THE LABOR CODE OF THE PHILIPPINES Chapter 1
GENERAL PROVISIONS Art. 1-2
Labor Code – took effect on November 1, 1974; − charter of human rights and bill of
obligation for every working man
Labor legislation – statutes, regulations and jurisprudence governing the relations between capital and labor, by providing certain standards and a legal framework for negotiating, adjusting and administering those standards and other incidents of employment.
•
Labor standards – sets out the minimum terms, conditions and benefits of employment that employers must comply witho Minimum requirement required by law and regulations relating to wages, hours of work, COLA, and other monetary welfare benefits including occupational safety and health standards
o Books 1 (Pre-Employment), Book 2 (Human Resources Development Program), Book 3 (Conditions of Employment),and Book 4 (Health, Safety & Social Welfare Benefits) of the Labor Code
•
Labor relations – defines the status, rights and duties and the institutional mechanisms that govern the individual and collective interactions of employers, employees, or their representatives.o
Book 5 (Labor Relations) and Book 6 (Post-Employment)Social legislation – includes laws that provide particular kinds of protection or benefits to society or segments thereof in furtherance of social justice (the aim of labor laws)
social justice – the aim of labor laws; raison de’tre
- promotion of the welfare of all the people, the adoption by the government of measures
calculated to insure economic stability of all component elements of society
Constitutional provisions related to Labor: Art. II
o 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.”
o Sec. 10
“The State shall promote social justice in all phases of national development.”
o Sec. 18
“The State affirms labor as a primary social economic force. It shall protect the rights of workers and promote their welfare.”
Art. III, Sec. 8
“The right of the people, including those employed in the public and private sectors, to form unions, associations, or societies for purposes not contrary to law shall
not be abridged.”
Art. VI
Along with other sectors, labor is entitled to seats allotted to party-list representatives fro 3 consecutive terms after the ratification of the Constitution
Art. IX-B, Sec 2[3], [5] and [6]
“No officer or employee of the civil service shall be removed or suspended except for cause provided by law.”
“The right to self-organization shall not be denied to government employees.”
“Temporary employees of the Government shall be given such protection as may be provided by law.”
Art, XII, o Sec. 1
“The goals of the national economy are a more equitable distribution of opportunities, income, and wealth; a sustained increase in the amount of goods and services produced by the nation for the benefit of the people; and an expanding productivity as the key to raising the quality of life for all, especially the underprivileged. The State shall promote industrialization and full employment based on sound agricultural development and agrarian reform, through industries that make full of efficient use of human and natural resources.”
o Sec. 15
“The Congress shall create an agency to promote the viability and growth of cooperatives as instruments for social justice and economic development.”
Art. XIII o Sec. 3
Section 3. The State shall afford full protection to labor, local and overseas, organized and unorganized, and promote full employment and equality of employment opportunities for all. It shall guarantee the rights of all workers to self-organizations, and peaceful concerted activities, including the right to strike in accordance with law. They shall be entitled to security of tenure, humane conditions of work, and a living wage. They shall also participate in policy and
decision-making processes affecting their rights and benefits as may be provided by law.
The State shall promote the principle of shared responsibility between workers and employers and the preferential use of voluntary modes in settling disputes, including conciliation, and shall enforce their mutual compliance therewith to foster industrial peace.
The State shall regulate the relations between workers and employers, recognizing the right of labor to its just share in the fruits of production and the right of enterprises to reasonable returns on investments, and to expansion and growth.
Basic rights of workers guaranteed by the Constitution are the right to…
organize themselves conduct CBA
engage in peaceful concerted activities
enjoy security of tenure
work under humane conditions receive a living wage
Participate in policy and decision-making processes affecting their rights and benefits as may be provided by law.
o Sec. 4, 5, and 6
Regular farmworkers shall have the right to own directly or collectively the lands they till. Other farmworkers shall receive a just share of the fruits of the land they till. The state recognizes the right of farmworkers, along with other groups to take part in the planning, organization, and management of agrarian reform program. Landless farmworkers may be resettled by the Government in it sown agricultural estates.
o Sec. 9
“The State shall, by law, and for the common good, undertake, in cooperation with the private sector, a continuing program of urban land reform and housing which will make available at affordable cost, decent housing and basic services to under-privileged and homeless citizens in urban centers and resettlement areas. It shall also promote
adequate employment
opportunities to such citizens. In the implementation of such program the State shall respect the rights of small property owners.”
o Sec. 14
“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.”
Art. XVIII o Sec. 16
Career civil service employees separated from the service not for cause but as a result of the reorganization shall be entitled to appropriate separation pay and to retirement and other benefits under existing laws. In lieu thereof, they may be considered for employment in the Government. Those whose resignation has been accepted in line with the existing policy shall have this right.
o Sec. 18
“At the earliest possible time, the Government shall increase the salary scales of the other officials and employees of the National Government.”
The constitution suggests shared
responsibility between workers and employers.
Police power is the basis of labor laws.
Cases: PP vs. Pomar; Phil. Assoc. of
Service Exporters vs. Drilon Birth of Labor Code:
Written in 1968 under the leadership of Mr. Blas Ople (father of the Labor Code)
Aim: consolidate the scattered labor laws & reorient these laws to the needs of economic development and justice. 7 principles underlying the Code (see pp. 14, The Labor Code with Comments and Cases Vol. I, C.A. Azucena, 2004 ed.) Other related laws:
Civil Code
o Art. 1700, Art. 1701, Art. 1703, etc.
Revised Penal Code o Art 289 Special Laws
o
SSS law, GSIS law, Agrarian Reform Law, 13thmonth pay law, Magna Carta for Public Heal Workers
ILO – International Labour Organization
- UN specialized agency which seeks the promotion of social justice and internationally recognized human and labour rights.
