Labor Standards

Article 1. Name of Decree This decree shall be known as the Labor Code of the Philippines. Article 2. Date of Effectivity This Code shall take effect six months after its promulgation. 1. Definitions 2. Labor Law and Social Legislation Social Legislation laws that provide particular kinds of protection or benefits to society or segments thereof in furtherance of social justice. Labor Laws affect employment while social legislation governs effects of employment Labor Law and Social Legislation Note: Under Article 13 of the Labor Code, any member of the labor force, whether employed or unemployed, is a worker.

Labor Standards Law is that which 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 Standards are the minimum requirements prescribed by existing laws, rules and regulations relating to wages, hours of work, cost-of-living allowance, and other monetary and welfare benefits, including occupational, safety, and health standards. Labor Relations Law is that which defines the status, rights and duties, and the institutional mechanisms, that governs the individual and collective interactions of employers, employees or their representatives. Labor is understood as physical toil, although it does not necessary exclude the application of skill, thus there is skilled and unskilled labor. Skill is the familiar knowledge of any art or science, united with readiness and dexterity in execution of performance or in the application of the art or science to practical purposes. Work is broader than labor as work covers all forms of physical or mental exertion, or both combined, for the attainment of some objective other than recreation or amusement per se. Workers may refer to self-employed people and those working in the service and under the control of another, regardless of rank, title, or nature of work. Employee is a salaried person working for another who controls or supervises the means, manner or method of doing the work.

Note: Labor laws are social legislation but not all social legislations are labor laws . 3. Social Justice as the AIM The aim and reason of labor laws is social justice

Social Justice promotion of the welfare of all the people, the adoption by the Government of measure calculated to insure economic stability of all the component elements of society through maintenance or proper economic and social equilibrium in the interrelations of the members of the community, constitutionally, through the adoption of measures legally justifiable, or extra0constitutionally, through the exercise of powers underlying the existence of all governments, on the time-honored principle of salus populi est suprema lex. Social Justice is both procedural principle and a societal goal. As a procedural principle, it prescribes the equality of the people, rich or poor, before the law. As a goal, it means the attainment of decent quality of life of the masses through humane productive efforts. Pursuit of social justice requires a lawful process: Making the rich share with government the responsibility of realizing social justice as an end. Constitutional Mandates Rights and

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The 1987 Constitution declares as a state policy: The state affirms labor as a primary social economic force. It shall protect the rights of workers and promote their welfare. The basic rights of workers guaranteed by the Constitution are: the rights to organize themselves, to conduct collective bargaining or negotiation with management, to engage in peaceful concerted activities, including to strike in accordance with law, to enjoy security of tenure, to work under humane conditions, to receive a living wage, and to participate in policy and decision-making processes affecting their rights and benefits as may be provided by law. Balancing of rights: the Constitutional Principle of Shared Responsibility The state recognizes the indispensable role of the private sector, encourages private enterprise, and provides incentives to needed investments Labor is called a primary social economic force. i. Labor relations must be made both responsive and responsible to national development. Labor laws or labor relations during a period of national emergence must substitute rationality for confrontation; Rational process is arbitration. Laggard justice in the labor field is injurious to the workers, the employers and the public; labor justice can be made expeditious without sacrificing due process. Manpower development and employment must be regarded as a major dimension of the labor police, for there can be no real equality of bargaining power under conditions of severe mass unemployment. There is a global market available to qualified Filipinos. Labor laws must command adequate resource and acquire capable machinery for effective and sustained implementation. There should be popular participation in national policymaking through what is now called tripartism.

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Police Power as the basis The right of every person to pursue a business occupation or profession is subject to the paramount right of the government as a part of its police power to impose such restrictions and regulations as the protection of the public may require. Bu that power cannot grow faster than the fundamental law of the state, nor transcend or violate the express inhibition of the peoples law the constitution. Principles underlying the code

Significance of foreign decisions Decisions of the high courts in those jurisdictions construing and interpreting the Act should receive the careful attention of this court in the application of our law. Related Laws 8.1 The Civil Code described the labor-management relations 8.2 Revised Penal Code the crimes against public order, against persons, against property, or against honor come into play, alongside labor laws, especially in case of labor disputes. 8.3 Special Laws SSS Law, GSIS Law, Agrarian Reform Law, the 13th Month pay law, the Magna

