Labor Legislation: Definitions

Labor Legislation / Labor Law: Consists of STATUTES, REGULATIONS and JURISPRUDENCE

governing the relations between CAPITAL and LABOR; by providing for certain EMPLOYMENT
STANDARDS and a LEGAL FRAMEWORK for DEFINING, ADJUSTING and ADMINISTERING the
standards and other incidents of employment or related productive work relationship.

Labor Standards and Labor Relations

Prologue:

Labor Standards - “Standards” are all matters required or established by law

Ex.: Minimum wage set by law, employees’ right to organize and to retain their jobs until a lawful
cause of dismissal occurs.

Legal Standards - norms set by law that must be observed otherwise it is unlawful.

Labor Standards

Definition: Refer to TERMS and CONDITIONS of employment that employers must comply with and to
which employees are entitled as a matter of legal right.

Per Jurisprudence: Minimum requirements prescribed by existing laws, rules and regulations relating to
wages, hours of work, cost-of-living allowance, and other monetary and welfare benefits, including
occupational, safety and health standards.

Labor Relations

Covers the STATUS, RIGHTS and DUTIES, and the INSTITUTIONAL MECHANISMS that govern the
individual and collective interactions of employers or employees or their representatives.

Labor defined

Physical toil which includes the application of skill.

Skill defined

The familiar knowledge of any art or science, united with readiness and dexterity in execution or performance
or in the application of the art or science to practical purposes.

Work is broader than labor – Work covers all forms of physical or mental exertion, or both combined, for the
attainment of some object other than recreation or amusement per se.

Worker is broader than employee – Workers may refer to self-employed people and those working in the service and
under the control of another; regardless of rank, title, or nature of work.

Article 13 of the labor code, any member of the labor force, whether employed or unemployed, is a worker.

To be entitled to protection of or benefits from labor laws, it requires the existence of employer-employee
relationship (Em-Rel) – Worker has to be an employee.

Employee is a salaried person working for another who controls or supervises the means, manner or method of doing
the work.

Labor law and Social Legislation

Social legislation are laws that provide particular kinds of protection or benefits to society or segments thereof in
furtherance of social justice. Labor laws are social legislation.

Examples of Social Legislation: Agrarian Reform, SSS law, labor code provision on state insurance fund covering
work-related injuries and occupational diseases, Animal Welfare Act, E-commerce Act, Fisheries Code, BOT law,
Biofuels Act, Children’s Television Act, Clean Water Act, Wildlife Resources Conservation Act, Fire Code of the
Philippines, Clean Air Act, etc.

Labor laws directly affect employment while social legislation governs the effects of employment.

All labor laws are social legislation but not all social legislation are labor laws.

Purpose of Labor Law:

Constitutional goal of freedom from poverty – The justification labor laws is social justice. It is best seen in poverty
alleviation.

Article II – Declaration of Principles and State Policies

The State shall promote a just and dynamic social order that will ensure the prosperity and independence of the nation
and free the people from poverty

How?

1. Provide adequate social services

2. Promote full employment
3. A rising standard of living
4. Improved quality of life for all

Goal of national economy are:

1. More equitable distribution of opportunities, income and wealth

2. Sustained increase in the amount of goods and services produced by the nation for the benefit of the
people
3. Expanding productivity as the key to raising the quality of life for all, especially the underprivileged.

Case: Calalang v Williams

Jose P Laurel defined Social Justice: “is neither communism, nor depotism, nor atomism, nor anarchy, but the
humanization of laws and the equalization of social and economic forces by the state so that justice in its rational and
objectively secular conception may at least be approximated.

Social justice means the promotion of the welfare of all the people, the adoption by the Government of measures
calculated to insure economic stability of all the component elements of society through the maintenance of proper
economic and social equilibrium in the interrelations of the members of the community, constitutionally, through the
adoption of measures legally justifiable, or extra-constitutionally, through the exercise of powers underlying the
existence of all government, on the time-honored principle of salus populi est suprema lex”

SC pronouncement in 1949: Social justice does not champion division of property or equality of economic status,
what it and Constitution do guaranty are equality of opportunity, equality of political rights, equality before the law,
equality between values given and received, and equitable sharing of the social and material goods on the basis of
efforts exerted in their production.

Social justice both a juridical and a societal goal.

Juridical principle: It prescribes equality of the people, rich or poor, before the law

As a goal: It means the attainment of decent quality of life of the masses through humane productive efforts.
Constitutional Basis

Constitution prescribes the boundaries of labor and social laws because the country’s economic system and
governance are inscribed in the national constitution.

Constitution says “the State shall promote social justice in all phases of national development.”2 Furthermore, “the
State affirms labor as a primary social economic force.” Therefore, “it shall protect the rights of workers and promote
their welfare.”

Article XIII with 14 sections — to “Social Justice and Human Rights.”

This Article in part provides:

“Section 1. The Congress shall give highest priority to the enactment of measures that protect and enhance the
right of all the people to human dignity, reduce social, economic, and political inequalities, and remove
cultural inequities by equitably diffusing wealth and political power for the common good.

“To this end, the State shall regulate the acquisition, ownership, use, and disposition of property and its
increments.”

“Section 2. The promotion of social justice shall include the commitment to create economic opportunities
based on freedom of initiative and self-reliance.”

CONSTITUTIONAL RIGHTS AND MANDATES

If there should be conflict between constitutional provisions and those of the Labor Code, the Constitution shall
prevail as it is the highest law of the land.

Article II, Section 18 – As a state policy:

“The state affirms labor as a primary social economic force. It shall protect the rights of workers and
promote their welfare.”

Accordingly, in the article on social justice, the Constitution commands:

“The State shall afford protection to labor, local and overseas, organized and unorganized, and
promote full employment and equality of employment opportunities for all.”

Constitution enumerates the guaranteed basic rights of workers, namely:

(1) to organize themselves;

(2) to conduct collective bargaining or negotiation with management;

(3) to engage in peaceful concerted activities, including to strike in accordance with law;

(4) to enjoy security of tenure;

(5) to work under humane conditions;

(6) to receive a living wage; and

(7) to participate in policy and decision-making processes affecting their rights and benefits as may be
provided by law.

Protect the rights or promote the welfare of workers

1) Art III, Bill of rights, Sec 8: The right of the people, including those employed in the public and private
sectors, to form unions, associations, or societies for purposes not contrary to law shall not be abridged.

2) Article IX-B, The Civil Service Commission, Sec. 2 [3], [5], [6]: The right of self-organization shall not be
denied to government employees. No officer or employee of the civil service shall be removed or suspended
except for cause provided by law. Temporary employees of the Government shall be given such protection as
may be provided by law.

3) Art XIII, Secs 4, 5 and 6, Social Justice and Human Rights: Regular farmworkers shall have the right to
own directly or collectively the lands they till. Other farmworkers shall receive a just share of the fruits of the
land they till. The State recognizes the right of farmworkers, along with other groups, to take part in the
planning, organization and management of the agrarian reform program. Landless farmworkers may be
resettled by the Government in its own agricultural estates.

4) Art XIII, Sec 9: The State shall, by law, and for the common good, undertake, in cooperation with the private
sector, a continuing program of urban land reform and housing which will make available at affordable
cost decent housing and basic services to underprivileged and homeless citizens in urban centers and
resettlement areas. It shall also promote adequate employment opportunities to such citizens.

5) Article XIII, Sec. 14: The State shall protect working women by providing safe and healthful working
conditions taking into account their maternal functions, and such facilities and opportunities that will
enhance their welfare and enable them to realize their full potential in the service of the nation.

6) Article VI, The Legislative Department: Along with other sectors, labor is entitled to seats allotted to
party-list representatives for three consecutive terms after the ratification of the Constitution.

7) Article XII, National Economy and Patrimony, Sec. 1: The goals of the national economy are a more
equitable distribution of opportunities, income, and wealth; a sustained increase in the amount of goods and
services produced by the nation for the benefit of the people; and an expanding productivity as the key to
raising the quality of life for all, especially the underprivileged. The State shall promote industrialization
and full employment based on sound agricultural development and agrarian reform, through industries
that make full and efficient use of human and natural resources.

8) Article XII, Sec. 15: Congress shall create an agency to promote the viability and growth of cooperatives
as instruments for social justice and economic development.

9) Article XVIII, Transitory Provisions, Sec. 18: At the earliest possible time, the Government shall increase
the salary scales of the other officials and employees of the National Government.

10) Article XVIII, Transitory Provisions, Sec. 16: Career civil service employees separated from the service
not for cause but as a result of the reorganization shall be entitled to appropriate separation pay and to
retirement and other benefits under existing laws. In lieu thereof, they may also be considered for
reemployment in the Government. Those whose resignations have been accepted in line with the existing
policy shall also have this right.

BALANCING OF RIGHTS IN PRIVATE ENTERPRISE SYSTEM

“The State recognizes the indispensable role of the private sector, encourages private enterprise, and provides
incentives to needed investments.”

While labor is entitled to a just share in the fruits of production, the enterprise has an equally important right
not only to reasonable returns on investment but also to expansion and growth.

R.A. No. 7796, the TESDA Law - seeks active participation of private enterprises in providing and developing
technical education and skills.

Private Enterprise Definition: Section 4 of the TESDA Law says, is an “economic system under which
property of all kinds can be privately owned and in which individuals, alone or in association with
another, can embark on a business activity. This includes industrial, agricultural, or agro-industrial
establishments engaged in the production, manufacturing, processing, repacking or assembly of goods,
including service-oriented enterprises.”

The constitutional outlook suggests a balanced treatment of workers and employers.

Shared Responsibility

Constitution (Art XIII, Sec 3) commands the State to promote the principle of shared responsibility between workers
and employers and the preferential use of voluntary modes of settling disputes, including conciliation, and (to) enforce
their mutual compliance therewith to foster industrial peace.

POLICE POWER AS THE BASIS

Police power itself has to respect the Constitution. The classic People vs. Pomar:

But the state, when providing by legislation for the protection of the public health, the public morals, or
the public safety, is subject to and is controlled by the paramount authority of the constitution of the
state, and will not be permitted to violate rights secured or guaranteed by that instrument or interfere
with the execution of the powers and rights guaranteed to the people under their law — the
constitution. (Mugler vs. Kansas)

BIRTH OF THE LABOR CODE

1. The writing of a labor code began in 1968 under the leadership of the then Minister of Labor, Mr. Blas F.
Ople – Father of the Labor Code
2. Contributions
a. Department of Labor,
b. the Department of Industry and the Board of Investments,
c. UP Law Center,
d. the Integrated Bar of the Philippines,
e. the Personnel Management Association of the Philippines (PMAP),
f. the National Economic and Development Authority, and the various trade union centers.
3. After seven times of drafting and redrafting, the Code was ratified by a National Tripartite Congress on April
28, 1973 and submitted to the President on May 1, 1973 – Underwent several revisions
4. On May 1, 1974, it was signed into law as P.D. No. 442

PRINCIPLES UNDERLYING THE CODE

Seven innovative principles permeated the entire composition of the Labor Code, namely:

1) Labor relations must be made both responsive and responsible to national development.

