To be a GOOD LAWYER, one must constitutionality, through the adoption of

have LEGAL and JURISPRUDENTIAL measures legally justifiable, or extra-

backing for one’s answer. constitutionally, through the exercise of
powers underlying the existence of all
What is Labor Legislation? governments on the time-honored
Labor Legislation focuses on the rights principle of salus populi est suprema
of the worker in the workplace. Social lex.
legislation is a broad term and may
include not only laws that give social
security protection, but also those that What is Discretionary Justice?
help the worker secure housing and That where a decision may be made to
basic necessities. Labor Legislation rest an informed judgment rather than
deals with employer and employee. rigid rules, all the equities of the case
Social Legislation deals with employer must be accorded their due weight.
and employees and their families. Finally, labor law determinations, to
quote from Bultmann, should be not only
What is the purpose of Labor Law? secundum rationem but also secundum
The very purpose for which our labor caritatem. (Almira vs. B.F. Goodrich
laws exist: to balance the conflicting Phil., 1974. J. Fernando.)
interests of labor and management, not
to tilt the scale in favor of one over the Rigid Rules vs. Equity emanated from
other, but to guarantee that labor and Goodrich not Gandara.
management stand on equal footing
when bargaining in good faith with each If you LOVE THE LAW, try researching
other. (Unicorn Safety Glass, Inc. vs. the PRECEDENT or GROUND
Basarte, 2004; PLDT Co. Inc. vs. BREAKING SC Decision.
Paguio, 2005)
What are the exceptions to SOCIAL
JUSTICE? When should it not be
ART II, Secs. 9 10 11 13 14 18 20. applied?
What is Social Justice? Social justice cannot be permitted to be
Cited in the case of Calalang vs. a refuge of scoundrels. (PLDT Co. vs.
Williams, Social Justice means the NLRC, 1988. J. Cruz)
promotion of the welfare of all the
people, the adoption by the government Social justice should not be used to
of measures calculated to insure shield wrongdoing. (Jamer vs. NLRC,
economic stability of all competent 1997. J. Hermosisima)
elements of society, through the
maintenance of a proper economic and A good exception to SOCIAL
social equilibrium in the interrelations of JUSTICE is the PLDT case. What
the members of the community, happened in this case?
Where the reason for the valid dismissal the rule that justice is in every case for
is, for example, habitual intoxication or the deserving, to be dispensed in the
an offense involving moral turpitude, like light of the established facts and
theft or illicit sexual relations with a applicable law and doctrine.
fellow worker, the employer may not be
required to give the dismissed employee The GUIDE to SOCIAL JUSTICE in
separation pay, or financial assistance, relation to LABOR DISPUTES is the
or whatever other name it is called, on Mercury Drug Case as well as the
the ground of social justice. The PLDT PLDT Case.
employee was dismissed for
DISHONESTY. Article III, Sections 1, 4, 7, 8, 10, 16,
and 18(2)
What's the precaution or guide when
applying SOCIAL JUSTICE? in SECTION 1. No person shall be
relation to labor law? deprived of life, liberty, or property
While the Constitution is committed to without due process of law, nor shall
the policy of social justice and the any person be denied the equal
protection of the working class, it should protection of the laws. WHY IS THIS
not be supposed that every labor RELATED TO LABOR LAW?
dispute will be automatically decided in It would be in relation to cases involving
favor of labor. (Mercury Drug illegal dismissal.
Corporation vs. NLRC, 1989. J. Fernan)
What happens in illegal dismissal?
The law in protecting the rights of the In cases involving illegal dismissal sir,
laborer, authorizes neither oppression an employee is terminated from his work
nor self-destruction of the employer. without just reason po and without due
While the Constitution is committed to notice.
the policy of social justice and the
protection of the working class, it should One's employment, profession, trade or
not be supposed that every labor calling is a property right which is
dispute will be automatically decided in protected against any arbitrary and
favor of labor. Management also has its unjust deprivation. (Callanta vs.
own rights, which, as such, are entitled Carnation Philippines, Inc., 1986. J.
to respect and enforcement in the Fernan)
interest of simple fair play. Out of its
concern for those with less privileges in It is a PROPERTY RIGHT. That is why
life, the Supreme Court has inclined No person shall be deprived of life,
more often than not toward the worker liberty, or PROPERTY without due
and upheld his cause in his conflicts process of law, nor shall any person be
with the employer. Such favoritism, denied the equal protection of the laws.
however, has not blinded the Court to
When a person has no property, his job feature of human existence. It is the
may possibly be his only possession or means of sustaining life and meeting
means of livelihood, hence, he should essential needs. It is also an activity
be protected against any arbitrary and through which individuals affirm their
unjust deprivation of his job. own identity, both to themselves and to
those around them. It is crucial to
Unemployment brings untold hardships individual choice, to the welfare of
and sorrows on those dependent on the families and to the stability of societies.
wage earners. The misery and pain Every man has the right to work, to a
attendant on the loss of jobs thus could chance to develop his qualities and his
be avoided if there be acceptance of the personality in the exercise of his
view that under all the circumstances, profession, to equitable remuneration
laborers should not be deprived of their which will enable him and his family to
means of livelihood. It is a principle in lead a worthy life on material, social,
American jurisprudence which, cultural and spiritual level. Shylock said
undoubtedly, is well-recognized in this it well: "You take my life when you do
jurisdiction that one's employment, take the means whereby I live."
profession, trade or calling is a "property
right," and the wrongful interference This is why work is PROPERTY. Work
therewith is an actionable wrong. The is also LIFE. That is why No person
right is considered to be property within shall be deprived of LIFE, liberty, or
the protection of a constitutional PROPERTY without due process of law,
guaranty of due process of law. nor shall any person be denied the
equal protection of the laws.
Every man has the right to work. While
there is work, there is food on the table. What are the different types of DUE
(Agabon vs. NLRC, 2004. J. Puno) PROCESS?
The following are the different types of
Workers need work more than anything DUE PROCESS.
else. For a wageworker, a job is
important. While there is work, there is Administrative Due Process. (Ang Tibay
food on the table. Take away work, vs. Court of Industrial Relations, 1940.
replace it with a meager lump sum, and J.Laurel)
the food will disappear. Through work,
the breadwinner satisfies his basic The cardinal rights of parties in
needs and those of his family. He also administrative proceedings shall be:
provides himself with a means to
express himself, transform, develop and 1. the right to a hearing which
perfect his skills and talents. Through includes the right to present one's
work, he interacts and establishes case and submit evidence in
relations with others. Work is a defining support thereof;
 2. the tribunal must consider the termination under the Labor Code; and
evidence presented; procedural, i.e., the manner of
3. the decision must have dismissal. Procedural due process
something to support itself; requirements for dismissal are found in
4. the evidence must be substantial the Implementing Rules of P.D. 442, as
which means such evidence as a amended, otherwise known as the
reasonable mind might accept as Labor Code of the Philippines in Book
adequate to support a VI, Rule I, Sec. 2, as amended by
conclusion; Department Order Nos. 9 and 10.
5. the decision must be based on Breaches of these due process
the evidence presented at the requirements violate the Labor Code.
hearing, or at least contained in Therefore statutory due process should
the record and disclosed to the be differentiated from failure to comply
parties affected; with constitutional due process.
6. the tribunal or body or any of its
judges must act on its own Contractual Due Process. (Abbot
independent consideration of the Laboratories, Philippines vs. Alcaraz,
law and facts of the controversy, 2013, J Perlas-Bernabe)
and not simply accept the views
of a subordinate; and An employer's contractual breach of its
7. the board or body should, in all own company procedure — albeit not
controversial questions, render its statutory in source — has the parallel
decision in such manner that the effect of violating the laborer's rights.
parties to the proceeding can Suffice it to state, the contract is the law
know the issues involved and the between the parties and thus, breaches
reasons for the decision of the same impel recompense to
rendered. vindicate a right that has been violated.

Constitutional Due Process. Administrative, Constitutional,

SECTION 1. No person shall be Statutory which divided into
deprived of life, liberty, or property Substantive and Procedural and
without due process of law, nor shall Contractual.
any person be denied the equal MEMORIZE Section 5 of DOLE DO
protection of the laws. No. 147-15

Statutory Due Process. (Agabon vs. SECTION 5. Due Process of

NLRC, 2004. J.Ynares-Santiago) Termination of Employment. — In all
Due process under the Labor Code, like cases of termination of employment, the
Constitutional due process, has two standards of due process laid down in
aspects: substantive, i.e., the valid and Article 299 (b) of the Labor Code, as
authorized causes of employment
amended, and settled jurisprudence on himself/herself with the
the matter, must be observed as follows: assistance of his/her
5.1 Termination of Employment Based representative if he/she so
on Just Causes. As defined in Article desires, as provided in Article
297 of the Labor Code, as amended, the 299 (b) of the Labor Code, as
requirement of two written notices amended.
served on the employee shall observe "Ample opportunity to be heard" means
the following: any meaningful opportunity (verbal or
a. The first written notice should written) given to the employee to answer
contain: the charges against him/her and submit
1. The specific causes or evidence in support of his/her defense,
grounds for termination as whether in a hearing, conference or
provided for under Article some other fair, just and reasonable
297 of the Labor Code, as way. A formal hearing or conference
amended, and company becomes mandatory only when
policies, if any; requested by the employee in writing or
2. Detailed narration of the substantial evidentiary disputes exist or
facts and circumstances a company rule or practice requires it, or
that will serve as basis for when similar circumstances justify it.
the charge against the c. After determining that termination
employee. A general of employment is justified, the
description of the charge employer shall serve the
will not suffice; and employee a written notice of
3. A directive that the termination indicating that: (1) all
employee is given circumstances involving the
opportunity to submit a charge against the employee
written explanation within have been considered; and (2)
a reasonable period. the grounds have been
"Reasonable period" should be established to justify the
construed as a period of at least five (5) severance of their employment.
calendar days from receipt of the notice The foregoing notices shall be served
to give the employee an opportunity to personally to the employee or to the
study the accusation, consult or be employee's last known address.
represented by a lawyer or union officer,
gather data and evidence, and decide That's the Procedural Due Process in
on the defenses against the complaint. Statutory Due Process.

b. After serving the first notice, the What kind of DUE PROCESS do you
employer should afford the apply when terminating an
employee ample opportunity to employee? What kind of DUE
be heard and to defend PROCESS does a Labor Arbiter or
Commissioner apply in a labor mechanisms that govern the individual
dispute/case? and collective interaction between
When disciplining employees, one employers, employees and their
applies the Statutory Due Process representatives
divided into Substantive and Procedural.
What is Social Legislation?
As a Commissioner, since NLRC is an Social legislation are those labor
administrative quasi-judicial agency, statutes that provide protection not only
administrative due process is used. to a worker but also to members of his
family in case of loss of income or when
The students in San Beda are trained there is a need for medical care brought
to answer DIRECTLY the question. about by contingencies like old age,
Let's follow this rule. disability, sickness or death

