PRE-EMPLOYMENT TOPICS

I. REQUISITES OF RECRUITMENT AND PLACEMENT

In order for an activity to be considered as “recruitment and placement” as described in

Article 13 [b] of the Labor Code, the following elements must concur:

1. A person or entity is engaged in any act of canvassing, enlisting, contracting,

transporting, utilizing, hiring or procuring workers, including referrals, contract
services, promising or advertising for employment;
2. The recruitment and placement of workers is either for local or overseas
employment; and
3. The recruitment and placement may or may not be for profit. (See also Section 1,
Rule I, Book I, Rules to Implement the Labor Code).

II. DISTINCTIONS BETWEEN PRIVATE EMPLOYMENT AGENCY (PEA)

AND PRIVATE RECRUITMENT ENTITY (PRE)

As defined in Article 13 of the Labor Code, a private employment agency technically may be
distinguished from a private recruitment entity as follows:

1. A PEA has a right duly recognized in law to charge a fee, directly or indirectly,
from the workers or the employers or from both; while a PRE does not charge any
fee either directly or indirectly from the workers or employers to which they
would be deployed;
2. PEA is authorized to recruit only for overseas placement or deployment; while
PRE is allowed to recruit for both local and overseas deployment.
3. PEA derives its authority to recruit and place workers from a document
denominated as a “license”; while PRE sources its authority from a document
called “authority.”

4. Four requisites before deployment of OFWs (Sec. 4 RA 8042)

5. SEC. 4. Deployment of Migrant Workers - The State shall deploy overseas Filipino
workers only in countries where the rights of Filipino migrant workers are protected.
The government recognizes any of the following as guarantee on the part of the
receiving country for the protection and the rights of overseas Filipino workers:
6. (a) It has existing labor and social laws protecting the rights of migrant workers;
7. (b) It is a signatory to multilateral conventions, declaration or resolutions relating to
the protection of migrant workers;
8. (c) It has concluded a bilateral agreement or arrangement with the government
protecting the rights of overseas Filipino workers; and
9. (d) It is taking positive, concrete measures to protect the rights of migrant workers.

Documented vs. undocumented OFWs

Regular/Documented Filipino migrant workers.

The term "Regular/Documented Filipino migrant workers" is mentioned once in RA. No.
10022 but it was not defined therein. The 2010 Omnibus Rules and Regulations define it as
referring to the following:

1. Those who possess valid passports and appropriate visas or permits to stay and
work in the receiving country; and
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.

Irregular/Undocumented Filipino migrant workers.

The term "Irregular/Undocumented Filipino migrant workers" is also mentioned only once in
R.A. No. 10022 but it was not defined therein. The 2010 Omnibus Rules and Regulations
define it as referring to the following:

1. Those who acquire their passports through fraud or misrepresentation;

2. Those who possess expired visas or permits to stay;
3. Those who have no travel document whatsoever;
4. Those who have valid but inappropriate visas; or
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.

6. OFW in distress

7. The term “overseas Filipinos in distress” is defined under the Omnibus Rules as
referring to overseas Filipinos who have valid medical, psychological or legal
assistance problems requiring treatment, hospitalization, counseling, legal
representation as specified in Sections 24 and 26 of R.A. No. 8042 or any other kind
of intervention with the authorities in the country where they are found.

8. Nationality of the employer, immaterial

9. "It must be emphasized that both the statute, specifically Section 14 (a) of EO No.
797, as well as the relevant regulations, generally make reference to Employment to
Filipinos overseas. They 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."  (Philippine-Singapore Parts Corporation v. NLRC, G. R. No.
67035; Eastern Shipping Lines, Inc. v. POEA, G. R. No. 77828)
10. "It is well-known that foreign-owned and foreign-registered vessels have frequently
also secured Philippine registration where the interest of convenience of the owners
dictated such second or dual registration. The underlying regulatory policy is that
Filipino seafarers working on ocean-going vessels should receive the same wages and
benefits without regard to nationality or nationalities of the vessels on which they
serve." (Eastern Shipping Lines, Inc. v. POEA, G. R. No. 77828)

