Labor+Standards+Reviewer

(1)

Jojo Baetiong, Gel Baniqued, Elvira Castro, Denise Dy, Sheryl Harina, Giselle Remulla Page 1 of 103 3B – 2006-2007

PRELIMINARY TITLE Chapter I

GENERAL PROVISIONS Article 1: NAME OF DECREE

Article 2: DATE OF EFFECTIVITY

COMMENTS AND CASES 1. LABOR LEGISLATION; DEFINITIONS

 Broadly divided into labor standards and labor relations

 Labor standards law is that which sets out the minimum terms, conditions, and benefits of employment that employers must provide and comply with and to which employees are entitled to as a matter of right.

 Labor relations law is that which defines the status, rights and duties, and the institutional mechanisms, that govern the individual and collective interactions of employers,

employees or their representatives.

 Labor is understood as physical toil, although it does not necessarily involve the application of skill. Skill, by dictionary definition, is the familiar knowledge of any art or science, united with readiness and dexterity in execution or performance or in the

application of the science or art to practical purposes.

 Work is broader than labor as ―work‖ covers all forms of physical or mental exertion, or both combined, for the attainment of some object other than recreation or amusement per se.

2. LABOR LAW AND SOCIAL LEGISLATION

 Social legislation includes laws that provide particular kinds of protection or benefits to society or segments thereof in furtherance of social justice. In that sense, labor laws are necessarily social legislation.

3. SOCIAL JUSTICE AS THE AIM

 The aim, reason, and justification for labor laws is social justice.

 Section 3 of Article XIII says that ―the State shall afford full protection to labor, local and overseas, organized and unorganized, and promote full employment and equality of employment opportunities for all.‖

 This is because ―without the improvement of economic conditions, there can be no real enhancement of the political rights of the people.‖

4. CONSTITUTIONAL RIGHTS AND MADNESS

 The basic rights of workers guaranteed by the Constitution are: the rights to organize

themselves, to conduct collective bargaining or negotiation with management, to engage in

(2)

peaceful concerted activities, including to strike in accordance with law, to enjoy security of tenure, to work under humane conditions, to receive a living wage, to participate in policy and decision making processes affecting their rights and benefits as may be provided by law.

4.1. Balancing of Rights; the Constitutional Principle of Shared Responsibility

 While labor is entitled to a just share in the fruits of production, the enterprise has an equally important right not only to reasonable returns in investment but also to expansion and growth. The Constitution commands the State to promote the principle of shared responsibility between employers and workers and the preferential use of voluntary modes of settling disputes, including conciliation, and to enforce their mutual compliance therewith to foster industrial peace.

 Constitutional outlook suggests a balanced treatment.

5. POLICE POWER AS THE BASIS

 The right of every person to pursue a

business, occupation or profession is subject to the paramount right of the government as a part of its police power to impose such

restrictions and regulations as the protection of the public may require.

6. BIRTH OF THE LABOR CODE

 Writing began under Blas Ople, Father of the Labor Code

 The objective was not merely to consolidate the then existing pieces of social legislation, but also to reorient them to the needs of economic development and justice. 7. PRINCIPLES UNDERLYING THE CODE

 Must be both responsive and responsible to national development

 Must substitute rationality for confrontation in times of national emergencies

 Must be made expeditious without sacrificing due process

 Manpower development and employment must be regarded as a major dimension of labor policy

 Availability of a global labor market to qualified Filipinos

 Must command adequate resources and acquire capable machinery for effective and sustained implementation

 There should be popular participation in national policy making through what is now called tripartism

8. SOME LABOR LAWS BEFORE THE PASSAGE OF THE CODE

(3)

 Act 2549 which prohibited payment of wages in non-cash form

 RA 1054 which required emergency medical treatment for employees

 CA 444 or the Eight Hour Labor Law

 CA 103 which created the Court of Industrial Relations (pre-NLRC)

 PD 21 which created the NLRC

 RA 875 or the Industrial Peace Act/ Magna Carta of Labor

 RA 946 Blue Sunday Law

 RA 1052 or the Termination Pay Law 9. SIGNIFICANCE OF FOREGOING DECISIONS

 Where are labor statutes are based upon or patterned after statutes in foreign

jurisdiction, the decisions of high courts in those jurisdictions… should receive the careful attention of the SC in the application of our own law.

10. RELATED LAWS

10.1. The Civil Code

 Labor relations not merely contractual, but must yield to the common good.

 Prohibition against involuntary servitude (Art. 1703)

 Also contains provisions regarding wages, househelpers and liabilities of employers. 10.2. The Revised Penal Code

 Punishes the use of violence or threats by either employer or employee (Art. 289)

10.3. Special Laws

 SSS law, GSIS law, Agrarian Reform Law, 13th month Pay Law, etc.

11. INTERNATIONAL ASPECT

 On June 15, 1948, the Philippines became a member of the International Labor

Organization (ILO), which is the UN

specialized agency which seeks the promotion of social justice and internationally

recognized human and labor rights.  The ILO formulates international labor

standards in the form of Conventions and Recommendations setting minimum standards of basic labor rights.

 An essential characteristic of ILO is

tripartism, that is, it is composed not onl of government representatives but also of employers‘ and workers‘ organizations. 11.1. International Commitments

 By being an ILO member, the country thereby subscribes t the fundamental principles on which the ILO is based. Also, as an ILO member, the Philippines imbibes the

obligation of the ILO to further programs that will achieve ILO objectives.

11.2. ILO Core Conventions

 The eight core conventions are as follows: Forced Labor Convention (1930); Freedom of Association and Protection of the Right to Organize Convention (1948); Freedom to

(4)

Organize and Collective Bargaining Convention (1949); equal remuneration Convention

(1951); Abolition of Forced Labor Convention (1957); Discrimination (Employment and Occupation) Convention (1958); Minimum Age Convention (1973); and Worst Forms of Child Labor Convention (1999).

11.3. Ratification Generally Needed; Exception  In 1999, the ILO adopted a Declaration on

Fundamental Principles and Right at Work concerning an obligation of all ILO members to respect and promote the fundamental rights even if they have not ratified the conventions.

11.4. Ratified ILO Conventions

 As of the end of 2000, the Philippines has ratified thirty ILO Conventions, including significantly, the ―core‖ conventions on freedom of association, on abolition of forced labor, on abolition of child labor, and on non-discrimination.

 A labor law expert asserts that the Philippines can claim with some pride that it belongs to the upper 25% of the ILO members on the basis of efforts taken to approximate labor standards.

Article 3: DECLARATION OF BASIC POLICY COMMENTS

1. LABOR LAWS AND SOCIAL-ECONOMIC GOALS

 Labor laws are devices for social equity. The may, depending on their provisions, make the rich richer and the poor poorer.