This is one of the secrets to passing Just remember - The Balancing

the Bar Exam. Approach. The purpose of labor laws
is to balance the conflicting interest of
=||=||=||=||=||=||=||=||=||=||=||=||=¦¦=¦¦= labor and management.
Definitions of labor legislation, social (Philippine Airlines, Inc. vs. Pascua,
legislation, labor standards and labor 2003. J. Quisumbing)
relations.
The 1987 Constitution
What is Labor Legislation? Just remember - The 1987
Labor legislation refers to labor statutes Constitution is more solicitous of the
like Labor Standards and Labor welfare of labor. In contrast, the
Relations, and deals basically with the prerogative of management to dismiss a
rights and duties of employees and worker, as an aspect of property right,
employers. has never been endowed with a
constitutional status. (BPI Credit Corp.
vs. NLRC, 1994. J. Puno)
What is Labor standards?
Labor standards set out the minimum HOWEVER - The law, in protecting the
terms, conditions and benefits of rights of the laborer, authorizes neither
employment that employers must oppression nor self-destruction of the
provide or comply with and to which employer. (Serrano vs. NLRC, 2000. J.
employees are entitled as a matter of Mendoza)
legal right.
REMEMBER - It is true the Constitution
What is Labor Relations? regards labor as "a primary social
Labor relations define the status, rights, economic force." But so does it declare
and duties, as well as the institutional that it "recognizes the indispensable role
of the private sector, encourages private 1986. J. Fernan)
enterprise, and provides incentives to
needed investment." The Constitution Simply put, a person’s employment is
bids the State to "afford full protection to his life, liberty and property.
labor." But it is equally true that "the law,
in protecting the rights of the laborer, Administrative Due Process (Ang
authorizes neither oppression nor self- Tibay vs. CIR, 1940. J Laurel)
destruction of the employer." 1. the right to a hearing which
includes the right to present one's
THE BALANCING APPROACH. If you case and submit evidence in
are a disciple of Prof. Azucena and support thereof;
Justice Isagani Cruz. 2. the tribunal must consider the
evidence presented;
Article II, Secs. 9, 10, 11, 13, 14, 18, 3. the decision must have
20. something to support itself;
4. the evidence must be substantial
Social Justice means the promotion of which means such evidence as a
the welfare of all the people. (Calalang reasonable mind might accept as
vs. Williams, 1940. J. Laurel) adequate to support a
conclusion;
What is Compassionate Justice? 5. the decision must be based on
The social justice policy mandates a the evidence presented at the
compassionate attitude toward the hearing, or at least contained in
working class in its relation to the record and disclosed to the
management. (Gandara Mill Supply vs. parties affected;
NLRC, 1998. J.Purisima) 6. the tribunal or body or any of its
judges must act on its own
HOWEVER - While the Constitution is independent consideration of the
committed to the policy of social justice law and facts of the controversy,
and the protection of the working class, and not simply accept the views
it should not be supposed that every of a subordinate; and
labor dispute will be automatically 7. the board or body should, in all
decided in favor of labor. controversial questions, render its
(Mercury Drug Corporation vs. NLRC, decision in such manner that the
1989. J. Fernan) parties to the proceeding can
know the issues involved and the
One's employment, profession, trade or reasons for the decision
calling is a property right which is rendered.
protected against any arbitrary and
unjust deprivation.
(Callanta vs. Carnation Philippines, Inc.,
This is the Due Process applicable in Department Order Nos. 9 and 10.
administrative hearings such as in Breaches of these due process
the HR Investigation and NLRC. requirements violate the Labor Code.
Therefore, statutory due process should
What is Constitutional Due Process? be differentiated from failure to comply
(Agabon vs. National Labor Relations with constitutional due process.
Commission, 2004. J Ynares-Santiago)
To be sure, the Due Process Clause in What is the Substantive Due Process
Article III, Section 1 of the Constitution under the Labor Code?
embodies a system of rights based on Article 297. Termination by Employer.
moral principles so deeply imbedded in — An employer may terminate an
the traditions and feelings of our people employment for any of the following just
as to be deemed fundamental to a causes:
civilized society as conceived by our a. Serious misconduct or willful
entire history. Due process is that which disobedience by the employee of
comports with the deepest notions of the lawful orders of his employer
what is fair and right and just. It is a or representative in connection
constitutional restraint on the legislative with his work;
as well as on the executive and judicial b. Gross and habitual neglect by the
powers of the government provided by employee of his duties;
the Bill of Rights. c. Fraud or willful breach by the
employee of the trust reposed in
Article III, Section 1 of the 1987 him by his employer or duly
Constitution is Constitutional Due authorized representative;
Process. d. Commission of a crime or offense
by the employee against the
What is Statutory Due Process? person of his employer or any
(Agabon vs. NLRC, 2004. J Ynares- immediate member of his family
Santiago) or his duly authorized
Due process under the Labor Code, like representative; and
Constitutional due process, has two e. Other causes analogous to the
aspects: substantive, i.e., the valid and foregoing.
authorized causes of employment
termination under the Labor Code; and Article 298. Closure of Establishment
procedural, i.e., the manner of and Reduction of Personnel. — The
dismissal. Procedural due process employer may also terminate the
requirements for dismissal are found in employment of any employee due to the
the Implementing Rules of P.D. 442, as installation of labor saving devices,
amended, otherwise known as the redundancy, retrenchment to prevent
Labor Code of the Philippines in Book losses or the closing or cessation of
VI, Rule I, Sec. 2, as amended by operation of the establishment or
undertaking unless the closing is for the What is the Procedural Due Process
purpose of circumventing the provisions under the Labor Code?
of this Title, by serving a written notice DOLE Department Order No. 147-15
on the workers and the Ministry of Labor Amending the Implementing Rules and
and Employment at least one (1) month Regulations of Book VI of the Labor
before the intended date thereof. In Code of the Philippines, as amended
case of termination due to the
installation of labor saving devices or Section 5. Due Process of Termination
redundancy, the worker affected thereby of Employment. — In all cases of
shall be entitled to a separation pay termination of employment, the
equivalent to at least his one (1) month standards of due process laid down in
pay or to at least one (1) month pay for Article 299 (b) of the Labor Code, as
every year of service, whichever is amended, and settled jurisprudence on
higher. In case of retrenchment to the matter, must be observed as follows:
prevent losses and in cases of closure 5.1 Termination of Employment Based
or cessation of operations of on Just Causes. As defined in Article
establishment or undertaking not due to 297 of the Labor Code, as amended, the
serious business losses or financial requirement of two written notices
reverses, the separation pay shall be served on the employee shall observe
equivalent to one (1) month pay or to at the following:
least one-half (1/2) month pay for every a. The first written notice should
year of service, whichever is higher. A contain:
fraction of at least six (6) months shall 1. The specific causes or
be considered one (1) whole year. grounds for termination as
provided for under Article
Article 297. Disease as Ground for 297 of the Labor Code, as
Termination. — An employer may amended, and company
terminate the services of an employee policies, if any;
who has been found to be suffering from 2. Detailed narration of the
any disease and whose continued facts and circumstances
employment is prohibited by law or is that will serve as basis for
prejudicial to his health as well as to the the charge against the
health of his co-employees: Provided, employee. A general
That he is paid separation pay description of the charge
equivalent to at least one (1) month will not suffice; and
salary or to one-half month salary for 3. A directive that the
every year of service, whichever is employee is given
greater, a fraction of at least six (6) opportunity to submit a
months being considered as one (1) written explanation within
whole year. a reasonable period.
"Reasonable period" should be have been considered; and (2)
construed as a period of at least five (5) the grounds have been
calendar days from receipt of the notice established to justify the
to give the employee an opportunity to severance of their employment.
study the accusation, consult or be
represented by a lawyer or union officer, The foregoing notices shall be served
gather data and evidence, and decide personally to the employee or to the
on the defenses against the complaint. employee's last known address.

b. After serving the first notice, the MEMORIZE STATUTORY DUE

employer should afford the PROCESS, esp. PROCEDURAL DUE
employee ample opportunity to PROCESS.
be heard and to defend
himself/herself with the What is Contractual Due Process?
assistance of his/her (Abbot Laboratories, Philippines vs.
representative if he/she so Alcaraz, 2013. J. Perlas-Bernabe)
desires, as provided in Article Employer statements of policy ... can
299 (b) of the Labor Code, as give rise to contractual rights in
amended. employees without evidence that the
parties mutually agreed that the policy
"Ample opportunity to be heard" means statements would create contractual
any meaningful opportunity (verbal or rights in the employee, and, hence,
written) given to the employee to answer although the statement of policy is
the charges against him/her and submit signed by neither party, can be
evidence in support of his/her defense, unilaterally amended by the employer
whether in a hearing, conference or without notice to the employee, and
some other fair, just and reasonable contains no reference to a specific
way. A formal hearing or conference employee, his job description or
becomes mandatory only when compensation, and although no
requested by the employee in writing or reference was made to the policy
substantial evidentiary disputes exist or statement in pre-employment interviews
a company rule or practice requires it, or and the employee does not learn of its
when similar circumstances justify it. existence until after his hiring.
(Toussaint, 292 N.W .2d at 892.) The
c. After determining that termination principle is akin to estoppel. Once an
of employment is justified, the employer establishes an express
employer shall serve the personnel policy and the employee
employee a written notice of continues to work while the policy
termination indicating that: (1) all remains in effect, the policy is deemed
circumstances involving the an implied contract for so long as it
charge against the employee remains in effect. If the employer
unilaterally changes the policy, the work as soon as his/her illness is
terms of the implied contract are also controlled.
thereby changed.
Hence, given such nature, company Furthermore -
personnel policies create an obligation
on the part of both the employee and Discrimination on married women,
the employer to abide by the same. pregnant women and age requirements,
UNLESS BFOQ.
The company must abide by its own
rules. Please also study the INK cases.

PLEASE STUDY THE CASE OF In the hierarchy of rights, FREEDOM OF

Yrasuegi vs. Philippine Airlines, Inc., RELIGION IS SUPERIOR TO
2008. J. Reyes) FREEDOM OF ASSOCIATION.

Employment in particular jobs may not Know the difference between

be limited to persons of a particular sex, PEACEFUL PICKETING and ILLEGAL
religion, or national origin unless the STRIKE.
employer can show that sex, religion, or
national origin is an actual qualification Know the exemptions to NON-
for performing the job. The qualification IMPAIRMENT OF CONTRACTS, ie.
is called a bona fide occupational Labor Code, POEA Standard
qualification (BFOQ). Employment Contract, which are all
in the exercise of POLICE POWER.
Moreover -
Whether employed locally or overseas,
An employee shall not be terminated all Filipino workers enjoy the protective
from work based on actual, perceived or mantle of Philippine labor and social
suspected HIV status. legislation.
(Royal Crown Internationale vs. NLRC,
An employee shall not be terminated on 1989. J. Cortes)
basis of actual, perceived or suspected
Hepatitis B status. MEMORIZE!!! Labor Section 3.
Sec. 3. The State shall afford full
An employee who has or had protection to labor, local and overseas,
Tuberculosis shall not be discriminated organized and unorganized, and
against. He/she shall be entitled to work promote full employment and equality of
for as long as he/she is certified by the employment opportunities for all.
company's accredited health provider as
medically fit and shall be restored to It shall guarantee the rights of all
workers to self-organization, collective
bargaining and negotiations, and such contracts are subject to the special
peaceful concerted activities, including laws on labor unions, collective
the right to strike in accordance with bargaining, strikes and lockouts, closed
law. They shall be entitled to security of shop, wages, working conditions, hours
tenure, humane conditions of work, and of labor and similar subjects.
a living wage. They shall also participate
in policy and decision-making processes c. Article 1702
affecting their rights and benefits as may Article 1702. In case of doubt, all labor
be provided by law. legislation and all labor contracts shall
be construed in favor of the safety and
The State shall promote the principle of decent living for the laborer.
shared responsibility between workers
and employers and the preferential use What principle is Article 19 of the
of voluntary modes in settling disputes, Civil Code?
including conciliation, and shall enforce Principle of Abuse of Rights.
their mutual compliance therewith to
foster industrial peace. Article 1702 is used when?
Article 1702 is used in STATUTORY
The State shall regulate the relations CONSTRUCTION. Kaya nga. "in case
between workers and employers, of doubt" yung 1702.
recognizing the right of labor to its just
share in the fruits of production and the When is Article 19 applicable in labor
right of enterprises to reasonable cases? When did the Supreme Court
returns on investments, and to applied Article 19 in a Labor Case?
expansion and growth.
When I was a Labor Arbiter, I drafted a
Civil Code and Labor Code decision … It was a Filipina Nurse who
provisions. was dead in the Middle East, black and
a. Article 19 Human Relations blue, raped, with cigarette burns all over
Article 19. Every person must, in the her body. The "Official" Police Report
exercise of his rights and in the said she committed suicide. The local
performance of his duties, act with agency here accepted the Police
justice, give everyone his due, and Report. She was found dead in the
observe honesty and good faith. middle of the dessert.
Now —
b. Article 1700 Contract of Labor The local agency merely followed and
Article 1700. The relations between accepted the Police Report.
capital and labor are not merely
contractual. They are so impressed with According to the SC, while the local
public interest that labor contracts must agency apparently DID NOT VIOLATE
yield to the common good. Therefore, any labor laws, Article 19 will come into
play. (Becmen Service Exporter and labor, promote full employment, ensure
Promotion, Inc. vs. Spouses Cuaresma, equal work opportunities regardless of
2009.) sex, race or creed and regulate the
relations between workers and
Clearly, Rajab, Becmen and White employers. The State shall assure the
Falcon's acts and omissions are against rights of workers to self-organization,
public policy because they undermine collective bargaining, security of tenure,
and subvert the interest and general and just and humane conditions of work.
welfare of our OFWs abroad, who are
entitled to full protection under the law. b. Article 4
They set an awful example of how Article 4. Construction in favor of labor.
foreign employers and recruitment All doubts in the implementation and
agencies should treat and act with interpretation of the provisions of this
respect to their distressed employees Code, including its implementing rules
and workers abroad. Their shabby and and regulations, shall be resolved in
callous treatment of Jasmin's case; their favor of labor.
uncaring attitude; their unjustified failure
and refusal to assist in the determination c. Article 166 (172) Employees’
of the true circumstances surrounding Compensation and State Insurance
her mysterious death, and instead Fund Policy and Definitions.
finding satisfaction in the unreasonable Article 172. Policy. The State shall
insistence that she committed suicide promote and develop a tax-exempt
just so they can conveniently avoid employees’ compensation program
pecuniary liability; placing their own whereby employees and their
corporate interests above of the welfare dependents, in the event of work-
of their employee's — all these are connected disability or death, may
contrary to morals, good customs and promptly secure adequate income
public policy, and constitute taking benefit and medical related benefits.
advantage of the poor employee and
her family's ignorance, helplessness, d. Article 211 (218) Policy and
indigence and lack of power and Definitions Policy.
resources to seek the truth and obtain
justice for the death of a loved one. Article 218. Declaration of Policy.
A. It is the policy of the State:
We awarded Jasmin's parents a. To promote and emphasize the
MILLIONS. Her name was Jasmin, a primacy of free collective
Filipina Nurse. Please pray for her. bargaining and negotiations,
including voluntary arbitration,
a. Article 3. General Provisions. mediation and conciliation, as
Article 3. Declaration of basic policy. modes of settling labor or
The State shall afford protection to industrial disputes;
 b. To promote free trade unionism its divisions, as the case may be, as
as an instrument for the provided under this Code.
enhancement of democracy and
the promotion of social justice b. "Bureau" means the Bureau of Labor
and development; Relations and/or the Labor Relations
c. To foster the free and voluntary Divisions in the regional offices
organization of a strong and established under Presidential Decree
united labor movement; No. 1, in the Department of Labor.
d. To promote the enlightenment of
workers concerning their rights c. "Board" means the National
and obligations as union Conciliation and Mediation Board
members and as employees; established under Executive Order No.
e. To provide an adequate 126.
administrative machinery for the
expeditious settlement of labor or d. "Council" means the Tripartite
industrial disputes; Voluntary Arbitration Advisory Council
f. To ensure a stable but dynamic established under Executive Order No.
and just industrial peace; and 126, as amended.
g. To ensure the participation of
workers in decision and policy- e. "Employer" includes any person
making processes affecting their acting in the interest of an employer,
rights, duties and welfare. directly or indirectly. The term shall not
include any labor organization or any of
B. To encourage a truly democratic its officers or agents except when acting
method of regulating the relations as employer.
between the employers and employees
by means of agreements freely entered f. "Employee" includes any person in
into through collective bargaining, no the employ of an employer. The term
court or administrative agency or official shall not be limited to the employees of
shall have the power to set or fix wages, a particular employer, unless the Code
rates of pay, hours of work or other so explicitly states. It shall include any
terms and conditions of employment, individual whose work has ceased as a
except as otherwise provided under this result of or in connection with any
Code. (As amended by Section 3, current labor dispute or because of any
Republic Act No. 6715, 1989) unfair labor practice if he has not
obtained any other substantially
e. Article 212 (219) Definitions equivalent and regular employment.

