G.R. No. 168495               July 2, 2010

DANSART SECURITY FORCE & ALLIED SERVICES COMPANY and DANILO A. SARTE, Petitioners, vs.JEAN O. BAGOY,* Respondent.

FACTS:

Respondent Jean O. Bagoy was employed by Dansart Security Force and Allied Services Company to guard the establishments of its various clients such as Ironcorn, Chowking and Hindu Temple. However, from April 1999 until November 2001, respondent had allegedly been caught sleeping on the job and incurred absences without leave, for which he was given notices of disciplinary action.

respondent filed with the Regional Arbitration Branch a Complaint3 against petitioners for underpayment of salaries and non-payment of overtime pay, holiday pay, premium pay, 13th month pay and service incentive leave pay. In her Position Paper, respondent alleged: (1) that she had been required to report for work daily from 7:00 a.m to 7:00 p.m. with a salary rate of P166.00 per day, which was increased to P180.00 in January 2001; (2) that she was required to work even on Sundays and holidays but was not paid holiday pay, 13th month pay and service incentive leave pay; and (3) that since December 2001, she had been on floating status, tantamount to constructive dismissal.

Petitioners countered that it was respondent who abandoned her work beginning November 2001. Petitioners, likewise, presented several reports issued by the National Capital Region, Department of Labor and Employment (DOLE) stating that all mandatory wage increases and other related monetary benefits were complied with by petitioner security agency, in rebuttal of respondent's claim of non-payment of wages and benefits.

The Labor Arbiter issued a Decision favorable to respondent with regard to her money claims, but did not rule on the issue of illegal dismissal as this was not included in her complaint. The NLRC reversed the labor arbiter and held that the DOLE reports, stating that petitioner security agency had been complying with all mandatory wage increases and other monetary benefits, should be given proper respect. The CA annulled and set aside the NLRC decision and reinstated the Labor Arbiter’s.

Petitioners only assail the weight ascribed by the Labor Arbiter and the CA to the evidence, asseverating that such documents from the DOLE must be given greater importance as the NLRC did.

ISSUE: Whether the DOLE Certifications should be considered as sufficient proof that petitioners paid respondent proper wages and all other monetary benefits to which she was entitled as an employee.

HELD: NO.

The Court has repeatedly ruled that any doubt arising from the evaluation of evidence as between the employer and the employee must be resolved in favor of the latter.Moreover, it is settled jurisprudence that the burden of proving payment of monetary claims rests on the employer.

G & M Philippines, Inc. v. Cuambot, to wit:

x x x one who pleads payment has the burden of proving it. The reason for the rule is that the pertinent personnel files, payrolls, records, remittances and other similar documents – which will show that overtime, differentials, service incentive leave, and other claims of workers have been paid – are not in the possession of the worker but in the custody and absolute control of the employer. Thus, the burden of showing with legal certainty that the obligation has been discharged with payment falls on the debtor, in accordance with the rule that one who pleads payment has the burden of proving it. x x x 

In this case, petitioners failed to discharge such burden of proof. The Certifications from the DOLE stated that there are no pending labor cases against petitioners filed before said office, but said certifications "do not cover cases filed before the National Labor Relations Commission and the National Conciliation and Mediation Board." The Order18 dated January 17, 2001 issued by the DOLE, in fact, showed that in the year 2000, petitioner security agency was found to have committed the following violations: underpayment of overtime pay, underpayment of 13th month pay, underpayment of 5 days Service Incentive Leave Pay, and underpayment of night shift differential pay. Then, said Order stated that, since petitioner security agency had submitted "[p]ayrolls showing backwages of the above-noted violations amounting to x x x (P443,512.51) benefitting 279 guards" to show compliance with labor laws, "the DOLE considered the inspection closed and terminated." For the years 2001and 2002, the DOLE Reports stated only that based on records submitted by petitioners, it had no violations. Verily, such documents from the DOLE do not conclusively prove that respondent, in particular, has been paid all her salaries and other benefits in full. In fact, the Order dated January 17, 2001 even bolsters respondent's claim that she had not been paid overtime pay, 13th month pay, and Service Incentive Leave Pay. The statement in said Order, that backwages for 279 guards had been paid, does not in any way prove that respondent is one of those 279 guards, since petitioners failed to present personnel files, payrolls, remittances, and other similar documents which would have proven payment of respondent's money claims. It was entirely within petitioners' power to present such employment records that should necessarily be in their possession; hence, failure to present such evidence must be taken against them.

PNB v. Florence CABANSAG/2005

FACTS: Cabansag was a tourist in Singapore, applied for a job as Credit Officer in the

Singapore branch of PNB. Bank VP Ruben Tobias recommended to PNB Manila her appointment to the position, which PNB Manila approved. Cabansag, upon application with the SG government, was issued an Employment Pass valid for two years.

Dec. 1998, Tobias offered temporary appointment to Cabansag as Credit Officer, upon the ff. terms: 3 months probation, full confidentiality, agreement not to be employed outside of office hours in any manner for any purpose whatsoever, termination notice of 1 day within period of probation or 1 month notice upon confirmation or the equivalent of 1day’s or month’s salary in lieu of notice) Cabansag accepted and assumed office March, 1999, she was issued an Overseas Employment Certificate by POEA, certifying her being a bona fide contract worker for Singapore

Barely 3 months in office, she submitted a Performance Report to Tobias on which the latter, being impressed, commented “Good Work”. April, 1999, however, while in the flat she shared with two other officers of the Bank, she was told that Tobias wanted her to resign from her job. Tobias, the next day, confirmed the information to her saying it was a cost-cutting measure and that PNB SG was to be sold or transformed into a remittance office and either way she had to go.

Cabansag requested for a formal notice, which Tobias did not give. Subsequently, he called on her again on two occasions demanding that she resign (saying that PNB had hired a Chinese speaking Credit Officer to be able to penetrate the market), but Cabansag refused. Eventually, on April 20, 1999, she was issued a termination letter by Tobias.