2) Labor laws or labor relations during a period of national emergency must substitute rationality for confrontation;
therefore, strikes or lockouts give away to a rational process which is arbitration.

3) Laggard justice in the labor field is injurious to the workers, the employers and the public; labor justice can be
made expeditious without sacrificing due process.

4) Manpower development and employment must be regarded as a major dimension of labor policy, for there
can be no real equality of bargaining power under conditions of severe mass unemployment.

5) There is a global labor market available to qualified Filipinos, especially those who are unemployed or whose
employment is tantamount to unemployment because of their very little earnings.

6) Labor laws must command adequate resources and acquire a capable machinery for effective and sustained
implementation; otherwise, they merely breed resentment not only of the workers but also of the employers. When
labor laws cannot be enforced, both the employers and the workers are penalized, and only a corrupt few — those who
are in charge of implementation — may get the reward they do not deserve.

7) There should be popular participation in national policy-making through what is now called tripartism.

SOME LABOR LAWS BEFORE THE PASSAGE OF THE CODE

Oldest was Act No. 1874 - Employer’s Liability Act

Enacted on June 19, 1908 by the Philippine Legislature.

Act No. 2549 - prohibited payment of wages in non-cash form

Act No. 2071 - prohibiting slavery or involuntary servitude

R.A. No. 1054 - Requiring emergency medical treatment for employees

C.A. No. 444 - Eight-Hour Labor Law

Commonwealth Act No. 103 - created the Court of Industrial Relations (CIR), precursor to the NLRC under PD 21 –
task was to investigate, decide and settle all disputes between employers and employees.

Industrial Peace Act (R.A. No. 875) – 1953 - was the law governing labor-management relations. Modeled after the
US Labor-Management Relations Act of 1947 (Taft-Hartley Act), which amended the CLR Act of the Wagner Act.

Blue Sunday Law (R.A. No. 946) - used to forbid commercial, industrial or agricultural enterprises to open on any
Sunday, Christmas Day, New Year’s Day, Holy Thursday, and Good Friday.

“Sundays and legal holidays are set aside by law as days of rest. The life, existence, and happiness of a person
do not depend only on the satisfaction of his physical needs. There are moral, intellectual, and spiritual needs
as imperative as the physical ones.”

The Termination Pay Law (R.A. No. 1052 as amended by R.A. No. 1787) - enumerated the “just causes” for
terminating an employment without a definite period and allowed employers to separate an employee by simply
serving a 15-day notice per year of service or, instead of notice, by paying an equivalent separation pay.

Significance of Foreign Decisions

American court decisions influence our courts’ rulings - American authorities interpreting said American labor
legislation are applicable and may be considered by us with profit.

It should be remembered in this regard that “judicial decisions applying or interpreting the laws or the
Constitution (shall) form part of the legal system of the Philippines.”

WHAT IS THE LABOR CODE?

PD442 as amended - set of substantive and procedural laws that prescribe the principal rights and responsibilities of
employers, employees and other industrial participants, as well as the role of Government, in employment and related
activities, so as to institute social justice.

The Labor Code lays down the fundamental rights and correlative obligations of employers and employees to
each other, such as those about work days and work hours, wage and wage protection, validity of dismissal as
well as the processes of unionization and collective bargaining.

Those substantive rights are enforceable through procedures prescribed in the Code, devised by either the
parties themselves or the government in its role as regulator of employment relations.

“Labor” in “Labor Code” is better viewed in its broad ordinary sense as work and work relationship, referring to any
economically productive application of physical, mental and material resources.

True task of labor law students, therefore, is to examine how the law hinders or helps the attainment of socio-
economic goals, how it helps or fails to help improve the quality of life of the masses.

RELATED LAWS

The Civil Code

“The relations between capital and labor are not merely contractual. They are so impressed with public interest that
labor contracts must yield to the common good. Therefore, such contracts are subject to the special laws on labor
unions, collective bargaining, strikes and lockouts, closed shop, wages, working conditions, hours of labor and similar
subjects.” (Article 1700)

This being so, “Neither capital nor labor shall act oppressively against the other, or impair the interest or
convenience of the public.” (Article 1701)

The Civil Code further contains provisions regarding wages, house helpers, and injuries sustained by employees.

Other labor-related issues call for application of the Civil Code such as those relating to awards of damages,
interpretation of a collective bargaining agreement, validity of a waiver, preference of workers’ claims, and fixed-
period employment.

The Revised Penal Code

Crimes against public order, against persons, against property, or against honor come into play, alongside labor laws,
especially in case of labor disputes.

Article 289: “The penalty of arresto mayor and a fine not exceeding P300 pesos shall be imposed upon any person
who, for the purpose of organizing, maintaining or preventing coalitions of capital or labor, strike of laborers or
lockout of employers, shall employ violence or threats in such a degree as to compel or force the laborers or
employers in the free and legal exercise of their industry or work, if the act shall not constitute a more serious offense
in accordance with the provisions of this Code.”
Special Laws

SSS law, the GSIS law, the Agrarian Reform law, the 13th-month pay law, the Magna Carta for Public Health
Workers

INTERNATIONAL ASPECT

International Labour Organization (ILO)

UN specialized agency which seeks the promotion of social justice and internationally recognized human and labour
rights.

The ILO formulates international labour standards in the form of Conventions and Recommendations setting
minimum standards of basic labour rights: freedom of association, the right to organize, collective bargaining,
abolition of forced labour, equality of opportunity and treatment, and other standards regulating conditions across the
entire spectrum of work-related issues.

Essential characteristic: Tripartism - it is composed not only of government representatives but also of employers’ and
workers’ organizations.

ILO Philippine Membership - 26 June 1945

19 Mar 1948 – Philippine Senate passed Resolution No. 44 Country’s acceptance of ILO Constitution and By-Laws.
(Roxas Time)

Proc No. 67 signed on 19 May 1948 – Pres Quirino

15 Jun 1948 – Ph signed in as a member of ILO

INTERNATIONAL COMMITMENTS

(a) labor is not a commodity;

(b) freedom of expression and of association are essential to sustained progress;

(c) that poverty anywhere constitutes a danger to prosperity everywhere;

(d) the war against want requires to be carried on with unrelenting vigor within each nation, and by continuous and
concerted international effort in which the representatives of workers and employers, enjoying equal status with those
of governments, join with them in free discussion and democratic decision with a view to the promotion of the
common welfare.

Philippines is committed to pursue programmes:

(a) full employment and the raising of standards of living;

(b) policies in regard to wages and earnings, hours and other conditions of work calculated to ensure a just
share of the fruits of progress to all, and a minimum living wage to all employed and in need of such
protection;

(c) the effective recognition of the right of collective bargaining, the cooperation of management and labour in
the continuous improvement of productive efficiency, and the collaboration of workers and employers in the
preparation and application of social and economic measures;

(d) the extension of social security measures to provide a basic income to all in need of such protection.
 ART. 3. DECLARATION OF BASIC POLICY

The State shall afford protection to labor, promote full employment, ensure equal work opportunities regardless
of sex, race or creed, and regulate the relations between workers and employers. The State shall assure the rights
of workers to self-organization, collective bargaining, security of tenure, and just and humane conditions of work.

LABOR LAWS AND SOCIAL-ECONOMIC GOALS

Art 3 mentions 3 issues: Employment, Protection to labor, labor-management relations

All 3 are considered as SOCIAL ISSUES – concerns of labor laws because labor laws are devices for social equity

Art 3 is not a goal but rather a statement of policy directions to achieve the goal of the national economy: Equitable
distribution of opportunities, income and wealth.

Labor laws, in other words, are a significant factor in a nation’s economy. They explain, partly but weightily, why a
nation is poor or prosperous, why a country is competitive or not in the global market.

The needs, the faults, and the goals of the economy cannot be ignored in formulating the labor laws, otherwise, the
labor laws become purposeless, socially irrelevant, or economically damaging.

INTERDEPENDENCE

It should not be deduced that the basic policy is to favor labor to prejudice capital. The plain reality is that both sectors
need each other. They are interdependent — one is inutile without the other.

ART. 4. CONSTRUCTION IN FAVOR OF LABOR

All doubts in the implementation and interpretation of the provisions of this Code, including its implementing
rules and regulations, shall be resolved in favor of labor.

INTERPRETATION AND CONSTRUCTION

Laborer’s Welfare; Liberal Approach

The policy is to extend the decree’s applicability to a greater number of employees to enable them to avail of the
benefits under the law, in consonance with the State’s avowed policy to give maximum aid and protection to labor.

Concern for Lowly Worker

Law regards him with tenderness and even favor and always with faith and hope in his capacity to help in shaping the
nation’s future. He must not be taken for granted. He deserves abiding respect. How society treats him determines
whether the knife in his hands shall be a caring tool for beauty and progress or an angry weapon of defiance and
revenge.

Reason for According Greater Protection to Employees

there is no doubt that the employer stands on higher footing than the employee; the law must protect labor, at least, to
the extent of raising him to equal footing in bargaining relations with capital and to shield
Justice, the Intention of the Law

The right to obtain justice is enjoyed by all members of society, rich or poor, worker or manager, alien or citizen. It is
not to be blinded or immobilized by the fact of one’s being economically underprivileged.

MANAGEMENT RIGHTS, BROADLY

Management also has its own rights which, as such, are entitled to respect and enforcement in the interest of simple
fair play. The Secretary of Labor is duly mandated to equally protect and respect not only the laborer or worker’s side
but also the management and/or employer’s side.

Limitations of management:

1. Law
2. Contract or collective bargaining agreements
3. General principles of fair play and justice

Fundamental management rights:

Right to ROI - The employer has the right to return of investments and to make profit

Right to Prescribe Rules - Company policies and regulations are, unless shown to be grossly oppressive or contrary to
law, generally binding and valid on the parties.

Right to Select Employees - He has a right under the law to full freedom in employing any person free to accept
employment from him, and this, except as restricted by valid statute or valid contract, at a wage and under conditions
agreeable to them.

The employer and the employee have thus an equality of right guaranteed by the Constitution. If the employer can
compel the employee to work against the latter’s will, this is servitude. If the employee can compel the employer to
give him work against the employer’s will, this is oppression.

Right to Transfer or Discharge Employees - An employer has the perfect right to transfer, reduce or lay off personnel
in order to minimize expenses and to insure the stability of the business, and even to close the business.