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Carta for Public Health Owkrers, and so forth. Article 3. Declaration of Basic Policy 1. Labor Laws and Social Economic Goals Issues mentioned in this article employment, protection to labor, labor-management relations. The goals of the national economy are a sustained increase in the amount of goods and services produced by the nation for the benefit of the people; a more equitable distribution of opportunities, income, and wealth; and an expanding productivity as the key to raising the quality of life for all, especially the underprivileged. 2. Interdependence The basic policy is to balance or to coordinate the rights and interests of both workers and employers. Article 4. Construction in favor of Labor 1. Interpretation and Construction 1.1 Laborers Welfare; Liberal approach The Labor Codes provisions and its implementing regulations primordial and paramount consideration the working mans welfare. 1.2 Reason for according greater protection to employees Employer stands on higher footing than the employees. 2. Management Righs It should not be supposed that every labor dispute will be automatically decided in favor of labor The most fundamental of the management rights: 2.1 Right ROI The employer has the right to recover his investments and to make profit. The balance in favor of the workingman should be tilted without being blind to the concomitant right of the employer to the protection of his property. 2.2 Right to prescribe rules Company policies and regulations are, unless shown to be grossly oppressive or contrary to law, generally binding and valid on the parties. 2.3 Right to select employees An employer has a right to select his employees and to decide when to engage them. He may refuse to employ whomever he may wish, irrespective of his motive, and on the other hand, he has the right to prescribe the terms upon which he will consent to the relationship, and to have them fairly understood and expressed in advance. The state has no right to interfere in a private employment and stipulate the terms of the services to be rendered; it cannot interfere with the liberty and contract with respect to labor except in the exercise of the police power. 2.4 Right to transfer or discharge employees To insure the stability of the business, to minimize expenses, and even to close the business, provided, the transfer or dismissal is not abused but is done in good faith and is due to causes beyond control. Article 5. Rules and Regulations 1. Rules and regulations to implement the Code The Department of Labor and Employment shall make rules and regulations to implement the Code. These regulations and policies have the force of the law.

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A rule or regulation promulgated in excess of rulemaking authority is void. 2.1 Lands obtained through homestead patent CA 141 gives a needy citizen a piece of land where he may build a modest house for himself and family and plant what is necessary for subsistence and for the satisfaction of lifes other needs. 2.2 Residential Subdivisions 2.3 Livestock, Poultry and Swine Raising Lands Article 12. Statement of objectives 1. The unemployment problem Exacerbated by population growth

Article 6. Applicability 1. Applicability to government corporations Labor Code applies to a government corporation incorporated under the Corporation Code Government corporations created by special charter from Congress are subject to Civil Service rules 2. Non-applicability to government agencies Government agencies and instrumentalities Note: It should be noted that Labor Coe provisions on the State Insurance Fund do not apply to government personnel covered by the GSIS. 3. Applicability without employer-employee relationship LC applies with or without employment relationship between the disputants depending on the kind of issue involved. LC applies even if the parties are not employers and employees of each other Article 7. Statement of objectives It has become imperative to start reformation with the emancipation of the tiller of the soil from his bondage.

2. The Dole: Its responsibility: a) The promotion of gainful employment opportunities and the optimization of the development and utilization of the countrys manpower resources b) The advancement of workers welfare by providing for just and humane working conditions and terms of employment. c) The maintenance of industrial peace by promoting harmonious, equitable and stable employment relations that assure protection for the rights of all concerned parties. Article 13. Definitions (a) Worker means any member of the labor force, whether employed or unemployed. (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. (c) Private fee-charging employment agency means any person or entity engaged in recruitment and placement of workers for a fee

Article 8. Transfer of lands to tenant-workers Article 9. Determination of land value Article 10. Conditions of ownership Article 11. Implementing agency Note: Articles 7 to 11 are interrelated 1. Compensation Scheme Title to all expropriated properties shall be transferred to the State only upon payment of compensation of their respective owners. 2. Lands not covered

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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. (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. (g) Seaman means any person employed in a vessel engaged in maritime navigation. (h) Overseas employment means employment of a worker outside the Philippines. (i) Emigrant means any person, worker or otherwise, who emigrates to a foreign country by virtue of an immigrant visa or resident permit or its equivalent in the country of destination. Article 13(b) construed: What constitutes recruitment and placement: People vs. Panis Ruling: The number of persons is not an essential ingredient of the act of recruitment and placement of workers. The presumption is that the individual or entity is engaged in recruitment and placement whenever he or it is dealing with 2 or more persons to whom, in consideration of a fess, an offer or promise of employment is made in the course of the canvassing, enlisting, contracting, transporting, utilizing, hiring or procuring of workers. Any of the acts mentioned in the basic rule in Article 13(b) will constitute recruitment and placement even if only one prospective worker is involved. The proviso merely lays down a promise or offer of employment to two or more prospective workers, the individual or entity dealing with shall be deemed to be engaged in the act of recruitment and placement. The words shall be deemed create that presumption. In People vs. Goce, the accused gave the complainant the distinct impression that she had the power or ability to send the complainant abroad for work, such that the latter was convinced to part with her money in order to be employed. In Darvin vs. CA, the court ruled that procuring a passport, airline tickets and foreign visa for another individual, without more, can hardly qualify as recruitment activities. Article 14. Employment Promotion 1. Employment Promotion Effective allocation of manpower resources in local employment is assigned to the Bureau of Local Employment and to POEA for overseas employment.

Article 15. Bureau of Employment Services 1. Local Employment Article 15 requires the DOLE to promote employment opportunities. The regional offices therefore now handles the licensing of local recruitment agencies and the issuance of work permits to non-resident aliens and of employment registration certificates to resident aliens. The Bureau of Local employment has issued the Rules and Regulations Governing Local Employment.

1.1 The Peso Public Employment Service Office (PESO) Intended to serve as employment service and information center in its area of operation. Regularly obtains lists of job vacancies from employers, publicizes them, invites and evaluates applicants and refers from probable hiring.

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Provides training and educational; guidance and employment counseling services 1.1 RA No. 8042 The state does not promote overseas employment as a means to sustain economic growth and achieve national development.

