CH 1: NATIONAL POLICIES & ADMINISTRATIVE MACHINERY FOR THEIR IMPLEMENTATION
Art 43-56 TECHNICAL EDUCATION AND SKILLS DEVT AUTHORITY (TESDA) - replaced the National Manpower & Youth Council under RA 7796
Statement of Goals & Objectives
1. To attain international competitiveness;
2. To meet demands for quality middle-level manpower;
3. To disseminate scientific & technical knowledge base;
4. To recognize & encourage the complementary roles of pub & private institutions; and
5. To inculcate desirable values.
Middle-level Manpower
1. Those who have acquired practical skills & knowledge through formal or non-formal educ & training equivalent to at least a secondary educ but preferably a post-secondary educ w/ a corresponding degree/diploma; or 2. Skilled workers who have become highly competent in their trade or craft
as attested by industry.
TITLE 2: TRAINING & EMPLOYMENT OF SPECIAL WORKERS CH1: TYPES OF SPECIAL WORKERS
1. Apprentice 2. Learner 3. Handicapped
Art 57 STATEMENT OF OBJECTIVES FOR THE TRAINING & EENT OF SPECIAL WORKERS
1. To help meet the demand of the economy for trained manpower;
2. To establish a national apprenticeship program; and
3. To establish apprenticeship standards for the protection of apprentices.
Art 58: DEFINITION OF TERMS
Apprenticeship – practical training on the job supplemented by related theoretical instruction, for a highly skilled or technical instruction for a period of 3-6 months
Apprentice – a person undergoing training for an approved apprenticeable
occupation during an established period assured by an apprenticeship agreemt Apprenticeable Occupation – an occupation officially endorsed by a tripartite body and approved for apprenticeship by the TESDA (no longer the Sec of Labor) Apprenticeship Agreement – an EENT contract wherein the EER binds himself to
train the apprentice and the apprentice in turn accepts the terms of training On-the-job training – practical work experience through actual participation in
productive activities given to or acquired by an apprentice
Highly technical industries – a trade, business, enterprise, industry or other activity, w/c is engaged in the application of advanced technology
Art 59: QUALIFICATIONS OF APPRENTICES
1. At least 15 y/o, provided that if below 18 y/o, he shall not be eligible for hazardous occupation;
2. Physically fit for the occupation in w/c he desires to be trained;
3. Possess vocational aptitude and capacity for the particular occupation as established through appropriate tests; and
4. Possess the ability to comprehend and follow oral & written instructions.
Note: Total physical fitness is not required of the apprentice-applicant unless it is essential to the expeditious and effective learning of the occupation.
Only physical defects w/c constitute real impediments to effective perf as determined by the plant apprenticeship committee may dispqualify an applicant
Art 60: EMPLOYMENT OF APPRENTICES Qualifications to be met by EER:
1. Only EERS in highly technical industries may employ apprentices; and 2. Only in apprenticeable occupations as determined by the TESDA.
Requisites for a Valid apprenticeship 1. Qualifications of apprentice are met;
2. Apprentice earns not less than 75% of the prescribed minimum salary;
3. Apprenticeship agreemt duly executed & signed;
4. Apprenticeship program must be approved by the TESDA; otherwise the apprentice shall be deemed a regular EE;
5. Period of apprenticeship shall not exceed 6 months
Note: at the termination of the apprenticeship, the EER is not required to continue the EENT
There is no valid apprenticeship if:
1. The agreemt submitted to the TESDA was made long after the workers started undergoing apprenticeship;
2. The work performed by the apprenticeship was different from those allegedly approved by TESDA;
3. The workers undergoing apprenticeship are already skilled workers;
4. The workers were required to continue undergoing apprenticeship beyond 6mos.
Art 61: CONTENTS OF APPRENTICESHIP AGREEMENT 1. Full name & address of the contracting parties;
2. Date of birth of the apprentice;
3. Name of trade, occupation or job in w/c the apprentice shall be trained and the dates on w/c such training will begin and will proximately end;
4. Approp number of hrs of OJT w/ compulsory theoretical instruction w/c the apprentice shall undergo during his training;
5. Schedule of the work processes of the trade/occupation in w/c the apprentice shall be trained and the approx. time to be spent on the job in each process;
6. Graduated scale of wages to be paid to the apprentice;
7. Probationary pd of the apprentice during wc either party ay summarily terminate their agreemt; and
8. A clause that if the EER is unable to fulfill his training oblig, he may transfer the agreemt, w/ the consent of the apprentice to any other EER who is willing to assume such oblig.
Working Hrs – shall not exceed the max number of hrs prescribed by law, if any, for a worker of his age and sex. Time spent in compulsorily theoretical
instruction shall be considered hrs of work. An apprentice not otherwise barred by law from working 8hrs may be requisted by his EER to work overtime and paid accordingly.
