LABOR STANDARDS
to participate in policy and decision-making
I. GENERAL PRINCIPLES
Labor Code – principal labor law of the country. But
even now, there are Labor Laws that are not found in
the Labor Code.
Social Legislation – the promotion of the welfare of
all the people, the adoption by the government of
measures calculated to insure economic stability of
all the component elements of society thru the
maintenance of proper economic and social
equilibrium in the interrelations of the members of the
community, constitutionally, thru the adoption of
measures legally justifiable, or extra-constitutionally,
thru the exercise of powers underlying the existence
of all governments, on the time honored principle of
salus populi esta suprema lex (Calalang v. Williams,
02 December 1940)
Social Justice – humanization of laws and the
equalization of social and economic forces by the
State so that justice in its rational and objective
secular conception may at least be approximated
Labor Standards – sets out the minimum terms,
conditions, and benefits of employment that
employers must provide or comply with and to which
employees are entitled as a matter of legal right
Labor Relations – defines the status, rights and
duties, as well as the institutional mechanisms that
govern the individual and collective interactions
between employers, employees and their
representatives
Art. 3. Declaration of basic policy
• Afford protection to labor
• Promote full employment
• Ensure equal work opportunities regardless of
sex, race, or creed
• Regulate the relations between workers and
employers
• Assure worker’s rights to self-organization,
collective bargaining, security of tenure, and just
and humane conditions of work
Seven basic rights of workers guaranteed by the
Constitution:
1. right to organize
2. to conduct collective bargaining or negotiation
with management
3. to engage in peaceful concerted activities,
including strike in accordance with law
4. to enjoy security of tenure
5. to work under humane conditions
6. to receive a living wage
7.
processes affecting their rights and benefits as
may be provided by law.
Art. 4. Construction in favor of labor
• When the interest of labor and capital collide, the
heavier influence of capital should be
counterbalanced with the sympathy and
compassion of law for the less privileged
workers. But protection to labor does not mean
oppression or destruction of capital. The
employer’s act will be sustained when it is in the
right. [Eastern Shipping Lines v. POEA, 166
SCRA 523 (1998)]
• Court decisions adopt a liberal approach that
favors the exercise of labor rights. The mandate
is simply to resolve doubt in favor of labor. If
there is no doubt in implementing and interpreting
the law, labor will enjoy no built-in advantage and
the law will have to be applied as it is.
• When the subject matter is covered by the Labor
Code, doubts which involve implementation and
interpretation of labor laws should be resolved in
favor of labor, even if the question involves Rules
of Evidence.
Management Rights / Prerogative – except as
limited by special laws, an employer is free to
regulate, according to his own discretion and
judgment, all aspects of employment, 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 employees, work supervision, lay-off of
workers and the discipline, dismissal and recall of
workers
• Capitol Medical Center, Inc. v. Meris (16
September 2005)
As long as the company’s exercise of the same 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 valid agreements, the courts will uphold them.
• Philippine Blooming Mills Employees Association
v. Philippine Blooming Mills, GR No. L-31195, 05
June 1973
The primacy of human rights – freedom ofexpression, of
peaceful assembly and of petition for redress of grievances
over property rights has been sustained.
• PAL v. NLRC, GR No. 85985 (1993)
The exercise of management prerogatives is not
unlimited. A line must be drawn between management
prerogatives regarding business operations per se and those
which affect the rights of employees. In treating the latter,
management should see to it that its employees are at least
properly informed of its decisions and modes of action.

Art. 5. Rules and regulations

Department of Labor and Employment (DOLE)
- Lead agency in enforcing labor laws and it
possesses rule-making power in the enforcement
of the Code
• But a rule or regulation that exceeds the
Department’s rule-making authority is void.

Art. 6. Applicability of Labor Code

ƒ Applies alike to all workers, except as otherwise
provided by law, whether agricultural or nonagricultural.
ƒ Applies to a government corporation incorporated
under the Corporation CodeWork Relationship

CHAPTER II. Concept of Employer-Employee Relationship
1. Statutory definition of Employer and Employee,
Art(s). 97 (a) (b) (c), 167 (f) (g) (h), 212 (e) (f)
ART. 97. Definitions. - As used in this Title:
(a) "Person" means an individual, partnership,
association, corporation, business trust, legal
representatives, or any organized group of persons.
(b) "Employer" includes any person acting directly
or indirectly in the interest of an employer in relation to an
employee and shall include the government and all its
branches, subdivisions and instrumentalities, all
government-owned or controlled corporations
and institutions, as well as non-profit private
institutions, or organizations.
(c) "Employee" includes any individual employed
by an employer.
Art. 167. Definition of Terms.—As used in this Title, unless the
context indicates otherwise:
(f) “Employer” means any person, natural or juridical,
employing the services of the employee.
(g) “Employee” means any person compulsorily
covered by the GSIS under Commonwealth Act
Numbered One hundred eighty-six, as
amended, including the members of the Armed
Forces of the Philippines, and any person
employed as casual, emergency, temporary,
substitute or contractual, or any person
compulsorily covered by the SSS under Republic
Act Numbered Eleven hundred sixty- one, as
amended.
(h) “Person” means any individual, partnership,
firm, association, trust, corporation or legal
representative thereof.
Art. 212.
(e) "Employer" includes any person acting in the
interest of an employer, directly or indirectly. The
term shall not include any labor organization or
any of its officers or agents except when acting
as employer.
(f) "Employee" includes any person in the employ
of an employer. The term shall not be limited to the
employees of a particular employer, unless the Code so
explicitly states. It shall include any individual whose
work has ceased as a result of or in connection with
any current labor dispute or because of any unfair
labor practice if he has not obtained any other
substantially equivalent and regular employment.
1.3 Tests of Employer-Employee Relationship (EER)
Jurisprudential Tests to Determine Existence of EER:
A. The employer has the ability (need not be actual) to
exercise control over the following:
1. Payment of Wages
• Payment of compensation by way of commission
does not militate against the conclusion EER exists. Under Art.
97 of the Labor Code, "wage" shall mean "however
designated, capable of being expressed in terms of money,
whether fixed or ascertained on a time, task, price or
commission basis…" (Insular Life Assurance Co., Ltd. V.
NLRC, GR No.119930, 12 March 1998)
• Wages are defined as remuneration or earnings, however
designated, capable of being expressed in terms of money,
whether fixed or ascertained on a time, task, piece or
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 included the fair and
reasonable value, as determined by the Secretary of Labor, of
board, lodging, or other facilities customarily furnished by the
employer to the employee. [Ruga v. NLRC, 181 SCRA 266
(1990)]
2. Hiring – employment relation arises from contract of hire,
express or implied [Ruga v.NLRC, 181 SCRA 266 (1990)]
• Selection and engagement of the workers rests with the
employers
• Not a conclusive test since it can be avoided by the use of
subcontracting agreements or other contracts other
than employment contracts
3. Firing – disciplinary power exercised by
employer over the worker and the corresponding
sanction imposed in case of violation of any of its • Angelina Francisco v. NLRC, et al., GR No.
rules and regulations 170087, Aug. 31, 2006

4. Control, not only over the end product / RESULT • Television and Production Exponents, Inc. v. Servaña
of the work, but more importantly, control over
the MEANS through which the work is
accomplished. (most essential element; without c. Piercing the Corporate Veil
it, there is no EER)

B. Economic Relations Test – a subordinate /

alternative test. Existing economic conditions
between the parties are used to determine whether
EER exists.
1. payment of PAG-IBIG Fund contributions
2. payment / remittance of contributions to the State
Insurance Fund
3. deduction of withholding tax
4. deduction / remittance of SSS contributions

1.4. Elements of Employer-Employee Relationship

• Ruga v. NLRC, 181 SCRA 437 (1990)

The employer-employee relationship between the
crew members and the owners of the fishing vessels
engaged in deep-sea fishing is merely suspended during the
time the vessels are drydocked or undergoing repairs or being
loaded with the necessary provisions for the next fishing trip.
The said ruling is premised on the principle that all these
activities i.e., drydock, repairs, loading of necessary provisions,
form part of the regular operation of the company fishing
business.
Wages are defined as remuneration or earnings,
however designated, capable of being expressed in terms of
money, whether fixed or ascertained on a time, task, piece or
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 included the fair and
reasonable value, as determined by the Secretary of Labor, of
board, lodging, or other facilities customarily furnished by the
employer to the employee

• Perpetual Help Credit v. Faburada et al., 366

SCRA 693 (2001)

• Chavez v. NLRC, 448 SCRA 478 (2005)


2. Independent Contractor and Labor-only Contractor, Art.
106-107, 109; DO No. 18-02, S 2002
ART. 106. Contractor or subcontractor. - Whenever an
employer enters into a contract with another person
for the performance of the former’s work, the
employees of the contractor and of the latter’s
subcontractor, if any, shall be paid in accordance with
the provisions of this Code.
In the event that the contractor or subcontractor fails
to pay the wages of his employees in accordance with
this Code, the employer shall be jointly and severally
liable with his contractor or subcontractor to such
employees to the extent of the work performed under
the contract, in the same manner and extent that he is
liable to employees directly employed by him.
The Secretary of Labor and Employment may, by
appropriate regulations, restrict or prohibit the
contracting-out of labor to protect the rights of workers
established under this Code. In so prohibiting or
restricting, he may make appropriate distinctions
between labor-only contracting and job contracting as
well as differentiations within these types of
contracting and determine who among the parties
involved shall be considered the employer for
purposes of this Code, to prevent any violation or
circumvention of any provision of this Code.
There is "labor-only" contracting where the person
supplying workers to an employer does not have
substantial capital or investment in the form of tools,
equipment, machineries, work premises, among
others, and the workers recruited and placed by such
person are performing activities which are directly
related to the principal business of such employer. In
such cases, the person or intermediary shall be
considered merely as an agent of the employer who
shall be responsible to the workers in the same
manner and extent as if the latter were directly
employed by him.
ART. 107. Indirect employer. - The provisions of the
immediately preceding article shall likewise apply to
any person, partnership, association or corporation
which, not being an employer, contracts with an
independent contractor for the performance of any
work, task, job or project.
DEPARTMENT ORDER NO. 18 - 02
(Series of 2002)
RULES IMPLEMENTING ARTICLES 106 TO 109
OF THE LABOR CODE, AS AMENDED
By virtue of the power vested in the Secretary of
Labor and Employment under Articles 5 (Rulemaking)
and 106 (Contractor or Subcontractor) of the Labor Code of
the Philippines, as amended, the following regulations
governing contracting and subcontracting arrangements are
hereby issued:
Section 1. Guiding principles. - Contracting and subcontracting
arrangements are expressly allowed by law and are subject to
regulation for the promotion of employment and the
observance of the rights of workers to just and humane
conditions of work, security of tenure, self-organization, and
collective bargaining. Labor-only contracting as defined herein
shall be
prohibited.
Section 2 . Coverage. - These Rules shall apply to all parties of
contracting and subcontracting arrangements where employer-
employee relationship exists. Placement activities through
private recruitment and placement agencies as governed by
Articles 25 to 39 of the Labor Code are not covered by these
Rules.
Section 3. Trilateral Relationship in Contracting rrangements. -
In legitimate contracting, there exists a trilateral relationship
under which there is a contract for a specific job, work or
service between the principal and the contractor or
subcontractor, and a contract of employment between the
contractor or subcontractor and its workers. Hence, there are
three parties involved in these arrangements, the principal
which decides to farm out a job or service to a contractor or
subcontractor, the contractor or subcontractor which has the
capacity to independently undertake the performance of the
job, work or service, and the contractual workers engaged by
the contractor or subcontractor to accomplish the
job work or service.
Section 4. Definition of Basic Terms. – The following terms as
used in these Rules, shall mean:
(a) "Contracting" or "subcontracting" refers to an arrangement
whereby a principal agrees to put out or farm out with a
contractor or subcontractor the performance or completion of a
specific job, work or service within a definite or predetermined
period, regardless of whether such job, work or service is to be
performed or completed within or outside the premises of the
principal.
(b) "Contractor or subcontractor" refers to any person or entity
engaged in a legitimate contracting or subcontracting
arrangement.
(c) "Contractual employee" includes one employed by a
contractor or subcontractor to perform or complete a job, work
or service pursuant to an arrangement between the latter and
a principal.
(d) "Principal" refers to any employer who puts out or farms out
a job, service or work to a contractor or subcontractor.
Section 5. Prohibition against labor-only
contracting. - Labor-only contracting is hereby declared
prohibited. For this purpose, labor-only contracting shall refer
to an arrangement where the contractor or subcontractor
merely recruits, supplies or places workers to perform a job,
work or service for a principal, and any of the following
elements are present:
(i) The contractor or subcontractor does not have
substantial capital or investment which relates to
the job, work or service to be performed and the employees
recruited, supplied or placed by such contractor or
subcontractor are performing activities which are directly
related to the main business of the principal; or
(ii) the contractor does not exercise the right to
control over the performance of the work of the
contractual employee.
The foregoing provisions shall be without
prejudice to the application of Article 248 (C ) of
the Labor Code, as amended.
"Substantial capital or investment" refers to capital stocks and
subscribed capitalization in the case of corporations, tools,
equipment, implements, machineries and work premises,
actually and directly used by the contractor or subcontractor in
the performance or completion of the job, work or service
contracted out.
The "right to control" shall refer to the right
reserved to the person for whom the services of
the contractual workers are performed, to
determine not only the end to be achieved, but
also the manner and means to be used in
reaching that end.
Section 6. Prohibitions. - Notwithstanding Section
5 of these Rules, the following are hereby declared prohibited
for being contrary to law or public policy:
(a) Contracting out of a job, work or service when not done in
good faith and not justified by the exigencies of the business
and the same results in the termination of regular employees
and reduction of work hours or reduction or splitting of the
bargaining unit;
(b) Contracting out of work with a "cabo" as defined in Section
1 (ii), Rule I, Book V of these Rules.
"Cabo" refers to a person or group ofpersons or to a labor
group which, in the guise of a labor organization, supplies
workers to an employer, with or without any monetary or other
consideration whether in the capacity of an agent of the
employer or as an ostensible independent contractor;
(c) Taking undue advantage of the economic situation or lack
of bargaining strength of the contractual employee, or
undermining his security of tenure or basic rights, or
circumventing the provisions of regular employment, in any of
the following instances:
(i) In addition to his assigned functions, requiring the
contractual employee to perform functions which are currently
being performed by the regular employees of the principal or of
the contractor or subcontractor;
(ii) Requiring him to sign, as a precondition to employment or
continued employment, an antedated esignation letter; a blank
payroll; a waiver of labor standards including minimum wages
and social or welfare benefits; or a quitclaim releasing the
principal, contractor or subcontractor from any liability as to
payment of future claims; and
(iii) Requiring him to sign a contract fixing the period of
employment to a term shorter than the term of the contract
between the principal and the contractor or subcontractor,
unless the latter contract is divisible into phases for which
substantially different skills are required and this is made
known to the employee at the time of engagement;
(d) Contracting out of a job, work or service through an in-
house agency which refers to a contractor or subcontractor
engaged in the supply of labor which is owned, managed or
controlled by the principal and which operates solely for the
principal;

