LABOR LAW

- Governs the rights and duties of employers and SECTION 13. The State recognizes the vital role of the
employees, first, with respect to the terms and youth in nation-building and shall promote and protect their
conditions of employment and second, with respect physical, moral, spiritual, intellectual, and social well-being. It
to the labor dispute arising from collecting shall inculcate in the youth patriotism and nationalism, and
bargaining respecting such terms and conditions. encourage their involvement in public and civic affairs.

Classifications of Labor Law SECTION 14. The State recognizes the role of women
in nation-building, and shall ensure the fundamental equality
1. LABOR STANDARDS before the law of women and men.
- Is that part of labor law which prescribes the
minimum terms and conditions of employment which SECTION 18. The State affirms labor as a primary
the employer is required to grant to its employees. social economic force. It shall protect the rights of workers
- Minimum terms and conditions of employment and promote their welfare.
prescribed by existing laws, rules and regulations,
relating to wages, hours of word, cost of living SECTION 20. The State recognizes the indispensable
allowance and other monetary and welfare benefits role of the private sector, encourages private enterprise, and
provides incentives to needed investments.
2. LABOR RELATIONS
- Is that part of labor law (Book V of the Labor Code) 2. Under Article III (Bill of Rights):
which deals with unionism, collective bargaining, a. Due process and equal protection of the law.
grievance machinery, voluntary arbitration, strike, NOTE: THIS CANNOT BE INVOKED BY EMPLOYEES AGAINST
picketing and lockout. THEIR EMPLOYERS IN
- Defines status, rights and duties as well as the CASES OFTERMINATION OF THEIR EMPLOYMENT.
institutional mechanisms that govern the individual
and collective interactions between employers, SECTION 1. No person shall be deprived of life,
employees and their representatives. liberty, or property without due process of law, nor shall any
person be denied the equal protection of the laws.
 Labor relations and labor standards laws are not
mutually exclusive. They are complementary to, and b. Freedom of speech, of expression, or of the press, or the
closely interlinked with, each other. For instance, the right of the people peaceably to assemble and petition the
laws on collective bargaining, strikes and lockouts government for redress of grievances.
which are covered by labor relations law necessarily NOTE: THIS FREEDOM IS RELEVANT ONLY IN PICKETING AND
relate to the laws on working conditions found in NOT IN STRIKE.
Book III.
SECTION 4. No law shall be passed abridging the
3. SOCIAL LEGISLATION freedom of speech, of expression, or of the press, or the right
- Includes laws that provide particular kinds of of the people peaceably to assemble and petition the
protection or benefits to society or segments thereof government for redress of grievances.
in furtherance of social justice.

Sources of Labor Laws c. Right of public and private sector employees to form
1. Constitution unions, associations, or societies for purposes not contrary to
2. Contract/Collective Bargaining Agreement law shall not be abridged.
3. Company Policies and Regulations NOTE: THIS IS KNOWN AS “FREEDOM OF ASSOCIATION.”
4. Legislation THIS PROVISION IS THE BASIS FOR THE EMPLOYEES’ RIGHT
5. IRR TO SELF-ORGANIZATION.
6. Company past practices
SECTION 8. The right of the people, including those
employed in the public and private sectors, to form unions,
I. FUNDAMENTAL PRINCIPLES associations, or societies for purposes not contrary to law shall
not be abridged.
A. CONSTITUTIONAL PROVISIONS

1. Under Article II (Declaration of Principles and d. Non-impairment of obligations of contracts.

State Policies): NOTE: THE CONCEPT OF THIS RIGHT IN POLITICAL LAW IS
a. FIRST OF TWO PROTECTION-TO-LABOR CLAUSES: “Section SIMILAR IN LABOR LAW.
18. The State affirms labor as a primary social economic force.
It shall protect the rights of workers and promote their SECTION 10. No law impairing the obligation of
welfare. contracts shall be passed.

SECTION 9. The State shall promote a just and

dynamic social order that will ensure the prosperity and e. Right to speedy disposition of cases in judicial, quasi-
independence of the nation and free the people from poverty judicial or administrative bodies.
through policies that provide adequate social services, NOTE: THIS CAN BE INVOKED IN LABOR CASES AT ALL
promote full employment, a rising standard of living, and an LEVELS.
improved quality of life for all.
SECTION 16. All person shall have the right to a
SECTION 10. The State shall promote social justice in speedy disposition of their cases before all judicial, quasi-
all phases of national development. judicial, or administrative bodies.

SECTION 11. The State values the dignity of every f. Prohibitions against involuntary servitude.
human person and guarantees full respect for human rights.
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NOTE: THIS PRINCIPLE IS RELEVANT ONLY IN TWO (2) Government, including government-owned or controlled
SITUATIONS: NAMELY: (1) RESIGNATION AND (2) RETURN- corporations with original charters.
TO-WORK ORDER IN NATIONAL INTEREST CASES. THIS
MEANS THAT:
(1) AN EMPLOYEE HAS THE RIGHT TO RESIGN SINCE B. CIVIL CODE
HE CANNOT BE FORCED TO 1. Article 19. Every person must, in the exercise of his
WORK AGAINST HIS WILL; rights and in the performance of his duties, act with
(2) A STRIKER CAN BE ORDERED TO RETURN TO justice, give everyone his due, and observe honesty
WORK EVEN AGAINST HIS WILL IN and good faith.
NATIONAL INTEREST CASES. ACCORDINGLY, IT IS
NOT IN VIOLATION OF THE INVOLUNTARY 2. Article 1700. The relations between capital and labor
SERVITUDE PRINCIPLE. are not merely contractual. They are so impressed
with public interest that labor contracts must yield to
SECTION 18 (2). No involuntary servitude in any form the common good. Therefore, such contracts are
shall exist as a punishment for a crime whereof the party shall subject to the special laws on labor unions, collective
have been duly convicted. bargaining, strikes and lockouts, closed shop, wages,
working conditions, hours of labor and similar
subjects.
Article 1701. Neither capital nor labor shall act
3. Under Article XIII (Social Justice and Human oppressively against the other, or impair the interest
Rights): or convenience of the public.
a. SECOND OF TWO PROTECTION-TO-LABOR CLAUSES:
Section 3. The State shall afford full protection to 3. Article 1702. In case of doubt, all labor legislation
labor, local and overseas, organized and unorganized, and and all labor contracts shall be construed in favor of
promote full employment and equality of employment the safety and decent living for the laborer.
opportunities for all. It shall guarantee the rights of all workers
to self-organization, collective bargaining and negotiations, II. KINDS OF EMPLOYMENTS
and peaceful concerted activities, including the right to strike
in accordance with law. They shall be entitled to security of A. EMPLOYER-EMPLOYEE RELATIONSHIP
tenure, humane conditions of work, and a living wage. They
shall also participate in policy and decision-making processes Tests in Determining Employer-Employee Relationship
affecting their rights and benefits as may be provided by law.
The State shall promote the principle of shared 1. FOUR-FOLD TEST
responsibility between workers and employers and the
preferential use of voluntary modes in settling disputes, What is the 4-fold test of existence of employer-employee
including conciliation, and shall enforce their mutual relationship?
compliance therewith to foster industrial peace. 1. Selection and engagement of the employee;
The State shall regulate the relations between 2. Payment of wages or salaries;
workers and employers, recognizing the right of labor to its 3. Exercise of the power of dismissal; or
just share in the fruits of production and the right of 4. Exercise of the power to control the employee’s
enterprises to reasonable returns to investments, and to conduct.
expansion and growth. These tests, however, are not fool-proof as they admit of
exceptions.
SECTION 1. The Congress shall give highest priority to
the enactment of measures that protect and enhance the right What is the control test?
of all the people to human dignity, reduce social, economic, The 4th test above, the control test, is the
and political inequalities, and remove cultural inequities by controlling test which means that the employer controls or
equitably diffusing wealth and political power for the common has reserved the right to control the employee not only as
good. to the result of the work to be done but also as to the means
To this end, the State shall regulate the acquisition, and methods by which the same is to be accomplished.
ownership, use, and disposition of property and its The three (3) terms: (1) means, (2) methods and (3)
increments. results are the critical elements of the control test, thus:
Situation 1: If the employer controls the means and
SECTION 2. The promotion of social justice shall methods of performing the job, work or service, including the
include the commitment to create economic opportunities results thereof, then the arrangement is one of employer-
based on freedom of initiative and self-reliance. employee relationship.
Situation 3: If the so-called employer does not
Health control such means and methods but is only interested in the
SECTION 13. The State shall establish a special agency results thereof, then the arrangement is called “independent
for disabled person for their rehabilitation, self-development, job contracting” or “contractualization”, the party controlling
and self-reliance, and their integration into the mainstream of the means and methods is called the independent contractor
society. and the party interested only in the results is called the
Women principal/client/indirect employer/statutory employer.
SECTION 14. The State shall protect working women
by providing safe and healthful working conditions, taking 2. TWO-TIERED TEST
into account their maternal functions, and such facilities and
opportunities that will enhance their welfare and enable them What is the 2-tiered test of employment relationship?
to realize their full potential in the service of the nation. The two-tiered test enunciated in Francisco v. NLRC,
is composed of:
4. Article IX-B (Constitutional Commissions) 1. The putative employer’s power to control the
SECTION 2 (1). The Civil Service embraces all employee with respect to the means and methods
branches, subdivisions, instrumentalities, and agencies of the by which the work is to be accomplished [control
test]; and
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 2. The underlying economic realities of the activity or  The mode of paying or the salary does not preclude
relationship [broader economic reality test]. the existence of an employer-employee relationship.
– Pakyaw basis will not affect EER.
Employment relationship under the control test is  The most important factor to consider is the control
determined under the same concept as discussed above, that test. How the work itself is done, and not just the end
is, by asking whether “the person for whom the services are result thereof.
performed reserves the right to control not only the end to be  The principle of co-determination refers to the right
achieved but also the manner and means to be used in given to the employees to co-determine or share the
reaching such end.” responsibility of formulating certain policies that
affect their rights, benefits and welfare. In PAL v.
Under the economic reality test, the proper standard of NLRC, it was held that the formulation of a Code of
economic dependence is whether the worker is dependent on Discipline among employees is a shared responsibility
the alleged employer for his continued employment in that of the employer and the employees. It affirmed the
line of business. decision of the NLRC which ordered that the New
Code of Discipline should be reviewed and discussed
These 2-tiered test applies to cases where there are with the union, particularly the disputed provisions
several parties alleged to be employers of one individual. The and that copies thereof be furnished each employee.
determinant factor is economic dependency of such  Does the grant of the right of participation mean co-
individual. In other words, under the economic reality test, the management of business or intrusion into
question to ask is - among the parties alleged to be the management prerogatives? No. This principle does
employer, to whom is the individual economically dependent? not mean that workers should approve management
policies or decisions.
Following the broader economic reality test, the Supreme  Management prerogatives are granted to the
Court found petitioner in Orozco v. The Fifth employer to regulate every aspect of their business,
Division of the Hon. CA, who is a columnist in the Philippine generally without restraint in accordance with their
Daily Inquirer (PDI), not an employee of PDI but an own discretion and judgment. This privilege is
independent contractor. Thus: inherent in the right of employers to control and
“Petitioner’s main occupation is not as a columnist for manage their enterprise effectively. Such aspects of
respondent but as a women’s rights advocate employment include hiring, work assignments,
working in various women’s organizations. Likewise, working methods, time, place and manner of work,
she herself admits that she also contributes articles to tools to be used, processes to be followed,
other publications. Thus, it cannot be said that supervision of workers, working regulations, transfer
petitioner was dependent on respondent PDI for her of employees, lay-off of workers and the discipline,
continued employment in respondent’s line of dismissal and recall of workers.
business.
“The inevitable conclusion is that petitioner was not B. KINDS OF EMPLOYMENT
respondent PDI’s employee but an independent
contractor, engaged to do independent work.” What is the general classification of employment?
There are five (5) classifications of employment:
Is it necessary to have a written contract of employment in a. Regular employees referring to those who have been
order to establish employer-employee relationship? “engaged to perform activities which are usually
No. It may be an oral or written contract. A written necessary or desirable in the usual business or trade
contract is not necessary for the creation and validity of the of the employer”;
relationship. b. Project employees referring to those “whose
The only exception is in the case of Kasambahay employment has been fixed for a specific project or
where, under the Kasambahay Law, it is required that the undertaking, the completion or termination of which
contract of employment should be in writing. has been determined at the time of the engagement
of the employee”;
3. ECONOMIC DEPENDENCE / ECONOMIC REALITY c. Seasonal employees referring to those who work or
TEST perform services which are seasonal in nature, and
Test: Refers to whether the worker is dependent on the the employment is for the duration of the season;
alleged employer for his continued employment in that line of d. Casual employees referring to those who are not
business. regular, project, or seasonal employees;
e. Fixed-term employees whose term is freely and
Doctrines: voluntarily determined by the employer and the
 No particular form of evidence is required to prove employee. NOTE: This is not provided in the Labor
the existence of an employer-employee relationship. Code.
Any competent and relevant evidence to prove the
relationship may be admitted. What is the default employment?
 No uniform test to determine the employer- The default employment is regular employment. This
employee relationship. means that generally, in the absence of any specific
 The existence of EER Are cognizable by the Labor agreement to the contrary, the employer-employee
courts. relationship is deemed to be regular in nature. Therefore, in
 The relationship of employer and employee is order to make the employment some other kind of
contractual in nature. It may be oral or written employment, such as project, seasonal, casual, fixed-term or
contract. A written contract is not necessary for the probationary, there must be a written contract of
validity of such kind of relationship. Except: employment stipulating the specific kind of employment.
Kasambahay Law So, therefore, if there is no written employment
 Stipulation in a contract is not controlling in contract, the employment should be deemed REGULAR.
determining the employer-employee relationship. The However, even if there is a written employment contract, if it is
employment status of a person is prescribed by the not clear that the parties have stipulated such other kinds of
law, not by the agreement of the parties. Ex. Servidad employment (such as project, seasonal, casual, fixed-term or
and Cielo probationary), the employment relationship will still be
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considered REGULAR employment which, as earlier stated, is 2. REGULAR
the default employment.
How does one become a regular employee?
1. PROBATIONARY Under the Labor Code, regular employment may be
attained in either of three (3) ways, namely:
Is the period of 6 months in the law on probationary 1. By nature of work. - The employment is deemed
employment (Article 296 [281], LC) the minimum or maximum regular when the employee has been engaged to
period? perform activities which are usually necessary or
The answer is it is neither the minimum nor the desirable in the usual business or trade of the
maximum period of probationary employment. The 6-month employer.
period is mentioned in the law for purposes of setting the 2. By period of service. - The employment is reckoned
standard period. Proof that it is not the maximum is the case as regular when the employee has rendered at least
of Buiser v. Leogardo where the probationary period of 18 one (1) year of service, whether such service is
months was considered reasonable. In other words, continuous or broken, with respect to the activity in
probationary period may be for a day, a week, a month or which he is employed and his employment shall
several months, depending on the reasonable discretion of continue while such activity exists.
management. 3. By probationary employment. - The employment is
considered regular when the employee is allowed to
How is probationary period, say, of 6 months computed? work after a probationary period.
The 6-month probationary period should be
reckoned “from the date of appointment up to the same Is the manner or method of paying wage material in
calendar date of the 6th month following.” determining regularity of employment?
No. The manner and method of payment of wage or
Does probationary employee has security of tenure? salary is immaterial to the issue of whether the employee is
Yes. regular or not. So, the fact that an employee is paid on a daily
basis or monthly basis is inconsequential on the regularity
May probationary period be extended? issue.
Yes, but only upon the mutual agreement in writing
by the employer and the probationary employee. 3. PROJECT EMPLOYMENT

