LABOR PART IV & V

PART 1
1. T/F. Seafarers are not entitled to separation pay. T. Bec separation pay is given only to dismiss
regular employees. Seafarers are contractual workers and not regular employees.
2. T/F. A bonus is not demandable and enforceable obligation. F. Unless it is ripen into a company
practice over a reasonable period, which is a source of a labor law similar to the Davao fruits
assoc case
3. T/F. Ang Tibay v. CIR states that, not only must the party be given the opportunity present his case
and to adduce evidence tending to establish the rights that she asserts but tribunal must consider
the evidence presented. T. Incidentally do memorize the 7 cardinal rights in administrative
due process in Ang Tibay case
4. T/F. The CC provides that, in case if doubt, all labor legislations and all labor contracts shall be
construed in favor of labor. F. In favor of the safety and decent living for the laborer
5. T/F. Seafarer refers to any person who is employed/engaged in overseas employment in any
capacity on board a ship, which includes fishermen, crew ship personnel, and those serving on
mobile offshore and drilling units in the high seas. F. Other than a government ship use for
military or non-commercial purposes
6. T/F. Art. 1708 of the CC provides that, laborers’ wages shall not be subject to execution or
attachment except for debt due. F. The CC says the laborers wages shall not be subject to
execution or attachment except for debts incurred for food, shelter, clothing and medical
attendance only
7. T/F. Under the Constitution, the right of the people including those employed in the public and
private sectors to engage in peaceful concerted activities to form unions, associations or societies
for purposes not contrary to law shall not be abridged. F. The phrase to engage in peaceful
concerted activities is not included in the consti provision
8. What are the 2 kinds of illegal recruitment. Describe each.
• Simple illegal recruitment- committed in 2 ways: (1) by a person who engages in
recruitment and placement activities w/o proper authorization and/or license; (2)
by any person whether licensee or not committing the prohibited activities in
labor code or RA 8042 as amended by RA 10022
• Committed involving Economic Sabotage- could either be illegal recruitment by
syndicate or large scale illegal recruitment
9. B was working as a medical representative of BEX Pharmaceutical company when he met and fell
in love with C, a marketing strategist for BAX company, a competitor of BEX. On several
occasions, the management of BEX called B’s attention to the stipulations in his employment
contract, which requires him to disclose any relationship by consanguinity or affinity with co-
employees or employees of competing companies in light of a possible conflict of interest.
a. Is the company policy valid? YES. The company policy is valid as it is a valid
management prerogative to protect business and trade secrets. It is not a
prohibition or stipulation against marriage which is considered unlawful by the
LC
b. Assuming it was valid, should B be dismissed on the basis thereof? NO. There is
nothing in the facts that show that B’s relationship to C is by consanguinity or
affinity other than falling in love. Hence, disclosure is not yet required
10. At Your Service or AUS is a travel agency, and an authorized sales agent of PAL. Since majority
of its passengers are OFWs, AUS applied for a license for recruitment and placement activities. It’s
stated in its application that its purpose is not for profit but to help Filipinos find employment
abroad. Should AUS get the license for recruitment and placement? NO. The LC expressly
prohibits travel agencies from engaging in recruitment and placement activities for obvious
 reasons of trafficking, exploitation and unfair competition to recruitment and placement
agencies

PART 2- Alien Employment

The regulation of Alien employment in the PH is anchored on the protection of the livelihood of Filipinos
hence, there are stringent rules to be observed before foreign nationals are allowed to work here. An alien
employment permit of AEP is not an exclusive authority for a foreign national to work in the PH. It is
just one of the requirements for the issuance of a work visa.

Other requirements may include:

- Securing clearances or indorsements from gov’t agencies regulating a certain trade
Question: With and AEP can a foreign national engage in all kinds of businesses in the PH? NO

The Anti-Dummy Law prohibits the employment of foreigners in nationalized businesses, such as
educational institutions, media & public utilities, except when the secretary authorizes the
employment of technical personnel, aliens who served as board members of corporation w/ voting
rights and supervisory or technical employees of enterprises under the Omnibus Investment Code
for a limited period.

