CLAUDIO S. YAP, Petitioner, vs.
THENAMARIS SHIP'S year of the unexpired term because there is no full year of
MANAGEMENT and INTERMARE MARITIME
AGENCIES, INC., Respondents. G.R. No. 179532, May
30, 2011
Facts: Claudio S. Yap was employed as electrician of the
vessel, M/T SEASCOUT on 14 August 2001 by Intermare
Maritime Agencies, Inc. in behalf of its principal, Vulture
Shipping Limited. for a duration of 12 months. On 23
August 2001, Yap boarded M/T SEASCOUT and
commenced his job as electrician. However, on or about
08 November 2001, the vessel was sold. Yap, along with
the other crewmembers, was informed by the Master of
their vessel that the same was sold and will be scrapped.
Yap received his seniority bonus, vacation bonus, extra
bonus along with the scrapping bonus. However, with
respect to the payment of his wage, he refused to accept
the payment of one-month basic wage. He insisted that he
was entitled to the payment of the unexpired portion of
his contract since he was illegally dismissed from
employment. He alleged that he opted for immediate
transfer but none was made.
The Labor Arbiter
Thus, Claudio S. Yap (petitioner) filed a complaint for
Illegal Dismissal with Damages and Attorney’s Fees
before the Labor Arbiter (LA). On July 26, 2004, the LA
rendered a decision in favor of petitioner, finding the
latter to have been constructively and illegally dismissed
by respondents. LA opined that since the unexpired portion
of petitioner’s contract was less than one year, petitioner
was entitled to his salaries for the unexpired portion of his
contract for a period of nine months.
The NLRC
Aggrieved, respondents sought recourse from the NLRC.
The NLRC affirmed the LA’s findings that petitioner was
indeed constructively and illegally dismissed. However,
the NLRC held that instead of an award of salaries
corresponding to nine months, petitioner was only
entitled to salaries for three months as provided under
Section 108 of Republic Act (R.A.) No. 8042,9 as enunciated
in our ruling in Marsaman Manning Agency, Inc. v. National
Labor Relations Commission.
Respondents filed a Motion for Partial Reconsideration.
Finding merit in petitioner’s arguments, the NLRC
reversed its earlier Decision, holding that "there can be no
choice to grant only three (3) months salary for every
unexpired term which this can be applied."
The Court of Appeals
The CA affirmed the findings and ruling of the LA and the
NLRC that petitioner was constructively and illegally
dismissed. However, the CA ruled that the NLRC erred in
sustaining the LA’s interpretation of Section 10 of R.A. No.
8042. In this regard, the CA relied on the clause "or for
three months for every year of the unexpired term,
whichever is less" provided in the 5th paragraph of Section
10 of R.A. No. 8042.
Issue: Whether or not Section 10 of R.A. [No.] 8042, to the
extent that it affords an illegally dismissed migrant
worker the lesser benefit of – "salaries for [the] unexpired
portion of his employment contract or for three (3)
months for every year of the unexpired term, whichever
is less" – is unconstitutional. –YES
Whether or not the Court of Appeals gravely erred in
granting petitioner only three (3) months backwages
when his unexpired term of 9 months is far short of the
"every year of the unexpired term" threshold. -YES
The Supreme Court
In the meantime, while this case was pending before this
Court, we declared as unconstitutional the clause "or for
three months for every year of the unexpired term,
whichever is less" provided in the 5th paragraph of
Section 10 of R.A. No. 8042 in the case of Serrano v.
Gallant Maritime Services, Inc. on March 24, 2009. This
case should not be different from Serrano.
The said provision of law has long been a source of abuse
by callous employers against migrant workers; and that
said provision violates the equal protection clause under
the Constitution because, while illegally dismissed local
workers are guaranteed under the Labor Code of
reinstatement with full backwages computed from the
time compensation was withheld from them up to their
actual reinstatement. It imposes a 3-month cap on the
claim of OFWs with an unexpired portion of one year or
more in their contracts, but none on the claims of other
OFWs or local workers with fixed-term employment.
Respondents, aware of our ruling in Serrano, aver that
our pronouncement of unconstitutionality should not