Survey of doctrinal cases on the nature of employment of OFWs

OFWs can never acquire regular employment

OFWs are contractual employees, NOT REGULAR EMPLOYEES
Related cases:
Brent School Inc. v Zamora (G. R. No. 48494, February 5, 1990, 181 SCRA 702)
Seamen (now Seafarers) and overseas contract workers are NOT COVERED by the term
“regular employment” as defined in Article 280 of the Labor Code;
Coyoca v. NLRC (G. R. No. 113658, March 31, 1995, 240 SCRA 190, 194)
Employment of Filipino Seamen is governed by the Rules and Regulations of the POEA. The
Standard Employment Contract governing the Employment of All Filipino Seamen on Board
Ocean-Going Vessels of the POEA, particularly Part 1, Sec. C which provides that contract
of Seamen shall be for a fixed period, shall not be longer than twelve (12) months;
Millares v. NLRC (G. R. No. 110524, July 29, 2002, 385 SCRA 306)
OFW’s cannot acquire regular employment, the fact that employment of seafarers is
governed by the contracts they sign everytime they are re-hired and their employment is
terminated when the contract expires;
Employment is fixed for a certain period of time;
They fall under the exception of Art. 280 whose employment has been fixed for a specific
project or undertaking the completion or termination of which has been determined at the
time of engagement of the employee or where the work or service to be performed is seasonal
in the nature and the employment is for the duration of the season.
Indefinite Period of Employment of OFW’s held NOT VALID
Pentagon international Shipping, Inc. v Adelantar (G. R. No. 157373, July 27, 2004)
Even if the employment contract of an OFW provides for an unlimited period, it is not valid
as it contravenes the explicit provision of the POEA Rules and Regulations on fixed-period
employment
OFWs do not become regular employees by reason of nature of work
An OFW cannot be considered a regular employee by reason of the fact that the work he
performs is usually necessary and desirable in the usual business or trade of the employer.
Millares v. NLRC (G. R. No. 110524, July 29, 2002, 385 SCRA 306)
Petitioners Claim: they be considered as regular employees since they are performing useful
and desirable works and that they have rendered 20 years of service; in Brent School Inc. v
Zamora (G. R. No. 48494, February 5, 1990, 181 SCRA 702) Ruling, there are certain forms
of employment which also require the performance of usual and desirable functions and
which exceed one year but do not necessarily attain regular employment status; OFWs and
seafarers fall under this type of employment which are governed by mutual agreement of the
parties.
Regular employment does not result from the series of re-hiring of OFWs
Gu-Miro v. Adorable (G. R. No. 160952, August 20, 2004); continued re-hiring by the
company of the OFW to serve as Radio Officer on board the employer’s different vessels
should be interpreted not as a basis of regularization but rather as a series of contract
renewals.
TAKE NOTE: Unique cases where OFWs were declared regular employees
ATCI Overseas Corp. v CA (G. R. No. 143949, August 9, 2001); OFWs may attain regularity
of employment. Here the Filipino doctors were hired by the Ministry of public health of
Kuwait for a period of two years but were summarily terminated after 2 months on the
ground that they are physically unfit for the job. After seven months they had ceased to work,
they were repatriated to the Philippines. They claimed that they are probationary employees
at the time of their termination. Supreme Court said they are regular employees because of
the following reasons:

1. there is nothing in the record that shows and proves that they are probationary
employees at the time they were dismissed from employment;
2. there is no stipulation included in the employment contract and Memorandum of
Understanding of the petitioner and the Ministry providing for a probationary
period;
3. there’s no finding of probationary employment in the decisions of POEA, NLRC
and CA;
4. petitioners were not apprised of the fact that they were to be placed on a
probationary period;

(this decision was reversed: OFWs can never become regular employees as their engagement
is required under the law to be on a fixed-term basis, Millares v. NLRC GR No. 110524)
The fixed –period employment of OFWs not discriminatory
not discriminatory against them nor does it favor foreign employers (particularly seafarers);
seafarers nature of employment are peculiar and unique, they cannot stay for a long and
indefinite period of time at sea; national, cultural and lingual diversity necessitates the
limitation of its period.
The expiration of employment contracts of OFWs marks its ending
since OFWs are not regular employees, their employment ceases upon the expiration of  their
employment contracts
Effect of hiring of seamen for overseas employment but assigning him to local vessel
The non-deployment of the ship overseas does not affect the validity of the perfected
employment contract (OSM Shipping Philippines Inc. v NLRC GR No. 138193, March 5,
2013);
Effect on the status of a seaman hired for overseas deployment but later assigned to
domestic operations after the expiration of his overseas contract
the employee is considered now as a domestic employee (his overseas employment is
automatically terminated upon expiration of his overseas employment contract) Delos Santos
vs. Jebsen Maritime, Inc., GR No. 154185

Very important: Sameer and Serrano cases

Comparison between Sameer Overseas Placement case and Serrano case doctrines on
OFWs dismissal
 SAMEER OVERSEAS PLACEMENT DOCTRINE
Respondent’s dismissal grounded on inefficiency and negligence less than one year from
hiring and her repatriation on the same day show not only failure on the part of petitioner to
comply with the requirement of the existence of just cause for termination; they patently
show that the employers did not comply with the due process requirement. Thusly:
“A valid dismissal requires both a valid cause and adherence to the valid procedure of
dismissal. The employer is required to give the charged employee at least two written notices
before termination. One of the written notices must inform the employee of the particular acts
that may cause his or her dismissal. The other notice must [inform] the employee of the
employer’s decision. Aside from the notice requirement, the employee must also be given ‘an
opportunity to be heard’”.