Labor Arbiter ruled in favor of Cabansag, finding illegal dismissal and lack of due process on the part of the respondents, and ordered her reinstatement and payment to her, among others, of backwages, damages, attorney’s fees NLRC affirmed, though reduced award of moral & exemplary damages CA concurred, stating that Cabansag’s procurement of employment pass with SG gov’t did not constitute a waiver of the jurisdiction of Philippine labor laws over her person and that PNB failed to adduce evidence of just cause or due process for her termination

ISSUE:

WON NLRC NCR has jurisdiction and is the appropriate venue for the settlement of the dispute and WON Cabansag had been illegally dismissed

HELD/RATIO:

SC reiterated: basic policy that all Filipino workers, whether employed locally or overseas, enjoy the protective mantle of Philippine labor and social

legislations; our labor statutes may not be rendered ineffective by laws or judgments promulgated, or stipulations agreed upon, in a foreign country.

NLRC jurisdiction provided by Art. 217 of LC: Labor Arbiters shall have original and exclusive jurisdiction to hear and decide, within thirty (30) calendar days after the submission of the case by the parties for decision without extension, even in the absence of stenographic notes, the following cases involving all workers, whether agricultural or non-agricultural:

1. Unfair labor practice cases;

2. Termination disputes;

3. If accompanied with a claim for reinstatement, those cases that workers may file involving wage, rates of pay, hours of work and other terms and conditions of employment

4. Claims for actual, moral, exemplary and other forms of damages arising from the employer-employee relations;

5. Cases arising from any violation of Article 264 of this Code, including questions involving the legality of strikes and lockouts; and

6. Except claims for Employees Compensation, Social Security, Medicare and maternity benefits, all other claims, arising from employer-employee relations, including those of persons in domestic or household service, involving an amount of exceeding five thousand pesos (P5,000.00) regardless of whether accompanied with a claim for reinstatement.

(b) The commission shall have exclusive appellate jurisdiction over all cases decided by Labor Arbiters

R.A. 8042 also provides under SECTION 10. Money Claims. — Notwithstanding any provision of law to the contrary, the Labor Arbiters of the National Labor Relations Commission (NLRC) shall have the original and exclusive jurisdiction to hear and decide, within ninety (90) calendar days after the filing of the complaint, the claims arising out of an employer-employee relationship or by virtue of any law or contract involving Filipino workers for overseas deployment including claims for actual, moral, exemplary and other forms of damages.

Labor arbiters thus clearly have original and exclusive jurisdiction over claims arising from employer-employee relations, including termination disputes involving all workers, among whom are overseas Filipino workers (OFW). Being a “direct hire” in Singapore did not mean she is beyond the coverage of Philippine laws; in fact, her securing of the POEA certificate supports the contrary. The case of Royal Crown International v NLRC bolsters the fact of protective mantle of Phil. Labor laws, notwithstanding the existence of contrary contract stipulations. Such policy of protection is embodied in the Constitution, the Labor Code and Art. 17 of Civil Code.

As to venue, R.A. 8042 (Migrant Workers & Overseas Filipinos Act of 1995) governs. Cabansag properly falls under the classification of migrant worker

(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; to be used interchangeably with overseas Filipino worker) and thus has two options as to venue: (1) at the Regional Arbitration Branch (RAB) where she resides or (2) at the RAB where the principal office of her employer is situated. Since her dismissal by petitioner, respondent has returned to the Philippines -- specifically to her residence at Filinvest II, Quezon City. Thus, in filing her Complaint before the RAB office in Quezon City, she has made a valid choice of proper venue.

As to 3rd issue, Cabansag at that time already deemed a regular employee, following the cessation of her probationary status. As such, she is entitled to full benefits, privileges, rights under the law. In dismissing employees, the employer must furnish them two written notices: 1) one to apprise them of the particular acts or omissions for which their dismissal is sought; and 2) the other to inform them of the decision to dismiss them. As to the requirement of a hearing, its essence lies simply in the opportunity to be heard. Both were not complied with.

There was no just cause for her termination either. Section 282-284 of LC provide the grounds for dismissal, none of which PNB asserted or proved. PNB asserts that Cabansag agreed to be bound by the terms of the contract. However, as time and again stated by the Court: contractual stipulations should not contravene labor laws and since contracts of employment are imbued with public interest, the provisions of positive law are deemed to govern the contractual relations.

Manner of termination (harassment, pressure) also justify the award of damages.

Assailed decision therefore affirmed.

PHILIPPINE ASSOCIATION OF SERVICE EXPORTERS, INC., petitioner, vs. HON. FRANKLIN M. DRILON as Secretary of Labor and Employment, and TOMAS D. ACHACOSO, as Administrator of the Philippine Overseas Employment Administration, respondents.

June 30, 1988, SARMIENTO, J.:

FACTS:

The petitioner, Philippine Association of Service Exporters, Inc. (PASEI, for short), a firm "engaged principally in the recruitment of Filipino workers, male and female, for overseas placement," challenges the Constitutional validity of Department Order No. 1, Series of 1988, of the Department of Labor and Employment, in the character of "GUIDELINES GOVERNING THE TEMPORARY SUSPENSION OF DEPLOYMENT OF FILIPINO DOMESTIC AND HOUSEHOLD WORKERS," in this petition for certiorari and prohibition. Specifically, the measure is assailed for "discrimination against males or females;"  that it "does not apply to all Filipino workers but only to domestic helpers and females with similar skills;" and that it is violative of the right to travel. It is held likewise to be an invalid exercise of the lawmaking power, police power being legislative, and not executive, in character.

In its supplement to the petition, PASEI invokes Section 3, of Article XIII, of the Constitution, providing for worker participation "in policy and decision-making processes affecting their rights and benefits as may be provided by law."  Department Order No. 1, it is contended, was passed in the absence of prior consultations. It is claimed, finally, to be in violation of the Charter's non-impairment clause, in addition to the "great and irreparable injury" that PASEI members face should the Order be further enforced.

On May 25, 1988, the Solicitor General, on behalf of the respondents Secretary of Labor and Administrator of the Philippine Overseas Employment Administration, filed a Comment informing the Court that on March 8, 1988, the respondent Labor Secretary lifted the deployment ban in the states of Iraq, Jordan, Qatar, Canada, Hongkong, United States, Italy, Norway, Austria, and Switzerland. * In submitting the validity of the challenged "guidelines," the Solicitor General invokes the police power of the Philippine State.

It is admitted that Department Order No. 1 is in the nature of a police power measure.

