Book I. PRE-EMPLOYMENT OF WORKERS Title I.

Question 1

What is recruitment and placement?

Answer 1

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

Question 2

Which office is primarily tasked to engage in recruitment and placement of workers?

Answer 2

• Public employment offices

Question 3

Which other offices are authorized recruitment and placement entities as an exemption to Art 16?

Answer 3

• Public employment offices
• Private employment agencies
• Shipping or manning agents or representatives
• the POEA
• construction contractors if authorized to operate by DOLE and the Construction Industry Authority
• members of the diplomatic corps although hirings done by them have to be processed by the POEA
• other persons or entities as may be authorized by the DOLE secretary
• name hires

Question 4

What are the two types of OFWs as classified by DOLE?

Answer 4

• Land-based or sea-based

Question 5

What guarantees of the receiving country are required by the POEA for the protection of OFWs?

Answer 5

The receiving country must have
- Existing labor and social laws for the protection of workers including migrant workers
- It is signatory to multilateral conventions or declarations protecting workers including migrant workers
- it has a bilateral agreement with the Philippines

Question 6

May the POEA impose a ban on deployment of workers?

Answer 6

• Yes, after consultation with DFA.

Question 7

Which office has jurisdiction to hear and decide employment-related cases?

Answer 7

• The NLRC

Question 8

Which jurisdiction is retained in the POEA?

Answer 8

• All cases which are administrative in character (violations of rules and regulations relating to licensing and registration)
• Disciplinary action cases which are administrative in character

Question 9

What are grounds for disciplinary action?

Answer 9

Per Section 145 of the 2016 POEA Rules: (FUCPEUV)
1. Submission of false information or documents
2. Unjustified refusal to continue application after signing an employment contract
3. Commission of a felony punishable by Philippine laws or of the host country
4. Possession or use of prohibited drugs
5. Embezzlement of company funds
6. Unjust refusal to depart for the worksite
7. Violation of laws and cultural practices

Question 10

Where may a POEA decision be appealed?

Answer 10

POEA 2016 Rules and Regulations:
The Office of the DOLE Secretary shall have exclusive jurisdiction to act on appeals cases decided by the Administration (POEA)

Question 11

What is the general rule on direct hiring?

Answer 11

Article 18. BAN ON DIRECT HIRING:
No employer may hire a Filipino worker for overseas employment except through the Boards and entities authorized by the DOLE. Direct hiring by members of the diplomatic corps, international organizations and such other employers as may be allowed by the Department of Labor and Employment is exempted from this provision.

Question 12

What are the exceptions to the prohibition against direct hiring?

Answer 12

• Diplomatic corps
• International organizations
• Such other employers as may be allowed by the DOLE
• Name hires

Question 13

What are name hires?

Answer 13

• Those individual workers who are able to secure contracts for overseas employment on their own efforts and representation without the assistance or participation of any agency
• Contracted workers

Question 14

If there is dispute in contracts involving different countries or nationalities, how is this resolved?

Answer 14

• Such jurisdiction as may be stipulated by the parties
• Lex loci laboris
• Lex loci contractus

Question 15

What is the principle of lex loci laboris?

Answer 15

• If the parties fail to select the law to be applied, the law of the country with which the contract is most closely connected will apply. It may be the law of the country where the employee habitually carries out his work.

Question 16

What is the principle of lex loci contractus?

Answer 16

• Employees are not stripped of their security of tenure when they move to work in a different jurisdiction. With respect to the rights of the overseas Filipino workers, we follow the principle of lex loci contractus (the law of the place where the contract is made) governs in this jurisdiction. There is no question that the contract of employment in this case was perfected here in the Philippines. Therefore the Labor Code, its IRR and other laws affecting labor apply in this case. (Sameer vs. Cabiles)

Question 17

What is the POEA SEC?

Answer 17

• The POEA Standard Employment Contract (SEC) provides for the minimum requirements acceptable to the Government before it approves the deployment of the Filipino seafarers. (Maunlad Trans Inc vs Camoral)
• The provisions of the POEA SEC are mandated to be integrated in every Filipino seafarer’s contract. (Phil-man Marine Agency vs Dedace)

Question 18

What are the minimum provisions of OFWs’ employment contracts?

Answer 18

1. Complete name and address of employer
2. Position and jobsite of the OFW
3. Basic monthly salary which should not be lower than prescribed minimum wage of host country or NCR whichever is higher
4. Food and accommodation or monetary equivalent
5. Commencement and duration contract
6. Free transportation from and back to the point of hire
7. Regular work hours and day off
8. Overtime pay for services rendered
9. Vacation and sick leave
10. Free emergency medical and dental treatment
11. Just/valid/authorized causes for termination
12. Settlement of disputes
13. Repatriation of worker in case of imminent danger such as war or calamity
14. In case of death/repatriation of OFWs human remains and personal belonging

Question 19

What is the principle of freedom to stipulate?

