BOOK ONE PRE-EMPLOYMENT Article 12: STATEMENT OF OBJECTIVES COMMENTS 1.

THE UNEMPLOYMENT PROBLEM

In a list of 18 countries, the Philippines unemployment rate is the highest, at 10.2%, meaning more than three million jobless.

The unemployment problem is exacerbated by population growth that appears unchecked. 2.

THE DOLE: ITS RESPONSIBILITY

The Administrative Code mandates the DOLE to assume primary responsibility for: a.

The promotion of gainful employment opportunities and the optimization of the development and utilization of the countrys manpower resources; b.

The advancement of workers welfare by providing for just and humane working conditions and terms of employment; c.

The maintenance of industrial peace by promoting harmonious, equitable and employment relations that assure protection for the rights of all concerned parties. Title I RECRUITMENT AND PLACEMENT OF WORKERS Chapter I GENERAL PROVISIONS

Article 13: DEFINITIONS

COMMENTS ARTICLE 13 (B) CONSTRUED; WHAT CONSTITUTES RECRUITMENT AND PLACEMENT

The number of persons is not an essential ingredient of the act of recruitment and placement of workers. Any of the acts mentioned in the basic rule in Article 13 (b) will constitute recruitment and placement even if only one prospective worker is involved. (People vs. Panis)

It must be shown that the accused gave the complainant the distinct impression that she had the power or the ability to send the complainant abroad for work, such that the latter was convinced to part with her money to be so employed. Where such an act or representation is not proven, there is not recruitment activity and conviction for illegal recruitment has no basis. (People vs. Goce)

By themselves, procuring a passport, airline tickets and foreign visa for another individual, without more, can hardly qualify as recruitment activities. (Darvin vs. CA) Article 14:

EMPLOYMENT PROMOTION COMMENTS EMPLOYMENT PROMOTION

To pursue its responsibility to promote employment opportunities, the DOLE carries out programs for local and overseas employment. Article 15: BUREAU OF EMPLOYMENT SERVICES

COMMENTS 1.

LOCAL EMPLOYMENT

The Bureau of Employment Services has been replaced by the Bureau of Local Employment (BLE) through EO 797 (May 1, 1982) 1.1.

The PESO

Public Employment Service Office

Intended to serve as employment service and information center in its area of operation. It regularly obtains a list of job vacancies from employers, publicizes them, invites and evaluates applicants, and refers them for probable hiring.

Also holds special services for the public such as employment bazaars, etc. Article 16: PRIVATE RECRUITMENT COMMENTS AUTHORIZED ENTITIES

Based on the Rules Implementing the Code, the following entities are authorized to recruit and place workers for local or overseas employment: a.

public employment offices b.

Private recruitment entities c.

Private employment agencies d.

Shipping or manning agents or representatives e.

POEA f.

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

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

Other persons or entities as may be authorized by the DOLE Secretary.

Article 17: OVERSEAS EMPLOYMENT DEVELOPMENT BOARD

COMMENTS AND CASES 1.

OVERSEAS EMPLOYMENT, A BRIEF HISTORY

Labor migration in the Philippines began in the 1900s when Hawaii experienced severe manpower shortage. The 200 Filipinos that initially went there were followed by many more until they formed about 70% of Hawaiis plantation labor.

Other countries such as the US, Canada, Australia, Japan and Saudi Arabia eventuall followed suit. 2.

LEGISLATIVE BACKGROUND OF OVERSEAS EMPLOYMENT

Act 2486: first law passed by Philippine Congress relating to overseas employment

PD 442: Labor code, paved the way for stricter government regulation of the overseas employment industry.

PD 1412: revived private sector participation in the recruitment and placement of Filipino migrant workers.

EO 797: Enacted to streamline operations in the overseas employment program.

EO 247: Reorganization Act of the POEA

RA 8042: Migrant Workers and Overseas Filipinos Act of 1995 3.

OVERSEAS EMPLOYMENT POLICY 3.1.

R.A. No. 8042

The State does not promote overseas employment as a means to sustain economic growth and achieve national development.

The existence of overseas employment program rests solely on the assurance that the dignity and fundamental human rights and

freedoms of the Filipino citizen shall not, at any time, be compromised or violated. 3.2.

Selective Deployment

RA 8042 requires certain guarantee of protection for the overseas worker before they are deployed in countries that meet some criteria: o

It has existing labor and social laws protecting the rights of migrant workers; o

It is a signatory to multilateral conventions, declarations or resolutions relating to the protection of migrant workers; o

It has concluded a bilateral agreement or arrangement with the government protecting the rights of Filipino migrant workers; o

It is taking positive, concrete measures to protect the rights of migrant workers.

Notwithstanding this the government, in

pursuit of national interest or when public welfare so requires, may, at any time, terminate or impose a ban on the deployment of migrant workers. 4.

