For Midterm Exam Flashcards
Article 3 ___ OF ___ ___
DECLARATION OF BASIC POLICY
The State shall: (APERA)
1. Afford protection to labor;
2. Promote full employment;
3. Ensure equal work opportunities regardless of age, sex or creed;
4. Regulate the relations between workers and employers; and
5. Assure the right of workers to: (JSSC)
a. Just and humane conditions of work
b. Self-organization
c. Security of tenure; and
d. Collective bargaining.
- It is a ___ ___ aimed at a ___ ___ between ___ to ___ and ___ ___ to ___
- The protection of the ___ ___ ___ cannot justify disregard of ___ ___ in the ___ of the ___ and ___ ___ in order to arrive at a ___ in favor of an ___ (_ _ _ _ _ _ _ _ _ _ - _ _ _ _ _ _ _ _, _ _ _ vs. _ _ _ _, _ _ _ - _ _ _ _ - _ _ _)
Article 3
- It is a shared responsibility aimed at a constitutional balance between protection to labor and prevent oppression to capital
- The protection of the rights of workers cannot justify disregard of relevant facts in the construction of the text and applicable rules in order to arrive at a disposition in favor of an employee (Philippine Airlines, Inc vs. NLRC, 201 SCRA 687)
Article 4 : ___ IN ___ OF ___
• ___ in favor of ___ IF THERE IS A ___ as to the meaning of the ___ and ___ ___. If the ___ is ___ and ___, it must be ___ ___ ___ with its ___ ___ (_ _ _ _ _ _ _ v. _ _ _ , GR No. _ _ _ _ , _ _ _ _ - _ _, _ _ _ _)
• HOWEVER, ___ ___ ___ ___ should be ___ in favor of ___. The ___ also recognizes that ___ has ___ which are also ___ to ___ and ___ of ___ of ___ ___ ( _ -. _ _ _’s _ _ _ _ _ _ _ - _ _ _ _ _ _ - _ _ _ _ _ _ _ _’s - _ _ _ _ _ _ _ _ _ _ _ vs. _ _ _ _, GR No. _ _ _ _ _ _, _ _ _ _ _ - _, _ _ _ _).
Article 4 : CONSTRUCTION IN FAVOR OF LABOR
• Construed in favor of labor IF THERE IS A DOUBT as to the meaning of the legal and contractual provision. If the provision is clear and unambiguous, it must be applied in accordance with its express terms (Meralco v. NLRC, GR No. 78763, July 12, 1989)
• HOWEVER, not all labor disputes should be resolved in favor of labor. The law also recognizes that management has rights which are also entitled to respect and enforcement of interest of fair play (St. Luke’s Medical Center Employee’s Association vs. NLRC, GR No. 162053, March 7, 2007).
(Under what article?)
Reasons for Affording Greater Protection to Employees
- There is a ___ ___ than ___ for ___;
- ___ ___ with the ___ that those who have ___ ___ ___ should have ___ ___ ___; and
- The ___ for ___ by ___ comes from ___, and even ___ ___ (_ _ _ _ _ _ _ v. _ _ _ _ _ - _ _ _ _ _ - _ _ _ _ _ _ _ _ _ _ _ _ - _ _ _., GR No. _ - _ _ _ _, _ _ _ _ _ _ _ - _ _, _ _ _ _)
(Article 4)
- There is a greater supply than demand for labor;
- In accordance with the doctrine that those who have less in life should have more in law; and
- The need for employment by labor comes from vital, and even desperate necessity (Sanchez v. Harry Lyons Construction Inc., GR No. L-2779, October 18, 1950)
(Under what article?)
Extent of Protection to Labor
to an ___, who is ___ either ___ ___ ___ or ___ ___ ___ ___ or their ___ ___.
(Article 4)
to an employee, who is abused either by the employer or by the union leadership or their respective representatives.
(Under what article?)
Management Rights
• Under the ___ of ___ ___, every ___ has the ___ ___ to ___ according to ___ ___ ___ and ___ all ___ of ___, including ___ ___ ___, ___ ___, the ___, ___ and ___ of ___, ___ ___, ___ of ___, ___-___ of ___, and ___, ___ and ___ of ___ (_ _ _ _ _ - _ _ _ _ of _ _ _ _ _ _ _ _ v. _ _ _ _ _, GR No. _ _ _ _ _ _, _ _ _ _ _ _ _ _ - _ _, _ _ _ _).
(Article 4)
Under the doctrine of management prerogative, every employer has the inherent right to regulate according to his own discretion and judgement all aspects of employment, including hiring work assignments, working methods, the time, place and manner of work, work supervision, transfer of employees, lay-off of workers, and discipline, dismissal and recall of employees (Rural Bank of Cantilan v. Julve, GR No. 169750, February 27, 2007).
(Under what article?) The \_\_\_ has the \_\_\_ to (CPSTR) 1. \_\_\_ \_\_\_; 2. \_\_\_ \_\_\_; 3. \_\_\_ and \_\_\_ \_\_\_; 4. \_\_\_ or \_\_\_ \_\_\_; and 5. \_\_\_ of \_\_\_ and \_\_\_ of \_\_\_.
(Article 4) The employer has the right to (CPSTR) 1. Conduct business; 2. Prescribe rules; 3. Select and hire employees; 4. Transfer or discharge employees; and 5. Return of investment and expansion of business.
(Under what article?)
• ___ ___, however, are ___ to ___ ___ by (1) ___, (2) ___ or ___ ___ ___, and (3) ___ ___ of ___ ___ and ___ (_ _ _ _ _ _ _ v. _ _ _ _ _ - _ _ _ _ of _ _ _ _ _ _, GR No. _ _ _ _ _ _, _ _ _ _ - _, _ _ _ _).
(Article 4)
• Management prerogatives, however, are subject to limitations provided by (1) law, (2) contract or collective bargaining agreements, and (3) general principles of fair play and justice (Mendoza v. Rural bank of Lucban, GR No. 155421, July 7, 2004).
