LABOR LAW I

COURSE SYLLABUS

PART II
RECRUITMENT AND PLACEMENT

1. DEFINITION (Labor Code, Art. 13[b])

 People v. Panis, G.R. Nos. 58674-77, July 11, 1986

Recruitment and placement' refers to any act of canvassing, enlisting, contracting, transporting, 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.
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.

 C.F. Sharp Crew Management, Inc. v. Espanol, Jr., G.R. No. 155903, Sept. 14, 2007

Article 13(b) of the Labor Code defines recruitment and placement as: 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. On the basis of this definition—and contrary to what
C.F. Sharp wants to portray—the conduct of preparatory interviews is a recruitment activity.
The fact that C.F. Sharp did not receive any payment during the interviews is of no moment. From the
language of Article 13(b), the act of recruitment may be “for profit or not.” Notably, it is the lack of the
necessary license or authority, not the fact of payment, that renders the recruitment activity of LCL unlawful.

 People v. Abella, G.R. No. 195666, Jan. 20, 2016

Same definition of recruitment as mentioned in the first two cases.

2. ILLEGAL RECRUITMENT AND PROHIBITED PRACTICES (Local Employment – Labor Code,

Arts. 34, 38 & 39; DO 141-14, or the “Revised Rules and Regulations Governing Recruitment and
Placement for Local Employment,” Sec. 42; Overseas Employment – Labor Code, Arts. 34, 38 &
39; Ra 8042, as amended by RA 10022, Secs. 6 & 7; Omnibus Rules, or the “Omnibus Rules and
Regulations Implementing the Migrant Workers and Overseas Filipinos Act of 1995, as amended
by Republic Act No. 10022,” Rule IV, Sec. 1)
 People v. Tolentino, G.R. No. 208686, July 1, 2015

Explanation below

2.1. DEFINITION (Labor Code, Art. 38[a]; DO 141-14, Sec. 42; RA 8042, as amended, Sec. 6;
Omnibus Rules, Rule IV, Sec. 1)
 People v. Tolentino, G.R. No. 208686, July 1, 2015

ART. 38. Illegal Recruitment

(a) Any recruitment activities, including the prohibited practices enumerated under Article 34of this Code, to
be undertaken by non-licensees or non-holders of authority shall be deemed illegal and punishable under
Article 39 of this Code. The Department of Labor and Employment or any law enforcement officer may
initiate complaints under this Article.
(b) Illegal recruitment when committed by a syndicate or in large scale shall be considered an offense
involving economic sabotage and shall be penalized in accordance with Article 39 hereof. Illegal recruitment
is deemed committed by a syndicate if carried out by a group of three (3) or more persons conspiring and/or
confederating with one another in carrying out any unlawful or illegal transaction, enterprise or scheme
defined under the first paragraph hereof. Illegal recruitment is deemed committed in large scale if committed
against three (3) or more persons individually or as a group.
(c) The Secretary of Labor and Employment or his duly authorized representatives shall have the power to
cause the arrest and detention of such non-licensee or non-holder of authority if after investigation it is
determined that his activities constitute a danger to national security and public order or will lead to further
exploitation of job-seekers. The Secretary shall order the search of the office or premises and seizure of
documents, paraphernalia, properties and other implements used in illegal recruitment activities and the
closure of companies, establishments and entities found to be engaged in the recruitment of workers for
overseas employment, without having been licensed or authorized to do so. (Emphases supplied)

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Section 6 of RA 8042 provides for the definition of illegal recruitment:
SEC. 6. Definition. – For purposes of this Act, illegal recruitment shall mean any act of canvassing, enlisting,
contracting, transporting, utilizing, hiring, or procuring workers and includes referring, contract services,
promising or advertising for employment abroad, whether for profit or not, when undertaken by a non-
licensee or non-holder of authority contemplated under Article 13(f) of Presidential Decree No. 442, as
amended, otherwise known as the Labor Code of the Philippines: Provided, That any such non-licensee or
non-holder who, in any manner, offers or promises for a fee employment abroad for two or more persons
shall be deemed so engaged. It shall likewise include the following acts, whether committed by any person,
whether a non-licensee, non-holder, licensee or holder of authority:
(a) To charge or accept directly or indirectly any amount greater than that specified in the schedule of
allowable fees prescribed by the Secretary of Labor and Employment, or to make a worker pay any amount
greater than that actually received by him as a loan or advance;
(b) To furnish or publish any false notice or information or document in relation to recruitment or
employment;
(c) To give any false notice, testimony, information or document or commit any act of misrepresentation for
the purpose of securing a license or authority under the Labor Code;
(d) To induce or attempt to induce a worker already employed to quit his employment in order to offer him
another unless the transfer is designed to liberate a worker from oppressive terms and conditions of
employment;
(e) To influence or attempt to influence any person or entity not to employ any worker who has not applied
for employment through his agency;
(f) To engage in the recruitment or placement of workers in jobs harmful to public health or morality or to the
dignity of the Republic of the Philippines;
(g) To obstruct or attempt to obstruct inspection by the Secretary of Labor and Employment or by his duly
authorized representative;
(h) To fail to submit reports on the status of employment, placement vacancies, remittance of foreign
exchange earnings, separation from jobs, departures and such other matters or information as may be
required by the Secretary of Labor and Employment;
(i) To substitute or alter to the prejudice of the worker, employment contracts approved and verified by the
Department of Labor and Employment from the time of actual signing thereof by the parties up to and
including the period of the expiration of the same without the approval of the Department of Labor and
Employment;
(j) For an officer or agent of a recruitment or placement agency to become an officer or member of the
Board of any corporation engaged in travel agency or to be engaged directly or indirectly in the
management of a travel agency;
(k) To withhold or deny travel documents from applicant workers before departure for monetary or financial
considerations other than those authorized under the Labor Code and its implementing rules and
regulations;
(l) Failure to actually deploy without valid reason as determined by the Department of Labor and
Employment; and
(m) Failure to reimburse expenses incurred by the worker in connection with his documentation and
processing for purposes of deployment, in cases where the deployment does not actually take place without
the worker’s fault. Illegal recruitment when committed by a syndicate or in large scale shall be considered an
offense involving economic sabotage.