THE POEA: OVERVIEW OF ITS FUNCTIONS AND POWERS

Among the principal functions of the POEA are the formulation, implementation, and monitoring of the overseas employment of the Filipino workers and the protection of their rights to fair and equitable employment practices.

Overseas Filipino Worker (OFW) is understood as a Filipino worker who is to be engaged, is engaged, or has been engaged in a remunerated activity in a country of which he/she is not a legal resident.

OFWs are classified by DOLE as either land-based or sea-based. 4.1.

POEA Rules (2002) 5.

REGULATORY FNCTION OF POEA

POEA regulates the private sector participation in the recruitment and overseas placement of workers through its licensing ad registration system. 6.

ADJUDICATORY FUNCTIONS OF POEA

Before the passage of RA 8042, POEA had original and exclusive jurisdiction to hear and decide the ff cases: a.

Recruitment violation and related cases consisting of all preemployment cases which are administrative in character, involving or arising out of recruitment laws, rules and regulations, including money claims therefrom or violations of the conditions for issuance of license to recruit workers. b.

Employer-emploee relations cases consisting of all claims arising out of an employer-employee relationship or b virtue of any law or contract involving Filipino workers in overseas employment. c.

Disciplinary action cases consisting of all complaints against a contract worker for breach of discipline. 6.1.

Jurisdiction Transferred to NLRC

RA 8042 transferred to the NLRC the jurisdiction over employer-employee relations cases.

Section 10 of the said law provides that Labor Arbiters shall have the exclusive and original jurisdiction to hear and decide claims arising out of an employer-employee relationship or by virtue of any law or contract involving Filipino workers for overseas employment including claims for actual, moral, exemplary and other forms of damages.

RA 8042 not only transferred from POEA to NLRC the jurisdiction over money claims of OFWs, it even expanded the scope of such money claim. When the jurisdiction was still with the POEA, the jurisdiction covered only money claims involving Filipino workers for overseas employment. Now the NLRC jurisdiction is over money claim involving Filipino workers for overseas deployment.

RA 8042 allows for claims for money or damages sustained during the period of deployment or before departure for abroad. 6.2.

Jurisdiction Retained With POEA

POEA retains the jurisdiction to decide all cases which are administrative in character and disciplinary action cases. 6.3.

Compromise Agreement

RA 8042 allows also resolution by compromise. 6.4.

Mandatory Principle

Non-compliance with the periods provided for under the law will subject the responsible officials to penalties such as withholding of salaries until compliance, suspension, or dismissal from service. 7.

EMPLOYER-EMPLOYEE RELATIONS CASES: TERMINATION OF EMPLOYMENT 7.1.

Contractual Employees

Sea farers are contractual employees. (Millares and Lagda vs. NLRC) 7.2.

Premature Termination of Contract

Where the workers employment contract is terminated before its agreed termination date, and the termination is not shown to be based on lawful or valid grounds, the employer will be ordered to pay the workers their salaries corresponding to the unexpired portion of their employment contract. (Tierra Construction vs. NLRC) 7.3.

Pretermination Under R.A. No. 8042; July 15, 1995 Onward

The date of the employment termination is material. If it occurred on or after July 15, 1995, the law to apply is RA 8042.

Under Section 10, a worker dismissed from overseas employment without just, valid or authorized cause as defined by law or contract, is entitled to a full reimbursement of his placement fee with interest at 12% per annum, plus his salary for the unexpired portion of his employment contract or for 3 months for every year of the unexpired term, whichever is less. 8.

EMPLOYER-EMPLOYEE RELATIONS CASES: MONEY CLAIMS; EMPLOYERS NATIONALITY IMMATERIAL

Statutes and regulations do not limit the coverage to non-Filipino employers. Filipinos working overseas share the same risks and burdens whether their employers be Filipino or foreign.

8.1.

Death and Other Benefits, Basis of Compensation

The standard contract for employment for Filipino seamen allows the payment of death benefit pension, funeral benefit, and burial gratuity for the private respondent.

These claims arose from the responsibility of the foreign employer together with the local agency for the safety of the employee during his repatriation and until his arrival in this country, i.e. the point of hire. (Inter-Orient Maritime Enterprises vs. NLRC) 8.2.

Illustrative Case: Death Benefit Under the Standard Contract

In order to evade liability for death benefit under the standard contract, it must be sufficiently shown that the deaths of the seamen were caused by their own willful and deliberate act. In this case, the evidence does not substantially prove that the seamen contracted tetanus as a result of the unsanitary surgical procedures they performed on themselves. Hence, the death benefits under the employment contract must be paid. (NFD International Manning Agents vs. NLRC) 8.3.