Article 5: ___ AND ___
- The ___ and ___ issued by the ___ of ___ and ___ (___) shall become ___ ___ ___ AFTER ___ of their ___ in ___ of ___ ___. Sec.___ [] and Sec. ___ of the ___ ___ ___ of _ _ _ _ also require ___ of ___ () ___ ___ of the ___ ___ and ___ with the ___ ___ ___.
- ___ ___ and ___ must be ___ if their ___ is to ___ or ___ ___ ___ ___ to a ___ ___ (_ _ _ _ _ _ v. _ _ _ _ _ _ GR No. _ _ _ _ _ _, _ _ _ _ _ - _ _, _ _ _ _ , _ _ _ _ _ _ - _ _ _ ‘ _. _ _ _ _ _ _ _ _ _ v. _ _ _. of _ _ _ _ _, GR No. _ _ _ _ _ _, _ _ _ _ _ - _, _ _ _ _).
RULES AND REGULATIONS
• The rules and regulations issued by the Department of Labor and Employment (DOLE) shall become effective 15 DAYS AFTER announcement of their adoption in newspapers of general circulation. Sec.3 [1] and Sec. 4of the Revised Administrative Code of 1987 also require filing of three (3) certified copies of the administrative rules and regulations with the UP Law Center.
• Administrative rules and regulations must be published if their purpose is to enforce or implement existing law pursuant to a vaild delegation (Tañada v. Tuvera GR No. L63915, April 14, 1985, Philsa Int’l. Placement v. Sec. of Labor, GR No. 103144, April 4, 2001).
Article 6: ___
___ ___: The ___ applies to ___, whether ___ or ___-___, including ___, IN A ___ ___ ___ UNDER THE ___ ___ (See discussion under Art. _ _ _).
APPLICABILITY
General Rule: The Code applies to all workers, whether agricultural or non-agricultural, including employees, IN A GOVERNMENT CORPORATION INCORPORATED UNDER THE CORPORATION CODE (See discussion under Art. 244).
(Under what article?)
Exceptions:
1. ___ ___;
2. ___ of ___ ___ ___ by ___ or ___ ___ (Juco v. NLRC, GR No. 108813, August 18, 1997);
3. ___ ___ (JUSMAG-Philippines v. NLRC, GR No 108813, December 15, 1994);
4. ___ ___ (Lasco v. UNRFNRE, GR Nos: 109095 – 109107, February 23, 1995), ___ of ___ or ___ ___ (SEAFDEC-AQD v. NLRC, GR No. 86773, February 14, 1992);
5. ___ ___ / ___-___ ___ which fall under PD _ _ - and now fall under the ___ of the ___ ___ ___ to the ___ ___ ___ (Nacpil v. IBC, GR No. 144767, March 21, 2002); and,
6. ___ ___ ___ (Tanjay Water District v. Gabaton, GR Nos. 63742 and 84300, April 17, 1989) except where ___ ___ is ___ (Zamboanga City Water District v. Buat, GR No. 104389, May 27, 1994).
(Article 6)
- Government employees;
- Employees of government corporations created by special or original charter (Juco v. NLRC, GR No. 108813, August 18, 1997);
- Foreign governments (JUSMAG-Philippines v. NLRC, GR No 108813, December 15, 1994);
- International Agencies (Lasco v. UNRFNRE, GR Nos: 109095 – 109107, February 23, 1995), employees of intergovernmental or international organizations (SEAFDEC-AQD v. NLRC, GR No. 86773, February 14, 1992);
- Corporate officers / Intra-corporate disputes which fall under PD 902-A and now fall under the jurisdiction of the Regular Courts pursuant to the Securities Regulation Code (Nacpil v. IBC, GR No. 144767, March 21, 2002); and,
- Local water districts (Tanjay Water District v. Gabaton, GR Nos. 63742 and 84300, April 17, 1989) except where NLRC jurisdiction is invoked (Zamboanga City Water District v. Buat, GR No. 104389, May 27, 1994).
(Under what article?)
Agricultural or Farm worker – one ___ in an ___ or ___ ___ and ___ to ___ ___ which are ___ ___ to the ___ ___ of the ___, such as ___ and ___ of the ___, ___, ___ and ___ of ___ ___ and ___ ___, the ___ of ___ or ___, and any activity ___ by a ___ as an ___ to or in ___ with such ___ ___.
There may be, in one ___, both ___ as well as ___ ___.
(Article 6)
Agricultural or Farm worker – one employed in an agricultural or farm enterprise and assigned to perform tasks which are directly related to the agricultural activities of the employer, such as cultivation and tillage of the soil, dairying, growing and harvesting of any agricultural and horticultural commodities, the raising of livestock or poultry, and any activity performed by a farmer as an incident to or in conjunction with such farming operations.
There may be, in one employer, both agricultural as well as industrial workers.
(Under what article?)
Note: The ___ ___ applies ___ or ___ ___ ___ between the ___, depending on the kind of ___ ___. The ___ or ___ of ___-___ ___ is itself a ___ ___ ___ (Azucena, 2007).
(Article 6)
Note: The Labor Code applies with or without employment relationship between the disputants, depending on the kind of issue involved. The presence or absence of employer-employee relationship is itself a labor law question (Azucena, 2007).
CHAPTER II, ___ OF ___ (P.D. _ _ AS AMENDED BY R.A. _ _ _ _ – ___ ___ ___ ___ A.K.A. _ _ _ _)
1. Article _ _, Sec. _ _
The ___ shall ___ ___ ___ ___ and ___ ___.
CHAPTER II, EMANCIPATION OF TENANTS (P.D. 27 AS AMENDED BY R.A. 6657 – COMPREHENSIVE AGRARIAN REFORM LAW A.K.A. CARL)
1. Article II, Sec. 21
The State shall promote comprehensive rural development and agrarian reform.