Unlike illegal recruitment as defined under the Labor Code which is limited to recruitment activities
undertaken by non-licensees or non-holders of authority, under Article 6 of RA 8042, illegal recruitment (for
overseas employment) may be committed not only by non-licensees or non-holders of authority but also by
licensees or holders of authority.

 People v. Abella, G.R. No. 195666, Jan. 20, 2016

Same definition of illegal recruitment as above.

 People v. Dela Cruz, G.R. No. 214500, June 28, 2017

Definition under Section 6 of RA No. 8042.

 People v. Sison, G.R. No. 187160, Aug. 9, 2017

Definitions under Art. 38 of Labor Code and Section 6 of RA No. 8042.

2.2. ELEMENTS

5.2.1. Simple illegal recruitment

 People v. Dela Cruz, G.R. No. 214500, June 28, 2017

In order to hold a person liable for illegal recruitment, the following elements must concur: (1) the offender
undertakes any of the activities within the meaning of "recruitment and placement" under Article 13(b) of the
Labor Code, or any of the prohibited practices enumerated under Article 34 of the Labor Code (now Section
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6 of Republic Act No. 8042) and (2) the offender has no valid license or authority required by law to enable
him to lawfully engage in recruitment and placement of workers.

 People v. Estrada, G.R. No. 225730, Feb. 28, 2018

Under Section 6 of R.A. No. 8042, illegal recruitment, when undertaken by a non-licensee or non-holder of
authority as contemplated under Article 13(f) of the Labor Code, shall mean any act of canvassing, enlisting,
contracting, transporting, utilizing, hiring, procuring workers, and including referring, contract services,
promising or advertising for employment abroad, whether for profit or not.
Further, to sustain a conviction for illegal recruitment under R.A. No. 8042 in relation to the Labor Code, the
prosecution must establish two (2) elements: first, the offender has no valid license or authority required by
law to enable one to lawfully engage in the recruitment and placement of workers; and second, the offender
undertakes any of the activities within the meaning of recruitment and placement defined in Article 13(b) of
the Labor Code, or any of the prohibited practices enumerated under Section 6 of R.A. No. 8042.

The Court is convinced that the prosecution was able to establish the essential elements of the crime of
illegal recruitment in large scale.
First, it is not disputed that Estrada is not licensed or authorized to recruit workers for overseas placement.
During the trial, the defense admitted the POEA Certification which stated that Estrada is not included
among the list of employees submitted by ABCA for POEA acknowledgment. Therefore, Estrada is not
authorized to recruit workers for overseas employment. This fact was not denied by Estrada in her defense
anchored only on the allegation that she did not recruit the private complainants but merely mentioned
ABCA and Worldview to them.
Second, the prosecution was able to establish that Estrada unlawfully engaged in activities which refer to
recruitment and placement under Article 13(b) of the Labor Code and Section 6 of R.A. No. 8042.
Specifically, the prosecution was able to sufficiently demonstrate that Estrada promised and recruited
private complainants for employment abroad for a fee.

5.2.2. Illegal recruitment committed by a syndicate

 People v. Lalli, G.R. No. 195419, Oct. 12, 2011

In People v. Gallo, the Court enumerated the elements of syndicated illegal recruitment, to wit:
1. the offender undertakes either any activity within the meaning of "recruitment and placement" defined
under Article 13(b), or any of the prohibited practices enumerated under Art. 34 of the Labor Code;
2. he has no valid license or authority required by law to enable one to lawfully engage in recruitment and
placement of workers; and
3. the illegal recruitment is committed by a group of three (3) or more persons conspiring or confederating
with one another.

In this case, the trial court, as affirmed by the appellate court, found Lalli, Aringoy and Relampagos to have
conspired and confederated with one another to recruit and place Lolita for work in Malaysia, without a
POEA license. The three elements of syndicated illegal recruitment are present in this case, in particular: (1)
the accused have no valid license or authority required by law to enable them to lawfully engage in the
recruitment and placement of workers; (2) the accused engaged in this activity of recruitment and placement
by actually recruiting, deploying and transporting Lolita to Malaysia; and (3) illegal recruitment was
committed by three persons (Aringoy, Lalli and Relampagos), conspiring and confederating with one
another.

 People v. Sison, G.R. No. 187160, Aug. 9, 2017

The Court of Appeals held that all the elements of illegal recruitment were sufficiently proven in the case.
First, Sison herself did not dispute that she is not licensed or authorized to engage in recruitment or
placement activities. This fact was unknown to Castuera at the time of their transaction.
Second, the Court of Appeals held that even if Sison did not directly recruit Castuera, her actions led him to
believe that she was engaged in the recruitment business. Castuera was able to prove that it was Sison who
promised him a job as fruit picker in Australia and even accompanied him to Malaysia, Brunei, and
Indonesia in the guise of processing his visa application. However, the Court of Appeals noted that this
process was actually part of "defrauding [Castuera] and inveigling him with false or fraudulent promises of
employment in a foreign land."
Further, the Court of Appeals found that Sison made representations about her purported power and
authority to recruit for employment in Australia and, in the process, collected various. amounts of money
from Castuera as placement and processing fees. The Court of Appeals stated that it was "enough that
these recruiters give the impression that they have the ability to enlist workers for job placement abroad in
order to induce the latter to tender payment of fees

5.2.3. Illegal recruitment committed in large scale

 People v. Dela Cruz, G.R. No. 214500, June 28, 2017

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In order to hold a person liable for illegal recruitment, the following elements must concur: (1) the offender
undertakes any of the activities within the meaning of "recruitment and placement" under Article 13(b) of the
Labor Code, or any of the prohibited practices enumerated under Article 34 of the Labor Code (now Section
6 of Republic Act No. 8042) and (2) the offender has no valid license or authority required by law to enable
him to lawfully engage in recruitment and placement of workers. In the case of illegal recruitment in large
scale, as in this case, a third element is required: that the offender commits any of the acts of recruitment
and placement against three or more persons, individually or as a group.

