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Labor legislation – statues, regulations & jurisprudence governing relations bet capital
& labor, by providing for certain standards of terms & conditions of EENT or providing a
legal framework w/in w/c these terms & conditions & the EENT relationship may be
negotiated, adjusted & administered.
2 Divisions of Labor Legislation
1. Labor Standards – sets out the minimum terms, conditions & benefits of EENT that
EERS must provide or comply w/ & to w/c EES are entitled as a matter of legal right.
- minimum requirements prescribed by existing laws, rules & regulations relating to
wages, hrs of work, cost-of-living allowance and other monetary & welfare benefits,
including occupational safety & health standards.
- material or substance to be processed
2. Labor Relations – defines the status, rights & duties and the institutional
mechanisms, that govern the indiv & collective interactions of EERS, EES, or their
representatives.
- mechanism that processes the substance
Labor – physical toil although it does not necessarily exclude the application of skill
(thus ―skilled‖ & ―unskilled‖ labor)
Skill – the familiar knowledge of any art/science, united w/ readiness & dexterity in
execution/performance or in the application of the art/science to practical purposes.
Work – (broader than labor) – covers all forms of physical/mental exertion, or both
combined, for the attainment of some obj other than recreation/amusement per se.
Worker – (broader than EE) – may refer to self-employed people & those working in the
service & under the control of another, regardless of rank, title, or nature of work.
- any member of the labor force whether employed/unemployed
Employee – a salaried person working for another who controls or supervises the
means, manner or method of doing the work.
Labor Law & Social Legislation
Social legislation – includes laws that provide particular kinds of protection/benefits to
society in furtherance of social justice.
legislation
Social Justice as the Aim
Social justice – humanization of laws & the equalization of social & economic forces by
the State so that social justice in its rational & objectively secular conception may at
leas be approximated
- promotion of the welfare of the ppl, the adoption by the Govt of measures calculated
to insure economic stability of all the component elements of society through the
maintenance of proper economic & social equilibrium in the interrelations of the
members of the community, constitutionally, through the adoption of measures legally
justifiable, or extra-constitutionally, through the exercise of powers underlying the
existence of all govts.
1987 Consti: protects the rights of workers & promote their welfare
Basic rights of workers guaranteed by the Constitution
1. to organize themselves
2. to conduct collective bargaining/negotiation w/ mgt;
3. to engage in peaceful concerted activities, including to strike in accordance w/ law;
and
4. to participate in policy & decision-making processes affecting rights & benefits
Other Consti provisions that protect the Rs/promote the welfare of workers
-org even for govt EES.. No officer/Ee of the Civil Service shall be
protection as may be provided by law
tively the lands they till.
Landless farmworkers may be resettled by the govt in its own agri estates.
titled to seats to party list
justice & economic dev’t
the other officials & EES
may be considered for reemployment in the govt
Consti – prol-labor, but recognizes the indispensable role of the private sector,
encourages private enterprise and provides incentives to needed investments
Police Power as the Basis
- the power of the govt to enact laws, w/in Constitutional limits to promote the order,
safety, health, morals & general welfare of society
- power inherent in govt to protect itself & all its constituents, & for this purpose to hold
the govt immune so far as necessary, from any limitatins imposed in the past.
- An imposition of restraint upon liberty or property in order to foster the common
good.
Birth of the LC
Blas Ople - father of the LC
LC – designed to be a dynamic & growing body of laws w/c will reflect continually the
lessons of practical application & experience
7 Principles Underlying the code
1. Labor relations must be made both responsive & responsible to national devt
2. Labor laws/labor relations during a period of national emergency must substitute
arbitration
3. Laggard justice in the labor field is injurious to the workers, the EERS & the public;
labor justice can be made expeditious w/o sacrificing due process.
4. Manpower devt & EENT must be regarded as a major dimension of labor policy, for
there can be no real equality of bargaining power under conditions of severe mass
unemployment.
5. There is a global labor market available to qualified Filipinos, esp those who are
unemployed or whose EENT is tantamount to unemployment bcoz of their very little
earnings.
6. Labor laws must command adequate resources & acquire a capable machinery for
effective & sustained implementation; when labor laws cannot be enforced, both EERS
& the workers are penalized, & only a corrupt few (those who are in charge of
implementation) may get the reward they don’t deserve.
7. There shld be popular participation in national policy-making through what is now
called tripartism.
Some Labor Laws before the Passage of the Code
-cash form
-hr labor law
le all disputes bet EERS & EES
– forbids commercial, industrial or agri enterprises to
open on any Sunday, Xmas Day, New Year’s Day, Holy Thurs & Good Friday.
RA #1787: The Termination Pay Law – enumerated the just causes for terminating an
EENT w/o a definite period and allowed EERS to separate an EE by serving a 15-day
notice per yr of service or, by paying an equivalent separation pay.
Significance of Other Laws
1. Foreign Decisions – numerous LC provisions are substantially similar to the Industrial
Peace Act
2. The Civil Code – describes the nature of labor mgt relations:
―The relations bet capital & labor are not merely contractual. They are so impressed
are subj. to the special laws on labor unions, collective bargaining, strikes & lockouts,
closed shop, wages, working conditions, hrs of labor & similar subjs.‖ —Art 1700
―Neither capital nor labor shall act oppressively against the other, or impair the interest
or convenience of the public‖ –Art 1701.
3. RPC – punishes the use of violence or threats by either EER or EE.
4. Special Laws – (SSS law, GSIS law, Agrarian Reform law, the 13th-month pay law,
the Magna Carta for Public Health Workers)
Art 3. [Declaration of Basic Polici] The State shall afford protection to labor, promote
full EENT, ensure equal work opportunities regardless of sex, race or creed, and
regulate the relations bet workers & EERS. The State shall assure the rights of workers
to self-org, collective bargaining, security of tenure, and just & humane conditions of
work.
Balanced Approach – shared responsibility. Worker & EER sectors are interdependent.
Art4. [Construction in Favor of Labor] All doubts in the implementation & interpretation
of the provisions of this Code, including its IRRs, shall be resolved in favor of labor.
Interpretation & Construction – policy is to extend the decree’s applicability to a greater
number of EES to enable them to avail of the benefits under the law (Liberal approach
is adopted)
Concern for the Lowly Worker – SC reaffirms its concern for the lowly worker who,
often at his EER’s mercy, must look up to the law for his protection. (Reason: the EER
stands on higher footing than the EE: (1,) There is greater supply than demand for
labor; (2) the need for EENT by labor comes from vital & even desperate necessity.)
Mgt Rights – entitled to respect & enforcement in the interest of simple fair play.
1. R to manage, control, and use his property & conduct business in a manner
satisfactory to himself (just discrimination in the rate of wages paid to the skillful & to
the unskillful, to the efficient & inefficient.)
2. R to prescribe rules (they become part of the contract of EENT)
3. R to select EES & to decide when to engage them, except as restricted by statute or
valid contract, at a wage & under conditions agreeable to them.
4. R to transfer & discharge EES in order to minimize expenses & to insure stability of
the business & even to close the business, provided it is done in good faith & due to
causes beyond control.
Art 5. [Rules & Regulations] the DOLE & other govt agencies charged w/ the
administration & enforcement of this Code or any of its parts shall promulgate the
necessary IRRs. Such RRs shall become effective 15 days after announcement of their
adoption in the newspapers of gen. circulation.
Art 6. [Applicability] All Rs & benefits granted to workers under this Code shall, except
as may otherwise be provided herein, apply alike to all workers, whether agricultural or
non-agricultural.
- also applies to a govt corp incorporated under the Corporation Code.
- Test WON a govt-owned/-controlled corp is subj to CS Law is the manner of its
creation. Govt corps created by special charter are subj to its provisions, while those
incorporated under the gen Corp Law are not w/in the coverage of the CS law.
-EDC –
–
– Ees covered by CS Law
CH. 2: EMANCIPATION OF TENANTS
Art 7 [Statement of Objectives] … it has become imperative to start reformation w/ the
emancipation of the tiller of the soil from his bondage.
Art 8: [Transfer of Lands to Tenant-workers] … tenant-farmers on private agri lands
primarily devoted to rice & corn under a sys of share crop or lease tenancy whether
classified as landed estate or not shall be deemed owner of apportion constituting a
family-size farm of 5 hectares if not irrigated & 3 hectares if irrigated..
In all cases, the landowners may retain an area of not more than 7 hectares if such
landowner is cultivating such area or will now cultivate it.
Art 9. [Determination of Land Value] For the purpose of determining the cost of the
land to be transferred to the tentant-farmer, the value of the land shall be equivalent to
2 & ½ times the average harvest of 3 normal crop yrs immediately preceding the
promulgation of PD 27 (OCT 21, 1972).
The total cost of the land, including interest at the rate of 6% per annum, shall be pd
by the tenant in 15 yrs of 15 equal annual amortizations.
In case of default, the amortizations due shall be pd by the farmers’ cooperative in w/c
the defaulting tenant-farmer is a member, w/ the coop having a right of recourse
against him.
The govt shall guarantee such amortizations w/ shares of stock in govt-owned & -
controlled corps.
Art 10. [Conditions of Ownership] No title to the land acquired by the tenant-farmer
under PD 27 shall be actually issued to him unless & until he has become a full-fledged
member of a duly recognized farmers’ coop.
Title to the land acquired pursuant to PD 27 or the Land Reform Program of the Govt
shall not be transferable except by hereditary succession or to the Govt in accdance w/
the provisions of PD 27, the Code of Agrarian Reforms & other existing laws &
regulations.
Art 11. [Implementing Agency] The Dept of Agrarian Reform shall promulgate the
necessary rules & regulations to implement the provisions of this Chapter.
*Land for the landless – battlecry dramatizing the increasingly urgent demand of the
dispossessed for a plot of earth as their place under the sun.
*CARP Law – signed by Cory, declaring full land ownership in favor of the beneficiaries
of the PD 27.
Share tenancy – abolished, put the agricultural leasehold sys in its stead, geared
towards eventual ownership of land by its tillers
Consti - State shall undertake an Agrarian Reform Program, and encourage & undertake
the just distribution of all agri lands, subj to such priorities & reasonable retention limits
as the Congress may prescribe,
Compensation scheme: Sec 18 of CARP: Title to all expropriated properties shall be
transferred to the State only upon full payment of compensation of their respective
owners.
Retention Limits –
own/retain directly/indirectly, any public/private agri land, the size of w/c shall vary
accdg to factors governing a viable family-sized farm, such as commodity produced,
terrain, infrastructure, & soil fertility as determined by the Presidential Agrarian Reform
Council (PARC).
3 hectares – may be awarded to each child of the landowner, subj to the ff
qualifications: (1.) he is at least 15 y/o, and (2) he is actually tilling the land or directly
managing the farm; Provided, that landowners whose lands have been covered b PD 27
shall be allowed to keep the area originally retained by them thereunder; Provided
further, that orig homestead grantees or direct
compulsory heirs who still own the org homestead at the time of the approval of this
Act shall retain the same areas as long as the continue to cultivate said homestead.
Lands not covered
1. Lands obtained through homestead patent:
Homestead Act – gives a needy citizen a piece of land where he may build a modest
house for himself & family & plant what is necessary for subsistence & for the
satisfaction of life’s other needs.
- superior over the rights of tenants
2. Residential Subdivisions – not considered agricultural. An agricultural leasehold
cannot be established on land w/c has ceased to be devoted to cultivation or farming
bcoz of its conversion into a residential subd.
3. Livestock, poultry & Swine raising lands: Sec 2 of RA 6657 w/c includes ―private agri
lands devoted to commercial livestock, poultry & swine raising‖ in the definition of
―commercial farms‖ is invalid. They are covered by the agrarian reform prog of the
State.
―The Greatest Blessing…The Worst Crime‖ – Frederick Taylor
- an increased output invariably gives more work to more men, & never in the history of
the world has it more than temporarily, and then for only a very short time, diminished
by the number of men at work in any trade
―The Greatest Exploiter‖ – Blas Ople
- unemployment is the greatest exploiter of labor. Mass unemployment tends to leave
the EER all-powerful and the worker defenseless
―More Capital Means More Jobs‖ – Adam Smith
- 2 kinds of funds: (1) the Revenue – w/c is over & above what is necessary for the
maintenance; and (2) the Stock – w/c is over & above shat is necessary for the EENT of
their masters.
-
the revenue & stock of every country and cannot increase w/o it. The increase of
revenue & stock is the increase of national wealth.