apply in this case because Section 10 of R.A. No. 8042 is a
substantive law that deals with the rights and obligations
of the parties in case of Illegal Dismissal of a migrant
worker and is not merely procedural in character. Thus,
pursuant to the Civil Code, there should be no retroactive
application of the law in this case.
As a general rule, an unconstitutional act 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 doctrine of operative fact
serves as an exception to the aforementioned general
rule.
The doctrine of operative fact, as an exception to the
general rule, only applies as a matter of equity and fair
play. It nullifies the effects of an unconstitutional law by
recognizing that the existence of a statute prior to a
determination of unconstitutionality is an operative fact
and may have consequences which cannot always be
ignored. The past cannot always be erased by a new
judicial declaration. The doctrine is applicable when a
declaration of unconstitutionality will impose an undue
burden on those who have relied on the invalid law.
Following Serrano, we hold that this case should not be
included in the aforementioned exception. To rule
otherwise would be iniquitous to petitioner and other
OFWs, and would, in effect, send a wrong signal that
principals/employers and recruitment/manning
agencies may violate an OFW’s security of tenure which
an employment contract embodies and actually profit
from such violation based on an unconstitutional
provision of law.
Invoking Serrano, respondents claim that the tanker
allowance should be excluded from the definition of the
term "salary."
Fair play, justice, and due process dictate that this Court
cannot now, for the first time on appeal, pass upon this
question. Matters not taken up below cannot be raised for
the first time on appeal. A close perusal of the contract
reveals that the tanker allowance of US$130.00 was not
categorized as a bonus but was rather encapsulated in the
basic salary clause, hence, forming part of the basic salary
of petitioner.
A final note.
We ought to be reminded of the plight and sacrifices of
our OFWs. In Olarte v. Nayona, this Court held that:
Our overseas workers belong to a disadvantaged class.
Most of them come from the poorest sector of our society.
Their profile shows they live in suffocating slums, trapped
in an environment of crimes. Hardly literate and in ill
health, their only hope lies in jobs they find with difficulty
in our country. Their unfortunate circumstance makes
them easy prey to avaricious employers. They will climb
mountains, cross the seas, endure slave treatment in
foreign lands just to survive. Out of despondence, they will
work under sub-human conditions and accept salaries
below the minimum. The least we can do is to protect them
with our laws.
WHEREFORE, the Petition is GRANTED.
Eastern Mediterranean Maritime Ltd. and Agemar
Manning Agency, Inc. vs Estanislao Surio, et al
EASTERN MEDITERRANEAN MARITIME LTD., Et. Al., VS.
ESTANISLAO SURIO, Et. Al.,
GR No. 154213
Facts:
MT Seadance is a vessel owned by Eastern Mediterranean
Maritime Ltd and manned and operated by Agemar
Manning Agency. The same was not in a good working
condition and the payment of wages, remittance of
allotments, as well as the payment for extra work and
extra overtime work were delayed. As MT Seadance
docked at a port in Sweden, representatives of
International Transport Federation boarded the same.
They have found out that wages of its crew members
were below the prevailing rates. As a result, they have
moved to increase the wages of the said crewmembers.
On Dec 23, 1993, the petitioners filed a complaint against
the crew members and claimed reimbursement for the
increase of wages received.
Issue:
Whether or not it is under the jurisdiction of NLRC to
review cases on appeal decided by POEA.
Held:
No, the NLRC has no jurisdiction to review an appeal case
decided by POEA. According to Section 28 (b) of the
Omnibus Rules and Regulations Implementing the
Migrant Workers and Overseas Filipinos Act of 1995, the
POEA shall exercise original and exclusive jurisdiction to
hear and decide disciplinary action cases and other
special cases, which are administrative in character,
involving employers, principals, contracting partners and
Filipino migrant workers. Since RA No 8042 has been
passed into a law after the filing of charges by the
petitioner to the respondents, the rule on retroactivity of
the laws shall be observed.