(e) Contracting out of a job, work or service directly related to
the business or operation of the principal by reason of a strike
or lockout whether actual or imminent;
(f) Contracting out of a job, work or service being performed by
union members when such will interfere with, restrain or
coerce employees in the exercise of their rights to self
organization as provided in Art. 248 (c) of the Labor Code, as
amended.
Section 7. Existence of an employer-employee
relationship. - The contractor or subcontractor shall be
considered the employer of the contractual employee for
purposes of enforcing the provisions of the Labor Code and
other social legislation. The principal, however, shall be
solidarily liable with the contractor in the event of any violation
of any provision of the Labor Code, including the failure to pay
wages.
The principal shall be deemed the employer of the
contractual employee in any of the following
cases as declared by a competent authority:
(a) where there is labor-only contracting; or
(b) where the contracting arrangement falls within the
prohibitions provided in Section 6 (Prohibitions) hereof.
Section 8. Rights of Contractual Employees. - Consistent with
Section 7 of these Rules, the contractual employee shall be
entitled to all the rights and privileges due a regular employee
as provided for in the Labor Code, as amended, to include the
following:
(a) Safe and healthful working conditions;
(b) Labor standards such as service incentive
leave, rest days, overtime pay, holiday pay, 13th
month pay and separation pay;
(c) Social security and welfare benefits;
(d) Self-organization, collective bargaining and
peaceful concerted action; and
(e) Security of tenure.
Section 9. Contract between contractor or
subcontractor and contractual employee. -
Notwithstanding oral or written stipulations to the contrary, the
contract between the contractor or subcontractor and the
contractual employee, which shall be in writing, shall include
the following terms and conditions:
(a) The specific description of the job, work or service to be
performed by the contractual employee;
(b) The place of work and terms and conditions of
employment, including a statement of the wage rate applicable
to the individual contractual employee; and
(c) The term or duration of employment, which shall be
coextensive with the contract of the principal and
subcontractor, or with the specific phase for which the
contractual employee is engaged, as the case may be.
The contractor or subcontractor shall inform the contractual
employee of the foregoing terms and conditions on or before
the first day of his employment.
Section 10. Effect of Termination of Contractual
Employment. - In cases of termination of employment prior to
the expiration of the contract between the principal and the
contractor or subcontractor, the right of the contractual
employee to separation pay or other related benefits shall be
governed by the applicable laws and jurisprudence on
termination of employment.
Where the termination results from the expiration of the
contract between the principal and the contractor or
subcontractor, or from the completion of the phase of the job,
work or service for which the contractual employee is engaged,
the latter shall not be entitled to separation pay. However, this
shall be without prejudice to completion bonuses or other
emoluments, including retirement pay as may be provided by
law or in the contract between the principal and the contractor
or subcontractor.
Section 11. Registration of Contractors or
Subcontractors. - Consistent with the authority of the Secretary
of Labor and Employment to restrict or prohibit the contracting
out of labor through appropriate regulations, a registration
system to govern contracting arrangements and to be
implemented by the Regional Offices is hereby established.
The registration of contractors and subcontractors shall be
necessary for purposes of establishing an effective labor
market information and monitoring.
Failure to register shall give rise to the presumption that
the contractor is engaged in labor-only contracting.
Section 12. Requirements for registration. – A contractor or
subcontractor shall be listed in the registry of contractors and
subcontractors upon completion of an application form to be
provided by the DOLE. The applicant contractor or
subcontractor shall provide in the application form the following
information:
(a) The name and business address of the applicant and the
area or areas where it seeks to operate;
(b) The names and addresses of officers, if the applicant is a
corporation, partnership, cooperative or union;
(c) The nature of the applicant's business and the industry or
industries where the applicant seeks to operate;
(d) The number of regular workers; the list of clients, if any; the
number of personnel assigned to each client, if any and the
services provided to the client;
(e) The description of the phases of the contract and the
number of employees covered in each phase, where
appropriate; and
(f) A copy of audited financial statements if the applicant is a
corporation, partnership, cooperative or a union, or copy of the
latest ITR if the applicant is a sole poprietorship.
The application shall be supported by:
(a) A certified copy of a certificate of registration of firm or
business name from the Securities and Exchange Commission
(SEC), Department of Trade and Industry (DTI), Cooperative
Development Authority (CDA), or from the DOLE if the
applicant is a union; and
(b) A certified copy of the license or business permit issued by
the local government unit or units where the contractor or
subcontractor operates.
The application shall be verified and shall include an
undertaking that the contractor or subcontractor shall abide by
all applicable labor laws and regulations.
Section 13. Filing and processing of applications.- The
application and its supporting documents shall be filed in
triplicate in the Regional Offices where the applicant principally
operates. No application for registration shall be accepted
unless all the foregoing requirements are complied with. The
contractor or subcontractor shall be deemed registered upon
payment of a registration fee of P100.00 to the Regional
Office.
Where all the supporting documents have been submitted, the
Regional Office shall deny or approve the application within
seven (7) working days after its filing.
Upon registration, the Regional Office shall return one set of
the duly-stamped application documents to the applicant,
retain one set for its file, and transmit the remaining set to the
Bureau of Local Employment. The Bureau shall devise the
necessary forms for the expeditious processing of all
applications for registration.
Section 14. Duty to produce copy of contract between the
principal and the contractor or subcontractor. –
The principal or the contractor or subcontractor shall be under
an obligation to produce a copy of the contract between the
principal and the contractor in the ordinary course of
inspection. The contractor shall likewise be under an obligation
to produce a copy of the contract of employment of the
contractual worker when directed to do so by the Regional
Director or his authorized representative.
A copy of the contract between the contractual employee and
the contractor or subcontractor shall be furnished the certified
bargaining agent, if there is any.
Section 15. Annual Reporting of Registered Contractors. - The
contractor or subcontractor shall submit in triplicate its annual
report using a prescribed form to the appropriate Regional
Office not later than the 15th of January of the following year.
The report shall include:
(a) A list of contracts entered with the principal during the
subject reporting period;
(b) The number of workers covered by each contract with the
principal;
(c) A sworn undertaking that the benefits from the Social
Security System (SSS), the Home Development Mutual Fund
(HDMF), PhilHealth, Employees Compensation Commission
(ECC), and remittances to the Bureau of Internal Revenue
(BIR) due its contractual employees have been made during
the subject reporting period.
The Regional Office shall return one set of the duly-stamped
report to the contractor or subcontractor, retain one set for its
file, and transmit the remaining set to the Bureau of Local
Employment within five (5) days from receipt thereof.
Section 16. Delisting of contractors or
subcontractors. - Subject to due process, the Regional Director
shall cancel the registration of contractors or subcontractors
based on any of the following grounds:
(a) Non-submission of contracts between the principal and the
contractor or subcontractor when required to do so;
(b) Non-submission of annual report;
(c) Findings through arbitration that the contractor or
subcontractor has engaged in labor only contracting and the
prohibited activities as provided in Section 6 (Prohibitions)
hereof; and
(d) Non-compliance with labor standards and
working conditions.
Section 17. Renewal of registration of contractors
or subcontractors. - All registered contractors or
subcontractors may apply for renewal of registration every
three years. For this purpose, the Tripartite Industrial Peace
Council (TIPC) as created under Executive Order No. 49, shall
serve as the oversight committee to verify and monitor the
following:
(a) Engaging in allowable contracting activities; and
(b) Compliance with administrative reporting requirements.
Section 18. Enforcement of Labor Standards and
Working Conditions. - Consistent with Article 128 (Visitorial
and Enforcement Power) of the Labor Code, as amended, the
Regional Director through his duly authorized representatives,
including labor regulation officers shall have the authority to
conduct routine inspection of establishments engaged in
contracting or subcontracting and shall have access to
employer's records and premises at any time of the day or
night whenever work is being undertaken therein, and the right
to copy therefrom, to question any employee and investigate
any fact, condition or matter which may be necessary to
determine violations or which may aid in the enforcement of
the Labor Code and of any labor law, wage order, or rules and
regulations issued pursuant thereto.
The findings of the duly authorized representative shall be
referred to the Regional Director for appropriate action as
provided for in Article 128, and shall be furnished the collective
bargaining agent, if any.
Based on the visitorial and enforcement power of the Secretary
of Labor and Employment in Article 128 (a), (b), (c) and (d), the
Regional Director shall issue compliance orders to give effect
to the labor standards provisions of the Labor Code, other
labor legislation and these guidelines.
Section 19. Solidary liability. - The principal shall be deemed
as the direct employer of the contractual employees and
therefore, solidarily liable with the contractor or subcontractor
for whatever monetary claims the contractual employees may
have against the former in the case of violations as provided
for in Sections 5 (Labor-Only contracting), 6 (Prohibitions), 8
(Rights of Contractual Employees) and 16 (Delisting) of these
Rules. In addition, the principal shall also be solidarily liable in
case the contract between the principal and contractor or
subcontractor is preterminated for reasons not attributable to
the fault of the contractor or
subcontractor.
Section 20. Supersession. - All rules and regulations issued by
the Secretary of Labor and Employment inconsistent with the
provisions of this Rule are hereby superseded. Contracting or
subcontracting arrangements in the construction industry,
under the licensing coverage of the PCAB and shall not
include shipbuilding and ship repairing works, however, shall
continue to be governed by Department Order No. 19, series
of 1993.
Section 21. Effectivity. - This Order shall be effective fifteen
(15) days after completion of its publication in two (2)
newspapers of general circulation.
Manila, Philippines, 21 February 2002.
2.1 Requirements for Independent Contractor
• San Miguel Corp v. NLRC & Maliksi, GR No. 147566, Dec. 6,
2006
Concept: Requirements for Independent Contractor
- The act if hiring and re-hiring the petitioners over a period of
time without considering them as regular employees evidences
bad faith on the part of private respondent.
-Regularization is a labor benefit that should apply to all
qualified employees similarly situated and may not be denied
merely because some employees were allegedly not parties to
or were not impleaded in the voluntary arbitration case.
-It must be noted that the Court extended the benefit of
regularization not only to the original complainants but also to
those workers who are “similarly situated” to therein
complainants.
Quotable Quote (Justice Garcia):
“The contrivances may be many and the schemes ingenious
and imaginative. But this Court will not hesitate to put pen to a
line and defend the worker’s right to be secure in his (or her)
proprietary right to regular employment and his right to a
secure employment.”
FACTS:
San Miguel Corporation (SMC) seeks to reverse a Court of
Appeals (CA) decision which affirmed an NLRC declaration
that private respondent Rafael Maliksi (Maliksi) is a regular
employee of SMC and must be reinstated with benefits.
Maliksi in October 16, 1990 sued SMC-Magnolia Division and
Philippine Software Services and Education Center
(PHILSSEC) for them to recognize him as a regular employee.
Later on the same case he included the charge of illegal
dismissal when petitioners terminated his services later that
month. Maliksi’s employment record shows he served SMC
alternately as budget head, accounting clerk and acting clerk
under Skillpower, Lipercon and PHILSSEC between 1981 up
to February 1985 “for periods spread apart,” or for at least
three years and seven months.
Respondent Maliksi maintained that he is an employee of
SMC-Magnolia and that Lipercon, Skillpower, Inc. and
PHILSSEC are labor-only contractors, none being his
employer. PHILSSEC meanwhile disclaimed liability as it
catered only to computerized accounting needs of businesses
like SMC-Magnolia, PHILSSEC’s principal function being that
of manual control of data needed during the computerization.
PHILSSEC added that it controlled Maliksi’s work, paid his
salary and required him to report directly to it. Maliksi was
terminated because the project was completed on October 31,
1990. SMC for its part basically asserted the same, contending
that PHILSSEC exercised exclusive managerial prerogative
over the complainant as to hiring, payment of salary, dismissal
and the control over his work. It was interested only in the
result of the work specified in the contract but not as to the
means and methods of accomplishing the same. Also,
PHILSSEC has substantial capital of its own. What it markets
to clients are computer programs and training systems on
computer technology and not the usual labor or manpower
supply to establishment concerns. Further, SMC said, Maliksi’s
service has no relation to the principal business of SMC, which
is food and beverage.
The Labor Arbiter declared Maliksi a regular employee of
PHILSSEC and absolved SMC from liability. Maliksi appealed
to the NLRC which in turn reversed the Labor Arbiter’s
decision, ordering SMC-Magnolia Division to reinstate him
without loss of seniority rights and with full benefits. When the
case reached the CA, the latter affirmed in toto the NLRC’s
decision, finding Lipercon and Skillpower as mere conduits to
circumvent Article 280 of the Labor Code, employing Maliksi as
contractual or project employee through these entities, thereby
undermining his right to gain regular employment status under
the law. The CA agreed with the NLRC that Maliksi’s work was
necessary or desirable in the business of SMC in its Magnolia
Division, for more than the required one-year period, and that
he became permanent and regular with SMC after the
statutory period of one year of service. The CA also concluded
that on account of his past employment contracts with SMC
under Lipercon and Skillpower, Maliksi was already a regular
employee of SMC when he entered into SMC’s
computerization project as part of the PHILSSEC project
complement.
ISSUE: Whether or not Maliksi was a regular employee of
SMC?
HELD: Petition DENIED. Maliksi is a regular employee of
SMC. Lipercon and Skillpower are labor-only ontractors
providing as they do personnel services to the public for a fee.
There is an employer-employee relationship and the Court
gives due deference to this factual findings of both the NLRC
and the CA. Having served SMC for an aggregate period of
more than three (3) years through employment contracts with
these Lipercon and Skillpower, Maliksi should be considered
as SMC’s regular employee. The fact is that he was hired and
re-hired by SMC to perform administrative and clerical work
that was necessary to SMC’s business on a daily basis.
In Bustamante v. National Labor Relations Commission, the
Court ruled that petitioners were employees engaged to
perform activities necessary in the usual business of the
employer. The contract for probationary employment was
utilized by respondent company as a chicanery to deny
petitioners their status as regular employees and to evade
paying them the benefits attached to such status. They were
hired and re-hired in a span of from two to four years to do the
same type of work which conclusively shows the necessity of
petitioners’ service to the respondent company’s business.
With respect to PHILSSEC, there was no need for Maliksi to
be employed under the former’s computerization program to
be considered a regular employee of SMC at the time.
Moreover, SMC itself admits that Maliksi’s work under the
computerization program did “not require the operation of a
computer system, such as the software program being
developed by PHILSSEC.” Maliksi’s work under the
PHILSSEC project was mainly administrative in nature and
necessary to the development of SMC’s business.
Maliksi was juggled from one employment contract to another
in a continuous bid to circumvent labor laws. The act of hiring
and re-hiring workers over a period of time without considering
them as regular employees evidences bad faith on the part of
the employer making it liable to pay damages. The
contrivances may be many and the schemes ingenious and
imaginative. But this Court will not hesitate to put pen to a line
and defend the worker’s right to be secure in his (or her)
proprietary right to regular employment and his right to a
secure employment, viz, one that is free from fear and doubt,
that anytime he could be removed, retrenched, his contract not
renewed or he might not be re-hired.
Considering, however, the supervening event that SMC’s
Magnolia Division has been acquired by another entity,
respondent Maliksi’s reinstatement it appears is no longer
feasible. Instead, he should be awarded separation, in addition
to the other monetary awards, pay as an alternative. Likewise,
owing to petitioner’s bad faith in juggling the latter from one
labor contractor to another, it should be held liable to pay
nominal damages for causing undue injury and inconvenience
to the private respondent in its contractual hiring-firing-rehiring
scheme and for denying him his proprietary right to regular
employment.
√
Facts:
- SMC (San Miguel) seeks to reverse the decision of the CA
which affirmed the decision of the NLRC that Rafael Maliksi is
a REGULAR EMPLOYEE
- Oct. 16, 1990. Maliksi filed a complaint against SMC
compelling them to recgonize him as regular employee. Oct
31, 1990, he was dismissed by SMC.
- His complaint then now includes illegal dismissal
- Maliksi thru Lipercon (contractor), was assigned to SMC.
After a while another contractor (Skillpower) assigned him to
SMC again then lastly, another contractor (Philippine Sofware
Services and Education Center or PHILSEC) assgined him to
SMC. (To clarify things dear reader, Three different agencies
assigned him to SMC). Those assignments are from 1981 to
1985.
- Maliksi argued that he is an employee if Magnolia (a division
of SMC). He also argued that the contractors are LABOR
ONLY CONTRACTORS and not his employer.
- PHILSEC disclaimed liability as it catered only to
computerized accounting needs of businesses like SMC.
PHILSEC's principal funding being manual control of data
needed during computerization.
- Maliksi was terminated because the project ended.
- SMC contends that PHILSEC exercised sxclusive managerial
prerogative over Maliksi as ti hiring, payment of salary,
dismissal, and control of his work (take note these are the
requisites for employee-employer relationship). PHILSEC has
substantial capital of its own and what it caters to clients are
computer programs and training systems on computer tech
and not the usual labor or man power supply (test for
independent contractor).
- SMC said that Maliksi's service has no relations to SMC's
primary business which is food and beverages. (The court said
that this contention has no merit since accounting chorva is
part of the business).
- The Labor Arbiter declared that Maliksi is an employee of
PHILSEC.
- Maliksi appealed to the NLRC, reversed the decision of the
Labor Arbiter, making SMC the employer.
- SMC appealed to the CA. CA affired the decision of the
NLRC.
- CA said that tho Lipercon and Skillpower are mere conduits
on Maliksi being on SMC, still made him (Maliksi) a regular
employee because of the required one year period.
Issue: W/ON Maliksi is a regular employee
Held. Yes, he is a regular employee. Lipercon and Skillpower
are LABOR ONLY CONTRACTORS providing personnel
services for a fee. There is an employee-employer relationship
and the court gives due deference ti the factual findings of the
NLRS and CA. Having served SMC for 3 years thru Lipercon
and Skillpower deemed Maliksi a regular employee.
• LIKHA-PMPB v. Burlinggame corp., GR No. 162833, June
15, 2007
- Job contracting is permissible only if the following
conditions are met:
1) the contractor carries on an independent business and
undertakes the contract work on his own account under his
own responsibility according to his own manner and method,
free from the control and direction of his employer or principal
in all matters connected with the performance of the work
except as to the results thereof; and
2) contractor has substantial capital or investment in the form
of tools, equipment, machineries, work premises, and other
materials which are necessary in the conduct of the business.
- Mentioned sec. 5 of DO 18-02 which states the
prohibition against labor-only contracting (see DO)
- Promo-girls were directly related to the principal
business or operation of Burlingame. Marketing and selling of
products is an essential activity to the main business of the
principal.
- In labor-only contracting, the law creates an
employer-employee relationship to prevent a circumvention of
labor laws. The contractor is merely an agent of the principal
employer and the latter is responsible to the employees of the
labor-only contractor as if such employees had been directly
employed by the principal employer.
Concept: Independent Contract and Labor Only Contractor
Facts:
- Jan. 17, 2000, LIKHA-PMPB filed a petition for certification
before DOLE, it seeks to represent all RANK and FILE
EMPLOYEES (means the employee doesn't occupy a high-
level position within the organization) of the respondent, which
counts to 70 all in all.
- LIKA-PMPB said that there is no existing union in Burlingame
representing the regular rank and file employees.
- It prayed that it be voluntarily recognized by Burlingame to be
a collective bargaining agent or the alternative, that a
certification/consent election be held among regular rank and
file employees.
- Burlingame filed a motion to dismiss the petition. It argued
that there exists no employee-employer relationship between
them and the members of the LIKHA-PMPB. It further alleged
that the members are employee F.GARIL MANPOWER
SERVICES, a duly licensed local employment agency. To
prove such contention, respondent presented a copy of its
contract with F. Garil.
- June 29, 2000. Med-Arbiter Renato Panungo dismissed the
petition for lack of employee-employer relationship, which lead
LIKHA to file a appeal before the secretary of labor and
employment.
December 29, 2000. Secretary ordered the immediate conduct
of a certificaiton election.
- Respondents went to CA, CA revered the decision.
Petitioners filed for a motion of reconsideration. Denied.
Issue:
(1) Whether or not F. Garil is an independent contractor; (2)
Whether or not petitioner are employees of Burlingame
Corporation.
Ruling:
(1) NO. We agree with the Secretary that F. Garil is not an
independent contractor. First, F. Garil does not have
substantial capitalization or investment in the form of tools,
equipment, machineries, work premises, and other materials,
to qualify as an independent contractor. No proof was adduced
to show F. Garil‘s capitalization. Second, the work of the
promo-girls was directly related to the principal business or
operation of Burlingame. Marketing and selling of products is
an essential activity to the main business of the principal.
Lastly, F. Garil did not carry on an independent business or
undertake the performance of its service contract according to
its own manner and method, free from the control and
supervision of its principal, Burlingame.
(2) YES. The “four-fold test” will show that respondent is the
employer of petitioner‘s members. The involvement of F. Garil
in the hiring process was only with respect to the recruitment
aspect because the actual hiring itself was done through the
deployment of personnel to establishments by Burlingame.
Burlingame would pay the workers through F. Garil a certain
sum per worker on the basis of eight-hour work every 15th and
30th of each calendar month which evinces the fact that F.
Garil merely served as conduit in the payment of wages to the
deployed personnel. Burlingame upon request to F. Garil may
replace any personnel found to be inefficient, troublesome,
uncooperative and not observing the rules and regulations set
forth by it.
There is no doubt that F. Garil was engaged in labor-only
contracting, and as such, is considered merely an agent of
Burlingame. Since F. Garil is a labor-only contractor, the
workers it supplied should be considered as employees of
Burlingame in the eyes of the law.
• Aliviado, et al. v. Proctor and Gamble Phil. & PROMM GEM
Inc., G.R. No. 160506 March 9, 2010
JOEB M. ALIVIADO, et al., Petitioners, v. PROCTER &
GAMBLE PHILS., INC., and PROMM-GEM INC.,
Respondents.
DEL CASTILLO, J.:
Facts:
Petitioners worked as merchandisers of P&G. They all
individually signed employment contracts with either Promm-
Gem or SAPS. They were assigned at different outlets,
supermarkets and stores where they handled all the products
of P&G. They received their wages from Promm-Gem or
SAPS.
SAPS and Promm-Gem imposed disciplinary measures on
erring merchandisers for reasons such as habitual
absenteeism, dishonesty or changing day-off without prior
notice.
To enhance consumer awareness and acceptance of the
products, P&G entered into contracts with Promm-Gem and
SAPS for the promotion and merchandising of its products.
In December 1991, petitioners filed a complaint against P&G
for regularization, service incentive leave pay and other
benefits with damages.
Issue: WON P&G is the employer of petitioners.
Held:
In order to resolve the issue of whether P&G is the employer of
petitioners, it is necessary to first determine whether Promm-
Gem and SAPS are labor-only contractors or legitimate job
contractors
Clearly, the law and its implementing rules allow contracting
arrangements for the performance of specific jobs, works or
services. However, in order for such outsourcing to be valid, it
must be made to an independent contractor because the
current labor rules expressly prohibit labor-only contracting.
To emphasize, there is labor-only contracting when the
contractor or sub-contractor merely recruits, supplies or places
workers to perform a job, work or service for a principal and
any of the following elements are present:
i) The contractor or subcontractor does not have substantial
capital or investment which relates to the job, work or service
to be performed andthe employees recruited, supplied or
placed by such contractor or subcontractor are performing
activities which are directly related to the main business of the
principal; or
ii) The contractor does not exercise the right to control over the
performance of the work of the contractual
Under the circumstances, Promm-Gem cannot be considered
as a labor-only contractor. We find that it is a legitimate
independent contractor.
Considering that SAPS has no substantial capital or
investment and the workers it recruited are performing
activities which are directly related to the principal business of
P&G, we find that the former is engaged in “labor-only
contracting”.
Where labor-only contracting exists, the Labor Code itself
establishes an employer-employee relationship between the
employer and the employees of the labor-only contractor. The
statute establishes this relationship for a comprehensive
purpose: to prevent a circumvention of labor laws. The
contractor is considered merely an agent of the principal
employer and the latter is responsible to the employees of the
labor-only contractor as if such employees had been directly
employed by the principal employer.
Petition Granted
NOTE:
- Respondent filed MR, which was denied.
- In its resolution, the Court upheld its decision declaring SAPS
has no substantial capital, therefore, labor-only contractor.
√
FACTS:
Petitioners worked as merchandisers of P&G from various
dates, allegedly starting as early as 1982 or as late as June
1991, to either May 5, 1992orMarch 11, 1993.
They all individually signed employment contracts with either
Promm-Gem or SAPS for periods of more or less five months
at a time.They were assigned at different outlets, supermarkets
and stores where they handled all the products of P&G.They
received their wages from Promm-Gem or SAPS.
SAPS and Promm-Gem imposed disciplinary measures on
erring merchandisers for reasons such as habitual
absenteeism, dishonesty or changing day-off without prior
notice.
P&G is principally engaged in the manufacture and production
of different consumer and health products, which it sells on a
wholesale basis to various supermarkets and distributors. To
enhance consumer awareness and acceptance of the
products, P&G entered into contracts with Promm-Gem and
SAPS for the promotion and merchandising of its products.
In December 1991, petitioners filed a complaint against P&G
for regularization, service incentive leave pay and other
benefits with damages.The complaint was later amendedto
include the matter of their subsequent dismissal.
On November 29, 1996, the Labor Arbiter dismissed the
complaint for lack of merit and ruled that there was no
employer-employee relationship between petitioners and
P&G.He found that the selection and engagement of the
petitioners, the payment of their wages, the power of dismissal
and control with respect to the means and methods by which
their work was accomplished, were all done and exercised by
Promm-Gem/SAPS.He further found that Promm-Gem and
SAPS were legitimate independent job contractors. On appeal,
the NLRC dismissed the same. Petitioners filed a motion for
reconsideration but the motion was denied in theNovember 19,
1998Resolution.
Petitioners likewise failed to have a favrable decision in the CA
hence, this petition.
ISSUE: Whether or not Promm-Gem and SAPS are labor-only
contractors or legitimate job contractors?
HELD: The petition is granted.
LABOR LAW
Article 106 of the Labor Code and its implementing rules allow
contracting arrangements for the performance of specific jobs,
works or services.Indeed, it is management prerogative to farm
out any of its activities, regardless of whether such activity is
peripheral or core in nature.However, in order for such
outsourcing to be valid, it must be made to anindependent
contractorbecause the current labor rules expressly prohibit
labor-only contracting.
To emphasize, there is labor-only contracting when the
contractor or sub-contractor merely recruits, supplies or places
workers to perform a job, work or service for a
principalandanyof the following elements are present: (i) The
contractor or subcontractor does not have substantial capital or
investment which relates to the job, work or service to be
performedandthe employees recruited, supplied or placed by
such contractor or subcontractor are performing activities
which are directly related to the main business of the
principal;or (ii) The contractor does not exercise the right to
control over the performance of the work of
thecontractualemployee.
In the instant case,thefinancialstatementsof Promm-Gem show
that it
has authorized capital stock ofP1 million and a paid-in capital,
or capital available for operations, ofP500,000.00 as of 1990. It
also has long term assets worthP432,895.28 and current
assets ofP719,042.32.Promm-Gem has also proven that it
maintained its own warehouse and office space with a floor
area of 870 square meters. It also had under its name three
registered vehicles which were used for its
promotional/merchandising business.Promm-Gem also has
other clientsaside from P&G. Under the circumstances,
Promm-Gem has substantial investment which relates to the
work to be performed.These factors negate the existence of
the element specified in Section 5(i) of DOLE Department
Order No. 18-02.
The records also show that Promm-Gem supplied its
complainant-workers with the relevant materials, such as
markers, tapes, liners and cutters, necessary for them to
perform their work.Promm-Gem also issued uniforms to them.
It is also relevant to mention that Promm-Gem already
considered the complainants working under it as its regular,
not merely contractual or project, employees.This
circumstance negates the existence of element (ii) as stated in
Section 5 of DOLE Department Order No. 18-02, which speaks
ofcontractualemployees. This, furthermore, negates on the part
of Promm-Gem bad faith and intent to circumvent labor laws
which factors have often been tipping points that lead the
Court to strike down the employment practice or agreement
concerned as contrary to public policy, morals, good customs
or public order.
Under the circumstances, Promm-Gem cannot be considered
as a labor-only contractor. Thus, it is a legitimate independent
contractor.
On the other hand, the Articles of Incorporation of SAPS
shows that it has a paid-in capital of onlyP31,250.00.There is
no other evidence presented to show how much its working
capital and assets are.Furthermore, there is no showing of
substantial investment in tools, equipment or other assets.
It is clear that SAPS having a paid-in capital of onlyP31,250 -
has no substantial capital.SAPS lack of substantial capital is
underlined by the records which show that its payroll for its
merchandisers alone for one month would already
totalP44,561.00.It had 6-month contracts withP&G.Yet SAPS
failed to show that it could complete the 6-month contracts
using its own capital and investment.Its capital is not even
sufficient for one months payroll. SAPS failed to show that its
paid-in capital ofP31,250.00 is sufficient for the period required
for it to generate its needed revenue to sustain its operations
independently.Substantial capital refers to capitalization used
in theperformance or completionof the job, work or service
contracted out.In the present case, SAPS has failed to show
substantial capital.
Furthermore, the petitioners have been charged with the
merchandising and promotion of the products of P&G, an
activity that has already been considered by the Court as
doubtlessly directly related to the manufacturing business,
which is the principal business of P&G.Considering that SAPS
has no substantial capital or investment and the workers it
recruited are performing activities which are directly related to
the principal business of P&G, we find that the former is
engaged in labor-only contracting.
Where labor-only contracting exists, the Labor Code itself
establishes an employer-employee relationship between the
employer and the employees of the labor-only contractor. The
statute establishes this relationship for a comprehensive
purpose: to prevent a circumvention of labor laws. The
contractor is considered merely an agent of the principal
employer and the latter is responsible to the employees of the
labor-only contractor as if such employees had been directly
employed by the principal employer.
LABOR LAW
In cases of regular employment, the employer shall not
terminate the services of an employee except for a justor
authorized cause.
In the instant case, the termination letters given by Promm-
Gem to its employees uniformly specified the cause of
dismissal as grave misconduct and breach of trust.
Misconduct has been defined as improper or wrong conduct;
the transgression of some established and definite rule of
action, a forbidden act, a dereliction of duty, unlawful in
character implying wrongful intent and not mere error of
judgment.The misconduct to be serious must be of such grave
and aggravated character and not merely trivial and
unimportant.To be a just cause for dismissal, such misconduct
(a) must be serious; (b) must relate to the performance of the
employees duties; and (c) must show that the employee has
become unfit to continue working for the employer.
In the instant case, petitioners-employees of Promm-Gem may
have committed an error of judgment in claiming to be
employees of P&G, but it cannot be said that they were
motivated by any wrongful intent in doing so.As such, they are
only found them guilty of only simple misconduct for assailing
the integrity of Promm-Gem as a legitimate and independent
promotion firm.A misconduct which is not serious or grave, as
that existing in the instant case, cannot be a valid basis for
dismissing an employee.
Meanwhile, loss of trust and confidence, as a ground for
dismissal, must be based on the willful breach of the trust
reposed in the employee by his employer.Ordinary breach will
not suffice.A breach of trust is willful if it is done intentionally,
knowingly and purposely, without justifiable excuse, as
distinguished from an act done carelessly, thoughtlessly,
heedlessly or inadvertently.
Loss of trust and confidence, as a cause for termination of
employment, is premised on the fact that the employee
concerned holds a position of responsibility or of trust and
confidence.As such, he must be invested with confidence on
delicate matters, such as custody, handling or care and
protection of the property and assets of the employer.And, in
order to constitute a just cause for dismissal, the act
complained of must be work-related and must show that the
employee is unfit to continue to work for the employer. In the
instant case, the petitioners-employees of Promm-Gem have
not been shown to be occupying positions of responsibility or
of trust and confidence. Neither is there any evidence to show
that they are unfit to continue to work as merchandisers for
Promm-Gem. Thus, there was no valid cause for the dismissal
of petitioners-employees of Promm-Gem.
While Promm-Gem had complied with the procedural aspect of
due process in terminating the employment of petitioners-
employees,i.e., giving two notices and in between such
notices, an opportunity for the employees to answer and rebut
the charges against them, it failed to comply with the
substantive aspect of due process as the acts complained of
neither constitute serious misconduct nor breach of
trust.Hence, the dismissal is illegal.
With regard to the petitioners placed with P&G by SAPS, they
were given no written notice of dismissal.The records show
that upon receipt by SAPS of P&Gs letter terminating their
Merchandising Services Contact effective March 11, 1993,
they in turn verbally informed the concerned petitioners not to
report for work anymore.
Neither SAPS nor P&G dispute the existence of these
circumstances.Parenthetically, unlike Promm-Gem which
dismissed its employees for grave misconduct and breach of
trust due to disloyalty, SAPS dismissed its employees upon the
initiation of P&G.It is evident that SAPS does not carry on its
own business because the termination of its contract with P&G
automatically meant for it also the termination of its employees
services.It is obvious from its act that SAPS had no other
clients and had no intention of seeking other clients in order to
further its merchandising business.From all indications SAPS,
existed to cater solely to the need of P&G for the supply of
employees in the latters merchandising concerns only.Under
the circumstances prevailing in the instant case, we cannot
consider SAPS as anindependent contractor.
In termination cases, the burden of proof rests upon the
employer to show that the dismissal is for just and valid cause.
In the instant case, P&G failed to discharge the burden of
proving the legality and validity of the dismissals of those
petitioners who are considered its employees. Hence, the
dismissals necessarily were not justified and are therefore
illegal.
CIVIL LAW
Moral and exemplary damages are recoverable where the
dismissal of an employee was attended by bad faith or fraud or
constituted an act oppressive to labor or were done in a
manner contrary to morals, good customs or public policy.
With regard to the employees of Promm-Gem, there being no
evidence of bad faith, fraud or any oppressive act on the part
of the latter, we find no support for the award of damages.
As for P&G, the records show that it dismissed its employees
through SAPS in a manner oppressive to labor. The sudden
and peremptory barring of the concerned petitioners from
work, and from admission to the work place, after just a one-
day verbal notice,andfor no valid cause bellows oppression
and utter disregard of the right to due process of the
concerned petitioners.Hence, an award of moral damages is
called for.
Attorneys fees may likewise be awarded to the concerned
petitioners who
wereillegallydismissedinbadfaithandwerecompelledtolitigateori
ncur expenses to protect their rights by reason of the
oppressive act of P&G.
LABOR LAW
Lastly, under Article 279 of the Labor Code, an employee who
is unjustly dismissed from work shall be entitled to
reinstatement without loss of seniority rights and other
privileges, inclusive of allowances, and other benefits or their
monetary equivalent from the time the compensation was
withheld up to the time of actual reinstatement. Hence, all the
petitioners, having been illegally dismissed are entitled to
reinstatement without loss of seniority rights and with full back
wages and other benefits from the time of their illegal dismissal
up to the time of their actual reinstatement.
The decision and resolution of the Court of Appeals are
reversed and set aside. The case is remanded to the NLRC.
a. Desirable – Unnecessary
• Coca-Cola Bottlers Phil., Inc. v. NLRC, 307 SCRA
131 (1999)
- mentioned Singer Sewing Machine vs Drilon: the definition
that regular employees are those who perform activities which
are desirable and necessary for the business of the employer
is not determinative in this case. Any agreement may provide
that one party shall render services for and in behalf of another
for a consideration (no matter how necessary for the latter’s
business) even without being hired as an employee. This is
precisely true in the case of an independent contractorship as
well as in an agency agreement.
- Art 280 is not the yardstick for determining the existence of
an employment relationship because it merely distinguishes
between two kinds of employees i.e. regular and casual for
purposes of determining the right of an employee to certain
benefits, to join or form a union or to security of tenure. Art 280
does not apply where the existence of an employment
relationship is in dispute (compare with Manila Water)
- Painting jobs performed we sporadic. The infrequency or
irregularity of assignments countervails Canonicato’s
submission that he was assigned to undertake the task for the
whole year round.
Q: Coca Cola entered into a contract of janitorial services with
BJS. Coca Cola then hired X first, as a casual employee; after
the casual employment was terminated, Coca Cola again hired
X as a painter in contractual projects. He was also hired by
BJS, which assigned him to the Coca Cola considering his
familiarity with its premises. Goaded by information that Coca
Cola employed previous BJS employees who filed a complaint
against the company for regularization pursuant to a
compromise agreement, X submitted a similar complaint
against Coca Cola to the Labor Arbiter; he included BJS
therein as a co-respondent. He no longer reported to work and
when offered by BJS to work in other firms, he refused. He
amended the complaint to illegal dismissal and underpayment
of wages. Is there an employee-employer relationship in this
case?
A: No. The Court takes judicial notice of the practice adopted
in several government and private institutions and industries of
hiring janitorial services on an “independent contractor basis”.
Although janitorial services may be considered directly related
to the principal business of an employer, the Court deemed
them unnecessary in the conduct of the principal business.
This judicial notice rests on the assumption that the
independent contractor is a legitimate job contractor so that
there can be no doubt as to the existence of an employer-
employee relationship between the contractor and the worker.
It is also clear that BJS exercises control over the work of X as
most of his assigned task dealt with the maintenance and
sanitation of the company premises pursuant to BJS’s contract
with the company.
The Court ruled that no employer-employee relation
exists between X and Coca Cola yet the latter shall be jointly
and severally liable with BJS for the wage differentials and
13th Month pay of X. (Coca Cola Bottlers Philippines v. NLRC,
307 SCRA 131, 17 May 1999)
2.2. Labor Contractor Only; Requisites and Prohibition
• Manila Water Co., Inc. v. Pena, 434 SCRA 52
(2004)
- ACGI was engaged in labor-only contracting and as such, is
considered merely an agent of the petitioner. In labor-only
contracting, the statute creates an employer-employee
relationship for a comprehensive purpose: to prevent a
circumvention of labor laws. The contractor is considered
merely an agent of the principal employer and the latter is
responsible to the employees of the labor-only contractor as if
such employees had been directly employed by the principal
employer.
- Private resp performed activities which were necessary or
desirable to its principal trade or business. Thus, they were
regular employees of petitioner regardless of whether the
engagement was merely an accommodation of their request
pursuant to Art. 280 (compare with Far East Bank-blind
employees).
- Art. 280: the provisions of written agreement to the contrary
notwithstanding and regardless of the oral agreement of the
parties, an employment shall be deemed to be regular where
the employee has been engaged to perform activities which
are usually necessary or desirable in the usual business or
trade of the employer, except where the employment has been
fixed for a specific project or undertaking the completion or
termination of which has been determined at the time of the
engagement of the employee or where the work or services to
be performed is seasonal in nature and the employment is for
the duration of the season.
- Under this provision, the evil sought to be prevented is
singled out: agreements entered into precisely to circumvent
security of tenure. It has no application where a fixed period of
employment was agreed upon knowingly and voluntarily by the
parties, without any force, duress or improper pressure being
brought upon the employee and absent any circumstances
vitiating his consent, or where it satisfactorily appears that the
employer and employee dealt with each other on more or less
terms with no moral dominance whatever being exercised by
the former over the latter.
- Under 279 of LC, an employee who is unjustly dismissed
form work is entitled to reinstatement without loss of seniority
rights and other privileges, and to his full back wages, inclusive
of allowances, and to his other benefits or their monetary
equivalent computed from the time his compensation was
withheld from him up to the time of his actual reinstatement. If
reinstatement is no longer possible, the employer has the
alternative of paying the employee his separation pay in lieu of
reinstatement
FACTS: Manila Water Company, Inc. is contracted by the
etropolitan Waterworks and Sewerage System (MWSS) to
manage the water distribution system in the East Zone of
Metro Manila. Manila Water absorbed the former
employees of the MWSS whose names and positions were in
the list furnished by the latter, while the employment of those
not in the list was terminated on the day Manila Water took
over the operation of the East Zone. Respondents, being
contractual collectors of the MWSS, were among the 121
employees not included in the list. Manila Water engaged their
services without written contract. Then, they signed a three-
month contract to perform collection services for 8 branches of
Manila Water in the East Zone. Before the end of the three-
month contract, the 121 collectors incorporated the Association
Collectors Group, Inc. (ACGI), which was contracted by Manila
Water to collect charges for the Balara Branch. Subsequently,
most of the 121 collectors were asked by Manila Water to
transfer to the First Classic Courier Services, a newly
registered corporation. Respondents remained with ACGI.
Later, Manila
Water terminated its contract with ACGI.
Respondents filed a complaint for illegal dismissal and money
claims, contending that they were Manila Water’s employees
as all the methods and procedures of their collections were
controlled by the latter. Manila Water
asserts that respondents were employees of ACGI, an
independent contractor. It maintained that it had no control and
supervision over private respondents’ manner of performing
their work except as to the results. Thus, Manila Water did not
have an employer-employee relationship with the private
respondents, but only a service contractor-client relationship
with ACGI.
ISSUE: Is ACGI an independent contractor?
HELD: NO. ACGI was engaged in labor-only contracting, and
as such, is considered merely an agent of the
petitioner. Since ACGI is only a labor-only contractor, the
workers it supplied should be considered as employees of
Manila Water.
First, ACGI does not have substantial capitalization or
investment in the form of tools, equipment, machineries, work
premises, and other materials, to qualify as an independent
contractor. While it has an authorized capital stock of
P1,000,000.00, only P62,500.00 is actually paid-in, which
cannot be considered substantial
capitalization. The 121 collectors subscribed to four shares
each and paid only the amount of P625.00 in order to comply
with the incorporation requirements. Respondents reported
daily to the branch office of Manila Water because ACGI has
no office or work premises. The corporate address of ACGI
was the residence of its president, Mr. Peña. Moreover, in
dealing with the consumers, respondents used the receipts
and identification cards issued by
Manila Water. Second, the work of the private respondents
was directly related to the principal business or operation of
Manila Water. Being in the business of providing water to the
consumers in the East Zone, the collection of the charges by
respondents for Manila Water can only be categorized as
clearly related to, and in the pursuit of the latter’s business.
Lastly, ACGI did not carry on an independent business or
undertake the performance of its service contract
according to its own manner and method, free from the control
and supervision of its principal, petitioner. Prior to
respondents’ alleged employm ent with ACGI, they were
already working for petitioner, subject to its rules and
regulations in regard to the manner and method of performing
their tasks. This form of control and supervision never changed
although they were already under the seeming employ of
ACGI. Manila Water issued memoranda regarding the billing
methods and distribution of books to the collectors; it required
respondents to report daily and to remit their collections on the
same day to the branch office or to deposit them with Bank of
the Philippine Islands; it monitored strictly their attendance as
when a collector cannot perform his daily collection, he must
notify petitioner or the branch office in the morning of the day
that he will be absent; and although it was ACGI which
ultimately disciplined respondents, the penalty to be imposed
was dictated by petitioner as shown in the letters it sent to
ACGI specifying the penalties to be meted on the erring
respondents. These are indications that ACGI was not left
alone in the supervision and control of its alleged employees.
Consequently, it can be concluded that ACGI was not an
independent contractor since it did not carry a distinct business
free from the control and supervision of petitioner.
2.3 Effect of Finding
• San Miguel Corporation v. Abella, 461 SCRA 392 (2005)
- Effect of finding: there being a finding of labor-only
contracting, liability must be shouldered by either SMC
(principal) or Sunflower (contractor) or shared by both. SMC
however should be held solely liable for Sunflower became
non-existent with the closure of the aquaculture of business of
SMC (CA reason).
- In legitimate labor contracting, the law creates an employer-
employee relationship for a limited purpose, i.e. to ensure that
the employees are paid their wages. The principal employer
becomes jointly and severally liable with the job contractor,
only for the payment of the employees’ wages whenever the
contractor fails to pay the same. Other than that, the principal
employer is not responsible for any claim made by the
employees.
- In labor-only contracting, the statute creates an employer-
employee relationship for a comprehensive prupose: to
prevent a circumvention of labor laws. The contractor is
considered merely an agent of the principal employer and the
latter is responsible to the employees of the labor-only
contractor as if such employees had been directly employed by
the principal employer.
- Retrenchment is a management prerogative consistently
recognized and affirmed by this Court. It is, however, subject to
faithful compliance with the substantive and procedural
requirements laid down by law and jurisprudence.
- For retrenchment to be considered valid, the following
substantial requirements must be met:
1) the losses expected should be substantial and not merely
de minimis in extent
2) substantial losses apprehended must be reasonably
imminent such as can be perceived objectively and in good
faith by the employer
3) the retrenchment must be reasonably necessary and likely
to effectively prevent the expected losses
4) the alleged losses, if already incurred, and the expected
imminent losses sought to be forestalled, must be proved by
sufficient and convincing evidence.
- SMC proved substantial business reverses justifying
retrenchment of its employees
- For termination due to retrenchment be valid, the law requires
that written notices of the intended retrenchment be served by
the employer on the worker and on the DOLE at least 1 month
before the actual date of the retrenchment in order to give
employees some time to prepare for the eventual loss of their
jobs, as well as to give DOLE the opportunity to ascertain the
verity of the alleged cause of termination.
- Where the dismissal is based on an authorized cause under
Art 283 but the employer failed to comply with the notice
requirement, the sanction should be stiff as the dismissal
process was initiated by the employer’s exercise of his
management prerogative, as opposed to a dismissal based on
a just cause under 282, because the dismissal is imputable to
the employee.
The language of a contract disavowing the existence of an
employer-employee relationship is not determinative of the
parties’ relationship. It is the totality of the facts and
surrounding circumstances of the case.
Facts: Petitioner San Miguel Corporation (SMC) and
Sunflower Multi-Purpose Cooperative (Sunflower) entered into
a one-year Contract of Service and such contract is renewed
on a monthly basis until terminated. Pursuant to this,
respondent Prospero Aballa et al. rendered services to SMC.
After one year of rendering service, Aballa et al., filed a
complaint before National Labor Relations Commission
(NLRC) praying that they be declared as regular employees of
SMC. On the other hand, SMC filed before the Department of
Labor and Employment (DOLE) a Notice of Closure due to
serious business losses. Hence, the labor arbiter dismissed
the complaint and ruled in favor of SMC. Aballa et al. then
appealed before the NLRC. The NLRC dismissed the appeal
finding that Sunflower is an independent contractor.
On appeal, the Court of Appeals reversed NLRC’s decision on
the ground that the agreement between SMC and Sunflower
showed a clear intent to abstain from establishing an
employer-employee relationship.
ISSUE:
Whether or not Aballa et al. are employees of SMC
HELD:
The test to determine the existence of independent
contractorship is whether one claiming to be an independent
contractor has contracted to do the work according to his own
methods and without being subject to the control of the
employer, except only as to the results of the work.
In legitimate labor contracting, the law creates an employer-
employee relationship for a limited purpose, i.e., to ensure that
the employees are paid their wages. The principal employer
becomes jointly and severally liable with the job contractor,
only for the payment of the employees’ wages whenever the
contractor fails to pay the same. Other than that, the principal
employer is not responsible for any claim made by the
employees.
In labor-only contracting, the statute creates an employer-
employee relationship for a comprehensive purpose: to
prevent a circumvention of labor laws. The contractor is
considered merely an agent of the principal employer and the
latter is responsible to the employees of the labor-only
contractor as if such employees had been directly employed by
the principal employer.
The Contract of Services between SMC and Sunflower shows
that the parties clearly disavowed the existence of an
employer-employee relationship between SMC and private
respondents. The language of a contract is not, however,
determinative of the parties’ relationship; rather it is the totality
of the facts and surrounding circumstances of the case. A
party cannot dictate, by the mere expedient of a unilateral
declaration in a contract, the character of its business, i.e.,
whether as labor-only contractor or job contractor, it being
crucial that its character be measured in terms of and
determined by the criteria set by statute.
What appears is that Sunflower does not have substantial
capitalization or investment in the form of tools, equipment,
machineries, work premises and other materials to qualify it as
an independent contractor. On the other hand, it is gathered
that the lot, building, machineries and all other working tools
utilized by Aballa et al. in carrying out their tasks were owned
and provided by SMC.
And from the job description provided by SMC itself, the work
assigned to Aballa et al. was directly related to the aquaculture
operations of SMC. As for janitorial and messengerial services,
that they are considered directly related to the principal
business of the employer has been jurisprudentially
recognized.
Furthermore, Sunflower did not carry on an independent
business or undertake the performance of its service contract
according to its own manner and method, free from the control
and supervision of its principal, SMC, its apparent role having
been merely to recruit persons to work for SMC.
All the foregoing considerations affirm by more than substantial
evidence the existence of an employer-employee relationship
between SMC and Aballa et al. Since Aballa et al. who were
engaged in shrimp processing performed tasks usually
necessary or desirable in the aquaculture business of SMC,
they should be deemed regular employees of the latter and as
such are entitled to all the benefits and rights appurtenant to
regular employment. They should thus be awarded differential
pay corresponding to the difference between the wages and
benefits given them and those accorded SMC’s other regular
employees.
San Miguel Corporation (SMC), entered into a one-year
Contract of Services with Sunflower Multi-Purpose
Cooperative (Sunflower) to be renewed on a month to month
basis until terminated by either party. Under the
contract, Sunflower agrees and undertakes to perform and/or
provide for the company the following services for the Bacolod
Shrimp Processing Plant: Messengerial/Janitorial, Shrimp
Harvesting/Receiving, and Sanitation/Washing/Cold Storage.
The cooperative shall employ the necessary personnel and
provide adequate equipment, materials, tools and apparatus,
to efficiently, fully and speedily accomplish the work and
services undertaken by the cooperative. The cooperative shall
have the entire charge, control and supervision of the work and
services. There is no employer-employee relationship between
the company and the cooperative, or the cooperative and any
of its members, or the company and any members of the
cooperative. The cooperative shall, whenever possible,
maintain and keep under its control the premises where the
work under this contract shall be performed.
Respondents filed a complaint praying to be declared as
regular employees of SMC, with claims for recovery
of all benefits and privileges enjoyed by SMC rank and file
employees. Subsequently, they included illegal dismissal as
additional cause of action following SMC’s closure of its
Bacolod Shrimp Processing Plant which resulted in the
termination of their services. Moreover, SMC insists that
respondents are the employees of Sunflower, an independent
contractor. On the other hand, respondents assert that
Sunflower is a labor-only contractor.
ISSUE: Is Sunflower an independent contractor?
HELD: NO. The following considerations affirm by more than
substantial evidence the existence of an employer-employee
relationship between SMC and respondents:
The Contract of Services between SMC and Sunflower shows
that the parties clearly disavowed the existence
of an employer-employee relationship between SMC and
respondents. The language of a contract is not, however,
determinative of the parties’ relationship; rather it is the totality
of the facts and surrounding circumstances of the case. A
party cannot dictate, by the mere expedient of a unilateral
declaration in a contract, the character of its business, i.e.,
whether as labor-only contractor or job contractor, it being
crucial that its character be measured in terms of and
determined by the criteria set by statute. What appears is that
Sunflower does not have substantial capitalization or
investment in the form of tools, equipment, machineries, work
premises and other materials to qualify it as an independent
contractor. And from the job description provided by SMC
itself, the work assigned to private respondents was directly
related to the aquaculture operations of SMC. Undoubtedly,
the nature of the work performed by respondents in shrimp
harvesting, receiving and packing formed an integral part of
the shrimp processing operations of SMC. As for
janitorial and messengerial services, that they are considered
directly related to the principal business of the employer has
been jurisprudentially recognized.
Furthermore, Sunflower did not carry on an independent
business or undertake the performance of its service contract
according to its own manner and method, free from the control
and supervision of its principal, SMC,
its apparent role having been merely to recruit persons to work
for SMC.
Thus, it is gathered from the evidence adduced by
respondents before the LA that their daily time records
were signed by SMC supervisors which fact shows that SMC
exercised the power of control and supervision over its
employees. And control of the premises in which private
respondents worked was by SMC. These tend to disprove the
independence of the contractor.
2.4 Liability of Indirect Employer
• Eparwa Security and Janitorial Services, Inc. v. Liceo
Cagayan University, 508 SCRA 370 (2007)
FACTS:
On 1 December 1997, Eparwa and LDCU, through their
representatives, entered into a Contract for Security Services
which states that LCDU undertakes to pay P5,000 per guard,
in consideration of their services.
On 21 December 1998, 11 security guards whom Eparwa
assigned to LDCU filed a complaint before the NLRC against
both Eparwa and LDCU for underpayment of salary, legal
holiday pay, 13th month pay, rest day, service incentive leave,
night shift differential, overtime pay, and payment for attorney’s
fees.
LDCU made a cross-claim and prayed that Eparwa should
reimburse LDCU for any payment to the security guards.
LA found that the security guards are entitled to wage
differentials and premium for holiday and rest day work. The
Labor Arbiter also held Eparwa and LDCU solidarily liable
pursuant to Article 109 of the Labor Code.
The NLRC held Eparwa and LDCU solidarily liable for the
wage differentials and premium for holiday and rest day work
but did not require Eparwa to reimburse LDCU for its payments
to the security guards. Upon an MR, the NLRC declared that
although Eparwa and LDCU are solidarily liable to the security
guards for the monetary award, LDCU alone is ultimately
liable.
The CA reinstated the Labor Arbiter’s decision. The appellate
court also allowed LDCU to claim reimbursement from Eparwa.
ISSUE: Is LDCU alone ultimately liable to the security guards
for the wage differentials and premium for holiday and rest day
pay? - YES
HELD: This Court’s ruling in Eagle Security Agency, Inc. v.
NLRC[12] squarely applies to the present case. In Eagle, we
ruled that:
This joint and several liability of the contractor and the
principal is mandated by the Labor Code to assure compliance
of the provisions therein including the statutory minimum wage.
The contractor is made liable by virtue of his status as direct
employer. The principal, on the other hand, is made the
indirect employer of the contractor’s employees for purposes of
paying the employees their wages should the contractor be
unable to pay them.
In the case at bar, it is beyond dispute that the security
guards are the employees of EAGLE. That they were assigned
to guard the premises of PTSI pursuant to the latter’s contract
with EAGLE and that neither of these two entities paid their
wage and allowance increases under the subject wage orders
are also admitted.
The solidary liability of PTSI and EAGLE, however,
does not preclude the right of reimbursement from his co-
debtor by the one who paid. It is with respect to this right of
reimbursement that petitioners can find support in the
aforecited contractual stipulation and Wage Order provision.
The Wage Orders are explicit that payment of the
increases are “to be borne” by the principal or client. “To be
borne”, however, does not mean that the principal, PTSI in this
case, would directly pay the security guards the wage and
allowance increases because there is no privity of contract
between them. The security guards’ contractual relationship is
with their immediate employer, EAGLE. As an employer,
EAGLE is tasked, among others, with the payment of their
wages.
On the other hand, there existed a contractual
agreement between PTSI and EAGLE wherein the former
availed of the security services provided by the latter. In return,
the security agency collects from its client payment for its
security services. This payment covers the wages for the
security guards and also expenses for their supervision and
training, the guards’ bonds, firearms with ammunitions,
uniforms and other equipments, accessories, tools, materials
and supplies necessary for the maintenance of a security
force.
Premises considered, the security guards’ immediate
recourse for the payment of the increases is with their direct
employer, EAGLE. However, in order for the security agency to
comply with the new wage and allowance rates it has to pay
the security guards, the Wage Orders made specific provision
to amend existing contracts for security services by allowing
the adjustment of the consideration paid by the principal to the
security agency concerned. What the Wage Orders require,
therefore, is the amendment of the contract as to the
consideration to cover the service contractor’s payment of the
increases mandated. In the end, therefore, ultimate liability for
the payment of the increases rests with the principal.
In view of the foregoing, the security guards should
claim the amount of the increases from EAGLE. Under the
Labor Code, in case the agency fails to pay them the amounts
claimed, PTSI should be held solidarily liable with EAGLE.
Should EAGLE pay, it can claim an adjustment from PTSI for
an increase in consideration to cover the increases payable to
the security guards.
However, in the instant case, the contract for security
services had already expired without being amended
consonant with the Wage Orders. It is also apparent from a
reading of a record that EAGLE does not now demand from
PTSI any adjustment in the contract price and its main concern
is freeing itself from liability. Given these peculiar
circumstances, if PTSI pays the security guards, it cannot
claim reimbursement from EAGLE. But in case it is EAGLE
that pays them, the latter can claim reimbursement from PTSI
in lieu of an adjustment, considering that the contract had
expired and had not been renewed.
For the security guards, the actual source of the
payment of their wage differentials and premium for holiday
and rest day work does not matter as long as they are paid.
This is the import of Eparwa and LDCU’s solidary liability.
Creditors, such as the security guards, may collect from
anyone of the solidary debtors. Solidary liability does not
mean that, as between themselves, two solidary debtors are
liable for only half of the payment.
LDCU’s ultimate liability comes into play because of the
expiration of the Contract for Security Services. There is no
privity of contract between the security guards and LDCU, but
LDCU’s liability to the security guards remains because of
Articles 106, 107 and 109 of the Labor Code. Eparwa is
already precluded from asking LDCU for an adjustment in the
contract price because of the expiration of the contract, but
Eparwa’s liability to the security guards remains because of
their employer-employee relationship. In lieu of an adjustment
in the contract price, Eparwa may claim reimbursement from
LDCU for any payment it may make to the security guards.
However, LDCU cannot claim any reimbursement from Eparwa
for any payment it may make to the security guards.
CHAPTER III – Special Group of Workers/Employee
1. OVERSEAS WORKERS
A. Pre-employment, Recruitment and Placement of
Workers
Reference: Arts. 12-42; POEA Rules; Book 1, Rules IIIVIII,
Omnibus Rules; Migrant Workers and Overseas
Filipinos Act of 1995 (RA 8042); Anti-Trafficking in Persons Act
2003 (RA 9208) and Rules and Regulations Implementing RA
9208
1. Pre-employment Policy – Statement of Objectives, Art.
12 (a) (f); Const., Art. II, Sec. 9; RA 8042, Sec. 2, 4 & 5.
ART. 12. Statement of objectives. - It is the policy of
the State:
a) To promote and maintain a state of full employment through
improved manpower training, allocation and utilization;
f) 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;
1987 Constitution, Art II, Sec. 9
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.
REPUBLIC ACT NO. 8042
SEC. 2. DECLARATION OF POLICIES--
(a) In the pursuit of an independent foreign policy and while
considering national sovereignty, territorial integrity, national
interest and the right to self-determination paramount in its
relations with other states, the State shall, at all times, uphold
the dignity of its citizens whether in country or overseas, in
general, and Filipino migrant workers, in particular.
(b) 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.
Towards this end, the State shall provide adequate and timely
social, economic and legal services to Filipino migrant workers.
(c) While recognizing the significant contribution of Filipino
migrant workers to the national economy through their foreign
exchange remittances, the State does not
promote overseas employment as a means to sustain
economic growth and achieve national development. The
existence of the overseas employment program rests solely on
the assurance that the dignity and
fundamental human rights and freedoms of the Filipino citizens
shall not, at any time, be compromised or violated. The State,
therefore, shall continuously create local employment
opportunities and promote the
equitable distribution of wealth and the benefits of
development.
(d) The State affirms the fundamental equality before the law
of women and men and the significant role of women in nation
building. Recognizing the contribution of
overseas migrant women workers and their particular
vulnerabilities, the State shall apply gender sensitive criteria in
the formulation and implementation of policies
and programs affecting migrant workers and the composition
of bodies tasked for the welfare of migrant workers.
(e) Free access to the courts and quasi-judicial bodies and
adequate legal assistance shall not be denied to any
persons by reason of poverty. In this regard, it is imperative
that an effective mechanism be instituted to ensure that the
rights and interest of distressed overseas Filipinos, in general,
and Filipino migrant workers, in
particular, documented or undocumented, are adequately
protected and safeguarded.
(f) The right of Filipino migrant workers and all overseas
Filipinos to participate in the democratic decision-making
processes of the State and to be represented in institutions
relevant to overseas employment is recognized and
guaranteed.
(g) The State recognizes that the ultimate protection to all
migrant workers is the possession of skills. Pursuant to this
and as soon as practicable, the government shall
deploy and/or allow the deployment only to skilled Filipino
workers.
(h) Non-governmental organizations, duly recognized as
legitimate, are partners of the State in the protection of Filipino
migrant workers and in the promotion of their
welfare, the State shall cooperate with them in a spirit of trust
and mutual respect.
(I) Government fees and other administrative costs of
recruitment, introduction, placement and assistance to migrant
workers shall be rendered free without prejudice to the
provision of Section 36 hereof.
Nonetheless, the deployment of Filipino overseas workers,
whether land-based or sea-based by local service contractors
and manning agencies employing them shall be encouraged.
Appropriate incentives may be extended to them.
I. DEPLOYMENT
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;
(b) It is a signatory to multilateral conventions, declaration or
resolutions relating to the protection of migrant workers;
(c) It has concluded a bilateral agreement or arrangement with
the government protecting the rights of overseas Filipino
workers; and
(d) It is taking positive, concrete measures to protect the rights
of migrant workers.
SEC. 5. TERMINATION OR BAN ON DEPLOYMENT -
Notwithstanding the provisions of Section 4 hereof, the
government, in pursuit of the national interest or when public
welfare so requires, may, at any time, terminate or impose a
ban on the deployment of migrant workers.
2. Private Sector – Agencies and Entities
a. PARTIES
1. Worker – Art. 13 (a); RA 8042, Sec 3(a), as amended
ART. 13. Definitions. - (a) "Worker" means any member
of the labor force, whether employed or unemployed.
RA 8042, Sec 3(a)
(a) "Migrant worker" refers to a person who is to be
engaged, is engaged or has been engaged in a
enumerated activity in a state of which he or she is not a
legal resident to be used interchangeably with overseas
Filipino worker.
2. Private Employment Agency – Arts. 13 (c) (d), 12 (f),
14 (a)
ART. 13.
(c) "Private fee-charging employment agency" means 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.
(d) "License" means a document issued by the
Department of Labor authorizing a person or entity to
operate a private employment agency.
ART. 12. Statement of objectives. - It is the policy of the
State:
f) 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;
ART. 14. Employment promotion. – The Secretary of Labor
shall have the power and authority:
(a) To organize and establish new employment offices in
addition to the existing employment offices under the
Department of Labor as the need arises;
3. Private Recruitment Entity – Arts. 13 (e) (f), 12 (f),
14 (a)
ART. 13.
(e) "Private recruitment entity" means any person or
association engaged in the recruitment and placement of
workers, locally or overseas, without charging, directly or
indirectly, any fee from the workers or employers.
(f) "Authority" means a document issued by the Department of
Labor authorizing a person or association to engage in
recruitment and placement activities as a
private recruitment entity
.
ART. 12. Statement of objectives. - It is the
policy of the State:
f) 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;
ART. 14. Employment promotion. - The
Secretary of Labor shall have the power and
authority:
(a) To organize and establish new employment offices in
addition to the existing employment offices under the
Department of Labor as the need arises;
b. RECRUITMENT AND PLACEMENT
1. Local Employment, Art. 13 (b)
ART 13.
(b) "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.
2. Overseas Employment, Sec. 6, RA 8042
Sec. 6. DEFINITIONS. - For purposes of this Act, illegal
recruitment shall mean any act of canvassing, enlisting,
contracting, transporting, utilizing, hiring, procuring
workers and includes referring, contact services, promising or
advertising for employment abroad, whether for profit or not,
when undertaken by a non-license or non-holder of authority
contemplated under
Article 13(f) of Presidential Decree No. 442, as amended,
otherwise known as the Labor Code of the Philippines.
Provided, that such non-license or non-holder, who, in any
manner, offers or promises for a fee
employment abroad to two or more persons shall be deemed
so engaged. It shall likewise include the following acts,
whether committed by any persons, whether a non-licensee,
non-holder, licensee or holder of authority.
(a) To charge or accept directly or indirectly any amount
greater than the specified in the schedule of allowable fees
prescribed by the Secretary of Labor and Employment, 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 the
Labor Code
(d) To induce or attempt to induce a worker already employed
to quit his employment in order to offer him another unless the
transfer is designed to liberate a worker from oppressive terms
and conditions of
employment;
(e) To influence or attempt to influence any persons or entity
not to employ any worker who has not applied for employment
through his agency;
(f) To engage in the recruitment of placement of workers in
jobs harmful to public health or morality or to dignity of the
Republic of the Philippines;
(g) To obstruct or attempt to obstruct inspection by the
Secretary of Labor and Employment or by his duly authorized
representative;
(h) To fail to submit reports on the status of employment,
placement vacancies, and remittances of foreign exchange
earnings, separations from jobs, departures and such other
matters or information as may be required by the Secretary of
Labor and Employment;
(i) To substitute or alter to the prejudice of the worker,
employment contracts approved and verified by the
Department of Labor and Employment from the time of actual
signing thereof by the parties up to and including the period of
the expiration of the same without the approval of the
Department of Labor and Employment;
(j) For an officer or agent of a recruitment or placement agency
to become an officer or member of the Board of any
corporation engaged in travel agency or to be engaged
directly on indirectly in the management of a
travel agency;
(k) To withhold or deny travel documents from applicant
workers before departure for monetary or financial
considerations other than those authorized under the Labor
Code and its implementing rules and regulations;
(l) Failure to actually deploy without valid reasons as
determined by the Department of Labor and Employment; and
(m) Failure to reimburse expenses incurred by the workers in
connection with his documentation and processing for
purposes of deployment, in cases where the deployment does
not actually take place without the worker's fault. Illegal
recruitment when committed by a syndicate or in large scale
shall be considered as offense involving economic sabotage.
Illegal recruitment is deemed committed by a syndicate carried
out by a group of three (3) or more persons conspiring or
confederating with one another. It is deemed committed in
large scale if committed against three (3) or more persons
individually or as a group.
The persons criminally liable for the above offenses are the
principals, accomplices and accessories. In case of juridical
persons, the officers having control, management or direction
of their business shall be liable.
c. ALLOWED AND PROTECTED ENTITIES
1) Allowed Private Agencies and Entities, Arts. 16,
18, 25, 12 (f); 2002 POEA Rules & Regulations, Part I, Rule II,
Sec. 2
ART. 16. Private recruitment. - Except as provided in Chapter
II of this Title, no person or entity other than the public
employment offices, shall engage in the recruitment and
placement of workers.
ART. 18. Ban on direct-hiring. - No employer may hire a
Filipino worker for overseas employment except through the
Boards and entities authorized by the Secretary of Labor.
Direct-hiring by members of the diplomatic corps, international
organizations and such other employers as may be allowed by
the Secretary of Labor is exempted from this provision.
ART. 25. Private sector participation in the recruitment and
placement of workers. - Pursuant to national development
objectives and in order to harness and maximize the use of
private sector resources and initiative in the development and
implementation of a
comprehensive employment program, the private employment
sector shall participate in the recruitment and placement of
workers, locally and overseas, under such guidelines, rules
and regulations as may be issued by the Secretary of Labor.
ART. 12. Statement of objectives. - It is the
policy of the State:
f) 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;
2002 POEA Rules & Regulations, Part I, Rule II, Sec. 1
Section 1. Qualifications. Only those who possess the
following qualifications may be permitted to engage in the
business of recruitment and placement of Filipino workers:
a. Filipino citizens, partnerships or corporations at least
seventy five percent (75%) of the authorized capital stock of
which is owned and controlled by Filipino citizens;
b. A minimum capitalization of Two Million Pesos
(P2,000,000.00) in case of a single proprietorship
or partnership and a minimum paid-up capital of Two Million
Pesos (P2,000,000.00) in case of a corporation; Provided that
those with existing licenses shall, within four years from
effectivity hereof, increase their capitalization or paid up
capital, as the case may be, to Two Million Pesos
(P2,000,000.00) at the rate of Two Hundred Fifty Thousand
Pesos (P250,000.00) every year.
c. Those not otherwise disqualified by law or other government
regulations to engage in the
recruitment and placement of workers for overseas
employment.
2. Prohibited Business Agencies and Entities,
Arts.16, 18, 25, 26; 2002 POEA Rules & Regulations, Part I,
Rule II, Sec. 2
ART. 16. Private recruitment. - Except as provided in
Chapter II of this Title, no person or entity other than
the public employment offices, shall engage in the
recruitment and placement of workers.
ART. 18. Ban on direct-hiring. - No employer may hire
a Filipino worker for overseas employment except
through the Boards and entities authorized by the
Secretary of Labor. Direct-hiring by members of the
diplomatic corps, international organizations and such
other employers as may be allowed by the Secretary
of Labor is exempted from this provision.
ART. 25. Private sector participation in the recruitment
and placement of workers. - Pursuant to national
development objectives and in order to harness and
maximize the use of private sector resources and
initiative in the development and implementation of a
comprehensive employment program, the private
employment sector shall participate in the recruitment
and placement of workers, locally and overseas,
under such guidelines, rules and regulations as may
be issued by the Secretary of Labor.
ART. 26. Travel agencies prohibited to recruit. - Travel
agencies and sales agencies of airline companies are
prohibited from engaging in the business of
recruitment and placement of workers for overseas
employment whether for profit or not.
2002 POEA Rules & Regulations, Part I, Rule II, Sec. 2
Section 2. Disqualification. The following are not qualified to
engage in the business of recruitment and placement of
Filipino workers overseas:
a. Travel agencies and sales agencies of airline companies;
b. Officers or members of the Board of any corporation or
members in a partnership engaged in the business of a travel
agency;
c. Corporations and partnerships, when any of its officers,
members of the board or partners, is also an officer, member
of the board or partner of a corporation or partnership engaged
in the business of a travel agency;
d. Persons, partnerships or corporations which have
derogatory records, such as but not limited to the following:
1) Those certified to have derogatory record or information by
the National Bureau of Investigation or by the Anti-Illegal
Recruitment Branch of the POEA;
2) Those against whom probable cause or prima facie finding
of guilt for illegal recruitment or other related cases exists;
3) Those convicted for illegal recruitment or other related
cases and/or crimes involving moral turpitude; and
4) Those agencies whose licenses have been previously
revoked or cancelled by the Administration for violation of RA
8042, PD 442 as amended and their implementing rules and
regulations as well as these rules and regulations.
All applicants for issuance/renewal of license shall be required
to submit clearances from the National Bureau of Investigation
and Anti-illegal Recruitment Branch, POEA, including
clearances for their respective officers and employees.
e. Any official or employee of the DOLE, POEA, OWWA, DFA
and other government agencies directly involved in the
implementation of R.A. 8042, otherwise known as Migrant
Workers and Overseas Filipino Act of 1995 and/or any of
his/her relatives within the fourth civil degree of consanguinity
or affinity; and
f. Persons or partners, officers and Directors of corporations
whose licenses have been previously cancelled or revoked for
violation of recruitment laws
d. GOVERNMENT TECHNIQUES OF REGULATION –
• Hornales v. NLRC, 364 SCRA 778 (2001) PRIVATE RECRUITMENT
1. Licensing