―An Exploited Class‖ – J. Reynato Puno
- Overseas workers constitute an exploited class. Their unfortunate circumstance makes
them easy prey to avaricious EERs. They will work under subhuman conditions & accept
salaries below the minimum.
―9% of Filipinos are Based Overseas‖—Ph Star
RA 6657 Comprehensive Agrarian Reform Program
Aim: A more equitable distribution & ownership of land, w/ due regard to the rights of
landowners to just compensation & to the ecological needs of the nation
Basis: the R of farmers & regular farm workers, who are landless, to own directly or
collectively the lands they till or, in the case of other farm workers, to receive a share of
the fruits thereof
The State:
- shall respect the R of small landowners & shall provide incentives for voluntary land-
sharing
- shall recognize the R of farmers, farm workers & landowners, as well as cooperatives
& other independent farmers org, to participate in the planning, org, & mgt of the
program & shall provide support to agriculture though tech & research & financial,
production, marketing & other support services
- may resettle landless farmers & farm workers in its own agricultural estates
- shall encourage the formation & maintenance of economic-sized family farms to be
constituted by indiv beneficiaries & small landowners
- shall protect the Rs of subsistence fishermen to the preferential use of communal
marine & fishing resources both inland & offshore
- shall provide support to such fishermen thru appropriate tech & research, adequate
financial, production & marketing assistance
- shall protect offshore fishing grounds of subsistence fishermen against foreign
intrusion. Fisherworkers shall redeive a just share from their labor in the utilization of
marine & fishing resources
- owners of agri land have the oblig to cultivate directly or thru labor admin the lands
they own & thereby make the land productive.
- Shall provide incentives to landowners to invest the proceeds of the agrarian reform
prog to promote industrialization, EENT & privatization of pub sector enterprises
- May lease undeveloped lands of pub domain to qualified entities for the devt of
capital-intensive farms, traditional & pioneering crops esp those for export (subj. to Rs
of beneficiaries)
Definitions
1. Agrarian Reform – the redistribution of lands, regardless of crops/fruits produced, to
farmers & regular farm workers who are landless, irrespective of tenurial arrangemt, to
include the totality of factors & support services designed to lift the economic status of
the beneficiaries and all other arrangemts alternative to the physical redistribution of
lands (production or profit-sharing, labor admin, distribution of shares of stock)
2. Agriculture, Agricultural Enterprise or Agricultural Activity – the cultivation of the soil,
planting of crops, growing of fruit trees, incl. the harvesting of such farm products, &
other farm activities
3. Agricultural land – land devoted to agricultural activity, and NOT classified as
mineral, forest, residential, commercial or industrial land
4. Agrarian Dispute – any controversy relating to tenurial arrangements, whether
leasehold, tenancy, stewardship or otherwise, over lands devoted to agri
- including disputes concerning farm workers assocs, or representation of persons in
negotiating, fixing, maintaining, changing or seeking to arrange terms of conditions of
such tenurial arrangements
- including controversy relating to compensation of lands acquired under this Act &
other terms & conditions of transfer of ownership from landowners to farm workers,
tenants & other agrarian reform beneficiaries
5. Idle / Abandoned Land – any agricultural land not cultivated, tilled or developed to
produce any crop nor devoted to any specific economic purpose continuously for a
period of 3 yrs immediately prior to the receipt of notice of acquisition by the govt
- but does NOT include land that has become permanently or regularly devoted to non-
agricultural purposes
- does NOT include land w/c has become unproductive by reason of force majeure or F
event
6. Farmer – a natural person whose primary livelihood is cultivation of land or the
production of agri crops either by himself, or primarily w/ the assistance
of his immediate farm household, whether the land is owned by him, or by another
person under a leasehold or tenancy agreement
7. Farmworker – a netural person who renders service for value as an EE or laborer in
an agricultural enterprise or farm
8. Regular Farmworker – a natural person who is employed on a permanent basis by an
agricultural enterprise or farm
9. Season Farmworker – a natural person who is employed on a recurrent, periodic or
intermittent basis by an agricultural enterprise or farm
h. Cooperatives – orgs composed primarily of small agri producers, farmers,
farmworkers or other agrarian reform beneficiaries who voluntarily organize themselves
for the purpose of pooling land, human, technological, financial or other economic
resources & operated on the principle of one member, one vote. ( a juridical person
may be a member of a coop, w/ the same Rs & duties as a natural person.
Scope: all public & private agricultural lands, incl. other lands of the pub domain
suitable for agriculture
1. All alienable & disposable lands of the pub domain devoted to or suitable for
agriculture
2. All lands of the pub domain in excess to the specific limits as determined by Congress
3. All other lands owned by the Govt devoted to or suitable for agri
4. All private lands devoted to or suitable for agri regardless of the agri products
raised/can be raised thereon
Schedule of Implementation: w/in 10 yrs from effectivity
Retention Limits: no person may own or retain, directly, any pub or private agricultural
land, the size of w/c shall vary accdg to factors governing a viable family-sized farm
- landowner may retain only 5 hectares.
- 3 hectares: each child of landowner, that is 15y/o, and is actually tilling the land or
directly managing the farm
- landowners whose lands have been covered by PD 27 shall be allowed to keep the
area originally retained by them thereunder
- the original homestead grantees or direct compulsory heirs who still own the orig
homestead shall retain the same areas as long as they continue to cultivate said
homestead
-
case the area selected by landowner is tenanted, the tenant shall have the option
whether to remain therein, be a beneficiary of the same, or another agri land w/
similar/comparable features; (b) in case the tenant chooses to remain in the retained
ares, he shall be considered a leaseholder & shall lose his R as a leaseholder to the land
retained by the landowner. The tenant must exercise this option w/in 1 yr fr the time
the landowner manifests his choice of the area for retention.
- Upon Act’s effectivity, any sale, disposition, lease, mgt contract or transfer of position
of private lands executed by the orig landowner in violation of this Act shall be null &
void. Provided, that those executed prior to this Act shall be valid only when registered
w the Reg of Deeds w/in 3 months after effectivity.
Presidental Agrarian Reform Council (PARC) – shall provide the implementing rules
- upon recommendation by the Provincial Agrarian Reform coordinating Committee,
may declare certain provinces/regions as priority land reform areas
Multinational Corps – all lands of the pub domain leased, held, or possessed by multi
corps or assocs, and other lands owned by the govt, or govt-owned/-controlled corps,
assocs, institutions or entities, devoted to existing & operational agribusiness or agro-
industrial enterprises, operated by multicorps shall be programmed for acquisition &
distribution immediately upon effictivity
Ancestral Lands – shall include, but not limited to, lands in the actual, continuous &
open possession & occupation of the community and its members, provided that the
Torrens System shall be respected
- shall be protected to ensure their economic, social & cultural well-being
- in the autonomous regions, the respective legislature may enact their own laws on
ancestral domain subj to the provisions of the Consti, this Act and other national laws.
Exemptions & Exclusions
1. Lands actually, directly & exclusively used for parks, wildlife, forest reserves,
reforestation, fish sanctuaries and breeding grounds, watersheds and mangroves
2. Private lands actually, directly & exclusively used for prawn farms & fishponds
(provided that said prawn farms & fishponds have not been distributed and Cert of
Land Ownership Award issued to ARP.
3. Lands actually, directly & exclusively used & found to be necessary for national
defense, school sites & campuses, incl experimental farm stations operated by
pub/private schools for educational purposes, seeds and seedlings research and pilot
production center, church sites & convents apputenat therety, mosque sites & Islamic
centers appurtenant thereto, communal burial grounds & cemeteries, penal colonies &
penal farms actually worked by inmates, got & private research & quarantine centers
Procedure for Acquisition of Private Lands
1. After having identified the land, the landowners & beneficiaries, DAR shall send its
notice to acquire the land to the owners;
2. w/in 30 days from date of receipt, landowners shall inform the DAR of his
acceptance/rejection of the offer;
a. if landowner accepts the offer, the LBP shall pay the landowner of the purchase price
of the land w/in 30 days after he executes & delivers a deed of transfer in favor of the
Govt and surrenders the Cert of Title
b. in case of rejection or failure to reply, DAR shall conduct summary admin
proceedings to determine compensation of the land
3. upon receipt of the landowner of the payment, or in case of rejection or no response
fr the landowner, upon the deposit w/ an accessible bank or
the compensation, the DAR shall take immediate possession of the land & shall request
the Register of Deeds to issue a TCT in the name of the RP.
4. Any party who disagrees w/ the decision may bring the matter to the court
Determination of Just Compensation
- cost of acquisition of the land
- current value of like properties,
- its nature, actual used and income
- the sworn valuation by the owner,
- tax declarations
- assessment made by the govt assessors
Incentives for voluntary offers of sale – addt’l 5% cash
Priority of Qualified Beneficiaries
1. Agricultural lessees & share tenants
2. Regular farmworkers
3. Seasonal farmworkers
4. Other farm workers
5. Actual tillers/occupants of public lands
6. Collective or cooperatives of the above beneficiaries
7. Others directly working on the land
*Provided: children of landowners who are qualified shall be given preference in the
distribution of the land of their parents
*Provided further: actual tenant-tillers in the landholding shall not be ejected/removed
therefrom.
Transferability of Acquired lands by beneficiaries – may not be sold, transferred or
qualified beneficiaries for 10 yrs
*Provided, that the children/spouse of the transferor shall have a R to repurchase the
land fr the govt/LBP w/in 2 yrs
Standing crops at the time of acquisition – shall be retained by the landowner, Dar shall
give a reasonable time to harvest the same
Corporate Farms
- in case land cannot be divided directly, shall be owned collectively by the worker-
beneficiaries who shall form a workers cooperative or assoc w/c will deal w/ the corp
- indiv members of the coop shall be provided w/ homelots or small farmlots for their
family use taken fr the land owned by the coop
Production-sharing - pending final land transfer
Support Services
1. irrigation facilities
2. infrastructure devt & pub works projects
3. govt subsidies for the use of irrig facilities
RA 9700 – Act Strengthening the CARP, extending the acquisition & distribution of all
agricultural lands, instituting necessary reforms, amending for the purpose certain
provisions of RA 6657
- State shall protect Filipino enterprises against unfair foreign competition & trade
practices
- State recognizes that there is not enough agricultural land to be divided & distributed
to each farmer & regular farmworker so that each one can own his economic-size family
farm.
- Answer: simultaneous industrialization aimed at developing a self-reliant &
independent national economy effectively controlled by Filipinos
- State may, in the interest of national welfare or defense, establish & operate vital
industries
- Implementation of the prog shall be community-based
- State shall recognize & enforce the Rs of rural women to own & control land
- State shall provide incentives to landowners to invest the proceeds of the agrarian
reform prog to promote industrialization, EENT & privatization of the pub sector
enterprises
Added Definition
1. Rural women – women who are engaged directly/indirectly in farming and/or fishing
as their source of livelihood, whether paid or unpaid, regular or seasonal, or in food
preparation, managing the household, caring for the children, & other similar activities
2. Landless beneficiary – one who owns less than 3 hectares of agri land
Added Exception to Retention Limits
- Provincial, city & mun govt units acquiring private agri lands by expropriation to be
used for actual, direct & exclusive pub purposes, such as roads & bridges, pub markets,
school sites, resettlement sites, local govt facilities, pub parks & brgy plazas or squares
consistent shall not be subj to the 5-hectare retention limit
Order of Priority
- 3 hectares each to the 1st 2 beneficiaries
- only when these beneficiaries have rcvd 3 hectares each, shall the remaining portion
of the landholding, if any, be distributed to other beneficiaries
Payment by Beneficiaries – payable to LBP in 30 annual amortizations at 6% interest
per annum
Support shall be extended equally to women & men beneficiaries
Facts:
Landicho from 1949 until his death in 1972, afterwhich, his
tenancy rights were succeded by his son, petitioner Francisco Landicho (the other
petitioners were Buenaventura (Francisco’s son), and Federico (Francisco’s brother),
helped him cultivate the land
he Aragons
through a notarized ―kasulatan‖ for a consideration of P1,000, but petitioners
continued cultivating the land until 1987 when Francisco executed another notarized
―kasulatan‖ thru w/c he surrendered his tenancy rights for a consideration of P3,000.
