall report to the DFA,
through the OUMWA, copy furnished the Office of
onsular Affairs, the actual date of repatriation and other
pertinent information and submit a copy of the sworn
statement and other relevant documents. In appropriate
cases, especially when the victim is suffering from
mental illness, has suffered physical or sexual abuse or
has received serious threats to his or her life and safety,
the victim will be met upon arrival in the Philippines by
DSWD personnel, in coordination with the Joint Task
Force Against Trafficking in Persons and other
government agencies such as OWWA, BI and DOH. In
the case of mentally ill patients, minors, and other
persons requiring special care, the Post shall designate
a duly authorized individual to escort said victims to the
Philippines. The victim will be encouraged, if he or she
has not done so before, to execute a sworn
statement with the view of filing the appropriate charges
against the suspected trafficker in the Philippines.
Should the victim request the assistance of DFA,
OUMWA shall interview the victim and make
recommendations for investigation with law enforcement
agencies such as the PNP and the NBI. In cases where
recruitment agencies are involved, the case shall also be
referred to the POEA for appropriate action. The report
shall also be forwarded to the BI for case build up. The
victim may be referred to the DSWD/Local Social
Welfare And Development Office or to the NBI One-Stop
Shop for psychosocial interventions, psychological and
medical examination and follow-through therapy
sessions. Protective custody and emergency shelter
shall also be provided to the victim, in appropriate cases.
Sec. 32. Rescue Within the Country. Rescue
operations within the country shall be primarily
undertaken by the law enforcement agencies in
coordination with LGUs, DOLE, DSWD and
DOH. Upon receipt of a report of a suspected or
alleged trafficking ncident or activity, the law
enforcement agency to which the report is made
shall conduct rescue operations of trafficked
persons. At the minimum, rescue operations
shall be guided by the following:
(a) Conduct of rescue operation of trafficked
persons shall be properly coordinated with the
concerned agencies particularly DSWD/local
social welfare and development officer;
(b) The rescue team shall ensure full protection
of the rights of the trafficked person as well as
the traffickers while under its custody and
control;
(c) After the rescue operation, the investigation
of the case shall be referred to the Women and
Children Complaint Desk (WCCD) desk of PNP,
the Violence Against Women and Children
Division (VAWCD) of the NBI or other similar
units or desks;
(d) After the completion of the necessary
documents for the filing of cases, the rescue
team shall effect the appropriate and immediate
turn-over of the trafficked person to DSWD/local
social welfare and development officer; and
(e) In the course of investigation of the trafficked
person, the investigator handling the case shall
ensure that the victim shall be accorded with proper
treatment and investigated in a child-friendly and
gender-sensitive environment. In the conduct of
investigative interviews on children, the law enforcers
shall likewise be guided by the Rule on the
Examination of a Child Witness promulgated by
Supreme Court, as may be applicable. For this
purpose, the investigators shall be properly
trained in the handling of cases of trafficked
persons
Article IX
REHABILITATION AND
REINTEGRATION OF VICTIMS
Sec. 33. Comprehensive Program. The
DSWD, LGUs and other concerned agencies
shall provide a comprehensive, gendersensitive
and child friendly program for the recovery,
rehabilitation and reintegration of victims/survivors of
trafficking, such as but not limited to the
following:
(a) Implementation of residential care, child placement,
educational assistance, livelihood and skills training and
other community-based services must be responsive to
the specific needs and problems of the victims/survivors
and their families;
(b) Active involvement and participation of the
victims/survivors in the rehabilitation and reintegration
process shall be encouraged. In order to empower them
and to prevent their revictimization, capability building
programs must be provided; and Law, Rules and Local
Instruments 5 3
(c) Active cooperation and coordination with NGOs and
other members of the civil society including the business
community, tourismrelated industries as well as the
media in the rehabilitation and reintegration of
victims/survivors shall be undertaken.
Sec. 34 Procedure. The following procedure shall be
undertaken in implementing a comprehensive program
for the recovery, rehabilitation and reintegration of
victims/survivors of trafficking:
(a) The victim/survivor of trafficking may go to the
nearest DSWD/LGU Social Welfare and Development
Office for assistance;
(b) Upon referral/interview the DSWD/Local Government
Social Worker shall conduct an intake assessment
to determine appropriate intervention with the
victim/survivor;
(c) The social worker shall prepare a social case
study report/case summary for the victim/survivor’s
admission to a residential facility for temporary shelter or
communitybased services;
(d) Provide services/interventions based on the
rehabilitation plan in coordination with appropriate
agencies, e.g. counseling, legal, medical and
educational assistance; livelihood and/or skills training;
as well as appropriate services to the family of the
trafficked victim/survivor; and
(e) Monitor implementation and periodically
evaluate/update the rehabilitation plan until the victim/
survivor has been reintegrated with his/her family and
community.
Sec. 35. Capability Building of Service Providers. The
frontline agencies and the service providers must
undergo training and other capability building activities to
enhance their knowledge and skills in handling cases of
trafficking to prevent exacerbation of traumatic stress
and facilitate more effective crisis interventions, healing
and reintegration services.
Sec. 36. Documentation. Data banking, research and
documentation of best practices in rehabilitation and
reintegration programs shall be conducted to identify
efficient and effective measures and services for the
victims of trafficking and their families.
Article X
PROSECUTION, CIVIL FORFEITURE AND
RECOVERY OF CIVIL DAMAGES
Sec. 37. Who May File a Complaint.
Complaints for violations of the Act may be filed
by the following:
(a) Any person who has personal knowledge of
the commission of the offense;
(b) The trafficked person or the offended party;
(c) Parents or legal guardians;
(d) Spouse;
(e) Siblings; or
(f) Children.
The foregoing persons may also seek the
assistance of the Council in the filing of
complaint.
Sec. 38. Institution of Criminal Action; Effect.
The institution of the criminal action before the
Office of the Prosecutor or the court, as the case
may be, for purposes of preliminary investigation
shall interrupt the running of the period for prescription of
the offense charged. The prescriptive period shall
commence to run again when such proceedings
terminate without the accused being convicted or
acquitted or are unjustifiably stopped for any reason not
imputable to the accused.
Sec. 39. Institution of Criminal and Civil Actions.
Pursuant to the Revised Rules on Criminal Procedure,
when a criminal action is instituted, the civil action
arising from the offense charged shall be deemed
instituted with the criminal action unless the offended
party waives the civil action, reserves the right to
institute it separately or institutes the civil action prior to
the criminal action.
Sec. 40. Exemption from Filing Fees. When the
trafficked person institutes a separate civil action for the
recovery of civil damages, he/she shall be exempt from
the payment of filing fees.
Sec. 41. Venue. The offenses punishable under the Act
shall be considered as a continuing offense and may be
filed in the place where the offense was committed or
where any of its
elements occurred or where the trafficked
person actually resides at the time of the
commission of the offense. Provided, that the
court where the criminal action is first filed shall
acquire jurisdiction to the exclusion of other
courts.
Sec. 42. Forfeiture of the Proceeds and
Instruments Derived from Trafficking in
Persons. —
(a) After conviction, all proceeds and instruments,
including any real or personal property used in the
commission of the offense, shall be ordered confiscated
and forfeited in favor of the State unless the owner
thereof can prove the lack of knowledge of the use of
such property in the said illegal activity. Any award for
damages arising from the commission of the offense
may be satisfied and charged against the personal and
separate properties of the offender and if the same is
insufficient to satisfy the claim, the balance shall be
taken from the forfeited properties as may be ordered by
the court.
(b) During the pendency of the criminal action, no
property or income used or derived therefrom which are
subject to confiscation and forfeiture, shall be disposed,
alienated or transferred and the same shall be in
custodia legis and no bond shall be admitted for the
release of the same.
(c) The trial prosecutor shall avail of the provisional
remedies in criminal cases to ensure the confiscation,
preservation and forfeiture of the said properties.
(d) If the offender is a public officer or employee, the
forfeiture of his/her property found to be unlawfully
acquired shall be governed by Republic Act No. 1379
otherwise known as “An Act Declaring Forfeiture in
Favor of the State Any Property Found to Have Been
Unlawfully Acquired by Any Public Officer or Employee
and Providing for the Proceedings Therefore.”
Article XI
LEGAL PROTECTION AND OTHER
SERVICES
Sec. 43. Legal Protection. Trafficked persons shall be
recognized as victims of the act or acts of trafficking. As
such, they shall not be penalized for crimes directly
related to the acts of trafficking enumerated under the
Act or in obedience to the order made by the trafficker in
relation thereto. In this regard, the consent of the
trafficked person to the intended exploitation set forth in
the Act shall be irrelevant.
Sec. 44. Preferential Entitlement under the Witness
Protection Program. Any provision of Republic Act No.
6981 to the contrary notwithstanding, any trafficked
person shall be entitled to the witness protection
program provided therein.
Sec. 45. Immunity from Criminal Prosecution. Any
person who has personal knowledge in the commission
of any of the offenses penalized under the Act and who
voluntarily gives material information relative thereto and
willingly testifies against the offender shall be exempt
from prosecution for the offense with reference to which
his information and testimony were given, subject to the
following conditions:
(a) The information and testimony are necessaryfor the
conviction of the accused; and
(b) Such information and testimony are not yet in the
possession of the state.
Sec. 46. Mandatory Services. To ensure recovery,
rehabilitation and reintegration into the mainstream of
society, concerned government agencies shall make
available the following services to trafficked persons:
(a) Emergency shelter or appropriate housing;
(b) Counseling;
(c) Free legal services which shall include information
about the victims’ rights and the procedure for filing
complaints, claiming compensation and such other legal
remedies available to them, in a language understood by
the trafficked person;
(d) Medical or psychological services;
(e) Livelihood and skills training; and
(f) Educational assistance to a trafficked child. Sustained
supervision and follow through mechanism that will track
the progress of recovery, rehabilitation and reintegration
of the trafficked persons shall be adopted and carried
out.
Sec. 47. Legal Protection of Trafficked Persons Who are
Foreign Nationals. Trafficked persons in the Philippines
who are nationals of a foreign country shall be entitled to
appropriate protection, assistance and services available
to the trafficked persons and shall be allowed to
continued presence in the Philippines for a period of fifty-
nine (59) days to enable them to effect the prosecution
of the offenders. Such period may be renewed upon
showing of proof by the trial prosecutor that their further
testimony is essential to the prosecution of the case. The
trial prosecutor shall course his request for extension to
the Council which shall accordingly act upon the same. If
such request is granted, the registration and immigration
fees of such foreign nationals shall be waived. The
Council, for this purpose, shall develop additional
guidelines to implement this provision.
Article XII
TRUST FUND
Sec. 48. Trust Fund; Sources. All fines
imposed under the Act and the proceeds and
properties forfeited and confiscated pursuant to
Section 14 of the Act and Article IX, Section 5 of
these rules and regulations shall accrue to a Trust Fund
to be administered and managed by the Council.
Sec. 49. Utilization. The Trust Fund shall be used
exclusively for programs that will prevent acts of
trafficking and protect, rehabilitate, reintegrate trafficked
persons into the mainstream of society. Such programs
shall include, but not limited to the following:
(a) Provision for mandatory services set forth in Section
23 of the Act; and Section 47 of thesecRules and
Regulations.
(b) Sponsorship of a national research programon
trafficking and establishment of a data collection system
for monitoring and evaluation purposes;
(c) Provision of necessary technical and material
support services to appropriate government agencies
and nongovernment organizations (NGOs);
(d) Sponsorship of conferences and seminars to provide
venue for consensus building among the public, the
academe, government, NGOs and international
organizations; and
(e) Promotion of information and education campaign on
trafficking.
The Trust Fund may also be used to support the
operations of the Secretariat.
Sec. 50. Use and Disbursement of Trust Fund. The use
and disbursement of the trust fund shall be subject to the
approval of at least two-thirds (2/3) of the members of
the Council and shall be governed by existing
government accounting and auditing rules and
regulations.
Article XIII
INTERNATIONAL COOPERATION
Sec. 51. International Cooperation. The Council, in close
coordination with the DFA and other concerned
agencies, shall promote cooperation, technical
assistance and partnership among governments and
regional and international organizations on the following
aspects:
(a) Prevention, protection, prosecution, repatriation and
reintegration aspects of trafficking in persons, especially
women and children;
(b) Systematic exchange of information and good
practices among law enforcement and immigration
authorities;
(c) Prevention, detection, investigation and prosecution
of trafficking in persons, including the protection of
victims through exchanges and joint training at the
bilateral, regional and international levels, between and
among relevant officials including police, judges,
prosecutors, immigration officers, other law enforcement
agents as well as consular authorities; and
(d) Repatriation of victims of trafficking with due regard
to their safety and in consideration of humanitarian
and compassionate factors.
Article XIV
CONFIDENTIALITY
Sec. 52. Confidentiality. At any stage of the
investigation, prosecution and trial of an offense under
this Act, law enforcement officers, prosecutors, judges,
court personnel and medical practitioners, as well as
parties to the case, shall recognize the right to privacy of
the trafficked person and the accused. Towards this end,
law enforcement officers, prosecutors and judges to
whom the complaint has been referred may, whenever
necessary to ensure a fair and impartial proceeding, and
after considering all circumstances for the best interest
of the parties, order a closed-door investigation,
prosecution or trial. The name and personal
circumstances of the trafficked person or of the accused,
or any other information tending to establish their
identities and such circumstances or information shall
not be disclosed to the public. In case when the
prosecution or trial is conducted behind closed doors, it
shall be unlawful for any editor, publisher, reporter or
columnist in case of printed materials, announcer or
producer in case of television and radio, producer and
director of a film in case of the movie industry, or any
person utilizing tri-media or information technology to
cause publicity of and case of trafficking in persons.
Article XV
OFFENSES AND PENALTIES
Sec. 53. Acts of Trafficking in Persons. Any
person, natural or juridical, who commits any of the
following acts shall suffer the penalty of imprisonment of
twenty (20) years and a fine of not less than One million
pesos (P1,000,000.00) but not more than Two million
pesos (P2,000,000.00):
(a) To recruit, transport, transfer, harbor, provide, or
receive a person by any means, including those done
under the pretext of domestic or overseas employment
or training or apprenticeship, for the purpose of
prostitution, pornography, sexual exploitation, forced
labor, slavery, involuntary servitude or debt bondage;
(b) To introduce or match for money, profit or
material, economic or other consideration, any
person or, as provided for under Republic Act No. 6955,
any Filipino woman with a foreign national, for marriage
for the purpose of acquiring, buying, offering, selling or
trading him/her to engage in prostitution, pornography,
sexual exploitation, forced labor, slavery, involuntary
servitude or debt bondage;
(c) To offer or contract marriage, real or simulated, for
the purpose of acquiring, buying, offering, selling, or
trading them to engage in prostitution, pornography,
sexual exploitation, forced labor or slavery, involuntary
servitude or debt bondage;
(d) To undertake or organize tours and travel plans
consisting tourism packages or activities for the purpose
of utilizing and offering persons for prostitution,
pornography or sexual exploitation;
(e) To maintain or hire a person to engage in prostitution
or pornography;
(f) To adopt or facilitate the adoption of persons for the
purpose of prostitution, pornography, sexual exploitation,
forced labor, slavery, involuntary servitude or debt
bondage;
(g) To recruit, hire, adopt, transport or abduct a
person, by means of threat or use of force,
fraud, deceit, violence, coercion, or intimidation
for the purpose of removal or sale of organs of
said person; and
(h) To recruit, transport or adopt a child to
engage in armed activities in the Philippines or
abroad.
Sec. 54. Acts that Promote Trafficking in
Persons. Any person, natural or juridical, who
shall commit the following acts which promote or
facilitate trafficking in persons, shall be
penalized with the penalty of imprisonment of
fifteen (15) years and a fine of not less than Five
hundred thousand pesos (P500,000.00) but not
more than One million pesos (P1,000,000.00):
(a) To knowingly lease or sublease, use or allow
to used any house, building or establishment for
the purpose of promoting trafficking in persons;
(b) To produce, print and issue or distribute
unissued, tampered or fake counseling
certificates, registration stickers and certificates
of any government agency which issues these
certificates and stickers as proof of compliance
with government regulatory and pre-departure
requirements for the purpose of promoting
trafficking in persons;
(c) To advertise, publish, print, broadcast or
distribute, or cause the advertisement,
publication, printing,
broadcasting or distribution by any means,
including the use of information technology and
the internet of any brochure, flyer, or any
propaganda material that promotes trafficking in
persons;
(d) To assist in the conduct of misrepresentation
or fraud for purposes of facilitating the
acquisition of clearances and necessary exit
documents from government agencies that are
mandated to provide pre-departure registration
and services for departing persons for the
purpose of promoting trafficking
in persons;
(e) To facilitate, assist or help in the exit and
entry of persons from/to the country at
international and local airports, territorial
boundaries and seaports who are in possession
of unissued, tampered or fraudulent and travel
documents for the purpose of promoting
trafficking in persons;
(f) To confiscate, conceal, or destroy the
passport, travel documents, or personal
documents or belongings of trafficked persons in
furtherance of trafficking or to prevent them from
leaving the country or seeking redress from the
government or appropriate agencies; and
(g) To knowingly benefit from, financial or
otherwise or make use of, the labor or services
of a person held to a condition of involuntary
servitude, forced labor , or slavery.
Sec. 55. Qualified Trafficking in Persons. The
following are considered as qualified trafficking
and shall be penalized with the penalty of life
imprisonment and a fine of not less than Two million
pesos (2,000,000.00) but not more than Five million
pesos (5,000,000.00);
(a) When the trafficked person is a child;
(b) When the adoption is effected through Republic Act
No. 8043, otherwise known as the “Inter-Country
Adoption Act of 1995” and said adoption is for the
purpose of prostitution, pornography, sexual exploitation,
forced labor, slavery, involuntary servitude or debt
bondage;
(c) When the crime is committed by a syndicate , or in
large scale. Trafficking 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;
(d) When the offender is an ascendant, parent, sibling,
guardian or a person who exercises authority over the
trafficked person or when the offense is committed by a
public officer or employee;
(e) When the trafficked person is recruited to engage in
prostitution with any member of the military or law
enforcement agencies;
(f) When the offender is a member of the military orlaw
enforcement agencies; and
(g) When by reason or on occasion of the act of
trafficking in persons, the offended party dies, becomes
insane, suffers mutilation or is afflicted with Human
Immunodeficiency Virus HIV or the
Acquired Immune Deficiency Syndrome (AIDS).
Sec. 56. Violation of Confidentiality Provisions. Any
person who violates Section 7 of the Act and Section 52,
Article XIV hereof shall suffer the penalty of
imprisonment of six (6) years and a fine not less than
Five hundred thousand pesos (P500,000.00) but not
more than One million pesos (P1,000,000.00).
Sec. 57. Application of Penalties and Other Sanctions.
The following shall be applied in the imposition of
penalties:
(a) If the offender is a corporation, partnership,
association, club, establishment or any judicial person,
the penalty shall be imposed upon the owner, president,
partner, manager, and/or any responsible officer who
participated in the commission of the crime or who shall
have knowingly permitted or failed to prevent its
commission;
(b) The registration with the Securities and exchange
Commission (SEC) and license to operate of the erring
agency, corporation, association, religious group, tour or
travel agent, club or establishment, or any place or
entertainment shall be cancelled and revoked
permanently. The owner, president, partner or manager
thereof shall not be allowed to operate similar
establishment in a different name;
(c) If the offender is a foreigner, he shall be immediately
deported after serving his sentence and be barred
permanently from entering the country;
(d) Any employee or official of government agencies who
shall issue or approve the issuance of travel exit
clearances, passports, registration certificates,
counseling certificates, marriage license, and other
similar documents to persons, whether judicial or
natural, recruitment agencies, establishments or other
individuals or groups, who fail to observe the prescribed
procedures and the requirement as provided for by laws,
rules and regulations, shall be held administratively
liable, without prejudice to criminal liability under the Act.
The concerned government official or employee shall,
upon conviction, be dismissed from the service and be
barred permanently to hold public office. His/her
retirement and other benefits shall likewise be forfeited;
and
(e) Conviction by final judgment of the adopter for any
offense under this Act shall result in the immediate
rescission of the decree of adoption.
Sec. 58. Use of Trafficked Persons. Any person who
buys or engages the services of trafficked persons for
prostitution shall be penalized as follows:
(a) First offense — six (6) months of community service
as may be determined by the court and a fine of Fifty
thousand pesos (P50,000.00); and
(b) Second and subsequent offenses — imprisonment of
one year (1) year and a fine of One hundred thousand
pesos (P100,000.00).
The Council shall coordinate with the Supreme Court
through the Office of the Court Administrator for the
issuance of appropriate guidelines and measures for the
judiciary to implement this provision particularly on the
aspect of implementing the penalty of community
service.
Article XV
FUNDING
Sec. 59. Inclusion in Agency Appropriations. The heads
of departments and agencies concerned shall
immediately include in their annual appropriations the
funding necessary to implement programs and services
required by the Act and these regulations.
In the interim, the funding necessary to carry out their
mandate under the law may be charged against their
Gender and Development (GAD) budget.
Article XVII
FINAL PROVISIONS
Sec. 60. Non-Restriction of Freedom of Speech and of
Association, Religion and the Right to Travel. Nothing in
these rules and regulations shall be interpreted as a
restriction of the freedom and of association, religion and
the right to travel for purposes not contrary to law as
guaranteed by the Constitution.
Sec. 61. Saving Clause. The provisions of Republic Act
No. 7610, otherwise known as the “Special Protection of
Children Against Child Abuse, Exploitation and
Discrimination Act” shall remain applicable and shall not
in any way be amended or repealed by the provisions of
the Act and these rules and regulations.
Sec. 62. Separability Clause. The declaration of
invalidity of any provision of these rules and regulations
or part thereof shall not affect the validity of the
remaining provisions.
Sec. 63. Repealing Clause. Pertinent provisions of all
laws, presidential decrees, executive orders and rules
and regulations, or parts thereof, contrary to or
inconsistent with the provisions of the Act and these
rules and regulations are hereby repealed or modified
accordingly.
Sec. 64. Effectivity. These rules and regulations shall
take effect fifteen (15) days after its complete publication
in at least two (2) newspapers of general circulation.
7. Alien Employment Regulation
Reference: Arts. 12 (e), 40-42; Omnibus Rules, Book
I, Rule XIV, DO 12, 16 Nov. 2001; Omnibus Guidelines
for Issuance of Employment Permits to Foreign
Nationals); Const., Art. XII, Sec. 12
Labor Code
Art. 12 (e) To regulate the employment of aliens,
including the establishment of a registration and/or
work permit system;
ART. 40. Employment permit of non-resident aliens. -
Any alien seeking admission to the Philippines for
employment purposes and any domestic or foreign
employer who desires to engage an alien for
employment in the Philippines shall obtain an
employment permit from the Department of Labor.
The employment permit may be issued to a nonresident
alien or to the applicant employer after a determination
of the non-availability of a person in the Philippines who
is competent, able and willing at the time of application
to perform the services for which the alien is desired.
For an enterprise registered in preferred areas of
investments, said employment permit may be issued
upon recommendation of the government agency
charged with the supervision of said registered
enterprise.
ART. 41. Prohibition against transfer of employment.
- (a) After the issuance of an employment permit, the
alien shall not transfer to another job or change his
employer without prior approval of the Secretary of
Labor.
(b) Any non-resident alien who shall take up employment
in violation of the provision of this Title and its
implementing rules and regulations shall be punished in
accordance with the provisions of Articles 289 and 290
of the Labor Code.In addition, the alien worker shall be
subject to deportation after service of his sentence.
ART. 42. Submission of list. - Any employer employing
non-resident foreign nationals on the effective date of
this Code shall submit a list of such nationals to the
Secretary of Labor within thirty (30) days after such date
indicating their names, citizenship, foreign and local
addresses, nature of employment and status of stay in
the country. The Secretary of Labor shall then determine
if they are entitled to an employment permit.
Omnibus Rules, Book I, Rule XIV
RULE XIV
Employment of Aliens
SECTION 1. Coverage. — This Rule shall apply to all
aliens employed or seeking employment in the
Philippines, and their present or prospective employers.
SECTION 2. Submission of list. — All employers
employing foreign nationals, whether resident or
on-resident shall submit a list of such nationals to
the Bureau indicating their names, citizenship, foreign
and local addresses; nature of employment and status of
stay in the Philippines.
SECTION 3. Registration of resident aliens. — All
employed resident aliens shall register with the Bureau
under such guidelines as may be issued by it.
SECTION 4. Employment permit required for entry. —
No alien seeking employment, whether on resident or
non-resident status, may enter the Philippines without
first securing an employment permit from the
Department of Labor and Employment. If an alien enters
the country under a non-working visa and wishes to be
employed thereafter, he may only be allowed to be
employed upon presentation of a duly approved
employment permit.
SECTION 5. Requirements for employment permit
application. — The application for an employment permit
shall be accompanied by the following:
(a) Curriculum vitae duly signed by the applicant
indicating his educational background, his work
experience and other data showing that he possesses
high technical skills in his trade or profession;
(b) Contract of employment between the employer and
the principal which shall embody the following, among
others:
(1) That the non-resident alien worker shall comply with
all applicable laws and rules and regulations of the
Philippines;
(2) That the non-resident alien worker and the employer
shall bind themselves to train at least two (2) Filipino
understudies for a period to be determined by the
Secretary of Labor and Employment; and
(3) That he shall not engage in any gainful employment
other than that for which he was issued a permit.
(c) A designation by the employer of at least two (2)
understudies for every alien worker. Such understudies
must be the most ranking regular employees in the
section or department for which the expatriates are
being hired to ensure the actual transfer of technology.
SECTION 6. Issuances of employment permit. — The
Secretary of Labor and Employment may issue an
employment permit to the applicant based on:
a) Compliance by the applicant and his employer
with the requirements of Section 2 hereof;
b) Report of the Bureau Director as to the availability or
non-availability of any person in the Philippines who is
competent, able, and willing to do the job for which the
services of the applicant are desired;
c) His assessment as to whether or not the employment
of the applicant will redound to the national interest;
d) Admissibility of the alien as certified by the
Commission on Immigration and Deportation;
e) The recommendation of the Board of Investments
or other appropriate government agencies if the
applicant will be employed in preferred areas of
investments or in accordance with imperatives of
economic developments; and
f) Payments of a P100.00 fee.
SECTION 7. Duration of employment permit. — Subject
to renewal upon showing of good cause, the
employment permit shall be valid for a minimum period
of one (1) year starting from the date of its issuance
unless sooner revoked by the Secretary of Labor and
Employment for violation of any provisions of the Code
or of these Rules.
SECTION 8. Advice to Commission on Immigration
and Deportation. — The Bureau shall advice the
Commission on Immigration and Deportation on the
issuance of an employment permit to an applicant.
SECTION 9. Understudy Training Program. — The
employer shall submit a training program for his
understudies to the Bureau within thirty (30) days upon
arrival of the alien workers. The supervision of the
training program shall be the responsibility of the Bureau
and shall be in accordance with standards established
by the Secretary of Labor and Employment.
Omnibus Guidelines for Issuance of
Employment Permits to Foreign Nationals
–DO 12, November 12, 2001.
DEPARTMENT ORDER NO. 12
(Series of 2001)
OMNIBUS GUIDELINES FOR THE ISSUANCE OF
EMPLOYMENT PERMITS TO FOREIGN
NATIONALS.
.
Pursuant to the provisions of Articles 5 and 40 of
P. D. 442, as amended, the provisions of Rule XIV,
Book I of its Implementing Rules and Regulations,
Section 17(5), Chapter 4, Title VII of the Administrative
Code of 1987, the following Omnibus Guidelines for the
issuance of Employment Permits are hereby
promulgated:
Rule I
Coverage and Exemption
1. The following shall apply for Alien Employment
Permit (AEP):
1.1. All foreign nationals seeking admission to the
Philippines for the purpose of employment;
1.2. Missionaries or religious workers who intend to
engage in gainful employment;
1.3. Holders of Special Investors Resident Visa (SIRV),
Special Retirees Resident Visa (SRRV), Treaty Traders
Visa (9d) or Special Non-immigrant Visa (47(a)2), who
occupy any executive, advisory, supervisory, or technical
position in any establishment;
1.4. Agencies, organizations or individuals whether
public or private, who secure the services of foreign
professionals to practice their professions in the
Philippines in the Philippines under reciprocity and other
international agreements;
1.5. Non-Indo-Chinese Refugees who are asylum
seekers and given refugee status by the United
Nations High Commissioner on Refugees (UNHCR) or
the Department of Justice under DOJ Department Order
No. 94, series of 1998;
1.6. Resident foreign nationals seeking employment in
the Philippines.
2. Exemption. The following categories of foreign
nationals are exempt from securing an employment
permit in order to work in the Philippines.
2.1 All members of the diplomatic services and foreign
government officials accredited by the Philippine
Government;
2.2 Officers and staff of international organizations of
which the Philippine government is a cooperating
member, and their legitimate spouse desiring to work in
the Philippines;
2.3 Foreign nationals elected as members of the
Governing board who do not occupy any other position,
but have only voting rights in the corporation; and
2.4 All foreign nationals granted exemption by special
laws and all other laws that may be promulgated by the
Congress.
Rule II
Procedures in the Processing of Applications for
AEP
1. All foreign nationals seeking employment in the
Philippines under Rule 1 hereof or their prospective
employers, shall file their applications with the DOLE
Regional Office having jurisdiction over the intended
place of work.
2. Fees - The applicant shall pay filing, publication and
permit fees in the amount of Eight thousand pesos
P8,000.00) for each application for AEP with a validity of
one (1) year. Three thousand pesos (P3,000.00) shall be
charged for every additional year of validity or a fraction
thereof.
3. An AEP shall be issued based on the following:
3.1. Compliance bye the applicant employer or the
foreign national with the substantive and documentary
requirements;
3.2. Determination of the DOLE Secretary that there is
no Filipino national who is competent, able and willing to
do the job for which the services of the applicant is
desired;
3.3. Assessment of the DOLE Secretary that the
employment of the foreign national will redound to
national benefit;
4. Denial of Application for AEP - An application for AEP
may be denied based on the ground of non-compliance
with any of the requirements for issuance of AEP or for
misrepresentation of facts in the application or
submission of falsified or tampered documents Foreign
nationals whose applications have been denied shall not
be allowed to re-apply in any of the DOLE Regional
Offices.
5. Renewal of Permit - An application for renewal of AEP
shall be filed at least fifteen (15) days before its
expiration. For elective officers, applications for renewal
shall be filed upon election or at least thirty (30) days
before the effectivity of the applicant's term of office if
the succeeding term of office is ascertained.
Failure to file the application for renewal of permit within
the prescribed period shall be subject to fines of Five
Thousand Pesos (5,000.00), if filed within six (6) months
after the prescribed period and Ten Thousand Pesos
(10,000.00), if filed after six (6) months. Failure to renew
the AEP within one (1) year after its expiration shall be a
cause for its revocation or cancellation.
6. The employer shall notify the DOLE-RO which issued
the permit of the date of the assumption to duty of the
oreign national within thirty (30) days from issuance of
the permit.
7. Validity of Permits - The validity of permits shall be as
follows:
7.1. As a general rule, the validity of permits shall be for
a period of one (1) year, unless the employment
contract, consultancy services, or other modes of
engagement or term of office for elective officers,
provides for a longer period.
7.2. The effectivity of the renewal shall be on the day
after the expiration of the previous permit, regardless of
whether or not the renewal is granted before or after the
expiration of the previous permit.
7.3. As a general rule, the permits shall be valid only for
the position and the employer for which it was issued,
except in case of foreign nationals who are holders of
multiple positions in one corporation, where one AEP
shall be valid for such multiple positions.
7.4. The permits of resident foreign nationals shall be
valid for multiple employers, regardless of the nature and
duration of their employment, provided that they shall
report changes in their employment status and the
identity of their employers to the DOLE Regional Office
which has issued the permit.
Rule III
Revocation/Cancellation of Employment Permits
Issued
1. The permits issued may, motu proprio or upon a
petition, be cancelled or revoked based on any of the
following grounds:
1.1 Misrepresentation of facts or falsification of the
documents submitted;
1.2 The foreign national has been declared as an
undesirable alien by competent authorities;
1.3 Non-compliance with the conditions for which the
AEP was issued;
1.4 Failure to renew AEP within one (1) year after its
expiration.
2. Petitions for cancellation or revocation of permits
issued shall be resolved within thirty (30) calendars from
receipt thereof.
3. Any aggrieved party may file a Motion for
Reconsideration and/or Appeal and the same shall be
resolved based on Paragraph 4 of this Rule.
4. Remedies in Case of Denial or Cancellation – A
motion for Reconsideration maybe filed by an aggrieved
party within seven (7) calendar days after receipt of the
Order of Denial/Cancellation.
The DOLE Regional Director shall resolve the said
Motion for Reconsideration within ten (10) calendar days
from receipt thereof.
A motion for Reconsideration filed after the period
of seven (7) calendar days but within ten (10) calendar
days after receipt of the denial shall be treated as an
appeal.
An appeal from the decision of the DOLE Regional
Director may be filed with the Secretary of labor and
Employment within ten (10) calendar days from receipt
of an Order from the DOLE Regional Director. The
decision of the Secretary of Labor and Employment shall
be final and unappealable.
Rule IV
Penal and Transitory Provisions
1. The DOLE Regional Directors, after due notice
and hearing, shall have the power to order and impose a
fine of Five Thousand Pesos (P5,000.00) on foreign
nationals found working without an AEP for less than
one (1) year and Ten Thousand Pesos (P10,000.00) for
more than one (1) year.
2. All applications for employment permit/certificates
pending at the DOLE-RO upon the effectivity of these
Guidelines shall be covered and processed under the
provisions of these Guidelines.
3. Holders of provisional and extended AEPs issued
under Memorandum dated 24 August 2001 regarding
Alternative Interim Measures for the Issuance of Alien
Employment Permits, shall apply for an AEP pursuant to
these Guidelines on or before the expiration of the
provisional and extended AEP.
4. Foreign nationals who are already working in the
country and who have not yet secured the requisite
employment permit shall have ninety (90) days from the
effectivity of these Guidelines to secure the said
employment permit withoutpenalty.
Rule V
Miscellaneous Provisions
1. Manual of Operations. - The Bureau of Local
Employment shall issue a Manual of Operations to
implement the provisions of these Guidelines.
2. Separability Clause. - If any provision or part of this
Department Order or the application thereof to any
person or circumstance is held invalid by the Courts, the
remaining valid provisions of this Department Order shall
not be affected.
3. Repealing Clause. - All guidelines, rules and
regulations and agreements inconsistent herewith
are hereby repealed or modified accordingly.
4. Effectivity. - These guidelines shall take effect fifteen
(15) days after its publication in two (2) newspapers of
general circulation.
Constitution, Art. XII, Sec. 12
Section 12. The State shall promote the preferential
use of Filipino labor, domestic materials and locally
produced goods, and adopt measures that help make
them competitive.
a. Coverage; Exemption, Art. 40; D.O No. 97-09,
Section 1, 2
• Almodiel vs. NLRC 223 SCRA 341 (1993)
- Redundancy for purposes of our Labor Code, exists
where the services of an employee are in excess of what
is reasonably demanded by the actual requirements of
the enterprise. The characterization of an employee’s
services as no longer necessary or sustainable, and
therefore, properly terminable, was an exercise of
business judgment on the part of the employer. The
wisdom or soundness of such characterization was not
subject to discretionary review on the part of the LA nor
of the NLRC so long, of course, as violation of law or
merely arbitrary of malicious action is not shown.
- In International Macleod vs IAC, it was held that the
determination of the need for the phasing out of a
department as a labor and cost saving device because it
was no longer economical to retain said services is a
management prerogative and the courts will not interfere
with the exercise thereof as long as no abuse of
discretion or merely arbitrary or malicious action on the
part of management is shown.
- An employer has a much wider discretion in terminating
employment relationship of managerial personnel
compared to rank and file because officers in such key
positions perform not only functions which by nature
require the employer’s full trust and confidence but also
functions that spell the success or failure of an
enterprise.