Question: Are all foreign nationals who intend to gain employment in the Ph require to secure an AEP?
NO
1. By virtue of Art. 40 of LC, an AEP may only be issued to a non-resident alien or to an applicant
employer after a determination of the non-availability of a person in the PH who is competent, able,
and willing at the time of the application to perform the services.

In General Milling v. Torres, Earl Timothy Cone was an American citizen who was the sports
consultant and assistant coach for General Milling Corp or GMC, where he had a valid AEP. GMC
applied for Cone’s renewal of AEP, which was initially granted. Thereafter, the Basketball Coaches
Assoc of the PH or BCAP appealed the issuance of the AEP with the Secretary of Labor, who
cancelled said AEP on the ground that there was no showing that there is no person in the PH, who
is competent, able, and willing to perform the services required nor that the hiring of Cone would
redound to the national interest. GMC on certiorari, questioned the sec’s jurisdiction. It argued that
it was management prerogative for GMC to choose whom it wants to coach its team and it should
be the Commission on Immigration that can determine if Cone was indeed needed. The SC said
that, the DOLE is the agency vested with jurisdiction to determine the question of availability of
local workers. As a non-resident alien, Art. 40 applies to Cone and w/o such need for a foreign
worker, an AEP has no basis.

In Almodiel v. NLRC, Almodiel worked for Raytheon Ph as its Cost Accounting Manager. The
company had a cost accounting stall, which rendered Almodiel’s department obsolete. In Jan. 27,
1989, Almodiel was informed by his boss that he was to be redundated. Almodiel sued for illegal
dismissal which was granted by LA. On appeal, NLRC reversed the LA’s decision. But however,
awarded Almodiel financial assistance. One of Almodiel’s grounds for claiming that there was no
redundancy was that his functions were absorbed by a Danny Ang Tan Chai, who headed the
payroll finance department, but was a resident alien working w/o a permit from DOLE. So, if there
was a ground for redundancy, Almodiel would have been better qualified than a resident alien. The
SC ruled that, under Art. 40 of the LC, only non-resident aliens are required to secure a working
permit, and Ang Tan Chai falls under such exemption.
Apart from non-resident aliens, other individuals exempted from securing an AEP are members of the
Diplomatic services, officers and staffs of International Organizations, where the PH is a member,
individuals granted exemptions by the law, POEA accredited owners and representatives of foreign
principals but only for a limited period to interview applicants and foreign nationals who are here for study,
research or for teaching under agreements between schools or between governments. On the other hand,
there are exclusions to secure an AEP. While those exempted do not need to do anything else, but by reason
of their nature are expressly not required to secure an AEP. Excluded indivs need to secure a Certificate of
Exclusion in lieu of an AEP after satisfaction of requirements to prove that they belong to the list of
exclusions, such as:

§ Board members of corps w/ voting rights and no other positions

§ President and treasurer of a company
§ Those providing consultancy services with who do not have employers in the Ph
§ Intra-corporate transferee who is a manager
§ Executive or specialist defined in DOLE DO 186-17
§ Contractual Service provider who has no commercial presence in the Ph
§ Representative of a foreign principal assigned to the office of license manning
agency

The application for an AEP is subject to a publication requirement of the DOLE in a newspaper of gen
circulation, DOLE website with a notice that, any willing, able, and competent Filipino for the same position
may file an objection. The AEP is valid for 1 year, unless an employment contract or other modes of
engagement provide for a longer period which shall not exceed 3 years. Once the AEP is issued, the alien
shall not transfer to another job or change the employer, unless the Sec approves. An AEP may be cancelled
at anytime on the basis of misrepresentation of facts, ill treatment of workers, meritorious objection, non-
compliance with requirements, conviction of a criminal offense or termination of employment.

If an AEP was denied or cancelled due to a crime or ill treatment of workers, a 10-year ban applies for
reapplication.

Employment of Apprentices, Learners and Handicapped Workers

The TESDA Act of 1994 established TESDA as the gov’t agency in charge of all skills development,
technical vocational training education and the apprenticeship program in the PH. RA 7796 or the TESDA
Act has transfer the authority over apprenticeship programs from the Bureau of Local Employment of the
DOLE to the TESDA. Under the said law, employers can only hire apprentices for apprenticeable
occupations, which must be officially endorsed by a tripartite body and approved for apprenticeship by
TESDA.