ISSUE/HELD : WON Dept Order No. 1 valid exercise of Police Power under consti YES

RATIO:

As a general rule, official acts enjoy a presumed validity. In the absence of clear and convincing evidence to the contrary, the presumption logically stands.

The petitioner has shown no satisfactory reason why the contested measure should be nullified. There is no question that Department Order No. 1 applies only to "female contract workers," 14 but it does not thereby make an undue discrimination between the sexes. It is well-settled that "equality before the law" under the Constitution 15does not import a perfect Identity of rights among all men and women. It admits of classifications, provided that (1) such classifications rest on substantial distinctions; (2) they are germane to the purposes of the law; (3) they are not confined to existing conditions; and (4) they apply equally to all members of the same class. 16

The Court is satisfied that the classification made-the preference for female workers — rests on substantial distinctions.

As a matter of judicial notice, the Court is well aware of the unhappy plight that has befallen our female labor force abroad, especially domestic servants, amid exploitative working conditions marked by, in not a few cases, physical and personal abuse. The sordid tales of maltreatment suffered by migrant Filipina workers, even rape and various forms of torture, confirmed by testimonies of returning workers, are compelling motives for urgent Government action. As precisely the caretaker of Constitutional rights, the Court is called upon to protect victims of exploitation. In fulfilling that duty, the Court sustains the Government's efforts.

The same, however, cannot be said of our male workers. In the first place, there is no evidence that, except perhaps for isolated instances, our men abroad have been afflicted with an Identical predicament. The petitioner has proffered no argument that the Government should act similarly with respect to male workers. The Court, of course, is not impressing some male chauvinistic notion that men are superior to women. What the Court is saying is that it was largely a matter of evidence (that women domestic workers are being ill-treated abroad in massive instances) and not upon some fanciful or arbitrary yardstick that the Government acted in this case. It is evidence capable indeed of unquestionable demonstration and evidence this Court accepts. The Court cannot, however, say the same thing as far as men are concerned. There is simply no evidence to justify such an inference. Suffice it to state, then, that insofar as classifications are concerned, this Court is content that distinctions are borne by the evidence. Discrimination in this case is justified.

There is likewise no doubt that such a classification is germane to the purpose behind the measure. Unquestionably, it is the avowed objective of Department Order No. 1 to "enhance the protection for Filipino female overseas workers" 17 this Court has no quarrel that in the midst of the terrible mistreatment Filipina workers have suffered abroad, a ban on deployment will be for their own good and welfare.

The Order does not narrowly apply to existing conditions. Rather, it is intended to apply indefinitely so long as those conditions exist. This is clear from the Order itself

("Pending review of the administrative and legal measures, in the Philippines and in the host countries . . ." 18), meaning to say that should the authorities arrive at a means impressed with a greater degree of permanency, the ban shall be lifted. As a stop-gap measure, it is possessed of a necessary malleability, depending on the circumstances of each case.

The Court finds, finally, the impugned guidelines to be applicable to all female domestic overseas workers. That it does not apply to "all Filipina workers" 20 is not an argument for unconstitutionality. Had the ban been given universal applicability, then it would have been unreasonable and arbitrary. For obvious reasons, not all of them are similarly circumstanced. What the Constitution prohibits is the singling out of a select person or group of persons within an existing class, to the prejudice of such a person or group or resulting in an unfair advantage to another person or group of persons. To apply the ban, say exclusively to workers deployed by A, but not to those recruited by B, would obviously clash with the equal protection clause of the Charter. It would be a classic case of what Chase refers to as a law that "takes property from A and gives it to B." 21 It would be an unlawful invasion of property rights and freedom of contract and needless to state, an invalid act. 22 (Fernando says: "Where the classification is based on such distinctions that make a real difference as infancy, sex, and stage of civilization of minority groups, the better rule, it would seem, is to recognize its validity only if the young, the women, and the cultural minorities are singled out for favorable treatment. There would be an element of unreasonableness if on the contrary their status that calls for the law ministering to their needs is made the basis of discriminatory legislation against them. If such be the case, it would be difficult to refute the assertion of denial of equal protection."   23   In the case at bar, the assailed Order clearly accords protection to certain women workers, and not the contrary.)

DO 1 does not contemplate a total ban.

The consequence the deployment ban has on the right to travel does not impair the right. The right to travel is subject, among other things, to the requirements of "public safety," "as may be provided by law." 25 Department Order No. 1 is a valid implementation of the Labor Code, in particular, its basic policy to "afford protection to labor," 26 pursuant to the respondent Department of Labor's rule-making authority vested in it by the Labor Code.27 The petitioner assumes that it is unreasonable simply because of its impact on the right to travel, but as we have stated, the right itself is not absolute. The disputed Order is a valid qualification thereto.

Neither is there merit in the contention that Department Order No. 1 constitutes an invalid exercise of legislative power. It is true that police power is the domain of the legislature, but it does not mean that such an authority may not be lawfully delegated. As we have mentioned, the Labor Code itself vests the Department of Labor and Employment with rulemaking powers in the enforcement whereof. 

The petitioners's reliance on the Constitutional guaranty of worker participation "in policy and decision-making processes affecting their rights and benefits"  is not well-

taken. The right granted by this provision, again, must submit to the demands and necessities of the State's power of regulation.

The Constitution declares that:

Sec. 3. The State shall afford full protection to labor, local and overseas, organized and unorganized, and promote full employment and equality of employment opportunities for all. 30

"Protection to labor" does not signify the promotion of employment alone. What concerns the Constitution more paramountly is that such an employment be above all, decent, just, and humane. It is bad enough that the country has to send its sons and daughters to strange lands because it cannot satisfy their employment needs at home. Under these circumstances, the Government is duty-bound to insure that our toiling expatriates have adequate protection, personally and economically, while away from home. In this case, the Government has evidence, an evidence the petitioner cannot seriously dispute, of the lack or inadequacy of such protection, and as part of its duty, it has precisely ordered an indefinite ban on deployment.

The non-impairment clause of the Constitution, invoked by the petitioner, must yield to the loftier purposes targetted by the Government. 31 Freedom of contract and enterprise, like all other freedoms, is not free from restrictions, more so in this jurisdiction, where laissez faire has never been fully accepted as a controlling economic way of life.