What is the effect of allowing a probationary employee to What is the litmus test of project employment?
work beyond the probationary period? The litmus test of project employment, as
He is considered a regular employee. distinguished from regular employment, is whether or not the
project employees were assigned to carry out a specific
What is the effect if there is no written contract providing for project or undertaking, the duration and scope of which
probationary employment? were specified at the time the employees were engaged
If there is no written contract, the employee is for that project.
considered a regular employee from day one of his A true project employee should be assigned to a
employment. And even if there is one, he is deemed regular if project which begins and ends at determined or determinable
there is no stipulation on probationary period. times and be informed thereof at the time of hiring.

What are the grounds to terminate probationary What are the indicators of project employment?
employment? Either one or more of the following circumstances,
Under Article 281, a probationary employee may be among others, may be considered as indicator/s that an
terminated only on three (3) grounds, to wit: employee is a project employee:
1. For a just cause; or 1. The duration of the specific/identified undertaking
2. For authorized cause; or for which the worker is engaged is reasonably
3. When the probationary employee fails to determinable.
qualify as a regular employee in accordance 2. Such duration, as well as the specific work/service to
with reasonable standards made known by the be performed, are defined in an employment
employer to the employee at the start of the agreement and is made clear to the employee at the
employment. time of hiring.
3. The work/service performed by the employee is in
Is procedural due process required in termination of connection with the particular project or
probationary employment? undertaking for which he is engaged.
Yes, but only in the case of Numbers 1 and 2 above. 4. The employee, while not employed and awaiting
However, procedural due process is not required if the 3rd engagement, is free to offer his services to any
ground above is invoked, except when the employer other employer.
prescribes in its company rules, a procedure for such 5. A report of the termination of employment in the
termination, in which case, such should be followed in particular project/undertaking is submitted to the
accordance with the Abbott Laboratories doctrine DOLE Regional Office having jurisdiction over the
(Contractual Due Process). Generally, in the case of No. 3 workplace, within thirty (30) days following the date
above, the probationary employment is terminated by merely of his separation from work.
serving a notice of termination setting forth the results 6. An undertaking in the employment contract by the
probationary employment. employer to pay completion bonus to the project
employee as practiced by most construction
When should termination of probationary employment be companies.
made?
Termination to be valid must be done prior to lapse Is length of service material in determining validity of project
of probationary period. Termination a few days after lapse of employment?
probationary period cannot be done without due process as No. Length of service is not a controlling determinant
he has already become a regular employee by that time. of employment tenure.

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What are some principles on project employment? on any day of the week on their own discretion and
1. Project employees should be informed of their status as convenience. They were held to be casual employees
such at inception of the employment relationship. because cutting cogon grass and weeds is but
2. There must be a written contract of project employment incidental to the principal business of the company.
stating the duration of the project employment as well as the
particular work or service to be performed. A written project When does a casual employee become regular?
employment contract is an indispensable requirement. Casual employee becomes regular after one year of
3. Intervals in employment contracts indicate project service by operation of law. The one (1) year period should be
employment. reckoned from the hiring date. Repeated rehiring of a casual
4. Continuous, as opposed to intermittent, rehiring shows that employee makes him a regular employee
employee is regular.
5. “Project-to-project” basis of employment is valid. 6. FIXED-TERM

On termination of project employment. What are the requisites in order for fixed-term employment to
1. Project employees enjoy security of tenure only during the be valid?
term of their project employment. The two (2) requisites or criteria for the validity of a
2. Project employees have presumably become regular fixed-term contract of employment are as follows:
employees if they are allowed to work beyond the completion 1. The fixed period of employment was knowingly and
of the project or any phase thereof to which they were voluntarily agreed upon by the parties, without any force,
assigned or after the “day certain” which they and their duress or improper pressure being brought to bear upon
employer have mutually agreed for its completion. Having the employee and absent any other circumstances vitiating
become regular employees, they can no longer be terminated his consent; or
on the basis of the completion of the project or any phase 2. It satisfactorily appears that the employer and employee
thereof to which they were deployed. dealt with each other on more or less equal terms with no
moral dominance whatever being exercised by the former
Notes: on the latter.
 Duration is not material to project employees as well
as interval as long as re-hired and performing the Is fixed-term employment valid if the job is directly related to
same tasks which is necessary and indispensable to the principal business of the employer?
the business. Yes. Fixed-term employment is the only exception to
 Two Categories of Project Employees: (1) When there the rule that one becomes regular if he is made to perform
is a particular job that is distinct and separate from activities directly related to the principal business of the
the business of the employer; (2) When it is not within employer (Regularity by virtue of nature of work)
the regular business of the employee. Thus, it was ruled in Philippine Village Hotel v. NLRC,
 Work pool employees are regular employees even that the fact that private 1 respondents were required to
during the time where there is no work for the render services necessary or desirable in the operation of
employee petitioner’s business for the duration of the one-month dry-
run operation period, did not in any way impair the validity of
their contracts of employment which specifically stipulated
4. SEASONAL that their employment was only for one (1) month.

Can a seasonal employee become a regular seasonal When does a fixed-term employee become regular?
employee? 1. When he is allowed to work beyond the agreed fixed
Yes, provided the following requisites are complied with: term.
1. The seasonal employee should perform work or services 2. When there are successive renewals of fixed-period
that are seasonal in nature; and contracts.
2. They must have also been employed for more than one (1) NOTE: The practice of hiring of employees on a uniformly
season. fixed 5-month basis and replacing them upon the expiration
of their contracts with other workers with the same
Can a regular seasonal worker file an illegal dismissal case in employment status circumvents their right to security of
the event he is not hired for the next season? tenure.
Yes. The reason is, being a regular seasonal employee, the
employer should re-hire him in the next season. During off- 7. JOB CONTRACTING
season, his employment is deemed suspended and he is
considered as being on leave of absence without pay. i. Article 106-109 of the Labor Code

5. CASUAL Art. 106. Contractor or subcontractor. Whenever an

employer enters into a contract with another person for the
What is the most important distinguishing feature of casual performance of the former’s work, the employees of the
employment? contractor and of the latter’s subcontractor, if any, shall be
The most important distinction is that the work or job paid in accordance with the provisions of this Code.
for which he was hired is merely incidental to the principal
business of the employer and such work or job is for a In the event that the contractor or subcontractor fails to pay
definite period made known to the employee at the time of the wages of his employees in accordance with this Code, the
engagement. employer shall be jointly and severally liable with his
Capule v. NLRC, Yakult Philippines, Inc., G.R. No. contractor or subcontractor to such employees to the extent
90653, Nov. 12, 1990: of the work performed under the contract, in the same
Private respondent company is engaged in the manner and extent that he is liable to employees directly
manufacture of cultured milk which is sold under the employed by him.
brand name “Yakult.” Petitioners were hired to cut
cogon grass and weeds at the back of the factory The Secretary of Labor and Employment may, by appropriate
building used by private respondents. They were not regulations, restrict or prohibit the contracting-out of labor to
required to work on fixed schedule and they worked protect the rights of workers established under this Code. In
5
so prohibiting or restricting, he may make appropriate subcontractor is engaged in a contractor/subcontractor
distinctions between labor-only contracting and job distinct and independent does not have either
contracting as well as differentiations within these types of business and undertakes to substantial capital OR
contracting and determine who among the parties involved perform the job or work on investments in the form of
shall be considered the employer for purposes of this Code, to its own responsibility, tools, equipment,
prevent any violation or circumvention of any provision of this according to its own manner machineries, supervision,
Code. and method. work premises among others,
2. The AND, the
There is “labor-only” contracting where the person supplying contractor/subcontractor has contractor/subcontractor’s
workers to an employer does not have substantial capital or substantial capital on his employees recruited are
investment in the form of tools, equipment, machineries, work account, manner and performing activities which
premises, among others, and the workers recruited and placed method; investment in the are directly related to the
by such person are performing activities which are directly form of tools, equipment, main business of the principal
related to the principal business of such employer. In such machinery, and supervision. 2. The
cases, the person or intermediary shall be considered merely 3. In performing the work contractor/subcontractor
as an agent of the employer who shall be responsible to the farmed out, the does not exercise the right to
workers in the same manner and extent as if the latter were contractor/subcontractor is control over the performance
directly employed by him. free form the control and/or of the work of the employee.
direction of the principal in all
Art. 107. Indirect employer. The provisions of the matters connected with the
immediately preceding article shall likewise apply to any performance of the work
person, partnership, association or corporation which, not except as to the result
being an employer, contracts with an independent contractor thereto.
for the performance of any work, task, job or project. 4. The Service Agreement
ensures compliance with all
Art. 108. Posting of bond. An employer or indirect employer the rights and benefits for all
may require the contractor or subcontractor to furnish a bond the employees of the
equal to the cost of labor under contract, on condition that contractor or subcontractor
the bond will answer for the wages due the employees should under above laws.
the contractor or subcontractor, as the case may be, fail to pay
the same.

