September 18, 2015

Zarah
Book 1 of Labor code
Pre-employment
to
Recruitment
and
Placement of Workers covers up to Article 39,
from Article 12 to Article 39. A word of
caution, so many of the provisions between
Art. 12 to 39 have been repealed. First, by
RA
8042
Migrant
Workers
and
Overseas Filipinos Act of 1995, which
became effective in 1995. Subsequently, RA
8042 was drastically amended by RA
10022, which became effective May 9,
2010. Now, is that in your periodic copy of
RA 10022? Do you have a copy? So here is
your copy.
Q: What is recruitment and placement?
A:
1. Any act of canvassing, enlisting, con
tracting, transporting, utilizing, hirin
g or procuring workers; and
2. Includes referrals, contact services,
promising or advertising for employ
ment, locally or abroad, whether for
profit or not. (Art. 13 [b],LC)
Q: What are the essential elements in dete
rmining whether one recruitment/placeme
nt?
A: It must be shown that:
1. The accused gave the complainant t
he distinct impression that she had t
he power or abilityto send the compl
ainant for work,
2. Such that the latter was convinced t
o part with his money in order to be
so employed. (People v. Goce, G.R. N
o. 113161, Aug. 29, 1995)
Q: Who is deemed engaged in recruitment
and placement?
A: Any person or entity which, in any man
ner, offers or promises for a fee employme
nt to 2 or more persons. (Art. 13[b], LC)
Q: What is the rule in recruitment and plac
ement?
A: GR: No person or entity other than the p
ublic employment offices, shall engage in t
he recruitment and placement of workers

XPN:
1. Construction contractors if authorize
d by the DOLE and Construction Indu
stry Authority
2. Other persons or entities as may be
authorized by SLE
3. Members of the diplomatic corps (bu
t hiring must go through POEA)
4. Public employment offices Private re
cruitment offices
5. Private employment agencies
6. POEA
7. Shipping or representatives
8. Name hires
Q: Who are names hires?
A: They are individual workers who are abl
e to secure contracts for overseas employ
ment on their own efforts and representati
ons without the assistance or participation
of any agency. Their hiring, nonetheless, sh
all pass through the POEA for processing p
urposes. (Part III, Rule III, POEA Rules Gover
ning Overseas Employment as amended in
2002)
Q: What if employment is offered to o
nly one
person?
A: Immaterial. The number of persons deal
t with is
not an essential ingredient of the act of rec
ruitment and placement of workers. The pr
oviso merely lays down a rule of evidence t
hat where a fee is collected in consideratio
n of a promise or offer of employment to 2
or more prospective workers, the individual
or entity dealing with them shall be deeme
d to be engaged in the act of recruitment a
nd placement. The words "shall be deemed
" create that presumption. (People v. Panis,
G.R. L5867477, July 11, 1986)
Q: What is a private employment agen
cy?
A: Any person or entity engaged in the recr
uitment and placement of workers for a fee
which is charged, directly or indirectly, fro
m the workers or employers or both.
Q: What is a private recruitment agen
cy?
A: It is any person or association engaged i

n the recruitment and placement of worker

s without charging any fee, directly or indir
ectly, from the workers or employers.
Q: Who is a seaman?
A: Any person employed in a vessel engag
ed in maritime navigation.
*has the highest mandatory remittance=
60%
* land-based= 40%

Q: What is overseas employment

A: It is employment of a worker outside the
Philippines.
Q: Who is an overseas Filipino worker
(OFW)?
A: A person who is to be engaged, is engag
ed or has been engaged in a remunerated
activity in a State of which he or she is not
a citizen or on board a vessel navigating th
e foreign seas other than a government shi
p used for military or noncommercial purpo
ses or on an installation located offshore or
on the high seas; to be used interchangeab
ly with migrant worker. (Sec.2, R.A. 10022
amending R.A. 8042)
Q: Who is an emigrant?
A: Any person, worker or otherwise, who e
migrates to a foreign country by virtue of a
n immigrant visa or resident permit or its e
quivalent in the country of destination

Let me bring to your attention this recently

decided case of SAMEER Overseas
Placement Agency v. Cabilles (August 05,
2014).
SAMEER
OVERSEAS
PLACEMENT
AGENCY, INC., v. JOY CABILLES
August 5, 2014
Justice Leonen

Petitioner is a recruitment and

placement agency.
Joy C. Cabiles, submitted her
application for a Quality Control job
in Taiwan and signed with a one year
employment contract for a monthly
salary of NT$15,360.00. Sameer

Overseas Agency required her to

pay a placement fee of P70,000.00
when she signed the employment
contract.
She was deployed to work in Taiwan
for Wacoal, but was given a position
as a cutter.
Petitioner 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.
She was told that she only earned a
total of NT$9,000 from June 26 to
July 14, 1997. NT$3,000 was
deducted to cover her plane ticket
to Manila.
Subsequently,
Cabiles
filed
a
complaint with the NLRC against
petitioner and Wacoal. She claimed
that she was illegally dismissed. She
askedd for the return of her
placement fee, the withheld amount
for repatriation costs, payment of
her salary for 2* months as #ell as
moral and e8emplary damages. She
identified
Wacoal
as
Sameer
Overseas
Placement
Agencys
foreign principal

SAMEERs Defense:
Respondents termination was due
to her inefficiency, negligence in her
duties and her failure to comply
with the work requirements of her
foreign employer.
It claimed that it did not ask for
placement fee
Wacoals
accreditation
with
petitioner
had
already
been
transferred to the Pacific Manpower
on august 6, 1997. Thus, obligation
is substituted with Pacific, which the
latter denied.
Labor Arbiters Ruling:
Case was dismissed; complaint was
based on mere allegations
No excess payment of placement
fees, based on the OR presented


NLRC

CA:

Transfer of obligation to Pacific is

immaterial
Ruling:
Joy Cabiles was illegally dismissed
The burden of proof that the
dismissal is based on just or valid
cause belongs to the employer
It found that the petitioner failed to
prove that there were just causes for
termination.
Affirmed. Remanded the case to
NLRC to address the validity of
petitioners
allegations
against
Pacific.