ART. 5. RULES AND REGULATIONS

The Department of Labor and Employment and other government agencies charged with the administration and
enforcement of this Code or any of its parts shall promulgate the necessary implementing rules and regulations. Such
rules and regulations shall become effective fifteen (15) days after announcement of their adoption in newspapers of
general circulation.

Administrative regulations and policies enacted by administrative bodies to interpret the law which they are
entrusted to enforce have the force of law, and are entitled to great respect.

Concept of delegating the police power – Potestas delegati non delegare potest – Art 5 vests DOLE with Rule
Making powers.

ART. 6. APPLICABILITY

All rights and benefits granted to workers under this Code shall, except as may otherwise be provided herein, apply
alike to all workers, whether agricultural or non-agricultural.
 APPLICABILITY TO GOVERNMENT CORPORATIONS

The ruling now is that the Labor Code applies to a government corporation incorporated under the Corporation
Code.

Earlier, in the 1985 ruling in National Housing Corporation vs. Juco, 134 SCRA 172, the Supreme Court laid down
the doctrine that employees of government-owned and/or controlled corporations, whether chartered by Congress or
formed under the general Corporation Law, were governed by the Civil Service Law and not by the Labor Code.

This doctrine is now obsolete as it has been supplanted by the present [1987] Constitution, which provides: “The Civil
Service embraces all branches, subdivisions, instrumentalities and agencies of the Government, including
government-owned or controlled corporations with original charters.”

Government-owned and controlled corporations “with original charter” refer to corporations chartered by special law
from Congress as distinguished from corporations organized under our general incorporation statute, the Corporation
Code.

TEST TO DETERMINE WHETHER GOCC IS SUBJECT TO CIVIL SERVICE LAW IS THE MANNER OF ITS
CREATION

GOCCs created by Congress = Civil Service Rules

GOCCs incorporated under the general Corporation Law = Labor Code

PNOC-EDC, FTI, NHA

PNOC-EDC = Philippine National Oil Corp. Energy Development Corp

FTI = Food Terminal Inc.

NHA = National Housing Authority (Incorporated under Act 1459)

NON APPLICABILITY TO GOVERNMENT AGENCIES

The terms governmental “agency” or “instrumentality” are synonymous in the sense that either of them is a means by
which a government acts, or by which a certain government act or function is performed. The word “instrumentality,”
with respect to the state, contemplates an authority to which the state delegates government power for the performance
of a state function.

EX. National Parks Development Committee employees are allowed under the 1987 constitution to organize and join
unions of their choice, there is no law permitting them to strike.

In cases of dispute between employees and the government, Sec 15 of EO 180 provides that the Public Sector Labor-
Management Council and not the DOLE shall hear the dispute.

EX 2: Employees of the SSS are Civil Service Employees. When they went on strike, the RTC and not the NLRC had
jurisdiction to enjoin the strike.

Note: State insurance fund do apply to government personnel covered by the GSIS.
 APPLICABILITY WITHOUT EMPLOYER-EMPLOYEE RELATIONSHIP

Labor Code may apply even if the parties are not employers and employees of each other. In other words, it is not
correct to say that employment relationship is a pre-condition to the applicability of the Code.

When one speaks of employment benefits (e.g., overtime pay or rest day premium) or of unionization, then surely
employment relationship is an essential element. But when the issue, for instance, is an indirect employer’s liability,
or illegal recruitment, or misuse of POEA license, there is no employer-employee relationship between the
complainant and the respondent, and yet the pertinent Labor Code provisions may be invoked. In short, the Labor
Code applies with or without employment relationship between the disputants, depending on the kind of issue
involved.

Chapter II

EMANCIPATION OF TENANTS

I. Law governing agrarian reform

II. Objectives of agrarian reform
III. Process and conditions observed to make a tenant-farmer an owner under agrarian reform program

ART. 7. STATEMENT OF OBJECTIVES

Inasmuch as the old concept of land ownership by a few has spawned valid and legitimate grievances that gave rise to
violent conflict and social tension and the redress of such legitimate grievances being one of the fundamental
objectives of the New Society, it has become imperative to start reformation with the emancipation of the tiller of the
soil from his bondage.

ART. 8. TRANSFER OF LANDS TO TENANT-WORKERS

Being a valid part of the labor force, tenant-farmers on private agricultural lands primarily devoted to rice and
corn under a system of share crop or lease tenancy whether classified as landed estate or not shall be deemed
owner of a portion constituting a family-size farm of five (5) hectares if not irrigated and three (3) hectares if
irrigated. In all cases, the landowners may retain an area of not more than seven (7) hectares if such landowner is
cultivating such area or will now cultivate it.

ART. 9. DETERMINATION OF LAND VALUE

For the purpose of determining the cost of the land to be transferred to the tenant-farmer, the value of the land
shall be equivalent to two and one-half (2-1/2) times the average harvest of three (3) normal crop years
immediately preceding the promulgation of Presidential Decree No. 27 on October 21, 1972.

The total cost of the land, including interest at the rate of six percent (6%) per annum, shall be paid by the tenant in
fifteen (15) years of fifteen (15) equal annual amortizations. In case of default, the amortizations due shall be paid
by the farmers’ cooperative in which the defaulting tenant-farmer is a member, with the cooperative having a right of
recourse against him. The government shall guarantee such amortizations with shares of stock in government-owned
and government-controlled corporations.

ART. 10. CONDITIONS OF OWNERSHIP

No title to the land acquired by the tenant-farmer under Presidential Decree No. 27 shall be actually issued to him
unless and until he has become a full-fledged member of a duly recognized farmers’ cooperative. Title to the land
acquired pursuant to Presidential Decree No. 27 or the Land Reform Program of the Government shall not be
transferable except by hereditary succession or to the Government in accordance with the provisions of
Presidential Decree No. 27, the Code of Agrarian Reforms and other existing laws and regulations.

ART. 11. IMPLEMENTING AGENCY

The Department of Agrarian Reform shall promulgate the necessary rules and regulations to implement the
provisions of this Chapter

Notes: Labor Code touches agrarian reform inadequately in five articles only because it is a subject governed
principally by R.A. No. 6657 (Comprehensive Agrarian Reform Law of 1988)

BOOK ONE

PRE-EMPLOYMENT

ART. 12. STATEMENT OF OBJECTIVES

It is the policy of the State:

(a) To promote and maintain a state of full employment through improved manpower training, allocation
and utilization;

(b) To protect every citizen desiring to work locally or overseas by securing for him the best possible terms
and condition of employment;

(c) To facilitate a free choice of available employment by persons seeking work in conformity with the
national interest;

(d) To facilitate and regulate the movement of workers in conformity with the national interest;

(e) To regulate the employment of aliens, including the establishment of a registration and/or work permit
system;

(f) To strengthen the network of public employment offices and rationalize the participation of the private
sector in the recruitment and placement of workers, locally and overseas, to serve national development
objectives;

(g) To insure careful selection of Filipino workers for overseas employment in order to protect the good
name of the Philippines abroad.

The Administrative Code of 1987 (Executive Order No. 292) names the Department of Labor and Employment as
“the primary policy-making, programming, coordinating, and administrative entity of the Executive Branch of
the government in the field of labor and employment.” The Administrative Code mandates DOLE to assume
“primary responsibility” for:

a) The promotion of gainful employment opportunities and the optimization of the development and
utilization of the country’s manpower resources;
 b) The advancement of worker’s welfare by providing for just and humane working conditions and
terms of employment;

c) The maintenance of industrial peace by promoting harmonious, equitable and stable employment
relations that assure protection for the rights of all concerned parties.

The DOLE agencies, offices, and bureaus are “clustered” correspondingly to DOLE’s areas of responsibility.

The Regional Offices (ROs), headed by Regional Directors (RDs), are the DOLE frontline action centers.

Title I

RECRUITMENT AND PLACEMENT OF

WORKERS

Chapter I

GENERAL PROVISIONS

I. Agencies created to promote employment opportunities

II. POEA protects and assists OFWs
III. Adjudicatory jurisdiction over claims by OFWs
IV. RA 8042 – Significant amendments
V. POEA – approved employments contracts immutable

ART. 13. DEFINITIONS

(a) “Worker” means any member of the labor force, whether employed or unemployed.

(b) “Recruitment and placement” refers to any act of canvassing, enlisting, contracting, transporting, utilizing,
hiring or procuring workers, and includes referrals, contract services, promising or advertising for
employment, locally or abroad, whether for profit or not: Provided, That any person or entity which, in any
manner, offers or promises for a fee employment to two or more persons shall be deemed engaged in
recruitment and placement.

(c) “Private fee-charging employment agency” means any person or entity engaged in the recruitment and
placement of workers for a fee which is charged, directly or indirectly, from the workers or employers or both.

(d) “License” means a document issued by the Department of Labor authorizing a person or entity to operate a
private employment agency.

(e) “Private recruitment entity” means any person or association engaged in the recruitment and placement of
workers, locally or overseas, without charging, directly or indirectly, any fee from the workers or employers.

f) “Authority” means a document issued by the Department of Labor authorizing a person or association to
engage in recruitment and placement activities as a private recruitment entity.

(g) “Seaman” means any person employed in a vessel engaged in maritime navigation.

(h) “Overseas employment” means employment of a worker outside the Philippines.

(i) “Emigrant” means any person, worker or otherwise, who emigrates to a foreign country by virtue of an
immigrant visa or resident permit or its equivalent in the country of destination.
 ARTICLE 13(b) CONSTRUED; WHAT CONSTITUTES RECRUITMENT

AND PLACEMENT

People vs. Panis, 142 SCRA 664 (1986) —

Facts: Four separate criminal complaints were filed against Abug for operating a fee-charging employment agency
without first securing a license. But Abug argued that the complaints did not charge an offense as he was charged with
illegally recruiting only one person in each of the four informations. Abug claimed that under Article 13(b) there
would be illegal recruitment only when two or more persons in any manner were promised or offered any employment
for a fee.

Ruling: The Court ruled that the number of persons is not an essential ingredient of the act of recruitment and
placement of workers. — “As we see it, the proviso was intended neither to impose a condition on the basic rule nor to
provide an exception thereto but merely to create a presumption. The presumption is that the individual or entity is
engaged in recruitment and placement whenever he or it is dealing with two or more persons to whom, in
consideration of a fee, an offer or promise of employment is made in the course of the “canvassing, enlisting,
contracting, transporting, utilizing, hiring or procuring (of) workers.” The number of persons dealt with is not an
essential ingredient of the act of recruitment and placement of workers. Any of the acts mentioned in the basic rule in
Article 13(b) will constitute recruitment and placement even if only one prospective worker is involved. The proviso
merely lays down a rule of evidence that where a fee is collected in consideration of a promise or offer of employment
to two or more prospective workers, the individual or entity dealing with them shall be deemed to be engaged in the
act of recruitment and placement. The words ‘shall be deemed’ create that presumption.

