G.R. Nos. 178034 & 178117 G R. Nos.
186984-85 A issued a Resolution18 granting the respondents’
https://lawphil.net/judjuris/juri2013/oct2013/gr_178
034_2013.html
ANDREW JAMES MCBURNIE, Petitioner,
vs.
EULALIO GANZON
McBurnie, an Australian national, instituted a
complaint for illegal dismissal and other monetary
claims against the respondents
he signed a five-year employment agreement5 with
the company EGI as an Executive Vice-President
who shall oversee the management of the
company’s hotels and resorts within the Philippines
He performed work for the company until sometime
in November 1999, when he figured in an accident
that compelled him to go back to Australia while
recuperating from his injuries
While in Australia, he was informed by respondent
Ganzon that his services were no longer needed
because their intended project would no longer push
through.
The respondents opposed the complaint, contending
that their agreement with McBurnie was to jointly
invest in and establish a company for the
management of hotels
They did not intend to create an employer-employee
relationship, and the execution of the employment
contract that was being invoked by McBurnie was
solely for the purpose of allowing McBurnie to
obtain an alien work permit in the Philippines. At
the time McBurnie left for Australia for his medical
treatment, he had not yet obtained a work permit.
LA declared McBurnie as having been illegally
dismissed from employment
the NLRC denied11 the motion to reduce bond,
explaining that "in cases involving monetary award,
an employer seeking to appeal the [LA’s] decision
to the Commission is unconditionally required by
Art. 223, Labor Code to post bond in the amount
equivalent to the monetary award
application for a writ of preliminary injunction. It
directed the NLRC, McBurnie, and all persons
acting for and under their authority to refrain from
causing the execution and enforcement of the LA’s
decision in favor of McBurnie
McBurnie filed a Motion for Leave (1) To File
Supplemental Motion for Reconsideration and (2)
To Admit the Attached Supplemental Motion for
Reconsideration
the CA ruled on the merits of CA-G.R. SP No.
90845 and CA-G.R. SP No. 95916 and rendered its
Decision26 dated October 27, 2008, allowing the
respondents’ motion to reduce appeal bond and
directing the NLRC to give due course to their
appeal.
Art. 40. Employment permit for 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.
In WPP Marketing Communications, Inc. v.
Galera,117 we held that a foreign national’s failure
to seek an employment permit prior to employment
poses a serious problem in seeking relief from the
Court.118 Thus, although the respondent therein
appeared to have been illegally dismissed from
employment, we explained:
This is Galera’s dilemma: Galera worked in the
Philippines without proper work permit but now
wants to claim employee’s benefits under Philippine
labor laws.
The law and the rules are consistent in stating that
the employment permit must be acquired prior to
employment. The Labor Code states: "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."
Section 4, Rule XIV, Book I of the Implementing
Rules and Regulations provides:
Page 1 of 7
"Employment permit required for entry. – No alien
seeking employment, whether as a resident or non-
resident, may enter the Philippines without first
securing an employment permit from the Ministry.
If an alien enters the country under a non-working
visa and wishes to be employed thereafter, he may
be allowed to be employed upon presentation of a
duly approved employment permit."
Galera cannot come to this Court with unclean
hands. To grant Galera’s prayer is to sanction the
violation of the Philippine labor laws requiring
aliens to secure work permits before their
employment. We hold that the status quo must
prevail in the present case and we leave the parties
where they are
All these facts and circumstances prove that
McBurnie was never an employee of Eulalio
Ganzon or the respondent companies, but a
potential investor in a project with a group
including Eulalio Ganzon and Martinez but said
project did not take off because of lack of funds.