As a rule, all laws are prospective in application unless the

contrary is expressly provided, or unless the law is
procedural or curative in nature. Thus, such law stating
that the POEA has the jurisdiction to decide on
disciplinary cases shall be observed in the case at bar.
G.R. No. 197539 June 2, 2014
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs.
ANGELITA I. DAUD, HANELITA M. GALLEMIT and
RODERICK GALLEMIT y TOLENTINO, Accused.
RODERICK GALLEMIT y TOLENTINO, Accused-
appellant.
Criminal Law; Revised Penal Code; Illegal Recruitment in
Large Scale; Elements; To constitute illegal recruitment in
large scale, three elements must concur: (a) the offender
has no valid license or authority required by law to enable
him to lawfully engage in recruitment and placement of
workers; (b) the offender undertakes any of the activities
within the meaning of "recruitment and placement" under
Article13(b) of the Labor Code, or any of the prohibited
practices enumerated under Article 34 of the said Code
(now Section 6 of Republic Act No. 8042); and (c) the
offender committed the same against three or more
persons, individually or as a group.
Same; Same; Estafa; Elements: The elements of estafa are:
(a) that the accused defrauded another by abuse of
confidence or by means of deceit, and (b) that damage or
prejudice capable of pecuniary estimation is caused to the
offended party or third person.
LEONARDO-DE CASTRO, J.:
FACTS: Angelita I. Daud, Hanelita M. Gallemit, and
appellant Roderick Gallemit (Gallemit) were charged
with illegal recruitment in large scale and eight counts of
estafa committed by means of other similar deceit to
induce the eight private complainants to give and deliver
money in order for the latter to be able to work abroad.
The nine criminal cases were consolidated and tried
jointly. Only appellant Gallemit was apprehended while
his co-accused remained at large. Of all the private
complainants, only three testified against Gallemit.
It was alleged that Gallemit was in conspiracy
with his co-accused in engaging in illegal recruitment
activities. All of the accused specifically performed the
following acts: (1) owned and operated Green Pasture
Worldwide Tour and Consultancy Corporation; (2)
encouraged private complainants to apply for jobs abroad
with their agency, promising a salary of US$400.00, 150%
overtime pay, and free board and lodging; and (3) assured
private complainants that they could leave for Korea
within a short period after paying their placement fees.
For Gallemit’s pasrt, he was phisically present everytime
private complainants made payments to his co-accused
Daud. In addition, the three private complainants who
testified positively identified and pointed to Gallemit in
court as one of the persons who recruited them for work
abroad.
A Philippine Overseas Employment
Administration (POEA) Certification was offered as
evidence by the prosecution stating that Green Pasture
Worldwide Tour and Consultancy, with address at India
St., Don Bosco, Parañaque City, owned and operated by
the accused, is not licensed to recruit workers for
overseas employment.
After trial on the merits, the RTC found Gallemit
guilty of Illegal Recruitment in Large Scale and Estafa on
three (3) counts. Following the denial of his Motion for
Reconsideration by the RTC, Gallemit filed an appeal
before the Court of Appeals. Gallamit denied owning the
agency, undertaking any recruitment act or receiving any
amount from the complainants considering that his name
did not appear in the receipts. However, the Court of
Appeals affirmed Gallemit’s conviction. Hence, this
appeal.
ISSUES: (1) WHETHER OR NOT GALLEMIT IS GUILTY OF
LARGE-SCALE ILLEGAL RECRUITMENT
(2) WHETHER OR NOT GALLEMIT IS GUILTY OF
ESTAFA
HELD: (1) AFFIRMATIVE. To constitute illegal
recruitment in large scale, three elements must concur:
(a) the offender has no valid license or authority required
by law to enable him to lawfully engage in recruitment
and placement of workers; (b) the offender undertakes
any of the activities within the meaning of "recruitment
and placement" under Article13(b) of the Labor Code, or
any of the prohibited practices enumerated under Article
34 of the said Code (now Section 6 of Republic Act No.
8042); and (c) the offender committed the same against
three or more persons, individually or as a group.
Article 13(b) of the Labor Code defines
recruitment and placement as "any act of canvassing,
enlisting, contracting, transporting, utilizing, hiring or
procuring workers; and includes referrals, contract
services, promising or advertising for employment,
locally or abroad, whether for profit or not."
Section 6 of Republic Act No. 8042 defined illegal
recruitment as an “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
acts, whether committed by any person, whether a non-
licensee, non-holder, licensee or holder of authority: x x x
x (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. 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.

All the aforementioned elements of illegal

recruitment in large scale are present in the case at bar.
First, neither the agency "Green Pastures World Wide
Tours and Consultancy" nor Gallemit himself had a valid
license or authority to engage in the recruitment and
placement of workers. This was established by the POEA
certification stating that the said agency located in that
apartment was not licensed to recruit employees for
abroad. Second, despite not having such authority,
Gallemit, along with his co-accused, nevertheless engaged
in recruitment activities, offering and promising jobs to
private complainants and collecting from them various
amounts as placement fees. This is substantiated by the
respective testimonies of the three private complainants
who fell victim to their illegal activities. Lastly, the offense
is deemed committed in large scale since it was
committed against eight persons individually.

Contrary to Gallemit’s contention, it is not the

issuance or signing of receipts for the placement fees that
makes a case for illegal recruitment, but rather the
undertaking of recruitment activities without the
necessary license or authority. The absence of receipts to
evidence payment is not necessarily fatal to the
prosecution’s cause. A person charged with the illegal
recruitment may be convicted on the strength of the
testimony of the complainants, if found to be credible and
convincing. In this case, the complainants positively
identified Gallemit as one of those who lured them to part
with their money in exchange for promised jobs abroad.
The testimonies of the complainants on the matter are
affirmative in nature and sufficiently corroborative of
each other to be less than credible.

