Professional Documents
Culture Documents
Reviewer (Labor Law 1) : 1. Aliens Required To Secure AEP Who Are The Foreign Nationals Required To Secure AEP?
Reviewer (Labor Law 1) : 1. Aliens Required To Secure AEP Who Are The Foreign Nationals Required To Secure AEP?
2.1 All members of the diplomatic service and foreign government officials accredited by
and with reciprocity arrangement with the Philippine government;
2.2 Officers and staff of international organizations of which the Philippine government
is a member, and their legitimate spouses desiring to work in the Philippines;
2.3 Foreign nationals elected as members of the Governing Board who do not occupy any
other position, but have only voting rights in the corporation;
2.5 Owners and representatives of foreign principals whose companies are accredited by
the Philippine Overseas Employment Administration (POEA), who come to the
Philippines for a limited period and solely for the purpose of interviewing Filipino
applicants for employment abroad;
2.6 Foreign nationals who come to the Philippines to teach, present and/or conduct
research studies in universities and colleges as visiting, exchange or adjunct professors
under formal agreements between the universities or colleges in the Philippines and
foreign universities or colleges; or between the Philippine government and foreign
government; provided that the exemption is on a reciprocal basis; and
Promote and strengthen the quality of technical education and skills development
programs to attain international competitiveness;
b. Improve the quality, relevance, and accountability of technical education and skill
development;
d. Expand the range of opportunities for upward social mobility of the school-going
population beyond traditional higher levels of formal education (Sec.21 RA 7796)
Special workers are those whose earning power is reduced such as Apprentices, Learners,
and Handicapped workers. Special group of employees are those who receive certain
benefits as regards to their compensation or to their working conditions, namely, Women,
Minors, Househelpers, and Homeworkers. (Art. 57 Labor Code)
Chapter I, Title II Training and Employment of special Workers under the LC provides
that “apprenticeship” means any training on the job supplemented by related theoretical
instruction. And an apprentice is a worker who is covered by a written apprenticeship
agreement with an individual employer or any of the entities involving apprenticeable
occupations cognized under this Chapter. Apprenticeable occupation means any trade,
form of employment or occupation which requires more than three (3) months of
practical training on the job supplemented by related theoretical instruction, the employer
binds himself through the apprenticeship agreement to train the apprentice and the
apprentice in turn accepts the terms of training. These are the qualifications of an
apprentice:
a. be at least fifteen (15) years of age, provided those who are at least fifteen (15)
years of age but less than eighteen (18) may be eligible for apprenticeship only in
non-hazardous occupation;
d. possesses the ability to comprehend and follow oral and written instructions.
The following are the important principles applicable to a worker who is covered by a
written apprenticeship agreement:
On the otherhand, Chapter II, Title II of Book II of the Labor Code covers Learnership. Aa
“learner” is a person hired as a trainee in industrial occupations which are non-apprenticeable
and which may be learned through practical training on the job for a period not exceeding three
(3) months, whether or not such practical training is supplemented by theoretical instructions.
Wage rate of learners is 75% of the statutory minimum wage. These are the pre-requisites before
learners may be hired or validly employed:
No entity, whether public or private, shall discriminate against a qualified person with
disability by reason of disability in regard to job application procedures, the hiring, promotion, or
discharge of employees, employee compensation, job training, and other terms, conditions and
privileges of employment. The following constitutes acts of discrimination:
a.) Limiting, segregating or classifying a job applicant with disability in such a manner
that adversely affect his work opportunities;
b.) Using qualification standards, employment tests or other selection criteria that screen
out or tend to screen out a person with disability unless such standards, tests or rather
selection criteria are shown to be job-related for the position in question and are consistent
with business necessity;
d.) Providing less compensation, such as salary, wage or other forms of remuneration
and fringe benefits, to a qualified employee with disability, by reason of his disability, than
the amount to which a non-disabled person performing the same work is entitled;
e.) Favoring a non-disabled employee over a qualified employee with disability with
respect to promotion, training opportunities, study and scholarship grants, solely on account of
the latter’s disability;
h.) Failing to select or to administer in the most effective manner employment tests
which accurately reflects the skills, aptitude or other factor of the applicant or
employee with disability that such tests purports to measure, rather than the
impaired sensory, manual or speaking skills of such applicant or employee, if any;
and
i.) Excluding persons with disability from membership in labor unions or similar
organizations
Article 82 of the labor Code and Section 2, Rule I, Book III of the Rules to Implement the Labor
Code, expressly exclude the following persons or employees from the coverage of Title I, Book
III thereof, to wit:
a. Government employees- they are governed by the Civil Service Law, rules and;
b. Managerial employees;
c. Other officers or members of a managerial staff;
d. Domestic servants and persons in the personal service of another, such as house
helpers;
e. Workers paid by result;
f. Field personnel; and
g. Members of the family of the employer
Article 82
-“Managerial employees” refer to those whose primary duty consists of the management
of the establishment in which they are employed or of a department or subdivision
thereof, and to other officers or members of the managerial staff.
- Used only for purposes of Book III (working conditions and rest periods and benefits)
-Supervisors are members of the managerial staff
13. Sime Darby case; Manila Jockey Club Employee Union case
Sime Darby Case: The right to fix the work schedules of the employees rests principally
on their employer. The reason for the adjustment is for the efficient conduct of its
business operations and its improved production. It rationalizes that while the old work
schedule included a 30-minute paid lunch break, the employees could be called upon to
do jobs during that period as they were “on call.” Even if denominated as lunch break,
this period could very well be considered as working time because the factory employees
were required to work if necessary and were paid accordingly for working. Since the
employees are no longer required to work during this one-hour lunch break, there is no
more need for them to be compensated for this period.
Further, management retains the prerogative, whenever exigencies of the service so
require, to change the working hours of its employees. So long as such prerogative is
exercised in good faith for the advancement of the employer’s interest and not for the
purpose of defeating or circumventing the rights of the employees under special laws or
under valid agreements, such exercise is allowed.
Work day means 24 consecutive-hour period which commences from the time the
employee regularly starts to work. It does not necessarily mean that it based on the
ordinary calendar day from 12:00 midnight to 12:00 midnight unless the employee starts
to work at this unusual hour.
Work week is a week consisting of 168 consecutive hours or 7 consecutive 24 hour work
days beginning at the same hour and on the same calendar day each calendar week.
The reckoning point on how a work day or work week is from the time the employee
regularly starts to work on a work day or from the time and day the employee regularly
starts to work on a work week.
A compressed work week is allowed provided that the employees voluntarily agree
thereto, that there is no diminution in pay, and it is only for a temporary duration.
16. Flexi work schedule under RA 8972; during economic difficulties and emergencies
Under RA 8972 Solo Parents' Welfare Act of 2000, flexible work schedule is defined
as the right granted to a solo parent employee to vary his/her arrival and departure time
without affecting the core work hours as defined by the employer.
Who is a Solo Parent?
