LABOR LAWS AS AN EQUALIZING ECONOMIC FORCE .

ARTICLE 3 DECLARATION OF BASIC POLICY

The State shall afford protection to labor, promote full employment , ensure equal work opportunities regardless of sex,
race , or creed and regulate the relations between workers and employees. The State shall assure the rights of workers
to self – organization, collective bargaining , security of tenure, and just and humane conditions of work.

What is social justice ?

1987 Constitution , Declaration of Principles of State Policies provides that

“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 ”

BASIS OF SOCIAL JUSTICE : POLICE POWER OF THE STATE

POLICE POWER – THE power of the government to enact laws , within constitutional limits , to promote the order, safety
, health , morals, and general welfare of society .

What is just compensation ?

RA 8042 SECTION 6. Definition. — For purposes of this Act, illegal recruitment shall mean any act of canvassing, enlisting,
contracting, transporting, utilizing, hiring, or procuring workers and includes referring, contract services, promising or
advertising for employment abroad, whether for profit or not, when undertaken by a non-licensee or non-holder of
authority contemplated under Article 13(f) of Presidential Decree No. 442, as amended, otherwise known as the Labor
Code of the Philippines: Provided, That any such non-licensee or non-holder who, in any manner, offers or promises for
a fee employment abroad to two or more persons shall be deemed so engaged. It shall likewise include the following
acts, whether committed by any person, whether a non-licensee, non-holder, licensee or holder of authority:

ARTICLE 34 PROHIBITED PRACTICES

It shall be unlawful for any individual, entity , licensee, or holder of authority .

a. to charge or accept, directly or indirectly , any amount greater than that specified in the schedule of allowable
fees prescribed by the Secretary of Labor , or to make a worker pay, any amount greater than that actually
received by him as a loan or advance.
b. to furnish or publish any false notice or information or document in relation to recruitment or employment
c. to give any false notice, testimony, information , or document in relation to recruitment or employment
d. to induce or attempt to induce a worker already employed to quit his employment in order to offer him to
another unless the transfer is designed to liberate the worker from oppressive terms and conditions of
employment
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;
g. To obstruct or attempt to obstruct inspection by the Secretary of Labor and Employment or by his duly
authorized representative;
h. To fail to submit reports on the status of employment, placement vacancies, remittance of foreign exchange
earnings, separation from jobs, departures and such other matters or information as may be required by the
Secretary of Labor and Employment;
i. To substitute or alter to the prejudice of the worker, employment contracts approved and verified by the
Department of Labor and Employment from the time of actual signing thereof by the parties up to and including
the period of the expiration of the same without the approval of the Department of Labor and Employment;
j. For an officer or agent of a recruitment or placement agency to become an officer or member of the Board of
any corporation engaged in travel agency or to be engaged directly or indirectly in the management of a travel
agency;
k. To withhold or deny travel documents from applicant workers before departure for monetary or financial
considerations other than those authorized under the Labor Code and its implementing rules and regulations;
l. Failure to actually deploy without valid reason as determined by the Department of Labor and Employment ;
m. Failure to reimburse expenses incurred by the worker in connection with his documentation and processing for
purposes of deployment, in cases where the deployment does not actually take place without the worker’s fault.

Illegal recruitment when committed by a syndicate or in large scale shall be considered an offense involving economic
sabotage. Illegal recruitment is deemed committed by a syndicate if carried out by a group of three (3) or more persons
conspiring or confederating with one another.
It is deemed committed in large scale if committed against three (3) or more persons individually or as a group.

The persons criminally liable for the above offenses are the principals, accomplices and accessories. In case of juridical
persons, the officers having control, management or direction of their business shall be liable.

RA 8042 SECTION 7. Penalties. — (a) Any person found guilty of illegal recruitment shall suffer the penalty of
imprisonment of not less than six (6) years and one (1) day but not more than twelve (12) years and a fine of not less
than Two hundred thousand pesos (P200,000.00) nor more than Five hundred thousand pesos (P500,000.00). (b) The
penalty of life imprisonment and a fine of not less than Five hundred thousand pesos (P500,000.00) nor more than One
million pesos (P1,000,000.00) shall be imposed if illegal recruitment constitutes economic sabotage as defined herein.
Provided, however, That the maximum penalty shall be imposed if the person illegally recruited is less than eighteen
(18) years of age or committed by a non-licensee or non-holder of authority

Powers of the government

1. eminent domain power

2. police power
3. power of taxation

Notes

1. publication of the rules issued by administrative bodies is mandatorily required .( Tanada vs Tuvera
Tanada is clear and categorical that administrative rules and regulations must be published if their purpose is to
enforce or implement existing laws pursuant to a valid delegation.

Only exceptions are :

A. interpretative regulations or those that are merely internal in nature

B. letters of instructions issued by administrative superiors concerning the rules and guidelines to be followed by
their subordinates in the performance of their duties.