 The value of labor laws is in their contribution to national growth in the context of social justice.  The true task of a student of labor law is to examine

how those laws hinder or help the attainment of the country‘s socio-economic goals.

2. INTERDEPENDENCE

 It should not be deduced that the basic policy is to favor labor to prejudice capital. The plain reality is that both sectors need each other. They are

interdependent- one is inutile without the other.  The better understanding is that the basic policy is

to balance or coordinate the rights and interests of both workers and the employers.

Article 4: CONSTRUCTION IN FAOVR OF LABOR COMMENTS AND CASES 1. INTERPRETATION AND CONSTRUCTION

1.1. Laborer‘s Welfare; Liberal Approach

 The working man‘s welfare should be the primordial and paramount consideration. The policy is to extend the Decree‘s applicability to a greater number of employees to enable

(5)

them to avail of the benefits under the law, in consonance with the State‘s avowed policy to give maximum aid and protection to labor. 1.2. Concern for Lowly Worker

 The Sc reaffirms its concern for the lowly worker who, often at his employer‘s mercy, must look up to the law for protection. 1.3. Reason for According Greater Protection to

Employees

 In the matter of employment bargaining, there is no doubt that the employer stands on higher footing than the employee.

 This is because there is a greater supply than demand for labor. Also, the need for

employment comes from vital, even desperate, necessity.

2. MANAGEMENT RIGHTS

 Management also has its own rights which are entitled to respect and enforcement in the interest of simple fair play.

2.1. Right to ROI

 The employer has the right to recover his investments and make profits. There is nothing dirty about profit per se – it is profit that creates jobs and improves the workers‘ lot.

2.2. Rights to Prescribe Rules

 Employers have the right to make reasonable rules and regulations for the government of their employees, and when employees, with

knowledge of an established rule, enter the service, the rule becomes a part of the contract of employment.

2.3. Right to Select Employees

 An employer has the right to select his employees and to decide when to engage them. He has the right, under the law, to full freedom in employing any person free to accept employment from him, and this, except as restricted by valid statute and valid contract, at a wage and under conditions agreeable to them.

 State cannot interfere with the liberty to contract with respect to labor, except in the exercise of police power.

 The right of a laborer to sell his labor to such person as he may choose is, in its essence, the same as the right of an employer to purchase labor from any person whom it chooses. 2.4. Right to Transfer or Discharge Employees

 The employer has the perfect right to

transfer, reduce, or lay off personnel in order to minimize expenses and to insure the

stability of the business, and even to close the business, and this right has been consistently upheld, provided the transfer or dismissal is not abused but is done in good faith and is due to causes beyond control.

(6)

COMMENTS AND CASES

1. RULES AND REGULATIONS TO IMPLEMENT THE CODE 1.1. When Invalid

 If promulgated in excess of its rule making power, the resulting rule or regulation is void. Article 6: APPLICABILITY

COMMENTS AND CASES

1. APPLICABILITY TO GOVERNMENT CORPORATIONS

 The ruling now is that the Labor Code applies to a corporation incorporated under the Corporation Code.

 Government corporations created by special charter from Congress are subject to civil service rules, while those incorporated under the Corporation Code are covered by the Labor code.

1.1. PNOC-EDC, FTI, NHA

2. NON-APPLICABILITY TO GOVERNMENT AGENCIES  The terms governmental ―agency‖ or

―instrumentality‖ are synonymous in the sense that either of them is a means by which a government acts, or by which a certain government act or function is performed. The word ―instrumentality‖ with respect to the state, contemplates an authority to which the

state delegates government power for the performance of a state function.

 Example: The National Parks Development Committee is an agency of the government, not a government-owned or controlled corporation. Its employees are covered by civil service rules and regulations, since they are civil service employees.

 But if function is proprietary in nature, its employees are governed by the Labor Code. 3. APPLICABILITY WITHOUT EMPLOYER-EMPLOYEE

RELATIONSHIP

 The Labor Code may apply even if the parties are not employers and employees of each other.

 The Labor Code applies with or without employment relationships between the disputants, depending on the kind of issue involved.

 For example, when one speaks of employment benefits, then surely, employment

relationship is an essential element. But when the issue, for instance, is an indirect

employer‘s liability, there is no employer-employee relationship and yet the pertinent Labor Code provisions find application.

(7)

Chapter II

EMANCIPATION OF TENANTS1 Article 7: STATEMENT OF OBJECTIVES

Article 8: TRANFER OF LANDS TO TENTN-WORKERS Article 9: DETERMINATION OF LAND VALUE

Article 10: CONDITION OF OWNERSHIP Article 11: IMPMENTING AGENCY

COMMENTS AND CASES 1. LEGISLATIVE HISTORY

 There is an acute imbalance in the distribution of land among our people. Hence, the Constitution of 1987 adopted a whole article containing provisions for the uplift of the common people, thus: ―The State shall, by law, undertake an agrarian reform program founded on the right of farmers and regular farmworkers, who are landless, to own directly or collectively the land they till or, in the case of other farmworkers, to receive a just share of the fruits thereof.‖

2. SHARE TENANCY ABOLISHED

 RA 3844 abolished and outlawed share tenancy and put in its stead the agricultural leasehold system.  RA 6389, amending RA 3844, declared share tenancy

as contrary to law and public policy.

 The phasing out of share tenancy was the first step towards the ultimate status of owner-cultivator, a

1_{Amended by R.A. No. 6657, June 10, 1988}

goal sought to be achieved by the government program of agrarian reform.

3. CONSTITUTIONAL PROVISIONS 4. COMPENSATION SCHEME

 Title to all expropriated properties shall be

transferred to the State only upon full payment of compensation of the respective owners.

5. RETENTION LIMITS

 … in no case shall retention by the landowner exceed 5 hectares.

6. LANDS NOT COVERED

6.1. Lands Obtained Through Homestead Patent  The Philippine Constitution respects the

superiority of the homesteader‘s rights over the rights of the tenants.

 Homestead Act has been enacted for the welfare and protection of the poor. The law gives a needy citizen a piece of land where he may build a modest house for himself and his family and plant what is necessary for

subsistence and for the satisfaction of life‘s other needs.

6.2. Residential Subdivisions

 An agricultural leasehold cannot be

established on land which has ceased to be devoted to cultivation or farming because of its conversion to a residential subdivision. (Gonzales vs. CA)

(8)

 There is simply no reason to include livestock and poultry lands in the coverage of agrarian reform.