This Court understands the grave implications the questioned Order has on the business of recruitment. The concern of the Government, however, is not necessarily to maintain profits of business firms. In the ordinary sequence of events, it is profits that suffer as a result of Government regulation. The interest of the State is to provide a decent living to its citizens. The Government has convinced the Court in this case that this is its intent. We do not find the impugned Order to be tainted with a grave abuse of discretion to warrant the extraordinary relief prayed for.

G.R. No. 138193            March 5, 2003

OSM SHIPPING PHILIPPINES, INC., petitioner, vs. NATIONAL LABOR RELATIONS COMMISSION (Third Division) and FERMIN F. GUERRERO, respondents.

Doctrine: Unilateral decisions to alter the use of a vessel from overseas service to coastwise shipping will not affect the validity of an existing employment contract validly executed. Workers should not be prejudiced by actions done solely by employers without the former's consent or participation.

Facts:

Guerrero was hired by OSM for and in behalf of its principal, Phil Carrier to board its vessel MN '[Princess] Hoa' as a Master Mariner for a contract period of 10 months. He boarded the vessel in July 1994 and complied faithfully with the duties assigned to him.

Guerrero alleged that from the start of his work with MN 'Princess Hoa', he was not paid any compensation at all and was forced to disembark the vessel sometime in January 1995 because he cannot even buy his basic personal necessities. For almost 7 months, despite the services he rendered, no compensation or remuneration was ever paid to him. Hence, this case for illegal dismissal, [non-payment] of salaries, overtime pay and vacation pay against OSM Shipping and its principal, Philippine Carrier Shipping Agency Services Co (PC-SASCO).

OSM, for its part, alleged that on July 26, 1994, Concorde Pacific, an American company which owns MN 'Princess Hoa', then a foreign registered vessel, appointed Philippine Carrier as ship manager particularly to negotiate, transact and deal with any third persons, entities or corporations in the planning of crewing selection or determination of qualifications of Filipino Seamen. On the same date, OSM entered into a Crew Agreement with Phil Carrier for the purpose of processing the documents of crew members of MN 'Princess Hoa'. Thereafter, the contract of Guerrero was processed before the POEA on September 1994.

OSM alleged further that the shipowner changed its plans on the use of the vessel. Instead of using it for overseas trade, it decided to use it in the coastwise trade, thus, the crewmembers hired never left the Philippines and were merely used by the shipowner in the coastwise trade. Considering that the MN 'Princess Hoa' was a foreign registered vessel and could not be used in the coastwise trade, the shipowner converted the vessel to Philippine registry on September 1994 by way of bareboat chartering it out to another entity named Philippine Carrier Shipping Lines Co. (PCSLC). To do this, the shipowner through Conrado Tendido had to terminate its management agreement with PC-SASCO on September 1994. In the same letter of

termination, the ship owner stated that it has bareboat chartered out the vessel to said [PCSLC] and converted it into Philippine registry. Consequently, PC-SASCO terminated its crew agreement with OSM in a letter dated December 1994. Because of the bareboat charter of the vessel to PCSLC and its subsequent conversion to Philippine registry and use in coastwise trade as well as to the termination of the management agreement and crew agency agreement, a termination of contract ensued whereby PCSLC, the bareboat charterer, became the disponent owner/employer of the crew.

As a disponent owner/employer, PCSLC is now responsible for the payment of complainant's wages.

Labor Arbiter Manuel Caday rendered a Decision in favor of Guerrero. OSM and its principal, PC-SASCO, were ordered to jointly and severally pay Guerrero his unpaid salaries and allowances, accrued fixed overtime pay, vacation leave pay and termination pay. The Decision held that there was a constructive dismissal of private respondent, since he had not been paid his salary for seven months. It also dismissed OSM's contention that there was a novation of the employment contract.

NLRC affirmed the LA's Decision, with a modification as to the amount of liability. CA dismissed the petition because OSM failed to comply with the requirements of Section 3 of Rule 46 of the Rules of Court.

Issue: Did the NLRC commit grave abuse of discretion in ruling in favor of private respondent?

Held: No

Ratio:

The Court is mindful of the plight of Guerrero and, indeed, of workers in general who are seeking to recover wages that are being unlawfully withheld from them. Such recovery should not be needlessly delayed at the expense of their survival. This case is now on its ninth year since its inception at the LA's office. Its remand to the CA will only unduly delay its disposition. In the interest of substantial justice, this Court will decide the case on the merits based upon the records of the case.

On behalf of its principal, PC-SASCO, OSM does not deny hiring Guerrero as master mariner. However, it argues that since he was not deployed overseas, his employment contract became ineffective, because its object was allegedly absent. Petitioner contends that using the vessel in coastwise trade and subsequently chartering it to another principal had the effect of novating the employment contract. We are not persuaded.

As approved by POEA, OSM was the legitimate manning agent of PC-SASCO. As such, it was allowed to select, recruit, hire and deploy seamen on board the vessel M/V Princess Hoa, which was managed by its principal, PC-SASCO. It was in this capacity that OSM hired Guerrero as master mariner. They then executed and agreed upon an employment contract.

An employment contract, like any other contract, is perfected at the moment (1) the parties come to agree upon its terms; and (2) concur in the essential elements thereof: (a) consent of the contracting parties, (b) object certain which is the subject matter of the contract and (c) cause of the obligation. Based on the perfected contract, Guerrero complied with his obligations thereunder and rendered his services on board the vessel. Contrary to OSM's contention, the contract had an object, which was the rendition of service by Guerrero on board the vessel. The non-deployment of the ship overseas did not affect the validity of the perfected employment contract. After all, the decision to use the vessel for coastwise shipping was made by OSM only and did not bear the written conformity of Guerrero. A contract cannot be novated by the will of only one party. The claim of OSM that it processed the contract of Guerrero with the POEA only after he had started working is also without merit. OSM cannot use its own misfeasance to defeat his claim.

OSM, as manning agent, is jointly and severally liable with its principal, PC-SASCO, for Guerrero's claim. This conclusion is in accordance with Section 1 of Rule II of the POEA Rules and Regulations. Joint and solidary liability is meant to assure aggrieved workers of immediate and sufficient payment of what is due them. The fact that OSM and its principal have already terminated their agency agreement does not relieve the former of its liability.