People vs. Goce

To prove that the accused was engaged in recruitment activities, it must be shown that the accused gave the
complainant the distinct impression that she had the power or ability to send the complainant abroad for work, such
that the latter was convinced to part with her money in order to be so employed. Where such act or representation is
not proven, there is no recruitment activity and conviction for illegal recruitment has no basis.

Darvin vs. C.A. and People of the Philippines

The Court noted the lack of evidence to prove that the accused offered a job to complainant-respondent. It was
established, instead, that the complainant gave P150,000.00 to the accused-appellant for payment of air fare and US
visa and other expenses. The receipt for the P150,000.00 stated that it was “for Air Fare and visa to USA.” The Court
through Justice Romero concluded:

“By themselves, procuring a passport, airline tickets and foreign visa for another individual, without more, can hardly
qualify as recruitment activities.”

ART. 14. EMPLOYMENT PROMOTION

The Secretary of Labor shall have the power and authority:

(a) To organize and establish new employment offices in addition to the existing employment offices under
the Department of Labor as the need arises;

(b) To organize and establish a nationwide job clearance and information system to inform applicants
registering with a particular employment office of job opportunities in other parts of the country as well as job
opportunities abroad;

(c) To develop and organize a program that will facilitate occupational, industrial and geographical
mobility of labor and provide assistance in the relocation of workers from one area to another; and
 (d) To require any person, establishment, organization or institution to submit such employment
information as may be prescribed by the Secretary of Labor.

DOLE carries out programs for local and overseas employment. Effective allocation of manpower resources in local
employment is assigned to the BLE (Bureau of Local Employment) and to POEA (Philippine Overseas Employment
Administration) for overseas employment.

ART. 15. BUREAU OF EMPLOYMENT SERVICES

(a) The Bureau of Employment Services (Now BLE) shall be primarily responsible for developing and
monitoring a comprehensive employment program.

It shall have the power and duty:

1. To formulate and develop plans and programs to implement the employment promotion objectives of this
Title;

2. To establish and maintain a registration and/or licensing system to regulate private sector participation
in the recruitment and placement of workers, locally and overseas, and to secure the best possible terms and
conditions of employment for Filipino contract workers and compliance therewith under such rules and
regulations as may be issued by the Department of Labor and Employment; - Amended by DO 141-14. Now
POEA no longer under BLE.

3. To formulate and develop employment programs designed to benefit disadvantaged groups and
communities;

4. To establish and maintain a registration and/or work permit system to regulate the employment of
aliens;

5. To develop a labor market information system in aid of proper manpower and development planning;

6. To develop a responsible vocational guidance and testing system in aid of proper human resources
allocation; and

7. To maintain a central registry of skills, except seamen.

Comments:

LOCAL EMPLOYMENT

History: To achieve SOCIAL JUSTICE as a goal – through the availability of jobs.

Article 15 - requires the Department of Labor and Employment to promote employment opportunities.

Task initiated and given by PD No. 850 – Bureau of Employment Services, replaced by the Bureau
of Local Employment (BLE) through EO 797.

EO 797 also created the POEA – which consolidated the overseas employment functions of the BES
as well as the Overseas Employment Development Board (OEDB) under Article 17 and National
Seamen Board (NSB) under Article 20.

Administrative Order no. 186 (1987) , the Secretary of Labor devolved to the DOLE regional
offices the line functions of the BLE – The regional offices now handles the licensing of local
recruitment agencies and issuance of work permits to non-resident aliens and of employment
registration certificates to resident aliens.
 BLE has issued the Rules and Regulations Governing Local Employment, which is reproduced
in Book I of the Implementing Rules in this volume (Azucena).

DO no. 141-14 contains the Revised Rules and Regulations Governing Recruitment and Placement
for Local Employment. The reference to “overseas” recruitment and placement now pertains to
POEA, not BLE in article 15 (a, 2)

PRPA – Private Recruitment and Placement Agency

The agency that recruits applicants for local employment.

Definition of PRPA – The BLE Rules define PRPA as any individual, partnership, corporation or
entity engaged in the recruitment and placement of persons for local employment.

PRPA secures license from a DOLE regional office – The license is nontransferable to other persons
or entities but valid nationwide for two (2) years and renewable.

Prior to approval of the license, an applicant for license to operate a private employment agency for
local employment shall post cash bond and surety bond – Bonds and Surety valid for two (2) years
and will answer for all valid and legal claims arising from the illegal use of the license and shall
likewise guarantee compliance with the provision sof the Labor Code and its Implementing Rules.

Under BLE regulations – a license PRPA may charge a worker placement fee which shall not
exceed 20% of the worker’s first month’s basic salary, chargeable after actual commencement of
employment.

NOTE: Kasambahay Law (RA 10361) sec 13:

Regardless of whether the domestic worker was hired through a private employment agency
or a third party, no share in the recruitment or finder’s fee shall be charged against the
domestic worker by the said private employment agency or third party.

Service Fee Chargeable to Employer (never to worker)

PRPA may charge the employer service fee which shall not exceed twenty percent (20%) of
the annual salary of the worker. In no case shall the service fee be deducted from the worker’s salary.

Transportation expenses of the worker from place of origin to the place of work shall be
charged against the employer and shall in no case shall be deducted from worker’s salary.

The PUBLIC EMPLOYMENT SERVICE OFFICE (PESO)

RA 8759 (2000) – Requires establishment of a public employment service office (PESO) in capital
towns, cities and other strategic areas.

PESO will serve as

1. Employment service and information center in its area of operation.

2. It regularly obtains lists of job vacancies from employers, publicizes them, invites and
evaluates applicants, and refers them for probable hiring.
3. It also provides training and educational guidance and employment counseling services.
4. The PESO also renders special services to the public such as holding of
(job fairs) livelihood and self-employment bazaars;
5. special credit assistance for placed overseas workers;
6. special program for employment of students (SPES) during summer or semestral breaks
7. work appreciation seminars and conferences;
 8. hiring of workers in infrastructure projects (WHIP) – Pursuant to RA 6885
a. Requires the Department of Public Works and Highways and private contractors
to hire 30 percent of skilled and 50 percent unskilled labor requirements from the
area where the project is being undertaken.

ART. 16. PRIVATE RECRUITMENT

Except as provided in Chapter II of this Title, no person or entity, other than the public employment offices, shall
engage in the recruitment and placement of workers.

NOTES:

AUTHORIZED ENTITIES

EXCEPTION: Article 25 provides a broad exception as it states that “the private employment sector shall
participate in the recruitment and placement of workers, locally and overseas.”

Article 18 generally prohibits direct hiring for overseas employment, it also recognizes a number of exceptions.

The following entities are authorized to recruit and place workers for local or overseas employment:

a. public employment offices (PESO)

b. private employment agencies

c. shipping or manning agents or representatives

d. the POEA

e. construction contractors if authorized to operate by DOLE and the Construction Industry Authority

f. members of the diplomatic corps although hirings done by them have to be processed through the POEA

g. other persons or entities as may be authorized by the DOLE secretary

ART. 17. OVERSEAS EMPLOYMENT DEVELOPMENT BOARD

An Overseas Employment Development Board is hereby created to undertake, in cooperation with relevant
entities and agencies, a systematic program for overseas employment of Filipino workers in excess of domestic
needs and to protect their rights to fair and equitable employment practices.

It shall have the power and duty:

1. To promote the overseas employment of Filipino workers through a comprehensive market

promotion and development program;

2. To secure the best possible terms and conditions of employment of Filipino contract workers on a
government-to-government basis and to ensure compliance therewith;

3. To recruit and place workers for overseas employment on a government-to-government arrangement

and in such other sectors as policy may dictate; and

4. To act as secretariat for the Board of Trustees of the Welfare and Training Fund for Overseas
Workers.
OVERSEAS EMPLOYMENT, A BRIEF HISTORY

1. Began in the 1900s when Hawaii experienced severe manpower shortage – 200 Filipinos initially went there
and were followed by many more until they formed about 70% of Hawaii’s plantation labor.
2. Filipinos became in demand in California as apple and orange pickers – gained reputation as fruit pickers –
prompted plantation owners to increase incentives for manpower recruitment in the Philippines.
3. After WWII – Filipino workers went to Guam, Okinawa, Wake Islands as construction workers and laborers
in US military stations.
4. Canada and Australia hiring professionals. Borneo, Thailand, Malaysia and Indonesia also opened their labor
markets for construction and logging personnel.
5. Mostly middle east in 1983 – 500K employment contracts processed for overseas jobs
6. Hong Kong – biggest labor market in Asia – Singapore and Malaysia also opening more employment
opportunities for skilled and professional Filipino workers.

LEGISLATIVE BACKGROUND OF OVERSEAS EMPLOYMENT

Act No. 2486 was the first law passed by the Philippine Legislature in 1915 related to overseas employment. This law
provided for license issuance and license fee and welfare regulations, such as prohibiting minors (under 15 years)
to work abroad without the parent’s written consent, prohibiting recruitment of non-Christians for exhibition or
display and provision of transportation for returning workers who are physically unfit or have finished serving the
contract. This became the basis of the government’s policy on overseas employment from 1915 up to the advent of the
Labor Code in 1975.

P.D. No. 442 (the Labor Code) paved the way for a stricter government regulation of the overseas employment
industry. The Overseas Employment Development Board (OEDB) and the National Seamen Board (NSB) were
created to implement a more systematic deployment of land-based and sea-based workers to other countries. P.D. No.
442 initially aimed at giving the government complete control of the overseas employment program.

Under P.D. No. 1412, to cope with the great demand for workers in the Middle East, the government had to revive
private sector participation in the recruitment and placement of Filipino workers. The government’s recruitment
role was thus limited to government-to-government arrangements.

E.O. No. 797 was passed in 1982 aimed at streamlining operations in the overseas employment program. The OEDB,
NSB, and the overseas employment program of the Bureau of Employment Services were united in a single structure
— the Philippine Overseas Employment Administration (POEA).

E.O. No. 247, also known as the Reorganization Act of POEA, was passed in 1987 (after the EDSA revolt) in
response to the government’s call for a more efficient delivery of public service. One of the more important provisions
of this Order is the strengthening of the worker’s protection and welfare and a tighter regulation of the private sector’s
recruitment activities.

R.A. No. 8042, approved on June 7, 1995, is known as the “Migrant Workers and Overseas Filipinos Act of 1995.”
This law institutes the policies on overseas employment and establishes a higher standard of protection and promotion
of the welfare of migrant workers, their families, and of overseas Filipinos in distress.