Overseas Compensation Benefits in Dollars

While it is true that RA 529 makes it unlawful to require payment of domestic obligations in foreign currency, this particular statute is not applicable in the case at bar. The fixing of the award in dollars was based on the parties employment contract, stipulating that wages and benefits in dollars, since private respondent was engaged as an overseas seaman on board petitioners foreign vessel. (Philippine International Shipping Corp. vs. NLRC) 9.

DISCIPLINARY ACTION CASES

The POEA may motu propio undertake a disciplinary action against a worker for breach of discipline. It shall also establish a system of watching and blacklisting OCWs. 9.1.

Grounds for Disciplinary Action a.

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

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

Desertion or abandonment; d.

Gambling; e.

Initiating or joining a strike, where prohibited; f.

Creating trouble at the work site; g.

Embezzlement of company funds or other properties; h.

Theft or robbery; i.

Prostitution; j.

Vandalism; k.

Gunrunning or possession of deadly weapons; l.

Unjust refusal to depart for a worksite after all documents have been prepared; m.

Violations of the law and sacred practices of the host country and unjustified breach of the employment contract. 10.

OUTSIDE POEA JURISDICTION

The POEA has no jurisdiction to hear and decide a claim for enforcement of a foreign judgment. Such a claim must be brought before the regular courts. This is because the POEA is not a court, it is only an administrative agency. 10.1.

No Jurisdiction Over Torts

Intention must be to seek and claim protection under the Labor Code and not the Civil Code. In the case at bar, the items demanded are not labor benefits such as wages, overtime pay or separation pay, but are items claimed as natural consequences of his dismissal (which he denominates as damages.) POEA has no jurisdiction.

Article 18: BAN ON DIRECT-HIRING Article 19: OFFICE OF EMIGRANT AFFAIRS

COMMENTS

Direct hiring of Filipino workers by a foreign employer is not allowed except direct hiring by members of he diplomatic corps and others mentioned in this article. Also excepted are name hirees or those individual workers w ho are able to secure contracts for overseas employment on their own efforts and representations without the assistance or participation of any agency.

The Office of Emigrant Affairs has been abolished and its pertinent functions were transferred to the Commission on Filipinos Overseas (CFO) by Batasang Pambansa Blg. 79. Article 20: NATIONAL SEAMEN BOARD COMMENTS AND CASES 1.

NSB NOW POEA

EO 797 abolished the NSB and transferred its function to the POEA. But this adjudicatory function of the POEA has since been moved to the NLRC by RA 8042. 2.

ARTICLE 20 CONSTRUED; SEAMENS EMPLOYMENT CONTRACTS AND THE INTERNATIONAL TRANSPORT FEDERATION (ITF)

Wallem Shipping vs. Ministry of Labor: Seamen who were dismissed because they demanded that they be paid the worldwide rate, instead of the lower Far East rate as provided in their contracts of employment, did not commit serious misconduct as

to warrant their dismissal. They were only exercising their rights. Hence, dismissal was illegal.

Filipino seamen are admittedly as competent and reliable as seamen from any other country in the world; otherwise, there would not be so many of them in the vessels sailing in every ocean and sea on this globe. They are entitled to government protection when they ask for fair and decent treatment by their employers and when they exercise their right to petition for improved terms of employment, especially when they feel that these are substandard or are capable of improvement according to internationally accepted rules. Also, the standard forms embody the basic minimums which must be incorporated as parts of the employment contract. They are not collective bargaining agreements or immutable contracts which the parties cannot improve upon or modify in the course of the agreed peril of time. (Vir-jen Shipping vs. NLRC) 3.

INVALID SIDE AGREEMENT

An agreement that diminishes the employees *ay and benefits as contained in a POEA-approved contract is void , unless such subsequent agreement is approved by the POEA. 4.

DELAY IN FILING CLAIM

There is no absolute rule as to what constitute laches; each case is to be determined according to its particular circumstances. The question of laches is addressed to the sound discretion of the court and

since it is an equitable doctrine, its application is controlled by equitable considerations. It cannot be worked to defeat justice or perpetrate fraud or injustice.

Where the claim was filed within the three -year statutory period, recovery therefore cannot be barred by laches. Courts should never apply the doctrine of laches earlier than the expiration of time limited for the commencement of actions at law. (Imperial Victory Shipping vs. NLRC) 5.

MINIMUM EMPLOYMENT CONDITIONS a.

Guaranteed wages for regular working hours and overtime pay b.

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

Free food and accommodation, or offsetting benefit; d.

Just and authorized causes for termination of contract taking into consideration the customs and norms of the host country. 6.

FREEDOM TO STIPULATE

Parties are allowed to stipulate other terms and conditions and other benefits not provided under these minimum requirements, provided the whole employment package should be more beneficial to the worker than the minimum, and that the same not be contrary to law, public policy, and morals.

Article 21: FOREIGN SERVICE ROLE AND PARTICIPATION COMMENTS 1.