BOOK ONE PRE-EMPLOYMENT Article 12: STATEMENT OF OBJECTIVES

COMMENTS 1. THE UNEMPLOYMENT PROBLEM

 In a list of 18 countries, the Philippines‘ unemployment rate is the highest, at 10.2%, meaning more than three million jobless.  The unemployment problem is exacerbated by

population growth that appears unchecked. 2. THE DOLE: ITS RESPONSIBILITY

 The Administrative Code mandates the DOLE to assume primary responsibility for:

a. The promotion of gainful employment opportunities and the optimization of the development and utilization of the country‘s manpower resources;

b. The advancement of workers‘ welfare by providing for just and humane working conditions and terms of employment; c. The maintenance of industrial peace by

promoting harmonious, equitable and

employment relations that assure protection for the rights of all concerned parties.

Title I

RECRUITMENT AND PLACEMENT OF WORKERS Chapter I

GENERAL PROVISIONS Article 13: DEFINITIONS

COMMENTS

ARTICLE 13 (B) CONSTRUED; WHAT CONSTITUTES RECRUITMENT AND PLACEMENT

 The number of persons 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. (People vs. Panis)

 It must be shown that the accused gave the

complainant the distinct impression that she had the power or the ability to send the complainant abroad for work, such that the latter was convinced to part with her money to be so employed. Where such an act or representation is not proven, there is not recruitment activity and conviction for illegal recruitment has no basis. (People vs. Goce)

(9)

 ―By themselves, procuring a passport, airline tickets and foreign visa for another individual, without more, can hardly qualify as recruitment activities.‖ (Darvin vs. CA)

Article 14: EMPLOYMENT PROMOTION COMMENTS EMPLOYMENT PROMOTION

 To pursue its responsibility to promote employment opportunities, the DOLE carries out programs for local and overseas employment.

Article 15: BUREAU OF EMPLOYMENT SERVICES COMMENTS

1. LOCAL EMPLOYMENT

 The Bureau of Employment Services has been replaced by the Bureau of Local Employment (BLE) through EO 797 (May 1, 1982)

1.1. The PESO

 Public Employment Service Office

 Intended to serve as employment service and information center in its area of operation. It regularly obtains a list of job vacancies from employers, publicizes them, invites and evaluates applicants, and refers them for probable hiring.

 Also holds special services for the public such as employment bazaars, etc.

Article 16: PRIVATE RECRUITMENT COMMENTS AUTHORIZED ENTITIES

 Based on the Rules Implementing the Code, the following entities are authorized to recruit and place workers for local or overseas employment:

a. public employment offices b. Private recruitment entities c. Private employment agencies d. Shipping or manning agents or

representatives e. POEA

f. Construction contractors if authorized to operate by DOLE and the

Construction Industry Authority g. Members of the diplomatic corps

although hirings done by them have to be processed through the POEA h. Other persons or entities as may be

authorized by the DOLE Secretary. Article 17: OVERSEAS EMPLOYMENT DEVELOPMENT

BOARD

(10)

1. OVERSEAS EMPLOYMENT, A BRIEF HISTORY

 Labor migration in the Philippines began in the 1900s when Hawaii experienced severe manpower

shortage. The 200 Filipinos that initially went there were followed by many more until they formed about 70% of Hawaii‘s plantation labor.

 Other countries such as the US, Canada, Australia, Japan and Saudi Arabia eventuall followed suit. 2. LEGISLATIVE BACKGROUND OF OVERSEAS EMPLOYMENT

 Act 2486: first law passed by Philippine Congress relating to overseas employment

 PD 442: Labor code, paved the way for stricter government regulation of the overseas employment industry.

 PD 1412: revived private sector participation in the recruitment and placement of Filipino migrant workers.

 EO 797: Enacted to streamline operations in the overseas employment program.

 EO 247: Reorganization Act of the POEA

 RA 8042: Migrant Workers and Overseas Filipinos Act of 1995

3. OVERSEAS EMPLOYMENT POLICY 3.1. R.A. No. 8042

 ―…The State does not promote overseas employment as a means to sustain economic growth and achieve national development.‖  ―… The existence of overseas employment

program rests solely on the assurance that the dignity and fundamental human rights and

freedoms of the Filipino citizen shall not, at any time, be compromised or violated.‖ 3.2. Selective Deployment

 RA 8042 requires certain guarantee of protection for the overseas worker before they are deployed in countries that meet some criteria:

o It has existing labor and social laws protecting the rights of migrant workers;

o It is a signatory to multilateral

conventions, declarations or resolutions relating to the protection of migrant workers;

o It has concluded a bilateral agreement or arrangement with the government protecting the rights of Filipino migrant workers;

o It is taking positive, concrete measures to protect the rights of migrant workers.

 Notwithstanding this… the government, in pursuit of national interest or when public welfare so requires, may, at any time,

terminate or impose a ban on the deployment of migrant workers.

4. THE POEA: OVERVIEW OF ITS FUNCTIONS AND POWERS  Among the principal functions of the POEA are the

(11)

overseas employment of the Filipino workers and the protection of their rights to fair and equitable

employment practices.

 Overseas Filipino Worker (OFW) is understood as a Filipino worker who is to be engaged, is engaged, or has been engaged in a remunerated activity in a country of which he/she is not a legal resident.  OFWs are classified by DOLE as either land-based or

sea-based.

4.1. POEA Rules (2002)

5. REGULATORY FNCTION OF POEA

 POEA regulates the private sector participation in the recruitment and overseas placement of workers through its licensing ad registration system.

6. ADJUDICATORY FUNCTIONS OF POEA

 Before the passage of RA 8042, POEA had original and exclusive jurisdiction to hear and decide the ff cases:

a. Recruitment violation and related cases consisting of all preemployment cases which are administrative in character, involving or arising out of recruitment laws, rules and

regulations, including money claims therefrom or violations of the conditions for issuance of license to recruit workers.

b. Employer-emploee relations cases consisting of all claims arising out of an employer-employee relationship or

b virtue of any law or contract

involving Filipino workers in overseas employment.

c. Disciplinary action cases consisting of all complaints against a contract worker for breach of discipline. 6.1. Jurisdiction Transferred to NLRC

 RA 8042 transferred to the NLRC the jurisdiction over employer-employee relations cases.

 Section 10 of the said law provides that Labor Arbiters shall have the exclusive and original jurisdiction to hear and decide claims arising out of an employer-employee relationship or by virtue of any law or contract

involving Filipino workers for overseas employment including claims for actual, moral, exemplary and other forms of damages.

 RA 8042 not only transferred from POEA to NLRC the jurisdiction over money claims of OFWs, it even expanded the scope of such money claim. When the jurisdiction was still with the POEA, the jurisdiction covered only money claims involving Filipino workers for overseas

employment. Now the NLRC jurisdiction is over money claims

(12)

involving Filipino workers for overseas deployment.

 RA 8042 allows for claims for money or damages sustained during the period of deployment or before departure for abroad.

6.2. Jurisdiction Retained With POEA

 POEA retains the jurisdiction to decide all cases which are administrative in character and disciplinary action cases. 6.3. Compromise Agreement

 RA 8042 allows also resolution by compromise.