Art. 109. Solidary liability. The provisions of existing laws to

the contrary notwithstanding, every employer or indirect DISTINCTIONS
employer shall be held responsible with his contractor or Legitimate Job Contracting Labor-Only Contracting
subcontractor for any violation of any provision of this Code. No employer-employee An employer-employee
For purposes of determining the extent of their civil liability relationship exists between relationship is created by law
under this Chapter, they shall be considered as direct the contractual employees of between the principal and the
employers the job contractor and the employees supplied by the
principal labor-only contractor.
ii. Department Order No. 174 Series of 2017 The principal is considered The principal is considered
only an “indirect employer” the “direct employer” of the
Department Order No. 174, Series of 2017 (issued on employees supplied by the
March 16, 2017) – Rules Implementing Articles 106 to 109 of labor-only contractor.
the Labor Code, as Amended. The solidary obligation of the The principal becomes
principal and the legitimate solidarily liable with the
iii. Department Circular No. 01-12 job contractor is only for a labor-only contractor to the
limited purpose, that is, to latter’s employees in the
Purpose. This Circular is being issued in response to queries pay the wages of the same manner and extent that
on whether firms or companies in the Business Process contractor’s employees the principal is liable to
Outsourcing (BPO) or Knowledge Process Outsourcing (KPO) supplied to the principal. employees directly hired by
and in the Construction Industry are covered by Department Other than this obligation of him/her. / The principal
Order No. 18-A, Series of 2011, or the Rules Implementing paying the wages, the becomes solidarily liable with
Articles 106 to 109 of the Labor Code of the Philippines, as principal is not responsible the labor-only contractor for
amended. for any claim made by the all the rightful claims of the
contractor’s employees; contractual employees.
iv. Difference between Job Contracting and Labor- Undertakes to perform a Merely provides the
Only Contracting specific job for the principal. personnel to work for the
principal.
DEFINITION
Legitimate Job Contracting Labor-Only Contracting
An arrangement where the An arrangement whereby a v. Effects of Labor-Only Contracting
contractor or subcontractor principal agrees to farm out
merely recruits, supplies or to a contractor the 1. The principal shall be deemed the direct employer of
places worker to perform a performance or completion the contractor/subcontractor’s employees as if it
job or work for the principal. of a specific job or within a directly employed them. The principal will be
definite or pre-determine responsible to them for all their entitlements and
period, regardless of whether benefits under the law.
such job or work is to be 2. The labor-only contractor will be treated as the agent
performed within or outside or intermediary of the principal. Since the acts of
the premises of the principal. agent is the act of the principal, representations made
ELEMENTS by the labor-only contractor to the employees will
1. The contractor/ 1. The bind the principal.
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 3. The principal and the labor-only contractor will be c. In performing the work farmed out, the contractor is
solidarily treated as the direct employer. free from the control and/or direction of the
4. The labor-only contractor’s employees will become principal in all matters connected with the
employees of the principal subject to the performance of the work EXCEPT as to the result
classifications of the employees under Art. 295 (280) thereto; and
of the Labor Code. d. The Service Agreement ensures compliance with all
the rights and benefits for all the employees of the
contractor under labor laws.
vi. Department Circular No. 01 Series of 2017
Absence of any of the foregoing requisites makes it a
Department Circular No. 01, Series of 2017 (Issued on labor-only contracting arrangement.
June 09, 2017) was issued by the DOLE Secretary to clarify the
inapplicability of Department Order No. 174, Series of 2017 to Therefore:
BPO, KPO, LPO, IT Infrastructure Outsourcing, Application ➢ If the first party has control over the manner and
Development, Hardware and/ or Software Support, Medical method of performing the job or work, including its result,
Transcription, Animation Services, Back Office and the second party who supplied the workers to the first
Operations/Support, and CONSTRUCTION INDUSTRY. party to perform the job or work has no such control over
such manner and method, then the first party is the direct
vii. Trilateral Relationship in Job Contracting employer of the workers supplied by the second party to
perform the job or work and such second party shall not be
What is meant by trilateral relationship? considered as a legitimate “contractor” but a “labor-only
As distinguished from employment relationship which is contractor.”
“bilateral” in nature, involving as it does only two (2) parties,
namely: (1) the employer, and (2) the employee, in legitimate ➢ Contrarily, if the first party has NO control over the
job contracting, it is “trilateral” in character, there being three manner and method of performing the job or work as such
(3) parties involved, to wit: control thereover is reposed on the second party, and the
1. The principal who farms out a job, work or service to a first party’s interest pertains only to the result of the
contractor; performance of the job or work, then there exists here a
2. The contractor who has the capacity to independently legitimate job contracting arrangement where the first
undertake the performance of the job, work or service; and party is considered the principal and the second party, the
3. The contractor’s workers engaged by the contractor and contractor.
farmed out to the principal to accomplish the job, work or
service. Example:
Principal – ABC University
What are the contracts involved in this trilateral relationship? Contractor – XYZ Security Agency
Only two (2) contracts are involved, namely: Contractor’s Employees – Security Guards assigned by
1. Service Agreement between the principal and the Contractor to Principal
contractor wherein the obligation arising therefrom is
civil in nature and thus cognizable by the regular Scenario 1: If it is ABC University that controls the manner
courts. and method of performing the job or work of XYZ Security
2. Employment contract between the contractor and Agency’s security guards (such as when it is ABC University,
its workers supplied to the principal. that (1) sets the schedule of the Security Guards; (2) makes the
assignments to their respective posts; (3) monitors their
Is there any employment relationship and/or contractual attendance/absences; (3) supervises their every action and
relationship between the principal and the contractor’s performance of their duties, and the like), then, ABC University
workers farmed out to the principal? is the direct employer of the guards and the XYZ Security
None. There is no employment relationship nor any Agency is but a labor-only contractor.
form of contractual relationship of whatsoever nature between
the principal and the workers supplied by the contractor. Scenario 2: If it is ABC Security Agency which controls such
Hence, the principal can ask the contractor to remove any of manner and method of performing the job or work of the
the latter’s employees assigned or farmed out to it anytime Security Guards it assigned to ABC University, and ABC
without need to observe due process. University is interested only on the result of the arrangement
(such as the safety of the students, teachers and employees,
safeguard of school property and premises, peace and
LEGITIMATE JOB CONTRACTING. tranquility inside its campus, etc.), then, there is here
legitimate job contracting arrangement where ABC University
What are the elements of legitimate job contracting? is the principal, XYZ Security Agency is the contractor, and the
The following four (4) words are very important: Security Guards, the contractor’s employees.
CONTROL, MANNER & METHOD and RESULT in
determining the elements of legitimate job contracting What is the amount of SUBSTANTIAL CAPITAL required under
arrangement. the new Rules?
Here are the elements based on law, Department According to Department Order No. 174, Series of
Order No. 174 and jurisprudence: 2017 (issued on March 16, 2017), the following consists of
a. The contractor is engaged in a distinct and substantial capital:
independent business and undertakes to perform 1. In the case of corporations, partnerships or
the job or work on its own responsibility, according cooperatives – paid-up capital stocks/shares of at
to its own manner and method; least P5 Million; or
b. The contractor has substantial capital to carry out 2. In the case of single proprietorship - a net worth of
the job farmed out by the principal on his own at least P5 Million.
account, manner and method, investment in the
form of tools, equipment, machinery and “Substantial capital” and “investment in tools, etc.” are
supervision; two separate requirements.

7
 “Substantial capital” and “investment in tools, labor group which, under the guise of a labor
equipment, implements, machineries and work premises” organization, cooperative or any entity, supplies
should be treated as two (2) distinct and separate workers to an employer, with or without any
requirements in determining whether there is legitimate job monetary or other consideration, whether in the
contracting arrangement. It is enough that only one of these capacity of an agent of the employer or as an
two requisites is complied with to make the job contracting ostensible independent contractor.
arrangement legitimate. b. Contracting out of job or work through an “In-house
Agency” which term refers to a contractor which is
May individuals engage in legitimate job contracting? owned, managed, or controlled, directly or indirectly,
Yes. Legitimate job contracting may not only be by the principal or one where the principal
engaged by corporation, partnership or single proprietorship. owns/represents any share of stock, and which
Individuals may become legitimate job contractors operates solely or mainly for the principal.
themselves for as long as they have SPECIAL SKILLS or c. Contracting out of job or work through an “In-house
TALENTS. Cooperative” which merely supplies workers to the
principal. An “In-house Cooperative” refers to a
Are individuals engaged as legitimate job contractors required cooperative which is managed, or controlled directly
to fulfill the requisites of legitimate job contracting as afore- or indirectly by the principal or one where the
described? principal or any of its officers owns/represents any
NO. They need not be registered as independent equity or interest, and which operates solely or
contractors with DOLE; they need not have substantial capital mainly for the principal.
(such as the P5 Million stated above). All that they are d. Contracting out of a job or work by reason of a strike
required is to have their tools consisting of SPECIAL SKILL, or lockout, whether actual or imminent.
TALENT or EXPERTISE. e. Contracting out of a job or work being performed
by union members and such will interfere with,
What are examples of individuals as independent contractors? restrain or coerce employees in the exercise of
1. Sonza v. ABS-CBN Broadcasting Corporation - TV and their rights to self-organization as provided in
radio talents and others with 1 special talents and skills are Article 259 [248] of the Labor Code, as amended.
not employees but legitimate independent contractors. f. Requiring the contractor's/subcontractor's employees
2. Orozco v. The Fifth Division of the Honorable Court of to perform functions which are currently being
Appeals - A newspaper columnist is not an employee but an performed by the regular employees of the
independent contractor of the newspaper publishing the principal.
column. g. Requiring the contractor's/subcontractor's employees
3. Jose Mel Bernarte v. Philippine Basketball Association3 - to sign, as a precondition to employment or
Basketball or soccer referee or umpire, an independent continued employment, an antedated resignation
contractor. letter; a blank payroll; a waiver of labor standards
4. Semblante and Pilar v. CA, Gallera de Mandaue, et al. - including minimum wages and social or welfare
Cockpit masiador and sentenciador are independent benefits; or a quitclaim releasing the principal or
contractors. contractor from liability as to payment of future
5. Escasinas v. Shangri-la’s Mactan Island Resort5 - A claims; or require the employee to become
doctor may be engaged as an independent contractor. member of a cooperative.
h. Repeated hiring by the contractor/subcontractor of
LABOR-ONLY CONTRACTING. employees under an employment contract of short
duration.
Is labor-only contracting allowed under the law and issuances? i. Requiring employees under a
NO, it is absolutely prohibited. contracting/subcontracting arrangement to sign a
contract fixing the period of employment to a
What are the elements of labor-only contracting? term shorter than the term of the Service
Based on law, Department Order No. 174 and Agreement, unless the contract is divisible into
jurisprudence, the following are the elements: phases for which substantially different skills are
a. The contractor does not have either (i) required and this is made known to the employee at
SUBSTANTIAL CAPITAL or (ii) INVESTMENTS in the the time of engagement.
form of tools, equipment, machineries, supervision, j. Such other practices, schemes or employment
work premises, among others, AND the contractor's arrangements designed to circumvent the right of
employees recruited and placed are performing workers to security of tenure.
activities which are directly related to the main
business operation of the principal; or
b. The contractor does not exercise the right to control - Insert Solidary Liability in Azucena book
over the performance of the work of the
employee.
8. SPECIAL WORKERS
NOTE: - There is labor-only contracting even if only one of the
two (2) elements above is present. a. bfo WORKERS
- An unregistered contractor is presumed to be a labor-only
contractor. Registration should be made with the DOLE. i. Provisions against Discrimination

What are OTHER ILLICIT FORMS OF EMPLOYMENT IN D.O. What are acts of discrimination under the Labor Code?
174, Series of 2017, (IN ADDITION TO a. Payment of a lesser compensation, including wage,
LABOR-ONLY CONTRACTING)? salary or other form of remuneration and fringe
The following are considered as such (formerly called benefits, to a female employee as against a male
“PROHIBITIONS” under previous Department employee, for work of equal value; and
Orders): b. Favoring a male employee over a female employee
a. When the principal farms out work to a “Cabo” which with respect to promotion, training opportunities,
term refers to a person or group of persons or to a
8
 study and scholarship grants solely on account of and then decided to get married, one of them should
their sexes. resign to preserve the policy stated above.”