(1) A woman who gives birth as a result of rape and other crimes against chastity even
without a final conviction of the offender: Provided, That the mother keeps and raises the
child;
(2) Parent left solo or alone with the responsibility of parenthood due to death of spouse;
(3) Parent left solo or alone with the responsibility of parenthood while the spouse is
detained or is serving sentence for a criminal conviction for at least one (1) year;
(4) Parent left solo or alone with the responsibility of parenthood due to physical and/or
mental incapacity of spouse as certified by a public medical practitioner;
(5) Parent left solo or alone with the responsibility of parenthood due to legal separation
or de facto separation from spouse for at least one (1) year, as long as he/she is entrusted
with the custody of the children;
(6) Parent left solo or alone with the responsibility of parenthood due to declaration of
nullity or annulment of marriage as decreed by a court or by a church as long as he/she is
entrusted with the custody of the children;
(7) Parent left solo or alone with the responsibility of parenthood due to abandonment of
spouse for at least one (1) year;
(8) Unmarried mother/father who has preferred to keep and rear her/his child/children
instead of having others care for them or give them up to a welfare institution;
(9) Any other person who solely provides parental care and support to a child or children;
(10) Any family member who assumes the responsibility of head of family as a result of
the death, abandonment, disappearance or prolonged absence of the parents or solo
parent.
A change in the status or circumstance of the parent claiming benefits under this Act, such that
he/she is no longer left alone with the responsibility of parenthood, shall terminate his/her
eligibility for these benefits.
Flexible Work Schedule. - The employer shall provide for a flexible working schedule for solo
parents: Provided, That the same shall not affect individual and company productivity: Provided,
further, That any employer may request exemption from the above requirements from the DOLE
on certain meritorious grounds.
Parental Leave. - In addition to leave privileges under existing laws, parental leave of not more
than seven (7) working days every year shall be granted to any solo parent employee who has
rendered service of at least one (1) year.
A flexible work schedule of a solo parent employee may only be denied if:
1. The core work-hours are affected.
2. The employer is exempted on meritorious grounds. In such case, the employer files a request
for exemption with the Department of Labor and Employment.
3. The employee is in government service in which case flexible work schedule is subject to
the discretion of the head of agency.
Flexible Work Schedule in times of Economic difficulty and emergencies, there are 6 flexible
work arrangements in instances mentioned above , as stated in DOLE Department Advisory
No.2, Series of 2009.
1. “Compressed work week.” This refers to one where the normal work week is reduced to less
than six days but the total number of work hours of 48 hours per week shall remain. The normal
work day is increased to more than eight hours but not to exceed 12 hours, without
corresponding overtime premium. The concept can be adjusted accordingly depending on the
normal work week of the company pursuant to the provisions of Department of Labor and
Employment Department Advisory 2, s. 2004 or the “Implementation of compressed work week
schemes.”
2. “Reduction of work days.” This arrangement refers to one where the normal work days per
week are reduced but should not last for more than six months.
3. “Rotation of workers.” This refers to one where the employees are rotated or alternatively
provided work within the work week.
4. “Forced leave,” where employees are required to go on leave for several days or weeks using
their leave credits if there are any.
5. “Broken time schedule,” refers to one where the work schedule is not continuous but the work
hours within the day or week remain.
6. “Flexi-holidays schedule” where the employees agree to avail the holidays at some other days
provided there is no diminution as a result of such arrangement.
Under these flexible work arrangements, the employers and the employees are encouraged to
explore alternative schemes under any agreement and company policy or practice in order to
cushion and mitigate the effect of the loss of income of the employees.
This issuance clarifies the enforcement policy of this Department on the working hours and
compensation of personnel employed by hospitals/clinics with a bed capacity of 100 or more and
those located in cities and municipalities with a population of one million or more.
Republic Act 5901 took effect on 21 June 1969 prescribes a 40-hour/5 day work week for
hospital/clinic personnel. At the same time, the Act prohibits the diminution of the compensation
of these workers who would suffer a reduction in their weekly wage by reason of the shortened
workweek prescribed by the Act. In effect, RA 5901 requires that the covered hospital workers
who used to work seven (7) days a week should be paid for such number of days for working
only 5 days or 40 hours a week.
The evident intention of RA 5901 is to reduce the number of hospital personnel, considering the
nature of their work, and at the same time guarantee the payment to them of a full weekly wage
for seven (7) days. This is quite clear in the Exemplary Note of RA 5901 which states:
As compared with the other employees and laborers, these hospital and health
clinic personnel are over-worked despite the fact that their duties are more
delicate in nature. If we offer them better working conditions, it is believed that
the "brain drain", that our country suffers nowadays as far as these personnel are
concerned will be considerably lessened. The fact that these hospitals and health
clinics personnel perform duties which are directly concerned with the health and
lives of our people does not mean that they should work for a longer period than
most employees and laborers. They are also entitled to as much rest as other
workers. Making them work longer than is necessary may endanger, rather than
protect the health of their patients. Besides, they are not receiving better pay than
the other workers. Therefore, it is just and fair that they may be made to enjoy the
privileges of equal working hours with other workers except those excepted by
law. (Sixth Congress of the Republic of the Philippines, Third Session, House of
Representatives, H. No. 16630)
The Labor Code in its Article 83 adopts and incorporates the basic provisions of RA 5901
and retains its spirit and intent which is to shorten the workweek of covered hospital personnel
and at the same time assure them of a full weekly wage.
Consistent with such spirit and intent, it is the position of the Department that personnel in
subject hospital and clinics are entitled to a full weekly wage for seven (7) days if they have
completed the 40-hour/5-day workweek in any given workweek.
All enforcement and adjudicatory agencies of this Department shall be guided by this issuance in
the disposition of cases involving the personnel of covered hospitals and clinics.
(Sgd.) FRANKLIN
M. DRILON
Secretary
If petitioners are entitled to two days off with pay, then there appears to be no sense at all why
Section 15 of the implementing rules grants additional compensation equivalent to the regular
rate plus at least twenty-five percent thereof for work performed on Sunday to health personnel,
or an "additional straight-time pay which must be equivalent at least to the regular rate" "[f]or
work performed in excess of forty hours a week.
A perusal of Republic Act No. 5901 reveals nothing therein that gives two days off with pay for
health personnel who complete a 40-hour work or 5-day workweek. In fact, the Explanatory
Note of House Bill No. 16630 (later passed into law as Republic Act No. 5901) explicitly states
that the bill's sole purpose is to shorten the working hours of health personnel and not to dole
out a two days off with pay.
20. Meal time not less than 20 mins. a) when compensable; b) when not compensable (a-
f)
2. Shortening of meal time to not less than 20 minutes, WHEN NOT COMPENSABLE.
The law allows a situation where the employees themselves request for the shortening of
meal period to not less than 20 minutes for the purpose of allowing them to leave work earlier
than the lapse of the eight hours required by law. This shortened period, however, shall not be
considered compensable working time provided the following conditions are complied with:
a. The employees voluntarily agree in writing to a shortened meal period of
thirty (30) minutes and are willing to waive the overtime pay for such
shortened meal period.
b. There should be no diminution in the benefits of the employees which they
receive prior to the effectivity of the shortened meal period;
c. The work of the employees does not involve strenuous physical exertion and
they are provided with adequate coffee breaks in the morning and afternoon.
d. The value of the benefits derived by the employees from the proposed work
arrangement is equal to or commensurate with the compensation due them for
the shortened meal as well as the overtime pay for 30 minutes as determined
by the employees concerned;
e. The overtime pay of the employees will become due and demandable if ever
they are permitted or made to work beyond 4:30 p.m.; and
f. The effectivity of the proposed working time arrangement shall be for a
temporary duration as determined by the Secretary of Labor and Employment.
