ARPON, Marco O.

Labor Standards

ART. 42. SUBMISSION OF LIST.

Any employer employing non-resident

foreign nationals 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.

For the discussion.

This article tackles the assessment of the formal and substantial requisites before a non-resident alien
may be gainfully employed in the Philippines.
The first sentence enumerates the information needed by the Secretary of Labor from those aliens
applying for employment.
1.Their names- it provides the basic identification for such alien.
2.Citizenship in order to determine if they are qualified to visa waiver program. In principle,
nationals of countries which maintain diplomatic relations with the Philippines and whose nationals
are not classified as restricted nationals by the DFA are allowed to enter the Philippines without a
visa.
3.Foreign and local addresses- to determine whether they are non-residents or immigrants and
resident aliens.
If they are non-resident alien they must secure employment permit
If they are immigrants and residents what is required is an Alien Employment Registration Certificate.
4. Nature of employment-
As a general rule an employer must ensure that a foreign national has the proper permits to work in
the Philippines, namely a work permit and a working visa.
The Alien Employment Permit is not an exclusive authority for a foreign national to work in the
Philippines. It is just one of the requirements in the issuance of a work visa to legally engage in
gainful employment in the country. The foreign national must obtain the required Special Temporary
Permit (STP) from the Professional Regulation Commission (PRC) in case the employment involves
practice of profession and Authority to Employ Alien from the Department of Justice (DOJ) where the
employment is in a nationalized or partially nationalized industry.
5. Status of stay in the country. whether they are merely tourist or seeking employment in the
Philippines.
This is also important in determining who are exempt from AEP.
Who are exempt from the AEP requirement?
1. members of the diplomatic services;
2. officers and staff of international organizations of which the Philippines is a member, as well as
their legitimate spouses desiring to work;
3. foreign nationals with board seats in Philippine corporations;
4. those exempt by special law;
5. owners or representatives of foreign companies accredited with the POEA that recruit Filipinos
for work abroad;
6. teaching or research stints or exchanges under reciprocal agreements between universities or
governments; and
7. resident foreign nationals or temporary/probationary resident visa holders.
For further discussions on the Procedure in the Processing of Applications for AEP can be found in
Sec. 4 of Department Order No. 146-15 otherwise known as the Revised Rules for the Issuance of
Employment Permits to Foreign Nationals.

For the Second Sentence of Art. 42

The Secretary of Labor shall
then determine if they are entitled to an employment permit.

The labor code provides that any employer seeking employment of an alien must first obtain an
employment permit from the Department of Labor .This only means that the management
prerogative given to employers such as the right to hire labor is not absolute. The employers right to
choose whom to employ is limited by the statutory requirement of an employment permit which is
exercised by the Secretary of Labor.

For my case, I have

De los Santos v. NLRC 372 scra 723 (cites Guarin v. NLRC)

Despite the acceptance of the apology made by the janitor and Petitioner Delos Santos to the
management of CAMARA STEEL,the latter still filed a criminal complaint for qualified theft against the
former but this was subsequently dismissed. However, upon request of Top-Flite, alleged manpower
agency of De los Santos, CAMARA STEEL terminated his services on the ground of loss of confidence.
Aggrieved by his illegal termination, Delos SANTOS sought recourse with the Labor Arbiter which
ordered the his reinstatement in Camara Steel but this was reversed by the NLRC on the ground that
petitioner had failed to prove that he was employed with Camara and Top-flite despite the evidence
of his daily time record and various letters allowing and disallowing his overtime.

Petitioner De los Santos also advances the view that Top-Flite, far from being his employer, was in
fact a "labor-only" contractor as borne out by a contract whereby Top-Flite undertook to supply
CAMARA STEEL workers with "warm bodies" for its factory needs and edifices. All things considered,
he is of the firm belief that for all legal intents and purposes, he was an employee a regular one at
that - of CAMARA STEEL.

In its comment, private respondent CAMARA STEEL avers that far from being its employee, De los
Santos was merely a project employee of Top-Flite who was assigned as janitor in private
respondent company.

Issues: who was the employer of Petitioner Delos Santos?

Was there illegal dismissal?

1.Camara Steel. Etched in an unending stream of cases are the 4) standards in

determining the existence of an employer-employee relationship, namely: (a) the
manner of selection and engagement of the putative employee; (b) the mode of payment
of wages; (c) the presence or absence of power of dismisssal; and, (d) the presence or
absence of control of the putative employee's conduct. Most determinative among these
factors is the so-called "control test."

Daily time records which were signed by company officers prove that the company
exercised the power of control and supervision over its employees.