Aragons for P50,000 to respondent Felix Sia, who in turn converted the same to a
residential subd w/o a DAR clearance and ejected the petitioners therefrom.
ners filed a protest before the DAR alleging that they are the tenants of the
lands and claimed that they are entitled to a disturbance compensation. They alleged
that they were fooled into signing over their tenancy rights thru the machinations of the
Aragons.
petitioners are barred by estoppel, laches and prescription
Issue 1: WON petitioners are tenants of the land
Held: A tenant is defined as a person who, himself and w/ the aid available from w/in
his immediate farm household, cultivates the land belonging to, or possessed by
another, w/ the latter’s consent for purposes of production, sharing the produce w/ the
landholder under the share tenancy system, or paying to the landholder a price certain
or ascertainable in produce or in money or both, under the leasehold tenancy system
For a tenancy relationship to exist, all of the ff essential requisites must be present:
1) the parties are the landowner & the tenant
2) the subj matter is agricultural land
3) there is consent bet the parties
4) the purpose is agricultural production
5) there is personal cultivation by the tenant
6) there is sharing of the harvests bet the parties
Under the definition, only Francisco possesses the requisites of a tenant. Petitioners
Federico and Buenaventura are not tenants because consent (#3) by the landowners is
lacking. They are merely farm helpers of Francisco as part of his immediate farm
household. There was also no evidence to show that they gave a share of their harvest
to the Aragons (#6).
Issue 2: WON the respondents took advantage of Francisco’s old age & illiteracy and
employed fraudulent schemes in order to deceive him into signing the Kasulatans
Held: As the legal tenant of the lands, Francisco had voluntarily surrendered his tenancy
rights when he knowingly & freely executed the 1987 Kasulatan. There was no showing
of foul play, because the Kasulatan was in Filipino, a language spoken & understood by
Francisco and was couched in plain and clear terms. Such kasulatan was also duly
notarized and are considered as public documents executed w/ all the legal formalities
which afford it the legal presumption of regularity and legality abent full, clear and
convincing evidence to the contrary.
Final ruling: Petitioners have no cause of action and the same has prescribed.
Facts:
he had been promoted repeatedly up to 1998 when he was temporarily assigned as
caretaker of the bank and designated as Acting Asst. VP and OIC in June of 1998.
1983-84, it underwent serious liquidity problems and was placed under receivership by
the Central Bank, which ordered its closure in July of 1984. After 2 months, the
respondent bank was reopened under the control & mgt of Comsavings Bank.
of the respondent bank and took over the
control & mgt of the bank and renamed it as GSIS Family Savings Bank.
appointment as Acting Asst VP was retained.
olicy to attain financial stability, the respondent bank adopted
measures, one of w/c is an early retirement program.
(supposedly under protest) & received the amt of P1,342M as retirement pay.
& underpayment of wages, 13th month pay & retirement benefits before the Labor
Arbiter. He alleged discrimination & unfair treatment, and intense pressure on the part
of the resp bank forced him to retire at the prime of his life.
Issue 1: WON there was constructive dismissal
Held: No.
Constructive dismissal – quitting because continued EENT is rendered impossible,
unreasonable or unlikely, as an offer involving a demotion in rank & a dimunition in
pay. May also mean an act of clear discrimination, insensibility or disdain by an EER
may become so unbearable on the part of the EE so as to foreclose any choice on his
part except to resign
Petitioner claims he was discriminated against as new hires were given higher salaries
than he was receiving.
Discrimination – failure to treat all persons equally when no reasonable distinction can
be found bet those favored & those not favored. It must be clearly established that (1)
there is no reasonable distinction for classification that can be obtained bet persons
belonging to the same class, and (2) persons belonging to the same class have not
been treated alike
Petitioner failed to established that he possessed the same skills, competencies &
expertise as those newly hired to eliminate the possibility of substantial distinction that
may warrant unequal treatment bet them.
Petitioner contends that in cases of constructive dismissal, the burden of proof rests on
the EER to show that the EE was dismissed on a valid & just cause. But this legal
principle presupposes that there is indeed an involuntary separation from EENT & the
facts attendant to such forced separation was clearly established, w/c the petitioner
failed to do. It was him who availed of the voluntary retirement program. And absent
the showing of duress, the presumption is that it was done by him voluntarily.
While the state promotes the utmost protection of labor against capital, it does not
mean that the working class is upheld in all labor dispute. The law also recognizes the
rights of management.
PRE-EMPLOYMENT
Art 12. It is the policy of the State:
1. to promote and maintain a state of full employment through improved manpower
training, allocation and utilization;
2. to protect every citizen desiring to work locally/overseas by securing for him the best
possible terms and condition of employment;
3. to facilitate a free choice of available employment by persons seeking work in
conformity with the national interest;
4. to facilitate & regulate the movement of workers in conformity w/ the national
interest;
5. to regulate the employment of aliens, including the establishment of a registration
and/or work permit system;
6. to strengthen the network of public employment offices and rationalize the
participation of the private sector in the recruitment and placement of workers, locally
and overseas, to serve national development objectives;
7. to insure careful selection of Filipino workers for overseas employment in order to
protect the good name of the PH abroad.
The DOLE
- by Administrative Code of 1987 (EO 292)
- the primary policy-making, programming, coordinating and administrative entity of the
Executive branch of the govt in the field of labor and employment
Its Primary responsibilities:
1. The promotion of gainful EENT opportunities and the optimization of the devt &
utilization of the country’s manpower resources;
2. The advancement of workers’ welfare by providing for just and humane working
conditions and terms of EENT;
3. The maintenance of industrial peace by promoting harmonious, equitable and stable
EENT, relations that assure protection for the Rs of all concerned parties.
RECRUITMENT & PLACEMENT OF WORKERS
Art 13. Definitions
Worker – any member of the labor force whether employed or unemployed.
Recruitment & placement – any act of canvassing, enlisting, contracting, transporting,
utilizing, hiring, or procuring workers and includes referrals, contract services, promising
or advertising for EENT, locally or abroad, whether for profit or not: provided, that any
person or entity w/c, in any manner, offers or promises for a fee EENT to 2/more
persons shall be deemed engaged in recruitment & placement
Private fee-charging EEnt Agency – any person/ entity engaged in the recruitment &
placement of workers for a fee w/c is charged directly/indirectly from the workers or
employers or both
License – a document issued by the DOLE authorizing a person/entity to operate a
private EENT agency
Private recruitment entity – any person/assoc engaged in the recruitment & placement
of workers, locally/overseas without charging, directly/indirectly any fee from the
workers or employers.
Authority – a document issued by the DOLE authorizing a person/assoc to engage in
recruitment & placement activities as a private recruitment entity
Seaman – any person employed in a vessel engaged in maritime navigation
Overseas EENT – EENT of a worker outside the PH
Emigrant – any person, worker or otherwise, who emigrates to a foreign country by
virtue of an immigrant visa or resident permit to its equivalent in the country of
destination
Art 14. EMPLOYMENT PROMOTION
The Sec of Labor shall have the power & authority:
1. to organize & establish new EENT offices in addition to existing EENT offices under
the DOLE as the need arises;
2. to organize & establish a nationwide job clearance & information system to inform
applicants registering w/ a particular EENT office of job opportunities in other parts of
the country as well as job opportunities abroad;
3. to develop & organize a program that will facilitate occupational industrial and
geographical mobility of labor and provide assistance in the relocation of workers from
one area to another; and
4. to require any person, establishment, org, or institution to submit such EENT
information as may be prescribed by the Sec of Labor.
Bureau of Local Employment (BLE) – assigned the effective allocation of manpower
resources in local
Ph Overseas Employment Administration (POEA) – for overseas employment
Art 15. BUREAU OF EMPLOYMENT SERVICES (now BLE)
- primarily responsible for developing & monitoring a comprehensive EENT program.
Powers & Duties:
1. To formulate & develop plans & programs to implement the EENT promotion
objectives of this Title;
2. To establish & maintain a registration and/or licensing system to regulate private
sector participation in the recruitment & placement of workers, locally & overseas, and
to secure the best possible terms & conditions of EENT for Filipino contract workers and
compliance therewith under such rules & regulations as may be issued by the DOLE;
3. To formulate & develop EENT programs designed to benefit disadvantaged groups &
communities;
4. To establish & maintain a registration and/or work permit system to regulate the
EENT of aliens;
5. To develop a labor market information system in aid of proper manpower and
development planning;
6. To develop a responsible vocational guidance & testing system in aid of proper
human resources allocation; and
7. To maintain a central registry of skills, except seamen
Original & Exclusive Jurisdiction of the regional offices of DOLE
- over all matters/cases involving EE-EER relations including money claims, arising out
of or by virtue of any law or contracts involving Filipino workers for overseas EENT
except seamen: Provided, thet the Bureau of Employment Services (BES) (now BLE)
may, in the case of the NCR, exercise such power, whenever the DOLE deems it
appropriate.
The decisions of the regional offices of the BES if so authorized by the Sec of DOLE
shall be appealable to the NLRC upon the same grounds provided in Art 233 hereof.
The decisions of the NLRC shall be final & unappealable.
Minister of Labor – has the power to impose & collect fees, based on rates
recommended by the BES. Such fees shall be deposited in the National Treasury as a
special acct of the General Fund, for the promotion of the objectives of the BES, subj to
the provisions of Sec 40 of PD 1177.
– replaced BES w/ BLE, and created POEA
– made licensing of local recruitment agencies and the issuance of work
permits to non-resident aliens and EENT registration certificates to resident aliens a
function of the regional offices of DOLE
– required the establishment of a Public Employment Service Office (PESO)
in capital towns, cities and other strategic areas
o PESO - serves as EENT service & information center
- Regularly obtains lists of job vacancies from EERS, publicizes them, invites and
evaluates applicants, and refers them for probable hiring
- Provides training and educational guidance and EENT counseling services
- Also renders special services to the public such as holding of jobfairs, livelihood and
self-employment bazaars
- Special credit assistance for placed overseas workers
- Special program for EENT of students (SPES) during summer or semestral breaks
- Work appreciation seminars & conferences and
- Hiring of workers in infrastructure projects (WHIP)
– created WHIP, a program w/c requires the DPWH and private contractors
to hire 30% of skilled and 50% unskilled labor requirements from the area where the
project is being undertaken
Art 16. PRIVATE RECRUITMENT:
GR: No person/entity other than the public EENT offices, shall engage in the
recruitment & placement of workers.
1. Public EEnt offices
2. Private recruitment entities
3. Private EENT agencies
4. Shipping or manning agents or representatives
5. The POEA
6. Construction contractors if authorized to operate by DOLE and the Construction
Industry Authority
7. Members of the diplomatic corps although hirings done by them have to be
processed through the POEA
8. Other persons/entities as may be authorized by the Sec of DOLE
Art 17. OVERSEAS EMPLOYMENT DEVT BOARD
POEA – has taken over the functions of the Overseas Employment Development Board
(OEDB) and the National Seamen Board (NSB)
OFW – a Filipino worker who is to be engaged, is engaged or has been engaged in a
renumenerated activity in a country of which he/shee is not a legal resident
2 Classifications
1. Land-based – contract workers other than a seaman including workers ingaged in
offshore activities whose occupation requires that majority of his working/gainful hrs
are spent on land
2. Sea-based – those employed in a vessel engaged in maritime navigation
Principal Functions of the POEA
1. Formulation, implementation and monitoring of overseas employment of Filipino
workers;
2. Protection of their rights to fair and equitable employment practices;
3. Deployment of Filipino workers through govt-to-govt hiring
Regulatory Functions
1. Regulate private sector participation in the recruitment & overseas placement of
workers through its licensing and registration system;
2. Formulate & implement, in coordination w/ appropriate entities concerned, when
necessary, a system for promoting and monitoring the overseas EEnt of Filipino workers
taking into consideration their welfare and the domestic manpower requirements;
3. Inform migrant workers not only of their rights as workers but also of their rights as
human beings;
4. Instruct and guide the workers how to assert their rights and provide the available
mechanism to redress violation of their rights;
5. In the recruitment & placement of workers to service the requirements for trained
and competent Filipino workers of foreign govts and their instrumentalities, and such
other employers as public interest may require, deploy only to countries:
a. Where the PH has concluded Bilateral labor agreements or arrangements;
b. Observing and/or complying w/ the international laws and standards of migrant
workers;
c. Guaranteeing to protect the rights of Filipino migrant workers.
Adjudicatory Functions
1. Administrative cases involving violations of licensing rules & regulations and
registration of recruitment and EEnt agencies/entities; and
2. Disciplinary action cases and other special cases w/c are administrative in character,
involving employers, principals, contracting partners and Filipino migrant workers.