SC:
Respondent Joy Cabiles, having been
illegally dismissed, is entitled to her
salary for the unexpired portion of
the employment contract that was
violated together with attorneys
fees and reimbursement of amounts
withheld from her salary.
Republic Act No. 10022 was
promulgated on March 8, 2010. This
means that the reinstatement of the
clause in Republic Act No. 8042 was
not yet in effect at the time of
respondents termination from work
in 1997. Republic Act No. 8042
before it was amended by Republic
Act No. 10022 governs this case.
The reinstated clause, this time as
provided in Republic Act. No. 10022,
violates the constitutional rights to
equal protection and due process
As observed, illegally dismissed
overseas
workers
whose
employment contracts had a term of
less than one year were granted the
amount equivalent to the unexpired
portion
of
their
employment
contracts.
Meanwhile,
illegally
dismissed overseas workers with
employment terms of at least a year
were granted a cap equivalent to
three months of their salary for the
unexpired
portions
of
their
contracts.
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.
En Banc decision, penned by Justice Marvic
Leonen, the most recent addition to the
Supreme Court. Justice Leonen is the former
dean of UP Law School and he is the
principal author of infamous BBL. Because he
brought this law together, and as a prize he
was appointed to the Supreme Court. He
comes up with this En Banc decision, which
has something to do with the very
controversial provision of RA 10022. Now,
this landmark case I gave this to 2014 batch
for Bar examination. Noticed that this is
August 05, 2014 decision. This is already
beyond the cut off. But nevertheless, I took it
upon myself to give it those who will take the
Bar examination, because its an unusual
decision and I consider it to be tempting for
the Bar Examiner to ask it. How do they do
it? They will just make it hypothetical, then it
happens to be just like the case. And sure
enough it come out. Thats why our batch as
a class in AdDU scored the highest in Labor,
because something like 3 cases here came
out. Tsamba ra to.
Now, why is this case very important?
First of all it violates the political principle of
judicial review. You know very well that the
text of the law, its provision, is ultimately
what the Supreme Court says it and becomes
part of the law of the land. The Supreme
Court always refrains from rendering,
whether or not a law is constitutional,
because it does not want to take over the job
of the Legislature. You know the legislative
power is plenary in nature. There is no such
thing as a law that cannot be amended. The
Congress has plenary powers. But it is the
Supreme Courts power to measure that law,
whether or not that law is in conformity with
the Constitution.
Now, when does the Court do that? The
court does that when it has no longer a
choice. It can interpret the provision in such
a manner as to escape, holding it as
unconstitutional. The court will do that,
because it behooves upon this court to

assume on becoming modesty in correcting

the two equal branch of the government.
So, unless there is a case, that is actual case
and the provision of the law is applicable to
this case. And not only that there is no
choice but to interpret the provision, the
interpretation is the very lis mota, no other
choice, then the SC is forced to render the
law as unconstitutional.
Now, sure enough that is a clear, you must
have a justiciable case before you can render
a law unconstitutional. Here there is no
justiciable case. Because the applicable law
is an old law, before this law (RA 10022)
became effective. And let the court renders
RA 10022 as unconstitutional. Matapang si
Leonen, and it is unanimous, en banc, and
there is no dissenting opinion. Why? There is
no case ha, the case admittedly happened
before the law became effective and yet he
uses this law and says its unconstitutional
because of this case. You can see why this is
very tempting. Why the examiner will use
this. Because it is unprecedented. Now,
Leonen does this, you can really see his
scholarship, because there was a similar
case like this and the SC, in division, said, we
cannot hold this provision of RA 10022,
because it is not yet in effect when this case
happened. So when relate it to another case,
the court said that in division. Here comes
Leonen, as appointed, and this case happens
and Leonen says this Court holds this
provision as unconstitutional. Why is that?
Because the provision in question was
already unconstitutional in RA 8042. And
then
Congress,
legislates
it
again,
incorporates it to RA 10022 without any
change. So its a completely identical
provision of law, re-enacted in a new law
when before its already held to be
unconstitutional.
Now, what is that controversial
provision? The controversial provision is
Section 10 of RA 8042. Subsequently reenacted in Section 7 of RA 10022.
Now, that particular provision provides that
an illegally terminated Overseas Contract
Worker (OCW) is entitled to among other
benefits, his salaries for the unexpired

employment contract or for 3 months for

every year of unexpired term, whichever is
less. Now, in the case rendering this
provision unconstitutional, under Section 10
of RA 8042, the SC says this is
unconstitutional because it is discriminatory.
If you are locally employed, you are entitled
to full back wages. You are entitled to
reinstatement. If you cannot be reinstated,
then you are entitled to for separation
benefits including 1 month salary for every
year of service. Your complete service is
counted. Now, just because you are an
overseas worker, you are given a choice,
unexpired portion of your contract or 3
months of every year of unexpired term,
whichever is less. Why do you get less just
because you are OCW. It is discriminatory.
Now, what is the reason why the court
judges this as unconstitutional even
though there is no relation to this case.
Because this case is still covered by RA 8042.
This is the reasoning, the ratio decidendi,
given by Leonen:
1. 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.
2. The new law puts our overseas
workers in the same vulnerable
position as they were prior to Serrano.
Failure to reiterate the very ratio
decidendi of that case will result in the
same untold economic hardships that
our reading of the Constitution
intended to avoid. Obviously, we
cannot countenance added expenses
for further litigation that will reduce
their hard- earned wages as well as
add to the indignity of having been
deprived of the protection of our laws
simply because our precedents have
not been followed. There is no
constitutional doctrine that causes
injustice in the face of empty

procedural
niceties.
Constitutional
interpretation is complex, but it is
never unreasonable.
So those were the reasons given by the
Supreme Court why it made an exemption in
this particular case.
Alright, if you points with respects with
recruitment and placement. This old by laws
is a continuing violation of the Code. Nobody
has brought out yet to the International
Court. But most countries had already come
into an agreement that just like finances,
which are no longer have borders, labor
should no longer have any restrictions as to
as its mobility. So you should be able to work
anywhere in the world, where you are
qualified. Kung nakabalo pa lang ta sa
balaod, miski asa unta ta makatrabaho. You
know in the Philippines the practice of law
requires citizenship. You cannot take the bar
if you are not Filipino. But in United States
and many other jurisdiction, you dont need
a citizenship. You dont need to be a resident
and citizen of the US so that you can take
the Bar examination. Bar examination in
New York, we have here faculty members
who passed the New York Bar examination.
Mas sayon pa mupasar sa NY Bar kaysa diri
sa Pilipinas. Lima lang ka subjects:
Obligations and Contracts, Family law,
Criminal Justice, Civil Procedure (Federal),
State Procedure, 50 States Legal Ethics
exam. Mao ran na. When you take the Bar
exam in NY you will not know what subject
you will take for the day, you only know the
last subject. x x x
Jan Kristy
So, anywhere in the world, you should be
able to work. But this law has many
requirements to be able to work outside,
because this law prohibits so called direct
hiring.
Q: What is Directhiring?
A: It is when an employer hires a Filipino w
orker for overseas employment without goi
ng through
the POEA or entities authorized by the Secr
etary of Labor.

Q: What is the ban on directhiring?