What are acts of discrimination under the Magna Carta of 3. Duncan Association of Detailman-PTGWO v. Glaxo
Women? Welcome Philippines, Inc.3 In this case, the prohibition
R.A. No. 9710, otherwise known as “The Magna Carta against marriage embodied in the following stipulation in the
of Women,” is a comprehensive women’s human rights law employment contract was held as valid:
that seeks to eliminate discrimination against women by “10. You agree to disclose to management any
recognizing, protecting, fulfilling and promoting the rights of existing or future relationship you may have, either by
Filipino women, especially those in marginalized sector. consanguinity or affinity with co-employees or
Based on the definition of the term “Discrimination employees of competing drug companies. Should it
Against Women” in R.A. No. 9710, the following are pose a possible conflict of interest in management
considered discriminatory acts: discretion, you agree to resign voluntarily from the
1. Any gender-based distinction, exclusion, or restriction which Company as a matter of Company policy.”
has the effect or purpose of impairing or nullifying the The Supreme Court ruled that the dismissal based on
recognition, enjoyment, or exercise by women, irrespective of this stipulation in the employment contract is a valid exercise
their marital status, on a basis of equality of men and women, of management prerogative. The prohibition against personal
of human rights and fundamental freedoms in the political, or marital relationships with employees of competitor
economic, social, cultural, civil or any other field; companies upon its employees was held reasonable under the
2. Any act or omission, including by law, policy, administrative circumstances because relationships of that nature might
measure, or practice, that directly or indirectly excludes or compromise the interests of the company. In laying down the
restricts women in the recognition and promotion of their assailed company policy, the employer only aims to protect its
rights and their access to and enjoyment of opportunities, interests against the possibility that a competitor company will
benefits or privileges; gain access to its secrets and procedures.
3. A measure or practice of general application that fails to
provide for mechanisms to offset or address sex or gender- Two Theories of Employment Discrimination
based disadvantages or limitations of women, as a result of 1. Disparate Treatment Analysis. The plaintiff must prove
which women are denied or restricted in the recognition and that an employment policy is discriminatory on its face. No-
protection of their rights and in their access to and enjoyment spouse employment policies requiring an employee of a
of opportunities, benefits, or privileges; or women, more than particular sex to either quit, transfer, or be fired are facially
men, are shown to have suffered the greater adverse effects of discriminatory.
those measures or practices; and For example, an employment policy prohibiting the
4. Discrimination compounded by or intersecting with other employer from hiring wives of male employees, but not
grounds, status, or condition, such as ethnicity, age, poverty or husbands of female employees, is discriminatory on its face.
religion.
Additionally, women are guaranteed their right to 2. Disparate Impact Theory. The complainants must prove
decent work. The State shall progressively realize and ensure that a facially neutral policy has a disproportionate effect on a
decent work standards for women that involve the creation of particular class. For example, although most employment
jobs of acceptable quality in conditions of freedom, equity, policies do not expressly indicate which spouse will be
security and human dignity. required to transfer or leave the company, the policy often
disproportionately affects one sex.
ii. Stipulation against Marriage
Bona Fide Occupational Qualification (BFOQ)
Is the prohibition against marriage valid?  Employment in particular jobs may not be limited to
Article 136 of the Labor Code considers as an persons of a particular sex, religion, or national origin
unlawful act of the employer to require as a condition for or unless the employer can show that sex, religion, or
continuation of employment that a woman employee shall not national origin is an actual qualification for
get married or to stipulate expressly or tacitly that upon performing the job.
getting married, a woman employee shall be deemed resigned  Unless the employer can prove that the reasonable
or separated. It is likewise an unlawful act of the employer, to demands of the business require a distinction based
actually dismiss, discharge, discriminate or otherwise prejudice on marital status and there is no better available or
a woman employee merely by reason of her marriage. acceptable policy which would better accomplish the
business purpose, an employer may not discriminate
What are the relevant pieces of jurisprudence on marriage? against an employee based on the identity of the
1. Philippine Telegraph and Telephone Company (PT&T) v. employee’s spouse.
NLRC. - It was 1 declared here that the company policy of not
accepting or considering as disqualified from work any Exceptions:
woman worker who contracts marriage runs afoul of the test While a marriage or no-marriage qualification may be
of, and the right against, discrimination afforded all women justified as a "bona fide occupational qualification," the
workers by our labor laws and by no less than the employer must prove two factors necessitating its imposition,
Constitution. viz: :
1. that the employment qualification is reasonably
2. Star Paper Corp. v. Simbol. - The following policies were related to the essential operation of the job
struck down as invalid for violating the standard of involved; and
reasonableness which is being followed in our jurisdiction, 2. that there is a factual basis for believing that all
otherwise called the or substantially all persons meeting the
“Reasonable Business Necessity Rule”: qualification would be unable to properly
“1. New applicants will not be allowed to be hired if in perform the duties of the job.
case he/she has [a] relative, up to [the] 3rd degree of
relationship, already employed by the company. iii. Prohibited Acts
“2. In case of two of our employees (both singles [sic],
one male and another female) developed a friendly What are the prohibited acts against women under the Labor
relationship during the course of their employment Code?
9
 Article 137 of the Labor Code and its implementing procedures for the resolution or prosecution of acts of sexual
rule consider unlawful the followings acts of the employer: harassment.
1. To discharge any woman employed by him for the purpose The employer or head of office is required to:
of preventing such woman from enjoying maternity leave, 1. Promulgate appropriate rules and regulations, in
facilities and other benefits provided under the Labor Code; consultation with and jointly approved by the employees or
2. To discharge such woman on account of her pregnancy, or students or trainees, through their duly designated
while on leave or in confinement due to her pregnancy; representatives, prescribing the procedure for the
3. To discharge or refuse the admission of such woman upon investigation of sexual harassment cases and the
returning to her work for fear that she may again be administrative sanctions therefor.
pregnant; The said rules and regulations issued shall include,
4. To discharge any woman or any other employee for having among others, guidelines on proper decorum in the workplace
filed a complaint or having testified or being about to and educational or training institutions.
testify under the Labor Code; or 2. Create a committee on decorum and investigation of cases
5. To require as a condition for or continuation of employment on sexual harassment. The committee shall conduct meetings,
that a woman employee shall not get married or to stipulate as the case may be, with officers and employees, teachers,
expressly or tacitly that upon getting married, a woman instructors, professors, coaches, trainors and students or
employee shall be deemed resigned or separated, or to trainees to increase understanding and prevent incidents of
actually dismiss, discharge, discriminate or otherwise sexual harassment. It shall also conduct the investigation of
prejudice a woman employee merely by reason of alleged cases constituting sexual harassment.
marriage.
v. Women Night Workers (RA 10151)
iv. Anti-Sexual Harassment Act (RA 7877)
What is the new law on night work? R.A. No. 10151 [JUNE 21,
What are the 3 situations contemplated under this law? 2011].
R.A. No. 7877 declares sexual harassment unlawful
only in three (3) situations, namely: a. Significance of the law.
(1) employment; R.A. No. 10151 has repealed Article 130 [Nightwork
(2) education; and Prohibition] and Article 131 [Exceptions] of the Labor Code
(3) training environment and accordingly renumbered the same articles. Additionally, it
has inserted a new Chapter V of Title III
Can sexual harassment be committed also against a man? of Book III of the Labor Code entitled “Employment of Night
Yes. Sexual harassment is not the sole domain of Workers” which addresses the issue on nightwork of all
women as men may also be subjected to the same despicable employees, including women workers. Chapter V covers newly
act. Said law does not limit the victim of sexual harassment to renumbered Articles 154 up to 161 of the Labor Code.
women.
Who are the persons who may be held liable for sexual b. Coverage of the law.
harassment? The law on nightwork applies not only to women but to all
Work, education or training-related sexual persons, who shall be employed or permitted or suffered to
harassment is committed by any employer, employee, work at night, except those employed in agriculture, stock
manager, supervisor, agent of the employer, teacher, raising, fishing, maritime transport and inland navigation,
instructor, professor, coach, trainor, or any other person who, during a period of not less than seven (7) consecutive
having authority, influence or moral ascendancy over another hours, including the interval from midnight to five o'clock
in a work or training or education environment, demands, in the morning, to be determined by the DOLE Secretary,
requests or otherwise requires any sexual favor from another, after consulting the workers’ representatives/labor
regardless of whether the demand, request or requirement for organizations and employers.
submission is accepted by the object of said act.
Further, any person who directs or induces another to c. Night worker, meaning.
commit any act of sexual harassment as defined in the law, or "Night worker" means any employed person whose work
who cooperates in the commission thereof by another without covers the period from 10 o'clock in the evening to 6
which it would not have been committed, shall also be held o'clock the following morning provided that the worker
liable under the law. performs no less than seven (7) consecutive hours of
work.
How is sexual harassment committed in a work-related or
employment environment? d. Mandatory facilities.
In a work-related or employment environment, sexual (1) Suitable first-aid and emergency facilities as provided for
harassment is committed when: under Rule 1960 (Occupational Health Services) of the
1. The sexual favor is made a condition in the hiring or in the Occupational Safety and Health Standards (OSHS);
employment, re-employment or continued employment of (2) Lactation station in required companies pursuant to R.A.
said individual or in granting said individual favorable No. 10028 (The Expanded Breastfeeding Promotion Act of
compensation, terms, conditions, promotions, or privileges; or 2009);
the refusal to grant the sexual favor results in limiting, (3) Separate toilet facilities for men and women;
segregating or classifying the employee which in any way (4) Facility for eating with potable drinking water; and
would discriminate, deprive or diminish employment (5) Facilities for transportation and/or properly ventilated
opportunities or otherwise adversely affect said employee; temporary sleeping or resting quarters, separate for male and
2. The above acts would impair the employee’s rights or female workers, shall be provided except where any of the
privileges under existing labor laws; or following circumstances is present:
3. The above acts would result in an intimidating, hostile, or i. Where there is an existing company guideline,
offensive environment for the employee. practice or policy, CBA or any similar agreement
between management and workers providing for an
What are duties of the employer in regard to sexual equivalent or superior benefit; or
harassment complaints? ii. Where the start or end of the night work does not
It is the duty of the employer to prevent or deter the fall within 12 midnight to 5 o'clock in the morning; or
commission of acts of sexual harassment and to provide the
10
 iii. Where the workplace is located in an area that is (2) all time during which a child is suffered or permitted to
accessible 24 hours to public transportation; work. Rest periods of short duration during working hours
iv. Where the number of employees does not exceed shall be counted as hours worked.
a specified number as may be provided for by the The following hours of work shall be observed for
DOLE Secretary in subsequent issuances. any child allowed to work under R.A. No. 9231 and its
Implementing Rules:
e. Maternity leave benefits under existing laws cannot be a. For a child below 15 years of age, the hours of work shall
diminished. not be more than twenty (20) hours per week, provided that
the work shall not be more than four (4) hours at any given
b. EMPLOYMENT OF MINORS day;
b. For a child 15 years of age but below 18, the hours of
i. Provisions on Minors under the Labor Code work shall not be more than eight (8) hours a day, and in no
case beyond forty (40) hours a week; and
Art. 139. Minimum employable age. c. No child below 15 years of age shall be allowed to work
a. No child below fifteen (15) years of age shall be between eight (8) o’clock in the evening and six (6) o’clock in
employed, except when he works directly under the the morning of the following day and no child 15 years of
sole responsibility of his parents or guardian, and his age but below 18 shall be allowed to work between ten (10)
employment does not in any way interfere with his o’clock in the evening and six (6) o’clock in the morning of the
schooling. following day.

b. Any person between fifteen (15) and eighteen (18) What is the prohibition of employing minors in certain
years of age may be employed for such number of undertakings and advertisements?
hours and such periods of the day as determined by No child below 18 years of age is allowed to be
the Secretary of Labor and Employment in employed as a model in any advertisement directly or
appropriate regulations. indirectly promoting alcoholic beverages, intoxicating drinks,
tobacco and its by-products, gambling or any form of violence
c. The foregoing provisions shall in no case allow the or pornography.
employment of a person below eighteen (18) years of
age in an undertaking which is hazardous or iv. Department Circular No. 02-18 Amending
deleterious in nature as determined by the Secretary Department Circular No. 2, Series of 2017(Guidelines on
of Labor and Employment. the Issuance of Work Permit for Children Below 15years of
Age Engage in Public Entertainment or Information)
Art. 140. Prohibition against child discrimination. No
employer shall discriminate against any person in respect to Coverage of Working Child Permit
terms and conditions of employment on account of his age. 1.1 A Working Child Permit is required if a child below 15
years of age:
ii. RA 7658 - AN ACT PROHIBITING THE 1.1.1 will be engaged in public entertainment or
EMPLOYMENT OF CHILDREN BELOW 15 YEARS OF AGE IN information regardless of his/her role in a project
PUBLIC AND PRIVATE UNDERTAKINGS, AMENDING FOR such as lead supporting, guest, or regular extra. This
ITS PURPOSE SECTION 12, ARTICLE VIII OF R.A. 7610. includes projects which are non-profit, advocacy
materials or political advertisements; or
iii. RA 9231 - AN ACT PROVIDING FOR THE 1.1.2 is a foreign national and will be engaged in
ELIMINATION OF THE WORST FORMS OF CHILD LABOR public entertainment or information in the
AND AFFORDING STRONGER PROTECTION FOR THE Philippines; or
WORKING CHILD, AMENDING FOR THIS PURPOSE 1.1.3 will be engaged as regular extra or as part of
REPUBLIC ACTNO. 7610, AS AMENDED, OTHERWISE a crowd and is included in the script or storyboard; or
KNOWN AS THE "SPECIAL PROTECTION OF CHILDREN 1.1.4 has been selected for a project after
AGAINST CHILD ABUSE, EXPLOITATION AND undergoing auditions, workshops or VTR screenings;
DISCRIMINATION ACT" or
1.1.5 has been selected as semi-finalist in a
Who is a “child” or “working child”? singing, dance or talent contest for a television show.
For legal purposes, the term “child” refers to any
person less than eighteen (18) years of age. 1.2 A Working Child Permit is not required if a child below 15
A “working child” refers to any child engaged as years of age:
follows: 1.2.1 is a spot extra or is cast outright on the day
i. when the child is below eighteen (18) years of age, in work of filming or taping of a project; or
or economic activity that is not “child 1.2.2 will join auditions or VTR screenings; or
labor;” and 1.2.3 is part of the audience of a live television
ii. when the child below fifteen (15) years of age: show unless the child's participation is expected; or
a. in work where he/she is directly under the 1.2.4 is picked or chosen as a contestant from the
responsibility of his/her parents or legal guardian and audience of a live television show; or
where only members of the child’s family are 1.2.5 is a contestant of a singing, dance or talent
employed; or contest for a television show but has not yet been
b. in “public entertainment or information” which selected as a semi¬finalist; or
refers to artistic, literary, and cultural performances 1.2.6 is a recipient of gift-giving activities in
for television show, radio program, cinema or film, television; or
theater, commercial advertisement, public relations 1.2.7 is a participant in school-related
activities or campaigns, print materials, internet, and performance such as play, skit, or recital; or
other media. 1.2.8 is a participant in sports activities, trainings
or workshops aimed at developing the child's talent
What are the working hours of a child? or skills; or
The term “hours of work” includes (1) all time during 1.2.9 will be featured in a documentary material.
which a child is required to be at a prescribed workplace, and
11
 In case the child in the documentary material is Forms of Child Labor and Affording Special Protection for the
engaged in child labor, the producer shall refer the Working Child, Amending for this purpose RA 7610, as
child to the nearest DOLE Regional/Provincial/Field amended) and consistent with Department Order No. 65-04
Office for the necessary services needed by the child (Rules and Regulations Implementing R.A.9231 Amending R.A.
and his/her family. No. 7610, as amended).