- Created in 1919; Robert Owen of Wales & Daniel Legrand of France
- formulates international labor standards Art. 3
purpose: to place the workingman on an equal plane with management with all its power and influence in negotiating for the advancement of his interests and the defenses of his rights.
BOOK ONE PRE-EMPLOYMENT
Art. 12
Employment problem is multi-faceted and the solution is the concern of not only one or two government agencies but the concern of the entire governmental system.
DOLE- the primary policy-making, programming, coordinating, and administrative body of the Executive Branch
Purpose of Book One:
TO regulate the activities of agencies authorized to recruit and deploy workers for overseas employment.
TITLE I
Recruitment & Placement of Workers Art. 13
Art. 13 (b):this provision creates a presumption that the individual or entity is engaged in recruitment and placement whenever he is dealing with 2 or more persons to whom in consideration of a fee, offer, or promise of employment is made in the course of the canvassing, enlisting, contracting, transporting, utilizing, hiring, or procuring of workers'
PP vs Panis 142 SCRA 664
The number of persons dealt with is not an essential ingredient of the act of recruitment and placement of workers. Any of the acts mentioned in the basic rule in Article 13(b) will constitute recruitment and placement even if only one prospective worker is involved. The proviso merely lays down a rule of evidence that where a fee is collected in consideration of a promise or offer of employment to two or more prospective workers, the individual or entity dealing with them shall be deemed to be engaged in the act of recruitment and placement. The words "shall be deemed" create that presumption.
PP vs. Goce 247 SCRA 780
There is illegal recruitment when one gives the impression of having the ability to send a worker abroad such that the latter were convinced to give her the money she demanded in order to be so employed.
Darvin vs. CA and PP G.R. No. 125044 July 13, 1998
By themselves, procuring a passport, airline tickets and foreign visa for another individual, without more, can hardly qualify as recruitment activities.
Art. 14
To pursue its responsibility to promote employment opportunities, the DOLE carries out programs for local and overseas employment. Effective allocation of manpower resources in local employment is assigned to the BLE and to POEA for overseas employment.
The information or data obtained by the DOLE and POEA will serve as guide in determining domestic labor needs.
An employer with at least 6 employees is required to submit to the nearest public employment office the ffg:
• list of existing job vacancies or opening • list of new employees, if any
• termination, lay-off or retirement
• total number of employed workers for the period, and
• request for assistance, if needed, to fill the vacancies
Art. 15
(Bureau of Local Employment)
BLE & POEA were created by the mandate of E.O. 797
PESO
• RA 8759; intended to serve as employment service and information center in its area of operation.
• regularly obtains list of job vacancies from employers, publicizes them, invites and evaluates applicants, and refers them for probable hiring.
• Also provides training and educational guidance and employment counseling services.
Art. 16
this provision sought to avoid commission of malpractice by fly-by-night or private recruiters against unsuspecting workers who intend to work locally or overseas.
authorized entities to recruit and place workers for local & overseas employment:
• public employment office • private recruitment entities • private employment agencies
• shipping or manning agents or representatives
• POEA
• construction contractors if authorized to operate by DOLE and the Construction Industry Authority
• members of the diplomatic corps although hirings done by them have to be processed through POEA
• other persons or entities as may be authorized by the DOLE secretary
Art. 17
(Overseas Employment Development Board) the powers and functions of the OEDB were taken over by the POEA
composition of POEA • the Governing Board
◦ Sec. of DOLE - Chairman ◦ Administrator
◦
3rd member (considered well-versed inthe field of overseas employment, appointed by the Presodent for a term of 2 years)
• Office of the Administrator
• office of the Deputy Administrator • Office of the Directors
legislative background of overseas employment:
•
Act. 2486 – provides for license issuance and license fee and welfare regulations.•
PD 442 – created the OEDB & NSB to implement a more systematic deployment of and-based and sea-based workers toother countries.
•
EO 797 – aimed at streamlining operations in the overseas employment program; OEDB & NSB were united in a single structure – the POEA.•
EO 247 – reorganization act of POEA, strengthening of the worker's protection and welfare and a tighter regulation of the private sector's recruitment activities•
RA 8042 – “Migrant Workers and Overseas Filipino Act of 1995”. institutes the policies on overseas employment and establishes a higher standard o protection and promotion of the welfare of migrant workers, their families, and of overseas Filipinos in distress.◦ Requires certain guarantee of protection for the overseas workers before they are deployed in countries that meet some criteria
POEA: Functions and Powers
• formulation, implementation, and monitoring of the overseas employment of Filipino workers and the protection of their rights to fair and equitable employment practices
• participates in the deployment of Filipino workers through government-to-government hiring
• regulatory function:
◦ regulates the private sector participation in the recruitment and overseas placement of workers through its licensing and registration system. • adjudicatory function
original and exclusive jurisdiction to hear and decide the ffg. cases
◦ recruitment violation and related cases consisting of all preemployment cases which are administrative in character, involving or arising out of recruitment laws, rules and regulation, violations of the conditions for issuance of license to recruit workers
◦ Disciplinary action cases (warning, repatriation, suspension, or disqualification from the overseas employment program, or inclusion in
the POEA blacklist) ▪ grounds:
• commission of a felony punishable by Phil law or by laws of the host country
• drug addiction or possession or trafficking of prohibited drugs • desertion or abandonment • drunkenness
• gambling
• initiating or joining a strike or work stoppage where the laws of the host country prohibit the same
• creating trouble at the worksite • embezzlement of company funds • theft or robbery • prostitution • vandalism or destroying of company property • gunrunning or possession of deadly weapon
• unjust refusal to depart for the worksite after all employment and travel documents have been approved by the appropriate government agency • violation of the laws and sacred
practices of the host country and unjustified breach of government-approved
employment contract by a worker.