Art 62: SIGNING OF APPRENTICESHIP AGREEMENT Who signs:
1. The apprentice, if of age, otherwise, by his parent or guardian, or in the latter’s absence, by an authorized rep of TESDA; and
2. EER or his duly authorized rep
Art 63: VENUE OF APPRENTICESHIP PROGRAM
1. Within the sponsoring firm, establishment or entity; or
2. Within a DOLE training center or other public training institutions; or 3. Initial training in trade fundamentals in a training center or other
institutions w/ subsequent actual work participation w/in the sponsoring firm or entity during the final stage of training.
Art 64: SPONSORING OF APPRENTICESHIP PROGRAMS BY:
1. The plant, shop or premises of the EER or firm concerned if the apprenticeship program is organized by an indiv EER or firm;
2. The premises of one or several firms designated for the purpose by the organizer of the program if such organizer is an assoc of EERS, civic group and the like; and
3. DOLE Training Center or other public training institutions w/ w/c the TESDA has made approp arrangements.
Art 65-67: VIOLATION OF APPRENTICESHIP AGREEMENT
Art 65: Investigation of violation of apprenticeship agreement
1. Either party to an agreemt may terminate the same after the probationary pd only for a valid cause.
2. Action may be initiated upon complaint of any interested person or upon DOLE’s own initiative.
Valid Cause to terminate agreement 1. By the EER:
a. Habitual absenteeism in OJT and related theoretical instructions;
b. Willful disobedience of company rules or insubordination to lawful order of a superior;
c. Poor physical condition, permanent disability or prolonged illness w/c incapacitates the apprentice from working;
d. Theft or malicious destruction of company property and/or equipment
e. Poor efficiency or perf on the job or in the classroom for a prolonged period despite warnings duly given to the apprentice;
and
f. Engaging in violence or other forms of gross misconduct inside the EER’s premises
2. By the apprentice:
a. Substandard or deleterious working conditions w/in the EER’s premises;
b. Repeated violations by the EER of the terms of the apprenticeship agreemt;
c. Cruel or inhumane treatment by the EER or his subordinates;
d. Personal problem s/c in the opinion of the apprentice shall prevent him from a satisfactory perf of his job; and
e. Bad health or continuing illness.
Art 66: Appeal
The decision of an authorized agency of the DOLE may be appealed to the Sec of Labor w/in 5 days form rcpt of the adverse decision.
The decision of the Sec of Labor shall be final & executor.
Art 67 Exhaustion of Administrative Remedies
1. The exhaustion of administrative remedies is a condition precedent to the institution of action.
2. The plant apprenticeship committee shall have initial responsibility for settling differences arising out of apprenticeship agreements.
Art 68: APTITUDE TESTS
ANTONIO M. SERRANO VS. GALLANT MARITIME SERVICES, INC.
FACTS:
Petitioner Antonio Serrano was hired by respondents Gallant Maritime Services, Inc. and Marlow Navigation Co., Inc., under a POEA-approved contract of employment for 12 months, as Chief Officer, with the basic monthly salary of US$1,400, plus $700/month overtime pay, and 7 days paid vacation leave per month.
On the date of his departure, Serrano was constrained to accept a downgraded employment contract upon the assurance and representation of respondents that he would be Chief Officer by the end of April 1998.
Respondents did not deliver on their promise to make Serrano Chief Officer.
Hence, Serrano refused to stay on as second Officer and was repatriated to the Philippines, serving only two months and 7 days, leaving an unexpired portion of nine months and twenty-three days.
Upon complaint filed by Serrano before the Labor Arbiter (LA), the dismissal was declared illegal.
On appeal, the NLRC modified the LA decision based on the provision of RA 8042.
Serrano filed a Motion for Partial Reconsideration, but this time he questioned the constitutionality of the last clause in the 5th paragraph of Section 10 of RA 8042.
ISSUES:
1. Whether or not the subject clause violates Section 10, Article III of the Constitution on non-impairment of contracts;
2. Whether or not the subject clause violate Section 1, Article III of the
Constitution, and Section 18, Article II and Section 3, Article XIII on labor as a protected sector.
HELD:
On the first issue.
The answer is in the negative. Petitioner’s claim that the subject clause unduly interferes with the stipulations in his contract on the term of his employment and the fixed salary package he will receive is not tenable.
The subject clause may not be declared unconstitutional on the ground that it impinges on the impairment clause, for the law was enacted in the exercise of the police power of the State to regulate a business, profession or calling, particularly the recruitment and deployment of OFWs, with the noble end in view of ensuring respect for the dignity and well-being of OFWs wherever they may be employed.
On the second issue.
The answer is in the affirmative.
To Filipino workers, the rights guaranteed under the foregoing constitutional provisions translate to economic security and parity.
Upon cursory reading, the subject clause appears facially neutral, for it applies to all OFWs. However, a closer examination reveals that the subject clause has a discriminatory intent against, and an invidious impact on, OFWs at two levels:
First, OFWs with employment contracts of less than one year vis-à-vis OFWs with employment contracts of one year or more;
Second, among OFWs with employment contracts of more than one year; and Third, OFWs vis-à-vis local workers with fixed-period employment;
The subject clause singles out one classification of OFWs and burdens it with a peculiar disadvantage.