1.2 WHIP Work appreciation seminars and conferences; and hiring of workers in infrastructure projects (WHIP) A program pursuant to RA 6885 which requires the Department of Public Works and Highways and private contractors to hire 30% of skilled and 50% unskilled labor requirements from the area where the project is being undertaken.

1.2 Selective Development RA 8042 requires certain guarantee of protection for the overseas workers before they are deployed in countries that meet some criteria. o Sec. 4. Deployment of Migrant workers 0 The state shall deploy overseas Filipino workers only in the countries where the rights of Filipino migrant workers are protected. The government recognizes any of the following as a guarantee on the part of the receiving country for the protection of the rights of overseas Filipinos workers: a) It has existing labor and social laws protecting the rights of migrant workers; b) It is a signatory to multilateral conventions, declarations 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. o Sec. 5. Termination or Ban on Deployment 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.

Article 16. Private Recruitment 1. Authorized Entities Although this Article says that only the public employment offices shall engage in recruitment and placement of workers. Article 25 provides a broad exception as it states that the private employment sector shall participate in the recruitment and placement of workers, locally and overseas. The following entities are authorized to recruit and place workers for local or overseas employment: a) Public employment offices b) Private recruitment entities c) Private employment agencies d) Shipping or manning agents or representatives e) The POEA f) Construction contractors if authorized to operate by DOLE and the Construction Industry Authority g) Members of the diplomatic corps although hirings done by them have to be processed through the POEA h) Other persons or entities as may be authorized by the DOLE secretary Employment

Article 17. Overseas Development Broad 1. Overseas Employment Policy

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2. The POEA; Overseas of Its Functions and Powers The principal functions of the POEA are the formulation, implementation, and monitoring f the overseas employment of Filipino workers and the protection of their rights to fair and equitable employment practices. Also participates in the development of Filipino workers through governmentto-government hiring. Process vacationing workers, register sea-based workers, and participate in government hiring through manpower pooling. hear and decide the following kinds of cases: a) Recruitment Violation and Related cases consisting of all preemployment cases which are administrative in character, involving or arising out of recruitment laws, rules and regulations, including money claims therefrom or violations of the conditions for issuance of license to recruit workers. b) Employer-employee relations cases consisting of all claims arising out of an employer-employee relationship or by virtue of any law or contract involving Filipino workers in overseas employment, such as but not limited to: a. Violation of the terms and conditions of employment b. Disputes relating to the implementation and interpretation of employment contracts c. Money claims of workers against their employers and duly authorized agents in the Philippines or vice versa. d. Claims for death, disability and other benefits arising out of employment e. Violation of or noncompliance with any compromise agreement entered into by and between the parties in an overseas employment contract. c) Disciplinary action cases consisting of all complaints against a contract worker for breach of discipline. The disciplinary action may take the form of warning, repatriation, suspension or disqualification from the overseas employment program, or inclusion in the POEA blacklist

Overseas Filipino Worker (OFW) is understood as a Filipino worker who is to be engaged, or has been engaged in a remunerated activity in a country of which he/she is not a legal resident. OFWs are either land-based or seabased.

Sea-based those employed in a vessel engaged in maritime navigation. Sea-based work pertains to ship operations like navigation, engineering, maintenance, including a variety of occupations from kitchen staff to on-board entertainment in large vessel ships. Land-based are contract workers other than a seaman including workers engaged in offshore activities whose occupation requires that majority of his working/gainful hours are spent on land. Work pertains to house cleaners to entertainers to managers. 3. Regulatory Function of POEA Regulates the private sector participation in the recruitment and overseas placement of workers through its licensing and registration system.

4. Adjudicatory Function of POEA Before the passage of RA 8042, POEA had original and exclusive jurisdiction to

4.1 Jurisdiction transferred to NLRC

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RA 8042 transferred to NLRC the jurisdiction over employee-employer relationship cases Sec. 10. Money Claims Labor Arbiter of NLRC shall have the exclusive and original jurisdiction to hear and decide the case, within 90 calendar days after the filing of the complaint. o The liability of the principal/employer and the recruitment/placement agency for any and all claims under this section shall be joint and several. The NLRC jurisdiction is over money claims involving Filipino workers for overseas deployment. grounds, the employer will be ordered to pay workers their salaries corresponding to the unexpired portion of their employment contract. c) Pre-termination under RA 8042 if it occurred on or after July 15, 1995 the law to apply is RA no. 8042. The determining point of applicability is the date of unjust dismissal of the employee Under Sec. 10 of RA 8042, a worker dismissed from overseas employment without just, valid or authorized cause as defined by law or contract, is entitled to full reimbursement of his placement fee with interest at 12% per annum, plus his salary for the unexpired portion of his employment contract or for 3 months of every year of the unexpired term, whichever is less. o The option of 3 months for every year is available only if the employment is for at least one year. o If shorter than the above, the salary to be recovered has to be that for the unexpired portion. 4.4 Employer-employee relations cases: Money; employers nationality immaterial The underlying regulatory policy is that Filipino seamen working in ocean-going vessels should receive the same wages and benefits without regard to the nationality or nationalities of the vessels on which they serve. other benefits, basis of

To be engaged in a remunerated activity refers to an applicant worker who has been promised or assured of employment overseas and acting on such promise or assurance, sustains damage and/or injury. It appears that RA 8042 allows claims for money or damages sustained during the period of deployment or before departure for abroad. o Even an applicant OFW may file a money claim with the labor arbiter of the NLRC.