A: GR: An Er may only hire Filipino worker f
or overseas employment through POEA or
entities authorized by DOLE.
XPN: Direct hiring by
1.International organizations
2. Name hires
3. Members of the diplomatic organizations
4. Other Ers as may be allowed by DOLE
Q: Why is directhiring prohibited?
A:
1. To ensure the best possible terms an
d conditions of employment for the
worker.
2. To assure the foreign Er that he hires
only qualified Filipino workers.
3. To ensure full regulation of employ
ment in order to avoid exploitation
A foreign employer cannot hire you directly.
That is prohibited. Foreign employer cannot
hire you directly. Of course there are
exceptions. Like if you are an organization
with a personality under international law.
World Health, UNICEF, all this different
international organizations with personality
under international law. They can hire
directly. Emphasis, all governments-- they
can hire directly. But that is violated many
times. What they do is, after they have a
direct hiring for a foreign employer, they
report to the POEA and the POEA grants an
exemption.
You can now what is this, you should be able
to work anywhere. Now why do I say this,
because you know RA 8042 that was
amended by RA 10022 , there is a proviso
there that says that this law is only good for
5 years after which there will no longer be
licensing or issuing of permits of recruitment
and placement agencies.
Now, that particular provision has just been
glossed over and the regulations. Why is
that? Because the Philippines and the
legislature still feels the need that our
nationals working outside continue to need
protection. Now its very difficult to provide
protection because our labor laws are only
municipal laws they are not effective beyond
the territorial jurisdiction of the Philippines.

So they have devised schemes by which the

foreign principals are still made liable for
unfair treatment of our workers. How do they
do that-- by making the placement agencies,
the recruitment agencies liable solidarily with
the foreign principals. That is what they do.
That is the plan, that is the structure.

Q: What is the liability of the privat

e employment agency and the princi
pal or foreignbased employer?
A: They are jointly and severally liable fo
r any violation of the recruitment agree
ment and the contracts of employment.
Note: This joint and solidary liability imp
osed by law against recruitment agencie
s and foreign Ers is meant to assure the
aggrieved worker of immediate and suffi
cient payment of what is due him. If the
recruitment/placement agency is a juridi
cal being, the corporate officers and dire
ctors and partners as the case may be, s
hall themselves be jointly and solidarily li
able with the corporation or partnership
for the claims and damages. (Becmen Se
rvice Exporter and Promotion v. Cuaresm
a, G.R. Nos. 18297879, April 7, 2009
How do you make the foreign principals
liable? By going after the placement
agencies. So the placement agencies must
be licensed or must have permits. They must
have license or permits. License if you are
fee charging-- you are required to have a
license. If you are not fee charging, then you
need a permit. You need that authority
according to Art 13. Definitions, Letter F Authority means a document issued by the
DOLE authorizing a person or association to
engage in recruitment and placement
activities as a private recruitment entity.
Private recruitment entity under letter E
means there is no charge--without charging
directly or indirectly any free from workers or
employees.
Q: What is a license?
A: It is issued by DOLE authorizing a perso
n or entity

to operate a private employment agency.

Q: What is an Authority?
A: It is a document issued by the DOLE aut
horizing a person or association to engage
in recruitment and placement activities as
a private recruitment entity.
Q: Who is a nonlicensee / nonholder
of authority?
A: Any person, corporation or entity:
1. Which has not been issued a valid lic
ense or authority to engage in recrui
tment and placement by the Secreta
ry of Labor and Employment (SLE) or
2. Whose license or authority has been
suspended, revoked or cancelled by
the POEA or the SLE
Q: What are the grounds for revocatio
n of license?
A:
1. Incurring an accumulated 3 counts o
f suspension by an agency based on
final
and executory orders within the peri
od of validity of its license.
2. Violations of the conditions of licens
e
3. Engaging in acts of misrepresentatio
n for the purpose of securing a licen
se or renewal
4. Engaging in the recruitment or place
ment of workers to jobs harmful to t
he public health or morality or to the
dignity of the country. (Sec. 3, Rule I,
Book VI, Rules and Regulations Gove
rning Overseas Employment)
Q: What are the grounds for suspensi
on or cancellation of license?
A:
1. Prohibited acts under Art. 34
2. Publishing job announcements w/o P
OEAs approval
3. Charging a fee which may be in exce
ss of the authorized amount before a
worker is employed
4. Deploying workers w/o processing th
rough POEA Recruitment in places o
utside its authorized area. (Sec. 4, R
ule II, Book IV, POEA Rules)

Q: Is the license or authority transfer

able?
A: No, they are nontransferable. (Art. 29
So, now what government agency is in
charge of placement and recruitment? That
is the POEA, the Philippine Overseas
Employment Administration. They issue, they
give permits, and they also cancel permits.
That is the___ its not the POEA that cancels
permits, it is the Secretary of Labor. The
POEA can suspend. But this POEA has what
you call, if you will read the law, it has
visitorial powers over placement and
recruitment agencies.
Visitorial powers, that means, at anytime of
the day or night as long as these recruitment
agencies are open they can come in, ask for
the contracts, ask for the list of principals-all the requirements of licensure of
recruitment agencies.
Now, there are prohibitions of course in
engaging in recruitment and placement. You
are required to have Filipino capital of at
least 70% Filipino, 30 % Foreign is allowed.
That is 70%. Remember in the Constitution
what is a Filipino corporation for purposes of
owning
property60-40
but
here
disqualified. Its 70-30. And then there are
certain people that cannot engage in
recruitment agencies like those that are
employed in the DO? If you have a business
which is a travel agency you are involved in
selling plane tickets for going abroad on
tours etc. you cannot be allowed or granted
permit to agent in recruitment. Why is that?
What is the reason why do you think? Many
problems complaints of overseas contract
workers tagaan ticket lupad sila abot didto
wla diay trabaho.
Eve
... Daghan gyud, mga Pilipino, tripulante. So
its a big source of employment. Thats one
of the reasons why, the dollar inward
remittances is closer now to 30B dollars a
year, thats more than 2B dollars a month.
The remittances, thats one of the biggest
industries diri sa Philippines. Kanang call

center, medyo katunga pa ana, kay dako

man kaayo.
Now, when this Vir-Jen Shipping trilogy
cases happened, first it was decided in
Division, and it said that the first contract is
valid, the second contract is not valid. Then
there was a second case, decided by the
Supreme Court in Division, and the second
case said, the second contract is valid, the
first contract is not valid. So Vir-Jen Shipping
asked for a decision en banc.
Vir-Jen Shipping and Marine Services
v. NLRC, G.R. No. L-58011 & L-58012
November 18, 1983, EN BANC,
GUTIERREZ, JR., J.
Certain seamen entered into a contract of
employment for a 12-month period. Some
three months after the commencement of
their employment, the seamen demanded
a 50% increase of their salaries and
benefits. The seamen demanded this
increase while their vessel was en route to
a port in Australia controlled by the
International Transport Workers Federation
(ITF) where the ITF could detain the vessel
unless it paid its seamen the ITF rates. The
agent of the owner of the vessel agreed to
pay a 25% increase, but when the vessel
arrived in Japan shortly afterwards, the
seamen were repatriated to Manila and
their contracts were terminated.
National Seamen Board (NSB), upheld the
cancellation
of
the
contracts
of
employment of the seamen, but on appeal,
the NLRC ruled that the termination was
illegal.
Second Division of the Supreme Court held
that the seamens dismissal was legal.
Then a motion for reconsideration was filed
with the Supreme Court en banc which
gave its due course, after finding that
there was a need to reconcile the decision
of the Second Division with that of the First
Division in the Wallen Decision which had
ruled that the termination of the seamen
was illegal.
Issue: Whether or not the termination of
the seamen was illegal.
Held: The termination of the contract
of the seamen was illegal. Filipino
seamen are admittedly as competent and