a. For regular work in the night shift on an ordinary day, the night shift differential pay is plus 10%
of the basic hourly rate or a total of 110% of the basic hourly rate. Thus using as basis P382.00
which is the minimum daily wage rate of a private sector non-agricultural workers and employees
in the NCR, the night shift differential pay under this situation may be computed as follows:
Night shift differential pay for regular night shift work on an ordinary day
P382 + 10% of P382 = P382 + (0.10 x P382)
= 382 + P38.20
P420.20/day
Or
b. For regular work in the night shift on a rest day, the night shift differential pay is plus 10% of the
basic hourly rate on a rest day or a total of 110% of the regular hourly rate. Thus, using the same
P382.00 as basis, the night shift differential pay under this situation may be computed as follows:
Night shift differential pay for regular night shift work on a rest day:
(130% of P 382) + 10% of (130% of P382)
= (1.3 x P382) + 0.10 x (1.3 x P382)
= P496.60 + P49.66
= P546.26/day
Or
c. For regular work in the night shift on a special holiday or regular holiday, it is important to note
that since special holidays and regular holidays are calendar days (i.e., 24-hour period from 12
midnight to 12 midnight of the following day), the night shift is either cut-off at 12 midnight or
starts only at 12 midnight. Hence, the night shift differential pay for such days may be determined
by the hour on the basis of the hourly rate not the daily rate.
Thus, using the same P382.00 or the equivalent hourly rate of P47.75 (P382/8 hours) as
basis, the night shift differential pay may be computed as follows:
c. 2. On a regular holiday:
Night shift differential pay for regular night shift work on a regular holiday:
d. For overtime night shift work falling on an ordinary day, the overtime night shift differential pay
is plus 100% of 125% of basic hourly rate or a total of 110% of 125% of basic hourly rate. Thus,
using P382.00 or the hourly rate of P47.75 (P382/8 hours) as basis, the overtime night shift
differential pay under this situation may be computed as follows:
Overtime night shift differential pay for overtime night shift work on an ordinary day:
(125% of P47.75) + 10% of (125% of P47.75)
= (1.25 x P47.75) + 0.10 x (1.25 x P47.75)
=P59.69 + P5.97
= P65.66/hour
Or
e. For overtime night shift work falling on rest day, special holiday or regular holiday, the following
illustrations of computation may prove helpful (using the same basis as above, i.e., P382.00 or
P47.75 per hour):
Overtime night shift differential pay for overtime night shift work on a special holiday or
rest day:
130% x (130% of P47.75) + 10% of (130% of 130% of P47.75)
=1.3 x (1.3 x P47.75) + 0.10 x (1.3 x 1.3 x P47.75)
=P80.70 + P8.07
=P88.77/hour
Or
Overtime night shift differential pay for overtime night shift work on a regular holiday:
130% x (200% of P47.75) + 10% of (130% of 200% of P47.75)
=1.3 x (2.0 x P47.75) + 0.10 x (1.3 x 2.0 x P47.75)
=P124.15 + P12.42
=P136.57/hour
Or
Generally, the premium pay for work performed on rest days, special days, or regular
holidays is included as part of the regular rate of the employee in the computation of overtime
pay for the overtime work rendered on said days, especially if the employer pays only the
minimum rates prescribed by law. The employees and employer, however, may stipulate in their
collective agreement the payment for overtime work at rates higher than those provided by law.
a. Waiver
The right to claim overtime pay is not subject to waiver. Such right is governed by
law and not merely by the agreement of the parties. While rights may be waived, the
same must not be contrary to law, public order, public policy, morals, good customs or
prejudicial to a third person with a right recognized by law.
But if the waiver is done in exchange for and in consideration of certain valuable
privileges, among them that the value of said privileges did not compensate for such
work, such waiver may be considered valid.
Undertime work on any particular day shall not be offset by overtime work on any other
day. Permission given to the employee to go on leave on some other day of the week
shall not exempt the employer from paying the additional compensation required by law.
(Art. 88 LC)
When undertime is offset against the overtime, the employee is ‘made to pay’ twice for
his undertime hours. This is because the employee’s leave credits are reduced to the
extent of the undertime hours while he is made to pay for the undertime hours with work
beyond the regular working hours. Clearly, this is not a fair situation for the employee,
even when the undertime is his fault.
The proper approach should be to deduct the undertime hours from the available leave
credits of the employee and to pay the employee overtime for the extended hours of
work.
If the employee has consumed his leave credits, his undertime hours may be deducted
from his salary, but he should still be paid his overtime compensation for work performed
beyond his regular working hours. (NATIONAL WATERWORKS and SEWERAGE
AUTHORITY, vs. NWSA CONSOLIDATED UNIONS, ET AL.)
The employer shall determine and schedule the weekly rest day of the employees subject
to collective bargaining agreement and to such rules and regulations as the Secretary of
Labor and Employment may provide. However, the employer shall resoect the preference
of employees as to their weekly rest day when such preference is based on religious
grounds. (Art. 91 (b) LC)
28. Illustration on page 423 on rest day
The minimum statutory premium pay rates for the situations contemplated under Article
93 are as follows:
a. For work performed on rest days or on special holidays, the premium pay is plus
30% of the daily wage rate of 100% or a total of 130%. Thus, using as basis Php.382.00 which is
the minimum daily wage rate of private sector non-agricultural workers and employeesin the
National capital region, as mandated by Wage Order No. NCR-14 effevtive on June 14, 2008:
For work performed on rest days or on special holidays - plus 30% of the daily
basic rate of 100% or a total of 130%:
30% of P382 = 0.30 x P382.00 = P114.60
P382.00 + P114.60 = P496.60
or
130% of P382 = 1.3 x P382 = P496.60
b. For work performed on a rest day which is also a special holiday, the premium pay
is plus 50% of the daily wage rate at 100% or a total of 15%. Thus, using the same P382.00 as
basis.
For work performed on a rest day which is also a special day – plus 50% of the daily
basic rate of 100% or a total of 150%:
50% of P382.00 = 0.5 x P382.00 = P191.00
P382.00 + P191.00 = P573.00
or
150% of Php.382.00 = 1.5 x Php382.00 = Php 573.00
Article 3 of the Labor Code reflects certain basic principles enshrined in the constitution aimed
at protecting the interest of labor, promoting full employment and equal work opportunities
irrespective of sex, race, or creed. Substantially, it was based on the provisions of Section 9,
Article II of the 1973 Constitution.
Section 3, Article XIII, 1987 Constitution:
“The State shall afford full protection to labor, local and overseas, organized and unorganized,
and promote full employment and equality of employment opportunities for all.
It shall guarantee the rights of all workers to self-organization, collective bargaining and
negotiations, and peaceful concerted activities, including the right to strike in accordance with
law. They shall be entitled to security of tenure, humane conditions of work, and a living wage.
They shall also participate in policy and decision-making processes affecting their rights and
benefits as may be provided by law.
The State shall promote the principle of shared responsibility between workers and employers
and the preferential use of voluntary modes in settling disputes, including conciliation, and shall
enforce their mutual compliance therewith to foster industrial peace.
The State shall regulate the relations between workers and employers, recognizing the right of
labor to its just share in the fruits of production and the right of enterprises to reasonable returns
to investments, and to expansion and growth.”