Article 219. Definitions. g. "Labor organization" means any

a. "Commission" means the National union or association of employees which
Labor Relations Commission or any of exists in whole or in part for the purpose
of collective bargaining or of dealing employees. Supervisory employees are
with employers concerning terms and those who, in the interest of the
conditions of employment. employer, effectively recommend such
managerial actions if the exercise of
h. "Legitimate labor organization" such authority is not merely routinary or
means any labor organization duly clerical in nature but requires the use of
registered with the Department of Labor independent judgment. All employees
and Employment, and includes any not falling within any of the above
branch or local thereof. definitions are considered rank-and-file
employees for purposes of this Book.
i. "Company union" means any labor
organization whose formation, function n. "Voluntary Arbitrator" means any
or administration has been assisted by person accredited by the Board as such
any act defined as unfair labor practice or any person named or designated in
by this Code. the Collective Bargaining Agreement by
the parties to act as their Voluntary
j. "Bargaining representative" means a Arbitrator, or one chosen with or without
legitimate labor organization whether or the assistance of the National
not employed by the employer. Conciliation and Mediation Board,
pursuant to a selection procedure
k. "Unfair labor practice" means any agreed upon in the Collective
unfair labor practice as expressly Bargaining Agreement, or any official
defined by the Code. that may be authorized by the Secretary
of Labor and Employment to act as
l. "Labor dispute" includes any Voluntary Arbitrator upon the written
controversy or matter concerning terms request and agreement of the parties to
and conditions of employment or the a labor dispute.
association or representation of persons
in negotiating, fixing, maintaining, o. "Strike" means any temporary
changing or arranging the terms and stoppage of work by the concerted
conditions of employment, regardless of action of employees as a result of an
whether the disputants stand in the industrial or labor dispute.
proximate relation of employer and
employee. p. "Lockout" means any temporary
refusal of an employer to furnish work
m. "Managerial employee" is one who as a result of an industrial or labor
is vested with the powers or dispute.
prerogatives to lay down and execute
management policies and/or to hire, q. "Internal union dispute" includes all
transfer, suspend, lay-off, recall, disputes or grievances arising from any
discharge, assign or discipline violation of or disagreement over any
provision of the constitution and by laws employees shall have the right at any
of a union, including any violation of the time to present grievances to their
rights and conditions of union employer.
membership provided for in this Code.
Any provision of law to the contrary
r. "Strike-breaker" means any person notwithstanding, workers shall have the
who obstructs, impedes, or interferes right, subject to such rules and
with by force, violence, coercion, regulations as the Secretary of Labor
threats, or intimidation any peaceful and Employment may promulgate, to
picketing affecting wages, hours or participate in policy and decision-making
conditions of work or in the exercise of processes of the establishment where
the right of self-organization or collective they are employed insofar as said
bargaining. processes will directly affect their rights,
benefits and welfare. For this purpose,
s. "Strike area" means the workers and employers may form labor-
establishment, warehouses, depots, management councils: Provided, That
plants or offices, including the sites or the representatives of the workers in
premises used as runaway shops, of the such labor-management councils shall
employer struck against, as well as the be elected by at least the majority of all
immediate vicinity actually used by employees in said establishment. (As
picketing strikers in moving to and fro amended by Section 22, Republic Act
before all points of entrance to and exit No. 6715, March 21, 1989)
from said establishment. (As amended
by Section 4, Republic Act No. 6715, g. Article 277 (292) Special
March 21, 1989) Provisions

f. Article 255 (267) Collective Article 292. Miscellaneous provisions.

Bargaining and Administration of a. All unions are authorized to collect
Agreements reasonable membership fees, union
dues, assessments and fines and other
Article 267. Exclusive bargaining contributions for labor education and
representation and workers’ research, mutual death and
participation in policy and decision- hospitalization benefits, welfare fund,
making. The labor organization strike fund and credit and cooperative
designated or selected by the majority of undertakings. (As amended by Section
the employees in an appropriate 33, Republic Act No. 6715, March 21,
collective bargaining unit shall be the 1989)
exclusive representative of the
employees in such unit for the purpose b. Subject to the constitutional right of
of collective bargaining. However, an workers to security of tenure and their
individual employee or group of right to be protected against dismissal
except for a just and authorized cause membership in any labor union. (As
and without prejudice to the requirement amended by Section 33, Republic Act
of notice under Article 283 of this Code, No. 6715)
the employer shall furnish the worker
whose employment is sought to be d. No docket fee shall be assessed in
terminated a written notice containing a labor standards disputes. In all other
statement of the causes for termination disputes, docket fees may be assessed
and shall afford the latter ample against the filing party, provided that in
opportunity to be heard and to defend bargaining deadlock, such fees shall be
himself with the assistance of his shared equally by the negotiating
representative if he so desires in parties.
accordance with company rules and
regulations promulgated pursuant to e. The Minister of Labor and
guidelines set by the Department of Employment and the Minister of the
Labor and Employment. Any decision Budget shall cause to be created or
taken by the employer shall be without reclassified in accordance with law such
prejudice to the right of the worker to positions as may be necessary to carry
contest the validity or legality of his out the objectives of this Code and
dismissal by filing a complaint with the cause the upgrading of the salaries of
regional branch of the National Labor the personnel involved in the Labor
Relations Commission. The burden of Relations System of the Ministry. Funds
proving that the termination was for a needed for this purpose shall be
valid or authorized cause shall rest on provided out of the Special Activities
the employer. The Secretary of the Fund appropriated by Batas Pambansa
Department of Labor and Employment Blg. 80 and from annual appropriations
may suspend the effects of the thereafter. (Incorporated by Batas
termination pending resolution of the Pambansa Bilang 130, August 21, 1981)
dispute in the event of a prima facie
finding by the appropriate official of the f. A special Voluntary Arbitration Fund
Department of Labor and Employment is hereby established in the Board to
before whom such dispute is pending subsidize the cost of voluntary
that the termination may cause a arbitration in cases involving the
serious labor dispute or is in interpretation and implementation of the
implementation of a mass lay-off. (As Collective Bargaining Agreement,
amended by Section 33, Republic Act including the Arbitrator’s fees, and for
No. 6715, March 21, 1989) such other related purposes to promote
and develop voluntary arbitration. The
c. Any employee, whether employed for Board shall administer the Special
a definite period or not, shall, beginning Voluntary Arbitration Fund in
on his first day of service, be considered accordance with the guidelines it may
as an employee for purposes of adopt upon the recommendation of the
Council, which guidelines shall be and employers on their rights and
subject to the approval of the Secretary responsibilities through labor education
of Labor and Employment. Continuing with emphasis on the policy thrusts of
funds needed for this purpose in the this Code. (As amended by Section 33,
initial yearly amount of fifteen million Republic Act No. 6715, March 21, 1989)
pesos (P15,000,000.00) shall be
provided in the 1989 annual general i. To ensure speedy labor justice, the
appropriations acts. periods provided in this Code within
The amount of subsidy in appropriate which decisions or resolutions of labor
cases shall be determined by the Board relations cases or matters should be
in accordance with established rendered shall be mandatory. For this
guidelines issued by it upon the purpose, a case or matter shall be
recommendation of the Council. deemed submitted for decision or
The Fund shall also be utilized for the resolution upon the filing of the last
operation of the Council, the training pleading or memorandum required by
and education of Voluntary Arbitrators, the rules of the Commission or by the
and the Voluntary Arbitration Program. Commission itself, or the Labor Arbiter,
(As amended by Section 33, Republic or the Director of the Bureau of Labor
Act No. 6715, March 21, 1989) Relations or Med-Arbiter, or the
Regional Director. Upon expiration of
g. The Ministry shall help promote and the corresponding period, a certification
gradually develop, with the agreement stating why a decision or resolution has
of labor organizations and employers, not been rendered within the said period
labor-management cooperation shall be issued forthwith by the
programs at appropriate levels of the Chairman of the Commission, the
enterprise based on the shared Executive Labor Arbiter, or the Director
responsibility and mutual respect in of the Bureau of Labor Relations or
order to ensure industrial peace and Med-Arbiter, or the Regional Director, as
improvement in productivity, working the case may be, and a copy thereof
conditions and the quality of working life. served upon the parties. Despite the
(Incorporated by Batas Pambansa expiration of the applicable mandatory
Bilang 130, August 21, 1981) period, the aforesaid officials shall,
without prejudice to any liability which
h. In establishments where no may have been incurred as a
legitimate labor organization exists, consequence thereof, see to it that the
labor-management committees may be case or matter shall be decided or
formed voluntarily by workers and resolved without any further delay.
employers for the purpose of promoting (Incorporated by Section 33, Republic
industrial peace. The Department of Act No. 6715, March 21, 1989)
Labor and Employment shall endeavor
to enlighten and educate the workers
Please check on the RENUMBERED 1987 Constitution to protect
LABOR CODE. I already gave you yourself?
the PDF for this. The Bill of Rights does not protect
citizens from private individuals. (People
To FORCE you to study the UP Bar vs. Marti, 1991. J. Bidin)
Exams Q&A, I will lift the questions
therein. The answers will be When can you cite the Bill of Rights
typewritten with a particular font size during an administrative hearing
and maximum allowed number of conducted by your HR Manager?
words , pages. A party is allowed not to take the
witness stand in an administrative
The purpose of my teaching is to proceeding that is in the nature of a
PREPARE YOU FOR THE BAR, so if criminal proceeding. Rosete vs. Lim,
you studied the PAST BAR EXAMS Q G.R. No. 136051, June 8, 2006.Penned
& A, you can ACE this course. Lex by Justice Chico-Nazario
Pareto is a MUST.
General Rule. Bill of Rights can only be
A HOLISTIC APPROACH IN used against the State. Exception. You
ANSWERING THE BAR QUESTIONS can cite the Bill of Rights/Rights of the
“When you get to reach 4th Year Accused when the administrative
Law, you should now be able to hearing is in the nature of a criminal
interconnect ALL your LAW proceeding.
SUBJECTS when answering
questions. The study of Labor When is an administrative hearing
Law includes Constitutional, become a criminal proceeding?
Criminal, Corporate, Remedial Answers?
Laws, etc. When I took the Bar It becomes a criminal proceeding when
Exams in 1994, the answers to the employee is being asked questions
the Constitutional Law Questions to prove the ELEMENTS of a crime.
where in the Labor Law
Questions. Your approach to Company Rule provides that non-
Law School must be HOLISTIC wearing of ID is punishable by
and NOT dismissal. You forgot your ID, after
COMPARTMENTALIZED. due notice and hearing, you were
Please revisit your past subjects.” dismissed.
It will result to illegal dismissal. The
Article III - Bill of Rights. penalty is not commensurate to the
Question: If you are employee and offense committed,
being subjected to a disciplinary
hearing by the HR Manager, can you There should be a just, if not humane
cite Article III - Bill of Rights of the penalty, which must be commensurate
with the act, conduct or omission He was dismissed because of safety
imputed to the employee. (Farrol vs. CA, violations under the aviation industry.
2000. J. Ynarez-Santiago) The aviation industry is the most
regulated industry in the world. If you
The employer alleged that under its are too fat, you can block the aisle
rules, the employee’s infraction is during emergency exits. BOFQ
punishable by dismissal. However,
employer's rules cannot preclude the *HOOTERS case why they only hire
State from inquiring whether the strict “sexy waitresses”
and rigid application or interpretation
thereof would be harsh to the employee. INK case?
The employee has no previous record in Freedom of Religion.
his twenty-four long years of service —
this would have been his first offense. This case is important in Labor Law
The dismissal imposed on the employee because it tells us that in the Hierarchy
is unduly harsh and grossly of Rights, an individual’s right to his
disproportionate to the infraction which beliefs is superior to workers right to
led to the termination of his services. A association.
lighter penalty would have been more
just, if not humane. The law can compel workers to join
union under a Union Shop or Close
Shop CBA. But religious belief is the
Exceptions to Discrimination, in exception.
Labor Law?
GR: No Discrimination Members of religious sects cannot be
Exception: BFOQ compelled or coerced to join labor
unions even under closed shop
Employment in particular jobs may not agreements because of religious beliefs.
be limited to persons of a particular sex, (Victoriano vs. Elizalde Rope Workers
religion, or national origin unless the Union, 1974. J. Zaldivar)
employer can show a bona fide
occupational qualification (BFOQ). Other preferences? Or special
(Yrasuegi vs. Philippine Airlines, Inc., treatment?
2008. J. Reyes) Methodist or Jehova’s Witnesses