- Article _ _ _ _, Sec. _
The ___ shall, by ___, undertake an ___ ___ ___ founded on the ___ of ___ and ___ ___, who are ___, to ___ ___ or ___ the ___ they ___ or in the ___ of other ___, to receive a ___ ___ of the ___ there of. To this ___, the ___ shall ___ and ___ the ___ ___ of all ___ ___, subject to such ___ and ___ ___ ___ as the ___ may ___, taking into account ___, ___, or ___ ___, and subject to the ___ of ___ ___. In ___ ___ ___, the ___ shall ___ the ___ of ___ ___. The ___ shall further ___ ___ for ___ ___-___.
- Article XIII, Sec. 4
The State shall, by law, undertake an agrarian reform program founded on the right of farmers and regular farmworkers, who are landless, to own directly or collectively the lands they till or in the case of other farmworkers, to receive a just share of the fruits there of. To this end, the State shall encourage and undertake the just distribution of all agricultural lands, subject to such priorities and reasonable retention limits as the Congress may prescribe, taking into account ecological, developmental, or equity considerations, and subject to the payment of just compensation. In determining retention limits, the State shall respect the rights of small landowners. The State shall further provide incentives for voluntary land-sharing.
(Under what?)
Note: ___ ___ has been ___ by R.A. _ _ _ _, as amended by R.A. _ _ _ _, for being ___ to ___ ___, ___ in its stead a ___ ___. It ___ the ___ towards the ___ ___ of ___ by its ___. Under Article _, the ___ ___ by ___ ___ ___ must be:
- ___ ___ ___;
- ___;
- ___ ___ to ___ and/or ___; and,
- ___ than ___ ___ in ___.
(PD 27 as ammended by RA 6657 - CARL)
Note: Share tenancy has been abolished by R.A. 3844, as amended by R.A. 6389, for being contrary to public policy, placing in its stead a leasehold system. It marked the movement towards the eventual ownership of land by its tiller. Under Article 8, the land covered by operation land transfer must be:
- Private agricultural land;
- Tenanted;
- Primarily devoted to rice and/or corn; and,
- More than seven hectares in area.
P.D. 27 v. CARL (R.A. 6657)
Lands Covered
(P.D. 27)
___ ___ ___ ___ ___ to ___ and ___ under a ___ of ___ or ___-___, whether ___ as ___ ___ or ___.
(CARL (R.A. 6657))
All ___ and ___ ___ ___ including ___ ___ of the ___ ___ ___ for ___ (See discussion under CARL for exclusions).
Lands Covered
(P.D. 27)
Private agricultural lands primarily devoted to rice and corn under a system of sharecrop or lease-tenancy, whether classified as landed estate or not.
(CARL (R.A. 6657))
All public and private agricultural lands including other lands of the public domain suitable for agriculture (See discussion under CARL for exclusions).
P.D. 27 v. CARL (R.A. 6657)
Retention Limits
(P.D. 27)
___ may ___ an ___ not ___ than _ ___ if such ___ is ___ such ___ or will now ___ it.
(CARL (R.A. 6657))
In ___ ___ shall the ___ by the ___ ___ _ ___.
_ ___ may be ___ to each ___ of the ___ ___, if ___ is
(1) at ___ _ _ ___ of ___; and,
(2) actually ___ the ___ or ___ ___ the ___.
Retention Limits
(P.D. 27)
Landowner may retain an area not more than 7 hectares if such landowner is cultivating such area or will now cultivate it.
(CARL (R.A. 6657))
In no case shall the retention by the landowner exceed 5 hectares.
3 hectares may be awarded to each child of the land owner, if he is
(1) at least 15 years of age; and,
(2) actually tilling the land or directly managing the farm.
P.D. 27 v. CARL (R.A. 6657)
Valuation
(P.D. 27)
___ to _ _ ___ the ___ ___ of _ ___ ___ ___ ___ ___ the ___ of P.D. _ _.
(CARL (R.A. 6657))
The ___ ___ of the ___ (LBP) shall ___ the ___ in such ___ as may be ___ ___ by the ___ and the ___ and ___ or as may be ___ ___ by the ___ as ___ ___ of the ___.
Valuation
(P.D. 27)
Equivalent to 2 ½ times the average harvest of 3 normal crop years immediately preceding the promulgation of P.D. 27.
(CARL (R.A. 6657))
The Land Bank of the Philippines (LBP) shall compensate the landowner in such amount as may be agreed upon by the landowner and the DAR and LBP or as may be finally determined by the court as just compensation of the land.
P.D. 27 v. CARL (R.A. 6657)
Transferability of Title
(P.D. 27)
___ ___ to the ___ ___ by ___ ___ under P.D. _ _ shall be ___ ___ to a ___-___ ___ and ___ the ___-___ has become a ___-___ ___ of a ___ ___ ___ ___. ___ to the ___ is not ___ ___ by ___ ___ or to the ___ in ___ with P.D. _ _.
(CARL (R.A. 6657))
___ ___ by ___ under ___ may ___ be ___-___ or ___ for a ___ of _ _ ___ except through ___ ___ or when ___, ___, or ___ to the ___ or to the ___ or to ___ ___ ___ for a ___ of _ _ ___.
(P.D. 27)
No title to the land owned by tenant farmers under P.D. 27 shall be actually issued to a tenant-farmer unless and until the tenant -farmer has become a full-fledged member of a duly recognized farmers cooperative. Title to the land is not transferrable except by hereditary succession or to the Government in accordance with P.D. 27.
(CARL (R.A. 6657))
Lands acquired by beneficiaries under CARL may not be sold-transferred or conveyed for a period of 10 years except through hereditary succession or when sold, transferred, or conveyed to the Government or to the LBP or to other qualified beneficiaries for a period of 10 years.
the title issued to the tenant upon compliance with all The requirements of the government. It represents the full emancipation of the tenant from the bondage of the soil.
Emancipation Patent
Purpose of Prohibition against Alienation
- ___ the ___ in the hands of the ___-___ and ___ ___;
- ___ ___ ___; and,
- ___ a ___ to the ___ of ___ ___ by a ___.