Other Constitutional Provisions related to Labor Law:
a. “ The State shall promote a just and dynamic social order that will ensure the prosperity
and independence of the nation and free the people from poverty through policies that
provide adequate social services, promote full employment, a rising standard of living,
and an improved quality of life for all.” (Section 9, Article II, 1987 Constitution)
b. “The State affirms labor as a primary social economic force. It shall protect the rights of
workers and promote their welfare.” (Section 18, Article II, 1987 Constitution)
c. “The right of the people, including those employed in the public and private sectors, to
form unions, associations, or societies for purposes not contrary to law shall not be
abridged.” (Section 8, Article III, 1987 Constitution)
d. “The State affirms labor as a primary social economic force. It shall protect the rights of
workers and promote their welfare.” (Section 18 [2], Article III [Bill of Rights], 1987
Constitution)
e. Section 5, Article VI [The Legislative Department] provides that along with other sectors,
labor is entitled to seats allotted to party-list representatives for three consecutive terms
after the ratification of the Constitution.
f. “No officer or employee of the civil service shall be removed or suspended except for
cause provided by law. (5) The right to self-organization shall not be denied to
government employees. (6) Temporary employees of the Government shall be given such
protection as may be provided by law.” (Section 2 [3], [5] and [6] of Article IX [B], 1987
Constitution).
g. “The Congress shall provide for the standardization of compensation of government
officials and employees, including those in government-owned or controlled corporations
with original charters, taking into account the nature of the responsibilities pertaining to,
and the qualifications required for, their positions.” (Section 5, Art. IX (B), 1987
Constitution)
h. “The goals of the national economy are a more equitable distribution of opportunities,
income, and wealth; a sustained increase in the amount of goods and services produced
by the nation for the benefit of the people; and an expanding productivity as the key to
raising the quality of life for all, especially the underprivileged.
“The State shall promote industrialization and full employment based on sound
agricultural development and agrarian reform, through industries that make full of
efficient use of human and natural resources, and which are competitive in both domestic
and foreign markets. However, the State shall protect Filipino enterprises against unfair
foreign competition and trade practices.
“In the pursuit of these goals, all sectors of the economy and all region s of the country
shall be given optimum opportunity to develop. Private enterprises, including
corporations, cooperatives, and similar collective organizations, shall be encouraged to
broaden the base of their ownership.” (Section 1, Article XII, 1987 Constitution)
i. “The State shall promote the preferential use of Filipino labor, domestic materials and
locally produced goods, and adopt measures that help make them competitive.” (Section
12, Article XII, 1987 Constitution)
j. “The sustained development of a reservoir of national talents consisting of Filipino
scientists, entrepreneurs, professionals, managers, high-level technical manpower and
skilled workers and craftsmen in all fields shall be promoted by the State. The State shall
encourage appropriate technology and regulate its transfer for the national benefit. The
practice of all professions in the Philippines shall be limited to Filipino citizens, save in
cases prescribed by law.” (Section 14, Article XII, 1987 Constitution)
k. “The Congress shall give highest priority to the enactment of measures that protect and
enhance the right of all the people to human dignity, reduce social, economic, and
political inequalities, and remove cultural inequities by equitably diffusing wealth and
political power for the common good.” (Section 1, Article XIII, 1987 Constitution)
l. “The promotion of social justice shall include the commitment to create economic
opportunities based on freedom of initiative and self-reliance.”(Section 2, Article XIII,
1987 Constitution)
m. “Section 4. The State shall, by law, undertake an agrarian reform program founded on the
right of farmers and regular farmworkers who are landless, to own directly or collectively
the lands they till or, in the case of other farmworkers, to receive a just share of the fruits
thereof. To this end, the State shall encourage and undertake the just distribution of all
agricultural lands, subject to such priorities and reasonable retention limits as the
Congress may prescribe, taking into account ecological, developmental, or equity
considerations, and subject to the payment of just compensation.
“Section 5. The State shall recognize the right of farmers, farmworkers, and landowners,
as well as cooperatives, and other independent farmers' organizations to participate in the
planning, organization, and management of the program, and shall provide support to
agriculture through appropriate technology and research, and adequate financial,
production, marketing, and other support services.
“Section 6. The State shall apply the principles of agrarian reform or stewardship,
whenever applicable in accordance with law, in the disposition or utilization of other
natural resources, including lands of the public domain under lease or concession suitable
to agriculture, subject to prior rights, homestead rights of small settlers, and the rights of
indigenous communities to their ancestral lands. The State may resettle landless farmers
and farmworkers in its own agricultural estates which shall be distributed to them in the
manner provided by law.
“Section 7. The State shall protect the rights of subsistence fishermen, especially of local
communities, to the preferential use of the communal marine and fishing resources, both
inland and offshore. It shall provide support to such fishermen through appropriate
technology and research, adequate financial, production, and marketing assistance, and
other services. The State shall also protect, develop, and conserve such resources. The
protection shall extend to offshore fishing grounds of subsistence fishermen against
foreign intrusion. Fishworkers shall receive a just share from their labor in the utilization
of marine and fishing resources.
“Section 8. The State shall provide incentives to landowners to invest the proceeds of the
agrarian reform program to promote industrialization, employment creation, and
privatization of public sector enterprises. Financial instruments used as payment for their
lands shall be honored as equity in enterprises of their choice.” (Sections 4, 5, 6, 7 & 8,
Article XIII, 1987 Constitution)
n. “The State shall, by law, and for the common good, undertake, in cooperation with the
private sector, a continuing program of urban land reform and housing which will make
available at affordable cost, decent housing and basic services to under-privileged and
homeless citizens in urban centers and resettlement areas. It shall also promote adequate
employment opportunities to such citizens. In the implementation of such program the
State shall respect the rights of small property owners.” (Section 9, Article XIII, 1987
Constitution)
o. “The State shall protect working women by providing safe and healthful working
conditions, taking into account their maternal functions, and such facilities and
opportunities that will enhance their welfare and enable them to realize their full potential
in the service of the nation.” (Section 14, Article XIII, 1987 Constitution)
p. “The State shall, provide adult citizens, the disabled, and out-of-school youth with
training in civics, vocational efficiency, and other skills.” (Section 2 [5], Article XIV,
1987 Constitution)
q. “The State shall, from time to time, review to increase the pensions and other benefits
due to retirees of both the government and the private sectors.” (Section 8, Article XVI,
1987 Constitution)
Both Article 1702 of the Civil Code and Article 4 of the Labor Code speak on the rule on
interpretation and construction of law and labor contracts.
Art 1702 of the Civil Code provides:
“Article 1702. In case of doubt, all labor legislation and all labor contracts shall be
construed in favor of the safety and decent living for the laborer. “
This rule applies not only in the interpretation of the provisions of the Labor Code but also of its
Implementing Rules. It applies to all workers - whether in the government or in the private
sector- in order to give flesh and vigor to the pro-poor and pro-labor provisions of the
Constitution.
It is in ·keeping with the constitutional. mandate of promoting social justice and affording
protection to labor. Thus, when conflicting interests of labor and capital are to be weighed on the
scales of social justice, the heavier influence of the latter should be counter-balanced by
sympathy and compassion the law must accord the underprivileged worker.
Compared to the provision of Article 4 of the Labor Code, it appears that Article 1702 is
broader in scope in that it pertains to "all labor legislation and all labor contracts" and not
merely to the "implementation and interpretation of the provisions of the Labor Code, including
its implementing rules and regulations," as enunciated in Article 4. Moreover, the Civil Code
mentions a standard which would justify the invocation of the rule of interpretation in favor of
labor in that the same should be done "in favor of the safety and decent living for the laborer."