In the best interest of the child, the identity of the II. CLARIFICATION ON EMPLOYMENT OF YOUNG
child laborer shall not be disclosed whether directly PERSONS
or indirectly pursuant to the Guide for Media
Practitioners on the Reporting and Coverage of Cases 1. RA 9231 defines the hours of work of a working child.
Involving Children. Photographs, images or video "A child fifteen (15) years of age but below eighteen (18) shall
footages of the face or any distinguishing feature or not be allowed to work for more than eight (8) hours a day,
information of the child laborer including his or her and in no case beyond forty (40) hours a week.* As to work at
family members shall not be taken, published or night, the same law states that "no child fifteen (15) years of
shown to the public in any manner. age but below eighteen (18) shall be allowed to work between
ten o'clock in the evening and six o'clock in the morning of
3. Working Child Permit xxx the following day".

3.2 Group Permit 2. In reiteration of RA 7610 as amended by RA 7658, RA

For children appearing in a single project and without 9231 requires the issuance of a work permit prior to the
Working Child Permit yet, the DOLE Regional/Provincial/Field employment of children below fifteen years of age, as allowed
Office shall issue a group permit. in exceptional situations. This law, however, is silent with
regard to the issuance of a permit or certificate to those who
v. Department Order No. 175, Series of 2017 - are 15 but below 18 years of age, although these young
Implementing Rules and Regulations of Republic Act No. persons are still considered children.
10917 Amending for the Purpose Republic Acts 9547 and
7323, Otherwise Known as the Special Program for 3. Department Order No. 65-04 (Rules and Regulations
Employment of Students (SPES) Implementing R.A.9231) clarifies the prohibitions, which are:
the employment of children in the worst forms of child labor
SPES - the DOLE's youth employment-bridging program in any public or private establishments and the employment
which aims to provide temporary employment to poor but of children in advertisements directly or indirectly promoting
deserving students, out-of-school youth, and dependents of alcoholic beverages, intoxicating drinks, tobacco and its by-
displaced or would-be displaced workers during summer products, gambling or any form of violence or pornography.
and/or Christmas vacation or any time of the year to augment
the family's income to help ensure that beneficiaries are able 4. The employment of a young person 15 to below 18
to pursue their education. years of age, therefore, may be allowed subject to the
conditions and prohibitions in RA 9231 and the Labor Code.
SPES applicants - the prospective SPES beneficiaries
intending to enrol in the program and continue their c. HOUSEHELPERS
education in any secondary, tertiary or technical-vocational
institutions, categorized as follows: i. Kasambahay Law (R.A. No. 10361) - “Domestic Workers
1. Students - those currently enrolled in any Act” or “Batas Kasambahay
secondary, tertiary or technical-vocational institutions.
2. Out-of-school youth (OSY) - those who are What is the coverage of the Kasambahay Law?
not enrolled at the time of application in a formal R.A. No. 10361 applies to all domestic workers
educational or training institution recognized by the employed and working within the country. It shall cover all
government. parties to an employment contract for the services of the
3. Dependents of displaced or would-be following Kasambahay, whether on a live-in or live-out
displaced workers - the children or ward, whether arrangement, such as, but not limited to:
student or OSY, of a worker who was displaced or (a) General househelp;
about to be displaced. (b) Yaya;
(c) Cook;
SPES beneficiaries - successful applicants who passed the (d) Gardener;
eligibility requirements and submitted complete documents (e) Laundry person; or
required and considered placed under the program. (f) Any person who regularly performs domestic work in one
household on an occupational basis.
SPES babies - the SPES beneficiaries who have been
recipients of the program for more than one year whether Who are excluded from its coverage?
consecutive or not. The following are not covered:
(a) Service providers;
vi. Department Advisory 01-08 - EMPLOYMENT OF (b) Family drivers;
YOUTH AGED 15 TO LESS THAN 18 YEARS (c) Children under foster family arrangement; and
(d) Any other person who performs work occasionally or
I. RATIONALE AND BASIS sporadically and not on an occupational basis.
In the interest of service and in response to queries
received by the Department concerning the issuance of work Who is a domestic worker or kasambahay?
certificates and permits to young workers aged 15 to less than “Domestic worker” or “kasambahay” refers to any
18 years of age, this Advisory is hereby issued for reference person engaged in domestic work within an employment
and guidance of all DOLE Offices as well as concerned relationship, whether on a live-in or live-out arrangement,
employers and workers. such as, but not limited to, general househelp, "yaya", cook,
The policies stated herein are pursuant to the gardener, or laundry person, but shall exclude service
provisions of the Labor Code of the Philippines and Republic providers, family drivers, children who are under foster family
Act 9231 (An Act Providing for the Elimination of the Worst
12
arrangement, or any person who performs domestic work only which is mandated by law such as for SSS, PhilHealth or Pag-
occasionally or sporadically and not on an occupational basis. IBIG contributions.
This term shall not include children who are under 3. Mode of payment. - It should be paid in cash and not by
foster family arrangement which refers to children who are means of promissory notes, vouchers, coupons, tokens,
living with a family or household of relative/s and are tickets, chits, or any object other than the cash wage as
provided access to education and given an allowance provided for under this Act.
incidental to education, I.e., "baon", transportation, school 4. Pay slip. – The employer shall at all times provide the
projects, and school activities. Because of these new Kasambahay with a copy of the pay slip containing the
terminologies prescribed in the law, the use of the term amount paid in cash every pay day, and indicating all
“househelper” may no longer be legally correct. deductions made, if any. The copies of the pay slip shall be
kept by the employer for a period of three (3) years.
Is the employment contract required to be in writing? 5. Prohibition on Interference in the disposal of wages. – It
Yes. The employment contract must be in writing and shall be unlawful for the employer to interfere with the
should contain the conditions set by law. freedom of the Kasambahay in the disposition of his/her
wages, such as:
What are the rights and privileges of a kasambahay? (a) Forcing, compelling, or obliging the Kasambahay
The rights and privileges of the Kasambahay are as to purchase merchandise, commodities or other
follows: properties from the employer or from any other
(a) Minimum wage; person; or
(b) Other mandatory benefits, such as the daily and weekly (b) Making use of any store or services of such
rest periods, service incentive leave, and 13th month pay; employer or any other person.
(c) Freedom from employers' interference in the disposal of 6. Prohibition against withholding of wages. – It shall be
wages; unlawful for an employer, directly or indirectly, to withhold the
(d) Coverage under the SSS, PhilHealth and Pag-IBIG laws; wages of the Kasambahay. If the Kasambahay leaves without
(e) Standard of treatment; any justifiable reason, any unpaid salary for a period not
(f) Board, lodging and medical attendance; exceeding fifteen (15) days shall be forfeited. Likewise, the
(g) Right to privacy; employer shall not induce the Kasambahay to give up any part
(h) Access to outside communication; of the wages by force, stealth, intimidation, threat or by any
(i) Access to education and training; other means whatsoever.
(j) Right to form, join, or assist labor organization;
(k) Right to be provided a copy of the employment contract; What are important terms and conditions of employment of
(I) Right to certificate of employment; kasambahay?
(m) Right to terminate the employment; and The following is a rundown of the basic terms and
(n) Right to exercise their own religious beliefs and cultural conditions that should be observed in the employment of a
practices. Kasambahay:

What is the minimum wage of kasambahay? a. Employable age. - Children whose age is below 15 years
Under the Kasambahay Law, the following are the are absolutely prohibited to work as
minimum wages of kasambahays: Kasambahay.
(a) P2,500.00 a month for those employed in the National
Capital Region (NCR); b. Normal daily hours of work. – Because R.A. No. 10361
(b) P2,000.00 a month for those employed in chartered cities does not contain any provision on the number of normal
and first class municipalities; and hours of work that a Kasambahay should render in a day but
(c) P1,500.00 a month for those employed in other merely prescribes said daily rest period of eight (8) hours per
municipalities. day, it may be concluded that the Kasambahay should work
for at least a total of sixteen (16) hours per day as normal
Are the minimum wages subject to review by the RTWPBs or hours of work. However, it must be noted that the Labor Code
Regional Boards? does not contain any provision on the normal hours of work
Yes. After one (1) year from the effectivity of the of househelpers. Article 1695 of the Civil Code, however,
Kasambahay Law, and periodically thereafter, the specifically provides that househelpers shall not be required
Regional Tripartite and Productivity Wage Boards (RTPWBs) to work for more than ten (10) hours a day. Since R.A. No.
shall review, and if proper, determine and adjust the minimum 10361, a special law, is the most recent piece of legislation, it
wage rates of domestic workers.” should prevail over the general provision of the Civil Code.

What are some important principles on wage of kasambahay? c. Normal daily hours of work for working child-
• Frequency of payment of wages. - The wages of the kasambahay is eight (8) hours per day.
Kasambahay shall be paid at least once a month. This is so
because the minimum wage rates are on a monthly basis. d. 13th month pay. - The Kasambahay who has rendered at
least one (1) month of service is entitled to a 13th month
• The equivalent minimum daily wage rate of the pay which shall not be less than one-twelfth (1/12) of his/her
Kasambahay shall be determined by dividing the applicable total basic salary earned in a separation from employment.
minimum monthly rate by thirty (30) days.
e. Daily rest period. – The Kasambahay shall be entitled to an
• The amount of the minimum wage depends on the aggregate daily rest period of eight (8) hours.
geographical area where the Kasambahay works.
f. Weekly rest period. - The Kasambahay shall be entitled to
• Payment of wages: at least twenty-four (24) consecutive hours of rest in a
1. To whom paid. - It should be made on time directly to the week. The employer and the Kasambahay shall agree in
Kasambahay to whom they are due in cash at least once a writing on the schedule of the weekly rest day but the
month. preference of the Kasambahay, when based on religious
2. Deductions, prohibition; when allowed. - The employer, grounds, shall be respected.
unless allowed by the Kasambahay through a written consent,
shall make no deductions from the wages other than that
13
g. Service incentive leave. - A Kasambahay who has rendered the rendering of service by the Kasambahay as security or
at least one (1) year of service shall be entitled to an annual payment for a debt where the length and nature of service is
service incentive leave of at least five (5) days with pay. Any not clearly defined or when the value of the service is not
unused portion of said annual leave shall not be cumulative or reasonably applied in the payment of the debt.
carried over to the succeeding years. Unused leaves shall not
be convertible to cash. q. Assignment to non-household work. - The employer shall
not assign the Kasambahay to work, whether in full or part-
h. Social security benefits. - A Kasambahay who has time, in a commercial, industrial or agricultural enterprise at a
rendered at least one (1) month of service shall be covered by wage rate lower than that provided for agricultural or non-
the Social Security System (SSS), Employees Compensation agricultural workers. If so assigned, the Kasambahay will no
Commission (ECC), Philippine Health Insurance Corporation longer be treated as such but as a regular employee of the
(PhilHealth), and Home Development Mutual Fund or Pag- establishment.
IBIG, and shall be entitled to all the benefits in accordance
with their respective policies, laws, rules and regulations. What are the rules on termination of Kasambahay?
a. Pre-termination of employment. – The following rules
i. Obligation of employer to register and enroll with SSS, shall be observed:
PhilHealth, and Pag-IBIG. - As employer of the Kasambahay, (1) In case the duration of employment is specified in the
he/she shall register himself/herself with, and enroll the latter contract, the Kasambahay and the employer may mutually
as his/her employee to the SSS, PhilHealth, and Pag-IBIG. agree upon notice to terminate the contract of employment
before the expiration of its term.
j. Deposits for loss or damage. - It shall be unlawful for the (2) In case the duration is not determined by stipulation or by
employer or any other person to require a Kasambahay to nature of service, the employer or the Kasambahay may give
make deposits from which deductions shall be made for the notice to end the employment relationship five (5) days before
reimbursement of loss or damage to tools, materials, furniture the intended termination of employment.
and equipment in the household.
b. Termination of employment initiated by the
k. Standard of treatment. - The Kasambahay shall be treated Kasambahay. - The Kasambahay may terminate the
with respect by the employer or any member of the employment relationship at any time before the expiration of
household. He/she shall not be subjected to any kind of the contract for any of the following causes:
abuse, including repeated verbal or psychological, nor be (1) Verbal or emotional abuse of the Kasambahay by the
inflicted with any form of physical violence or harassment or employer or any member of the household;
any act tending to degrade his/her dignity, as defined under (2) Inhuman treatment including physical abuse of the
the Revised Penal Code, Violence Against Women and their Kasambahay by the employer or any member of the
Children Law (R.A. No. 9262), Special Protection of Children household;
Against Child Abuse, Exploitation and Discrimination Act (R.A. (3) Commission of a crime or offense against the Kasambahay
No. 7610) as amended by R.A. No. 9231, Anti-Trafficking in by the employer or any member of the household;
Persons Act of 2003 (R.A. No. 9208), and other applicable laws. (4) Violation by the employer of the terms and conditions of
the employment contract and other standards set forth in the
l. Board, lodging and medical attendance. - The employer law;
shall provide for the basic necessities of the (5) Any disease prejudicial to the health of the Kasambahay,
Kasambahay, to include the following: the employer, or members of the household; and
(1) At least three (3) adequate meals a day, taking into (6) Other causes analogous to the foregoing.
consideration the Kasambahay's religious beliefs and cultural If the Kasambahay leaves without cause, any unpaid
practices; salary due, not exceeding the equivalent of 15 days’ work,
(2) Humane sleeping condition that respects the person's shall be forfeited. In addition, the employer may recover from
privacy for live-in arrangement; and the Kasambahay deployment expenses, if any, if the services
(3) Appropriate rest and medical assistance in the form of have been terminated within six (6) months from employment.
first-aid medicines, in case of illnesses and injuries sustained
during service without loss of benefits. c. Termination of employment initiated by the employer. -
An employer may terminate the employment of the
m. Opportunities for education and training. - The Kasambahay at any time before the expiration of the contract
Kasambahay shall be afforded the opportunity to finish basic for any of the following causes:
education, which shall consist of elementary and secondary (1) Misconduct or willful disobedience by the Kasambahay of
education. He/she may be allowed access to alternative the lawful order of the employer in connection with the
learning systems and, as far as practicable, higher education former's work;
or technical vocational education and training. (2) Gross or habitual neglect or inefficiency by the
Kasambahay in the performance of duties;
n. Membership in labor organization. - The Kasambahay (3) Fraud or willful breach of the trust reposed by the
shall have the right to join a labor organization of his/her own employer on the Kasambahay;
choosing for purposes of mutual aid and collective (4) Commission of a crime or offense by the Kasambahay
negotiation. against the person of the employer or any immediate member
of the employer's family;
o. Health and safety. - The employer shall safeguard the (5) Violation by the Kasambahay of the terms and conditions
safety and health of the Kasambahay in accordance with the of the employment contract and other standards set forth
standards which the DOLE shall develop through the Bureau under the law;
of Working Conditions (BWC) and the Occupational Safety (6) Any disease prejudicial to the health of the Kasambahay,
and Health Center (OSHC) within six (6) months from the the employer, or members of the household; and
promulgation of this IRR. The said standards shall take into (7) Other causes analogous to the foregoing.
account the peculiar nature of domestic work. If the employer dismissed the Kasambahay for
reasons other than the above, he/she shall pay the
p. Prohibition on debt bondage. - It shall be unlawful for the Kasambahay the earned compensation plus indemnity in the
employer or any person acting on his/her behalf to place the amount equivalent to fifteen (15) days’ work.
Kasambahay under debt bondage. “Debt bondage” refers to
14
d. Invalid ground for termination. - Pregnancy and marriage employer to the SSS with the employer’s share. However,
of the Kasambahay are not valid grounds for termination of where payment is made to a contractor or subcontractor, the
employment. homeworker should likewise be paid immediately after the
goods or articles have been collected from the workers.
e. Employment Certification. - Upon the termination of
employment, the employer shall issue the Kasambahay, within What are prohibited homeworks?
five (5) days from request, a certificate of employment No homework shall be performed on the following:
indicating the nature, duration of the service and work 1. Explosives, fireworks and articles of like character;
description. 2. Drugs and poisons; and
3. Other articles, the processing of which requires exposure to
d. EMPLOYMENT OF HOMEWORKERS toxic substances.