There is no question that respondents assigned him
Condo Unit # 812 of the MCS, but this was not free
of charge. If it were true that it is part of the
compensation package as employee, then McBurnie
would not be obligated to pay anything, but clearly,
he admitted in his letter that he had to pay all the
expenses incurred in the apartment.
he respondents have sufficiently explained that the
note refers to the letter124 dated May 11, 1999
which embodied certain conditions for the
employment’s effectivity. As we have previously
explained, however, the said conditions, particularly
on the successful completion of the project
financing for the hotel project in Baguio City and
McBurnie’s acquisition of an Alien Employment
Permit, failed to materialize. Such defense of the
respondents, which was duly considered by the
NLRC in its Decision dated November 17, 2009,
was not sufficiently rebutted by McBurnie.
besides the employment agreement, McBurnie
failed to present other competent evidence to prove
his claim of an employer-employee relationship.
Given the parties’ conflicting claims on their true
intention in executing the agreement, it was
necessary to resort to the established criteria for the
determination of an employer-employee
relationship, namely: (1) the selection and
engagement of the employee; (2) the payment of
wages; (3) the power of dismissal; and (4) the
power to control the employee’s conduct.
the onus probandi falls on the claimant to establish
or substantiate the claim by the requisite quantum of
evidence. Whoever claims entitlement to the
benefits provided by law should establish his or her
right thereto.
In the absence of an employer-employee
relationship between McBurnie and the
respondents, McBurnie could not successfully claim
that he was dismissed, much less illegally
dismissed, by the latter. Even granting that there
was such an employer-employee relationship, the
records are barren of any document showing that its
termination was by the respondents’ dismissal of
McBurnie.
It bears mentioning that although the Court resolves
to grant the respondents’ motion for
reconsideration, the other grounds raised in the
motion, especially as they pertain to insinuations on
irregularities in the Court, deserve no merit for
being founded on baseless conclusions.
Furthermore, the Court finds it unnecessary to
discuss the other grounds that are raised in the
motion, considering the grounds that already justify
the dismissal of McBurnie’s complaint.
G.R. No. 128845
https://www.lawphil.net/judjuris/juri2000/jun2000/g
r_128845_2000.html
INTERNATIONAL SCHOOL ALLIANCE OF
EDUCATORS (ISAE), petitioner,
vs.
HON. LEONARDO A. QUISUMBING
Receiving salaries less than their counterparts hired
abroad, the local-hires of private respondent School,
mostly Filipinos, cry discrimination
We agree. That the local-hires are paid more than
their colleagues in other schools is, of course,
beside the point. The point is that employees should
be given equal pay for work of equal value. That is
a principle long honored in this jurisdiction. That is
a principle that rests on fundamental notions of
Page 2 of 7
justice. That is the principle we uphold
today.1âwphi1.nêt
International School, Inc. (the School, for short),
pursuant to Presidential Decree 732, is a domestic
educational institution established primarily for
dependents of foreign diplomatic personnel and
other temporary residents.1 To enable the School to
continue carrying out its educational program and
improve its standard of instruction, Section 2(c) of
the same decree authorizes the School to employ its
own teaching and management personnel selected
by it either locally or abroad, from Philippine or
other nationalities, such personnel being exempt
from otherwise applicable laws and regulations
attending their employment, except laws that have
been or will be enacted for the protection of
employees.
the School hires both foreign and local teachers as
members of its faculty, classifying the same into
two: (1) foreign-hires and (2) local-hires
The School employs four tests to determine whether
a faculty member should be classified as a foreign-
hire or a local hire:
a. What is one's domicile?
b. Where is one's home economy?
c. To which country does one owe economic
allegiance?
d. Was the individual hired abroad specifically to
work in the School and was the School responsible
for bringing that individual to the Philippines?
the faculty member is classified as a local hire;
otherwise, he or she is deemed a foreign-hire.
The School grants foreign-hires certain benefits not
accorded local-hires.1avvphi1 These include
housing, transportation, shipping costs, taxes, and
home leave travel allowance. Foreign-hires are also
paid a salary rate twenty-five percent (25%) more
than local-hires.
The School justifies the difference on two
"significant economic disadvantages" foreign-hires
have to endure, namely: (a) the "dislocation factor"
and (b) limited tenure.