NOTES
1. Labor Code applies only to private sector employees but not to public sector employees.
Public sector employees are governed by the Civil SERVICE Law rules and regulations.
ONLY Title II of Book IV , Employees ‘ Compensation and State Insurance Fund (as amended by PD NO. 626 ) is
applicable to public sector employees

2. ATTY DILOY :
What are the reasons for affording greater protection to employees ?
a. Greater supply than demand for labor
b. need for employment by labor comes from vital and desperate necessity

3. ATTY DILOY : Are all labor disputes resolved in favor of labor ?

No . The law recognizes the management has rights which are also entitled to respect and enforcement in the
interest of fair play.

4. ATYY DILOY : FOUR FUNDAMENTALS OF EMPLOYERS RIGHTS

A. right to ROI / right to make profit
B. right to prescribe rules
C. right to select employees
D. right to transfer or discharge employees

RESTRICTIONS TO MANAGER’S RIGHTS

Article 19 NCC

Every person must in the exercise of his rights and in the performance of his duties, act with justice , give everyone his
due, and observe honesty and good faith .

MANAGEMENT RIGHTS ARE SUBJECT TO LIMITATIONS PROVIDED BY

a. law , either general or particular

b. contract, whether individual or collective
c. general principles of fair play and justice

5. ATTY DILOY : CAPITAL OR LABOR ? WHICH ONE ?

Both are interdependent.
 It recognizes shared responsibility of employers and workers
For the promotion of full employment requires promotion of job opportunities through the success and
expansion of private enterprises .
6. PD 27
CARP, or the Comprehensive Agrarian Reform Program, is the redistribution of public and private agricultural
lands to farmers and farmworkers who are landless, irrespective of tenurial arrangement. CARP’s vision is to have
an equitable land ownership with empowered agrarian reform beneficiaries who can effectively manage their
economic and social development to have a better quality of life.

One of the major programs of CARP is Land Tenure Improvement, which seeks to hasten distribution of lands to
landless farmers. Similarly, the Department offers Support Services to the beneficiaries such as infrastructure
facilities, marketing assistance program, credit assistance program, and technical support programs. Furthermore,
the department seeks to facilitate, resolve cases and deliver Agrarian Justice.

The legal basis for CARP is the Republic Act No. 6657 otherwise known as Comprehensive Agrarian Reform Law
(CARL) signed by President Corazon C. Aquino on June 10, 1988. It is an act which aims to promote social
justice and industrialization, providing the mechanism for its implementation, and for other purposes.

SECTION 4. Scope. — The Comprehensive Agrarian Reform Law of 1989 shall cover, regardless of tenurial arrangement
and commodity produced, all public and private agricultural lands, as provided in Proclamation No. 131 and Executive
Order No. 229, including other lands of the public domain suitable for agriculture.

More specifically the following lands are covered by the Comprehensive Agrarian Reform Program:

(a) All alienable and disposable lands of the public domain devoted to or suitable for agriculture. No reclassification of
forest or mineral lands to agricultural lands shall be undertaken after the approval of this Act until Congress, taking into
account ecological, developmental and equity considerations, shall have determined by law, the specific limits of the
public domain.

(b) All lands of the public domain in excess of the specific limits as determined by Congress in the preceding paragraph;

(c) All other lands owned by the Government devoted to or suitable for agriculture; and

(d) All private lands devoted to or suitable for agriculture regardless of the agricultural products raised or that can be
raised thereon.

Atty DILOY : JURIDICAL PERSONS CAN SELL AGRICULTURAL LANDS AS LONG AS THE BUSINESS ENGAGES IN
AGRIBUSINESS .

SECTION 8. Multinational Corporations. — All lands of the public domain leased, held or possessed by multinational
corporations or associations, and other lands owned by the government or by government-owned or
controlled corporations, associations, institutions, or entities, devoted to existing and operational agri-business or agro-
industrial enterprises, operated by multinational corporations and associations, shall be programmed for acquisition and
distribution immediately upon the effectivity of this Act, with the implementation to be completed within three (3) years.

Lands covered by the paragraph immediately preceding, under lease, management, grower or service contracts, and the
like, shall be disposed of as follows:

(a) Lease, management, grower or service contracts covering such lands covering an aggregate area in excess of 1,000
hectares, leased or held by foreign individuals in excess of 500 hectares are deemed amended to conform with the limits
set forth in Section 3 of Article XII of the Constitution.

(b) Contracts covering areas not in excess of 1,000 hectares in the case of such corporations and associations, and 500
hectares, in the case of such individuals, shall be allowed to continue under their original terms and
conditions but not beyond August 29, 1992, or their valid termination, whichever comes sooner, after which, such
agreements shall continue only when confirmed by the appropriate government agency. Such contracts shall likewise
continue even after the lands has been transferred to beneficiaries or awardees thereof, which transfer shall be
immediately commenced and implemented and completed within the period of three (3) years mentioned in the first
paragraph hereof.