a. Qualifications Arts. 27, 28, 29, 30, 31, 2002 POEA Rules
and Regulations, Part II, Rule I, Section 1 (a) (b)

ART. 27. Citizenship requirement. – Only Filipino citizens or

corporations, partnerships or entities at least seventy-five
percent (75%) of the authorized and voting capital stock of
which is owned and controlled by Filipino citizens shall be
permitted to participate in the recruitment and placement of
workers, locally or overseas.

ART. 28. Capitalization. - All applicants for authority to hire or

renewal of license to recruit are required to have such
substantial capitalization as determined by the Secretary of
Labor

ART. 29. Non-transferability of license or authority.-

No license or authority shall be used directly or indirectly by
any person other than the one in whose favor it was issued or
at any place other than that stated in the license or authority be
transferred, conveyed or assigned to any other person or
entity. Any transfer of business address, appointment or
designation of any agent or
representative including the establishment of additional offices
anywhere shall be subject to the prior approval of the
Department of Labor.

ART. 30. Registration fees.- The Secretary 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 or authority shall

post such cash and surety bonds as determined by the
Secretary of Labor to guarantee compliance with prescribed
recruitment procedures, rules and regulations, and terms and
conditions of employment as may be appropriate.

2002 POEA rules and Regulations, Part II, Rule I, Section (a)
(b)

PART II
LICENSING AND REGULATION
RULE I
PARTICIPATION OF THE PRIVATE SECTOR IN THE
OVERSEAS EMPLOYMENT PROGRAM
Section 1. Qualifications. Only those who possess the
following qualifications may be permitted to engage in the
business of recruitment and placement of Filipino workers:
a. Filipino citizens, partnerships or corporations at least
seventy five percent (75%) of the authorized capital stock of
which is owned and controlled by Filipino citizens;
b. A minimum capitalization of Two Million Pesos
(P2,000,000.00) in case of a single proprietorship or
partnership and a minimum paid-up capital of Two Million
Pesos (P2,000,000.00) in case of a corporation; Provided that
those with existing licenses shall, within four years from
effectivity hereof, increase their capitalization or paid up
capital, as the case may be, to Two Million Pesos
(P2,000,000.00) at the rate of Two Hundred Fifty Thousand
Pesos (P250,000.00) every year.
c. Those not otherwise disqualified by law or other government
regulations to engage in the recruitment and placement of
workers for overseas employment.
b. Issuance of License Arts. 29, 30, 31; 2002 POEA Rules
and Regulations, Part II, Rule II, Secs. 4, 5, 6, 7, 8 & 9
ART. 29. Non-transferability of license or authority.-
No license or authority shall be used directly or indirectly by
any person other than the one in whose favor it was issued or
at any place other than that stated in the license or authority be
transferred, conveyed or assigned to any other person or
entity. Any transfer of business address, appointment or
designation of any agent or
representative including the establishment of additional offices
anywhere shall be subject to the prior approval of the
Department of Labor.
ART. 30. Registration fees.- The Secretary 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 or authority shall
post such cash and surety bonds as determined by the
Secretary of Labor to guarantee compliance with prescribed
recruitment procedures, rules and regulations, and terms and
conditions of employment as may be appropriate.
POEA Rules and Regulations, Part II, Rule II, Secs. 4, 5, 6, 7,
8&9
RULE II
ISSUANCE OF LICENSE
Section 4. Payment of Fees and Posting of Bonds.
Upon approval of the application, the applicant shall pay a
license fee of P50,000.00. It shall submit an Escrow
Agreement in the amount of P1,000,000.00, confirmation of
escrow deposit with an accredited reputable bank and a surety
bond of P100,000.00 from a bonding company acceptable to
the Administration and accredited with the
Insurance Commission. Agencies with existing licenses shall,
within four years from effectivity hereof, increase their Escrow
Deposit to One Million Pesos .
The bonds and escrow shall answer for all valid and legal
claims arising from violations of the conditions for the grant
and use of the license, and/or accreditation and contracts of
employment.
The bonds and escrow shall likewise guarantee compliance
with the provisions of the Code and its
implementing rules and regulations relating to recruitment and
placement, the Rules of the Administration and relevant
issuances of the Department and all liabilities which the
Administration may impose. The surety bonds shall include the
condition “that notice to the principal is notice to the surety and
that any judgment against the principal in connection with
matters falling under POEA’s/NLRC’s jurisdiction shall be
binding and conclusive on the surety. The surety bonds shall
cover the validity period of the license.
Section 5. Provisional License. Applicants for new license
shall be issued a provisional license which shall be valid for a
limited period of one (1) year within which the applicant should
be able to comply with its undertaking to deploy 100 workers to
its new principal. The license of a complying agency shall be
upgraded to a full license entitling them to another three years
of operation. Non-complying agencies will be notified of the
expiration of their license.
Section 6. Validity of the License. Except in case of a
provisional license, every license shall be valid for four (4)
years from the date of issuance unless sooner cancelled,
revoked or suspended for violation of applicable Philippine law,
these rules and other pertinent issuances. Such license shall
be valid only at the place/s stated therein and when used by
the licensed person, partnership or corporation.
Section 7. Non-Transferability of License. No license shall be
transferred, conveyed or assigned to ny person, partnership or
corporation. It shall not be used directly or indirectly by any
person, partnership or corporation other than the one in whose
favor it was issued. In case of death of the sole proprietor and
to prevent disruption of operation to the prejudice of the
interest of legitimate heirs, the license may be extended upon
request of the heirs, to continue only for the purpose of winding
up business operations.
Section 8. Change of Ownership/Relationship of Single
Proprietorship or Partnership. Transfer or change of ownership
of a single proprietorship licensed to engage in overseas
employment shall cause the automatic revocation of the
license.
A change in the relationship of the partners in a partnership
duly licensed to engage in overseas employment which
materially interrupts the course of the business or results in the
actual dissolution
of the partnership shall likewise cause the automatic
revocation of the license.
Section 9. Upgrading of Single Proprietorship or Partnerships.
License holders which are single proprietorships or
partnerships may, subject to the guidelines of the
Administration, convert into corporation for purposes of
upgrading or raising their capabilities to respond adequately to
developments/changes in the international labor market and to
enable them to better comply with their responsibilities arising
from the recruitment and deployment of workers overseas.
The approval of merger, consolidation or upgrading shall
automatically revoke or cancel the licenses of the single
proprietorships, partnerships or corporations so merged,
consolidated or
upgraded.
2. Worker’s Fees, Art. 32
ART. 32. Fees to be paid by workers. – Any person applying
with a private fee-charging employment agenc
y for employment assistance shall not be charged an
y fee until he has obtained employment through its
efforts or has actually commenced employment. Such fee shall
be always covered with the appropriate receipt clearly showing
the amount paid. The Secretary of Labor shall promulgate a
schedule ofallowable fees.
3. Reports/Employment Information, Arts.33, 14 (d)
ART. 33. Reports on employment status. -Whenever the public
interest requires, the Secretary of Labor may direct all persons
or entities within the coverage of this
Title to submit a report on the status of employment,
including job vacancies, details of job requisitions, separation
from jobs, wages, other terms and conditions and other
employment data.
ART. 14. Employment promotion. – The Secretary of Labor
shall have the power and authority
(d) To require any person, establishment, organization or
institution to submit such employment information as ma
y be prescribed by the Secretary of Labor.
4. Illegal Recruitments, Art. 34, 38, RA 8042, Sec. 6 & 7 as
amended, 8, 9, 10 as amended, 11, 12.
Article 34. Prohibited practices. It shall be unlawful for any
individual, entity, licensee, or holder of authority:
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;
To furnish or publish any false notice or information or
document in relation to recruitment or employment;
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.
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;
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;
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;
To obstruct or attempt to obstruct inspection by the Secretary
of Labor or by his duly authorized representatives;
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.
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;
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
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.
Article 38. Illegal recruitment.
Any recruitment activities, including the prohibited practices
enumerated under Article 34 of this Code, to be undertaken by
non-licensees or non-holders of authority, shall be deemed
illegal and punishable under Article 39 of this Code. The
Department of Labor and Employment or any law enforcement
officer may initiate complaints under this Article.
Illegal recruitment when committed by a syndicate or in large
scale shall be considered an offense involving economic
sabotage and shall be penalized in accordance with Article 39
hereof.
Illegal recruitment is deemed committed by a syndicate if
carried out by a group of three (3) or more persons conspiring
and/or confederating with one another in carrying out any
unlawful or illegal transaction, enterprise or scheme defined
under the first paragraph hereof. Illegal recruitment is deemed
committed in large scale if committed against three (3) or more
persons individually or as a group.
The Secretary of Labor and Employment or his duly authorized
representatives shall have the power to cause the arrest and
detention of such non-licensee or non-holder of authority if
after investigation it is determined that his activities constitute a
danger to national security and public order or will lead to
further exploitation of job-seekers. The Secretary shall order
the search of the office or premises and seizure of documents,
paraphernalia, properties and other implements used in illegal
recruitment activities and the closure of companies,
establishments and entities found to be engaged in the
recruitment of workers for overseas employment, without
having been licensed or authorized to do so.
SEC. 6. Definition. - For purposes of this Act, illegal
recruitment shall mean any act of canvassing, enlisting,
contracting, transporting, utilizing, hiring, or procuring workers
and includes referring, contract services, promising or
advertising for employment abroad, whether for profit or not,
when undertaken by non-licensee or non-holder of authority
contemplated under Article 13(f) of Presidential Decree No.
442, as amended, otherwise known as the Labor Code of the
Philippines: Provided, That any such non-licensee or non-
holder who, in any manner, offers or promises for a fee
employment abroad to two or more persons shall be deemed
so engaged. It shall likewise include the following acts,
whether committed by any person, whether a non-licensee,
non-holder, licensee or holder of authority:
"(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 and Employment, or to
make a worker pay or acknowledge 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 the Labor
Code, or for the purpose of documenting hired workers with
the POEA, which include the act of reprocessing workers
through a job order that pertains to nonexistent work, work
different from the actual overseas work, or work with a different
employer whether registered or not with the POEA;
"(d) To include or attempt to induce a worker already employed
to quit his employment in order to offer him another unless the
transfer is designed to liberate a worker from oppressive terms
and conditions of employment;
"(e) To influence or attempt to influence any person or entity
not to employ any worker who has not applied for employment
through his agency or who has formed, joined or supported, or
has contacted or is supported by any union or workers'
organization;
"(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;
"(h) To fail to submit reports on the status of employment,
placement vacancies, remittance of foreign exchange
earnings, separation from jobs, departures and such other
matters or information as may be required by the Secretary of
Labor and Employment;
"(i) To substitute or alter to the prejudice of the worker,
employment contracts approved and verified by the
Department of Labor and Employment from the time of actual
signing thereof by the parties up to and including the period of
the expiration of the same without the approval of the
Department of Labor and Employment;
"(j) For an officer or agent of a recruitment or placement
agency to become an officer or member of the Board of any
corporation engaged in travel agency or to be engaged directly
or indirectly in the management of travel agency;
"(k) To withhold or deny travel documents from applicant
workers before departure for monetary or financial
considerations, or for any other reasons, other than those
authorized under the Labor Code and its implementing rules
and regulations;
"(l) Failure to actually deploy a contracted worker without valid
reason as determined by the Department of Labor and
Employment;
"(m) Failure to reimburse expenses incurred by the worker in
connection with his documentation and processing for
purposes of deployment, in cases where the deployment does
not actually take place without the worker's fault. Illegal
recruitment when committed by a syndicate or in large scale
shall be considered an offense involving economic sabotage;
and
"(n) To allow a non-Filipino citizen to head or manage a
licensed recruitment/manning agency.
"Illegal recruitment is deemed committed by a syndicate if
carried out by a group of three (3) or more persons conspiring
or confederating with one another. It is deemed committed in
large scale if committed against three (3) or more persons
individually or as a group.
"In addition to the acts enumerated above, it shall also be
unlawful for any person or entity to commit the following
prohibited acts:
"(1) Grant a loan to an overseas Filipino worker with interest
exceeding eight percent (8%) per annum, which will be used
for payment of legal and allowable placement fees and make
the migrant worker issue, either personally or through a
guarantor or accommodation party, postdated checks in
relation to the said loan;
"(2) Impose a compulsory and exclusive arrangement whereby
an overseas Filipino worker is required to avail of a loan only
from specifically designated institutions, entities or persons;
"(3) Refuse to condone or renegotiate a loan incurred by an
overseas Filipino worker after the latter's employment contract
has been prematurely terminated through no fault of his or her
own;
"(4) Impose a compulsory and exclusive arrangement whereby
an overseas Filipino worker is required to undergo health
examinations only from specifically designated medical clinics,
institutions, entities or persons, except in the case of a
seafarer whose medical examination cost is shouldered by the
principal/shipowner;
"(5) Impose a compulsory and exclusive arrangement whereby
an overseas Filipino worker is required to undergo training,
seminar, instruction or schooling of any kind only from
specifically designated institutions, entities or persons, except
fpr recommendatory trainings mandated by
principals/shipowners where the latter shoulder the cost of
such trainings;
"(6) For a suspended recruitment/manning agency to engage
in any kind of recruitment activity including the processing of
pending workers' applications; and
"(7) For a recruitment/manning agency or a foreign
principal/employer to pass on the overseas Filipino worker or
deduct from his or her salary the payment of the cost of
insurance fees, premium or other insurance related charges,
as provided under the compulsory worker's insurance
coverage.
"The persons criminally liable for the above offenses are the
principals, accomplices and accessories. In case of juridical
persons, the officers having ownership, control, management
or direction of their business who are responsible for the
commission of the offense and the responsible
employees/agents thereof shall be liable.
"In the filing of cases for illegal recruitment or any of the
prohibited acts under this section, the Secretary of Labor and
Employment, the POEA Administrator or their duly authorized
representatives, or any aggrieved person may initiate the
corresponding criminal action with the appropriate office. For
this purpose, the affidavits and testimonies of operatives or
personnel from the Department of Labor and Employment,
POEA and other law enforcement agencies who witnessed the
acts constituting the offense shall be sufficient to prosecute the
accused.
"In the prosecution of offenses punishable under this section,
the public prosecutors of the Department of Justice shall
collaborate with the anti-illegal recruitment branch of the POEA
and, in certain cases, allow the POEA lawyers to take the lead
in the prosecution. The POEA lawyers who act as prosecutors
in such cases shall be entitled to receive additional allowances
as may be determined by the POEA Administrator.
"The filing of an offense punishable under this Act shall be
without prejudice to the filing of cases punishable under other
existing laws, rules or regulations.
SEC. 7. Penalties. -
"(a) Any person found guilty of illegal recruitment shall suffer
the penalty of imprisonment of not less than twelve (12) years
and one (1) day but not more than twenty (20) years and a fine
of not less than One million pesos (P1,000,000.00) nor more
than Two million pesos (P2,000,000.00).
"(b) The penalty of life imprisonment and a fine of not less than
Two million pesos (P2,000,000.00) nor more than Five million
pesos (P5,000,000.00) shall be imposed if illegal recruitment
constitutes economic sabotage as defined therein.
"Provided, however, That the maximum penalty shall be
imposed if the person illegally recruited is less than eighteen
(18) years of age or committed by a non-licensee or non-
holder of authority.
"(c) Any person found guilty of any of the prohibited acts shall
suffer the penalty of imprisonment of not less than six (6) years
and one (1) day but not more than twelve (12) years and a fine
of not less than Five hundred thousand pesos (P500,000.00)
nor more than One million pesos (P1,000,000.00).
"If the offender is an alien, he or she shall, in addition to the
penalties herein prescribed, be deported without further
proceedings.
"In every case, conviction shall cause and carry the automatic
revocation of the license or registration of the
recruitment/manning agency, lending institutions, training
school or medical clinic.
SEC. 8. PROHIBITION ON OFFICIALS AND EMPLOYEES. -
Ot shall be unlawful for any official or employee of the
Department of Labor and Employment, the Philippine
Overseas Employment Administration, or the Overseas
Workers Welfare Administration, or the Department of Foreign
Affairs, or other government agencies involved in the
implementation of this Act, or their relatives within the fourth
civil degree of consanguinity or affinity, to engage, directly or
indirectly, in the business of recruiting migrant workers as
defined in this Act. The penalties shall be imposed upon them.
SEC. 9. VENUE. - A criminal action arising from illegal
recruitment as defined herein shall be filed with the Regional
Trial Court of the province or city where the offense was
committed or where the offended party actually resides at the
same time of the commission of the offense: Provided, That
the court where the criminal action is first filed shall acquire
jurisdiction to the exclusion of other courts. Provided, however,
That the aforestated provisions shall also apply to those
criminal actions that have already been filed in court at the
time of the effectivity of this Act.
SEC. 10. Money Claims. - Notwithstanding any provision of
law to the contrary, the Labor Arbiters of the National Labor
Relations Commission (NLRC) shall have the original and
exclusive jurisdiction to hear and decide, within ninety (90)
calendar days after the filing of the complaint, the claims
arising out of an employer-employee relationship or by virtue of
any law or contract involving Filipino workers for overseas
deployment including claims for actual, moral, exemplary and
other forms of damage. Consistent with this mandate, the
NLRC shall endeavor to update and keep abreast with the
developments in the global services industry.
"The liability of the principal/employer and the
recruitment/placement agency for any and all claims under this
section shall be joint and several. This provision shall be
incorporated in the contract for overseas employment and shall
be a condition precedent for its approval. The performance
bond to de filed by the recruitment/placement agency, as
provided by law, shall be answerable for all money claims or
damages that may be awarded to the workers. If the
recruitment/placement agency is a juridical being, the
corporate officers and directors and partners as the case may
be, shall themselves be jointly and solidarily liable with the
corporation or partnership for the aforesaid claims and
damages.
"Such liabilities shall continue during the entire period or
duration of the employment contract and shall not be affected
by any substitution, amendment or modification made locally or
in a foreign country of the said contract.
"Any compromise/amicable settlement or voluntary agreement
on money claims inclusive of damages under this section shall
be paid within thirty (30) days from approval of the settlement
by the appropriate authority.
"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 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.
"In case of a final and executory judgement against a foreign
employer/principal, it shall be automatically disqualified,
without further proceedings, from participating in the Philippine
Overseas Employment Program and from recruiting and hiring
Filipino workers until and unless it fully satisfies the judgement
award.
"Noncompliance with the mandatory periods for resolutions of
case provided under this section shall subject the responsible
officials to any or all of the following penalties:
"(a) The salary of any such official who fails to render his
decision or resolution within the prescribed period shall be, or
caused to be, withheld until the said official complies therewith;
"(b) Suspension for not more than ninety (90) days; or
"(c) Dismissal from the service with disqualification to hold any
appointive public office for five (5) years.
"Provided, however, That the penalties herein provided shall
be without prejudice to any liability which any such official may
have incured under other existing laws or rules and regulations
as a consequence of violating the provisions of this
paragraph."
SEC. 11. MANADATORY PERIODS FOR RESOLUTION OF
ILLEGAL RECRUITMENT CASES. - The preliminary
investigations of cases under this Act shall be terminated
within a period of thirty (30) calendar days from the date of
their filing. Where the preliminary investigation is conducted by
a prosecution officer and a prima facie case is established, the
corresponding information shall be filed in court within twenty-
four (24) hours from the termination of the investigation. If the
preliminary investigation is conducted by a judge and a prima
facie case is found to exist, prosecution officer within forty-
eight (48) hours from the date of receipt of the records of the
case.
SEC. 12. PRESCRIPTIVE PERIODS. - Illegal recruitment
cases under this Act shall prescribe in five (5) years: Provided,
however, That illegal recruitment cases involving economic
sabotage as defined herein shall prescribe in twenty (20)
years.
a. Prohibited Practices
b. Undertaken by non-licensees, non-holders
• People v. Domingo 584 SCRA 669 (2009)