The court concluded that all three elements of illegal recruitment in large scale are present in the instant
case. To recapitulate: First, appellant engaged in recruitment when she represented herself to be capable
of deploying workers to South Korea upon submission of the pertinent documents and payment of the
required fees; Second, all three (3) private complainants positively identified appellant as the person who
promised them employment as domestic helpers in Korea for a fee; and Third, Rosalina Rosales of the
Licensing Division of the POEA, testified that as per Certification issued by Noriel Devanadera, Director IV,
Licensing and Regulation Office, appellant is not licensed or authorized to recruit workers for overseas
employment. Clearly, the existence of the offense of illegal recruitment in large scale was duly proved by the
prosecution.

 People v. Estrada, G.R. No. 225730, Feb. 28, 2018

Same as above in the simple illegal recruitment topic with the addition below:

Finally, it is clear that Estrada committed illegal recruitment activities against the three (3) private
complainants. Thus, the trial and appellate courts properly convicted Estrada of the crime of illegal
recruitment in large scale.

2.3. TYPES OF ILLEGAL RECRUITMENT

5.3.1. Simple illegal recruitment

 People v. Dela Cruz, G.R. No. 214500, June 28, 2017 (SAME AS ABOVE)

5.3.2. Illegal recruitment constituting economic sabotage – (a) Illegal recruitment committed by a
syndicate, and (b) illegal recruitment committed in large scale (Labor Code, Art. 38[b]; RA 8042,
as amended, Sec. 6; Omnibus Rules, Rule IV, Sec. 1)
 People v. Sison, G.R. No. 187160, Aug. 9, 2017 (SAME AS ABOVE)
 People v. Estrada, G.R. No. 225730, Feb. 28, 2018 (SAME AS ABOVE)

2.4. ILLEGAL RECRUITMENT VS. ESTAFA

 People v. Dela Cruz, G.R. No. 214500, June 28, 2017

It is well-established in jurisprudence that a person may be charged and convicted for both illegal
recruitment and estafa. The reason therefor is not hard to discern: illegal recruitment is malum prohibitum,
while estafa is mala in se. In the first, the criminal intent of the accused is not necessary for conviction. In
the second, such intent is imperative. Estafa under Article 315, paragraph 2(a) of the Revised Penal Code is
committed by any person who defrauds another by using fictitious name, or falsely pretends to possess
power, influence, qualifications, property, credit, agency, business or imaginary transactions, or by means of
similar deceits executed prior to or simultaneously with the commission of fraud.

The elements of estafa by means of deceit are the following: (a) that there must be a false pretense or
fraudulent representation as to his power, influence, qualifications, property, credit, agency, business or
imaginary transactions; (b) that such false pretense or fraudulent representation was made or executed prior
to or simultaneously with the commission of the fraud; (c) that the offended party relied on the false
pretense, fraudulent act, or fraudulent means and was induced to part with his money or property; and (d)
that, as a result thereof, the offended party suffered damage.

Illegal recruitment already defined above.

 People v. Racho, G.R. No. 227505, Oct. 2, 2017

Same as above.

3. LIABILITY OF LOCAL RECRUITMENT AGENCY AND FOREIGN EMPLOYER

3.1. Criminal/Civil liabilities (RA 8042, as amended, Secs. 6 & 7; RPC, Arts. 100 & 104; Omnibus
Rules, Rule IV)
 People v. Velasco, G.R. No. 195668, June 25, 2014

The several accused in illegal recruitment committed in large scale against whom the State establishes a
conspiracy are each equally criminally and civilly liable. It follows, therefore, that as far as civil liability is
concerned each is solidarily liable to the victims of the illegal recruitment for the reimbursement of the sums
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collected from them, regardless of the extent of the participation of the accused in the illegal recruitment.

3.2. Administrative liability (RA 8042, as amended, Secs. 7, 10, 23[c.6], 37-A; Omnibus Rules,
Rule IV, Sec. 5; Id., Rule VI, Sec. 15; Id., Rule VII, Sec. 6; Id., Rule X, Sec. 10; Id., Rule XII, Sec.
2; Id., Rule XVI, Sec. 12)

3.3. Solidary liability of principal/employer and recruitment/placement agency for any and all
(money) claims (RA 8042, as amended, Sec. 10; Omnibus Rules, Rule II, Sec. 1[s], and Rule VII,
Sec. 3)

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 3.4. Liability of corporate director and officers not automatic; finding that they were remiss in
directing the affairs of that company necessary (RA 8042, as amended, Sec. 6; Omnibus Rules,
Rule IV, Sec. 4)
 Sto. Tomas v. Salac, G.R. No. 152642, Nov. 13, 2012 [En Banc]
 People v. Molina, G.R. No. 229712, Feb. 28, 2018 [Second Division]

4. THEORY OF IMPUTED KNOWLEDGE

 Sunace International Management Services, Inc. v. NLRC, G.R. No. 161757. Jan. 25,
2006
 APQ Shipmanagement Co., Ltd. v. Caseñas, G.R. No. 197303, June 4, 2014

5. TERMINATION OF CONTRACT OF MIGRANT WORKER WITHOUT JUST OR VALID CAUSE

(RA 8042, as amended, Secs. 10 & 37-A[d])

5.1. RATIONALE OF RA 8042/PROTECTION TO OFWS/SECURITY OF TENURE/DUE PROCESS

 Prieto v. NLRC, G.R. No. 93699, Sept. 10, 1993
 Sameer Overseas Placement Agency, Inc. v. Cabiles, G.R. No. 170139, Aug. 5, 2014
 Industrial Personnel & Management Services, Inc. (IPAMS) v. De Vera, G.R. No. 205703,
March 7, 2016
 Gopio v. Bautista, G.R. No. 205953, June 6, 2018

5.2. SEAFARERS AS CONTRACTUAL EMPLOYEES; GOVERNED BY POEA-SEC

 Millares v. NLRC, G.R. No. 110524, July 29, 2002
 Ravago v. Esso Eastern Marine, Ltd., G.R. No. 158324, March 14, 2005
 Manansala v. Marlow Navigation Phils., Inc., G.R. No. 208314, Aug. 23, 2017