- On Alien Employment: a resident alien without a
working permit is not what is prohibited in Art 40. The
provision requires employment permit to non-resident
aliens. The employment permit is required for entry into
the country for employment purposes and is issued after
determination of the non-availability of a person in the
Philippines who is competent, able and willing at the
time of application to perform the services for which the
alien is desired.
THE CASE: Subject of this petition for certiorari is the
March 1991 decision of the National Labor Relations
Commission which reversed and set aside the Labor
Arbiter's decision and ordered instead the payment of
separation pay and financial assistance of P100,000.00.
Petitioner imputes grave abuse of discretion on the part
of the Commission and prays for the reinstatement of the
Labor Arbiter's decision which declared his termination
on the ground of redundancy illegal.
FACTS: Petitioner F. Almodiel, a CPA, was hired as
Cost Accounting Manager of Raytheon Philippines, Inc.
He started as a probationary or temporary employee.
His major duties were: (1) plan, coordinate and carry out
year - end and physical inventory; (2) formulate and
issue out hard copies of Standard Product costing and
other cost/pricing analysis if needed and required and
(3) set up the written Cost Accounting System for the
whole company. After a few months, he was given a
regularization increase of P1,600.00 a month.
On August 17, 1988, he recommended and submitted a
Cost Accounting/Finance Reorganization, affecting the
whole finance group but the same was disapproved by
the Controller. However, he was assured by the
Controller that should his position or department which
was apparently a one-man department with no staff
becomes untenable or unable to deliver the needed
service due to manpower constraint, he would be given
a three (3) year advance notice.
On January 27, 1989, petitioner was summoned by his
immediate boss and in the presence of IRD Manager,
Mr. Rolando Estrada, he was told of the abolition of his
position on the ground of redundancy. He pleaded with
management to defer its action or transfer him to
another department, but he was told that the decision of
management was final and that the same has been
conveyed to the Department of Labor and Employment.
Thus, he was constrained to file the complaint for illegal
dismissal before the Arbitration Branch of the National
Capital Region, NLRC, Department of Labor and
Employment.
Labor Arbiter’s Ruling: 1989 - Labor Arbiter
declared that complainant's termination on the ground of
redundancy is highly irregular and without legal and
factual basis, thus ordering the respondents to reinstate
complainant to his former position with full backwages
without lost of seniority rights and other benefits.
Respondents are further ordered to pay complainant
P200,000.00 as moral damages and P20,000.00 as
exemplary damages, plus ten percent (10%) of the total
award as attorney's fees.
Raytheon appealed on the grounds that the Labor
Arbiter committed grave abuse of discretion in denying
its rights to dismiss petitioner on the ground of
redundancy, in relying on baseless surmises and self-
serving assertions of the petitioner that its act was
tainted with malice and bad faith and in awarding moral
and exemplary damages and attorney's fees.
NLRC’s Ruling: 1991 - the NLRC reversed the
decision and directed Raytheon to pay petitioner the
total sum of P100,000.00 as separation pay/financial
assistance.
ISSUES:
1. Whether NLRC committed grave abuse of discretion
amounting to (lack of) or in excess of jurisdiction in
declaring as valid and justified the termination of
petitioner on the ground of redundancy.
2. Whether bad faith, malice and irregularity crept in the
abolition of petitioner's position of Cost Accounting
Manager on the ground of redundancy.
RULING:
1. No. There is no dispute that petitioner was duly
advised, one (1) month before, of the termination of his
employment on the ground of redundancy in a written
notice by his immediate superior in January 27, 1989.
He was issued a check representing separation pay but
in view of his refusal to acknowledge the notice and the
check, they were sent to him thru registered mail on
January 30, 1989. The Department of Labor and
Employment was served a copy of the notice of
termination of petitioner in accordance with the pertinent
provisions of the Labor Code and the implementing
rules.
2. No. Whether petitioner's functions as Cost Accounting
Manager have been dispensed with or merely absorbed
by another is however immaterial. For even conceding
that the functions of petitioner's position were merely
transferred, no malice or bad faith can be imputed from
said act. This Court said that redundancy, for purposes
of our Labor Code, exists where the services of an
employee are in excess of what is reasonably demanded
by the actual requirements of the enterprise. The
characterization of an employee's services as no longer
necessary or sustainable, and therefore, properly
terminable, was an exercise of business judgment on the
part of the employer. The wisdom or soundness of such
characterization or decision was not subject to
discretionary review on the part of the Labor Arbiter nor
of the NLRC so long, of course, as violation of law or
merely arbitrary and malicious action is not shown.
Indeed, an employer has no legal obligation to keep
more employees than are necessary for the operation of
its business. Petitioner does not dispute the fact that a
cost accounting system was installed and used at
Raytheon subsidiaries and plants worldwide; and that
the functions of his position involve the submission of
periodic reports utilizing computerized forms designed
and prescribed by the head office with the installation of
said accounting system. Petitioner attempts to controvert
these realities by alleging that some of the functions of
his position were still indispensable and were actually
dispersed to another department. What these
indispensable functions that were dispersed, he failed
however, to specify and point out. Besides, the fact that
the functions of a position were simply added to the
duties of another does not affect the legitimacy of the
employer's right to abolish a position when done in the
normal exercise of its prerogative to adopt sound
business practices in the management of its affairs.
Considering further that petitioner held a position which
was definitely managerial in character, Raytheon had a
broad latitude of discretion in abolishing his position. An
employer has a much wider discretion in terminating
employment relationship of managerial personnel
compared to rank and file employees. The reason is that
officers in such key positions perform not only functions
which by nature require the employer's full trust and
confidence but also functions that spell the success or
failure of an enterprise.
• Petitioner claims that the functions of his position were
absorbed by the Payroll/Mis/Finance Department under
Ang Tan Chai, a resident alien without any working
permit from the DOLE as required by law. Almodiel also
claims that he is better qualified than Ang Tan Chai, a
B.S. Industrial Engineer, hired merely as a Systems
Analyst Programmer or its equivalent in early 1987,
promoted as MIS Manager only during the middle part of
1988 and a resident alien.
• On the other hand, Raytheon insists that petitioner's
functions as Cost Accounting Manager had not been
absorbed by Ang Tan Chai, a permanent resident born
in this country. It claims to have established below that
Ang Tan Chai did not displace petitioner or absorb his
functions and duties as they were occupying entirely
different and distinct positions requiring different sets of
expertise or qualifications and discharging functions
altogether different and foreign from that of petitioner's
abolished position.
Destitute of merit is petitioner's imputation of unlawful
discrimination when Raytheon caused corollary functions
appertaining to cost accounting to be absorbed by
Danny Ang Tan Chai, a resident alien without a working
permit. Article 40 of the Labor Code which requires
employment permit refers to non-resident aliens. The
employment permit is required for entry into the country
for employment purposes and is issued after
determination of the non-availability of a person in the
Philippines who is competent, able and willing at the
time of application to perform the services for which the
alien is desired. Since Ang Tan Chai is a resident alien,
he does not fall within the ambit of the provision.
Petitioner also assails that he is better qualified for the
position. It should be noted, however, that Ang Tan Chai
was promoted to the position during the middle part of
1988 or before the abolition of petitioner's position in
early 1989. Besides the fact that Ang Tan Chai's
promotion thereto is a settled matter, it has been
consistently held that an objection founded on the
ground that one has better credentials over the
appointee is frowned upon so long as the latter
possesses the minimum qualifications for the position. In
the case at bar, since petitioner does not allege that Ang
Tan Chai does not qualify for the position, the Court
cannot substitute its discretion and judgment for that
which is clearly and exclusively management
prerogative.
It is a well-settled rule that labor laws do not authorize
interference with the employer's judgment in the conduct
of his business. The determination of the qualification
and fitness of workers for hiring and firing, promotion or
reassignment are exclusive prerogatives of
management. The Labor Code and its implementing
Rules do not vest in the Labor Arbiters nor in the
different Divisions of the NLRC (nor in the courts)
managerial authority. The employer is free to determine,
using his own discretion and business judgment, all
elements of employment, "from hiring to firing" except in
cases of unlawful discrimination or those which may be
provided by law.
NOTES: Termination of an employee's services because
of redundancy is governed by Article 283 of the Labor
Code which provides as follows:
Art. 283. Closure of establishment and reduction of
personnel. — The employer may also terminate the
employment of any employee due to installation of labor-
saving devices, redundancy, retrenchment to prevent
losses or the closing or cessation of operation of the
establishment or undertaking unless the closing is for the
purpose of circumventing the provisions of this Title, by
serving a written notice on the worker and the
Department of Labor and Employment at least one (1)
month before the intended date thereof. In case of
termination due to installation of labor-saving devices or
redundancy, the worker affected thereby shall be entitled
to a separation pay equivalent to at least one (1) month
pay for every year of service, whichever is higher. In
case of retrenchment to prevent losses and in cases of
closure or cessation of operations of establishment or
undertaking not due to serious business losses or
financial reverses, the separation pay shall be equivalent
to at least one (1) month pay or at least one-half (1/2)
month pay for every year of service, whichever is higher.
A fraction of at least six (6) months shall be considered
as one (1) whole year.
b. Conditions for Grant of Permit; Denial, D.O. No.
97-09 Sections 3, 4, 5, 6, 10
RULE III. Revocation/Cancellation of Employment
Permits Issued
1. The permits issued may, motu proprio or upon a
petition, be cancelled or revoked based on any of the
following grounds:
1.1 Misrepresentation of facts or falsification of the
documents submitted;
1.2 The foreign national has been declared as an
undesirable alien by competent authorities;
1.3 Non-compliance with the conditions for which the
AEP was issued;
1.4 Failure to renew AEP within one (1) year after its
expiration.
2. Petitions for cancellation or revocation of permits
issued shall be resolved within thirty (30) calendars from
receipt thereof.
3. Any aggrieved party may file a Motion for
Reconsideration and/or Appeal and the same shall be
resolved based on Paragraph 4 of this Rule.
• General Milling Corp. vs. Torres 196 SCRA 215 (1991)
- GMC’s claim that hiring of a foreign coach is an
employer’s prerogative has no legal basis. Art. 40 states
that an employer seeking employment of an alien must
first obtain an employment permit from the DOLE.
GMC’s right to choose is limited by the statutory
requirement of an alien employment permit.
- The Labor Code empowers the Secretary to
make a determination as to the availability of the
services of a “person in the Philippines who is
competent, able and willing at the time of application to
perform the services for which an alien is desired”.
DOLE is the agency vested with jurisdiction to determine
the question of availability of local workers.
FACTS:
Earl Timothy Cone is a US citizen, who was hired by
General Milling as a sports consultant and assistant
coach. He possessed an alien employment permit which
was changed to pre-arranged employee by the Board of
Special Inquiry of the Commission on Immigration and
Deportation. GMC requested that Cone’s employment
permit be changed to a full-fledged coach, which was
contested by The Basketball Coaches Association of the
Philippines. Alleging that GMC failed to show that there
is no competent person in the Philippines to do the
coaching job. Secretary of Labor cancelled Cone’s
employment permit.
ISSUE:
Whether or not the Secretary of Labor act with grave
abuse of discretion in revoking Cone’s Alien
Employment Permit?
HELD:
The Secretary of Labor did not act with grave abuse of
discretion in revoking Cone’s Alien Employment Permit.
GMC’s claim that hiring of a foreign coach is an
employer’s prerogative has no legal basis. Under
Section 40 of the Labor Code, an employer seeking
employment of an alien must first obtain an employment
permit from the Department of labor.
GMC’s right to choose whom to employ is limited by the
statutory requirement of an employment permit. The
Labor Code empowers the Labor Secretary to determine
as to the availability of the services of a “person in the
Philippines who is competent, able and willing at the
time of the application to perform the services for which
an alien is desired.” DOLE is the agency vested with
jurisdiction to determine the question of availability of
local workers.
c. Renewal; Validity of AEP, D.O. No. 97-09 Sections
9, 11
7. Validity of Permits - The validity of permits shall
be as follows:
7.1 As a general rule, the validity of permits shall be for a
period of one (1) year, unless the employment contract,
consultancy services, or other modes of engagement or
term of office for elective officers, provides for a longer
period.
7.2 The effectivity of the renewal shall be on the day
after the expiration of the previous permit, regardless of
whether or not the renewal is granted before or after the
expiration of the previous permit.
7.3 As a general rule, the permits shall be valid only for
the position and the employer for which it was issued,
except in case of foreign nationals who are holders of
multiple positions in one corporation, where one AEP
shall be valid for such multiple positions.
7.4 The permits of resident foreign nationals shall be
valid for multiple employers, regardless of the nature and
duration of their employment, provided that they shall
report changes in their employment status and the
identity of their employers to the DOLE Regional Office
which has issued the permit.
d. Revocation; Cancellation; Grounds, D.O. No. 97-09
Sections 12-14
RULE III. Revocation/Cancellation of Employment
Permits Issued
1. The permits issued may, motu proprio or upon a
petition, be cancelled or revoked based on any of
the following grounds:
1.1 Misrepresentation of facts or falsification of the
documents submitted;
1.2 The foreign national has been declared as
an undesirable alien by competent authorities;
1.3 Non-compliance with the conditions for
which the AEP was issued;
1.4 Failure to renew AEP within one (1) year
after its expiration
2. APPRENTICE/LEARNERS/PERSONS WITH
DISABILITIES
A. Human Resources Development
Reference: Arts. 57-81; Technical Education and Skills
Development Authority Act of 1994 (TESDA) (RA 7796);
Dual Training Systems Act of 1994 (RA 7686); Magna
Carta for Disabled Persons (RA 7277)
1. Policy Objectives, RA 7796, Sections 2,3
SEC. 2. Declaration of Policy. - It is hereby declared the
policy of the State to provide relevant, accessible, high
quality and efficient technical education and skills
development in support of the development of high
quality Filipino middle-level manpower responsive to and
in accordance with Philippine development goals and
priorities.
The State shall encourage active participation of various
concerned sectors, particularly private enterprises, being
direct participants in and immediate beneficiaries of a
trained and skilled workforce, in providing technical
education and skills development opportunities.
SEC. 3. Statement of Goals and Objectives. - It is the
goal and objective of this Act to:
Promote and strengthen the quality of technical
education and skills development programs to attain
international competitiveness;
Focus technical education and skills development on
meeting the changing demands for quality middle-level
manpower;
Encourage critical and creative thinking by disseminating
the scientific and technical knowledge base of middle-
level manpower development programs;
Recognize and encourage the complementary roles of
public and private institutions in technical education and
skills development and training systems; and Inculcate
desirable values through the development of moral
character with emphasis on work ethic, self-discipline,
self-reliance and nationalism.
2. Apprentice
a. Definition, Art. 58, (b; RA 7796 Sec 4 (j) (k)
"Apprentice" is a person undergoing training for an
approved apprenticeable occupation during an
apprenticeship agreement;
b. Apprenticeable Occupation, RA 7796, Sec 4 (m)
(m) "Apprenticeable Occupation" is an occupation
officially endorsed by a tripartite body and approved
for apprenticeship by the authority;
c. Qualification, Rule VI, Sec II, Omnibus Rule; RA
7610, as amended by RA 7658, Sec.12
REPUBLIC ACT NO. 7658
AN ACT PROHIBITING THE EMPLOYMENT OF
CHILDREN BELOW 15 YEARS OF AGE IN PUBLIC
AND PRIVATE UNDERTAKINGS, AMENDING FOR
THIS PURPOSE SECTION 12, ARTICLE VIII OF
R.A. 7610.
Section 1. Section 12, Article VIII of R. A. No. 7610
otherwise known as the "pecial Protection of Children
Against Child Abuse, Exploitation and Discrimination
Act" is hereby amended to read as follows:
"Sec. 12. Employment of Children. — Children below
fifteen (15) years of age shall not be employed except:
(1) When a child works directly under the sole
responsibility of his parents or legal guardian and where
only members of the employer's family are employed:
Provided, however, That his employment neither
endangers his life, safety, health and morals, nor impairs
his normal development; Provided, further, That the
parent or legal guardian shall provide the said minor
child with the prescribed primary and/or secondary
education; or
(2) Where a child's employment or participation in public
entertainment or information through cinema, theater,
radio or television is essential: Provided, The
employment contract is concluded by the child's parents
or legal guardian, with the express agreement of the
child concerned, if possible, and the approval of the
Department of Labor and Employment: and Provided,
That the following requirements in all instances are
strictly complied with:
(a) The employer shall ensure the protection, health,
safety, morals and normal development of the child;
(b) The employer shall institute measures to prevent the
child's exploitation or discrimination taking into account
the system and level of remuneration, and the duration
and arrangement of working time; and
(c) The employer shall formulate and implement,subject
to the approval and supervision of competent authorities,
a continuing program for training and skills acquisition of
the child.
In the above exceptional cases where any such child
may be employed, the employer shall first secure, before
engaging such child, a work permit from the Department
of Labor and Employment which shall ensure
observance of the above requirements.
The Department of Labor and Employment shall
promulgate rules and regulations necessary for
the effective implementation of this Section."
Sec. 2. All laws, decrees, executive orders, rules and
regulations or parts thereof contrary to, or inconsistent
with this Act are hereby modified or repealed
accordingly.
Sec. 3. This Act shall take effect fifteen (15) days after
its complete publication in the Official Gazette or in at
least two (2) national newspapers or general circulation
whichever comes earlier. Approved: November 9, 1993
d. Allowed Employment; Requirement Program
Approval Art. 60
• Nitto Enterprises v. NLRC, 258 SCRA 654 (1995)
- Art 61 of the LC provides: contents of apprenticeship
agreement. Apprenticeship agreements, including the
main rates of apprentices, shall conform to the rules
issued by the Minister of Labor and Employment. The
period of apprentices shall not exceed six months.
Apprenticeship agreements providing for wage rates
below the legal minimum wage, which in no case shall
start below 75% per cent of the applicable minimum
wage, may be entered into only in accordance with
apprenticeship program duly approved by the Minister of
Labor and Employment. The Ministry shall develop
standard model programs of apprenticeship.
- It is mandated that apprenticeship agreements entered
into by the employer and apprentice shall be entered
only in accordance with the apprenticeship program duly
approved by the Minister of Labor and Employment.
- Prior approval by the DOLE of the proposed
apprenticeship is, therefore, a condition sine qua non
before an apprenticeship agreement can be validly
entered into.
- The act of filing the proposed apprenticeship program
with DOLE is a preliminary step towards its final
approval and does not instantaneously give rise to an
employer-apprentice relationship.
- Hence, apprenticeship agreement bet petitioner and
private resp has no force and effect in the absence of a
valid apprenticeship program duly approved by the
DOLE.
- Art. 280 is cited.
- Twin requirements of notice and hearing constitute the
essential elements of due process.
FACTS:
Petitioner Nitto Enterprises, a company engaged
in the sale of glass and aluminum products, hired
Roberto Capili sometime in May 1990 as an
apprentice machinist, molder and coremaker as
evidenced by an apprenticeship agreement 2for a period
of six (6) months from May 28, 1990 to November 28,
1990 with a daily wage rate of P66.75 which was 75% of
the applicable minimum wage. On August 2, 1990,
Roberto Capili who was handling a piece of glass which
he was working on, accidentally hit and injured the leg of
an office secretary who was treated at a nearby
hospital. Further, Capili entered a workshop
within the office premises which was not his work
station. There, he operated one of the power press
machines without authority and in the process injured
his left thumb. The following day he was asked
to resign. Three days after, , private respondent
formally filed before the NLRC Arbitration Branch,
National Capital Region a complaint for illegal dismissal
and payment of other monetary benefits.
The Labor Arbiter rendered his decision
finding the termination of private respondent as
valid and dismissing the money claim for lack of merit.
On appeal, NLRC issued an order reversing the decision
of the Labor Arbiter. The NLRC declared that Capili was
a regular employee of Nitto Enterprises and not an
apprentice. Consequently, Labor Arbiter issued a Writ of
Execution ordering for the reinstatement of Capili
and to collect his back wages. Petitioner, Nitto
Enterprises filed a case to the Supreme Court.
ISSUE: Does the NLRC correctly rule that Capili is
a regular employee and not an apprentice of
Nitto Enterprises?
LAW: Article 280 of the Labor Code
RULING:
Yes. The apprenticeship agreement
between petitioner and private respondent was
executed on May 28, 1990 allegedly employing
the latter as an apprentice in the trade of "care
maker/molder. However, the apprenticeship Agreement
was filed only on June 7, 1990.Notwithstanding the
absence of approval by the Department of Labor and
Employment, the apprenticeship agreement was enforced the
day it was signed. The act of filing the proposed
apprenticeship program with the Department of
Labor and Employment is a preliminary step towards its
final approval and does not instantaneously give rise
to an employer-apprentice relationship.
Nitto Enterprises did not comply with the
requirements of the law. It is mandated that
apprenticeship agreements entered into by the employer
and apprentice shall be entered only in accordance with
the apprenticeship program duly approved by the
Minister of Labor and Employment. Thus, the
apprenticeship agreement has no force and effect; and
Capili is considered to be a regular employee of the
company.
OPINION:
I concur with the Courts findings that since the
apprenticeship agreement between petitioner and
private respondent have no force and effect in the
absence of a valid apprenticeship program duly
approved by the DOLE, private respondent's assertion
that he was hired not as an apprentice but as a delivery
boy ("kargador" or "pahinante") deserves credence. He
should rightly be considered as a regular employee of
petitioner as defined by Article 280 of the Labor Code.
e. Terms and Conditions of Employment, Art. 61, 72
ART. 61. Contents of apprenticeship agreements. -
Apprenticeship agreements, including the wage rates of
apprentices, shall conform to the rules issued by the
Secretary of Labor and Employment. The period of
apprenticeship shall not exceed six months.
Apprenticeship agreements providing for wage rates
below the legal minimum wage, which in no case shall
tart below 75 percent of the applicable minimum wage,
may be entered into only in accordance with
apprenticeship programs duly approved by the Secretary
of Labor and Employment. The Department shall
develop standard model programs of apprenticeship. (As
amended by Section 1, Executive Order No. 111,
December 24, 1986).
ART. 72. Apprentices without compensation. – The
Secretary of Labor and Employment may authorize the
hiring of apprentices without compensation whose
training on the job is required by the school or training
program curriculum or as requisite for graduation or
board examination
f. Costs, Art. 71
ART. 71. Deductibility of training costs. - An additional
deduction from taxable income of one-half (1/2) of the
value of labor training expenses incurred for developing
the productivity and efficiency of apprentices shall be
granted to the person or enterprise organizing an
apprenticeship program: Provided, That such program is
duly recognized by the Department of Labor and
Employment: Provided, further, That such deduction
shall not exceed ten (10%) percent of direct labor wage:
and Provided, finally, That the person or enterprise who
wishes to avail himself or itself of this incentive should
pay his apprentices the minimum wage.
g. Enforcement, Arts. 65, 66, 67
ART. 65. Investigation of violation of apprenticeship
agreement. - Upon complaint of any interested person
or upon its own initiative, the appropriate agency of the
Department of Labor and Employment or its authorized
representative shall investigate any violation of an
apprenticeship agreement pursuant to such rules and
regulations as may be prescribed by the Secretary of
Labor and Employment.
ART. 66. Appeal to the Secretary of Labor and
Employment. - The decision of the authorized agency of
the Department of Labor and Employment may be
appealed by any aggrieved person to the Secretary of
Labor and Employment within five (5) days from
receipt of the decision. The decision of the Secretary
of Labor and Employment shall be final and executory.
ART. 67. Exhaustion of administrative remedies. - No
person shall institute any action for the enforcement
of any apprenticeship agreement or damages for
breach of any such agreement, unless he has
exhausted all available administrative remedies.
5. Learners
a. Definition, Art. 73; RA 7796, Sec. 4 (n)
Article 73. Learners defined. Learners are persons
hired as trainees in semi-skilled and other industrial
occupations which are non-apprenticeable and which
may be learned through practical training on the job in a
relatively short period of time which shall not exceed
three (3) months.

RA 7796, Sec. 4 (n)
(n) “Learners" refer to persons hired as trainees in
semiskills and other industrial occupations which are non
apprenticeable. Learnersship programs must be
approved by the Authority;
b. Allowed Employment, Art. 74
ART. 74. When learners may be hired. - Learners may
be employed when no experienced workers are
available, the employment of learners is necessary to
prevent curtailment of employment opportunities, and
the employment does not create unfair competition in
terms of labor costs or impair or lower working
standards.
c. Terms and Conditions of Employment, Arts. 75, 76
ART. 75. Learnership agreement. - Any employer
desiring to employ learners shall enter into a learnership
agreement with them, which agreement shall include:
(a) The names and addresses of the learners;
(b) The duration of the learnership period, which
shall not exceed three (3) months;
(c) The wages or salary rates of the learners which shall
begin at not less than seventy-five percent (75%) of the
applicable minimum wage; and
(d) A commitment to employ the learners if they so
desire, as regular employees upon completion of the
learnership. All learners who have been allowed or
suffered to work during the first two (2) months shall be
deemed regular employees if training is terminated by
the employer before the end of the stipulated period
through no fault of the learners.
The learnership agreement shall be subject to inspection
by the Secretary of Labor and Employment or his duly
authorized representative.
ART. 76. Learners in piecework. - Learners
employed in piece or incentive-rate jobs during the
training period shall be paid in full for the work
done.
4. Persons with disabilities (handicapped), ILO
Convention 159 (1983); RA 7277
a. Definition, RA 7277, Sec. 4 (a) (b) (c) (d)
Sec. 4. Definition of Terms. — For purposes of this Act,
these terms are defined as follows:
(a) Disabled persons are those suffering from restriction
or different abilities, as a result of a mental, physical or
sensory impairment, to perform an activity in the manner
or within the range considered normal for a human
being;
(b) Impairment is any loss, diminution or aberration of
psychological, physiological, or anatomical structure or
function;
(c) Disability shall mean:
1) a physical or mental impairment that substantially
limits one or more psychological, physiological or
anatomical function of an individual or activities of such
individual; 2) a record of such an impairment; or
3) being regarded as having such an impairment;
(d) Handicap refers to a disadvantage for a given
individual, resulting from an impairment or a
disability, that limits or prevents the function or
activity, that is considered normal given the age
and sex of the individual;
b. Policy Declaration, RA 7277, Sec. 2
Sec. 2. Declaration of Policy — The grant of the
rights and privileges for disabled persons shall be
guided by the following principles:
(a) Disabled persons are part of Philippine society, thus
the State shall give full support to the improvement of
the total well-being of disabled persons and their
integration into the mainstream of society. Toward this
end, the State shall adopt policies ensuring the
rehabilitation, self-development and self-reliance of
disabled persons. It shall develop their skills and
potentials to enable them to compete favorably for
available opportunities.
(b) Disabled persons have the same rights as other
people to take their proper place in society. They should
be able to live freely and as independently as possible.
This must be the concern of everyone — the family,
community and all government and nongovernment
organizations. Disabled persons' rights must never be
perceived as welfare services by the Government.
(c) The rehabilitation of the disabled persons shall be the
concern of the Government in order to foster their
capacity to attain a more meaningful, productive and
satisfying life. To reach out to a greater number of
disabled persons, the rehabilitation services and benefits
shall be expanded beyond the traditional urban-based
centers to community based programs, that will ensure
full participation of different sectors as supported by
national and local government agencies.
(d) The State also recognizes the role of the private
sector in promoting the welfare of disabled persons and
shall encourage partnership in programs that address
their needs and concerns.
(e) To facilitate integration of disabled persons into the
mainstream of society, the State shall advocate for and
encourage respect for disabled persons. The State shall
exert all efforts to remove all social, cultural, economic,
environmental and attitudinal barriers that are prejudicial
to disabled persons.
c. Coverage, RA 7277, Sec. 3
Sec. 3. Coverage. — This Act shall cover all disabled
persons and, to the extent herein provided, departments,
offices and agencies of the National Government or
nongovernment organizations involved in the attainment
of the objectives of this Act
.
d. Rights and Privileges, RA 7277, Secs. 5, 6, 7
Sec. 5. Equal Opportunity for Employment. — No
disable person shall be denied access to opportunities
for suitable employment. A qualified disabled employee
shall be subject to the same terms and conditions of
employment and the same compensation, privileges,
benefits, fringe benefits, incentives or allowances as a
qualified able bodied person. Five percent (5%) of all
casual emergency and contractual positions in the
Departments of Social Welfare and Development;
Health; Education, Culture and Sports; and other
government agencies, offices or corporations engaged in
social development shall be reserved for disabled
persons.
Sec. 6. Sheltered Employment — If suitable employment
for disabled persons cannot be found through open
employment as provided in the immediately preceding
Section, the State shall endeavor to provide it by means
of sheltered employment. In the placement of disabled
persons in sheltered employment, it shall accord due
regard to the individual qualities, vocational goals and
inclinations to ensure a good working atmosphere and
efficient production.
Sec. 7. Apprenticeship. — Subject to the provisions of
the Labor Code as amended, disabled persons shall be
eligible as apprentices or learners: Provided, That their
handicap is not as much as to effectively impede the
performance of job operations in the particular
occupation for which they are hired; Provided, further,
That after the lapse of the period of apprenticeship, if
found satisfactory in the job performance, they shall be
eligible for employment.
• Bernardo vs. NLRC & FEBTC, 310 SCRA 186 (1999)
FACTS: Far East Bank (Respondent) entered into
employment contracts with deaf-mutes, who were hired
as money sorters under uniform “Employment Contracts
for Handicapped Workers.” Every 6 months, these
workers renewed their employment contracts. The
complainants here complain that they were regular
employees and that they have been illegally dismissed.
Respondent argued that complainants were not regular
employees, but a special class of workers who were
hired because of political and civic accommodation. And
that the Bank’s corporate philosophy does not allow the
hiring and regularizing handicapped workers unless it
was on a special arrangement basis. The Labor Arbiter
ruled in favor of respondent bank workers. NLRC
affirmed.
ISSUE: Whether or not petitioner workers are regular
employees.
HELD: YES, petitioners are regular employees. The fact
that after the expiry of their 6 month contract, respondent
bank renewed their contracts shows that these workers
were qualified to perform the responsibilities of their
positions.
The Magna Carta for Disabled Persons mandates that a
qualified disabled employee should be given the same
terms of employment as a qualified able-bodied person.
This being so, petitioners are thus covered by Art. 286 of
the Labor Code which defines regular employment to be
that the employee has been engaged to perform
activities usually necessary or desirable in the usual
business or trade of the employer. The task of counting
and sorting bills is necessary to the business of
respondent bank. Except for sixteen of them, the
petitioners performed these tasks for more than six
months. Therefore, the 27 petitioners should be deemed
regular employees entitled to security of tenure. Their
services may only be terminated for a just and
authorized cause. Because respondents failed to show
such cause, these 27 petitioners are deemed illegally
dismissed and hence entitled to backwages and
separation pay.
√
Facts:
Petitioners numbering 43 are deaf–mutes who were
hired on various periods from 1988 to 1993 by
respondent Far East Bank and Trust Co. as Money
Sorters and Counters through a uniformly worded
agreement called ‘Employment Contract for
Handicapped Workers. Subsequently, they are
dismissed.
Petitioners maintain that they should be considered
regular employees, because their task as money sorters
and counters was necessary and desirable to the
business of respondent bank. They further allege that
their contracts served merely to preclude the application
of Article 280 and to bar them from becoming regular
employees.
Private respondent, on the other hand, submits that
petitioners were hired only as “special workers and
should not in any way be considered as part of the
regular complement of the Bank.”[12] Rather, they were
“special” workers under Article 80 of the Labor Code.
Issue: WON petitioners have become regular
employees.
Held: The uniform employment contracts of the
petitioners stipulated that they shall be trained for a
period of one month, after which the employer shall
determine whether or not they should be allowed to
finish the 6-month term of the contract. Furthermore, the
employer may terminate the contract at any time for a
just and reasonable cause. Unless renewed in writing
by the employer, the contract shall automatically expire
at the end of the term.
Respondent bank entered into the aforesaid contract
with a total of 56 handicapped workers and renewed the
contracts of 37 of them. In fact, two of them worked
from 1988 to 1993. Verily, the renewal of the contracts
of the handicapped workers and the hiring of others lead
to the conclusion that their tasks were beneficial and
necessary to the bank. More important, these facts
show that they were qualified to perform the
responsibilities of their positions. In other words, their
disability did not render them unqualified or unfit for the
tasks assigned to them.
In this light, the Magna Carta for Disabled Persons
mandates that a qualified disabled employee should be
given the same terms and conditions of employment as
a qualified able-bodied person.
Section 5 of the Magna Carta provides:
“Section 5. Equal Opportunity for Employment.—No
disabled person shall be denied access to opportunities
for suitable employment. A qualified disabled employee
shall be subject to the same terms and conditions of
employment and the same compensation, privileges,
benefits, fringe benefits, incentives or allowances as a
qualified able bodied person.”
The fact that the employees were qualified disabled
persons necessarily removes the employment contracts
from the ambit of Article 80. Since the Magna Carta
accords them the rights of qualified able-bodied persons,
they are thus covered by Article 280 of the Labor Code,
which provides:
“ART. 280. Regular and Casual Employment. — The
provisions of written agreement to the contrary
notwithstanding and regardless of the oral agreement of
the parties, an employment shall be deemed to be
regular where the employee has been engaged to
perform activities which are usually necessary or
desirable in the usual business or trade of the employer,
x x x”
“The primary standard, therefore, of determining regular
employment is the reasonable connection between the
particular activity performed by the employee in relation
to the usual trade or business of the employer. The test
is whether the former is usually necessary or desirable in
the usual business or trade of the employer. The
connection can be determined by considering the nature
of the work performed and its relation to the scheme of
the particular business or trade in its entirety. Also if the
employee has been performing the job for at least one
year, even if the performance is not continuous and
merely intermittent, the law deems repeated and
continuing need for its performance as sufficient
evidence of the necessity if not indispensability of that
activity to the business. Hence, the employment is
considered regular, but only with respect to such activity,
and while such activity exists.”
Respondent bank entered into the aforesaid contract
with a total of 56 handicapped workers and renewed the
contracts of 37 of them. In fact, two of them worked
from 1988 to 1993. Verily, the renewal of the contracts
of the handicapped workers and the hiring of others lead
to the conclusion that their tasks were beneficial and
necessary to the bank. More important, these facts
show that they were qualified to perform the
responsibilities of their positions. In other words, their
disability did not render them unqualified or unfit for the
tasks assigned to them.
Without a doubt, the task of counting and sorting bills is
necessary and desirable to the business of respondent
bank. With the exception of sixteen of them, petitioners
performed these tasks for more than six months.
Petition granted.
e. Discrimination, RA 7277, Secs. 32, 33
Sec. 32. Discrimination on Employment. — No
entity, whether public or private, shall discriminate
against a qualified disabled person by reason of
disability in regard to job application procedures, the
hiring, promotion, or discharge of employees, employee
compensation, job training, and other terms, conditions,
and privileges of employment. The following constitute
acts of discrimination:
(a) Limiting, segregating or classifying a disabled job
applicant in such a manner that adversely affects his
work opportunities;
(b) Using qualification standards, employment tests or
other selection criteria that screen out or tend to screen
out a disabled person unless such standards, tests or
other selection criteria are shown to be job-related for
the position in question and are consistent with business
necessity;
(c) Utilizing standards, criteria, or methods of
administration that:
(1) have the effect of discrimination on the basis of
disability; or
(2) perpetuate the discrimination of others who are
subject to common administrative control.
(d) Providing less compensation, such as salary, wage
or other forms of remuneration and fringe benefits, to a
qualified disabled employee, by reason of his disability,
than the amount to which a non-disabled person
performing the same work is entitled;
(e) Favoring a non-disabled employee over a qualified
disabled employee with respect to promotion, training
opportunities, study and scholarship grants, solely on
account of the latter's disability;
(f) Re-assigning or transferring a disabled employee to a
job or position he cannot perform by reason of his
disability;
(g) Dismissing or terminating the services of a disabled
employee by reason of his disability unless the employer
can prove that he impairs the satisfactory performance
of the work involved to the prejudice of the business
entity: Provided, however, That the employer first sought
to provide reasonable accommodations for disabled
persons;
(h) Failing to select or administer in the most effective
manner employment tests which accurately reflect the
skills, aptitude or other factor of the disabled applicant or
employee that such tests purports to measure, rather
than the impaired sensory, manual or speaking skills of
such applicant or employee, if any; and
(i) Excluding disabled persons from membership in labor
unions or similar organizations.