PEOPLE OF THE PHILIPPINES v. LARRY “LAURO”
DOMINGO 584 SCRA 669 (2009), SECOND DIVISION
(Carpio Morales, J.)
A testimony solemnly given in court should not be set aside
lightly, least of all by a mere affidavit executed after the lapse
of considerable time.
FACTS: Appellant Larry Domingo (Domingo) was charged with
Illegal Recruitment (Large Scale) and two (2) counts of Estafa
before Regional Trial Court (RTC) of Malolos, Bulacan.
Domingo, denied all the accusations against him and claimed
that he was a driver hired by the real recruiter, Gimeno, whom
he met inside the Victory Liner Bus bound for Manila in
September, 2000 Domingo likewise presented as witnesses
private complainants Enrico Espiritu and Roberto Castillo who
corroborated his claim that it was Gimeno who actually
recruited them, and that the filing of the complaint against
appellant was a desperate attempt on their part to get even
because Gimeno could not be located. Prosecution witness
Simeon Cabigao (Cabigao) testified that he was among those
who were recruited by Domingo, but he later on recanted his
testimony. By Joint Decision, the trial court found Domingo
guilty beyond reasonable doubt of Illegal Recruitment (Large
Scale) and of 2 counts of Estafa.
On appeal to the Court of Appeals, Domingo maintained that
the trial court erred for failing to give weight to Cabigao‘s
retraction. The Court of Appeals affirmed the decision of the
trial court on all accounts. Hence, the present petition.
ISSUE: Whether or not the retraction of Cabigao should be
given weight
HELD: That one of the original complaining witnesses,
Cabigao, later recanted, via an affidavit and his testimony in
open court, does not necessarily cancel an earlier declaration.
Like any other testimony, the same is subject to the test of
credibility and should be received with caution. For a testimony
solemnly given in court should not be set aside lightly, least of
all by a mere affidavit executed after the lapse of considerable
time. In the case at bar, the Affidavit of Recantation was
executed three years after the complaint was filed. It is thus
not unreasonable to consider his retraction an afterthought to
deny its probative value.
At all events, and even with Cabigao‘s recantation, the
Supreme Court finds that the prosecution evidence consisting
of the testimonies of the four other complainants, whose
credibility has not been impaired, has not been overcome.
• People v. Gallo 616 SCRA 162 (2010)
PEOPLE OF THE PHILIPPINES, Petitioner,
vs. RODOLFO GALLO y GADOT, Accused-Appellant,
FIDES PACARDO y JUNGCO and PILAR MANTA y DUNGO,
Accused.
Facts: Accused-appellant Gallo... were charged with
syndicated illegal recruitment and eighteen (18) counts of
estafa. after trial, accused-appellant was found guilty beyond
reasonable doubt... for syndicated illegal recruitment and
estafa, respectively.
The present appeal concerns solely accused-appellant's
conviction for syndicated illegal recruitment... and for estafa...
the said accused... representing themselves to have the
capacity to... contract, enlist and transport Filipino workers for
employment abroad... and promise employment/job placement
abroad... in Korea as factory workers... and charge or accept
directly or indirectly... from... the amount of P30,000.00
P120,000.00 as placement fees... and without valid reasons
and without the... fault of the said complainants failed to
actually deploy them and failed to reimburse the expenses
incurred by the said complainants in connection with their
documentation and processing for purposes of their
deployment.
Accused-appellant avers that he cannot be held criminally
liable for illegal recruitment because he was neither an officer
nor an employee of the recruitment agency.
He alleges that the trial court erred in adopting the
asseveration of the private complainant that he was indeed...
an employee because such was not duly supported by
competent evidence.
Issues:
The court a quo gravely erred in finding the accused-appellant
guilty of illegal recruitment committed by a syndicate despite
the failure of the prosecution to prove the same beyond
reasonable doubt.
Ruling:
We disagree.
To commit syndicated illegal recruitment, three elements must
be established: (1) the offender undertakes either any activity
within the meaning of "recruitment and placement" defined
under Article 13(b), or any of the prohibited practices
enumerated under Art. 34 of the Labor
Code; (2) he has no valid license or authority required by law
to enable one to lawfully engage in recruitment and placement
of workers;... and (3) the illegal recruitment is committed by a
group of three (3) or more persons conspiring or confederating
with... one another.
We believe that the prosecution was able to establish the
elements of the offense sufficiently. The evidence readily
reveals that MPM Agency was never licensed by the POEA to
recruit workers for overseas employment.
In the instant case,... Testimonial evidence presented by the
prosecution clearly shows that, in consideration of a promise of
foreign employment, accused-appellant received the amount of
Php 45,000.00 from
Dela Caza. When accused-appellant made misrepresentations
concerning the agency's purported power and authority to
recruit for overseas employment, and in the process, collected
money in the guise of placement fees, the former clearly
committed acts constitutive of illegal... recruitment.
Additionally, accused-appellant cannot argue that the trial court
erred in finding that he was indeed an employee of the
recruitment agency. On the contrary, his active participation in
the illegal recruitment is unmistakable. The fact that he was the
one who issued and signed... the official receipt belies his
profession of innocence.
This Court likewise finds the existence of a conspiracy
between the accused-appellant and the other persons in the
agency who are currently at large, resulting in the commission
of the crime of syndicated illegal recruitment.
It cannot be denied that the accused-appellent together with...
the rest of the officers and employees of MPM Agency
participated in a network of deception. Verily, the active
involvement of each in the recruitment scam was directed at
one single purpose
To divest complainants with their money on the pretext of
guaranteed employment abroad.
√
FACTS: Originally, accused-appellant Gallo and accused
Fides Pacardo (“Pacardo”) and Pilar Manta (“Manta”), together
with Mardeolyn Martir (“Mardeolyn”) and nine (9) others
[including herein accused-appellant, were charged with
syndicated illegal recruitment and eighteen (18) counts of
estafa committed against eighteen complainants.
NOTE: Basta ang nangyari, the trial proceeded while some of
the accused were at large. Some cases were provisionally
dismissed due to non-appearance. Pacardo and Manta were
acquitted. While herein accused-appellant (GALLO) was
convicted for syndicated illegal recruitment. Hence, this appeal
by Gallo alone.
In Criminal Case No. 02-206293, the information charges the
accused-appellant, together with the others, as follows:
The undersigned accuses xxx of a violation of Section 6(a), (l)
and (m) of Republic Act 8042, otherwise known as the Migrant
Workers and Overseas Filipino Workers Act of 1995,
committed by a syndicate and in large scale,
When arraigned GALLO pleaded not guilty; pre-trial was
terminated and trial ensued, thereafter.
VERSION OF THE PROSECUTION: Dela Caza was
introduced by Eleanor Panuncio to accused-appellant Gallo,
Pacardo, Manta, Mardeolyn, Lulu Mendanes, Yeo Sin Ung and
another Korean national at the office of MPM International
Recruitment and Promotion Agency (“MPM Agency”) located in
Malate, Manila; Other accused were introduced as board
members, officers and employees of MPM.
Accused-appellant Gallo then introduced himself as a relative
of Mardeolyn and informed Dela Caza that the agency was
able to send many workers abroad. Together with Pacardo and
Manta, he also told Dela Caza about the placement fee of One
Hundred Fifty Thousand Pesos (PhP 150,000) with a down
payment of Forty-Five Thousand Pesos (PhP 45,000) and the
balance to be paid through salary deduction; Dela Caza,
together with the other applicants, were briefed.
With accused-appellant’s assurance that many workers have
been sent abroad, as well as the presence of the two (2)
Korean nationals and upon being shown the visas procured for
the deployed workers, Dela Caza was convinced to part with
his money. Thus, on May 29, 2001, he paid Forty-Five
Thousand Pesos (PhP 45,000) to MPM Agency through
accused-appellant Gallo.
Two (2) weeks after paying MPM Agency, Dela Caza went
back to the agency’s office in Malate, Manila only to discover
that the office had moved to a new location at Batangas Street,
Brgy. San Isidro, Makati. He proceeded to the new address
and found out that the agency was renamed to New Filipino
Manpower Development & Services, Inc. (“New Filipino”).
Dela Caza decided to withdraw his application and recover the
amount he paid; Gallo even denied any knowledge about the
money. After two (2) more months of waiting in vain to be
deployed, Dela Caza and the other applicants decided to take
action.
VERSION OF THE DEFENSE: For his defense, accused-
appellant denied having any part in the recruitment of Dela
Caza. In fact, he testified that he also applied with MPM
Agency for deployment to Korea as a factory worker; in order
to facilitate the processing of his papers, he agreed to perform
some tasks for the agency, such as taking photographs of the
visa and passport of applicants, running errands and
performing such other tasks assigned to him, without salary
except for some allowance. He said that he only saw Dela
Caza one or twice at the agency’s office when he applied for
work abroad. Lastly, that he was also promised deployment
abroad but it never materialized.
DEVELOPMENT OF THE CASE: RTC rendered its Decision
convicting the accused of syndicated illegal recruitment and
estafa; CA affirmed; accused-appellant filed a timely appeal
before this Court.
ISSUE: WON accused-appellant is guilty of illegal recruitment
committed by a syndicate and estafa.
HELD: YES
The appeal has no merit.
Accused-appellant avers that he cannot be held criminally
liable for illegal recruitment because he was neither an officer
nor an employee of the recruitment agency. He alleges that the
trial court erred in adopting the asseveration of the private
complainant that he was indeed an employee because such
was not duly supported by competent evidence.
We disagree.
To commit syndicated illegal recruitment, three elements must
be established: (1) the offender undertakes either any activity
within the meaning of “recruitment and placement” defined
under Article 13(b), or any of the prohibited practices
enumerated under Art. 34 of the Labor Code; (2) he has no
valid license or authority required by law to enable one to
lawfully engage in recruitment and placement of workers;8 and
(3) the illegal recruitment is committed by a group of three (3)
or more persons conspiring or confederating with one
another.9 When illegal recruitment is committed by a syndicate
or in large scale, i.e., if it is committed against three (3) or
more persons individually or as a group, it is considered an
offense involving economic sabotage.
After a thorough review of the records, we believe that the
prosecution was able to establish the elements of the offense
sufficiently. The evidence readily reveals that MPM Agency
was never licensed by the POEA to recruit workers for
overseas employment.
Even with a license, however, illegal recruitment could still be
committed under Section 6 of Republic Act No. 8042 (“R.A.
8042”), otherwise known as the Migrants and Overseas
Filipinos Act of 1995 (See Notes).
In the instant case, accused-appellant committed the acts
enumerated in Sec. 6 of R.A. 8042. Testimonial evidence
presented by the prosecution clearly shows that, in
consideration of a promise of foreign employment, accused-
appellant received the amount of Php 45,000.00 from Dela
Caza. When accused-appellant made misrepresentations
concerning the agency’s purported power and authority to
recruit for overseas employment, and in the process, collected
money in the guise of placement fees, the former clearly
committed acts constitutive of illegal recruitment.
Essentially, Dela Caza appeared very firm and consistent in
positively identifying accused-appellant as one of those who
induced him and the other applicants to part with their money.
His testimony showed that accused-appellant made false
misrepresentations and promises in assuring them that after
they paid the placement fee, jobs in Korea as factory workers
were waiting for them and that they would be deployed soon.
On the contrary, his active participation in the illegal
recruitment is unmistakable. The fact that he was the one who
issued and signed the official receipt belies his profession of
innocence.
This Court likewise finds the existence of a conspiracy
between the accused-appellant and the other persons in the
agency who are currently at large, resulting in the commission
of the crime of syndicated illegal recruitment. Verily, the active
involvement of each in the recruitment scam was directed at
one single purpose – to divest complainants with their money
on the pretext of guaranteed employment abroad.
Estafa
The prosecution likewise established that accused-appellant is
guilty of the crime of estafa as defined under Article 315
paragraph 2(a) of the Revised Penal Code (See notes)
The elements of estafa in general are: (1) that the accused
defrauded another (a) by abuse of confidence, or (b) by means
of deceit; and (2) that damage or prejudice capable of
pecuniary estimation is caused to the offended party or third
person.
All these elements are present in the instant case: the
accused-appellant, together with the other accused at large,
deceived the complainants into believing that the agency had
the power and capability to send them abroad for employment;
that there were available jobs for them in Korea as factory
workers; that by reason or on the strength of such assurance,
the complainants parted with their money in payment of the
placement fees; that after receiving the money, accused-
appellant and his co-accused went into hiding by changing
their office locations without informing complainants; and that
complainants were never deployed abroad. As all these
representations of the accused-appellant proved false,
paragraph 2(a), Article 315 of the Revised Penal Code is thus
applicable.1avvphi1
Defense of Denial Cannot Prevail over Positive Identification
APPEAL Denied.
________________
NOTES:
Contents of the Information
That in or about and during the period comprised between
November 2000 and December, 2001, inclusive, in the City of
Manila, Philippines, the said accused conspiring and
confederating together and helping with one another,
representing themselves to have the capacity to contract, enlist
and transport Filipino workers for employment abroad, did then
and there willfully and unlawfully, for a fee, recruit and promise
employment/job placement abroad to xxxx in Korea as factory
workers and charge or accept directly or indirectly from said
xxxx as placement fees in connection with their overseas
employment, which amounts are in excess of or greater than
those specified in the schedule of allowable fees prescribed by
the POEA Board Resolution No. 02, Series 1998, and without
valid reasons and without the fault of the said complainants
failed to actually deploy them and failed to reimburse the
expenses incurred by the said complainants in connection with
their documentation and processing for purposes of their
deployment.
Sec. 6 of RA 8042
Sec. 6. Definition. – For purposes of this Act, illegal recruitment
shall mean any act of canvassing, enlisting, contracting,
transporting, utilizing, hiring, or procuring workers and includes
referring, contract services, promising or advertising for
employment abroad, whether for profit or not, when
undertaken by a non-licensee or non-holder of authority
contemplated under Article 13(f) of Presidential Decree No.
442, as amended, otherwise known as the Labor Code of the
Philippines: Provided, That any such non-licensee or non-
holder who, in any manner, offers or promises for a fee
employment abroad to two or more persons shall be deemed
so engaged. It shall, likewise, include the following act,
whether committed by any person, whether a non-licensee,
non-holder, 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 and Employment, or to
make a worker pay any amount greater than that actually
received by him as a loan or advance;
xxxx
(l) Failure to actually deploy without valid reason as
determined by the Department of Labor and Employment; and
(m) Failure to reimburse expenses incurred by the worker in
connection with his documentation and processing for
purposes of deployment and processing for purposes of
deployment, in cases where the deployment does not actually
take place without the worker’s fault. Illegal recruitment when
committed by a syndicate or in large scale shall be considered
an offense involving economic sabotage.
nature of conspiracy in the context of illegal recruitment:
Conspiracy to defraud aspiring overseas contract workers was
evident from the acts of the malefactors whose conduct before,
during and after the commission of the crime clearly indicated
that they were one in purpose and united in its execution.
Direct proof of previous agreement to commit a crime is not
necessary as it may be deduced from the mode and manner in
which the offense was perpetrated or inferred from the acts of
the accused pointing to a joint purpose and design, concerted
action and community of interest. As such, all the accused,
including accused-appellant, are equally guilty of the crime of
illegal recruitment since in a conspiracy the act of one is the
act of all.
ART. 315, RPC
Art. 315. Swindling (estafa). – Any person who shall defraud
another by any means mentioned hereinbelow…
xxxx
By means of any of the following false pretenses or fraudulent
acts executed prior to or simultaneously with the commission
of the fraud:
(a) By using fictitious name, or falsely pretending to possess
power, influence, qualifications, property, credit, agency,
business or imaginary transactions; or by means of other
similar deceits.
Note:
• Salazar v. Achacoso, 183 SCRA 145 (1990) Article 38 (c)
was declared unconstitutional; only a judge may issue
warrants of search and arrest
5. Enforcement
a. Regulatory Power, Art. 36
Article 36. Regulatory power. The Secretary of Labor shall
have the power to restrict and regulate the recruitment and
placement activities of all agencies within the coverage of this
Title and is hereby authorized to issue orders and promulgate
rules and regulations to carry out the objectives and implement
the provisions of this Title.
b. Rule Making Power, Art. 36
Article 36. Regulatory power. The Secretary of Labor shall
have the power to restrict and regulate the recruitment and
placement activities of all agencies within the coverage of this
Title and is hereby authorized to issue orders and promulgate
rules and regulations to carry out the objectives and implement
the provisions of this Title.
c. Visitorial Power, Art. 37
Article 37. Visitorial Power. The Secretary of Labor or his duly
authorized representatives may, at any time, inspect the
premises, books of accounts and records of any person or
entity covered by this Title, require it to submit reports regularly
on prescribed forms, and act on violation of any provisions of
this Title.
6. Joint and Several Liability of Agent and Principal
POEA Rules, Part II, Rule II, Sec. 1 (f); RA 8042, Sec. 10, 2nd
Paragraph
POEA Rules, Part II, Rule II, Sec. 1 (f)
PART II
LICENSING AND REGULATION
RULE II
ISSUANCE OF LICENSE
Section 1. Requirements for Licensing. Every applicant for
license to operate a private employment agency shall submit a
written application together with the following requirements:
f. A verified undertaking stating that the applicant:
1. Shall select only medically and technically qualified recruits;
2. Shall assume full and complete responsibility for all claims
and liabilities which may arise in connection with the use of the
license;
3. Shall assume joint and solidary liability with the employer for
all claims and liabilities which may arise in connection with the
implementation of the contract, including but not limited to
payment of wages, death and disability compensation and
repatriations;
4. Shall guarantee compliance with the existing labor and
social legislations of the Philippines and of the country of
employment of the recruited workers;
5. Shall assume full and complete responsibility for all acts of
its officials, employees and representatives done in connection
with recruitment and placement;
6. Shall negotiate for the best terms and conditions of
employment;
7. Shall disclose the full terms and conditions of employment to
the applicant workers;
8. Shall deploy at least 100 workers to its new markets within
one (1) year from the issuance of its license;
9. Shall provide orientation on recruitment procedures, terms
and conditions and other relevant information to its workers
and provide facilities therefor; and
10. Shall repatriate the deployed workers and his personal
belongings when the need arises.
For the purpose of compliance with item (1), the agency may
require the worker to undergo trade testing and medical
examination only after the worker has been pre-qualified for
employment.
RA 8042, Sec. 10, 2nd Paragraph
SEC. 10. MONEY CLAIMS
The liability of the principal/employer and the
recruitment/placement agency for any and all claims under this
section shall be joint and several. This provisions shall be
incorporated in the contract for overseas employment and shall
be a condition precedent for its approval. The performance
bond to be filed by the recruitment/placement agency, as
provided by law, shall be answerable for all money claims or
damages that may be awarded to the workers. If the
recruitment/placement agency is a juridical being, the
corporate officers and directors and partners as the case may
be, shall themselves be jointly and solidarily liable with the
corporation or partnership for the aforesaid claims and
damages.
7. Jurisdiction
a. RTC over Criminal Action arising from Illegal
Recruitment, RA No. 8042, Sec. 9
SEC. 9. VENUE. - A criminal action arising from illegal
recruitment as defined herein shall be filed with the
Regional Trial Court of the province or city where the
offense was committed or where the offended party
actually resides at the same time of the commission
of the offense: Provided, That the court where the
criminal action is first filed shall acquire jurisdiction to
the exclusion of other courts. Provided, however, that
the afore-stated provisions shall also apply to those
criminal actions that have already been filed in court
at the time of the effectivity of this Act.
b. LA over Money Claims, RA 8042, Sec. 10
SEC. 10. MONEY CLAIMS. - Notwithstanding any provision of
law to the contrary, the Labor Arbiters of the National Labor
Relations Commission (NLRC) shall
have the priginal and exclusive jurisdiction to hear and decide,
within ninety (90) calendar days after filing of the complaint,
the claims
The liability of the principal/employer and the
recruitment/placement agency for any and all claims under this
section shall be joint and several. This provisions shall be
incorporated in the contract for overseas employment and shall
be a condition precedent for its approval. The performance
bond to be filed by the recruitment/placement agency, as
provided by law, shall be answerable for all money claims or
damages that may be awarded to the workers. If the
recruitment/placement agency is a juridical being, the
corporate officers and directors and partners as the case may
be, shall themselves be jointly and solidarily liable with the
corporation or partnership for the aforesaid claims and
damages.
Such liabilities shall continue during the entire period or
duration of the employment contract and shall not be affected
by any substitution, amendment or modification made locally or
in a foreign country of the said contract.
Any compromise/amicable settlement or voluntary agreement
on money claims inclusive of damages under this section shall
be paid within four (4) months from the approval of the
settlement by the appropriate authority.
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.
Non-compliance with the mandatory periods for resolutions of
cases provided under this section shall subject the responsible
officials to any or all of the following penalties:
(a) The salary of any such official who fails to render his
decision or resolutions within the prescribed period shall be, or
caused to be, withheld until the said official complies therewith;
(b) Suspension for not more than ninety (90) days; or
(c) Dismissal from the service with disqualifications to hold any
appointive public office for five (5) years.
Provided, however, that the penalties herein provided shall be
without prejudice to any liability which any such official may
have incurred under other existing laws or rules and
regulations as a consequence of violating the provisions of this
paragraph.
• Flourish Maritime Shipping v. Almanzor, 568 SCRA 713
(2008) Nachura, J.
In case of unjust, invalid or unauthorized termination of
overseas employment, where the term of the employment
contract is atleast one year or more, the worker shall be
entitled to a salary of threemonths for ever year of the
unexpired term, in accord with Section 10 of RA8042
Nachura, J.
Labor Law. The choice of which amount to award an
illegally dismissed overseas contract worker, i.e., whether his
salaries for the unexpired portion of his employment contract,
or three (3) months’ salary for every year of the unexpired
term, whichever is less, comes into play only when the
employment contract concerned has a term of at least one (1)
year or more.
Facts: Respondent Almanzor entered into a two-year
employment contract with petitioner Flourish Maritime Shipping
as fisherman and was deployed to Taipei, Taiwan. While on
board, he was given an instruction which he did not
understand and therefore was unable to obey. The master of
the vessel struck him and refused his requested medical
assistance. Respondent was repatriated to the Philippines but
was not redeployed as promised, thus the complaint for illegal
dismissal, payment for the unexpired portion of his
employment contract, earned wages, moral and exemplary
damages plus attorney’s fees.
Petitioners Flourish Maritime Shipping and Uy
contended that respondent voluntarily resigned and that the
same did not comply with the grievance machinery and
arbitration clause embodied in the employment contract.
The Labor Arbiter rendered a decision in favour of
respondent, awarding him six months of his monthly pay
(3months for every year of the unexpired term). On appeal, the
NLRC affirmed in toto the Labor Arbiter’s findings. The Court of
Appeals, on petition for certiorari, modified the NLRC decision
by increasing the monetary award due respondent. The Court
of Appeals awarded respondent the unexpired portion of the
first year (11 months and 4 days) and 3 months for the
unexpired second year, for a total of 14 months and 4 days.
Issue No. 1: WON respondent was illegally dismissed from
employment.
Held: YES.
Ratio: Petitioners, as concluded by the Labor Arbiter, failed to
adduce any convincing evidence to establish its claim that
respondent voluntarily residned from employment. Likewise,
the NLRC held that petitioners failed to show that respondent
was not physically fit to perform work due to his old age.
Neither was it proved that the employment contract indeed
provided a grievance machinery. Both labor tribunals correctly
concluded, as affirmed by the Court of Appeals, that
respondent was not redeployed for work, in violation of their
employment contract. Perforce, the termination of respondent’s
services is without just or valid cause.
Issue No. 2:
WON the award made by the Court of Appeals was contrary to
law.
Held: YES.
Ratio:
Section 10 of R.A. 8042 provides:
Section 10. Money Claims. – x x x
xxxx
In case of termination of overseas employment without just,
valid or authorized cause as defined by law or contract, the
worker shall be entitled to the full reimbursement of his
placement fee with interest at twelve percent (12%) per
annum, plus his salaries for the unexpired portion of his
employment contract or for three (3) months for every year of
the unexpired term, whichever is less.
x x x x.
The correct interpretation of this provision was settled
in Marsaman Manning Agency Inc. v. NLRC where this Court
held that “the choice of which amount to award an illegally
dismissed overseas contract worker, i.e., whether his salaries
for the unexpired portion of his employment contract, or three
(3) months’ salary for every year of the unexpired term,
whichever is less,” comes into play only when the employment
contract concerned has a term of at least one year or more.
The employment contract involved in the instant case
covers a two-year period but the overseas contract worker
actually worked for only 26 days prior to his illegal dismissal.
Thus, the three months’ salary rule applies. Respondent,
therefore, is entitled to six (6) months’ salary as correctly held
by the Labor Arbiter and affirmed by the NLRC.
Note: Serrano v. Galant Maritime Services, Inc., 582 SCRA
254 (2009) – The clause “or for three (3) months for every year
of the unexpired term, whichever is less” is unconstitutional for
being violative of the equal protection clause.
• Sameer Overseas Placement Agency, Inc. vs. Cabiles G.R.
No. 170139, August 5, 2014

PONENTE: Leonen
TOPIC: Section 10 of RA 8042 vis-a-vis Section 7 of RA
10022
FACTS: Petitioner, Sameer Overseas Placement Agency,
Inc., is a recruitment and placement agency.
Respondent Joy Cabiles was hired thus signed a
one-year employment contract for a monthly salary of
NT$15,360.00. Joy was deployed to work for Taiwan Wacoal,
Co. Ltd. (Wacoal) on June 26, 1997. She alleged that in her
employment contract, she agreed to work as quality control for
one year. In Taiwan, she was asked to work as a cutter.
Sameer claims that on July 14, 1997, a certain Mr.
Huwang from Wacoal informed Joy, without prior notice, that
she was terminated and that “she should immediately report to
their office to get her salary and passport.” She was asked to
“prepare for immediate repatriation.” Joy claims that she was
told that from June 26 to July 14, 1997, she only earned a total
of NT$9,000.15 According to her, Wacoal deducted NT$3,000
to cover her plane ticket to Manila.
On October 15, 1997, Joy filed a complaint for illegal
dismissal with the NLRC against petitioner and Wacoal. LA
dismissed the complaint. NLRC reversed LA’s decision. CA
affirmed the ruling of the National Labor Relations Commission
finding respondent illegally dismissed and awarding her three
months’ worth of salary, the reimbursement of the cost of her
repatriation, and attorney’s fees
ISSUE: Whether or not Cabiles was entitled to the unexpired
portion of her salary due to illegal dismissal.
HELD: YES. The Court held that the award of the three-month
equivalent of respondent’s salary should be increased to the
amount equivalent to the unexpired term of the employment
contract.
In Serrano v. Gallant Maritime Services, Inc. and
Marlow Navigation Co., Inc., this court ruled that the clause “or
for three (3) months for every year of the unexpired term,
whichever is less” is unconstitutional for violating the equal
protection clause and substantive due process.
A statute or provision which was declared
unconstitutional is not a law. It “confers no rights; it imposes no
duties; it affords no protection; it creates no office; it is
inoperative as if it has not been passed at all.”
The Court said that they are aware that the clause
“or for three (3) months for every year of the unexpired term,
whichever is less” was reinstated in Republic Act No. 8042
upon promulgation of Republic Act No. 10022 in 2010.
Ruling on the constitutional issue
In the hierarchy of laws, the Constitution is supreme.
No branch or office of the government may exercise its powers
in any manner inconsistent with the Constitution, regardless of
the existence of any law that supports such exercise. The
Constitution cannot be trumped by any other law. All laws must
be read in light of the Constitution. Any law that is inconsistent
with it is a nullity.
Thus, when a law or a provision of law is null
because it is inconsistent with the Constitution, the nullity
cannot be cured by reincorporation or reenactment of the
same or a similar law or provision. A law or provision of law
that was already declared unconstitutional remains as such
unless circumstances have so changed as to warrant a
reverse conclusion.
The Court observed that the reinstated clause, this
time as provided in Republic Act. No. 10022, violates the
constitutional rights to equal protection and due process.96
Petitioner as well as the Solicitor General have failed to show
any compelling change in the circumstances that would
warrant us to revisit the precedent.
The Court declared, once again, 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.
c. POEA over Administrative Cases
1. Pre-employment Cases, Omnibus rules Impl.
RA No. 8042, Sec. 28 (a)
Sec. 28. Jurisdiction of the POEA. – The POEA shall exercise
original and exclusive jurisdiction to hear and decide:
(a) all cases, which are administrative in character, involving or
arising out of violations of rules and regulations relating to
licensing and registration of recruitment and employment
agencies or entities;
2. Disciplinary Cases, Omnibus rules Impl.
RA No. 8042, Sec. 28 (b)
(b) disciplinary action cases and other
special cases, which are administrative in
character, involving employers,
principals, contracting partners and
Filipino migrant workers
3. Public Sector Agencies – Employment Offices, Art.
12(f); 14 (a); Sec. 3, Reorganizing POEA (EO No. 247); POEA
Rules and Regulations

Article 12. Statement of objectives. It is the policy of the State:
(f) 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;
Article 14. Employment promotion. The Secretary of Labor
shall have the power and authority:
(a) To organize and establish new employment offices in
addition to the existing employment offices under the
Department of Labor as the need arises;
EO No. 247, Sec. 3. Powers and Functions. - In the
pursuit of its mandate, the Administration shall have the
following powers and functions:
(a) Regulate private sector participation in the recruitment and
overseas placement of workers by setting up a licensing and
registration system;
(b) Formulate and implement, in coordination with appropriate
entities concerned, when necessary, a system for promoting
and monitoring the overseas employment of Filipino workers
taking into consideration their welfare and the domestic
manpower requirements;
(c) Protect the rights of Filipino workers for overseas
employment to fair and equitable recruitment and employment
practices and ensure their welfare;
(d) Exercise original and exclusive jurisdiction to hear and
decide all claims arising out of an employer-employee
relationship or by virtue of any law or contract involving Filipino
workers for overseas employment including the disciplinary
cases; and all pre-employment
cases which are administrative in character involving or
arising out of violation or requirement laws, rules and
regulations including money claims arising therefrom, or
violation of the conditions for issuance of license or authority to
recruit workers.
All prohibited recruitment activities and practices which are
penal in character as enumerated and defined under and by
virtue of existing laws, shall be prosecuted in the regular courts
in close coordination with the appropriate
Departments and agencies concerned;
(e) Maintain a registry of skills for overseas placement;
(f) Recruit and place workers to service the requirements for
trained and competent Filipino workers by foreign
governments and their instrumentalities and such other
employers as public interest may require;
(g) Promote the development of skills and careful selection of
Filipino workers;
(h) Undertake overseas market development activities for
placement of Filipino workers;
(i) Secure the best terms and conditions of employment of
Filipino contract workers and ensure compliance
therewith;
(j) Promote and protect the well-being of Filipino workers
overseas;
(k) Develop and implement programs for the effective
monitoring of returning contract workers, promoting their
retraining and re-employment or their smooth re-integration
into the mainstream of national economy in
coordination with other government agencies;
(l) Institute a system for ensuring fair and speedy disposition of
cases involving violation or recruitment rules and regulations
as well as violation of terms and conditions of overseas
employment;
(m) Establish a system for speedy and efficient enforcement of
decisions laid down through the exercise of its adjudicatory
function;
(n) Establish and maintain close relationship and enter into
joint projects with the Department of Foreign Affairs,
Philippine Tourism Authority, Manila International Airport
Authority, Department of Justice, Department of Budget and
Management and other relevant government entities, in the
pursuit of its objectives. The Administration shall also establish
and maintain joint projects with private organizations, domestic
or foreign, in the furtherance of its objectives.
4. Sanctions
a. Local Employment, Art. 39
Article 39. Penalties.
The penalty of life imprisonment and a fine of One Hundred
Thousand Pesos (P1000,000.00) shall be imposed if illegal
recruitment constitutes economic sabotage as defined herein;
Any licensee or holder of authority found violating or causing
another to violate any provision of this Title or its implementing
rules and regulations shall, upon conviction thereof, suffer the
penalty of imprisonment of not less than two years nor more
than five years or a fine of not less than P10,000 nor more
than P50,000, or both such imprisonment and fine, at the
discretion of the court;
Any person who is neither a licensee nor a holder of authority
under this Title found violating any provision thereof or its
implementing rules and regulations shall, upon conviction
thereof, suffer the penalty of imprisonment of not less than four
years nor more than eight years or a fine of not less than
P20,000 nor more than P100,000 or both such imprisonment
and fine, at the discretion of the court;
If the offender is a corporation, partnership, association or
entity, the penalty shall be imposed upon the officer or officers
of the corporation, partnership, association or entity
responsible for violation; and if such officer is an alien, he
shall, in addition to the penalties herein prescribed, be
deported without further proceedings;
In every case, conviction shall cause and carry the automatic
revocation of the license or authority and all the permits and
privileges granted to such person or entity under this Title, and
the forfeiture of the cash and surety bonds in favor of the
Overseas Employment Development Board or the National
Seamen Board, as the case may be, both of which are
authorized to use the same exclusively to promote their
objectives.
b. Overseas Employment, Art. 35, RA 8042, Secs. 6, 7 & 10
as amended
Article 35. Suspension and/or cancellation of license or
authority. The Minister of Labor shall have the power to
suspend or cancel any license or authority to recruit
employees for overseas employment for violation of rules and
regulations issued by the Ministry of Labor, the Overseas
Employment Development Board, or for violation of the
provisions of this and other applicable laws, General Orders
and Letters of Instructions.
RA 8042, Secs. 6, 7 & 10 as amended
SEC. 6. Definition. - For purposes of this Act, illegal
recruitment shall mean any act of canvassing, enlisting,
contracting, transporting, utilizing, hiring, or procuring workers
and includes referring, contract services, promising or
advertising for employment abroad, whether for profit or not,
when undertaken by non-licensee or non-holder of authority
contemplated under Article 13(f) of Presidential Decree No.
442, as amended, otherwise known as the Labor Code of the
Philippines: Provided, That any such non-licensee or non-
holder who, in any manner, offers or promises for a fee
employment abroad to two or more persons shall be deemed
so engaged. It shall likewise include the following acts,
whether committed by any person, whether a non-licensee,
non-holder, licensee or holder of authority:
"(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 and Employment, or to
make a worker pay or acknowledge 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 the Labor
Code, or for the purpose of documenting hired workers with
the POEA, which include the act of reprocessing workers
through a job order that pertains to nonexistent work, work
different from the actual overseas work, or work with a different
employer whether registered or not with the POEA;
"(d) To include or attempt to induce a worker already employed
to quit his employment in order to offer him another unless the
transfer is designed to liberate a worker from oppressive terms
and conditions of employment;
"(e) To influence or attempt to influence any person or entity
not to employ any worker who has not applied for employment
through his agency or who has formed, joined or supported, or
has contacted or is supported by any union or workers'
organization;
"(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;
"(h) To fail to submit reports on the status of employment,
placement vacancies, remittance of foreign exchange
earnings, separation from jobs, departures and such other
matters or information as may be required by the Secretary of
Labor and Employment;
"(i) To substitute or alter to the prejudice of the worker,
employment contracts approved and verified by the
Department of Labor and Employment from the time of actual
signing thereof by the parties up to and including the period of
the expiration of the same without the approval of the
Department of Labor and Employment;
"(j) For an officer or agent of a recruitment or placement
agency to become an officer or member of the Board of any
corporation engaged in travel agency or to be engaged directly
or indirectly in the management of travel agency;
"(k) To withhold or deny travel documents from applicant
workers before departure for monetary or financial
considerations, or for any other reasons, other than those
authorized under the Labor Code and its implementing rules
and regulations;
"(l) Failure to actually deploy a contracted worker without valid
reason as determined by the Department of Labor and
Employment;
"(m) Failure to reimburse expenses incurred by the worker in
connection with his documentation and processing for
purposes of deployment, in cases where the deployment does
not actually take place without the worker's fault. Illegal
recruitment when committed by a syndicate or in large scale
shall be considered an offense involving economic sabotage;
and
"(n) To allow a non-Filipino citizen to head or manage a
licensed recruitment/manning agency.
"Illegal recruitment is deemed committed by a syndicate if
carried out by a group of three (3) or more persons conspiring
or confederating with one another. It is deemed committed in
large scale if committed against three (3) or more persons
individually or as a group.
"In addition to the acts enumerated above, it shall also be
unlawful for any person or entity to commit the following
prohibited acts:
"(1) Grant a loan to an overseas Filipino worker with interest
exceeding eight percent (8%) per annum, which will be used
for payment of legal and allowable placement fees and make
the migrant worker issue, either personally or through a
guarantor or accommodation party, postdated checks in
relation to the said loan;
"(2) Impose a compulsory and exclusive arrangement whereby
an overseas Filipino worker is required to avail of a loan only
from specifically designated institutions, entities or persons;
"(3) Refuse to condone or renegotiate a loan incurred by an
overseas Filipino worker after the latter's employment contract
has been prematurely terminated through no fault of his or her
own;
"(4) Impose a compulsory and exclusive arrangement whereby
an overseas Filipino worker is required to undergo health
examinations only from specifically designated medical clinics,
institutions, entities or persons, except in the case of a
seafarer whose medical examination cost is shouldered by the
principal/shipowner;
"(5) Impose a compulsory and exclusive arrangement whereby
an overseas Filipino worker is required to undergo training,
seminar, instruction or schooling of any kind only from
specifically designated institutions, entities or persons, except
fpr recommendatory trainings mandated by
principals/shipowners where the latter shoulder the cost of
such trainings;
"(6) For a suspended recruitment/manning agency to engage
in any kind of recruitment activity including the processing of
pending workers' applications; and
"(7) For a recruitment/manning agency or a foreign
principal/employer to pass on the overseas Filipino worker or
deduct from his or her salary the payment of the cost of
insurance fees, premium or other insurance related charges,
as provided under the compulsory worker's insurance
coverage.
"The persons criminally liable for the above offenses are the
principals, accomplices and accessories. In case of juridical
persons, the officers having ownership, control, management
or direction of their business who are responsible for the
commission of the offense and the responsible
employees/agents thereof shall be liable.
"In the filing of cases for illegal recruitment or any of the
prohibited acts under this section, the Secretary of Labor and
Employment, the POEA Administrator or their duly authorized
representatives, or any aggrieved person may initiate the
corresponding criminal action with the appropriate office. For
this purpose, the affidavits and testimonies of operatives or
personnel from the Department of Labor and Employment,
POEA and other law enforcement agencies who witnessed the
acts constituting the offense shall be sufficient to prosecute the
accused.
"In the prosecution of offenses punishable under this section,
the public prosecutors of the Department of Justice shall
collaborate with the anti-illegal recruitment branch of the POEA
and, in certain cases, allow the POEA lawyers to take the lead
in the prosecution. The POEA lawyers who act as prosecutors
in such cases shall be entitled to receive additional allowances
as may be determined by the POEA Administrator.
"The filing of an offense punishable under this Act shall be
without prejudice to the filing of cases punishable under other
existing laws, rules or regulations.
SEC. 7. Penalties. -
"(a) Any person found guilty of illegal recruitment shall suffer
the penalty of imprisonment of not less than twelve (12) years
and one (1) day but not more than twenty (20) years and a fine
of not less than One million pesos (P1,000,000.00) nor more
than Two million pesos (P2,000,000.00).
"(b) The penalty of life imprisonment and a fine of not less than
Two million pesos (P2,000,000.00) nor more than Five million
pesos (P5,000,000.00) shall be imposed if illegal recruitment
constitutes economic sabotage as defined therein.
"Provided, however, That the maximum penalty shall be
imposed if the person illegally recruited is less than eighteen
(18) years of age or committed by a non-licensee or non-
holder of authority.
"(c) Any person found guilty of any of the prohibited acts shall
suffer the penalty of imprisonment of not less than six (6) years
and one (1) day but not more than twelve (12) years and a fine
of not less than Five hundred thousand pesos (P500,000.00)
nor more than One million pesos (P1,000,000.00).
"If the offender is an alien, he or she shall, in addition to the
penalties herein prescribed, be deported without further
proceedings.
"In every case, conviction shall cause and carry the automatic
revocation of the license or registration of the
recruitment/manning agency, lending institutions, training
school or medical clinic.
SEC. 8. PROHIBITION ON OFFICIALS AND EMPLOYEES. -
Ot shall be unlawful for any official or employee of the
Department of Labor and Employment, the Philippine
Overseas Employment Administration, or the Overseas
Workers Welfare Administration, or the Department of Foreign
Affairs, or other government agencies involved in the
implementation of this Act, or their relatives within the fourth
civil degree of consanguinity or affinity, to engage, directly or
indirectly, in the business of recruiting migrant workers as
defined in this Act. The penalties shall be imposed upon them.
 "In case of a final and executory judgement against a foreign
SEC. 9. VENUE. - A criminal action arising from illegal employer/principal, it shall be automatically disqualified,
recruitment as defined herein shall be filed with the Regional without further proceedings, from participating in the Philippine
Trial Court of the province or city where the offense was Overseas Employment Program and from recruiting and hiring
committed or where the offended party actually resides at the Filipino workers until and unless it fully satisfies the judgement
same time of the commission of the offense: Provided, That award.
the court where the criminal action is first filed shall acquire
jurisdiction to the exclusion of other courts. Provided, however, "Noncompliance with the mandatory periods for resolutions of
That the aforestated provisions shall also apply to those case provided under this section shall subject the responsible
criminal actions that have already been filed in court at the officials to any or all of the following penalties:
time of the effectivity of this Act.
SEC. 10. Money Claims. - Notwithstanding any provision of "(a) The salary of any such official who fails to render his
law to the contrary, the Labor Arbiters of the National Labor decision or resolution within the prescribed period shall be, or
Relations Commission (NLRC) shall have the original and caused to be, withheld until the said official complies therewith;
exclusive jurisdiction to hear and decide, within ninety (90)
calendar days after the filing of the complaint, the claims "(b) Suspension for not more than ninety (90) days; or
arising out of an employer-employee relationship or by virtue of
any law or contract involving Filipino workers for overseas "(c) Dismissal from the service with disqualification to hold any
deployment including claims for actual, moral, exemplary and appointive public office for five (5) years.
other forms of damage. Consistent with this mandate, the
NLRC shall endeavor to update and keep abreast with the "Provided, however, That the penalties herein provided shall
developments in the global services industry. be without prejudice to any liability which any such official may
have incured under other existing laws or rules and regulations
"The liability of the principal/employer and the as a consequence of violating the provisions of this
recruitment/placement agency for any and all claims under this paragraph."
section shall be joint and several. This provision shall be
incorporated in the contract for overseas employment and shall 5. Issues and Questions on Overseas Employment
be a condition precedent for its approval. The performance
bond to de filed by the recruitment/placement agency, as
provided by law, shall be answerable for all money claims or
damages that may be awarded to the workers. If the
recruitment/placement agency is a juridical being, the
corporate officers and directors and partners as the case may
be, shall themselves be jointly and solidarily liable with the
corporation or partnership for the aforesaid claims and
damages.