The POEA has no jurisdiction to hear and decide a claim for the enforcement of a foreign judgment. The function with regard to jurisdiction over money claims had been transferred to the NLRC pursuant to RA 8042, Sec. 10. this law also expanded the scope of such money claims involving Filipino workers for overseas employment.
− RA 8042 allows claims for money or damages sustained during the period of deployment or before departure for abroad. − RA 8042 also allows recovery of actual,
moral, exemplary and other forms of damages.
− The ffg. are originally functions of the POEA but were transferred to NLRC pursuant to RA 8042
◦ employer-employee relations cases consisting of all claims arising out of an employer-employee relationship by virtue of any law or contract involving Filipino workers in overseas employment, such as but not limited to: ▪ violation of the terms and
conditions of employment
▪ disputes relating to the implementation and interpretation of employment contracts
▪ money claims of workers against their employers and duly authorized agents in the Philippines and vice versa
▪ claims for death, disability and other benefits
▪ violation of or non compliance with any compromise agreement entered into by and between the parties in an overseas employment contract.
Migrant worker – anybody who is engaged, or to be engaged in a remunerated activity in a state of which he or she is not a legal resident; OFW
To promote the efficient and economic delivery of service, the POEA has the authority to set up regional extension units. And their functions are:
• execute policies, plans, programs in regions outside Metro Manila
• coordinate with loc gov officials in implementing overseas employment programs
• advise the central office of the needs of the region for particular welfare and regulatory programs
• establish linkage with other allied gov't agencies in the pursuit of the objectives of the overseas employment program
• coordinate the anti-illegal recruitment campaign in the regions
• perform other functions as the POEA may deem necessary
Minimum employment conditions:
•
guaranteed wages for regular working hours and overtime pay (not lower than the prescribed minimum wage [mw] in the host country, or mw standard set forth in bilateral agreement, or mw in the Phil, whichever is higher)• free transpo to and from worksite
• free emergency medical and dental treatment and facilities
• free food or accomodation
• just cause for termination (taking into consideration the customs, traditions, norms, mores, practices, company policies, and the labor laws & soc. legislation of the host country)
• workmen's compensation benefits and war hazard protection
• repatriation of worker's remains and properties in case of death to the point of hire
• assistance on remittance of worker's salaries, allowances, allotment to his beneficiaries
There is freedom to stipulate other terms and conditions provided the whole employment package should be more beneficial to the worker than the minimum.
In addition to the minimum requirements, the solidary liability of the employer and the recruitment agency for any and all claims shall be incorporated in the contract for overseas employment and shall be a condition precedent for its approval.
The POEA is authorized to recruit and place workers primarily on government-to-government arrangements and thus service the hirings of
foreign government ministries and
instrumentalities.
Millares & Lagda vs. NLRC G.R. No. 110524, July 29, 2002
From the foregoing cases, it is clear that seafarers are considered contractual employees. They can not be considered as regular employees under Article 280 of the Labor Code. Their employment is governed by the contracts they sign everytime they are rehired and their
employment is terminated when the contract expires. Their employment is contractually fixed for a certain period of time. They fall under the exception of Article 280 whose employment has been fixed for a specific project or undertaking the completion or termination of which has been determined at the time of 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.
On issue of Constitutionality of Sec. 10 of RA 8042 Marsaman Manning Agency vs. NLRC
G.R. No. 127195, August 25, 1999
A plain reading of Sec. 10 clearly reveals that the choice of which amount to award an illegally dismissed overseas contract worker, i.e., whether his salaries for the unexpired portion of his employment contract or three (3) months' salary for every year of the unexpired term, whichever is less, comes into play only when the employment contract concerned has a term of at least one (1) year or more. This is evident from the words "for every year of the unexpired term" which follows the words "salaries . . . for three months." To follow petitioners' thinking that private respondent is entitled to three (3) months salary only simply because it is the lesser amount is to completely disregard and overlook some words used in the statute while giving effect to some.
Serrano vs Gallant Maritime G.R. No. 167614March 24, 200
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 x x x with employment contracts of less than one year vis-à-vis OFWs with employment contracts of one year or more, or those among OFWs with employment contracts or more than one year and OFWs vis-à-vis local workers with fixed period employment," the Court held.
x x x
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;
Employer's nationality immaterial
Eastern Shipping Lines, Inc. vs. POEA G.R. No. 77828 February 8, 1989
The statute and the relevant regulations refer to employment of Filipino workers overseas, i.e., outside the Philippines. The statute and regulations do not limit their coverage to non-Filipino employers. Filipinos working
overseas share the same risks and burdens whether their employers be Filipino or foreign.
The underlying regulatory policy, as we see it, is that Filipino seamen working on ocean-going vessels should receive the same wages and benefits, without regard to the nationality or nationalities of the vessels on which they serve.
Basis of Compensation:
Dumez Co. vs. NLRC G.R. No. 74495 July 11, 1996
It is proper for the POEA to have taken judicial notice of foreign law applicable to a claim by a Filipino overseas contract worker. True, a foreign law, being a matter of evidence, must be alleged and proved, in order to be recognized and applied in a particular controversy involving conflicts of laws, jurisprudence on this matter was not meant to apply to cases before administrative or quasi-judicial bodies in the light of the well-settled rule that administrative and quasi-judicial bodies are not bound strictly by technical rules
Art. 18
(Ban on Direct Hiring )
General rule; Direct hiring of Filipino workers by a foreign employer is not allowed.