R.A. No. 10022, which lapsed into law on March 8, 2010, further improves the standard of protection and promotion
of welfare provided under R.A. No. 8042

OVERSEAS EMPLOYMENT POLICY

“Migrant Workers and Overseas Filipinos Act of 1995” (R.A. No. 8042) was passed during the Ramos
Administration.
 Policies on Migrant Workers

R.A. No. 8042 as amended by R.A. No. 10022 states the policies on overseas Filipinos and migrant workers in
particular. Summarized, they are as follows:

(a) The State shall, at all times, uphold the dignity of its citizens whether in country or overseas, in general, and
Filipino migrant workers, in particular, and endeavor to enter into bilateral agreements with countries hosting
overseas Filipino workers.

(b) The State shall afford full protection to labor, local and overseas, organized and unorganized, and promote full
employment and equality of employment opportunities for all.

(c) While recognizing the significant contributions of Filipino migrant workers to the national economy through
their foreign exchange remittances, the State does not promote overseas employment as a means to sustain
economic growth and achieve national development. The State, therefore, shall continuously create local
employment opportunities and promote the equitable distribution of wealth and the benefits of development.

(d) The State affirms the fundamental equality before the law of women and men and the significant role of women in
nation-building. The State shall apply gender-sensitive criteria in the formulation and implementation of policies
and programs.

(e) Free access to the courts and quasi-judicial bodies and adequate legal assistance shall not be denied to any
person by reason of poverty. The rights and interest of distressed overseas Filipinos, in general, and Filipino migrant
workers, in particular, whether regular/documented or irregular/undocumented, shall be adequately protected
and safeguarded.

(f) Filipino migrant workers and all overseas Filipinos have the right to participate in the democratic decision-
making processes of the State and to be represented in institutions relevant to overseas employment.

(g) The State recognizes that the most effective tool for empowerment is the possession of skills by migrant workers.
The government shall provide them free and accessible skills development and enhancement programs. The
government shall deploy and/or allow the deployment only of skilled Filipino workers. (As amended by R.A. No.
10022)

(h) The State recognizes [that] non-governmental organizations, trade unions, workers associations, recruitment and
manning agencies and similar entities duly recognized as legitimate, are partners of the State in the protection of
Filipino migrant workers and in the promotion of their welfare.

(i) Government fees and other administrative costs of recruitment, introduction, placement and assistance to migrant
workers shall be rendered free without prejudice to the provision of Section 36 of R.A. No. 8042. – Non increase of
fees; abolition of repatriation bond.

OFWs: Land-based or Sea-based

OFW’s are classified by DOLE as either land-based or seabased.

Sea-Based OFW’s (or seamen) are those employed in a vessel engaged in maritime navigation. Sea-based work
pertains to ship operations like navigation, engineering, maintenance, including a variety of occupations from kitchen
staff to on-board entertainment in large vessel ships.

Land-Based OFW’s are contract workers other than a seaman including workers engaged in offshore activities whose
occupation requires that majority of his working/ gainful hours are spent on land. Occupations in the land-based
categories are broader, covering all the skill areas one can think of from house cleaners to entertainers to managers.

The land-based group constitutes the great majority of OFWs

 Selective Deployment

R.A. No. 8042, in stark contrast, requires certain guarantee of protection in country destinations of OFWs.

Following are guarantees of the receiving country for the protection of the OFW:

(a) It has existing labor and social laws protecting the rights of workers, including migrant
workers;

(b) It is a signatory to and/or a ratifier of multilateral conventions, declarations or resolutions

relating to the protection of workers, including migrant workers; and

(c) It has concluded a bilateral agreement or arrangement with the government on the protection
of the rights of overseas Filipino Workers:

Provided, That the receiving country is taking positive, concrete measures to protect the rights of
migrant workers in furtherance of any of the guarantees under subparagraphs (a), (b) and (c) hereof.

DFA function: Department of Foreign Affairs, through its foreign posts, shall issue a certification to the POEA,
specifying therein the pertinent provisions of the receiving country’s labor/social law , or the
convention/declaration/resolution, or the bilateral agreement/ arrangement which protect the rights of migrant
workers.

SANCTIONS: The members of the POEA Governing Board who actually voted in favor of an order allowing the
deployment of migrant workers without any of the aforementioned guarantees shall suffer the penalties of removal
or dismissal from service with disqualification to hold any appointive public office for five (5) years.

Government official or employee responsible for the issuance of the permit or for allowing the deployment of
migrant workers in violation of this section and in direct contravention of an order by the POEA Governing
Board prohibiting deployment shall be meted the same penalties in this section.

POEA Governing Board, after consultation with DFA may terminate, impose a ban on the deployment of Migrant
Workers.

THE POEA; OVERVIEW OF ITS FUNCTIONS AND POWERS

Philippine Overseas Employment Administration has taken over the functions of OEDB and the NSB

POEA was reorganized by E.O. No. 247 (24 Jul 1987) -

Principal functions of the POEA include:

1. Formulation, implementation, and monitoring of policies and programs on overseas employment of

Filipino workers.
2. POEA is the protector of overseas workers’ rights to fair and equitable employment practices.
3. Additional function of POEA is the deployment of Filipino workers through government-to-government
hiring.
4. POEA performs administrative, regulatory and enforcement, as well as limited adjudicatory functions.

POEA has extended its services nationally through its regional extension units to process vacationing workers, register
sea-based workers, and participate in government hiring through manpower pooling.

REALIGNMENT OF POEA JURISDICTION

Before passage of RA 8042 – Migrant Workers and Overseas Filipinos Act of 1995. POEA had original and
exclusive jurisdiction to hear and decide the following kinds of cases:

a. Recruitment Violation and Related cases consisting of all pre-employment cases which are administrative
in character, involving or arising out of recruitment laws, rules and regulations, including money claims
therefrom or violations of the conditions for issuance of license to recruit workers.
b. Employer-Employee Relations cases consisting of all claims arising out of an employer-employee relationship
or by virtue of any law or contract involving Filipino workers in overseas employment, such as but not limited
to:
1. Violation of the terms and conditions of employment;
2. Disputes relating to the implementation and interpretation of employment contracts;
3. Money claims of workers against their employers and duly authorized agents in the Philippines or
vice versa;
4. Claims for death, disability and other benefits arising out of employment; and
5. Violation/s of or noncompliance with any compromise agreement entered into by and between the
parties in an overseas employment contract.
c. Disciplinary Action cases consisting of all complaints against a contract worker for breach of discipline.2 The
disciplinary action may take the form of warning, repatriation, suspension, or disqualification from the
overseas employment program, or inclusion in the POEA blacklist.

RA 8042 has transferred employer – employee relations cases from the POEA to the NLRC (Labor Court)

Among the cases now in the hands of labor arbiters are money claims arising from pretermination of the
employment contract without valid cause. In such a case, Sec. 10 of R.A. No. 8042 entitles the OFW to
“reimbursement of his placement fee with interest plus his salary for either (1) the unexpired portion of the
employment contract or (2) for three months for every year of the unexpired term, whichever is less.

This quoted provision has been the subject of cases that will be taken up under Article 224. But it is important
to note here that the three-month option has been declared unconstitutional in a Supreme Court ruling in 2009.

PRESENT JURISDICTION OF THE POEA

POEA retains original and exclusive jurisdiction ot hear and decide:

A. ALL CASES which are ADMINSITRATIVE in character, involving or arising out of violations of rules
and regulations relating to licensing and registration of recruitment and employment or entities;

POEA Jurisdiction over Administrative or Regulatory Cases

POEA retains the power to regulate the private sector participation in the recruitment and
overseas placement of workers through its licensing and registration system. This function is
taken up further under Article 25.

B. DISCIPLINARY ACTION CASES and other special cases which are administrative in character,
involving employers, principals, contracting partners and Filipino migrant workers.

POEA Jurisdiction over Disciplinary Cases

Rule VII of Book VII of the POEA Rules provides that complaints for breach of discipline
against a contract worker shall be filed with the Adjudication Office or Regional Office of the
POEA, as the case may be.
 POEA may motu proprio undertake disciplinary action against a worker for breach of
discipline. It shall establish a system of watching and blacklisting of overseas contract
workers.

Secs. 6 and 7, Rule VII, Book VII of the POEA Rules and Regulations (1991) provide:

“Sec. 6. Disqualification of Contract Workers. Contract workers, including seamen, against

whom have been imposed or with pending obligations imposed upon them through an order,
decision, or resolution shall be included in the POEA Blacklist Workers shall be disqualified
from overseas employment unless properly cleared by Administrator or until their suspension
is served or lifted.

Sec. 7. Delisting of the Contract Worker’s Name from the POEA Watchlist. The name of
an overseas worker may be excluded, deleted and removed from the POEA Watchlist only
after disposition of the case by the Administration.

Grounds for Disciplinary Action

Commission by the worker of any of the offenses enumerated below or of similar offenses while working overseas
shall be subject to appropriate disciplinary actions as the POEA may deem necessary ( Sec 145 of the 2016 POEA
Rules):

a. Commission of a felony punishable by Philippine laws or by the laws of the host country;

b. Drug addiction or possession or trafficking of prohibited drugs;

c. Desertion or abandonment;

d. Drunkenness, especially where the laws of the host country prohibit intoxicating drinks;

e. Gambling, especially where the laws of the host country prohibit the same;

f. Initiating or joining a strike or work stoppage where the laws of the host country prohibit
strikes or similar actions;

g. Creating trouble at the worksite or in the vessel;

h. Embezzlement of company funds or of moneys and properties of a fellow worker entrusted for
delivery to kins or relatives in the Philippines;

i. Theft or robbery;

j. Prostitution;

k. Vandalism or destroying company property;

l. Gunrunning or possession of deadly weapons;

m. Unjust refusal to depart for the worksite after all employment and travel documents have been
duly approved by the appropriate government agency/ies; and

n. Violation/s of the laws and sacred practices of the host country and unjustified breach of
government-approved employment contract by a worker.
 To Whom Appealable

POEA decisions on cases within its jurisdiction are appealable not to the NLRC nor directly to the Court of Appeals
but to the Secretary of Labor.

POEA Rules and Regulations of 2016: “The Office of the DOLE Secretary shall have exclusive jurisdiction to
act on appeals cases decided by the Administration (POEA).” – The Secretary’s appellate jurisdiction is part of its
power of supervision and control recognized by the Revised Administrative Code of 1987.

OUTSIDE OF POEA JURISDICTION

No Jurisdiction to Enforce Foreign Judgment

POEA has no jurisdiction to hear and decide a claim for enforcement of a foreign judgment. Such a claim must be
brought before the regular courts.