Answer 19

• Parties to overseas employment contracts are allowed to stipulate other terms and conditions and benefits but these benefits should be over and above the minimum requirements. Said benefits shall not be contrary to law, morals and public policy.

Question 20

What are the disability benefits for injury or illness?

Answer 20

• Sick allowance equivalent to his basic wage until he is declared fit to work (must not exceed 120 days)
• Full cost of repatriation in the event that the OFW is declared 1) fit for repatriation, 2) fit to work but the employer is unable to find work for OFW despite efforts

Question 21

Within how many years should an OFW’s money claim be filed?

Answer 21

• Three years to file money claims arising from employer-employee relations

Question 22

Does the laches doctrine apply to labor cases?

Answer 22

• Note: Laches is defined as the failure or neglect for an unreasonable and unexplained length of time to do that which, by exercising due diligence, could or should have been done earlier, thus giving rise to a presumption that the party entitled to assert it either has abandoned or declined to assert it.
• In the case of Chavez, who filed her claim within the prescriptive peiord for the filing of money claims under the Labor Code, the doctrine of laches was held inapplicable.
• “Thus, where the claim was filed within the three-year statutory period, recovery therefor cannot be barred by laches. Courts should never apply the doctrine of laches earlier than the expiration of time limited for the commencement of actions at law.”(Imperial Victory Shipping Agency vs NLRC)

Question 23

What is employment-at-will?

Answer 23

• It is a contract of employment that may be terminated with or without cause

Question 24

Is employment-at-will valid?

Answer 24

• Yes, if freely and expressly stipulated in writing between the foreign employer and the OFW provided that the termination is in good faith
• The contract of employment signed by the OFW is first and foremost a contract which has the force of law between the parties as long as the stipulations are not contrary to law, morals, public order and public policy. We had occasion to rule that stipulations providing that either party may terminate a contract even without cause are legitimate if exercised in good faith. Thus while either party has the right to terminate the contract at will, it cannot act purposely to injure the other. (GBMLT Manpower vs Malinao)

Question 25

If the employment (not EAW) is terminated without valid cause, what relief is the OFW entitled to?

Answer 25

1) Full reimbursement of placement fee with 12% interest per annum
2) Salaries for the unexpired portion of his employment contract

Question 26

Is employment-at-will valid for local employment?

Answer 26

• No. a job is a property right and cannot be terminated at without valid cause (security of tenure under the constitution)

Question 27

What is the role of the Department of Foreign Affairs?

Answer 27

• take priority action or make representation with the foreign authority concerned to protect the rights of migrant workers and other overseas Filipinos
• and extend immediate assistance including the repatriation of distressed or beleaguered migrant workers and other overseas Filipinos

Question 28

What is the role of the Department of Labor and Employment?

Answer 28

• shall see to it that labor and social welfare laws in the foreign countries are fairly applied to migrant workers and whenever applicable, to other overseas Filipinos
• grant of legal assistance
• referral to proper medical centers or hospitals

Question 29

What is the role of the Philippine Overseas Employment Administration?

Answer 29

• regulate private sector participation in the recruitment and overseas placement of workers by setting up a licensing and registration system
• formulate and implement a system for promoting and monitoring the overseas employment of Filipino workers taking into consideration their welfare and the domestic manpower requirements.

Question 30

What is the role of the Overseas Workers Welfare Administration?

Answer 30

• provide the Filipino migrant worker and his family all the assistance they may need in the enforcement of contractual obligations by agencies or entities and/or their principals

Question 31

What is the purpose of the RPM Center?

Answer 31

• To serve as a promotion house for local employment of returning workers
• develop livelihood programs for the returning workers and
• formulate a computer-based information system on skilled Filipino migrant workers

Question 32

Who shall be responsible for the cost of repatriation of the worker and the transport of his personal belongings?

Answer 32

Repatriation in general- The principal and/or the local agency

Repatriation in case of death-The principal and/or the local agency

Repatriation due to worker’s fault- Worker

Repatriation in case of disaster - The principal and/or the local agency/ OWWA

Repatriation of underage worker - Labor officers in the foreign service to be refunded by the responsible recruitment/manning agency

Question 33

Is the remittance of foreign exchange earnings of the OFW mandatory?

Answer 33

ART. 22. MANDATORY REMITTANCE OF FOREIGN EXCHANGE EARNINGS
It shall be mandatory for all Filipino workers abroad to remit a portion of their foreign exchange earnings to their families, dependents, and/or beneficiaries in the country in accordance with rules and regulations prescribed by the Secretary of Labor and Employment.

Question 34

How much is the prescribed remittance?

Answer 34

• 50-80% of the basic salary depending on the worker’s kind of job (EO No. 857)