4.2 Compromise Agreement Any compromise/amicable settlement or voluntary agreement on money claims inclusive of damages under this section shall be paid within four months from the approval of the settlement by the appropriate authority. cases:

4.5 Death and compensation

4.3 Employer-employee relations Termination of Employment

a) Contractual employees - In Millares and Lagda vs. NLRC, the SC decided that seafarers are contractual employees. b) Premature Termination of Contract while the workers employment contract is terminated before its agreed termination date, and the termination is not shown to be based on lawful or valid

One of the principal concerns about OFWs is their employment conditions and benefits. The standard contract of employment for Filipino seamen allows the payment of death benefit pension, funeral benefit and burial gratuity to the private respondent-workers. Where the contract of a Filipino seaman provides that workmens compensation

Labor Standards
benefit shall be computed on the basis of whichever is greater between Philippine law or the law of the registry of the vessel, it is correct to resolve the award on the law of the registry of the vessel providing greater benefits. Where the laws of the host country are more favorable and beneficial to the workers, then the laws of the host country shall form part of the overseas employment contract. It has been ruled that a foreign law,, being a matter of evidence, must be alleged and proved in order to be recognized and applied in a particular controversy involving conflicts of law. o But this ruling is not meant to apply to cases before administrative or quasi-judicial bodies. Well-settled is the rule that administrative and quasijudicial bodies re not bound strictly by technical rules b) Disciplinary action cases and other special cases which are administrative in character, involving employers, principals, contracting partners and Filipino migrant workers 6. Regulatory Function of POEA Regulates private sector participation in the recruitment and overseas placement of workers through its licensing and registration system.

7. Disciplinary action cases RA 8042 has NOT transferred to the NLRC the jurisdiction of POEA over disciplinary action cases Grounds: a) Commission of a felony punishable by Philippine laws or by the laws of the host country. b) Drug addiction or possession or trafficking of prohibited drugs c) Desertion or abandonment d) Drunkenness, especially where the laws of the host country prohibit intoxicating drinks e) Gambling, especially where the laws of the host country prohibit the same f) Initiating or joining a strike or work stoppage where the laws of the host country prohibit strikes or similar actions g) Creating trouble at the worksite or in the vessel h) Embezzlement of company funds or of moneys and properties of a fellow worker entrusted for delivery to kins or relatives in the Philippines i) Theft or robbery j) Prostitution k) Vandalism or destroying company property l) Gunrunning or possession of deadly weapons m) Unjust refusal to depart for the worksite after all employment and travel documents have been duly

4.6 Overseas compensation benefits in dollars Does not compel the payment in dollar currency but in fact expressly allows payment of its equivalent in the Philippine Currency. Moreover, as pointed out by public respondent, without any subsequent controversion interposed by petitioner, the fixing of the award in dollars was on the parties employment contract, stipulating wages and benefits in dollars since private respondent was engaged as an overseas seaman on board petitioners foreign vessel.

5. Jurisdiction retained with POEA The POEA retains 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; and

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approved by the appropriate government agency/ies and n) \violations of the laws and sacred practices of the host country and unjustified breach of governmentapproved employment contract by a worker 8. Outside of POEA jurisdiction POEA has no jurisdiction to hear and decide a claim for enforcement of a foreign judgment. o Must be brought before the regular courts. 2. Minimum Employment Conditions POEA regulations Governing Overseas Employment Part V, Rule I, Section 2 prescribes the following minimum provisions of employment contracts: Guaranteed wages for regular working hours and overtime pay, as appropriate, which shall not be lower than the prescribed minimum wage in the host country, nor lower than the appropriate minimum wage standard set forth in a bilateral agreement or international convention duly ratified by the host country and the Philippines or not lower than the minimum wage in the Philippines, whichever is higher. Free transportation to and from the worksite, or offsetting benefit Free food and accommodation, or offsetting benefit Just/authorized causes for termination of the contract or of the services of the workers taking into consideration the customs, traditions, norms, mores, practices, company policies and the labor laws and social legislation of the host country. The administration may also consider the following as basis for the other provisions of the contract: a. Existing labor and social laws of the host country b. Relevant agreements, conventions, delegations or resolutions c. Relevant bilateral and multilateral agreements or arrangements with the host country d. Prevailing condition/realities in the market

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Article 18. Ban on direct-hiring ]direct hiring of Filipino workers by a foreign employer is not allowed except direct hiring by members of the diplomatic corps and others mentioned in this article. Also excepted are name hires or those individual workers who are able to secure contracts for overseas employment on their own efforts and representation without the assistance or participation of any agency. b) c) d)

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Article 19. Office of Emigrant Affairs Formulates an integrated program for the promotion of the welfare of Filipinos overseas for implementation by suitable existing agencies.

Article 20. National Seamen Board It is the responsibility of POEA to secure the best possible terms of employment for contract seamen workers and secure compliance therewith.