In Yraquegi Case, the 300+ lbs flight An employee shall not be terminated
attendant was dismissed because of from work based on actual, perceived or
his weight. Discriminatory act? Was suspected HIV status.
Yrasuegi dismissed because he was An employee shall not be terminated on
fat? basis of actual, perceived or suspected
Hepatitis B status.
An employee who has or had non-employee of the company it can be
Tuberculosis shall not be discriminated prohibited Comm. Ignacio.
against. He/she shall be entitled to work
for as long as he/she is certified by the No person engaged in picketing shall
company’s accredited health provider as commit any act of violence, coercion or
medically fit and shall be restored to intimidation or obstruct the free ingress
work as soon as his/her illness is to or egress from the employer's
controlled. premises for lawful purposes, or
obstruct public thoroughfares.
Anti-age discrimination & Covid infected
individuals
Pregnant women and married women MEMORIZE ARTICLE 3 SEC. 3
SECTION 3. The State shall afford full
SECTION 4. No law shall be passed protection to labor, local and overseas,
abridging the freedom of speech, of organized and unorganized, and
expression, or of the press, or the promote full employment and equality of
right of the people peaceably to employment opportunities for all.
assemble and petition the
government for redress of It shall guarantee the rights of all
grievances. workers to self-organization, collective
bargaining and negotiations, and
What is peaceful picketing? (Sec.4) peaceful concerted activities, including
Peaceful picketing is part of freedom of the right to strike in accordance with
speech (Mortera vs. CIR, 1947; law. They shall be entitled to security of
Perfecto) tenure, humane conditions of work, and
a living wage. They shall also participate
Can a non-employee picket San in policy and decision-making processes
Miguel Corporation because he affecting their rights and benefits as may
wants to lower the prices of beer? be provided by law.
The right to picket can be carried out
even in the absence of employer- The State shall promote the principle of
employee relationship. Innocent shared responsibility between workers
bystander Rule. and employers and the preferential use
(Philippine Ass’n of Free Labor Unions of voluntary modes in settling disputes,
vs. Cloribel, 1969. J. Reyes, J.B.L.) including conciliation, and shall enforce
their mutual compliance therewith to
Can you prohibit picketing? foster industrial peace.
As a general rule NO, but when there is
force or violence produced by those who The State shall regulate the relations
are picketing may it be an employee or between workers and employers,
recognizing the right of labor to its just
share in the fruits of production and the Contracts of Employment is the law
right of enterprises to reasonable between the parties. But the exception
returns on investments, and to to non-impairment is Police Power.
expansion and growth.
For example, an OFW entered into a
Why do we have unions? contract with a foreign principal for a
The NLRC is tripartite, meaning there is salary of 100$ a month. However,
a representative for LABOR, the DOLE and POEA issued a
MANAGEMENT and GOVERNMENT. I regulation stating that under the
am a Workers' Sector Commissioner as POEA Standard Employment
I was endorsed by various labor groups, Contract the salary of the OFW
more particularly OFW and Seafarers should be 300$ a month. Can the
Unions. foreign principal argue that this is
non-impairment of contract?
Labor unions are instrumentalities
through which the welfare of working I would argue the DOLE and POEA, as
men and women may be promoted and instrumentalities of the state, are
fostered. exercising their regulatory powers and
police power as protection for the
(Mactan Workers Union vs. Aboitiz, ordinary OFW, hence, the non-
1972. J. Fernando) impairment of contract is not a valid
defense.
Workers unorganized are weak; workers
organized are strong. A:
The POEA Standard Employment
(Guijarno vs. Court of Industrial Contract is an exercise of police power
Relations, 1973. J. Fernando) of the State. (Conference of Maritime
Manning Agencies, Inc. vs. POEA 1995,
If you have the right to associate, you Davide)
also have the right to…?
The local union has the right to The constitutional prohibition against
disaffiliate from its mother federation. impairing contractual obligations is not
(tropical hut employees union-cgw) vs absolute and is not to be read with literal
tropical hut food market, Inc., 1990; exactness. It is restricted to contracts
Meldialdea) with respect to property or some object
of value and which confer rights that
Sec. 10. No law impairing the may be asserted in a court of justice; it
obligation of contracts shall be has no, application to statutes relating to
passed? How is this applicable in public subjects within the domain of the
Labor Law? general legislative powers of the State
and involving the public rights and public
welfare of the entire community affected The challenged POEA Standard
by it. It does not prevent a proper Employment Contract was enacted
exercise by the State of its police power under the police power of the State, it
by enacting regulations reasonably cannot be struck down on the ground
necessary to secure the health, safety, that they violate the contract clause. To
morals, comfort, or general welfare of hold otherwise is to alter long-
the community, even though contracts established constitutional doctrine and
may thereby be affected, for such to subordinate the police power to the
matters cannot be placed by contract contract clause.
beyond the power of the State to
regulate and control them. The POEA Standard Employment
Contract as well as The Labor Code is
Verily, the freedom to contract is not an exercise of the police power of the
absolute; all contacts and all rights are State and does not violate the contract
subject to the police power of the State clause.
and not only may regulations which
affect them be established by the State, Are Philippine laws applicable in
but all such regulations must be subject other countries?
to change from time to time, as the The General Rule is that Laws shall be
general well-being of the community applicable within the Jurisdictional
may require, or as the circumstances Territory of the Philippines. However,
may change, or as experience may this is subject to exceptions, such as
demonstrate the necessity. And under Art. 2 of the RPC, Art. 15 of the NCC,
the Civil Code, contracts of labor are lex loci contractu principle (the law of
explicitly subject to the police power of the place where the contract is made)
the State because they are not ordinary
contracts but are impressed with public In the Context of Labor Law?
interest. Article 1700 thereof expressly Whether employed locally or overseas,
provides: all Filipino workers enjoy the protective
mantle of Philippine labor and social
ARTICLE 1700. The relations between legislation. (Royale Crown Internationale
capital and labor are not merely vs. NLRC, 1989; J. Cortes)
contractual. They are so impressed with *Please cite the precedent-setting case
public interest that labor contracts must
yield to the common good. Therefore, Assignment:
such contracts are subject to the special Civil Code and Labor Code
laws on labor unions, collective provisions as related to Recruitment
bargaining, strikes and lockouts, closed and Placement
shop, wages, working conditions, hours When studying the Law, before you
of labor and similar subjects. read the law books and
jurisprudence, read the law.
 New topic in Bar Exams: Burden of
What is the State Policy in Labor? proof and quantum of evidence in
What do you understand by Security Labor Cases
of Tenure?
Labor Code. Article 294. Security of What is the burden of proof and
Tenure quantum of evidence in labor cases?
Substantial evidence is more than mere
Security of tenure is a paramount right scintilla. It means such relevant
of every employee that is held sacred by evidence as a reasonable mind might
the Constitution. The reason for this is accept as adequate to support a
that labor is deemed to be “property” conclusion. (Ang Tibay v. CIR, 1940)
within the meaning of constitutional
guarantees. It is the policy of the State IMPORTANCE OF PRECEDENTS
to guarantee the right of every worker to Precedent cases like Ang Tibay never
security of tenure as an act of social changes, and the Bar Examiner
justice (Sagales v. Rustan’s Commercial knows about this case.
Corp, 2008)
Burden of proof
Connection on social justice The rule is that the one who alleges a
Social justice is for the deserving, fact has the burden of proving it.
whether he be a millionaire in his (Evidence subject)
mansion or a pauper in his hovel (Gelos
v. CA, 1992) Before the employer must bear the
burden of proving that the dismissal was
Connection on Equal Work legal, the employee must first establish
Opportunities by substantial evidence the fact of his
The Constitution directs the State to dismissal from service. (PRRM v.
promote “equality of employment Pulgar, 2010) Based on Machica v.
opportunities for all.” Similarly, the Labor Roosevelt Services Center, Inc.
Code provides that the State shall
“ensure equal work opportunities On labor standards, the burden rests on
regardless of sex, race or creed.” (ISAE the employer to prove payment, rather
v. Quisumbing, 2000) than on the employees to prove non-
payment.
Connection on CBA
A Collective Bargaining Agreement is
the law between the parties (TSPIC vs. One who pleads payment has the
TSPIC Employees Union, 2008) burden of proving it, and even where
employees must allege non-payment,
Construction in favor of labor the general rule is that the burden rests
on the employer to prove payment,
rather than on the employees to prove
non-payment. (Heirs of Ridad v. GAUF, Philippines Overseas Employment
2013) Administration (POEA)
Omnibus Rules and Reg. Implementing
The burden shifts to the employee on RA No. 8042, as amended
labor standards not incurred in the Role of POEA
normal course of business. (Loon v. PM, Sec. 3. Regulation of Private Sector.
Inc., 2013) Sec. 4. Hiring Through the POEA.
Sec. 6. Jurisdiction of the POEA.
NICOLAS VS. NLRC
Under the law, proof beyond reasonable Regulatory and Visitorial Powers of
doubt is required to sustain a criminal the Department of Labor and
conviction, an inapplicable requirement Employment (DOLE) Secretary.
in a labor complaint. In fact, and as (Omnibus Rules and Regulations
correctly ruled by the NLRC, the Implementing R.A. No. 8042, as
judgment in a criminal case has no amended)
binding or conclusive effect in a labor
case. Conviction of an employee in a Role of DOLE
criminal case is not indispensable to Section 1. On-Site Protection. —
warrant an employees dismissal. The DOLE shall see to it that labor and
Because in labor its substantial social welfare laws in the foreign
evidence countries are fairly applied to migrant
workers and whenever applicable, to
What about civil cases? What is the other overseas Filipinos, including the
quantum of evidence? grant of legal assistance and the referral
Preponderance of evidence. to proper medical centers or hospitals.