 SERRANO DOCTRINE
The phrase “of for three months for every year of the unexpired term, whichever is less” of
Sec. 10 paragraph 5 of RA 8042 has been declared unconstitutional for being discriminatory,
among other significant reasons cited thereon. Consequent to tis ruling, illegally dismissed
OFWs are now entitled to all the salaries for the entire unexpired portion of their employment
contracts, irrespective of the stipulated term or duration thereof.
Although the subject clause was declared not violative of Section 10 Article III of the
Constitution on non-impairment of contracts, it was, however, pronounced that it violated
Section 1, Article III; Section 18, Article II; and Section 3, Article XIII of the Constitution on
labor as a protected sector. A closer examination of the subject clause reveals that it has a
discriminatory intent against, and an invidious impact on, OFWs at the following
levels: First, OFWs with employment contract of less than one year vis-à-vis OFWs with
employment contracts of one year or more; Second, among OFWs with employment
contracts of more than one year; and Third, OFWs vis-à-vis local workers with fixed-
period employment.
On the first, the enactment of the subject clause in RA 8042 introduced a differential rule of
computation of the money claims of illegally dismissed OFWs based on their employment
periods, in the process singling out one category whose contracts have an unexpired portion
of one year or more and subjecting them to the peculiar disadvantage of having their
monetary awards limited to their salaries for 3 months or for the unexpired portion thereof,
whichever is less, but all the while sparing the other category from such prejudice, simply
because the latter’s unexpired contracts fall short of one year.
On the second, the subject clause “or for three months for every year of the unexpired term,
whichever is less” contains the qualifying phrases “every year” and “unexpired term.”
Corollarily, the unexpired term must be at least one year for if it were any shorter, there
would be no occasion for such unexpired term to be measured by every year; and the original
term must be more than one year, for otherwise, whatever would be the unexpired term
thereof will not reach even a year. Consequently, the more decisive factor in the
determination of when the subject clause shall apply is not the length of the original contract
period, but the length of the unexpired portion of the contract period – the subject clause
applies in cases when the unexpired portion of the contract period is at least one year, which
arithmetically requires that the original contract period be more than one year. Viewed in that
light, the subject clause creates a sub-layer of discrimination among OFWs whose contract
periods are for more than one year: those who are illegally dismissed with less than one year
left in their contracts shall be entitled to their salaries for the entire unexpired portion thereof,
while those who are illegally dismissed with one year or more remaining in their contracts
shall be covered by the subject clause and their monetary benefits limited to their salaries for
the 3 months only.
On the third, prior to RA 8042, OFWs and local workers with fixed-term employment who
were illegally discharged were treated alike in terms of the computation of their money
claims: they were uniformly entitled to their salaries for the entire unexpired portions of their
contracts. But with the enactment of RA 8042, specifically the adoption of the subject clause,
the illegally dismissed OFWs with an unexpired portion of one year or more in the
employment contract have since been differently treated in that their money claims are
subject to the 3-month cap, whereas no such limitation is imposed on local workers with
fixed-term employment. The subject clause singles out one classification of OFWs and
burdens it with a peculiar disadvantage.
There can never be a justification for any form of government action that alleviates the
burden of one sector, but imposes the same burden on another sector, especially when the
favored sector is composed of private business such as placement agencies, while the
disadvantaged sector is composed of OFWs whose protection no less than the Constitution
commands. The idea that private business interest can be elevated to the level of a compelling
interest is odious.
The subject clause does not state or imply any definitive governmental purpose; and it is for
that precise reason that the clause violates not just the petitioner’s right to equal protection,
but also her righto substantive due process under Section 1 Article III of the Constitution.
 In the computation of the lump-sum salary due an illegally dismissed OFW, there are two
clauses as points of reckoning: first, is the cumulative salary for the unexpired portion of his
employment; and second, is the grant of 3 months’ salary for every year of the unexpired
term, whichever is less. By reason of this latest Serrano doctrine, al past decision apply.
APPLICATION OF THE SERRANO AND SAMEER RULINGS
The clause “or for three months for every year of the unexpired term, whichever is
less” having been declared unconstitutional in Serrano and Sameer after the provision found
its way again in RA 10022 which took effect in 2010, the proper indemnity in illegal
dismissal cases, according to Gopio, should be the amount equivalent to the unexpired term
of the employment contract. In this case, since Bautista’s contract is for 31 months with a
monthly salary of P115,850.00 and he was illegally dismissed just 9 months after his
deployment in Papua New Guinea, therefore, there remain 22 months of his unexpired
contract. Hence, said amount should be multiplied by 22 months, the remaining term of his
employment contract, or a total amount of P2,548,700.00.