PROTECTION AND ASSISTANCE BY GOVERNMENT AGENCIES

RA 8042 assigns four government agencies to promote the welfare and protect the rights of migrant workers and, as far as practicable, of all overseas Filipinos: DFA, DOLE, POEA, and OWWA. 2.

THE RPM CENTER

Re-Placement and Monitoring Center

Serves as a promotion house for local employment of these returning workers and to tap their skills for national development. 3.

THE OWWA

Overseas Workers Welfare Administration

Intended to provide social and welfare services, including insurance coverage, legal assistance, placement assistance, and remittance services to OFWs.

Funded with contributions from the workers themselves and the fees and charges imposed by the POEA and BLE. 4.

REPATRIATION OF WORKERS

The primary responsibility to repatriate a worker, including his or her remains and personal effects, belongs to the principal or the agency that recruited or deployed the worker.

If the termination is due solely to the fault of the worker, the principal or agency may recover the cost of repatriation from the worker after return to the country.

If the principal of agency does not comply with this obligation, the POEA shall notify the OWWA to advance the repatriation cost with recourse to the agency or principal. Article 22: MANDATORY REMITTANCE OF FOREIGN EXCHANGE EARNINGS

COMMENTS REMMITTANCE Article 23: COMPOSITION OF THE BOARDS

COMMENTS 1.

COMPOSITION OF THE POEA Article 24: BOARDS TO ISSUE RULES AND COLLECT FEES Chapter II REGULATIONS OF RECRUITMENT AND PLACEMENT ACTIVITIES Article 25: PRIVATE SECTOR PARTICIPATION IN THE RECRUITMENT AND PLACEMENT OF WORKERS

COMMENTS AND CASES 1.

VALIDITY OF POEA REGULATIONS

Valid under the principle of subordinate legislation 1.1.

POEA Circular No. 11 (1983) Unenforceable

This circular has not yet been published or filed with the National Administrative Register, hence, cannot be used as a basis for the imposition of administrative sanctions. Article 26: TRAVEL AGENCIES PROHIBITED TO RECRUIT

COMMENTS

The POEA rules also disqualify persons with derogatory records such as those convicted for illegal recruitment or other crimes involving moral turpitude, an official or employee of DOLE, POEA, OWWA, DFA and other government agencies directly involved in the implementation of RA 8042 or any of their relatives within the fourth civil degree. Article 27: CITIZENSHIP REQUIREMENT Article 28: CAPITALIZATION

COMMENTS

The required capitalization, according to POEA rules, is a minimum of two million pesos in case of single proprietorship or partnership and a minimum paid-up capital of the same amount for a corporation. Article 29: NON-TRANSFERABILITY OF LICENSE OR AUTHORITY COMMENTS PLACE OF RECRUITMENT

Licensees or holders of authority or their duly-authorized representatives may, as a rule, undertake recruitment and placement activities only at their authorized official address.

Under existing regulations, however, they may be allowed to conduct provincial recruitment only upon written authority from the POEA.

Recruitment of workers for overseas employment cannot be lawfully undertaken on a house-to-house basis, in residences, or secluded places. Article 30: REGISTRATION FEES Article 31: BONDS

COMMENTS AND CASES

The POEA possesses the power to enforce liability under cash or surety bonds.

These are means of ensuring prompt and effective recourse against such companies when held liable for applicants and workers claims. (Finman General Assurance vs. Innocencio) Article 32: FEES TO BE PAID BY WORKER COMMENTS AND CASES 1.

CHARGEABLE FEES

Unless otherwise provided, the principal shall be liable to pay for the ff: a.

visa fee; b.

airfare; c.

POEA processing fee; and d.

OWWA membership fee.

A land-based agency may charge and collect from its hired workers a placement fee in an amount equivalent to one month salary, exclusive of documentation costs. These documentation costs shall include expenses for the ff: a.

Passport; b.

NBI/ Police/ Barangay clearance; c.

Authentication; d.

Birth Certificate; e.

Medicare; f.

Trade test, if necessary; g.

Inoculation, when required; h.

Medical Examination fees.

The abovementioned placement and documentation costs are the only authorized payments that may be collected from a hired worker. No other charges in whatever form, manner or purpose, shall be imposed on and be paid by the worker without prior approval by the POEA.

Such fees shall be collected from the hired worker only after he has obtained employment through the facilities of the recruitment agency. 2.

REFUND FEES

POEA has the power to order the refund of illegally collected fees. Article 33: REPORTS ON EMPLOYMENT STATUS Article 34: PROHIBITED PRACTICES COMMENTS AND CASES PROHBITED PRACTICES

Article 34(a) prohibits the charging or accepting of fees greater than that allowed by regulations. It is also a deterrant to loan sharks who lend money at usurious interests.