RECRUITMENT AND PLACEMENT Section 2. POLO Functions. —

(Focus on OFWs) The DOLE overseas operating arm shall
Commissioner’s advocacy: be the POLO, which shall have the
It is noteworthy that - the State does not following functions and responsibilities:
promote overseas employment as a a. Ensure the promotion and
means to sustain economic growth and protection of the welfare and
achieve national development. interests of OFWs and assist
them in all problems arising out of
Why are OFWs important? employer-employee relationships;
Article 22. Mandatory Remittance of b. Coordinate the DOLE's
Foreign Exchange Earnings. employment promotion mandate,
consistent with the principles of
What is recruitment and placement? the Act;
Article 13 (b) MEMORIZE
 c. Verify employment contracts and
other employment-related However, The Secretary of Labor, not
documents; being a judge, may no longer issue
d. Monitor and report to the search or arrest warrants. (Salazar vs.
Secretary of Labor and Achacoso, 1990) Article 38 is
Employment on situations and unconstitutional.
policy developments in the
receiving country that may affect What is Ban on Direct Hiring?
OFWs in particular and Philippine Labor Code. Article 18. Ban on Direct
labor policies, in general; Hiring. — No employer may hire a
e. Supervise and coordinate the Filipino worker for overseas employment
operations of the Migrant except through the Boards and entities
Workers and Other Overseas authorized by the Secretary of Labor.
Filipinos Resource Center; and Direct hiring by members of the
f. Such other functions and diplomatic service, officials and
responsibilities as may be employees of international organizations
assigned by the Secretary of and such other employers as may be
Labor and Employment. allowed by the Secretary of Labor is
exempted from this provision.
Labor Code. Article 38. Illegal
Recruitment. — What is the repercussion of Article 18
xxx xxx xxx to the OFW? (Take note)
(c) The Secretary of Labor and Unless the employment contract of an
Employment or his duly authorized OFW is processed through the POEA,
representatives shall have the power to the same does not bind the concerned
cause the arrest and detention of such OFW. (Dagasdag vs. GPGSC, 2017)
non-licensee or non-holder of authority if Exemptions:
after investigation it is determined that 1. Direct Hires
his activities constitute a danger to 2. Rehires
national security and public order or will
lead to further exploitation of job- Define Direct Hires
seekers. The Secretary shall order the “Direct Hires” refer to workers directly
search of the office or premises and hired by employers for overseas
seizure of documents, paraphernalia, employment as authorized by the
properties and other implements used in Secretary of Labor and Employment and
illegal recruitment activities and the processed by the POEA, including:
closure of companies, establishments 1. Those hired by international
and entities found to be engaged in the organizations;
recruitment of workers for overseas 2. Those hired by members of the
employment, without having been diplomatic corps; and
licensed or authorized to do so.
 3. Name hires or workers who are of workers for overseas employment
able to secure overseas whether for profit or not.
employment opportunities with
employers without the assistance Article 27. Citizenship Requirement. —
or participation of any agency. Only Filipino citizens or corporations,
partnerships or entities at least seventy-
Define Rehires, Recontracted or Balik five percent (75%) of the authorized and
Manggagawa voting capital stock of which is owned
“Rehires” refer to land-based workers and controlled by Filipino citizens shall
who renewed their employment be permitted to participate in the
contracts with the same principal. recruitment and placement of workers,
locally or overseas.
The Balik Manggagawa Program can
fast-track an OFW’s deployment abroad Article 28. Capitalization. — All
(Morales v. Skills Int. Co., 2006) applicants for authority to hire or
renewal of license to recruit are required
Who are Entities Prohibited from to have such substantial capitalization
Recruiting? as determined by the Secretary of
Labor Code. Regulation of Recruitment Labor.
and Placement Activities.
Revised POEA Rules and Regulations
Article 25. Private Sector Participation Governing the Recruitment and
in the Recruitment and Placement of Employment
Workers. — Pursuant to national of Landbased Overseas Filipino
development objectives and in order to Workers of 2016
harness and maximize the use of private
sector resources and initiative in the RULE I
development and implementation of a Private Sector Participation in the
comprehensive employment program, Overseas Employment Program
the private employment sector shall
participate in the recruitment and Section 1. Participation of the Private
placement of workers, locally and Sector. — The private sector shall
overseas, under such guidelines, rules participate in the recruitment of Filipino
and regulations, as may be issued by workers for overseas employment in
the Secretary of Labor. accordance with these Rules and any
subsequent guidelines that may be
Article 26. Travel Agencies Prohibited issued by the POEA Governing Board
to Recruit. — Travel agencies and sales and the Administration.
agencies of airline companies are
prohibited from engaging in the Section 2. Who may Participate;
business of recruitment and placement Required Capitalization. — Any Filipino
citizen acting as a sole proprietor or a make, propose or provide an insurance
partnership, or a corporation at least contract under the compulsory
seventy-five percent (75%) of the insurance coverage for agency-hired
authorized and voting capital stock of Overseas Filipino Workers;
which is owned and controlled by e. Sole proprietors, partners or officers
Filipino citizens, may engage in the and members of the board with
business of recruitment and placement derogatory records, such as, but not
of Filipino workers. limited to the following:
The sole proprietor and partnership shall 1. Those convicted, or against whom
have a minimum capitalization of Five probable cause or prima facie finding of
Million Pesos (PhP5,000,000.00) and a guilt is determined by a competent
minimum paid up capital of Five Million authority, for illegal recruitment, or for
Pesos (PhP5,000,000.00) in case of a other related crimes or offenses
corporation. committed in the course of, related to, or
Those with existing licenses shall, within resulting from, illegal recruitment, or for
four (4) years from effectivity hereof, crimes involving moral turpitude;
increase their capitalization or paid up 2. Those agencies whose licenses have
capital, as the case may be, to Five been revoked for violation of RA 8042
Million Pesos (PhP5,000,000.00) at the (Migrant Workers and Overseas
rate of Seven Hundred Fifty Thousand Filipinos Act of 1995), as amended, PD
Pesos (PhP750,000.00) every year. 442 (Labor Code of the Philippines), as
amended; and RA 9208 (Trafficking in
Section 3. Who are Disqualified. — The Persons Act of 2003), as amended, and
following persons and entities are their implementing rules and
disqualified to participate or engage in regulations;
the recruitment and placement of 3. Those agencies whose licenses have
workers for overseas employment: been cancelled, or those who, pursuant
a. Travel agencies and sales agencies to the Order of the Administrator, were
of airline companies; included in the list of persons with
b. Officers or members of the Board of derogatory record for violation of
any corporation or partners in a recruitment laws and regulations; and
partnership engaged in the business of f. Any official or employee of the DOLE,
a travel agency; POEA, OWWA, DFA, DOJ, DOH, BI, IC,
c. Corporations and partnerships, NLRC, TESDA, CFO, NBI, PNP, Civil
where any of its officers, members of Aviation Authority of the Philippines
the board or partners is also an officer, (CAAP), international airport authorities,
member of the board or partner of a and other government agencies directly
corporation or partnership engaged in involved in the implementation of RA
the business of a travel agency; 8042, as amended, and/or any of his/her
d. Individuals, partners, officers or relatives within the fourth civil degree of
directors of an insurance company who consanguinity or affinity.
(Similar provision for Seafarers) appointment or designation of any agent
or representative including the
Why are travel agencies prohibited? establishment of additional offices
Aside from conflict of interest, hidden anywhere shall be subject to the prior
charges and fees. What the agency approval of the Department of Labor.
cannot do directly, it cannot do indirectly
through the travel agency. Article 35. Suspension and/or
Cancellation of License or Authority. —
Distinguish License and Authority. The Minister of Labor shall have the
Simply put, a license is issued to a power to suspend or cancel any license
person, partnership or corporation or authority to recruit employees for
operating a private employment agency, overseas employment for violation of
while an authority is issued to the rules and regulations issued by the
employees, officers, agents or Secretary of Labor, the Overseas
representatives of said private Employment Development Board, and
employment agency. the National Seamen Board, or for
violation of the provisions of this and
Labor Code other applicable laws, General Orders
Article 13. Definitions. — and Letters of Instruction.
xxx xxx xxx
d) "License" means a document issued Simply put, a license is issued to a
by the Department of Labor authorizing person, partnership or corporation
a person or entity to operate a private operating a private employment agency,
employment agency. while an authority is issued to the
xxx xxx xxx employees, officers, agents or
f) "Authority" means a document issued representatives of said private
by the Department of Labor authorizing employment agency.
a person or association to engage in
recruitment and placement activities as The power to suspend or cancel any
a private recruitment entity. license or authority to recruit employees
for overseas employment is concurrently
Article 29. Non-transferability of License vested with the POEA and the Secretary
or Authority. — No license or authority of Labor.
shall be used directly or indirectly by any (Trans Action Overseas Corp. vs. Sec.
person other than the one in whose of Labor, 1997)
favor it was issued or at any place other
than that stated in the license or Concurrent POEA and DOLE. What
authority, nor may such license or are the prohibited activites?
authority be transferred, conveyed or Labor Code Article 34. Prohibited
assigned to any other person or entity. Practices. — It shall be unlawful for any
Any transfer of business address,
individual, entity, licensee, or holder of Labor or by his duly authorized
authority: representatives;
a. To charge or accept, directly or h. To fail to file reports on the status
indirectly, any amount greater of employment, placement
than that specified in the vacancies, remittance of foreign
schedule of allowable fees exchange earnings, separation
prescribed by the Secretary of from jobs, departures and such
Labor, or to make a worker pay other matters or information as
any amount greater than that may be required by the Secretary
actually received by him as a of Labor;
loan or advance; i. To substitute or alter employment
b. To furnish or publish any false contracts approved and verified
notice or information or document by the Department of Labor from
in relation to recruitment of the time of actual signing thereof
employment; by the parties up to and including
c. To give any false notice, the periods of expiration of the
testimony, information or same without the approval of the
document or commit any act of Secretary of Labor;
misrepresentation for the purpose j. To become an officer or member
of securing a license or authority of the Board of any corporation
under this Code; engaged in travel agency or to be
d. To induce or to attempt to induce engaged directly or indirectly in
a worker already employed to the management of a travel
quit his employment in order to agency and;
offer him to another unless the k. To withhold or deny travel
transfer is designed to liberate documents from applicant
the worker from oppressive terms workers before departure for
and conditions of employment; monetary or financial
e. To influence or to attempt to considerations other than those
influence any person or entity not authorized under this Code and
to employ any worker who has its implementing rules and
applied for employment through regulations.
his agency;
f. To engage in the recruitment or ILLEGAL RECRUITMENT (Favorite
placement of workers in jobs Bar Exam Topic)
harmful to public health or What is the reason why RA 8042
morality or to the dignity of the became law in 1995?
Republic of the Philippines; Flor Contemplacion. That is the time
g. To obstruct or attempt to obstruct then Mayor D30 burned the
inspection by the Secretary of Singaporean flag in Davao. That is the
time Sec. Confesor, one of the best non-
lawyer DOLE Secretary was grilled by than that specified in the
Congress. schedule of allowable fees
It is noteworthy that -- The proliferation prescribed by the Secretary of
of illegal job recruiters and syndicates Labor and Employment, or to
preying on innocent people anxious to make a worker pay or
obtain employment abroad is one of the acknowledge any amount greater
primary considerations that led to the than that actually received by him
enactment of R.A. No. 8042. (People vs. as a loan or advance;
Gamboa, 2000, J. Bellosillo) b. To furnish or publish any false
notice or information or document
When you see in the question the in relation to recruitment or
word “canvassing” or “referral”, it employment;
talks about Recruitment. c. To give any false notice,
testimony, information or
What is Illegal Recruitment? (an document or commit any act of
expanded definition) misrepresentation for the purpose
of securing a license or authority
“Illegal Recruitment” shall mean any act under the Labor Code, or for the
of canvassing, enlisting, contracting, purpose of documenting hired
transporting, utilizing, hiring, or workers with the POEA, which
procuring workers and includes include the act of reprocessing
referring, contract services, promising or workers through a job order that
advertising for employment abroad, pertains to nonexistent work,
whether for profit or not, when work different from the actual
undertaken by non-licensee or non- overseas work, or work with a
holder of authority contemplated under different employer whether
Article 13(f) of Presidential Decree No. registered or not with the POEA;
442, as amended, otherwise known as d. To include or attempt to induce a
the Labor Code of the Philippines: worker already employed to quit
Provided, That any such non-licensee or his employment in order to offer
non-holder who, in any manner, offers him another unless the transfer is
or promises for a fee employment designed to liberate a worker
abroad to two or more persons shall be from oppressive terms and
deemed so engaged. It shall likewise conditions of employment;
include the following acts, whether e. To influence or attempt to
committed by any person, whether a influence any person or entity not
non-licensee, non-holder, licensee or to employ any worker who has
holder of authority: not applied for employment
through his agency or who has
a. To charge or accept directly or formed, joined or supported, or
indirectly any amount greater has contacted or is supported by
 any union or workers' monetary or financial
organization; considerations, or for any other
f. To engage in the recruitment or reasons, other than those
placement of workers in jobs authorized under the Labor Code
harmful to public health or and its implementing rules and
morality or to the dignity of the regulations;
Republic of the Philippines; l. Failure to actually deploy a
g. To obstruct or attempt to obstruct contracted worker without valid
inspection by the Secretary of reason as determined by the
Labor and Employment or by his Department of Labor and
duly authorized representative; Employment;
h. To fail to submit reports on the m. Failure to reimburse expenses
status of employment, placement incurred by the worker in
vacancies, remittance of foreign connection with his
exchange earnings, separation documentation and processing
from jobs, departures and such for purposes of deployment, in
other matters or information as cases where the deployment
may be required by the Secretary does not actually take place
of Labor and Employment; without the worker's fault. Illegal
i. To substitute or alter to the recruitment when committed by a
prejudice of the worker, syndicate or in large scale shall
employment contracts approved be considered an offense
and verified by the Department of involving economic sabotage;
Labor and Employment from the and
time of actual signing thereof by n. To allow a non-Filipino citizen to
the parties up to and including head or manage a licensed
the period of the expiration of the recruitment/manning agency.
same without the approval of the
Department of Labor and Elements of Illegal Recruitment
Employment; (People vs. Cabacang y Mazambique,
j. For an officer or agent of a 1995. J. Puno)
recruitment or placement agency Clearly, to prove illegal recruitment, only
to become an officer or member two elements need to be shown, viz: (1)
of the Board of any corporation the person charged with the crime must
engaged in travel agency or to be have undertaken recruitment activities
engaged directly or indirectly in (or any of the activities enumerated in
the management of travel Article 34 of the Labor Code, as
agency; amended); and (2) said person does not
k. To withhold or deny travel have a license authority to do so. It is
documents from applicant not required that it be shown that such
workers before departure for
person wrongfully represented himself What is Illegal Recruitment by a non-
as a licensed recruiter. licensee or non-holder of authority?