Sec. 33. Employment Entrance Examination. —
Upon an offer of employment, a disabled applicant may
be subjected to medical examination, on the following
occasions:
(a) all entering employees are subjected to such an
examination regardless of disability;
(b) information obtained during the medical condition or
history of the applicant is collected and maintained on
separate forms and in separate medical files and is
treated as a confidential medical record; Provided,
however, That:
(1) supervisors and managers may be informed
regarding necessary restrictions on the work or duties of
the employees and necessary accommodations;
(2) first aid and safety personnel may be informed, when
appropriate, if the disability may require emergency
treatment;
(3) government officials investigating compliance with
this Act shall be provided relevant information on
request; and
(4) the results of such examination are used only
in accordance with this Act.
f. Enforcement, Secs. 44, 45, 46
Sec. 44. Enforcement by the Secretary of Justice.
— Facts: Petitioner, Phil association of Service Exporters,
(a) Denial of Right
(1) Duty to Investigate — the Secretary of Justice shall
investigate alleged violations of this Act, and shall
undertake periodic reviews of compliance of covered
entities under this Act.
(b) Potential Violations — If the Secretary of Justice has
reasonable cause to believe that —
(1) any person or group of persons is engaged in a
pattern or practice of discrimination under this Act; or
(2) any person or group or persons has been
discriminated against under this Act and such
discrimination raises an issue of general public
importance, the Secretary of Justice may commence a
legal action in any appropriate court.
Sec. 45. Authority of Court. — The court may grant any
equitable relief that such court considers to be
appropriate, including, to the extent required by this Act:
(a) granting temporary, preliminary or permanent relief;
(b) providing an auxiliary aid or service, modification of
policy, practice or procedure, or alternative method; and
(c) making facilities readily accessible to and usable by
individuals with disabilities
Sec. 46. Penal Clause. — (a) Any person who violates
any provision of this Act shall suffer the following
penalties:
(1) for the first violation, a fine of not less than Fifty
thousand pesos (P50,000.00) but not exceeding One
hundred thousand pesos (P100,000.00) or imprisonment
of not less than six (6) months but not more than two (2)
years, or both at the discretion of the court; and
(2) for any subsequent violation, a fine of not less than
One hundred thousand pesos (P100,000.00) but not
exceeding Two hundred thousand pesos (P200,000.00)
or imprisonment for not less than two (2) years but not
more than six (6) years, or both at the discretion of the
court.
(b) Any person who abuses the privileges granted herein
shall be punished with imprisonment of not less than six
(6) months or a fine of not less than Five thousand
pesos (P5,000.00), but not more than Fifty thousand
pesos (P50,000.00), or both, at the discretion of the
court.
(c) If the violator is a corporation, organization or any
similar entity, the officials thereof directly involved shall
be liable therefor.
(d) If the violator is an alien or a foreigner, he shall be
deported immediately after service of sentence without
further deportation proceedings.
3. WOMEN WORKERS
References:
A. Women under the Constitution, Art. II, Sec. 14;
Art XIII, Sec 14
• Philippine Association of Service Exporters v.
Drilon, 163 SCRA 386 (1988)
Inc., is engaged principally in the recruitment of Filipino
workers, male and female of overseas employment. It
challenges the constitutional validity of Dept. Order No. 1
(1998) of DOLE entitled “Guidelines Governing the
Temporary Suspension of Deployment of Filipino
Domestic and Household Workers.” It claims that such
order is a discrimination against males and females. The
Order does not apply to all Filipino workers but only to
domestic helpers and females with similar skills, and that
it is in violation of the right to travel, it also being an
invalid exercise of the lawmaking power. Further, PASEI
invokes Sec 3 of Art 13 of the Constitution, providing for
worker participation in policy and decision-making
processes affecting their rights and benefits as may be
provided by law. Thereafter the Solicitor General on
behalf of DOLE submitting to the validity of the
challenged guidelines involving the police power of the
State and informed the court that the respondent have
lifted the deployment ban in some states where there
exists bilateral agreement with the Philippines and
existing mechanism providing for sufficient safeguards to
ensure the welfare and protection of the Filipino workers.
Issue: Whether or not there has been a valid
classification in the challenged Department Order No. 1.
Held: SC in dismissing the petition ruled that there has
been valid classification, the Filipino female domestics
working abroad were in a class by themselves, because
of the special risk to which their class was exposed.
There is no question that Order No.1 applies only to
female contract workers but it does not thereby make an
undue discrimination between sexes. It is well settled hat
equality before the law under the constitution does not
import a perfect identity of rights among all men and
women. It admits of classification, provided that:
1. Such classification rests on substantial distinctions
2. That they are germane to the purpose of the law
3. They are not confined to existing conditions
4. They apply equally to al members of the same class
In the case at bar, the classifications made, rest on
substantial distinctions.
Dept. Order No. 1 does not impair the right to travel. The
consequence of the deployment ban has on the right to
travel does not impair the right, as the right to travel is
subjects among other things, to the requirements of
“public safety” as may be provided by law. Deployment
ban of female domestic helper is a valid exercise of
police power. Police power as been defined as the state
authority to enact legislation that may interfere with
personal liberty or property in order to promote general
welfare. Neither is there merit in the contention that
Department Order No. 1 constitutes an invalid exercise
of legislative power as the labor code vest the DOLE
with rule making powers.
• Phil. Telegraph and Telephone Co. v. NLRC, 272
SCRA 596 (1997)
A woman worker may not be dismissed on the
ground of dishonesty for having written “single” on
the space for civil status on the application sheet,
contrary to the fact that she was married.
FACTS: PT&T (Philippine Telegraph & Telephone
Company) initially hired Grace de Guzman specifically
as “Supernumerary Project Worker”, for a fixed period
from November 21, 1990 until April 20, 1991 as reliever
for C.F. Tenorio who went on maternity leave. She was
again invited for employment as replacement of Erlina F.
Dizon who went on leave on 2 periods, from June 10,
1991 to July 1, 1991 and July 19, 1991 to August 8,
1991.
On September 2, 1991, de Guzman was again asked to
join PT&T as a probationary employee where
probationary period will cover 150 days. She indicated
in the portion of the job application form under civil
status that she was single although she had contracted
marriage a few months earlier. When petitioner learned
later about the marriage, its branch supervisor, Delia M.
Oficial, sent de Guzman a memorandum requiring her to
explain the discrepancy. Included in the memorandum,
was a reminder about the company’s policy of not
accepting married women for employment. She was
dismissed from the company effective January 29, 1992.
Labor Arbiter handed down decision on November 23,
1993 declaring that petitioner illegally dismissed De
Guzman, who had already gained the status of a regular
employee. Furthermore, it was apparent that she had
been discriminated on account of her having contracted
marriage in violation of company policies.
ISSUE: Whether the alleged concealment of civil status
can be grounds to terminate the services of an
employee.
HELD: Article 136 of the Labor Code, one of the
protective laws for women, explicitly prohibits
discrimination merely by reason of marriage of a female
employee. It is recognized that company is free to
regulate manpower and employment from hiring to firing,
according to their discretion and best business
judgment, except in those cases of unlawful
discrimination or those provided by law.
PT&T’s policy of not accepting or disqualifying from work
any woman worker who contracts marriage is afoul of
the right against discrimination provided to all women
workers by our labor laws and by our Constitution. The
record discloses clearly that de Guzman’s ties with
PT&T were dissolved principally because of the
company’s policy that married women are not qualified
for employment in the company, and not merely because
of her supposed acts of dishonesty.
The government abhors any stipulation or policy in the
nature adopted by PT&T. As stated in the labor code:
“ART. 136. Stipulation against marriage. — It shall be
unlawful for an employer to require as a condition of
employment or continuation of employment that a
woman shall not get married, or to stipulate expressly or
tacitly that upon getting married, a woman employee
shall be deemed resigned or separated, or to actually
dismiss, discharge, discriminate or otherwise prejudice a
woman employee merely by reason of marriage.”
The policy of PT&T is in derogation of the provisions
stated in Art.136 of the Labor Code on the right of a
woman to be free from any kind of stipulation against
marriage in connection with her employment and it
likewise is contrary to good morals and public policy,
depriving a woman of her freedom to choose her status,
a privilege that is inherent in an individual as an
intangible and inalienable right. The kind of policy
followed by PT&T strikes at the very essence, ideals and
purpose of marriage as an inviolable social institution
and ultimately, family as the foundation of the nation.
Such policy must be prohibited in all its indirect,
disguised or dissembled forms as discriminatory conduct
derogatory of the laws of the land not only for order but
also imperatively required.
√
FACTS:
Grace de Guzman was hired by PT&T as a
Supernumerary Project Worker for a fixed period from
November 21, 1990 until April 20, 1991 as reliever for
C.F. Tenorio who went on maternity leave. Under the
Reliever Agreement signed by Grace, her employment
was to be immediately terminated upon expiration of the
agreed period. From June 10, 1991 to July 1, 1991, and
from July 19, 1991 to August 8, 1991, PT&T again
engaged the services of Grace as reliever for Erlinda F.
Dizon who went on leave during both periods. On
September 2, 1991, Grace was asked to join petitioner
company as a probationary employee. In the job
application form furnished to Grace, she indicated in the
civil status that she was single although she had in fact
contracted marriage on May 26, 1991. This meant she
was not single, as she had represented herself, when
she signed the reliever agreements on June 10, 1991
and July 8, 1991. Petitioner dismissed Grace from the
Company after learning about Grace’s real civil status
and being unconvinced of Grace’s explanation for the
discrepancy. Grace immediately filed a complaint for
illegal dismissal coupled with a claim for non-payment of
cost of living allowances (COLA), before the Regional
Arbitration Branch of the National Labor Relations
Commission (NLRC) in Baguio City. At the preliminary
conference, Grace volunteered the information that she
had failed to remit the amount of P2,380.75 of her
collections, and executed a promissory note for that
amount in favor of petitioner. The Labor Arbiter handed
down a decision declaring that private respondent, who
had already gained the status of a regular employee,
was illegally dismissed by petitioner and ordered her
reinstatement plus payment of the corresponding back
wages and COLA. On appeal, the NLRC upheld the
Labor Arbiter but modified the Labor Arbiter’s decision
with the qualification that Grace de Guzman deserved to
be suspended for three months due to the dishonest
nature of her acts which should not be condoned.
ISSUE: Can the alleged concealment of civil status be a
ground for terminating the services of an employee?
HELD: No. The Constitution provides a gamut of
protective provisions due to the disparity in rights
between men and women in almost all phases of social
and political life. Article II Section 14 of the 1987
Constitution states that “The State recognizes the role of
women in nation-building, and shall ensure the
fundamental equality before the law of women and men.”
Corollary to this is Article XIII Section 3 which states that
“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” and Article XIII Section 14 which states that “The
State shall protect working women by providing safe and
healthful working conditions, taking into account their
maternal functions, and such facilities and opportunities
that will enhance their welfare and enable them to
realize their full potential in the service of the nation.”
Since the Labor Code was enacted on May 1, 1974,
corrective labor and social laws on gender inequality
have emerged with more frequency in the years. Two of
these are Republic Act No. 6727 which explicitly
prohibits discrimination against women with respect to
terms and conditions of employment, promotion, and
training opportunities; and Republic Act No. 7192 or the
Women in Development and Nation Building Act which,
among others, affords women equal opportunities with
men to act and to enter into contracts. In the Labor
Code, Article 136 explicitly prohibits discrimination
merely by reason of the marriage of a female employee.
The private respondent’s act of concealing the true
nature of her status from PT&T could not be properly
characterized as willful or in bad faith as she was moved
to act the way she did mainly because she wanted to
retain a permanent job in a stable company. In other
words, she was practically forced by that very same
illegal company policy into misrepresenting her civil
status for fear of being disqualified from work.
B. Coverage, Rule XII, Sec. I
Employment of Women and Minors
SECTION 1. General statement on coverage. — This
Rule shall apply to all employers, whether operating
for profit or not, including educational, religious and
charitable institutions, except to the Government and
to government-owned or controlled corporations and
to employers of household helpers and persons in
their personal service insofar as such workers are
concerned.
C. Prohibited Acts
1) Night Work(Exceptions), International Labor
Organization Convention 89 (1948), Art. 130-131
International Labor Organization Convention 89 (1948),
Preamble
The General Conference of the International Labour
Organisation,
Having been convened at San Francisco by the
Governing Body of the International Labour Office, and
having met in its Thirty-first Session on 17 June 1948,
and
Having decided upon the adoption of certain proposals
with regard to the partial revision of the Night Work
(Women) Convention, 1919, adopted by the Conference
at its First Session, and the Night Work (Women)
Convention (Revised), 1934, adopted by the Conference
at its Eighteenth Session, which is the ninth item on the
agenda of the session, and
Considering that these proposals must take the form of
an international Convention.
adopts this ninth day of July of the year one thousand
nine hundred and forty-eight the following Convention,
which may be cited as the Night Work (Women)
Convention (Revised), 1948:
PART I. GENERAL PROVISIONS
Article 1
1. For the purpose of this Convention, the term industrial
undertakings includes particularly:
(a) mines, quarries, and other works for the extraction of
minerals from the earth;
(b) undertakings in which articles are manufactured,
altered, cleaned, repaired, ornamented, finished,
adapted for sale, broken up or demolished, or in which
materials are transformed, including undertakings
engaged in ship-building or in the generation,
transformation or transmission of electricity or motive
power of any kind;
(c) undertakings engaged in building and civil
engineering work, including constructional, repair,
maintenance, alteration and demolition work.
2. The competent authority shall define the line of
division which separates industry from agriculture,
commerce and other non-industrial occupations.
Article 2
For the purpose of this Convention the term night
signifies a period of at least eleven consecutive hours,
including an interval prescribed by the competent
authority of at least seven consecutive hours falling
between ten o'clock in the evening and seven o'clock in
the morning; the competent authority may prescribe
different intervals for different areas, industries,
undertakings or branches of industries or undertakings,
but shall consult the employers' and workers'
organisations concerned before prescribing an interval
beginning after eleven o'clock in the evening.
Article 3
Women without distinction of age shall not be employed
during the night in any public or private industrial
undertaking, or in any branch thereof, other than an
undertaking in which only members of the same family
are employed.
Article 4
Article 3 shall not apply:
(a) in cases of force majeure, when in any undertaking
there occurs an interruption of work which it was
impossible to foresee, and which is not of a recurring
character;
(b) in cases where the work has to do with raw materials
or materials in course of treatment which are subject to
rapid deterioration when such night work is necessary to
preserve the said materials from certain loss.
Article 5
1. The prohibition of night work for women may be
suspended by the government, after consultation with
the employers' and workers' organisations concerned,
when in case of serious emergency the national interest
demands it.
2. Such suspension shall be notified by the government
concerned to the Director-General of the International
Labour Office in its annual report on the application of
the Convention.
Article 6
In industrial undertakings which are influenced by the
seasons and in all cases where exceptional
circumstances demand it, the night period may be
reduced to ten hours on sixty days of the year.
Article 7
In countries where the climate renders work by day
particularly trying, the night period may be shorter than
that prescribed in the above articles if compensatory rest
is accorded during the day.
Article 8
This Convention does not apply to:
(a) women holding responsible positions of a managerial
or technical character; and
(b) women employed in health and welfare services who
are not ordinarily engaged in manual work.
PART II. SPECIAL PROVISIONS FOR CERTAIN
COUNTRIES
Article 9
In those countries where no government regulation as
yet applies to the employment of women in industrial
undertakings during the night, the term night may
provisionally, and for a maximum period of three years,
be declared by the government to signify a period of only
ten hours, including an interval prescribed by the
competent authority of at least seven consecutive hours
falling between ten o'clock in the evening and seven
o'clock in the morning.
Article 10
1. The provisions of this Convention shall apply to India
subject to the modifications set forth in this Article.
2. The said provisions shall apply to all territories in
respect of which the Indian legislature has jurisdiction to
apply them.
3. The term industrial undertaking shall include:
(a) factories as defined in the Indian Factories Act; and
(b) mines to which the Indian Mines Act applies.
Article 11
1. The provisions of this Convention shall apply to
Pakistan subject to the modifications set forth in this
Article.
2. The said provisions shall apply to all territories in
respect of which the Pakistan legislature has jurisdiction
to apply them.
3. The term industrial undertaking shall include:
(a) factories as defined in the Factories Act;
(b) mines to which the Mines Act applies.
Article 12
1. The International Labour Conference may, at any
session at which the matter is included in its agenda,
adopt by a two-thirds majority draft amendments to any
one or more of the preceding articles of Part II of this
Convention.
2. Any such draft amendment shall state the Member or
Members to which it applies, and shall, within the period
of one year, or, in exceptional circumstances, of
eighteen months from the closing of the session of the
Conference, be submitted by the Member or Members to
which it applies to the authority or authorities within
whose competence the matter lies, for the enactment of
legislation or other action.
3. Each such Member will, if it obtains the consent of the
authority or authorities within whose competence the
matter lies, communicate the formal ratification of the
amendment to the Director-General of the International
Labour Office for registration.
4. Any such draft amendment shall take effect as an
amendment to this Convention on ratification by the
Member or Members to which it applies.
PART III. FINAL PROVISIONS
Article 13
The formal ratifications of this Convention shall be
communicated to the Director-General of the
International Labour Office for registration.
Article 14
1. This Convention shall be binding only upon those
Members of the International Labour Organisation
whose ratifications have been registered with the
Director-General.
2. It shall come into force twelve months after the date
on which the ratifications of two Members have been
registered with the Director-General.
3. Thereafter, this Convention shall come into force for
any Member twelve months after the date on which its
ratifications has been registered.
Article 15
1. A Member which has ratified this Convention may
denounce it after the expiration of ten years from the
date on which the Convention first comes into force, by
an act communicated to the Director-General of the
International Labour Office for registration. Such
denunciation shall not take effect until one year after the
date on which it is registered.
2. Each Member which has ratified this Convention and
which does not, within the year following the expiration
of the period of ten years mentioned in the preceding
paragraph, exercise the right of denunciation provided
for in this Article, will be bound for another period of ten
years and, thereafter, may denounce this Convention at
the expiration of each period of ten years under the
terms provided for in this Article.
Article 16
1. The Director-General of the International Labour
Office shall notify all Members of the International
Labour Organisation of the registration of all ratifications
and denunciations communicated to him by the
Members of the Organisation.
2. When notifying the Members of the Organisation of
the registration of the second ratification communicated
to him, the Director-General shall draw the attention of
the Members of the Organisation to the date upon which
the Convention will come into force.
Article 17
The Director-General of the International Labour Office
shall communicate to the Secretary-General of the
United Nations for registration in accordance with Article
102 of the Charter of the United Nations full particulars
of all ratifications and acts of denunciation registered by
him in accordance with the provisions of the preceding
articles.
Article 18
At such times as it may consider necessary the
Governing Body of the International Labour Office shall
present to the General Conference a report on the
working of this Convention and shall examine the
desirability of placing on the agenda of the Conference
the question of its revision in whole or in part.
Article 19
1. Should the Conference adopt a new Convention
revising this Convention in whole or in part, then, unless
the new Convention otherwise provides:
(a) the ratification by a Member of the new revising
Convention shall ipso jure involve the immediate
denunciation of this Convention, notwithstanding the
provisions of Article 15 above, if and when the new
revising Convention shall have come into force;
(b) as from the date when the new revising Convention
comes into force this Convention shall cease to be open
to ratification by the Members.
2. This Convention shall in any case remain in force in
its actual form and content for those Members which
have ratified it but have not ratified the revising
Convention.
Article 20
The English and French versions of the text of this
Convention are equally authoritative.
Art. 130-131
ART. 130. Nightwork prohibition. - No woman,
regardless of age, shall be employed or permitted or
suffered to work, with or without compensation:
(a) In any industrial undertaking or branch thereof
between ten o’clock at night and six o’clock in the
morning of the following day; or
(b) In any commercial or non-industrial undertaking or
branch thereof, other than agricultural, between midnight
and six o’clock in the morning of the following day; or
(c) In any agricultural undertaking at nighttime unless
she is given a period of rest of not less than nine (9)
consecutive hours.
ART. 131. Exceptions. - The prohibitions prescribed by
the preceding Article shall not apply in any of the
following cases:
(a) In cases of actual or impending emergencies caused
by serious accident, fire, flood, typhoon, earthquake,
epidemic or other disasters or calamity, to prevent loss
of life or property, or in cases of force majeure or
imminent danger to public safety;
(b) In case of urgent work to be performed on
machineries, equipment or installation, to avoid serious
loss which the employer would otherwise suffer;
(c) Where the work is necessary to prevent serious
loss of perishable goods;
(d) Where the woman employee holds a responsible
position of managerial or technical nature, or where
the woman employee has been engaged to provide
health and welfare services;
(e) Where the nature of the work requires the manual
skill and dexterity of women workers and the same
cannot be performed with equal efficiency by male
workers;
(f) Where the women employees are immediate
members of the family operating the establishment or
undertaking; and
(g) Under other analogous cases exempted by the
Secretary of Labor and Employment in appropriate
regulations.
2) Discrimination International Labor Organization
100, (1951) and 111 (1958); CEDAW Art. 11; Art. 135
C100 - Equal Remuneration Convention,
1951 (No. 100)
Preamble
The General Conference of the International Labour
Organisation,
Having been convened at Geneva by the Governing
Body of the International Labour Office, and having met
in its Thirty-fourth Session on 6 June 1951, and
Having decided upon the adoption of certain proposals
with regard to the principle of equal remuneration for
men and women workers for work of equal value, which
is the seventh item on the agenda of the session, and
Having determined that these proposals shall take the
form of an international Convention, adopts this twenty-
ninth day of June of the year one thousand nine hundred
and fifty-one the following Convention, which may be
cited as the Equal Remuneration Convention, 1951:
Article 1
For the purpose of this Convention--
(a) the term remuneration includes the ordinary, basic or
minimum wage or salary and any additional emoluments
whatsoever payable directly or indirectly, whether in
cash or in kind, by the employer to the worker and
arising out of the worker's employment;
(b) the term equal remuneration for men and women
workers for work of equal value refers to rates of
remuneration established without discrimination based
on sex.
Article 2
1. Each Member shall, by means appropriate to the
methods in operation for determining rates of
remuneration, promote and, in so far as is consistent
with such methods, ensure the application to all workers
of the principle of equal remuneration for men and
women workers for work of equal value.
2. This principle may be applied by means of--
(a) national laws or regulations;
(b) legally established or recognised machinery for wage
determination;
(c) collective agreements between employers and
workers; or
(d) a combination of these various means.
Article 3
1. Where such action will assist in giving effect to the
provisions of this Convention measures shall be taken to
promote objective appraisal of jobs on the basis of the
work to be performed.
2. The methods to be followed in this appraisal may be
decided upon by the authorities responsible for the
determination of rates of remuneration, or, where such
rates are determined by collective agreements, by the
parties thereto.
3. Differential rates between workers which correspond,
without regard to sex, to differences, as determined by
such objective appraisal, in the work to be performed
shall not be considered as being contrary to the principle
of equal remuneration for men and women workers for
work of equal value.
Article 4
Each Member shall co-operate as appropriate with the
employers' and workers' organisations concerned for the
purpose of giving effect to the provisions of this
Convention.
Article 5
The formal ratifications of this Convention shall be
communicated to the Director-General of the
International Labour Office for registration.
Article 6
1. This Convention shall be binding only upon those
Members of the International Labour Organisation
whose ratifications have been registered with the
Director-General.
2. It shall come into force twelve months after the date
on which the ratifications of two Members have been
registered with the Director-General.
3. Thereafter, this Convention shall come into force for
any Member twelve months after the date on which its
ratification has been registered.
Article 7
1. Declarations communicated to the Director-General of
the International Labour Office in accordance with
paragraph 2 of Article 35 of the Constitution of the
International Labour Organisation shall indicate --
(a) the territories in respect of which the Member
concerned undertakes that the provisions of the
Convention shall be applied without modification;
(b) the territories in respect of which it undertakes that
the provisions of the Convention shall be applied subject
to modifications, together with details of the said
modifications;
(c) the territories in respect of which the Convention is
inapplicable and in such cases the grounds on which it is
inapplicable;
(d) the territories in respect of which it reserves its
decision pending further consideration of the position.
2. The undertakings referred to in subparagraphs (a) and
(b) of paragraph 1 of this Article shall be deemed to be
an integral part of the ratification and shall have the force
of ratification.
3. Any Member may at any time by a subsequent
declaration cancel in whole or in part any reservation
made in its original declaration in virtue of subparagraph
(b), (c) or (d) of paragraph 1 of this Article.
4. Any Member may, at any time at which the
Convention is subject to denunciation in accordance with
the provisions of Article 9, communicate to the Director-
General a declaration modifying in any other respect the
terms of any former declaration and stating the present
position in respect of such territories as it may specify.
Article 8
1. Declarations communicated to the Director-General of
the International Labour Office in accordance with
paragraph 4 or 5 of Article 35 of the Constitution of the
International Labour Organisation shall indicate whether
the provisions of the Convention will be applied in the
territory concerned without modification or subject to
modifications; when the declaration indicates that the
provisions of the Convention will be applied subject to
modifications, it shall give details of the said
modifications.
2. The Member, Members or international authority
concerned may at any time by a subsequent declaration
renounce in whole or in part the right to have recourse to
any modification indicated in any former declaration.
3. The Member, Members or international authority
concerned may, at any time at which this Convention is
subject to denunciation in accordance with the
provisions of Article 9, communicate to the Director-
General a declaration modifying in any other respect the
terms of any former declaration and stating the present
position in respect of the application of the Convention.
Article 9
1. A Member which has ratified this Convention may
denounce it after the expiration of ten years from the
date on which the Convention first comes into force, by
an act communicated to the Director-General of the
International Labour Office for registration. Such
denunciation shall not take effect until one year after the
date on which it is registered.
2. Each Member which has ratified this Convention and
which does not, within the year following the expiration
of the period of ten years mentioned in the preceding
paragraph, exercise the right of denunciation provided
for in this Article, will be bound for another period of ten
years and, thereafter, may denounce this Convention at
the expiration of each period of ten years under the
terms provided for in this Article.
Article 10
1. The Director-General of the International Labour
Office shall notify all Members of the International
Labour Organisation of the registration of all ratifications,
declarations and denunciations communicated to him by
the Members of the Organisation.
2. When notifying the Members of the Organisation of
the registration of the second ratification communicated
to him, the Director-General shall draw the attention of
the Members of the Organisation to the date upon which
the Convention will come into force.
Article 11
The Director-General of the International Labour Office
shall communicate to the Secretary-General of the
United Nations for registration in accordance with Article
102 of the Charter of the United Nations full particulars
of all ratifications, declarations and acts of denunciation
registered by him in accordance with the provisions of
the preceding articles.
Article 12
At such times as may consider necessary the Governing
Body of the International Labour Office shall present to
the General Conference a report on the working of this
Convention and shall examine the desirability of placing
on the agenda of the Conference the question of its
revision in whole or in part.
Article 13
1. Should the Conference adopt a new Convention
revising this Convention in whole or in part, then, unless
the new Convention otherwise provides--
(a) the ratification by a Member of the new revising
Convention shall ipso jure involve the immediate
denunciation of this Convention, notwithstanding the
provisions of Article 9 above, if and when the new
revising Convention shall have come into force;
(b) as from the date when the new revising Convention
comes into force this Convention shall cease to be open
to ratification by the Members.
2. This Convention shall in any case remain in force in
its actual form and content for those Members which
have ratified it but have not ratified the revising
Convention.
Article 14
The English and French versions of the text of this
Convention are equally authoritative.
C111 - Discrimination (Employment and Occupation)
Convention, 1958 (No. 111)
Preamble
The General Conference of the International Labour
Organisation,
Having been convened at Geneva by the Governing
Body of the International Labour Office, and having met
in its Forty-second Session on 4 June 1958, and
Having decided upon the adoption of certain proposals
with regard to discrimination in the field of employment
and occupation, which is the fourth item on the agenda
of the session, and
Having determined that these proposals shall take the
form of an international Convention, and
Considering that the Declaration of Philadelphia affirms
that all human beings, irrespective of race, creed or sex,
have the right to pursue both their material well-being
and their spiritual development in conditions of freedom
and dignity, of economic security and equal opportunity,
and
Considering further that discrimination constitutes a
violation of rights enunciated by the Universal
Declaration of Human Rights,
adopts this twenty-fifth day of June of the year one
thousand nine hundred and fifty-eight the following
Convention, which may be cited as the Discrimination
(Employment and Occupation) Convention, 1958:
Article 1
1. For the purpose of this Convention the term
discrimination includes--
(a) any distinction, exclusion or preference made on the
basis of race, colour, sex, religion, political opinion,
national extraction or social origin, which has the effect
of nullifying or impairing equality of opportunity or
treatment in employment or occupation;
(b) such other distinction, exclusion or preference which
has the effect of nullifying or impairing equality of
opportunity or treatment in employment or occupation as
may be determined by the Member concerned after
consultation with representative employers' and workers'
organisations, where such exist, and with other
appropriate bodies.
2. Any distinction, exclusion or preference in respect of a
particular job based on the inherent requirements thereof
shall not be deemed to be discrimination.
3. For the purpose of this Convention the terms
employment and occupation include access to
vocational training, access to employment and to
particular occupations, and terms and conditions of
employment.
Article 2
Each Member for which this Convention is in force
undertakes to declare and pursue a national policy
designed to promote, by methods appropriate to national
conditions and practice, equality of opportunity and
treatment in respect of employment and occupation, with
a view to eliminating any discrimination in respect
thereof.
Article 3
Each Member for which this Convention is in force
undertakes, by methods appropriate to national
conditions and practice--
(a) to seek the co-operation of employers' and workers'
organisations and other appropriate bodies in promoting
the acceptance and observance of this policy;
(b) to enact such legislation and to promote such
educational programmes as may be calculated to secure
the acceptance and observance of the policy;
(c) to repeal any statutory provisions and modify any
administrative instructions or practices which are
inconsistent with the policy;
(d) to pursue the policy in respect of employment under
the direct control of a national authority;
(e) to ensure observance of the policy in the activities of
vocational guidance, vocational training and placement
services under the direction of a national authority;
(f) to indicate in its annual reports on the application of
the Convention the action taken in pursuance of the
policy and the results secured by such action.
Article 4
Any measures affecting an individual who is justifiably
suspected of, or engaged in, activities prejudicial to the
security of the State shall not be deemed to be
discrimination, provided that the individual concerned
shall have the right to appeal to a competent body
established in accordance with national practice.
Article 5
1. Special measures of protection or assistance provided
for in other Conventions or Recommendations adopted
by the International Labour Conference shall not be
deemed to be discrimination.
2. Any Member may, after consultation with
representative employers' and workers' organisations,
where such exist, determine that other special measures
designed to meet the particular requirements of persons
who, for reasons such as sex, age, disablement, family
responsibilities or social or cultural status, are generally
recognised to require special protection or assistance,
shall not be deemed to be discrimination.
Article 6
Each Member which ratifies this Convention undertakes
to apply it to non-metropolitan territories in accordance
with the provisions of the Constitution of the International
Labour Organisation.
Article 7
The formal ratifications of this Convention shall be
communicated to the Director-General of the
International Labour Office for registration.
Article 8
1. This Convention shall be binding only upon those
Members of the International Labour Organisation
whose ratifications have been registered with the
Director-General.
2. It shall come into force twelve months after the date
on which the ratifications of two Members have been
registered with the Director-General.
3. Thereafter, this Convention shall come into force for
any Member twelve months after the date on which its
ratification has been registered.
Article 9
1. A Member which has ratified this Convention may
denounce it after the expiration of ten years from the
date on which the Convention first comes into force, by
an act communicated to the Director-General of the
International Labour Office for registration. Such
denunciation shall not take effect until one year after the
date on which it is registered.
2. Each Member which has ratified this Convention and
which does not, within the year following the expiration
of the period of ten years mentioned in the preceding
paragraph, exercise the right of denunciation provided
for in this Article, will be bound for another period of ten
years and, thereafter, may denounce this Convention at
the expiration of each period of ten years under the
terms provided for in this Article.
Article 10
1. The Director-General of the International Labour
Office shall notify all Members of the International
Labour Organisation of the registration of all ratifications
and denunciations communicated to him by the
Members of the Organisation.
2. When notifying the Members of the Organisation of
the registration of the second ratification communicated
to him, the Director-General shall draw the attention of
the Members of the Organisation to the date upon which
the Convention will come into force.
Article 11
The Director-General of the International Labour Office
shall communicate to the Secretary-General of the
United Nations for registration in accordance with Article
102 of the Charter of the United Nations full particulars
of all ratifications and acts of denunciation registered by
him in accordance with the provisions of the preceding
Articles.
Article 12
At such times as it may consider necessary the
Governing Body of the International Labour Office shall
present to the General Conference a report on the
working of this Convention and shall examine the
desirability of placing on the agenda of the Conference
the question of its revision in whole or in part.
Article 13
1. Should the Conference adopt a new Convention
revising this Convention in whole or in part, then, unless
the new Convention otherwise provides:
(a) the ratification by a Member of the new revising
Convention shall ipso jure involve the immediate
denunciation of this Convention, notwithstanding the
provisions of Article 9 above, if and when the new
revising Convention shall have come into force;
(b) as from the date when the new revising Convention
comes into force, this Convention shall cease to be open
to ratification by the Members.
2. This Convention shall in any case remain in force in
its actual form and content for those Members which
have ratified it but have not ratified the revising
Convention.
Article 14
The English and French versions of the text of this
Convention are equally authoritative.
Article 135
ART. 135. Discrimination prohibited. - It shall be
unlawful for any employer to discriminate against
any woman employee with respect to terms and
conditions of employment solely on account of her
sex.
The following are acts of discrimination:
(a) Payment of a lesser compensation, including
wage, salary or other form of remuneration and
fringe benefits, to a female employees as against a
male employee, for work of equal value; and
(b) Favoring a male employee over a female
employee with respect to promotion, training
opportunities, study and scholarship grants solely on
account of their sexes.
Criminal liability for the willful commission of any
unlawful act as provided in this Article or any violation of
the rules and regulations issued pursuant to Section 2
hereof shall be penalized as provided in Articles 288 and
289 of this Code: Provided, That the institution of any
criminal action under this provision shall not bar the
aggrieved employee from filing an entirely separate and
distinct action for money claims, which may include
claims for damages and other affirmative reliefs. The
actions hereby authorized shall proceed independently
of each other. (As amended by Republic Act No. 6725,
May 12, 1989).
3) Stipulation Against Marriage, Art. 136
ART. 136. Stipulation against marriage. - It shall be
unlawful for an employer to require as a condition of
employment or continuation of employment that a
woman employee shall not get married, or to
stipulate expressly or tacitly that upon getting
married, a woman employee shall be deemed
resigned or separated, or to actually dismiss,
discharge, discriminate or otherwise prejudice a
woman employee merely by reason of her marriage.
• Philippine Telegraph and Telephone Co. vs. NLRC
(G.R. No. 1118978, May 23, 1997)
A woman worker may not be dismissed on the
ground of dishonesty for having written “single” on
the space for civil status on the application sheet,
contrary to the fact that she was married.
PT&T Co. v. NLRC, GR No. 118978, May 23, 1997
FACTS:
Grace de Guzman was hired by PT&T as a
Supernumerary Project Worker for a fixed period from
November 21, 1990 until April 20, 1991 as reliever for
C.F. Tenorio who went on maternity leave. Under the
Reliever Agreement signed by Grace, her employment
was to be immediately terminated upon expiration of the
agreed period. From June 10, 1991 to July 1, 1991, and
from July 19, 1991 to August 8, 1991, PT&T again
engaged the services of Grace as reliever for Erlinda F.