Except: by members of diplomatic corps and other mentioned in Art. 13 and name hires
name hiree – those individual workers who are able to secure contract for overseas without the assitance or participation of an agency. Their hiring nonetheless has to be processed through the POEA.
purpose of the law: to avoid diplomatic backlash. To protect the good name of the country by carefully processing or worker;s papers, thus eliminating the misfit, poorly trained and incompetent workers
Art. 19
(Office of Emigrant Affairs)
• promote the well being of emigrants and maintain their close link to the homeland • abolished and its function was transferred
to the Commission on Filipinos Overseas (BP 79)
• CFO provides advice and assistance to the President and the Congress for the formulation of policies and measures
affecting Filipino overseas.
• It also formulates an integrated program for the promotion of the welfare of Filipinos overseas for implementation by suitable existing agencies.
• Attached to the DFA ***superseded by BP 79
Art. 20
(National Seamen Board) powers and duty:
• To provide free placement services for seamen;
• To regulate and supervise the activities of agents or representatives of shipping companies in the hiring of seamen for overseas employment; and secure the best possible terms of employment for contract seamen workers and secure compliance therewith; and
• To maintain a complete registry of all Filipino seamen.
− now the POEA
− jurisdiction on money claims (Art. 20, (b)) transferred to NLRC (RA 8042)
An agreement that diminishes the employee's pay and benefits in a POEA-approved contract is void, unless such such subsequent agreement is approved by POEA.
Wallem Shipping Inc. vs. Ministry of Labor G.R. No. L-50734-37 February 20, 1981 But even if there had been such a threat, respondents' behavior should not be censured because it is but natural for them to employ some means of pressing their demands for petitioner, who refused to abide with the terms of the Special Agreement, to honor and respect the same. They were only acting in the exercise of their rights, and to deprive them of their freedom of expression is contrary to law and public policy. There is no serious misconduct to speak of in the case at bar which would justify respondents' dismissal just because of their firmness in their demand for the fulfillment by petitioner of its obligation it entered into without any coercion, specially on the part of private respondents.
On the other hand, it is petitioner who is guilty of breach of contract when they dismissed the respondents without just cause and prior to the expiration of the employment contracts. As the records clearly show, petitioner voluntarily entered into the Special Agreement with ITF
and by virtue thereof the crew men were actually given their salary differentials in view of the new rates. It cannot be said that it was because of respondents' fault that petitioner made a sudden turn-about and refused to honor the special agreement.
Read: Vir-jen Shipping and Marine Services vs
NLRC (115 SCRA 347 and 125 SCRA 577)
Art. 21
(Foreign Service Role and Participation) purpose: to inform the home country of the status of workers employed in their respective areas of assignment.
4 gov't agencies tasked to promote the welfare and protect the rights of migrant workers.
• DFA
◦ Legal Assistant for Migrant Workers (LAMW) – tasked to provide and coordinate all legal assistant services to Filipinos in distress
▪ administers the Legal Assistance Fund for Migrant Workers
• DOLE
• POEA
• OWWA
Migrant Workers and other Overseas Filipinos Resource Center – in Philippine embassies where there are more than 20,000 migrant workers
− provides assistance to migrant workers (health, welfare, conciliation of disputes from employer-employee relationship)
−
managed by a Labor AttachéRe-placing & Monitoring Center – promotion house for local employment of the returning workers
− expected to develop livelihood programs for the returning workers and formulate a computer-based information system on skilled Filipino migrant workers.
OWWA
− intended to provide social and welfare services, including insurance coverage, legal assistance, placement assistance and remittance services to Filipino overseas
workers.
− Formerly known as the Welfund
− has a role in repatriation of migrant workers Art. 22
(Mandatory Remittance of Foreign Exchange Earnings)
purpose: to boost the Philippine foreign exchange reserves.
Mandatory remittance – amount or portion of the basic salary of OFW required under existing laws and regulations to be remitted by the workers to their beneficiaries in the Philippines and sold for pesos to the Philippine banking system
50%-80% of the basic salary – prescribed percentage of foreign exchange remittance (EO 857) Art. 23. - repealed Art. 24. - repealed Chapter II REGULATION OF RECRUITMENT ANDPLACEMENT ACTIVITIES Art. 25
(Private sector participation in the recruitment and placement of workers)
The POEA was granted the “power of subordinate legislation”
The regulations issued by the administrative agencies have the force of law.
Requirement of publication of the regulations issued by these administrative agencies is also mandatory.
Requirements for securing a license:
• certified true copy of Articles of Incorporation or of Partnership registered with SEC or certificate of registration of the firm or business name with the DTI
• proof of financial capacity
• savings account certificate maintaining balance not less than P500,000.00 with authority to examine the same.
• Proof of market capability.
• NBI Clearance of all members of the BOD • verified undertakings
• individual ITRs of propritors, partners, stockholders, etc.
• proof of possession of AB/BS degree and 3 years business experience
• list of all officials and personnels involved in the recruitment and placement, together with their appointment
• copy of contract of lease or proof of building ownership (office address with at least 100sq.m office space)
• proof of publication of notice of the application
• certificate of attendance of owner in seminars conducted by the Administration 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 P1M and a surety bond of P100k
provisional license
• valid for a limited period of 1 year
• to allow the applicant to comply with its undertaking to deploy 100 workers to its new principal.
An agency that fails to renew its license within 30 calendar days from expiration thereof shall be deemed delisted and barred from engaging in recruitment and placement activities.
Accreditation may be granted only when the foreign signatory to the recruitment agreement with the applicant agency is the direct employer of the workers to be recruited.
The accreditation of a principal may be transferred to another agency provided that the transfer does not involve any diminution of wage and benefits of workers.
Full accreditation shall be valid for a maximum period of 2 years from the date of the issuance, subject to renewal.