In the old days, illegal recruitment can (People vs. Alvarez, 2002. J.
only be done when you have NO license Panganiban)
or authority, but RA 8042 EXPANDED it
to include holders of licenses and Illegal recruitment is an offense that is
authorities. Is this Clear? essentially committed by a non-licensee
or non-holder of authority. A non-
Four (4) Kinds of Illegal Recruitment. licensee means any person, corporation
(People vs. Sadiosa y Cabenta, 1998. J. or entity to which the labor secretary has
Romero) not issued a valid license or authority to
engage in recruitment and placement; or
There are at least four kinds of illegal whose license or authority has been
recruitment under the law. One is suspended, revoked or cancelled by the
simple illegal recruitment committed by POEA or the labor secretary. A license
a licensee or holder of authority. Any authorizes a person or an entity to
person "who is neither a licensee nor a operate a private employment agency,
holder of authority" commits the second while authority is given to those
type of illegal recruitment. The third type engaged in recruitment and placement
of illegal recruitment refers to offenders activities.
who either commit the offense alone or
with another person against three or What is Illegal Recruitment as
more persons individually or as a group. Economic Sabotage?
A syndicate or a group of three or more Illegal recruitment shall be considered
persons conspiring and confederating an offense involving economic sabotage
with one another in carrying out the act when it is committed by a syndicate or in
circumscribed by the law commits the a large scale.
fourth type of illegal recruitment by the
law. What is Illegal Recruitment in Large
Scale, elements?
In other words, the four (4) kinds of
illegal recruitment are: (People vs. Comia, 1994. J. Davide, Jr.)
1. Simple illegal recruitment;
2. Illegal recruitment by a non- There is illegal recruitment in large scale
licensee nor a holder of authority; when a person (a) undertakes any
3. Illegal recruitment in a large recruitment activity defined under Article
scale; and 13(b) or any prohibited practice
4. Illegal recruitment committed by a enumerated under Article 34 of the
syndicate. Labor Code; (b) does not have a license
or authority to lawfully engage in the
recruitment and placement of workers; three or more persons whether
and (c) commits the same against three individually or as a group.
or more persons, individually or as a
group. NOT THE NUMBER OF COMPLAINTS,
BUT NUMBER OF COMPLAINANTS.
Illegal Recruitment committed by a
Syndicate, elements. The key words here are "THREE OR
MORE" NOT "at least three" nor
(People vs. Agustin, 1995. J. Regalado) "Three". Is this Clear? DO NOT
CHANGE THE WORDINGS OF THE
Illegal recruitment is committed by a LAW, UNLESS YOU ARE A
syndicate, i.e., if it is carried out by a CONGRESSMAN OR SENATOR.
group of three or more persons
conspiring and/or confederating with Illegal Recruitments as distinguished
one another in carrying out any unlawful from Estafa
or illegal transaction, enterprise or
scheme. A person may be charged and convicted
Important — separately of Illegal Recruitment under
Illegal Recruitment in Large Scale must the Labor Code and Estafa under the
be understood as referring to the Revised Penal Code. (People vs. Turda,
number of complainants in each case. 1994. J. Bellosillo)
(People vs. Reyes, 1995. J. Mendoza)
The rule is settled that the recruitment of
Several cases were filed/pending in the persons for overseas employment
courts against the accused, a without the necessary recruiting permit
housewife, for illegal recruitment. or authority from the POEA constitutes
illegal recruitment; however, where
When the Labor Code speaks of illegal some other crimes or felonies are
recruitment "committed against three (3) committed in the process, conviction
or more persons individually or as a under the Labor Code does not preclude
group," it must be understood as punishment under other statutes.
referring to the number of complainants
in each case who are complainants Where two different laws define two
therein, otherwise, prosecutions for crimes, the conviction of one of them is
single crimes of illegal recruitment can no obstacle to that of the other, although
be cummulated to make out a case of both offenses arise from the same facts,
large scale illegal recruitment. In other if each crime involves some important
words, a conviction for large scale illegal act which is not an essential element of
recruitment must be based on a finding the other. The safest general rule is that
in each case of illegal recruitment of the two offenses must be in substance
precisely the same or of the same
nature or of the same species, so that national, for marriage for the purpose of
the evidence which proves the one acquiring, buying, offering, selling or
would prove the other; or if this is not trading him/her to engage in prostitution,
the case, then the one crime must be an pornography, sexual exploitation, forced
ingredient of the other. labor, slavery, involuntary servitude or
debt bondage;
Why is the distinction important? What (c) To offer or contract marriage, real or
is mala in se? What is mala prohibita? simulated, for the purpose of acquiring,
buying, offering, selling, or trading them
(People vs. Comila, 2007. J. Garcia) to engage in prostitution, pornography,
sexual exploitation, forced labor or
It is well established in jurisprudence slavery, involuntary servitude or debt
that a person may be charged and bondage;
convicted for both illegal recruitment and (d) To undertake or organize tours and
estafa. The reason therefor is not hard travel plans consisting of tourism
to discern: illegal recruitment is malum packages or activities for the purpose of
prohibitum, while estafa is malum in se. utilizing and offering persons for
In the first, the criminal intent of the prostitution, pornography or sexual
accused is not necessary for conviction. exploitation;
In the second, such an intent is (e) To maintain or hire a person to
imperative. engage in prostitution or pornography;
(f) To adopt persons by any form of
Acts of Trafficking in Persons. consideration for exploitative purposes
It shall be unlawful for any person, or to facilitate the same for purposes of
natural or juridical, to commit any of the prostitution, pornography, sexual
following acts: exploitation, forced labor, slavery,
involuntary servitude or debt bondage;
(a) To recruit, obtain, hire, provide, (g) To adopt or facilitate the adoption of
offer, transport, transfer, maintain, persons for the purpose of prostitution,
harbor, or receive a person by any pornography, sexual exploitation, forced
means, including those done under the labor, slavery, involuntary servitude or
pretext of domestic or overseas debt bondage;
employment or training or (h) To recruit, hire, adopt, transport,
apprenticeship, for the purpose of transfer, obtain, harbor, maintain,
prostitution, pornography, or sexual provide, offer, receive or abduct a
exploitation; person, by means of threat or use of
(b) To introduce or match for money, force, fraud, deceit, violence, coercion,
profit, or material, economic or other or intimidation for the purpose of
consideration, any person or, as removal or sale of organs of said
provided for under Republic Act No. person;
6955, any Filipino woman to a foreign
(i) To recruit, transport, obtain, transfer, (4) The use, procuring or offering of a
harbor, maintain, offer, hire, provide, child for illegal activities or work which,
receive or adopt a child to engage in by its nature or the circumstances in
armed activities in the Philippines or which it is carried out, is likely to harm
abroad; their health, safety or morals; and
(j) To recruit, transport, transfer, harbor, (l) To organize or direct other persons
obtain, maintain, offer, hire, provide or to commit the offenses defined as acts
receive a person by means defined in of trafficking under R.A. No. 9208.
Section 3 of this Act for purposes of
forced labor, slavery, debt bondage and Acts that Promote Trafficking in
involuntary servitude, including a Persons.
scheme, plan, or pattern intended to
cause the person either: The following acts which promote or
(1) To believe that if the person did not facilitate trafficking in persons shall be
perform such labor or services, he or unlawful:
she or another person would suffer
serious harm or physical restraint; or a. To knowingly lease or sublease,
(2) To abuse or threaten the use of law use or allow to be used any
or the legal processes; and house, building or establishment
(k) To recruit, transport, harbor, obtain, for the purpose of promoting
transfer, maintain, hire, offer, provide, trafficking in persons;
adopt or receive a child for purposes of b. To produce, print and issue or
exploitation or trading them, including distribute unissued, tampered or
but not limited to, the act of buying fake counseling certificates,
and/or selling a child for any registration stickers, overseas
consideration or for barter for purposes employment certificates or other
of exploitation. Trafficking for purposes certificates of any government
of exploitation of children shall include: agency which issues these
(1) All forms of slavery or practices certificates, decals and such
similar to slavery, involuntary servitude, other markers as proof of
debt bondage and forced labor, compliance with government
including recruitment of children for use regulatory and pre-departure
in armed conflict; requirements for the purpose of
(2) The use, procuring or offering of a promoting trafficking in persons;
child for prostitution, for the production c. To advertise, publish, print,
of pornography, or for pornographic broadcast or distribute, or cause
performances; the advertisement, publication,
(3) The use, procuring or offering of a printing broadcasting or
child for the production and trafficking of distribution by any means,
drugs; and including the use of information
technology and the internet, of
 any brochure, flyer, or any witnesses, in an investigation or
propaganda material that prosecution of a case under R.A.
promotes trafficking in persons; No. 9208;
d. To assist in the conduct of i. To destroy, conceal, remove,
misrepresentation or fraud for confiscate or possess, or attempt
purposes of facilitating the to destroy, conceal, remove,
acquisition of clearances and confiscate or possess, any actual
necessary exit documents from or purported passport or other
government agencies that are travel, immigration or working
mandated to provide pre- permit or document, or any other
departure registration and actual or purported government
services for departing persons for identification, of any person in
the purpose of promoting order to prevent or restrict, or
trafficking in persons; attempt to prevent or restrict,
e. To facilitate, assist or help in the without lawful authority, the
exit and entry of persons from/to person's liberty to move or travel
the country at international and in order to maintain the labor or
local airports, territorial services of that person; or
boundaries and seaports who are j. To utilize his or her office to
in possession of unissued, impede the investigation,
tampered or fraudulent travel prosecution or execution of lawful
documents for the purpose of orders in a case under R.A. No.
promoting trafficking in persons; 9208.
f. To confiscate, conceal, or destroy
the passport, travel documents, Qualified Trafficking in Persons.
or personal documents or The following shall be considered as
belongings of trafficked persons qualified trafficking:
in furtherance of trafficking or to a. When the trafficked person is a
prevent them from leaving the child;
country or seeking redress from b. When the adoption is effected
the government or appropriate through Republic Act No. 8043,
agencies; and otherwise known as the "Inter-
g. To knowingly benefit from, Country Adoption Act of 1995"
financial or otherwise, or make and said adoption is for the
use of, the labor or services of a purpose of prostitution,
person held to a condition of pornography, sexual exploitation,
involuntary servitude, forced forced labor, slavery, involuntary
labor, or slavery. servitude or debt bondage;
h. To tamper with, destroy, or cause c. When the crime is committed by
the destruction of evidence, or to a syndicate, or in large scale.
influence or attempt to influence Trafficking is deemed committed
 by a syndicate if carried out by a
group of three (3) or more There are elements of Illegal
persons conspiring or Recruitment in this law.
confederating with one another. It
is deemed committed in large Trafficking in persons is a deplorable
scale if committed against three crime.
(3) or more persons, individually
or as a group; (People vs. Casio, 2014. J. Leonen)
d. When the offender is a spouse,
an ascendant, parent, sibling, At least you learn something NEW in
guardian or a person who this Class 👍
exercises authority over the
trafficked person or when the Illegal Recruitment and Trafficking of
offense is committed by a public Persons constitute different offenses. In
officer or employee; fact, the prohibition on double jeopardy
e. When the trafficked person is does not apply to an act or series of acts
recruited to engage in prostitution constituting different offenses.
with any member of the military
or law enforcement agencies; (People vs. Lalli y Purih, 2011. J.
f. When the offender is a member Carpio)
of the military or law enforcement
agencies; and We go now to Liability..
g. When by reason or on occasion 1. Solidary Liability
of the act of trafficking in persons, R.A. No. 8042
the offended party dies, becomes Migrant Workers and Overseas Filipinos
insane, suffers mutilation or is Act of 1995
afflicted with Human
Immunodeficiency Virus (HIV) or SECTION 10. Money Claims. —
the Acquired Immune Deficiency xxx xxx xxx
Syndrome (AIDS). The liability of the principal/employer
h. When the offender commits one and the recruitment/placement agency
or more violations of Section 4 for any and all claims under this section
(Acts of Trafficking in Persons) shall be joint and several. This provision
over a period of sixty (60) or shall be incorporated in the contract for
more days, whether those days overseas employment and shall be a
are continuous or not; and condition precedent for its approval. The
i. When the offender directs or performance bond to be filed by the
through another manages the recruitment/placement agency, as
trafficking victim in carrying out provided by law, shall be answerable for
the exploitative purpose of all money claims or damages that may
trafficking. be awarded to the workers. If the
recruitment/placement agency is a severally liable for money claims
juridical being, the corporate officers including claims arising out of an
and directors and partners as the case employer-employee relationship and/or
may be, shall themselves be jointly and damages.
solidarily liable with the corporation or
partnership for the aforesaid claims and (Sameer Overseas Placement Agency,
damages. Inc. vs. Cabiles, 2014. J. Leonen)