6.4. Mandatory Principle

 Non-compliance with the periods provided for under the law will subject the responsible officials to penalties such as withholding of salaries until compliance, suspension, or dismissal from service.

7. EMPLOYER-EMPLOYEE RELATIONS CASES: TERMINATION OF EMPLOYMENT

7.1. Contractual Employees

 Sea farers are contractual employees. (Millares and Lagda vs. NLRC)

7.2. Premature Termination of Contract

 Where the workers‘ employment contract is terminated before its agreed termination date, and the

termination is not shown to be based on lawful or valid grounds, the

employer will be ordered to pay the workers their salaries corresponding to the unexpired portion of their employment contract. (Tierra Construction vs. NLRC)

7.3. Pretermination Under R.A. No. 8042; July 15, 1995 Onward

 The date of the employment

termination is material. If it occurred on or after July 15, 1995, the law to apply is RA 8042.

 Under Section 10, a worker dismissed from overseas employment without just, valid or authorized cause as defined by law or contract, is entitled to ―a full reimbursement of his

placement fee with interest at 12% per annum, plus his salary for the unexpired portion of his employment contract or for 3 months for every year of the unexpired term,

whichever is less.‖

8. EMPLOYER-EMPLOYEE RELATIONS CASES: MONEY CLAIMS; EMPLOYER‘S NATIONALITY IMMATERIAL

 Statutes and regulations do not limit the coverage to non-Filipino employers. Filipinos working overseas share the same risks and burdens whether their employers be Filipino or foreign.

(13)

8.1. Death and Other Benefits, Basis of Compensation  The standard contract for employment for

Filipino seamen allows the payment of death benefit pension, funeral benefit, and burial gratuity for the private respondent.

 These claims arose from the responsibility of the foreign employer together with the local agency for the safety of the employee

during his repatriation and until his arrival in this country, i.e. the point of hire. (Inter-Orient Maritime Enterprises vs. NLRC) 8.2. Illustrative Case: Death Benefit Under the

Standard Contract

 In order to evade liability for death benefit under the standard contract, it must be sufficiently shown that the deaths of the seamen were caused by their own willful and deliberate act. In this case, the evidence does not substantially prove that the seamen

contracted tetanus as a result of the

unsanitary surgical procedures they performed on themselves. Hence, the death benefits under the employment contract must be paid. (NFD International Manning Agents vs. NLRC) 8.3. Overseas Compensation Benefits in Dollars

 While it is true that RA 529 makes it unlawful to require payment of domestic obligations in foreign currency, this particular statute is not applicable in the case at bar. The fixing of the

award in dollars was based on the parties‘ employment contract, stipulating that wages and benefits in dollars, since private

respondent was engaged as an overseas seaman on board petitioner‘s foreign vessel. (Philippine International Shipping Corp. vs. NLRC)

9. DISCIPLINARY ACTION CASES

 The POEA may motu propio undertake a

disciplinary action against a worker for breach of discipline. It shall also establish a system of watching and blacklisting OCWs.

9.1. Grounds for Disciplinary Action

a. Commission of a felony punishable by Philippine laws or laws of host

country;

b. Drug addiction or possession or trafficking of prohibited drugs; c. Desertion or abandonment; d. Gambling;

e. Initiating or joining a strike, where prohibited;

f. Creating trouble at the work site; g. Embezzlement of company funds or

other properties; h. Theft or robbery; i. Prostitution; j. Vandalism;

k. Gunrunning or possession of deadly weapons;

(14)

l. Unjust refusal to depart for a worksite after all documents have been prepared;

m. Violations of the law and sacred practices of the host country and unjustified breach of the employment contract.

10. OUTSIDE POEA JURISDICTION

 The POEA has no jurisdiction to hear and decide a claim for enforcement of a foreign judgment. Such a claim must be brought before the regular courts. This is because the POEA is not a court, it is only an

administrative agency. 10.1. No Jurisdiction Over Torts

 Intention must be to seek and claim

protection under the Labor Code and not the Civil Code. In the case at bar, the items demanded are not labor benefits such as wages, overtime pay or separation pay, but are items claimed as natural consequences of his dismissal (which he denominates as

―damages.‖) POEA has no jurisdiction. Article 18: BAN ON DIRECT-HIRING

Article 19: OFFICE OF EMIGRANT AFFAIRS COMMENTS

 Direct hiring of Filipino workers by a foreign employer is not allowed except direct hiring by members of he diplomatic corps and others

mentioned in this article. Also excepted are ―name hirees‖ or those individual workers who are able to secure contracts for overseas employment on their own efforts and representations without the

assistance or participation of any agency.

 The Office of Emigrant Affairs has been abolished and its pertinent functions were transferred to the Commission on Filipinos Overseas (CFO) by Batasang Pambansa Blg. 79.

Article 20: NATIONAL SEAMEN BOARD COMMENTS AND CASES 1. NSB NOW POEA

 EO 797 abolished the NSB and transferred its

function to the POEA. But this adjudicatory function of the POEA has since been moved to the NLRC by RA 8042.

2. ARTICLE 20 CONSTRUED; SEAMEN‘S EMPLOYMENT CONTRACTS AND THE INTERNATIONAL TRANSPORT FEDERATION (ITF)

 Wallem Shipping vs. Ministry of Labor: Seamen who were dismissed because they demanded that they be paid the worldwide rate, instead of the lower Far East rate as provided in their contracts of

(15)

to warrant their dismissal. They were only exercising their rights. Hence, dismissal was illegal.

 ―Filipino seamen are admittedly as competent and reliable as seamen from any other country in the world; otherwise, there would not be so many of them in the vessels sailing in every ocean and sea on this globe. They are entitled to government

protection when they ask for fair and decent treatment by their employers and when they

exercise their right to petition for improved terms of employment, especially when they feel that these are substandard or are capable of improvement according to internationally accepted rules. Also, the standard forms embody the basic minimums which must be incorporated as parts of the employment contract. They are not collective

bargaining agreements or immutable contracts which the parties cannot improve upon or modify in the course of the agreed peril of time.‖ (Vir-jen Shipping vs. NLRC)

3. INVALID SIDE AGREEMENT

 An agreement that diminishes the employee‘s [ay and benefits as contained in a POEA-approved contract is void, unless such subsequent agreement is approved by the POEA.

4. DELAY IN FILING CLAIM

 There is no absolute rule as to what constitute laches; each case is to be determined according to its particular circumstances. The question of laches is addressed to the sound discretion of the court and

since it is an equitable doctrine, its application is controlled by equitable considerations. It cannot be worked to defeat justice or perpetrate fraud or injustice.