"Such liabilities shall continue during the entire period or

duration of the employment contract and shall not be affected
by any substitution, amendment or modification made locally or
in a foreign country of the said contract.

"Any compromise/amicable settlement or voluntary agreement

on money claims inclusive of damages under this section shall
be paid within thirty (30) days from approval of the settlement
by the appropriate authority. 6. Trafficking in Persons, RA 9208 and Rules and
Regulations Implementing RA 9208
"In case of termination of overseas employment without just,
valid or authorized cause as defined by law or contract, or any REPUBLIC OF THE PHILIPPINES
unauthorized deductions from the migrant worker's salary, the Congress of the Philippines
worker shall be entitled to the full reimbursement if his Metro Manila
placement fee and the deductions made with interest at twelve
percent (12%) per annum, plus his salaries for the unexpired Twelfth Congress
portion of his employment contract or for three (3) months for Second Regular Session
every year of the unexpired term, whichever is less. Begun held in Metro Manila on Monday, the twenty-second
day of July, two thousand two
 Republic Act No. 9208
May 26, 2003
AN ACT TO INSTITUTE POLICIES TO ELIMINATE
TRAFFICKING IN PERSONS ESPECIALLY WOMEN AND
CHILDREN, ESTABLISHING THE NECESSARY
INSTITUTIONAL MECHANISMS FOR THE PROTECTION
AND SUPPORT OF TRAFFICKED PERSONS, PROVIDING
PENALTIES FOR ITS VIOLATIONS, AND FOR OTHER
Be it enacted by the Senate and the House of Representatives
of the Philippines in Congress assembled:
Section 1. Title. This Act shall be known as the “Anti-
Trafficking in Persons Act of 2003”.
Section 2. Declaration of Policy. – It is hereby declared that the
State values the dignity of every human person and
guarantees the respect of individual rights. In pursuit of this
policy, the State shall give highest priority to the enactment of
measures and development of programs that will promote
human dignity, protect the people from any threat of violence
and exploitation, eliminate trafficking in persons, and mitigate
pressures for involuntary migration and servitude of persons,
not only to support trafficked persons but more importantly, to
ensure their recovery, rehabilitation and reintegration into the
mainstream of society.
It shall be a State policy to recognize the equal rights and
inherent human dignity of women and men as enshrined in the
United Nations Universal Declaration on Human Rights, United
Nations Convention on the Rights of the Child, United Nations
Convention on the Protection of Migrant Workers and their
Families. United Nations Convention Against Transnational
Organized Crime Including its Protocol to Prevent, Suppress
and Punish Trafficking in Persons, Especially Women and
Children and all other relevant and universally accepted
human rights instruments and other international conventions
to which the Philippines is a signatory.
Section 3. Definition of Terms. – As used in this Act:
(a) Trafficking in Persons – refers to the recruitment,
transportation, transfer or harboring, or receipt of persons with
or without the victim’s consent or knowledge, within or across
national borders by means of threat or use of force, or other
forms of coercion, abduction, fraud, deception, abuse of power
or of position, taking advantage of the vulnerability of the
person, or, the giving or receiving of payments or benefits to
achieve the consent of a person having control over another
person for the purpose of exploitation which includes at a
minimum, the exploitation or the prostitution of others or other
forms of sexual exploitation, forced labor or services, slavery,
servitude or the removal or sale of organs.
The recruitment, transportation, transfer, harboring or receipt
of a child for the purpose of exploitation shall also be
considered as “trafficking in persons” even if it does not involve
any of the means set forth in the preceding paragraph.
(b) Child – refers to a person below eighteen (18) years of age
or one who is over eighteen (18) but is unable to fully take care
of or protect himself/herself from abuse, neglect, cruelty,
exploitation, or discrimination because of a physical or mental
disability or condition.
(c) Prostitution – refers to any act, transaction, scheme or
design involving the use of a person by another, for sexual
intercourse or lascivious conduct in exchange for money, profit
or any other consideration.
(d) Forced Labor and Slavery – refer to the extraction of work
or services from any person by means of enticement, violence,
intimidation or threat, use of force or coercion, including
deprivation of freedom, abuse of authority or moral
ascendancy, debt-bondage or deception.
(e) Sex Tourism – refers to a program organized by travel and
tourism-related establishments and individuals which consists
of tourism packages or activities, utilizing and offering escort
and sexual services as enticement for tourists. This includes
sexual services and practices offered during rest and
recreation periods for members of the military.
(f) Sexual Exploitation – refers to participation by a person in
prostitution or the production of pornographic materials as a
result of being subjected to a threat, deception, coercion,
abduction, force, abuse of authority, debt bondage, fraud or
through abuse of a victim’s vulnerability.
(g) Debt Bondage – refers to the pledging by the debtor of
his/her personal services or labor or those of a person under
his/her control as security or payment for a debt, when the
length and nature of services is not clearly defined or when the
value of the services as reasonably assessed is not applied
toward the liquidation of the debt.
(h) Pornography – refers to any representation, through
publication, exhibition, cinematography, indecent shows,
information technology, or by whatever means, of a person
engaged in real or simulated explicit sexual activities or any
representation of the sexual parts of a person for primarily
sexual purposes.
(i) Council – shall mean the Inter-Agency Council Against
Trafficking created under Section 20 of this Act.
Section 4. Acts of Trafficking in Persons. – It shall be unlawful
for any person, natural or juridical, to commit any of the
following acts:
(a) To recruit, transport, transfer; harbor, provide, or receive a
person by any means, including those done under the pretext
of domestic or overseas employment or training or
apprenticeship, for the purpose of prostitution, pornography,
sexual exploitation, forced labor, slavery, involuntary servitude
or debt bondage;
(b) To introduce or match for money, profit, or material,
economic or other consideration, any person or, as provided
for under Republic Act No. 6955, any Filipino woman to a
foreign national, for marriage for the purpose of acquiring,
buying, offering, selling or trading him/her to engage in
prostitution, pornography, sexual exploitation, forced labor,
slavery, involuntary servitude or debt bondage;
(c) To offer or contract marriage, real or simulated, for the
purpose of acquiring, buying, offering, selling, or trading them
to engage in prostitution, pornography, sexual exploitation,
forced labor or slavery, involuntary servitude or debt bondage;
(d) To undertake or organize tours and travel plans consisting
of tourism packages or activities for the purpose of utilizing and
offering persons for prostitution, pornography or sexual
exploitation;
(e) To maintain or hire a person to engage in prostitution or
pornography;
(f) To adopt or facilitate the adoption of persons for the
purpose of prostitution, pornography, sexual exploitation,
forced labor, slavery, involuntary servitude or debt bondage;
(g) To recruit, hire, adopt, transport or abduct a person, by
means of threat or use of force, fraud, deceit, violence,
coercion, or intimidation for the purpose of removal or sale of
organs of said person; and
(h) To recruit, transport or adopt a child to engage in armed
activities in the Philippines or abroad.
Section 5. Acts that Promote Trafficking in Persons. – The
following acts which promote or facilitate trafficking in persons,
shall be unlawful:
(a) To knowingly lease or sublease, use or allow to be used
any house, building or establishment for the purpose of
promoting trafficking in persons;
(b) To produce, print and issue or distribute unissued,
tampered or fake counseling certificates, registration stickers
and certificates of any government agency which issues these
certificates and stickers as proof of compliance with
government regulatory and pre-departure requirements for the
purpose of promoting trafficking in persons;
(c) To advertise, publish, print, broadcast or distribute, or
cause the advertisement, publication, printing, broadcasting or
distribution by any means, including the use of information
technology and the internet, of any brochure, flyer, or any
propaganda material that promotes trafficking in persons;
(d) To assist in the conduct of misrepresentation or fraud for
purposes of facilitating the acquisition of clearances and
necessary exit documents from government agencies that are
mandated to provide pre-departure registration and services
for departing persons for the purpose of promoting trafficking in
persons;
(e) To facilitate, assist or help in the exit and entry of persons
from/to the country at international and local airports, territorial
boundaries and seaports who are in possession of unissued,
tampered or fraudulent travel documents for the purpose of
promoting trafficking in persons;
(f) To confiscate, conceal, or destroy the passport, travel
documents, or personal documents or belongings of trafficked
persons in furtherance of trafficking or to prevent them from
leaving the country or seeking redress from the government or
appropriate agencies; and
(g) To knowingly benefit from, financial or otherwise, or make
use of, the labor or services of a person held to a condition of
involuntary servitude, forced labor, or slavery.
Section 6. Qualified Trafficking in Persons. – The following are
considered as qualified trafficking:
(a) When the trafficked person is a child;
(b) When the adoption is effected through Republic Act No.
8043, otherwise known as the “Inter-Country Adoption Act of
1995” and said adoption is for the purpose of prostitution,
pornography, sexual exploitation, forced labor, slavery,
involuntary servitude or debt bondage;
(c) When the crime is committed by a syndicate, or in large
scale. Trafficking is deemed committed by a syndicate if
carried out by a group of three (3) or more persons conspiring
or confederating with one another. It is deemed committed in
large scale if committed against three (3) or more persons,
individually or as a group;
(d) When the offender is an ascendant, parent, sibling,
guardian or a person who exercises authority over the
trafficked person or when the offense is committed by a public
officer or employee;
(e) When the trafficked person is recruited to engage in
prostitution with any member of the military or law enforcement
agencies;
(f) When the offender is a member of the military or law
enforcement agencies; and
(g) When by reason or on occasion of the act of trafficking in
persons, the offended party dies, becomes insane, suffers
mutilation or is afflicted with Human Immunodeficiency Virus
(HIV) or the Acquired Immune Deficiency Syndrome (AIDS).
Section 6. Confidentiality. – At any stage of the investigation,
prosecution and trial of an offense under this Act, law
enforcement officers, prosecutors, judges, court personnel and
medical practitioners, as well as parties to the case, shall
recognize the right to privacy of the trafficked person and the
accused. Towards this end, law enforcement officers,
prosecutors and judges to whom the complaint has been
referred may, whenever necessary to ensure a fair and
impartial proceeding, and after considering all circumstances
for the best interest of the parties, order a closed-door
investigation, prosecution or trial. The name and personal
circumstances of the trafficked person or of the accused, or
any other information tending to establish their identities and
such circumstances or information shall not be disclosed to the
public.
In cases when prosecution or trial is conducted behind closed-
doors, it shall be unlawful for any editor, publisher, and
reporter or columnist in case of printed materials, announcer or
producer in case of television and radio, producer and director
of a film in case of the movie industry, or any person utilizing
tri-media facilities or information technology to cause publicity
of any case of trafficking in persons.
Section 8. Prosecution of Cases. – Any person who has
personal knowledge of the commission of any offense under
this Act, the trafficked person, the parents, spouse, siblings,
children or legal guardian may file a complaint for trafficking.
Section 9. Venue. – A criminal action arising from violation of
this Act shall be filed where the offense was committed, or
where any of its elements occurred, or where the trafficked
person actually resides at the time of the commission of the
offense: Provided, That the court where the criminal action is
first filed shall acquire jurisdiction to the exclusion of other
courts.
Section 10. Penalties and Sanctions. – The following penalties
and sanctions are hereby established for the offenses
enumerated in this Act:
(a) Any person found guilty of committing any of the acts
enumerated in Section 4 shall suffer the penalty of
imprisonment of twenty (20) years and a fine of not less than
One million pesos (P1,000,000.00) but not more than Two
million pesos (P2,000,000.00);
(b) Any person found guilty of committing any of the acts
enumerated in Section 5 shall suffer the penalty of
imprisonment of fifteen (15) years and a fine of not less than
Five hundred thousand pesos (P500,000.00) but not more than
One million pesos (P1,000,000.00);
(c) Any person found guilty of qualified trafficking under
Section 6 shall suffer the penalty of life imprisonment and a
fine of not less than Two million pesos (P2,000,000.00) but not
more than Five million pesos (P5,000,000.00);
(d) Any person who violates Section 7 hereof shall suffer the
penalty of imprisonment of six (6) years and a fine of not less
than Five hundred thousand pesos (P500,000.00) but not more
than One million pesos (P1,000,000.00);
(e) If the offender is a corporation, partnership, association,
club, establishment or any juridical person, the penalty shall be
imposed upon the owner, president, partner, manager, and/or
any responsible officer who participated in the commission of
the crime or who shall have knowingly permitted or failed to
prevent its commission;
(f) The registration with the Securities and Exchange
Commission (SEC) and license to operate of the erring
agency, corporation, association, religious group, tour or travel
agent, club or establishment, or any place of entertainment
shall be cancelled and revoked permanently. The owner,
president, partner or manager thereof shall not be allowed to
operate similar establishments in a different name;
(g) If the offender is a foreigner, he shall be immediately
deported after serving his sentence and be barred permanently
from entering the country;
(h) Any employee or official of government agencies who shall
issue or approve the issuance of travel exit clearances,
passports, registration certificates, counseling certificates,
marriage license, and other similar documents to persons,
whether juridical or natural, recruitment agencies,
establishments or other individuals or groups, who fail to
observe the prescribed procedures and the requirement as
provided for by laws, rules and regulations, shall be held
administratively liable, without prejudice to criminal liability
under this Act. The concerned government official or employee
shall, upon conviction, be dismissed from the service and be
barred permanently to hold public office. His/her retirement
and other benefits shall likewise be forfeited; and
(i) Conviction by final judgment of the adopter for any offense
under this Act shall result in the immediate rescission of the
decree of adoption.
Section 11. Use of Trafficked Persons. – Any person who buys
or engages the services of trafficked persons for prostitution
shall be penalized as follows:
(a) First offense – six (6) months of community service as may
be determined by the court and a fine of Fifty thousand pesos
(P50,000.00); and
(b) Second and subsequent offenses – imprisonment of one
(1) year and a fine of One hundred thousand pesos
(P100,000.00).
Section 12. Prescriptive Period. – Trafficking cases under this
Act shall prescribe in ten (10) years: Provided, however, That
trafficking cases committed by a syndicate or in a large scale
as defined under Section 6 shall prescribe in twenty (20) years.
The prescriptive period shall commence to run from the day on
which the trafficked person is delivered or released from the
conditions of bondage and shall be interrupted by the filing of
the complaint or information and shall commence to run again
when such proceedings terminate without the accused being
convicted or acquitted or are unjustifiably stopped for any
reason not imputable to the accused.
Section 13. Exemption from Filing Fees. – When the trafficked
person institutes a separate civil action for the recovery of civil
damages, he/she shall be exempt from the payment of filing
fees.
Section 14. Confiscation and Forfeiture of the Proceeds and
Instruments Derived from Trafficking in Persons. – In addition
to the penalty imposed for the violation of this Act, the court
shall order the confiscation and forfeiture, in favor of the
government, of all the proceeds and properties derived from
the commission of the crime, unless they are the property of a
third person not liable for the unlawful act; Provided, however,
That all awards for damages shall be taken from the personal
and separate properties of the offender; Provided, further, That
if such properties are insufficient, the balance shall be taken
from the confiscated and forfeited properties.
When the proceeds, properties and instruments of the offense
have been destroyed, diminished in value or otherwise
rendered worthless by any act or omission, directly or
indirectly, of the offender, or it has been concealed, removed,
converted or transferred to prevent the same from being found
or to avoid forfeiture or confiscation, the offender shall be
ordered to pay the amount equal to the value of the proceeds,
property or instruments of the offense.
Section 15. Trust Fund. – All fines imposed under this Act and
the proceeds and properties forfeited and confiscated pursuant
to Section 14 hereof shall accrue to a Trust Fund to be
administered and managed by the Council to be used
exclusively for programs that will prevent acts of trafficking and
protect, rehabilitate, reintegrate trafficked persons into the
mainstream of society. Such programs shall include, but not
limited to, the following:
(a) Provision for mandatory services set forth in Section 23 of
this Act;
(b) Sponsorship of a national research program on trafficking
and establishment of a data collection system for monitoring
and evaluation purposes;
(c) Provision of necessary technical and material support
services to appropriate government agencies and non-
government organizations (NGOs);
(d) Sponsorship of conferences and seminars to provide venue
for consensus building amongst the public, the academe,
government, NGOs and international organizations; and
(e) Promotion of information and education campaign on
trafficking.
Section 16. Programs that Address Trafficking in Persons. –
The government shall establish and implement preventive,
protective and rehabilitative programs for trafficked persons.
For this purpose, the following agencies are hereby mandated
to implement the following programs;
(a) Department of Foreign Affairs (DFA) – shall make available
its resources and facilities overseas for trafficked persons
regardless of their manner of entry to the receiving country,
and explore means to further enhance its assistance in
eliminating trafficking activities through closer networking with
government agencies in the country and overseas, particularly
in the formulation of policies and implementation of relevant
programs.
The DFA shall take necessary measures for the efficient
implementation of the Machine Readable Passports to protect
the integrity of Philippine passports, visas and other travel
documents to reduce the incidence of trafficking through the
use of fraudulent identification documents.
It shall establish and implement a pre-marriage, on-site and
pre-departure counseling program on intermarriages.
(b) Department of Social Welfare and Development (DSWD) –
shall implement rehabilitative and protective programs for
trafficked persons. It shall provide counseling and temporary
shelter to trafficked persons and develop a system for
accreditation among NGOs for purposes of establishing
centers and programs for intervention in various levels of the
community.
(c) Department of Labor and Employment (DOLE) – shall
ensure the strict implementation and compliance with the rules
and guidelines relative to the employment of persons locally
and overseas. It shall likewise monitor, document and report
cases of trafficking in persons involving employers and labor
recruiters.
(d) Department of Justice (DOJ) – shall ensure the prosecution
of persons accused of trafficking and designate and train
special prosecutors who shall handle and prosecute cases of
trafficking. It shall also establish a mechanism for free legal
assistance for trafficked persons, in coordination with the
DSWD, Integrated Bar of the Philippines (IBP) and other
NGOs and volunteer groups.
(e) National Commission on the Role of Filipino Women
(NCRFW) – shall actively participate and coordinate in the
formulation and monitoring of policies addressing the issue of
trafficking in persons in coordination with relevant government
agencies. It shall likewise advocate for the inclusion of the
issue of trafficking in persons in both its local and international
advocacy for women’s issues.
(f) Bureau of Immigration (BI) – shall strictly administer and
enforce immigration and alien administration laws. It shall
adopt measures for the apprehension of suspected traffickers
both at the place of arrival and departure and shall ensure
compliance by the Filipino fiancés/fiancées and spouses of
foreign nationals with the guidance and counseling
requirement as provided for in this Act.
(g) Philippine National Police (PNP) – shall be the primary law
enforcement agency to undertake surveillance, investigation
and arrest of individuals or persons suspected to be engaged
in trafficking. It shall closely coordinate with various law
enforcement agencies to secure concerted efforts for effective
investigation and apprehension of suspected traffickers. It shall
also establish a system to receive complaints and calls to
assist trafficked persons and conduct rescue operations.
(h) Philippine Overseas Employment Administration (POEA) –
shall implement an effective pre-employment orientation
seminars and pre-departure counseling programs to applicants
for overseas employment. It shall likewise formulate a system
of providing free legal assistance to trafficked persons.
(i) Department of the Interior and Local Government (DILG) –
shall institute a systematic information and prevention
campaign and likewise maintain a databank for the effective
monitoring, documentation and prosecution of cases on
trafficking in persons.
(j) Local government units (LGUs) – shall monitor and
document cases of trafficking in persons in their areas of
jurisdiction, effect the cancellation of licenses of
establishments which violate the provisions of this Act and
ensure effective prosecution of such cases. They shall also
undertake an information campaign against trafficking in
persons through the establishment of the Migrants Advisory
and Information Network (MAIN) desks in municipalities or
provinces in coordination with DILG, Philippine Information
Agency (PIA), Commission on Filipinos Overseas (CFO),
NGOs and other concerned agencies. They shall encourage
and support community based initiatives which address the
trafficking in persons.
In implementing this Act, the agencies concerned may seek
and enlist the assistance of NGOs, people’s organizations
(Pos), civic organizations and other volunteer groups.
Section 17. Legal Protection to Trafficked Persons. –
Trafficked persons shall be recognized as victims of the act or
acts of trafficking and as such shall not be penalized for crimes
directly related to the acts of trafficking enumerated in this Act
or in obedience to the order made by the trafficker in relation
thereto. In this regard, the consent of a trafficked person to the
intended exploitation set forth in this Act shall be irrelevant.
Section 18. Preferential Entitlement Under the Witness
Protection Program. – Any provision of Republic Act No. 6981
to the contrary notwithstanding, any trafficked person shall be
entitled to the witness protection program provided therein.
Section 19. Trafficked Persons Who are Foreign Nationals. –
Subject to the guidelines issued by the Council, trafficked
persons in the Philippines who are nationals of a foreign
country shall also be entitled to appropriate protection,
assistance and services available to trafficked persons under
this Act: Provided, That they shall be permitted continued
presence in the Philippines for a length of time prescribed by
the Council as necessary to effect the prosecution of
offenders.
Section 20. Inter-Agency Council Against Trafficking. – There
is hereby established an Inter-Agency Council Against
Trafficking, to be composed of the Secretary of the Department
of Justice as Chairperson and the Secretary of the Department
of Social Welfare and Development as Co-Chairperson and
shall have the following as members:
(a) Secretary, Department of Foreign Affairs;
(b) Secretary, Department of Labor and Employment;
(c) Administrator, Philippine Overseas Employment
Administration;
(d) Commissioner, Bureau of Immigration;
(e) Director-General, Philippine National Police;
(f) Chairperson, National Commission on the Role of Filipino
Women; and
(g) Three (3) representatives from NGOs, who shall be
composed of one (1) representative each from among the
sectors representing women, overseas Filipino workers
(OFWs) and children, with a proven record of involvement in
the prevention and suppression of trafficking in persons. These
representatives shall be nominated by the government agency
representatives of the Council, for appointment by the
President for a term of three (3) years.
The members of the Council may designate their permanent
representatives who shall have a rank not lower than an
assistant secretary or its equivalent to meetings, and shall
receive emoluments as may be determined by the Council in
accordance with existing budget and accounting, rules and
regulations.
Section 21. Functions of the Council. – The Council shall have
the following powers and functions:
(a) Formulate a comprehensive and integrated program to
prevent and suppress the trafficking in persons;
(b) Promulgate rules and regulations as may be necessary for
the effective implementation of this Act;
(c) Monitor and oversee the strict implementation of this Act;
(d) Coordinate the programs and projects of the various
member agencies to effectively address the issues and
problems attendant to trafficking in persons;
(e) Coordinate the conduct of massive information
dissemination and campaign on the existence of the law and
the various issues and problems attendant to trafficking
through the LGUs, concerned agencies, and NGOs;
(f) Direct other agencies to immediately respond to the
problems brought to their attention and report to the Council on
action taken;
(g) Assist in filing of cases against individuals, agencies,
institutions or establishments that violate the provisions of this
Act;
(h) Formulate a program for the reintegration of trafficked
persons in cooperation with DOLE, DSWD, Technical
Education and Skills Development Authority (TESDA),
Commission on Higher Education (CHED), LGUs and NGOs;
(i) Secure from any department, bureau, office, agency, or
instrumentality of the government or from NGOs and other
civic organizations such assistance as may be needed to
effectively implement this Act;
(j) Complement the shared government information system for
migration established under Republic Act No. 8042, otherwise
known as the “Migrant Workers and Overseas Filipinos Act of
1995” with data on cases of trafficking in persons, and ensure
that the proper agencies conduct a continuing research and
study on the patterns and scheme of trafficking in persons
which shall form the basis for policy formulation and program
direction;
(k) Develop the mechanism to ensure the timely, coordinated,
and effective response to cases of trafficking in persons;
(l) Recommend measures to enhance cooperative efforts and
mutual assistance among foreign countries through bilateral
and/or multilateral arrangements to prevent and suppress
international trafficking in persons;
(m) Coordinate with the Department of Transportation and
Communications (DOTC), Department of Trade and Industry
(DTI), and other NGOs in monitoring the promotion of
advertisement of trafficking in the internet;
(n) Adopt measures and policies to protect the rights and
needs of trafficked persons who are foreign nationals in the
Philippines;
(o) Initiate training programs in identifying and providing the
necessary intervention or assistance to trafficked persons; and
(p) Exercise all the powers and perform such other functions
necessary to attain the purposes and objectives of this Act.
Section 22. Secretariat to the Council. – The Department of
Justice shall establish the necessary Secretariat for the
Council.
Section 23. Mandatory Services to Trafficked Persons. – To
ensure recovery, rehabilitation and reintegration into the
mainstream of society, concerned government agencies shall
make available the following services to trafficked persons:
(a) Emergency shelter or appropriate housing;
(b) Counseling;
(c) Free legal services which shall include information about
the victims’ rights and the procedure for filing complaints,
claiming compensation and such other legal remedies
available to them, in a language understood by the trafficked
person;
(d) Medical or psychological services;
(e) Livelihood and skills training; and
(f) Educational assistance to a trafficked child.
Sustained supervision and follow through mechanism that will
track the progress of recovery, rehabilitation and reintegration
of the trafficked persons shall be adopted and carried out.
Section 24. Other Services for Trafficked Persons. –
(a) Legal Assistance. – Trafficked persons shall be considered
under the category “Overseas Filipino in Distress” and may
avail of the legal assistance created by Republic Act No. 8042,
subject to the guidelines as provided by law.
(b) Overseas Filipino Resource Centers. – The services
available to overseas Filipinos as provided for by Republic Act
No. 8042 shall also be extended to trafficked persons
regardless of their immigration status in the host country.
(c) The Country Team Approach. – The country team
approach under Executive Order No. 74 of 1993, shall be the
operational scheme under which Philippine embassies abroad
shall provide protection to trafficked persons insofar as the
promotion of their welfare, dignity and fundamental rights are
concerned.
Section 25. Repatriation of Trafficked Persons. – The DFA, in
coordination with DOLE and other appropriate agencies, shall
have the primary responsibility for the repatriation of trafficked
persons, regardless of whether they are documented or
undocumented.
If, however, the repatriation of the trafficked persons shall
expose the victims to greater risks, the DFA shall make
representation with the host government for the extension of
appropriate residency permits and protection, as may be
legally permissible in the host country.
Section 26. Extradition. – The DOJ, in consultation with DFA,
shall endeavor to include offenses of trafficking in persons
among extraditable offenses.
Section 27. Reporting Requirements. – The Council shall
submit to the President of the Philippines and to Congress an
annual report of the policies, programs and activities relative to
the implementation of this Act.
Section 28. Funding. – The heads of the departments and
agencies concerned shall immediately include in their
programs and issue such rules and regulations to implement
the provisions of this Act, the funding of which shall be
included in the annual General Appropriations Act.
Section 29. Implementing Rules and Regulations. – The
Council shall promulgate the necessary implementing rules
and regulations within sixty (60) days from the effectivity of this
Act.
Section 30. Non-restriction of Freedom of Speech and of
Association, Religion and the Right to Travel. – Nothing in this
Act shall be interpreted as a restriction of the freedom of
speech and of association, religion and the right to travel for
purposes not contrary to law as guaranteed by the
Constitution.
Section 31. Separability Clause. – If, for any reason, any
section or provision of this Act is held unconstitutional or
invalid, the other sections or provisions hereof shall not be
affected thereby.
Section 32. Repealing clause. – All laws, presidential decrees,
executive orders and rules and regulations, or parts thereof,
inconsistent with the provisions of this Act are hereby repealed
or modified accordingly: Provided, That this Act shall not in any
way amend or repeal the provision of Republic Act No. 7610,
otherwise known as the “Special Protection of Children Against
Child Abuse, Exploitation and Discrimination Act”.
Section 33. Effectivity. – This Act shall take effect fifteen (15)
days from the date of its complete publication in at least two
(2) newspapers of general circulation.
RULES AND REGULATIONS IMPLEMENTING REPUBLIC
ACT NO. 9208, OTHERWISE KNOWN AS THE “ANTI-
TRAFFICKING IN PERSONS ACT
OF 2003”
Pursuant to the authority of the Inter-Agency
Council Against Trafficking (IACAT) under Section 29 of
Republic Act No. 9208 otherwise known as the “Anti-
Trafficking in Persons Act of 2003”, the following rules and
regulations are hereby promulgated to implement the
provisions of said Act:
Article I
GENERAL PROVISIONS
Sec. 1. Title. These rules and regulations shall
be known and cited as “The Rules and Regulations
Implementing the Anti-Trafficking in Persons Act of 2003”.
Sec. 2. Purpose. These rules and regulations are hereby
promulgated to institute policies, establish the institutional
mechanism for the support and protection of trafficked persons
and prescribe the procedures and guidelines for the
implementation of Republic Act No. 9208 in order to facilitate
compliance therewith and
achieve the objectives thereof.
Sec. 3. Declaration of State Policy. The State values the
dignity of every human person and guarantees the respect for
individual rights. Towards this end, the State shall give the
highest priority to the enactment of measures and
development of programs that will promote human dignity,
protect the people from any
threat of violence and exploitation, eliminate
trafficking in persons, and mitigate pressures for
involuntary migration and servitude of persons,
not only to support trafficked persons but more
importantly, to ensure their recovery, rehabilitation and
reintegration into the mainstream of society.
The State also recognizes the equal rights and inherent human
dignity of women and men, as well as the rights of children, as
enshrined and guaranteed in the following international
instruments:
(i) Universal Declaration on Human Rights;
(ii) Convention for the Suppression of the Traffic in Persons
and Exploitation of the Prostitution of Others;
(iii) Convention on the Elimination of All Forms of
Discrimination Against Women;
(iv) Convention on the Rights of the Child and its Optional
Protocols;
(v) Convention on the Protection of Migrant Workers and
Members of their Families;
(vi) Convention Against Transnational Organized Crimes
including its Protocol to Prevent, Suppress and Punish
Trafficking in Persons, Especially Women and Children;
(vii) ILO Convention No. 182 (Convention Concerning the
Prohibition and Immediate Action for the Elimination of the
Worst Forms of Child Labor); and
(viii) All other relevant and universally accepted human rights
instruments and other international conventions
to which the Philippines is a State Party. In all actions
concerning children, their best interests shall be the paramount
consideration.
Sec. 4. Construction. These rules and regulations shall be
liberally construed in favor of the trafficked persons to promote
their human dignity; ensure their recovery, rehabilitation and
reintegration into the mainstream of society; eliminate
trafficking in persons; and achieve the
objectives of the Act.
Article II
DEFINITION OF TERMS
Sec. 5. Definition of Terms. As used in these rules and
regulations, unless the context otherwise requires, the
following terms shall be understood to mean:
(a) Act — refers to Republic Act No. 9208, otherwise
known as the “Anti-Trafficking in Persons Act of 2003”;
(b) Council — refers to the Inter-Agency Council Against
Trafficking (IACAT) created under Section 20 of the Act;
(c) Trafficking in Persons — refers to the recruitment,
transportation, transfer or harboring, or receipt of persons, with
or without the victim’s consent or knowledge, within or across
national borders by means of threat or use of force, or other
forms of coercion, abduction, fraud, deception, abuse of power
or of position, taking advantage of the vulnerability of the
person, or, the giving or receiving of payments or benefits to
achieve the consent of a person having control over another
person for the purpose of
exploitation which includes at a minimum, the exploitation or
the prostitution of others or other forms of sexual exploitation,
forced labor or services, slavery, servitude or the removal or
sale of organs.
The recruitment, transportation, transfer, harboring or receipt
of a child for the purpose of exploitation
shall also be considered as “trafficking in persons” even if it
does not involve any of the means set forth in the preceding
paragraph.
(d) Child — refers to a person below eighteen (18) years of
age or one who is over eighteen (18) but is unable to fully take
care of or protect himself/herself from abuse, neglect, cruelty,
exploitation, or discrimination because of a physical or mental
disability or condition;
(e) Prostitution — refers to any act, transaction, scheme or
design involving the use of a person by another, for sexual
intercourse or lascivious conduct in exchange for money, profit
or any other consideration;
(f) Forced Labor and Slavery — refer to the extraction of work
or services from any person by meansof enticement, violence,
intimidation or threat, use of force or coercion, including
deprivation of freedom, abuse of authority or moral
ascendancy, debt-bondage or deception;
(g) Sex Tourism — refers to a program organized by travel and
tourism-related establishments and individuals which consists
of tourism packages or activities, utilizing and offering escort
and sexual services as enticement for tourists. This includes
sexual services and practices offered during rest and
recreation periods for members of the military;
(h) Sexual Exploitation — refers to participation by a person in
prostitution or the production of pornographic
materials as a result of being subjected to a threat, deception,
coercion, abduction, force, abuse of authority, debt bondage,
fraud or through abuse of a victim’s vulnerability;
(i) Debt Bondage — refers to the pledging by the debtor of
his/her personal services or labor or those of a person under
his/her control as security or payment for a debt, when the
length and nature of services is not clearly defined or when the
value of the services as reasonably
assessed is not applied toward the liquidation of the debt;
(j) Pornography — refers to any representation, through
publication, exhibition, cinematography, indecent shows,
information technology, or by whatever means, of a person
engaged in real or simulated explicit sexual activities or any
representation of the sexual parts of a person primarily for
sexual purposes; and
(k) Involuntary Servitude — refers to a condition of enforced,
compulsory service induced by means of any scheme, plan or
pattern, intended to cause a person to believe that, if the
person did not enter into or continue in such condition, that
person or another person would suffer serious harm or other
forms of abuse or physical
restraint, or the abuse or threatened abuse of the legal
process.
Article III
THE INTER-AGENCY COUNCIL AGAINST TRAFFICKING
(IACAT)
Sec. 6. Creation. The Inter-Agency Council Against Trafficking
(IACAT) shall be established which shall be primarily tasked to
coordinate, monitor and oversee the implementation of the Act.
Sec. 7. Composition. The Council shall be
composed of the following:
(a) Secretary, Department of Justice (DOJ) as Chairperson;
(b) Secretary, Department of Social Welfare and Development
(DSWD) as Co-Chairperson;
(c) Secretary, Department of Foreign Affairs (DFA) as Member;
(d) Secretary, Department of Labor and Employment
(DOLE) as Member;
(e) Administrator, Philippine Overseas Employment
Administration (POEA) as Member;
(f) Commissioner, Bureau of Immigration (BI) as
Member;
(g) Director-General, Philippine National Police
(PNP) as Member;
(h) Chairperson, National Commission on the
Role of Filipino Women (NCRFW) as Member;
(i) One (1) representative from an NGO representing the
women sector as Member;
(j) One (1) representative from an NGO representing he
Overseas Filipino Workers (OFWs) sector as Member; and
(k) One (1) representative from an NGO representing he
children sector as Member.
The members of the Council may designate their
permanent representatives who shall have a
rank not lower than an Assistant Secretary or its
equivalent to attend the meetings of the Council.
Sec. 8. Qualifications, Selection and Appointment of NGO and
its Representatives. The NGOs, with national and international
networks, and its representatives to
the Council must have a proven track record of involvement in
the prevention and suppression of trafficking in persons. They
shall be nominated by any
of the government agency representatives of the
Council and shall be selected by majority vote
thereof and endorsed to the President. They
shall be appointed by the President for a term of
three (3) years.
Sec. 9. Functions of the Council. The Council
shall have the following powers and functions:
(a) Formulate a comprehensive and integrated
program to prevent and suppress the trafficking
in persons;
(b) Promulgate rules and regulations as may be necessary for
the effective implementation of the
Act;
(c) Monitor and oversee the strict implementation of the Act;
(d) Coordinate the programs and projects of the various
member agencies to effectively address the issues and
problems attendant to trafficking in persons;
(e) Coordinate the conduct of massive information
dissemination and campaign on the existence of the law and
the various issues and problems attendant to trafficking
through the local government units (LGUs), concerned
agencies, and NGOs;
(f) Direct other agencies to immediately respond
to the problems brought to their attention and report to the
Council on action taken;
(g) Assist in filing of cases against individuals, agencies,
institutions or establishments that violate the
provisions of the Act;
(h) Formulate a program for the reintegration of trafficked
persons in cooperation with DOLE, DSWD, Technical
Education and Skills Development Authority (TESDA),
Commission on Higher Education (CHED), LGUs and NGOs;
(i) Secure from any department, bureau, office,
agency, or instrumentality of the government or
from NGOs and other civic organizations such assistance as
may be needed to effectively implement the Act;
(j) Complement the shared government information system for
migration established under Republic Act No. 8042, otherwise
known as the “Migrant Workers and Overseas Filipinos
Act of 1995” with data on cases of trafficking in
persons, and ensure that the proper agencies
conduct a continuing research and study on the