The POEA is not a court, it is an administrative agency, exercising, inter alia, adjudicatory or quasi-judicial functions.
Neither the rules of procedure nor the rules of evidence which are mandatorily applicable in proceedings before
courts, are observed in proceedings before the POEA.

No Jurisdiction Over Torts

Mckenzie, et al. vs. Cui, G.R. No. 48831

The Supreme Court affirmed the order of the trial court, that is, the court (not POEA) has jurisdiction over the case.
Aguedo’s complaint reveals his intention to seek and claim protection under the Civil Code and not under the Labor
Code. The items demanded are not labor benefits such as wages, overtime, or separation pay, but are items claimed as
natural consequences of such dismissal. His complaint is denominated as “damages” as a consequence of his alleged
summary dismissal by Kraamer. Moreover, in his opposition to the motion to dismiss, he cites Articles 2197, 2200,
2219 and adds the relevant articles on Human Relations: Articles 19, 21, 24 and 32 of the Civil Code to support his
claim for damages. [This kind of case is not within POEA’s jurisdiction].

ART. 18. BAN ON DIRECT-HIRING

No employer may hire a Filipino worker for overseas employment except through the Boards and entities
authorized by the Department of Labor and Employment. Direct-hiring by members of the diplomatic corps,
international organizations and such other employers as may be allowed by the Department of Labor and
Employment is exempted from this provision.

COMMENTS

Direct hiring of Filipino workers by a foreign employer is not allowed except direct hiring by members of the
diplomatic corps and others mentioned in this Article.

Additional Exception are “name hirees” - or those individual workers who are able to secure contracts for overseas
employment on their own efforts and representation without the assistance or participation of any agency. Their
hiring, nonetheless, has to be processed through the POEA.

Name hires should register with the POEA by submitting the following documents:

(a) Employment contract;

 (b) Valid passport;

(c) Employment visa or work permit, or equivalent document;

(d) Certificate of medical fitness; and

(e) Certificate of attendance to the required employment orientation/briefing

ART. 19. OFFICE OF EMIGRANT AFFAIRS – ABOLISHED

(a) Pursuant to the national policy to maintain close ties with Filipino migrant communities and promote their
welfare as well as establish a data bank in aid of national manpower policy formulation, an Office of Emigrant
Affairs is hereby created in the Department of Labor. The Office shall be a unit at the Office of the Secretary
and shall initially be manned, and operated by such personnel and through such funding as are available within
the Department and its attached agencies. Thereafter, its appropriation shall be made part of the regular
General Appropriations Decree.

(b) The office shall, among others, promote the well-being of emigrants and maintain their close link to the
homeland by:

1) serving as a liaison with migrant communities;

2) providing welfare and cultural services;

3) promoting and facilitating re-international of migrants into the national mainstream;

4) promoting economic, political and cultural ties with the communities; and

5) undertaking such activities as may be appropriate to enhance such cooperative links.

Pertinent functions were transferred to the Commission on Filipinos Overseas by BP Blg 79 (1980)

1. The CFO provides advice and assistance to the President of the Philippines and the Congress in the
formulation of policies and measures affecting Filipinos overseas.
2. It also formulates, in coordination with agencies concerned, an integrated program for the promotion of
the welfare of Filipinos overseas for implementation by suitable existing agencies.
3. Attached to the Department of Foreign Affairs, the CFO has five members appointed by the President, one
of whom is the Minister of Foreign Affairs as ex-officio member. Other ministers may be appointed as ex-
officio members. From among them, the President designates the chairman and the vice-chairman.

ART. 20. NATIONAL SEAMEN BOARD – NSB ABOLISHED

(a) A National Seamen Board is hereby created which shall develop and maintain a comprehensive
program for Filipino seamen employed overseas. It shall have the power and duty:

1. To provide free placement services for seamen;

2. To regulate and supervise the activities of agents or representatives of shipping companies in the
hiring of seamen for overseas employment; and secure the best possible terms of employment for
contract seamen workers and secure compliance therewith;

3. To maintain a complete registry of all Filipino seamen.

(b) The Board shall have original and exclusive jurisdiction over all matters or cases including money
claims, involving employer-employee relations, arising out of or by virtue of any law or contracts involving
 Filipino seamen for overseas employment. The decision of the Board shall be appealable to the National
Labor Relations Commission upon the same grounds provided in Article 223 hereof. The decisions of the
National Labor Relations Commission shall be final and unappealable. – NSB > POEA > NLRC

COMMENTS AND CASES

NSB NOW POEA (Adjudicatory moved to NLRC)

Executive Order No. 797 (issued on May 1, 1982) abolished the National Seamen Board and transferred its
functions to the POEA.

The NSB’s “original and exclusive jurisdiction” mentioned in paragraph (b) of this Article has since been
exercised by the POEA

But, as already pointed out in comments under Article 17, this adjudicatory jurisdiction of the POEA has been
moved to the NLRC by R.A. No. 8042 since 1995.

ARTICLE 20 CONSTRUED; SEAMEN’S EMPLOYMENT CONTRACTS AND THE INTERNATIONAL

TRANSPORT FEDERATION (ITF)

Article 20, no. 2, requires the National Seamen Board (now POEA) to “secure the best possible terms of
employment for contract seamen workers and secure compliance therewith.” The implications of this article are
illustrated in the following cases which also rule on the question of immutability (changeability) of seamen’s standard
contract.

CASES:

Wallem Shipping, Inc. vs. Ministry of Labor

Some seamen who were hired for ten months were dismissed before the expiration of the period. The employer
defended the dismissal by alleging that the seamen had conspired with the International Transport Federation (ITF) in
coercing the ship authorities to pay the seamen the worldwide rate, instead of the lower Far East rate as provided in
their contracts of employment. It further charged that the seamen threatened the ship authorities that unless they would
agree to the increased wages, the ship would not be able to leave port; it would be picketed or boycotted and declared
a “hot” ship by the ITF. The employer therefore claimed that the dismissal of the seamen was justified because the
latter, in threatening the ship authorities in acceding to their demands, were guilty of serious misconduct.

The Supreme Court ruled against the employer, noting that the records failed to establish clearly the
commission of any threat.

“But even if there had been such a threat, respondents (the seamen’s) behavior should not be censured
because it is but natural for them to employ some means of pressing their demands on the petitioner,
who refused to abide with the terms of the Special Agreement, to honor and respect the same. They were
only acting in the exercise of their rights, and to deprive them of their freedom of expression is contrary to law
and public policy. There is no serious misconduct to speak of in the case at bar which would justify
respondents’ dismissal just because of their firmness in their demand for the fulfillment by petitioner of the
obligation it entered into without any coercion, especially on the part of private respondents.”

“On the other hand, it is the petitioner [employer] who is guilty of breach of contract when it dismissed the
respondents without just cause and prior to the expiration of the employment contracts. As the records
clearly show, petitioner voluntarily entered into the Special Agreement with ITF and by virtue thereof
the crew men were actually given their salary differentials in view of the new rates. It cannot be said that
 it was because of respondents’ fault that petitioner made a sudden turnabout and refuse to honor the Special
Agreement.”

Vir-Jen Shipping and Marine Services vs. NLRC

Facts: 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.

The NSB upheld the cancellation of the contracts of employment of the seamen, but on appeal the NLRC ruled that
the termination was illegal. Subsequently, the Second Division of the Supreme Court reversed the NLRC decision,
that is, the seamen’s dismissal was held legal. The Division denied the two motions for reconsideration but another
motion for reconsideration was filed with the Supreme Court en banc which gave it due course because there was a
need to reconcile the decision of the Second Division with that of the First Division in Wallem Shipping, Inc. vs.
Minister of Labor [see above], which had ruled that the termination of the seamen was illegal.

Ruling: Taking a position similar to that of the First Division, the Supreme Court en banc found the termination of the
seamen’s contract illegal. Through Mr. Justice Gutierrez, the Court, in patriotic language declared:

The contention that manning industries in the Philippines would not survive if the instant case is not decided in favor
of the petitioner is not supported by evidence. The Wallem case was decided on February 20, 1981. There have been
no severe repercussions, no drying up of employment opportunities for seamen, and none of the dire consequences
repeatedly emphasized by the petitioner. Why should Vir-Jen be an exception?

Filipino seamen are admittedly as competent and reliable as seamen from any other country in the world; otherwise,
there would not be so many of them in the vessels sailing in every ocean and sea on this globe. It is competence and
reliability, not cheap labor that makes our seamen so greatly in demand. Filipino seamen have never demanded the
same high salaries as seamen from the United States, the United Kingdom, Japan and other developed nations. But
certainly they are entitled to government protection when they ask for fair and decent treatment by their
employers and when they exercise the right to petition for improved terms of employment, especially when they
feel that these are substandard or are capable of improvement according to internationally accepted rules.

Prescinding from the above, we now hold that neither the National Seamen Board nor the National Labor Relations
Commission 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 workingmen, 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.
Another issue raised by the movants is whether or not the seamen violated their contracts of employment.

The form contracts approved by the National Seamen Board [now POEA] are designed to protect Filipinos, not
foreign shipowners who can take care of themselves. The standard forms embody the basic minimums which
must be incorporated as parts of the employment contract. They are not collective bargaining agreements or
immutable contracts which the parties cannot improve upon or modify in the course of the agreed peril of time.
To state, therefore, that the affected seamen cannot petition their employer for higher salaries during the 12-month
duration of the contract runs counter to established principles of labor legislation. The National Labor Relations
Commission, as the appellate tribunal from the decision of the National Seamen Board, correctly ruled that the seamen
did not violate their contracts to warrant their dismissal.
Suzara vs. Benipayo, G.R. No. 57999; Suzara vs. National Labor Relations Commission, August 1, 1989

Facts: A group of Filipino seamen entered into separate contracts of employment with Magsaysay Lines at specified
salary rates. When they arrived at Vancouver, Canada, the seamen demanded and received additional wages
prescribed by the International Transport Workers Federation (ITF) in amounts over and above the rates appearing in
their employment contract approved earlier by the National Seamen Board.

When the vessel docked at Nagoya, an NSB representative boarded the vessel. He called a meeting among the
seamen, and urged them to sign an agreement, which they did. It turned out that in the agreement the following
statement was inserted: “the amounts were received and held by crew members in trust for shipowners.”

When the vessel reached Manila, Magsaysay Lines demanded from the seamen the “overpayments” made to them in
Canada. When they refused, it filed charges against them before the NSB.

NSB declared the seamen guilty of breach of their employment contracts and suspended the seamen for three years,
prompting the workers to bring the case up to the Supreme Court.