Such liabilities shall continue during the Section 10 of the Migrant Workers and
entire period or duration of the Overseas Filipinos Act of 1995 provides
employment contract and shall not be that the foreign employer and the local
affected by any substitution, amendment employment agency are jointly and
or modification made locally or in a severally liable for money claims
foreign country of the said contract. including claims arising out of an
employer-employee relationship and/or
What do you understand by solidary damages. This section also provides
liability? Read the LAW. that the performance bond filed by the
local agency shall be answerable for
Joint and several liability – refers to the such money claims or damages if they
liability of the principal/employer and the were awarded to the employee.
recruitment/manning agency, for any
and all claims arising out of the This provision is in line with the state's
implementation of the employment policy of affording protection to labor
contract involving Filipino workers for and alleviating workers' plight.
overseas deployment. If the
recruitment/manning agency is a In overseas employment, the filing of
juridical being, the corporate officers money claims against the foreign
and directors and partners, as the case employer is attended by practical and
may be, shall themselves be jointly and legal complications. The distance of the
severally liable with the corporation or foreign employer alone makes it difficult
partnership for the aforesaid claims and for an overseas worker to reach it and
damages. Section 1 (s), Rule II, make it liable for violations of the Labor
Omnibus Rules and Regulations of R.A. Code. There are also possible conflict of
No. 8042, as amended. laws, jurisdictional issues, and
procedural rules that may be raised to
Why is Section 10 controversial? frustrate an overseas worker's attempt
KNOW THIS CASE BY HEART — to advance his or her claims.

Section 10 of R.A. No. 8042 provides It may be argued, for instance, that the
that the foreign employer and the local foreign employer must be impleaded in
employment agency are jointly and the complaint as an indispensable party
without which no final determination can and several liability in the Migrant
be had of an action. Workers and Overseas Filipinos Act of
1995 shifts the burden of going after the
The provision on joint and several foreign employer from the overseas
liability in the Migrant Workers and worker to the local employment agency.
Overseas Filipinos Act of 1995 assures However, it must be emphasized that
overseas workers that their rights will the local agency that is held to answer
not be frustrated with these for the overseas worker's money claims
complications. is not left without remedy. The law does
not preclude it from going after the
The fundamental effect of joint and foreign employer for reimbursement of
several liability is that "each of the whatever payment it has made to the
debtors is liable for the entire employee to answer for the money
obligation." A final determination may, claims against the foreign employer.
therefore, be achieved even if only one
of the joint and several debtors are A further implication of making local
impleaded in an action. Hence, in the agencies jointly and severally liable with
case of overseas employment, either the foreign employer is that an
the local agency or the foreign employer additional layer of protection is afforded
may be sued for all claims arising from to overseas workers. Local agencies,
the foreign employer's labor law which are businesses by nature, are
violations. This way, the overseas inoculated with interest in being always
workers are assured that someone — on the lookout against foreign
the foreign employer's local agent — employers that tend to violate labor law.
may be made to answer for violations Lest they risk their reputation or
that the foreign employer may have finances, local agencies must already
committed. have mechanisms for guarding against
unscrupulous foreign employers even at
The Migrant Workers and Overseas the level prior to overseas employment
Filipinos Act of 1995 ensures that applications.
overseas workers have recourse in law
despite the circumstances of their However --
employment. By providing that the
liability of the foreign employer may be The Supreme Court in the case of Sto.
"enforced to the full extent" against the Tomas vs. Salac, 2012, held that the
local agent, the overseas worker is liability of corporate directors and
assured of immediate and sufficient officers is not automatic. To make them
payment of what is due them. jointly and solidarily liable with their
company, there must be a finding that
Corollary to the assurance of immediate they were remiss in directing the affairs
recourse in law, the provision on joint
of that company, such as sponsoring or Philippines who is competent, able and
tolerating the conduct of illegal activities. willing at the time of application to
perform the services for which the alien
The concept here is SOLIDARY is desired.
LIABILITY. Clear? For an enterprise registered in preferred
areas of investments, said employment
Theory of Imputed Knowledge permit may be issued upon
The theory of imputed knowledge recommendation of the government
ascribed the knowledge of the agent to agency charged with the supervision of
the principal, not the other way around. said registered enterprise.
The obligations and liabilities of the local
agency and its foreign principal do not Article 41. Prohibition and Penal
end upon the expiration of the Sanctions. —
contracted period as they were duty a. After the issuance of employment
bound to repatriate the OFW to the point permit, the alien shall not transfer
of hire to effectively terminate the to another job or change his
contract of employment. employer without prior approval
(APQ Shipmanagement Co., Ltd. vs. of the Secretary of Labor.
Caseñas, 2014. J. Mendoza) b. Any non-resident alien who shall
take up employment in violation
Simply put — of the provision of this Title and
its implementing rules and
THE SPRING CANNOT RISE HIGHER regulations shall be punished in
THAN ITS SOURCE. accordance with the provision of
Article 289 and 290 of the Labor
The SC FLIP-FLOPS in this topic, so Code.
you need to READ THIS CASE. In addition, the alien worker shall be
subject to deportation after service of his
Labor Code Article 40. Employment sentence.
Permit of Non-resident Aliens. — Any
alien seeking admission to the Article 42. Submission of List. — Any
Philippines for employment purposes employer employing non-resident
and any domestic or foreign employer foreign nationals on the effective date of
who desires to engage an alien for this Code shall submit a list of such
employment in the Philippines shall nationals to the Secretary of Labor
obtain an employment permit from the within thirty (30) days after such date
Department of Labor. indicating their names, citizenship,
The employment permit may be issued foreign and local addresses, nature of
to a non-resident alien or to the employment and status of stay in the
applicant employer after a determination country. The Secretary of Labor shall
of the non-availability of a person in the
then determine if they are entitled to an the power to hire or dismiss the foreign
employment permit. national from employment, pays the
salaries or wages thereof and has
But a BETTER ANSWER is — authority to control the performance or
conduct of the tasks and duties.
DOLE D.O. No. 186-17
REVISED RULES FOR THE Section 2. Exemption. — The following
ISSUANCE OF EMPLOYMENT categories of foreign nationals are
PERMITS TO FOREIGN NATIONALS exempt from securing an employment
permit:
Policy Declaration a. All members of the diplomatic
service and foreign government
The Alien Employment Permit (AEP) is officials accredited by and with
not an exclusive authority for a foreign reciprocity arrangement with the
national to work in the Philippines. It is Philippine government;
just one of the requirements in the b. Officers and staff of international
issuance of a work visa (9g) to legally organizations of which the
engage in gainful employment in the Philippine government is a
country. The foreign national must member, and their legitimate
obtain the required Special Temporary spouses desiring to work in the
Permit (STP) from the Professional Philippines;
Regulation Commission (PRC) in case c. Owners and representatives of
the employment involves practice of foreign principals whose
profession and Authority to Employ companies are accredited by the
Alien from the Department of Justice Philippine Overseas Employment
(DOJ) where the employment is in a Administration (POEA), who
nationalized or partially nationalized come to the Philippines for a
industry and Department of Environment limited period and solely for the
and Natural Resources (DENR) in case purpose of interviewing Filipino
of mining. applicants for employment
abroad;
Section 1. Coverage. — All foreign d. Foreign nationals who come to
nationals who intend to engage in the Philippines to teach, present
gainful employment in the Philippines and/or conduct research studies
shall apply for AEP. in universities and colleges as
As used in this Rules, gainful visiting, exchange or adjunct
employment shall refer to a state or professors under formal
condition that creates an employer- agreements between the
employee relationship between the universities or colleges in the
Philippine-based employer and the Philippines and foreign
foreign national where the former has universities or colleges; or
 between the Philippine the foreign service supplier for at
government and foreign least one (1) year continuous
government: provided that the employment prior to deployment
exemption is on a reciprocal to a branch, subsidiary, affiliate or
basis; representative office in the
e. Permanent resident foreign Philippines.
nationals and probationary or i. an Executive: a natural
temporary resident visa holders person within the
under Section 13 (a-f) of the organisation who primarily
Philippine Immigration Act of directs the management of
1940 and Section 3 of the Alien the organisation and
Social Integration Act of 1995 exercises wide latitude in
(RA 7919); decision making and
f. Refugees and Stateless Persons receives only general
recognized by DOJ pursuant to supervision or direction
Article 17 of the UN Convention from higher level
and Protocol Relating to status of executives, the board of
Refugees and Stateless Persons; directors, or stockholders
and of the business; an
g. All foreign nationals granted executive would not
exemption by law. directly perform tasks
related to the actual
Section 3. Exclusion. — The following provision of the service or
categories of foreign nationals are services of the
excluded from securing an employment organisation;
permit: ii. a Manager: a natural
a. Members of the governing board person within the
with voting rights only and do not organisation who primarily
intervene in the management of directs the
the corporation or in the day to organisation/department/s
day operation of the enterprise. ubdivision and exercises
b. President and Treasurer, who are supervisory and control
part-owner of the company. functions over other
c. Those providing consultancy supervisory, managerial or
services who do not have professional staff; does not
employers in the Philippines. include first line
d. Intra-corporate transferee who is supervisors unless
a manager, executive or employees supervised are
specialist as defined below in professionals; does not
accordance with Trade include employees who
Agreements and an employee of primarily perform tasks
 necessary for the provision ii. must possess the
of the service; or appropriate educational
iii. a Specialist: a natural and professional
person within the qualifications; and
organisation who iii. must be employed by the
possesses knowledge at foreign service supplier for
an advanced level of at least one year prior to
expertise essential to the the supply of service in the
establishment/provision of Philippines.
the service and/or f. Representative of the Foreign
possesses proprietary Principal/Employer assigned in
knowledge of the the Office of Licensed Manning
organisation's service, Agency (OLMA) in accordance
research equipment, with the POEA law, rules and
techniques or regulations.
management; may
include, but is not limited This is the correct and latest citation on
to, members of a licensed AEP.
profession.
Now, I guess this will be a Bar Exam
All other intra-corporate question —
transferees not within
these categories as It is necessary for a foreigner to
defined above are required establish, first and foremost, that he was
to secure an AEP prior to qualified and duly authorized to obtain
their employment in the employment within our jurisdiction in
Philippines. order to claim under the Labor Code.
e. Contractual service supplier who
is a manager, executive or (McBurnie vs. Ganzon, 2013. J. Reyes)
specialist and an employee of a
foreign service supplier which The one cited about Coach Norman
has no commercial presence in Black and Tim Cone is not a good read.
the Philippines:
i. who enters the Philippines Simply put, NO AEP, NO REDRESS TO
temporarily to supply a LABOR COURTS. Is this Clear?
service pursuant to a
contract between his/her Our OFWs are contractual employees.
employer and a service
consumer in the The Filipino Seafarers are contractual
Philippines; employees and not regular employees.
It is an accepted maritime industry
practice that the employment of In case of termination of overseas
seafarers is for a fixed period only. employment without just, valid or
authorized cause as defined by law or
(Millares vs. NLRC, 2002. J. Kapunan) contract, or any unauthorized
deductions from the migrant worker's
Let's start with this premise. salary, the worker shall be entitled to the
full reimbursement of his placement fee
Simply put OFWs are FIXED TERM and the deductions made with interest at
EMPLOYEES NOT REGULAR twelve percent (12%) per annum, plus
EMPLOYEES. his salaries for the unexpired portion of
THEY CAN NEVER BE REGULAR. his employment contract or for three (3)
months for every year of the unexpired
Personal Opinion, DO NOT USE THIS term, whichever is less.
IN THE BAR — Do you want our In case of a final and executory
country to be a Nation of judgment against a foreign
Contractuals? employer/principal, it shall be
automatically disqualified, without
This goes against the very nature of further proceedings, from participating in
SECURITY OF TENURE. the Philippine Overseas Employment
Program and from recruiting and hiring
There is no such animal in the Labor Filipino workers until and unless it fully
Code - Fixed Term Employment. satisfies the judgment award.