As stated, laws in the Philippines take effect after 15 days following the completion of their
publication either in the Official Gazette or in a newspaper of general circulation in the
Philippines.
However, the law may provide that it is effective immediately upon publication, or that will be
effective on a particular date.
As for the Labor Code,
ART. 2. Date of effectivity. - This Code shall take effect six (6) months after its promulgation.
Article 6 of Labor Code. Applicability. All rights and 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. (As amended by Presidential Decree No. 570-A, November 1,
1974)
Exceptions:
Employees not covered:
a. Government employees;
b. Managerial employees;
c. Other officers or members of a managerial staff;
d. Domestic servants and persons in the personal service of another;
e. Workers paid by results;
f. Non-agricultural field personnel; and
g. Members of the family of the employer.
"Wage" paid to any employee shall mean the remuneration or earnings, however designated,
capable of being expressed in terms of money, whether fixed or ascertained on a time, task,
piece, commission basis, or other method of calculating the same, which is payable by an
employer to an employee under a written or unwritten contract of employment for work done
or to be done or for services rendered or to be rendered, and includes the fair and reasonable
value, as determined by the Secretary of Labor,
3) (3) the power of dismissal; -It Must be done for authorized or just causes only. An
employer shall observe procedural due process before terminating one’s employment.
4) the power to control the employee's conduct, or the so-called "control test."
The employer reserves the right to control not only the end achieved but also the manner
and means used to achieve that end.
While the control test may be the most important index to determine the existence of the employer-
employee relationship, however, in certain cases, the control test is not sufficient to give a complete
picture of the relationship between the parties.
Thus, the Supreme Court in Francisco v. NLRC, enunciated that the better approach would,
therefore, be to adopt a two-tiered test involving:
1. Control Test – It is the putative employer’s power to control the employee with respect to the
means and methods by which the work is to be accomplished
2. Economic Reality Test – It is the underlying economic realities of the activity or relationship.
Here, the proper standard of economic dependence is whether the worker is dependent on the
alleged employer for his continued employment in that line of business.
This is especially appropriate in cases where there is no written agreement or terms of reference
to base the relationship on and due to the complexity of the relationship based on the various positions
and responsibilities given to the worker over the period of the latter’s employment.
Thus, the determination of the relationship between the employer and the employee depends upon
the circumstances of the whole economic activity
B. Authorized Causes
Resignation
General rule: Written notice to resign submitted one (1) month in advance
Exception: No notice required for any of the following:
(1) Serious insult by the employer or his representative on the honor and
person of the employee;
(2) Inhuman and unbearable treatment accorded the employee by the employer or his
representative;
(3) Commission of a crime or offense by the employer or his representative against the
person of the employee or any of the immediate members of his family; and
(4) Other causes analogous to any of the foregoing.
44. Elements of recruitment & placement of workers (3)
Private Employment Agency refers to any person or entity engaged in recruitment and placement
of workers for a fee which is charged, directly or indirectly, from the workers or employers or
both. Private Recruitment Entity refers Any person or association engaged in the recruitment and
placement of workers, locally or overseas, without charging, directly or indirectly, any fee.
Regular or documented migrant workers are those employed in another country with
the requisite legal documents, like valid passports and work permits. Their rights are
protected under international law and their safety and well-being protected from any
exploitation or abuse.
Undocumented workers are foreign-born workers who lack the legal documentation
required to work in the country in which they live. These workers, like others, working
and living in a country illegally, are often referred to as “illegal aliens,” or “illegal
immigrants.” In the case of Filipino overseas workers, these are Filipinos who are not
properly documented or without valid residence or work permits, or who may be
overstaying their visa. Usually, the rights of these undocumented worker are unprotected
and prone to abuse, their safety and well-being are not guarded from any exploitation.
48. What is PESO (RA 8759)
Foreign employer shall assume joint and solidary liability with the local employer for all claims
and liabilities which may arise in connection with the implementation of contract, including but
not limitied to payment of wages, death and disability compensation and repatriation. the purpose
of solidary liability is to assure aggrieved workers of immediate and sufficient payment of what is
due to them (Osm Shipping Inc. v. Nlrc)
A) In case a request for repatriation is filed by an Overseas Filipino Worker at POLO, the Labor
Attaché and/or Welfare Officer shall evaluate the request. Should there be a need for the
immediate repatriation of the Overseas Filipino Worker, the Labor Attaché shall notify the
principal/employer about the request for repatriation. If the principal/employer fails or refuses to
provide for the ticket or costs thereof, the Labor Attaché shall notify the OWWA and the POEA
simultaneously of such need to repatriate. In case the request is received or filed at the POEA,
the POEA shall immediately notify the principal/employer, the licensed recruitment agency, and
the POLO, of such request.
B) The POEA shall immediately issue a notice requiring the licensed recruitment agency to
provide, within forty eight (48) hours from such notice, the plane ticket or the prepaid ticket
advice (PTA) to the POLO or Philippine Embassy. The licensed recruitment agency shall notify
the POEA of such compliance, which shall then inform OWWA of the action of the licensed
recruitment agency. If the licensed recruitment agency fails to provide the ticket or PTA within
forty-eight (48) hours from receipt of the notice, the Administration shall suspend the
documentary processing of the licensed recruitment agency or impose such other sanctions as it
may deem necessary.
C) In case the repatriation of the Overseas Filipino Worker is dependent upon the issuance of an
exit visa/clearance, the principal/employer shall have fifteen (15) days from notice to secure such
exit visa. The licensed recruitment agency which recruited and/or deployed said worker shall
exert earnest efforts in coordinating with the principal/employer to ensure the issuance of said
visa.
D) When the repatriation is dependent upon the issuance of an exit visa and the
principal/employer fails to secure the exit visa within a period of fifteen (15) days from receipt of
the POEA notice, the Administration shall suspend the principal/employer from participating in
the overseas employment program. In the same manner, where the licensed recruitment agency,
despite issuing the PTA for the repatriation of the Overseas Filipino Worker, does not exert
earnest efforts in coordinating with the principal/employer to ensure the issuance of said visa, the
Administration shall suspend the documentary processing of the licensed recruitment agency.
E) Upon request, the Administrator may issue an Order lifting the suspension of documentary
processing only upon compliance with the directive for which the Order of suspension of
documentary processing was issued.
F) When those primarily responsible for the repatriation fail to fulfill their obligations, the
Administration shall notify OWWA to advance the costs of repatriation with right of
reimbursement against the licensed recruitment agency or principal/employer. The OWWA shall
notify the POEA of the arrival of the repatriated Overseas Filipino Worker. It shall likewise
notify the agency that has the obligation to repatriate the Overseas Filipino Worker and demand
payment, within fifteen (15) days from notice, of the costs it has advanced for the repatriation of
the Overseas Filipino Worker, including legal interest in case of default. In case the licensed
recruitment agency fails to reimburse the OWWA, the latter may recommend to the POEA the
imposition of suspension of documentary processing. The POEA will direct the licensed
recruitment agency to settle its obligation with the OWWA within ten (10) days from notice.
Noncompliance with the directive of the POEA shall result in the suspension of documentary
processing. 63 The suspension of documentary processing imposed against the licensed
recruitment agency and the principal/employer shall be lifted by the Administration only upon
clearance by the OWWA
SEC. 4. Deployment of Migrant Workers – The State shall deploy overseas Filipino workers only
in countries where the rights of Filipino migrant workers are protected. The government
recognizes any of the following as guarantee on the part of the receiving country for the
protection and the rights of overseas Filipino workers:
(a) It has existing labor and social laws protecting the rights of migrant workers;
(d) It is taking positive, concrete measures to protect the rights of migrant workers.