3. Freedom to Stipulate 1. Invalid side agreement An agreement that diminishes the employees pay and benefits as contained in a POEA-approved contract is void, unless such subsequent agreement is approved by POEA. Parties to overseas employment contracts are allowed to stipulate other terms and conditions and other benefits not provided under these minimum requirements; provided the whole employment package should be more

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beneficial to the worker than the minimum; provided that the same shall not be contrary to law, public policy and morals, and provided further, that Philippine agencies shall make foreign employers aware of the standards of employment adopted by the administration. Article 21. Foreign Participation Service Role and Chapter II: Regulations of Recruitment and Placement Activities Article 25. Private sector participation in the recruitment and placement of workers 1. POEAs retained jurisdiction RA 8042 transferred from POEA to NLRC the jurisdiction over OFWs claims arising from employer-employee relationship. o But POEA retains original and exclusive jurisdiction over cases involving violations of POEA rules and regulations, disciplinary cases and other cases that are administrative in character involving OFWs.

1. Legal Assistant for Migrant Workers Affairs (LAMWA) provides and coordinates all legal assistance services to Filipinos in distress. 2. Re-Placement and Monitoring Center develops livelihood programs. 3. Welfare Fund for Overseas workers Administration provides social and welfare services, including insurance coverage, legal assistance, placement assistance services to Filipino overseas workers. It also has a role to play even in cases where a worker has to be sent or brought back to the Philippines. Article 22. Mandatory Remittance of Foreign Exchange Earnings 50% to 80% of the basic salary.

Power to subordinate legislation authority of AAs to issue rules to carry out the general provisions of the statute.

Article 26. Travel Agencies Prohibited to Recruit POEA also disqualify persons with derogatory records such as those convicted for illegal recruitment or other crimes involving moral turpitude. The same prohibited extends to any official or employee of DOLE, POEA, OWAA, DFA and other government agencies directly involved in the implementation of RA No. 8042 or any of their relatives within the fourth civil degree.

Article 23. Composition of the Boards 1. Composition of POEA Governing Board, the Office of the Administrator, the Offices of such number of Deputy Administrators as may be necessary, and Office of the Director for each of the principal subdivisions of its internal structure. Governing board Secretary of Labor and Employment as chairman, the administrator, and a third member, considered well-versed in the field of overseas employment who shall be appointed by the President to serve for a term of 2 years.

Article 27. Citizenship Requirement Article 28. Capitalization Required capitalization is a minimum of 2 million pesos in case of a single proprietorship or partnership and a minimum paid-up capital of the same amount for a corporation.

Article 24. Boards to issue rules and regulations

Article 29. Non-transferability of license or authority

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Place of Recruitment Licenses or holders of authority or their duly authorized representatives may, as a rule, undertake recruitment and placement activity only at their authorized official addresses. Under existing regulations, they may be allowed to conduct provincial recruitment and/or job fairs only upon written authority from the POEA. Prior to the conduct of provincial recruitment, a copy of the authority shall be presented to the DOLE/Regional Director concerned. The recruitment activities are conducted under the supervision of a DOLE employee or officer designated by the regional director. fee in an amount equivalent to one month salary, exclusive of documentation costs. Documentation costs to be paid by the workers shall include, but not be limited to, expenses for the following: a) Passport b) NBI/police/barangay clearance c) Authentication d) Birth certificate e) Medicare f) Trade test, if necessary g) Inoculation, when required by host country h) Medical examination fees Worker shall pay only the actual costs of the document which shall be covered by official receipts. The above-mentioned placement and documentation costs are the only authorized payments that may be collected from a hired worker. No other charges in whatever form, manner or purpose, shall be imposed on and be paid by the worker without prior approval of the POEA Only after he has obtained employment through the facilities of the recruitment agency, such fees shall be collected from a hired worker.

Article 30. Registration Fees Article 31. Bonds The POEA possesses the power to enforce liability under cash or surety bonds. Cash and surety bonds are required by the POEA and its predecessor agencies from recruitment and employment companies precisely as a means of ensuring prompt and effective recourse against such companies when held liable for applicants or workers claims.

2. Refund of fees POEA has the power to order refund of illegally collected fees

Article 32. Fees to be paid by workers 1. Chargeable fees a) b) c) d) Visa fee Air fare POEA processing fee OWWA membership fee

Article 33. Reports on employment status Article 34. Prohibited practices It shall be unlawful for any individual, entity, licensee, or holder of authority: a. To charge or accept, directly or indirectly, any amount greater than that specified in the schedule of allowable fees prescribed by the Secretary of Labor, or to make a worker pay any amount greater than that actually received by him as a loan or advance;

Note: Section 3. Fees/Costs Chargeable to the workers. Except where the prevailing system in the country where the worker is to be deployed, either by law, policy or practice, does not allow the charging or collection of placement and recruitment fee, a land based agency may charge and collect from its hired workers a placement