The Brent Ruling DOES NOT HAVE Why is the amendment to RA 8042
LEGAL BASIS. BUT PLEASE DONT Controversial?
SAY THIS IN THE BAR. KNOW THIS CASE BY HEART —
The clause "or for three (3) months for
An illegally dismissed OFW is entitled to every year of the unexpired term,
the full reimbursement of his placement whichever is less" is unconstitutional for
fee and the deductions made with violating the equal protection clause and
interest at twelve percent (12%) per substantive due process.
annum, plus his salaries for the
unexpired portion of his employment (Sameer Overseas Placement Agency,
contract. Inc. vs. Cabiles, 2014. J. Leonen)

RA No. 8042 In Serrano v. Gallant Maritime Services,

Migrant Workers and Overseas Filipinos Inc. and Marlow Navigation Co., Inc.,
Act of 1995 the Supreme Court ruled that the clause
"or for three (3) months for every year of
Section 10. Money Claims. — the unexpired term, whichever is less"
xxx xxx xxx is unconstitutional for violating the equal
protection clause and substantive due
process. NO SUCH THING AS 3 MONTHS, IT
SHOULD BE UNEXPIRED PORTION
The clause "or for three (3) months for OF CONTRACT.
every year of the unexpired term,
whichever is less" was reinstated in Our VERY INTELLIGENT CONGRESS
Republic Act No. 8042 upon retained the clause despite the SC
promulgation of Republic Act No. 10022 already declaring this
in 2010. UNCONSTITUTIONAL in a previous
case. That is why we have Sameer.
The new law puts our overseas workers
in the same vulnerable position as they POEA MC No. 010-10
were prior to Serrano. Failure to STANDARD TERMS AND
reiterate the very ratio decidendi of that CONDITIONS GOVERNING THE
case will result in the same untold OVERSEAS EMPLOYMENT OF
economic hardships that our reading of FILIPINO SEAFARERS ON-BOARD
the Constitution intended to avoid. OCEAN-GOING SHIPS
Obviously, added expenses for further
litigation that will reduce their hard- Section 17. Disciplinary Procedures. —
earned wages as well as add to the The Master shall comply with the
indignity of having been deprived of the following disciplinary procedures against
protection of our laws simply because an erring seafarer:
our precedents have not been followed, A. The Master shall furnish the
cannot be countenanced. There is no seafarer with a written notice
constitutional doctrine that causes containing the following:
injustice in the face of empty procedural 1. Grounds for the charges
niceties. Constitutional interpretation is as listed in Section 33 of
complex, but it is never unreasonable. this Contract or analogous
act constituting the same.
The finding in Serrano v. Gallant 2. Date, time and place for a
Maritime that limiting wages that should formal investigation of the
be recovered by an illegally dismissed charges against the
overseas worker to three months is both seafarer concerned.
a violation of due process and the equal B. The Master or his authorized
protection clauses of the Constitution is representative shall conduct the
reiterated. investigation or hearing, giving
the seafarer the opportunity to
Simply put, an illegally dismissed OFW explain or defend himself against
is entitled to his salaries for the the charges. These procedures
unexpired portion of his employment must be duly documented and
contract. entered into the ship's logbook.
 C. If after the investigation or accordance with Sections 22, 23
hearing, the Master is convinced and 26 of this Contract.
that imposition or a penalty is 3. When the seafarer, in writing,
justified, the Master shall issue a voluntarily resigns and signs off
written notice of penalty and the prior to expiration of contract
reasons for it to the seafarer, with pursuant to Section 19 (G) of this
copies furnished to the Philippine Contract.
agent. 4. When the seafarer is discharged
D. Dismissal for just cause may be for just cause as provided for in
effected by the Master without Section 33 of this Contract.
furnishing the seafarer with a
notice of dismissal if there is a Section 19. Repatriation. —
clear and existing danger to the A. If the ship is outside the
safety of the crew or the ship. Philippines upon the expiration of
The Master shall send a the contract, the seafarer shall
complete report to the manning continue his service on board
agency substantiated by until the ship's arrival at a
witnesses, testimonies and any convenient port and/or after
other documents in support arrival of the replacement crew
thereof. provided that, in any case, the
continuance of such service shall
Section 18. Termination of not exceed three months. The
Employment. — seafarer shall be entitled to
A. The employment of the seafarer earned wages and benefits as
shall cease when the seafarer provided in his contract.
completes his period of B. If the ship arrives at a convenient
contractual service aboard the port before the expiration of the
ship, signs-off from the ship and contract, the
arrives at the point of hire. principal/employer/master/compa
B. The employment of the seafarer ny may repatriate the seafarer
is also terminated effective upon from such port, provided the
arrival at the point of hire for any unserved portion of his contract is
of the following reasons: not more than one (1) month. The
1. When the seafarer signs-off and seafarer shall be entitled only to
is disembarked for medical his earned wages and earned
reasons pursuant to Section 20 leave pay and to his basic wages
(A) [5] of this Contract. corresponding to the unserved
2. When the seafarer signs-off due portion of the contract, unless
to shipwreck, ship's sale, lay-up within 60 days from
of ship, discontinuance of voyage disembarkation, the seafarer is
or change of ship principal in rehired at the same rate and
 position, in which case the costs of his replacement and
seafarer shall be entitled only to repatriation from the seafarer's
his earned wages and earned wages and other earnings.
leave pay. F. The seafarer, when discharged
C. If the ship arrives at a convenient and repatriated as directed by the
port within a period of three (3) principal/employer/master/compa
months before the expiration of ny shall be entitled to basic
his contract, the wages from date of signing off
principal/employer/master/compa until arrival at the point of hire
ny may repatriate the seafarer except when the discharge is in
from such port provided that the accordance with the above or for
seafarer shall be paid all his disciplinary reasons.
earned wages. In addition, the If the seafarer delays or makes a
seafarer shall also be paid his detour or proceeds to a
leave pay for the entire contract destination other than through the
period plus a termination pay travel itinerary arranged by the
equivalent to one (1) month of his employer to the point of hire, the
basic pay, provided, however, employment of the seafarer will
that this mode of termination may be considered terminated at the
only be exercised by the time the seafarer signs off the
principal/employer/master/compa ship and all additional expenses
ny if the original contract period shall be to the seafarer's account.
of the seafarer is at least nine (9) The seafarer shall be entitled to
months; provided, further, that earned wages and basic wage
the conditions for this mode of calculated based on the original
repatriation shall not apply to scheduled date of arrival at the
dismissal for cause. point of hire. All other liabilities of
D. The seafarer, if discharged at a the company in this event shall
port abroad for any reason shall cease at the time the seafarer is
be repatriated to the Philippines terminated. Any illness, injury or
via sea or air or as may otherwise death sustained by the seafarer,
be directed by the due to the above shall be
principal/employer/company. He considered non-work related and
shall be provided with shall not be compensated.
accommodation and food, G. A seafarer who requests for early
allowances and medical termination of his contract shall
treatment, if necessary, until he be liable for his repatriation cost
arrives at the point of hire. as well as the transportation cost
E. When the seafarer is discharged of his replacement. The employer
for any just cause, the employer may, in case of compassionate
shall have the right to recover the grounds, assume the
 transportation cost of the Seafarer was not paid his compensation
seafarer's replacement. under his employment contract nor did
H. The seafarer shall report to the he conform to the unilateral decision of
manning agency within 72 hours the company to use the vessel from
upon arrival at point of hire. overseas shipping to coastwise
shipping, thus he is still considered an
Due process is so crucial in termination OFW under the POEA-SEC. On the
proceedings that it should not be lightly other hand, in the Jebsen Maritime
set aside. The stringent rules governing Case, the Filipino Seafarer was no
Filipino Seafarers aboard foreign-going longer considered an OFW because he
ships are dictated by national interest. acceded and received domestic terms to
(Banawa vs. National Labor Relations govern his employment, and in addition
Commission, 1995. J. Bellosillo) to the fact that the vessel has been
converted from overseas shipping to
This is for Seafarers. coastwise shipping.

Bar Exams question —

The use of the vessel from overseas

service to coastwise shipping will not
affect the Filipino Seafarer’s status as
an OFW. A contract cannot be novated
by the will of only one party.

(OSM Shipping Philippines, Inc. vs.

NLRC, 2003. J. Panganiban)

However --

The Filipino Seafarer is deemed to have

been signed off and lost his status as an
OFW, when he acceded to a new
employment arrangement, but under
domestic terms and conditions.

(Delos Santos vs. Jebsen Maritime, Inc.,

2005. J. Garcia)

The OSM Shipping Case is different

from the Jebsen Maritime Case. In the
OSM Shipping Case, the Filipino