Provisional accreditation may be granted for a period of 90 days
Art. 26
(Travel agencies prohibited to recruit) disqualified:
• travel agencies and sales agencies of airline companies
• officers or members of the board of any corporation or members in a partnership engaged in the business of a travel agency •
• persons with derogatory records
• any official or employee of DOLE, POEA, OWWA, DFA and other governent agencies directly involved in the implementation of RA 8042
•
relatives of the preceding within the 4th civildegree.
Art. 27
(Citizenship requirement)
“Only Filipino citizens or corporations, partnerships or entities at least 75 percent 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)
The required capitalization, accdg. to POEA Rules of 2002 is a minimum of 2million pesos in case of a single proprietorship or partnership and a minimum paid-up capital of the same amount for a corporation.
Purpose: to assure the public and the government that it is not a fly-by-night entity whose purpose of its being is to abuse and fool people.
Art. 29
(Non-transferability of license or authority) A license to operate a business enterprise is a privilege which could be reasonable regulated by the State by virtue of its inherent police power. Limitations on the use of license:
•
licensees or holders of authority or their duly authorized representatives may, as a rule, undertake recruitment and placement activity only at their authorized officialaddresses.
• Personal in nature, thus it cannot be used by any person other than one in whose favor it was issued
• intransferrable Art. 30 (Registration fees)
“The Secretary of Labor and Employment shall promulgate a schedule of fees for the registration of all applicants for license or authority.”
license – P50,000.00
Escrow Agreement – P1million surety bond – P100,000.00
Art. 31 (Bond)
POEA possesses the power to enforce liability under cash or surety bonds.
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. Should the bond/deposit in escrow or any part thereof be garnished, the same should be replenished within 15 calendar days from notice from POEA
Art. 32
(Fees to be paid by workers) chargeable fees:
to
principals:
(Sec. 2, POEA Rules & Regulations) • visa fee
• air fare
• POEA processing fee • OWWA membership fee to workers:
(Sec. 3, POEA Rules & Regulations) • passport
• NBI/Police/Barangay Clearance • Authentication
• Birth Certificate • Medicare
• Trade test (if necessary) • inoculation
• medical examination fees
The above-mentioned placement and documentation costs are the only authorized payments that may be collected from a hired worker. No other charges in whatever form, manner, or purpose, shall be imposed on and be paid by the worker without prior approval of the POEA.
POEA has the power to order refund of illegally collected fees
Art. 33
Reports on employment status
the data obtained from these reports serves as guidelines in formulation of labor policies
Art. 34
(Prohibited practices)
these acts are not only grounds for suspension or cancellation of license, but they likewise constitute illegal recruitment under RA 8042.
paragraph (a)
•
1st part:◦ prohibits the charging or accepting of fees than that allowed by regulations.
◦
“Fees shall be collected from a hiredworker only after he has obtained employment through the facilities of the recruitment agency.”
•
2nd part:◦ deterrent to loan sharks who lend money at usurious interests.
Paragraph (b)
• includes the act of furnishing fake employment documents to a worker
• includes the act of publishing false notice or information in relation to recruitment or employment
paragraph (d)
• mere attempt to induce the worker to quit his employment for the purpose of offering him to another is sufficient to constitute the
offense. Paragraph (e)
• non-licensees cannot lawfully engage in recruitment & placement of workers
• they are likewise prohibited from attempting to influence another not to employ a worker.
Paragraph (i)
• purpose: to protect both parties
• the law empowers the POEA to approve and verify a contract under this par. to insure that the employee shall not thereby be placed in a disadvantageous position and that the contract contains the minimum standard of such employment contract set by the POEA.
The prohibitions under this article are designed to regulate of not totally eliminate malpractice regarding recruitment and placement.
Art. 35
(Suspension and/or cancellation of license or authority)
recruitment violations that may cause the imposition of administrative sanctions(including suspension and cancellation of licenses)
• engaging in acts of misrepresentations for the purpose of securing a license or renewal thereof.
• Engaging in the recruitment or placement of workers in jobs harmful to public health or morality or dignity of the RP
• charging of any fee before employment is obtained for an applicant worker
• charging of any fee in amount exceeding the allowable rate
• obstructing inspections by DOLE
a recruitment agency is solidarily liable for the unpaid salaries of a worker it recruited for employment with a foreign principal.
Even if the recruitment agency and the principal had already severed their agency agreement at the time the worker was injured, the recruitment agency may still be sued for violation of the employment contract, if no notice of the agency
agreement's termination was given to the employee. (in pursuant to Art. 1921, Labor Code) Required Undertakings by Agent: (POEA Rules. Part II, Rule II, Sec. f)
• shall select only medically and technically qualified recruits
• assume full & complete responsibility for all claims and liabilities which may arise in connection with the use of license
• 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, health and disability compensation, and repatriation
• guarantee compliance with the existing labor and social legislation of the Phil. and of the country of employment of recruited worker
• assume full and complete responsibility for all acts of its officials, employees, and representatives done in connection with recruitment and placement
• negotiate for the best terms and conditions of employment
• disclose the full terms and conditions of employment to the applicant worker
• deploy at least 100 workers to its new markets within 1 year from the issuance of the license
• provide orientation on recruitment procedures, terms and conditions, and other relevant information to its workers and provide facilities therefor
• repatriate the deployed workers and his personal belongings when the need arise A foreign corporation which, through unlicensed agents, recruits workers in the country may be sued in and found liable by Philippine courts. RA 8042 envisions a phase out of POEA's regulatory functions so that the migration of the workers will become strictly a matter between the worker and his employer.
Chapter III
MISCELLANEOUS PROVISIONS Art. 36
(Regulatory power)
“The Secretary of Labor and Employment shall have the power to restrict and regulate the recruitment and placement activities of all agencies within the coverage of this Title and is hereby authorized to issue orders and promulgate rules and regulations to carry out the objectives and implement the provisions of this Title.”