reliable as seamen from any other country

in the world. It is competence and
reliability, not cheap labor, that makes our
seamen so greatly in demand. Because of
these, the court holds that neither the NSB
nor the NLRC should as a matter of official
policy, legitimize and enforce dubious
arrangements where shipowners and
seamen
enter into fictitious contracts
similar to the addendum agreements or
side contracts in this case whose
purpose is to deceive. The Republic of
the Philippines and its ministries and
agencies should present a more honorable
and proper posture in official acts to the
whole world, notwithstanding our desire to
have as many job openings both here and
abroad for our workers. At the very least,
such as sensitive matter involving no less
than our dignity as a people and the
welfare of our workingmen must proceed
from the Batasang Pambansa in the form
of
policy
legislation,
not
from
administrative rule making or adjudication.

Fr. Gus: The ponente of the decision en banc

was Justice Hugo Gutierrez, and in his
decision he said, the basic argument why
they are asked to close our eyes to this
irregularity of the first contract being
supplanted by a second contract is the ageold axiom that, you should not kill the goose
that lays the golden eggs. Overseas
employment is the source of so much dollar
remittances in the Philippines and supporting
so many ___. If we dont play along with this
depressed labor market now, we might lose
the market.
Kay kurakot may nadawat, nagka-anam
nagka-lagom sa panit, nagkaubos ang
sweldo, Sri Lankans --- You dont realize the
difficulty that you have. All five nationalities
in the same crew. Unsa may kan-on ninyo?
Ang uban dira gustog halang, ang uban dira
di
kaagwanta
ug
kahalang.
Kinsay
magpatigbabaw ana. You dont realize the
value of the ship captain. The ship captain is
not only the master at ship navigation, but
he must be master at disciplining men, mga
naa dira confined. Kapitan kag barko,
kailangan, naa kay kaisog, kay para
kahadlukan kag tao ba, daghan buang-

buang. Naa pay mga dagko kaayog lawas,

mga bunguton. Unsaon man na nimo
pagdala?
Then Hugo Gutierrez says this court
rules that it is the first contract that
should be upheld. And anything that is
detracted of that first contract is void.
But has that practice stopped? No, it
has not stop. This tells you again that its
very difficult for the law to amend the
prevailing market wage --- arang kalisod.
Because that continues up to now. Samtang
naa pay mga substandard ships, kanang mga
karaan nang bapor.
Asa gud na dapita? Naa pa ni sa
Pilipinas hah. Its already cheaper for the
Philippines to buy gasoline diesel from
Singapore because Singapore is already a
major market, stock market for finished oil
products. Kanang mga gamay, Burma, wala
pa man na silay kaayoy refineries. Adto na
sila nagbitbit, daghan mag sobra sobra dira.
Sometimes their oil, daghan silag sobra nga
oil. Their refineries are so advanced that they
begin to be choosy. If your oil has a very high
content of sulphur its very expensive to
refine it. And its also destructive to the
refinery mao din a dawaton sa mga dakong
refineries sa Singapore. Kinsa may mudawat
ana? Kanang atong karaan na kaayong
refinery diri nga hapit na maguba. Its kept
working by Elmers Glue . Karaan na kaayo
hapit na mabungkag mao na ang murefine,
barato na kaayo ang cost. The ships that
carry them, kanang mga kagang-kagang na
nga mga floating coffins mga gubaon na
gyud kaayo. Ang mga bagong trainees
tripulante di na kamao mupadagan ana,
kinsa may makapadagan ana, Engineer ----didto nga ---- usahay isa nalang ka computer
ang nagapadagan ana. Pero the leasing cost
is very low, because you lease it at your own
risk, at least ihatag nalang nag free, mao
nay irisk.
Thats why, in the United States, what
is the price of oil now per barrel? They
always say, Brent West Crude. That is the
high end, or the West Texas Crude, mao na
nay high-end dira mubase ang presyo. But
there are other oils that are lower because
they are low grade. Mao na mudaghan na
gani na, malipay ang Philippines kay kita ray

makakuha ana, --- dalhon na diri, lease crude

carriers.
But then they have this very large
crude carriers 12 thousand dead weight tons
basig baynte pa ka tao makapadagan,
makadala pa sila asa ilang family. Ang mga
opisyal, naa ang asawa. Kuha silag oil sa
Saudi Arabia, dad-on nila all the way to
Japan, 23 days. Pag-abot sa Japan, naog ang
asawa sakay ang anak, puli, balik nasad.
Dagko kaayo sa katanan. Those are the
latest ships that can now be accommodated
by the expanded Suez Canal. Kanang --We do not have a school for seamen,
to be qualified to man VLCCs (Very Large
Crude Carriers), computer kuan man na, wa
man ta ana dinhi, we have to go abroad. Our
new captains, they have to undergo upgrade,
training, --- all these---Now, there is also this particular area
on compulsory insurance. Which is now
mandated by RA 10022 (Migrant Workers and
Overseas Filipinos Act of 1995 as amended).
The
recruiter,
the
recruitment
company or manning agency is required to
make
the
principal,
the
foreign
principal, obtain compulsory insurance
for each overseas Filipino worker that
they hire. And it must involve, insurance
covering accidental death, natural death,
permanent/total disablement and then
insurance covering repatriation cost. So this
is one of the added features of 10022.
Now, there is this controversy of
seamen overseas contract workers that are
made to undergo medical examination.
Before you are deployed, you must undergo
medical examination.
My question is, who pays for that
examination? Now it is already very clear
under 10022 that if the principal, or the
recruitment agency, requires a specific
medical doctor or institution to conduct the
medical examination, then it must answer for
the medical examination. Now if what is
required
is
just
a
specific
medical
examination, they do not require specific
doctor or a specific hospital or institution,
then the OCW is free to look for his preferred
doctor or hospital, and it is he who pays it.