Dizon who went on leave during both periods. On
September 2, 1991, Grace was asked to join petitioner
company as a probationary employee. In the job
application form furnished to Grace, she indicated in the
civil status that she was single although she had in fact
contracted marriage on May 26, 1991. This meant she
was not single, as she had represented herself,
when she signed the reliever agreements on June 10,
1991 and July 8, 1991. Petitioner dismissed Grace from
the company after learning about Grace’s real civil status
and being unconvinced of Grace’s explanation for the
discrepancy. Grace immediately filed a complaint for
illegal dismissal coupled with a claim for non-payment of
cost of living allowances (COLA), before the Regional
Arbitration Branch of the National Labor Relations
Commission (NLRC) in Baguio City. At the preliminary
conference, Grace volunteered the information that she
had failed to remit the amount of P2,380.75 of her
collections, and executed a promissory note for that
amount in favor of petitioner. The Labor Arbiter handed
down a decision declaring that private respondent, who
had already gained the status of a regular employee,
was illegally dismissed by petitioner and ordered her
reinstatement plus payment of the corresponding back
wages and COLA. On appeal, the NLRC upheld the
Labor Arbiter but modified the Labor Arbiter’s decision
with the qualification that Grace de Guzman deserved to
be suspended for three months due to the dishonest
nature of her acts which should not be condoned.
ISSUE:
Can the alleged concealment of civil status be a ground
for terminating the services of an employee?
HELD:
No. The Constitution provides a gamut of protective
provisions due to the disparity in rights between men
and women in almost all phases of social and political
life. Article II Section 14 of the 1987 Constitution states
that “The State recognizes the role of women in nation-
building, and shall ensure the fundamental equality
before the law of women and men.” Corollary to this is
Article XIII Section 3 which states that “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” and Article XIII Section 14 which states that “The
State shall protect working women by providing safe and
healthful working conditions, taking into account their
maternal functions, and such facilities and opportunities
that will enhance their welfare and enable them to
realize their full potential in the service of the nation.”
Since the Labor Code was enacted on May 1, 1974,
corrective labor and social laws on gender inequality
have emerged with more frequency in the years. Two of
these are Republic Act No. 6727 which explicitly
prohibits discrimination against women with respect to
terms and conditions of employment, promotion, and
training opportunities; and Republic Act No. 7192 or the
Women in Development and Nation Building Act which,
among others, affords women equal opportunities with
men to act and to enter into contracts. In the Labor
Code, Article 136 explicitly prohibits discrimination
merely by reason of the marriage of a female
employee. The private respondent’s act of concealing
the true nature of her status from PT&T could not be
properly characterized as willful or in bad faith as she
was moved to act the way she did mainly because she
wanted to retain a permanent job in a stable company. In
other words, she was practically forced by that very
same illegal company policy into misrepresenting her
civil status for fear of being disqualified from work.
• Duncan Association of Detailman PTGWO vs.
GlaxoWellcome Philippines (438 SCRA 343)
DUNCAN ASSOCIATION OF DETAILMAN-PTGWO
and PEDRO A. TECSON, petitioners,
vs.
GLAXO WELLCOME PHILIPPINES, INC., Respondent.
FACTS: Petitioner Pedro A. Tecson (Tecson) was hired
by respondent Glaxo Wellcome Philippines, Inc. (Glaxo)
as medical representative on October 24, 1995, after
Tecson had undergone training and orientation.
Thereafter, Tecson signed a contract of employment
which stipulates, among others, that he agrees to study
and abide by existing company rules; to disclose to
management any existing or future relationship by
consanguinity or affinity with co-employees or
employees of competing drug companies and should
management find that such relationship poses a possible
conflict of interest, to resign from the company. Code of
Conduct of Glaxo similarly provides these conditions;
that otherwise, the management and the employee will
explore the possibility of a “transfer to another
department in a non-counterchecking position” or
preparation for employment outside the company after
six months.
Tecson was initially assigned to market Glaxo’s products
in the Camarines Sur-Camarines Norte sales area.
Subsequently, Tecson entered into a romantic
relationship with Bettsy, an employee of Astra
Pharmaceuticals3(Astra), a competitor of Glaxo. Bettsy
was Astra’s Branch Coordinator in Albay. She
supervised the district managers and medical
representatives of her company and prepared marketing
strategies for Astra in that area.
Even before they got married, Tecson received several
reminders from his District Manager regarding the
conflict of interest which his relationship with Bettsy
might engender. Still, love prevailed, and Tecson
married Bettsy in September 1998.
Tecson’s superior reminded him that he and Bettsy
should decide which one of them would resign from their
jobs. Tecson requested for time to comply with the
company policy against entering into a relationship with
an employee of a competitor company. He explained
that Astra, Bettsy’s employer, was planning to merge
with Zeneca, another drug company; and Bettsy was
planning to avail of the redundancy package to be
offered by Astra.
Tecson again requested for more time resolve the
problem. Thereafter, Tecson applied for a transfer in
Glaxo’s milk division, thinking that since Astra did not
have a milk division, the potential conflict of interest
would be eliminated. His application was denied in view
of Glaxo’s “least-movement-possible” policy.
Glaxo transferred Tecson to the Butuan City-Surigao
City-Agusan del Sur sales area. Tecson asked Glaxo to
reconsider its decision, but his request was denied.
Tecson defied the transfer order and continued acting as
medical representative in the Camarines Sur-Camarines
Norte sales area.
DEVELOPMENT OF THE CASE: Because the parties
failed to resolve the issue at the grievance machinery
level, they submitted the matter for voluntary arbitration,
but Tecson declined the offer. On November 15, 2000,
the National Conciliation and Mediation Board (NCMB)
rendered its Decision declaring as valid Glaxo’s policy
on relationships between its employees and persons
employed with competitor companies, and affirming
Glaxo’s right to transfer Tecson to another sales
territory.
CA sustained; MR denied.
Petitioner’s Contention: that Glaxo’s policy against
employees marrying employees of competitor
companies violates the equal protection clause of the
Constitution because it creates invalid distinctions
among employees on account only of marriage. They
claim that the policy restricts the employees’ right to
marry; that Tecson was constructively dismissed
GLAXO argues: that the company policy prohibiting its
employees from having a relationship with and/or
marrying an employee of a competitor company is a
valid exercise of its management prerogatives and does
not violate the equal protection clause;
The policy is also aimed at preventing a competitor
company from gaining access to its secrets, procedures
and policies; that Tecson can no longer question the
assailed company policy because when he signed his
contract of employment, he was aware that such policy
was stipulated therein.
ISSUE: WON Glaxo’s policy against its employees
marrying employees from competitor companies is valid
HELD: The Court finds no merit in the petition.
Glaxo has a right to guard its trade secrets,
manufacturing formulas, marketing strategies and other
confidential programs and information from competitors,
especially so that it and Astra are rival companies in the
highly competitive pharmaceutical industry.
The prohibition against personal or marital relationships
with employees of competitor companies upon Glaxo’s
employees is reasonable under the circumstances
because relationships of that nature might compromise
the interests of the company. In laying down the assailed
company policy, Glaxo only aims to protect its interests
against the possibility that a competitor company will
gain access to its secrets and procedures.
That Glaxo possesses the right to protect its economic
interests cannot be denied. No less than the Constitution
recognizes the right of enterprises to adopt and enforce
such a policy to protect its right to reasonable returns on
investments and to expansion and growth.
Indeed, while our laws endeavor to give life to the
constitutional policy on social justice and the protection
of labor, it does not mean that every labor dispute will be
decided in favor of the workers. The law also recognizes
that management has rights which are also entitled to
respect and enforcement in the interest of fair play.21
EQUAL-PROTECTION: Glaxo does not impose an
absolute prohibition against relationships between its
employees and those of competitor companies. Its
employees are free to cultivate relationships with and
marry persons of their own choosing. What the company
merely seeks to avoid is a conflict of interest between
the employee and the company that may arise out of
such relationships.
Moreover, records show that Glaxo gave Tecson several
chances to eliminate the conflict of interest brought
about by his relationship with Bettsy.
PETITION DENIED.
______________
Other Issue on Constructive dismissal:
The Court finds no merit in petitioners’ contention that
Tescon was constructively dismissed when he was
transferred from the Camarines Norte-Camarines Sur
sales area to the Butuan City-Surigao City-Agusan del
Sur sales area, and when he was excluded from
attending the company’s seminar on new products which
were directly competing with similar products
manufactured by Astra. Constructive dismissal is defined
as a quitting, an involuntary resignation resorted to when
continued employment becomes impossible,
unreasonable, or unlikely; when there is a demotion in
rank or diminution in pay; or when a clear discrimination,
insensibility or disdain by an employer becomes
unbearable to the employee.30 None of these conditions
are present in the instant case.
4) Discharge on Account of Pregnancy Article 137
ART. 137. Prohibited acts. –
(a) It shall be unlawful for any employer:
(1) To deny any woman employee the benefits
provided for in this Chapter or to discharge any
woman employed by him for the purpose of
preventing her from enjoying any of the benefits
provided under this Code.
(2) To discharge such woman on account of her
pregnancy, or while on leave or in confinement due
to her pregnancy;
(3) To discharge or refuse the admission of such
woman upon returning to her work for fear that she
may again be pregnant.
D. Facilities and Safe Working Conditions Art. 132;
RA 9710, Sec. 22(b); Impl. Rules of RA 9710, Sec. 23
A2&3
Article 132. Facilities for women. The Secretary of Labor
and Employment shall establish standards that will
ensure the safety and health of women employees.
In appropriate cases, he shall, by regulations, require
any employer to:
Provide seats proper for women and permit them to use
such seats when they are free from work and during
working hours, provided they can perform their duties in
this position without detriment to efficiency;
To establish separate toilet rooms and lavatories for men
and women and provide at least a dressing room for
women;
To establish a nursery in a workplace for the benefit of
the women employees therein; and
To determine appropriate minimum age and other
standards for retirement or termination in special
occupations such as those of flight attendants and the
like.
RA 9710, Sec. 22(b);
Section 22. Right to Decent Work. - The State shall
progressively realize and ensure decent work standards
for women that involve the creation of jobs of acceptable
quality in conditions of freedom, equity, security, and
human dignity.
(b) The State shall further ensure:
(1) Support services and gears to protect them from
occupational and health hazards taking into account
women's maternal functions;
(2) Support services that will enable women to balance
their family obligations and work responsibilities
including, but not limited to, the establishment of day
care centers and breast-feeding stations at the
workplace, and providing maternity leave pursuant to the
Labor Code and other pertinent laws;
(3) Membership in unions regardless of status of
employment and place of employment; and
(4) Respect for the observance of indigenous peoples'
cultural practices even in the workplace.
Impl. Rules of RA 9710, Sec. 23 A2&3
SECTION 23. Food Security and Productive Resources
– The State recognizes the contribution of women to
food production and shall ensure its sustainability and
sufficiency, including in the context of climate change,
with the active participation of women.
Towards this end, the State shall guarantee, at all times,
the availability in the market of safe and health-giving
food to satisfy the dietary needs of the population, giving
particular attention to the specific needs of poor girl-
children and marginalized women, especially pregnant
and lactating mothers and their young children.
The Department of Agriculture (DA), in coordination with
other concerned departments, LGUs, and stakeholders
shall:
(a) undertake programs and projects on food security
that are gender- responsive;
(b) recognize women as farmers and fisherfolk and give
them equal opportunities to participate in programs and
projects;
(c) ensure the active and direct participation of rural
women’s groups, other than Rural Improvement Clubs,
in policy and program formulation, planning and
designing, implementation, monitoring and evaluation of
DA programs at the local levels including, but not limited
to, the rice master plan;
(d) ensure that girl-children and women benefit from all
DA programs;
(e) ensure food safety by strengthening food
management, control and regulatory systems, including
provision of necessary facilities; and
(f) promote community-based seed banking
initiated and operated by women and barangay level
sustainable resource management.
LGUs shall formulate and implement a community-based
food security plan that shall respect religious and cultural
practices. The plan shall be integrated into the
development plans of the LGUs to ensure that it is
funded and implemented. Women’s groups shall actively
participate in planning and designing, implementing,
monitoring and evaluating the plan.
A. Right to Food
2. The DTI and Food and Drug Administration (FDA), in
coordination with other concerned agencies, shall
provide timely and accurate information on food safety
such as, but not limited to, labeling and traceability
3. The DOST, Department of Energy (DOE), DA and
other concerned agencies shall encourage the use of
alternative or renewable energy in food production.
E. Family Planning Services Art. 134; Rule XII, Sec.
11; RA 9710, Secs. 17, 22(b); Impl. Rule of RA 9710,
Secs. 18 A9(b), 20 A3, 25 A3
Article 134. Family planning services; incentives for
family planning. Establishments which are required by
law to maintain a clinic or infirmary shall provide free
family planning services to their employees which shall
include, but not be limited to, the application or use of
contraceptive pills and intrauterine devices.
In coordination with other agencies of the government
engaged in the promotion of family planning, the
Department of Labor and Employment shall develop and
prescribe incentive bonus schemes to encourage family
planning among female workers in any establishment or
enterprise.
F. Special Women Workers, Art. 138
Article 138. Classification of certain women workers. Any
woman who is permitted or suffered to work, with or
without compensation, in any night club, cocktail lounge,
massage clinic, bar or similar establishments under the
effective control or supervision of the employer for a
substantial period of time as determined by the
Secretary of Labor and Employment, shall be considered
as an employee of such establishment for purposes of
labor and social legislation.
G. Leaves and Other Benefits
1. Maternity Leave, Social Security Law of 1997 (RA
1161, as amended by RA 8282), Sec. 14-A, RA
828
Article 133. Maternity leave benefits.
Every employer shall grant to any pregnant woman
employee who has rendered an aggregate service of at
least six (6) months for the last twelve (12) months,
maternity leave of at least two (2) weeks prior to the
expected date of delivery and another four (4) weeks
after normal delivery or abortion with full pay based on
her regular or average weekly wages. The employer
may require from any woman employee applying for
maternity leave the production of a medical certificate
stating that delivery will probably take place within two
weeks.
The maternity leave shall be extended without pay on
account of illness medically certified to arise out of the
pregnancy, delivery, abortion or miscarriage, which
renders the woman unfit for work, unless she has earned
unused leave credits from which such extended leave
may be charged.
The maternity leave provided in this Article shall be paid
by the employer only for the first four (4) deliveries by a
woman employee after the effectivity of this Code.
"SEC. 14-A. Maternity Leave Benefit. - A female
member who has paid at least three (3) monthly
contributions in the twelve-month period
immediately preceding the semester of her childbirth
or miscarriage shall be paid a daily maternity benefit
equivalent to one hundred percent (100%) of her
average daily salary credit for sixty (60) days or
seventy-eight (78) days in case of caesarian delivery,
subject to the following conditions:
"(a) That the employee shall have notified her
employer of her pregnancy and the probable date of
her childbirth, which notice shall be transmitted to
the SSS in accordance with the rules and regulations
it may provide;
"(b) The full payment shall be advanced by the
employer within thirty (30) days from the filing of the
maternity leave application;
"(c) That payment of daily maternity benefits shall be
a bar to the recovery of sickness benefits provided
by this Act for the same period for which daily
maternity benefits have been received;
"(d) That the maternity benefits provided under this
section shall be paid only for the first four (4)
deliveries or miscarriages;
"(e) That the SSS shall immediately reimburse the
employer of one hundred percent (100%) of the
amount of maternity benefits advanced to the
employee by the employer upon receipt of
satisfactory proof of such payment and legality
thereof; and
"(f) That if an employee member should give birth or
suffer miscarriage without the required contributions
having been remitted for her by her employer to the
SSS, or without the latter having been previously
notified by the employer of the time of the
pregnancy, the employer shall pay to the SSS
damages equivalent to the benefits which said
employee member would otherwise have been
entitled to.
2. Victim Leave RA 9262
Republic Act No. 9262 March 08, 2004
AN ACT DEFINING VIOLENCE AGAINST WOMEN
AND THEIR CHILDREN, PROVIDING FOR
PROTECTIVE MEASURES FOR VICTIMS,
PRESCRIBING PENALTIES THEREFORE, AND FOR
OTHER PURPOSES
Be it enacted by the Senate and House of
Representatives of the Philippines in Congress
assembled:
SECTION 1. Short Title.- This Act shall be known as the
"Anti-Violence Against Women and Their Children Act of
2004".
SECTION 2. Declaration of Policy.- It is hereby declared
that the State values the dignity of women and children
and guarantees full respect for human rights. The State
also recognizes the need to protect the family and its
members particularly women and children, from violence
and threats to their personal safety and security.
Towards this end, the State shall exert efforts to address
violence committed against women and children in
keeping with the fundamental freedoms guaranteed
under the Constitution and the Provisions of the
Universal Declaration of Human Rights, the convention
on the Elimination of all forms of discrimination Against
Women, Convention on the Rights of the Child and other
international human rights instruments of which the
Philippines is a party.
SECTION 3. Definition of Terms.- As used in this Act,
(a) "Violence against women and their children" refers to
any act or a series of acts committed by any person
against a woman who is his wife, former wife, or against
a woman with whom the person has or had a sexual or
dating relationship, or with whom he has a common
child, or against her child whether legitimate or
illegitimate, within or without the family abode, which
result in or is likely to result in physical, sexual,
psychological harm or suffering, or economic abuse
including threats of such acts, battery, assault, coercion,
harassment or arbitrary deprivation of liberty. It includes,
but is not limited to, the following acts:
A. "Physical Violence" refers to acts that include bodily
or physical harm;
B. "Sexual violence" refers to an act which is sexual in
nature, committed against a woman or her child. It
includes, but is not limited to:
a) rape, sexual harassment, acts of lasciviousness,
treating a woman or her child as a sex object, making
demeaning and sexually suggestive remarks, physically
attacking the sexual parts of the victim's body, forcing
her/him to watch obscene publications and indecent
shows or forcing the woman or her child to do indecent
acts and/or make films thereof, forcing the wife and
mistress/lover to live in the conjugal home or sleep
together in the same room with the abuser;
b) acts causing or attempting to cause the victim to
engage in any sexual activity by force, threat of force,
physical or other harm or threat of physical or other harm
or coercion;
c) Prostituting the woman or child.
C. "Psychological violence" refers to acts or omissions
causing or likely to cause mental or emotional suffering
of the victim such as but not limited to intimidation,
harassment, stalking, damage to property, public ridicule
or humiliation, repeated verbal abuse and mental
infidelity. It includes causing or allowing the victim to
witness the physical, sexual or psychological abuse of a
member of the family to which the victim belongs, or to
witness pornography in any form or to witness abusive
injury to pets or to unlawful or unwanted deprivation of
the right to custody and/or visitation of common children.
D. "Economic abuse" refers to acts that make or attempt
to make a woman financially dependent which includes,
but is not limited to the following:
1. withdrawal of financial support or preventing the victim
from engaging in any legitimate profession, occupation,
business or activity, except in cases wherein the other
spouse/partner objects on valid, serious and moral
grounds as defined in Article 73 of the Family Code;
2. deprivation or threat of deprivation of financial
resources and the right to the use and enjoyment of the
conjugal, community or property owned in common;
3. destroying household property;
4. controlling the victims' own money or properties or
solely controlling the conjugal money or properties.
(b) "Battery" refers to an act of inflicting physical harm
upon the woman or her child resulting to the physical
and psychological or emotional distress.
(c) "Battered Woman Syndrome" refers to a scientifically
defined pattern of psychological and behavioral
symptoms found in women living in battering
relationships as a result of cumulative abuse.
(d) "Stalking" refers to an intentional act committed by a
person who, knowingly and without lawful justification
follows the woman or her child or places the woman or
her child under surveillance directly or indirectly or a
combination thereof.
(e) "Dating relationship" refers to a situation wherein the
parties live as husband and wife without the benefit of
marriage or are romantically involved over time and on a
continuing basis during the course of the relationship. A
casual acquaintance or ordinary socialization between
two individuals in a business or social context is not a
dating relationship.
(f) "Sexual relations" refers to a single sexual act which
may or may not result in the bearing of a common child.
(g) "Safe place or shelter" refers to any home or
institution maintained or managed by the Department of
Social Welfare and Development (DSWD) or by any
other agency or voluntary organization accredited by the
DSWD for the purposes of this Act or any other suitable
place the resident of which is willing temporarily to
receive the victim.
(h) "Children" refers to those below eighteen (18) years
of age or older but are incapable of taking care of
themselves as defined under Republic Act No. 7610. As
used in this Act, it includes the biological children of the
victim and other children under her care.
SECTION 4. Construction.- This Act shall be liberally
construed to promote the protection and safety of victims
of violence against women and their children.
SECTION 5. Acts of Violence Against Women and Their
Children.- The crime of violence against women and
their children is committed through any of the following
acts:
(a) Causing physical harm to the woman or her child;
(b) Threatening to cause the woman or her child physical
harm;
(c) Attempting to cause the woman or her child physical
harm;
(d) Placing the woman or her child in fear of imminent
physical harm;
(e) Attempting to compel or compelling the woman or her
child to engage in conduct which the woman or her child
has the right to desist from or desist from conduct which
the woman or her child has the right to engage in, or
attempting to restrict or restricting the woman's or her
child's freedom of movement or conduct by force or
threat of force, physical or other harm or threat of
physical or other harm, or intimidation directed against
the woman or child. This shall include, but not limited to,
the following acts committed with the purpose or effect of
controlling or restricting the woman's or her child's
movement or conduct:
(1) Threatening to deprive or actually depriving the
woman or her child of custody to her/his family;
(2) Depriving or threatening to deprive the woman or her
children of financial support legally due her or her family,
or deliberately providing the woman's children
insufficient financial support;
(3) Depriving or threatening to deprive the woman or her
child of a legal right;
(4) Preventing the woman in engaging in any legitimate
profession, occupation, business or activity or controlling
the victim's own mon4ey or properties, or solely
controlling the conjugal or common money, or
properties;
(f) Inflicting or threatening to inflict physical harm on
oneself for the purpose of controlling her actions or
decisions;
(g) Causing or attempting to cause the woman or her
child to engage in any sexual activity which does not
constitute rape, by force or threat of force, physical
harm, or through intimidation directed against the
woman or her child or her/his immediate family;
(h) Engaging in purposeful, knowing, or reckless
conduct, personally or through another, that alarms or
causes substantial emotional or psychological distress to
the woman or her child. This shall include, but not be
limited to, the following acts:
(1) Stalking or following the woman or her child in public
or private places;
(2) Peering in the window or lingering outside the
residence of the woman or her child;
(3) Entering or remaining in the dwelling or on the
property of the woman or her child against her/his will;
(4) Destroying the property and personal belongings or
inflicting harm to animals or pets of the woman or her
child; and
(5) Engaging in any form of harassment or violence;
(i) Causing mental or emotional anguish, public ridicule
or humiliation to the woman or her child, including, but
not limited to, repeated verbal and emotional abuse, and
denial of financial support or custody of minor children of
access to the woman's child/children.
SECTION 6. Penalties.- The crime of violence against
women and their children, under Section 5 hereof shall
be punished according to the following rules:
(a) Acts falling under Section 5(a) constituting attempted,
frustrated or consummated parricide or murder or
homicide shall be punished in accordance with the
provisions of the Revised Penal Code.
If these acts resulted in mutilation, it shall be punishable
in accordance with the Revised Penal Code; those
constituting serious physical injuries shall have the
penalty of prison mayor; those constituting less serious
physical injuries shall be punished by prision
correccional; and those constituting slight physical
injuries shall be punished by arresto mayor.
Acts falling under Section 5(b) shall be punished by
imprisonment of two degrees lower than the prescribed
penalty for the consummated crime as specified in the
preceding paragraph but shall in no case be lower than
arresto mayor.
(b) Acts falling under Section 5(c) and 5(d) shall be
punished by arresto mayor;
(c) Acts falling under Section 5(e) shall be punished by
prision correccional;
(d) Acts falling under Section 5(f) shall be punished by
arresto mayor;
(e) Acts falling under Section 5(g) shall be punished by
prision mayor;
(f) Acts falling under Section 5(h) and Section 5(i) shall
be punished by prision mayor.
If the acts are committed while the woman or child is
pregnant or committed in the presence of her child, the
penalty to be applied shall be the maximum period of
penalty prescribed in the section.
In addition to imprisonment, the perpetrator shall (a) pay
a fine in the amount of not less than One hundred
thousand pesos (P100,000.00) but not more than three
hundred thousand pesos (300,000.00); (b) undergo
mandatory psychological counseling or psychiatric
treatment and shall report compliance to the court.
SECTION 7. Venue.- The Regional Trial Court
designated as a Family Court shall have original and
exclusive jurisdiction over cases of violence against
women and their children under this law. In the absence
of such court in the place where the offense was
committed, the case shall be filed in the Regional Trial
Court where the crime or any of its elements was
committed at the option of the compliant.
SECTION 8. Protection Orders.- A protection order is an
order issued under this act for the purpose of preventing
further acts of violence against a woman or her child
specified in Section 5 of this Act and granting other
necessary relief. The relief granted under a protection
order serve the purpose of safeguarding the victim from
further harm, minimizing any disruption in the victim's
daily life, and facilitating the opportunity and ability of the
victim to independently regain control over her life. The
provisions of the protection order shall be enforced by
law enforcement agencies. The protection orders that
may be issued under this Act are the barangay
protection order (BPO), temporary protection order
(TPO) and permanent protection order (PPO). The
protection orders that may be issued under this Act shall
include any, some or all of the following reliefs:
(a) Prohibition of the respondent from threatening to
commit or committing, personally or through another,
any of the acts mentioned in Section 5 of this Act;
(b) Prohibition of the respondent from harassing,
annoying, telephoning, contacting or otherwise
communicating with the petitioner, directly or indirectly;
(c) Removal and exclusion of the respondent from the
residence of the petitioner, regardless of ownership of
the residence, either temporarily for the purpose of
protecting the petitioner, or permanently where no
property rights are violated, and if respondent must
remove personal effects from the residence, the court
shall direct a law enforcement agent to accompany the
respondent has gathered his things and escort
respondent from the residence;
(d) Directing the respondent to stay away from petitioner
and designated family or household member at a
distance specified by the court, and to stay away from
the residence, school, place of employment, or any
specified place frequented by the petitioner and any
designated family or household member;
(e) Directing lawful possession and use by petitioner of
an automobile and other essential personal effects,
regardless of ownership, and directing the appropriate
law enforcement officer to accompany the petitioner to
the residence of the parties to ensure that the petitioner
is safely restored to the possession of the automobile
and other essential personal effects, or to supervise the
petitioner's or respondent's removal of personal
belongings;
(f) Granting a temporary or permanent custody of a
child/children to the petitioner;
(g) Directing the respondent to provide support to the
woman and/or her child if entitled to legal support.
Notwithstanding other laws to the contrary, the court
shall order an appropriate percentage of the income or
salary of the respondent to be withheld regularly by the
respondent's employer for the same to be automatically
remitted directly to the woman. Failure to remit and/or
withhold or any delay in the remittance of support to the
woman and/or her child without justifiable cause shall
render the respondent or his employer liable for indirect
contempt of court;
(h) Prohibition of the respondent from any use or
possession of any firearm or deadly weapon and order
him to surrender the same to the court for appropriate
disposition by the court, including revocation of license
and disqualification to apply for any license to use or
possess a firearm. If the offender is a law enforcement
agent, the court shall order the offender to surrender his
firearm and shall direct the appropriate authority to
investigate on the offender and take appropriate action
on matter;
(i) Restitution for actual damages caused by the violence
inflicted, including, but not limited to, property damage,
medical expenses, childcare expenses and loss of
income;
(j) Directing the DSWD or any appropriate agency to
provide petitioner may need; and
(k) Provision of such other forms of relief as the court
deems necessary to protect and provide for the safety of
the petitioner and any designated family or household
member, provided petitioner and any designated family
or household member consents to such relief.
Any of the reliefs provided under this section shall be
granted even in the absence of a decree of legal
separation or annulment or declaration of absolute nullity
of marriage.
The issuance of a BPO or the pendency of an
application for BPO shall not preclude a petitioner from
applying for, or the court from granting a TPO or PPO.
SECTION 9. Who may file Petition for Protection Orders.
– A petition for protection order may be filed by any of
the following:
(a) the offended party;
(b) parents or guardians of the offended party;
(c) ascendants, descendants or collateral relatives within
the fourth civil degree of consanguinity or affinity;
(d) officers or social workers of the DSWD or social
workers of local government units (LGUs);
(e) police officers, preferably those in charge of women
and children's desks;
(f) Punong Barangay or Barangay Kagawad;
(g) lawyer, counselor, therapist or healthcare provider of
the petitioner;
(h) At least two (2) concerned responsible citizens of the
city or municipality where the violence against women
and their children occurred and who has personal
knowledge of the offense committed.
SECTION 10. Where to Apply for a Protection Order. –
Applications for BPOs shall follow the rules on venue
under Section 409 of the Local Government Code of
1991 and its implementing rules and regulations. An
application for a TPO or PPO may be filed in the regional
trial court, metropolitan trial court, municipal trial court,
municipal circuit trial court with territorial jurisdiction over
the place of residence of the petitioner: Provided,
however, That if a family court exists in the place of
residence of the petitioner, the application shall be filed
with that court.
SECTION 11. How to Apply for a Protection Order. –
The application for a protection order must be in writing,
signed and verified under oath by the applicant. It may
be filed as an independent action or as incidental relief in
any civil or criminal case the subject matter or issues
thereof partakes of a violence as described in this Act. A
standard protection order application form, written in
English with translation to the major local languages,
shall be made available to facilitate applications for
protections order, and shall contain, among other, the
following information:
(a) names and addresses of petitioner and respondent;
(b) description of relationships between petitioner and
respondent;
(c) a statement of the circumstances of the abuse;
(d) description of the reliefs requested by petitioner as
specified in Section 8 herein;
(e) request for counsel and reasons for such;
(f) request for waiver of application fees until hearing;
and
(g) an attestation that there is no pending application for
a protection order in another court.
If the applicants is not the victim, the application must be
accompanied by an affidavit of the applicant attesting to
(a) the circumstances of the abuse suffered by the victim
and (b) the circumstances of consent given by the victim
for the filling of the application. When disclosure of the
address of the victim will pose danger to her life, it shall
be so stated in the application. In such a case, the
applicant shall attest that the victim is residing in the
municipality or city over which court has territorial
jurisdiction, and shall provide a mailing address for
purpose of service processing.
An application for protection order filed with a court shall
be considered an application for both a TPO and PPO.
Barangay officials and court personnel shall assist
applicants in the preparation of the application. Law
enforcement agents shall also extend assistance in the
application for protection orders in cases brought to their
attention.
SECTION 12. Enforceability of Protection Orders. – All
TPOs and PPOs issued under this Act shall be
enforceable anywhere in the Philippines and a violation
thereof shall be punishable with a fine ranging from Five
Thousand Pesos (P5,000.00) to Fifty Thousand Pesos
(P50,000.00) and/or imprisonment of six (6) months.
SECTION 13. Legal Representation of Petitioners for
Protection Order. – If the woman or her child requests in
the applications for a protection order for the
appointment of counsel because of lack of economic
means to hire a counsel de parte, the court shall
immediately direct the Public Attorney's Office (PAO) to
represent the petitioner in the hearing on the application.
If the PAO determines that the applicant can afford to
hire the services of a counsel de parte, it shall facilitate
the legal representation of the petitioner by a counsel de
parte. The lack of access to family or conjugal resources
by the applicant, such as when the same are controlled
by the perpetrator, shall qualify the petitioner to legal
representation by the PAO.
However, a private counsel offering free legal service is
not barred from representing the petitioner.
SECTION 14. Barangay Protection Orders (BPOs); Who
May Issue and How. - Barangay Protection Orders
(BPOs) refer to the protection order issued by the
Punong Barangay ordering the perpetrator to desist from
committing acts under Section 5 (a) and (b) of this Act. A
Punong Barangay who receives applications for a BPO
shall issue the protection order to the applicant on the
date of filing after ex parte determination of the basis of
the application. If the Punong Barangay is unavailable to
act on the application for a BPO, the application shall be
acted upon by any available Barangay Kagawad. If the
BPO is issued by a Barangay Kagawad the order must
be accompanied by an attestation by the Barangay
Kagawad that the Punong Barangay was unavailable at
the time for the issuance of the BPO. BPOs shall be
effective for fifteen (15) days. Immediately after the
issuance of an ex parte BPO, the Punong Barangay or
Barangay Kagawad shall personally serve a copy of the
same on the respondent, or direct any barangay official
to effect is personal service.
The parties may be accompanied by a non-lawyer
advocate in any proceeding before the Punong
Barangay.
SECTION 15. Temporary Protection Orders. –
Temporary Protection Orders (TPOs) refers to the
protection order issued by the court on the date of filing
of the application after ex parte determination that such
order should be issued. A court may grant in a TPO any,
some or all of the reliefs mentioned in this Act and shall
be effective for thirty (30) days. The court shall schedule
a hearing on the issuance of a PPO prior to or on the
date of the expiration of the TPO. The court shall order
the immediate personal service of the TPO on the
respondent by the court sheriff who may obtain the
assistance of law enforcement agents for the service.
The TPO shall include notice of the date of the hearing
on the merits of the issuance of a PPO.
SECTION 16. Permanent Protection Orders. –
Permanent Protection Order (PPO) refers to protection
order issued by the court after notice and hearing
Respondents non-appearance despite proper notice, or
his lack of a lawyer, or the non-availability of his lawyer
shall not be a ground for rescheduling or postponing the
hearing on the merits of the issuance of a PPO. If the
respondents appears without counsel on the date of the
hearing on the PPO, the court shall appoint a lawyer for
the respondent and immediately proceed with the
hearing. In case the respondent fails to appear despite
proper notice, the court shall allow ex parte presentation
of the evidence by the applicant and render judgment on
the basis of the evidence presented. The court shall
allow the introduction of any history of abusive conduct
of a respondent even if the same was not directed
against the applicant or the person for whom the
applicant is made.
The court shall, to the extent possible, conduct the
hearing on the merits of the issuance of a PPO in one
(1) day. Where the court is unable to conduct the
hearing within one (1) day and the TPO issued is due to
expire, the court shall continuously extend or renew the
TPO for a period of thirty (30) days at each particular
time until final judgment is issued. The extended or
renewed TPO may be modified by the court as may be
necessary or applicable to address the needs of the
applicant.
The court may grant any, some or all of the reliefs
specified in Section 8 hereof in a PPO. A PPO shall be
effective until revoked by a court upon application of the
person in whose favor the order was issued. The court
shall ensure immediate personal service of the PPO on
respondent.
The court shall not deny the issuance of protection order
on the basis of the lapse of time between the act of
violence and the filing of the application.
Regardless of the conviction or acquittal of the
respondent, the Court must determine whether or not the
PPO shall become final. Even in a dismissal, a PPO
shall be granted as long as there is no clear showing
that the act from which the order might arise did not
exist.
SECTION 17. Notice of Sanction in Protection Orders. –
The following statement must be printed in bold-faced
type or in capital letters on the protection order issued by
the Punong Barangay or court:
"VIOLATION OF THIS ORDER IS PUNISHABLE BY
LAW."
SECTION 18. Mandatory Period For Acting on
Applications For Protection Orders – Failure to act on an
application for a protection order within the reglementary
period specified in the previous section without justifiable
cause shall render the official or judge administratively
liable.
SECTION 19. Legal Separation Cases. – In cases of
legal separation, where violence as specified in this Act
is alleged, Article 58 of the Family Code shall not apply.
The court shall proceed on the main case and other
incidents of the case as soon as possible. The hearing
on any application for a protection order filed by the
petitioner must be conducted within the mandatory
period specified in this Act.
SECTION 20. Priority of Application for a Protection
Order. – Ex parte and adversarial hearings to determine
the basis of applications for a protection order under this
Act shall have priority over all other proceedings.
Barangay officials and the courts shall schedule and
conduct hearings on applications for a protection order
under this Act above all other business and, if
necessary, suspend other proceedings in order to hear
applications for a protection order.
SECTION 21. Violation of Protection Orders. – A
complaint for a violation of a BPO issued under this Act
must be filed directly with any municipal trial court,
metropolitan trial court, or municipal circuit trial court that
has territorial jurisdiction over the barangay that issued
the BPO. Violation of a BPO shall be punishable by
imprisonment of thirty (30) days without prejudice to any
other criminal or civil action that the offended party may
file for any of the acts committed.