What are important terms that should be noted in e. APPRENTICES AND LEARNERS
employment of homeworkers?
What are the distinctions between learnership and
a. “Industrial homeworker.” – It refers to a worker who is apprenticeship?
engaged in industrial homework.
APPRENTICES LEARNERS
b. “Industrial homework.” – It refers to a system of Practical training
production under which work for an employer or contractor is involves practical training on-the-job
carried out by a homeworker at his/her home. Materials may Training agreement
or may not be furnished by the employer or contractor. It Apprenticeship is governed Learnership is governed by a
differs from regular factory production principally in that, it is by an apprenticeship learnership agreement
a decentralized form of production where there is ordinarily agreement.
very little supervision or regulation of methods of work. Occupation
Apprenticeship concerns Learnership involves
c. “Home.” - It means any nook, house, apartment or other apprenticeable occupations learnable occupations
premises used regularly, in whole or in part, as a dwelling or any trade, form of consisting of semi-skilled and
place, except those situated within the premises or compound employment or occupation other industrial
of an employer, contractor/subcontractor and the work approved for apprenticeship occupations which are non-
performed therein is under the active or personal supervision by the DOLE Secretary. apprenticeable
by or for the latter. Theoretical instructions
Apprenticeship should always Learnership may or may not
d. “Field personnel.” – It refers to a non-agricultural be supplemented by related be supplemented by related
employee who regularly performs his duties away from the theoretical instructions theoretical
principal place of business or branch office of the employer instructions
and whose actual hours of work in the field cannot be
Ratio of theoretical instructions and on-the-job training
determined with reasonable certainty.
For both learnership and apprenticeship, the normal ratio is
one hundred (100) hours of theoretical instructions for every
e. “Employer.” – It refers to any natural or artificial person
two thousand (2,000) hours of practical or on-the-job training.
who, for his own account or benefit, or on behalf of any
Theoretical instruction time for occupations requiring less
person residing outside the Philippines, directly or indirectly,
than two thousand (2,000) hours for proficiency should be
or through any employee, agent, contractor, subcontractor or
computed on the basis of such ratio.
any other person:
Competency-based system
1. delivers or causes to be delivered any goods,
Does not require It is required in learnership
articles or materials to be processed or fabricated in
that it be implemented based
or about a home and thereafter to be returned or to
on the TESDA-approved
be disposed of or distributed in accordance with his
competency-based system.
direction; or
Duration of training
2. sells any goods, articles or materials for the
Apprenticeship requires for Learnership involves practical
purpose of having such goods or articles processed in
proficiency, more than three training on the job for a
or about a home and then repurchases them himself
(3) months but not over six period not exceeding
or through another after such processing.
(6) months of practical three (3) months
training on the job.
f. “Contractor” or “subcontractor.” - It refers to any person
who, for the account or benefit of an employer, delivers or Qualifications
causes to be delivered to a homeworker, goods or articles to (a) Be at least fourteen (14) The law does not expressly
be processed in or about his home and thereafter to be years of age; mention any qualifications for
returned, disposed of or distributed in accordance with the (b) Possess vocational learners.
direction of the employer. aptitude and capacity for
appropriate tests; and
g. “Processing.” - It refers to manufacturing, fabricating, (c) Possess the ability to
finishing, repairing, altering, packing, wrapping or handling in comprehend and follow oral
any way connected with the production or preparation of an and written instructions
article or material. Circumstances justifying hiring of trainees
Does not require Article 74 of the Labor Code,
How is homework paid? expressly prescribes the pre-
Immediately upon receipt of the finished goods or requisites before learners
articles, the employer is required to pay the homeworker or may be validly employed, to
the contractor or subcontractor, as the case may be, for the wit:
work performed less the corresponding homeworker’s share (a) When no experienced
of SSS, PhilHealth and ECC premium contributions which workers are available;
should be remitted by the contractor or subcontractor or (b) The employment of

15
 learners is necessary to Under the law, PWDs are entitled to equal
prevent curtailment of opportunity for employment. Consequently, no PWD shall be
employment opportunities; denied access to opportunities for suitable employment. A
and qualified employee with disability shall be subject to the
(c) The employment does not same terms and conditions of employment and the same
create unfair competition in compensation, privileges, benefits, fringe benefits,
terms of labor costs or impair incentives or allowances as a qualified able-bodied person.
or lower working standards.
Limitation on the number of trainees What is the wage rate of PWDs?
No similar cap is imposed in Participating enterprise is The wage rate of PWDs is 100% of the applicable
the case of apprenticeship. allowed to take in minimum wage.
learners only up to a
maximum of twenty percent What is the wage rate of PWD if hired as apprentice or
(20%) of its total regular learner?
workforce A PWD hired as an apprentice or learner shall be paid
Option to employ not less than seventy-five percent (75%) of the applicable
The enterprise is given only The enterprise is obliged to minimum wage.
an “option” to hire the hire the learner after the
apprentice as an employee. lapse of the learnership iii. Prohibition on discrimination against persons
period with disability
Wage rate
The wage rate of a learner or an apprentice is set at seventy- What is the rule on discrimination against employment of
five percent (75%) of the statutory minimum wage. PWDs?
No entity, whether public or private, shall discriminate
CONFLICT IN THE AGE REQUIREMENT FOR APPRENTICES: against a qualified PWD by reason of disability in regard to job
Under the Labor Code as stated above – 14 years of application procedures, the hiring, promotion, or discharge of
age Under the Labor Code’s Implementing Rules – “Be at least employees, employee compensation, job training, and other
15 years of age, provided those who are at least 15 years of terms, conditions and privileges of employment. The following
age but less than 18 may be eligible for apprenticeship only in constitute acts of discrimination:
non-hazardous occupations.” (a) Limiting, segregating or classifying a job applicant with
disability in such a manner that adversely affects his work
CONFLICT, HOW RESOLVED: opportunities;
It should be 15 years of age but the more (b) Using qualification standards, employment tests or other
appropriate basis is not the Labor Code’s Implementing Rules selection criteria that screen out or tend to screen out a PWD
(which cannot amend the Labor Code) but another law, R.A. unless such standards, tests or other selection criteria are
No. 9231, (“AN ACT PROVIDING FOR THE ELIMINATION OF shown to be job-related for the position in question and are
THE WORST FORMS OF CHILD LABOR AND AFFORDING consistent with business necessity;
STRONGER PROTECTION FOR THE WORKING CHILD“) where it (c) Utilizing standards, criteria, or methods of administration
is provided that: that:
(1) All persons under eighteen (18) years of age shall be (1) have the effect of discrimination on the basis of
considered as a “child”; and disability; or
(2) Children below fifteen (15) years of age shall not be (2) perpetuate the discrimination of others who are
employed EXCEPT if he/she falls under any of the exceptions subject to common administrative control.
mentioned and enumerated in the law. (d) Providing less compensation, such as salary, wage or other
forms of remuneration and fringe benefits, to a qualified
f. PERSONS WITH DISABILITY (R.A. No. 7277, as employee with disability, by reason of his disability, than the
Amended by R.A. No. 9442) amount to which a nondisabled person performing the same
work is entitled;
i. Definition (e) Favoring a non-disabled employee over a qualified
employee with disability with respect to promotion, training
“Persons with Disability” are those suffering from restriction opportunities, study and scholarship grants, solely on account
or different abilities, as a result of a mental, physical or of the latter’s disability;
sensory impairment, to perform an activity in the manner or (f) Re-assigning or transferring an employee with a disability
within the range considered normal for a human being. to a job or position he cannot perform by reason of his
disability;
“Impairment” refers to any loss, diminution or aberration of (g) Dismissing or terminating the services of an employee with
psychological, physiological, or anatomical structure or disability by reason of his disability unless the employer can
function. prove that he impairs the satisfactory performance of the work
involved to the prejudice of the business entity; provided,
“Disability” means (1) a physical or mental impairment that however, that the employer first sought to provide reasonable
substantially limits one or more psychological, physiological or accommodations for persons with disability;
anatomical functions of an individual or activities of such (h) Failing to select or administer in the most effective manner
individual; (2) a record of such an impairment; or (3) being employment tests which accurately reflect the skills, aptitude
regarded as having such an impairment. or other factor of the applicant or employee with disability
that such tests purports to measure, rather than the impaired
“Handicap” refers to a disadvantage for a given individual, sensory, manual or speaking skills of such applicant or
resulting from an impairment or a disability that limits or employee, if any; and
prevents the function or activity that is considered normal (i) Excluding PWD from membership in labor unions or similar
given the age and sex of the individual. organizations

ii. Rights of PWDs d. Incentives for employers

What are the rights of PWDs?