5.3. REQUISITES WHEN FOREIGN LAW GOVERNS THE OVERSEAS EMPLOYMENT

CONTRACT; INTERNATIONAL LAW DOCTRINE OF PROCESSUAL PRESUMPTION OR
PRESUMED-IDENTITY APPROACH
 Industrial Personnel & Management Services, Inc. (IPAMS) v. De Vera, G.R. No.
205703, March 7, 2016
Based on the foregoing, the general rule is that Philippine laws apply even to overseas employment
contracts. This rule is rooted in the constitutional provision of Section 3, Article XIII that the State shall afford
full protection to labor, whether local or overseas. Hence, even if the OFW has his employment abroad, it
does not strip him of his rights to security of tenure, humane conditions of work and a living wage under our
Constitution.39

As an exception, the parties may agree that a foreign law shall govern the employment contract. A synthesis
of the existing laws and jurisprudence reveals that this exception is subject to the following requisites:
chanRoblesvirtualLawlibrary

1. That it is expressly stipulated in the overseas employment contract that a specific foreign law shall
govern;

2. That the foreign law invoked must be proven before the courts pursuant to the Philippine rules on
evidence;

3. That the foreign law stipulated in the overseas employment contract must not be contrary to law,
morals, good customs, public order, or public policy of the Philippines; and

4. That the overseas employment contract must be processed through the POEA.

The Court is of the view that these four (4) requisites must be complied with before the employer could
invoke the applicability of a foreign law to an overseas employment contract. With these requisites, the
State would be able to abide by its constitutional obligation to ensure that the rights and well-being of our
OFWs are fully protected. These conditions would also invigorate the policy under R.A. No. 8042 that the
State shall, at all times, uphold the dignity of its citizens whether in country or overseas, in general, and the
Filipino migrant workers, in particular.40 Further, these strict terms are pursuant to the jurisprudential
doctrine that "parties may not contract away applicable provisions of law especially peremptory provisions
dealing with matters heavily impressed with public interest,"41 such as laws relating to labor. At the same
time, foreign employers are not at all helpless to apply their own laws to overseas employment contracts
provided that they faithfully comply with these requisites.

If the first requisite is absent, or that no foreign law was expressly stipulated in the employment contract
which was executed in the Philippines, then the domestic labor laws shall apply in accordance with the
principle of lex loci contractus. This is based on the cases of Sameer Overseas and PCL Shipping.

If the second requisite is lacking, or that the foreign law was not proven pursuant to Sections 24 and 25 of
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Rule 132 of the Revised Rules of Court, then the international law doctrine of processual presumption
operates. The said doctrine declares that "[w]here a foreign law is not pleaded or, even if pleaded, is not
proved, the presumption is that foreign law is the same as ours."42 This was observed in the cases of EDI-
Staffbuilders and ATCI Overseas.

If the third requisite is not met, or that the foreign law stipulated is contrary to law, morals, good customs,
public order or public policy, then Philippine laws govern. This finds legal bases in the Civil Code,
specifically: (1) Article 17, which provides that laws which have, for their object, public order, public policy
and good customs shall not be rendered ineffective by laws of a foreign country; and (2) Article 1306,
which states that the stipulations, clauses, terms and conditions in a contract must not be contrary to law,
morals, good customs, public order, or public policy. The said doctrine was applied in the case of Pakistan
International.

Finally, if the fourth requisite is missing, or that the overseas employment contract was not processed
through the POEA, then Article 18 of the Labor Code is violated. Article 18 provides that no employer may
hire a Filipino worker for overseas employment except through the boards and entities authorized by the
Secretary of Labor. In relation thereto, Section 4 of R.A. No. 8042, as amended, declares that the State
shall only allow the deployment of overseas Filipino workers in countries where the rights of Filipino
migrant workers are protected. Thus, the POEA, through the assistance of the Department of Foreign
Affairs, reviews and checks whether the countries have existing labor and social laws protecting the rights
of workers, including migrant workers.43 Unless processed through the POEA, the State has no effective
means of assessing the suitability of the foreign laws to our migrant workers. Thus, an overseas
employment contract that was not scrutinized by the POEA definitely cannot be invoked as it is an
unexamined foreign law.

In other words, lacking any one of the four requisites would invalidate the application of the foreign law,
and the Philippine law shall govern the overseas employment contract.

5.4. SUBSTITUTION OR ALTERATION OF POEA-APPROVED EMPLOYMENT CONTRACTS (RA

8042, as amended, Sec. 6[i]; Omnibus Rules, Rule IV, Sec. 1[i])
 Placewell International Services Corporation v. Camote, G.R. No. 169973, June 26,
2006
R.A. No. 8042 explicitly prohibits the substitution or alteration to the prejudice of the worker, of employment
contracts already approved and verified by the Department of Labor and Employment (DOLE) from the time
of actual signing thereof by the parties up to and including the period of the expiration of the same without
the approval of the DOLE.9 Thus, we held in Chavez v. Bonto-Perez10 that the subsequently executed side
agreement of an overseas contract worker with her foreign employer which reduced her salary below the
amount approved by the POEA is void because it is against our existing laws, morals and public policy. The
said side agreement cannot supersede her standard employment contract approved by the POEA.
 Nisda v. Sea Serve Maritime Agency, G.R. No. 179177, July 23, 2009
In Placewell International Services Corporation v. Camote,78 we held that the subsequently executed side
agreement of an overseas contract worker with the foreign employer is void, simply because it is against our
existing laws, morals and public policy. The subsequent agreement cannot supersede the terms of the
standard employment contract approved by the POEA. Republic Act No. 8042, commonly known as the
Migrant Workers Act of 1995, expressly prohibits the substitution or alteration, to the prejudice of the worker,
of employment contracts already approved and verified by the Department of Labor and Employment
(DOLE) from the time of the actual signing thereof by the parties up to and including the period of the
expiration of the same, without the approval of DOLE.79 Since the second employment contract petitioner
Nisda signed with respondent ADAMS was void for not having been sanctioned by the POEA, then
petitioner Nisda’s employment with respondent ADAMS was still governed by his POEA-SEC until his
repatriation to the Philippines on 17 July 2002.