A judgement of violation of a BPO ma be appealed
according to the Rules of Court. During trial and upon
judgment, the trial court may motu proprio issue a
protection order as it deems necessary without need of
an application.
Violation of any provision of a TPO or PPO issued under
this Act shall constitute contempt of court punishable
under Rule 71 of the Rules of Court, without prejudice to
any other criminal or civil action that the offended party
may file for any of the acts committed.
SECTION 22. Applicability of Protection Orders to
Criminal Cases. – The foregoing provisions on protection
orders shall be applicable in impliedly instituted with the
criminal actions involving violence against women and
their children.
SECTION 23. Bond to Keep the Peace. – The Court
may order any person against whom a protection order
is issued to give a bond to keep the peace, to present
two sufficient sureties who shall undertake that such
person will not commit the violence sought to be
prevented.
Should the respondent fail to give the bond as required,
he shall be detained for a period which shall in no case
exceed six (6) months, if he shall have been prosecuted
for acts punishable under Section 5(a) to 5(f) and not
exceeding thirty (30) days, if for acts punishable under
Section 5(g) to 5(I).
The protection orders referred to in this section are the
TPOs and the PPOs issued only by the courts.
SECTION 24. Prescriptive Period. – Acts falling under
Sections 5(a) to 5(f) shall prescribe in twenty (20) years.
Acts falling under Sections 5(g) to 5(I) shall prescribe in
ten (10) years.
SECTION 25. Public Crime. – Violence against women
and their children shall be considered a public offense
which may be prosecuted upon the filing of a complaint
by any citizen having personal knowledge of the
circumstances involving the commission of the crime.
SECTION 26. Battered Woman Syndrome as a Defense.
– Victim-survivors who are found by the courts to be
suffering from battered woman syndrome do not incur
any criminal and civil liability notwithstanding the
absence of any of the elements for justifying
circumstances of self-defense under the Revised Penal
Code.
In the determination of the state of mind of the woman
who was suffering from battered woman syndrome at the
time of the commission of the crime, the courts shall be
assisted by expert psychiatrists/ psychologists.
SECTION 27. Prohibited Defense. – Being under the
influence of alcohol, any illicit drug, or any other mind-
altering substance shall not be a defense under this Act.
SECTION 28. Custody of children. – The woman victim
of violence shall be entitled to the custody and support of
her child/children. Children below seven (7) years old
older but with mental or physical disabilities shall
automatically be given to the mother, with right to
support, unless the court finds compelling reasons to
order otherwise.
A victim who is suffering from battered woman syndrome
shall not be disqualified from having custody of her
children. In no case shall custody of minor children be
given to the perpetrator of a woman who is suffering
from Battered woman syndrome.
SECTION 29. Duties of Prosecutors/Court Personnel. –
Prosecutors and court personnel should observe the
following duties when dealing with victims under this Act:
a) communicate with the victim in a language
understood by the woman or her child; and
b) inform the victim of her/his rights including legal
remedies available and procedure, and privileges for
indigent litigants.
SECTION 30. Duties of Barangay Officials and Law
Enforcers. – Barangay officials and law enforcers shall
have the following duties:
(a) respond immediately to a call for help or request for
assistance or protection of the victim by entering the
necessary whether or not a protection order has been
issued and ensure the safety of the victim/s;
(b) confiscate any deadly weapon in the possession of
the perpetrator or within plain view;
(c) transport or escort the victim/s to a safe place of their
choice or to a clinic or hospital;
(d) assist the victim in removing personal belongs from
the house;
(e) assist the barangay officials and other government
officers and employees who respond to a call for help;
(f) ensure the enforcement of the Protection Orders
issued by the Punong Barangy or the courts;
(g) arrest the suspected perpetrator wiithout a warrant
when any of the acts of violence defined by this Act is
occurring, or when he/she has personal knowledge that
any act of abuse has just been committed, and there is
imminent danger to the life or limb of the victim as
defined in this Act; and
(h) immediately report the call for assessment or
assistance of the DSWD, social Welfare Department of
LGUs or accredited non-government organizations
(NGOs).
Any barangay official or law enforcer who fails to report
the incident shall be liable for a fine not exceeding Ten
Thousand Pesos (P10,000.00) or whenever applicable
criminal, civil or administrative liability.
SECTION 31. Healthcare Provider Response to Abuse –
Any healthcare provider, including, but not limited to, an
attending physician, nurse, clinician, barangay health
worker, therapist or counselor who suspects abuse or
has been informed by the victim of violence shall:
(a) properly document any of the victim's physical,
emotional or psychological injuries;
(b) properly record any of victim's suspicions,
observations and circumstances of the examination or
visit;
(c) automatically provide the victim free of charge a
medical certificate concerning the examination or visit;
(d) safeguard the records and make them available to
the victim upon request at actual cost; and
(e) provide the victim immediate and adequate notice of
rights and remedies provided under this Act, and
services available to them.
SECTION 32. Duties of Other Government Agencies
and LGUs – Other government agencies and LGUs shall
establish programs such as, but not limited to, education
and information campaign and seminars or symposia on
the nature, causes, incidence and consequences of such
violence particularly towards educating the public on its
social impacts.
It shall be the duty of the concerned government
agencies and LGU's to ensure the sustained education
and training of their officers and personnel on the
prevention of violence against women and their children
under the Act.
SECTION 33. Prohibited Acts. – A Punong Barangay,
Barangay Kagawad or the court hearing an application
for a protection order shall not order, direct, force or in
any way unduly influence he applicant for a protection
order to compromise or abandon any of the reliefs
sought in the application for protection under this Act.
Section 7 of the Family Courts Act of 1997 and Sections
410, 411, 412 and 413 of the Local Government Code of
1991 shall not apply in proceedings where relief is
sought under this Act.
Failure to comply with this Section shall render the
official or judge administratively liable.
SECTION 34. Persons Intervening Exempt from Liability.
– In every case of violence against women and their
children as herein defined, any person, private individual
or police authority or barangay official who, acting in
accordance with law, responds or intervenes without
using violence or restraint greater than necessary to
ensure the safety of the victim, shall not be liable for any
criminal, civil or administrative liability resulting
therefrom.
SECTION 35. Rights of Victims. – In addition to their
rights under existing laws, victims of violence against
women and their children shall have the following rights:
(a) to be treated with respect and dignity;
(b) to avail of legal assistance form the PAO of the
Department of Justice (DOJ) or any public legal
assistance office;
(c) To be entitled to support services form the DSWD
and LGUs'
(d) To be entitled to all legal remedies and support as
provided for under the Family Code; and
(e) To be informed of their rights and the services
available to them including their right to apply for a
protection order.
SECTION 36. Damages. – Any victim of violence under
this Act shall be entitled to actual, compensatory, moral
and exemplary damages.
SECTION 37. Hold Departure Order. – The court shall
expedite the process of issuance of a hold departure
order in cases prosecuted under this Act.
SECTION 38. Exemption from Payment of Docket Fee
and Other Expenses. – If the victim is an indigent or
there is an immediate necessity due to imminent danger
or threat of danger to act on an application for a
protection order, the court shall accept the application
without payment of the filing fee and other fees and of
transcript of stenographic notes.
SECTION 39. Inter-Agency Council on Violence Against
Women and Their Children (IAC-VAWC). In pursuance
of the abovementioned policy, there is hereby
established an Inter-Agency Council on Violence Against
Women and their children, hereinafter known as the
Council, which shall be composed of the following
agencies:
(a) Department of Social Welfare and Development
(DSWD);
(b) National Commission on the Role of Filipino Women
(NCRFW)
(c) Civil Service Commission (CSC);
(d) Commission on Human rights (CHR)
(e) Council for the Welfare of Children (CWC);
(f) Department of Justice (DOJ);
(g) Department of the Interior and Local Government
(DILG);
(h) Philippine National Police (PNP);
(i) Department of Health (DOH);
(j) Department of Education (DepEd);
(k) Department of Labor and Employment (DOLE); and
(l) National Bureau of Investigation (NBI).
These agencies are tasked to formulate programs and
projects to eliminate VAW based on their mandates as
well as develop capability programs for their employees
to become more sensitive to the needs of their clients.
The Council will also serve as the monitoring body as
regards to VAW initiatives.
The Council members may designate their duly
authorized representative who shall have a rank not
lower than an assistant secretary or its equivalent.
These representatives shall attend Council meetings in
their behalf, and shall receive emoluments as may be
determined by the Council in accordance with existing
budget and accounting rules and regulations.
SECTION 40. Mandatory Programs and Services for
Victims. – The DSWD, and LGU's shall provide the
victims temporary shelters, provide counseling, psycho-
social services and /or, recovery, rehabilitation programs
and livelihood assistance.
The DOH shall provide medical assistance to victims.
SECTION 41. Counseling and Treatment of Offenders. –
The DSWD shall provide rehabilitative counseling and
treatment to perpetrators towards learning constructive
ways of coping with anger and emotional outbursts and
reforming their ways. When necessary, the offender
shall be ordered by the Court to submit to psychiatric
treatment or confinement.
SECTION 42. Training of Persons Involved in
Responding to Violence Against Women and their
Children Cases. – All agencies involved in responding to
violence against women and their children cases shall
be required to undergo education and training to
acquaint them with:
a. the nature, extend and causes of violence against
women and their children;
b. the legal rights of, and remedies available to, victims
of violence against women and their children;
c. the services and facilities available to victims or
survivors;
d. the legal duties imposed on police officers to make
arrest and to offer protection and assistance; and
e. techniques for handling incidents of violence against
women and their children that minimize the likelihood of
injury to the officer and promote the safety of the victim
or survivor.
The PNP, in coordination with LGU's shall establish an
education and training program for police officers and
barangay officials to enable them to properly handle
cases of violence against women and their children.
SECTION 43. Entitled to Leave. – Victims under this Act
shall be entitled to take a paid leave of absence up to
ten (10) days in addition to other paid leaves under the
Labor Code and Civil Service Rules and Regulations,
extendible when the necessity arises as specified in the
protection order.
Any employer who shall prejudice the right of the person
under this section shall be penalized in accordance with
the provisions of the Labor Code and Civil Service Rules
and Regulations. Likewise, an employer who shall
prejudice any person for assisting a co-employee who is
a victim under this Act shall likewise be liable for
discrimination.
SECTION 44. Confidentiality. – All records pertaining to
cases of violence against women and their children
including those in the barangay shall be confidential and
all public officers and employees and public or private
clinics to hospitals shall respect the right to privacy of the
victim. Whoever publishes or causes to be published, in
any format, the name, address, telephone number,
school, business address, employer, or other identifying
information of a victim or an immediate family member,
without the latter's consent, shall be liable to the
contempt power of the court.
Any person who violates this provision shall suffer the
penalty of one (1) year imprisonment and a fine of not
more than Five Hundred Thousand pesos
(P500,000.00).
SECTION 45. Funding – The amount necessary to
implement the provisions of this Act shall be included in
the annual General Appropriations Act (GAA).
The Gender and Development (GAD) Budget of the
mandated agencies and LGU's shall be used to
implement services for victim of violence against women
and their children.
SECTION 46. Implementing Rules and Regulations. –
Within six (6) months from the approval of this Act, the
DOJ, the NCRFW, the DSWD, the DILG, the DOH, and
the PNP, and three (3) representatives from NGOs to be
identified by the NCRFW, shall promulgate the
Implementing Rules and Regulations (IRR) of this Act.
SECTION 47. Suppletory Application – For purposes of
this Act, the Revised Penal Code and other applicable
laws, shall have suppletory application.
SECTION 48. Separability Clause. – If any section or
provision of this Act is held unconstitutional or invalid,
the other sections or provisions shall not be affected.
SECTION 49. Repealing Clause – All laws, Presidential
decrees, executive orders and rules and regulations, or
parts thereof, inconsistent with the provisions of this Act
are hereby repealed or modified accordingly.
SECTION 50. Effectivity – This Act shall take effect
fifteen (15) days from the date of its complete publication
in at least two (2) newspapers of general circulation.
3. Special Leave RA 9710 (for gynecological disorder)
RA 9710
Section 18. Special Leave Benefits for Women. - A
woman employee having rendered continuous
aggregate employment service of at least six (6) months
for the last twelve (12) months shall be entitled to a
special leave benefit of two (2) months with full pay
based on her gross monthly compensation following
surgery caused by gynecological disorders.
H. Sexual Harassment (RA 7877)
REPUBLIC ACT NO. 7877
AN ACT DECLARING SEXUAL HARASSMENT
UNLAWFUL IN THE EMPLOYMENT, EDUACATION
OR TRAINING ENVIRONMENT, AND FOR OTHER
PURPOSES
Be it enacted by the Senate and House of
Representatives of the Philippines in Congress
assembled:
Section 1. Title. – This Act shall be known as the
"Anti-Sexual Harassment Act of 1995."
Sec. 2. Declaration of Policy. – The State shall value the
dignity of every individual, enhance the development of it
human resources, guarantee full respect for human
rights, and uphold the dignity of workers, employees,
applicants for employment, students or those undergoing
training, instruction or education. Towards this end, all
forms of sexual harassment in the employment,
education or training environment are hereby declared
unlawful.
Sec. 3. Work, Education or Training-related
Sexual Harassment Defined. – Work, education or
training-related sexual harassment is committed by an
employee, manager, supervisor, agent of the employer,
teacher, instructor, professor, coach, trainor, or any
other person who, having authority, influence or moral
ascendancy over another in a work or training or
education environment, demands, requests or otherwise
requires any sexual favor from the other, regardless of
whether the demand, request or requirement for
submission is accepted by the object of said Act.
(a) In a work-related or employment environment, sexual
harassment is committed when:
(1) The sexual favor is made as a condition in the hiring
or in the employment, re-employment or continued
employment of said individual, or in granting said
individual favorable compensation, terms, conditions,
promotions, or privileges; or the refusal to grant the
sexual favor results in limiting, segregating or classifying
the employee which in a way would discriminate, deprive
or diminish employment opportunities or otherwise
adversely affect said employee;
(2) The above acts would impair the employee’s rights or
privileges under existing labor laws; or
(3) The above acts would result in an intimidating,
hostile, or offensive environment for the employee.
(b) In an education or training environment, sexual
harassment is committed:
(1) Against one who is under the care, custody or
supervision of the offender;
(2) Against one whose education, training,
apprenticeship or tutorship is entrusted to the offender;
(3) When the sexual favor is made a condition to the
giving of a passing grade, or the granting of honors and
scholarships, or the payment of a stipend, allowance or
other benefits, privileges, or considerations; or
(4) When the sexual advances result in an intimidating,
hostile or offensive environment for the student, trainee
or apprentice. Any person who directs or induces
another to commit any act of sexual harassment as
herein defined, or who cooperates in the commission
thereof by another without which it would not have been
committed, shall also be held liable under this Act.
Sec.4. Duty of the Employer or Head of Office in
a Work-related, Education or Training Environment. –
It shall be the duty of the employer or the head of the
work-related, educational or training environment or
institution, to prevent or deter the commission of acts
of sexual harassment and to provide the procedures
for the resolution, settlement or prosecution of acts of
sexual harassment. Towards this end, the employer or
head of office shall:
(a) Promulgate appropriate rules and regulations in
consultation with the jointly approved by the employees
or students or trainees, through their duly designated
representatives, prescribing the procedure for the
investigation or sexual harassment cases and the
administrative sanctions therefor. Administrative
sanctions shall not be a bar to prosecution in the proper
courts for unlawful acts of sexual harassment.
The said rules and regulations issued pursuant to this
section (a) shall include, among others, guidelines on
proper decorum in the workplace and educational or
training institutions.
(c) Create a committee on decorum and
investigation of cases on sexual harassment. The
committee shall conduct meetings, as the case may
be, with other officers and employees, teachers,
instructors, professors, coaches, trainors and
students or trainees to increase understanding and
prevent incidents of sexual harassment. It shall also
conduct the investigation of the alleged cases
constituting sexual harassment. In the case of a work-
related environment, the committee shall be composed
of at least one (1) representative each from the
management, the union, if any, the employees from the
supervisory rank, and from the rank and file employees.
In the case of the educational or training institution, the
committee shall be composed of at least one (1)
representative from the administration, the trainors,
teachers, instructors, professors or coaches and
students or trainees, as the case maybe.
"The employer or head of office, educational or training
institution shall disseminate or post a copy of this Act for
the information of all concerned.
Sec. 5. Liability of the Employer, Head of Office,
Educational or Training Institution. – The employer or
head of office, educational training institution shall be
solidarily liable for damage arising from the acts of
sexual harassment committed in the employment,
education or training environment if the employer or
head of office, educational or training institution is
informed of such acts by the offended party and no
immediate action is taken thereon.
Sec. 6. Independent Action for Damages. –
Nothing in this Act shall preclude the victim of work,
education or training-related sexual harassment from
instituting a separate and independent action for
damages and other affirmative relief.
Sec. 7. Penalties. – Any person who violates the
provisions of this Act shall, upon conviction, be
penalized by imprisonment of not less than one (1)
month nor more than six (6) months, or a fine of not less
than Ten thousand pesos (P10,000) nor more than
Twenty thousand pesos (P20,000), or both such fine and
imprisonment at the discretion of the court. Any action
arising from the violation of the provision of this Act shall
prescribe in three (3) years.
Sec. 8. Separability Clause – If any portion or provision
of this Act is declared void and unconstitutional, the
remaining portions or provisions hereof shall not be
affected by such declaration.
Sec.9. Repealing Clause. – All laws, decrees, orders,
rules and regulations, other issuances, or parts thereof
inconsistent with the provisions of this Act are hereby
repealed or modified accordingly.
Sec.10. Effectivity Clause. – This Act shall take effect
fifteen (15) days after its complete publication in at least
two (2) national newspaper of general circulation.
• Philippine Aeolus Automotive United Corporation vs.
NLRC 311 SCRA 237
FACTS: Private respondent was a company nurse for
the Philippine Aelous United Corporation. A
memorandum was issued by the personnel manager of
petitioner corporation to respondent Cortez asking her to
explain why no action should be taken against her for (1)
throwing a stapler at plant manager William Chua; (2) fro
losing the amount of Php 1,488 entrusted to her; (3) for
asking a co-employee to punch in her time card one
morning when she was not there. She was then placed
on preventive suspension. Another memorandum was
sent to her asking her to explain why she failed to
process the ATM applications of her co-employees. She
submitted a written explanation as to the loss of Php
1,488 and the punching in of her time card. A third
memorandum was sent to her informing her of her
termination from service for gross and habitual neglect of
duties, serious misconduct, and fraud or willful breach of
trust.
ISSUES:
1. W/N petitioner was illegally dismissed.
2. If such dismissal was illegal, W/N petitioner should be
entitled to damages.
HELD:
1. Yes. The grounds by which an employer may validly
terminate the services of an employee must be strictly
construed. As to the first charge, respondent claims that
plant manager William Chua had been making sexual
advances on her since her first year of employment and
that when she would not accede to his requests, he
threatened that he would cause her termination from
service. As to the second charge, the money entrusted
to her was not lost, but given to the personnel-in-charge
for proper transmittal as evidence by a receipt signed by
the latter. As to the third charge, she explains that she
asked someone to punch in her card as she was doing
an errand for one of the company’s officers and with the
permission of William Chua. As to the fourth charge, she
asserts that she had no knowledge thereof. To
constitute serious misconduct to justify dismissal, the
acts must be done in relation to the performance of her
duties as would show her to be unfit to continue working
for her employer. The acts of did not pertain to her
duties as a nurse nor did they constitute serious
misconduct. However due to the strained relations, in
lieu of reinstatement, she is to be awarded separation
pay of one month for every year of service until finality of
this judgment.
2. Yes. Private respondent admittedly allowed four years
to pass before coming out with her employer’s sexual
impositions; but the time to do such varies depending
upon the needs, circumstances and emotional threshold
of the employee. It is clear that respondent has suffered
anxiety, sleepless nights, besmirched reputation and
social humiliation by reason of the act complained of.
Thus, she should be entitled to moral and exemplary
damages for the oppressive manner with which
petitioner’s effected her dismissal and to serve as a
warming to officers who take advantage of their
ascendancy over their employees.
• Domingo vs. Rayala 546 SCRA 90
Facts:
Ma. Lourdes T. Domingo (Domingo), then Stenographic
Reporter III at the NLRC, filed a Complaint for sexual
harassment against Rayala, the chairman of NLRC.
She alleged that Rayala called her in his office and
touched her shoulder, part of her neck then tickled her
ears. Rayala argued that his acts does not constitute
sexual harassment because for it to exist, there must be
a demand, request or requirement of sexual favor.
Issue:
Whether or not Rayala commit sexual harassment.
Rulings: Yes.
The law penalizing sexual harassment in our jurisdiction
is RA 7877. Section 3 thereof defines work-related
sexual harassment in this wise:
Sec. 3. Work, Education or Training-related Sexual
Harassment Defined. – Work, education or training-
related sexual harassment is committed by an employer,
manager, supervisor, agent of the employer, teacher,
instructor, professor, coach, trainor, or any other person
who, having authority, influence or moral ascendancy
over another in a work or training or education
environment, demands, requests or otherwise requires
any sexual favor from the other, regardless of whether
the demand, request or requirement for submission is
accepted by the object of said Act.
(a) In a work-related or employment environment, sexual
harassment is committed when:
(1) The sexual favor is made as a condition in the hiring
or in the employment, re-employment or continued
employment of said individual, or in granting said
individual favorable compensation, terms, conditions,
promotions, or privileges; or the refusal to grant the
sexual favor results in limiting, segregating or classifying
the employee which in a way would discriminate, deprive
or diminish employment opportunities or otherwise
adversely affect said employee;
. (2) The above acts would impair the employee’s rights
or privileges under existing labor laws; or
. (3) The above acts would result in an intimidating,
hostile, or offensive environment for the employee.
Even if we were to test Rayala’s acts strictly by the
standards set in Section 3, RA 7877, he would still be
administratively liable. It is true that this provision calls
for a “demand, request or requirement of a sexual favor.”
But it is not necessary that the demand, request or
requirement of a sexual favor be articulated in a
categorical oral or written statement. It may be
discerned, with equal certitude, from the acts of the
offender. Holding and squeezing Domingo’s shoulders,
running his fingers across her neck and tickling her ear,
having inappropriate conversations with her, giving her
money allegedly for school expenses with a promise of
future privileges, and making statements with
unmistakable sexual overtones – all these acts of Rayala
resound with deafening clarity the unspoken request for
a sexual favor.
4. MINORS
Reference: Art.s 139-140; Omnibus Rules, Book III,
Rule XII, Secs. 2-3; Special Protection of Children Act of
2003 (RA 7610, as amended by RA 9231); ILO
Convention No.182 and ILO Recommendation No. 190
A. Minors under the Constitution, Art. II, Sec. 13
Section 13. The State recognizes the vital role of the
youth in nation-building and shall promote and protect
their physical, moral, spiritual, intellectual, and social
well-being. It shall inculcate in the youth patriotism and
nationalism, and encourage their involvement in public
and civic affairs.
B. Coverage RA 9231, Sec. 2; Rule XII Sec. 1
RA 9231, Sec. 2
Section 2. Section 12 of the same Act, as amended, is
hereby further amended to read as follows:
"Sec. 2. Employment of Children - Children below fifteen
(15) years of age shall not be employed except:
"1) When a child works directly under the sole
responsibility of his/her parents or legal guardian and
where only members of his/her family are employed:
Provided, however, That his/her employment neither
endangers his/her life, safety, health, and morals, nor
impairs his/her normal development: Provided, further,
That the parent or legal guardian shall provide the said
child with the prescribed primary and/or secondary
education; or
"2) Where a child's employment or participation in public
entertainment or information through cinema, theater,
radio, television or other forms of media is essential:
Provided, That the employment contract is concluded by
the child's parents or legal guardian, with the express
agreement of the child concerned, if possible, and the
approval of the Department of Labor and Employment:
Provided, further, That the following requirements in all
instances are strictly complied with:
"(a) The employer shall ensure the protection, health,
safety, morals and normal development of the child;
"(b) The employer shall institute measures to prevent the
child's exploitation or discrimination taking into account
the system and level of remuneration, and the duration
and arrangement of working time; and
"(c) The employer shall formulate and implement,
subject to the approval and supervision of competent
authorities, a continuing program for training and skills
acquisition of the child.
"In the above-exceptional cases where any such child
may be employed, the employer shall first secure, before
engaging such child, a work permit from the Department
of Labor and Employment which shall ensure
observance of the above requirements.
"For purposes of this Article, the term "child" shall apply
to all persons under eighteen (18) years of age."
Rule XII, Sec. 1 (OMNIBUS RULES IMPLEMENTING
THE LABOR CODE)
RULE XII Illegal Recruitment
SECTION 1. Basis for recommending arrest and
detention. — The Secretary may recommend to the
appropriate authority the arrest and detention of any
person for illegal recruitment if he is satisfied from
the preliminary examination conducted by him or by his
duly authorized representative that the act
constituting illegal recruitment has been committed and
that the particular person has committed it.
C. Minimum Employable Age, ILO Convention 138
(1973); Art. 139, RA 7610 Secs. 12-16
ILO Convention 138 (1973)
Preamble
The General Conference of the International Labour
Organisation,
Having been convened at Geneva by the Governing
Body of the International Labour Office, and having met
in its Fifty-eighth Session on 6 June 1973, and
Having decided upon the adoption of certain proposals
with regard to minimum age for admission to
employment, which is the fourth item on the agenda of
the session, and
Noting the terms of the Minimum Age (Industry)
Convention, 1919, the Minimum Age (Sea) Convention,
1920, the Minimum Age (Agriculture) Convention, 1921,
the Minimum Age (Trimmers and Stokers) Convention,
1921, the Minimum Age (Non-Industrial Employment)
Convention, 1932, the Minimum Age (Sea) Convention
(Revised), 1936, the Minimum Age (Industry)
Convention (Revised), 1937, the Minimum Age (Non-
Industrial Employment) Convention (Revised), 1937, the
Minimum Age (Fishermen) Convention, 1959, and the
Minimum Age (Underground Work) Convention, 1965,
and
Considering that the time has come to establish a
general instrument on the subject, which would gradually
replace the existing ones applicable to limited economic
sectors, with a view to achieving the total abolition of
child labour, and
Having determined that these proposals shall take the
form of an international Convention,
adopts this twenty-sixth day of June of the year one
thousand nine hundred and seventy-three the following
Convention, which may be cited as the Minimum Age
Convention, 1973:
Article 1
Each Member for which this Convention is in force
undertakes to pursue a national policy designed to
ensure the effective abolition of child labour and to raise
progressively the minimum age for admission to
employment or work to a level consistent with the fullest
physical and mental development of young persons.
Article 2
1. Each Member which ratifies this Convention shall
specify, in a declaration appended to its ratification, a
minimum age for admission to employment or work
within its territory and on means of transport registered
in its territory; subject to Articles 4 to 8 of this
Convention, no one under that age shall be admitted to
employment or work in any occupation.
2. Each Member which has ratified this Convention may
subsequently notify the Director-General of the
International Labour Office, by further declarations, that
it specifies a minimum age higher than that previously
specified.
3. The minimum age specified in pursuance of
paragraph 1 of this Article shall not be less than the age
of completion of compulsory schooling and, in any case,
shall not be less than 15 years.
4. Notwithstanding the provisions of paragraph 3 of this
Article, a Member whose economy and educational
facilities are insufficiently developed may, after
consultation with the organisations of employers and
workers concerned, where such exist, initially specify a
minimum age of 14 years.
5. Each Member which has specified a minimum age of
14 years in pursuance of the provisions of the preceding
paragraph shall include in its reports on the application
of this Convention submitted under article 22 of the
Constitution of the International Labour Organisation a
statement--
(a) that its reason for doing so subsists; or
(b) that it renounces its right to avail itself of the
provisions in question as from a stated date.
Article 3
1. The minimum age for admission to any type of
employment or work which by its nature or the
circumstances in which it is carried out is likely to
jeopardise the health, safety or morals of young persons
shall not be less than 18 years.
2. The types of employment or work to which paragraph
1 of this Article applies shall be determined by national
laws or regulations or by the competent authority, after
consultation with the organisations of employers and
workers concerned, where such exist.
3. Notwithstanding the provisions of paragraph 1 of this
Article, national laws or regulations or the competent
authority may, after consultation with the organisations
of employers and workers concerned, where such exist,
authorise employment or work as from the age of 16
years on condition that the health, safety and morals of
the young persons concerned are fully protected and
that the young persons have received adequate specific
instruction or vocational training in the relevant branch of
activity.
Article 4
1. In so far as necessary, the competent authority, after
consultation with the organisations of employers and
workers concerned, where such exist, may exclude from
the application of this Convention limited categories of
employment or work in respect of which special and
substantial problems of application arise.
2. Each Member which ratifies this Convention shall list
in its first report on the application of the Convention
submitted under article 22 of the Constitution of the
International Labour Organisation any categories which
may have been excluded in pursuance of paragraph 1 of
this Article, giving the reasons for such exclusion, and
shall state in subsequent reports the position of its law
and practice in respect of the categories excluded and
the extent to which effect has been given or is proposed
to be given to the Convention in respect of such
categories.
3. Employment or work covered by Article 3 of this
Convention shall not be excluded from the application of
the Convention in pursuance of this Article.
Article 5
1. A Member whose economy and administrative
facilities are insufficiently developed may, after
consultation with the organisations of employers and
workers concerned, where such exist, initially limit the
scope of application of this Convention.
2. Each Member which avails itself of the provisions of
paragraph 1 of this Article shall specify, in a declaration
appended to its ratification, the branches of economic
activity or types of undertakings to which it will apply the
provisions of the Convention.
3. The provisions of the Convention shall be applicable
as a minimum to the following: mining and quarrying;
manufacturing; construction; electricity, gas and water;
sanitary services; transport, storage and communication;
and plantations and other agricultural undertakings
mainly producing for commercial purposes, but
excluding family and small-scale holdings producing for
local consumption and not regularly employing hired
workers.
4. Any Member which has limited the scope of
application of this Convention in pursuance of this
Article--
(a) shall indicate in its reports under Article 22 of the
Constitution of the International Labour Organisation the
general position as regards the employment or work of
young persons and children in the branches of activity
which are excluded from the scope of application of this
Convention and any progress which may have been
made towards wider application of the provisions of the
Convention;
(b) may at any time formally extend the scope of
application by a declaration addressed to the Director-
General of the International Labour Office.
Article 6
This Convention does not apply to work done by children
and young persons in schools for general, vocational or
technical education or in other training institutions, or to
work done by persons at least 14 years of age in
undertakings, where such work is carried out in
accordance with conditions prescribed by the competent
authority, after consultation with the organisations of
employers and workers concerned, where such exist,
and is an integral part of--
(a) a course of education or training for which a school
or training institution is primarily responsible;
(b) a programme of training mainly or entirely in an
undertaking, which programme has been approved by
the competent authority; or
(c) a programme of guidance or orientation designed to
facilitate the choice of an occupation or of a line of
training.
Article 7
1. National laws or regulations may permit the
employment or work of persons 13 to 15 years of age on
light work which is--
(a) not likely to be harmful to their health or
development; and
(b) not such as to prejudice their attendance at school,
their participation in vocational orientation or training
programmes approved by the competent authority or
their capacity to benefit from the instruction received.
2. National laws or regulations may also permit the
employment or work of persons who are at least 15
years of age but have not yet completed their
compulsory schooling on work which meets the
requirements set forth in sub-paragraphs (a) and (b) of
paragraph 1 of this Article.
3. The competent authority shall determine the activities
in which employment or work may be permitted under
paragraphs 1 and 2 of this Article and shall prescribe the
number of hours during which and the conditions in
which such employment or work may be undertaken.
4. Notwithstanding the provisions of paragraphs 1 and 2
of this Article, a Member which has availed itself of the
provisions of paragraph 4 of Article 2 may, for as long as
it continues to do so, substitute the ages 12 and 14 for
the ages 13 and 15 in paragraph 1 and the age 14 for
the age 15 in paragraph 2 of this Article.
Article 8
1. After consultation with the organisations of employers
and workers concerned, where such exist, the
competent authority may, by permits granted in
individual cases, allow exceptions to the prohibition of
employment or work provided for in Article 2 of this
Convention, for such purposes as participation in artistic
performances.
2. Permits so granted shall limit the number of hours
during which and prescribe the conditions in which
employment or work is allowed.
Article 9
1. All necessary measures, including the provision of
appropriate penalties, shall be taken by the competent
authority to ensure the effective enforcement of the
provisions of this Convention.
2. National laws or regulations or the competent
authority shall define the persons responsible for
compliance with the provisions giving effect to the
Convention.
3. National laws or regulations or the competent
authority shall prescribe the registers or other
documents which shall be kept and made available by
the employer; such registers or documents shall contain
the names and ages or dates of birth, duly certified
wherever possible, of persons whom he employs or who
work for him and who are less than 18 years of age.
Article 10
1. This Convention revises, on the terms set forth in this
Article, the Minimum Age (Industry) Convention, 1919,
the Minimum Age (Sea) Convention, 1920, the Minimum
Age (Agriculture) Convention, 1921, the Minimum Age
(Trimmers and Stokers) Convention, 1921, the Minimum
Age (Non-Industrial Employment) Convention, 1932, the
Minimum Age (Sea) Convention (Revised), 1936, the
Minimum Age (Industry) Convention (Revised), 1937,
the Minimum Age (Non-Industrial Employment)
Convention (Revised), 1937, the Minimum Age
(Fishermen) Convention, 1959, and the Minimum Age
(Underground Work) Convention, 1965.
2. The coming into force of this Convention shall not
close the Minimum Age (Sea) Convention (Revised),
1936, the Minimum Age (Industry) Convention
(Revised), 1937, the Minimum Age (Non-Industrial
Employment) Convention (Revised), 1937, the Minimum
Age (Fishermen) Convention, 1959, or the Minimum Age
(Underground Work) Convention, 1965, to further
ratification.
3. The Minimum Age (Industry) Convention, 1919, the
Minimum Age (Sea) Convention, 1920, the Minimum
Age (Agriculture) Convention, 1921, and the Minimum
Age (Trimmers and Stokers) Convention, 1921, shall be
closed to further ratification when all the parties thereto
have consented to such closing by ratification of this
Convention or by a declaration communicated to the
Director-General of the International Labour Office.
4. When the obligations of this Convention are accepted-
-
(a) by a Member which is a party to the Minimum Age
(Industry) Convention (Revised), 1937, and a minimum
age of not less than 15 years is specified in pursuance of
Article 2 of this Convention, this shall ipso jure involve
the immediate denunciation of that Convention,
(b) in respect of non-industrial employment as defined in
the Minimum Age (Non-Industrial Employment)
Convention, 1932, by a Member which is a party to that
Convention, this shall ipso jure involve the immediate
denunciation of that Convention,
(c) in respect of non-industrial employment as defined in
the Minimum Age (Non-Industrial Employment)
Convention (Revised), 1937, by a Member which is a
party to that Convention, and a minimum age of not less
than 15 years is specified in pursuance of Article 2 of
this Convention, this shall ipso jure involve the
immediate denunciation of that Convention,
(d) in respect of maritime employment, by a Member
which is a party to the Minimum Age (Sea) Convention
(Revised), 1936, and a minimum age of not less than 15
years is specified in pursuance of Article 2 of this
Convention or the Member specifies that Article 3 of this
Convention applies to maritime employment, this shall
ipso jure involve the immediate denunciation of that
Convention,
(e) in respect of employment in maritime fishing, by a
Member which is a party to the Minimum Age
(Fishermen) Convention, 1959, and a minimum age of
not less than 15 years is specified in pursuance of Article
2 of this Convention or the Member specifies that Article
3 of this Convention applies to employment in maritime
fishing, this shall ipso jure involve the immediate
denunciation of that Convention,
(f) by a Member which is a party to the Minimum Age
(Underground Work) Convention, 1965, and a minimum
age of not less than the age specified in pursuance of
that Convention is specified in pursuance of Article 2 of
this Convention or the Member specifies that such an
age applies to employment underground in mines in
virtue of Article 3 of this Convention, this shall ipso jure
involve the immediate denunciation of that Convention,
if and when this Convention shall have come into force.