COMPONENT OF CONTRACT’S UNEXPIRED PORTION

In the computation of the amount due to an illegally dismissed OFW, only the salaries for the
unexpired portion of the employment contract should be included, as pronounced in Serrano,
thus:
“The word salaries in Section 10(5) do not include overtime and leave pay. For seafarers
like petitioner, DOLE Department Order No. 33, series of 1996, provides a Standard
Employment Contract of Seafarers, in which salary is understood as the basic wage,
exclusive of overtime, leave pay and other bonuses; whereas overtime pay is compensation
for all work ‘performed’ in excess of the regular 8 hours and holiday pay is compensation for
any work ‘performed’ on designated rest days and holidays.”
Substantive and Procedural Due Process in OFW Termination Cases
OFWs are entitled to security of tenure as guaranteed under the Constitution and the laws of
the Philippines. Thus, OFWs may only be terminated for a just or authorized cause
(substantive due process) and after compliance with procedural due process requirements.
Article 297 of the Labor Code enumerates the just causes of termination by the employer and
Articles 298 [283] and 299 [284] thereof enumerate the authorized causes.
The fundamental procedural rights afforded under the Philippines laws to workers equally
apply to OFWs. This means that the employer must give the concerned employee at least two
notices before his or her termination. Specifically, the employer must inform the employee of
the cause or causes for his or her termination and thereafter, the employer’s decision to
dismiss him. Aside from the notice requirement, the employee must be accorded the
opportunity to be heard.
 Damages entitlement of OFW
Private employment agency must “assume joint and solidary liability with the employer for
all claims and liabilities which may arise in connection with the implementation of the
contract, including but not limited to payment of wages, death and disability compensation
and repatriations”.  Moreover, an agency which is a corporation or a partnership must agree
that its officers, partners and directors “will be jointly and severally liable with the company
over claims arising from employer employee relationship”. What this means is that if an
OFW wants to make a claim for compensation for an illegal action or breach of contract by
the employer, he or she may make that claim, not only against the employment agency, but
also against its partners or directors.

TERMINATION OF EMPLOYMENT OF OFWS

OFWs are entitled to security of tenure as guaranteed under the Constitution and the laws of
the Philippines. Thus, OFWs may only be terminated for a just or authorized cause
(substantive due process) and after compliance with procedural due process requirements.
Art. 297 [282] of the Labor Code enumerates the just causes of termination by the employer
and Articles 298 [283] and 299 [284] thereof enumerate the authorized causes. The
fundamental procedural rights afforded under the Philippine laws to workers equally apply to
OFWs. This means that the employer must give the concerned employee at least two (2)
notices before his or her termination. Specifically, the employer must inform the employee of
the cause or causes for his or her termination, and thereafter, the employer’s decision to
dismiss him. Aside from the notice requirement, the employee must be accorded the
opportunity to be heard.
In Agabon vs. NLRC [G.R. No. 158693: November 17, 2004], The procedure for
terminating an employee is found in Book VI, Rule I, Section 2(d) of the Omnibus Rules
Implementing the Labor Code:
Standards of due process: requirements of notice. - In all cases of termination of employment,
the following standards of due process shall be substantially observed:

1. For termination of employment based on just causes as defined in Article 282 of

the Code.

 A written notice served on the employee specifying the ground or grounds for
termination, and giving to said employee reasonable opportunity within which to
explain his side;

 A hearing or conference during which the employee concerned, with the

assistance of counsel if the employee so desires, is given opportunity to respond to
the charge present his evidence or rebut the evidence resented against him; and
 A written notice of termination served on the employee indicating that upon due
consideration of all the circumstances, grounds have been established to justify his
termination.

     *In case of termination, the foregoing notices shall be served on the employee’s last
known address

Awards of indemnity in OFW cases applying Agabon case

Background:
SC upheld the dismissal against the petitioners (Jenny Agabon and Virgilio Agabon) because
it was established that the petitioners abandoned their jobs to work for another company.
Private respondent, however, did not follow the notice requirements and instead argued that
sending notices to the last known addresses would have been useless because they did not
reside their anymore. Unfortunately, this is not a valid excuse because the law mandates the
twin notice requirements to the employee’s last known address. Thus it should be held liable
for non-compliance with the procedural requirements of due process.
Art. 279 means that the termination is illegal if it is not for any of the justifiable or authorized
by law. Where the dismissal is for just cause but, the lack of statutory due process should not
nullify but the employer should indemnify the employee for the violation of his statutory
rights The indemnity should be stiffer to discourage the abhorrent practice of “dismiss now,
pay later” which we sought to deter in Serrano ruling. The sanction should be in the nature of
indemnification or penalty and should depend on the facts of each case, taking into special
consideration the gravity of due process violation of the employer.
ART. 279. Security of Tenure. - In cases of regular employment, the employer shall not
terminate the services of an employee except for a just cause or when authorized by this Title.
An employee who is unjustly dismissed from work shall be entitled to reinstatement without
loss of seniority rights and other privileges and to his full backwages, inclusive of
allowances, and to his other benefits or their monetary equivalent computed from the time his
compensation was withheld from him up to the time of his actual reinstatement.
The Supreme Court upheld the decision of the Court of Appeals in fixing the amount to
P30,000.00 each as nominal damages for non-compliance with statutory due process. The CA
believes that this form of damages would serve to deter employers from future violations of
the statutory due process rights of employees. At the very least, it provides a vindication or
recognition of this fundamental right granted to the latter under the Labor Code and its
Implementing Rules.
Private respondent is liable for petitioners' holiday pay, service incentive leave pay and 13th
month pay without deductions. (Agabon vs. NLRC, G.R. No. 158693, November 17, 2004)
Application:
Indemnity in the form of nominal damages.  If an OFW is dismissed for a just and
authorized cause and after affording him procedural process, his dismissal is considered
perfectly valid and legal, and therefore, he is not entitled to any salary for the unexpired
portion of his employment contract or any other form of relief. However, if there is just or
authorized cause but procedural process was not afforded to him, the rule that applies is
the Agabon Doctrine.