5.5. MONEY CLAIMS OF OFWs GOVERNED BY RA 8042, SEC. 10 – APPLIED ONLY TO CASES
OF ILLEGAL DISMISSAL; UNCONSTITUTIONAL CLAUSE “OR FOR THREE MONTHS FOR
EVERY YEAR OF THE UNEXPIRED TERM, WHICHEVER IS LESS”
 Poseidon International Maritime Services, Inc. v. Tamala, G.R. No. 186475, June 26,
2013
Sec. 10 RA 8042 relied by the CA in their decision does not apply to cases where the overseas Filipino
worker was not illegally dismissed. Said provision applies only to an illegally dismissed overseas contract
worker or a worker dismissed from overseas employment without just, valid or authorized cause.
 Sameer Overseas Placement Agency, Inc. v. Cabiles, G.R. No. 170139, Aug. 5, 2014
In Sameer Overseas Placement Agency Inc. v. Cabiles, 740 Phil. 403 (2014), this Court was confronted with
the question of the constitutionality of the reinstated clause in Republic Act 10022.

Reiterating our finding in Serrano, we ruled that “limiting wages that should be recovered by an illegally
dismissed overseas worker to three months is both a violation of due process and the equal protection
clauses of the Constitution.” This case should be no different from Serrano and Sameer.

A statute declared unconstitutional “confers no rights; it imposes no duties; it affords no protection; it creates
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no office; it is inoperative as if it has not been passed at all.” Incorporating a similarly worded provision in a
subsequent legislation does not cure its unconstitutionality. Without any discernable change in the
circumstances warranting a reversal, this Court will not hesitate to strike down the same provision.

5.6. COMPENSABLE DISABILITY ELEMENTS

 Guerrero v. Philippine Transmarine Carriers, Inc., G.R. No. 222523, Oct. 3, 2018
Work-relatedness of an injury or illness means that the seafarer’s injury or illness has a possible connection
to one’s work and thus, allows the seafarer to claim disability benefits thereof. The burden is placed upon
the Petitioner to present substantial evidence or such relevant evidence which a reasonable mind might
accept as adequate to justify a conclusion that there is a causal connection between the nature of his
employment and his injury. In the instant case, Petitioner failed to prove a reasonable connection between
his work as a Casino Dealer and his alleged lumbar disc injury resulting from his gym workout.

5.7. PRE-TERMINATION OF CONTRACT WITHOUT DUE PROCESS VIOLATES SECURITY OF

TENURE
 Sameer Overseas Placement Agency, Inc. v. Cabiles, G.R. No. 170139, Aug. 5, 2014
SAME
 Halili v. Justice for Children International, G.R. No. 194906, Sept. 9, 2015
The Supreme Court in the case of Halili vs. Justice for Children International (GR 194906, September 9,
2015, Ponente Associate Justice Estela M. Perlas-Bernabe), gives an enlightening explanation about
termination clause which may be found in employment contracts, to wit:

“While said clause is silent on the requirement of a legal cause for the same to be operative, the
fundamental principle is that the law is read into every contract. Hence, the contract’s termination clause
should not be interpreted as a form of blanket-license by which each of the parties may just abdicate the
contract at will. Rather, it is a clause which allows any of the parties to pre-terminate the employment
contract within the stipulated fixed-term period, provided that the party invoking the same has (a) a legal
cause for terminating it and (b) notifies the other party in writing four weeks prior to the intended date of
termination.”

Pursuant to the afore-quoted provisions of the Labor Code, such termination clause found in your
employment contract is violative of your rights to security of tenure and to be terminated only for just cause.
Here, it is indisputably clear that the requisites of legal cause and written notice of four (4) weeks prior to the
intended date of termination were not complied with by your employer. Hence, the termination of your
employment contract was not valid.

6. DEPLOYMENT OF MIGRANT WORKERS (RA 8042, as amended, Secs. 4-5; Omnibus Rules,
Rule III)

6.1. DIRECT HIRES (Omnibus Rules, Rule II, Sec. 1[i]; POEA MC-08-2018, or the “Implementing
Guidelines on the Registration of Direct-Hire Overseas Filipino Workers”)

6.2. BAN ON DIRECT-HIRING; EXEMPTIONS AND REQUIREMENTS (Labor Code, Art. 18; Revised
POEA Rules and Regulations Governing the Recruitment and Employment of Landbased
Overseas Filipino Workers of 2016, Part III, Rule I, Secs. 123-125)
 Dagasdas v. Grand Placement and General Services Corporation, G.R. No. 205727,
Jan. 18, 2017
Article 18. Ban on Direct-Hiring. - No employer may hire a Filipino worker for overseas employment except
through the Boards and entities authorized by the Secretary of Labor. Direct-hiring by members of the
diplomatic corps, international organizations and such other employers as may be allowed by the
Secretary of Labor is exempted from this provision. (Labor Code of the Philippines, Amended &
Renumbered, July 21, 2015.)

6.3. SUABILITY OF FOREIGN CORPORATIONS DIRECTLY HIRING FILIPINOS

 Facilities Management Corporation v. De la Rosa, G.R. No. L-38649, March 26, 1979

The main issue involved in the appeal is whether or not the plaintiff appellant has been doing business in
the Philippines, considering the fact that it has no license to transact business in the Philippines as a foreign
corporation. WE ruled:

The object of Sections 68 and 69 of the Corporation Law was not to prevent the foreign
corporation from performing single acts, but to prevent it from acquiring a domicile for the
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purpose of business without taking the steps necessary to render it amenable to suit in the
local courts. It was never the purpose of the Legislature to exclude a foreign corporation
which happens to obtain an isolated order for business from the Philippines, from securing
redress in the Philippine courts (Marshall Co. vs. Elser & Co., 46 Phil 70,75).

In Mentholatum Co., Inc., et al vs- M Court rules that-

No general rule or governing principle can be laid down as to what

constitutes 'doing' or 'engaging in' or 'transacting' business. Indeed, each
case must be judged in the light of its peculiar environmental
circumstances. The true test, however, seems to be whether the foreign
corporation is continuing the body or substance of the business or
enterprise for which it was organized or whether it has substantially retired
from it and turned it over to another. (Traction Cos. v. Collectors of Int
Revenue [C.C.A Ohio], 223 F. 984, 987). The term implies a continuity of
commercial dealings and arrangements, and contemplates, to that extent,
the performance of acts or works or the exercise of some of the functions
normally incident to, and in progressive prosecution of, the purpose and
object of its organization (Griffin v. Implement Dealers' Mut. Fire Ins. Co.,
241 N.W. 75, 77; Pauline Oil & Gas Co. v. Mutual Tank Line Co., 246 P.
851, 852, 118 Okl. III; Automotive Material Co. vs. American Standard
Metal Products Corp., 158 N.E. 698, 703, 327 III. 367)'. 72 Phil. 524, 528-
529.