The School explains:
A foreign-hire would necessarily have to uproot
himself from his home country, leave his family and
friends, and take the risk of deviating from a
promising career path — all for the purpose of
pursuing his profession as an educator, but this time
in a foreign land.
The new foreign hire is faced with economic
realities: decent abode for oneself and/or for one's
family, effective means of transportation, allowance
for the education of one's children, adequate
insurance against illness and death, and of course
the primary benefit of a basic salary/retirement
compensation.
Because of a limited tenure, the foreign hire is
confronted again with the same economic reality
after his term: that he will eventually and inevitably
return to his home country where he will have to
confront the uncertainty of obtaining suitable
employment after along period in a foreign land.
When negotiations for a new collective bargaining
agreement were held on June 1995, petitioner
International School Alliance of Educators, "a
legitimate labor union and the collective bargaining
representative of all faculty members"4 of the
School, contested the difference in salary rates
between foreign and local-hires
whether foreign-hires should be included in the
appropriate bargaining unit
, petitioner filed a notice of strike
he failure of the National Conciliation and
Mediation Board to bring the parties to a
compromise prompted the Department of Labor and
Employment (DOLE) to assume jurisdiction over
the dispute
the DOLE Acting Secretary, Crescenciano B.
Trajano, issued an Order resolving the parity and
representation issues in favor of the School.
Page 3 of 7
Then DOLE Secretary Leonardo A. Quisumbing
subsequently denied petitioner's motion for
reconsideration in an Order dated March 19, 1997.
Petitioner now seeks relief in this Court.
the point-of-hire classification employed by the
School is discriminatory to Filipinos and that the
grant of higher salaries to foreign-hires constitutes
racial discrimination.
The School disputes these claims and gives a
breakdown of its faculty members, numbering 38 in
all, with nationalities other than Filipino, who have
been hired locally and classified as local hires.5 The
Acting Secretary of Labor found that these non-
Filipino local-hires received the same benefits as the
Filipino local-hires.
The Acting secretary upheld the point-of-hire
classification for the distinction in salary rates:
The Principle "equal pay for equal work" does not
find applications in the present case. The
international character of the School requires the
hiring of foreign personnel to deal with different
nationalities and different cultures, among the
student population.
We also take cognizance of the existence of a
system of salaries and benefits accorded to foreign
hired personnel which system is universally
recognized. We agree that certain amenities have to
be provided to these people in order to entice them
to render their services in the Philippines and in the
process remain competitive in the international
market.
oreign hires have limited contract of employment
unlike the local hires who enjoy security of tenure.
To apply parity therefore, in wages and other
benefits would also require parity in other terms and
conditions of employment which include the
employment which include the employment
contract.
That public policy abhors inequality and
discrimination is beyond contention. Our
Constitution and laws reflect the policy against
these evils. The Constitution8 in the Article on
Social Justice and Human Rights exhorts Congress
to "give highest priority to the enactment of
measures that protect and enhance the right of all
people to human dignity, reduce social, economic,
and political inequalities." The very broad Article
19 of the Civil Code requires every person, "in the
exercise of his rights and in the performance of his
duties, [to] act with justice, give everyone his due,
and observe honesty and good faith.
In the workplace, where the relations between
capital and labor are often skewed in favor of
capital, inequality and discrimination by the
employer are all the more reprehensible.
The Constitution 17 specifically provides that labor
is entitled to "humane conditions of work." These
conditions are not restricted to the physical
workplace — the factory, the office or the field —
but include as well the manner by which employers
treat their employees
the State to promote "equality of employment
opportunities for all." Similarly, the Labor Code 19
provides that the State shall "ensure equal work
opportunities regardless of sex, race or creed." It
would be an affront to both the spirit and letter of
these provisions if the State, in spite of its
primordial obligation to promote and ensure equal
employment opportunities, closes its eyes to
unequal and discriminatory terms and conditions of
employment.