Monetary awards to OFWs, do not apply Art. 279 on local employment

The reliefs under article 279 of the Labor code are  not available to OFWs.
Any and all claims arising from the employment of OFWs, including those for death or
illness compensations, are not rooted from the provisions of the Labor Code (NYK-Fil Ship
Management, Inc.  v. NLRC).
Reinstatement or separation pay in lieu of reinstatement or full backwages, are not available
to OFWs as provided for in ART 279.
A validly dismissed OFW is not entitled to his salary for the unexpired portion of his
employment contract.
How to reckon the monetary awards to OFWs illegally dismissed prior to the effectivity
of R.A. No. 8042.
EDI- Staffbuilders international, Inc. v. NLRC) instructs that in termination cases arising
before the effectivity of R. A No. 8042, on August 25, 1995 [approved on June 7,
1995] where the OFWs are dismissed without just cause, they are entitled to payment of their
salaries corresponding to the unexpired portion of their fixed-term contract. Consequently,
since the OFW in this case was dismissed prior to the effectivity of R.A No. 8042, he
is entitled to all his salaries for the unexpired portion of his contract, without the
qualification now found in Section 10 of said law. *This is still a good rule
Qualification in par. 5 section 10 of R.A no. 8042 declared unconstitutional.
The 5th paragraph of section 10 of R. A. No. 8042 qualifies, as a form of relief, the amount of
monetary award to which an illegally dismissed OFW is entitled. The amount of monetary
award is made dependent on the term or duration of his contract of employment, thus:
“In case of termination of overseas employment without just, valid or authorized cause as
defined by law or contract, the worker shall be entitled to the full reimbursement of his
placement fee with interest at twelve percent (12%) per annum, plus his salaries for the
unexpired portion of his employment contract or for three (3) months for every year of the
unexpired term, whichever is less.” *Unconstitutional so go back to EDI case
Monetary award to OFW is not in the nature of separation pay or backwages but a
form of indemnity.
Only salaries are to be included in the computation of the amount de for the unexpired
portion of the contract.
Entitlement to overtime pay of OFWs.
Reimbursement of placement fee included in the monetary award to an OFW.
Costs of repatriation and transport of personal belongings should be included in the
monetary award to an illegally dismissed OFW.

Indemnity for OFWs; Separation pay or backwages for local employment

“Monetary award to OFW is not in the nature of separation pay or backwages but a form of
indemnity.”
The award of salaries for the unexpired portion of an OFW’s employment contract is not an
award of backwages or separation pay but a form of indemnity for the OFW who was
illegally dismissed. (Skippers United Pacific, Inc. v. NLRC, G.R. 148893, July 12, 2006).

ENTITLEMENT OF OFWS OF DAMAGES & ATTORNEY’S FEES

In the 2005 case of Athenna, the High Tribunal ruled that because of the breach of contract
and bad faith alleged against the employer and the petitioner recruitment agency, the award
of P50,000 in moral damages and P50,000 as exemplary damages, in addition to attorney’s
fees of ten percent (10%) of the aggregate monetary awards, must be sustained.
Likewise, in the case of ATCI Overseas , the award of attorney’s fees equivalent to ten
percent (10%) of the total award was held legally and morally justified as the OFWs were
compelled to litigate and thus incur expenses to protect their rights and interests

Basis of computation of death benefits of OFW

The basis of computation of death benefits of OFW generally, is whichever is greater

between Philippine law and foreign law.
The family of an active OFW at the time of his death is entitled to receive P100, 000.00 if the
cause of death is natural, and P200, 000.00 if the cause of death is accident. On top of that is
a burial benefit of P20,000.00 shall be provided in case of the member’s death.

Rules on repatriation of OFWs

Repatriation of workers, in general.