[G.R. No. 120095.  August 5, 1996]

JMM PROMOTION AND MANAGEMENT, INC., and KARY INTERNATIONAL, INC.,petitioner, vs. HON. COURT OF APPEALS, HON. MA. NIEVES CONFESSOR, then Secretary of the Department of the Labor and Employment, HON. JOSE BRILLANTES, in his capacity as acting Secretary of the Department of Labor and Employment and HON.  FELICISIMO JOSON, in his capacity as Administrator of the Philippine Overseas Employment Administration, respondents.

FACTS:

Following the much-publicized death of Maricris Sioson in 1991, former President Corazon C. Aquino ordered a total ban against the deployment of performing artists to Japan and other foreign destinations. The ban was, however, rescinded after leaders of the overseas employment industry promised to extend full support for a program aimed at removing kinks in the system of deployment.  In its place, the government, through the Secretary of Labor and Employment, subsequently issued Department Order No. 28, creating the Entertainment Industry Advisory Council (EIAC), which was tasked with issuing guidelines on the training, testing certification and deployment of performing artists abroad.

Pursuant to the EIAC's recommendations, the Secretary of Labor, on January 6, 1994, issued Department Order No. 3 establishing various procedures and requirements for screening performing artists under a new system of training, testing, certification and deployment of the former.  Performing artists successfully hurdling the test, training and certification requirement were to be issued an Artist's Record Book (ARB), a necessary prerequisite to processing of any contract of employment by the POEA.  

The Federation of Entertainment Talent Managers of the Philippines (FETMOP), on January 27, 1995 filed a class suit assailing these department orders, principally contending that said orders 1) violated the constitutional right to travel; 2) abridged existing contracts for employment; and 3) deprived individual artists of their licenses without due process of law.  FETMOP, likewise, averred that the issuance of the Artist Record Book (ARB) was discriminatory and illegal and "in gross violation of the constitutional right... to life liberty and property." Said Federation consequently prayed for the issuance of a writ of preliminary injunction against the aforestated orders. JMM Promotion and Management, Inc. and Kary International, Inc., herein petitioners, filed a Motion for Intervention in said civil case, which was granted by the trial court. The trial court dismissed the complaint. On appeal, respondent court dismissed the same.

ISSUE: WON the issued department orders of the Dep. Of Labor are a valid exercise of police power and not violative of any constitutional rights? – YES

HELD:

Salus populi est suprema lex. A thorough review of the facts and circumstances leading to the issuance of the assailed orders compelled the court to rule that the Artist Record Book requirement and the questioned Department Order related to its issuance were issued by the Secretary of Labor pursuant to a valid exercise of the police power.

Purpose of the Regulations (Issuances of the Orders)

Clearly, the welfare of Filipino performing artists, particularly the women was paramount in the issuance of Department Order No. 3.  Short of a total and absolute ban against the deployment of performing artists to "high risk" destinations, a measure which would only drive recruitment further underground, the new scheme at the very least rationalizes the method of screening performing artists by requiring reasonable educational and artistic skills from them and limits deployment to only those individuals adequately prepared for the unpredictable demands of employment as artists abroad.  The tests are aimed at segregating real artists or performers from those passing themselves off as such, eager to accept  any available job and therefore exposing themselves to possible exploitation. It cannot be gainsaid that this scheme at least lessens the room for exploitation by unscrupulous individuals and agencies.

In any event, apart from the State's police power, the Constitution itself mandates government to extend the fullest protection to our overseas workers. Obviously, protection to labor does not indicate promotion of employment alone.  Under the welfare and social justice provisions of the Constitution, the promotion of full employment, while desirable, cannot take a backseat to the government's constitutional duty to provide mechanisms for the protection of our workforce, local or overseas.

The Profession as a Property Right vs Police Power

A profession, trade or calling is a property right within the meaning of our constitutional guarantees. One cannot be deprived of the right to work and the right to make a living because these rights are property rights, the arbitrary and unwarranted deprivation of which normally constitutes an actionable wrong.

Nevertheless, no right is absolute, and the proper regulation of a profession, calling, business or trade has always been upheld as a legitimate subject of a valid exercise of the police power by the state particularly when their conduct affects either the execution of legitimate governmental functions, the preservation of the State, the public health and welfare and public morals.  According to the maxim, sic utere tuo ut alienum

non laedas, it must of course be within the legitimate range of legislative action to define the mode and manner in which every one may so use his own property so as not to pose injury to himself or others.

In any case, where the liberty curtailed affects at most the rights of property, the permissible scope of regulatory measures is certainly much wider. To pretend that licensing or accreditation requirements violates the due process clause is to ignore the settled practice, under the mantle of the police power, of regulating entry to the practice of various trades or professions.  Professionals leaving for abroad are required to pass rigid written and practical exams before they are deemed fit to practice their trade. Seamen are required to take tests determining their seamanship.  Locally, the Professional Regulation Commission has began to require previously licensed doctors and other professionals to furnish documentary proof that they had either re-trained or had undertaken continuing education courses as a requirement for renewal of their licenses.  It is not claimed that these requirements pose an unwarranted deprivation of a property right under the due process clause.  So long as Professionals and other workers meet reasonable regulatory standards no such deprivation exists.

Do not violate the Non-Impairment Clause and Equal Protection Clause

Finally, it is a futile gesture on the part of petitioners to invoke the non-impairment clause of the Constitution to support their argument that the government cannot enact the assailed regulatory measures because they abridge the freedom to contract.  In Philippine Association of Service Exporters, Inc. vs. Drilon, we held that "[t]he non-impairment clause of the Constitution... must yield to the loftier purposes targeted by the government." Equally important, into every contract is read provisions of existing law, and always, a reservation of the police power for so long as the agreement deals with a subject impressed with the public welfare.

Petitioners suggest that the singling out of entertainers and performing artists under the assailed department orders constitutes class legislation which violates the equal protection clause of the Constitution.  The court does not agree. In the case at bar, the challenged Department Order clearly applies to all performing artists and entertainers destined for jobs abroad.

Holding (maybe?)

These orders, we stressed hereinbefore, further the Constitutional mandate requiring Government to protect our workforce, particularly those who may be prone to abuse and exploitation as they are beyond the physical reach of government regulatory agencies.  The tragic incidents must somehow stop, but short of absolutely curtailing the right of these performers and entertainers to work abroad, the assailed measures enable our government to assume a measure of control.