patterns and scheme of trafficking in persons
which shall form the basis for policy formulation
and program direction;
(k) Develop the mechanism to ensure the timely
coordinated and effective response to cases of
trafficking in
persons;
(l) Recommend measures to enhance
cooperative efforts and mutual assistance
among foreign countries through bilateral and/or
multilateral arrangements to prevent and
suppress international trafficking in persons;
(m) Coordinate with the Department of
Transportation and Communications (DOTC),
Department of Trade and Industry (DTI), and
other NGOs in monitoring the promotion of
advertisement of trafficking in the Internet;
(n) Adopt measures and policies to protect the
rights and needs of trafficked persons who are
foreign nationals in the Philippines;
(o) Initiate training programs in identifying and
roviding the necessary intervention or
assistance to trafficked
persons; and
(p) Exercise all the powers and perform such
other functions necessary to attain the purposes
and objectives of the Act.
Sec. 10. Reportorial Function. Within sixty (60)
days after the closing of each calendar year, the
Council shall submit to the Office of the
President a comprehensive report on the actions
and programs
taken by the Council relative to and concerning
the implementation of the Act.
Sec. 11. Meetings of the Council. The Council
shall meet regularly at least once a month.
Special meetings may be called by the Chair as
the need arises. Majority of the members of the
Council
shall constitute a quorum to transact business.
Sec. 12. Honoraria or Emoluments. The
Members of the Council or their designated
permanent representatives shall receive
honoraria or emoluments as may be determined
by the Council in
accordance with existing budget and accounting
rules and regulations.
Sec. 13. Implementation of the Law at SubNational
and Local Levels. The Council shall,
as far as practicable, develop mechanisms to
ensure the implementation of the law and these
rules and regulations at the sub-national and
local levels
Article IV
SECRETARIAT
SEC. 14. Organization. The Department of
Justice shall establish a Secretariat to assist the
Council in the performance of its functions. The
Secretary of Justice shall determine the
organizational structure and staffing pattern of
the Secretariat.
Sec. 15. Functions. The Secretariat shall have
the following functions:
(a) Coordinate and monitor, under the direction
of the Council, the implementation of the policies
and guidelines promulgated by the Council;
(b) Establish, maintain and manage a central
database on trafficking in persons;
(c) Provide secretariat, records keeping and
other services to the Council; and
(d) Perform such other functions as may be
directed by the Council.
Article V
ROLES AND RESPONSIBILITIES
Sec. 16. Common Roles and Responsibilities
of Council Member Agencies. All member
government agencies of the Council shall have
the following common roles and responsibilities:
(a) Develop policies and programs supportive of
and consistent with the objectives of the Act;
(b) Enhance the capability of its officers and
personnel involved in trafficking issues and
Duman / Labor I / Prof. Battad / Page 41
concerns through appropriate training and staff
support programs;
(c) Undertake information, education and
advocacy campaigns against trafficking in
persons;
(d) Maintain a databank on trafficking in persons
to be shared among relevant agencies and
complement the central databank to be
established by the Council; and
(e) Document good practices as bases for policy
formulation and program development.
Sec. 17. Specific Roles and Responsibilities
of National Government Agencies which are
Members of the Council. The following national
government agencies, which are member
agencies of the Council, shall have, but not
limited to, the following roles and responsibilities
in the prevention and suppression of trafficking
in persons:
(a) Department of Justice (DOJ)
(i) Ensure the prosecution of persons for
violations of the Act;
(ii) Designate and train special prosecutors who
shall investigate and prosecute cases of
trafficking;
(iii) Establish a mechanism for free legal
assistance for trafficked persons, in coordination
with the DSWD, Commission on Human Rights
(CHR), Integrated Bar of the Philippines (IBP)
and other NGOs and volunteer groups;
(iv) Provide, witness protection to trafficked
victims and their witnesses;
(v) Conduct training and continuing education
program on investigation and prosecution for
trafficking in
persons and other related offenses for
prosecutors and law enforcement officers;
(vi) Receive, evaluate, process and investigate
claims for compensation by trafficked victims, when applicable,
pursuant to Republic Act No. 7309 (Victims Compensation
Act);
(vii) Review and recommend policies and measures to
enhance protection against trafficking in persons;
(viii) Recommend the negotiation of mutual legal assistance
and extradition treaties with other countries in
coordination with the DFA; and
(ix) Coordinate with and/or provide assistance to
the Anti-Money Laundering Council (AMLC) on cases of
trafficking in persons with possible money laundering
underpinnings.
(b) Department of Social Welfare and Development (DSWD)
(i) Provide psycho-social counseling, temporary shelter and
other support services to victims/survivors of
trafficking and their families;
(ii) Make available skills training and livelihood services to
victims/survivors of trafficking;
(iii) Develop program and other support interventions to
facilitate the recovery and reintegration of trafficked victims into
their families and communities;
(iv) Provide social welfare services to Filipino victims of
trafficking in other countries through the DSWD
Social Welfare Attaché and social workers posted in foreign
countries, which may include but not limited to stress
management, repatriation and other appropriate psychosocial
interventions for their protection and welfare;
(v) Conduct technical assistance and capability building
activities for social welfare officers/social workers
of LGUs and NGOs;
(vi) Accredit NGOs that provide programs and services to
ensure that they meet the standards set by the
Department; and
(vii) Provide temporary shelter and psychosocial services to
foreign nationals who are victims of trafficking in persons as
confirmed by the Bureau of
Immigration.
(c) Department of Foreign Affairs (DFA)
(i) Make available its resources and facilities overseas and to
provide services for trafficked persons regardless of the
manner of their entry to the receiving country;
(ii) Explore means to further enhance its assistance in
eliminating trafficking activities through closer networking with
government agencies in the country and overseas, particularly
in the formulation of policies and implementation of relevant
programs;
(iii) Actively participate in bilateral, regional and international
initiatives and cooperative arrangements
aimed at suppressing trafficking in persons and protecting and
assisting victims of trafficking to include monitoring of inter-
country adoption cases.
(iv) Take necessary measures for the efficient implementation
of the Machine Readable Passports and
Visas to protect the integrity of Philippine passports, visas, and
other travel documents to reduce the incidence of trafficking in
persons through the use of fraudulent identification documents;
(v) Establish and implement pre-marriage, onsite
and pre-departure counseling program on
inter-marriages
For this purpose, the DFA shall promulgate the
necessary guidelines to implement the said program; and
(vi) Integrate into the pre-departure orientation seminars for
foreign service personnel a training module on
trafficking in persons.
(d) Department of Labor and Employment (DOLE)
(i) Ensure the strict implementation of and compliance with
rules and guidelines relative to the employment of persons
locally and overseas; and
(ii) Monitor, document and report cases of trafficking in
persons involving employers and labor recruiters;
(iii) Make available existing resources such as employment
and livelihood programs as part of the
government’s measure to suppress trafficking in
persons; and
(iv) Conduct public awareness programs and activities to
prevent victimization.
(e) Philippine Overseas Employment
Administration (POEA)
(i) Implement an effective pre-employment orientation seminar
and pre-departure counseling program to applicants for
overseas employment;
(ii) Formulate a system providing free legal assistance to
trafficked persons which shall include the following:
(a) Provision of legal assistance to victims of trafficking in
persons by means of, or in the guise of, recruitment for
overseas employment, as defined in Section 6 of R.A. No.
8042, such as free legal advice, assistance in the preparation
and filing of administrative and criminal actions for trafficking
as defined in the Act, without prejudice to the filing of
administrative and/or criminal actions for illegal recruitment, as
defined in R.A.No. 8042, when proper;
(b) Assistance in the prosecution of persons who engage in,
promote and facilitate trafficking in persons by means of, or in
the guise of, recruitment for overseas employment, as defined
in Section 6 of R.A. 8042;
In this connection, the POEA shall likewise adopt a policy of
confidentiality in all cases referred to it involving
possible violations of the Act.
(iii) Adopt policies and procedures, prepare and implement
programs geared towards the eradication of
trafficking in persons as well as acts that promote trafficking in
persons such as, but not limited to, the following:
(a) Comprehensive and Integrated Education
Program on overseas employment which shall be undertaken
in partnership with other relevant organizations and
government entities. Such education program shall cover all
stages of recruitment and employment and shall provide
information useful for overseas workers including a module on
anti-trafficking program and measures;
(b) Nationwide multi-media and sustainable grassroots
information campaign to create public awareness on the
realities of overseas employment and dangers of becoming
victims of illegal trafficking activities;
(c) Conduct special operations, complementary to the power of
the PNP, on persons and entities engaged
in recruitment for overseas employment reported to be
violating the provisions of the Act for the purpose of
effecting closure of said establishments pursuant to the
provisions of R.A. No. 8042; and
(d) Database of cases involving, and personalities involved in,
trafficking persons separate and distinct from its illegal
Recruitment cases for monitoring purposes;
(iv) In cases of repatriation involving workers recruited and
deployed by licensed agencies, the POEA shall
notify the agency concerned to provide a plane ticket or
Prepaid Travel Advice (PTA) and shall impose sanctions on
said agencies for failure to cooperate in providing welfare
assistance to OFWs they have deployed; and
(v) Continue to regulate private sector participation in the
recruitment and overseas placement of workers through its
licensing and registration system pursuant to its rules and
regulation on overseas employment. It shall formulate and
implement, in coordination with appropriate entities concerned,
when necessary, a system of promoting and monitoring the
overseas employment of Filipino workers, taking into
consideration their welfare and protection from the dangers
and risks inherent in overseas employment, including illegal
trafficking.
(f) Bureau of Immigration (BI)
(i) Strictly administer and enforce immigration
and alien registration laws;
(ii) Adopt measures for the apprehension of suspected
traffickers both at the place of arrival and departure;
(iii) Ensure compliance by the Filipino fiancés/fiancées and
spouses of foreign nationals with the predeparture and
counseling program requirement of the Act;
(iv) Strictly implement the requirement for a parental travel
authority duly processed by the DSWD for minors traveling
abroad unaccompanied by one parent, and the travel
clearance for minors traveling abroad unaccompanied by both
parents;
(v) Ensure compliance by Overseas Filipino Workers of the
departure requirements of the POEA;
(vi) Conduct periodic training and seminar on fraudulent
document detection and passenger assessment to enhance
the level of skill and competence of all its immigration officers
and agents in document fraud detection;
(vii) Conduct periodic study of the trends, routes and modus
operandi employed by the traffickers including
its recruitment base, transit countries and country of
destination;
(viii) Establish a network with other law enforcement agencies
and immigration counterparts of source, transit and destination
countries to facilitate exchange and sharing of information on
the activities of
trafficking syndicates;
(ix) Establish network with LGUs for the effective apprehension
of suspected traffickers and their cohorts;
(x) Develop a program for the procurement and installation of
International Civil Aviation Organization
(ICAO) — compliant machine readers and fraud detection
equipment at all international airports and seaports in the
country to deter trafficking in persons; and
(xi) Develop and distribute materials containing advisory and
other pertinent information to enhance awareness against
trafficking in persons.
(g) Philippine National Police (PNP)
(i) Undertake surveillance, investigation and
arrest of individuals or persons suspected to be
engaged in trafficking;
(ii) Coordinate closely with various law enforcement agencies
to secure concerted efforts for effective investigation and
apprehension of suspected traffickers. For this purpose, it shall
also:
(a) Pursue the detection and investigation of suspected or
alleged trafficking activities at airports through its Aviation
Security Group, at seaports and/or harbors through its
Maritime Group, and at land transportation terminals through
its police station and when proper, file the appropriate charges
against traffickers in the proper court;
(b) Coordinate with the Philippine Ports Authority (PPA) which
may have initially processed complaints at their “Balay
Silungan sa Daungan”; and
(c) Coordinate with local and barangay officials with espect to
the apprehension and/or arrest of traffickers.
(iii) Establish a system to receive complaints and calls to assist
trafficked persons, and the conduct of rescue operations;
(iv) Direct and supervise the enforcement of its mandate under
the Act and its rules and regulations;
(v) Supervise the conduct of investigations relating to
apprehension occurring at land transportation terminals,
domestic seaports and airports and monitor the filing of
appropriate cases against traffickers;
(vi) Formulate plans and programs for the prevention and/or
reduction of trafficking in persons;
(vii) Integrate in the program of instruction comprehensive,
gender sensitive and child-friendly investigation and handling
of cases of trafficking in persons in the Philippine National
Police Academy (PNPA), Philippine Public Safety College
(PPSC) and other training schools operated and managed by
the PNP; and
(viii) Establish anti-trafficking section under the Women and
Children Complaint Desk (WCCD) in all city
and municipal police stations.
(h) National Commission on the Role of Filipino
Women (NCRFW)
(i) Actively advocate and participate in international and
regional discussion and initiatives in trafficking in women and
include the same in all of its international commitments and
policy pronouncements. Where possible and appropriate, work
with the Department of
Foreign Affairs in forging bilateral and multilateral collaborative
projects on trafficking;
(ii) Assist the Council in the formulation and monitoring of
policies addressing the issue of trafficking in persons in
coordination with relevant government agencies;
(iii) Assist the Council in the conduct of information
dissemination and training to frontline government
agencies, NGOs and the general public;
(iv) Assist in the development of gender responsive
documentation system in coordination with other agencies and
the National Statistical Coordination Board (NSCB) through its
monitoring of the situation of women
particularly on violence against women;
(v) Assist the Council in the formulation of prevention and
reintegration programs for victims of trafficking including the
demand side; and
(vi) Conduct studies on the root causes, magnitude
and forms of trafficking in women and document
best practices in prevention programs.
Sec. 18. Roles and Responsibilities of Other
Relevant National Government Agencies. —
Consistent with their mandates under existing laws, the
following agencies shall integrate human trafficking issues in
their strategy and program formulation and implement
programs and services for the prevention and suppression of
trafficking and for the protection of trafficked victims.
They shall likewise have the following roles and
responsibilities:
(a) Department of the Interior and Local
Government (DILG)
(i) Conduct a systematic information dissemination/advocacy
and prevention campaign against trafficking in persons;
(ii) Maintain a databank for the effective monitoring,
documentation and prosecution of cases on
trafficking in persons;
(iii) Issue directives to the LGUs and barangays to
institutionalize recruiter-monitoring mechanisms and
increase public awareness regarding trafficking
in persons;
(iv) Promote family and community empowerment to prevent
trafficking in persons; and
(v) Strengthen, activate and mobilize existing committees,
councils, similar organizations and special
bodies at the local level to prevent and suppress trafficking in
persons.
(b) Department of Tourism (DOT)
(i) Formulate and implement preventive measures to stop sex
tourism packages and other activities of tourism
establishments which might contribute to the trafficking in
persons in coordination with local governmentunits; and
(ii) Provide training to tourist security officers on
surveillance, investigation and rescue operation
strategies.
(c) Department of Education (DepEd)
(i) Integrate in the appropriate subject areas
core messages on migration and trafficking in
the elementary and secondary levels by providing lesson with
emphasis on their implications and social costs
to persons and country;
(ii) Provide opportunities for trafficked persons in the
educational mainstream through the basic education
and non-formal education curricula; and
(iii) Provide education and raise consciousness of boys/men in
schools and communities in order to discourage the “demand
side” or the use/buying of trafficked women and children.
(d) Department of Health (DOH)
(i) Make available its resources and facilities in providing
health care to victims of trafficking which shall, at all times, be
held confidential.
(e) Department of Transportation and Communication (DOTC)
(i) Provide guidelines for the land, sea and air transport
providers to train their personnel in trafficking
in persons;
(ii) Standardize guidelines for monitoring trafficking in persons
in every port; and
(iii) Monitor the promotion of advertisement of trafficking in the
Internet.
(f) Commission on Human Rights (CHR)
(i) Conduct advocacy and training programs relating to anti-
trafficking;
(ii) Investigate and recommend for prosecution violations of the
Act;
(iii) Provide legal and financial assistance to victims of
trafficking; and
(iv) Integrate anti-trafficking efforts in the Barangay Human
Rights Action Center (BHRAC); and
(v) Monitor government compliance to international human
rights treaty obligations related to the suppression/elimination
of trafficking, particularly the Convention for the Suppression of
Traffic in Persons and Exploitation of the Prostitution of
Others, the Convention on the Elimination of All Forms of
Discrimination Against Women, the Convention on the Rights
of the Child, the
Convention on the Protection of Migrant Workers and
Members of Their Families, and the UN Convention Against
Transnational Organized Crimes including its Protocol to
Prevent, Suppress and Punish Trafficking in
Persons, Especially Women and Children.
(g) National Bureau of Investigation (NBI)
(i) Conduct surveillance, monitor and investigate recruiters,
travel agencies, hotels and other establishments suspected to
be engaged in trafficking in
persons;
(ii) Coordinate closely with all the Council member agencies for
effective detection and investigation of suspected traffickers;
(iii) Formulate plans and programs for the detection and
prevention of trafficking, and the arrest and
prosecution of suspected traffickers;
(iv) Share intelligence information on suspected traffickers to
all Council member agencies when necessary; and
(v) Foster cooperation and coordination with the law
enforcement agencies of other countries and the INTERPOL in
the investigation and apprehension of suspected traffickers.
(h) Philippine Center on Transnational Crime (PCTC)
(i) Continue to function in accordance with its mandate
pursuant to Executive Order No. 62, s.
1999, on matters concerning trafficking in persons with
transnational dimension;
(ii) Undertake strategic researches on the structure and
dynamics of trafficking in persons with transnational crime
dimension, predict trends and analyze given factors for the
formulation of individual and collective
strategies for the prevention and detection of trafficking in
persons and the apprehension of criminal elements involved;
(iii) Conduct case operations in coordination with other law
enforcement agencies; and
(iv) Serve as the focal point in international law enforcement
coordination on trafficking in persons
particularly with the INTERPOL.
(i) Overseas Workers Welfare Administration
(OWWA)
(i) Assist in the information and advocacy campaign among
OFWs to prevent trafficking in persons;
(ii) Assist in the documentation of cases of trafficking and
ensure the provision of its programs and
services to OFWs and their families; and
(iii) Include a module on anti-trafficking to its
pre-departure seminar.
(j) Council for the Welfare of Children (CWC)
(i) Integrate in its development and strategic frameworks
issues and concerns affecting trafficking in children and ensure
the adoption of such frameworks by the LGUs and other
stakeholders;
(ii) Vigorously advocate against trafficking of children;
(iii) Improve data on trafficking in children through integration
of critical and relevant indicators into the
monitoring system for children;
(iv) Adopt policies and measures that will protect and promote
the rights and welfare of children victims of trafficking and
coordinate and monitor their implementation; and
(v) Address issues on trafficking of children through policy and
program interventions.
(k) Philippine Information Agency (PIA)
(i) Enhance public awareness on trafficking in persons,
pertinent laws and possible actions to prevent
victimization and re-victimization by developing public
advocacy program as well as printing and distributing
appropriate information materials.
(l) Technical Education and Skills Development
Authority (TESDA)
(i) Provide skills and entrepreneurial training to
trafficked victims; and
(ii) Formulate a special program to ensure the provision of
appropriate skills training for trafficked victims.
Sec. 19. Roles and Responsibilities of Local Government Units
(LGUs). The LGUs shall
have the following roles and responsibilities:
(a) Monitor and document cases of trafficked persons in their
areas of jurisdiction;
(b) Effect the cancellation of licenses of establishments which
violate the provisions of the Act and
ensure its effective prosecution;
(c) Undertake an information campaign against trafficking in
persons through the establishment of the Migrants Advisory
and Information Network (MAIN) desks in municipalities and
provinces in coordination with the DILG, PIA, Commission on
Filipino Overseas (CFO), NGOs and other concerned
agencies;
(d) Encourage and support community based initiatives which
address trafficking in persons;
(e) Provide basic social services for the prevention, rescue,
recovery, rehabilitation and reintegration/after care support
services to victims of trafficking in persons and their families;
(f) Enact ordinances or issuances aimed at
providing protection and support to trafficked
persons and adopt measures to prevent and
suppress trafficking in persons; and
(g) Strengthen, activate and mobilize existing committees,
councils, similar organizations and
special bodies at the provincial, city, municipal and barangay
levels to prevent and suppress trafficking in
persons.
Sec. 20. Roles and Responsibilities of NonGovernment
Organizations which are Members of the Council. The NGO
members of the Council shall have the following roles and
responsibilities:
(a) Assist government agencies in formulating and
implementing policies, programs and IEC campaign against
trafficking;
(b) Assist in capability-building activities of government
personnel and share their experiences and
expertise in handling trafficking cases;
(c) Coordinate with concerned government agencies, LGUs
and other NGOs in reporting alleged perpetrators, rescuing
victims of trafficking, and conducting investigation/
surveillance, if indicated;
(d) Undertake programs and activities for the prevention,
rescue, recovery and reintegration of the victims of
trafficking and other support services for their families;
(e) Document and/or assist in the documentation of cases of
trafficking;
(f) Disseminate guidelines to all its network members, local
and international, on policies and programs
addressing issues on trafficking in persons;
(g) Formulate educational module to address thedemand side
of trafficking; and
(h) Perform such other tasks as may be agreed upon by the
Council.
Sec. 21. Assistance of Other Agencies and Institutions. In
implementing the Act and these rules and regulations, the
agencies concerned may seek and enlist the assistance of
NGOs, people’s organizations (POs), civic organizations and
other volunteer groups, which will all likewise be encouraged to
assume the same roles and
responsibilities enumerated in the preceding
Section.
Article VI
REPORTING OF SUSPECTED/ ALLEGED
TRAFFICKING INCIDENT
Sec. 22. Who May and To Whom to Report.
Any person who has any knowledge or learns of facts or
circumstances that give rise to a reasonable belief that a
person will be, or may be, or has been trafficked shall
immediately report the same, either orally, in writing or
through other means, to any member of the ouncil, the
barangay authorities, the nearest police or other law
enforcement agency, the local social welfare and development
office or the local Council for the Protection of Children.
In the case of trafficking cases abroad, the report shall be
made to the Philippine Embassy/Consulate which has
jurisdiction over the place where the trafficking occurred or
where the trafficked person is found.
Sec. 23. Action on the Report. The agency, entity or person to
whom the report is made shall immediately
act as soon as the report is received in coordination with other
relevant government agency for appropriate intervention. For
this purpose, the Council shall develop a mechanism to ensure
the timely, coordinated and effective response to cases of
trafficking in persons.
Article VII
INTERCEPTION, ARREST AND INVESTIGATION OF
TRAFFICKERS
Sec. 24. Procedure in the Interception, Arrest and Investigation
of Traffickers in Persons at International Airport or Seaport.
When an offense punishable under the Act or any other
offense in relation thereto or in furtherance thereof has been
committed, or is actually being committed in the presence of
an immigration
officer assigned at the international airport or seaport,
he/she shall immediately cause the interception and/or arrest
of the persons involved for investigation. The DOJ Task Force
Against Trafficking shall cause the filing of appropriate case in
court when evidence warrants. If the person arrested is a
foreigner, the concerned B.I. investigating unit shall take full
custody over the arrested person, conduct the investigation
proper motu proprio and endorse the complaint and supporting
documents to the prosecutor for inquest or MTC Judge for
appropriate
proceedings.
Sec. 25. Procedure in the Interception, Arrest and Investigation
of Traffickers in Persons at Local Airport, Seaport and Land
Transportation Terminals. In cases where the violation is
committed at local seaport, airport or in land transportation
terminals, the members of
the law enforcement agency shall immediately cause the
interception and/or arrest of the suspected traffickers.
Thereafter, the investigation shall be conducted by the law
enforcement agency on the person/s intercepted/arrested, and
referred to the Prosecutor’s Office of the place where the
offense was committed or to the DOJ Task Force Against
Trafficking in Persons or
Task Force on Passport Irregularities or Municipal Trial Court
of the place where the crime was committed in case of
municipalities and non-chartered cities for purposes of inquest
or preliminary investigation as the case may be.
Sec. 26. Creation of a Joint Task Force Against Trafficking in
Persons. For the purpose of the above provisions, there shall
be created a Joint Task Force Against Trafficking in Persons to
be assigned at airports composed of Prosecution, BI, PNP,
and NBI personnel and another Task Force at land
transportation terminals and local seaports and airports to be
composed of Prosecution, PNP, BI, PPA, and PCG personnel.
The DOJ National Task Force Against Trafficking in Persons
shall issue the necessary operational guidelines for the
effective coordination, apprehension, investigation and
prosecution of violations of the Act. The DOJ Task Force
assigned at local seaports, airports and land transportation
terminals shall cooperate or coordinate with the local
authorities, local social welfare and development officers or
active NGOs concerned with trafficking in persons in the
locality.
Sec. 27. Rights of the Person Arrested, Investigated or
Detained. In all cases, the rights of the person arrested,
investigated or detained as provided by the Philippine
Constitution and under Republic Act No. 7438 (An Act Defining
Certain Rights of Persons Arrested, Detained or Under
Custodial Investigation As Well As The Duties of the Arresting,
Detaining and Investigating Officers, and Providing Penalties
For Violations Thereof) shall, at all times, be respected.
Article VIII
RESCUE/RECOVERY AND REPATRIATION
OF VICTIMS
Sec. 28. The Country Team Approach. The country team
approach under Executive Order No. 74, series of 1993 and
further enunciated in Republic Act No. 8042 shall be the
operational scheme under which Philippine embassies abroad
shall provide protection to trafficked
persons regardless of their immigration status. Under the
Country Team Approach, all officers, representatives and
personnel of the Philippine government posted abroad
regardless of their mother agencies shall, on a per country
basis, act as one-country team with mission under the
leadership of the Ambassador or the head of
mission.
Sec. 29. Rescue at the Country of
Destination. —
(a) Procedure. When the victim is a Filipino national and at the
time of rescue is residing abroad, the embassy or consulate
which has jurisdiction over the place where the victim is
residing shall verify the veracity of the report of incidence of
trafficking and inquire about the
condition of the victim. Consistent with the country team
approach, the Post concerned shall send a team composed of
a consular officer and personnel from the
Philippine Overseas Labor Office (POLO) or the Filipino
Workers Resource Center (FWRC), the Office of the Social
Welfare Attaché as the case may be, to conduct a visit to the
jail, establishment, work site or residence of the victim. In the
case of Posts without attached
services, the team will be composed of a consular officer and
personnel from the Assistance-to-Nationals
section. The Post shall make representations with the
police authorities or other relevant law enforcement agencies
with respect to the conduct of rescue operations. Rescue
operation shall also be made in
cooperation and close coordination with some NGO’s, local
contacts or private individuals when necessary.
In countries and areas where the services of the FWRC is not
accessible, a mobile type of services shall be extended by the
country team members to trafficked persons regardless of their
status in the host country.
Thereafter, the victim will be encouraged to execute a sworn
statement, recounting among others, the people/establishment
involved in the recruitment/transfer and deployment, the
modus operandi employed to recruit, transport and deploy the
victim, and other pertinent information which could provide a
lead in the
investigation and eventual prosecution of the perpetrators.
(b) Assistance to Trafficked Persons. The trafficked person
shall be provided with temporary shelter and other forms of
assistance. In countries where there is an Filipino Workers
Resource Center, the services available to overseas Filipinos
as provided for in Republic Act No. 8042 shall also be
extended to trafficked persons regardless of their status in the
host country.
(c) Legal Assistance Fund. Trafficked persons shall be
considered under the category “Overseas Filipinos in
Distress” and may avail of the Legal Assistance
Fund created by Republic Act No. 8042, subject to the
guidelines as provided by law, including rules and regulations
issued by the DFA as to its utilization and disbursement.
Sec. 30. Repatriation of Trafficked Persons.
The DFA, in coordination with DOLE and other appropriate
agencies, shall have the primary
responsibility for the repatriation of trafficked persons,
regardless of whether they are documented or undocumented.
If, however, the repatriation of trafficked persons shall expose
the victims to greater risks, the DFA shall make representation
with the host government for the extension of appropriate
residency permits and protection, as may be legally
permissible in the host country.
Sec. 31. Procedure for Repatriation. In accordance with
existing rules and regulations on the use and disbursement of
Assistance-to-Nationals Fund of the DFA for the repatriation of
distressed OFWs, the Post shall immediately request the DFA,
through the Office of the Undersecretary for Migrant Workers’
Affairs (OUMWA), allocation of funds for the repatriation of the
victim. In appropriate cases and to avoid re-victimization, the
Post may withdraw the passport of the victim and forward it to
the DFA and in its place issue a Travel Document (FA Form
79(B)) valid for direct travel to the Philippines. The Post
concerned shall report to the DFA,
through the OUMWA, copy furnished the Office of onsular
Affairs, the actual date of repatriation and other pertinent
information and submit a copy of the sworn statement and
other relevant documents. In appropriate cases, especially
when the victim is suffering from mental illness, has suffered
physical or sexual abuse or has received serious threats to his
or her life and safety, the victim will be met upon arrival in the
Philippines by DSWD personnel, in coordination with the Joint
Task
Force Against Trafficking in Persons and other government
agencies such as OWWA, BI and DOH. In the case of mentally
ill patients, minors, and other persons requiring special care,
the Post shall designate a duly authorized individual to escort
said victims to the Philippines. The victim will be encouraged, if
he or she has not done so before, to execute a sworn
statement with the view of filing the appropriate charges
against the suspected trafficker in the Philippines. Should the
victim request the assistance of DFA, OUMWA shall interview
the victim and make recommendations for investigation with
law enforcement agencies such as the PNP and the NBI. In
cases where
recruitment agencies are involved, the case shall also be
referred to the POEA for appropriate action. The report shall
also be forwarded to the BI for case build up. The victim may
be referred to the DSWD/Local Social
Welfare And Development Office or to the NBI One-Stop
Shop for psychosocial interventions, psychological and
medical examination and follow-through therapy sessions.
Protective custody and emergency shelter shall also be
provided to the victim, in appropriate cases.
Sec. 32. Rescue Within the Country. Rescue
operations within the country shall be primarily
undertaken by the law enforcement agencies in coordination
with LGUs, DOLE, DSWD and
DOH. Upon receipt of a report of a suspected or
alleged trafficking ncident or activity, the law enforcement
agency to which the report is made
shall conduct rescue operations of trafficked
persons. At the minimum, rescue operations
shall be guided by the following:
(a) Conduct of rescue operation of trafficked
persons shall be properly coordinated with the
concerned agencies particularly DSWD/local
social welfare and development officer;
(b) The rescue team shall ensure full protection
of the rights of the trafficked person as well as
the traffickers while under its custody and
control;
(c) After the rescue operation, the investigation
of the case shall be referred to the Women and
Children Complaint Desk (WCCD) desk of PNP,
the Violence Against Women and Children
Division (VAWCD) of the NBI or other similar
units or desks;
(d) After the completion of the necessary
documents for the filing of cases, the rescue
team shall effect the appropriate and immediate
turn-over of the trafficked person to DSWD/local
social welfare and development officer; and
(e) In the course of investigation of the trafficked
person, the investigator handling the case shall
ensure that the victim shall be accorded with proper
treatment and investigated in a child-friendly and
gender-sensitive environment. In the conduct of investigative
interviews on children, the law enforcers shall likewise be
guided by the Rule on the
Examination of a Child Witness promulgated by
Supreme Court, as may be applicable. For this
purpose, the investigators shall be properly
trained in the handling of cases of trafficked
persons
Article IX
REHABILITATION AND
REINTEGRATION OF VICTIMS
Sec. 33. Comprehensive Program. The
DSWD, LGUs and other concerned agencies
shall provide a comprehensive, gendersensitive
and child friendly program for the recovery,
rehabilitation and reintegration of victims/survivors of
trafficking, such as but not limited to the
following:
(a) Implementation of residential care, child placement,
educational assistance, livelihood and skills training and other
community-based services must be responsive to the specific
needs and problems of the victims/survivors and their families;
(b) Active involvement and participation of the victims/survivors
in the rehabilitation and reintegration process shall be
encouraged. In order to empower them and to prevent their
revictimization, capability building programs must be provided;
and Law, Rules and Local
Instruments 5 3
(c) Active cooperation and coordination with NGOs and other
members of the civil society including the business community,
tourismrelated industries as well as the media in the
rehabilitation and reintegration of
victims/survivors shall be undertaken.
Sec. 34 Procedure. The following procedure shall be
undertaken in implementing a comprehensive program for the
recovery, rehabilitation and reintegration of
victims/survivors of trafficking:
(a) The victim/survivor of trafficking may go to the nearest
DSWD/LGU Social Welfare and Development Office for
assistance;
(b) Upon referral/interview the DSWD/Local Government
Social Worker shall conduct an intake assessment
to determine appropriate intervention with the victim/survivor;
(c) The social worker shall prepare a social case
study report/case summary for the victim/survivor’s admission
to a residential facility for temporary shelter or
communitybased services;
(d) Provide services/interventions based on the rehabilitation
plan in coordination with appropriate agencies, e.g. counseling,
legal, medical and educational assistance; livelihood and/or
skills training; as well as appropriate services to the family of
the
trafficked victim/survivor; and
(e) Monitor implementation and periodically evaluate/update
the rehabilitation plan until the victim/ survivor has been
reintegrated with his/her family and community.
Sec. 35. Capability Building of Service Providers. The frontline
agencies and the service providers must undergo training and
other capability building activities to enhance their knowledge
and skills in handling cases of
trafficking to prevent exacerbation of traumatic stress and
facilitate more effective crisis interventions, healing and
reintegration services.
Sec. 36. Documentation. Data banking, research and
documentation of best practices in rehabilitation and
reintegration programs shall be conducted to identify efficient
and effective measures and services for the victims of
trafficking and their families.
Article X
PROSECUTION, CIVIL FORFEITURE AND
RECOVERY OF CIVIL DAMAGES
Sec. 37. Who May File a Complaint.
Complaints for violations of the Act may be filed
by the following:
(a) Any person who has personal knowledge of
the commission of the offense;
(b) The trafficked person or the offended party;
(c) Parents or legal guardians;
(d) Spouse;
(e) Siblings; or
(f) Children.
The foregoing persons may also seek the
assistance of the Council in the filing of
complaint.
Sec. 38. Institution of Criminal Action; Effect.
The institution of the criminal action before the
Office of the Prosecutor or the court, as the case
may be, for purposes of preliminary investigation
shall interrupt the running of the period for prescription of the
offense charged. The prescriptive period shall commence to
run again when such proceedings terminate without the
accused being convicted or acquitted or are unjustifiably
stopped for any reason not
imputable to the accused.
Sec. 39. Institution of Criminal and Civil Actions. Pursuant to
the Revised Rules on Criminal Procedure, when a criminal
action is instituted, the civil action arising from the offense
charged shall be deemed instituted with the criminal action
unless the offended party waives the civil action, reserves the
right to institute it separately or institutes the civil action prior to
the criminal action.
Sec. 40. Exemption from Filing Fees. When the trafficked
person institutes a separate civil action for the recovery of civil
damages, he/she shall be exempt from the payment of filing
fees.
Sec. 41. Venue. The offenses punishable under the Act shall
be considered as a continuing offense and may be filed in the
place where the offense was committed or where any of its
elements occurred or where the trafficked
person actually resides at the time of the
commission of the offense. Provided, that the
court where the criminal action is first filed shall
acquire jurisdiction to the exclusion of other
courts.
Sec. 42. Forfeiture of the Proceeds and
Instruments Derived from Trafficking in
Persons. —
(a) After conviction, all proceeds and instruments, including
any real or personal property used in the commission of the
offense, shall be ordered confiscated and forfeited in favor of
the State unless the owner thereof can prove the lack of
knowledge of the use of such property in the said illegal
activity. Any award for
damages arising from the commission of the offense may be
satisfied and charged against the personal and
separate properties of the offender and if the same is
insufficient to satisfy the claim, the balance shall be taken from
the forfeited properties as may be ordered by the court.
(b) During the pendency of the criminal action, no property or
income used or derived therefrom which are subject to
confiscation and forfeiture, shall be disposed, alienated or
transferred and the same shall be in custodia legis and no
bond shall be admitted for the release of the same.
(c) The trial prosecutor shall avail of the provisional remedies
in criminal cases to ensure the confiscation,
preservation and forfeiture of the said properties.
(d) If the offender is a public officer or employee, the forfeiture
of his/her property found to be unlawfully acquired shall be
governed by Republic Act No. 1379 otherwise known as “An
Act Declaring Forfeiture in Favor of the State Any Property
Found to Have Been Unlawfully Acquired by Any Public Officer
or Employee and Providing for the Proceedings Therefore.”
Article XI
LEGAL PROTECTION AND OTHER