The repatriation of a land-based worker or seafarer and the transport of his personal
belonging are the primary responsibility of the agency which recruited or deployed the
worker overseas. All costs attendant to repatriation should be charged to the agency
concerned and/or it’s principal. Likewise, the repatriation of remains and transport of the
personal belongings of a deceased land-based worker or seafarer and all costs attendant
thereto should be borne by the principal and/or the local agency. However, in cases where
termination of employment is due solely to the fault of the employee, the principal/employer
or agency is not in any manner responsible for the repatriation of the former and/or his
belongings. (Sec. 1, Rule III, Part VIII; Sec. 1, Rule II, Part VII)
Repatriation costs when employment is terminated.
The principal or agency is required to advance the cost of plane fare without prior
determination of the cause of the termination of the land-based worker’s or seafarer’s
employment. However, the principal or agency may recover the cost of repatriation from the
worker or seafarer upon his return to the Philippines if termination of employment is due
solely to the employee’s fault. (Sec. 2, Rule III, Part VIII; Sec. 2, Rule II, Part VII; Sec. 53,
Omnibus Rules and Regulations Implementing Migrant Workers and Overseas Filipinos Act
of 1995)
Repatriation in case of fault of migrant worker.
In cases where the termination of employment is due solely to the fault of the worker, the
principal/employer or agency is not in any manner responsible for the repatriation of the
former and/or his belongings. (Sec. 15, RA No. 8042)
Repatriation procedure.
When the need for repatriation arises and the principal fails to provide the costs, the
Philippine Embassy/Consulate/Overseas Labor Office at worksite should simultaneously
notify the POEA and OWWA of such need. POEA should require the agency to provide the
plane ticket or a pre-paid ticket advice to the Philippine Embassy/Consulate/Overseas Labor
Office and to report its compliance to the POEA which should advise OWWA
accordingly. (Sec. 3, Rule III, Part VIII, 2002 POEA Rules for Land-Based Overseas Worker;
Sec. 3, Rule II, Part VII, 2003 POEA Rules for Seafarers; Sec. 15, RA No. 8042; Secs. 52 and
54, Omnibus Rules and Regulations Implementing the Migrant Workers and Overseas
Filipinos Act of 1995)
Administrative sanction for non-compliance.
If the employment agency fails to provide the ticket or pre-paid ticket advise within 48 hours
from receipt of notice, POEA should suspend the documentary processing of the agency or
impose such sanctions, as it may deem necessary. POEA may request OWWA in advance the
costs of repatriation with legal interest. (Sec. 4, Rule III, Part VIII; Sec. 4, Rule II, Part VII;
Sec. 55, Omnibus Rules and Regulations Implementing Migrant Workers and Overseas
Filipinos Act of 1995)
Repatriation in case of war and other events.
OWWA, in coordination with appropriate international agencies, should undertake the
repatriation of workers in cases of war, epidemic, disasters or calamities, natural or man-
made, and other similar events without prejudice to reimbursement by the responsible
principal or agency within 60 days from notice. In such case, POEA should simultaneously
identify and give notice to the agencies concerned. However, in cases where the principal or
recruitment agency cannot be identified, all costs attendant to repatriation should be borne by
the OWWA. Sec. 15, RA No. 8042; Sec. 56, Omnibus Rules and Regulations Implementing
Migrant Workers and Overseas Filipinos Act of 1995)
Mandatory repatriation of underaged migrant workers.
Upon discovery or being informed of the presence of migrant workers whose actual ages fall
below the minimum age requirement for overseas deployment, the responsible officers in the
foreign service should, without delay, repatriate said workers and advise the Department of
Foreign Affairs through the fastest means of communications available, of such discovery
and other relevant information. The cost mandated under RA No. 8042 should be borne
correspondingly by the agency and/or principal of OWWA, as the case may be. (Sec. 16, RA
No. 8042; Sec. 57, Omnibus Rules and Regulations Implementing Migrant Workers and
Overseas Filipinos Act of 1995)
Other cases of repatriation.
In all cases where the principal or agency of the worker cannot be identified, cannot be
located or had ceased operations, and the worker is in need and without means, OWWA
personnel at jobsite, in coordination with DFA, should cause the repatriation. All costs
attendant to repatriation borne by the OWWA are chargeable to the Emergency Repatriation
Fund provided under RA NO. 8042, without prejudice to OWWA requiring the
agency/employer of the worker to reimburse the cost of repatriation in appropriate
cases. (Sec. 58, Omnibus Rules and Regulations Implementing Migrant Workers and
Overseas Filipinos Act of 1995)

EXISTENCE AND DEGREE OF SEAFARER’S DISABILITY; HOW DETERMINED

AND DECLARED

1. Disability should be understood on the basis of loss of earning capacity and not on
its medical signifance.
2. Certification by a company-designated physician; accreditation with POEA not
necessary.
3. Findings of company-designated physician, not conclusive.
4. OFW should present controverting evidence.
5. Right of OFW to seek a second opinion from physicians other than company-
designated physician. *2019 BAR on  third-doctor conflict resolution.

In case of conflict opinions, that which is favorable to the OFW should be adopted

AWARD IN FOREIGN CURRENCY; HOW COMPUTED

In case the salary of an illegally dismissed employee is in foreign currency (say, US Dollars)
as in the case of OFWs, the monetary award equivalent to the salary for the unexpired portion
should be paid at its prevailing peso equivalent at the time of payment in accordance with
Republic Act No. 8183 which provides in its Section 1 that “[a]ll monetary obligations shall
be settled in the Philippine currency which is legal tender in the Philippines.  However, the
parties may agree that the obligation or transaction shall be settled in any other currency at
the time of payment.” (Republic Act No. 8183 entitled “An Act Repealing Republic Act
Numbered Five Hundred Twenty-Nine Entitled ‘An Act to Assure the Uniform Value of
Philippine Coin and Currency’”; Asia World Recruitment, Inc. vs. NLRC, G. R. No. 113363,
Aug. 24, 1999).