Discrimination, particularly in terms of wages, is
frowned upon by the Labor Code. Article 135, for
example, prohibits and penalizes 21 the payment of
lesser compensation to a female employee as
against a male employee for work of equal value.
Article 248 declares it an unfair labor practice for an
employer to discriminate in regard to wages in order
to encourage or discourage membership in any labor
organization.
he long honored legal truism of "equal pay for equal
work." Persons who work with substantially equal
qualifications, skill, effort and responsibility, under
similar conditions, should be paid similar salaries.
22 This rule applies to the School, its "international
character" notwithstanding.
If an employer accords employees the same position
and rank, the presumption is that these employees
Page 4 of 7
perform equal work. This presumption is borne by
logic and human experience. If the employer pays
one employee less than the rest, it is not for that
employee to explain why he receives less or why
the others receive more. That would be adding
insult to injury. The employer has discriminated
against that employee; it is for the employer to
explain why the employee is treated unfairly.
The employer in this case has failed to discharge
this burden. There is no evidence here that foreign-
hires perform 25% more efficiently or effectively
than the local-hires. Both groups have similar
functions and responsibilities, which they perform
under similar working conditions.
The School cannot invoke the need to entice
foreign-hires to leave their domicile to rationalize
the distinction in salary rates without violating the
principle of equal work for equal pay.
the need of the School to attract foreign-hires,
salaries should not be used as an enticement to the
prejudice of local-hires
The local-hires perform the same services as
foreign-hires and they ought to be paid the same
salaries as the latter. For the same reason, the
"dislocation factor" and the foreign-hires' limited
tenure also cannot serve as valid bases for the
distinction in salary rates. The dislocation factor and
limited tenure affecting foreign-hires are adequately
compensated by certain benefits accorded them
which are not enjoyed by local-hires, such as
housing, transportation, shipping costs, taxes and
home leave travel allowances
The State, therefore, has the right and duty to
regulate the relations between labor and capital. 27
These relations are not merely contractual but are so
impressed with public interest that labor contracts,
collective bargaining agreements included, must
yield to the common good
we find the point-of-hire classification employed by
respondent School to justify the distinction in the
salary rates of foreign-hires and local hires to be an
invalid classification. There is no reasonable
distinction between the services rendered by
foreign-hires and local-hires.
We agree, however, that foreign-hires do not belong
to the same bargaining unit as the local-hires
A bargaining unit is "a group of employees of a
given employer, comprised of all or less than all of
the entire body of employees, consistent with equity
to the employer, indicate to be the best suited to
serve the reciprocal rights and duties of the parties
under the collective bargaining provisions of the
law."
(1) the will of the employees (Globe Doctrine); (2)
affinity and unity of the employees' interest, such as
substantial similarity of work and duties, or
similarity of compensation and working conditions
(Substantial Mutual Interests Rule); (3) prior
collective bargaining history; and (4) similarity of
employment status
whether or not it is fundamentally the combination
which will best assure to all employees the exercise
of their collective bargaining rights.
It does not appear that foreign-hires have indicated
their intention to be grouped together with local-
hires for purposes of collective bargaining. The
collective bargaining history in the School also
shows that these groups were always treated
separately.
local-hires enjoy security of tenure. Although
foreign-hires perform similar functions under the
same working conditions as the local-hires, foreign-
hires are accorded certain benefits not granted to
local-hires. These benefits, such as housing,
transportation, shipping costs, taxes, and home
leave travel allowance, are reasonably related to
their status as foreign-hires, and justify the
exclusion of the former from the latter. To include
foreign-hires in a bargaining unit with local-hires
would not assure either group the exercise of their
respective collective bargaining rights.
G.R. No. 93666
https://lawphil.net/judjuris/juri1991/apr1991/gr_936
66_1991.html
GENERAL MILLING CORPORATION and
EARL TIMOTHY CONE, petitioners,
vs.