Now, you might think that that is well

settled, its not settled. Why? Because, for
OCWs that are already immigrants, they
have another physical examination, what is
that? The physical examination required by
country receiving them and all these
embassies have their own designation
physicians.
Mumigrate dayon ka sa Canada, sa
Norway, sa Finland, naa man silay
kaugalingong medical examination, unya
naa silay accredited doctor --- di man ka
kapangita ug maskin kinsa lang nga doctor
dira ---- strikto an kaayo na, ikaw pay
mubayad. Now these examinations are not
covered by 10022, because we are talking
about the medical examination required by
the foreign principal, not the embassy. The
embassy cannot ----. The US embassy
---accredited doctor, subject them to this ---.
RA 10022, has expanded illegal
recruitment. You know there are 2 kinds of
illegal recruitment. If there is anything that
you should study well here, it is illegal
recruitment, why? Because that is the one
that is always asked in the bar examination.
High-profile
man
gud
nang
illegal
recruitment.
Q: Who are the persons prohibited fro
m engaging the business of recruiting
migrant workers?
A:
1. Unlawful for any official or Ee of the:
a. DOLE
b. POEA
c. Overseas
Workers
Welfare
Administration (OWWA)
d. DFA
e. Other govt agencies involved in
the implementation of this Act
3. Travel Agencies
4. Their relatives within the 4th civil de
gree of consanguinity or affinity, to e
ngage, directly or indirectly in the bu
siness of recruiting migrant workers.
(Sec. 8, R.A. 8042)
Q: What are the elements of Illegal Re
cruitment?
A:
1. Offender is a nonlicensee or non
holder of authority to lawfully engag
e in the recruitment/placement of w
orkers

2. Offender undertakes:
a. Any act of canvassing, enlisting,
contracting, transporting, utilizin
g, hiring or procuring workers, an
d includes referrals, contact servi
ces, promising or advertising for
employment, locally or abroad, w
hether for profit or not (Art. 13[b]
); or
b. Any of prohibited practices under
Art. 3

the worker in
connection
with his/ her
documentatio
n
and
processing for
purposes
of
deployment;
3. To allow a
non-Filipino
citizen
to
head
or
manage
a
licensed
recruitment/
manning
agency.

Q: When is there Simple Illegal Recrui

tment?
A: It is considered simple illegal recruitme
nt when it
involves less than three (3) victims or recru
iters

Q: What is the difference between the L

C and R.A. 8042 or the Overseas Filipino
s and Overseas Migrant Workers Act?
LC (Art. 38)

Local recruitment

Illegal
recruitment
under Art. 38 means
any
recruitment
activity
including
prohibited
acts
under
Art.
34
committed by nonlicensees or nonholders of authority

RA
8042,
as
amended by RA
10022
Applies
to
recruitment
for
overseas
employment
Illegal
recruitment
under Sec. 6 means
any
activity
committed by nonlicensees/
nonholders of authority
or prohibited acts
(same as Art. 34,
LC)
Added
to
the
following in the list:
1. Failure
to
actually
deploy
without valid
reason;
2. Failure
to
reimburse
expenses
incurred
by

Now the definition of illegal recruitment,

is still here, the basic definition, its in the
law --- illegal recruitment. But it has been
expanded by 8042, and it has been further
expanded by 10022.
RA 10022 now makes it illegal
recruitment, even if you are a licensed
recruiter. Before, since your license is
location specific, you will be allowed to ---you are allowed to recruit within Pasay City,
so you put up your office in Pasay City,
outside of Pasay City you cannot include. If
you do that is a violation of you license. But
under 10022, that is illegal recruitment, so
you can be subjected to criminal action. Now,
2 kinds of illegal recruitment:
1
2

Ordinary illegal recruitment

Illegal recruitment that constitutes
economic sabotage, and therefore that
has the maximum penalty of life
imprisonment.

Q: When is illegal recruitment conside

red as
economic sabotage?
A: When it is committed:
1. By a syndicate carried out by 3 or
more persons conspiring/confederati
ng with one another or
2. In large scale committed against 3
or more persons individually or as a
group. (Sec. 6, 10022

Eliz
Now, the list is very long, of the ways by
which you will commit illegal recruitment.
Taas kayo ni, bisag ang driver sa mga giillegally recruit, can be convicted of illegal
recruitment. You read it once, so that you
will see.
Q: What are prohibited practices in recruit
ment/placement (Art. 34.)?
A:
1. Furnishing or publishing any false
notice/information/document rela
ted to recruitment/employment
2. Failure to file reports required by
SLE
3. Inducing or attempting to induce
a worker already employed to qui
t his employment in order to offer
him another unless the transfer i
s designed to liberate a worker fr
om oppressive terms and conditi
ons
4. Recruitment/placement of worker
s in jobs harmful to public health
or morality or to the dignity of th
e country
5. Engaging directly or indirectly in
the management of a travel agen
cy
6. Substituting or altering employm
ent contracts without approval of
DOLE
7. Charging or accepting any amou
nt greater than that specified by
DOLE or make a worker pay any
amount greater than actually rec
eived by him
8. Committing any act of misrepres
entation to secure a license or au
thority
9. Influencing or attempting to influ
ence any person/entity not to em
ploy any worker who has not appl
ied of employment through his a
gency
10.Obstructing or attempting to obst
ruct inspection by representative
s SLE or by his
11.Withholding or denying travel do
cuments from applicant workers
before departure for monetary co

nsiderations other than authorize

d by law
12.Granting a loan to an OFW which
will be used for payment of legal
and allowable placement fees
13.Refusing to condone or renegotia
te a loan incurred by an OFW afte
r his employment contract has be
en prematurely terminated throu
gh no fault of his or her own
14.For a suspended recruitment/ma
nning agency to engage in any ki
nd of recruitment activity includi
ng the
processing of pending application
s;
15.For a recruitment/manning agenc
y or a foreign principal/ Er to pass
on the OFW or deduct from his or
her salary the payment of the co
st of insurance fees, premium or
other insurance related charges,
as provided under the compulsor
y worker's insurance coverage
16.Imposing a compulsory and exclu
sive arrangement whereby an OF
W is required to:
a. Avail a loan only from specific
ally designated institutions, e
ntities or persons
b. To undergo health examinatio
ns only from specifically desig
nated medical, entities or per
sons, except seafarers whose
medical examination cost is s
houldered by the shipowner
c. To undergo training of any kin
d only from designated institu
tions, entities or persons, reco
mmendatory except for traini
ngs mandated by
principals/ ship- owners.
(Sec. 6, R.A. 10022)
Remember its the regular courts that has
jurisdiction over criminal cases. As to the
administrative aspect the POEA or it is the
Labor Arbiter.
Labor Arbiter, where? As to venue, residence
of the victim or the one the Labor Arbiter
that has jurisdiction over the place where
any of the elements of the illegal recruitment

occur. Apil mana sa contrata didto sa Manila,

after you go to the labor arbiter, the choice is
always the victim.
Jurisdiction
Labor Arbiter
POEA
Original and
Original and
exclusive
exclusive
jurisdiction over all
jurisdiction over:
claims arising out of
1. All cases
Ee- Er relationship
which are
or by virtue of any
administrativ
law or contract
e in character
involving OFWs
relating to
including claims for:
licensing and
1. Actual
registration of
2. Moral
recruitment
3. Exemplary
and
4. Other forms
employment
of damages
agencies
(Sec. 10, RA
2. Disciplinary
8042)
Action cases
and other
special cases,
which are
administrativ
e in
character,
involving Ees,
principals,
contracting
partners and
Filipino
migrant
workers. (Rule
VII, Book VII,
POEA Rules)