 ―Where the claim was filed within the three-year statutory period, recovery therefore cannot be barred by laches. Courts should never apply the doctrine of laches earlier than the expiration of time limited for the commencement of actions at law.‖ (Imperial Victory Shipping vs. NLRC)

5. MINIMUM EMPLOYMENT CONDITIONS

a. Guaranteed wages for regular working hours and overtime pay

b. Free transportation to and from the worksite, or offsetting benefit; c. Free food and accommodation, or

offsetting benefit;

d. Just and authorized causes for termination of contract taking into consideration the customs and norms of the host country.

6. FREEDOM TO STIPULATE

 Parties are allowed to stipulate other terms and conditions and other benefits not provided under these minimum requirements, provided the whole employment package should be more beneficial to the worker than the minimum, and that the same not be contrary to law, public policy, and morals.

(16)

COMMENTS

1. PROTECTION AND ASSISTANCE BY GOVERNMENT AGENCIES

 RA 8042 assigns four government agencies to promote the welfare and protect the rights of migrant workers and, as far as practicable, of all overseas Filipinos: DFA, DOLE, POEA, and OWWA. 2. THE RPM CENTER

 Re-Placement and Monitoring Center

 Serves as a promotion house for local employment of these returning workers and to tap their skills for national development.

3. THE OWWA

 Overseas Workers Welfare Administration

 Intended to provide social and welfare services, including insurance coverage, legal assistance, placement assistance, and remittance services to OFWs.

 Funded with contributions from the workers

themselves and the fees and charges imposed by the POEA and BLE.

4. REPATRIATION OF WORKERS

 The primary responsibility to repatriate a worker, including his or her remains and personal effects, belongs to the principal or the agency that recruited or deployed the worker.

 If the termination is due solely to the fault of the worker, the principal or agency may recover the cost

of repatriation from the worker after return to the country.

 If the principal of agency does not comply with this obligation, the POEA shall notify the OWWA to advance the repatriation cost with recourse to the agency or principal.

Article 22: MANDATORY REMITTANCE OF FOREIGN

EXCHANGE EARNINGS

COMMENTS REMMITTANCE

Article 23: COMPOSITION OF THE BOARDS COMMENTS

1. COMPOSITION OF THE POEA

Article 24: BOARDS TO ISSUE RULES AND COLLECT FEES

Chapter II

REGULATIONS OF RECRUITMENT AND PLACEMENT ACTIVITIES

Article 25: PRIVATE SECTOR PARTICIPATION IN THE

RECRUITMENT AND PLACEMENT OF WORKERS

(17)

1. VALIDITY OF POEA REGULATIONS

 Valid under the principle of subordinate legislation 1.1. POEA Circular No. 11 (1983) Unenforceable  This circular has not yet been published or filed with

the National Administrative Register, hence, cannot be used as a basis for the imposition of

administrative sanctions.

Article 26: TRAVEL AGENCIES PROHIBITED TO RECRUIT COMMENTS

 The POEA rules also disqualify persons with derogatory records such as those convicted for illegal recruitment or other crimes involving moral turpitude, an official or employee of DOLE, POEA, OWWA, DFA and other government agencies directly involved in the implementation of RA 8042 or any of their relatives within the fourth civil degree.

Article 27: CITIZENSHIP REQUIREMENT Article 28: CAPITALIZATION

COMMENTS

 The required capitalization, according to POEA rules, is a minimum of two million pesos in case of single proprietorship or partnership and a minimum paid-up capital of the same amount for a corporation.

Article 29: NON-TRANSFERABILITY OF LICENSE OR

AUTHORITY

COMMENTS PLACE OF RECRUITMENT

 Licensees or holders of authority or their

duly-authorized representatives may, as a rule, undertake recruitment and placement activities only at their authorized official address.

 Under existing regulations, however, they may be allowed to conduct provincial recruitment only upon written authority from the POEA.

 Recruitment of workers for overseas employment cannot be lawfully undertaken on a house-to-house basis, in residences, or secluded places.

Article 30: REGISTRATION FEES Article 31: BONDS

COMMENTS AND CASES

 The POEA possesses the power to enforce liability under cash or surety bonds.

 These are means of ensuring prompt and effective recourse against such companies when held liable for applicants‘ and workers‘ claims. (Finman General Assurance vs. Innocencio)

(18)

COMMENTS AND CASES 1. CHARGEABLE FEES

 Unless otherwise provided, the principal shall be liable to pay for the ff:

a. visa fee; b. airfare;

c. POEA processing fee; and d. OWWA membership fee.

 A land-based agency may charge and collect from its hired workers a placement fee in an amount

equivalent to one month salary, exclusive of documentation costs. These documentation costs shall include expenses for the ff:

a. Passport;

b. NBI/ Police/ Barangay clearance; c. Authentication;

d. Birth Certificate; e. Medicare;

f. Trade test, if necessary; g. Inoculation, when required; h. Medical Examination fees.

 The abovementioned 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 by the POEA.

 Such fees shall be collected from the hired worker only after he has obtained employment through the facilities of the recruitment agency.

2. REFUND FEES

 POEA has the power to order the refund of illegally collected fees.

Article 33: REPORTS ON EMPLOYMENT STATUS Article 34: PROHIBITED PRACTICES

COMMENTS AND CASES PROHBITED PRACTICES

 Article 34(a) prohibits the charging or accepting of fees greater than that allowed by regulations. It is also a deterrant to loan sharks who lend money at usurious interests.

 Article 34(b) includes the act of furnishing fake employment documents to a worker, and the act of publishing false notice or information in relation to recruitment or employment.

 In Article 34(d), it is not necessary that the worker was actually induced or did quit the employment. Article 35: SUSPENSION AND/OR CANCELLATION OF

LICENSE OR AUTHORITY

COMMENTS AND CASES 1. SUSPENSION OR CANCELLATION OF LICENSE

(19)

 The grounds for imposition of administrative sanctions include engaging in acts of

misrepresentation for the purpose of securing a license or renewal thereof, etc. The acts prohibited under Art. 34 are not just grounds for suspension or cancellation of license or authority. They likewise constitute illegal recruitment under RA 8042. 1.1. Concurrent Jurisdiction to Suspend or Cancel a

License

 The SC has affirmed the concurrent jurisdiction of the DOLE Secretary and the POEA

Administrator to suspend or cancel a license. 2. PERSONS LIABLE; DURATION OF LIABILITY

 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 injuredm 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.

 The responsibilities of the recruitment agency and the principal to the worker extends up to and until the expiration of the employment contracts of the employees recruited and employed pursuant to the said employment agreement.