Jurisdiction of POEA
1. all cases w/c are administrative in character, involving or arising out of violations of
rules & regulations relating to licensing & registration of recruitment and employment
agencies/entities; and
2. disciplinary action cases and other special cases w/c are administrative in character,
involving EERS, principals, contracting partners and Filipino migrant workers
3. NO jurisdiction to enforce foreign judgment (must be brought before the regular
courts). POEA is an administrative (not a court), exercising adjudicatory or quasi-judicial
functions
4. NO jurisdiction over torts
Grounds for Disciplinary Action
1. Commission of a felony punishable by Ph laws or by the laws of the host country;
2. Drug addiction/possession or trafficking of prohibited drugs;
3. Desertion or abandonment;
4. Drunkenness, esp where the laws of the host country prohibit intoxicating drinks;
5. Gambling, esp where the laws of the host country prohibits the same;
6. Initiating/joining a strike or work stoppage where thelaws of the host country
prohibit strikes or similar actions;
7. Creating trouble at the worksite or in the vessel;
8. Embezzlement of company funds or of moneys and properties of a fellow worker
entrusted for delivery to kins or relatives in the PH;
9. Theft/robbery;
10. Prostitution;
11. Vandalism or destroying company property;
12. Gunrunning or possession of deadly weapons;
13. Unjust refusal to depart for the worksite after all employment and travel documents
have been duly approved by the approp govt agency/ies; and
14. Violation/s of the laws and sacred practices of the host country and unjustified
breach of govt-approved EENT contract by a worker
COMPROMISE AGREEMENT
-consistent w/ the policy encouraging amicable settlement of labor disputes Sec 10 of
RA 8042 allows resolution by compromise of cases filed w/ the NLRC
- any compromise agreement on money claims inclusive of damages shall be paid w/in
4 months from the approval of the settlement
Penalties for Non-compliance of the mandatory period for resolution of cases
1. The salary of such official who fails to render his decision/resolution w/in the
prescribed pd shall be, or caused to be, withheld until such official complies therewith;
2. Suspension for not more than 90 days; or
3. Dismissal w/ disqualification to hold any appointive public office for 5 yrs
EER/EE Relations Cases
Premature Termination of Contract
If EE is terminated before end of contract w/o just cause, EERS will be ordered to pay
their salaries corresponding to the unexpired portion of their EENT contract
Pretermination Under RA 8042
A worker dismissed from overseas EENT w/o just cause as defined by law/contract is
entitled to ―full reimbursement of his placement fee w/ interest
at 12% per annum, plus the salary for the unexpired portion of their EENT contract.
Due Process required to terminate employment
Ex: in case of seamen – must be given written notice of the charges against him, and
afforded a formal investigation where he can defend himself or thru a representative
before he can be dismissed & disembarked. The EER is required to furnish him w/ 2
notices: (1) written notice of charge; and (2) written notice of dismissal
Contracted but not Deployed: Perfected Contract
Death benefits of Seafarers
- entitled to death and other benefits under w/c ever is higher (foreign law or Ph law)
- entitled to death benefits if death occurs during the term of his contract of
employment, even if death is not work-
Disability – loss or impairment of a physical or mental function resulting from
injury/sickness
Permanent disability – the inability of a worker to perform his job for more than 120
days, regardless of WON he loses the use of any part of his body
Total Disability – disablement of an EE to earn wages in the same kind of work of
similar nature that he was trained for or accustomed to perform, or any kind of work
w/c a person of his mentality and attainments could do. It does not mean absolute
helplessness.
In disability compensation, it is not the injury w/c is compensated, but rather it is the
incapacity to work resulting in the impairment of one’s earning capacity
Disability benefits by seamen – a matter governed not only by medical findings but by
law & contract
- shall be paid beginning on the 1st day of such disability. If caused by an
injury/sickness it shall not be paid longer than 120 cons
injury/sickness still requires medical attendance beyond 120 days
but not to exceed 240 days from onset of disability in w/c case benefit for temporary
total disability shall be paid.
In case of differing medical assessment
a.) when a seafarer sustains a work-related illness/injury while on board, his
fitness/unfitness to work shall be determined by the company-designated physician.
b.) If the physician appointed by the seafarer disagrees w/ the company-designated
physician’s assessment, the opinion of a 3rd doctor may be agreed jointly bet the EER
and the seafarer to be the decision final and binding on them
Agencies Given the Duty to promote the welfare & rights of migrant workers:
1. DFA
2. DOLE
3. POEA
4. OWWA – Overseas Workers Welfare Administration – provides social & welfare
services including insurance coverage, legal assistance, placement assistance and
remittance services to Filipino overseas workers. Under RA8042, it shall provide the
Filipino migrant worker & his faily assistance in the enforcement of contractual obligs by
agencies, entities and/or their principals;
5. RPM - Re-Placement and Monitoring Center – develops livelihood programs for the
returning workers to reintegrate the returning migrant workers to the Ph society;
6. NLRC – tasked w/ the settlement/adjudication of labor disputes
Art 18: BAN ON DIRECT HIRING
GR: Direct hiring of Filipino workers for overseas EENT is not allowed
1. Members of Diplomatic corps;
2. International organizations;
3. Other employers as may be allowed by DOLE; and
4. Name hires – individual workers who are able to secure contracts for overseas EENT
on their own efforts and representations w/o assistance/participation of any agency.
Their hiring nonetheless, shall pass through the POEA for processing purposes
Rationale of the Prohibition
1. To assure the best possible terms & conditions of work to the EE; and
2. To assure the foreign EER that he hires only qualified Filipino workers
Art 19: COMMISSION ON FILIPINO OVERSEAS
CFO – attached to the DFA; replaced the Office of Emigrant Affairs.
- assists in the formulation of policies affecting Filipinos overseas and formulates an
integrated program that promotes the welfare of Filipinos overseas
Art 21. FOREIGN SERVICE ROLE AND PARTICIPATION
- necessary to monitor the status of OFWs in their respective areas of assignment and
insure that they are not exploited or abused by their foreign principal EERS
Art 22. MANDATORY REMITTANE OF FOREIGN EXCHANGE EARNINGS
- All OFWs are required to remit a portion of their foreign exchange earnings ranging
from 50% - 80% depending on the worker’s kind of job, to their families, dependents,
and/or beneficiaries.
Seamen/Mariners – 80%
Workers for Filipino Contractors & Construction companies – 70%
Professionals whose EENT contract provide for lodging facilities – 70%
Professionals w/o Board & Lodging – 50%
Domestic and other service workers – 50%
1. Fil servicemen working in US military installations;
2. Where the worker’s immediate family members, dependents, or beneficiaries are
residing w/ him abroad;
3. Immigrants and Fil professionals and EEs working w/ UN agencies or specialized
bodies
Effects of Failure to Remit
1. Workers who fail to comply w/ the mandatory remittance reqment shall be
suspended/excluded from the list of eligible workers for overseas EENT. Subsequent
violations shall warrant his repatriation.
2. EERS who fail to comply shall be excluded from the overseas EENT program. Private
EENT agencies/entities shall face cancellation or revocation of their licenses or authority
to recruit, w/o prejudice to other liabilities under existing laws and regulations
CH 2: REGULATION OF RECRUITMENT & PLACEMENT ACTIVITIES
Art 25: PRIVATE SECTOR PARTICIPATION IN THE RECRUITMENT & PLACEMENT OF
WORKERS
Private Sectors that can participate
1. Private EENT agencies;
2. Private recruitment agencies;
3. Shipping or manning agencies;
4. Such other persons as may be authorized by the Sec of DOLE; and
5. Construction contractors w/ a duly issued authority to operate private recruitment
entities
Qualifications for Participation
1. Citizenship requirement
a. Filipino citizens; or
b. Corporations, partnerships or entities at least 75% of the authorized and voting
capital stock of w/c is owned & controlled by Filipino citizens.
2. Capitalization
a. Private EENT agency for local EENT
i. For single proprietorship or partnership – minimum net worth of 200k pesos
ii. For corporations – a minimum paid up capital of 5ook pesos
b. Private recruitment or manning agency for overseas EENT
i. For single proprietorship or partnership – P2M minimum capital
ii. For corps – P2M minimum paid up capital, Provided, that those w/ existing licenses
shall, w/in 4 yrs from effectivity hereof, increase their capitalization or paid-up capital,
as the case may be, to P2M at the rate of 250K every yr.
3. Those not otherwise disqualified by law or other govt regulations to engage in the
recruitment & placement of workers for overseas EENT
Disqualified from Recruitment & Placement of Workers for Overseas EEnt whether for
profit or not
1. Travel agencies & sales agencies of airline companies;
2. Officers/members of the board of any corp or members in a partnership engaged in
the business of a travel agency;
3. Corps & partnerships, when any of its officers, members of the board or partners, is
also an officer, member of the board or partner of a corp or partnership engaged in the
business of a travel agency (interlocking officers)
4. Persons, partnerships or corps which have derogatory records, such as but not
limited to:
a. Those certified to have derogatory record/info by the NBI or by the Anti-illegal
Recruitment Branch of the POEA;
b. Those against whom probable cause or prima facie finding of guilt for illegal
recruitment or other related cases exists;
c. Those convicted of cases and/or crimes involving moral turpitude;
d. Those agencies whose licenses have been previously cancelled or revoked by POEA
for violation of RA 8042, PD 442 as amended and their IRR as well as the Labor Code’s
IRR
e. Officials/EES of the DOLE or other govt agencies directly involved in overseas EENT
program and their relatives w/in the 4th degree of consanguinity or affinity; and
f. Those whose License have been previously cancelled o revoked
Art 29: NON-TRANSFERABILITY OF LICENSE AUTHORITY
1. It may be used only b the one in whose favor it was issued; hence, it cannot be
assigned, conveyed or transferred to any other person/entity.
2. It must be used only in the place stated in the license. Thus, could only undertake
recruitment & placement activities in the region where the license was granted.
3. The recruitment & placement activities must be undertaken at their authorized official
addresses.
4. Provincial recruitment and/or job fairs may be allowed only when authorized by POEA
in writing.
* Change of ownership of single proprietorship licensed to engage in overseas EENT
shall cause the automatic revocation of the license.
Art 30: BONDS
The Sec of Labor shall promulgate a schedule of fees for the registration of all
applicants for license or authority.
Art 31. BONDS
All applicants for license/authority shall post such cash and surety bonds as determined
by the Sec of Labor including escrow deposits.
Purposes:
1. To guarantee compliance w/ prescribed recruitment procedures, rules & regulations,
and terms & conditions of EENT; and
2. To ensure prompt & effective recourse against such companies when held liable for
applicants/workers’ claim
Exemption from Garnishment
judgment creditor of the agency.
be replenished by the agency w/in 15 days from notice
from the POEA. Failure to replenish the same w/in the said pd shall cause the
suspension of the license
Note: POEA has the power to enforce liability under cash & surety bonds.
Art 32: FEES TO BE PAID BY WORKERS
commenced EENT
ll always be covered w/ the approp receipt clearly showing the amount
paid.
POEA has the power to:
1. Suspend/cancel the license; and
2. Order the refund/reimbursement of such illegally collected fees
Prohibition on Charging Fees
1. Placement fees cannot be collected from a hired worker until he has signed the EENT
contract & shall be covered by receipts clearly showing the amt paid
2. Manning agencies shall not charge any fee from seafarer-applicants for its
recruitment & placement services. All expenses for hiring seamen shall be shouldered
by foreign shipping principals.
3. No other fees/charges, including processing fees shall be imposed against any
worker.
Art 34 & Section 6 RA 8042: PROHIBITED PRACTICES:
It shall be unlawful for any indiv, entity, licensee or holder of authority:
1. To charge greater amt than that specified in the schedule of allowable fees (illegal
exaction);
2. To furnish any false info in relation to recruitment/EENT (false information);
3. To give any false notice, testimony, etc. or commit any act of misrepresentation to
secure a license or authority (false statements);
4. To induce or attempt to induce a worker to quit his job in lieu of another offer unless
it is designed to liberate the worker from oppressive terms of EENT (pirating);
5. To influence of attempt to influence any person/entity no to employ any worker who
has not applied for EENT through his agency (influencing not to employ);
6. To engage in the recruitment/placement of jobs harmful to public health, morality or
to the dignity of the PH (harmful jobs);
7. To obstruct or attempt to obstruct inspection by the Labor Sec or his authorized reps
(obstruct inspection);
8. To fail to file reports on the status of EENT, placement, etc. and such other matters
as may be required by the Sec of Labor (failure to comply w/ rules & regulations);
9. To substitute or alter EENT contracts w/o the approval of the Sec of Labor (alteration
of contracts);
10. To become an officer or member of the board of any corp engaged in the mgt of a
travel agency; and
11. To withhold travel docs from applicant workers before departure for unauthorized
monetary considerations (withholding documents).