5. Acceptance of the obligations of this Convention--
(a) shall involve the denunciation of the Minimum Age
(Industry) Convention, 1919, in accordance with Article
12 thereof,
(b) in respect of agriculture shall involve the
denunciation of the Minimum Age (Agriculture)
Convention, 1921, in accordance with Article 9 thereof,
(c) in respect of maritime employment shall involve the
denunciation of the Minimum Age (Sea) Convention,
1920, in accordance with Article 10 thereof, and of the
Minimum Age (Trimmers and Stokers) Convention,
1921, in accordance with Article 12 thereof,
if and when this Convention shall have come into force.
Article 11
The formal ratifications of this Convention shall be
communicated to the Director-General of the
International Labour Office for registration.
Article 12
1. This Convention shall be binding only upon those
Members of the International Labour Organisation
whose ratifications have been registered with the
Director-General.
2. It shall come into force twelve months after the date
on which the ratifications of two Members have been
registered with the Director-General.
3. Thereafter, this Convention shall come into force for
any Member twelve months after the date on which its
ratifications has been registered.
Article 13
1. A Member which has ratified this Convention may
denounce it after the expiration of ten years from the
date on which the Convention first comes into force, by
an act communicated to the Director-General of the
International Labour Office for registration. Such
denunciation shall not take effect until one year after the
date on which it is registered.
2. Each Member which has ratified this Convention and
which does not, within the year following the expiration
of the period of ten years mentioned in the preceding
paragraph, exercise the right of denunciation provided
for in this Article, will be bound for another period of ten
years and, thereafter, may denounce this Convention at
the expiration of each period of ten years under the
terms provided for in this Article.
Article 14
1. The Director-General of the International Labour
Office shall notify all Members of the International
Labour Organisation of the registration of all ratifications
and denunciations communicated to him by the
Members of the Organisation.
2. When notifying the Members of the Organisation of
the registration of the second ratification communicated
to him, the Director-General shall draw the attention of
the Members of the Organisation to the date upon which
the Convention will come into force.
Article 15
The Director-General of the International Labour Office
shall communicate to the Secretary-General of the
United Nations for registration in accordance with Article
102 of the Charter of the United Nations full particulars
of all ratifications and acts of denunciation registered by
him in accordance with the provisions of the preceding
Articles.
Article 16
At such times as it may consider necessary the
Governing Body of the International Labour Office shall
present to the General Conference a report on the
working of this Convention and shall examine the
desirability of placing on the agenda of the Conference
the question of its revision in whole or in part.
Article 17
1. Should the Conference adopt a new Convention
revising this Convention in whole or in part, then, unless
the new Convention otherwise provides:
(a) the ratification by a Member of the new revising
Convention shall ipso jure involve the immediate
denunciation of this Convention, notwithstanding the
provisions of Article 13 above, if and when the new
revising Convention shall have come into force;
(b) as from the date when the new revising Convention
comes into force this Convention shall cease to be open
to ratification by the Members.
2. This Convention shall in any case remain in force in
its actual form and content for those Members which
have ratified it but have not ratified the revising
Convention.
Article 18
The English and French versions of the text of this
Convention are equally authoritative.
Article 139
Article 139. Minimum employable age.
No child below fifteen (15) years of age shall be
employed, except when he works directly under the sole
responsibility of his parents or guardian, and his
employment does not in any way interfere with his
schooling.
Any person between fifteen (15) and eighteen (18) years
of age may be employed for such number of hours and
such periods of the day as determined by the Secretary
of Labor and Employment in appropriate regulations.

The foregoing provisions shall in no case allow the
employment of a person below eighteen (18) years of
age in an undertaking which is hazardous or deleterious
in nature as determined by the Secretary of Labor and
Employment.
RA 7610 Secs. 12-16
Section 12. Employment of Children. – Children below
fifteen (15) years of age may be employed except:
(1) When a child works directly under the sole
responsibility of his parents or legal guardian and where
only members of the employer's family are employed:
Provided, however, That his employment neither
endangers his life, safety and health and morals, nor
impairs his normal development: Provided, further, That
the parent or legal guardian shall provide the said minor
child with the prescribed primary and/or secondary
education; or
(2) When a child's employment or participation in
public & entertainment or information through cinema,
theater, radio or television is essential: Provided, The
employment contract concluded by the child's parent or
guardian, with the express agreement of the child
concerned, if possible, and the approval of the
Department of Labor and Employment: Provided, That
the following requirements in all instances are strictly
complied with:
(a) The employer shall ensure the protection,
health, safety and morals of the child;
(b) the employer shall institute measures to prevent
the child's exploitation or discrimination taking into
account the system and level of remuneration, and the
duration and arrangement of working time; and;
(c) The employer shall formulate and implement,
subject to the approval and supervision of competent
authorities, a continuing program for training and skill
acquisition of the child.
In the above exceptional cases where any such child
may be employed, the employer shall first secure, before
engaging such child, a work permit from the Department
of Labor and Employment which shall ensure
observance of the above requirement.
The Department of Labor Employment shall promulgate
rules and regulations necessary for the effective
implementation of this Section.
Section 13. Non-formal Education for Working Children.
– The Department of Education, Culture and Sports shall
promulgate a course design under its non-formal
education program aimed at promoting the intellectual,
moral and vocational efficiency of working children who
have not undergone or finished elementary or secondary
education. Such course design shall integrate the
learning process deemed most effective under given
circumstances.
Section 14. Prohibition on the Employment of Children in
Certain Advertisements. – No person shall employ child
models in all commercials or advertisements promoting
alcoholic beverages, intoxicating drinks, tobacco and its
byproducts and violence.
Section 15. Duty of Employer. – Every employer shall
comply with the duties provided for in Articles 108 and
109 of Presidential Decree No. 603.
Section 16. Penalties. – Any person who shall violate
any provision of this Article shall suffer the penalty of a
fine of not less than One thousand pesos (P1,000) but
not more than Ten thousand pesos (P10,000) or
imprisonment of not less than three (3) months but not
more than three (3) years, or both at the discretion of the
court; Provided, That, in case of repeated violations of
the provisions of this Article, the offender's license to
operate shall be revoked.
Republic Act No. 9231 December 19, 2003
AN ACT PROVIDING FOR THE ELIMINATION OF THE
WORST FORMS OF CHILD LABOR AND AFFORDING
STRONGER PROTECTION FOR THE WORKING
CHILD, AMENDING FOR THIS PURPOSE REPUBLIC
ACTNO. 7610, AS AMENDED, OTHERWISE KNOWN
AS THE "SPECIAL PROTECTION OF CHILDREN
AGAINST CHILD ABUSE, EXPLOITATION AND
DISCRIMINATION ACT"
Be it enacted by the Senate and the House of
Representatives of the Philippines in Congress
assembled:
Section 1. Section 2 of Republic Act No. 7610, as
amended, otherwise known as the "Special Protection of
Children Against Child Abuse, Exploitation and
Discrimination Act", is hereby amended to read as
follows:
"Sec. 2. Declaration of State Policy and Principles. - It is
hereby declared to be the policy of the State to provide
special protection to children from all forms of abuse,
neglect, cruelty, exploitation and discrimination, and
other conditions prejudicial to their development
including child labor and its worst forms; provide
sanctions for their commission and carry out a program
for prevention and deterrence of and crisis intervention
in situations of child abuse, exploitation and
discrimination. The State shall intervene on behalf of the
child when the parent, guardian, teacher or person
having care or custody of the child fails or is unable to
protect the child against abuse, exploitation and
discrimination or when such acts against the child are
committed by the said parent, guardian, teacher or
person having care and custody of the same.
"It shall be the policy of the State to protect and
rehabilitate children gravely threatened or endangered
by circumstances which affect or will affect their survival
and normal development and over which they have no
control.
"The best interests of children shall be the paramount
consideration in all actions concerning them, whether
undertaken by public or private social welfare
institutions, courts of law, administrative authorities, and
legislative bodies, consistent with the principle of First
Call for Children as enunciated in the United Nations
Convention on the Rights of the Child. Every effort shall
be exerted to promote the welfare of children and
enhance their opportunities for a useful and happy life."
Section 2. Section 12 of the same Act, as amended, is
hereby further amended to read as follows:
"Sec. 2. Employment of Children - Children below fifteen
(15) years of age shall not be employed except:
"1) When a child works directly under the sole
responsibility of his/her parents or legal guardian and
where only members of his/her family are employed:
Provided, however, That his/her employment neither
endangers his/her life, safety, health, and morals, nor
impairs his/her normal development: Provided, further,
That the parent or legal guardian shall provide the said
child with the prescribed primary and/or secondary
education; or
"2) Where a child's employment or participation in public
entertainment or information through cinema, theater,
radio, television or other forms of media is essential:
Provided, That the employment contract is concluded by
the child's parents or legal guardian, with the express
agreement of the child concerned, if possible, and the
approval of the Department of Labor and Employment:
Provided, further, That the following requirements in all
instances are strictly complied with:
"(a) The employer shall ensure the protection, health,
safety, morals and normal development of the child;
"(b) The employer shall institute measures to prevent the
child's exploitation or discrimination taking into account
the system and level of remuneration, and the duration
and arrangement of working time; and
"(c) The employer shall formulate and implement,
subject to the approval and supervision of competent
authorities, a continuing program for training and skills
acquisition of the child.
"In the above-exceptional cases where any such child
may be employed, the employer shall first secure, before
engaging such child, a work permit from the Department
of Labor and Employment which shall ensure
observance of the above requirements.
"For purposes of this Article, the term "child" shall apply
to all persons under eighteen (18) years of age."
Section 3. The same Act, as amended, is hereby further
amended by adding new sections to be denominated as
Sections 12-A, 12-B, 12-C, and 12-D to read as follows:
"Sec. 2-A. Hours of Work of a Working Child. - Under the
exceptions provided in Section 12 of this Act, as
amended:
"(1) A child below fifteen (15) years of age may be
allowed to work for not more than twenty (20) hours a
week: Provided, That the work shall not be more than
four (4) hours at any given day;
"(2) A child fifteen (15) years of age but below eighteen
(18) shall not be allowed to work for more than eight (8)
hours a day, and in no case beyond forty (40) hours a
week;
"(3) No child below fifteen (15) years of age shall be
allowed to work between eight o'clock in the evening and
six o'clock in the morning of the following day and no
child fifteen (15) years of age but below eighteen (18)
shall be allowed to work between ten o'clock in the
evening and six o'clock in the morning of the following
day."
"Sec. 12-B. Ownership, Usage and Administration of the
Working Child's Income. - The wages, salaries, earnings
and other income of the working child shall belong to
him/her in ownership and shall be set aside primarily for
his/her support, education or skills acquisition and
secondarily to the collective needs of the family:
Provided, That not more than twenty percent (20%) of
the child's income may be used for the collective needs
of the family.
"The income of the working child and/or the property
acquired through the work of the child shall be
administered by both parents. In the absence or
incapacity of either of the parents, the other parent shall
administer the same. In case both parents are absent or
incapacitated, the order of preference on parental
authority as provided for under the Family Code shall
apply.
"Sec. 12-C. Trust Fund to Preserve Part of the Working
Child's Income. - The parent or legal guardian of a
working child below eighteen (18) years of age shall set
up a trust fund for at least thirty percent (30%) of the
earnings of the child whose wages and salaries from
work and other income amount to at least two hundred
thousand pesos (P200,000.00) annually, for which
he/she shall render a semi-annual accounting of the fund
to the Department of Labor and Employment, in
compliance with the provisions of this Act. The child shall
have full control over the trust fund upon reaching the
age of majority.
"Sec. 12-D. Prohibition Against Worst Forms of Child
Labor. - No child shall be engaged in the worst forms of
child labor. The phrase "worst forms of child labor" shall
refer to any of the following:
"(1) All forms of slavery, as defined under the "Anti-
trafficking in Persons Act of 2003", or practices similar to
slavery such as sale and trafficking of children, debt
bondage and serfdom and forced or compulsory labor,
including recruitment of children for use in armed
conflict; or
"(2) The use, procuring, offering or exposing of a child
for prostitution, for the production of pornography or for
pornographic performances; or
"(3) The use, procuring or offering of a child for illegal or
illicit activities, including the production and trafficking of
dangerous drugs and volatile substances prohibited
under existing laws; or
"(4) Work which, by its nature or the circumstances in
which it is carried out, is hazardous or likely to be
harmful to the health, safety or morals of children, such
that it:
"a) Debases, degrades or demeans the intrinsic worth
and dignity of a child as a human being; or
"b) Exposes the child to physical, emotional or sexual
abuse, or is found to be highly stressful psychologically
or may prejudice morals; or
"c) Is performed underground, underwater or at
dangerous heights; or
"d) Involves the use of dangerous machinery, equipment
and tools such as power-driven or explosive power-
actuated tools; or
"e) Exposes the child to physical danger such as, but not
limited to the dangerous feats of balancing, physical
strength or contortion, or which requires the manual
transport of heavy loads; or
"f) Is performed in an unhealthy environment exposing
the child to hazardous working conditions, elements,
substances, co-agents or processes involving ionizing,
radiation, fire, flammable substances, noxious
components and the like, or to extreme temperatures,
noise levels, or vibrations; or
"g) Is performed under particularly difficult conditions; or
"h) Exposes the child to biological agents such as
bacteria, fungi, viruses, protozoans, nematodes and
other parasites; or
"i) Involves the manufacture or handling of explosives
and other pyrotechnic products."
Section 4. Section 13 of the same Act is hereby
amended to read as follows:
"Sec. 13. Access to Education and Training for Working
Children - "a) No child shall be deprived of formal or
non-formal education. In all cases of employment
allowed in this Act, the employer shall provide a working
child with access to at least primary and secondary
education.
"b) To ensure and guarantee the access of the working
child to education and training, the Department of
Education (DEPED) shall: (1) formulate, promulgate, and
implement relevant and effective course designs and
educational programs; (2) conduct the necessary
training for the implementation of the appropriate
curriculum for the purpose; (3) ensure the availability of
the needed educational facilities and materials; and (4)
conduct continuing research and development program
for the necessary and relevant alternative education of
the working child.
"c) The DEPED shall promulgate a course design under
its non-formal education program aimed at promoting the
intellectual, moral and vocational efficiency of working
children who have not undergone or finished elementary
or secondary education. Such course design shall
integrate the learning process deemed most effective
under given circumstances."
Section 5. Section 14 of the same Act is hereby
amended to read as follows:
"Sec. 14. Prohibition on the Employment of Children in
Certain Advertisements. - No child shall be employed as
a model in any advertisement directly or indirectly
promoting alcoholic beverages, intoxicating drinks,
tobacco and its byproducts, gambling or any form of
violence or pornography."
Section 6. Section 16 of the same Act, is hereby
amended to read as follows:
"Sec. 16. Penal Provisions -
"a) Any employer who violates Sections 12, 12-A, and
Section 14 of this act, as amended, shall be penalized
by imprisonment of six (6) months and one (1) day to six
(6) years or a fine of not less than Fifty thousand pesos
(P50,000.00) but not more than Three hundred thousand
pesos (P300,000.00) or both at the discretion of the
court.
"b) Any person who violates the provision of Section 12-
D of this act or the employer of the subcontractor who
employs, or the one who facilitates the employment of a
child in hazardous work, shall suffer the penalty of a fine
of not less than One hundred thousand pesos
(P100,000.00) but not more than One million pesos
(P1,000,000.00), or imprisonment of not less than twelve
(12) years and one (1) day to twenty (20) years, or both
such fine and imprisonment at the discretion of the court.
"c) Any person who violates Sections 12-D(1) and 12-
D(2) shall be prosecuted and penalized in accordance
with the penalty provided for by R. A. 9208 otherwise
known as the "Anti-trafficking in Persons Act of 2003":
Provided, That Such penalty shall be imposed in its
maximum period.
"d) Any person who violates Section 12-D (3) shall be
prosecuted and penalized in accordance with R.A. 9165,
otherwise known as the "Comprehensive Dangerous
Drugs Act of 2002"; Provided, That such penalty shall be
imposed in its maximum period.
"e) If a corporation commits any of the violations
aforecited, the board of directors/trustees and officers,
which include the president, treasurer and secretary of
the said corporation who participated in or knowingly
allowed the violation, shall be penalized accordingly as
provided for under this Section.
"f) Parents, biological or by legal fiction, and legal
guardians found to be violating Sections 12, 12-A, 12-B
and 12-C of this Act shall pay a fine of not less than Ten
thousand pesos (P10,000.00) but not more than One
hundred thousand pesos (P100,000.00), or be required
to render community service for not less than thirty (30)
days but not more than one (1) year, or both such fine
and community service at the discretion of the court:
Provided, That the maximum length of community
service shall be imposed on parents or legal guardians
who have violated the provisions of this Act three (3)
times; Provided, further, That in addition to the
community service, the penalty of imprisonment of thirty
(30) days but not more than one (1) year or both at the
discretion of the court, shall be imposed on the parents
or legal guardians who have violated the provisions of
this Act more than three (3) times.
"g) The Secretary, of Labor and Employment or his/her
duly authorized representative may, after due notice and
hearing, order the closure of any business firm or
establishment found to have violated any of the
provisions of this Act more than three (3) times. He/she
shall likewise order the immediate closure of such firm or
establishment if:
"(1) The violation of any provision of this Act has
resulted in the death, insanity or serious physical injury
of a child employed in such establishment; or
"(2) Such firm or establishment is engaged or employed
in prostitution or in obscene or lewd shows.
"h) In case of such closure, the employer shall be
required to pay the employee(s) the separation pay and
other monetary benefits provided for by law."
Section 7. The same Act is hereby further amended by
adding a new section to be denominated as Section 16-
A, to read as follows:
"Sec. 16-A. Trust Fund from Fines and Penalties - The
fine imposed by the court shall be treated as a Trust
Fund, administered by the Department of Labor and
Employment and disbursed exclusively for the needs,
including the costs of rehabilitation and reintegration into
the mainstream of society of the working children who
are victims of the violations of this Act, and for the
programs and projects that will prevent acts of child
labor."
Section 8. Section 27 of the same Act is hereby
amended to read as follows:
"Sec. 27. Who May File a Complaint - Complaints on
cases of unlawful acts committed against children as
enumerated herein may be filed by the following:
"(a) Offended party;
"(b) Parents or guardians;
"(c) Ascendant or collateral relative within the third
degree of consanguinity;
"(d) Officer, social worker or representative of a licensed
child-caring institution;
"(e) Officer or social worker of the Department of Social
Welfare and Development;
"(f) Barangay chairman of the place where the violation
occurred, where the child is residing or employed; or
"(g) At least three (3) concerned, responsible citizens
where the violation occurred."
Section 9. The same Act is hereby further amended by
adding new sections to Section 16 to be denominated as
Sections 16-A, 16-B and 16-C to read as follows:
"Sec. 16-A. Jurisdiction - The family courts shall have
original jurisdiction over all cases involving offenses
punishable under this Act: Provided, That in cities or
provinces where there are no family courts yet, the
regional trial courts and the municipal trial courts shall
have concurrent jurisdiction depending on the penalties
prescribed for the offense charged.
"The preliminary investigation of cases filed under this
Act shall be terminated within a period of thirty (30) days
from the date of filing.
"If the preliminary investigation establishes a prima facie
case, then the corresponding information shall be filed in
court within forty eight (48) hours from the termination of
the investigation.
"Trial of cases under this Act shall be terminated by the
court not later than ninety (90) days from the date of
filing of information. Decision on said cases shall be
rendered within a period of fifteen (15) days from the
date of submission of the case.
"Sec. 15. Exemptions from Filing Fees. - When the
victim of child labor institutes a separate civil action for
the recovery of civil damages, he/she shall be exempt
from payment of filing fees.
"Sec. 16-C. Access to Immediate Legal, Medical and
Psycho-Social Services - The working child shall have
the right to free legal, medical and psycho-social
services to be provided by the State."
Section 10. Implementing Rules and Regulations - The
Secretary of Labor and Employment, in coordination with
the Committees on Labor and Employment of both
Houses of Congress, shall issue the necessary
Implementing Rules and Regulations (IRR) to effectively
implement the provisions of this Act, in consultation with
concerned public and private sectors, within sixty (60)
days from the effectivity of this Act.
Such rules and regulations shall take effect upon their
publication in two (2) national newspapers of general
circulation.
Section 11. Separability Clause. - If any provision of this
Act is declared invalid or unconstitutional, the validity of
the remaining provisions hereof shall remain in full force
and effect.
Section 12. Repealing Clause. - All laws, decrees, or
rules inconsistent with the provisions of this Act are
hereby repealed or modified accordingly.
Section 13. Effectivity. - This Act shall take effect fifteen
(15) days from the date of its complete publication in the
Official Gazette or in at least two (2) national
newspapers of general circulation.
D. Hours of Work, RA 9231 Sec 3 on Sec12-a
Section 3. The same Act, as amended, is hereby further
amended by adding new sections to be denominated as
Sections 12-A, 12-B, 12-C, and 12-D to read as follows:
"Sec. 12-A. Hours of Work of a Working Child. - Under
the exceptions provided in Section 12 of this Act, as
amended:
"(1) A child below fifteen (15) years of age may be
allowed to work for not more than twenty (20) hours a
week: Provided, That the work shall not be more than
four (4) hours at any given day;
"(2) A child fifteen (15) years of age but below eighteen
(18) shall not be allowed to work for more than eight (8)
hours a day, and in no case beyond forty (40) hours a
week;
"(3) No child below fifteen (15) years of age shall be
allowed to work between eight o'clock in the evening and
six o'clock in the morning of the following day and no
child fifteen (15) years of age but below eighteen (18)
shall be allowed to work between ten o'clock in the
evening and six o'clock in the morning of the following
day."
E. Prohibitions against worst form of Child Labor
ILO Convention 182 (1999); RA 9231, Sec. 3 on Sec.
12-d; Sec. 5 on Sec. 14
ILO Convention 182 (1999)
Preamble
The General Conference of the International Labour
Organization,
Having been convened at Geneva by the Governing
Body of the International Labour Office, and having met
in its 87th Session on 1 June 1999, and
Considering the need to adopt new instruments for the
prohibition and elimination of the worst forms of child
labour, as the main priority for national and international
action, including international cooperation and
assistance, to complement the Convention and the
Recommendation concerning Minimum Age for
Admission to Employment, 1973, which remain
fundamental instruments on child labour, and
Considering that the effective elimination of the worst
forms of child labour requires immediate and
comprehensive action, taking into account the
importance of free basic education and the need to
remove the children concerned from all such work and to
provide for their rehabilitation and social integration while
addressing the needs of their families, and
Recalling the resolution concerning the elimination of
child labour adopted by the International Labour
Conference at its 83rd Session in 1996, and
Recognizing that child labour is to a great extent caused
by poverty and that the long-term solution lies in
sustained economic growth leading to social progress, in
particular poverty alleviation and universal education,
and
Recalling the Convention on the Rights of the Child
adopted by the United Nations General Assembly on 20
November 1989, and
Recalling the ILO Declaration on Fundamental Principles
and Rights at Work and its Follow-up, adopted by the
International Labour Conference at its 86th Session in
1998, and
Recalling that some of the worst forms of child labour
are covered by other international instruments, in
particular the Forced Labour Convention, 1930, and the
United Nations Supplementary Convention on the
Abolition of Slavery, the Slave Trade, and Institutions
and Practices Similar to Slavery, 1956, and
Having decided upon the adoption of certain proposals
with regard to child labour, which is the fourth item on
the agenda of the session, and
Having determined that these proposals shall take the
form of an international Convention;
adopts this seventeenth day of June of the year one
thousand nine hundred and ninety-nine the following
Convention, which may be cited as the Worst Forms of
Child Labour Convention, 1999.
Article 1
Each Member which ratifies this Convention shall take
immediate and effective measures to secure the
prohibition and elimination of the worst forms of child
labour as a matter of urgency.
Article 2
For the purposes of this Convention, the term child shall
apply to all persons under the age of 18.
Article 3
For the purposes of this Convention, the term the worst
forms of child labour comprises:
(a) all forms of slavery or practices similar to slavery,
such as the sale and trafficking of children, debt
bondage and serfdom and forced or compulsory labour,
including forced or compulsory recruitment of children for
use in armed conflict;
(b) the use, procuring or offering of a child for
prostitution, for the production of pornography or for
pornographic performances;
(c) the use, procuring or offering of a child for illicit
activities, in particular for the production and trafficking
of drugs as defined in the relevant international treaties;
(d) work which, by its nature or the circumstances in
which it is carried out, is likely to harm the health, safety
or morals of children.
Article 4
1. The types of work referred to under Article 3(d) shall
be determined by national laws or regulations or by the
competent authority, after consultation with the
organizations of employers and workers concerned,
taking into consideration relevant international
standards, in particular Paragraphs 3 and 4 of the Worst
Forms of Child Labour Recommendation, 1999.
2. The competent authority, after consultation with the
organizations of employers and workers concerned,
shall identify where the types of work so determined
exist.
3. The list of the types of work determined under
paragraph 1 of this Article shall be periodically examined
and revised as necessary, in consultation with the
organizations of employers and workers concerned.
Article 5
Each Member shall, after consultation with employers'
and workers' organizations, establish or designate
appropriate mechanisms to monitor the implementation
of the provisions giving effect to this Convention.
Article 6
1. Each Member shall design and implement
programmes of action to eliminate as a priority the worst
forms of child labour.
2. Such programmes of action shall be designed and
implemented in consultation with relevant government
institutions and employers' and workers' organizations,
taking into consideration the views of other concerned
groups as appropriate.
Article 7
1. Each Member shall take all necessary measures to
ensure the effective implementation and enforcement of
the provisions giving effect to this Convention including
the provision and application of penal sanctions or, as
appropriate, other sanctions.
2. Each Member shall, taking into account the
importance of education in eliminating child labour, take
effective and time-bound measures to:
(a) prevent the engagement of children in the worst
forms of child labour;
(b) provide the necessary and appropriate direct
assistance for the removal of children from the worst
forms of child labour and for their rehabilitation and
social integration;
(c) ensure access to free basic education, and, wherever
possible and appropriate, vocational training, for all
children removed from the worst forms of child labour;
(d) identify and reach out to children at special risk; and
(e) take account of the special situation of girls.
3. Each Member shall designate the competent authority
responsible for the implementation of the provisions
giving effect to this Convention.
Article 8
Members shall take appropriate steps to assist one
another in giving effect to the provisions of this
Convention through enhanced international cooperation
and/or assistance including support for social and
economic development, poverty eradication programmes
and universal education.
Article 9
The formal ratifications of this Convention shall be
communicated to the Director-General of the
International Labour Office for registration.
Article 10
1. This Convention shall be binding only upon those
Members of the International Labour Organization
whose ratifications have been registered with the
Director-General of the International Labour Office.
2. It shall come into force 12 months after the date on
which the ratifications of two Members have been
registered with the Director-General.
3. Thereafter, this Convention shall come into force for
any Member 12 months after the date on which its
ratification has been registered.
Article 11
1. A Member which has ratified this Convention may
denounce it after the expiration of ten years from the
date on which the Convention first comes into force, by
an act communicated to the Director-General of the
International Labour Office for registration. Such
denunciation shall not take effect until one year after the
date on which it is registered.
2. Each Member which has ratified this Convention and
which does not, within the year following the expiration
of the period of ten years mentioned in the preceding
paragraph, exercise the right of denunciation provided
for in this Article, will be bound for another period of ten
years and, thereafter, may denounce this Convention at
the expiration of each period of ten years under the
terms provided for in this Article.
Article 12
1. The Director-General of the International Labour
Office shall notify all Members of the International
Labour Organization of the registration of all ratifications
and acts of denunciation communicated by the Members
of the Organization.
2. When notifying the Members of the Organization of
the registration of the second ratification, the Director-
General shall draw the attention of the Members of the
Organization to the date upon which the Convention
shall come into force.
Article 13
The Director-General of the International Labour Office
shall communicate to the Secretary-General of the
United Nations, for registration in accordance with article
102 of the Charter of the United Nations, full particulars
of all ratifications and acts of denunciation registered by
the Director-General in accordance with the provisions of
the preceding Articles.
Article 14
At such times as it may consider necessary, the
Governing Body of the International Labour Office shall
present to the General Conference a report on the
working of this Convention and shall examine the
desirability of placing on the agenda of the Conference
the question of its revision in whole or in part.
Article 15
1. Should the Conference adopt a new Convention
revising this Convention in whole or in part, then, unless
the new Convention otherwise provides --
(a) the ratification by a Member of the new revising
Convention shall ipso jure involve the immediate
denunciation of this Convention, notwithstanding the
provisions of Article 11 above, if and when the new
revising Convention shall have come into force;
(b) as from the date when the new revising Convention
comes into force, this Convention shall cease to be open
to ratification by the Members.
2. This Convention shall in any case remain in force in
its actual form and content for those Members which
have ratified it but have not ratified the revising
Convention.
Article 16
The English and French versions of the text of this
Convention are equally authoritative.
RA 9231, Sec. 3 on Sec. 12-d; Sec. 5 on Sec. 14
RA 9231 Sec. 3 on Sec 12-d
"Sec. 12-D. Prohibition Against Worst Forms of Child
Labor. - No child shall be engaged in the worst forms of
child labor. The phrase "worst forms of child labor" shall
refer to any of the following:
"(1) All forms of slavery, as defined under the "Anti-
trafficking in Persons Act of 2003", or practices similar to
slavery such as sale and trafficking of children, debt
bondage and serfdom and forced or compulsory labor,
including recruitment of children for use in armed
conflict; or
"(2) The use, procuring, offering or exposing of a child
for prostitution, for the production of pornography or for
pornographic performances; or
"(3) The use, procuring or offering of a child for illegal or
illicit activities, including the production and trafficking of
dangerous drugs and volatile substances prohibited
under existing laws; or
"(4) Work which, by its nature or the circumstances in
which it is carried out, is hazardous or likely to be
harmful to the health, safety or morals of children, such
that it:
"a) Debases, degrades or demeans the intrinsic worth
and dignity of a child as a human being; or
"b) Exposes the child to physical, emotional or sexual
abuse, or is found to be highly stressful psychologically
or may prejudice morals; or
"c) Is performed underground, underwater or at
dangerous heights; or
"d) Involves the use of dangerous machinery, equipment
and tools such as power-driven or explosive power-
actuated tools; or
"e) Exposes the child to physical danger such as, but not
limited to the dangerous feats of balancing, physical
strength or contortion, or which requires the manual
transport of heavy loads; or
"f) Is performed in an unhealthy environment exposing
the child to hazardous working conditions, elements,
substances, co-agents or processes involving ionizing,
radiation, fire, flammable substances, noxious
components and the like, or to extreme temperatures,
noise levels, or vibrations; or
"g) Is performed under particularly difficult conditions; or
"h) Exposes the child to biological agents such as
bacteria, fungi, viruses, protozoans, nematodes and
other parasites; or
"i) Involves the manufacture or handling of explosives
and other pyrotechnic products."
RA 9231, Sec. 5 on Sec. 14
Section 5. Section 14 of the same Act is hereby
amended to read as follows:
"Sec. 14. Prohibition on the Employment of Children in
Certain Advertisements. - No child shall be employed as
a model in any advertisement directly or indirectly
promoting alcoholic beverages, intoxicating drinks,
tobacco and its byproducts, gambling or any form of
violence or pornography."
F. Discrimination, Art. 140
Article 140. Prohibition against child discrimination. No
employer shall discriminate against any person in
respect to terms and conditions of employment on
account of his age.
G. Jurisdiction, RA 9231 Sec. 9 on Sec 16-A
Section 9. The same Act is hereby further amended by
adding new sections to Section 16 to be denominated as
Sections 16-A, 16-B and 16-C to read as follows:
"Sec. 16-A. Jurisdiction - The family courts shall have
original jurisdiction over all cases involving offenses
punishable under this Act: Provided, That in cities or
provinces where there are no family courts yet, the
regional trial courts and the municipal trial courts shall
have concurrent jurisdiction depending on the penalties
prescribed for the offense charged.
"The preliminary investigation of cases filed under this
Act shall be terminated within a period of thirty (30) days
from the date of filing.
"If the preliminary investigation establishes a prima facie
case, then the corresponding information shall be filed in
court within forty eight (48) hours from the termination of
the investigation.
"Trial of cases under this Act shall be terminated by the
court not later than ninety (90) days from the date of
filing of information. Decision on said cases shall be
rendered within a period of fifteen (15) days from the
date of submission of the case.
5. HOUSEHELPERS/CAREGIVERS
Reference: Arts. 141-152; Omnibus Rules, Book III,
Rule XIII
Chapter III
EMPLOYMENT OF HOUSEHELPERS
ART. 141. Coverage. - This Chapter shall apply to all
persons rendering services in households for
compensation.
"Domestic or household service" shall mean service
in the employer’s home which is usually necessary or
desirable for the maintenance and enjoyment thereof
and includes ministering to the personal comfort and
convenience of the members of the employer’s
household, including services of family drivers.
ART. 142. Contract of domestic service. - The original
contract of domestic service shall not last for more than
two (2) years but it may be renewed for such periods as
may be agreed upon by the parties.
ART. 143. Minimum wage. - (a) Househelpers shall be
paid the following minimum wage rates:
(1) Eight hundred pesos (P800.00) a month for
househelpers in Manila, Quezon, Pasay, and Caloocan
cities and municipalities of Makati, San Juan,
Mandaluyong, Muntinlupa, Navotas, Malabon,
Parañaque, Las Piñas, Pasig, Marikina, Valenzuela,
Taguig and Pateros in Metro Manila and in highly
urbanized cities;
(2) Six hundred fifty pesos (P650.00) a month for those
in other chartered cities and first-class municipalities;and
(3) Five hundred fifty pesos (P550.00) a month for those
in other municipalities.
Provided, That the employers shall review the
employment contracts of their househelpers every
three (3) years with the end in view of improving the
terms and conditions thereof.
Provided, further, That those househelpers who are
receiving at least One thousand pesos (P1,000.00)
shall be covered by the Social Security System (SSS)
and be entitled to all the benefits provided thereunder.
(As amended by Republic Act No. 7655, August 19,
1993).
ART. 144. Minimum cash wage. - The minimum wage
rates prescribed under this Chapter shall be the basic
cash wages which shall be paid to the househelpers
in addition to lodging, food and medical attendance.
ART. 145. Assignment to non-household work. - No
househelper shall be assigned to work in a commercial,
industrial or agricultural enterprise at a wage or salary
rate lower than that provided for agricultural or non-
agricultural workers as prescribed herein.
ART. 146. Opportunity for education. - If the
househelper is under the age of eighteen (18) years,
the employer shall give him or her an opportunity for
at least elementary education. The cost of education
shall be part of the househelper’s compensation, unless
there is a stipulation to the contrary.
ART. 147. Treatment of househelpers. - The employer
shall treat the househelper in a just and humane
manner. In no case shall physical violence be used
upon the househelper.
ART. 148. Board, lodging, and medical attendance. -
The employer shall furnish the househelper, free of
charge, suitable and sanitary living quarters as well
as adequate food and medical attendance.
ART. 149. Indemnity for unjust termination of
services. - If the period of household service is fixed,
neither the employer nor the househelper may terminate
the contract before the expiration of the term, except for
a just cause. If the househelper is unjustly dismissed, he
or she shall be paid the compensation already earned
plus that for fifteen (15) days by way of indemnity.
If the househelper leaves without justifiable reason,
he or she shall forfeit any unpaid salary due him or
her not exceeding fifteen (15) days.
ART. 150. Service of termination notice. - If the
duration of the household service is not determined
either in stipulation or by the nature of the service,
the employer or the househelper may give notice to
put an end to the relationship five (5) days before the
intended termination of the service.
ART. 151. Employment certification. - Upon the
severance of the household service relation, the
employer shall give the househelper a written statement
of the nature and duration of the service and his or her
efficiency and conduct as househelper.
ART. 152. Employment record. - The employer may
keep such records as he may deem necessary to
reflect the actual terms and conditions of
employment of his househelper, which the latter
shall authenticate by signature or thumbmark upon
request of the employer.
 RULE XIII
Employment of Househelpers
SECTION 1. General statement on coverage. —
(a) The provisions of this Rule shall apply to all
househelpers whether employed on full or part-time
basis.