- Preserve the landholding in the hands of the owner-tiller and his heirs;
- Minimize land speculation; and,
- Preventing a return to the regime of land ownership by a few.
Lands Not Covered
- Lands ___ through ___ ___;
- ___ ___; and,
- ___, ___ and ___ ___ ___
Lands Not Covered
- Lands obtained through homestead patent;
- Residential subdivisions; and,
- Livestock, poultry and swine raising lands
BOOK ONE
PRE-EMPLOYMENT
Article 12: POLICY OF THE STATE
Article 12
- To p___ and m___ a s___ of f___ e___ through i___ m___ t___, a___ and u___;
- To p___ e___ c___ by s___ for h___ the b___ p___ t___ and c___ of e___;
- To f___ a f___ c___ of a___ e___ by p___ s___w___ in c___ with the n___ i___;
- To f___ and r___ the m___ of w___ in c___ with the n___ i___;
- To r___ the e___ of a___ i___ the e___ of a r___ and/or p___ s___;
- To s___ the n___ of p___ e___ o___ and r___ the p___ of the p___ s___ in the r___ and p___ of w___, l___ and o___ to s___ n___ d___ o___; and,
- To e___ c___ s___ of F___ w___ for o___ e___ in order to p___ the g___ n___ of the P___ a___.
POLICY OF THE STATE
- To promote and maintain a state of full employment through improved manpower training, allocation and utilization;
- To protect every citizen by securing for him the best possible terms and conditions of employment;
- To facilitate a free choice of available employment by persons seeking work in conformity with the national interest;
- To facilitate and regulate the movement of workers in conformity with the national interest;
- To regulate the employment of aliens including the establishment of a registration and/or permit system;
- To strengthen the network of public employment offices and rationalize the participation of the private sector in the recruitment and placement of workers, locally and overseas to serve national development objectives; and,
- To ensure careful selection of Filipino workers for overseas employment in order to protect the good name of the Philippines abroad.
TITLE ONE:
CHAPTER I
Article 13
RECRUITMENT AND PLACEMENT OF WOKERS
GENERAL PROVISIONS
DEFINITIONS
(Under what article?)
any member of the labor force, whether employed or unemployed.
(Article 13)
Worker
(Under what article?)
any act of (CETCHUP)
c___, e___, t___, c___, h___, u___ or p___ workers, and includes (CRAP) c___ s___, r___, a___ or p___ for e___ l___ or a___, 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.
(Article 13)
Recruitment and Placement
canvassing, enlisting, transporting, contracting, hiring, utilizing or procuring workers, and includes (CRAP) contract services, referrals, advertising or promising 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.
(Under what article?)
Elements of e___ in r___ and p___ activities :
1. The c___ had a d___ i___ that the a___ had the p___ to s___ c___ a___ for w___; and,
2. The c___ was c___ to p___ with h___ m___ in o___ to be so e___ (People v. Goce, GR No. 113161).
(Article 13)
Elements of engaging in recruitment and placement activities :
1. The complainant had a distinct impression that the accused had the power to send complainant abroad for work; and,
2. The complainant was convinced to part with his money in order to be so employed (People v. Goce, GR No. 113161).
P___ F___ C___ E___ A___ – any p___ or e___ e___ in the r___ and p___ of w___ for a f___ which is c___ d___ or i___ from the w___ or e___ or b___..
Private Fee Charging Employment Agency – any person or entity engaged in the recruitment and placement of workers for a fee which is charged directly or indirectly from the workers or employers or both.
A document issued by the DOLE authorizing a person or entity to operate a private employment agency.
License
any person or association engaged in the recruitment and placement of workers, locally or overseas, without charging directly or indirectly, any fee from the workers or employers.
Private Recruitment Entity
document issued by DOLE authorizing a person or association to engage in recruitment and placement activities as a private recruitment entity.
Authority
any person employed in a vessel engaged in maritime navigation.
Seaman
employment of a worker outside the Philippines.
Overseas Employment
refers to a person who is to be engaged, is engaged, or has been engaged in a remunerated activity in a state of which he or she is not a legal resident.
Migrant Worker
Note: A person to be e___ in a r___ activity refers to an a___ w___ who has been p___ or a___ of e___ o___ and acting on such p___ or a___ s___ d___ and/or i___.
Note: A person to be engaged in a remunerated activity refers to an applicant worker who has been promised or assured of employment overseas and acting on such promise or assurance sustains damage and/or injury.
any person, worker or otherwise, who emigrates to a foreign country by virtue of an immigrant visa or resident permit or its equivalent in the country of destination.
Emigrant
Article 16
General Rule: ___ p___ or e___ shall e___ in the r___ and p___ of w___, l___ or o___.
PRIVATE RECRUITMENT
General Rule: No person or entity shall engage in the recruitment and placement of workers, locally or overseas.
(Under what article?)
Exceptions:
1. P___ e___ o___;
2. P___ r___ e___;
3. P___ e___ a___;
4. S___ or m___ a___ or r___;
5. P___ O___ E___ A___;
6. C___, c___ if a___ by the _ _ _ _ and the C___ I___ A___;
7. M___ of the d___ c___ (but hiring must also go through _ _ _ _);
8. Other p___ or e___ as may be a___ by the _ _ _ _ S___; and,
9. N___ h___.
(Article 16)
Exceptions:
1. Public employment offices;
2. Private recruitment entities;
3. Private employment agencies;
4. Shipping or manning agents or representatives;
5. Philippine Overseas Employment Administration;
6. Construction, contractors if authorized by the DOLE and the Construction Industry Authority;
7. Members of the diplomatic corps (but hiring must also go through POEA);
8. Other persons or entities as may be authorized by the DOLE Secretary; and,
9. Name hirees.
Art. 17: P___ O___ E___ A___ (POEA)
The POEA has t___ o___ the f___s of the O___ E___ D___ B___ (OEDB) and N___ S___ B___ (NSB).