Art 35: SUSPENSION AND/OR CANCELLATION OF LICENSE OR AUTHORITY
Non License or Non-Holder of Authority – any person/corp/entity w/c has not been
issued a valid license or authority to engage in recruitment & placement by the Sec of
Labor, or whose license or authority has been suspended, revoked or cancelled by the
POEA and the Secretary.
Grounds for Revocation of License
1. Incurring an accumulated 3 counts of suspension by an agency based on final and
executor orders w/in the validity period of its license;
2. Violation/s of the conditions of license;
3. Engaging in acts of misrepresentation for the purpose of securing a license or
renewal thereof; and
4. Engaging in the recruitment or placement of workers to jobs harmful to the public
health or morality or to the dignity of the RP
Grounds for Suspension/Cancellation of License
1. The acts prohibited under Art 34;
2. Charging a fee before the worker is employed or in excess of the authorized amt;
3. Doing recruitment in places outside its authorized area;
4. Deploying workers w/o processing through the POEA; and
5. Publishing job announcements w/o POEA’s prior approval
Jurisdiction
The DOLE Sec and the POEA Admin have concurrent jurisdiction to suspend or cancel a
license
Liability of Recruitment Agency
Before recruiting, the agency is required to submit a doc containing its power to sue
and be sued jointly and solidarily w/ the principal or foreign-based employer for any of
the violations of the recruitment agreement, and the contracts of employment
Note: The recruitment agency may still be sued even if agency agreement bet
recruitment agency & principal is already severed if no notice of the termination was
given to the EE
Exception to Liability of Recruitment agency
their foreign EER despite their knowledge of its inability to pay their wages
Contract by Prncipal
it was the principal of the manning agency who entered into contract w/ the
EE, the manning agent in the PH is jointly & solidarily liable w/ the principal
Suability of Foreign Corps
country may be
suid in and found liable by Ph courts
CH 3: MISCELLANEOUS PROVISIONS (as amended by RA 8042)
Illegal Recruitment – any act of (CETCHUP) canvassing, enlisting, transporting,
contracting, utilizing, or procuring workers and includes (CRAP) contract services,
referrals, or advertising, promising for employment abroad, whether for profit or not,
when undertaken by a non-licensee or non-holder of authority; Provided that any such
non-licensee or non-holder of authority who in any manner, offers or promises for a fee
employment abroad to 2 or more persons shall be deemed so engaged. Also includes
the act of reprocessing workers through a job order that pertains to nonexistent work,
work different from the actual overseas work, or work w/ a different EER whether
registered or not w/ the POEA
by a non-licensee or non-holder of authority or a licensee or a holder of authority:
1. Those prohibited practices under Art 34;
2. Failure to actually deploy w/o valid reason as determined by DOLE;
3. Failure to reimburse expenses incurred by the worker in connection w/ his
documentation & processing for purposes of deployment, in cases where the
deployment does not actually take place w/o the worker’s fault; and
4. Recruitment & placement activities of agents or representatives appointed by a
licensee, whose appointments were not previously authorized by the POEA shall
likewise constitute illegal recruitment.
Elements of Illegal Recruitment
1. The offender is a licensee/non-licensee or holder/non-holder of authority engaged in
the recruitment & placement of workers; and
2. The offender undertakes either any recruitment activities devided under Art 13 (b) or
any prohibited practices in Art 34
Simple Illegal Recruitment – Where a person:
1. undertakes any recruitment activity defined under Art 13(b) or any prohibited
practice enumerated under Arts 34 & 38 of the LC; and
2. does not have a license or authority to lawfully engage in the recruitment &
placement of any workers.
Illegal Recruitment in Large Scale – further requires a 3rd element:
3. The offense is committed against 3/more persons, individually or as a group
Illegal Recruitment as Economic Sabotage:
1. When illegal recruitment is committed by a syndicate (when 3/more persons conspire
or confederate w/ one another in carrying out an unlawful or illegal transaction,
enterprise or scheme);
2. When illegal recruitment is committed in a large scale (if committed against 3/more
persons individually or as a group
Consequences of Conviction
1. Automatic revocation of license/authority;
2. Forfeiture of the cash & surety bonds;
3. Conviction for the crime of estafa, if found guilty thereof
Illegal Recruitment vs Estafa
rged & convicted for both
Acts Constituting Estafa
- the accused represented themselves to complainants to have the capacity to send
workers abroad although they did not have any authority or license, enabling them to
obtain placement fee
Venue of criminal action arising from Illegal Recruitment
The complainant may, at his option file at the RTC of the province/city:
a.) where the offense was committed; or
b.) where the offended party resides at the time of the commission of the offense
Prescriptive Period Imprisonment Fine
Simple 5 yrs 12-20 yrs P1-2M
Economic Sabotage 20 yrs Life P2-5M
Note: Max penalty if the person illegally recruited is less than 18 y/o or committed by a
non-licensee or non-holder of authority
Absence of receipts evidencing payment, not fatal to prosecution’s case for illegal
recruitment – as long as the witnesses can positively show through their respective
testimonies that the accused is the one involved in prohibited recruitment
Liability of Local EEnt agency – solidarily liable w/ the foreigh principal for unpaid
salaries of a worker recruited. Before recruiting, the agency is required to submit a doc
containing its power to sue and be sued jointly and solidarily w/ the principal or foreign-
based EER for any of the violations of the recruitment agreement and the contracts of
EEnt
Liability of Company Engaged in Illegal Recruitment – may be held as principal,
together his EER, if it is shown that he actively & consciously participated in illegal
recruitment
Issuance of search warrant/warrant of arrest
search or arrest warrants
Immigration may order arrested, following a final roder of deportation
Note: the Sec of Labor may order closure of illegal recruitment establishments because
it is only administrative & regulatory in nature
TITLE 2: EMPLOYMENT OF NON-RESIDENT ALIENS
Alien Employment Permit (AEP) – required for entry into the country for employment
purposes and is issued after determination of the non-availability of a person in the pH
who is competent, able and willing at the time of application to perform the services for
w/c the alien is desired
AEP
Employment Permit Required
1. all foreign nationals seeking admission to the PH for the purpose of EENT;
2. all non-resident foreign nationals already working in the PH;
3. non-resident foreign nationals admitted to the PH on non-working visas and who
wish to seek EENT; and
4. missionaries or religious workers who intend to engage in gainful EENT.
Note: AEP should be secured regardless of the source of compensation and duration of
the EENT, whether the EENT is part-time or temp
An AEP is issued based on the ff:
1. Compliance by the applicant EER or the foreign national w/ the substantive &
documentary requirements;
2. Determination of DOLE Sec that there is no available Filipino national who is
competent, able and willing to do the job for the EER; and
3. Assessment of the DOLE Sec that the EENT of the foreign national will redound to
national benefit
Note: Understudy Training Program is no longer a requirement in the issuance of AEP
and the EEr has now the option to implement transfer of technology
Requisite for EENT of Resident Aliens:
resident aliens are not required to secure a working permit. They are
required to secure their Alien Employment Registration Cert (AERC)
Exemption from Permit
1. All members of the Diplomatic service and foreign govt officials accredited by and w/
reciprocity arrangement w/ the Ph govt;
2. Officers and staff of international orgs of w/c the PH is a member, and their
legitimate spouses desiring to work in the PH;
3. Foreign nationals elected as members of Governing Board who do not occupy any
other position, but have only voting rights in the corp;
4. All foreign nationals granted exemption by law;
5. Owners & representatives of foreign nationals whose companies are accredited by
the POEA who come to the PH for a limited period and solely for the purpose of
interviewing Filipino applicants for EENT abroad;
6. Foreign nationals who come to the PH to teach, present and/or conduct research
studies in univs and colleges as visiting, exchange or adjunct professors under formal
agreements bet the univs or colleges in the PH an foreign univs or colleges; or bet the
Ph govt and foreign govt; provided that the exemption is on a reciprocal basis; and
7. Resident foreign nationals.
Grounds for denial of Application of AEP
1. Misrepresentation of facts in the application;
2. Submission of falsified docs;
3. The foreign national has a derogatory record; or
4. Availability of a Fil who is competent, able and willing to the job intended for the
alien.
Grounds for suspension of AEP
1. The continued stay of the foreign national my result in damage to the interest of the
industry of the country; and
2. the EENT of the alien is suspended by the EER or by the order of the court
Grounds for revocation of AEP
1. Non-compliance w/ any of the requirement/conditions for w/c the AEP was issued;
2. Misrepresentation of facts in the application;
3. Submission of falsified docs;
4. Meritorious objection or information against the EENT of foreign national as
determined by the Regional Dir;
5. Foreign national has a derogatory record; and
6. EER has terminated the EENT of the foreign national.
Validity of EENT Permit
provides otherwise, w/c shall in no case exceed 5yrs
Rule on Nationalized Business
GR: Foreigners may NOT be employed in certain nationalized business.
Anti-Dummy Law 2-A prohibits the EENT of aliens in entities engaged in business whose
exercise or enjoyment is reserved only to Fils or to corporations or assocs whose capital
should be at least 60% Fil-owned
1. Where the Sec of Justice specifically authorizes the EEnt of technical personnel;
2. Aliens who are members of the Board of directors of corps in proportion to their
allowable participation in the capital of such entities; and
3. Enterprises registered under the Omnibus Investment Code in case of technical,
supervisory or advisory positions, but for a limited pd.
Art 41. PROHIBITION AGAINST TRANSFER OF EENT
1. Aliens shall not transfer to another job or change his EER w/o prior approval of the
Sec of Labor;
2. Non-resident aliens shall not take up EENT in violation of the provisions of the Code.
Note: Violations of the abovementioned acts will subj the alien to the punishment in Art
289 & 290 and to deportation after service of sentence
BOOK 2: HUMAN RESOURCES
TITLE 1: NATIONAL MANPOWER DEVT PROGRAM
CH 1: NATIONAL POLICIES & ADMINISTRATIVE MACHINERY FOR THEIR
IMPLEMENTATION
Art 43-56 TECHNICAL EDUCATION AND SKILLS DEVT AUTHORITY (TESDA)
- replaced the National Manpower & Youth Council under RA 7796
Statement of Goals & Objectives
1. To attain international competitiveness;
2. To meet demands for quality middle-level manpower;
3. To disseminate scientific & technical knowledge base;
4. To recognize & encourage the complementary roles of pub & private institutions; and
5. To inculcate desirable values.
Middle-level Manpower
1. Those who have acquired practical skills & knowledge through formal or non-formal
educ & training equivalent to at least a secondary educ but preferably a post-secondary
educ w/ a corresponding degree/diploma; or
2. Skilled workers who have become highly competent in their trade or craft as attested
by industry.