Ruling: The Supreme Court reversed and set aside the decisions of the NSB and the NLRC. It held that the seamen
were not guilty of the offenses for which they were charged and ordered Magsaysay Lines to pay the seamen their
earned but unpaid wages and overtime pay according to the rates in the Special Agreement that the parties entered into
in Vancouver. The criminal cases were ordered dismissed. The Court reiterated the Vir-Jen pronouncements.

INVALID SIDE AGREEMENT

An agreement that diminishes the employee’s pay and benefits as contained in a POEA-approved contract is void,
unless such subsequent agreement is approved by POEA.

CASE:

Chavez vs. Bonto-Perez, Rayala, et al., G.R. No. 109808, March 1, 1995

Facts: Petitioner Chavez, hired as an entertainment dancer in Japan, entered into a standard employment contract
through a Philippine placement agency for two (2) to six (6) months, at a monthly compensation of US$1,500.00. The
POEA approved the contract. Subsequently, however, petitioner executed a side agreement with her Japanese
employer stipulating a monthly salary of $750, and authorizing the employer to deduct $250 as commission of her
manager. The salary therefore became Five hundred dollars ($500) only.

She returned to the Philippines on June 14, 1989. On February 21, 1991, she filed a complaint, seeking payment of
US$6,000.00, representing the unpaid portion of her basic salary for six months. The POEA Administrator dismissed
the complaint, holding that the agreement for a monthly salary of $750 was valid. Moreover, the POEA adjudged the
complainant petitioner guilty of laches or delay in filing her complaint about two years after her employment. On
appeal, the NLRC upheld the POEA’s decision. Chavez petitioned for review.

Ruling: The Supreme Court, in a decision penned by Mr. Justice Puno, reversed those of the POEA and the NLRC,
and ruled:

Firstly, we hold that the managerial commission agreement executed by petitioner [Chavez] to authorize her Japanese
employer to deduct US$250.00 from her monthly basic salary is void because it is against our existing laws, morals
and public policy. It cannot supersede the standard employment contract of December 1, 1988 approved by the POEA
with the following stipulation appended thereto: “It is understood that the terms and conditions stated in this
Employment Contract are in conformance with the Standard Employment Contract for Entertainers prescribed by the
POEA under Memorandum Circular No. 2, Series of 1986. Any alterations or changes made in any part of this
contract without prior approval by the POEA shall be null and void.” (Emphasis supplied.)
Clearly, the basic salary of US$1,500.00 guaranteed to petitioner under the parties’ standard employment contract is in
accordance with the minimum employment standards with respect to wages set by the POEA. Thus, the side
agreement which reduced petitioner’s basic wage to US$750.00 is null and void for violating the POEA’s minimum
employment standards, and for not having been approved by the POEA.

Secondly, the doctrine of laches or “stale demands” cannot be applied to petitioner.

DELAY IN FILING CLAIM

In the above-cited case of Chavez, the Court explained why the claim, although filed two years after the employment,
could still prosper. The laches doctrine did not apply.

Laches is defined as the failure or neglect for an unreasonable and unexplained length of time to do that which,
by exercising due diligence, could or should have been done earlier, thus giving rise to a presumption that the
party entitled to assert it either has abandoned or declined to assert it. It is not concerned with mere lapse of time;
the fact of delay, standing alone, is insufficient to constitute laches. Laches refers to deliberate lack of interest or lack
of action to pursue a claim.

The doctrine of laches is based upon grounds of public policy which requires, for the peace of society, the
discouragement of stale claims, and is principally a question of the inequity or unfairness of permitting a right or claim
to be enforced or asserted. There is no absolute rule as to what constitutes laches; each case is to be determined
according to its particular circumstances. The question of laches is addressed to the sound discretion of the court, and
since it is an equitable doctrine, its application is controlled by equitable considerations. It cannot be worked to defeat
justice or to perpetrate fraud and injustice.

In the case of Esalyn Chavez, she filed her claim well within the three-year prescriptive period for the filing of money
claims set forth in Article 291 [now 305] of the Labor Code. For this reason, the Court held the doctrine of laches
inapplicable to petitioner. As ruled in Imperial Victory Shipping Agency vs. NLRC, 200 SCRA 178 (1991):

“x x x Laches is a doctrine in equity while prescription is based on law. Our courts are basically courts of law, not
courts of equity. Thus, laches cannot be invoked to resist the enforcement of an existing legal right.xxx

“Thus, where the claim was filed within the three-year statutory period, recovery therefor cannot be barred by laches.
Courts should never apply the doctrine of laches earlier than the expiration of time limited for the commencement of
actions at law.

MINIMUM EMPLOYMENT CONDITIONS

The POEA Regulations Governing Overseas Employment prescribes the following minimum provisions of
employment contracts:

a. Guaranteed wages for regular working hours and overtime pay, as appropriate, which shall not be
lower than the prescribed minimum wage in the host country, nor lower than the appropriate minimum wage
standard set forth in a bilateral agreement or international convention duly ratified by the host country and the
Philippines or not lower than the minimum wage in the Philippines, whichever is highest;

b. Free transportation to and from the worksite, or offsetting benefit;

c. Free food and accommodation, or offsetting benefit;

d. Just/authorized causes for termination of the contract or of the services of the workers taking into
consideration the customs, traditions, norms, mores, practices, company policies and the labor laws and social
legislations of the host country;
 e. The Administration may also consider the following as basis for other provisions of the contract:

1. Existing labor and social laws of the host country;

2. Relevant agreements, conventions, delegations or resolutions;

3. Relevant bilateral and multilateral agreements or arrangements with the host country; and

4. Prevailing condition/realities in the market.

FREEDOM TO STIPULATE

Parties to overseas employment contracts are allowed to stipulate other terms and conditions and other benefits not
provided under these minimum requirements; provided the whole employment package should be more beneficial to
the worker than the minimum; provided that the same shall not be contrary to law, public policy and morals, and
provided further, that Philippine agencies shall make foreign employers aware of the standards of employment
adopted by the Administration.

ART. 21. FOREIGN SERVICE ROLE AND PARTICIPATION

To provide ample protection to Filipino workers abroad, the labor attaches, the labor reporting officers duly
designated by the Secretary of Labor and the Philippine diplomatic or consular officials concerned shall, even without
prior instruction or advice from the home office, exercise the power and duty:

(a) To provide all Filipino workers within their jurisdiction assistance on all matters arising out of
employment;

(b) To insure that Filipino workers are not exploited or discriminated against;

(c) To verify and certify as requisite to authentication that the terms and conditions of employment in
contracts involving Filipino workers are in accordance with the Labor Code and rules and regulations of the
Overseas Employment Development Board and National Seamen Board;

(d) To make continuing studies or researches and recommendations on the various aspects of the employment
market within their jurisdiction;

(e) To gather and analyze information on the employment situation and its probable trends, and to make such
information available to the Department of Labor and Employment and the Department of Foreign Affairs;
and

(f) To perform such other duties as may be required of them from time to time.

COMMENTS

PROTECTION AND ASSISTANCE BY GOVERNMENT AGENCIES

In addition to the officials mentioned in Article 21, R.A. No. 8042 (Sec. 23) assigns four government agencies to
promote the welfare and protect the rights of migrant workers and, as far as applicable, of all overseas Filipinos. The
agencies are the:

1. Department of Foreign Affairs (DFA),

2. Department of Labor and Employment (DOLE),
3. Philippine Overseas Employment Administration (POEA), and the
4. Overseas Workers Welfare Administration (OWWA)
(a) Department of Foreign Affairs. — The Department, through its home office or foreign posts, shall take priority
action or make representation with the foreign authority concerned to protect the rights of migrant workers and other
overseas Filipinos and extend immediate assistance including the repatriation of distressed or beleaguered migrant
workers and other overseas Filipinos.

Furthermore, R.A. No. 8042 created the position of Legal Assistant for Migrant Worker’s Affairs [LAMWA]
under the Department of Foreign Affairs. Its primary responsibility is to provide and coordinate all legal
assistance services to Filipinos in distress. It also administers the Legal Assistance Fund for Migrant Workers.

Finally, R.A. No. 8042 establishes a “Migrant Workers and Other Overseas Filipinos Resource Center” in
Philippine Embassies in countries where there are at least 20,000 migrant workers.

The resource center is envisioned to provide such services as:

1. Counseling and legal assistance,

2. Welfare assistance including procurement of medical and hospitalization services,
3. Registration of undocumented workers, and
4. Conciliation of disputes arising from employer-employee relationship.
5. The resource center is to be established and operated jointly by the government agencies
mentioned, although its operation is to be managed by the Labor Attaché.

(b) Department of Labor and Employment. — The Department of Labor and Employment shall see to it that labor
and social welfare laws in the foreign countries are fairly applied to migrant workers and whenever applicable,
to other overseas Filipinos including the grant of legal assistance and referral to proper medical centers or
hospitals.

(c) Philippine Overseas Employment Administration. — The POEA shall regulate private sector participation in
the recruitment and overseas placement of workers by setting up a licensing and registration system. It shall
also formulate and implement, in coordination with appropriate entities concerned, when necessary, a system for
promoting and monitoring the overseas employment of Filipino workers taking into consideration their welfare and
the domestic manpower requirements.

(d) Overseas Workers Welfare Administration. — The Welfare Officer or in his absence, the coordinating officer,
shall provide the Filipino migrant worker and his family all the assistance they may need in the enforcement of
contractual obligations by agencies or entities and/or their principals. In the performance of this function, he shall
make representation and may call on the agencies or entities concerned to conferences or conciliation meetings for the
purpose of setting the complaints or problems brought to his attention.

THE RPM CENTER (Re-Placement and Monitoring Center)

TO REINTEGRATE MIGRANT WORKER RETURNING TO THE PHILIPPINES - Coordinating with the private
sector, the RPM Center is expected to develop livelihood programs for the returning workers and formulate a
computer-based information system on skilled Filipino migrant workers.

REPATRIATION

The OWWA has a role to play even in cases where a worker has to be sent or brought back to the Philippines, as
shown in the dramatic repatriation of thousands of OFWs trapped in Israel-Lebanon war in July 2006. The repatriation
of the worker and the transport of his personal belongings shall be the primary responsibility of the agency which
recruited or deployed the worker overseas. All costs attendant to repatriation shall be borne by or charged to the
agency concerned and/or its principal.

In no case shall an employment agency require any bond or cash deposit from the worker to guarantee his/her
repatriation. The mandatory repatriation bond is abolished as of June 17, 1995 pursuant to Section 36 of R.A. No.
8042.

Of the Remains

The repatriation of remains and transport of personal belongings of a deceased worker and all costs attendant thereto
shall be borne by the principal and/or the local agency.