And in Eastboard Navigation, Ltd., et al. vs. Juan Ysmael & Co., Inc., this Court held:

(d) While plaintiff is a foreign corporation without license to transact

business in the Philippines, it does not follow that it has no capacity to bring
the present action. Such license is not necessary because it is not engaged
in business in the Philippines. In fact, the transaction herein involved is the
first business undertaken by plaintiff in the Philippines, although on a
previous occasion plaintiff's vessel was chartered by the National Rice and
Corn Corporation to carry rice cargo from abroad to the Philippines. These
two isolated transactions do not constitute engaging in business in the
Philippines within the purview of Sections 68 and 69 of the Corporation Law
so as to bar plaintiff from seeking redress in our courts. (Marshall Wens Co.
vs. Henry W. Elser & Co. 49 Phil., 70; Pacific Vegetable Oil Corporation vs.
Angel O. Singson, G.R. No. L-7917, April 29, 1955)'. 102 Phil., pp. 1, 18.

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 7. REGULATION OF RECRUITMENT AND PLACEMENT ACTIVITIES (Labor Code, Arts. 13, 25-
39; RA 8042, as amended; Omnibus Rules; DO 141-14; Revised POEA Rules and Regulations
Governing the Recruitment and Employment of Landbased Overseas Filipino Workers of 2016;
2016 POEA Rules and Regulations Governing the Recruitment and Employment of Seafarers;
and POEA MC-08-2018 – Implementing Guidelines on the Registration of Direct-Hire Overseas
Filipino Workers [OFWs])
 Republic v. Humanlink Manpower Consultants, Inc. (Formerly MHY New
Recruitment International, Inc.) G.R. No. 205188, April 22, 2015
SAME

7.1. AUTHORITY AND LICENSE

7.1.1. Definition (Labor Code, Art. 13[f]; Omnibus Rules, Rule II, Sec. 1[b][w])

7.1.2. Non-transferability of license or authority (Labor Code, Art. 29)

 C.F. Sharp Crew Management, Inc. v. Espanol, Jr., G.R. No. 155903, Sept. 14, 2007

Article 29 of the Labor Code is explicit, viz.:

Art. 29. NON-TRANSFERABILITY OF LICENSE OR AUTHORITY

No license or authority shall be used directly or indirectly by any person other than the one in whose favor it
was issued or at any place other than that stated in the license or authority, nor may such license or
authority be transferred, conveyed or assigned to any other person or entity. Any transfer of business
address, appointment or designation of any agent or representative including the establishment of additional
offices anywhere shall be subject to the prior approval of the Department of Labor. (Emphasis ours)

Thus, Section 2(k), Rule 1, Book VI of the POEA Rules Governing Overseas Employment provides:

Section 2. Grounds for Suspension/Cancellation of License. x x x x

k. Appointing or designating agents, representatives or employees without prior approval from the
Administration.

7.2. SUSPENSION AND/OR CANCELLATION OF LICENSE OR AUTHORITY (Labor Code, Art. 35)

7.2.1. Jurisdiction of DOLE Secretary and POEA

 Trans Action Overseas Corp. v. Secretary of Labor, G.R. No. 109583, Sept. 5, 1997

Under Executive Order No. 797 (E.O. No. 797) and Executive Order No. 247 (E.O. No. 247), the POEA was
established and mandated to assume the functions of the Overseas Employment Development Board
(OEDB), the National Seamen Board (NSB), and the overseas employment function of the Bureau of
Employment Services (BES). Petitioner theorizes that when POEA absorbed the powers of these agencies,
Article 35 of the Labor Code, as amended, was rendered ineffective.

The power to suspend or cancel any license or authority to recruit employees for overseas employment is
vested upon the Secretary of Labor and Employment. Article 35 of the Labor Code, as amended, which
provides:

Art. 5. Suspension and/or Cancellation of License or Authority — The Minister of Labor shall have the power
to suspend or cancel any license or authority to recruit employees for overseas employment for violation of
rules and regulations issued by the Ministry of Labor, the Overseas Employment Development Board, and
the National Seamen Board, or for violation of the provisions of this and other applicable laws, General
Orders and Letters of Instructions.

In the case of Eastern Assurance and Surety Corp. v. Secretary of

Labor, we held that:

The penalties of suspension and cancellation of license or authority are prescribed for violations of the
above quoted provisions, among others. And the Secretary of Labor has the power under Section 35 of the
law to apply these sanctions, as well as the authority, conferred by Section 36, not only to "restrict and
regulate the recruitment and placement activities of all agencies," but also to "promulgate rules and
regulations to carry out the objectives and implement the provisions" governing said activities. Pursuant to
this rule-making power thus granted, the Secretary of Labor gave the POEA,6 "on its own initiative or upon
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filing of a complaint or report or upon request for investigation by any aggrieved person, . . (authority to)
conduct the necessary proceedings for the suspension or cancellation of the license or authority of any
agency or entity" for certain enumerated offenses including —

1) the imposition or acceptance, directly or indirectly, of any amount of money, goods or services, or any fee
or bond in excess of what is prescribed by the Administration, and

2) any other violation of pertinent provisions of the Labor Code and other relevant laws, rules and
regulations.

The Administrator was also given the power to "order the dismissal of the case of the suspension of the
license or authority of the respondent agency or contractor or recommend to the Minister the cancellation
thereof." (Emphasis supplied)

This power conferred upon the Secretary of Labor and Employment was echoed in People v. Diaz,9 viz.:

A non-licensee or non-holder of authority means any person, corporation or entity which has not been
issued a valid license or authority to engage in recruitment and placement by the Secretary of Labor, or
whose license or authority has been suspended, revoked or cancelled by the POEA or the Secretary.
(Emphasis supplied)

In view of the Court's disposition on the matter, we rule that the power to suspend or cancel any license or
authority to recruit employees for overseas employment is concurrently vested with the POEA and the
Secretary of Labor.