2. Coyoca v. NLRC (G. R. No. 113658, March 31, 1995, 240 SCRA 190, 194)
- Employment of Filipino Seamen is governed by the Rules and Regulations of the
POEA. The Standard Employment Contract governing the Employment of All
Filipino Seamen on Board Ocean-Going Vessels of the POEA, particularly Part 1,
Sec. C which provides that contract of Seamen shall be for a fixed period, shall not be
longer than twelve (12) months;
3. Millares v. NLRC (G. R. No. 110524, July 29, 2002, 385 SCRA 306)
- OFW’s cannot acquire regular employment, the fact that employment of seafarers is
governed by the contracts they sign everytime they are re-hired and their employment
is terminated when the contract expires;
- Employment is fixed for a certain period of time;
- They fall under the exception of Art. 280 whose employment has been fixed for a
specific project or undertaking the completion or termination of which has been
determined at the time of engagement of the employee or where the work or service
to be performed is seasonal in the nature and the employment is for the duration of
the season.
-
b. Indefinite Period of Employment of OFW’s held NOT VALID
Pentagon international Shipping, Inc. v Adelantar (G. R. No. 157373, July 27, 2004)
- Even if the employment contract of an OFW provides for an unlimited period, it is
not valid as it contravenes the explicit provision of the POEA Rules and Regulations
on fixed-period employment
-
c. OFW’s do not become regular employees by reason of nature of work
An OFW cannot be considered a regular employee by reason of the fact that the
work he performs is usually necessary and desirable in the usual business or trade of the
employer.
1. Millares v. NLRC (G. R. No. 110524, July 29, 2002, 385 SCRA 306)
4. Petitioners Claim: they be considered as regular employees since they are performing
useful and desirable works and that they have rendered 20 years of service; in Brent
School Inc. v Zamora (G. R. No. 48494, February 5, 1990, 181 SCRA 702) Ruling, there
are certain forms of employment which also require the performance of usual and
desirable functions and which exceed one year but do not necessarily attain regular
employment status; OFWs and seafarers fall under this type of employment which are
governed by mutual agreement of the parties.
d. Regular employment does not result from the series of re-hiring of OFWs
- Gu-Miro v. Adorable (G. R. No. 160952, August 20, 2004); continued re-hiring by the
company of the OFW to serve as Radio Officer on board the employer’s different vessels
should be interpreted not as a basis of regularization but rather as a series of contract
renewals.
e. Unique cases where OFWs were declared regular employees
ATCI Overseas Corp. v CA (G. R. No. 143949, August 9, 2001); OFWs may attain
regularity of employment. Here the Filipino doctors were hired by the Ministry of public
health of Kuwait for a period of two years but were summarily terminated after 2 months
on the ground that they are physically unfit for the job. After seven months they had
ceased to work, they were repatriated to the Philippines. They claimed that they are
probationary employees at the time of their termination. Supreme Court said they are
regular employees because of the following reasons:
1. there is nothing in the record that shows and proves that they are probationary
employees at the time they were dismissed from employment;
2. there is no stipulation included in the employment contract and Memorandum of
Understanding of the petitioner and the Ministry providing for a probationary period;
3. there’s no finding of probationary employment in the decisions of POEA, NLRC and
CA;
4. petitioners were not apprised of the fact that they were to be placed on a probationary
period;
(this decision was reversed: OFWs can never become regular employees as their
engagement is required under the law to be on a fixed-term basis, Millares v. NLRC
GR No. 110524)
F . The fixed –period employment of OFWs not discriminatory
- not discriminatory against them nor does it favor foreign employers (particularly
seafarers); seafarers nature of employment are peculiar and unique, they cannot stay
for a long and indefinite period of time at sea; national, cultural and lingual diversity
necessitates the limitation of its period.
- The Agabon v. NLRC Case: the dismissal for a just cause but without due process is
not illegal or ineffectual, but legal; however, the employer SHOULD INDEMNIFY THE
EMPLOYEE WITH NOMINAL DAMAGES FOR NON-COMPLIANCE WITH
STATUTORY DUE PROCESS.
a) The reliefs under Art. 279 of the Labor Code are not available to OFWs.
- Any and all claims arising from the employment of OFWs, including those for death
or illness compensations, are not rooted from the provisions of the Labor Code.
- It is Section 10 of RA No. 8042 (Migrant Workers and Overseas Filipinos Act of
1995) and not Art. 279 of the Labor Code, which is appropriate legal basis for such
claims.
- The remedies provided for under Art. 279 such as reinstatement or separation pay in
lieu of reinstatement or full backwages, are not available to OFWs. This is as it
should be since OFWs are contractual employees whose rights and obligations are
governed primarily by the POEA Standard Employment Contract (POEA-SEC), the
Rules and Regulations Governing Overseas Employment and more importantly, by
said RA no. 8042.
b) A validly dismissed OFW is not entitled to his salary for the unexpired portion of his
employment contract.
- However, if he is dismissed without observance of procedural due process, he is
entitled to an indemnity I the form of nominal damages.
c) How to reckon the monetary awards to OFWs illegally dismissed prior to the
effectivity of RA 8042
- Effectivity of RA 8042 is on August 25, 1995 and approved on June 7, 1995
- Entitled to the payment of their salaries corresponding to the unexpired portion of
their fix-term contract even without the qualification now found in Section 10 of said
law.
d) Qualification in par.5, Section 10 of RA 8042 declared unconstitutional (Serrano
Doctrine)
- In case of termination of overseas employment without just, valid or authorized cause
as defined by law or contract, the workers shall be entitled to the full reimbursement
of his placement fee with interest of twelve percent (12%) per annum, plus his
salaries for the unexpired portion of his employment contract or for three (3) months
for every year of the unexpired term, whichever is less.
- The subject clause “or for three (3) months for every year of the unexpired term,
whichever is less” is declared unconstitutional for being discriminatory, among other
significant reasons cited therein. Consequent to this ruling, illegally dismissed OFWs
are now entitled to all the salaries for the entire unexpired portion of their
employment contracts, irrespective of the stipulated term or duration thereof. (In
other words, the SC reverted to the old rule prior to effectivity of RA No. 8042)
- The SC ruled concluded that the subject clause contains a suspect classification in
that, in the computation of the monetary benefits of fixed term employees who are
illegally discharged, it imposes a 3-month cap on the claim of OFWs with an
unexpired portion of one year or more in their contracts, but none on the claims of
OFWs or local workers with fixed-term employment. The subject clause singles out
one classification of OFWs and burdens it with a peculiar disadvantage.
e) Monetary award to OFW is not in the nature of separation pay or backwages but a
form of indemnity
- The award of salaries for the unexpired portion of an OFW’s employment contract is
not an award of backwages or separation pay but a form of indemnity for the OFW
who was illegally dismissed.
f) Only salaries are to be included in the computation of the amount due for the
unexpired portion of the contracts
- Allowances are excluded. There is no basis in including the OFW’s living allowance
as part of the three months salary to which he is entitled under Section 10 of RA
8042.