Presidential Decree No. 442, as amended, otherwise

the Philippines: Provided, That any such non-licensee
manner, offers or promises for a fee employment ab
shall be deemed so engaged. It shall likewise include
committed by any person, whether a non-licensee, n
of authority:

"(a) To charge or accept directly or indirectly any am

specified in the schedule of allowable fees prescribed
and Employment, or to make a worker pay or acknow
than that actually received by him as a loan or advan

"(b) To furnish or publish any false notice or informat

to recruitment or employment;

"(c) To give any false notice, testimony, information o

act of misrepresentation for the purpose of securing
the Labor Code, or for the purpose of documenting h
which include the act of reprocessing workers throug
nonexistent work, work different from the actual ove
different employer whether registered or not with th

"(d) To include or attempt to induce a worker already

employment in order to offer him another unless the
liberate a worker from oppressive terms and conditio

"(e) To influence or attempt to influence any person

worker who has not applied for employment through
formed, joined or supported, or has contacted or is s
workers' organization;

"(f) To engage in the recruitment or placement of wo

public health or morality or to the dignity of the Repu

"(h) To fail to submit reports on the status of employ

remittance of foreign exchange earnings, separation
such other matters or information as may be require
and Employment;

Section 5, perteng taasa ini.

"(i) To substitute or alter to the prejudice of the work

approved and verified by the Department of Labor a
time of actual signing thereof by the parties up to an
RA 10022
expiration of the same without the approval of the D
Employment;
Section 5. Section 6 of Republic Act No. 8042, as
amended, is hereby
amended to read as follows:
"(j) For an officer or agent of a recruitment or placem
officer or member of the Board of any corporation en
engaged directly or indirectly in the management
"SEC. 6. Definition. - For purposes of this Act, illegalbe
recruitment

any act of canvassing, enlisting, contracting, transporting, utilizing, hiring, or

"(k) To withhold
or or
deny travel documents from appli
procuring workers and includes referring, contract services,
promising
departure
for monetary
or financial considerations, o
advertising for employment abroad, whether for profit
or not, when
undertaken
than
those
authorized
under
the Labor Code and its
by non-licensee or non-holder of authority contemplated under Article 13(f) of

regulations;

"(7) For a recruitment/manning agency or a foreign p

the overseas Filipino worker or deduct from his or he
"(l) Failure to actually deploy a contracted worker without
cost ofvalid
insurance
reasonfees,
as premium or other insurance r
determined by the Department of Labor and Employment;
under the compulsory worker's insurance coverage.

"(m) Failure to reimburse expenses incurred by the worker

"The persons
in connection
criminally
with
liable
his for the above offenses
documentation and processing for purposes of deployment,
accomplices
in cases
and where
accessories.
the
In case of juridical pers
deployment does not actually take place without theownership,
worker's fault.
control,
Illegal
management or direction of their
recruitment when committed by a syndicate or in large
responsible
scale shall
forbe
theconsidered
commission of the offense and th
an offense involving economic sabotage; and
employees/agents thereof shall be liable.

"(n) To allow a non-Filipino citizen to head or manage

"In
a the
licensed
filing of cases for illegal recruitment or any of
recruitment/manning agency.
this section, the Secretary of Labor and Employment
their duly authorized representatives, or any aggriev
"Illegal recruitment is deemed committed by a syndicate
corresponding
if carried out
criminal
by a action
group with the appropriate o
of three (3) or more persons conspiring or confederating
affidavits
with one
and another.
testimonies
It isof operatives or personnel
deemed committed in large scale if committed against
Labor
three
and(3)
Employment,
or more persons
POEA and other law enforce
individually or as a group.
witnessed the acts constituting the offense shall be s
accused.
"In addition to the acts enumerated above, it shall also be unlawful for any person
or entity to commit the following prohibited acts:
"In the prosecution of offenses punishable under this
prosecutors of the Department of Justice shall collab
"(1) Grant a loan to an overseas Filipino worker withrecruitment
interest exceeding
branch eight
of the POEA and, in certain cases
percent (8%) per annum, which will be used for payment
take the
of legal
lead and
in the
allowable
prosecution. The POEA lawyers w
placement fees and make the migrant worker issue,such
either
cases
personally
shall be
orentitled
throughto receive additional allo
a guarantor or accommodation party, postdated checks
determined
in relation
by to
the
the
POEA
saidAdministrator.
loan;
"The filing of an offense punishable under this Act sh
"(2) Impose a compulsory and exclusive arrangement
the
whereby
filing of an
cases
overseas
punishable under other existing la
Filipino worker is required to avail of a loan only from specifically designated
institutions, entities or persons;
Illegal recruitment is deemed committed by
a syndicate carried out by a group of three
"(3) Refuse to condone or renegotiate a loan incurred by an overseas Filipino
(3)
or
more
persons
conspiring
or
worker after the latter's employment contract has been prematurely terminated
confederating with one another. It is deemed
through no fault of his or her own;
committed in large scale if committed
against three (3) or more
persons
"(4) Impose a compulsory and exclusive arrangement whereby an overseas
individually or as a group. So that makes it
Filipino worker is required to undergo health examinations only from specifically
meriting life imprisonment.
designated medical clinics, institutions, entities or persons, except in the case of
a seafarer whose medical examination cost is shouldered
There by
arethe
aggravating circumstances:
principal/shipowner;
If the one committing it is a
government
official
"(5) Impose a compulsory and exclusive arrangement whereby
an overseas

Foreigner
Filipino worker is required to undergo training, seminar, instruction or schooling of
any kind only from specifically designated institutions, entities or persons, except
So, in fact there are 8, to fail to submit
for recommendatory trainings mandated by principals/shipowners where the
reports of the status of employment, which
latter shoulder the cost of such trainings;
consist of remittance of foreign exchange
earnings,
separation
from
the
job,
"(6) For a suspended recruitment/manning agency to engage in any kind of
departures and such other matters or
recruitment activity including the processing of pending workers' applications;
information as may be provided by the
and
Secretary of Labor.

That is illegal recruitment, tan-awa na ha

pagkataas sa listahan sa illegal recruitment.
It shall likewise include the following acts
whether committed by any person, whether
a non- licensing, non- holder licensing, or
holder of authority or license. So you can
commit. Before you can, you cannot commit
unfair liber practice once. You cannot commit
illegal once you have a license. Now, even
you have a license you can commit.
Q: Can SLE issue search warrants or w
arrants of
arrest?
A: No. Only a judge may issue search and a
rrest warrants. Art 38 (c) of the Labor Code
is unconstitutional inasmuch as it gives the
SLE the power to issue search or arrest war
rants. The labor authorities must go
through the judicial process.