3. SOLIDARY LIABILITY ASSUMED BY RECRUITMENT AGENT

 Contract contained a provision empowering the agency to sue and be sued jointly and solidarily with the foreign principal for any of the violations of the recruitment agreement and the contracts of

employment. These contractual undertakings

constitute the legal basis for private agencies being liable jointly and severally with its principal, for all claims filed by recruited workers which may arise in connection with the implementation of the service agreements or employment contracts. (Royal Crown Inernationale vs. NLRC)

3.1. Required Undertaking by Agent 3.2. Contract by Principal

 It has been held that even if it was the petitioner‘s principal which entered into a contract with the private respondent,

nevertheless, petitioner, as the manning agent in the Philippines, is jointly and solidarily

responsible with its principal. (Seagull Maritime Corp vs. Balatongan)

3.3. Proper Party

 A sister in the Philippines of a maltreated Filipino domestic helper in Abu Dhabi is a proper party to file a complaint.

4. SUABILITY OF A FOREIGN CORPORATION WHICH HIRES FILIPINO WORKERS

 A foreign corporation which, through unlicensed agents, recruits workers in the country may be sued in and found liable by Philippine courts.

(20)

5. DEREGULATION AND PHASE OUT

 RA 8042 envisions a phase-out of POEA‘s regulatory function so that the migration of workers will become strictly a matter between the worker and his employer. This projected deregulation has stirred some controversies which, to this day, continue to remain unresolved.

Chapter III – Miscellaneous Provisions Art. 36 – Regulatory Power

The Secretary of Labor shall have the power to restrict and regulate the recruitment and placement activities of all agencies within the coverage of this Title and is hereby authorized to issue orders and promulgate rules and regulations to carry out the objectives and implement the provision of this Title.

Art. 37 – Visitorial Power

The Secretary of Labor or his duly authorized representatives may, at any time, inspect the premises, books of accounts and records of any person or entity covered by this Title, require it to submit reports regularly on prescribed forms, and act on any violations of this Title.

Art. 38 – ILLEGAL RECRUITMENT2

2

Amended by Republic Act 8042 or The Migrant Workers and Overseas Filipinos Act of 1995

As stated in the Code: (a) Any recruitment activities, including prohibited practices enumerated under Art. 34 of this Code, to be undertaken by licensees or non-holders of authority shall be deemed illegal and punishable under Art. 39 of this Code. The DOLE or any law enforcement officer may initiate complaints under this Article.

(b) Illegal Recruitment, when committed by a syndicate or in large scale shall be considered an offense involving economic sabotage and shall be penalized in accordance with Art. 39 hereof.

Illegal Recruitment is deemed committed by a syndicate if carried out by a group of three (3) or more persons conspiring and/or confederating with one another in carrying out any unlawful of illegal transaction, enterprise or scheme, defined under the first paragraph hereof. Illegal Recruitment is deemed committed in large scale if committed against three (3) or more persons individually or as a group.

(c) The Secretary of Labor and Employment or his duly authorized representatives shall have the power to cause the arrest and detention of such non-licensee or non-holder of authority if after investigation it is determined that his activities constitute danger to national security and public order or will lead to further exploitation of job-seekers. The Minister shall order the search of the office or premises and seizure of documents, paraphernalia, properties and other implements used in illegal recruitment activities and the closure of companies, establishments

(21)

and entities found to be engaged in the recruitment of workers for overseas employment without having been licensed or authorized to do so.

 Now, under RA 8042, the abovementioned article has been amended to also include LICENSED or AUTHORIZED entities; the list of ACTS CONSIDERED AS ILLEGAL RECRUITMENT has also been EXPANDED as found in SECTION 6, RA 8042:

Definition: xxx 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 as contemplated under the Labor Code; Provided, that any such non-licensee or non-holder who, in any manner, offers or promises for a fee employment abroad to two or more persons shall be deemed so engaged. It shall likewise include the following acts whether committed by any person, WHETHER A NON-LICENSEE, NON-HOLDER, LICENSEE OR HOLDER OF AUTHORITY:

a.) To change or accept directly or indirectly any amount greater than that specified in the

schedule of allowable fees prescribed by the DOLE Secretary, or to make a worker pay any amount greater than that actually received by him as a loan or advance;

b.) To furnish of publish any false notice or information or document in relation to recruitment or employment; c.) To give any false notice,

testimony, information or document or commit any act of misrepresentation for the purpose of securing a license or authority under the Labor Code; d.) To induce or attempt to induce a

worker already employed to quit his employment in order to offer him another unless the transfer is designed to liberate a worker from oppressive terms and conditions of employment;

e.) To influence or attempt to influence any 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

(22)

harmful to public health or morality or to the dignity of the Republic of the Philippines; g.) To obstruct or attempt to

obstruct inspection by the DOLE Secretary or by his duly authorized representative;

h.) To fail to submit reports on the status of employment, placement vacancies, remittance of forex earnings, separation from jobs, departures and such other information as may be required by the DOLE Secretary; i.) To substitute or alter to the

prejudice of the worker, employment contracts approved and verified by the DOLE from the time of the 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 become an officer or member of the Board of any corporation engaged in travel agency or to be engaged directly

or indirectly in the management of a travel agency;

k.) To withhold or deny travel documents from applicant workers before departure for monetary or financial considerations other than those authorized under the provisions of the Labor Code and its IRR‘s; l.) Failure to actually deploy

without valid reason as determined by the DOLE;

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 and/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.

(23)

 Persons Liable: Principals, Accomplices, and Accessories; for Juridical Persons: the officers HAVING CONTROL, MANAGEMENT, OR DIRECTION of their business

 General Rule: Employees who have no control, do not manage nor direct the business may not be held liable; UNLESS, it is shown that such employees ACTIVELY AND CONSCIOUSLY PARTICIPATED in the illegal recruitment

 LACK OF RECEIPTS: will not defeat the purpose of criminal prosecution AS LONG AS THE WITNESSES CAN POSITIVELY SHOW THROUGH THEIR RESPECTIVE TESTIMONIES that the accused was the one involved in the prohibited recruitment; credible testimonies suffice

 ECONOMIC SABOTAGE: IR committed by syndicate and IR committed in large scale; each is an independent and separate category that can stand on their own and need not coincide or concur within the same case

 ESTAFA: CONVICTION for Illegal Recruitment is not a bar for filing suit against such person for ESTAFA under the RPC as long as the requisites for said felony are present

 THE POWER TO ISSUE SEARCH AND ARREST WARRANTS AS FOUND IN ART. 38 (C) DEEMED UNCONSTITUTIONAL see Salazar v. Achacoso and Marquez, G.R. No. 81510, March 14, 1990

- under the Constitution (Art. III, Sec. 2, 1987 Constitution) only a judge may issue a warrant of arrest or a search warrant

- the Secretary of Labor is not a judge hence is no longer granted the power to issues said warrants. Authorities must now undergo judicial process

- Exception: Deportation or Illegal and Undesirable Aliens Cases—the President or the Commissioner of Immigration may order arrested following a final order of deportation for the purpose of deportation