(b) The term "househelper" as used herein is
synonymous to the term "domestic servant" and
shall refer to any person, whether male or female,
who renders services in and about the employer's
home and which services are usually necessary or
desirable for the maintenance and enjoyment
thereof, and ministers exclusively to the personal
comfort and enjoyment of the employer's family.
SECTION 2. Method of payment not determinant. —
The provisions of this Rule shall apply irrespective of
the method of payment of wages agreed upon by the
employer and househelper, whether it be hourly,
daily, weekly, or monthly, or by piece or output
basis.
SECTION 3. Children of househelpers. — The children
and relatives of a househelper who live under the
employer's roof and who share the accommodations
provided for the househelpers by the employer shall
not be deemed as househelpers if they are not
otherwise engaged as such and are not required to
perform any substantial household work.
SECTION 4. Employment contract. — The initial
contract for household service shall not last for more
than two (2) years. However, such contract may be
renewed from year to year.
SECTION 5. Minimum monthly wage. — The minimum
compensation of househelpers shall not be less than
the following rates:
(a) Sixty pesos (P60.00) a month for those employed
in the cities of Manila, Quezon, Pasay and Caloocan,
and in the municipalities of Makati, San Juan,
Mandaluyong, Muntinlupa, Navotas, Malabon,
Parañaque, Las Piñas, Pasig and Marikina, in the
Province of Rizal.
(b) Forty-five pesos (P45.00) a month for those
employed in other chartered cities and first class
municipalities; and
(c) Thirty pesos (P30.00) a month for those in other
municipalities.
SECTION 6. Equivalent daily rate. — The equivalent
minimum daily wage rate of househelpers shall be
determined by dividing the applicable minimum monthly
rate by thirty (30) days.
SECTION 7. Payment by results. — Where the method
of payment of wages agreed upon by the employer
and the househelper is by piece or output basis, the
piece or output rates shall be such as will assure the
househelper of the minimum monthly or the equivalent
daily rate as provided in this issuance.
SECTION 8. Minimum cash wage. — The minimum
wage rates prescribed under this Rule shall be basic
cash wages which shall be paid to the househelpers
in addition to lodging, food and medical attendance.
SECTION 9. Time and manner of payment. — Wages
shall be paid directly to the househelper to whom
they are due at least once a month. No deductions
therefrom shall be made by the employer unless
authorized by the househelper himself or by existing
laws.
SECTION 10. Assignment to non-household work. —
No househelper shall be assigned to work in a
commercial, industrial or agricultural enterprise at a
wage or salary rate lower than that provided for
agricultural and non-agricultural workers.
SECTION 11. Opportunity for education. — If the
househelper is under the age of eighteen (18) years,
the employer shall give him or her an opportunity for
at least elementary education. The cost of such
education shall be part of the househelper's
compensation, unless there is a stipulation to the
contrary.
SECTION 12. Treatment of househelpers. — The
employer shall treat the househelper in a just and
humane manner. In no case shall physical violence
be inflicted upon the househelper.
SECTION 13. Board, lodging and medical attendance.
— The employer shall furnish the househelper free
suitable and sanitary living quarters as well as
adequate food and medical attendance.
SECTION 14. Indemnity for unjust termination of
service. — If the period for household service is fixed,
neither the employer nor the househelper may
terminate the contract before the expiration of the
term, except for a just cause. If the househelper is
unjustly dismissed, he or she shall be paid the
compensation already earned plus that for fifteen
(15) days by way of indemnity.
If the househelper leaves without justifiable reason,
he or she shall forfeit any unpaid salary due him or
her not exceeding fifteen (15) days.
SECTION 15. Employment certification. — Upon the
severance of the household service relationship, the
househelper may demand from the employer a
written statement of the nature and duration of the
service and his or her efficiency and conduct as
househelper.
SECTION 16. Funeral expenses. — In case of death of
the househelper, the employer shall bear the funeral
expenses commensurate to the standards of life of
the deceased.
SECTION 17. Disposition of the househelper's body.
— Unless so desired by the househelper or by his or
her guardian with court approval, the transfer or use
of the body of the deceased househelper for
purposes other than burial is prohibited. When so
authorized by the househelper, the transfer, use and
disposition of the body shall be in accordance with
the provisions of Republic Act No. 349.
SECTION 18. Employment records. — The employer
may keep such records as he may deem necessary to
reflect the actual terms and conditions of
employment of his househelper which the latter shall
authenticate by signature or thumbmark upon
request of the employer.
SECTION 19. Prohibited reduction of pay. — When the
compensation of the househelper before the
promulgation of these regulations is higher than that
prescribed in the Code and in this issuance, the same
shall not be reduced or diminished by the employer
on or after said date.
SECTION 20. Relation to other laws and agreements.
— Nothing in this Rule shall deprive a househelper of
the right to seek higher wages, shorter working hours
and better working conditions than those prescribed
herein, nor justify an employer in reducing any
benefit or privilege granted to the househelper under
existing laws, agreements or voluntary employer
practices with terms more favorable to the
househelpers than those prescribed in this Rule.
A. Definition, Omnibus Rules, Book III, Rule XIII, Sec.
1(b)
OMNIBUS RULES
IMPLEMENTING THE LABOR CODE
RULE XIII
Employment of Househelpers
SECTION 1. General statement on coverage.
(b) The term "househelper" as used herein is
synonymous to the term "domestic servant" and shall
refer to any person, whether male or female, who
renders services in and about the employer's home and
which services are usually necessary or desirable for the
maintenance and enjoyment thereof, and ministers
exclusively to the personal comfort and enjoyment of the
employer's family.
B. Coverage, Art. 141
ART. 141. Coverage. - This Chapter shall apply to all
persons rendering services in households for
compensation.
"Domestic or household service" shall mean service
in the employer’s home which is usually necessary or
desirable for the maintenance and enjoyment thereof
and includes ministering to the personal comfort and
convenience of the members of the employer’s
household, including services of family drivers.
C. Non-household Work, Art. 145
ART. 145. Assignment to non-household work. - No
househelper shall be assigned to work in a
commercial, industrial or agricultural enterprise at a
wage or salary rate lower than that provided for
agricultural or non-agricultural workers as prescribed
herein.
• Apex Mining Co. v. NLRC, 196 SCRA 251
The criteria are the personal comfort and
enjoyment of the family of the employer in the home
of said employer. While it may be true that the nature
of the work of a househelper, domestic servant or
laundrywoman in a home or in a company staffhouse
may be similar in nature, the difference in their
circumstances is that in the former instance they are
actually serving the family while in the latter case,
whether it is a corporation or a single proprietorship
engaged in business or industry or any other
agricultural or similar pursuit, service is being
rendered in the staffhouses or within the premises of
the business of the employer. In such instance, they
are employees of the company or employer in the
business concerned entitled to the privileges of a
regular employee.
FACTS:
• Private respondent Sinclita Candida was
employed by petitioner Apex Mining Company, Inc to
perform laundry services at its staff house.
• On December 18, 1987, while she was attending
to her assigned task and she was hanging her laundry,
she accidentally slipped and hit her back on a stone. As
a result of the accident she was not able to continue with
her work. She was permitted to go on leave for
medication.
• De la Rosa offered her the amount of P 2,000.00
which was eventually increased to P5,000.00 to
persuade her to quit her job, but she refused the offer
and preferred to return to work.
• Petitioner did not allow her to return to work and
dismissed her on February 4, 1988.
• Private respondent filed a request for assistance
with the Department of Labor and Employment, which
the latter rendered its Decision by ordering the Apex
Mining Co. to pay Candida the total amount of
P55,161.42 for salary differential, emergency living
allowance, 13th month pay differential and separation
pay.
• Petitioner appealed the case before the NLRC,
which was subsequently dismissed for lack of merit.
ISSUE:
Whether or not the private respondent should be treated
as househelper or domestic servant or a regular
employee.
HELD:
• Under Rule XIII, Section l(b), Book 3 of the
Labor Code, as amended, the term "househelper" as
used herein is synonymous to the term "domestic
servant" and shall refer to any person, whether male or
female, who renders services in and about the
employer's home and which services are usually
necessary or desirable for the maintenance and
enjoyment thereof, and ministers exclusively to the
personal comfort and enjoyment of the employer's
family.
• The definition cannot be interpreted to include
househelper or laundrywomen working in staffhouses of
a company, like private respondent who attends to the
needs of the company's guest and other persons
availing of said facilities.
• The mere fact that the househelper or domestic
servant is working within the premises of the business of
the employer and in relation to or in connection with its
business, as in its staffhouses for its guest or even for its
officers and employees, warrants the conclusion that
such househelper or domestic servant is and should be
considered as a regular employee.
WHEREFORE, the petition is DISMISSED and the
appealed decision and resolution of public respondent
NLRC are hereby AFFIRMED. No pronouncement as to
costs
D. Conditions and Benefits, Arts. 142-149,152; Civil
Code, Arts. 1689-1697; Rule XIII, Sec. 18
Arts. 142-149, 152
Article 142. Contract of domestic service. The original
contract of domestic service shall not last for more than
two (2) years but it may be renewed for such periods as
may be agreed upon by the parties.
Article 143. Minimum wage.
Househelpers shall be paid the following minimum wage
rates:
Eight hundred pesos (P800.00) a month for
househelpers in Manila, Quezon, Pasay, and Caloocan
cities and municipalities of Makati, San Juan,
Mandaluyong, Muntinlupa, Navotas, Malabon,
Parañaque, Las Piñas, Pasig, Marikina, Valenzuela,
Taguig and Pateros in Metro Manila and in highly
urbanized cities;
Six hundred fifty pesos (P650.00) a month for those in
other chartered cities and first-class municipalities; and
Five hundred fifty pesos (P550.00) a month for those in
other municipalities.
Provided, That the employers shall review the
employment contracts of their househelpers every three
(3) years with the end in view of improving the terms and
conditions thereof.
Provided, further, That those househelpers who are
receiving at least One thousand pesos (P1,000.00) shall
be covered by the Social Security System (SSS) and be
entitled to all the benefits provided thereunder. (As
amended by Republic Act No. 7655, August 19, 1993)
Article 144. Minimum cash wage. The minimum wage
rates prescribed under this Chapter shall be the basic
cash wages which shall be paid to the househelpers in
addition to lodging, food and medical attendance.
Article 145. Assignment to non-household work. No
househelper shall be assigned to work in a commercial,
industrial or agricultural enterprise at a wage or salary
rate lower than that provided for agricultural or non-
agricultural workers as prescribed herein.
Article 146. Opportunity for education. If the househelper
is under the age of eighteen (18) years, the employer
shall give him or her an opportunity for at least
elementary education. The cost of education shall be
part of the househelper’s compensation, unless there is
a stipulation to the contrary.
Article 147. Treatment of househelpers. The employer
shall treat the househelper in a just and humane
manner. In no case shall physical violence be used upon
the househelper.
Article 148. Board, lodging, and medical attendance. The
employer shall furnish the househelper, free of charge,
suitable and sanitary living quarters as well as adequate
food and medical attendance.
Article 149. Indemnity for unjust termination of services.
If the period of household service is fixed, neither the
employer nor the househelper may terminate the
contract before the expiration of the term, except for a
just cause. If the househelper is unjustly dismissed, he
or she shall be paid the compensation already earned
plus that for fifteen (15) days by way of indemnity.
If the househelper leaves without justifiable reason, he
or she shall forfeit any unpaid salary due him or her not
exceeding fifteen (15) days.
Article 152. Employment record. The employer may
keep such records as he may deem necessary to reflect
the actual terms and conditions of employment of his
househelper, which the latter shall authenticate by
signature or thumbmark upon request of the employer.
Civil Code Art. 1689-1697
Art. 1689. Household service shall always be reasonably
compensated. Any stipulation that household service is
without compensation shall be void. Such compensation
shall be in addition to the house helper's lodging, food,
and medical attendance.
Art. 1690. The head of the family shall furnish, free of
charge, to the house helper, suitable and sanitary
quarters as well as adequate food and medical
attendance.
Art. 1691. If the house helper is under the age of
eighteen years, the head of the family shall give an
opportunity to the house helper for at least elementary
education. The cost of such education shall be a part of
the house helper's compensation, unless there is a
stipulation to the contrary.
Art. 1692. No contract for household service shall last
for more than two years. However, such contract may be
renewed from year to year.
Art. 1693. The house helper's clothes shall be subject to
stipulation. However, any contract for household service
shall be void if thereby the house helper cannot afford to
acquire suitable clothing.
Art. 1694. The head of the family shall treat the house
helper in a just and humane manner. In no case shall
physical violence be used upon the house helper.
Art. 1695. House helper shall not be required to work
more than ten hours a day. Every house helper shall be
allowed four days' vacation each month, with pay.
Art. 1696. In case of death of the house helper, the head
of the family shall bear the funeral expenses if the house
helper has no relatives in the place where the head of
the family lives, with sufficient means therefor.
Art. 1697. If the period for household service is fixed
neither the head of the family nor the house helper may
terminate the contract before the expiration of the term,
except for a just cause. If the house helper is unjustly
dismissed, he shall be paid the compensation already
earned plus that for fifteen days by way of indemnity. If
the house helper leaves without justifiable reason, he
shall forfeit any salary due him and unpaid, for not
exceeding fifteen days
Omnibus Rules, Rule XIII, Sec. 18
SECTION 18. Employment records. — The employer
may keep such records as he may deem necessary to
reflect the actual terms and conditions of employment of
his househelper which the latter shall authenticate by
signature or thumbmark upon request of the employer.
E. Termination, Arts. 150-151; Civil Code, Arts. 1698-
1699; Rule XIII, Secs. 14-15
Arts. 150-151;
Article 150. Service of termination notice. If the duration
of the household service is not determined either in
stipulation or by the nature of the service, the employer
or the househelper may give notice to put an end to the
relationship five (5) days before the intended termination
of the service.
Article 151. Employment certification. Upon the
severance of the household service relation, the
employer shall give the househelper a written statement
of the nature and duration of the service and his or her
efficiency and conduct as househelper.
Civil Code, Arts. 1698-1699
Art. 1698. If the duration of the household service is not
determined either by stipulation or by the nature of the
service, the head of the family or the house helper may
give notice to put an end to the service relation,
according to the following rules:
(1) If the compensation is paid by the day, notice may be
given on any day that the service shall end at the close
of the following day;
(2) If the compensation is paid by the week, notice may
be given, at the latest on the first business day of the
week, that the service shall be terminated at the end of
the seventh day from the beginning of the week;
(3) If the compensation is paid by the month, notice may
be given, at the latest, on the fifth day of the month, that
the service shall cease at the end of the month.
Art. 1699. Upon the extinguishment of the service
relation, the house helper may demand from the
head of the family a written statement on the nature
and duration of the service and the efficiency and
conduct of the house helper.
Rule XIII, Secs. 14-15
SECTION 14. Indemnity for unjust termination of service.
— If the period for household service is fixed, neither the
employer nor the househelper may terminate the
contract before the expiration of the term, except for a
just cause. If the househelper is unjustly dismissed, he
or she shall be paid the compensation already earned
plus that for fifteen (15) days by way of indemnity.
If the househelper leaves without justifiable reason, he
or she shall forfeit any unpaid salary due him or her not
exceeding fifteen (15) days.
SECTION 15. Employment certification. — Upon the
severance of the household service relationship, the
househelper may demand from the employer a written
statement of the nature and duration of the service and
his or her efficiency and conduct as househelper.
F. Indemnity of Unjust Termination, Art. 149, Omnibus
Rules- Rule XIII Sec. 14
Article 149. Indemnity for unjust termination of services.
If the period of household service is fixed, neither the
employer nor the househelper may terminate the
contract before the expiration of the term, except for a
just cause. If the househelper is unjustly dismissed, he
or she shall be paid the compensation already earned
plus that for fifteen (15) days by way of indemnity.
If the househelper leaves without justifiable reason, he
or she shall forfeit any unpaid salary due him or her not
exceeding fifteen (15) days.
Omnibus Rules
SECTION 14. Indemnity for unjust termination of service.
— If the period for household service is fixed, neither the
employer nor the househelper may terminate the
contract before the expiration of the term, except for a
just cause. If the househelper is unjustly dismissed, he
or she shall be paid the compensation already earned
plus that for fifteen (15) days by way of indemnity.
If the househelper leaves without justifiable reason, he
or she shall forfeit any unpaid salary due him or her not
exceeding fifteen (15) days.
6. HOMEWORKERS
A. Coverage and Regulation, Arts. 153-155; DO 5,
DOLE 4 Feb. 1992, now Book III, Rule XIV
Arts. 153-155
Chapter IV
EMPLOYMENT OF HOMEWORKERS
Article 153. Regulation of industrial homeworkers. The
employment of industrial homeworkers and field
personnel shall be regulated by the government through
the appropriate regulations issued by the Secretary of
Labor and Employment to ensure the general welfare
and protection of homeworkers and field personnel and
the industries employing them.
Article 154. Regulations of Secretary of Labor. The
regulations or orders to be issued pursuant to this
Chapter shall be designed to assure the minimum terms
and conditions of employment applicable to the industrial
homeworkers or field personnel involved.
Article 155. Distribution of homework. For purposes of
this Chapter, the "employer" of homeworkers includes
any person, natural or artificial who, for his account or
benefit, or on behalf of any person residing outside the
country, directly or indirectly, or through an employee,
agent contractor, sub-contractor or any other person:
Delivers, or causes to be delivered, any goods, articles
or materials to be processed or fabricated in or about a
home and thereafter to be returned or to be disposed of
or distributed in accordance with his directions; or
Sells any goods, articles or materials to be processed or
fabricated in or about a home and then rebuys them
after such processing or fabrication, either by himself or
through some other person.
DO 5, DOLE 4 Feb. 1992, now Book III, Rule XIV
RULE XIV
Employment of Homeworkers
SECTION 1. General statement on coverage. — This
Rule shall apply to any homeworker who performs in or
about his home any processing of goods or materials, in
whole or in part, which have been furnished directly or
indirectly by an employer and thereafter to be returned to
the latter.
SECTION 2. Definitions. — As used in this Rule, the
following terms shall have the meanings indicated
hereunder:
(a) "Home" means any room, house, apartment, or other
premises used regularly, in whole or in part, as a
dwelling place, except those situated within the premises
or compound of an employer, contractor, and the work
performed therein is under the active or personal
supervision by, or for, the latter.
(b) "Employer" means any natural or artificial person
who, for his own account or benefit, or on behalf of any
person residing outside the Philippines, directly or
indirectly, or through any employee, agent, contractor,
sub-contractor; or any other person:
(1) Delivers or causes to be delivered any goods or
articles to be processed in or about a home and
hereafter to be returned or to be disposed of or
distributed in accordance with his direction; or
(2) Sells any goods or articles for the purpose of having
such goods or articles processed in or about a home and
then repurchases them himself or through another after
such processing.
(c) "Contractor" or "sub-contractor" means any person
who, for the account or benefit of an employer, delivers
or caused to be delivered to a homeworker goods or
articles to be processed in or about his home and
thereafter to be returned, disposed of or distributed in
accordance with the direction of the employer.
(d) "Processing" means manufacturing, fabricating,
finishing, repairing, altering, packing, wrapping or
handling any material.
SECTION 3. Payment for work. — (a) Immediately
upon receipt of the finished goods or articles, the
employer shall pay the homeworker or the contractor
or sub-contractor, as the case may be, for the work
performed; Provided, However, that where payment is
made to a contractor or sub-contractor, the homeworker
shall be paid within the week after the contractor or sub-
contractor has collected the goods or articles from the
homeworkers.
(b) The Secretary of Labor and Employment shall from
time to time establish the standard minimum piece or
output rate in appropriate orders for the particular work
or processing to be performed by the homeworkers.
SECTION 4. Deductions. — No employee, contractor,
or sub-contractor shall make any deduction from the
homeworker's earnings for the value of materials
which have been lost, destroyed, soiled or otherwise
damaged unless the following conditions are met:
(a) The homeworker concerned is clearly shown to be
responsible for the loss or damage;
(b) The employee is given reasonable opportunity to
show cause why deductions should not be made;
(c) The amount of such deduction is fair and reasonable
and shall not exceed the actual loss or damages; and
(d) The deduction is made at such rate that the amount
deducted does not exceed 20% of the homeworker's
earnings in a week.
SECTION 5. Conditions for payment of work. —
(a) The employer may require the homeworker to re-do
work which has been improperly executed without
having to pay the stipulated rate more than once.
(b) An employer, contractor, or sub-contractor need not
pay the homeworker for any work which has been done
on goods and articles which have been returned for
reasons attributable to the fault of the homeworker.
SECTION 6. Disagreement between homeworkers and
employer. — In cases of disagreement between the
homeworker and the employer, contractor or
subcontractor on matters falling under Section 4 (a), 5
and 6 of this Rule, either party may refer the case to
the Regional Office having jurisdiction over the
homeworker. The Regional Office shall decide the
case within ten (10) working days from receipt of the
case. Its decision shall be final and unappealable.
SECTION 7. Liability of employer and contractor. —
Whenever an employer shall contract with another for
the performance of the employer's work, it shall be the
duty of such employer to provide in such contract that
the employees or homeworkers of the contractor and the
latter's sub-contractor shall be paid in accordance with
the provisions of this Rule. In the event that such
contractor or sub-contractor fails to pay the wages or
earnings of his employees or homeworkers as specified
in this Rule, such employer shall be jointly and severally
liable with the contractor or sub-contractor to the workers
of the latter, to the extent that such work is performed
under such contract, in the same manner as if the
employees or homeworkers were directly engaged by
the employer.
For Department Order No. 05-92 February 4, 1992
See Attached PDF
B. Definition, DO 5, Sec 2
C. Registration, Secs. 4-6
D. Conditions of Employment/Deductions, Secs.
6-9
E. Joint and Several Liability of
Employer/Contractor, Sec. 11
F. Prohibitions, Sec. 13
G. Enforcement, Sec. 10
CHAPTER IV. Conditions of Work
A. Conditions of Work
Reference: Arts. 82-90; Omnibus Rules, Book III, Rules
I, IA, II
Chapter I
HOURS OF WORK
Article 82. Coverage. The provisions of this Title shall
apply to employees in all establishments and
undertakings whether for profit or not, but not to
government employees, managerial employees, field
personnel, members of the family of the employer who
are dependent on him for support, domestic helpers,
persons in the personal service of another, and workers
who are paid by results as determined by the Secretary
of Labor in appropriate regulations.
As used herein, "managerial employees" refer to those
whose primary duty consists of the management of the
establishment in which they are employed or of a
department or subdivision thereof, and to other officers
or members of the managerial staff.
"Field personnel" shall refer to non-agricultural
employees who regularly perform their duties away from
the principal place of business or branch office of the
employer and whose actual hours of work in the field
cannot be determined with reasonable certainty.
Article 83. Normal hours of work. The normal hours of
work of any employee shall not exceed eight (8) hours a
day.
Health personnel in cities and municipalities with a
population of at least one million (1,000,000) or in
hospitals and clinics with a bed capacity of at least one
hundred (100) shall hold regular office hours for eight (8)
hours a day, for five (5) days a week, exclusive of time
for meals, except where the exigencies of the service
require that such personnel work for six (6) days or forty-
eight (48) hours, in which case, they shall be entitled to
an additional compensation of at least thirty percent
(30%) of their regular wage for work on the sixth day.
For purposes of this Article, "health personnel" shall
include resident physicians, nurses, nutritionists,
dietitians, pharmacists, social workers, laboratory
technicians, paramedical technicians, psychologists,
midwives, attendants and all other hospital or clinic
personnel.
Article 84. Hours worked. Hours worked shall include (a)
all time during which an employee is required to be on
duty or to be at a prescribed workplace; and (b) all time
during which an employee is suffered or permitted to
work.
Rest periods of short duration during working hours shall
be counted as hours worked.
Article 85. Meal periods. Subject to such regulations as
the Secretary of Labor may prescribe, it shall be the duty
of every employer to give his employees not less than
sixty (60) minutes time-off for their regular meals.
Article 86. Night shift differential. Every employee shall
be paid a night shift differential of not less than ten
percent (10%) of his regular wage for each hour of work
performed between ten o’clock in the evening and six
o’clock in the morning.
Article 87. Overtime work. Work may be performed
beyond eight (8) hours a day provided that the employee
is paid for the overtime work, an additional
compensation equivalent to his regular wage plus at
least twenty-five percent (25%) thereof. Work performed
beyond eight hours on a holiday or rest day shall be paid
an additional compensation equivalent to the rate of the
first eight hours on a holiday or rest day plus at least
thirty percent (30%) thereof.
Article 88. Undertime not offset by overtime. Undertime
work on any particular day shall not be offset by
overtime work on any other day. Permission given to the
employee to go on leave on some other day of the week
shall not exempt the employer from paying the additional
compensation required in this Chapter.
Article 89. Emergency overtime work. Any employee
may be required by the employer to perform overtime
work in any of the following cases:
When the country is at war or when any other national or
local emergency has been declared by the National
Assembly or the Chief Executive;
When it is necessary to prevent loss of life or property or
in case of imminent danger to public safety due to an
actual or impending emergency in the locality caused by
serious accidents, fire, flood, typhoon, earthquake,
epidemic, or other disaster or calamity;
When there is urgent work to be performed on
machines, installations, or equipment, in order to avoid
serious loss or damage to the employer or some other
cause of similar nature;
When the work is necessary to prevent loss or damage
to perishable goods; and
Where the completion or continuation of the work started
before the eighth hour is necessary to prevent serious
obstruction or prejudice to the business or operations of
the employer.
Any employee required to render overtime work under
this Article shall be paid the additional compensation
required in this Chapter.
Article 90. Computation of additional compensation. For
purposes of computing overtime and other additional
remuneration as required by this Chapter, the "regular
wage" of an employee shall include the cash wage only,
without deduction on account of facilities provided by the
employer.
Omnibus Rules, Book III, Rules I, IA, II
BOOK THREE
Conditions of Employment
RULE I
Hours of Work
SECTION 1. General statement on coverage. — The
provisions of this Rule shall apply to all employees in all
establishments and undertakings, whether operated for
profit or not, except to those specifically exempted under
Section 2 hereof.
SECTION 2. Exemption. — The provisions of this Rule
shall not apply to the following persons if they qualify for
exemption under the conditions set forth herein:
(a) Government employees whether employed by the
National Government or any of its political subdivision,
including those employed in government-owned and/or
controlled corporations;
(b) Managerial employees, if they meet all of the
following conditions:
(1) Their primary duty consists of the management of the
establishment in which they are employed or of a
department or sub-division thereof.
(2) They customarily and regularly direct the work of two
or more employees therein.
(3) They have the authority to hire or fire employees of
lower rank; or their suggestions and recommendations
as to hiring and firing and as to the promotion or any
other change of status of other employees, are given
particular weight.
(c) Officers or members of a managerial staff if they
perform the following duties and responsibilities:
(1) The primary duty consists of the performance of work
directly related to management policies of their
employer;
(2) Customarily and regularly exercise discretion and
independent judgment; and
(3) (i) Regularly and directly assist a proprietor or a
managerial employee whose primary duty consists of the
management of the establishment in which he is
employed or subdivision thereof; or (ii) execute under
general supervision work along specialized or technical
lines requiring special training, experience, or
knowledge; or (iii) execute, under general supervision,
special assignments and tasks; and
(4) Who do not devote more than 20 percent of their
hours worked in a work week to activities which are not
directly and closely related to the performance of the
work described in paragraphs (1), (2) and (3) above.
(d) Domestic servants and persons in the personal
service of another if they perform such services in the
employer's home which are usually necessary or
desirable for the maintenance and enjoyment thereof, or
minister to the personal comfort, convenience, or safety
of the employer as well as the members of his
employer's household.
(e) Workers who are paid by results, including those who
are paid on piece-work, "takay," "pakiao" or task basis,
and other non-time work if their output rates are in
accordance with the standards prescribed under Section
8, Rule VII, Book Three of these regulations, or where
such rates have been fixed by the Secretary of Labor
and Employment in accordance with the aforesaid
Section.
(f) Non-agricultural field personnel if they regularly
perform their duties away from the principal or branch
office or place of business of the employer and whose
actual hours of work in the field cannot be determined
with reasonable certainty.

SECTION 3. Hours worked. — The following shall be
considered as compensable hours worked:
(a) All time during which an employee is required to be
on duty or to be at the employer's premises or to be at a
prescribed work place; and
(b) All time during which an employee is suffered or
permitted to work.
SECTION 4. Principles in determining hours worked. —
The following general principles shall govern in
determining whether the time spent by an employee is
considered hours worked for purposes of this Rule:
(a) All hours are hours worked which the employee is
required to give his employer, regardless of whether or
not such hours are spent in productive labor or involve
physical or mental exertion.
(b) An employee need not leave the premises of the
work place in order that his rest period shall not be
counted, it being enough that he stops working, may rest
completely and may leave his work place, to go
elsewhere, whether within or outside the premises of his
work place.
(c) If the work performed was necessary, or it benefited
the employer, or the employee could not abandon his
work at the end of his normal working hours because he
had no replacement, all time spent for such work shall
be considered as hours worked, if the work was with the
knowledge of his employer or immediate supervisor.
(d) The time during which an employee is inactive by
reason of interruptions in his work beyond his control
shall be considered working time either if the imminence
of the resumption of work requires the employee's
presence at the place of work or if the interval is too brief
to be utilized effectively and gainfully in the employee's
own interest.
SECTION 5. Waiting time. — (a) Waiting time spent by
an employee shall be considered as working time if
waiting is an integral part of his work or the employee is
required or engaged by the employer to wait.
(b) An employee who is required to remain on call in the
employer's premises or so close thereto that he cannot
use the time effectively and gainfully for his own purpose
shall be considered as working while on call. An
employee who is not required to leave word at his home
or with company officials where he may be reached is
not working while on call.
SECTION 6. Lectures, meetings, training programs. —
Attendance at lectures, meetings, training programs, and
other similar activities shall not be counted as working
time if all of the following conditions are met:
(a) Attendance is outside of the employee's regular
working hours;
(b) Attendance is in fact voluntary; and
(c) The employee does not perform any productive work
during such attendance.
SECTION 7. Meal and Rest Periods. — Every employer
shall give his employees, regardless of sex, not less
than one (1) hour time-off for regular meals, except in
the following cases when a meal period of not less than
twenty (20) minutes may be given by the employer
provided that such shorter meal period is credited as
compensable hours worked of the employee:
(a) Where the work is non-manual work in nature or
does not involve strenuous physical exertion;
(b) Where the establishment regularly operates not less
than sixteen (16) hours a day;
(c) In case of actual or impending emergencies or there
is urgent work to be performed on machineries,
equipment or installations to avoid serious loss which the
employer would otherwise suffer; and
(d) Where the work is necessary to prevent serious loss
of perishable goods.
Rest periods or coffee breaks running from five (5) to
twenty (20) minutes shall be considered as compensable
working time.
SECTION 8. Overtime pay. — Any employee covered by
this Rule who is permitted or required to work beyond
eight (8) hours on ordinary working days shall be paid an
additional compensation for the overtime work in the
amount equivalent to his regular wage plus at least
twenty-five percent (25%) thereof.
SECTION 9. Premium and overtime pay for holiday and
rest day work. — (a) Except employees referred to under
Section 2 of this Rule, an employee who is permitted or
suffered to work on special holidays or on his designated
rest days not falling on regular holidays, shall be paid
with an additional compensation as premium pay of not
less than thirty percent (30%) of his regular wage. For
work performed in excess of eight (8) hours on special
holidays and rest days not falling on regular holidays, an
employee shall be paid an additional compensation for
the overtime work equivalent to his rate for the first eight
hours on a special holiday or rest day plus at least thirty
percent (30%) thereof.
(b) Employees of public utility enterprises as well as
those employed in non-profit institutions and
organizations shall be entitled to the premium and
overtime pay provided herein, unless they are
specifically excluded from the coverage of this Rule as
provided in Section 2 hereof.
(c) The payment of additional compensation for work
performed on regular holidays shall be governed by Rule
IV, Book Three, of these Rules.
SECTION 10. Compulsory overtime work. — In any of
the following cases, an employer may require any of his
employees to work beyond eight (8) hours a day,
provided that the employee required to render overtime
work is paid the additional compensation required by
these regulations:
(a) When the country is at war or when any other
national or local emergency has been declared by
Congress or the Chief Executive;
(b) When overtime work is necessary to prevent loss of
life or property, or in case of imminent danger to public
safety due to actual or impending emergency in the
locality caused by serious accident, fire, floods,
typhoons, earthquake, epidemic or other disaster or
calamities;
(c) When there is urgent work to be performed on
machines, installations, or equipment, in order to avoid
serious loss or damage to the employer or some other
causes of similar nature;
(d) When the work is necessary to prevent loss or
damage to perishable goods;
(e) When the completion or continuation of work started
before the 8th hour is necessary to prevent serious
obstruction or prejudice to the business or operations of
the employer; or
(f) When overtime work is necessary to avail of favorable
weather or environmental conditions where performance
or quality of work is dependent thereon.
In cases not falling within any of these enumerated in
this Section, no employee may be made to work beyond
eight hours a day against his will.
RULE I-A
Hours of Work of Hospital and Clinic Personnel
SECTION 1. General statement on coverage. — This
Rule shall apply to:
(a) All hospitals and clinics, including those with a bed
capacity of less than one hundred (100) which are
situated in cities or municipalities with a population of
one million or more; and
(b) All hospitals and clinics with a bed capacity of at least
one hundred (100), irrespective of the size of the
population of the city or municipality where they may be
situated.
SECTION 2. Hospitals or clinics within the meaning of
this Rule. — The terms "hospitals" and "clinics" as used
in this Rule shall mean a place devoted primarily to the
maintenance and operation of facilities for the diagnosis,
treatment and care of individuals suffering from illness,
disease, injury, or deformity, or in need of obstetrical or
other medical and nursing care. Either term shall also be
construed as any institution, building, or place where
there are installed beds, or cribs, or bassinets for twenty-
four (24) hours use or longer by patients in the treatment
of disease, injuries, deformities, or abnormal physical
and mental states, maternity cases or sanitorial care; or
infirmaries, nurseries, dispensaries, and such other
similar names by which they may be designated.
SECTION 3. Determination of bed capacity and
population. — (a) For purposes of determining the
applicability of this Rule, the actual bed capacity of the
hospital or clinic at the time of such determination shall
be considered, regardless of the actual or bed
occupancy. The bed capacity of hospital or clinic as
determined by the Bureau of Medical Services pursuant
to Republic Act No. 4226, otherwise known as the
Hospital Licensure Act, shall prima facie be considered
as the actual bed capacity of such hospital or clinic.
(b) The size of the population of the city or municipality
shall be determined from the latest official census issued
by the Bureau of the Census and Statistics.
SECTION 4. Personnel covered by this Rule. — This
Rule applies to all persons employed by any private or
public hospital or clinic mentioned in Section 1 hereof,
and shall include, but not limited to, resident physicians,
nurses, nutritionists, dieticians, pharmacists, social
workers, laboratory technicians paramedical technicians,
psychologists, midwives, and attendants.
SECTION 5. Regular working hours. — The regular
working hours of any person covered by this Rule shall
not be more than eight (8) hours in any one day nor
more than forty (40) hours in any one week.
For purposes of this Rule a "day" shall mean a work day
of twenty-four (24) consecutive hours beginning at the
same time each calendar year. A "week" shall mean the
work of 168 consecutive hours, or seven consecutive 24-
hour work days, beginning at the same hour and on the
same calendar day each calendar week.
SECTION 6. Regular working days. — The regular
working days of covered employees shall not be more
than five days in a work week. The work week may
begin at any hour and on any day, including Saturday or
Sunday, designated by the employer.
Employers are not precluded from changing the time at
which the work day or work week begins, provided that
the change is not intended to evade the requirements of
this Rule.
SECTION 7. Overtime work. — Where the exigencies of
the service so require as determined by the employer,
any employee covered by this Rule may be scheduled to
work for more than five (5) days or forty (40) hours a
week, provided that the employee is paid for the
overtime work an additional compensation equivalent to
his regular wage plus at least thirty percent (30%)
thereof, subject to the provisions of this Book on the
payment of additional compensation for work performed
on special and regular holidays and on rest days.