Art. 17: Philippine Overseas Employment Administration (POEA)
The POEA has taken over the functions of the Overseas Employment Development Board (OEDB) and National Seamen Board (NSB).
(Under what article?)
Principal Functions (FPD)
1. F___, i___, and ___ of o___, e___ of F___ w___;
2. P___ of their r___ to f___r and e___ e___t p___; and,
3. D___ of F___ w___ through g___-to-g___ h___.
(Article 17)
Principal Functions (FPD)
1. Formulation, implementation, and monitoring of overseas, employment of Filipino workers;
2. Protection of their rights to fair and equitable employment practices; and,
3. Deployment of Filipino workers through government-to-government hiring
(Under what article?)
Regulatory Functions (R.A. No. 9422)
The _ _ _ _ shall:
1. R___ p___ s___ p___ in the r___ and o___ p___ of w___ through its l___ and r___ s___;
(Article 17)
1. Regulate private sector participation in the recruitment and overseas placement of workers through its licensing and registration system;
(Under what article?)
2. F___ and i___, in c___ with a___ e___ c___, when n___, a s___ for p___ and m___ the o___ e___t of F___ w___ taking into c___ their w___ and d___ m___r r___;
(Article 17)
2. Formulate and implement, in coordination with appropriate entities concerned, when necessary, a system for promoting and monitoring the overseas employment of Filipino workers taking into consideration their welfare and domestic manpower requirements;
(Under what article?)
3. I___ m___ w___ not only of their r___ as w___ but also of their r___ as h___ b___;
(Article 17)
3. Inform migrant workers not only of their rights as workers but also of their rights as human beings;
(Under what article?)
4. I___ and g___ the w___ how to a___ their r___ and p___ the a___ m___ to r___ v___ of their r___;
(Article 17)
4. Instruct and guide the workers how to assert their rights and provide the available mechanism to redress violation of their rights;
(Under what article?)
- In the r___ and p___ of w___ to s___ the r___ for t___ and c___ F___ w___ of f___ g___ and their i___, and such other e___ as p___ i___ may r___, d___ only to c___ (BOG)
a. Where the P___ has concluded B___ labor a___ or a___;
b. O___ and/or c___ with the i___ laws and standards for migrant workers;
c. G___ to p___ the r___ of F___ m___ w___.
(Article 17)
- In the recruitment and placement of workers to service the requirements for trained and competent Filipino workers of foreign governments and their instrumentalities, and such other employers as public interest may require, deploy only to countries (BOG)
a. Where the Philippines has concluded Bilateral labor agreements or arrangements;
b. Observing and/or complying with the international laws and standards for migrant workers;
c. Guaranteeing to protect the rights of Filipino migrant workers.
(Under what article?)
Adjudicatory Functions (AD)
1. A___ c___ involving v___ of l___ r___ and r___ and r___ of r___ and e___ a___ or e___ ; and,
2. D___ a___ c___ and other s___ c___ which are ad___ in c___ , in___ e___ , p___ , c___ p___ and F___ m___ w___ .
(Article 17) Adjudicatory Functions (AD) 1. Administrative cases involving violations of licensing rules and regulations and registration of recruitment and employment agencies or entities; and, 2. Disciplinary action cases and other special cases which are administrative in character, involving employers, principals, contracting partners and Filipino migrant workers.
(Under what article?)
Disciplinary Action Cases (Rule _ _ _ of Book _ _ _ of the _ _ _ _ Rules)
• F___ with the A___ O___ or R___ O___ of the P___, as the case may be.
The P___ may m___ pr___ u___ d___ a___ against a w___.
It shall e___ a s___ of w___ and b___.
(Article 17)
Disciplinary Action Cases (Rule VII of Book VII of the POEA Rules)
• File with the Adjudication Office or Regional Office of the POEA, as the case may be.
The POEA may moto propio undertake disciplinary action against a worker.
It shall establish a system of watching and blacklisting.
Grounds for disciplinary action (Under R.A. _ _ _ _) (PUG is VVEC’s GIFT to DAD)
- P___;
- U___ r___l to d___ from the w___;
- G___ or p___ of d___ w___;
- V___ or d___ c___ p___;
- V___ of the l___ and s___ pr___ of the h___ c___ and u___ b___ of e___ c___;
- E___t of f___ of the c___ or f___ w___ e___ for d___ to r___ in the P___;
- C___ tr___ at the w___ or in the v___;
- G___;
- I___ or j___ a s___ or w___ st___ where the l___ of the h___ co___ pr___ s___ or s___ a___;
- C___ of F___ p___ by P___ L___ or by the h___ c___;
- T___ or r___;
- D___;
- D___ A___ or p___ or tr___ of pr___ d___; and,
- D___ or ab___.
Grounds for disciplinary action (Under R.A. 8042) (PUG is VVEC’s GIFT to DAD)
- Prostitution;
- Unjust refusal to depart from the worksite;
- Gunrunning or possession of deadly weapons;
- Vandalism or destroying company property;
- Violation of the laws and sacred practices of the host country and unjustified breach of employment contract;
- Embezzlement of funds of the company or fellow worker entrusted for deliver to relatives in the Philippines;
- Creating trouble at the worksite or in the vessel;
- Gambling;
- Initiating or joining a strike or work stoppage where the laws of the host country prohibit strikes or similar actions;
- Commission of Felony punishable by Philippine Laws or by the host country;
- Theft or robbery;
- Drunkenness;
- Drug Addiction or possession or trafficking of prohibited drugs; and,
- Desertion or abandonment.
Jurisdiction Transferred to the Labor Arbiters of the National Labor Relations Commission (_ _ _ _) (Sec. _ _, R.A. _ _ _ )
• C___ arising out of an e___ -e___ r___ p or by v___ of any l___ or c___ involving F___ w___ for o___ e___ including c___ for a___ , m___ , e___ and other f___ of d___ .