The Executive Secretary v CA

Petitioners: Executive Sec, Sec of Justice, Labor Sec, POEA, OWWA

Respondents: Asian Recruitment Council Philippine Charter (ARCO)

Facts:

RA 8042 Migrant Workers and Overseas Filipino Act of 1995 took effect on July 15, 1995. The Omnibus Rules and Regulations Implementing RA 8042 was published in the April 7, 1996 issue of Manila Bulletin. Before the law took effect, ARCO filed on July 17, 1995 a petition for declaratory relief to declare as unconstitutional several sections: Sec 6 (a)-(m) on illegal recruitment, Sec 7 on penalties for illegal recruitment, and Sec 9 on venue of criminal actions for illegal recruitment. ARCO alleged that RA 8042 was self-executory and that no implementing rules were needed.

RTC declared RA 8042 as unconstitutional. CA affirmed. SC reversed.

Provision / Issue Respondent (unconsti)

Petitioners (consti)

Supreme Court

Locus standi With standing. Sued in behalf of 11 member agencies that will sustain damage as a result of the law.

No standing. Not a juridical entity. ARCO will not sustain damage.

With standing to represent its 11 members but not the unskilled workers.

Representation of members – An association has standing to complain of injuries to its members. Must show that the suing party has substantial relation to the damaged party.

Under AOI, ARCO’s purpose is to act as representative on

matters related to manpower industry.

No standing as to unskilled workers. ARCo did not even implead them. No evidence that they were given authority by said workers to sue in their behalf.

Ex post facto laws and bill of attainder

Violates the Consti prohibition.

The provision presume that a licensed agency is guilty upon a finding that it committed any of the prohibited acts (presumed guilty).

Not ex post facto because it is not applied retroactively. RA 8042 is an amendment of LC.

Not bill of attainder as well. Conviction will only be made after trial..

Bills of attainder – legislative acts which inflict punishment without judicial trial.

Elements:

1. affected individuals/groups

2. imposition of punishment

3. lack of judicial trial

Sec 2 (g)

Deployment of SKILLED workers only

Violates Sec 1 Art 3 of Consti

- discriminated against skilled and unskilled workers

- violation of equal protection clause (EPC), due process

- encourages fly-by-night agencies

NOT UNCONSTI

On the assailed provisions, Court said that it is moot since Court has already applied said provisions in numerous cases. Hence not unconstitutional.

State has a right to regulate a profession/trade under its police power.

Employee of an entity engaged in illegal recruitment may be criminally liable as principal if he has actively and consciously participated in illegal recruitment.

Penalizing unlicensed agencies and officers/employees working in gov't is not offensive. The accused will only be convicted AFTER trial.

Sec 6 Illegal Recruitment

Act of canvassing, enlisting, contracting…workers and includes referring, contract services, promising or advertising for employment by a non-licensee or non-holder or authority.

Illegal recruitment by SYNDICATE or in LARGE SCALE shall be considered an offense involving economic sabotage.

Placed licensed agencies on equal footing with illegal recruiters.

Repugnant to EPC.

Agencies will automatically be considered large scale/syndicate because they operate with manpower of more than 3 persons.

Syndicate – illegal recruitment by a group of 3 or more persons conspiring or confederating with one another.

Large Scale – committed against 3 or more persons individually or as a group.

Sec 7 Penalties

Imprisonment of not less than 6 yrs. but not more than 12 years, and fine of 200-500k

Life imprisonment and fine 500-1M (economic sabotage or if victim is a minor)

Penalty is disproportionate to the prohibited acts.

Sec 11 Mandatory provisions of resolution of illegal recruitment cases

90 days from receipt of complaint

90 day period is relatively short. Serving of summons upon foreign employers and filing of answer requires a longer time.

SC:

Court admonished the RTC for declaring the RA unconsti without elaborating on its reasons.

“On its Face” invalidation of statues must be used sparingly and only as a last resort.

To be entitled to a prelim injunction to declare a law unconsti, said party must show irreparable harm.

Fear or chilling effect does not by itself justify the prohibition on the State to enforce said law.

Congress is empowered to define what shall constitute a crime and to prescribe punishment.

Class legislation – denies rights to one which are accorded to others or inflicts upon 1 individual a more severe penalty than is imposed upon another.

Mere speculation of harm/damage is not enough to sustain an injunction.

G.R. No. 154213               August 23, 2012

EASTERN MEDITERRANEAN MARITIME LTD. AND AGEMAR MANNING AGENCY, INC., Petitioners, vs. ESTANISLAO SURIO, et. al., Respondents.

FACTS:

Respondents were former crewmembers of MT Seadance, a vessel owned by petitioner Eastern Mediterranean Maritime Ltd., and manned and operated by petitioner Agemar Manning Agency, Inc.

While on board the vessel, the respondents had experienced delays in payment of their wages and in the remittance of their allotments and they were not paid for extra work or extra overtime; they also complained of inadequate equipment and poor working conditions

When the vessel came to dock in Switzerland, authorities from the International Transport Federation (ITF) boarded and found out that indeed the respondents were receiving less than the prevailing wage rates negotiations followed between ITF and the vessel owner which resulted in payment of differentials to the respondents and their subsequent repatriation to the Philippines

A few days after, however, Eastern Mediterranean filed at the POEA a complaint for disciplinary action against the newly-repatriated respondents based on breach of discipline and for the reimbursement of wage increases

During pendency of the action, R.A. 8042 (Migrant Workers and Overseas Filipinos Act of 1995) took effect on July 15, 1995, vesting with the Labor Arbiter original and exclusive jurisdiction over money claims arising out of employer-employee relationships involving overseas Filipino workers (jurisdiction was formerly exercised by POEA)

POEA dismissed the complaint appeal made with NLRC, which also dismissed, saying they had no jurisdiction petitioners filed pet. For certiorari and mandamus with SC which referred the same to CA CA dismissed ruling that jurisdiction lay with POEA, to the exclusion of NLRC

ISSUE: WON the NLRC has jurisdiction to review on appeal cases decided by the POEA on matters pertaining to disciplinary actions

HELD/RATIO:

Perusal of the POEA rules and the IRR of R.A. 8042 show that NLRC has no jurisdiction to review disciplinary cases decided by the POEA; the matter of inclusion and deletion of overseas contract workers in the POEA

Blacklist/Watchlist is within the exclusive jurisdiction of the POEA to the exclusion of NLRC

Although the passage of the new law transferred jurisdiction over money claims from POEA to the Labor Arbiter, POEA retained jurisdiction over disciplinary/administrative cases involving overseas workers

Petitioners should have appealed the adverse decision of the POEA to the Secretary of Labor instead of to the NLRC. Consequently, the CA, being correct on its conclusions, committed no error in upholding the NLRC [When Republic Act No. 8042 withheld the appellate jurisdiction of the NLRC in respect of cases decided by the POEA, the appellate jurisdiction was vested in the Secretary of Labor in accordance with his power of supervision and control under Section 38(1), Chapter 7, Title II, Book III of the Revised Administrative Code of 1987]

RELEVANT DISCUSSION BY SC:

o In a way, R.A. 8042 was a procedural law.