As shown by the evidence on record, De los Santos was hired by CAMARA STEEL after undergoing an
interview with one Carlos Suizo, its timekeeper who worked under the direct supervision of one
Renato Pacion, a supervisor of CAMARA STEEL. These allegations are contained in the affidavit
executed by De los Santos and were never disputed by CAMARA STEEL. Also remaining
uncontroverted are the pieces of documentary evidence adduced by De los Santos consisting of daily
time records marked Annexes "F" and "G" which, although bearing the heading and logo of Top-Flite,
were signed by officers of respondent CAMARA STEEL, and Annexes "H" and "I" with the heading and
logo of CAMARA STEEL.
Records would attest that even the power to dismiss was vested with CAMARA STEEL which admitted
in its Reply that "Top-Flite requested CAMARA STEEL to terminate his employment after he was
caught by the security guard committing theft."A cursory reading of the above declaration will confirm
the fact that the dismissal of De los Santos could only be effected by CAMARA STEEL and not by Top-
Flite as the latter could only "request" for De los Santos' dismissal.

2. Yes, there was.

It must be stressed that loss of confidence as a just cause for the termination of employment is
based on the premise that the employee holds a position of trust and confidence, as when he is
entrusted with responsibility involving delicate matters, and the task of a janitor does not fall
squarely under this category.

A person cannot dictate, by the mere expedient of a unilateral declaration in a contract, the character
of its business, i.e., whether as "labor-only" contractor, or job contractor, it being crucial that its
character be measured in terms of and determined by the criteria set by statute. That is-- a "labor-
only" contractor, prohibited under this Rule, is an arrangement where the contractor or subcontractor
merely recruits, supplies or places workers to perform a job, work or service for a principal and the
following elements are present: (a) The contractor or subcontractor does not have substantial
capital or investment to actually perform the job, work or service under its own account or
responsibility; and, (b) The employees recruited, supplied or placed by such contractor or
subcontractor are performing activities which are directly related to the main business of the
principal.

Applying the foregoing provisions, the Court finds Top-Flite to be a "labor-only" contractor, a mere
supplier of labor to CAMARA STEEL, the real employer. Other than its open declaration that it is an
independent contractor, no substantial evidence was adduced by Top-Flite to back up its claim. Its
revelation that it provided a sweeper to petitioner would not suffice to convince this Court that it
possesses adequate capitalization to undertake an independent business.[12] Neither will the
submission prosper that De los Santos did not perform a task directly related to the principal
business of respondent CAMARA STELL. As early as in Guarin v. NLRC[13] we ruled that "the jobs
assigned to the petitioners as mechanics, janitors, gardeners, firemen and grass cutters were directly
related to the business of Novelty as a garment manufacturer," reasoning that "for the work of
gardeners in maintaining clean and well-kept grounds around the factory, mechanics to keep the
machines functioning properly, and firemen to look out for fires, are directly related to the daily
operations of a garment factory."
Nature of Employment

Art. 280. Regular and casual employment. The provisions of written agreement to the contrary
notwithstanding and regardless of the oral agreement of the parties, an employment shall be deemed
to be regular where the employee has been engaged to perform activities which are usually
necessary or desirable in the usual business or trade of the employer, except where the employment
has been fixed for a specific project or undertaking the completion or termination of which has been
determined at the time of the engagement of the employee or where the work or service to be
performed is seasonal in nature and the employment is for the duration of the season.
An employment shall be deemed to be casual if it is not covered by the preceding paragraph:
Provided, That any employee who has rendered at least one year of service, whether such service is
continuous or broken, shall be considered a regular employee with respect to the activity in which he
is employed and his employment shall continue while such activity exists.
Art. 281. Probationary employment. Probationary employment shall not exceed six (6) months
from the date the employee started working, unless it is covered by an apprenticeship agreement
stipulating a longer period. The services of an employee who has been engaged on a probationary
basis may be terminated for a just cause or when he fails to qualify as a regular employee in
accordance with reasonable standards made known by the employer to the employee at the time of
his engagement. An employee who is allowed to work after a probationary period shall be considered
a regular employee.

Types of Employment in the Philippines

Employment in the Philippines Overview
Depending on the company and/or industry, there are various types or categories of employment in
the Philippines. This essentially comes down to how the employer wants the employees employment
to be structured, which should be bound by a contract signed by both the employer and employee.

Project Employment
Where the employment has been fixed for a specific project or undertaking, the completion or
termination of which has been determined at the time of the engagement of the employee in the
Philippines.

Seasonal Employment
Where the work or services to be performed is seasonal in nature and the employment is for the
duration of the season in the Philippines.

Casual Employment
Where the employment is not covered by the foregoing, provided that an employee who has
rendered at least one year of service, whether continuous or broken, shall be considered regular with
respect to the activity in which he or she is employed and his or her employment shall continue while
the activity exists.