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b. To furnish or publish any false notice or information or document in relation to recruitment or employment; c. To give any false notice, testimony, information or document or commit any act of misrepresentation for the purpose of securing a license or authority under this Code. d. To induce or attempt to induce a worker already employed to quit his employment in order to offer him to another unless the transfer is designed to liberate the worker from oppressive terms and conditions of employment; e. To influence or to attempt to influence any person or entity not to employ any worker who has not applied for employment through his agency; f. To engage in the recruitment or placement of workers in jobs harmful to public health or morality or to the dignity of the Republic of the Philippines; g. To obstruct or attempt to obstruct inspection by the Secretary of Labor or by his duly authorized representatives; h. To fail to file reports on the status of employment, placement vacancies, remittance of foreign exchange earnings, separation from jobs, departures and such other matters or information as may be required by the Secretary of Labor. i. To substitute or alter employment contracts approved and verified by the Department of Labor from the time of actual signing thereof by the parties up to and including the periods of expiration of the same without the approval of the Secretary of Labor; j. To become an officer or member of the Board of any corporation engaged in travel agency or to be engaged directly or indirectly in the management of a travel agency; and k. To withhold or deny travel documents from applicant workers before departure for monetary or financial considerations other than those authorized under this Code and its implementing rules and regulations. Fees shall be collected from a hired worker only after he has obtained employment through the facilities of the recruitment agency o Relative to this, a worker who suffers pecuniary damage, regardless of the amount, as a result of a previous or simultaneous false pretense resorted to by a no licensee or no holder of authority, may complain of estafa under Art. 315, par. 2 (a) of the RPC, aside from illegal recruitment. Second part of Article 34 (a) is a deterrent to loan sharks who lend money at usurious interests. The act of advertising employment is within the definition of recruitment and placement and the falsity of the notice or information published is immaterial in in prosecution for illegal recruitment for unauthorized advertisement. It is not necessary that the worker was actually induced or did quit employment. Where a supplementary contract was entered into affording greater benefits to the employee than the previous one and although the same was not submitted for approval of the POEA, the NLRC properly considered said contract to be valid and enforceable.

Article 35. Suspension and/or cancellation of license or authority The grounds for imposition of administrative sanctions include engaging in act/s of misrepresentation for the purpose of securing a license or renewal thereof, such as giving false testimonies or falsified documents; engaging in the recruitment or placement of workers in jobs harmful to public health or morality or to the dignity of the RP; charging of any fee before employment is obtained for an applicant worker; charging of any fee in amount exceeding the allowable rate; and obstructing inspections by DOLE.

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The ACTS prohibited under Article 34 are not just grounds for suspension or cancellation of license or authority. o Also constitutes illegal recruitment under RA 8042, as explained in notes to Art. 38. A recruitment agency is solidarily liable for the unpaid salaries of a worker it recruited for employment with a foreign principal. Even if the recruitment agency and the principal had already severed their agency at the time the worker was injured, the recruitment agency may still be sued for violation of the employment contract, if no notice of the agency agreements termination was given to the employee, pursuant to Art. 1921 of the Civil Code, which states that if the agency has been entrusted for the purpose of contracting with specified persons, its revocation shall not prejudice the latter if they were not given notice thereof These contractual undertaking constitute the legal basis for private employment or recruitment agencies being liable jointly and severally with its principal, the foreign-based employer. before and after they are signed and for them to receive a copy of the contract of employment; Ensure that the vessel/s and the crew are adequately covered by P & I Club or similar insurance thru the submission of the certificate of insurance coverage; Assume full and complete responsibility for all claims and liabilities which may arise in connection with the use of the license; Assume joint and solidary liability with the employer for all claims and liabilities which may arise in connection with the implementation of the employment contract, including but not limited to wages, death and disability compensation and their repatriation; Guarantee compliance with the applicable labor, social and maritime legislations of the Philippines, and applicable regulations of the flag state and international maritime bodies such as the International Maritime Organization (IMO) and the International Labor Organization (ILO); Assume full and complete responsibility for all acts of its officials, employees and representatives done in connection with recruitment and placement; Deploy at least fifty (50) seafarers to its new market within one-year from issuance of its license which shall also be a condition to the accreditation of old principals; and Repatriate the deployed seafarers when the need arises. In case of corporation or partnership, verified undertaking by officers, directors and partners that they will be jointly and severally liable with the company over claims arising from employer-employee relationship. Individual income tax return of the proprietor, partners, or board of directors as the case may be, for the past two (2) years. Proof of possession by the sole proprietor, partner or chief executive officer, as the case may be, of a bachelors degree and three years business experience. List of all officials and personnel involved in the recruitment and placement, together with their appointment, bio-data and two (2) copies of their passport size pictures as well

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j.

k.

1. Required Undertaking by Agent a. Provide its seafarers orientation on recruitment policies and procedures, terms and conditions of employment and other relevant information; b. Ensure that any seafarer recruited or deployed by them is qualified and holds the documents necessary for the job concerned; c. Ensure that contracts of employment are in accordance with the standard employment contract and other applicable laws, regulations and collective bargaining agreements; d. Ensure that seafarers are informed of their rights and duties under their contracts of employment and the articles of agreement prior to or in the process of engagement; e. Ensure that proper arrangements are made for seafarers to examine their contracts of employment and articles of agreement l. m.

n.

o.

p.

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as their clearances from the NBI and the Anti-Illegal Recruitment Branch, POEA. q. Copy of contract of lease or proof of building ownership, indicating the office address and providing for an office space of at least one hundred (100) square meters. r. Proof of publication of notice of the application with the names of the proprietor, partners, incorporators and officers; s. Certificate of attendance of owner and/or chief executive officer in a pre-application seminar conducted by the Administration. 2. Contract by principal Even if it was the agencys principal which entered into contract with the worker, the petitioner as the manning agent in the Philippines, is jointly and solidarily responsible with its principal. group. c. 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 jobseekers. 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. RA 8042, Section 6 definition. 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 nonholder of authority contemplated under Article 13(f) o Any such non-licensee or nonholder who, in any manner offers or promises for a fee employment abroad to two or more persons shall be deemed so engaged. o Committed by any person, whether a non-licensee, nonholder, licensee or holder of authority. Illegal recruitment when committed by a syndicate or in an large scale shall be considered an offense involving economic sabotage. Persons criminally liable for illegal recruitment are the principals, accomplices and accessories.