Article 34(b) includes the act of furnishing fake employment documents to a worker, and the act of publishing false notice or information in relation to recruitment or employment.

In Article 34(d), it is not necessary that the worker was actually induced or did quit the employment. Article 35: SUSPENSION AND/OR CANCELLATION OF LICENSE OR AUTHORITY COMMENTS AND CASES 1.

SUSPENSION OR CANCELLATION OF LICENSE

Jojo Baetiong, Gel Baniqued, Elvira Castro, Denise Dy, Sheryl Harina, Giselle Remulla 3B 2006-2007

Page 19 of 103

The grounds for imposition of administrative sanctions include engaging in acts of misrepresentation for the purpose of securing a license or renewal thereof, etc. The acts prohibited under Art. 34 are not just grounds for suspension or cancellation of license or authority. They likewise constitute illegal recruitment under RA 8042. 1.1.

Concurrent Jurisdiction to Suspend or Cancel a License

The SC has affirmed the concurrent jurisdiction of the DOLE Secretary and the POEA Administrator to suspend or cancel a license. 2.

PERSONS LIABLE; DURATION OF LIABILITY

A recruitment agency is solidarily liable for the unpaid salaries of a worker it recruited for employment with a foreign principal.

Even if the recruitment agency and the principal had already severed their agency agreement at the time the worker was injuredm the recruitment agency may still be sued for violation of the employment contract, if no notice of the agency agreements termination was given to the employee.

The responsibilities of the recruitment agency and the principal to the worker extends up to and until the expiration of the employment contracts of the employees recruited and employed pursuant to the said employment agreement. 3.

SOLIDARY LIABILITY ASSUMED BY RECRUITMENT AGENT

Contract contained a provision empowering the agency to sue and be sued jointly and solidarily with the foreign principal for any of the violations of the recruitment agreement and the contracts of employment. These contractual undertakings constitute the legal basis for private agencies being liable jointly and severally with its principal, for all claims filed by recruited workers which may arise in connection with the implementation of the service agreements or employment contracts. (Royal Crown Inernationale vs. NLRC) 3.1.

Required Undertaking by Agent 3.2.

Contract by Principal

It has been held that even if it was the petitioners principal which entered into a contract with the private respondent, nevertheless, petitioner, as the manning agent in the Philippines, is jointly and solidarily responsible with its principal. (Seagull Maritime Corp vs. Balatongan) 3.3.

Proper Party

A sister in the Philippines of a maltreated Filipino domestic helper in Abu Dhabi is a proper party to file a complaint. 4.

SUABILITY OF A FOREIGN CORPORATION WHICH HIRES FILIPINO WORKERS

A foreign corporation which, through unlicensed agents, recruits workers in the country may be sued in and found liable by Philippine court 5.

DEREGULATION AND PHASE OUT

RA 8042 envisions a phaseout of POEAs regulatory function so that the migration of workers will become strictly a matter between the worker and his employer. This projected deregulation has stirred some controversies which, to this day, continue to remain unresolved. Chapter III Miscellaneous Provisions

Art. 36 Regulatory Power The Secretary of Labor shall have the power to restrict and regulate the recruitment and placement activities of all agencies within the coverage of this Title and is hereby authorized to issue orders and promulgate rules and regulations to carry out the objectives and implement the provision of this Title. Art. 37 Visitorial Power The Secretary of Labor or his duly authorized representatives may, at any time, inspect the premises, books of accounts and records of any person or entity covered by this Title, require it to submit reports regularly on prescribed forms, and act on any violations of this Title. Art. 38 ILLEGAL RECRUITMENT 2

2 Amended by Republic Act 8042 or The Migrant Workers and Overseas Filipinos Act of 1995 As stated in the Code: (a) Any recruitment activities, including prohibited practices enumerated under Art. 34 of this Code, to be undertaken by non-licensees or non-holders of authority shall be deemed illegal and punishable under Art. 39 of this Code. The DOLE or any law enforcement officer may initiate complaints under this Article. (b) Illegal Recruitment, when committed by a syndicate or in large scale shall be considered an offense involving economic sabotage and shall be penalized in accordance with Art. 39 hereof. Illegal Recruitment is deemed committed by a syndicate if carried out by a group of three (3) or more persons conspiring and/or confederating with one another in carrying out any unlawful of illegal transaction, enterprise or scheme, defined under the first paragraph hereof. Illegal Recruitment is deemed committed in large scale if committed against three (3) or more persons individually or as a group. (c) The Secretary of Labor and Employment or his duly authorized representatives shall have the power to cause the arrest and detention of such non-licensee or nonholder of authority if after investigation it is determined that his activities constitute danger to national security and public order or will lead to further exploitation of job-seekers. The Minister shall order the search of the office or premises and seizure of documents, paraphernalia, properties and other implements used in illegal recruitment activities and the closure of companies, establishment and entities found to be engaged in the recruitment of workers for overseas employment without having been licensed or authorized to do so.