Gallemit is found guilty beyond reasonable doubt

of illegal recruitment in large scale, constituting economic
sabotage, as defined and penalized in Section 6, in
relation to Section 7(b), of Republic Act No. 8042.
SAMEER OVERSEAS PLACEMENT AGENCY, INC.,
Petitioner,
vs.
JOY C. CABILES, Respondent.
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.
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.

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
SUNACE INTERNATIONAL MANAGEMENT SERVICES,
INC.
VS
NATIONAL LABOR RELATIONS COMMISSION
480 SCRA 146 (2006)
There is an implied revocation of an agency relationship
when after the termination of the original employment
contract, the foreign principal directly negotiated with
the employee and entered into a new and separate
employment contract.
Respondent Divina Montehermozo is a domestic helper
deployed to Taiwan by Sunace International Management
Services (Sunace) under a 12-month contract. Such
employment was made with the assistance of Taiwanese
broker Edmund Wang. After the expiration of the
contract, Montehermozo continued her employment with
her Taiwanese employer for another 2 years.
When Montehermozo returned to the Philippines, she
filed a complaint against Sunace, Wang, and her
Taiwanese employer before the National Labor Relations
Commission (NLRC). She alleges that she was underpaid
and was jailed for three months in Taiwan. She further
alleges that the 2-year extension of her employment
contract was with the consent and knowledge of Sunace.
Sunace, on the other hand, denied all the allegations.
The Labor Arbiter ruled in favor of Montehermozo and
found Sunace liable thereof. The National Labor Relations
Commission and Court of Appeals affirmed the labor
arbiter’s decision. Hence, the filing of this appeal.
ISSUE:
Whether or not the 2-year extension of Montehermozo’s
employment was made with the knowledge and consent
of Sunace
HELD:
Contrary to the Court of Appeals finding, the alleged
continuous communication was with the Taiwanese
broker Wang, not with the foreign employer.
The finding of the Court of Appeals solely on the basis of
the telefax message written by Wang to Sunace, that
Sunace continually communicated with the foreign
“principal” (sic) and therefore was aware of and had
consented to the execution of the extension of the
contract is misplaced. The message does not provide
evidence that Sunace was privy to the new contract
executed after the expiration on February 1, 1998 of the
original contract. That Sunace and the Taiwanese broker
communicated regarding Montehermozo’s allegedly
withheld savings does not necessarily mean that Sunace
ratified the extension of the contract.
As can be seen from that letter communication, it was just
an information given to Sunace that Montehermozo had
taken already her savings from her foreign employer and
that no deduction was made on her salary. It contains
nothing about the extension or Sunace’s consent thereto.
Parenthetically, since the telefax message is dated
February 21, 2000, it is safe to assume that it was sent to
enlighten Sunace who had been directed, by Summons
issued on February 15, 2000, to appear on February 28,
2000 for a mandatory conference following
Montehermozo’s filing of the complaint on February 14,
2000.
Respecting the decision of Court of Appeals following as
agent of its foreign principal, [Sunace] cannot profess
ignorance of such an extension as obviously, the act of its
principal extending [Montehermozo’s] employment
contract necessarily bound it, it too is a misapplication, a
misapplication of the theory of imputed knowledge.
The theory of imputed knowledge ascribes the
knowledge of the agent, Sunace, to the principal,
employer, not the other way around. The knowledge of
the principal-foreign employer cannot, therefore, be
imputed to its agent Sunace.
There being no substantial proof that Sunace knew of and
consented to be bound under the 2-year employment
contract extension, it cannot be said to be privy thereto.
As such, it and its “owner” cannot be held solidarily liable
for any of Montehermozo’s claims arising from the 2-year
employment extension. As the New Civil Code provides,
Contracts take effect only between the parties, their
assigns, and heirs, except in case where the rights and
obligations arising from the contract are not
transmissible by their nature, or by stipulation or by
provision of law.
Furthermore, as Sunace correctly points out, there was an
implied revocation of its agency relationship with its
foreign principal when, after the termination of the
original employment contract, the foreign principal
directly negotiated with Montehermozo and entered into
a new and separate employment contract in Taiwan.
Article 1924 of the New Civil Code states that the agency
is revoked if the principal directly manages the business
entrusted to the agent, dealing directly with third
persons.