Recits

Question 1

What are the guaranteed rights of the worker under the Constitution?

Answer 1

Per Section 3 Article XIII:

The state shall guarante the rights of all workers:

1. to self-organization, collective bargaining and negotiations
2. to peaceful concerted activities including the right to strike in accordance with law
3. to security of tenure
4. to humane conditions of work
5. receive a living wage
6. participate in decision-making processes affecting their rights and benefits as may be provided by law

Question 2

In what instance may an employee join in policy-making at the management level?

Answer 2

through unions

Question 3

Should labor be always favored?

Answer 3

No. Article 10 of the Civil Code states that in case of doubt in the interpretation of the law, it should be presumed that the lawmaking body intended right and justice to prevail.

Question 4

What is management prerogative?

Answer 4

1. right to return of investment and make a profit
2. right to select his employees and decide when to engage them
3. the right to prescribe rules and regulations for the government of their employees
4. the right to transfer, reduce or lay-off personnel

Question 5

What are the limitations of the rule-making power of labor?

Answer 5

1. law (standards under the labor code, must not be contrary to the Constitution)
2. collective bargaining agreements
3. general principle of fair play and justice

Question 6

What type of employees benefit from the labor code?

Answer 6

Article 6. Applicability
All rights and benefits granted to workers under this Code shall, except as may be otherwise provided herein, apply alike to all workers, whether agricultural or non-agricultural.

Question 7

Will labor code apply even if there is no employer-employee relationship?

Answer 7

Yes.

Question 8

What is the difference between recruitment and placement?

Question 9

Differentiate between private fee-charging agencies versus private recruiter entities versus contracting and subcontracting

Answer 9

private-fee charging employment agency means 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 while a private recruitment entity means any person or association engaged in the recruitment and placement of workers locally or overseas without charging, directly or indirectly any fees from workers or employers

Question 10

As a general rule, who is allowed for recruitment and placement?

Answer 10

public employment agencies

Question 11

What is illegal recruitment?

Answer 11

Sec. 6. DEFINITIONS. — For purposes of this Act,illegal recruitment
1. any act of canvassing, enlisting, contracting, transporting, utilizing, hiring, procuring workers and includes referring, contact services, promising or advertising for employment abroad,
2. whether for profit or not,
3. when undertaken by a non-license or non-holder of authority contemplated under Article 13(f) of Presidential Decree No. 442, as amended, otherwise known as the Labor Code of the Philippines.
4. Provided, that such non-license or non-holder,
a. a.offers or promises for a feeemployment abroad to two or more persons shall be deemed so engaged.
b. It shall likewise include the following acts, whether committed by any persons, whether a non- licensee, non-holder, licensee or holder of authority.

Question 12

What entity or agency is responsible for recruitment or placement for local employment?

Answer 12

Public employment offices

Question 13

What happens next after recruitment?

Question 14

What do you call the fee that the recruitment agency charges to the employee?

Answer 14

A placement fee..

may be charged to a worker which shall not exceed twenty percent (20%) of the worker’s first month’s basic salary
The PLACEMENT FEE is a charge paid by a candidate to his PHILIPPINE RECRUITMENT AGENCY that cannot be more than one month’s salary, EXCEPT for household service workers (nannies, carers, housekeepers, etc.)

Question 15

What is the cap of the service fee under the law?

Question 16

What are the instances where a placement fee for local employment is not required?

Question 17

Who are the specific persons prohibited to engage in recruitment and placement under the law?

Question 18

What is the principle of non-transferability of license or authority?

Question 19

what is recruitment and placement?

Answer 19

Article 13.
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 of promises for a fee employment to two or more persons shall be deemed engaged in recruitment and placement.

Question 20

What is social justice?

Answer 20

In Calalamg vs Williams:

Neither communism nor despotism not atomism or nor anarchy but the humanization of laws and the equalization of social and economic forces by the State so that justice in its rational and objectively secular conception may be at least approximated.

Social justice meansthe promotion of the welfare of all the people, the adoption by the Government of measures calculated to insure economic stability of all the competent elements of society, through the maintenance of a proper economic and social equilibrium in the interrelations of the members of the community, constitutionally, through the adoption of measures legally justifiable, or extra-constitutionally, through the exercise of powers underlying the existence of all governments on the time-honored principle of salus populi est suprema lex.

Question 21

Which entities are also allowed by law to participate in the recruitment and placement of workers locally and overseas?

Answer 21

1. public employment offices
2. private recruitment entities
3. private employment agencies
4. shipping or manning agents or representatives
5. the POEA
6. construction contractors if authorized to operate by DOLE and the Construction Industry Authority
7. members of the diplomatic corps although hirings done by them have to be processed through the POEA
8. other persons or entities as may be authorized by the DOLE Secretary

Question 23

May a ban on deployment of migrant be imposed? By whom?

Answer 23

When public welfare so requires, the POEA Governing Board, after consultation with the Department of Foreign Affairs, may, at any time, terminate or impose a ban on the deployment of migrant workers.

Question 24

Who has jurisdiction over cases with employer- employee relationship?

Answer 24

Through ra 8042, the NLRC the jurisdiction over employer- employee relations cases.

Question 25

Examples of cases tried by the labor arbiters

Answer 25

Among the cases now in the hands of labor arbiters are money claims arising from pretermination of the employment contract without valid cause.