 SUBJECT TO ARREST: Illegal Recruiters are still subject to arrest, upon compliance with the procedure as provided for by law namely through a warrant of arrest issued by a judge of an RTC where a criminal information was filed after preliminary investigation; also RULES ON WARRANTLESS ARRESTS under Rule 113, Section 5 of the ROC may still apply to illegal recruiters when they fall under the circumstances enumerated therein; WARRANTLESS SEARCHES: INCIDENTAL to lawful arrest; PLAIN VIEW; with INDIVIDUAL‘S CONSENT

 CLOSURE ORDER: DOLE Secretary or his duly authorized representative still has power or authority to issue and order closure of illegal recruitment establishes, this being an ADMINISTRATIVE and REGULATORY action; Issuance after an ex parte preliminary examination to determine whether the activities of a non-licensee

(24)

constitute a danger to national security and public order or will lead to further exploitation of job seekers

 PROCEDURE FOR CLOSURE: Rules Secs. 14 – 27; these cover the POEA‘s Anti-Illegal Recruitment Programs; Provision for Legal Assistance; Complaints Desk; Surveillance; Issuance of Closure Order; Implementation of Closure Order; Report on CO, Institution of Criminal Action; Motion to Lift CO; Who may file such Motion; Grounds for Lifting or Re-opening; Appeal and Re-padlocking of Office

Art. 39 - PENALTIES3

(A) The penalty of life imprisonment and a fine of One Hundred Thousand Pesos (P100,000) shall be imposed if illegal recruitment constitutes economic sabotage as defined herein;

(B) Any licensee or holder of authority found violating or causing another to violate any provision of this Title or its implementing rules and regulations shall upon conviction thereof, suffer the penalty of imprisonment of not less than two years nor more than five years or a fine not less than P10,000 nor more than P50,000, or both such imprisonment and fine, at the discretion of the court;

(C) Any person who is neither a licensee nor a holder of authority under this Title found violating any provision thereof or its IRR‘S shall, upon conviction thereof, suffer the penalty of imprisonment of not

3_{Amended by RA 8042, Section 7}

less than four years nor more than eight years or a fine not less than P20,000 nor more than P100,000 or both such imprisonment and fine, at the discretion of the court;

(D) If the offender is a corporation, partnership, association, or entity, the penalty shall be imposed upon the officer or officers of the corporation, partnership, association, or entity responsible for the violation, and if such officer is an alien, he shall, in addition to the penalties herein prescribed, be deported without further proceedings;

(E) In every case, conviction shall cause and carry the automatic revocation of the license or authority and all the permits and privileges granted to such person or entity under this Title, and the forfeiture of the cash and surety bonds in favor of the Overseas Employment Board or the National Seamen Board, as the case may be, both of which are authorized to use the same exclusively to promote their objectives.

 Section 7, RA 8042 provides:

Any person found guilty of IR shall suffer the penalty of IMPRISONMENT of NOT LESS THAN SIX (6) YEARS AND ONE (1) DAY BUT NOT MORE THA TWELVE (12) YEARS and A FINE OF NOT LESS THAN TWO HUNDRED THOUSAND PESOS (P200,000.00) NOR MORE THAN FIVE HUNDRED THOUSAND PESOS (P500,000.00)

(25)

The penalty of LIFE IMPRISONMENT and a FINE NOT LESS THAN FIVE HUNDRED THOUSAND PESOS (P500,000.00) NOR MORE THAN ONE MILLION PESOS (P1,000,000.00) shall be imposed if IR CONSTITUTES ECONOMIC SABOTAGE

Provided however, That the MAXIMUM PENALTY shall be imposed if the PERSON ILLEGALLY RECRUITED is LESS THAN 18 YEARS OF AGE or committed by a non-licensee or non-holder of authority.

 VENUE (Sec. 9, RA 8042): Criminal Action arising from IR shall be filed with the REGIONAL TRIAL COURT of the province or city WHERE THE OFFENDED PARTY ACTUALLY RESIDES AT THE TIME OF THE COMMISSION OF THE OFFENSE

 MANDATORY PERIODS for Resolution of IR cases (Sec. 11, RA 8042): terminate within 30 days from date of filing: preliminary investigation; file information within 24 hours from termination of investigation; file information within 48 hours from the date of receipt of case records if preliminary investigation conducted by judge and prima facie case is established

 PRESCRIPTIVE PERIODS (Sec. 12, RA 8042): General IR: five (5) years; IR involving Economic Sabotage: twenty (20) years

TITLE II – EMPLOYMENT OF NON-RESIDENT ALIENS Art. 40 – EMPLOYMENT PERMIT OF NON-RESIDENT ALIENS

Any alien seeking admission to the Philippines for employment purposes and any domestic or foreign employer who desires to engage an alien for employment in the Philippines shall obtain an employment permit from the DOLE.

The employment permit may be issued to a non-resident alien or to the applicant employer after a determination of non-availability of a person in the Philippines who is competent, able and willing at the time of the application to perform the services for which the alien is desired.

For an enterprise registered in preferred areas of investments, said employment permit may be issued upon recommendation of the government agency charged with the supervision of said registered enterprise.

Art. 41 – Prohibition against transfer of employment (a) After the issuance of the employment permit, the

alien shall not transfer to another job or change his employer without prior approval from the Secretary of DOLE

(b) Any non-resident alien who shall take up employment in violation of provision of this Title

(26)

and its IRR‘s shall be punished in accordance with Arts. 2894 and 290 of the Labor Code.

In addition, the alien worker shall be subject to deportation after service of his sentence.

 RESIDENT ALIENS: NOT required to have employment permits; instead, they need an ALIEN EMPLOYMENY REGISTRATION CARD (AERC)

 NATIONALIZED INDUSTRIES and the ANTI-DUMMY LAW (C.A. no. 108 as amended by PD715) – Foreigners may not be employed in certain ―nationalized‖ industries; law provides and subjects reservation of ownership and control of such corporations to the 60% requirement, i.e. public utility, natural resources; financing companies; however, media and advertising requires 100% Filipino ownership and management (Consti)

 DOJ OPINION 143, series 1976: provides instances when aliens may be allowed to engage in employment within nationalized industries: a.) where the DOJ Secretary specifically authorizes the employment of foreign technical personnel, or, b.) where the aliens are elected members of the Board of Directors or governing body of corporations or associations in proportion to their allowable participation in the capital of such entities

4_{Re-check Codal; di nag-ma-match numbers e; Book 7: Title 1: Penal}

Provisions and Liabilities; 288 (Penalties) - 289 (Liable Officers of Juridical Person); Title 2: Prescription; 290: Offenses: 3 years

 DEPARTMENT ORDER no. 12, SERIES 2001: Omnibus Guidelines for the Issuance of Employment Permits to Foreign Nationals; the following are required to apply for an Alien Employment Permit (AEP):

1.) All foreign nationals seeking admission to the Philippines for the purpose of employment; 2.) Missionaries or religious workers who intend

to engage in gainful employment;

3.) Holders of Special Investors Resident Visa (SIRV), Special Retirees Resident Visa (SRRV), Treaty Trades Visa, or Special Non-Immigration Visa, who occupy any advisory, supervisory, or technical position in any establishment;

4.) Agencies, organizations, or individuals whether public or private, who secure the services of foreign professional to practice their professions in the Philippines under reciprocity and international agreements; 5.) Non-Indo Chinese Refugees who are asylum

seekers and given refugee status by the UN High Commissioner on Refugees (UNHCR) of the DOJ under the DOJ Department Order no. 49, 1998.