Art. 37 (Visitorial Power)
“The Secretary of Labor and Employment 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 violations of any provision of this Title.”
Art. 38 (Illegal Recruitment)
RA 8042 made clear than even licensees or holders of authority may be held guilty of illegal recruitment.
Illegal recruitment - 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 the Labor Code of the Philippines.
It shall likewise include the ffg acts:
(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 the recruiter or its agents any amount greater than that actually loaned or advanced to him;
(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 pr commit any act of misrepresentation for the purpose of
securing a license or authority under the Labor Code;
(d) To induce or attempt to induce a worker already employed to quit his employment in order to offer him another unless the transfer is designed to liberate a worker from oppressive terms and conditions of employment;
(e) To influence or attempt to influence any person or entity not to employ any worker who has not applied for employment through his agency;
(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 as may be prohibited by law or duly constituted authority;
(g) To obstruct or attempt to obstruct inspection by the Secretary of Labor and Employment or by his/her duly authorized representative;
(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 under penalty of law;
(i) To substitute or alter to the prejudice of the worker, employment contracts approved and verified by the DOLE from the time of actual signing thereof by the parties up to and including the period of the expiration of the same without the approval of the DOLE; (j) For an officer or agent of a recruitment or placement agency to became 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;
(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) To fail to actually deploy without valid reason as determined by the DOLE; and (m) To fail to reimburse expenses incurred by the worker in connection with his/her
documentation and processing for purposes of deployment, in cases where the deployment does not actually take place without the workers fault.
4 types of illegal recruitment • simple
• non-licensee
• syndicated - carried out by a group of 3 or more conspiring with one another.
• large scale - committed against 3 or more persons individually or as a group.
If committed by a syndicate or in large scale shall be considered an offense involving economic sabotage.
The POEA or the Sec. of Labor do not have the power to issue a warrant of search and seizure. However, the power of the Secretary or his duly authorized representatives to order the closure of illegal recruitment establishments still subsists, the same being considered essentially administrative and regulatory in nature.
Procedure to order the closure of an illegal recruitment establishment (see VIII, Anti-Illegal Recruitment Programs, RA 8042)
Art. 39 (Penalties) (see Section 7, RA 8042)
venue: RTC of the province where the crime was committed, or where the offended party actually resides, ti the exclusion of other courts
period for resolution:
• 30 days from filing – termination of preliminary investigation
filing of information
• 24 hours from termination of investigation – if investigation was conducted by a prosecutor
• 48 hours from termination of investigation – if investigation was conducted by a judge 5 years – prescriptive period of illegal recruitment cases
20 years – for illegal recruitment cases involving economic sabotage
Title II
Employment Of Non-Resident Aliens Art. 40 – Art. 42
Only non-resident aliens are required to secure employment permit.
Resident aliens & immigrants are required an Alien Employment Registration Certificate (AERC)
prohibitions on hiring foreigners: • Anti Dummy Law
◦ prohibits employment of aliens in entities that own or control a right, franchise, privilege, property or business whose exercise or enjoyment is reserved by law only to Filipinos or to a corporation whose capital should be at least 60% Filipino-owned
• Art. XVI, Sec. 11, Constitution
◦
mass media enterprise can be owned or managed only by Filipinos or by a corporation or associations wholly owned or managed by them.• Omnibus Investment Code
◦ enterprises registered under this law may employ foreign nationals in technical, supervisory, or advisory positions.
Department Order No. 12, Series of 2001
• Omnibus Guidelines for the Issuance of Employment Permits to Foreign Nationals • prvides a
◦ list if individuals required to apply for Alien Employment Permit (AEP)
◦ list of individuals exempt from the AEP requirement
◦ list of bases of the issuance of AEP permits shall be valid for a period of 1 year
application for renewal shall be filed 15 days prior to the expiration of the permit.
BOOK TWO
HUMAN RESOURCES DEVELOPMENT Title I
National Manpower Development Program Chapter 1
NATIONAL POLICIES AND ADMINISTRATIVE MACHINERY FOR THEIR IMPLEMENTATION
(Arts. 43-56 have been superseded by RA 7796 or the TESDA Law) TESDA took over the functions of:
• National Manpower and Youth Council (NMYC)
• Bureau of Technical Skills and Vocational Education
• regional offices of DECS in the field of vocational education
• apprenticeship program of the BLE of DOLE
composition:
• TESDA board
◦ The Secretary of DOLE – Chairperson ◦ Secretary of DepEd – Co-Chairperson ◦ Secretary of DTI – Co-Chairperson ◦ Secretary of DA – Member
◦ Secretary of DILG – Member ◦ Director-General of the TESDA
Secretariat – Member • TESDA secretariat
◦ headed by the Director General Salient Features Of The TESDA Act policy:
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 goals and priorities. Goals:
• 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.
Powers and functions of the board
The Authority shall primarily be responsible for formulating, continuing, coordinated and fully integrated technical education and skills development policies, plans and programs taking into consideration the following:
•
The State policy declared herein of giving new direction and thrusts to efforts in developing the quality of Filipino human resource through technical education and skills development;• The implementation of the above-mentioned policy requires the coordination and operation of policies, plans, and programs of different concerned sectors of Philippine society;
• Equal participation of representatives of industry groups, trade associations, employers, workers and government shall be made the rule in order to ensure that urgent needs and recommendations are readily addressed; and
• Improved linkages between industry, labor and government shall be given priority in the formulation of any national-level plan. The Board, shall have the following powers:
• promulgate, after due consultation with industry groups, trade associations, employers, workers, policies, plans, programs and guidelines as may be necessary for the effective implementation of this Act;
• organize and constitute various standing committees, subsidiary groups, or technical working groups for efficient integration, coordination and monitoring technical education and skills development programs at the national, regional, and local levels; • enter into, make, execute, perform and
carry-out domestic and foreign contracts subject to existing laws, rules and regulations.