Now, under RA 8042, the abovementioned article has been amended to also include LICENSED or AUTHORIZED entities; the list of ACTS CONSIDERED AS ILLEGAL RECRUITMENT has also been EXPANDED as found in SECTION 6, RA 8042: Definition: xxx Illegal Recruitment shall mean any act of canvassing, enlisting, contracting, transporting, utilizing, hiring, or procuring workers and includes referring contract services, promising or advertising for employment abroad, whether for profit or not, when undertaken by a non-licensee or non-holder of authority as contemplated under the Labor Code; Provided, that any such non-licensee or non-holder who, in any manner, offers or promises for a fee employment abroad to two or more persons shall be deemed so engaged. It shall likewise include the following acts whether committed by any person, WHETHER A NON-LICENSEE, NON-HOLDER, LICENSEE OR HOLDER OF AUTHORITY: a.)

To change or accept directly or indirectly any amount greater than that specified in the schedule of allowable fees prescribed by the DOLE Secretary, or to make a worker pay any amount greater than that actually received by him as a loan or advance; b.)

To furnish of publish any false notice or information or document in relation to recruitment or employment; c.)

To give any false notice, testimony, information or document or commit any act of misrepresentation for the purpose of securing a license or authority under the Labor Code; d.)

To induce or attempt to induce a worker already employed to quit his employment in order to offer him another unless the transfer is designed to liberate a worker from oppressive terms and conditions of employment; e.)

To influence or attempt to influence any person or entity not to employ any worker who has not applied for employment through his agency; f.)

To engage in the recruitment or placement of workers in jobs harmful to public health or morality or to the dignity of the Republic of the Philippines; g.)

To obstruct or attempt to obstruct inspection by the DOLE Secretary or by his duly authorized representative; h.)

To fail to submit reports on the status of employment, placement vacancies, remittance of forex earnings, separation from jobs, departures and such other information as may be required by the DOLE Secretary; i.)

To substitute or alter to the prejudice of the worker, employment contracts approved and verified by the DOLE from the time of the actual signing thereof by the parties up to and including the period of the expiration of the same without the approval of the DOLE; j.)

For an officer or agent of a recruitment or placement agency to become an officer or member of the Board of any corporation engaged in travel agency or to be engaged directly

or indirectly in the management of a travel agency; k.)

To withhold or deny travel documents from applicant workers before departure for monetary or financial considerations other than those authorized under the provisions of the Labor Code and its IRRs; l.)

Failure to actually deploy without valid reason as determined by the DOLE; m.)

Failure to reimburse expenses incurred by the worker in connection with his documentation and processing for purposes of deployment, in cases where the deployment does not actually take place without the workers fault. Illegal Recruitment when committed by a syndicate or in large scale shall be considered an offense involving economic sabotage. Illegal Recruitment is deemed committed by a syndicate if carried out by a group of three (3) or more persons conspiring and/or confederating with one another. It is deemed committed in large scale if committed against three (3) or more persons individually or as a group.

Persons Liable: Principals, Accomplices, and Accessories; for Juridical Persons: the officers HAVING CONTROL, MANAGEMENT, OR DIRECTION of their business

General Rule: Employees who have no control, do not manage nor direct the business may not be held liable; UNLESS, it is shown that such employees ACTIVELY AND CONSCIOUSLY PARTICIPATED in the illegal recruitment

LACK OF RECEIPTS: will not defeat the purpose of criminal prosecution AS LONG AS THE WITNESSES CAN POSITIVELY SHOW THROUGH THEIR RESPECTIVE TESTIMONIES that the accused was the one involved in the prohibited recruitment; credible testimonies suffice

ECONOMIC SABOTAGE: IR committed by syndicate and IR committed in large scale; each is an independent and separate category that can stand on their own and need not coincide or concur within the same case

ESTAFA: CONVICTION for Illegal Recruitment is not a bar for filing suit against such person for ESTAFA under the RPC as long as the requisites for said felony are present

THE POWER TO ISSUE SEARCH AND ARREST WARRANTS AS FOUND IN ART. 38 (C) DEEMED UNCONSTITUTIONAL see Salazar v. Achacoso and Marquez, G.R. No. 81510, March 14, 1990 -

under the Constitution (Art. III, Sec. 2, 1987 Constitution) only a judge may issue a warrant of arrest or a search warrant -

the Secretary of Labor is not a judge hence is no longer granted the power to issues said warrants. Authorities must now undergo judicial process -

Exception: Deportation or Illegal and Undesirable Aliens Cases

the President or the Commissioner of Immigration may order arrested following a final order of deportation for the purpose of deportation