SERVICES
Sec. 43. Legal Protection. Trafficked persons shall be
recognized as victims of the act or acts of trafficking. As such,
they shall not be penalized for crimes directly related to the
acts of trafficking enumerated under the Act or in obedience to
the order made by the trafficker in
relation thereto. In this regard, the consent of the trafficked
person to the intended exploitation set forth in the Act shall be
irrelevant.
Sec. 44. Preferential Entitlement under the Witness Protection
Program. Any provision of Republic Act No. 6981 to the
contrary notwithstanding, any trafficked person shall be entitled
to the witness protection program provided therein.
Sec. 45. Immunity from Criminal Prosecution. Any person who
has personal knowledge in the commission of any of the
offenses penalized under the Act and who
voluntarily gives material information relative thereto and
willingly testifies against the offender shall be exempt from
prosecution for the offense with reference to which his
information and testimony were given, subject to the following
conditions:
(a) The information and testimony are necessaryfor the
conviction of the accused; and
(b) Such information and testimony are not yet in the
possession of the state.
Sec. 46. Mandatory Services. To ensure recovery,
rehabilitation and reintegration into the mainstream of society,
concerned government agencies shall make available the
following services to trafficked persons:
(a) Emergency shelter or appropriate housing;
(b) Counseling;
(c) Free legal services which shall include information about
the victims’ rights and the procedure for filing complaints,
claiming compensation and such other legal remedies
available to them, in a language understood by
the trafficked person;
(d) Medical or psychological services;
(e) Livelihood and skills training; and
(f) Educational assistance to a trafficked child. Sustained
supervision and follow through mechanism that will track the
progress of recovery, rehabilitation and reintegration of the
trafficked persons shall be adopted and carried
out.
Sec. 47. Legal Protection of Trafficked Persons Who are
Foreign Nationals. Trafficked persons in the Philippines who
are nationals of a foreign country shall be entitled to
appropriate protection, assistance and services available to the
trafficked persons and shall be allowed to continued presence
in the Philippines for a period of fifty-nine (59) days to enable
them to effect the prosecution of the offenders. Such period
may be renewed upon showing of proof by the trial prosecutor
that their further testimony is essential to the prosecution of the
case. The
trial prosecutor shall course his request for extension to the
Council which shall accordingly act upon the same. If such
request is granted, the registration and immigration fees of
such foreign nationals shall be waived. The
Council, for this purpose, shall develop additional
guidelines to implement this provision.
Article XII
TRUST FUND
Sec. 48. Trust Fund; Sources. All fines
imposed under the Act and the proceeds and
properties forfeited and confiscated pursuant to
Section 14 of the Act and Article IX, Section 5 of
these rules and regulations shall accrue to a Trust Fund to be
administered and managed by the Council.
Sec. 49. Utilization. The Trust Fund shall be used exclusively
for programs that will prevent acts of trafficking and protect,
rehabilitate, reintegrate trafficked persons into the mainstream
of society. Such programs shall include, but not limited to the
following:
(a) Provision for mandatory services set forth in Section 23 of
the Act; and Section 47 of thesecRules and
Regulations.
(b) Sponsorship of a national research programon trafficking
and establishment of a data collection system for monitoring
and evaluation purposes;
(c) Provision of necessary technical and material
support services to appropriate government agencies and
nongovernment organizations (NGOs);
(d) Sponsorship of conferences and seminars to provide venue
for consensus building among the public, the academe,
government, NGOs and international organizations; and
(e) Promotion of information and education campaign on
trafficking.
The Trust Fund may also be used to support the
operations of the Secretariat.
Sec. 50. Use and Disbursement of Trust Fund. The use and
disbursement of the trust fund shall be subject to the approval
of at least two-thirds (2/3) of the members of the Council and
shall be governed by existing government accounting and
auditing rules and regulations.
Article XIII
INTERNATIONAL COOPERATION
Sec. 51. International Cooperation. The Council, in close
coordination with the DFA and other concerned agencies, shall
promote cooperation, technical assistance and partnership
among governments and regional and international
organizations on the following
aspects:
(a) Prevention, protection, prosecution, repatriation and
reintegration aspects of trafficking in persons, especially
women and children;
(b) Systematic exchange of information and good practices
among law enforcement and immigration authorities;
(c) Prevention, detection, investigation and prosecution of
trafficking in persons, including the protection of victims
through exchanges and joint training at the bilateral, regional
and international levels, between and among relevant officials
including police, judges, prosecutors, immigration officers,
other law enforcement agents as well as consular authorities;
and
(d) Repatriation of victims of trafficking with due regard to their
safety and in consideration of humanitarian
and compassionate factors.
Article XIV
CONFIDENTIALITY
Sec. 52. Confidentiality. At any stage of the investigation,
prosecution and trial of an offense under this Act, law
enforcement officers, prosecutors, judges, court personnel and
medical practitioners, as well as parties to the case, shall
recognize the right to privacy of the trafficked person and the
accused. Towards this end, law enforcement officers,
prosecutors and judges to whom the complaint has been
referred may, whenever necessary to ensure a fair and
impartial proceeding, and after considering all circumstances
for the best interest of the parties, order a closed-door
investigation, prosecution or trial. The name and personal
circumstances of the trafficked person or of the accused, or
any other information tending to establish their identities and
such circumstances or information shall not be disclosed to the
public. In case when the prosecution or trial is conducted
behind closed doors, it shall be unlawful for any editor,
publisher, reporter or columnist in case of printed materials,
announcer or producer in case of television and radio,
producer and director of a film in case of the movie industry, or
any
person utilizing tri-media or information technology to cause
publicity of and case of trafficking in persons.
Article XV
OFFENSES AND PENALTIES
Sec. 53. Acts of Trafficking in Persons. Any
person, natural or juridical, who commits any of the following
acts shall suffer the penalty of imprisonment of twenty (20)
years and a fine of not less than One million pesos
(P1,000,000.00) but not more than Two million pesos
(P2,000,000.00):
(a) To recruit, transport, transfer, harbor, provide, or receive a
person by any means, including those done under the pretext
of domestic or overseas employment or training or
apprenticeship, for the purpose of prostitution, pornography,
sexual exploitation, forced labor, slavery, involuntary servitude
or debt bondage;
(b) To introduce or match for money, profit or
material, economic or other consideration, any
person or, as provided for under Republic Act No. 6955, any
Filipino woman with a foreign national, for marriage for the
purpose of acquiring, buying, offering, selling or trading
him/her to engage in prostitution, pornography, sexual
exploitation, forced labor, slavery, involuntary servitude or debt
bondage;
(c) To offer or contract marriage, real or simulated, for the
purpose of acquiring, buying, offering, selling, or trading them
to engage in prostitution, pornography, sexual exploitation,
forced labor or slavery, involuntary servitude or debt bondage;
(d) To undertake or organize tours and travel plans consisting
tourism packages or activities for the purpose of utilizing and
offering persons for prostitution, pornography or sexual
exploitation;
(e) To maintain or hire a person to engage in prostitution or
pornography;
(f) To adopt or facilitate the adoption of persons for the
purpose of prostitution, pornography, sexual exploitation,
forced labor, slavery, involuntary servitude or debt bondage;
(g) To recruit, hire, adopt, transport or abduct a
person, by means of threat or use of force,
fraud, deceit, violence, coercion, or intimidation
for the purpose of removal or sale of organs of
said person; and
(h) To recruit, transport or adopt a child to
engage in armed activities in the Philippines or
abroad.
Sec. 54. Acts that Promote Trafficking in
Persons. Any person, natural or juridical, who
shall commit the following acts which promote or
facilitate trafficking in persons, shall be
penalized with the penalty of imprisonment of
fifteen (15) years and a fine of not less than Five
hundred thousand pesos (P500,000.00) but not
more than One million pesos (P1,000,000.00):
(a) To knowingly lease or sublease, use or allow
to used any house, building or establishment for
the purpose of promoting trafficking in persons;
(b) To produce, print and issue or distribute
unissued, tampered or fake counseling
certificates, registration stickers and certificates
of any government agency which issues these
certificates and stickers as proof of compliance
with government regulatory and pre-departure
requirements for the purpose of promoting
trafficking in persons;
(c) To advertise, publish, print, broadcast or
distribute, or cause the advertisement,
publication, printing,
broadcasting or distribution by any means,
including the use of information technology and
the internet of any brochure, flyer, or any
propaganda material that promotes trafficking in
persons;
(d) To assist in the conduct of misrepresentation
or fraud for purposes of facilitating the
acquisition of clearances and necessary exit
documents from government agencies that are
mandated to provide pre-departure registration
and services for departing persons for the
purpose of promoting trafficking
in persons;
(e) To facilitate, assist or help in the exit and
entry of persons from/to the country at
international and local airports, territorial
boundaries and seaports who are in possession
of unissued, tampered or fraudulent and travel
documents for the purpose of promoting
trafficking in persons;
(f) To confiscate, conceal, or destroy the
passport, travel documents, or personal
documents or belongings of trafficked persons in
furtherance of trafficking or to prevent them from
leaving the country or seeking redress from the
government or appropriate agencies; and
(g) To knowingly benefit from, financial or
otherwise or make use of, the labor or services
of a person held to a condition of involuntary
servitude, forced labor , or slavery.
Sec. 55. Qualified Trafficking in Persons. The
following are considered as qualified trafficking
and shall be penalized with the penalty of life imprisonment
and a fine of not less than Two million pesos (2,000,000.00)
but not more than Five million pesos (5,000,000.00);
(a) When the trafficked person is a child;
(b) When the adoption is effected through Republic Act No.
8043, otherwise known as the “Inter-Country Adoption Act of
1995” and said adoption is for the purpose of prostitution,
pornography, sexual exploitation, forced labor, slavery,
involuntary servitude or debt bondage;
(c) When the crime is committed by a syndicate , or in large
scale. Trafficking is deemed committed by a syndicate if
carried out by a group of three (3) or more persons conspiring
or confederating with one another. It is deemed committed in
large scale if committed against
three (3) or more persons , individually or as a group;
(d) When the offender is an ascendant, parent, sibling,
guardian or a person who exercises authority over the
trafficked person or when the offense is committed by a public
officer or employee;
(e) When the trafficked person is recruited to engage in
prostitution with any member of the military or law
enforcement agencies;
(f) When the offender is a member of the military orlaw
enforcement agencies; and
(g) When by reason or on occasion of the act of trafficking in
persons, the offended party dies, becomes insane, suffers
mutilation or is afflicted with Human Immunodeficiency Virus
HIV or the
Acquired Immune Deficiency Syndrome (AIDS).
Sec. 56. Violation of Confidentiality Provisions. Any person
who violates Section 7 of the Act and Section 52, Article XIV
hereof shall suffer the penalty of imprisonment of six (6) years
and a fine not less than Five hundred thousand pesos
(P500,000.00) but not more than One million pesos
(P1,000,000.00).
Sec. 57. Application of Penalties and Other Sanctions. The
following shall be applied in the imposition of penalties:
(a) If the offender is a corporation, partnership, association,
club, establishment or any judicial person, the penalty shall be
imposed upon the owner, president, partner, manager, and/or
any responsible officer who participated in the commission of
the crime or who shall have knowingly permitted or failed to
prevent its
commission;
(b) The registration with the Securities and exchange
Commission (SEC) and license to operate of the erring
agency, corporation, association, religious group, tour or travel
agent, club or establishment, or any place or
entertainment shall be cancelled and revoked permanently.
The owner, president, partner or manager thereof shall not be
allowed to operate similar establishment in a different name;
(c) If the offender is a foreigner, he shall be immediately
deported after serving his sentence and be barred
permanently from entering the country;
(d) Any employee or official of government agencies who shall
issue or approve the issuance of travel exit clearances,
passports, registration certificates, counseling certificates,
marriage license, and other similar documents to persons,
whether judicial or natural, recruitment agencies,
establishments or other individuals or groups, who fail to
observe the prescribed
procedures and the requirement as provided for by laws, rules
and regulations, shall be held administratively liable, without
prejudice to criminal liability under the Act. The concerned
government official or employee shall, upon conviction, be
dismissed from the service and be
barred permanently to hold public office. His/her
retirement and other benefits shall likewise be forfeited; and
(e) Conviction by final judgment of the adopter for any offense
under this Act shall result in the immediate
rescission of the decree of adoption.
Sec. 58. Use of Trafficked Persons. Any person who buys or
engages the services of trafficked persons for prostitution shall
be penalized as follows:
(a) First offense — six (6) months of community service as
may be determined by the court and a fine of Fifty thousand
pesos (P50,000.00); and
(b) Second and subsequent offenses — imprisonment of one
year (1) year and a fine of One hundred thousand pesos
(P100,000.00).
The Council shall coordinate with the Supreme Court through
the Office of the Court Administrator for the issuance of
appropriate guidelines and measures for the judiciary to
implement this provision particularly on the
aspect of implementing the penalty of community service.
Article XV
FUNDING
Sec. 59. Inclusion in Agency Appropriations. The heads of
departments and agencies concerned shall immediately
include in their annual appropriations the funding necessary to
implement programs and services required by the Act and
these regulations.
In the interim, the funding necessary to carry out their mandate
under the law may be charged against their Gender and
Development (GAD) budget.
Article XVII
FINAL PROVISIONS
Sec. 60. Non-Restriction of Freedom of Speech and of
Association, Religion and the Right to Travel. Nothing in these
rules and regulations shall be interpreted as a restriction of the
freedom and of association, religion and the right to travel for
purposes not contrary to law as
guaranteed by the Constitution.
Sec. 61. Saving Clause. The provisions of Republic Act No.
7610, otherwise known as the “Special Protection of Children
Against Child Abuse, Exploitation and Discrimination Act” shall
remain applicable and shall not in any way be amended or
repealed by the provisions of the Act and these rules and
regulations.
Sec. 62. Separability Clause. The declaration of invalidity of
any provision of these rules and regulations or part thereof
shall not affect the validity of the remaining provisions.
Sec. 63. Repealing Clause. Pertinent provisions of all laws,
presidential decrees, executive orders and rules and
regulations, or parts thereof, contrary to or inconsistent with
the provisions of the Act and these rules and regulations are
hereby repealed or modified
accordingly.
Sec. 64. Effectivity. These rules and regulations shall take
effect fifteen (15) days after its complete publication in at least
two (2) newspapers of general circulation.
7. Alien Employment Regulation
Reference: Arts. 12 (e), 40-42; Omnibus Rules, Book
I, Rule XIV, DO 12, 16 Nov. 2001; Omnibus Guidelines
for Issuance of Employment Permits to Foreign
Nationals); Const., Art. XII, Sec. 12
Labor Code
Art. 12 (e) To regulate the employment of aliens,
including the establishment of a registration and/or
work permit system;
ART. 40. Employment permit of non-resident aliens. -
Any alien seeking admission to the Philippines for
employment purposes and any domestic or foreign
employer who desires to engage an alien for employment in
the Philippines shall obtain an
employment permit from the Department of Labor.
The employment permit may be issued to a nonresident
alien or to the applicant employer after a determination of the
non-availability of a person in the Philippines who is
competent, able and willing at the time of application to
perform the services for which the alien is desired.
For an enterprise registered in preferred areas of investments,
said employment permit may be issued upon recommendation
of the government agency charged with the supervision of said
registered enterprise.
ART. 41. Prohibition against transfer of employment.
- (a) After the issuance of an employment permit, the
alien shall not transfer to another job or change his employer
without prior approval of the Secretary of
Labor.
(b) Any non-resident alien who shall take up employment in
violation of the provision of this Title and its implementing rules
and regulations shall be punished in accordance with the
provisions of Articles 289 and 290 of the Labor Code.In
addition, the alien worker shall be subject to deportation after
service of his sentence.
ART. 42. Submission of list. - Any employer employing non-
resident foreign nationals on the effective date of this Code
shall submit a list of such nationals to the Secretary of Labor
within thirty (30) days after such date indicating their names,
citizenship, foreign and local addresses, nature of employment
and status of stay in the country. The Secretary of Labor shall
then determine if they are entitled to an employment permit.
Omnibus Rules, Book I, Rule XIV
RULE XIV
Employment of Aliens
SECTION 1. Coverage. — This Rule shall apply to all
aliens employed or seeking employment in the Philippines, and
their present or prospective employers.
SECTION 2. Submission of list. — All employers employing
foreign nationals, whether resident or
on-resident shall submit a list of such nationals to
the Bureau indicating their names, citizenship, foreign and
local addresses; nature of employment and status of stay in
the Philippines.
SECTION 3. Registration of resident aliens. — All employed
resident aliens shall register with the Bureau under such
guidelines as may be issued by it.
SECTION 4. Employment permit required for entry. — No alien
seeking employment, whether on resident or non-resident
status, may enter the Philippines without first securing an
employment permit from the Department of Labor and
Employment. If an alien enters the country under a non-
working visa and wishes to be employed thereafter, he may
only be allowed to be employed upon presentation of a duly
approved employment permit.
SECTION 5. Requirements for employment permit application.
— The application for an employment permit shall be
accompanied by the following:
(a) Curriculum vitae duly signed by the applicant indicating his
educational background, his work experience and other data
showing that he possesses high technical skills in his trade or
profession;
(b) Contract of employment between the employer and the
principal which shall embody the following, among others:
(1) That the non-resident alien worker shall comply with all
applicable laws and rules and regulations of the Philippines;
(2) That the non-resident alien worker and the employer shall
bind themselves to train at least two (2) Filipino understudies
for a period to be determined by the Secretary of Labor and
Employment; and
(3) That he shall not engage in any gainful employment other
than that for which he was issued a permit.
(c) A designation by the employer of at least two (2)
understudies for every alien worker. Such understudies must
be the most ranking regular employees in the section or
department for which the expatriates are being hired to ensure
the actual transfer of technology.
SECTION 6. Issuances of employment permit. — The
Secretary of Labor and Employment may issue an employment
permit to the applicant based on:
a) Compliance by the applicant and his employer
with the requirements of Section 2 hereof;
b) Report of the Bureau Director as to the availability or non-
availability of any person in the Philippines who is competent,
able, and willing to do the job for which the services of the
applicant are desired;
c) His assessment as to whether or not the employment of the
applicant will redound to the national interest;
d) Admissibility of the alien as certified by the Commission on
Immigration and Deportation;
e) The recommendation of the Board of Investments
or other appropriate government agencies if the applicant will
be employed in preferred areas of investments or in
accordance with imperatives of
economic developments; and
f) Payments of a P100.00 fee.
SECTION 7. Duration of employment permit. — Subject to
renewal upon showing of good cause, the employment permit
shall be valid for a minimum period of one (1) year starting
from the date of its issuance unless sooner revoked by the
Secretary of Labor and Employment for violation of any
provisions of the Code or of these Rules.
SECTION 8. Advice to Commission on Immigration
and Deportation. — The Bureau shall advice the Commission
on Immigration and Deportation on the
issuance of an employment permit to an applicant.
SECTION 9. Understudy Training Program. — The employer
shall submit a training program for his
understudies to the Bureau within thirty (30) days upon arrival
of the alien workers. The supervision of the training program
shall be the responsibility of the Bureau and shall be in
accordance with standards established by the Secretary of
Labor and Employment.
Omnibus Guidelines for Issuance of
Employment Permits to Foreign Nationals
–DO 12, November 12, 2001.
DEPARTMENT ORDER NO. 12
(Series of 2001)
OMNIBUS GUIDELINES FOR THE ISSUANCE OF
EMPLOYMENT PERMITS TO FOREIGN
NATIONALS.
. 3. An AEP shall be issued based on the following:
Pursuant to the provisions of Articles 5 and 40 of
P. D. 442, as amended, the provisions of Rule XIV,
Book I of its Implementing Rules and Regulations,
Section 17(5), Chapter 4, Title VII of the Administrative Code
of 1987, the following Omnibus Guidelines for the issuance of
Employment Permits are hereby promulgated:
Rule I
Coverage and Exemption
1. The following shall apply for Alien Employment
Permit (AEP):
1.1. All foreign nationals seeking admission to the Philippines
for the purpose of employment;
1.2. Missionaries or religious workers who intend to engage in
gainful employment;
1.3. Holders of Special Investors Resident Visa (SIRV),
Special Retirees Resident Visa (SRRV), Treaty Traders Visa
(9d) or Special Non-immigrant Visa (47(a)2), who occupy any
executive, advisory, supervisory, or technical position in any
establishment;
1.4. Agencies, organizations or individuals whether public or
private, who secure the services of foreign professionals to
practice their professions in the Philippines in the Philippines
under reciprocity and other international agreements;
1.5. Non-Indo-Chinese Refugees who are asylum seekers and
given refugee status by the United
Nations High Commissioner on Refugees (UNHCR) or the
Department of Justice under DOJ Department Order No. 94,
series of 1998;
1.6. Resident foreign nationals seeking employment in the
Philippines.
2. Exemption. The following categories of foreign nationals are
exempt from securing an employment permit in order to work
in the Philippines.
2.1 All members of the diplomatic services and foreign
government officials accredited by the Philippine Government;
2.2 Officers and staff of international organizations of which the
Philippine government is a cooperating member, and their
legitimate spouse 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; and
2.4 All foreign nationals granted exemption by special laws and
all other laws that may be promulgated by the Congress.
Rule II
Procedures in the Processing of Applications for
AEP
1. All foreign nationals seeking employment in the Philippines
under Rule 1 hereof or their prospective employers, shall file
their applications with the DOLE Regional Office having
jurisdiction over the intended place of work.
2. Fees - The applicant shall pay filing, publication and permit
fees in the amount of Eight thousand pesos P8,000.00) for
each application for AEP with a validity of one (1) year. Three
thousand pesos (P3,000.00) shall be charged for every
additional year of validity or a fraction thereof.
3.1. Compliance bye the applicant employer or the foreign
national with the substantive and documentary requirements;
3.2. Determination of the DOLE Secretary that there is no
Filipino national who is competent, able and willing to do the
job for which the services of the applicant is desired;
3.3. Assessment of the DOLE Secretary that the employment
of the foreign national will redound to national benefit;
4. Denial of Application for AEP - An application for AEP may
be denied based on the ground of non-compliance with any of
the requirements for issuance of AEP or for misrepresentation
of facts in the application or submission of falsified or tampered
documents Foreign nationals whose applications have been
denied shall not be allowed to re-apply in any of the DOLE
Regional Offices.
5. Renewal of Permit - An application for renewal of AEP shall
be filed at least fifteen (15) days before its expiration. For
elective officers, applications for renewal shall be filed upon
election or at least thirty (30) days before the effectivity of the
applicant's term of office if the succeeding term of office is
ascertained.
Failure to file the application for renewal of permit within the
prescribed period shall be subject to fines of Five Thousand
Pesos (5,000.00), if filed within six (6) months after the
prescribed period and Ten Thousand Pesos (10,000.00), if
filed after six (6) months. Failure to renew the AEP within one
(1) year after its expiration shall be a cause for its revocation or
cancellation.
6. The employer shall notify the DOLE-RO which issued the
permit of the date of the assumption to duty of the oreign
national within thirty (30) days from issuance of the permit.
7. Validity of Permits - The validity of permits shall be as
follows:
7.1. As a general rule, the validity of permits shall be for a
period of one (1) year, unless the employment contract,
consultancy services, or other modes of engagement or term
of office for elective officers, provides for a longer period.
7.2. The effectivity of the renewal shall be on the day after the
expiration of the previous permit, regardless of whether or not
the renewal is granted before or after the expiration of the
previous permit.
7.3. As a general rule, the permits shall be valid only for the
position and the employer for which it was issued, except in
case of foreign nationals who are holders of multiple positions
in one corporation, where one AEP shall be valid for such
multiple positions.
7.4. The permits of resident foreign nationals shall be valid for
multiple employers, regardless of the nature and duration of
their employment, provided that they shall report changes in
their employment status and the identity of their employers to
the DOLE Regional Office which has issued the permit.
Rule III
Revocation/Cancellation of Employment Permits
Issued
1. The permits issued may, motu proprio or upon a petition, be
cancelled or revoked based on any of the following grounds:
1.1 Misrepresentation of facts or falsification of the documents
submitted;
1.2 The foreign national has been declared as an undesirable
alien by competent authorities;
1.3 Non-compliance with the conditions for which the AEP was
issued;
1.4 Failure to renew AEP within one (1) year after its
expiration.
2. Petitions for cancellation or revocation of permits issued
shall be resolved within thirty (30) calendars from receipt
thereof.
3. Any aggrieved party may file a Motion for Reconsideration
and/or Appeal and the same shall be resolved based on
Paragraph 4 of this Rule.
4. Remedies in Case of Denial or Cancellation – A motion for
Reconsideration maybe filed by an aggrieved party within
seven (7) calendar days after receipt of the Order of
Denial/Cancellation.
The DOLE Regional Director shall resolve the said Motion for
Reconsideration within ten (10) calendar days from receipt
thereof.
A motion for Reconsideration filed after the period
of seven (7) calendar days but within ten (10) calendar days
after receipt of the denial shall be treated as an appeal.
An appeal from the decision of the DOLE Regional
Director may be filed with the Secretary of labor and
Employment within ten (10) calendar days from receipt of an
Order from the DOLE Regional Director. The decision of the
Secretary of Labor and Employment shall be final and
unappealable.
Rule IV
Penal and Transitory Provisions
1. The DOLE Regional Directors, after due notice
and hearing, shall have the power to order and impose a fine
of Five Thousand Pesos (P5,000.00) on foreign nationals
found working without an AEP for less than one (1) year and
Ten Thousand Pesos (P10,000.00) for more than one (1) year.
2. All applications for employment permit/certificates pending
at the DOLE-RO upon the effectivity of these Guidelines shall
be covered and processed under the provisions of these
Guidelines.
3. Holders of provisional and extended AEPs issued under
Memorandum dated 24 August 2001 regarding Alternative
Interim Measures for the Issuance of Alien Employment
Permits, shall apply for an AEP pursuant to these Guidelines
on or before the expiration of the provisional and extended
AEP.
4. Foreign nationals who are already working in the country
and who have not yet secured the requisite employment permit
shall have ninety (90) days from the effectivity of these
Guidelines to secure the said employment permit
withoutpenalty.
Rule V
Miscellaneous Provisions
1. Manual of Operations. - The Bureau of Local Employment
shall issue a Manual of Operations to implement the provisions
of these Guidelines.
2. Separability Clause. - If any provision or part of this
Department Order or the application thereof to any person or
circumstance is held invalid by the Courts, the remaining valid
provisions of this Department Order shall not be affected.
3. Repealing Clause. - All guidelines, rules and regulations and
agreements inconsistent herewith
are hereby repealed or modified accordingly.
4. Effectivity. - These guidelines shall take effect fifteen (15)
days after its publication in two (2) newspapers of general
circulation.
Constitution, Art. XII, Sec. 12
Section 12. The State shall promote the preferential
use of Filipino labor, domestic materials and locally
produced goods, and adopt measures that help make
them competitive.
a. Coverage; Exemption, Art. 40; D.O No. 97-09, Section 1, 2
• Almodiel vs. NLRC 223 SCRA 341 (1993)
- Redundancy for purposes of our Labor Code, exists where
the services of an employee are in excess of what is
reasonably demanded by the actual requirements of the
enterprise. The characterization of an employee’s services as
no longer necessary or sustainable, and therefore, properly
terminable, was an exercise of business judgment on the part
of the employer. The wisdom or soundness of such
characterization was not subject to discretionary review on the
part of the LA nor of the NLRC so long, of course, as violation
of law or merely arbitrary of malicious action is not shown.
- In International Macleod vs IAC, it was held that the
determination of the need for the phasing out of a department
as a labor and cost saving device because it was no longer
economical to retain said services is a management
prerogative and the courts will not interfere with the exercise
thereof as long as no abuse of discretion or merely arbitrary or
malicious action on the part of management is shown.
- An employer has a much wider discretion in terminating
employment relationship of managerial personnel compared to
rank and file because officers in such key positions perform not
only functions which by nature require the employer’s full trust
and confidence but also functions that spell the success or
failure of an enterprise.
- On Alien Employment: a resident alien without a working
permit is not what is prohibited in Art 40. The provision
requires employment permit to non-resident aliens. The
employment permit is required for entry into the country for
employment purposes and is issued after determination of the
non-availability of a person in the Philippines who is
competent, able and willing at the time of application to
perform the services for which the alien is desired.
THE CASE: Subject of this petition for certiorari is the March
1991 decision of the National Labor Relations Commission
which reversed and set aside the Labor Arbiter's decision and
ordered instead the payment of separation pay and financial
assistance of P100,000.00. Petitioner imputes grave abuse of
discretion on the part of the Commission and prays for the
reinstatement of the Labor Arbiter's decision which declared
his termination on the ground of redundancy illegal.
FACTS: Petitioner F. Almodiel, a CPA, was hired as Cost
Accounting Manager of Raytheon Philippines, Inc. He started
as a probationary or temporary employee.
His major duties were: (1) plan, coordinate and carry out year -
end and physical inventory; (2) formulate and issue out hard
copies of Standard Product costing and other cost/pricing
analysis if needed and required and (3) set up the written Cost
Accounting System for the whole company. After a few
months, he was given a regularization increase of P1,600.00 a
month.
On August 17, 1988, he recommended and submitted a Cost
Accounting/Finance Reorganization, affecting the whole
finance group but the same was disapproved by the Controller.
However, he was assured by the Controller that should his
position or department which was apparently a one-man
department with no staff becomes untenable or unable to
deliver the needed service due to manpower constraint, he
would be given a three (3) year advance notice.
On January 27, 1989, petitioner was summoned by his
immediate boss and in the presence of IRD Manager, Mr.
Rolando Estrada, he was told of the abolition of his position on
the ground of redundancy. He pleaded with management to
defer its action or transfer him to another department, but he
was told that the decision of management was final and that
the same has been conveyed to the Department of Labor and
Employment. Thus, he was constrained to file the complaint for
illegal dismissal before the Arbitration Branch of the National
Capital Region, NLRC, Department of Labor and Employment.
Labor Arbiter’s Ruling: 1989 - Labor Arbiter
declared that complainant's termination on the ground of
redundancy is highly irregular and without legal and factual
basis, thus ordering the respondents to reinstate complainant
to his former position with full backwages without lost of
seniority rights and other benefits. Respondents are further
ordered to pay complainant P200,000.00 as moral damages
and P20,000.00 as exemplary damages, plus ten percent
(10%) of the total award as attorney's fees.
Raytheon appealed on the grounds that the Labor Arbiter
committed grave abuse of discretion in denying its rights to
dismiss petitioner on the ground of redundancy, in relying on
baseless surmises and self-serving assertions of the petitioner
that its act was tainted with malice and bad faith and in
awarding moral and exemplary damages and attorney's fees.
NLRC’s Ruling: 1991 - the NLRC reversed the
decision and directed Raytheon to pay petitioner the total sum
of P100,000.00 as separation pay/financial assistance.
ISSUES:
1. Whether NLRC committed grave abuse of discretion
amounting to (lack of) or in excess of jurisdiction in declaring
as valid and justified the termination of petitioner on the ground
of redundancy.
2. Whether bad faith, malice and irregularity crept in the
abolition of petitioner's position of Cost Accounting Manager on
the ground of redundancy.
RULING:
1. No. There is no dispute that petitioner was duly advised, one
(1) month before, of the termination of his employment on the
ground of redundancy in a written notice by his immediate
superior in January 27, 1989. He was issued a check
representing separation pay but in view of his refusal to
acknowledge the notice and the check, they were sent to him
thru registered mail on January 30, 1989. The Department of
Labor and Employment was served a copy of the notice of
termination of petitioner in accordance with the pertinent
provisions of the Labor Code and the implementing rules.
2. No. Whether petitioner's functions as Cost Accounting
Manager have been dispensed with or merely absorbed by
another is however immaterial. For even conceding that the
functions of petitioner's position were merely transferred, no
malice or bad faith can be imputed from said act. This Court
said that redundancy, for purposes of our Labor Code, exists
where the services of an employee are in excess of what is
reasonably demanded by the actual requirements of the
enterprise. The characterization of an employee's services as
no longer necessary or sustainable, and therefore, properly
terminable, was an exercise of business judgment on the part
of the employer. The wisdom or soundness of such
characterization or decision was not subject to discretionary
review on the part of the Labor Arbiter nor of the NLRC so
long, of course, as violation of law or merely arbitrary and
malicious action is not shown.
Indeed, an employer has no legal obligation to keep more
employees than are necessary for the operation of its
business. Petitioner does not dispute the fact that a cost
accounting system was installed and used at Raytheon
subsidiaries and plants worldwide; and that the functions of his
position involve the submission of periodic reports utilizing
computerized forms designed and prescribed by the head
office with the installation of said accounting system. Petitioner
attempts to controvert these realities by alleging that some of
the functions of his position were still indispensable and were
actually dispersed to another department. What these
indispensable functions that were dispersed, he failed
however, to specify and point out. Besides, the fact that the
functions of a position were simply added to the duties of
another does not affect the legitimacy of the employer's right to
abolish a position when done in the normal exercise of its
prerogative to adopt sound business practices in the
management of its affairs.
Considering further that petitioner held a position which was
definitely managerial in character, Raytheon had a broad
latitude of discretion in abolishing his position. An employer
has a much wider discretion in terminating employment
relationship of managerial personnel compared to rank and file
employees. The reason is that officers in such key positions
perform not only functions which by nature require the
employer's full trust and confidence but also functions that
spell the success or failure of an enterprise.
• Petitioner claims that the functions of his position were
absorbed by the Payroll/Mis/Finance Department under Ang
Tan Chai, a resident alien without any working permit from the
DOLE as required by law. Almodiel also claims that he is better
qualified than Ang Tan Chai, a B.S. Industrial Engineer, hired
merely as a Systems Analyst Programmer or its equivalent in
early 1987, promoted as MIS Manager only during the middle
part of 1988 and a resident alien.
• On the other hand, Raytheon insists that petitioner's functions
as Cost Accounting Manager had not been absorbed by Ang
Tan Chai, a permanent resident born in this country. It claims
to have established below that Ang Tan Chai did not displace
petitioner or absorb his functions and duties as they were
occupying entirely different and distinct positions requiring
different sets of expertise or qualifications and discharging
functions altogether different and foreign from that of
petitioner's abolished position.
Destitute of merit is petitioner's imputation of unlawful
discrimination when Raytheon caused corollary functions
appertaining to cost accounting to be absorbed by Danny Ang
Tan Chai, a resident alien without a working permit. Article 40
of the Labor Code which requires employment permit refers to
non-resident aliens. The employment permit is required for
entry into the country for employment purposes and is issued
after determination of the non-availability of a person in the
Philippines who is competent, able and willing at the time of
application to perform the services for which the alien is
desired. Since Ang Tan Chai is a resident alien, he does not
fall within the ambit of the provision.
Petitioner also assails that he is better qualified for the
position. It should be noted, however, that Ang Tan Chai was
promoted to the position during the middle part of 1988 or
before the abolition of petitioner's position in early 1989.
Besides the fact that Ang Tan Chai's promotion thereto is a
settled matter, it has been consistently held that an objection
founded on the ground that one has better credentials over the
appointee is frowned upon so long as the latter possesses the
minimum qualifications for the position. In the case at bar,
since petitioner does not allege that Ang Tan Chai does not
qualify for the position, the Court cannot substitute its
discretion and judgment for that which is clearly and
exclusively management prerogative.
It is a well-settled rule that labor laws do not authorize
interference with the employer's judgment in the conduct of his
business. The determination of the qualification and fitness of
workers for hiring and firing, promotion or reassignment are
exclusive prerogatives of management. The Labor Code and
its implementing Rules do not vest in the Labor Arbiters nor in
the different Divisions of the NLRC (nor in the courts)
managerial authority. The employer is free to determine, using
his own discretion and business judgment, all elements of
employment, "from hiring to firing" except in cases of unlawful
discrimination or those which may be provided by law.
NOTES: Termination of an employee's services because of
redundancy is governed by Article 283 of the Labor Code
which provides as follows:
Art. 283. Closure of establishment and reduction of personnel.
— The employer may also terminate the employment of any
employee due to installation of labor-saving devices,
redundancy, retrenchment to prevent losses or the closing or
cessation of operation of the establishment or undertaking
unless the closing is for the purpose of circumventing the
provisions of this Title, by serving a written notice on the
worker and the Department of Labor and Employment at least
one (1) month before the intended date thereof. In case of
termination due to installation of labor-saving devices or