• V___ , M___ c___ , or cl___ for d___ should be f___ before the R___ A___ b___ of the _ _ _ _ where the c___ r___ or where the p___ o___ of the r___ /e___ is s___ at the o___ of the c___ ( _ _ _ - _ _ _ _ R___ of P___ ).
Jurisdiction Transferred to the Labor Arbiters of the National Labor Relations Commission (NLRC) (Sec. 10, R.A. 8042)
• 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.
• Venue, Money claims, or claims for damages should be filed before the Regional Arbitration branch of the NLRC where the complainant resides or where the principal office of the respondent/employer is situated at the option of the complainant (2005 NLRC Rules of Procedure).
Compromise Agreement
• Sec. _ _, R.A. _ _ _ _ allows r___ by c___ of c___ f___ with the _ _ _ _.
• Any c___/a___ s___ or v___ a___ on m___ c___ i___ of d___ shall be p___ w___ _ m___ from the a___ of the s___ by the a___ a___
Compromise Agreement
• Sec. 10, R.A. 8042 allows resolution by compromise of cases filed with the NLRC.
• Any compromise/amicable settlement or voluntary agreement on money claims inclusive of damages shall be paid within 4 months from the approval of the settlement by the appropriate authority
Rule on Premature Termination of Contract
- If ___ on g___ other than those that are l___ and v___ b___ the a___ t___ d___, the e___ will p___ the w___ their s___ c___ to the u___ p___ of the e___ c___ (V_ _ _ _ M_ _ _ _ _ _ _ - C_. v. _ _ _ _, GR No. _ _ _ _ _ _, _ _ _ _ _ _ _ - _ _, _ _ _ _).
- If the g___ of e___ t___ o___ on or after _ _ _ _ - _ _ _, _ _ _ _, the l___ to a___ is R.A. _ _ _ _. Under Sec. _ _, a w___ d___ from o___ e___ w___ j___ and v___ or a___ c___ is e___ to f___ a___ c___ is e___ to f___ r___ of his p___ f___ with i___ at _ _% per a___ and
Rule on Premature Termination of Contract
- If terminated on grounds other than those that are lawful and valid before the agreed termination date, the employer will pay the workers their salaries corresponding to the unexpired portion of the employment contract (Vinta Maritime Co. v. NLRC, GR No. 113911, January 23, 1998).
- If the gate of employment termination occurred on or after July 15, 1995, the law to apply is R.A. 8042. Under Sec. 10, a worker dismissed from overseas employment without just and valid or authorized cause is entitled to full authorized cause is entitled to full reimbursement of his placement fee with interest at 12% per annum and
Rule on Premature Termination of Contract
- If ___ on g___ other than those that are l___ and v___ b___ the a___ t___ d___, the e___ will p___ the w___ their s___ c___ to the u___ p___ of the e___ c___ (V_ _ _ _ M_ _ _ _ _ _ _ - C_. v. _ _ _ _, GR No. _ _ _ _ _ _, _ _ _ _ _ _ _ - _ _, _ _ _ _).
- If the g___ of e___ t___ o___ on or after _ _ _ _ - _ _ _, _ _ _ _, the l___ to a___ is R.A. _ _ _ _. Under Sec. _ _, a w___ d___ from o___ e___ w___ j___ and v___ or a___ c___ is e___ to f___ a___ c___ is e___ to f___ r___ of his p___ f___ with i___ at _ _% per a___ and
Rule on Premature Termination of Contract
- If terminated on grounds other than those that are lawful and valid before the agreed termination date, the employer will pay the workers their salaries corresponding to the unexpired portion of the employment contract (Vinta Maritime Co. v. NLRC, GR No. 113911, January 23, 1998).
- If the gate of employment termination occurred on or after July 15, 1995, the law to apply is R.A. 8042. Under Sec. 10, a worker dismissed from overseas employment without just and valid or authorized cause is entitled to full authorized cause is entitled to full reimbursement of his placement fee with interest at 12% per annum and
b. If the contract of employment is ONE YEAR OR MORE, the salaries for the entire unexpired portion of the contract OR three (3) months pay for every year of the unexpired portion, WHICHEVER IS LESSER, shall be paid (Marsaman Manning Agency Inc. v. NLRC, GR No. 127195, August 25, 1999).
Just Read; Fix this later
Note: The clause or for three months for every year of the unexpired term, whichever is less in the 5th par of Sec. 10 of R.A. No. 8042 is declared unconstitutional by the Supreme Court for violating Sec. 1, Article III of the Constitution, Sec. 18, Article II and Sec. 3, Article XIII, which accord all members of the labor sector without distinction as to place of deployment, full protection of their rights and welfare (Serrano v. Gallant Maritime Services Inc. and Marlow Navigation Co. Inc., GR No. 167614, March 24, 2009).
Just Read; Fix this later
Outside of POEA Jurisdiction
- Foreign Judgement – POEA has no jurisdiction to hear and decide a claim for jurisdiction to hear and decide a claim for enforcement of a foreign judgement. Such Claim must be brought before regular courts (Pacific Asia Overseas Shipping Corp. V. NLRC. GR No. 76595. May 6, 1988).
- Torts – fall under the provisions of the Civil Code.
Just Read; Fix this later
Invalid Agreements
- Signing satisfaction receipts is not a waiver. Any agreement to receive less compensation than what the worker is entitled to recover is invalid (MR Yard Crew Union v. PNR, GR No. L-33621, July 26, 1976).
- An agreement that diminishes the employee’s pay and benefits as contained in a POEA-approved contract is void, unless such subsequent agreement is approved by POEA (Chavez v. Bonto-Perez, GR No. 109808, March 1, 1995).
Just Read; Fix this later
Minimum Employment Conditions of Overseas Employment (GFF-JW-RAF)
- Guaranteed wages for regular working hours and overtime pay;
- Free transportation from point of hire to site of employment and return;
- Free emergency medical and dental treatment and facilities;
- Just causes for termination of the services of the workers;
- Workmen’s compensation benefits and war hazard protection;
- Repatriation of worker’s remains and properties in case of death;
- Assistance on remittance of worker’s salaries and allowances; and,
- Free and adequate board and lodging facilities or compensatory food allowance.