Worker at Fault

In cases where the termination of employment is due solely to the fault of the worker, the principal/employer, or
agency shall not in any manner be responsible for the repatriation of the former and/or his belongings.

In Case of Disasters

The OWWA (Overseas Workers Welfare Administration), in coordination with appropriate international agencies,
shall undertake the repatriation of workers in cases of war, epidemic, disasters or calamities, natural or man-made, and
other similar events, without prejudice to reimbursement by the responsible principal or agency. However, in cases
where the principal or recruitment agency cannot be identified, all costs attendant to repatriation shall be borne by the
OWWA.

The law has created and established an emergency repatriation fund under the control of OWWA.

Validity

A recruitment agency has questioned the validity of Section 15 of R.A. No. 8042 and of Secs. 52 to 55 of the
implementing rules on the ground that they violate the agency’s right to due process.

The Court upheld the validity of the law and the rules which provide that “the repatriation of remains and transport of
the personal belongings of a deceased worker and all costs attendant thereto shall be borne by the principal and/or the
local agency.” The mandatory nature of said obligation is characterized by the legislature’s use of the word “shall.”
That the concerned government agencies opted to demand the performance of said responsibility solely upon
petitioner does not make said directives invalid as the law plainly obliges a local placement agency such as herein
petitioner to bear the burden of repatriating the remains of a deceased OFW with or without recourse to the principal
abroad.

In this regard, we [the Court] see no reason to invalidate Sec. 52 of the omnibus rules as R.A. No. 8042 itself permits
the situation wherein a local recruitment agency can be held exclusively responsible for the repatriation of a deceased
OFW.

Repatriation is in effect an unconditional responsibility of the agency and/or its principal that cannot be delayed by an
investigation of why the worker was terminated from employment. To be left stranded in a foreign land without the
financial means to return home and being at the mercy of unscrupulous individuals is a violation of the OFW’s dignity
and his human rights. These are the same rights R.A. No. 8042 seeks to protect.

Mandatory Repatriation of Underage Worker

Section 16 of R.A. No. 8042

Responsible officers in the Foreign Service shall without delay repatriate said workers and advise the Department of
Foreign Affairs through the fastest means of communication available of such discovery and other relevant
information.

Sanction to Recruitment / Manning Agency

1. The license of a recruitment/manning agency which recruited or deployed an underage migrant worker shall
be automatically revoked and shall be imposed a fine of not less than five hundred thousand pesos
(P500,000.00) but not more than one million pesos (P1,000,000.00).
2. All fees pertinent to the processing of papers or documents in the recruitment or deployment shall be refunded
in full by the responsible recruitment/manning agency, without need of notice, to the underage migrant worker
or to his parents or guardian.
3. The refund shall be independent of and in addition to the indemnification for the damages sustained by the
underage migrant worker. The refund shall be paid within thirty (30) days from the date of the mandatory
repatriation as provided for in this Act.

ART. 22. MANDATORY REMITTANCE OF FOREIGN EXCHANGE EARNINGS

It shall be mandatory for all Filipino workers abroad to remit a portion of their foreign exchange earnings to their
families, dependents, and/ or beneficiaries in the country in accordance with rules and regulations prescribed by the
Secretary of Labor and Employment.

Executive Order No. 857, as amended, prescribes the percentages of foreign exchange remittance ranging from 50%
to 80% of the basic salary, depending on the worker’s kind of job.

ART. 23. COMPOSITION OF THE BOARDS

a) The Overseas Employment Development Board shall be composed of the Secretary of Labor as Chairman,
the Undersecretary of Labor as Vice-Chairman, and a representative each of the Department of Foreign
Affairs, the Department of National Defense, the Central Bank, the Department of Education and Culture, the
National Manpower and Youth Council, the Bureau of Employment Services, a workers’ organization and an
employers organization, and the Executive Director of the OEDB as members.

(b) The National Seamen Board shall be composed of the Secretary of Labor as Chairman, the Undersecretary
of Labor as Vice-Chairman, the Commandant of the Philippine Coast Guard, and a representative each of the
Department of Education and Culture, the Central Bank, the Maritime Industry Authority, the Bureau of
Employment Services, a national shipping association and the Executive Director of the NSB as members.

The members of the Boards shall receive allowances to be determined by the Boards which shall not be more
than P2,000 per month.

(c) The Boards shall be attached to the Department of Labor for policy and program coordination. They shall
each be assisted by a Secretariat headed by an Executive Director who shall be a Filipino citizen with sufficient
experience in manpower administration, including overseas employment activities. The Executive Director
shall be appointed by the President of the Philippines upon the recommendation of the Secretary of Labor and
shall receive an annual salary as fixed by law. The Secretary of Labor shall appoint the other members of the
Secretariat.

(d) The Auditor General shall appoint his representative to the Boards to audit their respective accounts in
accordance with auditing laws and pertinent rules and regulations
 ART. 24. BOARDS TO ISSUE RULES AND COLLECT FEES

The Boards shall issue appropriate rules and regulations to carry out their functions. They shall have the
power to impose and collect fees from employers concerned, which shall be deposited in the respective accounts
of said Boards and be used by them exclusively to promote their objectives.

Chapter II

REGULATIONS OF RECRUITMENT AND PLACEMENT

ACTIVITIES

I. Requirements and restriction for the private sector’s participation in recruitment and placement of
workers, local and overseas
II. Acts or Practices prohibited in recruitment and placement activities of licensed recruiters
III. Grounds and office an employment license or recruitment permit be cancelled

ART. 25. PRIVATE SECTOR PARTICIPATION IN THE RECRUITMENT AND PLACEMENT OF

WORKERS

Pursuant to national development objectives and in order to harness and maximize the use of private sector
resources and initiative in the development and implementation of a comprehensive employment program, the
private employment sector shall participate in the recruitment and placement of workers, locally and overseas,
under such guidelines, rules and regulations as may be issued by the Secretary of Labor.

POEA’S RETAINED JURISDICTION

R.A. No. 8042 transferred from POEA to NLRC the jurisdiction over OFWs’ claims arising from employer-employee
relationship.

POEA retains original and exclusive jurisdiction over cases involving violations of POEA rules and regulations,
disciplinary cases and other cases that are administrative in character involving OFWs.

To sum: POEA performs REGULATORY, ENFORCEMENT and LIMITED or SPECIAL ADJUDICATORY

FUNCTIONS

VALIDITY OF POEA REGULATIONS

Under Sec. 4(a) of E.O. No. 797 which created the POEA, the authority to issue regulations is clearly provided:
 “x x x The governing Board of the Administration (POEA), as hereunder provided, shall promulgate the
necessary rules and regulations to govern the exercise of the adjudicatory functions of the Administration
(POEA).”

Power of subordinate legislation – Potestas Delegata non Delegari Potest

The regulations issued by administrative agencies have the force and effect of law.

Must follow publication – Tañada v Tuvera

Administrative rules and regulations must be published if its purpose is to enforce or implement existing law pursuant
to a valid delegation. Considering that POEA Administrative Circular No. 2, Series of 1983 (embodying a schedule of
fees that employment offices may charge) has not yet been published or filed with the National Administrative
Register, the circular cannot be used as basis for the imposition of administrative sanctions.

ART. 26. TRAVEL AGENCIES PROHIBITED TO RECRUIT

Travel agencies and sales agencies of airline companies are prohibited from engaging in the business of
recruitment and placement of workers for overseas employment whether for profit or not.

ART. 27. CITIZENSHIP REQUIREMENT

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

DISQUALIFICATIONS

Local Employment [BLE RULES]

The following are not qualified to engage in the business of recruitment and placement for local employment:

A. Those who are convicted of illegal recruitment, trafficking in persons, anti-child labor violation, or crimes
involving moral turpitude.
B. Those against whom probable cause or prima facie finding of guilt for illegal recruitment or other related
cases exist particularly to owners or directors of agencies who have committed illegal recruitment or other
related cases.
C. Those agencies whose licenses have been previously revoked or cancelled by the Department under Section
54 of these rules
D. Cooperatives whether registered or not under the Cooperative Act of the Philippines
E. Law enforcers and any official and employee of the DOLE
F. Sole proprietors of duly licensed agencies are prohibited from securing another license to engage in
recruitment and placement
G. Sole proprietors, partnerships or corporations licensed to engage in private recruitment and placement for
local employment are prohibited from engaging in job contracting or sub-contracting activities.

Overseas Employment [POEA RULES]

The following are disqualified from participating or engaging in the recruitment and placement of workers for
overseas employment
 A. Travel agencies and sales agencies of airline companies
B. Officers or members of the Board of any corporation or partners in a partnership engaged in the business of a
travel agency
C. Corporations and partnerships, where any of its officers, members of the board or partners is also an officer,
member of the board or partners is also an officer, member of the board or partner of a corporation or
partnership engaged in the business of a travel agency.
D. Individuals, partners, officers or directors of an insurance company who make, propose or provide an
insurance contract under the compulsory insurance coverage for agency-hired OFW
E. Sole proprietors, partners or officers and members of the board with derogatory records, such as, but not
limited to the following:
a. Those convicted, or against whom probable cause or prima facie finding of guilt is determined by a
competent authority, for illegal recruitment, or for other related crimes or offenses committed in the
course of, related to, or resulting from, illegal recruitment, or for crimes involving moral turpitude.
b. Those agencies who licenses have been revoked for violation of RA No. 8042 (Migrant Workers and
Overseas Filipinos Act of 1995), as amended, PD 442 (Labor Code of the Philippines), as amended,
and RA 9208 (Trafficking in persons Act of 2003), as amended and their implementing rules and
regulations;
c. Those agencies whose licenses have been cancelled, or those who, pursuant to the Order of the
Administrator were included in the list of persons with derogatory record for violation of recruitment
laws and regulations; and
F. Any official or employee of the DOLE, POEA, OWWA, DFA, DOJ, DOH, BI, IC, NLRC, TESDA, CFO,
NBI, PNP, Civil Aviation Authority of the Philippines (CAAP), international airport authorities, and other
government agencies directly involved in the implementation of RA 8042 as amended, and/or any of his/her
relatives within the fourth civil degree of consanguinity or affinity.

ART. 28. CAPITALIZATION

All applicants for authority to hire or renewal of license to recruit are required to have such substantial
capitalization as determined by the Secretary of Labor.

CAPITALIZATION

A private employment agency for LOCAL employment should have a minimum networth of PHP 1,000,000.00 in the
case of single proprietorship and partnership or a minimum paid-up capital of PHP 1,000,000.00 in the case of
corporation.

A private recruitment or manning agency for OVERSEAS employment should have a minimum capitalization of
PHP 5,000,000.00 for single proprietorship or partnership, and a minimum paid-up capital of PHP 5,000,000.00 for
corporation.