As regards petitioner's alternative argument that the non-filing of the 1987 POEA Schedule of Penalties with
the UP Law Center rendered it ineffective and, hence, cannot be utilized as basis for penalizing them, we
agree with Secretary Confesor's explanation, to wit:

On the other hand, the POEA Revised Rules on the Schedule of Penalties was issued pursuant to Article 34
of the Labor Code, as amended. The same merely amplified and particularized the various violations of the
rules and regulations of the POEA and clarified and specified the penalties therefore (sic). Indeed, the
questioned schedule of penalties contains only a listing of offenses. It does not prescribe additional rules
and regulations governing overseas employment but only detailed the administrative sanctions imposable
by this Office for some enumerated prohibited acts.

Under the circumstances, the license of the respondent agency was cancelled on the authority of Article 35
of the Labor Code, as amended, and not pursuant to the 1987 POEA Revised Rules on Schedule of
Penalties.
 Romero v. People, G.R. No. 171644, Nov. 23, 2011

The penalties of suspension and cancellation of license or authority are prescribed for violations of the
above-quoted provisions, among others. And the Secretary of Labor has the power under Section 35 of the
law to apply these sanctions, as well as the authority, conferred by Section 36, not only to "restrict and
regulate the recruitment and placement activities of all agencies," but also to "promulgate rules and
regulations to carry out the objectives and implement the provisions" governing said activities. Pursuant to
this rule-making power thus granted, the Secretary of Labor gave the POEA, on its own initiative or upon a
filing of a complaint or report or upon request for investigation by any aggrieved person, "xxx (authority to)
conduct the necessary proceedings for the suspension or cancellation of the license or authority of any
agency or entity" for certain enumerated offenses including -

1) the imposition or acceptance, directly or indirectly, of any amount of money, goods or services, or any fee
or bond in excess of what is prescribed by the Administration, and

2) any other violation of pertinent provisions of the Labor Code and other relevant laws, rules and
regulations.

The Administrator was also given the power to "order the dismissal of the case or the suspension of the
license or authority of the respondent agency or contractor or recommend to the Minister the cancellation
thereof."

This power conferred upon the Secretary of Labor and Employment was echoed in People v. Diaz, viz.:

A non-licensee or non-holder of authority means any person, corporation or entity which has not been
issued a valid license or authority to engage in recruitment and placement by the Secretary of Labor, or
whose license or authority has been suspended, revoked or cancelled by the POEA or the Secretary.

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  Republic v. Humanlink Manpower Consultants, Inc. (Formerly MHY New
Recruitment International, Inc.) G.R. No. 205188, April 22, 2015
While Section 2(c),29 Republic Act (R.A.) No. 804230 states that the State does not promote overseas
employment as a means to sustain economic growth, the State recognizes the vital role of overseas Filipino
workers to the nation's economy and development. Aware that overseas workers are vulnerable to
exploitation, the State sought to protect the interests and well-being of these workers with creation of
specialized bodies such as the POEA under the direct supervision of the DOLE Secretary.

One of the roles of the POEA is the regulation and adjudication of private sector participation in the
recruitment and placement of overseas workers.31 Article 25 of the Labor Code, as amended, reads:

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.
(Emphasis supplied)

This is echoed in Article 35 of the Labor Code, as amended, and Section 23(b.l), R.A. No. 8042 as amended
by R.A. No. 9422, where the legislature empowered the DOLE and POEA to regulate private sector
participation in the recruitment and overseas placement of workers, to wit:

ART. 35. Suspension and/or Cancellation of License Authority. - The Secretary of Labor shall have the
power to suspend or cancel any license or authority to recruit employees for overseas
employment for violation of rules and regulations issued by the Secretary of Labor, the Overseas
Employment Development Board, and the National Seamen Board, or for violation of the provisions of this
and other applicable laws, General Orders and Letters of Instruction. (Emphasis supplied)

Section23.xxxxxxx
(b.1) Philippine Overseas Employment Administration. The Administration 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.

In addition to its powers and functions, the administration shall inform migrant workers not only of their rights
as workers but also of their rights as human beings, instruct and guide the workers how to assert their rights
and provide the available mechanism to redress violation of their rights.


7.2.2. Impleading surety

 Finman General Assurance Corporation v. NLRC (POEA), G.R. No. 94588, July 2, 1992

7.3. PRIVATE SECTOR PARTICIPATION (Labor Code, Art. 25; RA 8042, as amended, Sec. 23;
Omnibus Rules, Rule X, Sec. 3; Revised POEA Rules and Regulations Governing the
Recruitment and Employment of Landbased Overseas Filipino Workers of 2016, Part II, Rule I;
and 2016 POEA Rules and Regulations Governing the Recruitment and Employment of
Seafarers, Part II, Rule I)

7.4. PLACEMENT BY THE PRIVATE SECTOR (Revised POEA Rules and Regulations Governing the
Recruitment and Employment of Landbased Overseas Filipino Workers of 2016, Part III; and
2016 POEA Rules and Regulations Governing the Recruitment and Employment of Seafarers,
Part III)

7.5. PLACEMENT BY THE ADMINISTRATION (Revised POEA Rules and Regulations Governing the
Recruitment and Employment of Landbased Overseas Filipino Workers of 2016, Part IV)

7.6. EMPLOYMENT STANDARDS (Revised POEA Rules and Regulations Governing the
Recruitment and Employment of Landbased Overseas Filipino Workers of 2016, Part V; and 2016
POEA Rules and Regulations Governing the Recruitment and Employment of Seafarers, Part IV)

8. RECRUITMENT VIOLATIONS AND DISCIPLINARY ACTION CASES (Revised POEA Rules

and Regulations Governing the Recruitment and Employment of Landbased Overseas Filipino
Workers of 2016, Part VI; and 2016 POEA Rules and Regulations Governing the Recruitment
and Employment of Seafarers, Part V)