• restructure the entire sub-sector consisting of all institutions and programs involved in the promotion and development of middle-level manpower through upgrading, merger and/or phase-out following a user-led strategy;
• approve trade skills standards and trade tests as established and conducted by private industries;
• establish and administer a system of accreditation of both public and private institutions;
• establish, develop and support institutions' trainors' training and/or programs;
• lend support and encourage increasing utilization of the dual training system as provided for by Republic Act. No. 7686; • exact reasonable fees and charges for
such tests and trainings conducted and retain such earnings for its own use, subject to guidelines promulgated by the Authority;
• allocate resources, based on the Secretariat's recommendations for the programs and subjects it shall undertake pursuant to approved National Technical Education and Skills Development Plan; • determine and approve systematic funding
schemes such as the Levy and Grant scheme for technical education and skills development purposes;
• create, when deemed necessary, an Advisory Committee which shall provide expert and technical advice to the Board to be chosen from the academe and the private sector: Provided, That in case the Advisory Committee is created, the Board is hereby authorized to set aside a portion of its appropriation for its operation; and
• perform such other duties and functions necessary to carry out the provisions of this Act consistent with the purposes of the creation of TESDA.
The Authority is mandated to establish Technical Skills Development Committees at the regional and local levels to coordinate and monitor the delivery of skills development activities.
Middle-level manpower – who have acquired practical skills and knowledge through formal or non-formal education and training equivalent to at least a secondary education but preferably at post-secondary education with a corresponding degree of diploma or skilled workers who have become highly competent in their trade or craft as attested by industry
training – systematic development of the attitude/knowledge/skill behavior pattern required for the adequate performance of a given task Incentive Scheme
• developed by the TESDA to encourage industries and institutions to provide high-quality technical education and skills development opportunities.
• In the form of an additional deduction from the taxable income which is equivalent to a certain percentage of the value of labor training expenses incurred for development programs
• conditions:
◦ the apprenticeship program is recognized by the DOLE
◦ apprentices should be paid the minimum wage; and
◦ the deduction shall not exceed 10% of the total direct labor wage expended by the employer during the taxable year
Title II
Training and Employment of Special Workers Chapter 1
APPRENTICESHIP Art. 57-Art. 60
apprentice – worker who is covered by an apprenticeship agreement with an individual employer or any of the entities recognized under
the law.
Apprenticeship
• arrangement and the period when an upcoming worker undergoes hands-on training, more or less formal, to learn the ropes of a skilled job.
Previous laws on apprenticeship: • Minimum Wage Law (RA 602)
• National Apprenticeship Act of 1957 (RA 1826 as amended by RA 2628)
Apprenticeship is significant as it fills the demand of employers for workers in certain trades or occupations which require special skills.
General rule: The organization of apprenticeship programs is primarily a voluntary undertaking pf employers.
Exception: (compulsory apprenticeship)
• when the national security or particular requirements of economic development so demand
• where services of foreign technicians are utilized by private companies in apprenticeable trades, said companies are required to set up apprenticeship programs
OJT – practical work experience through actual participation in productive activities given to or acquired by the apprentice.
OJT may be undertaken in:
• the plan, shop, or premises of the employer or firm concerned if the apprenticeship program is organized by an individual employer or firm.
• In the premises of one or several firms designated for the purposes by the organizer of the program if such organizer is an association of employers, civic group or the like
• in the DOLE Training Center Qualifications of an apprentice:
• at least 15 years old
◦ Art. 59 of the Labor Code provides 14
years old
◦ Sec. 11, Rule Vi, Book II of the Rules Implementing the Labor Code provides for 15 years old as apprenticeable age ◦ 15 years old0age requirement is also in
accordance with Sec. 12 of RA 7610 as amended by RA 9231
• be physically fit for the occupation in which he desires to be trained
• possess vocational aptitude and capacity for the particular occupation as established through appropriate tests
• possess the ability to comprehend and follow oral and written instructions
apprenticeable occupation – any trade, form of employment or occupation which requires for proficiency more than 3 months of practical training on the job with compulsory related theoretical instructions.
Highly-technical industry – a trade, business, enterprise, industry or other activity which utilizes the application of advanced technology.
Apprenticeship contract
• an agreement whereby an employer undertakes to train the apprentice and the apprentice in turn accepts the terms of the training.
• The period of the apprenticeship contract shall not exceed 6 months.
• A copy should be submitted to TESDA within 5 working days from execution
• no person shall institute any action for the enforcement of the apprenticeship agreement or for damages for breach thereof unless he has exhausted all the administrative remedies.
• Valid causes for the termination of the apprenticeship agreement:
◦ by the employer:
▪ habitual absenteeism in the OJT with compulsory theoretical instructions
▪ willful disobedience of company rules or insubordination
▪ poor physical condition or
prolonged illness which
work
▪ theft or malicious destruction of
company property and/or
equipment
▪ poor efficiency of performance ▪ engaging in violence or other forms
of gross misconduct inside the employer's premises
◦ by the employee
▪ substandard or deleterious working conditions within the employer's premises
▪ repeated violation by the employer of the terms of the contract
▪ cruel of inhuman treatment by the employer or his subordinates
▪ personal problems which in the opinion of the apprentice shall prevent him from a satisfactory performance of his job
▪ bad health or continuing illness The wage rate of the apprentice shall start at 75% of the statutory minimum wage for the forst 6 months; thereafter, he shall be paid with the full minimum wage including the full COLA.