In Provi v. TESDA, the nature of TESDA was discussed. Provi entered into a negotiated contract with
TESDA to provide PVC ID cards for a fee, amounting to P39,000,475.00, where only P3,739,500 was paid.
Provi sued TESDA before the RTC for sum of money and damages where a writ of preliminary attachment
was issued against TESDA’s properties. TESDA argued that its funds are exempt from execution. On
certiorari, the CA found that TESDA’s funds are public in nature, and exempt as it was exercising
governmental functions. The SC ruled that TESDA is directly attached to the DOLE through the
participation of the Secretary of Labor as its chairman for the performance of governmental functions, such
as the handling of formal and non-formal education, training, and skills development. TESDA as an agency
of the state, cannot be sued without consent. That TESDA sells PVC cards to its trainees for a fee does not
characterized the transaction as industrial or business. The sale expressly authorized by the TESDA Act
cannot be considered separately from TESDA’s general governmental functions as they are undertaken in
the discharge of these functions. Even if assuming that TESDA entered into a proprietary contract with
Provi, and thereby give its implied consent to be sued, TESDA’s funds under Sec. 33 of the TESDA Act
are still public in nature and cannot be a valid subject of a writ of garnishment or attachment.

Apprenticeship

An apprentice is a worker who is covered by a written apprenticeship agreement, which shall not exceed 6
months and employed in any apprenticeable occupation approved by the TESDA, with employer in a highly
technical industry.
Question: May a minor be an apprentice? YES. The law provides that, apprentices must at least be 15 y/o
but the apprenticeship agreement will be signed on the minor’s behalf his parents, guardian, or in their
absence by the DOLE representative. Other requirements for apprentices include: vocational attitude and
the ability to comprehend and follow instructions.

In Atlanta v. Sebolino, Atlanta was engaged in the manufacture of steel pipes. Sebolino and 12 others
claimed that they were hired as apprentices but were made to work beyond the 6-month period of
apprenticeship. They sued for illegal dismissal and regularization among other things, but the LA found
that the termination of only 9 employees to be illegal. The NLRC reversed the finding of illegal dismissal.
On certiorari before the CA, the CA found that Costales, Almoite, Sebolino, and Sagun were employed by
Atlanta before they were engaged as apprentices among other violations of TESDA rules. In finding illegal
dismissal, the SC found that the apprenticeship agreements were after the employees had already rendered
service to the company evidenced by operational records. Hence, invalid. Assuming that the first
apprenticeship agreement is valid, to foist upon employees the 2nd apprenticeship agreement for a second
skill, which was not even mentioned in the first agreement itself, is a violation of the LC and is an act
manifestly and unfair to the employees.

When does apprenticeships start?

The LC and the TESDA Act declare that an apprenticeship program should be first approved before an
apprentice may be hired. Otherwise, the person hired will be considered a regular employee. Prior approval
by the TESDA of the proposed apprenticeship program is a condition sine qua non before an apprenticeship
agreement can be validly entered into.

In Nitto v. NLRC, Nitto is engaged in the sale of glass and aluminum products. It hired Roberto Capili as
an apprentice machinist in May 28, 1990. He injured a co-employee while working and on operated a
machine which he was not authorized to work on. He was asked to resign, which he did and even executed
a quitclaim and release to this effect. He thereafter sued for illegal dismissal. The LA dismissed the
complaint. On the other hand, NLRC found Capili to be a regular employee. The SC declared that,
notwithstanding the absence of approval by the DOLE, the apprenticeship agreement was enforced the day
it was signed. The active filing, the propose apprenticeship program with the DOLE, is a preliminary step
towards its final approval, and does not instantaneously give rise to employer-apprentice relationship. It is
the approval of the DOLE this time that would give rise to employer-apprenticeship relationship.

Question: Is there a due process requirement in the termination of an apprenticeship agreement? YES.
However, in case there is a pre-termination of apprenticeship agreement, it does not result in a regularization
unlike learners.