6.) Resident foreign Nationals seeking employment in the Philippines (see D.O. no. 21-02 which suspends ―until further notice‖ the requirement for Resident Foreign Nationals to secure AEP)

(27)

 D.O. 12-01 further, EXEMPTS the following from AEP requirements:

1.) All members of the diplomatic services and foreign government officials accredited by the Philippine Government;

2.) Officers and staff of the international organizations of which the Philippine government is a cooperating member, and their legitimate spouses desiring to work in the Philippines;

3.) Foreign nationals elected as members of the Governing Board who do not occupy any other position, but have only voting rights in the corporation, and

4.) All foreign nationals granted exemption by special laws and all other laws that may be promulgated by Congress

 Basis for issuing AEP:

a.) Compliance by the applicant employer or the foreign national with the substantive and documentary requirements;

b.) Determination of the DOLE Secretary that there is no Filipino national who is competent, able and willing to do the job for which the services of the applicant is desired;

c.) Assessment of the DOLE Secretary that the employment of the Foreign

national will redound to national benefit.

- Understudy Program is no longer required for the issuance of AEP

- G.R. Validity of AEP is for ONE YEAR unless the employment contract, consultancy services, or other modes of engagement or term of office for elective officers, provides for a longer period;

- RENEWAL OF AEP: application must be filed at least 15 days before its expiration;

- EFFECTIVITY OF RENEWAL: one day after the expiration of previous permit; regardless of whether or not the renewal is granted before or after the expiration of the previous permit;

 GENERAL RULE: PERMITS VALID ONLY FOR THE POSITION AND EMPLOYER FOR WHICH THEY WERE ISSUED; except in cases of holders of MULTIPLE POSITIONS IN ONE CORPORATION

Art. 42 – Submission of List

Any employer employing non-resident foreign nationals on the effective date of this Code, shall submit a list of such nationals to the Secretary of Labor within thirty (30) days after such date indicating their names, citizenship, foreign and local addresses, nature of employment and status of stay in the country. The Secretary of Labor shall then determine if they are entitled to an employment permit.

(28)

BOOK TWO

HUMAN RESOURCES DEVELOPMENT TITLE I:

MANPOWER DEVELOPMENT PROGRAM CHAPTER 1

NATIONAL POLICIES AND ADMINISTRATIVE MACHINERY FOR THEIR IMPLEMENTATION

Articles 43 – 56; pertaining to National Manpower and Youth Council has been replaced and absorbed by the TESDA (Technical Education and Skills Development Authority) created under RA7796 which was approved on August 25, 2994.

For the complete copy of Republic Act 7796: The TESDA Act of 1994,

see Appendix II-1 of Azucena’s Labor Book

For the complete copy of the Implementing Rules for R.A. 7796,

see Appendix II-1.1. of Azucena’s Labor Book

Declaration of Policy: It is the declared policy of the State to provide relevant, accessible, high quality and efficient technical education and skills development in support of the development of high quality Filipino middle-level manpower responsive to and in accordance with Philippine development goals and priorities.

Private Sector Participation – The State shall encourage the active participation of various concerned sectors, particularly private enterprises, being direct participants in and immediate beneficiaries of a trained and skilled workforce, in providing technical education and skills development opportunities.

TITLE II – TRAINING AND EMPLOYMENT OF SPECIAL WORKERS

Chapter 1: APPRENTICES Art. 57 – Statement of Objectives

Art. 58 – Definition of Terms

As used in this Title: a.) Apprenticeship – means any practical training on the job supplemented by related theoretical instruction; b.) An Apprentice is a worker who is covered by a written apprenticeship agreement with an individual employer or any entities recognized under this Chapter; c.) An Apprenticeable Occupation means any trade, form of employment or occupation which requires more than three (3) months of practical training on the job supplemented by related theoretical instruction; (see R.A. 7796) d.) Apprenticeship Agreement is an employment contract wherein the employer binds himself to train the apprentice and the apprentice in turn accepts the terms of training.

(29)

To qualify as an apprentice, a person shall:

(a) Be at least fourteen (14) years of age; (but under the IRR, it‘s 15 years) (b) Possess vocational aptitude and

capacity for appropriate tests; and (c) Possess the ability to comprehend

and follow oral and written instructions.

Trade and industry associations may recommend to the Secretary of Labor appropriate educational requirements for different occupations.

Art. 60 – Employment of Apprentices

 Apprenticeship is the arrangement and the period when an upcoming worker undergoes hands-on training, more or less formal, to learn the ropes of a skilled job. It is usually the point of entry to the world of work.

 Department Order no. 8; March 9, 1989 – DOLE Policy on Apprenticeship; by virtue of which, the DOLE is required to undertake the review of trades, occupation, and jobs in all sectors of the economy to determine the apprenticeability, after which it shall submit a list of apprenticeable occupations.

 The apprenticeable age under this Article is 14, but under the IRR, it‘s 15, now under R.A. 7610 there is an explicit prohibition on employment of children below 15 years of age, although the said law recognizes certain exceptions, an apprenticeship is not included in the enumeration.

Art. 61 – Contents of Apprenticeship Agreements

 Apprenticeship need DOLE‘s prior approval, or Apprentice becomes regular employee

- Nitto Enterprises v. NLRC and R. Capili (G.R. no. 114337) September 29, 1995

- It is mandated that apprenticeship agreements entered into by an employer and an apprentice shall be entered only in accordance with the apprenticeship program duly approved by the Minister of Labor and Employment; hence, since the apprenticeship agreement between petitioner and private respondent has no force and effect in the absence of a valid apprenticeship program duly approved by the DOLE, private respondent‘s assertion that he was hired not as an apprentice but as a delivery boy deserves credence.

Art. 62 – Signing of Apprenticeship Agreement Art. 63 – Venue of Apprenticeship Programs Art .64 - Sponsoring of Apprenticeship Program

Art. 65 -Investigation of Violation of Apprenticeship Agreement

Art. 66 - Appeal to the Secretary of Labor

Art. 67 - Exhaustion of Administrative Remedies Art. 68 - Aptitude Testing of Applicants