Just Read; Fix this later
- Department of Foreign Affairs (DFA);
- DOLE;
- POEA;
- Overseas Workers Welfare Administration (OWWA) – provides social and welfare services including insurance coverage, legal assistance, placement assistance and remittance services to Filipino overseas workers. Under R.A. 8042, it shall provide the Filipino migrant worker and his family assistance in the enforcement of contractual obligations by agencies, entities and/or their principals.
- Re-Placement and Monitoring Center (RPM) – develops livelihood programs for returning migrant workers to the Philippine society; and,
- NLRC – tasked with the settlement or adjudication of labor disputes.
Agencies Given the Duty to promote the welfare and rights of migrant workers
- those employed in a vessel engaged in maritime navigation.
- contract workers other than a seaman including workers engaged in offshore activities whose occupation requires that majority of his working or gainful hours are spent on land.
Classifications of OFWs
- Sea-Based or Seamen
- Land-Based
ARTICLE 18:
General Rule:
BAN ON DIRECT HIRING
Direct hiring of Filipino workers for overseas employment is not allowed.
ARTICLE 19:
The (CFO) replaced the Office of Emigrant Affairs. It assists in the formulation of policies affecting Filipino overseas and formulates an integrated program that promotes the welfare of Filipino overseas.
COMMISSION ON FILIPINO OVERSEAS
Commission on Filipinos Overseas
ARTICLE 22:
MANDATORY REMITTANCE OF FOREIGN EXCHANGE EARNINGS
Nature of Job
Seamen or Manners
Workers for Filipino Contractors and Construction Companies
Professionals whose Employment Contract Provide for Lodging Facilities
Professionals Without Board and Lodging
Domestic and Other Service Workers
Foreign Exchange Remittance (% of Basic Salary) 80% 70% 70% 50% 50%
Private Sectors that can participate
- Private employment agencies;
- Private recruitment entities;
- Shipping or manning agencies;
- Such other persons as may be authorized by the Secretary of Labor and Employment; and,
- Construction contractors with a duly issued authority to operate private recruitment entities (Sec. 1, Rule VII, Book I, Implementing Rules of Labor Code)
Qualifications for Participation
- Citizenship requirement (Article 27, LC)
a. Filipino citizens; or
b. Corporations, partnerships or entities at least 75% of their authorized and voting capital stock of which is owned and controlled by Filipino citizens. - Capitalization (Article 28, LC)
a. For single proprietorship or partnership – minimum capitalization of two (2) million pesos.
b. For corporations – a minimum paid up capital of (2) million pesos; Provided that those with existing licenses shall within 4 years from effectivity hereof increase their capitalization or paid up capital as the case may be to two (2) million pesos at the rate of two hundred fifty thousand pesos (Php 250,000) every year. - Those not otherwise disqualified by law or other government regulations to engage in the recruitment and placement of workers for overseas employment.
Disqualified from Recruitment and Placement of Workers for Overseas employment whether for profit or not
- Travel agencies and sales agencies of airline companies (Article 26, LC)
- Officers or members of the board of any corporation or members in a partnership engaged in the business of a travel agency.
- Corporations and partnerships when any of its officers, members of the board or partners is also an officer, member of the board or partner of a corporation or partnership engaged in the business of a travel agency (interlocking officers)
ARTICLE 29: NON-TRRANSFERABILITY OF LICENSE OR AUTHORITY
- It may be used only be the one in whose favor it was issued; hence, it cannot be assigned, conveyed or transferred to any other persons or entity.
- It must be used only in the place stated in the license.
- The recruitment and placement activities must be undertaken at their authorized official addresses.
- Provincial recruitment and/or job fairs may be allowed only when authorized by POEA in writing.
NON-TRRANSFERABILITY OF LICENSE OR AUTHORITY
Note: Change of ownership or relationship of single proprietorship licensed to engage in overseas employment shall cause the automatic revocation of the license.
note
ARTICLE 31
BONDS
All applicants for license or authority shall post such cash and surety bonds as determined by the Secretary of Labor, including escrow deposits.
ARTICLE 34 AND SECTION 6, R.A. 8042: PROHIBITED PRACTICES (IFFPI – HOFAT – W)
It shall be unlawful for any individual, entity, licensee, or holder of authority:
- To charge greater amount than that specified in the schedule of allowable fees (Illegal exaction);
- To furnish any false information in relation to recruitment or employment (False information);
- To give any false notice, testimony etc. or commit any act of misrepresentation to secure a license or authority (False statements).
- To induce or attempt to induce a worker to quit his job in lieu of another offer unless it is designed to liberate the worker from oppressive terms of employment (Pirating);
- To influence or attempt to influence any person or entity not to employ any worker who has not applied for employment through his agency (Influencing not to employ)
- To engage in the recruitment or placement of jobs harmful to public health, morality or to the dignity of the Philippines (Harmful jobs);
- To obstruct or attempt to obstruct inspection by the Labor Secretary or his authorized representatives (Obstruct inspection);
- To fail to file reports on the status of employment, placement etc. and such other matters as may be required by the Secretary of Labor (Failure to comply with rules and regulations);
- To substitute or alter employment contracts without the approval of the Secretary of Labor (Alteration of contracts);
- To become an officer or member of the Board of any corporation engaged in the management of a travel agency (Travel agency officers recruiting); and
- To withhold travel documents from applicant workers before departure for unauthorized monetary considerations (Withholding travel documents).
ARTICLE 35
SUSPENSION AND/OR CANCELLATION OF LICENSE OR AUTHORITY
Non-Licensee or Non-Holder of Authority – any person, corporation or entity which has not been issued a valid license or authority to engage in recruitment and placement by the Secretary of Labor, or whose license or authority has been suspended, revoked, or cancelled by the POEA and the Secretary.
any person, corporation or entity which has not been issued a valid license or authority to engage in recruitment and placement by the Secretary of Labor, or whose license or authority has been suspended, revoked, or cancelled by the POEA and the Secretary.