- There is likewise no basis to include overtime, holiday and leave pay in the said
computation.
g) Entitlement to overtime pay of OFW
- The criterion in determining whether or not sailors are entitled to overtime pay is not
whether they are on board and cannot leave ship beyond regular 8 working hours a day
but whether they actually rendered service in excess of said number of hours.
h) Reimbursement of placement fee included in the monetary award to an OFW
- An illegally dismissed OFW is entitled to the full reimbursement of the of his
placement fee with 12% interest per annum.
i) Costs of repatriation and transport of personal belongings should be included in the
monetary award to an illegally dismissed OFW
- Under Section 15 of RA 8042, the repatriation of OFW and the transport of his
personal belongings are the primary responsibilities of the agency which recruited or
deployed him. All the costs attendant thereto should be borne by the agency
concerned and/or its principal.
j) Right to recover cost of repatriation from OFW’s wages
- The right of the employer to recover cost of repatriation from the OFW’s wages an
earnings hinges on whether the OFW was legally dismissed or not. The right exists if
OFW is validly discharged for disciplinary measures.
k) Effect of Unauthorized substitution or alteration of POEA-approved employment
contract
- RA 8042 explicitly prohibits the substitution or alteration to the prejudice of the
worker, of employment contracts already approved and verified by the POEA from
the time of the actual signing thereof by the parties up to and including the period of
their expiration without the approval of the POEA.
56. Indemnity for OFWs not separation pay or backwages
A seafarer is not a regular employee as defined in Article 280 of the Labor Code. Hence, he is
not entitled to full backwages and separation pay in lieu of reinstatement as provided in Article
279 of the Labor Code. Seafarers are contractual employees whose rights and obligations are
governed primarily by the POEA Standard Employment Contract for Filipino Seamen, the Rules
and Regulations Governing Overseas Employment, and, more importantly, by Republic Act
(R.A.) No. 8042, or the Migrant Workers and Overseas Filipinos Act of 1995. While the POEA
Standard Employment Contract for Filipino Seamen and the Rules and Regulations Governing
Overseas Employment do not provide for the award of separation or termination pay, Section 10
of R.A. 8042 provides for the award of money claims in cases of illegal dismissals.
The award of salaries for the unexpired portion of his employment contract or for three (3)
months for every year of the unexpired term, whichever is less, is not an award of backwages or
separation pay, but a form of indemnity for the worker who was illegally dismissed. The Labor
Arbiter may have mislabeled it as separation pay, nonetheless, the award was made in
conformity with law.
Also, in the case of ATCI Overseas Corporation v. CA, [G.R. No. 143949, August 9,
2001, 414 Phil. 883, 893], the award of attorney’s fees equivalent to ten percent (10%) of the
total award was held legally and morally justified as the OFWs were compelled to litigate and
thus incur expenses to protect their rights and interest.
However, in Acuña v. Hon. CA, [G.R. No. 159832, May 5, 2006], petitioners alleged that
they suffered humiliation, sleepless nights and mental anguish, thinking how they would pay the
money they borrowed for their placement fees. The Supreme Court, however, did not consider
this allegation sufficient to merit the award of moral damages, absent any evidence to prove bad
faith, fraud or ill motive on the part of private respondents. Consequently, without the award of
moral damages, there can be no award of exemplary damages, nor attorney’s fees.
Where the contract of a Filipino seaman provides that the workmen’s compensation
benefit shall be computed on the basis of whichever is greater between Philippine law or the law
of the registry of the vessel, it is correct to resolve the award based on the law of registry of the
vessel providing greater benefit. [Principe v. Philippine-Singapore Transport Service, Inc., G.R.
No. 80918, Aug. 16, 1989].
The standard contract of employment for Filipino seamen allows the payment of death
benefit pension, funeral benefit and burial gratuity to the private respondent-worker. [Eastern
Shipping Lines, Inc. v. POEA, G.R. No. L-76633, October 18, 1988].
The death of a seaman during the term of employment makes the employer liable to his
heirs for death compensation benefits. Once it is established that the seaman died during the
effectivity of his employment contract, the employer is liable. However, if the seaman dies after
the termination of his contract of employment, his beneficiaries are not entitled to death benefits.
[Hermogenes v. Osco Shipping Services, Inc., G.R. No. 141505, August 28, 2005].
Thus, in Prudential Shipping and Management Corp. v. Sta. Rita [G.R. No. 166580,
February 8, 2007], Virgilio, respondent’s deceased husband, was repatriated for medical
reasons. He arrived in the Philippines on March 8, 2000 for surgical repair after he was
diagnosed with umbilical hernia. Virgilio’s employment was thus terminated upon his
repatriation on March 8, 2000. Consequently, when he died on March 18, 2001, his
employment with petitioners had long been terminated. Hence, respondents are not
entitled to receive death benefits under the Contract from petitioners.
In Mabuhay Shipping Services, Inc., v. NLRC, [G.R. No. 94167, January 21, 1991], the
Supreme Court held that the death of a seaman during the term of employment does not
automatically give rise to compensation. The circumstances which led to the death as well as the
provisions of the contract, and the right and obligation of the employer and the seaman must be
taken into consideration, in consonance with the due process and equal protection clauses of the
Constitution.
Pursuant to Sec. 20 (A) of the 2010 POEA-SEC, the employer is liable for disability
benefits when the seafarer suffers from work-related injury or illness during the term of
his contract. In this regard, Sec. 20 (E) thereof mandates the seafarer to disclose all pre-
existing illnesses or conditions in his PEME; failing in which shall disqualify him from
receiving disability compensation. Sec. 20 (E) “A seafarer who knowlingly conceals a
pre-existing illness or condition in the Pre-Employment Medical Examination (PEME)
shall be liable for misrepresentation and shall be disqualified from any compensation and
benefits. This is likewise a just cause for termination of employment and imposition of
appropriate administrative sanctions.”
In Section 7 of Republic Act No. 10022 amending Section 10 of Republic Act No. 8042 states
that:
"In case of termination of overseas employment without just, valid or authorized cause
as defined by law or contract, or any unauthorized deductions from the migrant
worker's salary, the worker shall be entitled to the full reimbursement if (of) his
placement fee and the deductions made with interest at twelve percent (12%) per
annum, plus his salaries for the unexpired portion of his employment contract or for
three (3) months for every year of the unexpired term, whichever is less.
However, the clause, "or for three (3) months for every year of the unexpired term,
whichever is less" in Section 7 of Republic Act No. 10022 amending Section 10 of
Republic Act No. 8042 is declared unconstitutional and, therefore, null and void (Sameer v
Cabiles GR170139, Aug 5, 2014).
Additionally, the Supreme Court in the case of Antonio M. Serrano vs. Gallant Maritime
Services, Inc. and Marlow Navigation Co., Inc. (G.R. No. 167614, March 24, 2009) has brought
clarity and definitiveness to the issue of entitlement to benefits of a seafarer in case he is illegally
dismissed. It made certain that the seafarer should receive his salaries for the entire unexpired
portion of his contract, and not just for three months. With the above ruling, the Supreme Court
has reverted to the old, simple, and logical manner by which claims of illegally dismissed OFWs
are computed, i.e., their basic salaries multiplied by the entire unexpired portions of their
contracts.
62. Migrant workers and other OFW Resource Center services (a-k)
Pursuant to Sections 19 and 23 of the Migrant Workers and Overseas Filipinos Act of 1995, a
Migrant Workers and Overseas Filipinos Resource Center (Filipinos Resource Center) shall be
established in countries where there are at least 20,000 migrant workers. Where feasible it shall
be established within the premises of the Embassy.