(c) In no case will such leases and other agreements now being implemented extend beyond August 29, 1992, when all
lands subject hereof shall have been distributed completely to qualified beneficiaries or awardees. Such agreements can
continue thereafter only under a new contract between the government or qualified beneficiaries or awardees, on the one
hand, and said enterprises, on the other. Lands leased, held or possessed by multinational corporations, owned by private
individuals and private non-governmental corporations, associations, institutions and entities, citizens of the Philippines,
shall be subject to immediate compulsory acquisition and distribution upon the expiration of the applicable
lease, management, grower or service contract in effect as of August 29, 1987 , or otherwise, upon its valid termination,
whichever comes sooner, but not later than after ten (10) years following the effectivity of the Act. However during the said
period of effectivity, the government shall take steps to acquire these lands for immediate distribution thereafter.

In general, lands shall be distributed directly to the individual worker beneficiaries. In case it is not economically feasible
and sound to divide the land, then they shall form a workers' cooperative or association which will deal with
the corporation or business association or any other proper party for the purpose of entering into a lease or growers
agreement and for all other legitimate purposes. Until a new agreement is entered into by and between the workers'
cooperative or association and the corporation or business association or any other proper party, any agreement existing
at the time this Act takes effect between the former and the previous landowner shall be respected by both the workers'
cooperative or association and the corporation, business, association or such other proper party. In no case shall the
implementation or application of this Act justify or result in the reduction of status or diminution of any benefits received or
enjoyed by the worker-beneficiaries, or in which they may have a vested right, at the time this Act becomes effective,.

The provisions of Section 32 of this Act, with regard to production and  income-sharing shall apply to farms operated by
multinational corporations. During the transition period, the new owners shall be assisted in their efforts to learn modern
technology in production. Enterprises which show a willingness and commitment and good-faith efforts to impart
voluntarily such advanced technology will be given preferential treatment where feasible.

In no case shall a foreign corporation, association, entity or individual enjoy any rights or privileges better than those
enjoyed by a domestic corporation, association, entity or individual.

ATTY DILOY : WHO MAY BE CONSIDERED AS AGRICULTURAL BENEFICIARIES ?

SECTION 27. Transferability of Awarded Lands. —Lands acquired by  beneficiaries under this Act may not be sold,
transferred or conveyed except through  hereditary succession, or to the government, or the LBP, or to other qualified
beneficiaries for a period of ten (10) years: Provided, however, That the children or  the spouse of the transferor shall
have a right to repurchase the land from the  government or LBP within a period of two (2) years. Due notice of the
availability of  the land shall be given by the LBP to the Barangay Agrarian Reform Committee  (BARC) of the barangay
where the land is situated. The Provincial Agrarian Reform  Coordinating Committee (PARCCOM) as herein provided,
shall, in turn, be given due  notice thereof by the BARC.  If the land has not yet been fully paid by the beneficiary, the
rights to the land  may be transferred or conveyed, with prior approval of the DAR, to any heir of the  beneficiary or to any
other beneficiary who, as a condition for such transfer or  conveyance, shall cultivate the land himself. Failing compliance
herewith, the land  shall be transferred to the LBP which shall give due notice of the availability of the  land in the manner
specified in the immediately preceding paragraph.  In the event of such transfer to the LBP, the latter shall compensate
the  beneficiary in one lump sum for the amounts the latter has already paid, together with  the value of improvements he
has made on the land. 

SECTION 22. Qualified Beneficiaries. — The lands covered by the  CARP shall be distributed as much as possible to
landless residents of the same  barangay, or in the absence thereof, landless residents of the same municipality in the
following order of priority: (a) agricultural lessees and share tenants;  (b) regular farmworkers;  (c) seasonal farmworkers;
(d) other farmworkers;  (e) actual tillers or occupants of public lands;  (f) collectives or cooperatives of the above
beneficiaries; and  (g) others directly working on the land.  Provided, however, That the children of landowners who are
qualified under  Section 6 of this Act shall be given preference in the distribution of the land of their  parents: and
Provided, further, That actual tenant-tillers in the landholdings shall not  be ejected or removed therefrom.  Beneficiaries
under Presidential Decree No. 27 who have culpably sold,  disposed of, or abandoned their land are disqualified to
become beneficiaries under  this Program.  A basic qualification of a beneficiary shall be his willingness, aptitude, and
ability to cultivate and make the land as productive as possible. The DAR shall adopt  a system of monitoring the record or
performance of each beneficiary, so that any  beneficiary guilty of negligence or misuse of the land or any support
extended to him  shall forfeit his right to continue as such beneficiary. The DAR shall submit periodic  reports on the
performance of the beneficiaries to the PARC.  If, due to the landowner's retention rights or to the number of tenants,
lessees,  or workers on the land, there is not enough land to accommodate any or some of  them, they may be granted
ownership of other lands available for distribution under  this Act, at the option of the beneficiaries.  Farmers already in
place and those not accommodated in the distribution of  privately-owned lands will be given preferential rights in the
distribution of lands  from the public domain.