Question 26

Poea has original and exclusive jurisdiction over:

Answer 26

all cases which are administrative in character, involving or arising out of violations of rules and regulations relating to licensing and registration of recruitment and employment agencies or entities; and (b) disciplinary action cases and other special cases which are administrative in character, involving employers, principals, contracting partners and Filipino migrant workers.1

Question 27

Define illegal recruitment(RA 8042)

Answer 27

Sec. 6. DEFINITIONS. — For purposes of this Act,illegal recruitmentshall mean: APN
1. any act of canvassing, enlisting, contracting, transporting, utilizing, hiring, procuring workers and includes referring, contact services, promising or advertising for employment abroad,
2. whether for profit or not,
3. when undertaken by a non-license or non-holder of authority contemplated under Article 13(f) of Presidential Decree No. 442, as amended, otherwise known as the Labor Code of the Philippines.
4. Provided, that such non-license or non-holder,
c. offers or promises for a fee employment abroad to two or more persons shall be deemed so engaged.
d. It shall likewise include the following acts, whether committed by any persons, whether a non- licensee, non-holder, licensee or holder of authority.

Question 28

Name hire vs. direct hiring

Answer 28

Name hires are Filipino workers who are able to secure an overseas employment opportunity with an employer without the assistance or participation of any agency. They may have been directly contacted by a foreign employer by referral or have directly applied to their company.
Direct–hiring means the foreign employer is the one who searches for the worker to hire. While name –hiring is allowed, direct hiringis prohibited by law.

Question 29

Acts considered as illegal recruitment.

Answer 29

1. To charge or accept, directly or indirectly, any amount greater than that specified in the schedule of allowable fees prescribed by the Secretary of Labor, or to make a worker pay any amount greater than that actually received by him as a loan or advance(Overcharging);
2. To furnish or publish any false notice or information or document in relation to recruitment or employment(False Notice);
3. To give any false notice, testimony, information or document or commit any act of misrepresentation for the purpose of securing a license or authorityunder this Code (Misrepresentation to Secure License);
4. To induce or attempt to induce a worker already employed to quit his employmentin order to offer him to anotherunless the transfer is designed to liberate the worker from oppressive terms and conditions of employment(Inducing Worker to Quit);
5. To influence or to attempt to influence any person or entity not to employ any worker who has not applied for employment through his agency(Inducement not to Employ);
6. To engage in the recruitment or placement of workers injobs harmful to public health or morality or to the dignity of the Republic of the Philippines (Recruitment for Harmful Jobs);
7. To obstruct(block) or attempt to obstruct inspection by the Secretary of Labor or by his duly authorized representatives (Obstructing Inspection);
8. To fail to file reports on the status of employment, placement vacancies, remittance of foreign exchange earnings, separation from jobs, departures and such other matters or information as may be required by the Secretary of Labor (Nonsubmission of Reports);
9. To substitute or alter employment contracts approved and verified by the Department of Labor from the time of actual signing thereof by the parties up to and including the periods of expiration of the same without the approval of the Secretary of Labor (Contract Substitution);
10. 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 (Involvement in Travel Agency);
    11 . To withhold or deny travel documents from applicant workers before departure for monetary or financial considerations other than those authorized under this Code and its implementing rules and regulations (Withholding of Documents) (LC, Art. 34).
11. Failure to actually deploy a contracted worker without valid reasonas determined by the Department of Labor and Employment (Failure to Deploy);
12. 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 placewithout the worker’s fault.Illegal recruitment when committed by a syndicate or in large scale shall be considered an offense involving economic sabotage(Failure to Reimburse); and
13. Allowing a non-Filipino citizen to head or manage a licensed recruitment/manning agency (Non- Filipino Manager) (as amended by RA 10022

Question 30

SIMPLE illegal recruitment

Answer 30

(1) the person charged with the crime must have undertaken recruitment activities; and
(2) the said person does not have a license or authority to do

Question 31

LArge scale illegal recruitment

Answer 31

Simple recruitment plus 3. he commits the same against three (3) or more persons, individually or as a group

Question 32

illegal recruitment by economic sabotage

Answer 32

It is the violation of Arts. 13(b) and 34 of the LC involving at least three recruiters or victims. It may either be:
Committed by a syndicate or in large scale or qualifies

Question 33

What benefits and assistance are entitled to the victims of illegal recruitment?

Answer 33

Free legal assistanceincludes the provision oflegal advice, referrals for conciliation, assistance in the preparation of complaints and supporting documents,filing of administrative charges for recruitment violations, institution of criminal actions and assistance during preliminary investigation and trial.

Question 34

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

Answer 34

• The NLRC

Question 35

Which jurisdiction is retained in the POEA?

Answer 35

• 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 36

What are grounds for disciplinary action?

Answer 36

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 37

Where may a POEA decision be appealed?

Answer 37

• The Secretary of Labor

Question 38

What is the general rule on direct hiring?

Answer 38

• No direct hiring workers by a foreign employer is allowed

Question 39

What are the exceptions to the ban on direct-hiring?

Answer 39

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

Question 40

What are name hires?

Answer 40

• 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 41

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

Answer 41

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

Question 42

What is the principle of lex loci laboris?

Answer 42

• 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 43

What is the principle of lex loci contractus?

Answer 43

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 44

What is the POEA SEC?

Answer 44

• 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 45

What are the minimum provisions of OFWs’ employment contracts?

Answer 45

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 46

What is the principle of freedom to stipulate?

Answer 46

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 47

What are the disability benefits for injury or illness?

Answer 47

• 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 48

What is total and permanent disability?

Answer 48

Temporary total disability lasting continuously for more than one hundred twenty days, except as otherwise provided for in the Rules

• Permanent total disability means disablement of an employee to earn wages in the same kind of work, or work of similar nature that he was trained for or accustomed to perform or any other kind of work which a person of his mentality and attainments could do. (Marcelino vs. Seven-up bottling Co. of the Philippines)
• Permanent disability is the inability of a worker to perform his job for more than 120 days, regardless of whether or not he loses the use of any part of his body. (Crystal Shipping vs Natividad)