Thus, the subject clause in the 5th paragraph of Section 10 of R.A. No. 8042 is violative of the right of petitioner and other OFWs to equal protection.
The subject clause ―or for three months for every year of the unexpired term, whichever is less‖ in the 5th paragraph of Section 10 of Republic Act No. 8042 is DECLARED UNCONSTITUTIONAL.
People of the Philippines (petitioner) v Jamilosa (repondent) GR No. 169076 January 23, 2007
Callejo, Sr.,:
FACTS:
Sometime in the months of January to February, 1996, representing to have the capacity, authority or license to contract, enlist and deploy or transport workers for overseas employment, did then and there, willfully, unlawfully and criminally recruit, contract and promise to deploy, for a fee the herein complainants, namely, Imelda D. Bamba, Geraldine M. Lagman and Alma E.
Singh, for work or employment in Los Angeles, California, U.S.A. in Nursing Home and Care Center.
Prosecution presented three witnesses, namely Imelda Bamba, Geraldine Lagman and Alma Singh.
According to Bamba, she met the appellant on a bus. She was on her way to SM North Edsa where she was a company nurse. Appellant introduced himself as a recruiter of workers for employment abroad. Appellant told her he could help her get employed as nurse. Appellant gave his pager number and instructed her to contact him is she’s interested. Sometime in January 1996, appellant fetched her at her office, went to her house and gave him the necessary documents and handed to appellant the amount of US$300.00 and the latter showed her a photocopy of her supposed US visa. However, the appellant did not issue a receipt for the said money. Thereafter, appellant told her to resign from her work because she was booked with Northwest Airlines and to leave for USA on Feb, 1996. On the scheduled departure, appellant failed to show up. Instead, called and informed her that he failed to give the passport and US visa because she had to go to province because his wife died. Trying to contact him to the supposed residence and hotel where he temporarily resided, but to no avail.
Winess Lagman testified that she is a registered nurse. In January 1996, she went to SM North Edsa to visit her cousin Bamba. At that time Bamba informed her that she was going to meet to appellant. Bamba invited Lagman to go with her. The appellant convinced them of his ability to send them abroad.
On their next meeting, Lagman handed to the latter the necessary documents and an amount of US$300.00 and 2 bottles of black label without any receipt issued by the appellant. Four days after their meeting, a telephone company called her because her number was appearing in appellants cell phone documents. The caller is trying to locate him as he was a swindler. She became suspicious and told Bamba about the matter. One week before her scheduled flight, appellant told her he could not meet them because his mother passed away.
Lastly, Alma Singh, who is also a registered nurse, declared that she first met the appellant at SM North Edsa when Imelda Bamba introduced the latter to her. Appellant told her that he is an undercover agent of FBI and he could fix her US visa. On their next meeting, she gave all the pertinent documents.
Thereafter, she gave P10,000 to the appellant covering half price of her plane ticket. They paged the appellant through his beeper to set up another appointment but the appellant avoided them as he had many things to do.
The accused Jamilosa testified on direct examination that he never told Bamba that he could get her a job in USA, the truth being that she wanted to
leave SM as company nurse because she was having a problem thereat. Bamba called him several times, seeking advices from him. He started courting Bamba and went out dating until latter became his girlfriend. He met Lagman and Singh thru Bamba. As complainants seeking advice on how to apply for jobs abroad, lest he be charged as a recruiter, he made Bamba, Lagman and Singh sign separate certifications, all to effect that he never recruited them and no money was involved. Bamba filed an illegal recruitment case against him because they quarreled and separated.
RTC rendered judgment finding accused guilty beyond reasonable doubt of illegal recruitment in large scale.
ISSUE: Illegal Recruitment in a large scale?
HELD: “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.
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. 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.
To prove illegal recruitment in large scale, the prosecution is burdened to prove three (3) essential elements, to wit: (1) the person charged undertook a recruitment activity under Article 13(b) or any prohibited practice under Article 34 of the Labor Code; (2) accused did not have the license or the authority to lawfully engage in the recruitment and placement of workers; and (3) accused committed the same against three or more persons individually or as a group.
As gleaned from the collective testimonies of the complaining witnesses which the trial court and the appellate court found to be credible and deserving of full probative weight, the prosecution mustered the requisite quantum of evidence to prove the guilt of accused beyond reasonable doubt for the crime charged.
Indeed, the findings of the trial court, affirmed on appeal by the CA, are
conclusive on this Court absent evidence that the tribunals ignored, misunderstood, or misapplied substantial fact or other circumstance.
The failure of the prosecution to adduce in evidence any receipt or document signed by appellant where he acknowledged to have received money and liquor does not free him from criminal liability. Even in the absence of money or other valuables given as consideration for the "services" of appellant, the latter is considered as being engaged in recruitment activities.
It can be gleaned from the language of Article 13(b) of the Labor Code that the act of recruitment may be for profit or not. It is sufficient that the accused promises or offers for a fee employment to warrant conviction for illegal recruit