Procedural laws do not come within the legal conception of a retroactive law, or the general rule against the retroactive operation of statues ― they may be given retroactive effect on actions pending and undetermined at the time of their passage and this will not violate any right of a person who may feel that he is adversely affected, insomuch as there are no vested rights in rules of procedure.

Republic Act No. 8042 applies to petitioners’ complaint by virtue of the case being then still pending or undetermined at the time of the law’s passage, there being no vested rights in rules of procedure. They could not validly insist that the reckoning period to ascertain which law or rule should apply was the time when the disciplinary complaint was originally filed in the POEA in 1993. Moreover, Republic Act No. 8042 and its implementing rules and regulations were already in effect when petitioners took their appeal. A statute that eliminates the right to appeal and considers the judgment rendered final and unappealable only destroys the right to appeal, but not the right to prosecute an appeal that has been perfected prior to its passage, for, at that stage, the right to appeal has already vested and cannot be impaired. Conversely and by analogy, an appeal that is perfected when a new statute affecting appellate jurisdiction comes into effect should comply with the provisions of the new law, unless otherwise provided by the new law. Relevantly, petitioners need to be reminded that the right to appeal from a decision is a privilege established by positive laws, which, upon authorizing the taking of the appeal, point out the cases in which it is proper to present the appeal, the procedure to be observed, and the courts by which the appeal is to be proceeded with and resolved. This is why we consistently hold that the right to appeal is statutory in character, and is available only if granted by law or statute.

SUNACE INTERNATIONAL MANAGEMENT SERVICES, INC.Petitioner, vs. NATIONAL LABOR RELATIONS COMMISSION, Second Division; HON. ERNESTO S. DINOPOL, in his capacity as Labor Arbiter, NLRC; NCR, Arbitration Branch, Quezon City and DIVINA A. MONTEHERMOZO,Respondents.

January 25, 2006 CARPIO MORALES, J.:

Sunace International Management Services (Sunace), deployed Divina A. Montehermozo (Divina) to Taiwan as domestic helper under 12-month contract. This is with assistance of Taiwanese broker, Edmund Wang.

After the 12-month contract expired, Divina continued to work for 2 more years.

Shortly after her return or on February 14, 2000, Divina filed a complaint2 before the National Labor Relations Commission (NLRC) against Sunace, one Adelaide Perez, the Taiwanese broker, and the employer-foreign principal alleging that she was jailed for three months and that she was underpaid.

Divina was claiming the refund of the deduction for income tax and savings under the one-year and 2-year extened contract.

YearDeduction for Income Tax Deduction for Savings

1997 NT10,450.00 NT23,100.00

1998 NT9,500.00 NT36,000.00

1999 NT13,300.00 NT36,000.00;

Sunace says she was not entitled to refund for 24 months savings because employer did not deduct any from her salary from there. There is also no basis for her claim of tax refund because as the she finished her   one year contract   and hence, was not illegally dismissed by her employer . (not entitled to compensation because no injury suffered)

Reacting to Divina’s Position Paper, Sunace filed on April 25, 2000 an ". . . answer to complainant’s position paper"7 alleging that Divina’s 2-year extension of her contract was without its knowledge and consent, hence, it had no liability attaching to any claim arising therefrom, and Divina in fact executed a Waiver/Quitclaim and Release of Responsibility and an Affidavit of Desistance, copy of each document was annexed to said ". . . answer to complainant’s position paper."

Labor Arbiter, rejected Sunace’s claim that the extension of Divina’s contract for two more years was without its knowledge (communication between Sunace and Edmund Wang). Labor Arbiter also says that any agreement for settlement (quitclaim) should be reduced to writing and signed by parties and counsel before Labor Arbiter. Held for Divina, Sunace and Adelaida Perge (owner) jointly and severally for the amounts.

NLRC affirmed LA. CA dismissed petition for certiorari. Principal-agent relationship.

Issue: WON Sunace can be held liable for the money claims of DivinaHeld: No. Sunace not privy to extended contract.Petition granted.Ratio:The February 21, 2000 telefax message from the Taiwanese broker to Sunace, the only basis of a finding of continuous communication, reads verbatim:

x x x xRegarding to Divina, she did not say anything about her saving in police station. As we contact with her employer, she took back her saving already last years. And they did not deduct any money from her salary. Or she will call back her employer to check it again. If her employer said yes! we will get it back for her.Thank you and best regards.Edmund WangPresident

The message does not provide evidence that Sunace was privy to the new contract executed after the expiration on February 1, 1998 of the original contract. That Sunace and the Taiwanese broker communicated regarding Divina’s allegedly withheld savings does not necessarily mean that Sunace ratified the extension of the contract. As Sunace points out in its Reply filed before the Court of Appeals,

As can be seen from that letter communication, it was just an information given to the petitioner that the private respondent had t[aken] already her savings from her foreign employer and that no deduction was made on her salary. It contains nothing about the extension or the petitioner’s consent thereto.

Parenthetically, since the telefax message is dated February 21, 2000, it is safe to assume that it was sent to enlighten Sunace who had been directed, by Summons issued on February 15, 2000, to appear on February 28, 2000 for a mandatory conference following Divina’s filing of the complaint on February 14, 2000.