When the Filipinos Resource Center is established out side the premises of the Embassy, the
Department of Foreign Affairs shall exert its best effort to secure appropriate accreditation from
the host government in accordance with applicable laws and practices.
Services
The Filipinos Resource Center shall provide the following services:
Section 18. Section 25 of Republic Act No. 8042, as amended, is hereby amended to read as
follows:
"SEC. 25. Legal Assistance Fund. - There is hereby established a legal assistance fund for
migrant workers, hereinafter referred to as the Legal Assistance Fund, in the amount of one
hundred million pesos (P100,000,000.00) to be constituted from the following sources.
(1)"Fifty million pesos (50,000,000.00) from the Contingency Fund of the President;
(2)"Thirty million pesos (30,000,000.00) from the Contingency Fund of the President Social
Fund;
(3)"Twenty million pesos (20,000,000.00) from the Welfare Fund for Overseas Workers
established under Letter of Instructions No. 537 as amended by Presidential Decree Nos. 1694
and 1809; and
(4)"An amount appropriated in the annual General Appropriations Act (GAA) which shall not be
less than Thirty million pesos (30,000,000.00) per year: Provided, that the balance of the Legal
Assistance Fund (LAF) including the amount appropriated for the year shall not be less than One
hundred million pesos (P100,000,000.00) : Provided, further, That the fund shall be treated as a
special fund in the National Treasury and its balance, including the amount appropriated in the
GAA, which shall form part of the Fund, shall not revert to the General Fund.
" Any balances of existing funds which have been set aside by the government specifically as
legal assistance or defense fund to help migrant workers shall upon effectivity of this Act, be
turned over to, and form part of, the Fund created under this Act."
64. Mandatory obligation to remit foreign exchange earnings (a-u)
ART. 22. Mandatory remittance of foreign exchange earnings. - It shall be mandatory for all
Filipino workers abroad to remit a portion of their foreign exchange earnings to their families,
dependents, and/or beneficiaries in the country in accordance with rules and regulations
prescribed by the Secretary of Labor.
It is thus mandatory for a worker or seaman to remit regularly a portion of his foreign exchange
earnings abroad to his beneficiary through the Philippine banking system. The obligation to remit
is required to be stipulated in the following documents:
5. Application for accreditation of a principal or project (Section 2, Rule XIII, Book I, Rules
to Implement the Labor Code)
3. Doctors, engineers, teachers, nurses, and other professional workers whose employment
contracts provide for free board and lodging facilities; Seventy percent (70%) of the basic
salary;
4. All other professionals whose employment contracts do not provide free board and
lodging facilities: Fifty percent (50%) of the basic salary;
5. Domestic and other service workers: Fifty percent (50%) of the basic salary;
6. All other workers not falling under the afore-mentioned categories: Fifty percent (50%)of
the basic salary. (Section 2, Executive Order No. 857)
Performing artists overseas are required to remit at least fifty percent (50%) of their monthly
salary to the Philippines. (Section B [7], DOLE Order No. 35, Series of 1994)
PART V
EMPLOYMENT STANDARDS
RULE I
The Administration may formulate country- or skills- specific policies and guidelines based on
the following:
a. Existing labor and social laws of the host country;
b. Relevant bilateral and multilateral agreements or arrangements with the host country;
and
c. Prevailing conditions/realities in the market.
SECTION 136. Freedom to Stipulate. – Parties to overseas employment contracts are allowed to
stipulate other terms and conditions and other benefits. These benefits should be over and above
the minimum requirements. Said benefits shall not be contrary to law, public policy and morals.
SECTION 137. Disclosure of Terms and Conditions of Employment. – The licensed recruitment
agency shall, prior to the signing of the employment contracts, inform the Overseas Filipino
Workers of their rights and obligations, and disclose the full terms and conditions of
employment. The licensed recruitment agency shall likewise ensure that the Overseas Filipino
Worker is provided with a copy of the POEA-approved contract, to give the Overseas Filipino
Worker ample opportunity to examine the same.
(According to the 2016 Revised POEA Rules and Regulations Governing the Recruitment and
Employment of Seafarers, Issue on February 26, 2016)
PART IV
EMPLOYMENT STANDARDS
RULE I
SECTION 116. Freedom to Stipulate. – Parties to the individual employment contract are
allowed to stipulate and mutually agree to other terms and conditions over and above the
minimum standards; provided, that the stipulations are mutually beneficial to both parties and are
not contrary to law, public policy and morals.
SECTION 117. Disclosure of Terms and Conditions of Employment. – The licensed manning
agency and the seafarer shall fully disclose all relevant information in relation to the recruitment
and employment of the seafarer.
- In another case (Vir-Jen Shipping and Marine Services v. NLRC), an issue was raised by
the movants on whether or not the seamen violated their contracts of employment when
they demanded 50 % increase in salaries and benefits. The Supreme Court ruled that the
form contracts approved by the National Seamen Board (now POEA) are designed to
protect Filipinos, not foreign shipowners who can take care of themselves.
The standard forms embody the basic minimum which must be incorporated as parts of
the employment contracts (Sec. 15 Rule V, Rules and Regulations Implementing the
Labor Code). They are not collective bargaining agreements or immutable contracts
which the parties cannot improve upon or modify in the course of an agrred peril of time.
To state therefore, that the affected seamen cannot petition the employer for higher
salaries during the 12 months duration of the contract runs counter the established
principles of labor legislation. The National Labor Relations Commission, as the
appellate tribunal from the decisions of the National Seamen Board, correctly ruled that
the seamen did not violate their contracts to warrant their dismissal.
In Suzara v. NLRC, the SC ruled that the act of the dismissed seamen in asking for
increases in their salaries does not constitute a breach of their employment contracts.
Art. 34. Prohibited practices. It shall be unlawful for any individual, entity, licensee, or holder
of authority:
a. To charge or accept, directly or indirectly, any amount greater than that specified in the
schedule of allowable fees prescribed by the Secretary of Labor, or to make a worker pay
any amount greater than that actually received by him as a loan or advance;
b. To furnish or publish any false notice or information or document in relation to
recruitment or employment;
c. To give any false notice, testimony, information or document or commit any act of
misrepresentation for the purpose of securing a license or authority under this Code.
d. To induce or attempt to induce a worker already employed to quit his employment in
order to offer him to another unless the transfer is designed to liberate the worker from
oppressive terms and conditions of employment;
e. To influence or to attempt to influence any person or entity not to employ any worker
who has not applied for employment through his agency;
f. To engage in the recruitment or placement of workers in jobs harmful to public health or
morality or to the dignity of the Republic of the Philippines;
g. To obstruct or attempt to obstruct inspection by the Secretary of Labor or by his duly
authorized representatives;
h. To fail to file reports on the status of employment, placement vacancies, remittance of
foreign exchange earnings, separation from jobs, departures and such other matters or
information as may be required by the Secretary of Labor.
i. To substitute or alter employment contracts approved and verified by the Department of
Labor from the time of actual signing thereof by the parties up to and including the
periods of expiration of the same without the approval of the Secretary of Labor;
j. To become an officer or member of the Board of any corporation engaged in travel
agency or to be engaged directly or indirectly in the management of a travel agency; and
k. To withhold or deny travel documents from applicant workers before departure for
monetary or financial considerations other than those authorized under this Code and its
implementing rules and regulations.