TITLE 2: TRAINING & EMPLOYMENT OF SPECIAL WORKERS
CH1: TYPES OF SPECIAL WORKERS
1. Apprentice
2. Learner
3. Handicapped
Art 57 STATEMENT OF OBJECTIVES FOR THE TRAINING & EENT OF SPECIAL
WORKERS
1. To help meet the demand of the economy for trained manpower;
2. To establish a national apprenticeship program; and
3. To establish apprenticeship standards for the protection of apprentices.
Art 58: DEFINITION OF TERMS
Apprenticeship – practical training on the job supplemented by related theoretical
instruction, for a highly skilled or technical instruction for a period of 3-6 months
Apprentice – a person undergoing training for an approved apprenticeable occupation
during an established period assured by an apprenticeship agreemt
Apprenticeable Occupation – an occupation officially endorsed by a tripartite body and
approved for apprenticeship by the TESDA (no longer the Sec of Labor)
Apprenticeship Agreement – an EENT contract wherein the EER binds himself to train
the apprentice and the apprentice in turn accepts the terms of training
On-the-job training – practical work experience through actual participation in
productive activities given to or acquired by an apprentice
Highly technical industries – a trade, business, enterprise, industry or other activity, w/c
is engaged in the application of advanced technology
Art 59: QUALIFICATIONS OF APPRENTICES
1. At least 15 y/o, provided that if below 18 y/o, he shall not be eligible for hazardous
occupation;
2. Physically fit for the occupation in w/c he desires to be trained;
3. Possess vocational aptitude and capacity for the particular occupation as established
through appropriate tests; and
4. Possess the ability to comprehend and follow oral & written instructions.
Note: Total physical fitness is not required of the apprentice-applicant unless it is
essential to the expeditious and effective learning of the occupation. Only physical
defects w/c constitute real impediments to effective perf as determined by the plant
apprenticeship committee may dispqualify an applicant
Art 60: EMPLOYMENT OF APPRENTICES
Qualifications to be met by EER:
1. Only EERS in highly technical industries may employ apprentices; and
2. Only in apprenticeable occupations as determined by the TESDA.
Requisites for a Valid apprenticeship
1. Qualifications of apprentice are met;
2. Apprentice earns not less than 75% of the prescribed minimum salary;
3. Apprenticeship agreemt duly executed & signed;
4. Apprenticeship program must be approved by the TESDA; otherwise the apprentice
shall be deemed a regular EE;
5. Period of apprenticeship shall not exceed 6 months
Note: at the termination of the apprenticeship, the EER is not required to continue the
EENT
There is no valid apprenticeship if:
1. The agreemt submitted to the TESDA was made long after the workers started
undergoing apprenticeship;
2. The work performed by the apprenticeship was different from those allegedly
approved by TESDA;
3. The workers undergoing apprenticeship are already skilled workers;
4. The workers were required to continue undergoing apprenticeship beyond 6mos.
Art 61: CONTENTS OF APPRENTICESHIP AGREEMENT
1. Full name & address of the contracting parties;
2. Date of birth of the apprentice;
3. Name of trade, occupation or job in w/c the apprentice shall be trained and the dates
on w/c such training will begin and will proximately end;
4. Approp number of hrs of OJT w/ compulsory theoretical instruction w/c the
apprentice shall undergo during his training;
5. Schedule of the work processes of the trade/occupation in w/c the apprentice shall
be trained and the approx. time to be spent on the job in each process;
6. Graduated scale of wages to be paid to the apprentice;
7. Probationary pd of the apprentice during wc either party ay summarily terminate
their agreemt; and
8. A clause that if the EER is unable to fulfill his training oblig, he may transfer the
agreemt, w/ the consent of the apprentice to any other EER who is willing to assume
such oblig.
Working Hrs – shall not exceed the max number of hrs prescribed by law, if any, for a
worker of his age and sex. Time spent in compulsorily theoretical instruction shall be
considered hrs of work. An apprentice not otherwise barred by law from working 8hrs
may be requisted by his EER to work overtime and paid accordingly.
Art 62: SIGNING OF APPRENTICESHIP AGREEMENT
Who signs:
1. The apprentice, if of age, otherwise, by his parent or guardian, or in the latter’s
absence, by an authorized rep of TESDA; and
2. EER or his duly authorized rep
Art 63: VENUE OF APPRENTICESHIP PROGRAM
1. Within the sponsoring firm, establishment or entity; or
2. Within a DOLE training center or other public training institutions; or
3. Initial training in trade fundamentals in a training center or other institutions w/
subsequent actual work participation w/in the sponsoring firm or entity during the final
stage of training.
Art 64: SPONSORING OF APPRENTICESHIP PROGRAMS
BY:
1. The plant, shop or premises of the EER or firm concerned if the apprenticeship
program is organized by an indiv EER or firm;
2. The premises of one or several firms designated for the purpose by the organizer of
the program if such organizer is an assoc of EERS, civic group and the like; and
3. DOLE Training Center or other public training institutions w/ w/c the TESDA has
made approp arrangements.
Art 65-67: VIOLATION OF APPRENTICESHIP AGREEMENT
Art 65: Investigation of violation of apprenticeship agreement
1. Either party to an agreemt may terminate the same after the probationary pd only
for a valid cause.
2. Action may be initiated upon complaint of any interested person or upon DOLE’s own
initiative.
Valid Cause to terminate agreement
1. By the EER:
a. Habitual absenteeism in OJT and related theoretical instructions;
b. Willful disobedience of company rules or insubordination to lawful order of a
superior;
c. Poor physical condition, permanent disability or prolonged illness w/c incapacitates
the apprentice from working;
d. Theft or malicious destruction of company property and/or equipment
e. Poor efficiency or perf on the job or in the classroom for a prolonged period despite
warnings duly given to the apprentice; and
f. Engaging in violence or other forms of gross misconduct inside the EER’s premises
2. By the apprentice:
a. Substandard or deleterious working conditions w/in the EER’s premises;
b. Repeated violations by the EER of the terms of the apprenticeship agreemt;
c. Cruel or inhumane treatment by the EER or his subordinates;
d. Personal problem s/c in the opinion of the apprentice shall prevent him from a
satisfactory perf of his job; and
e. Bad health or continuing illness.
Art 66: Appeal
Labor w/in 5 days form rcpt of the adverse decision.
Art 67 Exhaustion of Administrative Remedies
1. The exhaustion of administrative remedies is a condition precedent to the institution
of action.
2. The plant apprenticeship committee shall have initial responsibility for settling
differences arising out of apprenticeship agreements.
Art 68: APTITUDE TESTS
ANTONIO M. SERRANO VS. GALLANT MARITIME SERVICES, INC.
FACTS:
Petitioner Antonio Serrano was hired by respondents Gallant Maritime Services, Inc. and
Marlow Navigation Co., Inc., under a POEA-approved contract of employment for 12
months, as Chief Officer, with the basic monthly salary of US$1,400, plus $700/month
overtime pay, and 7 days paid vacation leave per month.
On the date of his departure, Serrano was constrained to accept a downgraded
employment contract upon the assurance and representation of respondents that he
would be Chief Officer by the end of April 1998.
Respondents did not deliver on their promise to make Serrano Chief Officer.
Hence, Serrano refused to stay on as second Officer and was repatriated to the
Philippines, serving only two months and 7 days, leaving an unexpired portion of nine
months and twenty-three days.
Upon complaint filed by Serrano before the Labor Arbiter (LA), the dismissal was
declared illegal.
On appeal, the NLRC modified the LA decision based on the provision of RA 8042.
Serrano filed a Motion for Partial Reconsideration, but this time he questioned the
constitutionality of the last clause in the 5th paragraph of Section 10 of RA 8042.
ISSUES:
1. Whether or not the subject clause violates Section 10, Article III of the Constitution
on non-impairment of contracts;
2. Whether or not the subject clause violate Section 1, Article III of the Constitution,
and Section 18, Article II and Section 3, Article XIII on labor as a protected sector.
HELD:
On the first issue.
The answer is in the negative. Petitioner’s claim that the subject clause unduly
interferes with the stipulations in his contract on the term of his employment and the
fixed salary package he will receive is not tenable.
The subject clause may not be declared unconstitutional on the ground that it impinges
on the impairment clause, for the law was enacted in the exercise of the police power
of the State to regulate a business, profession or calling, particularly the recruitment
and deployment of OFWs, with the noble end in view of ensuring respect for the dignity
and well-being of OFWs wherever they may be employed.
On the second issue.
The answer is in the affirmative.
To Filipino workers, the rights guaranteed under the foregoing constitutional provisions
translate to economic security and parity.
Upon cursory reading, the subject clause appears facially neutral, for it applies to all
OFWs. However, a closer examination reveals that the subject clause has a
discriminatory intent against, and an invidious impact on, OFWs at two levels:
First, OFWs with employment contracts 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;
The subject clause singles out one classification of OFWs and burdens it with a peculiar
disadvantage.
Thus, the subject clause in the 5th paragraph of Section 10 of R.A. No. 8042 is violative
of the right of petitioner and other OFWs to equal protection.
The subject clause ―or for three months for every year of the unexpired term,
whichever is less‖ in the 5th paragraph of Section 10 of Republic Act No. 8042 is
DECLARED UNCONSTITUTIONAL.
People of the Philippines (petitioner) v Jamilosa (repondent)
GR No. 169076 January 23, 2007
Callejo, Sr.,:
FACTS:
Sometime in the months of January to February, 1996, representing to have the
capacity, authority or license to contract, enlist and deploy or transport workers for
overseas employment, did then and there, willfully, unlawfully and criminally recruit,
contract and promise to deploy, for a fee the herein complainants, namely, Imelda D.
Bamba, Geraldine M. Lagman and Alma E. Singh, for work or employment in Los
Angeles, California, U.S.A. in Nursing Home and Care Center.
Prosecution presented three witnesses, namely Imelda Bamba, Geraldine Lagman and
Alma Singh.
According to Bamba, she met the appellant on a bus. She was on her way to SM North
Edsa where she was a company nurse. Appellant introduced himself as a recruiter of
workers for employment abroad. Appellant told her he could help her get employed as
nurse. Appellant gave his pager number and instructed her to contact him is she’s
interested. Sometime in January 1996, appellant fetched her at her office, went to her
house and gave him the necessary documents and handed to appellant the amount of
US$300.00 and the latter showed her a photocopy of her supposed US visa. However,
the appellant did not issue a receipt for the said money. Thereafter, appellant told her
to resign from her work because she was booked with Northwest Airlines and to leave
for USA on Feb, 1996. On the scheduled departure, appellant failed to show up.
Instead, called and informed her that he failed to give the passport and US visa
because she had to go to province because his wife died. Trying to contact him to the
supposed residence and hotel where he temporarily resided, but to no avail.
Winess Lagman testified that she is a registered nurse. In January 1996, she went to
SM North Edsa to visit her cousin Bamba. At that time Bamba informed her that she
was going to meet to appellant. Bamba invited Lagman to go with her. The appellant
convinced them of his ability to send them abroad. On their next meeting, Lagman
handed to the latter the necessary documents and an amount of US$300.00 and 2
bottles of black label without any receipt issued by the appellant. Four days after their
meeting, a telephone company called her because her number was appearing in
appellants cell phone documents. The caller is trying to locate him as he was a
swindler. She became suspicious and told Bamba about the matter. One week before
her scheduled flight, appellant told her he could not meet them because his mother
passed away.
Lastly, Alma Singh, who is also a registered nurse, declared that she first met the
appellant at SM North Edsa when Imelda Bamba introduced the latter to her. Appellant
told her that he is an undercover agent of FBI and he could fix her US visa. On their
next meeting, she gave all the pertinent documents. Thereafter, she gave P10,000 to
the appellant covering half price of her plane ticket. They paged the appellant through
his beeper to set up another appointment but the appellant avoided them as he had
many things to do.
The accused Jamilosa testified on direct examination that he never told Bamba that he
could get her a job in USA, the truth being that she wanted to
leave SM as company nurse because she was having a problem thereat. Bamba called
him several times, seeking advices from him. He started courting Bamba and went out
dating until latter became his girlfriend. He met Lagman and Singh thru Bamba. As
complainants seeking advice on how to apply for jobs abroad, lest he be charged as a
recruiter, he made Bamba, Lagman and Singh sign separate certifications, all to effect
that he never recruited them and no money was involved. Bamba filed an illegal
recruitment case against him because they quarreled and separated.
RTC rendered judgment finding accused guilty beyond reasonable doubt of illegal
recruitment in large scale.
ISSUE: Illegal Recruitment in a large scale?
HELD: ―Recruitment and placement" refers to any act of canvassing, enlisting,
contracting, transporting, utilizing, hiring, or procuring workers, and includes referrals,
contract services, promising or advertising for employment, locally or abroad, whether
for profit or not. Provided, That any person or entity which, in any manner, offers or
promises for a fee employment to two or more persons shall be deemed engaged in
recruitment and placement.
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. 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.
To prove illegal recruitment in large scale, the prosecution is burdened to prove three
(3) essential elements, to wit: (1) the person charged undertook a recruitment activity
under Article 13(b) or any prohibited practice under Article 34 of the Labor Code; (2)
accused did not have the license or the authority to lawfully engage in the recruitment
and placement of workers; and (3) accused committed the same against three or more
persons individually or as a group. As gleaned from the collective testimonies of the
complaining witnesses which the trial court and the appellate court found to be credible
and deserving of full probative weight, the prosecution mustered the requisite quantum
of evidence to prove the guilt of accused beyond reasonable doubt for the crime
charged. Indeed, the findings of the trial court, affirmed on appeal by the CA, are
conclusive on this Court absent evidence that the tribunals ignored, misunderstood, or
misapplied substantial fact or other circumstance.