Non-Licensee or Non-Holder of Authority
Grounds for Revocation of License (IVEE)
- Incurring an accumulate three counts of suspension by an agency based on final and executory orders within the validity period of its license;
- Violations of the conditions of license;
- Engaging in act/s of misrepresentation for the purpose of securing a license or renewal thereof; and
- Engaging in the recruitment or placement of workers to jobs harmful to the public health or morality or to the dignity of the Republic of the Philippines (Sec. 3, Rule I, Book VI, Rules and Regulations Governing Overseas Employment).
Grounds for Suspension/Cancellation of License (AC-DDP)
- The acts prohibited under Article 34;
- Charging a fee before the worker is employed or in excess of the authorized amount;
- Doing recruitment in places outside its authorized area;
- Deploying workers without processing through the POEA; and
- Publishing job announcements without the POEA’s prior approval (Sec. 4, Rule II, Book IV, POEA Rules)
Jurisdiction
The DOLE Secretary (Article 35) and the POEA Administrator (Sec. 1 Rule II Book VI, New Rules on Overseas Employment) have CONCURRENT JURISDICTION to suspend or cancel a license (Trans Action Overseas Corp. v. Secretary of Labor, GR No. 109583, September 5, 1997)
Liability of recruitment agency
• The recruitment agency is SOLIDARILY LIABLE with the foreign principal for unpaid salaries of a worker it recruited. Before recruiting, the agency is required to submit a document containing its power to sue and be sued jointly and solidarily with any the principal or foreign-based employer for any of the violations of the recruitment agreement, and the contracts of employment (Sec. 10, Rule V, Book I, Implementing Regulations of LC)
• Even if it was the principal of the manning agency who entered into contract with the employee, the manning agent in the Philippines is jointly and solidarily liable with the principal (Seagull Maritime Corp. v. Batangonan, GR Nos. 83635 – 53, February 28, 1989)
Contract by Principal
• A foreign corporation that through unlicensed agents, recruits workers in the country may be sued in and found liable by Philippine courts (Facilities Management Corp. v. De La Osa, GR No. L-38649, March 26, 1979).
Suitability of Foreign Corporations
CHAPTER III.
ARTICLE 38
MISCELLANEOUS PROVISIONS ILLEGAL RECRUITMENT (AS AMMENDED BY R.A. 8042)
– any act of (CETCHUP) canvassing, enlisting, transporting, contracting, hiring, utilizing, or procuring workers and includes (CRAP) contract services, referrals, or advertising, promising for employment abroad, whether for profit or not, when undertaken by a non-licensee or non-holder of authority; Provided that any such non-licensee or non-holder of authority who in any manner, offers or promises for a fee employment abroad to two or more persons shall be deemed so engaged.
Illegal Recruitment –
- When illegal recruitment is committed by a SYNDICATE, i.e., if it is carried out by three (3) or more persons conspiring and/or confederating with one another; or
- When illegal recruitment is committed in a LARGE SCALE, i.e. if it is committed against three (3) or more persons individually or as a group.
Qualifying Circumstances that would make illegal recruitment as an offense involving economic sabotage:
- Automatic revocation of the license or authority (Article 39 [e], LC);
- Forfeiture of the cash and surety bonds (Article 39 [e], LC); and
- Conviction for the crime of estafa, if found guilty therefor (People v. Calonzo, GR Nos. 115150-55, September 27, 1996).
Consequences of Conviction (AFC)
The accused represented themselves to complainants to have the capacity to send workers abroad, although they did not have any authority or license. It is by this representation that they induced complainants to pay a placement fee. Such act constitutes estafa under Article 315, par 2 of the Revised Penal Code (People v. Hernandez, GR Nos. 141221-36, March 7, 2002)
Act Constituting Estafa
The complainant may, at his option, file at the RTC of the province or city:
- Where the offense was committed; OR
- Where the offended party resides at the time of the commission of the offense.
Venue of Criminal Action Arising from Illegal Recruitment
(Simple)
Prescriptive Period
Imprisonment
Fine
5 years
Prision mayor
PHP 200T – 500T
(Simple)
Prescriptive Period
Imprisonment
Fine
5 years
Prision mayor
PHP 200T – 500T
(Economic Sabotage)
Prescriptive Period
Imprisonment
Fine
20 years
Life imprisonment
PHP 500T – 1M
As long as the witnesses can positively show through their respective testimonies that the accused is the one involved in prohibited recruitment, she may be convicted of the offense despite absence of receipts (People v. Sagaydo GR Nos. 124671-75, September 29 2000)
Absence of Receipts Evidencing Payment, Not Fatal to Prosecution’s Case for Illegal Recruitment
An employee of a company or corporation engaged in illegal recruitment may be held as PRINCIPAL, together with his employer if it is shown that he actively and consciously participated in illegal recruitment (People v. Cabais, GR No. 129070, March 16, 2001).
Liability of Employee of Company Engaged in Illegal Recruitment
- Article 38 is UNCONSTITUTIONAL in as much as it gives the Secretary of Labor the power to issue search or arrest warrants (the Secretary not being a judge, the authorities must go through the judicial process)
- The EXCEPTION is in cases of deportation of illegal and undesirable aliens whom the President of the Commissioner of Immigration may order arrested following a final order of deportation (Salazar v. Achacoso, GR No. 81510, March 14, 1990)
Issuance of Search Warrant or Warrant of Arrest
TITLE TWO:
ARTICLE 40.
EMPLOYMENT OF NON-RESIDENT ALIENS
EMPLOYMENT PERMIT OF NON-RESIDENT ALIENS
is required for entry into the country for employment purposes and is issued after determination of the non-availability of a person in the Philippines who is competent, able and willing at the time of application to perform the services for which the alien is desired.
Alien Employment Permit (AEP