SECTION 23. Distribution Limit. — No qualified beneficiary may own  more than three (3) hectares of agricultural land.

7. Participation of an employee in a strike, whether staged by reason of ULPs , or economic demands, does not
deprive him of his status as “employee. ”
8. An illegally dismissed employee is entitled to be reinstated to his former position plus backwages and damages ,
if any. His seniority and other rights are not likewise affected. ( Article 219 [ 212] of the Labor Code, Volume II )
9. Relationship of employer and employee is contractual in nature. It may be covered by an oral or written
contract. A written contract is not necessary for the creation and validity of the relationship. It is voluntary and
cannot be imposed. The worker’s right to sell his labor to any person of his own choice is basically akin to the
right of an employee to purchase labor from anyone he chooses.
Under due process clause of the Constitution, both employer and employee have equal freedom and rights.
To curtail the freedom of the worker would be tantamount to servitude and oppression, in case the employer is
compelled to give work to a worker against his will .
10. Worker – any member of the labor force, whether employed or unemployed

Article 6 – Applicability
 All rights and benefits granted to the workers under the Code shall, except as may otherwise be provided herein,
apply alike to all workers, whether agricultural or non – agricultural

Introduction

1. Order of Discussion
a. Applicability of the Labor Code
General Rule :
Applicable to all workers, irrespective of the nature of their work , whether agricultural or non – agricultural
Exceptions :
Article 82 , Title 1 , Book III 9/ excluded from the coverage of the provisions on working conditions and rest
periods, specifically in
normal hours of work , meal periods, night shift differential , overtime work , weekly rest periods, holidays,
service incentive leaves, and service charges
1. government employees
2. managerial employees
3. field personnel
4. members of the family of the employer who are dependent on him for support
5. domestic helpers
6. person in the personal service of another
7. workers who are paid by results , as determined by the Secretary of Labor in appropriate regulations

Article 98, Title II , Book III

( excludes these workers from the coverage of the provision on wages )

1. farm tenancy or leasehold

2. domestic service
3. persons working in their respective homes in needle work or in any cottage industry duly registered in
accordance with law

SC RULING

Whether GOCCs - government owned and / or controlled corporations are created as special laws or as
subsidiaries under the general CORPORATION LAW , employees are governed by the CIVIL SERVICE LAW and
NOT BY Labor Code ( Section 2 [1] , Article IX B , 1987 Constitution

b. Employer – Employee RELATIONSHIP

a. EMPLOYER – person who employs the service of another called worker or employee and pays the
latter’s wages or salaries.
- includes the principal employer or ANY PERSON acting in his interest, directly or indirectly , but does
not include any labor organization or any of its officers or agents except when said labor
organization or its officers and agents act as employer
B.EMPLOYEE – one who is in the service of another under a contract or hire, express or implied, oral or
written
- also refers to an individual whose work has ceased as a result of or in connection with any current labor
dispute or because of any unfair labor practice provided, that he has not obtained any other “substantially
equivalent and regular employment ”
c. EMPLOYMENT – any work or service rendered in exchange for money.

c. Test of employment relationship

NECESSITY TO ESTABLEISH EMPLOYMENT RELATIONSHIP
1. How is an employment contract perfected ?
a. the parties come to agree upon its terms
b. the parties concur in the essential elements of the contract
1. consent of the contracting parties
2. object certain which is the subject matter of the contract
3. cause of the obligation
2. QUANTUM OF EVIDENCE TO PROVE EMPLOYMENT RELATIONSHIP
a. substantial evidence required
b. no particular form of evidence required – no hard and fast rule
c. written copy of the employment contract or appointment document
d. testimonial evidence to prove employment relationship(claimant and her witnesses )
e. effect of admission by employer of existence of employment relationship
f. payslips
 g. reporting of employer to SSS, PhilHealth, etc.
h. disciplinary memo

FOUR ELEMENTS WHICH MAY BE USED TO DETERMINE EXISTENCE OF EMPLOYER EMPLOYEE RELATIONSHIP

1. selection and engagement of the employee

2. payment of wages or salaries
3. exercise of the power of dismissal
4. exercise of the power to control the employee’s conduct

GENERAL RULE : LABOR LAW CONTROL = EMPLOYMENT RELATIONSHIP

ELEMENT OF CONTROL IS VERY IMPORTANT AND SHOULD BE PRESENT IN ORDER TO ESTABLISH EMPLOYER – EMPLOYEE
RELATIONSHIP . ( CONTROL NOT ONLY TO THE RESULT OF THE WORK DONE BUT ALSO AS TO THE MEANS AND
METHODS BY WHICH IT IS TO BE ACCOMPLISHED OR HOW WORK IS DONE. )