Q: Is compromise agreement on mone

y claims
allowed?

Q: May the POEA, at any time termina

te or impose a ban on employment of
migrant workers?

A: Yes. Consistent with the policy encouragi

ng amicable settlement of labor disputes, S
ec. 10 of R.A. 8042 allows resolution by co
mpromise of cases filed with the NLRC.

A: Yes, in consultation with the DFA based

on the ff. grounds:
1. In pursuit of the National Interest or
2. When public welfare so requires. (Se
c. 4 R.A. 10022)

Q: When shall compromise agreement

s on money
claims be paid?
A: Any compromise/amicable settlement or
voluntary agreement on money claims incl
usive of damages shall be paid within 4 mo
nths from the approval of the settlement b
y the appropriate authority
Now, another addition is this so called legal
assistance fund. If you are OCW in a place
where there is pronounced presence of
Filipino Overseas Workers. Like Hongkong,
Taiwan, Jeddah all these places were the
reason why the Filipino Consulate or
Embassy must be open 24 hours a day,
every day so that any OCW can access the
official office. Again, if you are a resident
abroad, ___ you will report to the embassy,
and the embassy is obliged to procure a
local lawyer to assist you. Not just a lawyer
of the embassy. Who will answer for the
fees? The legal assistance funds that is being
set up. If there is an emergency, man-made
or natural.
Sa Chile 7.9 or 8.3 earthquake, tidal wave.
Nay Filipino? Naa juy Filipino didto, gusto na
siya mupauli wala siyay kwarta. At a time of
natural calamity, the Overseas Welfare Fund
must provide him with a money. These are
the provision
Now, if you are a minor, you discovered ____
in Tokyo. The law says mandatory
repatriation. If you are a minor, found in the
hospitals in abroad, mandatory repatriation.
It is the fund that must shoulder your
transportation.
Now, what is these places
employment is forbidden?

where

Q: What are the minimum conditions/

provisions of overseas employment co
ntracts?
A:
1. Guaranteed wages for regular hours
and overtime, not lower than the mi
nimum wage prescribed in all of the
ff:
a. The host country
b.Bilateral agreements or internation
al conventions ratified by the host c
ountry and the Philippines
The Philippines
2. Free transportation to and from the
worksite or offsetting benefit
3. Free food and accommodation or off
setting benefit
4. Just/authorized causes of terminatio
n of the contract or services of the w
orker
Note: An agreement that diminishes the
Ees pay and benefits as contained in a
POEAapproved contract is void, unless
such subsequent agreement is approve
d by the POEA.
Q: What is the rule on deployment
of OFWs?
A: The State shall allow the deployment
of OFWs
1. Only in countries where the rights of
Filipino migrant workers are protecte
d.
2. To vessels navigating the foreign sea
s or to installations located offshore
or on high seas whose owners/Ers ar
e compliant with international laws a
nd standards that protect the rights
of migrant workers.
3. To companies and contractors with i

nternational operations: Provided, Th

at they are compliant with standards
, conditions and requirements, as e
mbodied in the employment contrac
ts prescribed by the POEA and in acc
ordance
with
internationally
accepted standards.
(Sec. 3, R.A. 10022 amending R.A. 8
042)
Q: What are the guarantees of the rec
eiving country for the protection of th
e rights of OFWs?
A:
1. It has existing labor and social laws
protecting the rights of workers, incl
uding migrant workers;
2. It is a signatory to and/or a ratifier of
multilateral conventions, declaration
s or resolutions relating to the prote
ction of workers, including migrant w
orkers; and
3. It has concluded a bilateral agreeme
nt or arrangement with the governm
ent on the protection of the rights of
OFWs. . (Sec. 3, R.A. 10022 amendin
g R.A. 8042)
Provided, that the receiving country is t
aking positive, concrete measures to pr
otect the rights of migrant workers in fu
rtherance of any of the guarantees.
Note: In the absence of a clear showing
that any of the guarantees exists in the
country of destination of the migrant w
orkers, no permit for deployment shall b
e issued by the POEA
Does the POEA have the authority to ban
deployment? Because the other right that
____ against that right of the POEA is the
freedom to travel. Dont you have the
freedom to assume the risks and go to
Afghanistan or Iraq or where the ISIS is
operating- Syria. Mao nay mga best people
sa Syria, magbayad sila sa smuggler, unya
musakay sila sa barko. Makapalit sila ug
ticket para sa ilang train. Ang uban gikan sa
Greece, muadto sila ug Serbia, unya muadto
sila ug ____. Makita gani sila galakaw-lakaw,
pagkadugay ana, manakay na ug train.

Paunsa nimo ug sakay sa train kung wala

kay kwarta? Ohh Kadto bitawng tao, nga
guwang- guwang na na laki nga nag-karga
ug bata, unya gi-kodakan, nadiscover nga
he is one of the top football coaches in Syria.
So he is now hired by Spain to coach for their
team. Lupad gud iyang family, tua na didto.
Hired sya, one of the ____ coaches in Syria.
So these are the best people in Syria. Kung
ordinaryong tao pa na, dili ka makagawas sa
Syria. Unsaon man nimo? Mangita ka ug
ship, sakyan nimo. Kelangan naa kay
kwarta . kana silang tanan, they are the best
people. Mga doctors, engineers leaving
Syria. Naa pa gyud mga GPS. Naunsa man
pagkahibalo sa Greece kung natundan ba
nila? Dili na sila magpataka. Nagpadala na
sila ug coordinates. Kuyaw kayo sila kay naa
man silay GPS, mga expensive na mga
cellphones plus they have GPS. They can
read coordinates and then they send to the
police in Greece. Makadial pa sila ug 911 sa
Greece. Like the people who crossed the Rio
Grande in Mexico, so called wet packs. Mga
kuan na eh, educated, intelligent people.
Now, if you are prohibited and you go
there, mandatory expatriation. But then,
ngano mana makaabot mana sila sa
Afghanistan or sa Iraq? Primiro, legitimate
mana ilang kuan sa Jeddah, sa Kuwait or
miski asa lang dapita. Pag-abot nila sa
Kuwait, aduna nay mga recruiter didto. Muingon musokol ka mudrive ka ining truck
magkuha mo ug gasoline didto sa
Afghanistan. Magconvoy mo. Ah, Filipino pa
imo, basta mu-ingon ug convoy, mutry dayon
na siya. Eh di tua na sila sa Iraq. Tuan a sila
sa Afghanistan. Mao nang problema nga
lisod. They have to be ___ because that is
demanded by once you go____.
Q: What is the rule on repatriation?
A:
GR : The repatriation of the:
1. Worker and the transport of his pers
onal belongings shall be the primar
y responsibility of the agency which
recruited or deployed the worker ov
erseas.
2. Remains and transport of the person
al belongings of a deceased worker
and all costs attendant thereto sh