The failure of the prosecution to adduce in evidence any receipt or document signed by
appellant where he acknowledged to have received money and liquor does not free him
from criminal liability. Even in the absence of money or other valuables given as
consideration for the "services" of appellant, the latter is considered as being engaged
in recruitment activities. It can be gleaned from the language of Article 13(b) of the
Labor Code that the act of recruitment may be for profit or not. It is sufficient that the
accused promises or offers for a fee employment to warrant conviction for illegal recruit
CONDITIONS OF EMPLOYMENT
WORKING CONDITIONS & REST PERIODS
Art 82. COVERAGE
a. ALL employees in all establishments & undertakings whether for profit or not
b. Such standards apply only if there exists EER-EE relationship
ii. Managerial employees – those whose primary duty consists of the mgt of the
establishment in w/c they are employed or of a dept/subd thereof, and to other
officers/members of the managerial staff
- under the direct supervision of the EER, and assist in the planning, organizing,
staffing, directing controlling, communicating and in making decisions in attaining the
company’s set goals & objectives
a. Includes supervisiors (only as regards Art 82) – likewise responsible for the effective
& efficient operation of their respective depts
iii. Field personnel – non-agricultural employees who regularly perform their duties
away from the principal place of business or branch office of the employer and whose
actual hours of work in the field cannot be determined w/ reasonable certainty
c. those whose performance of their job/service is not supervised by the ER or his rep,
the workplace being away from the principal office and whose hours & days of work
cannot be determined w reasonable certainty; hence they are paid specific amount for
rendering specific service or performing specific work.
personnel
-agri work away from the office, the
fact that they have no choice but to remain on board the vessel, they are still under
constant supervision by the ER thru the vessel’s patron/master
iv. Employer’s family members who are dependent on him for support
v. Domestic helpers
vi. Persons in the personal service of another
vii. Workers paid by result – per piece/per task
- laborer/EE w/ no fixed salary, wag, or renumeration but receiving a compensation
from his ER an uncertain & variable amount depending upon the work done or the
result of said work (piece work), irrespective of the time employed
EER-EE Relationship – is not dependent upon the agreement of the parties. The
-EE
relshp is not a matter of stipulation but a question of law
d. depends on the facts of each case
Core/Non-core Jobs
e. EER-EE relship may comver core/non-core activities of the EER’s business.
f. The kind of work is not the definitive test of whether the worker is an EE or not.
Employer – any person, natural or juridical, domestic or foreign, who carries on in the
PH any trade, business, industry, undertaking or activity of any kind and uses the
services of another person who is under his order as regards employment
Employee – any person who performs services for an EER in w/c either or both mental
& physical efforts are used and who receives compensation for such services, where
there is an EER-EE relationship
TESTS OF EENT Relship:
i. Right of Control Test – where the person for whim the services are performed
reserves a right to control not only the end to be achieved but also the means to be
sued in reaching such end.
Plus: the courts added the existing economic conditions prevailing bet the parties (like
payrolls) in determining the existence of EER-EE Relship.
ELEMENTS OF EE-EER RELSHIP (Four-fold Test)
i. the selection and engagement of the EE;
ii. the payment of wages;
iii. the power of dismissal;
iv. the employer’s power to control the EE w/ respect to the means & methods by w/c
the work is to be accomplished (most important)
Independent contractors – can employ others to work & accomplish contemplated
result w/o consent of contractee, while EE cannot substitute another in his place w/o
consent of his EER.
2. The Economic Dependence Test – observes the need to consider the existing
conditions bet the parties
Best approach: Apply the two-tiered test involving:
1. the putative employer’s power to control the EE w/ respect to the means and
methods by w/c the work is to be accomplished; and
2. the underlying economic realities of the activity or relationship
a. the extent to w/c the services performed are an integral part of the employer’s
business;
b. to the extent of the worker’s investment in equipment and facilities;
c. the nature and degree of control exercised by the employer;
d. the worker’s opportunity for profit and loss;
e. the amount of initiative, skill, judgment or foresight required for the success of the
claimed independent enterprise;
f. the permanency and duration of the relationship between the worker and the
employer; and
g. the degree of dependency of the worker upon the employer for his continued
employment in that line of business
Standard of economic dependence – whether the worker is dependent on the alleged
employer for his continued employment in that line of business
Evidence of employment
i. id card
ii. vouchers of salaries
iii. sss registration
iv. memorandum
an EE
– not a test of EEnt status; pakyaw basis does not mean
workers are independent contractors
Independent contractors- generally rely on their own resources
* Unions and unregistered associations can be EERs of the persons who work for them
GR: An employee is not a contractor; a contractor is not an employee.
GR: While EE-ER relationship exists bet a job contractor and the workers that he hires,
no such relationship exists bet those workers and the job contractee, the contractor’s
client.
-only contractor – serve as an agent of the true employer by merely recruiting &
supplying people (prohibited).
Conditions of Employment – laid down by law or by contract concluded individually w/
an EE or collectively w/ a group
g. may also arise from established practice in the enterprise
2 Kinds of Employment Conditions
a. Statutory – provided for by law
b. Voluntary – initiated by the ER unilaterally or by contractual stipulation
An employer is free to regulate, accdg to his own discretion & judgment, all aspects of
EENT, including hiring, work assignments, working methods, time, place and manner of
work, tools to be used, processes to be followed, supervision of workers, working
regulations, transfer of EES, work supervision, lay-off of workers and discipline,
dismissal and recall of workers.
h. Employers have the right to exercise management prerogatives to strengthen his
for the advancement of his interest and not for the purpose of defeating/circumventing
the Rs of the EES
a. May devise & implement new salary scales applicable only to future EES. (salary
distortion)
Members/Officers of the Managerial Staff: Duties & Responsibilities
1. Their primary duty consists of the performance of work directly related to mgt
policies of their ER;
2. They customarily & regularly exercise discretion and independent judgment;
3. They regularly & directly assist the managerial EE whose primary duty consists of the
mgt of a dept of the establishment in w/c they are employed;
4. They execute, under gen supervision, work along specialized/technical lines requiring
special training, experience or knowledge;
5. They execute, under gen supervision, special assignments and tasks; and they do not
devote more than 20% of their hours worked in a work-week to activities w/c are not
directly & clearly related to the performance of their work
Art 83. NORMAL HOURS OF WORK
i. shall not exceed 8 hrs/day
Purpose of 8-hr Labor law – not only to safeguard the health & welfare of the
laborer/EE, but in a way to minimize unemployment by forcing ERs, in cases where
more than 8-hr operation is necessary, to utilize different shifts to laborers/EEs working
only for 8 hrs each
Part-time Work – not prohibited. (What the law regulates is work exceeding 8hrs)
GR: Wage & benefits of a part-timer are in proportion to the number of hrs worked.
Work hrs of Health Personnel
Health personnel – shall include, but not limited to, resident physicians, nurses,
nutritionists, dieticians, pharmacists, social workers, lab technicians, paramedics,
psychologists, midwives, attendants, and all other hospital & clinic personnel like
medical secretaries
Resident physicians – customary practice to work for 24 hrs a day violates the
residents and the hospital accredited by the govt
Hospital EEs – are entitled to a full weekly salary w/ apid 2 days off if they have
completed the 40hr/5day workweek (7days pay for 5 days work)
Health personnel in Govt service – covered by RA 7305
12-hr Workshift with Overtime
- through a contract freely entered into, workshift may exceed 8hrs w/ corresponding
overtime pay.
Art 84. HOURS WORKED shall include:
1. all time during w/c an EE is required to be on duty or to be at a prescribed
workplace, and
2. all time during w/c an EE is suffered or permitted to work
Rest periods of short duration during work hrs shall be counted as hours worked
Principles in Determining Hours Wrked
1. All hrs are hrs worked w/c the EE is required to give to his ER, regardless of WON
such hrs are spent in productive labor or involve physical/mental exertion;
2. An EE need not leave the premises of the workplace in order that his rest period shall
not be counted, it being enough that he stops working, may rest completely and may
leave his workplace, to go elsewhere, whether w/in or outside the premises of his
workplace;
3. If the work performed was necessary, or it benefited the ER, or the EE could not
abandon his work at the end of his normal working hrs because he had no replacement,
all time spent for such work shall be considered as hrs worked, if the work was w/in the
knowledge of his ER/immediate supervisor;
4. The time during w/c an EE is inactive by reason of interruptions in his work beyond
his control shall be considered time either if the imminence of the resumption of work
requires the EE’s presence at the place of work or if the interval is too brief to
be utilized effectively & gainfully in the EE’s own interest.
Pre/Postliminary Activities
j. Preliminary (before work) and postliminary (after actual work) activities are deemed
performed during working hrs, where such activities are controlled/required by the ER
and are pursued necessarily & primarily for the ER’s benefit
Waiting Time
k. whether waiting time constitutes working time depends on the circumstances on
each particular case
l. controlling factor is WON time spent in idleness is so spent predominantly for the ER’s
benefit or for the EE’s
1. Engaged to Wait – waiting time spent by EE shall be considered as working time if
waiting is considered an integral part of his work or if the EE is required/engaged by an
ER to wait
2. Waiting to Engage – idle time is not work time
Working While Eating
GR: EE must be completely relieved from duty for the purpose of eating regular meals.
The meal time is not compensable if he is completely free from duties during his meal
period even though he remains in the workplace.
eating (ex. Stand-by for emergency work)
Working While Sleeping
GR: Sleeping time may be considered working time if it is subj to serious interruption or
takes place under conditions substantially less desirable than would be likely to exist at
the EE’s home.
conditions, event though EE is required to remain on or near the ER’s premises and
must hold himself in readiness for a call to action ENT.
m. depends upon the express/implied agreement of the parties, or in absence of an
agreement, upon the nature of the service and its relation to the working time.
On Call
n. although EE can rest completely and may not be actually at work, if they are
required to be in their place of work before/after the regular working hrs and w/in the
call of their ERs, the time they stay in the place of work sould not be discounted from
their working hrs
o. EE cannot use the time effectively for his own purposes is working while on call.
p. Not on call: EE is not required to remain on the ER’s premises but is merely required
to leave work at his home or w/ company officials where he may be reached
q. Public health workers’ On call status – refers to a condition when public health
workers are called upon to respond to urgent or immediate need for health/medical
assistance or relief work during emergencies such that he/she cannot devote the time
for his/her own use.
With Cellular phone or Other Contact Device
r. if EE is kept ―w/in reach‖ through a cell phone, he is NOT on call
Travel Time – time spent walking, riding, or traveling to/from place of work
a. Travel from home to work –
outside his regular working hrs and is required to travel to his regular place of business
b. Travel that is all in a day’s work – time spent by an EE in travel as part of his
c. Travel away from home – travel that keeps an EE away from home overnight
Lectures, Meetings and Training Programs – not worktime if:
a. Attendance is outside of the EE’s regular working hrs;
b. Attendance is in fact voluntary; and
c. The EE does not perform any productive work during such attendance.
* must meet all criteria
Grievance Meeting – time spent in adjusting grievance bet ER & Ee during the time the
he CBA or the custom practice under the
CBA
Semestral Break – hrs worked by teachers in private schools
WORK HOURS OF SEAMEN
s. they need not leave the boat in order that his rest period not be counted
Requisites for non-counted rest period
a. he ceases to work
b. may rest completely
c. leave or may leave at his will the spot where he actually stays while working, to go
somewhere else, whether w/in or outside the ship
HOURS WORKED: EVIDENCE & DOUBT
GR: When an ER alleges that his EE works less than the normal hrs of ENT as provided
for in law, he bears the burden of proving his allegation w/ clear & satisfactory evidence
Art 85. MEAL PERIODS
t. must be at least 60minutes time-off for regular meals
GR: not compensable
1. where the lunch period or mealtime is predominantly spent for the ER’s benefit
(considered overtime) ;or
2. where it is less than 60 minutes (but not less than 20minutes) must be with full pay
when:
1. where work is non-manual (does not involve strenuous physical exertion);
2. where the establishment regularly operates not less than 16hrs a day
3. in cases of actual or impending emergencies or there is urgent work to be performed
on machineries, equipment or installations to avoid serious loss w/c the ER would
otherwise suffer;
4. where the work is necessary to perevent serious loss of perishable goods
c. If less than 20 minutes it becomes only a rest period and is thus considered work
time
Note: Meal periods during overtime work is not given to workers performing OT bcoz
OT is usually for a short period
Shortened Meal Break Upon EE’s request
u. EEs may request that their meal pd be shortened so that they can leave work earlier
Requisites
1. EEs voluntarily agree in writing and waive their OT pay;
2. No diminution in the salary and other fringe benefits of the EEs already existing;
3. Work is not physically strenuous and they are provided w/ adequate coffee breaks in
the morning & afternoon;
4. Value of benefits is equal to the compensation due them;
5. OT pay will become due and demandable if they are permitted/made to work beyond
4:30 pm; and
6. The arrangement is of temporary duration.
Note: The 8-hr work period does not include the meal break. EE’s may leave the
company premises as long as they return to their posts on time.