Article 38. Illegal Recruitment a. 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. b. 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

Labor Standards
In case of juridical persons, the officers having control, management or direction of their business shall be liable. An employee who does not control, manage or direct the business may not be held liable for illegal recruitment. o Merely acting under the direction of his superiors o Unaware that his acts constituted a crime, If it is shown that an employee actively and consciously participated in illegal recruitment LIABLE. The absence of receipts cannot defeat a criminal prosecution for illegal recruitment. o As long as witness can show through their respective testimonies that the accused is the one involved in prohibited recruitment, she may be convicted of the offence despite the absence of receipts. o Credible testimonial evidence may suffice The secretary of labor, not being a judge, may not issue search or arrest warrants. o 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; d. 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; e. 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. Illegal recruitment in large scale and illegal recruitment by a syndicate are separate or independent categories Illegal recruitment cases under this Act shall prescribe in 5 years Economic sabotage, 20 years.

Article 39. Penalties a. 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; b. 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; c. Any person who is neither a licensee nor a holder of authority under this Title found violating any provision thereof or

Title II: Employment of Non-resident Aliens 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

Labor Standards
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. 1. Employment of aliens Article 40 requires aliens to secure employment permit o For immigrants and resident aliens what is required is an Alien employment Registration Certificate. Foreigners may not be employed in certain nationalized business. Ex. Corporations or associations whose capital should be at least 60% Filipinoowned. o Exceptions: Where Secretary of Justice specifically authorizes the employment of foreign technical personnel Where aliens are elected members of the board of directors or governing body of corporations or associations in proportion to their allowable participation in the capital of such entities

Book 2: Human Resources Development Title I: National Manpower Development Program Chapter I: National Policies and Administrative Machinery for their Implementation Art. 43. Statement of objectives Art. 44. Definitions a. "Manpower" shall mean that portion of the nations population which has actual or potential capability to contribute directly to the production of goods and services. b. "Entrepreneurship" shall mean training for self-employment or assisting individual or small industries within the purview of this Title. Art. 45. National manpower and youth council composition Art. 46. National manpower plan Art. 47. National manpower skills center

Labor Standards
Art. 48. Establishment and formulation of skills standards Art. 49. Administration of training programs Art. 50. Industry boards Art. 51. Employment service training functions Art. 52. Incentive scheme An additional deduction from taxable income of one-half (1/2) of the value of labor training expenses incurred for development programs shall be granted to the person or enterprise concerned provided that such development programs, other than apprenticeship, are approved by the Council and the deduction does not exceed ten percent (10%) of the direct labor wage. Art. 53. Council secretariat. Art. 54. Regional manpower development offices. Art. 55. Consultants and technical assistance, publication and research Art. 56. Rules and regulations Title II: Training and employment of special workers Chapter I: Apprentices Art. 57. Statement of objectives Art. 58. Definition of terms a. "Apprenticeship" means practical training on the job supplemented by related theoretical instruction. b. An "apprentice" is a worker who is covered by a written apprenticeship agreement with an individual employer or any of the entities recognized under this Chapter. c. An "apprenticeable occupation" means any trade, form of employment or occupation which requires more than d. "Apprenticeship agreement" is employment contract wherein employer binds himself to train apprentice and the apprentice in accepts the terms of training. Art. 59. Qualifications of apprentice To qualify as an apprentice, a person shall: a. Be at least fourteen (14) years of age; b. Possess vocational aptitude and capacity for appropriate tests; and c. Possess the ability to comprehend and follow oral and written instructions. Trade and industry associations may recommend to the Secretary of Labor appropriate educational requirements for different occupations. Art. 60. Employment of apprentices 1. General policies and guidelines in the implementation of apprenticeship program Apprenticeship is the arrangement and the period when an upcoming worker undergoes hands-on training, more or less formal, to learn the ropes of a skilled job. The regional offices are required to screen and evaluate apprenticeship programs so that only companies, entities and establishments with adequate facilities for training are recognized and issued the corresponding certificate of program recognition. an the the turn three (3) months of practical training on the job supplemented by related theoretical instruction.