SUBJECT TO ARREST: Illegal Recruiters are still subject to arrest, upon compliance with the procedure as provided for by law namely through a warrant of arrest issued by a judge of an RTC where a criminal information was filed after preliminary investigation; also RULES ON WARRANTLESS ARRESTS under Rule 113, Section 5 of the ROC may still apply to illegal recruiters when they fall under the circumstances enumerated therein; WARRANTLESS SEARCHES: INCIDENTAL to lawful arrest; PLAIN VIEW; with INDIVIDUALS CONSENT

CLOSURE ORDER: DOLE Secretary or his duly authorized representative still has power or authority to issue and order closure of illegal recruitment establishes, this being an ADMINISTRATIVE and REGULATORY action; Issuance after an ex parte preliminary examination to determine whether the activities of a non-licensee

constitute a danger to national security and public order or will lead to further exploitation of job seekers

PROCEDURE FOR CLOSURE: Rules Secs. 14 27; these cover the POEAs Anti -Illegal Recruitment Programs; Provision for Legal Assistance; Complaints Desk; Surveillance; Issuance of Closure Order; Implementation of Closure Order; Report on CO, Institution of Criminal Action; Motion to Lift CO; Who may file such Motion; Grounds for Lifting or Re-opening; Appeal and Re-padlocking of Office

Art. 39 - PENALTIES 3

(A)

The penalty of life imprisonment and a fine of One Hundred Thousand Pesos (P100,000) shall be imposed if illegal recruitment constitutes economic sabotage as defined herein; (B)

Any licensee or holder of authority found violating or causing another to violate any provision of this Title or its implementing rules and regulations shall upon conviction thereof, suffer the penalty of imprisonment of not less than two years nor more than five years or a fine not less than P10,000 nor more than P50,000, or both such imprisonment and fine, at the discretion of the court; (C)

Any person who is neither a licensee nor a holder of authority under this Title found violating any provision thereof or its IRRS shall, upon conviction thereof, suffer the penalty of imprisonment of not

3 Amended by RA 8042, Section 7 less than four years nor more than eight years or a fine not less than P20,000 nor more than P100,000 or both such imprisonment and fine, at the discretion of the court; (D)

If the offender is a corporation, partnership, association, or entity, the penalty shall be imposed upon the officer or officers of the corporation, partnership, association, or entity responsible for the violation, and if such officer is an alien, he shall, in addition to the penalties herein prescribed, be deported without further proceedings; (E)

In every case, conviction shall cause and carry the automatic revocation of the license or authority and all the permits and privileges granted to such person or entity under this Title, and the forfeiture of the cash and surety bonds in favor of the Overseas Employment Board or the National Seamen Board, as the case may be, both of which are authorized to use the same exclusively to promote their objectives.

Section 7, RA 8042 provides: Any person found guilty of IR shall suffer the penalty of IMPRISONMENT of NOT LESS THAN SIX (6) YEARS AND ONE (1) DAY BUT NOT MORE THA TWELVE (12) YEARS and A FINE OF NOT LESS THAN TWO HUNDRED THOUSAND PESOS (P200,000.00) NOR MORE THAN FIVE HUNDRED THOUSAND PESOS (P500,000.00 The penalty of LIFE IMPRISONMENT and a FINE NOT LESS THAN FIVE HUNDRED THOUSAND PESOS (P500,000.00) NOR MORE THAN ONE MILLION PESOS (P1,000,000.00) shall be imposed if IR CONSTITUTES ECONOMIC SABOTAGE Provided however, That the MAXIMUM PENALTY shall be imposed if the PERSON ILLEGALLY RECRUITED is LESS THAN 18 YEARS OF AGE or committed by a nonlicensee or non-holder of authority.

VENUE (Sec. 9, RA 8042): Criminal Action arising from IR shall be filed with the REGIONAL TRIAL COURT of the province or city WHERE THE OFFENDED PARTY ACTUALLY RESIDES AT THE TIME OF THE COMMISSION OF THE OFFENSE

MANDATORY PERIODS for Resolution of IR cases (Sec. 11, RA 8042): terminate within 30 days from date of filing: preliminary investigation; file information within 24 hours from termination of investigation; file information within 48 hours from the date of receipt of case records if preliminary investigation conducted by judge and prima facie case is established

PRESCRIPTIVE PERIODS (Sec. 12, RA 8042): General IR: five (5) years; IR involving Economic Sabotage: twenty (20) years

TITLE II

 EMPLOYMENT OF NON-RESIDENT ALIENS Art. 40 EMPLOYMENT PERMIT OF NON-RESIDENT ALIENS Any alien seeking admission to the Philippines for employment purposes and any domestic or foreign employer who desires to engage an alien for employment in the Philippines shall obtain an employment permit from the DOLE. The employment permit may be issued to a non-resident alien or to the applicant employer after a determination of non-availability of a person in the Philippines who is competent, able and willing at the time of the application to perform the services for which the alien is desired. For an enterprise registered in preferred areas of investments, said employment permit may be issued upon recommendation of the government agency charged with the supervision of said registered enterprise. Art. 41