all be borne by the principal and/or t

he local agency.
XPNs:
1. If the termination of employment is
due solely to the fault of the worker,
the principal/ Er or agency shall not
be responsible for the repatriation of
the former and/or his belongings
2. In cases of war, epidemic, disaster o
r calamities, natural or manmade, a
nd other similar event, and where th
e principal or recruitment agency ca
nnot be identified, the Overseas Wor
kers Welfare Administration, in coord
ination with appropriate internationa
l agencies, shall take charge of the r
epatriation. (Sec.15, R.A. 8042)
Q: What is the rule on mandatory repa
triation of underage migrant workers?
A: Upon discovery or being informed of the
presence of migrant workers whose ages fa
ll below the minimum age requirement for
overseas deployment, the responsible offic
ers in the foreign service shall without dela
y repatriate said workers and advise the DF
A through the fastest means of communica
tion available of such discovery and other r
elevant information. The license of a recrui
tment/manning agency which recruited or
deployed an underage migrant worker shal
l be automatically revoked and shall be im
posed a fine
of not less than P500,000 but not more tha
n P1,000,000. (Sec. 9, R.A. 10022)
Remember the Supreme Court has upheld
the power of the POEA or the Secretary
of Labor to suspend the deployment in
so called critical cases. Even when there
is no mandate for natural calamities. What
are these? Places where there are so many
incidence of human trafficking, victimization.
Then the POEA suspends deployment. And
the ones who challenged that are the Money
Agencies to the Supreme Court. Why? The
Supreme Court said You the money agency,
you are not the real party in interest. Ahente
ramo. Kana gyung magfile ana, kanang OCW.
You are not the real party in interest, you
cannot
question
the
prohibition
for

deployment because it is not your right to

travel that is jeopardized. Questioning of the
discretion to compel.
So, there is in the question and answer,
touching on the implementation of the
compromise agreement. Because, the
compromise agreement of the money claims
are under RA 10022 can no longer openended. There is a definite day. In other
words, the compromise agreement has a
definite time span. I dont think this can
longer than 1 month. Because in the
discussion of the period in Congress, there
were so many testimonies as to the victories
of the ___. Daog na sila, nacompromise na
lang. ni-ingon na lang na ang recruitment
agency angkuha na ug kwarta, pa___ na lang
ug kwarta. Theres now a timeframe and it
must be complied.
So alright, we are ready for the examination.
Employment of the non- resident aliens
Foreigners.
Remember,
non-resident
engaged, if you have a visa in the Philippines
and you are a permanent resident, you do
not need a work permit. The work permit is
separate and distinct from the working visa.
That was contention that was decided in the
case Cone v. Secretary of Labor.
Q: What is required in the employmen
t of nonresident aliens?
A: Any alien seeking admission to the Phil.
for employment purposes and any domesti
c or foreign employer (Er) who desires to e
ngage an alien for employment in the Phili
ppines:
1. Shall obtain an employment permit f
rom the DOLE
2. The permit may be issued to a nonre
sident alien or to the applicant Er aft
er a determination of the non
availability of a person in the Phil. w
ho is competent, able and willing at
the time of application to perform th
e services for which the alien is desir
ed
3. For an enterprise registered in prefer
red areas of investments, said permi
t may be issued upon recommendati

on of the govt agency charged with

the supervision of said registered en
terprise
Who is Cone? He is a coach. When he first
came here, 20 years ago the Filipino
Basketball Coaches Association opposed his
coming in. And then, they brought out the
fact the he dont have a working permit. His
defense was that he has a working visa. Mr.
Uy Teng su of Alaska procured a working visa
for him. Therefore, he can work. The
supreme Courts said there is a difference.
The working visa is your record. But you
need to have a permit to work and it is
employers ___. You cannot transfer from one
employer to another. Your work permit is as
good as the employer written there, specify
there. You cannot transfer. Tim Cone is the
wittiest coach in the basketball.

certify for that? This is equivalent with the

US labor certification visa. They put a ___
system.
He must train two Filipinos that will ___. But
there are so many of them. I dont think it
can be enforced.
Muanha lng ka
(Uyanguren) oh.

dira

sa

ARTICLE 41. PROHIBITION

TRANSFER OF EMPLOYMENT

Magsaysay
AGAINST

Q: Who are required to obtain an empl

oyment permit?

A:
GR : Only nonresident aliens
XPNS:
1. Diplomatic services and foreign gov
t officials
2.
Officers and staff of intl organizatio
GMC and Cone v. Hon Torres (Secretary)
ns and their legitimate spouses
196 SCRA 215 [G.R No. 9366, April 22, 1991]
3. Members of governing board who ha
Feliciano, J:
s voting rights only
4. Those exempted by special laws
The DOLE issued an alien employment permit
5. Owners and representatives of foreig
as sports consultant and assistant coach for
n principals who interview Filipino ap
Later, the Board of Special Inquiry of the Commission
plicants for employment abroad
eportation approved Cones application for
6. Aliens whose purpose is to teach, pr
m temporary visitor to prearranged employee.
esent and/or conduct research studi
A month later, GMC requested that it be allowed
es Resident aliens. (D.O. 7506, May
fledged coach.
31, 2006)
The Dole Regional Director granted the request.
The Basketball Association of the Phils. appealed
Q:
May the non
t to the SLE who cancelled Cones employment
resident alien transfer employment af
o show that there is no person in the Philippines
ter issuance of the employment permi
ng to do the services nor that the hiring of
t?
nal interest.
A: After the issuance of an employment pe
Q: Is the act of SLE valid?
rmit, the alien shall not transfer to another
job or change his employer without prior a
A: Yes. GMCs claim that hiring of a foreign coachpproval of the Secretary of Labor.
egal basis. Under Ar. 40 of the LC, an Er seeking
first obtain an employment permit from the DOLE.
Q: What is required for immigrants an
m to employ is limited by the statutory requirement
d resident aliens?
A: An Alien Employment Registration Certifi
cate
So, now, in order to get this working permit,
there must be a certification that no Filipino
is available for this particular job. How do

Q: What is the duration of the employ

ment permit?
A:

GR : Minimum of 1 year
XPN:
Unless revoked and subject to renewal
Q: May aliens be employed in entities
engaged in nationalized activities?
A:
GR : No.
XPNs :
1. Sec. of Justice specifically authorizes
the employment of technical person
nel
2. Aliens are elected members of the b
oard of directors or governing body
of corporations or associations or
3. Enterprises registered under the Om
nibus Investment Code in case of tec
hnical, supervisory or advisory positi
ons, but for a limited period

Q: How will POEA regulate private

sector participation in the recruitment
and overseas placement of workers?
A: By setting up a licensing and
registration system. (RA 10022, Sec. 14)

So our exam will be up to Article 42.

Our last exam is on termination, book six.