Art 86 NIGHT SHIFT DIFFERENTIAL
- at least 10% of his regular wage for each hr of work performed bet 10PM and 6AM
- given as premium for working at a time for sleep & rest
-
establishments regularly employing 5 employees and below
- -6am is OT work, then the 10% night shift differential
should be based on the OT rate
- not waivable (founded on public policy)
- the receipt of OT pay will not preclude payment of NSD pay
- burden of proof of payment of NSD - ER
Art 87. OVERTIME WORK
Overtime Pay – additional compensation for work performed beyond 8hrs w/in the
worker’s 24-hr workday regardless whether the work covers 2 calendar days
Basis – cash wage only, w/o any deduction
Rates
1. OT on a regular work day – at least 25% thereof
2. OT on a holiday or rest day – at least 30% thereof
* CBA may stipulate higher OT pay rate
Actual Work Days as Divisor
– PALEA & PAL Supervisors Assoc (PALSA), commenced an action
v PAL in the CIR praying that the latter be ordered to revise the method of computing
the basic daily & hourly rates of its monthly-salaried EEs and necessarily to pay them
their accrued salary differentials
PAL’s Formula:
monthly salary x 12/365 days in a yr = Basic daily rate
basic daily rate/8 – Basic hourly rate
Proposed Formula:
Monthly salary x 12/actual working days = BDR
BDR/8 = BHR
Paid Unworked days of a monthly-paid EE
- ER may stipulate that EE’s monthly salary constitutes payment for all the days of the
month incl rest days & holidays if when converted into its daily equivalent would still
How ―work day‖ is counted
A day – the 24-hr period w/c commences from the time the EE regularly starts to work
- regardless of the day of the week or hr of the day
- any work in excess of the 8hrs w/in the 24-hr pd is considered as OT regardless of
whether the work covers 2 calendar days
- any work in excess of 8 hrs not falling w/in the 24-hr pd is not considered as OT work
a. Broken Hrs of Work – the minimum normal working hrs need not be continuous to
constitute as the legal working day of 8 hrs as long as the 8 hrs is w/in a work day
b. Work in Different Shifts in a Work day – work in excess of 8hrs w/in a work day is
considered as OT regardless of whether this is performed in a work shift other than at
w/c the EE regularly works
-6am. He is asked to take a shift of another EE who is absent from
2pm-10pm (his regular work day would be from 10pm-
considered OT because it is still w/in his work day
GR: An express instruction from the ER to the EE to render OT work is not required for
the EE to be entitled to OT pay. It is sufficient that the EE is permitted or suffered to
work. Neither is an express approval by a supervisor needed.
s, written authority after office hrs is required for the EE to be
entitled to compensation
work.
work could be
done (i.e. brownout, machine repair, lack of rawmats)
OT Work of Seamen – whether or not the sailors are entitled to OT pay is not whether
they were on board and cannot leave ship beyond the regular 8
working hrs a day, but whether they actually rendered service in excess of 8 hrs
Action to Recover Compensation
- estoppel & laches cannot be invoked against EEs bcoz that would be contrary to the
spirit of the 8-hr Labor Law, under w/c the laborers cannot waive their R to extra
compensation
- OT pay in arrears retroacts to the date when services were actually rendered
GR: Waiver or quitclaim – not a waiver of OT pay. Any stipulation in the contract that
the laborer shall work beyond the regular 8 hrs w/o addtl compensation for the extra
hrs is contrary to law and null and void
Waiver of OT Pay
GR: OT pay cannot be waived expressly or impliedly. Any contrary stipulation is null and
void.
1. When the waiver is made in consideration of benefits & privileges w/c may be more
than what will accrue to them in OT pay; and
2. Compressed workweek (CWW)– the number of work days is reduced but the number
of work hrs in a day is increased to more than 8, but no OT pay may be claimed.
Requisites of Compressed Workweek to be valid:
1. The scheme is expressly and voluntarily supported by majority of the EEs affected;
2. In firms using substances, or operating in conditions that are hazardous to health, a
certification is needed from an accredited safety org or the firm’s safety committee that
work beyond 8hrs is w/in the limits/levels of exposure set by DOLE’s occupational safety
& health standards;
3. The DOLE Regional Office is notified.
Effects of a Compressed Workweek
1. Unless there is a ore favorable practice existing in the firm, work beyond 8hrs will not
be compensable by OT premium, provided the
total number of hrs worked per day shall not exceed 12hrs. (Work performed beyond
2. EE’s under a CWW scheme are entitled to meal periods of at least 60 minutes. The R
of EEs to restday, holiday pay, rest day pay or leave in accdance w/ law/CBA/company
practice shall not be impaired.
3. Adoption of the CW scheme shall in no case result in diminution of existing benefits.
Reversion to the normal 8-hr work day shall not constitute diminution of benefits.
(Reversion is considered a legitimate exercise of mgt prerogative, provided that the ER
shall give the EEs prior notice of such reversion w/in a reasonable period of time.
* EE may validly waive the R to OT under a CWW program, provided he did so
voluntarily, w/ full understanding of what he was doing and in consideration for the quit
claim is credible & reasonable.
Note: EE’s promoted from rank-and-file to supervisory lose their OT pay and other
benefits under Art 82-96
Illustrations of OT Computations
1. Regular Workdays
Reg Basic Wage + 25% thereof
2. Legal or Regular Holidays
Holiday Wage Rate (200%) + 30% thereof
3. Rest Days or Special Holidays
Rest day/Special Holiday wage rate (130%) + 30% thereof
4. Scheduled Rest Day w/c is also a Special Holiday
Rest day & special holiday wage rate (150%) + 30% thereof
5. Scheduled rest day w/c is also a legal or regular holiday
Rest day & legal holiday wage rate (260%) + 30% thereof
6. Double holiday
Double holiday wage rate (400%) + 30% thereof
0% of his regular daily wage when both regular holidays fall on the
same day and he does not work (Law provides that he shall get his regular daily wage
of each regular holiday)
ets
400%
OT pay integrated in Basic Salary – (composite/package pay/all-inclusive salary) – not
illegal nor unusual for executives or managers
-managerial EEs, there must be:
1. A clear written agreement
2. Agreed legal wage rate and OT pay computed separately are equal or higher than
the separate amounts legally due
FLEXIBLE WORK ARRANGEMENTS
- alternative work arrangements or schedules other than the traditional or standard
work hrs, workdays or workweek. ERs may adopt them after due consultation w/ EEs,
taking into acct the adverse consequence of the situation on the performance and
financial condition of the company.
- Its effectivity and implementation shall be temporary.
- Should be threshed out by the ER and EE
- DOLE Reg Ofc must be notified prior to implementation
- In addition to CWW, the FWAs include:
1. Reduction of workdays – where normal workdays per week are reduced but should
not last for more than 6 months
2. Rotation of workers – where the EEs are rotated/alternately provided work w/in the
workweek
3. Forced leave – EEs are required to go on leave for several days or weeks, utilizing
their leave credits if there are any
4. Broken-time schedule – the work schedule is not continuous but the number of hrs
w/in the day or week is not reduced
5. Flexi-holiday schedule – Ees agree to avail themselves of the holidays at some other
days, provided that there is no diminution of existing benefits as a result of such
arrangement
Art 88. UNDERTIME NOT OFFSET BY OVERTIME
- Whether on the same day or any other day is prohibited by law
- Permission given to the EE to go on leave o some other day of the week shall not
exempt ER from paying the addtl compensation
Reason: EE’s hourly rate is not equivalent to OT rate
Proper method: Deduct the UT from the accrued leave, if any
Art 89. EMERGENCY OT WORK
GR: EEs cannot be compelled to render OT work against their will
1. In times of war or any national or local emergency declared by Congress/Chief Exec;
2. To prevent loss or damage to life or property due to emergencies and force majeure;
3. When there is urgent work needed on machines & equipment;
4. When work is necessary to preserve perishable goods;
5. To prevent serious obstruction or prejudice to the business or operations of the ER;
and
6. When it is necessary to avail of favorable weather or environmental conditions where
performance or quality f work is dependent thereon.
Art 90. COMPUTATION OF ADDTL COMPENSATION
―cash wage‖ – excludes noncash value of facilities
- if only cash wage is the basis of OT rate, it is unfair to the worker because as defined
in Art 97, ―wage‖ includes the value of facilities, hence the value of facilities should not
be excluded when computing OT pay
-
Ch. 2 WEEKLY REST PERIODS
Art 91. RIGHT TO WEEKLY REST DAY
Duration: at least 24 consecutive hrs after every 6 consecutive normal work days
- all establishments & enterprises may operate or open for business on Sundays &
holidays provided that the EEs are given the weekly rest day & the benefits provided
under the law
Who Determines: The ER determines and schedules the weekly rest period subj to the
ff:
1. CBA;
2. Rules & regulations issued by the Sec of Labor; and
3. EE’s preference based on religious grounds. (When such preference will prejudice the
business of the ER, and no other remedial measures are
available, the weekly rest pd may be scheduled to meed the EE’s choice for at least 2
days a month
Art 92. WHEN THE ER MAY REQUIRE WORK ON A REST DAY
GR: The ER may not require the EEs to work on a rest day
1. In cases of urgent work to be performed on the machinery, equipment or
installation;
2. To prevent loss or damage to perishable goods;
3. In case of actual/impending emergencies caused by force majeure to prevent loss of
life and property, or imminent danger to public safety;
4. Where the nature of work requires continuous operations and the stoppage of work
may result in irreparable injury/loss to the ER;
5. In the event of abnormal pressure of work due to special circumstances, where the
ER cannot ordinarily be expected to resort to other measures; and
6. Under the circumstances analogous to the foregoing as determined by the Sec of
Labor.
Note: The failure to work during an EE’s rest day does not justify disciplinary sanction
of outright dismissal, more so when justifiable grounds exist for the said failure.
Note: When an EE volunteers to work on his rest day under other circumstances, he
may be allowed to do so, provided he expresses such desire in writing and he is paid
the addtl compensation for working on his rest day
Art 93. COMPENSATION FOR REST DAY, SUNDAY OR HOLIDAY WORK
Premium pay or Differential compensation – addtl compensation for work rendered by
the EE on days when normally he should not be working such as special holidays and
weekly rest days
Note: This article does not prohibit a CBA stipulation for higher benefits
Formulas to Compute Wages on Holidays
1. For REGULAR HOLIDAYS
a. If it is an EE’s regular workday
i. If unworked – 100%
ii. If worked
1. 1st 8hrs – 200%
2. excess of 8hrs – Plus 30% of hourly rate of said day
b. if it is an EE’s rest day
i. if unworked – 100%
ii. if worked
1. 1st 8hrs – plus 30% of 200%
2. excess of 8 hrs – plus 30% of hourly rate of said day
2. For declared SPECIAL DAYS such as Special Non-Working Day, Special Public Holiday,
Special National Holiday and nationwide special days
a. If unworked – no pay, unless there is a favorable company policy, practice or CBA
granting payment of wages on special days even if unworked
b. If worked
i. 1st 8hrs – plus 30% of the daily rate of 100%
ii. excess of 8hrs – plus 30% of hourly rate on said day
c. Falling on the EE’s rest day and if worked
i. 1st 8hrs – plus 50% of the daily rate of 100%
ii. excess of 8hrs – plus 30% of hourly rate on said day
3. For those declared as SPECIAL WORKING HOLIDAY
- for work performed an EE is entitled only to his basic rate
List of Special Days
Proc. 459
A. Regular Holidays
1. New Year’s Day
2. Maundy Thursday
3. Good Friday
4. Araw ng Kagitingan
5. Labor Day
6. Independence Day
7. National Heroes Day
8. Bonifacio Day
9. Christmas Day
10. Rizal Day
B. Special (Non-working)Days
1. Black Saturday
2. Ninoy Aquino Day
3. All Saints Day
4. Nov 2
5. Dec 24
6. Last Day of the Year
C. Special Holiday (for all schools)
EDSA Revolution Anniversary
D. Local Holiday
Those declared by
law or ordinance
Regular Holiday
Special Day
Compensable even if
unworked subj to
certain conditions
Not compensable if
unworked
Limited to the list
enumeration
Not exclusive since a
law or ordinance
may provide for
other special
holidays
Rate is 200% of the
regular rate if
worked
Rate is 130% of the
regular wage if
worked