HON. RUBEN D. TORRES
Page 5 of 7
National Capital Region of the Department of Labor
and Employment issued Alien Employment Permit
No. M-0689-3-535 in favor of petitioner Earl
Timothy Cone, a United States citizen, as sports
consultant and assistant coach for petitioner General
Milling Corporation ("GMC").
petitioners GMC and Cone entered into a contract
of employment whereby the latter undertook to
coach GMC's basketball team.
the Board of Special Inquiry of the Commission on
Immigration and Deportation approved petitioner
Cone's application for a change of admission status
from temporary visitor to pre-arranged employee.
GMC requested renewal of petitioner Cone's alien
employment permit. GMC also requested that it be
allowed to employ Cone as full-fledged coach.
The DOLE Regional Director, Luna Piezas, granted
the request
Alien Employment Permit No. M-02903-881, valid
until 25 December 1990, was issued.
Basketball Coaches Association of the Philippines
("BCAP") appealed the issuance of said alien
employment permit to the respondent Secretary of
Labor
who, on 23 April 1990, issued a decision ordering
cancellation of petitioner Cone's employment
permit on the ground that there was no showing that
there is no person in the Philippines who is
competent, able and willing to perform the services
required nor that the hiring of petitioner Cone
would redound to the national interest.
er GMC filed a Motion for Reconsideration and two
(2) Supplemental Motions for Reconsideration but
said Motions were denied by Acting Secretary of
Labor
Petitioner GMC's claim that hiring of a foreign
coach is an employer's prerogative has no legal
basis at all. Under Article 40 of the Labor Code, an
employer seeking employment of an alien must first
obtain an employment permit from the Department
of Labor. Petitioner GMC's right to choose whom to
employ is, of course, limited by the statutory
requirement of an alien employment permit.
Petitioners will not find solace in the equal
protection clause of the Constitution. As pointed out
by the Solicitor-General, no comparison can be
made between petitioner Cone and Mr. Norman
Black as the latter is "a long time resident of the
country," and thus, not subject to the provisions of
Article 40 of the Labor Code which apply only to
"non-resident aliens." In any case, the term "non-
resident alien" and its obverse "resident alien," here
must be given their technical connotation under our
law on immigration.
the Department of Labor is the agency vested with
jurisdiction to determine the question of availability
of local workers. The constitutional validity of legal
provisions granting such jurisdiction and authority
and requiring proof of non-availability of local
nationals able to carry out the duties of the position
involved, cannot be seriously questioned.
Petitioners apparently suggest that the Secretary of
Labor is not authorized to take into account the
question of whether or not employment of an alien
applicant would "redound to the national interest"
because Article 40 does not explicitly refer to such
assessment. This argument (which seems impliedly
to concede that the relationship of basketball
coaching and the national interest is tenuous and
unreal) is not persuasive. In the first place, the
second paragraph of Article 40 says: "[t]he
employment permit may be issued to a non-resident
alien or to the applicant employer after a
determination of the non-availability of a person in
the Philippines who is competent, able and willing
at the time of application to perform the services for
which the alien is desired." The permissive
language employed in the Labor Code indicates that
the authority granted involves the exercise of
discretion on the part of the issuing authority. In the
second place, Article 12 of the Labor Code sets
forth a statement of objectives that the Secretary of
Labor should, and indeed must, take into account in
exercising his authority and jurisdiction granted by
the Labor Code
we find petitioners' arguments on the above points
of constitutional law too insubstantial to require
further consideration.1avvphi1
Page 6 of 7
Petitioners have very recently manifested to this
Court that public respondent Secretary of Labor has
reversed his earlier decision and has issued an
Employment Permit to petitioner Cone. Petitioners
seek to withdraw their Petition for Certiorari on the
ground that it has become moot and academic.

assuming that an alien employment permit has in

fact been issued to petitioner Cone, the basis of the
reversal by the Secretary of Labor of his earlier
decision does not appear in the record. If such
reversal is based on some view of constitutional law
or labor law different from those here set out, then
such employment permit, if one has been issued,
would appear open to serious legal objections.

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