Control exercised by employer :

a. assigning the particular task that has to be done

b. monitoring the way tasks are done and their results
c. determining the time during which the employee must report for work or accomplish his assigned task

earlier ruling on insurance companies with regard to their insurance agents

1. salaried employees who keep definite hours and work under the control and the supervision of the company
2. registered representatives who work on commission basis

Effect of compensation by commission

- Cannot a person who does not observe normal hours of work be deemed employee ? In
Cosmopolitan, it was held that the supervisor , although compensated on a commission basis, is
exempt from the observance of normal hours of work for his compensation is measured by the
number of sales he makes.
- Commission can be availed of by both an employee and a non employee so it is not a conclusive
proof of the existence of the employer – employee relationship
- In R Transport , commission basis did not rule out the presence of employee – employer relationship
. Article 97 of the Labor code clearly provides that an employer’s wages can be in the form of
commissions.

Effect of ” no work no pay ” scheme .

No work no pay scheme is not significant because it is merely a method of computing compensation and not a basis for
determining the existence or absence of employer – employee relationship .

e..g. Driver / stay IN driver – employer exercised control over the means and methods by which the driver accomplished
his work

e.g. jeepney drivers and conductors, taxi drivers and owners / operators , – has employer – employee relationship under
the “BOUNDARY SYSTEM “

CASES WHEN EMPLOYMENT RELATIONSHIP DOES NOT EXIST

1. commission salesman is not an employee

2. a contract of agency does not give rise to an employment relationship
3. working scholars are not employees of the school
4. medical consultants and visiting physicians are not employees of the hospital.
5. independent contractors or their employees do not have employer – employee relationship with the company
6. persons rendering caddying services to club members are not employees of the golf club ( even though there is
the suggestion as to the rate of fees to be paid to caddies or even if there is the implementation of a group
rotation system – NOT EMPLOYEES OF GOLF CLUB )

Cases when the labor CODE SUSPENDS RELATIONSHIP

1. preventive suspension – employee who is undergoing an administrative investigation for an offense and his
presence in the company premises poses serious or imminent threat to the life or property of the employer or
his co – employees.
2. punitive suspension – an employee who is found guilty of committing a wrongful act under Article 297 of the
Labor Code or under Company Rules and Regulations ( lesser penalty than dismissal )
 3. OFF -SEASON , regular season employment – employees are temporarily laid off but are re- employed during the
next season . They ae not separated from service but merely considered on a leave of absence without pay until
they are re – employed.EMPLOYMENT relationship during off – season is never severed but only suspended. As
such , they can be considered as being in the regular employment of the employer.
Article 301 ( 286) deems this list as not terminated but merely suspended.
a. bonafide suspension by the employer of the operation of his business or undertaking for a period not
exceeding sidx months
b. fulfillment by the employee of a military duty
c. fulfillment by the employee of a civic duty

CIRCUMSTANCES NOT AFFECTING EMPLOYEE – EMPLOYER RELATIONSHIP

1. an employee who has been dismissed but files a case questioning the validity or legality of his dismissal is still
considered as an “employee ”

Under law on labor relations, under Articles 219(f) , 212 (f) of the Labor Code,

2. mere participation of an employee in a strike, whether staged by reason of ULPs or economic demands
cessation of a person’s employment occasioned by a strike or a lockout , or by virtue of termination or
suspension which constitutes ULP , law treats it as no interruption
3. taking of any leave benefit such as vacation or sick leave with pay

PRINCIPLES RELEVANT TO THE EMPLOYMENT RELATIONSHIP

1. stipulation in a contract cannot negate relationship

2. effect of exclusivity provision in a contract
3. theory of secondment
Under the theory of secondment, an employee who is assigned or “seconded ” by an employer to another entity
remains the employee of the former.

Under the Labor Code, employee may be classified in relation to :

1. wages
2. employees compensation
3. labor relations

Article 13 NOTES

1. land – based – Licensed Recruitment Agency

2. sea – based – Licensed Manning Agency

Fees involved in local recruitment – called service fee

Fees involved in overseas recruitment –

a. for land – based – placement fee ; service fee

b. for sea – based – manning agency fee – this is the amount charged by the licensed manning agency to its
principal/ employer as payment for actual services rendered in relation to the recruitment and placement of
seafarers

NO COLLECTION FROM SEAFARERS OF PLACEMENT FEE OR ANY OTHER FEE IS ALLOWED, UNLESS OTHERWISE PROVIDED
BY LAW.

RA 9042 Migrant Workers and Overseas Filipinos Act of 1995 , amendatory law RA 10022

Migrant worker – a person who is to be engaged, is engage or has been engaged in a remunerated activity in a state of
which he or she is not a legal resident .