FUNDS ESTABLISHED FOR OFWS

RA 8042 has established the following funds for availment by migrant and overseas
Filipinos:
 1. Migrant Workers Loan Guarantee Fund
2. Emergency Repatriation Fund
3. Legal Assistance Fund
4. Congressional Migrant Workers Scholarship Fund

MANDATORY OBLIGATION TO REMIT FOREIGN EXCHANGE EARNINGS

It shall be mandatory for all Filipino workers abroad to remit a portion of their foreign
exchange earnings to their families, dependents and/or beneficiaries in the country in
accordance with rules and regulations prescribed by the Secretary of Labor and Employment.
Mandatory remittance – the amount or portion of the basic salary of Overseas Filipino
workers required under existing laws and regulations to be remitted by the workers to their
beneficiaries in the Philippines and sold for pesos to the Philippine banking system.
Exceptions to mandatory remittance:

1. Where the worker’s immediate family members, dependents, or beneficiaries are

residing with him abroad;
2. Filipino servicemen working in U.S. military installations;
3. Immigrants and Filipino professionals and employees working with United
Nations agencies or specialized bodies (Resolution No. 1-83 Inter-Agency
Committe for implementation of E.O. 857).

Amount of remittance
(% of basic salary)

1. Seafarers or mariners - 80 %
2. Workers of Filipino contractors and construction companies - 70 %
3. Doctors, engineers, teachers, nurses, and other professional workers whose
employment contracts provide for free board and lodging - 70 %
4. Other professionals whose employment contracts do not provide for free board
and lodging - 50 %
5. Domestic and other service workers - 50 %

CONSEQUENCES OF FAILURE TO REMIT EARNINGS

 Workers who fail to comply shall be suspended or excluded from the list of
eligible workers for overseas employment.
 Subsequent violations shall warrant his repatriation from the job site at the
expense of the employer or at his expense.
 Filipino or foreign employers and/or their representatives who fail to comply with
the mandatory remittance requirements shall be excluded from the overseas
employment program, while local private employment agencies or entities shall
face cancellation or revocation of their licenses or authority to recruit, without
prejudice to other liabilities under existing laws and regulations ( Sec. 9, E.O.
857, Dec 13, 1982).

*remember substantial compliance rule

Rules on POEA Standard Employment Contracts (POEA-SEC) interpretation

Validity of standard form contracts.

The POEA Standard Employment Contract (POEA-SEC) for OFWs is designed primarily for
their protection and benefit in the pursuit of their employment overseas. It's provisions must,
therefore, be construed and applied fairly, reasonably and liberally in their favor. Only then
can its beneficent provisions be fully carried into effect. (Philippine Transmarine Carriers, Inc
v. NLRC, G. R. no. 123891,Feb.28,2001)
Invalidity of contract diminishing salary and benefits ;exception.
A contract which diminishes the pay and benefits of the employee as embodied in the
contract duly approved by the POEA is null and void. The exception is when such subsequent
contract providing for lesser pay and benefits is approved by the POEA. (Chavez v. Bonto-
Perez, G. R. no. 109808, March 1 1995)
Interpretation of overseas employment contract
Any ambiguity in the overseas employment contract shall be interpreted against the parties
that drafted it. (Cadalin v. POEA's Administrator, G. R. no. 104776, Dec 5,1995)
Labor Contracts must be interpreted liberally in favor of the worker.
The provisions contained in the standard contract of employment for Filipino seamen
pursuant to Memorandum Circular no. 2 are manifestations of the state in favor of the
working class provisions of the Constitution. Consequently, the payment of death benefit
pension, funeral benefit and burial gratuity to private respondent will not preclude allowance
to private respondent’s claim against petitioner which is specifically reserved in the said
standard contract of employment.
Stipulation on SSS coverage of OFWs.
Foreign shipowners and manning agencies had generally expressed their conformity to the
inclusion of Filipino seafarers on board foreign vessels, within the coverage of the Social
Security Act. The extension of coverage of the Social Security system to Filipino seafarers
arises by virtue of the assent given in the contract of employment signed by the employer and
the seafarer. By extending the benefits of the Social Security Act to Filipino seafarers, the
individual employment agreement entered into with a stipulation of such coverage
contemplated in the DOLE-SSS Memorandum of Agreement merely gives effect to the
constitutional mandate of affording protection to labor. (Sta. Rita v. CA, G. R. no.
119891,Aug 21 1995)

PROHIBITED PRACTICES UNDER ART. 34, LC

1. 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;
2. To furnish or publish any false notice or information or document in relation to
recruitment or employment;
3. 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 this
Code.
 4. 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;
5. To influence or to attempt to influence any person or entity not to employ any
worker who has not applied for employment through his agency;
6. 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;
7. To obstruct or attempt to obstruct inspection by the Secretary of Labor or by his
duly authorized representatives;
8. To fail to file 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.
9. To substitute or alter employment contracts approved and verified by the
Department of Labor from the time of actual signing thereof by the parties up to
and including the periods of expiration of the same without the approval of the
Secretary of Labor;
10. 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; and
11. To withhold or deny travel documents from applicant workers before departure
for monetary or financial considerations other than those authorized under this
Code and its implementing rules and regulations.