In Century Canning v. CA, Palad was hired under an apprenticeship agreement on July 17, 1997 to work as
a fish cleaner at Century Tuna & Sardines factory. Century submitted the agreement and was approved by
TESDA on Sept. 26, 1997. Palad fell short of an evaluation made by Century. As a consequence, she was
issued the notice of termination. Palad sued for illegal dismissal which was dismissed by the LA. The NLRC
modified the LA’s decision only with respect to monetary awards. The CA ruled that Palad was a regular
employee. The SC held tha: (1) Registration and approval by the TESDA of apprenticeship program are
required before the hiring of the apprentices; and (2) Approval is a condition sine qua non before any
apprenticeship agreement is validly entered into. Moreover, a fish cleaner is a necessary and desirable job
to century. Thus, she is a regular employee and not because of an invalid apprenticeship agreement but by
the nature of her job.

Question: How much compensation should an apprentice receive? If the apprenticeship is required by the
school curriculum, no compensation is required. All other cases of apprenticeship, an apprentice is
entitled to 75% of the min. wage.

Question: Are all highly technical industries required to hire apprentices? NO, unless national security or
economic development demands because there is a shortage of trained manpower in certain traits.

Learners

Learners are trainees hired in semi-skill but not appreticeable occupation approved by TESDA.

These are the comparisons and distinctions between learners and apprentices:

As to person hired:
One is an apprentice, and the other is a learner
As to reasons for hiring:
Apprenticeship- unless it falls under the exceptions for compulsory training, there is no such reason
required.
Learnership- there are no experienced workers, it is necessary to prevent curtailment of employment
opportunities and employment does not create unfair competition.

As to age:
By virtue of RA 9231, min. age is at 15 y/o for both, but apprenticeship provides other requirements as
given earlier where learnership does not.

As to nature of work:
Apprenticeship- apprentice must be in a highly technical industry
Learnership- Learners must be in a semi-skilled or other industry that are not appreticeable

As to duration:
Apprenticeship- must not be less than 3 months but not more than 6 months
Learnership- must not exceed 3 months

As to the effect of pre-termination of agreement:

Apprenticeship- apprentices can sue for illegal dismissal and backwages
Learnership- learners become regular employees if unjustly dismissed

As to theoretical training:
Either an employer or a gov’t agency must supplement the job w/ theoretical training in apprenticeship,
while no such requirement exists in learnership.

As to obligation to hire:
After the apprenticeship agreement, the enterprise is not obligated to hire the apprentice unlike learnership.
In both cases, learners/apprentices can make up only 20% of the workforce in an industry. They may be
paid 75% of the min wage unless it’s an OJT or requirement for the school in the case of apprenticeship, or
in the case of learners if they are employed in piece or incentive rate jobs, they shall be paid in full or during
training.

Magna Carta for Disabled Persons

A handicapped worker is one whose earning capacity is impaired by age, physical or mental deficiency or
injury as provided under the LC. However, under RA 7277, handicapped persons are now referred to as
persons with disabilities or PWDs.

Disabled persons are those suffering from physical, mental or sensory impairment that restrict them to
perform an activity considered normal for a human being.

An impairment is a loss or diminution or aberration of physical, physiological or anatomical structure of

functions.

Question: Are companies required to hire PWDs? NO, however, if a company does hire PWDs, they get
tax incentives.
Question: How much should companies pay PWDs that they hire? It depends. If the worker is a qualified
disabled person or a person who can do whatever a normal person does despite a disability, then the said
worker gets a full pay. Otherwise, he/she is entitled to 75% of the min wage.

In Bernardo v. NLRC, Far East Bank hired a total of 56 deaf-mutes as money sorters and counters, through
an agreement denominated as employment contract for handicapped workers. Out of the 56, 37 deaf-mutes
were renewed. However, the deaf-mutes sued for illegal dismissal where the bank countered, they were not
regular employees but hired as special workers under the LC, particularly handicapped workers. However,
the SC ruled that notwithstanding being deaf-mutes, the workers perform services that were vital and
necessary to the business of Far East. Art. 80 of the LC, does not apply but rather regularization by nature
of employment.s