Migrant worker used interchangeably with Overseas Filipino Workers

Regular / Documented Migrant Workers

1. those who possess valid passports and appropriate visas or permits to stay and work in the receiving country
2. those whose contracts of employment have been processed by the POEA , or subsequently verified and
registered on – site by the POLO , if required by law or regulation
POLO means Philippine Overseas Labor Office
Irregular / Undocumented Filipino migrant workers

1. those who acquire their passports through fraud or misrepresentation

2. those who possess expired visas or permit to stay
3. those who have no travel document whatsoever
4. those who have valid but inappropriate visas
5. those whose employment contracts were not processed by the POEA or subsequently verified and registered on
– site by the POLO , if required by law or regulation

Skilled Filipino workers – those who have obtained an academic degree, qualification , or experience, or those who are
in possession of an appropriate level of competence, training , and certification , for the job they are applying ,a s may
be determined by the appropriate government agency

RA 7796 TESDA – Technical Education and Skills Development Authority

Article 16 Private Recruitment may only be done by the PUBLIC EMPLOYMENT OFFICES

1. PESO – Public Employment Service Office

2. POEA ( replaced OEDB , NSB, BES ) by virtue of EO no. 797 , May 1, 1982 – for overseas employment
3. BLE – Bureau of Labor and Employment – for local employment

Article 18 – Ban on Direct Hiring of Filipino workers for overseas employment

Exception : Direct hiring done by the members of the diplomatic corps , international organizations, and other employers
allowed by Secretary of Labor

Article 19 – not impt

Article 20 – has been repealed

Discussion

SECURITY OF TENURE DOCTRINE :

OFWs , regardless of their classification have the right to security of tenure guaranteed under the Constitution . Even if
he is employed abroad

principle of lex loci contractus – the law of the place where the contract is made – contract is in the Philis.

OFWs cannot be dismissed without observing both SUBSTANTIVE and PROCEDURAL due process

If they were illegally dismissed, the right to security of tenure is violated.

Theory of Imputed Knowledge

- this theory refers to a cognizance of a circumstance or fact attributed to a party because of its
position or its relationship with or responsibility for another party .
- the relationship of the local recruitment agency vis a vis its foreign principal is that of agent –
principal .
- it ascribes the knowledge of the agent to the principal

Doctrine of Processual Presumption

- ALSO KNOWN AS PRESUMED – IDENTITY APPROACH

- the party invoking the application of a foreign law has the burden of proving such law under this
doctrine
- This is an International Law doctrine which dictates that where a foreign law is not pleaded, or ,
even if pleaded , is not proved, the presumption is that such foreign law is the same as Philippine
law.
Under this situation, Philippine labor laws should apply in determining the issues presented in a case
Labor Arbiter only knows domestic or forum law so to prove a foreign law , the party invoking it
must present a copy thereof and comply with Sections 24 and 25 OF Rule 132 of the Revised Rules
of Court

Monetary Claims of OFWs

Money Claims Cases

Bases : the money claims of OFWs over which labor arbiters have jurisdiction may arise from any of the following :
 a. from employer – employee relationship
b. by virtue of any law
c. by reason of contract

OFW monetary claims

1. illegal dismissal
2. disabilities
3. death
4. others

OTHER MONETARY CLAISM CONSEQUENT TO ILLEGAL DISMISSAL

1. reimbursement of placement fee

2. refund of unauthorized deductions from salary ( with interest of 12 percent per annum , reckoned from the date
the deduction was made )
3. cost of repatriation and transport of personal belongings

Bright MARITIme Corporation vs Fantonial

- award of actual and compensatory damages was made on the basis of finding that while respondent
, who was not deployed overseas , cannot be deemed as having been illegally dismissed considering
that employer – employee relationship has not yet commenced, nonetheless , petitioners act of
preventing respondent from leaving and complying with his contract of employment constitutes
breach of contract for which petitioner company should be held liable for actual damages for the
loss of respondent’s one – year salary as provided in the contract.

EXECUTION OF A WAIVER OF QUITCLAIM BY THE OFW –

Effect : does not preclude him from subsequently filing a suit demanding benefits to which he is entitled and from filing
an illegal dismissal case.

It is contrary to public policy .

UNLESS it can be established that the person executing the waiver voluntary did so , with full understanding of its
contents, and with reasonable and credible consideration, the same is not a valid and binding undertaking.

PERIOD TO FILE OFW CLAIMS

Article 291 of the Labor Code – provides for three years to file money claims arising from employer – employee
relationship

DISABILITY

Article 21 : foreign Service Role and Participation

Philippine Diplomatic or consular officials ‘s power and duty to provide assistance

Article 22 Mandatory Remittance of Foreign exchange Earnings

( remitted to their families, dependents , or beneficiaries in the country ; prescribed by Secretary of Labor and
employment )

ranging from 50% to 80 % of the basic salary

D.O. NO. 141 -14 November 30,2014 comprised the revised rules and regulations governing recruitment and placement
for local employment . This applies to every person, partnership, or corporation intending to engage or is engaged in
the recruitment and placement thru agency .