redundancy, the worker affected thereby shall be entitled to a
separation pay equivalent to at least one (1) month pay for
every year of service, whichever is higher. In case of
retrenchment to prevent losses and in cases of closure or
cessation of operations of establishment or undertaking not
due to serious business losses or financial reverses, the
separation pay shall be equivalent to at least one (1) month
pay or at least one-half (1/2) month pay for every year of
service, whichever is higher. A fraction of at least six (6)
months shall be considered as one (1) whole year.
b. Conditions for Grant of Permit; Denial, D.O. No. 97-09
Sections 3, 4, 5, 6, 10
RULE III. Revocation/Cancellation of Employment
Permits Issued
1. The permits issued may, motu proprio or upon a petition, be
cancelled or revoked based on any of the following grounds:
1.1 Misrepresentation of facts or falsification of the documents
submitted;
1.2 The foreign national has been declared as an undesirable
alien by competent authorities;
1.3 Non-compliance with the conditions for which the AEP was
issued;
1.4 Failure to renew AEP within one (1) year after its
expiration.
2. Petitions for cancellation or revocation of permits issued
shall be resolved within thirty (30) calendars from receipt
thereof.
3. Any aggrieved party may file a Motion for Reconsideration
and/or Appeal and the same shall be resolved based on
Paragraph 4 of this Rule.
• General Milling Corp. vs. Torres 196 SCRA 215 (1991)
- GMC’s claim that hiring of a foreign coach is an
employer’s prerogative has no legal basis. Art. 40 states that
an employer seeking employment of an alien must first obtain
an employment permit from the DOLE. GMC’s right to choose
is limited by the statutory requirement of an alien employment
permit.
- The Labor Code empowers the Secretary to make a
determination as to the availability of the services of a “person
in the Philippines who is competent, able and willing at the
time of application to perform the services for which an alien is
desired”. DOLE is the agency vested with jurisdiction to
determine the question of availability of local workers.
FACTS:
Earl Timothy Cone is a US citizen, who was hired by General
Milling as a sports consultant and assistant coach. He
possessed an alien employment permit which was changed to
pre-arranged employee by the Board of Special Inquiry of the
Commission on Immigration and Deportation. GMC requested
that Cone’s employment permit be changed to a full-fledged
coach, which was contested by The Basketball Coaches
Association of the Philippines. Alleging that GMC failed to
show that there is no competent person in the Philippines to do
the coaching job. Secretary of Labor cancelled Cone’s
employment permit.
ISSUE:
Whether or not the Secretary of Labor act with grave abuse of
discretion in revoking Cone’s Alien Employment Permit?
HELD:
The Secretary of Labor did not act with grave abuse of
discretion in revoking Cone’s Alien Employment Permit. GMC’s
claim that hiring of a foreign coach is an employer’s
prerogative has no legal basis. Under Section 40 of the Labor
Code, an employer seeking employment of an alien must first
obtain an employment permit from the Department of labor.
GMC’s right to choose whom to employ is limited by the
statutory requirement of an employment permit. The Labor
Code empowers the Labor Secretary to determine as to the
availability of the services of a “person in the Philippines who is
competent, able and willing at the time of the application to
perform the services for which an alien is desired.” DOLE is
the agency vested with jurisdiction to determine the question of
availability of local workers.
c. Renewal; Validity of AEP, D.O. No. 97-09 Sections 9, 11
7. Validity of Permits - The validity of permits shall
be as follows:
7.1 As a general rule, the validity of permits shall be for a
period of one (1) year, unless the employment contract,
consultancy services, or other modes of engagement or
term of office for elective officers, provides for a longer period.
7.2 The effectivity of the renewal shall be on the day after the
expiration of the previous permit, regardless of whether or not
the renewal is granted before or after the
expiration of the previous permit.
7.3 As a general rule, the permits shall be valid only for the
position and the employer for which it was issued, except in
case of foreign nationals who are holders of multiple positions
in one corporation, where one AEP shall be valid for such
multiple positions.
7.4 The permits of resident foreign nationals shall be valid for
multiple employers, regardless of the nature and duration of
their employment, provided that they shall report changes in
their employment status and the
identity of their employers to the DOLE Regional Office which
has issued the permit.
d. Revocation; Cancellation; Grounds, D.O. No. 97-09
Sections 12-14
RULE III. Revocation/Cancellation of Employment
Permits Issued
1. The permits issued may, motu proprio or upon a
petition, be cancelled or revoked based on any of
the following grounds:
1.1 Misrepresentation of facts or falsification of the
documents submitted;
1.2 The foreign national has been declared as
an undesirable alien by competent authorities;
1.3 Non-compliance with the conditions for
which the AEP was issued;
1.4 Failure to renew AEP within one (1) year
after its expiration
2. APPRENTICE/LEARNERS/PERSONS WITH
DISABILITIES
A. Human Resources Development
Reference: Arts. 57-81; Technical Education and Skills
Development Authority Act of 1994 (TESDA) (RA 7796); Dual
Training Systems Act of 1994 (RA 7686); Magna Carta for
Disabled Persons (RA 7277)
1. Policy Objectives, RA 7796, Sections 2,3
SEC. 2. Declaration of Policy. - It is hereby declared the policy
of the State to provide relevant, accessible, high quality and
efficient technical education and skills development in support
of the development of high quality Filipino middle-level
manpower responsive to and in accordance with Philippine
development goals and priorities.
The State shall encourage active participation of various
concerned sectors, particularly private enterprises, being direct
participants in and immediate beneficiaries of a trained and
skilled workforce, in providing technical education and skills
development opportunities.
SEC. 3. Statement of Goals and Objectives. - It is the
goal and objective of this Act to:
Promote and strengthen the quality of technical education and
skills development programs to attain
international competitiveness;
Focus technical education and skills development on
meeting the changing demands for quality middle-level
manpower;
Encourage critical and creative thinking by disseminating
the scientific and technical knowledge base of middle-level
manpower development programs;
Recognize and encourage the complementary roles of
public and private institutions in technical education and
skills development and training systems; and Inculcate
desirable values through the development of moral character
with emphasis on work ethic, self-discipline, self-reliance and
nationalism.
2. Apprentice
a. Definition, Art. 58, (b; RA 7796 Sec 4 (j) (k)
"Apprentice" is a person undergoing training for an
approved apprenticeable occupation during an
apprenticeship agreement;
b. Apprenticeable Occupation, RA 7796, Sec 4 (m)
(m) "Apprenticeable Occupation" is an occupation
officially endorsed by a tripartite body and approved
for apprenticeship by the authority;
c. Qualification, Rule VI, Sec II, Omnibus Rule; RA 7610, as
amended by RA 7658, Sec.12
REPUBLIC ACT NO. 7658
AN ACT PROHIBITING THE EMPLOYMENT OF
CHILDREN BELOW 15 YEARS OF AGE IN PUBLIC
AND PRIVATE UNDERTAKINGS, AMENDING FOR
THIS PURPOSE SECTION 12, ARTICLE VIII OF
R.A. 7610.
Section 1. Section 12, Article VIII of R. A. No. 7610
otherwise known as the "pecial Protection of Children Against
Child Abuse, Exploitation and Discrimination Act" is hereby
amended to read as follows:
"Sec. 12. Employment of Children. — Children below fifteen
(15) years of age shall not be employed except:
(1) When a child works directly under the sole responsibility of
his parents or legal guardian and where only members of the
employer's family are employed: Provided, however, That his
employment neither endangers his life, safety, health and
morals, nor impairs his normal development; Provided, further,
That the parent or legal guardian shall provide the said minor
child with the prescribed primary and/or secondary
education; or
(2) Where a child's employment or participation in public
entertainment or information through cinema, theater, radio or
television is essential: Provided, The employment contract is
concluded by the child's parents or legal guardian, with the
express agreement of the child concerned, if possible, and the
approval of the Department of Labor and Employment: and
Provided, That the following requirements in all instances are
strictly complied with:
(a) The employer shall ensure the protection, health, safety,
morals and normal development of the child;
(b) The employer shall institute measures to prevent the child's
exploitation or discrimination taking into account the system
and level of remuneration, and the duration and arrangement
of working time; and
(c) The employer shall formulate and implement,subject to the
approval and supervision of competent authorities, a
continuing program for training and skills acquisition of the
child.
In the above exceptional cases where any such child may be
employed, the employer shall first secure, before engaging
such child, a work permit from the Department of Labor and
Employment which shall ensure observance of the above
requirements.
The Department of Labor and Employment shall promulgate
rules and regulations necessary for
the effective implementation of this Section."
Sec. 2. All laws, decrees, executive orders, rules and
regulations or parts thereof contrary to, or inconsistent with this
Act are hereby modified or repealed accordingly.
Sec. 3. This Act shall take effect fifteen (15) days after its
complete publication in the Official Gazette or in at least two
(2) national newspapers or general circulation whichever
comes earlier. Approved: November 9, 1993
d. Allowed Employment; Requirement Program Approval
Art. 60
• Nitto Enterprises v. NLRC, 258 SCRA 654 (1995)
- Art 61 of the LC provides: contents of apprenticeship
agreement. Apprenticeship agreements, including the main
rates of apprentices, shall conform to the rules issued by the
Minister of Labor and Employment. The period of apprentices
shall not exceed six months. Apprenticeship agreements
providing for wage rates below the legal minimum wage, which
in no case shall start below 75% per cent of the applicable
minimum wage, may be entered into only in accordance with
apprenticeship program duly approved by the Minister of Labor
and Employment. The Ministry shall develop standard model
programs of apprenticeship.
- It is mandated that apprenticeship agreements entered into
by the employer and apprentice shall be entered only in
accordance with the apprenticeship program duly approved by
the Minister of Labor and Employment.
- Prior approval by the DOLE of the proposed apprenticeship
is, therefore, a condition sine qua non before an
apprenticeship agreement can be validly entered into.
- The act of filing the proposed apprenticeship program with
DOLE is a preliminary step towards its final approval and does
not instantaneously give rise to an employer-apprentice
relationship.
- Hence, apprenticeship agreement bet petitioner and private
resp has no force and effect in the absence of a valid
apprenticeship program duly approved by the DOLE.
- Art. 280 is cited.
- Twin requirements of notice and hearing constitute the
essential elements of due process.
e. Terms and Conditions of Employment, Art. 61, 72
ART. 61. Contents of apprenticeship agreements. -
Apprenticeship agreements, including the wage rates of
apprentices, shall conform to the rules issued by the Secretary
of Labor and Employment. The period of apprenticeship shall
not exceed six months. Apprenticeship agreements providing
for wage rates below the legal minimum wage, which in no
case shall tart below 75 percent of the applicable minimum
wage, may be entered into only in accordance with
apprenticeship programs duly approved by the Secretary of
Labor and Employment. The Department shall develop
standard model programs of apprenticeship. (As amended by
Section 1, Executive Order No. 111, December 24, 1986).
ART. 72. Apprentices without compensation. – The Secretary
of Labor and Employment may authorize the hiring of
apprentices without compensation whose training on the job is
required by the school or training program curriculum or as
requisite for graduation or board examination
f. Costs, Art. 71
ART. 71. Deductibility of training costs. - An additional
deduction from taxable income of one-half (1/2) of the
value of labor training expenses incurred for developing
the productivity and efficiency of apprentices shall be
granted to the person or enterprise organizing an
apprenticeship program: Provided, That such program is
duly recognized by the Department of Labor and Employment:
Provided, further, That such deduction shall not exceed ten
(10%) percent of direct labor wage: and Provided, finally, That
the person or enterprise who wishes to avail himself or itself of
this incentive should pay his apprentices the minimum wage.
g. Enforcement, Arts. 65, 66, 67
ART. 65. Investigation of violation of apprenticeship
agreement. - Upon complaint of any interested person
or upon its own initiative, the appropriate agency of the
Department of Labor and Employment or its authorized
representative shall investigate any violation of an
apprenticeship agreement pursuant to such rules and
regulations as may be prescribed by the Secretary of Labor
and Employment.
ART. 66. Appeal to the Secretary of Labor and
Employment. - The decision of the authorized agency of the
Department of Labor and Employment may be appealed by
any aggrieved person to the Secretary of
Labor and Employment within five (5) days from
receipt of the decision. The decision of the Secretary
of Labor and Employment shall be final and executory.
ART. 67. Exhaustion of administrative remedies. - No
person shall institute any action for the enforcement
of any apprenticeship agreement or damages for
breach of any such agreement, unless he has
exhausted all available administrative remedies.
5. Learners
a. Definition, Art. 73; RA 7796, Sec. 4 (n)
Article 73. Learners defined. Learners are persons hired as
trainees in semi-skilled and other industrial occupations which
are non-apprenticeable and which may be learned through
practical training on the job in a relatively short period of time
which shall not exceed three (3) months.
RA 7796, Sec. 4 (n)
(n) “Learners" refer to persons hired as trainees in semiskills
and other industrial occupations which are non apprenticeable.
Learnersship programs must be approved by the Authority;
b. Allowed Employment, Art. 74
ART. 74. When learners may be hired. - Learners may be
employed when no experienced workers are available, the
employment of learners is necessary to prevent curtailment of
employment opportunities, and the employment does not
create unfair competition in terms of labor costs or impair or
lower working standards.
c. Terms and Conditions of Employment, Arts. 75, 76
ART. 75. Learnership agreement. - Any employer desiring to
employ learners shall enter into a learnership agreement with
them, which agreement shall include:
(a) The names and addresses of the learners;
(b) The duration of the learnership period, which
shall not exceed three (3) months;
(c) The wages or salary rates of the learners which shall begin
at not less than seventy-five percent (75%) of the applicable
minimum wage; and
(d) A commitment to employ the learners if they so desire, as
regular employees upon completion of the learnership. All
learners who have been allowed or suffered to work during the
first two (2) months shall be deemed regular employees if
training is terminated by the employer before the end of the
stipulated period through no fault of the learners.
The learnership agreement shall be subject to inspection by
the Secretary of Labor and Employment or his duly authorized
representative.
ART. 76. Learners in piecework. - Learners
employed in piece or incentive-rate jobs during the
training period shall be paid in full for the work
done.
4. Persons with disabilities (handicapped), ILO Convention
159 (1983); RA 7277
a. Definition, RA 7277, Sec. 4 (a) (b) (c) (d)
Sec. 4. Definition of Terms. — For purposes of this Act, these
terms are defined as follows:
(a) Disabled persons are those suffering from restriction or
different abilities, as a result of a mental, physical or sensory
impairment, to perform an activity in the manner or within the
range considered normal for a human being;
(b) Impairment is any loss, diminution or aberration of
psychological, physiological, or anatomical structure or
function;
(c) Disability shall mean:
1) a physical or mental impairment that substantially limits one
or more psychological, physiological or anatomical function of
an individual or activities of such
individual; 2) a record of such an impairment; or
3) being regarded as having such an impairment;
(d) Handicap refers to a disadvantage for a given
individual, resulting from an impairment or a
disability, that limits or prevents the function or
activity, that is considered normal given the age
and sex of the individual;
b. Policy Declaration, RA 7277, Sec. 2
Sec. 2. Declaration of Policy — The grant of the
rights and privileges for disabled persons shall be
guided by the following principles:
(a) Disabled persons are part of Philippine society, thus the
State shall give full support to the improvement of the total
well-being of disabled persons and their integration into the
mainstream of society. Toward this end, the State shall adopt
policies ensuring the rehabilitation, self-development and self-
reliance of disabled persons. It shall develop their skills and
potentials to enable them to compete favorably for available
opportunities.
(b) Disabled persons have the same rights as other people to
take their proper place in society. They should be able to live
freely and as independently as possible. This must be the
concern of everyone — the family, community and all
government and nongovernment
organizations. Disabled persons' rights must never be
perceived as welfare services by the Government.
(c) The rehabilitation of the disabled persons shall be the
concern of the Government in order to foster their capacity to
attain a more meaningful, productive and satisfying life. To
reach out to a greater number of disabled persons, the
rehabilitation services and benefits shall be expanded beyond
the traditional urban-based
centers to community based programs, that will ensure full
participation of different sectors as supported by national and
local government agencies.
(d) The State also recognizes the role of the private sector in
promoting the welfare of disabled persons and shall encourage
partnership in programs that address their needs and
concerns.
(e) To facilitate integration of disabled persons into the
mainstream of society, the State shall advocate for and
encourage respect for disabled persons. The State shall exert
all efforts to remove all social, cultural, economic,
environmental and attitudinal barriers that are prejudicial to
disabled persons.
c. Coverage, RA 7277, Sec. 3
Sec. 3. Coverage. — This Act shall cover all disabled
persons and, to the extent herein provided, departments,
offices and agencies of the National Government or
nongovernment organizations involved in the attainment of the
objectives of this Act
. The Magna Carta for Disabled Persons mandates that a
d. Rights and Privileges, RA 7277, Secs. 5, 6, 7
Sec. 5. Equal Opportunity for Employment. — No disable
person shall be denied access to opportunities for suitable
employment. A qualified disabled employee shall be subject to
the same terms and conditions of employment and the same
compensation, privileges, benefits, fringe benefits, incentives
or allowances as a qualified able bodied person. Five percent
(5%) of all casual emergency and contractual positions in the
Departments of Social Welfare and Development; Health;
Education, Culture and Sports; and other government
agencies, offices or corporations engaged in
social development shall be reserved for disabled persons.
Sec. 6. Sheltered Employment — If suitable employment for
disabled persons cannot be found through open employment
as provided in the immediately preceding Section, the State
shall endeavor to provide it by means of sheltered
employment. In the placement of disabled
persons in sheltered employment, it shall accord due regard to
the individual qualities, vocational goals and inclinations to
ensure a good working atmosphere and efficient production.
Sec. 7. Apprenticeship. — Subject to the provisions of the
Labor Code as amended, disabled persons shall be eligible as
apprentices or learners: Provided, That their handicap is not as
much as to effectively impede the performance of job
operations in the particular occupation for which they are hired;
Provided, further, That after the lapse of the period of
apprenticeship, if found satisfactory in the job performance,
they shall be
eligible for employment.
• Bernardo vs. NLRC & FEBTC, 310 SCRA 186 (1999)
FACTS: Far East Bank (Respondent) entered into employment
contracts with deaf-mutes, who were hired as money sorters
under uniform “Employment Contracts for Handicapped
Workers.” Every 6 months, these workers renewed their
employment contracts. The complainants here complain that
they were regular employees and that they have been illegally
dismissed.
Respondent argued that complainants were not regular
employees, but a special class of workers who were hired
because of political and civic accommodation. And that the
Bank’s corporate philosophy does not allow the hiring and
regularizing handicapped workers unless it was on a special
arrangement basis. The Labor Arbiter ruled in favor of
respondent bank workers. NLRC affirmed.
ISSUE: Whether or not petitioner workers are regular
employees.
HELD: YES, petitioners are regular employees. The fact that
after the expiry of their 6 month contract, respondent bank
renewed their contracts shows that these workers were
qualified to perform the responsibilities of their positions.
qualified disabled employee should be given the same terms of
employment as a qualified able-bodied person. This being so,
petitioners are thus covered by Art. 286 of the Labor Code
which defines regular employment to be that the employee has
been engaged to perform activities usually necessary or
desirable in the usual business or trade of the employer. The
task of counting and sorting bills is necessary to the business
of respondent bank. Except for sixteen of them, the petitioners
performed these tasks for more than six months. Therefore,
the 27 petitioners should be deemed regular employees
entitled to security of tenure. Their services may only be
terminated for a just and authorized cause. Because
respondents failed to show such cause, these 27 petitioners
are deemed illegally dismissed and hence entitled to
backwages and separation pay.
√
Facts:
Petitioners numbering 43 are deaf–mutes who were hired on
various periods from 1988 to 1993 by respondent Far East
Bank and Trust Co. as Money Sorters and Counters through a
uniformly worded agreement called ‘Employment Contract for
Handicapped Workers. Subsequently, they are dismissed.
Petitioners maintain that they should be considered regular
employees, because their task as money sorters and counters
was necessary and desirable to the business of respondent
bank. They further allege that their contracts served merely to
preclude the application of Article 280 and to bar them from
becoming regular employees.
Private respondent, on the other hand, submits that petitioners
were hired only as “special workers and should not in any way
be considered as part of the regular complement of the
Bank.”[12] Rather, they were “special” workers under Article 80
of the Labor Code.
Issue: WON petitioners have become regular employees.
Held: The uniform employment contracts of the petitioners
stipulated that they shall be trained for a period of one month,
after which the employer shall determine whether or not they
should be allowed to finish the 6-month term of the contract.
Furthermore, the employer may terminate the contract at any
time for a just and reasonable cause. Unless renewed in
writing by the employer, the contract shall automatically expire
at the end of the term.
Respondent bank entered into the aforesaid contract with a
total of 56 handicapped workers and renewed the contracts of
37 of them. In fact, two of them worked from 1988 to 1993.
Verily, the renewal of the contracts of the handicapped workers
and the hiring of others lead to the conclusion that their tasks
were beneficial and necessary to the bank. More important,
these facts show that they were qualified to perform the
responsibilities of their positions. In other words, their disability
did not render them unqualified or unfit for the tasks assigned
to them.
In this light, the Magna Carta for Disabled Persons mandates
that a qualified disabled employee should be given the same
terms and conditions of employment as a qualified able-bodied
person. Section 5 of the Magna Carta provides:
“Section 5. Equal Opportunity for Employment.—No disabled
person shall be denied access to opportunities for suitable
employment. A qualified disabled employee shall be subject to
the same terms and conditions of employment and the same
compensation, privileges, benefits, fringe benefits, incentives
or allowances as a qualified able bodied person.”
The fact that the employees were qualified disabled persons
necessarily removes the employment contracts from the ambit
of Article 80. Since the Magna Carta accords them the rights
of qualified able-bodied persons, they are thus covered by
Article 280 of the Labor Code, which provides:
“ART. 280. Regular and Casual Employment. — The
provisions of written agreement to the contrary notwithstanding
and regardless of the oral agreement of the parties, an
employment shall be deemed to be regular where the
employee has been engaged to perform activities which are
usually necessary or desirable in the usual business or trade of
the employer, x x x”
“The primary standard, therefore, of determining regular
employment is the reasonable connection between the
particular activity performed by the employee in relation to the
usual trade or business of the employer. The test is whether
the former is usually necessary or desirable in the usual
business or trade of the employer. The connection can be
determined by considering the nature of the work performed
and its relation to the scheme of the particular business or
trade in its entirety. Also if the employee has been performing
the job for at least one year, even if the performance is not
continuous and merely intermittent, the law deems repeated
and continuing need for its performance as sufficient evidence
of the necessity if not indispensability of that activity to the
business. Hence, the employment is considered regular, but
only with respect to such activity, and while such activity
exists.”
Respondent bank entered into the aforesaid contract with a
total of 56 handicapped workers and renewed the contracts of
37 of them. In fact, two of them worked from 1988 to 1993.
Verily, the renewal of the contracts of the handicapped workers
and the hiring of others lead to the conclusion that their tasks
were beneficial and necessary to the bank. More important,
these facts show that they were qualified to perform the
responsibilities of their positions. In other words, their disability
did not render them unqualified or unfit for the tasks assigned
to them.
Without a doubt, the task of counting and sorting bills is
necessary and desirable to the business of respondent bank.
With the exception of sixteen of them, petitioners performed
these tasks for more than six months.
Petition granted.
e. Discrimination, RA 7277, Secs. 32, 33
Sec. 32. Discrimination on Employment. — No
entity, whether public or private, shall discriminate against a
qualified disabled person 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
constitute acts of discrimination:
(a) Limiting, segregating or classifying a disabled job applicant
in such a manner that adversely affects his work opportunities;
(b) Using qualification standards, employment tests or other
selection criteria that screen out or tend to screen out a
disabled person unless such standards, tests or other selection
criteria are shown to be job-related for the position in question
and are consistent with business
necessity;
(c) Utilizing standards, criteria, or methods of administration
that:
(1) have the effect of discrimination on the basis of disability; or
(2) perpetuate the discrimination of others who are subject to
common administrative control.
(d) Providing less compensation, such as salary, wage or other
forms of remuneration and fringe benefits, to a qualified
disabled employee, 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 disabled
employee with respect to promotion, training opportunities,
study and scholarship grants, solely on account of the latter's
disability;
(f) Re-assigning or transferring a disabled employee to a job or
position he cannot perform by reason of his disability;
(g) Dismissing or terminating the services of a disabled
employee by reason of his disability unless the employer can
prove that he impairs the satisfactory performance of the work
involved to the prejudice of the business entity: Provided,
however, That the employer first sought to provide reasonable
accommodations for disabled
persons;
(h) Failing to select or administer in the most effective manner
employment tests which accurately reflect the skills, aptitude or
other factor of the disabled applicant or employee 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 disabled persons from membership in labor
unions or similar organizations.
Sec. 33. Employment Entrance Examination. —
Upon an offer of employment, a disabled applicant may be
subjected to medical examination, on the following occasions:
(a) all entering employees are subjected to such an
examination regardless of disability;
(b) information obtained during the medical condition or history
of the applicant is collected and maintained on separate forms
and in separate medical files and is treated as a confidential
medical record; Provided, however, That:
(1) supervisors and managers may be informed regarding
necessary restrictions on the work or duties of the employees
and necessary accommodations;
(2) first aid and safety personnel may be informed, when
appropriate, if the disability may require emergency treatment;
(3) government officials investigating compliance with this Act
shall be provided relevant information on request; and
(4) the results of such examination are used only
in accordance with this Act.
f. Enforcement, Secs. 44, 45, 46
Sec. 44. Enforcement by the Secretary of Justice.
—
(a) Denial of Right
(1) Duty to Investigate — the Secretary of Justice shall
investigate alleged violations of this Act, and shall undertake
periodic reviews of compliance of covered entities under this
Act.
(b) Potential Violations — If the Secretary of Justice has
reasonable cause to believe that —
(1) any person or group of persons is engaged in a pattern or
practice of discrimination under this Act; or
(2) any person or group or persons has been discriminated
against under this Act and such discrimination raises an issue
of general public importance, the Secretary of Justice may
commence a legal action in any appropriate court.
Sec. 45. Authority of Court. — The court may grant any
equitable relief that such court considers to be appropriate,
including, to the extent required by this Act:
(a) granting temporary, preliminary or permanent relief;
(b) providing an auxiliary aid or service, modification of policy,
practice or procedure, or alternative method; and
(c) making facilities readily accessible to and usable by
individuals with disabilities
Sec. 46. Penal Clause. — (a) Any person who violates any
provision of this Act shall suffer the following penalties:
(1) for the first violation, a fine of not less than Fifty thousand
pesos (P50,000.00) but not exceeding One hundred thousand
pesos (P100,000.00) or imprisonment of not less than six (6)
months but not more than two (2) years, or both at the
discretion of the court; and
(2) for any subsequent violation, a fine of not less than One
hundred thousand pesos (P100,000.00) but not exceeding
Two hundred thousand pesos (P200,000.00) or imprisonment
for not less than two (2) years but not more than six (6) years,
or both at the discretion of the court.
(b) Any person who abuses the privileges granted herein shall
be punished with imprisonment of not less than six (6) months
or a fine of not less than Five thousand pesos (P5,000.00), but
not more than Fifty thousand pesos (P50,000.00), or both, at
the discretion of the court.
(c) If the violator is a corporation, organization or any similar
entity, the officials thereof directly involved shall be liable
therefor.
(d) If the violator is an alien or a foreigner, he shall be deported
immediately after service of sentence without further
deportation proceedings.
3. WOMEN WORKERS
References:
A. Women under the Constitution, Art. II, Sec. 14;
Art XIII, Sec 14
• Philippine Association of Service Exporters v.
Drilon, 163 SCRA 386 (1988)
Facts: Petitioner, Phil association of Service Exporters, Inc., is
engaged principally in the recruitment of Filipino workers, male
and female of overseas employment. It challenges the
constitutional validity of Dept. Order No. 1 (1998) of DOLE
entitled “Guidelines Governing the Temporary Suspension of
Deployment of Filipino Domestic and Household Workers.” It
claims that such order is a discrimination against males and
females. The Order does not apply to all Filipino workers but
only to domestic helpers and females with similar skills, and
that it is in violation of the right to travel, it also being an invalid
exercise of the lawmaking power. Further, PASEI invokes Sec
3 of Art 13 of the Constitution, providing for worker
participation in policy and decision-making processes affecting
their rights and benefits as may be provided by law. Thereafter
the Solicitor General on behalf of DOLE submitting to the
validity of the challenged guidelines involving the police power
of the State and informed the court that the respondent have
lifted the deployment ban in some states where there exists
bilateral agreement with the Philippines and existing
mechanism providing for sufficient safeguards to ensure the
welfare and protection of the Filipino workers.
Issue: Whether or not there has been a valid classification in
the challenged Department Order No. 1.
Held: SC in dismissing the petition ruled that there has been
valid classification, the Filipino female domestics working
abroad were in a class by themselves, because of the special
risk to which their class was exposed. There is no question
that Order No.1 applies only to female contract workers but it
does not thereby make an undue discrimination between
sexes. It is well settled hat equality before the law under the
constitution does not import a perfect identity of rights among
all men and women. It admits of classification, provided that:
1. Such classification rests on substantial distinctions
2. That they are germane to the purpose of the law
3. They are not confined to existing conditions
4. They apply equally to al members of the same class
In the case at bar, the classifications made, rest on substantial
distinctions.
Dept. Order No. 1 does not impair the right to travel. The
consequence of the deployment ban has on the right to travel
does not impair the right, as the right to travel is subjects
among other things, to the requirements of “public safety” as
may be provided by law. Deployment ban of female domestic
helper is a valid exercise of police power. Police power as
been defined as the state authority to enact legislation that
may interfere with personal liberty or property in order to
promote general welfare. Neither is there merit in the
contention that Department Order No. 1 constitutes an invalid
exercise of legislative power as the labor code vest the DOLE
with rule making powers.
• Phil. Telegraph and Telephone Co. v. NLRC, 272
SCRA 596 (1997)
FACTS: PT&T (Philippine Telegraph & Telephone Company)
initially hired Grace de Guzman specifically as “Supernumerary
Project Worker”, for a fixed period from November 21, 1990
until April 20, 1991 as reliever for C.F. Tenorio who went on
maternity leave. She was again invited for employment as
replacement of Erlina F. Dizon who went on leave on 2
periods, from June 10, 1991 to July 1, 1991 and July 19, 1991
to August 8, 1991.
On September 2, 1991, de Guzman was again asked to join
PT&T as a probationary employee where probationary period
will cover 150 days. She indicated in the portion of the job
application form under civil status that she was single although
she had contracted marriage a few months earlier. When
petitioner learned later about the marriage, its branch
supervisor, Delia M. Oficial, sent de Guzman a memorandum
requiring her to explain the discrepancy. Included in the
memorandum, was a reminder about the company’s policy of
not accepting married women for employment. She was
dismissed from the company effective January 29, 1992.
Labor Arbiter handed down decision on November 23, 1993
declaring that petitioner illegally dismissed De Guzman, who
had already gained the status of a regular employee.
Furthermore, it was apparent that she had been discriminated
on account of her having contracted marriage in violation of
company policies.
ISSUE: Whether the alleged concealment of civil status can be
grounds to terminate the services of an employee.
HELD: Article 136 of the Labor Code, one of the protective
laws for women, explicitly prohibits discrimination merely by
reason of marriage of a female employee. It is recognized that
company is free to regulate manpower and employment from
hiring to firing, according to their discretion and best business
judgment, except in those cases of unlawful discrimination or
those provided by law.
PT&T’s policy of not accepting or disqualifying from work any
woman worker who contracts marriage is afoul of the right
against discrimination provided to all women workers by our
labor laws and by our Constitution. The record discloses
clearly that de Guzman’s ties with PT&T were dissolved
principally because of the company’s policy that married
women are not qualified for employment in the company, and
not merely because of her supposed acts of dishonesty.
The government abhors any stipulation or policy in the nature
adopted by PT&T. As stated in the labor code:
“ART. 136. Stipulation against marriage. — It shall be unlawful
for an employer to require as a condition of employment or
continuation of employment that a woman shall not get
married, or to stipulate expressly or tacitly that upon getting
married, a woman employee shall be deemed resigned or
separated, or to actually dismiss, discharge, discriminate or
otherwise prejudice a woman employee merely by reason of
marriage.”
The policy of PT&T is in derogation of the provisions stated in
Art.136 of the Labor Code on the right of a woman to be free
from any kind of stipulation against marriage in connection with
her employment and it likewise is contrary to good morals and
public policy, depriving a woman of her freedom to choose her
status, a privilege that is inherent in an individual as an
intangible and inalienable right. The kind of policy followed by
PT&T strikes at the very essence, ideals and purpose of
marriage as an inviolable social institution and ultimately,
family as the foundation of the nation. Such policy must be
prohibited in all its indirect, disguised or dissembled forms as
discriminatory conduct derogatory of the laws of the land not
only for order but also imperatively required.
√
FACTS:
Grace de Guzman was hired by PT&T as a Supernumerary
Project Worker for a fixed period from November 21, 1990 until
April 20, 1991 as reliever for C.F. Tenorio who went on
maternity leave. Under the Reliever Agreement signed by
Grace, her employment was to be immediately terminated
upon expiration of the agreed period. From June 10, 1991 to
July 1, 1991, and from July 19, 1991 to August 8, 1991, PT&T
again engaged the services of Grace as reliever for Erlinda F.
Dizon who went on leave during both periods. On September
2, 1991, Grace was asked to join petitioner company as a
probationary employee. In the job application form furnished to
Grace, she indicated in the civil status that she was single
although she had in fact contracted marriage on May 26, 1991.
This meant she was not single, as she had represented
herself, when she signed the reliever agreements on June 10,
1991 and July 8, 1991. Petitioner dismissed Grace from the
Company after learning about Grace’s real civil status and
being unconvinced of Grace’s explanation for the discrepancy.
Grace immediately filed a complaint for illegal dismissal
coupled with a claim for non-payment of cost of living
allowances (COLA), before the Regional Arbitration Branch of
the National Labor Relations Commission (NLRC) in Baguio
City. At the preliminary conference, Grace volunteered the
information that she had failed to remit the amount of
P2,380.75 of her collections, and executed a promissory note
for that amount in favor of petitioner. The Labor Arbiter handed
down a decision declaring that private respondent, who had
already gained the status of a regular employee, was illegally
dismissed by petitioner and ordered her reinstatement plus
payment of the corresponding back wages and COLA. On
appeal, the NLRC upheld the Labor Arbiter but modified the
Labor Arbiter’s decision with the qualification that Grace de
Guzman deserved to be suspended for three months due to
the dishonest nature of her acts which should not be
condoned.
opportunities; and Republic Act No. 7192 or the Women in
Development and Nation Building Act which, among others,
affords women equal opportunities with men to act and to enter
into contracts. In the Labor Code, Article 136 explicitly prohibits
discrimination merely by reason of the marriage of a female
employee. The private respondent’s act of concealing the true
nature of her status from PT&T could not be properly
characterized as willful or in bad faith as she was moved to act
the way she did mainly because she wanted to retain a
permanent job in a stable company. In other words, she was
practically forced by that very same illegal company policy into
misrepresenting her civil status for fear of being disqualified
from work.
B. Coverage, Rule XII, Sec. I
Employment of Women and Minors
SECTION 1. General statement on coverage. — This
Rule shall apply to all employers, whether operating
for profit or not, including educational, religious and
charitable institutions, except to the Government and
to government-owned or controlled corporations and
to employers of household helpers and persons in
their personal service insofar as such workers are
concerned.

ISSUE: Can the alleged concealment of civil status be a

ground for terminating the services of an employee?

HELD: No. The Constitution provides a gamut of protective

provisions due to the disparity in rights between men and
women in almost all phases of social and political life. Article II
Section 14 of the 1987 Constitution states that “The State
recognizes the role of women in nation-building, and shall
ensure the fundamental equality before the law of women and
men.” Corollary to this is Article XIII Section 3 which states that
“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”
and Article XIII Section 14 which states that “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.” Since the Labor Code was enacted on May 1,
1974, corrective labor and social laws on gender inequality
have emerged with more frequency in the years. Two of these
are Republic Act No. 6727 which explicitly prohibits
discrimination against women with respect to terms and
conditions of employment, promotion, and training