SECTION 8. Hours worked. — In determining the
compensable hours of work of hospital and clinic
personnel covered by this Rule, the pertinent provisions
of Rule 1 of this Book shall apply.
SECTION 9. Additional compensation. — Hospital and
clinic personnel covered by this Rule, with the exception
of those employed by the Government, shall be entitled
to an additional compensation for work performed on
regular and special holidays and rest days as provided in
this Book. Such employees shall also be entitled to
overtime pay for services rendered in excess of forty
hours a week, or in excess of eight hours a day,
whichever will yield the higher additional compensation
to the employee in the work week.
SECTION 10. Relation to Rule I. — All provisions of
Rule I of this Book which are not inconsistent with this
Rule shall be deemed applicable to hospital and clinic
personnel.
RULE II
Night Shift Differential
SECTION 1. Coverage. — This Rule shall apply to all
employees except:
(a) Those of the government and any of its political
subdivisions, including government-owned and/or
controlled corporations;
(b) Those of retail and service establishments regularly
employing not more than five (5) workers;
(c) Domestic helpers and persons in the personal
service of another;
(d) Managerial employees as defined in Book Three of
this Code;
(e) Field personnel and other employees whose time
and performance is unsupervised by the employer
including those who are engaged on task or contract
basis, purely commission basis, or those who are paid a
fixed amount for performing work irrespective of the time
consumed in the performance thereof.
SECTION 2. Night shift differential. — An employee shall
be paid night shift differential of no less than ten per cent
(10%) of his regular wage for each hour of work
performed between ten o'clock in the evening and six
o'clock in the morning.
SECTION 3. Additional compensation. — Where an
employee is permitted or suffered to work on the period
covered after his work schedule, he shall be entitled to
his regular wage plus at least twenty-five per cent (25%)
and an additional amount of no less than ten per cent
(10%) of such overtime rate for each hour or work
performed between 10 p.m. to 6 a.m.
SECTION 4. Additional compensation on scheduled rest
day/special holiday. — An employee who is required or
permitted to work on the period covered during rest days
and/or special holidays not falling on regular holidays,
shall be paid a compensation equivalent to his regular
wage plus at least thirty (30%) per cent and an additional
amount of not less than ten (10%) per cent of such
premium pay rate for each hour of work performed.
SECTION 5. Additional compensation on regular
holidays. — For work on the period covered during
regular holidays, an employee shall be entitled to his
regular wage during these days plus an additional
compensation of no less than ten (10%) per cent of such
premium rate for each hour of work performed.
SECTION 6. Relation to agreements. — Nothing in this
Rule shall justify an employer in withdrawing or reducing
any benefits, supplements or payments as provided in
existing individual or collective agreements or employer
practice or policy.
1. Hours of Work
a. Regulations; Rationale
• Manila Terminal Co, Inc. v. CIR. 91 Phil. 625 (1952)
FACTS
-Manila Terminal Company, Inc. hereinafter to be
referred as to the petitioner, undertook the arrastre
service in some of the piers in Manila's Port Area at the
request and under the control of the United States Army.
The petitioner hired some thirty men as watchmen on
twelve-hour shifts at a compensation of P3 per day for
the day shift and P6 per day for the night shift.
-The watchmen of the petitioner continued in the service
with a number of substitutions and additions, their
salaries having been raised during the month of
February to P4 per day for the day shift and P6.25 per
day for the nightshift. The private respondent sent a
letter to Department of Labor requesting that the matter
of overtime pay be investigated. But nothing was done
by the Dept of Labor.
-Later on, the petitioner instituted the system of strict
eight-hour shifts.
-The private respondent filed an amended petition with
the Court of Industrial Relations praying, among others,
that the petitioner be ordered to pay its watchmen or
police force overtime pay from the commencement of
their employment.
-By virtue of Customs Administrative Order No. 81 and
Executive Order No. 228 of the President of the
Philippines, the entire police force of the petitioner was
consolidated with the Manila Harvor Police of the
Customs Patrol Service, a Government agency under
the exclusive control of the Commissioner of Customs
and the Secretary of Finance The Manila Terminal Relief
and Mutual Aid Association will hereafter be referred to
as the Association.
-Judge V. Jimenez Yanson of the Court of Industrial
Relations in his decision ordered the petitioner to pay to
its police force but regards to overtime service after the
watchmen had been integrated into the Manila Harbor
Police, the has no jurisdiction because it affects the
Bureau of Customs, an instrumentality of the
Government having no independent personality and
which cannot be sued without the consent of the State.
-The petitioner filed a motion for reconsideration. The
Association also filed a motion for reconsideration in so
far its other demands were dismissed. Both resolutions
were denied.
-The public respondent decision was to pay the private
respondents their overtime on regular days at the regular
rate and additional amount of 25 percent, overtime on
Sundays and legal holidays at the regular rate only, and
watchmen are not entitled to night differential pay for
past services. The petitioner has filed a present petition
for certiorari.
ISSUE
-WON overtime pay should be granted to the workers
HELD
YES
-Petitioner stressed that the contract between it and the
Association stipulates 12 hrs a day at certain rates
including overtime, but the record does not bear out
these allegations.
-In times of acute employment, people go from office to
office to search for work, and the workers here found
themselves required to render 12 hrs a day. True, there
was an agreement, but did the workers have freedom to
bargain much less insist in the observance of the Eight
Hour Labor Law?
-We note that after petitioner instituted 8 hr shifts, no
reduction was made in salaries which its watchmen
received under the 12 hr agreement.
-Petitioner’s allegation that the Association had
acquiesced in the 12 hr shifts for more than 18 mos is
not accurate. Only one of the members entered in
September 1945. The rest followed during the next few
months.
-The Association can’t be said to have impliedly waived
the right to overtime pay, for the obvious reason that it
could not have expressly waived it.
-Estoppel and laches can’t also be invoked against
Association. First, it is contrary to spirit of the Eight Hour
Labor Law. Second, law obligates employer to observe
it. Third, employee is at a disadvantage as to be
reluctant in asserting any claim.
-The argument that the nullity of the employment
contract precludes recovery by the Association of
overtime pay is untenable. The employer may not be
heard to plead its own neglect as exemption or defense.
-Also, Commonwealth Act 444 expressly provides for
payment of extra compensation in cases where overtime
services are required.
- The point that payment of overtime pay may
lead to ruin of the petitioner can’t be accepted. It is
significant that not all watchmen should receive back
overtime pay for the whole period, since the members
entered the firm in different times.
-The Eight-Hour Labor Law was designed not only to
safeguard the health and welfare of the laborer or
employee, but in a way to minimize unemployment by
forcing employers, in cases where more than 8-hour
operation is necessary, to utilize different shifts of
laborers or employees working only for eight hours each.
b. Coverage/Exemptions, Art. 82, 276; Rule I,
Secs. 1-4
Article 82. Coverage. The provisions of this Title shall
apply to employees in all establishments and
undertakings whether for profit or not, but not to
government employees, managerial employees, field
personnel, members of the family of the employer who
are dependent on him for support, domestic helpers,
persons in the personal service of another, and workers
who are paid by results as determined by the Secretary
of Labor in appropriate regulations.
As used herein, "managerial employees" refer to those
whose primary duty consists of the management of the
establishment in which they are employed or of a
department or subdivision thereof, and to other officers
or members of the managerial staff.
"Field personnel" shall refer to non-agricultural
employees who regularly perform their duties away from
the principal place of business or branch office of the
employer and whose actual hours of work in the field
cannot be determined with reasonable certainty.
Article 276. Government employees. The terms and
conditions of employment of all government employees,
including employees of government-owned and
controlled corporations, shall be governed by the Civil
Service Law, rules and regulations. Their salaries shall
be standardized by the National Assembly as provided
for in the New Constitution. However, there shall be no
reduction of existing wages, benefits and other terms
and conditions of employment being enjoyed by them at
the time of the adoption of this Code.
RULE I
Hours of Work
SECTION 1. General statement on coverage. — The
provisions of this Rule shall apply to all employees in all
establishments and undertakings, whether operated for
profit or not, except to those specifically exempted under
Section 2 hereof.
SECTION 2. Exemption. — The provisions of this Rule
shall not apply to the following persons if they qualify for
exemption under the conditions set forth herein:
(a) Government employees whether employed by the
National Government or any of its political subdivision,
including those employed in government-owned and/or
controlled corporations;
(b) Managerial employees, if they meet all of the
following conditions:
(1) Their primary duty consists of the management of the
establishment in which they are employed or of a
department or sub-division thereof.
(2) They customarily and regularly direct the work of two
or more employees therein.
(3) They have the authority to hire or fire employees of
lower rank; or their suggestions and recommendations
as to hiring and firing and as to the promotion or any
other change of status of other employees, are given
particular weight.
(c) Officers or members of a managerial staff if they
perform the following duties and responsibilities:
(1) The primary duty consists of the performance of work
directly related to management policies of their
employer;
(2) Customarily and regularly exercise discretion and
independent judgment; and
(3) (i) Regularly and directly assist a proprietor or a
managerial employee whose primary duty consists of the
management of the establishment in which he is
employed or subdivision thereof; or (ii) execute under
general supervision work along specialized or technical
lines requiring special training, experience, or
knowledge; or (iii) execute, under general supervision,
special assignments and tasks; and
(4) Who do not devote more than 20 percent of their
hours worked in a work week to activities which are not
directly and closely related to the performance of the
work described in paragraphs (1), (2) and (3) above.
(d) Domestic servants and persons in the personal
service of another if they perform such services in the
employer's home which are usually necessary or
desirable for the maintenance and enjoyment thereof, or
minister to the personal comfort, convenience, or safety
of the employer as well as the members of his
employer's household.
(e) Workers who are paid by results, including those who
are paid on piece-work, "takay," "pakiao" or task basis,
and other non-time work if their output rates are in
accordance with the standards prescribed under Section
8, Rule VII, Book Three of these regulations, or where
such rates have been fixed by the Secretary of Labor
and Employment in accordance with the aforesaid
Section.
(f) Non-agricultural field personnel if they regularly
perform their duties away from the principal or branch
office or place of business of the employer and whose
actual hours of work in the field cannot be determined
with reasonable certainty.
SECTION 3. Hours worked. — The following shall be
considered as compensable hours worked:
(a) All time during which an employee is required to be
on duty or to be at the employer's premises or to be at a
prescribed work place; and
(b) All time during which an employee is suffered or
permitted to work.
SECTION 4. Principles in determining hours worked. —
The following general principles shall govern in
determining whether the time spent by an employee is
considered hours worked for purposes of this Rule:
(a) All hours are hours worked which the employee is
required to give his employer, regardless of whether or
not such hours are spent in productive labor or involve
physical or mental exertion.
(b) An employee need not leave the premises of the
work place in order that his rest period shall not be
counted, it being enough that he stops working, may rest
completely and may leave his work place, to go
elsewhere, whether within or outside the premises of his
work place.
(c) If the work performed was necessary, or it benefited
the employer, or the employee could not abandon his
work at the end of his normal working hours because he
had no replacement, all time spent for such work shall
be considered as hours worked, if the work was with the
knowledge of his employer or immediate supervisor.
(d) The time during which an employee is inactive by
reason of interruptions in his work beyond his control
shall be considered working time either if the imminence
of the resumption of work requires the employee's
presence at the place of work or if the interval is too brief
to be utilized effectively and gainfully in the employee's
own interest.
1. Government Employees, 1987 Constitution. Art.IX-
B, Sec. 2(1); Omnibus Rules, Book III, Rule I, Sec. 2(a)
1987 Constitution. Art.IX-B, Sec. 2(1)
ARTICLE IX
CONSTITUTIONAL COMMISSION
B. THE CIVIL SERVICE COMMISSION
Section 2. The civil service embraces all branches,
subdivisions, instrumentalities, and agencies of the
Government, including government-owned or controlled
corporations with original charters
Omnibus Rules, Book III, Rule I, Sec. 2(a)
SECTION 2. Exemption. — The provisions of this Rule
shall not apply to the following persons if they qualify for
exemption under the conditions set forth herein:
(a) Government employees whether employed by the
National Government or any of its political subdivision,
including those employed in government-owned and/or
controlled corporations;
2. Managerial Employees, Art. 82; Rule I, Sec. 2 (b) (c)
Article 82. Coverage. The provisions of this Title shall
apply to employees in all establishments and
undertakings whether for profit or not, but not to
government employees, managerial employees, field
personnel, members of the family of the employer who
are dependent on him for support, domestic helpers,
persons in the personal service of another, and workers
who are paid by results as determined by the Secretary
of Labor in appropriate regulations.
As used herein, "managerial employees" refer to
those whose primary duty consists of the
management of the establishment in which they are
employed or of a department or subdivision thereof,
and to other officers or members of the managerial
staff.
"Field personnel" shall refer to non-agricultural
employees who regularly perform their duties away from
the principal place of business or branch office of the
employer and whose actual hours of work in the field
cannot be determined with reasonable certainty.
Rule I, Sec. 2 (b) (c)
SECTION 2. Exemption. — The provisions of this Rule
shall not apply to the following persons if they qualify for
exemption under the conditions set forth herein:
(b) Managerial employees, if they meet all of the
following conditions:
(1) Their primary duty consists of the management of the
establishment in which they are employed or of a
department or sub-division thereof.
(2) They customarily and regularly direct the work of two
or more employees therein.
(3) They have the authority to hire or fire employees of
lower rank; or their suggestions and recommendations
as to hiring and firing and as to the promotion or any
other change of status of other employees, are given
particular weight.
(c) Officers or members of a managerial staff if they
perform the following duties and responsibilities:
(1) The primary duty consists of the performance of work
directly related to management policies of their
employer;
(2) Customarily and regularly exercise discretion and
independent judgment; and
(3) (i) Regularly and directly assist a proprietor or a
managerial employee whose primary duty consists of the
management of the establishment in which he is
employed or subdivision thereof; or (ii) execute under
general supervision work along specialized or technical
lines requiring special training, experience, or
knowledge; or (iii) execute, under general supervision,
special assignments and tasks; and
(4) Who do not devote more than 20 percent of their
hours worked in a work week to activities which are not
directly and closely related to the performance of the
work described in paragraphs (1), (2) and (3) above.
• Asia Pacific Christerning, Inc. v. Farolan, 393 SCRA
454 (2004)
FACTS:
Respondent Maria Linda R. Farolan was hired as Sales
Manager of petitioner for its passenger and cargo GSA
operations for Scandinavian Airline System (SAS).
Soon after respondent assumed her post, she
participated in a number of meetings/seminars (technical
aspects all geared towards improving her marketing and
sales skills)
Respondent, upon instruction of Bondoc
(VP/Comptroller), submitted a report. As reflected in
respondent’s report, there was a drop in SAS’ sales
revenues which to her was attributable to market forces
beyond her control.
Petitioner directed its high ranking officer Roberto
Zozobrado to conduct an investigation on the matter and
identify the problem/s and implement possible solutions.
Zozobrado thus informally took over some of
respondent’s marketing and sales responsibilities, albeit
respondent retained her title as Sales Manager and
continued to receive her salary as such. Soren
Jespersen, General Manager of SAS, came to the
Philippines to assess the statistics on SAS’ sales
revenues and SAS was convinced that respondent was
not fit for the job of Sales Manager; and in view of the
changes introduced by Zozobrado, SAS-GSA sales
operations drew positive results.
Respondent Farolan nevertheless, received letter from
Jespersen congratulating him for exceeding sale results
in April and a number of recommendations for
improvement.
However, on even date, Petitioner terminated the
employment of respondent on ground of loss of trust and
confidence
Thus, respondent filed a complaint for illegal dismissal
with prayer for damages and attorney’s fees.
Respondents version: alleged that Bondoc and
Zozobrado had asked her to tender her resignation as
she was not the person whom SAS was looking for to
handle the position of Sales Manager 9 but that she
refused, hence, she was terminated
LA: ruled in favor of respondent; NLRC: reversed the
ruling of the LA
CA: Set aside the decision of NLRC
ISSUE: WON, APC, AS EMPLOYER, HAS THE
MANAGEMENT PREROGATIVE TO REPLACE A
SALES MANAGER WHOM IT HAS REASONABLE
GROUNDS TO BELIEVE CANNOT EFFECTIVELY
DISCHARGE THE DUTIES DEMANDED BY SUCH
POSITION.
HELD: NO.
Recent decisions of this Court distinguish the treatment
of managerial employees from that of rank and file
personnel insofar as the application of the doctrine of
loss of trust and confidence is concerned
MANAGERIAL EMPLOYEES; CONDITIONS THAT
MUST BE MET BEFORE ONE MAY BE CONSIDERED
A MANAGERIAL EMPLOYEE. — As enunciated in
Samson v. NLRC, 330 SCRA 460, “Before one may be
properly considered a managerial employee, all the
following conditions must be met: (1) Their primary duty
consists of the management of the establishment in
which they are employed or of a department or
subdivision thereof; (2) They customarily and regularly
direct the work of two or more employees therein; (3)
They have the authority to hire or fire other employees of
lower rank; or their suggestions and recommendations
as to the hiring and firing and as to the promotion or any
other change of status of other employees are given
particular weight. (Section 2(b), Rule I, Book III of the
Omnibus Rules Implementing the Labor Code, italics
supplied).
It is not disputed that her job description, and the terms
and conditions of her employment, with the exception of
her salary and allowances, were never reduced to
writing.
By respondent’s claim, her function, as verbally
explained to her by Murray, dealt mainly with servicing of
existing clientele. Bondoc, however, described
respondent’s functions and duties as critical
DISMISSAL; LOSS OF TRUST AND CONFIDENCE;
MUST BE BASED ON A WILLFUL BREACH AND
FOUNDED ON CLEARLY ESTABLISHED FACTS;
BREACH OF DUTIES; WHEN CONSIDERED WILLFUL;
CASE AT BAR. — Even assuming, however, that
respondent was a managerial employee, the stated
ground (in the letter of termination) for her dismissal,
“loss of confidence,” should have a basis and
determination thereof cannot be left entirely to the
employer. Loss of trust and confidence to be a valid
ground for an employee’s dismissal must be based on a
willful breach and founded on clearly established facts. A
breach is willful if it is done intentionally, knowingly and
purposely, without justifiable excuse, as distinguished
from an act done carelessly, thoughtlessly, heedlessly or
inadvertently. Respondent’s detailed REPORT dated
September 8, 1993, relative to SAS profit and loss for
1993, which was closely examined and analyzed by the
LA contains an explanation of what brought about the
decline in sales revenues. And it contains too a number
of recommended measures on improvement of sales for
the remainder of 1993 and for 1994. As did the Labor
Arbiter and the Court of Appeals, this Court finds
respondent’s explanation in her Report behind the
decline in sales revenues as due to market forces
beyond respondent’s control plausible. In any event,
there is no showing that the decline is reflective of any
willful breach of duties by respondent.
• Chariot Peñaranda v. Baganga Plywood Corp., 489
SCRA 94 (2006)
In June 1999, Peñaranda was hired by Baganga
Plywood Corporation (owned by Hudson Chua) to take
charge of the operations and maintenance of its steam
plant boiler. Peñaranda was employed as a
Foreman/Boiler Head/Shift Engineer tasked to do the
following tasks among others:
“1. To supply the required and continuous steam to all
consuming units at minimum cost.
“2. To supervise, check and monitor manpower
workmanship as well as operation of boiler and
accessories.
“3. To evaluate performance of machinery and
manpower.xxx
“5. To train new employees for effective and safety while
working.
xxx
“7. To recommend personnel actions such as:
promotion, or disciplinary action.
Xxx
In 2001, BPC shut down due to some repairs and
maintenance. BPC did not technically fire Peñaranda but
due to the latter’s insistence, BPC gave him his
separation benefits.
BPC subsequently reopened but Peñaranda did not
reapply.
Peñaranda now claims that BPC still needed to pay him
his overtime pays and premium pays.
The NLRC ruled that Peñaranda is a managerial
employee and as such he is not entitled to overtime and
premium pay as stated under the Labor Code.
Peñaranda appealed. He said that he is not a
managerial employee.
ISSUE: Whether or not Peñaranda is entitled to overtime
and premium pay.
HELD: No. Though there is an error made by the NLRC
in finding Peñaranda as a managerial employee, the
Supreme Court still ruled that Peñaranda is not entitled
to overtime and premium pay.
Peñaranda is not a managerial employee. Under the
Implementing Rules and Regulations of the Labor Code,
managerial employees are those that perform the
following:
“(1) Their primary duty consists of the management of
the establishment in which they are employed or of a
department or subdivision thereof;
“(2) They customarily and regularly direct the work of two
or more employees therein;
“(3) They have the authority to hire or fire other
employees of lower rank; or their suggestions and
recommendations as to the hiring and firing and as to
the promotion or any other change of status of other
employees are given particular weight.”
Peñaranda does not meet the above requirements.
Peñaranda is instead considered as a managerial staff.
Under the Implementing Rules and Regulations of the
Labor Code, managerial staffs are those that perform the
following:
“(1) The primary duty consists of the performance of
work directly related to management policies of the
employer;
“(2) Customarily and regularly exercise discretion and
independent judgment;
“(3) (i) Regularly and directly assist a proprietor or a
managerial employee whose primary duty consists of the
management of the establishment in which he is
employed or subdivision thereof; or (ii) execute under
general supervision work along specialized or technical
lines requiring special training, experience, or
knowledge; or (iii) execute under general supervision
special assignments and tasks; and
“(4) who do not devote more than 20 percent of their
hours worked in a workweek to activities which are not
directly and closely related to the performance of the
work described in paragraphs (1), (2), and (3) above.”
Peñaranda’s function as a shift engineer illustrates that
he was a member of the managerial staff. His duties and
responsibilities conform to the definition of a member of
a managerial staff under the Implementing Rules.
Peñaranda supervised the engineering section of the
steam plant boiler. His work involved overseeing the
operation of the machines and the performance of the
workers in the engineering section. This work
necessarily required the use of discretion and
independent judgment to ensure the proper functioning
of the steam plant boiler.
Further, Peñaranda in his position paper admitted that
he was a supervisor for BPC. As supervisor, petitioner is
deemed a member of the managerial staff.
3. Field Personnel, Art. 82, Rule I, Sec. 2(f)
Article 82. Coverage. The provisions of this Title shall
apply to employees in all establishments and
undertakings whether for profit or not, but not to
government employees, managerial employees, field
personnel, members of the family of the employer who
are dependent on him for support, domestic helpers,
persons in the personal service of another, and workers
who are paid by results as determined by the Secretary
of Labor in appropriate regulations.
As used herein, "managerial employees" refer to those
whose primary duty consists of the management of the
establishment in which they are employed or of a
department or subdivision thereof, and to other officers
or members of the managerial staff.
"Field personnel" shall refer to non-agricultural
employees who regularly perform their duties away
from the principal place of business or branch office
of the employer and whose actual hours of work in
the field cannot be determined with reasonable
certainty.
Rule I, Sec. 2 (f)
SECTION 2. Exemption. — The provisions of this Rule
shall not apply to the following persons if they qualify for
exemption under the conditions set forth herein:
(f) Non-agricultural field personnel if they regularly
perform their duties away from the principal or branch
office or place of business of the employer and whose
actual hours of work in the field cannot be determined
with reasonable certainty.
• Merdicar Fishing Corp. v. NLRC, 297 SCRA 440 (1998)
FACTS:
-This case originated from a complaint filed by Agao
against petitioner for illegal dismissal, violation of P.D.
No. 851, and non-payment of five days SIL.
-Private respondent had been employed as a “bodegero”
or ship’s quartermaster. He complained that he had
been constructively dismissed by petitioner when the
latter refused him assignments aboard its boats.
-Private respondent alleged that he had been sick and
thus allowed to go on leave without pay for one month
but that when he reported to work at the end of such
period with a health clearance, he was told to come back
another time as he could not be reinstated immediately. -
-Thereafter, petitioner refused to give him work.
-Petitioner, on the other hand, alleged that it was private
respondent who actually abandoned his work. It claimed
that the latter failed to report for work after his leave had
expired and was, in fact, absent without leave for three
months .
-Labor Arbiter Amansec rendered a decision ordering
respondents to reinstate complainant with backwages,
pay him his 13th month pay and incentive leave pay.
-Petitioner appealed to the NLRC which dismissed the
appeal for lack of merit. The NLRC dismissed
petitioner’s claim that it cannot be held liable for SIL pay
by fishermen in its employ as the latter supposedly are
“field personnel” and thus not entitled to such pay under
the Labor Code.
ISSUE: is Agao a field employee, hence not entitled to
SIL pay?
HELD: WHEREFORE, the petition is DISMISSED
NO; Agao is NOT a field employee, he is entitled to SIL
pay
Art. 82 of the Labor Code provides:
Art. 82. Coverage. — The provisions of this Title
[Working Conditions and Rest Periods] shall apply to
employees in all establishments and undertakings
whether for profit or not, but not to government
employees, field personnel, members of the family of the
employer who are dependent on him for support,
domestic helpers, persons in the personal service of
another, and workers who are paid by results as
determined by the Secretary of Labor in appropriate
regulations.
xxx xxx xxx
“Field personnel” shall refer to non-agricultural
employees who regularly perform their duties away from
the principal place of business or branch office of the
employer and whose actual hours of work in the field
cannot be determined with reasonable certainty.
Petitioner argues essentially that since the work of
private respondent is performed away from its principal
place of business, it has no way of verifying his actual
hours of work on the vessel. It contends that private
respondent and other fishermen in its employ should be
classified as “field personnel” who have no statutory right
to SIL pay.
In the case of Union of Pilipro Employees (UFE) v. Vicar,
this Court explained the meaning of the phrase “whose
actual hours of work in the field cannot be determined
with reasonable certainty” in Art. 82 of the Labor Code,
as follows:
Moreover, the requirement that “actual hours of work in
the field cannot be determined with reasonable certainty”
must be read in conjunction with Rule IV, Book III of the
Implementing Rules which provides:
Rule IV Holidays with Pay
Sec. 1. Coverage — This rule shall apply to all
employees except:
xxx xxx xxx
(e) Field personnel and other employees whose time
and performance is unsupervised by the employer . . .
(Emphasis supplied).
Petitioner in said case is contending that such rule
added another element not found in the law. Contrary to
the contention of the petitioner, the Court finds that the
aforementioned rule did not add another element to the
Labor Code definition of field personnel. The clause
“whose time and performance is unsupervised by the
employer” did not amplify but merely interpreted and
expounded the clause “whose actual hours of work in
the field cannot be determined with reasonable
certainty.” The former clause is still within the scope and
purview of Article 82 which defines field personnel.
Hence, in deciding whether or not an employee’s actual
working hours in the field can be determined with
reasonable certainty, query must be made as to whether
or not such employee’s time and performance is
constantly supervised by the employer
In the case at bar, during the entire course of their
fishing voyage, fishermen employed by petitioner have
no choice but to remain on board its vessel. Although
they perform non-agricultural work away from petitioner’s
business offices, the fact remains that throughout the
duration of their work they are under the effective control
and supervision of petitioner through the vessel’s patron
or master as the NLRC correctly held.
• Auto Bus Transports Systems, Inc. v. Bautista, 458
SCRA 578 (2005)
Facts:
-Bautista, a driver-conductor of the Autobus transport,
was dismissed after his failure to pay an amount
demanded by the company for the repair of the bus
damaged in an accident caused by him. He receives
compensation by way of commission per travel.
-Bautista complained for illegal dismissal with money
claims for nonpayment of 13th month pay and service
incentive leave pay against Autobus.
-Auto Bus’ Defenses:
1. Bautista’s employment was replete with offenses
involving reckless imprudence, gross negligence, and
dishonesty supported with copies of letters, memos,
irregularity reports, warrants of arrest;
2. In the exercise of management prerogative, Bautista
was terminated only after providing for an opportunity to
explain:
-Labor Arbiter dismissed the complaint however
awarded Bautista his 13thmonth pay and service
incentive leave pay.
-Auto Bus appealed. NLRC deleted the 13th month pay
award. In the CA, NLRC’s decision was affirmed.
Issue: Whether or not respondent is entitled to service
incentive leave pay.
Held: Yes.
Under Article 95 of the Labor Code, every employee who
has rendered at least one year or service shall be
entitled to a yearly service incentive leave of five days
with pay. In Section 1, Rule V, Book III of the
Implementing Rules and Regulations of the Labor Code,
the rule shall apply to all, except…
(d) Field personnel and other employees whose
performance is unsupervised by the employer including
those who are engaged on task or contract basis, purely
commission basis, or those who are paid in a fixed
amount for performing work irrespective of the time
consumed in the performance thereof.
Petitioner’s contention that Bautista is not entitled to
service incentive leave because he is paid on a purely
commission basis must fail. The phrase following “Field
personnel” should not be construed as a separate
classification of employees but is merely an amplification
of the definition of field personnel defined under the
Labor Code.
Bautista neither falls under the category field personnel.
As defined, field personnel are those whose
performance of service is unsupervised by the employer,
the workplace being away from the principal place of
business and whose hours and days of work cannot be
determined with reasonable certainty. Bus companies
have ways of determining the hours worked by their
drivers and conductors with reasonable certainty.
The courts have taken judicial notice of the following:
1. Along the routes traveled, there are inspectors
assigned at strategic places who board the bus to
inspect the passengers, the punched tickets, and the
conductor’s reports;
2. There is a mandatory once-a week car barn or shop
day, where the bus is regularly checked;
3. The drivers and conductors must be at specified place
and time, as they observe prompt departure and arrival;
4. At every depot, there is always a dispatcher whose
function is to see to it that the bus and crew leaves and
arrives at the estimated proper time.
By these reasons, drivers and conductors are therefore
under constant supervision while in the performance of
their work.
4. Dependent Family Members
5. Domestic Helpers, Art. 141, 145; Rule I, Sec. 2 (d)
Article 141. Coverage. This Chapter shall apply to all
persons rendering services in households for
compensation.
Article 145. Assignment to non-household work.
No househelper shall be assigned to work in a
commercial, industrial or agricultural enterprise at a
wage or salary rate lower than that provided for
agricultural or non-agricultural workers as prescribed
herein.
"Domestic or household service" shall mean service in
the employer’s home which is usually necessary or
desirable for the maintenance and enjoyment thereof
and includes ministering to the personal comfort and
convenience of the members of the employer’s
household, including services of family drivers.
Rule I, Sec. 2 (d)
SECTION 2. Exemption. — The provisions of this Rule
shall not apply to the following persons if they qualify for
exemption under the conditions set forth herein:
(d) Domestic servants and persons in the personal
service of another if they perform such services in the
employer's home which are usually necessary or
desirable for the maintenance and enjoyment thereof, or
minister to the personal comfort, convenience, or safety
of the employer as well as the members of his
employer's household.
6. Persons in the Personal Service of Another, Rule
I, Sec. 2 (d)
Rule I, Sec. 2 (d)
SECTION 2. Exemption. — The provisions of this Rule
shall not apply to the following persons if they qualify for
exemption under the conditions set forth herein:
(d) Domestic servants and persons in the personal
service of another if they perform such services in the
employer's home which are usually necessary or
desirable for the maintenance and enjoyment thereof, or
minister to the personal comfort, convenience, or safety
of the employer as well as the members of his
employer's household.
7. Piece Workers, Rule I, Sec. 2 (e)
SECTION 2. Exemption. — The provisions of this Rule
shall not apply to the following persons if they qualify for
exemption under the conditions set forth herein:
(e) Workers who are paid by results, including those who
are paid on piece-work, "takay," "pakiao" or task basis,
and other non-time work if their output rates are in
accordance with the standards prescribed under Section
8, Rule VII, Book Three of these regulations, or where
such rates have been fixed by the Secretary of Labor
and Employment in accordance with the aforesaid
Section.
• Labor Congress v. NLRC, 290 SCRA 509 (1998)
FACTS:
- Private petitioners, represented by Labor Congress of
the Philippines (LCP), are rank-and-file employees of
respondent Empire Food Products.
- Petitioners filed a complaint against Empire, praying for
money claims and direct certification of Labor Congress
as their bargaining representative.
- Oct. 1990 - LCP and Empire entered into a
Memorandum of Agreement (MOA), providing:
A) LCP is recognized as the sole bargaining
representative of the employees.
B) To adjust the wages of the employees.
C) Deduct Union dues to the payroll
- Nov. 9, 1990 - LCP submitted to Empire a proposal for
collective bargaining.
- Jan. 29, 1991 - LCP filed a complaint against Empire,
alleging:
A) Unfair labor practices
( illegal lockout, dismissal)
B) Union busting
C) Violation of MOA
D) Underpayment of wages
E) Other damages
- The Labor Arbiter ruled IN FAVOR of Empire, but
ordered the reinstatement of the employees who
resigned and those who signed quitclaims and releases.
- Upon appeal, NLRC remanded the case back to the
Labor Arbiter
- The Labor Arbiter, and AFFIRMED by NLRC, ruled
that:
A) no prima facie evidence of existence of unfair labor
practice, etc.
B) Employees were piece-rate workers, hence not
entitles to benefits
C) Not underpaid
ISSUE/S:
1) Whether the petitioners who are piece-rate workers
are entitled to benefits
2) Whether they are considered regular employees
HELD: They are piece-rate workers; they are entitled to
benefits; they are regular employees
RATIO: They are piece-rate workers. They are entitled to
full backwages, however, the amount is indeterminate,
hence, there is need to determine the varying degrees of
production and days worked by each worker.
They are REGULAR EMPLOYESS although they are
paid in piece-rate basis, based on the following factors:
(a) their job is necessary and desirable in the usual
business of Empire,
(b) petitioners work for them throughout the year, their
employment NOT HAVING BEEN DEPENDENT on a
specific season, and
(c) the length of time they worked for Empire.
Thus, “while petitioners mode of compensation was on a
‘per piece basis’, the status and nature of their
employment was that of regular employees.”
PETITION: GRANTED
c. Normal Hours of Work, Art. 83 Omnibus Rules, Rule I, Sec. 3 (b)
Article 83. Normal hours of work. The normal hours of SECTION 3. Hours worked. — The following shall be
work of any employee shall not exceed eight (8) hours a considered as compensable hours worked:
day. (b) All time during which an employee is suffered or
permitted to work.cralaw
Health personnel in cities and municipalities with a
population of at least one million (1,000,000) or in
hospitals and clinics with a bed capacity of at least one
hundred (100) shall hold regular office hours for eight (8)
hours a day, for five (5) days a week, exclusive of time
for meals, except where the exigencies of the service
require that such personnel work for six (6) days or forty-
eight (48) hours, in which case, they shall be entitled to
an additional compensation of at least thirty percent
(30%) of their regular wage for work on the sixth day.
For purposes of this Article, "health personnel" shall
include resident physicians, nurses, nutritionists,
dietitians, pharmacists, social workers, laboratory
technicians, paramedical technicians, psychologists,
midwives, attendants and all other hospital or clinic
personnel.

d. Compensable Hours of Work – In General

1. On Duty, Art. 84 (a); Rule I, Sec. 3 (a), Sec. 4(a)

Article 84. Hours worked. Hours worked shall include

(a) all time during which an employee is required to
be on duty or to be at a prescribed workplace; and
(b) all time during which an employee is suffered or
permitted to work.
Rest periods of short duration during working hours shall
be counted as hours worked.

Omnibus Rules, Rule I, Sec. 3 (a), Sec. 4(a)

SECTION 3. Hours worked. — The following shall be
considered as compensable hours worked:
(a) All time during which an employee is required to be
on duty or to be at the employer's premises or to be at a
prescribed work place; and

SECTION 4. Principles in determining hours worked. —

The following general principles shall govern in
determining whether the time spent by an employee is
considered hours worked for purposes of this Rule:
(a) All hours are hours worked which the employee is
required to give his employer, regardless of whether or
not such hours are spent in productive labor or involve
physical or mental exertion.

2. At Work, Art. 84 (b); Rule I, Sec. 3 (b)

Article 84. Hours worked. Hours worked shall include
(a) all time during which an employee is required to be
on duty or to be at a prescribed workplace; and
(b) all time during which an employee is suffered or
permitted to work.
Rest periods of short duration during working hours shall
be counted as hours worked.