EMPLOYMENT OF NON-RESIDENT ALIENS

The following are Aliens 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 Resident Retiree’s
Visa (SRRV), Treaty Traders Visa (9D) or Special Non-Immigrant Visa (47(a)2)
for as long as they occupy any executive, advisory, supervisory, or technical
position in any Philippines establishment.
4. Agencies, organizations or individuals whether public or private, who secure the
services of foreign professionals to practice their professions in the Philippines
under reciprocity and other international agreements;
5. Non-Indo-Chinese Refugees who are asylum seekers and given refugee status by
the United Nations High Commissioner on Refugees (UNHCR) or the
Department of Justice under DOJ Department Order No. 94, series of 1998;
6. Resident foreign national seeking employment in the Philippines

Aliens exempted from AEP

The following are Aliens exempted from securing an AEP

1. Resident Foreign Nationals employed or seeking employment in the Philippines

(DO 41-03);
2. Members of the diplomatic services and foreign government officials accredited
by the Philippine government;
3. Officers and staff of international organizations of which the Philippine
government is a cooperating member, and their legitimate spouses desiring to
work in the Philippines;
4. Foreign nationals elected as members of the Governing Board who do not occupy
any other position, but have only voting rights in the corporation;
5. All foreign nationals granted exemption by special laws and all other laws that
may be promulgated by the Congress;
6. Foreign nationals who come to the Philippines to teach, present and/or conduct
research studies in universities and colleges as visiting, exchange or adjunct
professors under formal agreements between universities or colleges in the
Philippines and foreign universities or colleges; or between the Philippine
government and foreign government; provided that the exemption is on a
reciprocal basis; and
7. Owners and representatives of foreign principals, whose companies are accredited
by the Philippine Overseas Administration (POEA), who come to the Philippines
for a limited period solely for the purpose of interviewing Filipino applicants for
employment abroad.

SVEG DEFINITION; RATIONALE; WHO MAY AVAIL

Definition:
Special Visa for Employment Generation is a special visa issued to a qualified non-
immigrant foreigners who shall actually employ at least 10 Filipinos in a lawful and
sustainable enterprise, trade, or industry. Qualified foreigners who are granted the SVEG
shall be considered special non-immigrants with multiple entry privileges and conditional
extended stay, without the need of prior departure from the Philippines. The privileges of this
Executive Order may extend to the qualified foreigner’s spouse and dependent unmarried
child/children below 18 years of age whether legitimate, illegitimate or adopted. (Sec. 1 of
EO 758)
Rationale:
There are foreigners who want to maintain a lawful presence in the Philippines by actually,
directly or exclusively engaging in lawful, viable, and sustainable trade, business, industry, or
activity offering local employment. A survey of NSO shows millions of unemployed
Filipinos. SVEG is for the creation of job opportunities for the Filipino.
Who may avail:
Non-immigrant foreigners who wish to avail of the SVEG should comply with the following
conditions:

1. The foreigner shall actually, directly or exclusively engage in a viable and

sustainable commercial investment/enterprise in the Philippines,
 exercises/performs management acts or has the authority to hire, promote and
dismiss employees;
2. He evinces a genuine intention to indefinitely remain in the Philippines;
3. He is not a risk to national security; and
4. The foreigner’s commercial investment/enterprise must provide actual
employment to at least 10 Filipinos in accordance with Philippine labor laws and
other applicable special laws.

The above mentioned requirements must be continually satisfied by the foreigner for him/her
to continue to be a holder of the SVEG.  (sec. 2 of EO 758)

TESDA ACT OF 1994, GOALS AND OBJECTIVES

RA 7796 or the “TESDA Act of 1994” has the following goals and objectives:

1. Promote and strengthen the quality of technical education and skills development
programs to attain international competitiveness;
2. Focus technical education and skills development on meeting the changing
demands for quality middle-level manpower;
3. Encourage critical and creative thinking by disseminating the scientific and
technical knowledge base of middle-level manpower development programs;
4. Recognize and encourage the complementary roles of public and private
institutions in technical education and skills development and training systems;
and
5. Inculcate desirable values through the development of moral character with
emphasis on work ethic, self-discipline, selfreliance and nationalism.

DUAL TRAINING SYSTEM OF TESDA

Dual Training System is the framework where a worker-trainee receive training both in
school through theoretical instructions and in the workshop or factory with actual practice or
application.
This is to:

1. Promote maximum protection and welfare of the worker-trainee;

2. Improve the quality, relevance, and accountability of technical education and skill
development;
3. Accelerate the employment-generation efforts of the government; and
4. Expand the range of opportunities for upward social mobility of the school-going
population beyond traditional higher levels of formal education (Sec.21 RA 7796)