LICENSED TO RECRUIT FOR LOCAL EMPLYMENT HAS A DIFFERENT LICENSE WHEN HE INTENDS TO RECRUIT FOR
OVERSEAS EMPLOYMENT

WHO ARE DISQUALIFIED FROM ENGAGING IN THE BUSINESS OF RECRUITMENT AND PLACEMENT FOR DOMOESTIC
ENJOYMENT ?
 - persons convicted of illegal recruitment , trafficking in persons, violation of child labor laws, or
crimes involving moral turpitude ;
- agencies whose licenses have previously been cancelled or revoked
- cooperatives whether registered or not under the Cooperative Act of the Phils.
- law enforcers and any official or employee of DOLE

AGENCIES ENGAGING IN RECRUITMENT AND PLACEMENT FOR LOCAL EMPLYMENT ARE PROHIBITED FROM ENGAGING
IN JOB CONTRACTING OR SUBCONTRACTING ACTIVITIES.

ART. 25 PRIVATE SECTOR CAN PARTICIPATE IN THE R AND PLACEMENT OF WORKERS LOCALLY AND OVERSEAS UNDER
DOLE GUIDELINES

ART. 26 TRAVEL AGENCIES AND SALES AGENCIES OF AIRLINE COMPANIES ARE PROHIBITED TO RECRUIT ( WHETHER FOR
PROFIT OR NOT )

ART. 27 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 R and placement of workers , locally and overseas.

ART. 28 CAPITALIZATION

PRIVATE EMPLOYMENT AGENCY , FOR LOCAL – minimum 1,000,000 in case of single proprietorship and partnership OR

a minimum paid – up capital of 1,000,000 in the case of a corporation

PRIVATE RECRUITMENT AGENCY – FOR OVERSEAS – minimum of 5,000,000 for single proprietorship and partnership ,
and a minimum pad – up capital of 5,000,000 for corporation

ART . 29 – NON – TRANSFERABILITY OF LICENSE OR AUTHORITY

whether directly or indirectly cannot transfer

establishment of additional offices , transfer of business address, appointment or designation of any agent or
representative – subject to prior approval of DOLE

ART. 30 – REGISTRATION FEES

ART. 31 – BONDS

This is only to answer for EMPLOYMENT – RELATED CLAIMS AND VIOLATIONS OF LABOR LAWS.

ART . 32 – ALLOWABLE FEES TO BE PAID BY WORKERS - PROMULGATED BY DOLE

ACT 33- REPORTS ON EMPLOYMENT STATUS

Secretary of Labor may direct all persons and entities to submit a report on the status of employment , including job
vacancies, details of requisitions , separation from jobs, wages, other terms and conditions , and other employment
data.

ART. 34 MEMORIZE : PROHIBITED ACTS MEMORIZE

ART. 35 Suspension and cancellation of license on authority

Secrtary of Labor has the power

grounds : engaging in act /s of misrepresentation for the purpose of securing a license or renewal thereof

e.g. giving false testimonies or falsified documents

other grounds

a. engaging in the placement or recruitment of workers in jobs harmful to public health or morality or to the
dignity of the Republic of the Philippines
b. charging of any fee before employment is obtained for an applicant worker
c. charging of any fee in amount exceeding the allowable rate
d. obstructing inspection by DOLE

ART. 36 REGULATORY POWER OF THE SECRETARY OF LABOR

- to restrict and regulate the recruitment and placement activities of all agencies
 - authorized to issue orders and promulgate rules and regulations to carry out objectives and
implement the provisions of the Title

Art. 37 Visitorial Power

at any time , may

a. inspect the premises

b. book of accounts and records of any person or entity covered by this Title
c. require agencies to submit reports regularly on prescribed forms
d. act on violations

Art. 38 ILLEGAL RECRUITMENT

shortened meaning : any recruitment and placement act under Article 13 done by anyone without appropriate license
from BLE or POEA

Two kinds of illegal recruitment

1. SIMPLE illegal recruitment

This covers any recruitment and placement activity undertaken by a non - licensee or a non – holder of
authority. It also includes the commission of prohibited acts as enumerated under the law NOT only by a non
licensee 0r a non holder of authority but also by a licensee or holder of authority

RA NO. 8042 AS AMENDED A NON – LICENCSEE OR NON – HOLDER OF authority commits illegal recruitment for overseas
employment in TWO ways

a. By any act of canvassing , enlisting , contracting , transporting, utilizing , hiring , or procuring works, and includes
referring , contract services , promising or advertising for employment abroad , whether for profit or not,
b. By undertaking any of the acts of enumerated under Section 6 of RA No. 8042

2. ILLEGAL recruitment involving economic sabotage consisting of either

a. Illegal recruitment committed by a syndicate ; or carried out ( 3 RECRUITERS/ 3 conspiring or
confederating with one another
b. illegal committed in large scale ( committed against at least 3 recruitees / or 3 or more persons,
individually , or as a group )

ILLEGAL recruitment becomes qualified if committed by 3 or more recruiters ( syndicated ) or when there are 3 or more
recruitees ( large scale )

In order to remain for SIMPLE illegal recruitment, it should not be more than 2 persons .