Prohibition against transfer of employment (a)

After the issuance of the employment permit, the alien shall not transfer to another job or change his employer without prior approval from the Secretary of DOLE (b)

Any non-resident alien who shall take up employment in violation of provision of this Title

Jojo Baetiong, Gel Baniqued, Elvira Castro, Denise Dy, Sheryl Harina, Giselle Remulla 3B 2006-2007

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and its IRRs shall be punished in accordance with Arts. 289 4 and 290 of the Labor Code. In addition, the alien worker shall be subject to deportation after service of his sentence.

RESIDENT ALIENS: NOT required to have employment permits; instead, they need an ALIEN EMPLOYMENY REGISTRATION CARD (AERC)

NATIONALIZED INDUSTRIES and the ANTI-DUMMY LAW (C.A. no. 108 as amended by PD715) Foreigners may not be employed in certain nationalized industries; law provides and subjects reservation of ownership and control of such corporations to the 60% requirement, i.e. public utility, natural resources; financing companies; however, media and advertising requires 100% Filipino ownership and management (Consti)

DOJ OPINION 143, series 1976: provides instances when aliens may be allowed to engage in employment within nationalized industries: a.) where the DOJ Secretary specifically authorizes the employment of foreign technical personnel, or, b.) where the aliens are elected members of the Board of Directors or governing body of corporations or associations in proportion to their allowable participation in the capital of such entities

Re-check Codal; di nag-ma-match numbers e; Book 7: Title 1: Penal Provisions and Liabilities; 288 (Penalties) - 289 (Liable Officers of Juridical Person); Title 2: Prescription; 290: Offenses: 3 years

DEPARTMENT ORDER no. 12, SERIES 2001: Omnibus Guidelines for the Issuance of Employment Permits to Foreign Nationals; the following are required to apply for an Alien Employment Permit (AEP): 1.)

All foreign nationals seeking admission to the Philippines for the purpose of employment; 2.)

Missionaries or religious workers who intend to engage in gainful employment; 3.)

Holders of Special Investors Resident Visa (SIRV), Special Retirees Resident Visa (SRRV), Treaty Trades Visa, or Special Non-Immigration Visa, who occupy any advisory, supervisory, or technical position in any establishment; 4.)

Agencies, organizations, or individuals whether public or private, who secure the services of foreign professional to practice their professions in the Philippines under reciprocity and international agreements; 5.)

Non-Indo Chinese Refugees who are asylum seekers and given refugee status by the UN High Commissioner on Refugees (UNHCR) of the DOJ under the DOJ Department Order no. 49, 1998. 6.)

Resident foreign Nationals seeking employment in the Philippines (see D.O. no. 2102 which suspends until further notice the requirement for Resident Foreign Nationals to secure AEP)

D.O. 12-01 further, EXEMPTS the following from AEP requirements: 1.)

All members of the diplomatic services and foreign government officials accredited by the Philippine Government; 2.)

Officers and staff of the international organizations of which the Philippine government is a cooperating member, and their legitimate spouses desiring to work in the Philippines; 3.)

Foreign nationals elected as members of the Governing Board who do not occupy any other position, but have only voting rights in the corporation, and 4.)

All foreign nationals granted exemption by special laws and all other laws that may be promulgated by Congress

Basis for issuing AEP: a.)

Compliance by the applicant employer or the foreign national with the substantive and documentary requirements; b.)

Determination of the DOLE Secretary that there is no Filipino national who is competent, able and willing to do the job for which the services of the applicant is desired; c.)

Assessment of the DOLE Secretary that the employment of the Foreign national will redound to national benefit. -

Understudy Program is no longer required for the issuance of AEP -

G.R. Validity of AEP is for ONE YEAR unless the employment contract, consultancy services, or other modes of engagement or term of office for elective officers, provides for a longer period; -

RENEWAL OF AEP: application must be filed at least 15 days before its expiration; -

EFFECTIVITY OF RENEWAL: one day after the expiration of previous permit; regardless of whether or not the renewal is granted before or after the expiration of the previous permit;

GENERAL RULE: PERMITS VALID ONLY FOR THE POSITION AND EMPLOYER FOR WHICH THEY WERE ISSUED; except in cases of holders of MULTIPLE POSITIONS IN ONE CORPORATION Art. 42 Submission of List Any employer employing non-resident foreign nationals on the effective date of this Code, shall submit a list of such nationals to the Secretary of Labor within thirty (30) days after such date indicating their names, citizenship, foreign and local addresses, nature of employment and status of stay in the country. The Secretary of Labor shall then determine if they are entitled to an employment permit.