16
“SEC. 33 of RA 9442. Incentives. – Those caring for and living “Gainful employment” refers to a state or condition
with a person with disability shall be granted the following that creates an employer-employee relationship between the
incentives: Philippine-based company and the foreign national where the
former has the power to hire or dismiss the foreign national
(a) Persons with disability shall be treated as dependents from employment, pays the salaries or wages thereof and has
under the Section 35 (A) of the National Internal Revenue authority to control the performance or conduct of the tasks
Code, as amended and as such, individual taxpayers caring for and duties.
them shall be accorded the privileges granted by the code
insofar as having dependents under the same section are What are the categories of foreign nationals EXEMPTED from
concerned; and securing AEP?
a) All members of the diplomatic service and foreign
(b) Individuals or nongovernmental institutions establishing government officials accredited by and with reciprocity
homes, residential communities or retirement villages solely to arrangement with the Philippine government;
suit the needs and requirements of persons with disability b) Officers and staff of international organizations of which
shall be accorded the following: the Philippine government is a member, and their legitimate
(i) Realty tax holiday for the first five years of spouses desiring to work in the Philippines;
operation; and c) All foreign nationals granted exemption by law;
(ii) Priority in the building and/or maintenance of d) Owners and representatives of foreign principals whose
provincial or municipal roads leading to the aforesaid companies are accredited by the POEA, who come to the
home, residential community or retirement village.” Philippines for a limited period and solely for the purpose of
interviewing Filipino applicants for employment abroad;
g. FOREIGNERS e) Foreign nationals who come to the Philippines to teach,
present and/or conduct research studies in universities and
i. Provisions on foreign employees under the Labor colleges as visiting, exchange or adjunct professors under
Code formal agreements between the universities or colleges in the
Philippines and foreign universities or colleges; or between
Title II the Philippine government and foreign government: provided
EMPLOYMENT OF NON-RESIDENT ALIENS that the exemption is on a reciprocal basis; and
f) Permanent resident foreign nationals and probationary or
Art. 40. Employment permit of non-resident aliens. Any temporary resident visa holders under Section 13 of the
alien seeking admission to the Philippines for employment Philippine Immigration Act of 1940.
purposes and any domestic or foreign employer who desires
to engage an alien for employment in the Philippines shall What are the categories of foreign nationals EXCLUDED from
obtain an employment permit from the Department of Labor. securing AEP?
The employment permit may be issued to a non-resident alien a) Members of the governing board with voting rights only
or to the applicant employer after a determination of the non- and do not intervene in the management of the corporation
availability of a person in the Philippines who is competent, or in the day-to-day operation of the enterprise.
able and willing at the time of application to perform the b) Corporate officers as provided under the Corporation Code
services for which the alien is desired. of the Philippines, Articles of Incorporation, and By-laws of the
For an enterprise registered in preferred areas of investments, Corporation such as President, Secretary and Treasurer.
said employment permit may be issued upon c) Those providing consultancy services who do not have
recommendation of the government agency charged with the employers in the Philippines.
supervision of said registered enterprise. d) Intra-corporate transferee who is a manager, executive or
specialist as defined below in accordance with Trade
Art. 41. Prohibition against transfer of employment. Agreements and an employee of the foreign service supplier
a. After the issuance of an employment permit, the alien for at least one (1) year prior to deployment to a branch,
shall not transfer to another job or change his subsidiary, affiliate or representative office in the Philippines:
employer without prior approval of the Secretary of (i) an EXECUTIVE: a natural person within the
Labor. organization who primarily directs the management
of the organization and exercises wide latitude in
b. Any non-resident alien who shall take up decision making and receives only general
employment in violation of the provision of this Title supervision or direction from higher level executives,
and its implementing rules and regulations shall be the board of directors or stockholders of the
punished in accordance with the provisions of Articles business; an executive would not directly perform
289 and 290 of the Labor Code. tasks related to the actual provision of the service or
services of the organization;
In addition, the alien worker shall be subject to (ii) a MANAGER: a natural person within the
deportation after service of his sentence. organization who primarily directs the organization/
department/ subdivision and exercises supervisory
and control functions over other supervisory,
ii. Department Order No. 186, Series of 2017 managerial or professional staff; does not include
first-line supervisors unless employees supervised are
What is an ALIEN EMPLOYMENT PERMIT (AEP)? professionals; does not include employees who
AEP - a document issued by the DOLE Secretary primarily perform tasks necessary for the provision of
through the DOLE-Regional Director who has jurisdiction over the service; or
the intended place of work of the foreign national, authorizing (iii) a SPECIALIST: a natural person within the
the foreign national to work in the organization who possesses knowledge at an
Philippines. advanced level of expertise essential to the
establishment/provision of the service and/or
Who are required to procure AEP? possesses proprietary knowledge of the
All foreign nationals who intend to engage in gainful organization's service, research equipment,
employment in the Philippines are required to apply for AEP. techniques or management; may include, but is not
limited to, members of a licensed profession.
17
 e) Contractual service supplier who is a manager, i. “Emigrant” means any person, worker or otherwise,
executive or specialist and an employee of a foreign who emigrates to a foreign country by virtue of an
service supplier which has no commercial presence in immigrant visa or resident permit or its equivalent in
the Philippines: the country of destination.
(i) who enters the Philippines temporarily to
supply a service pursuant to a contract Art. 14. Employment promotion. The Secretary of Labor
between his/her employer and a service shall have the power and authority:
consumer in the Philippines; a. To organize and establish new employment offices in
(ii) must possess the appropriate educational addition to the existing employment offices under the
and professional qualifications; and Department of Labor as the need arises;
(iii) must be employed by the foreign service
supplier for at least one (1) year prior to the b. To organize and establish a nationwide job clearance
supply of service in the Philippines. and information system to inform applicants
What is the validity of an AEP? registering with a particular employment office of job
One (1) year is the validity of an AEP. opportunities in other parts of the country as well as
Exception: When employment contract provides job opportunities abroad;
otherwise but not to exceed three (3) years.
The AEP may be renewed subject to the conditions imposed c. To develop and organize a program that will facilitate
by law. occupational, industrial and geographical mobility of
labor and provide assistance in the relocation of
III. RECRUITMENT AND PLACEMENT workers from one area to another; and

A. RECRUITMENT OF LOCAL AND MIGRANT WORKERS d. To require any person, establishment, organization or
institution to submit such employment information as
1. General Provisions may be prescribed by the Secretary of Labor.

Title I Art. 15. Bureau of Employment Services.

RECRUITMENT AND PLACEMENT OF WORKERS a. The Bureau of Employment Services shall be primarily
Chapter I responsible for developing and monitoring a
GENERAL PROVISIONS comprehensive employment program. It shall have
the power and duty:
Art. 13. Definitions. 1. To formulate and develop plans and
a. “Worker” means any member of the labor force, programs to implement the employment
whether employed or unemployed. promotion objectives of this Title;

b. “Recruitment and placement” refers to any act of 2. To establish and maintain a registration
canvassing, enlisting, contracting, transporting, and/or licensing system to regulate private
utilizing, hiring or procuring workers, and includes sector participation in the recruitment and
referrals, contract services, promising or advertising placement of workers, locally and overseas,
for employment, locally or abroad, whether for profit and to secure the best possible terms and
or not: Provided, That any person or entity which, in conditions of employment for Filipino
any manner, offers or promises for a fee, employment contract workers and compliance therewith
to two or more persons shall be deemed engaged in under such rules and regulations as may be
recruitment and placement. issued by the Minister of Labor;

c. “Private fee-charging employment agency” means 3. To formulate and develop employment

any person or entity engaged in recruitment and programs designed to benefit disadvantaged
placement of workers for a fee which is charged, groups and communities;
directly or indirectly, from the workers or employers
or both. 4. To establish and maintain a registration
and/or work permit system to regulate the
d. “License” means a document issued by the employment of aliens;
Department of Labor authorizing a person or entity to
operate a private employment agency. 5. To develop a labor market information
system in aid of proper manpower and
e. “Private recruitment entity” means any person or development planning;
association engaged in the recruitment and
placement of workers, locally or overseas, without 6. To develop a responsive vocational guidance
charging, directly or indirectly, any fee from the and testing system in aid of proper human
workers or employers. resources allocation; and

f. “Authority” means a document issued by the 7. To maintain a central registry of skills, except
Department of Labor authorizing a person or seamen.
association to engage in recruitment and placement
activities as a private recruitment entity. b. The regional offices of the Ministry of Labor shall
have the original and exclusive jurisdiction over all
g. “Seaman” means any person employed in a vessel matters or cases involving employer-employee
engaged in maritime navigation. relations including money claims, arising out of or by
virtue of any law or contracts involving Filipino
h. “Overseas employment” means employment of a workers for overseas employment except seamen:
worker outside the Philippines. Provided, That the Bureau of Employment Services
may, in the case of the National Capital Region,
exercise such power, whenever the Minister of Labor
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 deems it appropriate. The decisions of the regional place workers from a document called authority
offices of the Bureau of Employment Services, if so document denominated as
authorized by the Minister of Labor as provided in license
this Article, shall be appealable to the National Labor
Relations Commission upon the same grounds Ban on Direct Hiring:
provided in Article 223 hereof. The decisions of the GR: No employer may hire a Filipino worker for overseas
National Labor Relations Commission shall be final employment except through the Boards and entities
and inappealable. (Superseded by Exec. Order 797, authorized by the Secretary of Labor. Direct-hiring by
May 1, 1982). members of the diplomatic corps, international organizations
and such other employers as may be allowed by the Secretary
c. The Minister of Labor shall have the power to impose of Labor is exempted from this provision.
and collect fees based on rates recommended by the Exceptions:
Bureau of Employment Services. Such fees shall be 1. name hires or individuals who were able to acquire foreign
deposited in the National Treasury as a special employment through their own efforts without the assistance
account of the General Fund, for the promotion of the of local employment agencies; and
objectives of the Bureau of Employment Services, 2. members of diplomatic corps, international organizations
subject to the provisions of Section 40 of Presidential and employers who have been previously allowed by the
Decree No. 1177. Department of Labor and Employment in the Philippines to
conduct direct hiring under the Philippine Overseas
Art. 16. Private recruitment. Except as provided in Chapter II Employment Administration (POEA) Rules governing overseas
of this Title, no person or entity other than the public employment
employment offices, shall engage in the recruitment and
placement of workers. 2. Illegal Recruitment (Sec. 5 of RA 10022)

Art. 17. Overseas Employment Development Board. An Section 5. Section 6 of Republic Act No. 8042, as amended, is
Overseas Employment Development Board is hereby created hereby amended to read as follows:
to undertake, in cooperation with relevant entities and
agencies, a systematic program for overseas employment of "SEC. 6. Definition. - For purposes of this Act, illegal
Filipino workers in excess of domestic needs and to protect recruitment shall mean any act of canvassing, enlisting,
their rights to fair and equitable employment practices. It shall contracting, transporting, utilizing, hiring, or procuring
have the power and duty: workers and includes referring, contract services, promising or
1. To promote the overseas employment of Filipino advertising for employment abroad, whether for profit or not,
workers through a comprehensive market promotion when undertaken by non-licensee or non-holder of authority
and development program; contemplated under Article 13(f) of Presidential Decree No.
442, as amended, otherwise known as the Labor Code of the
2. To secure the best possible terms and conditions of Philippines: Provided, That any such non-licensee or non-
employment of Filipino contract workers on a holder who, in any manner, offers or promises for a fee
government-to-government basis and to ensure employment abroad to two or more persons shall be deemed
compliance therewith; so engaged. It shall likewise include the following acts,
whether committed by any person, whether a non-licensee,
3. To recruit and place workers for overseas non-holder, licensee or holder of authority:
employment on a government-to-government
arrangement and in such other sectors as policy may
"(a) To charge or accept directly or indirectly
dictate; and
any amount greater than that specified in the
schedule of allowable fees prescribed by the
4. To act as secretariat for the Board of Trustees of the
Secretary of Labor and Employment, or to
Welfare and Training Fund for Overseas Workers.
make a worker pay or acknowledge any
amount greater than that actually received
Art. 18. Ban on direct-hiring. No employer may hire a
by him as a loan or advance;
Filipino worker for overseas employment except through the
Boards and entities authorized by the Secretary of Labor.
"(b) To furnish or publish any false notice or
Direct-hiring by members of the diplomatic corps,
information or document in relation to
international organizations and such other employers as may
recruitment or employment;
be allowed by the Secretary of Labor is exempted from this
provision.
"(c) To give any false notice, testimony,
information or document or commit any act
xxx
of misrepresentation for the purpose of
securing a license or authority under the
Notes:
Labor Code, or for the purpose of
Private Employment Private Recruitment Entity
documenting hired workers with the POEA,
Agency
which include the act of reprocessing
Right to Charge Fee
workers through a job order that pertains to
It has the duty recognized in It does not charge any free
nonexistent work, work different from the
law to charge a fee directly or either directly or indirectly
actual overseas work, or work with a different
indirectly from the workers or from the workers or
employer whether registered or not with the
the employers from both employers to which they
POEA;
would be deployed.
Person Whom They are Allowed to Recruit
"(d) To include or attempt to induce a worker
It is authorized to recruit only It is allowed to recruit for the
already employed to quit his employment in
for overseas placement or local and overseas
order to offer him another unless the transfer
deployment. employment
is designed to liberate a worker from
Source of Authority
Authorized to recruit and It secures its authority from a
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 oppressive terms and conditions of "In addition to the acts enumerated above, it shall also be
employment; unlawful for any person or entity to commit the following
prohibited acts:
"(e) To influence or attempt to influence any
person or entity not to employ any worker "(1) Grant a loan to an overseas Filipino
who has not applied for employment worker with interest exceeding eight percent
through his agency or who has formed, (8%) per annum, which will be used for
joined or supported, or has contacted or is payment of legal and allowable placement
supported by any union or workers' fees and make the migrant worker issue,
organization; either personally or through a guarantor or
accommodation party, postdated checks in
"(f) To engage in the recruitment or relation to the said loan;
placement of workers in jobs harmful to
public health or morality or to the dignity of "(2) Impose a compulsory and exclusive
the Republic of the Philippines; arrangement whereby an overseas Filipino
worker is required to avail of a loan only
"(h) To fail to submit reports on the status of from specifically designated institutions,
employment, placement vacancies, entities or persons;
remittance of foreign exchange earnings,
separation from jobs, departures and such "(3) Refuse to condone or renegotiate a loan
other matters or information as may be incurred by an overseas Filipino worker after
required by the Secretary of Labor and the latter's employment contract has been
Employment; prematurely terminated through no fault of
his or her own;
"(i) To substitute or alter to the prejudice of
the worker, employment contracts approved "(4) Impose a compulsory and exclusive
and verified by the Department of Labor and arrangement whereby an overseas Filipino
Employment from the time of actual signing worker is required to undergo health
thereof by the parties up to and including examinations only from specifically
the period of the expiration of the same designated medical clinics, institutions,
without the approval of the Department of entities or persons, except in the case of a
Labor and Employment; seafarer whose medical examination cost is
shouldered by the principal/shipowner;
"(j) For an officer or agent of a recruitment or
placement agency to become an officer or "(5) Impose a compulsory and exclusive
member of the Board of any corporation arrangement whereby an overseas Filipino
engaged in travel agency or to be engaged worker is required to undergo training,
directly or indirectly in the management of seminar, instruction or schooling of any kind
travel agency; only from specifically designated institutions,
entities or persons, except fpr
"(k) To withhold or deny travel documents recommendatory trainings mandated by
from applicant workers before departure for principals/shipowners where the latter
monetary or financial considerations, or for shoulder the cost of such trainings;
any other reasons, other than those
authorized under the Labor Code and its "(6) For a suspended recruitment/manning
implementing rules and regulations; agency to engage in any kind of recruitment
activity including the processing of pending
"(l) Failure to actually deploy a contracted workers' applications; and
worker without valid reason as determined
by the Department of Labor and "(7) For a recruitment/manning agency or a
Employment; foreign principal/employer to pass on the
overseas Filipino worker or deduct from his
"(m) Failure to reimburse expenses incurred or her salary the payment of the cost of
by the worker in connection with his insurance fees, premium or other insurance
documentation and processing for purposes related charges, as provided under the
of deployment, in cases where the compulsory worker's insurance coverage.
deployment does not actually take place
without the worker's fault. Illegal recruitment "The persons criminally liable for the above offenses are the
when committed by a syndicate or in large principals, accomplices and accessories. In case of juridical
scale shall be considered an offense persons, the officers having ownership, control, management
involving economic sabotage; and or direction of their business who are responsible for the
commission of the offense and the responsible
"(n) To allow a non-Filipino citizen to head or employees/agents thereof shall be liable.
manage a licensed recruitment/manning
agency. "In the filing of cases for illegal recruitment or any of the
prohibited acts under this section, the Secretary of Labor and
"Illegal recruitment is deemed committed by a syndicate if Employment, the POEA Administrator or their duly authorized
carried out by a group of three (3) or more persons conspiring representatives, or any aggrieved person may initiate the
or confederating with one another. It is deemed committed in corresponding criminal action with the appropriate office. For
large scale if committed against three (3) or more persons this purpose, the affidavits and testimonies of operatives or
individually or as a group. personnel from the Department of Labor and Employment,
POEA and other law enforcement agencies who witnessed the
20
acts constituting the offense shall be sufficient to prosecute confederating with one another in carrying out the act
the accused. circumscribed by the law commits the 4th type IR by the law.