2. Tesda implements the apprenticeship program Section 18 of the TESDA Act of 1994 expressly empowers the tesda to implement and administer the

Labor Standards
apprenticeship program in accordance with existing laws, rules and regulations. 3. Requisites for employment of apprentices a. The employer should be engaged in a business that is considered a highly technical industry. A highly technical industry is a trade, business, or enterprise, industry or other activity which utilizes the application of advanced technology. b. The job to which the apprentice will work on should be classified as an apprenticeable occupation. An apprenticeable occupation is an occupation officially endorsed by a tripartite body and approved for apprenticeship by the Technical Education and Skills Development Authority (TESDA). 4. Apprenticeable age Under this article 14 years Under the implementing rules 15 years The elementary rule is that an implementing regulation cannot prevail over a statutory provision. o But the question of variance is rendered moot by RA No. 7610 which explicitly prohibits employment of children below 15 years of age. o RA No. 7610 recognizes certain exceptions but being an apprentice in an apprenticeable occupation is not one of the exceptions. 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) 1. Apprenticeship needs DOLEs prior approval, or apprentice becomes regular employee In Nitto enterprises vs. NLRC, SC ruled that prior approval by the department of labor and employment of the proposed apprenticeship program is a condition sine qua non before an apprenticeship agreement can be validly entered into. Art. 62. Signing of apprenticeship agreement Art. 63. Venue of apprenticeship programs Any firm, employer, group or association, industry organization or civic group wishing to organize an apprenticeship program may choose from any of the following apprenticeship schemes as the training venue for apprentice: a. Apprenticeship conducted entirely by and within the sponsoring firm, establishment or entity; b. Apprenticeship entirely within a Department of Labor and Employment training center or other public training institution; or c. Initial training in trade fundamentals in a training center or other institution with subsequent actual work participation within the sponsoring firm or entity during the final stage of training. Art. 64. Sponsoring of apprenticeship program Any of the apprenticeship schemes recognized herein may be undertaken or sponsored by a single employer or firm or by a group or association thereof or by a civic organization. Actual training of apprentices may be undertaken:

Art. 61. Contents of apprenticeship agreement 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 start below 75 percent of the applicable minimum wage, may be entered into only in

Labor Standards
a. In the premises of the sponsoring employer in the case of individual apprenticeship programs; b. In the premises of one or several designated firms in the case of programs sponsored by a group or association of employers or by a civic organization; or c. In a Department of Labor and Employment training center or other public training institution. Art. 65. Investigation apprenticeship of violation of 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. 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. 1. Working scholar; liability of school There is no employer-employee relationship between students on one hand, and schools, colleges or universities, on the other, where there is written agreement between them under which the former agree to work for the latter in exchange for the privilege to study free of charge, provided the students are given real opportunities including such facilities as may be reasonable and necessary to finish their chosen courses under such agreement.

Art. 66. Appeal to the secretary of labor. Art. 67. Exhaustion of administrative remedies. Art. 68. Aptitude testing of applicants. Art. 69. Responsibility instructions. for theoretical

Art. 70. Voluntary organization apprenticeship programs; exemptions

of

a. The organization of apprenticeship program shall be primarily a voluntary undertaking by employers; b. When national security or particular requirements of economic development so demand, the President of the Philippines may require compulsory training of apprentices in certain trades, occupations, jobs or employment levels where shortage of trained manpower is deemed critical as determined by the Secretary of Labor and Employment. Appropriate rules in this connection shall be promulgated by the Secretary of Labor and Employment as the need arises; and c. Where services of foreign technicians are utilized by private companies in apprenticeable trades, said companies are required to set up appropriate apprenticeship programs.

Chapter II: Learners Art. 73. Learners defined. Learners are persons hired as trainees in semiskilled 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.

Labor Standards
Art. 74. When learners may be hired. Art. 74. Learnership agreement. Both learners and apprentices may be paid wages 25% lower than the applicable legal minimum wage. They differ in the focus and terms of training. o Learner trains in a semi-skilled job or in industrial occupations that require training for less than 3 months. Training period is shorter because the job is more easily learned than that in apprenticeship. o Apprentice trains in highlyskilled job or in a job found only in a highly technical industry. Training period exceeds 3 months.

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. Art. 77. Penalty clause. 1. Learnership vs. Apprenticeship Similar because both mean training periods for jobs requiring skills that can be acquired through the actual work experience.

Note: a learner is not an apprentice but an apprentice is also a learner. Because the job is more easily learnable in learnership than in apprenticeship, the employer is committed to hire the learner-trainee as an employee after the training period. No such commitment exists in apprenticeship. Employment of apprentices is legally allowed only in highly technical industries and only in apprencticeable occupations approved by DOLE. Learnership is allowed even for non-technical jobs. Chapter III: Handicapped workers Art. 78. Definition Handicapped workers are those whose earning capacity is impaired by age or physical or mental deficiency or injury. Art. 79. When employable. Handicapped workers may be employed when their employment is necessary to prevent curtailment of employment opportunities and when it does not create unfair competition in labor costs or impair or lower working standards. Art. 80. Employment agreement.

Any employer who employs handicapped workers shall enter into an employment

Labor Standards agreement with them, which agreement shall include: 1. The names and addresses of the handicapped workers to be employed; 2. The rate to be paid the handicapped workers which shall not be less than seventy five (75%) percent of the applicable legal minimum wage; 3. The duration of employment period; and 4. The work to be performed by handicapped workers. The employment agreement shall be subject to inspection by the Secretary of Labor or his duly authorized representative.
Art. 80. Eligibility for apprenticeship. 1. The Magna carta for disabled persons. Ensures equal opportunities for disabled persons and prohibits discrimination against them. disabled persons as regular

2. Qualified employees

Even handicapped persons, employed by a bank to accommodate the request of the social welfare secretary, may become regular employees.

Book 3: Conditions of employment Title I: Working conditions and rest periods. Art. 82. Coverage