Magna Carta of Overseas Filipinos Act of 1995

Core element of illegal recruitment 2 nd type is the conspiracy among the perpetrators .

Article 8 , RPC there is a conspiracy when 2 or more persons come to an agreement concerning the commission of a
felony and decide to commit it.

Article 39 repealed by 8042

Employment of Non – resident Aliens

Article 40 – EMPLOYMENT PERMIT OF NON – RESIDENT ALIENS

Article 41 – PROHIBIGITON AGAINST TRANSFER AND EMPLOYMENT

Article 42 – Submission of LIST

NO MORE –

Apprenticeship

ARTICLE 57 -
Anti – AGE DISCRIMINATION ACT RA 10911 (passed July 21, 2016 )

RA 10315 TriPartism Law – GOVERNMENT – LABOR SECTOR – EMPLOYMENT SECTOR

Tripartite NLRC – Chairman of all bodies of the government

Art. 275 na amend

Mandatory Conciliation and Remediation Law

Labor Advisory No. 10- Labor – only contracting – This labor advisory merely reiterated.

106 to 109 of the Labor Code – provisions on labor ONLY CONTRACTING

40-i -15 September 7,2015 – Voluntary Arbitration ( wala ng voluntary recognition )

Kasambahay Law

Migrant Workers Act and Overseas Filipino Workers of 1995

EMPLOYMENT CONTRACT CANNOT BE NOVATED BY THE WILL OF ONLY ONE PARTY.

SITUATIONS :

1. employer and seafarer – commences from the ACTUAL DEPARTURE OF THE SEAFARER FROM THE AIRPORT OR
SEAPORT IN THE POINT OF HIRE WITH A POEA – APPROVED CONTRACT

EFFECTIVE UNTIL
SEAFARER’S DATE OF ARRIVAL AT THE POINT OF HIRE UPON TERMINATION OF HIS EMPLOYEMENT PURSUANT
TO SECTION 18 OF THIS CONTRACT

SUBNOTE :

LABOR ARBITER – jurisdiction

- not limited to claims arising from employer – employee relationship

- by virtue of any law or contract involving Filipino workers for overseas deployment

Note : If the seafarer failed or refused to be deployed as agreed upon, he would have been held liable for damages.

d. Principles Relevant to the Employment Relationship

e. Termination of the Employment Relationship

KEY WORDS : CONSTITUTIONAL PROVISION

Section 9 – “promote full employment”

Section 10 – “social justice” CASE: CALALANG VS WILLIAMS

Section 11- human rights – ( Supreme Court doesn’t anchor its ruling in human rights )

Section 13 – YOUTH in NATION BUILDING – NO LABOR LAW CONSEQUENCE

Section 18 – used to nullify LABOR CONTRACTS --- The Supreme Court recognizes labor as the economic driving force of
the State.

BILL OF RIGHTS

SECTION 1 – DOES NOT APPLY TO LABOR RIGHTS –

EQUAL PROTECTION AND DUE PROCESS ONLY INVOKED AGAINST THE GOVERNMENT ; NOT A PRIVATE ENTITY OR A
PRIVATE PERSON

FOR PRIVATE PERSON : YOU HAVE TO CITE

1. statutory due process

2. contractual due process – Abbott Laboratories vs Alcaraz

SECTION 4 FREEDOM OF SPEECH – one application for labor – in the conduct of picketing

What is the constitutional provision of the right of picketing ? freedom of speech

section 7 right to freedom of information – wala sa labor law

section 8 freedom of association provision – this is the basis to right to self – organization

Section 3, Article 30

Private employees and public employees have the right to self – organization

but only private employees can have the right to strike.

Section 16 – speedy disposition of cases before administrative bodies , quasi – judicial , quais – legislative

The only way that the labor cases will reach the Court of Appeals is only TWO :

1. Rule 65 petition for certiorari

2. Rule 45 petition for review for certiorari

SECTION 18 APPLICABILITY TO LABOR CASES : at least TWO principles

1. involuntary servitude ( penal in

Does the employee have the right to terminate his own employment thru this mode ? YES
under the principle that an employer cannot be compelled to work against cause

resignation without case – employee just need to file a written notice prior to termation ; at least 30 days before
; failure to do so will hold the employee liable for damages because of the damage incurred to the owner
( with just cause – serious insult and just cause in the part of the employee; inhumane or unbearable treatment
–
commission of the crime on the part of the employee or any analogous causes

resignation with just cause –

COMPULSORY RETURN TO WORK ORDER – employee has to return to work under the pain of being dismissed

THERE IS COMPULSION BUT DOES IT AMOUNT TO INVOLUNTARY SERVITUDE ?

Answer: No , an assumption order is issued not even for the protection of the employer and emplohyee but the STATE.
Therefore, you are under compulsion to go to work.