Term or Fixed Employment

Another category of employment in the Philippines recognized in jurisprudence is term or fixed-
period employment. This is based on Art. 1193 of the CC, which states that obligations with a
resolutory period take effect at once, but terminate upon arrival of the day certain understood to be
a day that must necessarily come. The decisive determinant in term employment should not be the
activities that the employee is called upon to perform, but the day certain agreed upon by the parties
for the commencement and termination of the employment relationship. Stipulations in employment
contracts providing for term employment or fixed-period employment are valid when the period
has been agreed upon knowingly and voluntarily by the parties, without force, duress or improper
pressure exerted on the employee, and when such stipulations were not designed to circumvent the
laws on security of tenure.

Probationary Employment
Probationary employment is not necessarily a category of employment in the Philippines. It pertains
to a period of time in which the employee is being observed and evaluated to determine whether or
not he is qualified for permanent employment. Under Art. 281 of the LC, probationary employment
shall not exceed six months. An employee who is allowed to work after a probationary period shall be
considered a regular employee. A probationary employee is, for a given period of time, under
observation and evaluation to determine whether or not he or she is qualified for permanent
employment. During the probationary period, the employer is given the opportunity to observe the
skills, competence, and attitude of the employee while the latter seeks to prove to the employer that
he or she has the qualifications to meet the reasonable standards for permanent employment.

In any business venture, there are two resources which must be considered: capital and labor. Every
businessman knows the saying to make money, you have to spend money. Every business entails a
bit of risk-taking. The ability and the willingness to take certain calculated risks are almost always
essential for every business venture to succeed. Thus, wise capital management, foresight, and ability
to take calculated risks are among the qualifications of all successful businessmen and entrepreneurs.
The other side of the coin is labor. Labor is another key component of a successful business venture.
While managing your financial investments in a business is quintessential, so is investing in its human
resources, hence the term labor management.
No less than our Supreme Court has declared that [e]xcept as limited by special laws, an employer is
free to regulate, according to his own discretion and judgment, all aspects of employment, including
hiring, work assignments, working methods, time, place and manner or work, tools to be used,
processes to be followed, supervision of workers, working regulations, transfer of employees, work
supervision, layoff of workers and the discipline, dismissal and recall of workers. This classic phrase
is what we know now as the management prerogative. However, exercise of the management
prerogative does not mean that employers are given carte blanche over their employees. Emphasis
must be laid on those six (6) initiatory words of the cited ruling of the high court [e]xcept as limited
by special laws. The foregoing provision refers to the Labor Code of the Philippines and other laws
enacted by Congress which deal with the rights of employees and limit exercise of the management
prerogative.
The exercise of management prerogatives such as discipline, layoff of workers, or dismissal of an
employee is dependent on the type or nature of employment. A regular employee is an employee
who has been engaged to perform activities which are usually necessary or desirable in the usual
business of the employer. An employee who is by law deemed a regular employee can only be fired
or terminated based on grounds allowed by law (authorized causes) such as redundancy,
retrenchment, closure or cessation of operations, or by enumerated grounds (just causes) such as
serious misconduct, willful disobedience, gross and habitual neglect of duty, commission of a crime
against the employer or the latters family and other analogous causes. It must be noted that these
grounds are exclusive. A termination based on a ground not defined above may be considered as
illegal dismissal.
Furthermore, in case the cause of termination is for a just cause, the employer must observe the
twin notice and hearing rule, whereby prior to termination, the employer must have given 1) a
notice requiring the employee to explain why he or she should not be terminated, 2) a hearing where
the employee is allowed to examine the evidences presented against him or her and adduce
evidences in support of his or her defenses, and 3) a notice informing the employee of the latters
termination, stating the reasons for termination based on the evidences presented.
Anything short of the foregoing is also tantamount to illegal dismissal and may render the employer
liable for damages in addition to payment backwages and separation pay.
Finally, in case the cause of the termination is for an authorized cause, the corresponding separation
pay must be given and prior timely notice must be conveyed, otherwise, the employer also stands to
be liable.
It must also be noted that fixed-term, contract, and project employees are by law considered regular
employees for the duration of their employment or contract and can only be removed for grounds
enumerated above.
On the other hand, probationary employees, for example, may be terminated without complying with
the twin notice and hearing rule. It is sufficient that the employee be served a notice that he or she
did not meet the standards of employment to qualify the employee for regularization. For this reason,
it is called a trial-basis employment because the employer is allowed to see for himself whether the
employee is suited for employment in the business. Thus, employees who are not considered regular
employees, such as probationary and casual employees, may be terminated based on other grounds
not provided by law. The only requirement is that the termination is done in good faith.
NOTES
Department Order No. 146-15 series of 2015
requires all foreign nationals who intend to
engage in gainful employment in the Philippines to apply for Alien Employment
Permit (AEP). But some foreigners are exempt from the AEP requirement, such as

members of the diplomatic service,

officers and staff of international organizations, and
elected members of a governing board who do not occupy
any other position.