An apprenticehip program need prior approval by the DOLE. If employed without a pre-approved apprenticeship program, the “apprentice” is not an apprentice but a regular employee. (Nitto Ent. Vs NLRC, GR 114337)
procedure in case of violation of apprenticeship contract:
• investigation
• appeal to the Secretary of Labor
“doctrine of exhaustion of administrative remedies” - requires that were an administrative remedy is provided by law, relief must first be sough by exhausting remedies before the court will act
There is no employer-employee relationship between students on one hand, and academic institutions on the other hand, where there is a written agreement between them under which the former agrees to work for the latter in exchange for the privilege to study free of charge, provided the
student is given real opportunities, including such facilities as may be reasonable and necessary to finish their chosen courses under such agreement.
Chapter 2 LEARNERS
Art. 73-77
learner – person hired as a trainee in semi-skilled and other industrial occupations which are non-apprenticeable
learnership & apprenticeship are similar because they both mean training periods for jobs requiring skills that can be acquired through actual work experience
Learnership Apprenticeship trains in a skilled job or
in industrial occupations that require training for less than 3 months
Trains in a highly skilled job or in a job found only in a highly technical industry
Training need not be supplemented by a theoretical instruction
Theoretical instruction is a condition sine qua non
Training period is
shorter Training period is longer because the job is not easily learned
Employer is committed to hire the learner-trainee as an employee after the training period
Employer is NOT committed to hire the learner-trainee as an employee after the training period
Learnership agreement do not need prior approval by DOLE but are subject to DOLE's inspection.
Employment of apprentice is legally allowed in highly technical industries and only in apprenticeable occupations approved by DOLE
Learners employed in piece or incentive rate jobs during the training period is paid in full for the work done
If training is prerequisite to graduation or a requirement in taking board exam, the hiring of apprentices without
compensation is
The Secretary of Labor may cancel any learnership program if upon inquiry, it is found that the justification for the program no longer exists
penalty for violation:
fine: P1, 000.00 – P10, 000.00
range of imprisonment:3 months – 3 years Chapter 3
HANDICAPPED WORKERS
handicapped worker – one whose earning capacity is impaired by age or physical or mental deficiency or injury.
Disabled worker – one whose earning capacity is impaired by mental, physical or sensory deficiency or injury.
RA 7277
• Magna Carta for Disabled Persons
• insures equal opportunities for disabled persons and prohibits discrimination against them.
• Fundamentally it provides that 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, incentives or allowance as a qualified able-bodied person.
Private entities that employ disabled persons who meet the required skill or qualifications either as regular employee, apprentice, or learner, shall be entitled to an additional deduction from their gross Income, equivalent to 25% of the total amount paid as salaries and wages to disabled persons.
Handicapped workers are eligible for employment as apprentices or learners if their handicap is such that it does not impede the performance of ob operations in the particular trade or occupation which is the subject of the apprenticeship of learnership agreement.
BOOK THREE
CONDITIONS OF EMPLOYMENT Title I
Working Conditions and Rest Periods Chapter 1
HOURS OF WORK (Art. 82)
Conditions of Employment right of control test
• where the person for whom the services are performed reserves the right to control not only the end to be achieved but also the means to be used in reaching such end.
Four-fold test:
• selection and engagement of the employee • payment of wages
• power of dismissal • control test
not covered by Book 3, of Labor Code: • Government employees
◦ refers to those employed by the National Government or any of its political subdivisions including those employed in government-owned or controlled corporations
◦ the are governed by the Civil Service Law
◦ government owned or controlled coporations
▪ with original charter – governed by civil service law
▪ without original charter – governed by the Labor Code
• Managerial employees
◦ they refer to those who meet the ffg conditions:
▪ their primary duty consists of the management of the establishment in which they are employed or of a department or subdivision thereof ▪ they customarily and regularly
direct the work of two or more employees therein
hire other employees of lower rank ◦ they are employed b virtue of their
special training or expertise, experience or knowledge and for positions which require the exercise of independent judgment and discretion. • officers and member of the managerial staff
◦ they are exempted if they perform the ffg duties and reponsibilities
▪ duties that consists in the performance of work directly related to management policies of their employers
▪ they customarily exercise discretion and independent judgment
▪ they regularly and directly assist a proprietor or managerial employee ▪ they do not devote more than 20%
of their hours in a workweek to activities which are not directly or closely related to the above-mentioned
◦ their powers are not subject to evaluation, review and final action by the department heads and other higher executives of the company
• field personnel
◦ refers to non-agricultural employees who regularly perform their duties away from the principal place of business or branch office of the employer
• members of the family of the employer who are dependent on him for support
◦ includes husband and wife, parents and children, other descendants and ascendants, brothers and sisters
• domestic helpers and/or persons in the personal service of another
◦ those who performs services in he employer's home which are usually necessary or desirable for the maintenance and enjoyment thereof ◦ minister to the personal comfort,
convenience, or safety of the employer as well as the members of his
employer's household • workers paid by result
◦ payment of this type of worker is determined by the results of the work performed or the number of units produced
▪ piece work ▪ task work
(Art. 83) Normal Hours of Work
day – workday of 24 hours beginning at the same time each calendar day
week – workweek of 168 consecutive hours; 7 consecutive 24 hours; beginning at the same hour and the same calendar day each calendar week. The 8-hour work requirement does not preclude the employer to produce the working hours, provided that there is no concomitant reduction in pay.
Purposes:
• protect the health of the workers
• assure adequate leisure to workers in order to enable them to lead richer and more fruitful lives • spread employment shifts: 1st shift – 8am to 4pm 2nd shift – 4pm to 12mn 3rd shift – 12mn to 8am
effects of shorter working hours: • increase in work output • improved health of workers
• decrease in the amount of voluntary absenteeism
• reduce of rate and severity of industrial accidents
• increase mechanization and improved methods
• greater pressure for employees to be more productive and efficient
• promotion of good citizenship • alleviating unemployment