8.1. POLO Functions (Omnibus Rules, Rule X, Sec. 2)

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8.2. POEA JURISDICTION (Omnibus Rules, Rule X, Secs. 3-11)

8.3. GROUNDS (Revised POEA Rules and Regulations Governing the Recruitment and Employment
of Landbased Overseas Filipino Workers of 2016, Part VI, Secs. 143-145; and 2016 POEA Rules
and Regulations Governing the Recruitment and Employment of Seafarers, Part V, Secs. 123-
128)

8.4. DISQUALIFICATION OF PRINCIPAL/EMPLOYER AND SEAFARER (Revised POEA Rules and

Regulations Governing the Recruitment and Employment of Landbased Overseas Filipino
Workers of 2016, Part VI, Secs. 177-184; and 2016 POEA Rules and Regulations Governing the
Recruitment and Employment of Seafarers, Part V, Secs. 161-168)

8.5. APPEAL AND EXECUTION OF DECISIONS (Revised POEA Rules and Regulations Governing
the Recruitment and Employment of Landbased Overseas Filipino Workers of 2016, Part VI,
Secs. 185-197; and 2016 POEA Rules and Regulations Governing the Recruitment and
Employment of Seafarers, Part V, Secs. 169-181)

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 8.5.1. Remedy of injunction
 Republic v. Principalia Management and Personnel Consultants, Inc., G.R. No. 198426,
Sept. 2, 2015
While "[w]ell-entrenched is the rule that courts will not interfere in matters which are addressed to
the sound discretion of the government agency entrusted with the regulation of activities coming
under the special and technical training and knowledge of such agency," 34 it is not entirely correct
to say that an action by an administrative agency, such as in the case at bar, cannot be questioned
in an injunction suit. It has been held that "[c]ourts cannot enjoin an agency from performing an act
within its prerogative, except when in the exercise of its authority it gravely abused or exceeded its
jurisdiction."35 Indeed, administrative decisions on matters within the executive jurisdiction can be
set aside on proof of grave abuse of discretion, fraud, or error of law, and in such cases, injunction
may be granted. The Republic further argues that Principalia committed forum-shopping when it
sought relief both from the RTC and the DOLE Secretary. The Court, however, finds otherwise.
What Principalia questioned before the DOLE Secretary was the merits of the case which brought
about the POEA's issuance of its order cancelling Principalia's license. Whereas before the RTC,
the relief sought by Principalia is limited to enjoining the POEA from immediately enforcing such
cancellation. Clearly, the reliefs sought by Principalia from the two fora were different and this
negates forum-shopping.37 Neither would the RTC, in resolving the injunction suit, encroach upon
the DOLE Secretary's authority since Principalia was not asking the said court to prohibit the DOLE
Secretary from resolving the appeal before it or for Principalia to be allowed to continue operating
its business regardless of the judgment in the appeal.

9. ASSISTANCE TO OFWS AND SEAFARER (Revised POEA Rules and Regulations Governing
the Recruitment and Employment of Landbased Overseas Filipino Workers of 2016, Part VIII,
Secs. 207-232; and 2016 POEA Rules and Regulations Governing the Recruitment and
Employment of Seafarers, Part VI, Secs. 191-216)

9.1. REPATRIATION OF WORKERS (RA 8042, Secs. 15, 16, 23[a][b.2][c.6], 36 & 37-A[d][i];
Omnibus Rules, Rule XIII, Secs. 1-9)

10. COUNTRY-TEAM APPROACH (RA 8042, as amended, Secs. 27-28; Omnibus Rules, Rule VIII,
Sec. 3)

11. INCENTIVES AND AWARDS (Revised POEA Rules and Regulations Governing the Recruitment
and Employment of Landbased Overseas Filipino Workers of 2016, Part IX, Secs. 233-240; and
2016 POEA Rules and Regulations Governing the Recruitment and Employment of Seafarers,
Part VII, Secs. 217-224)

12. HANDBOOK FOR OFWs ACT OF 2018 (RA 11227)

13. SEAFARERS PROTECTION ACT (RA 10706)

13.1. DECLARED POLICY (Id., Sec. 2)

13.2. PROHIBITION ON AMBULANCE CHASING (Id., Sec. 3)

14. REGULATORY AND VISITORIAL POWERS (Labor Code, Arts. 36-37)

14.1. DISTINGUISH FROM OTHER VISITORIAL POWERS (Labor Code, Arts. 128 & 289 [274])

14.2. OBSTRUCTION OR ATTEMPT TO OBSTRUCT INSPECTION CONSTITUTES ILLEGAL

RECRUITMENT (Labor Code, Art. 34[b]; RA 8042, Sec. 6[g])

15. EMPLOYMENT OF NON-RESIDENT ALIENS (Labor Code, Arts. 40-42; DO 186-17, or the
“Revised Rules for the Issuance of Employment Permits to Foreign Nationals;” DOLE, DOJ, BI,
and BIR Joint Guidelines No. 01, Series of 2019 – Re: Guidelines on the Issuance of Work and
Employment Permits to Foreign Nationals dated May 1, 2019)

15.1. COVERAGE, EXEMPTION, EXCLUSION (DO 186-17, Secs. 1-3)

15.2. LABOR MARKET TEST AND OTHER OBJECTION AGAINST THE FOREIGN NATIONAL (Id.,
Sec. 7)

15.3. VALIDITY AND RENEWAL OF AEP (Id., Sec. 10-11)

15.4. GROUNDS FOR DENIAL OF APPLICATION FOR OR RENEWAL OF AEP (Id., Sec. 12)

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15.5. CANCELLATION/REVOCATION OF AEP (Id., Sec. 13)

15.6. EFFECT OF DENIAL/CANCELLATION OR REVOCATION OF AEP (Id., Sec. 14)

15.7. EFFECT OF FRAUDULENT APPLICATION FOR AEP FILED BY EMPLOYERS, EMPLOYER

AND NATIONAL’S REPRESENTATIVES, AND/OR AGENTS (Id., Sec. 15)

15.8. APPEAL FROM DENIAL, CANCELLATION, OR REVOCATION OF AEP (Id., Sec. 16)

15.9. PENALTY FOR WORKING WITHOUT AEP (Id., Sec. 17)

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