"In the prosecution of offenses punishable under this section, c. Simple Illegal Recruitment
the public prosecutors of the Department of Justice shall
collaborate with the anti-illegal recruitment branch of the What are the 2 elements of simple illegal recruitment?
POEA and, in certain cases, allow the POEA lawyers to take the (1) The offender has no valid license or authority required by
lead in the prosecution. The POEA lawyers who act as law to enable one to lawfully engage in recruitment and
prosecutors in such cases shall be entitled to receive placement of workers; and
additional allowances as may be determined by the POEA (2) He undertakes either any activity within the meaning of
Administrator. “recruitment and placement” defined under Article 13(b), or
any prohibited practices under Articles 34 and 38 of the
"The filing of an offense punishable under this Act shall be Labor Code, or RA 8042 as amended by RA 10022.
without prejudice to the filing of cases punishable under other
existing laws, rules or regulations." Can a recruiter be a natural or juridical person?
Yes.
Who may commit illegal recruitment?
Illegal recruitment may be committed by any of the What are some relevant principles on illegal recruitment?
following 1. Mere impression that a person could deploy workers
(1) By Non-Licensee or Non-holder of authority; or overseas is sufficient to constitute illegal recruitment. But if no
(2) By ANY PERSON, regardless of whether a non-licensee, such impression is given, the accused should not be convicted
non-holder, licensee or holder of authority, for illegal recruitment.
2. Mere promise or offer of employment abroad amounts to
What are illegal recruitment acts that can be committed by recruitment.
No. 1 above (NON-LICENSEE or NON-HOLDER OF 3. There is no need to show that accused represented himself
AUTHORITY)? as a licensed recruiter.
When what is committed by such NON-LICENSEES or 4. Referrals may constitute illegal recruitment.
NON-HOLDERS OF AUTHORITY is any of the acts of 5. It is illegal recruitment to induce applicants to part with
recruitment allowed only to be done by licensees or holders of their money upon false misrepresentations and promises in
authority such as the act of canvassing, enlisting, assuring them that after they paid the placement fee, jobs
contracting, transporting, utilizing, hiring, or procuring abroad were waiting for them and that they would be
workers and includes referring, contract services, deployed soon.
promising or advertising for employment abroad, whether 6. Recruitment whether done for profit or not is immaterial.
for profit or not. 7. The act of receiving money far exceeding the amount as
In other words, had they possessed of license or required by law is not considered as “recruitment and
authority, their commission of any of the foregoing acts could placement” as this phrase is contemplated under the law.
have been valid and not constitutive of illegal recruitment. 8. Actual receipt of fee is not an element of the crime of illegal
NOTE: The non-licensee or non-holder of authority is recruitment.
presumed to be engaged in such recruitment 9. Conduct of interviews amounts to illegal recruitment.
if he in any manner, offers or promises for a fee employment 10. Absence of receipt is not essential to hold a person guilty
abroad to two or more persons. of illegal recruitment.
11. Conviction for illegal recruitment may be made on the
a. License vs. Authority strength of the testimonies of the complainants.
12. Absence of documents evidencing the recruitment
License Authority activities strengthens, not weakens, the case for illegal
Document issued by the Document issued by the recruitment.
DOLE Secretary authorizing a DOLE Secretary authorizing 13. Only one person recruited is sufficient to convict one for
person, partnership or the officers, personnel, illegal recruitment.
corporation to operate a agents or representatives of a 14. Non-prosecution of another suspect is immaterial.
private recruitment or licensed recruitment or 15. Execution of affidavit of desistance affects only the civil
manning agency manning agency to conduct liability but has no effect on the criminal liability for illegal
recruitment and placement recruitment.
activities in a place stated in 16. Defense of denial cannot prevail over positive
the license or in a specified identification. Positive identification where categorical and
place. consistent and not attended by any showing of ill motive on
the part of the eyewitnesses on the matter prevails over alibi
b. Essential Elements of Illegal Recruitment and denial. Between the categorical statements of the
(1) Simple illegal recruitment; prosecution witnesses, on the one hand, and bare denials of
(2) When committed by a syndicate; or the accused, on the other hand, the former must prevail.
(3) When committed in large scale.
When illegal recruitment is committed under either d. Illegal Recruitment as Economic Sabotage
Nos. 2 or 3 above or both, it is considered an offense
involving economic sabotage. When is illegal recruitment considered a crime involving
economic sabotage?
*Kinds of Illegal Recruitment 1. when committed by a syndicate; or
1. Simple Illegal Recruitment – committed by any person 2. when committed in large scale.
who is neither a licensee nor a holder of authority.
2. Economic Sabotage / Qualified Illegal Recruitment When is illegal recruitment committed by a syndicate?
a. Large Scale Illegal Recruitment – IR committed by one If it is carried out by a group of three (3) or more
person with another against 3 or more persons individually or persons conspiring or confederating with one another.
as a group.
b. Illegal Recruitment by Large Scale - IR committed by a Elements of illegal recruitment by a syndicate.
syndicate or a group of 3 or more persons conspiring or
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 The essential elements of the crime of illegal Code Penal Code
recruitment committed by a syndicate are as follows: Limited in scope Wider in scope and covers
1. That offender undertakes any activity within the meaning of deceits whether related or
recruitment and placement defined under Art. 13 (b) or any not related to recruitment
prohibited practice enumerated in Arts. 34 and 28 of the Labor activities
Code or RA 8042 as amended by RA 10022.
2. That acts are committed by at least 3 persons conspiring or 3. Liabilities
confederating with one another.
3. That offenders are not licensed or authorized to do so. a. Local Recruitment Agency

The law does not require that the syndicate should recruit b. Foreign Employer
more than one (1) person in order to constitute the crime
of illegal recruitment by a syndicate. Recruitment of one What is the nature of the liability between local recruiter and
(1) person would suffice to qualify the illegal recruitment its foreign principal?
act as having been committed by a syndicate. The nature of their liability is “solidary” or “joint and
several” for any and all claims arising out of the employment
When is illegal recruitment considered in large scale? contract of OFWs.
If committed against three (3) or more persons
individually or as a group. Is the solidary liability of corporate officers with the
recruitment agency “automatic” in character?
Elements of illegal recruitment in large scale. No. In order to hold the officers of the agency
The elements of illegal recruitment in large scale, as solidarily liable, it is required that there must be proof of their
distinguished from simple illegal recruitment, are as follows: culpability therefor. Thus, it was held in the 2013 case of
1. That offender undertakes any activity within the meaning of Gagui v. Dejero, that while 1 it is true that R.A. 8042 and the
recruitment and placement defined under Art. 13 (b) or any Corporation Code provide for solidary liability, this liability
prohibited practice enumerated in Arts. 34 and 28 of the Labor must be so stated in the decision sought to be implemented.
Code or RA 8042 as amended by RA 10022. Absent this express statement, a corporate officer may not be
2. That the offender commits the same against three (3) or impleaded and made to personally answer for the liability of
more persons, individually or as a group. the corporation.

• Distinguished from illegal recruitment by a syndicate. What are some relevant principles on the persons liable for
As distinguished from illegal recruitment committed illegal recruitment?
by a syndicate, illegal recruitment in large scale may be 1. Employees of a licensed recruitment agency may be held
committed by only one (1) person. What is important as liable for illegal recruitment as principal by direct participation,
qualifying element is that there should be at least three (3) together with his employer, if it is shown that he actively and
victims of such illegal recruitment, individually or as a group. consciously participated in illegal recruitment.
• What are some relevant principles on illegal recruitment 2. Good faith and merely following orders of superiors are not
involving economic sabotage? valid defenses of an employee.
3. A manager of a recruitment/manning agency is not a mere
1. The number of persons victimized is determinative of the employee. As such, he receives job applications, interviews
crime. A conviction for large scale illegal recruitment applicants and informs them of the agency’s requirement of
must be based on a finding in each case of illegal recruitment payment of performance or cash bond prior to the applicant’s
of three (3) or more persons having been deployment. As the crewing manager, he was at the forefront
recruited, whether individually or as a group. of the company’s recruitment activities.
2. Failure to prove at least 3 persons recruited makes the
crime a case of simple illegal recruitment. i. Theory of Imputed Knowledge
3. There is no illegal recruitment in large scale based on
several informations filed by only one complainant. What is meant by this theory?
4. The number of offenders is not material in illegal Knowledge of the agent is deemed knowledge of the
recruitment in large scale. principal but not the other way around.
5. Recruitment in large scale or by a syndicate is malum The theory of imputed knowledge is a rule that any
prohibitum and not malum in se. information material to the transaction, either possessed by
the agent at the time of the transaction or acquired by him
e. Illegal recruitment vs. Estafa before its completion, is deemed to be the knowledge of the
principal, at least insofar as the transaction is concerned, even
Can a person be charged and convicted separately for illegal though the knowledge, in fact, is not communicated to the
recruitment and estafa involving one and the same act of principal at all.
recruitment?
Yes. It is clear that conviction under the Labor Code Sunace International Management Services, Inc. v. NLRC -
does not preclude conviction for estafa or other crimes under The High Court here has the opportunity to discuss the
other laws. application of the theory of imputed knowledge. The OFW
(Divina), a domestic helper in Taiwan, has extended her 12-
Some relevant principles: month contract, after its expiration, for two (2) more years
▪ Same evidence to prove illegal recruitment may be used to after which she returned to the Philippines. It was established
prove estafa. by evidence that the extension was without the knowledge of
▪ Conviction for both illegal recruitment and estafa is not the local recruitment agency, petitioner Sunace. The Court of
double jeopardy. Appeals, however, affirmed the Labor Arbiter’s and NLRC’s
finding that Sunace knew of and impliedly consented to the
Illegal Recruitment Estafa extension of Divina’s 2-year contract. It went on to state that
Malum prohibitum Mala in se “It is undisputed that [Sunace] was continually communicating
Criminal intent of the accused Criminal Intent is imperative with [Divina’s] foreign employer.” It thus concluded that “[a]s
is not necessary agent of the foreign principal, ‘petitioner cannot profess
Penalized under the Labor Penalized under the Revised ignorance of such extension as obviously, the act of the
22
principal extending complainant (sic) employment contract
necessarily bound it.’”
In finding that the application by the CA of this theory
of imputed knowledge was misplaced, the High
Court ruled that this theory ascribes the knowledge of the
agent, Sunace, to the principal, employer Xiong, not the other
way around. The knowledge of the principal-foreign employer
cannot, therefore, be imputed to its agent, Sunace. There
being no substantial proof that Sunace knew of and
consented to be bound under the 2-year employment
contract extension, it cannot be said to be privy thereto. As
such, Sunace and its owner cannot be held solidarily liable for
any of Divina’s claims arising from the 2-year employment
extension. As the New Civil Code provides: “Contracts take
effect only between the parties, their assigns, and heirs, except
in case where the rights and obligations arising from the
contract are not transmissible by their nature, or by stipulation
or by provision of law.”

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