There being no substantial proof that Sunace knew of and consented to be bound under the 2-year employment contract extension, it cannot be said to be privy thereto. As such, it and its "owner" cannot be held solidarily liable for any of Divina’s claims arising from the 2-year employment extension. As the New Civil Code provides,

Contracts take effect only between the parties, their assigns, and heirs, except in case where the rights and obligations arising from the contract are not transmissible by their nature, or by stipulation or by provision of law.

Furthermore, as Sunace correctly points out, there was an implied revocation of its agency relationship with its foreign principal when, after the termination of the original employment contract, the foreign principal directly negotiated with Divina and entered into a new and separate employment contract in Taiwan. Article 1924 of the New Civil Code reading

The agency is revoked if the principal directly manages the business entrusted to the agent, dealing directly with third persons.

People of the Philippines vs. Hon. Domingo Panis 142 SCRA 664 (1986)

Facts:

Four informations were filed on January 9, 1981, in the CFI of Zambales and Olongapo City alleging that Serapio Abug, private respondent herein, "without first securing a license from the Ministry of Labor as a holder of authority to operate a fee-charging employment agency, did then and there wilfully, unlawfully and criminally operate a private fee-charging employment agency by charging fees and expenses (from) and promising employment in Saudi Arabia" to four separate individuals named therein, in violation of Article 16 in relation to Article 39 of the Labor Code.

Abug filed a motion to quash on the ground that the informations did not charge an offense because he was accused of illegally recruiting only one person in each of the four informations. Under the proviso in Article 13(b), he claimed, there would be illegal recruitment only "whenever two or more persons are in any manner promised or offered any employment for a fee." 

The posture of the petitioner is that the Abug is being prosecuted under Article 39 in relation to Article 16 of the Labor Code; hence, Article 13(b) is not applicable. However, as the first two cited articles penalize acts of recruitment and placement without proper authority, which is the charge embodied in the informations, application of the definition of recruitment and placement in Article 13(b) is unavoidable.

Issue: What is the correct interpretation of Article 13(b) of P. D. 442, otherwise known as the Labor Code.

Held/Ratio:

Article 13(b) of the Labor Code, states that, "(b) 'Recruitment and placement' refers to any act of canvassing, 'enlisting, contracting, transporting, 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."

The posture of the petitioner is that Abug is being prosecuted under Article 39 in relation to Article 16 of the Labor Code; hence, Article 13(b) is not applicable. However, as the first two cited articles penalize acts of recruitment and placement without proper

authority, which is the charge embodied in the informations, application of the definition of recruitment and placement in Article 13(b) is unavoidable.

The view of Abug is that to constitute recruitment and placement, all the acts mentioned in this article should involve dealings with two or more persons as an indispensable requirement. On the other hand, the petitioner argues that the requirement of two or more persons is imposed only where the recruitment and placement consists of an offer or promise of employment to such persons and always in consideration of a fee. The other acts mentioned in the body of the article may involve even only one person and are not necessarily for profit.

Neither interpretation is acceptable. We fail to see why the proviso should speak only of an offer or promise of employment if the purpose was to apply the requirement of two or more persons to all the acts mentioned in the basic rule. For its part, the petitioner does not explain why dealings with two or more persons are needed where the recruitment and placement consists of an offer or promise of employment but not when it is done through "canvassing, enlisting, contracting, transporting, utilizing, hiring or procuring (of) workers.

As we see it, the proviso was intended neither to impose a condition on the basic rule nor to provide an exception thereto but merely to create a presumption. The presumption is that the individual or entity is engaged in recruitment and placement whenever he or it is dealing with two or more persons to whom, in consideration of a fee, an offer or promise of employment is made in the course of the "canvassing, enlisting, contracting, transporting, utilizing, hiring or procuring (of) workers."

The number of persons dealt with 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) win constitute recruitment and placement even if only one prospective worker is involved. The proviso merely lays down a rule of evidence that where a fee is collected in consideration of a promise or offer of employment to two or more prospective workers, the individual or entity dealing with them shall be deemed to be engaged in the act of recruitment and placement. The words "shall be deemed" create that presumption.

It is unfortunate that we can only speculate on the meaning of the questioned provision for lack of records of debates and deliberations that would otherwise have been available if the Labor Code had been enacted as a statute rather than a presidential decree.

At any rate, the interpretation here adopted should give more force to the campaign against illegal recruitment and placement, which has victimized many Filipino workers

seeking a better life in a foreign land, and investing hard-earned savings or even borrowed funds in pursuit of their dream, only to be awakened to the reality of a cynical deception at the hands of their own countrymen. 

[G.R. No. 121777.  January 24, 2001]

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. CAROL M. DELA PIEDRA, accused-appellant.

FACTS:

Accused-appellant Carol M. dela Piedra questions her conviction for illegal recruitment in large scale and assails, as well, the constitutionality of the law defining and penalizing said crime. The Court affirms the constitutionality of the law and the conviction of the accused, but reduces the penalty imposed upon her.

Erlie Ramos, Attorney II of the Philippine Overseas Employment Agency (POEA), received a telephone call from an unidentified woman inquiring about the legitimacy of the recruitment conducted by a certain Mrs. Carol Figueroa.  Ramos, whose duties include the surveillance of suspected illegal recruiters, together with a friend, a certain Mayeth Bellotindos, went to No. 26-D, Tetuan  Highway, Sta. Cruz, Zamboanga City, where the recruitment was reportedly being undertaken.  After personally confirming that there were activities being conducted by the woman named Carol Figueroa that might involve illegal recruitment, Ramos conferred with a certain Capt. Mendoza of the Criminal Investigation Service (CIS) to organize the arrest of the alleged illegal recruiter.   The group planned to entrap the illegal recruiter by having one of the female members of CIS, an Eileen Fermindoza, pose as an applicant.

The entrapment was conducted in the morning of February 2 and Carol Figueroa was arrested. She and a certain Jasmine Alejandro and three other women suspected to be applicants were taken to the CIS office for investigation.

In the course of their investigation, the CIS discovered that Carol Figueroa had many aliases, among them, Carol Llena and Carol dela Piedra.  The accused was not able to present any authority to recruit when asked by the investigators. A check by Ramos with the POEA revealed that the acused was not licensed or authorized to conduct recruitment. A certification dated February 2, 1994 stating thus was executed by Renegold M. Macarulay, Officer-in-Charge of the POEA.

The CIS likewise interviewed the supposed applicants, Lourdes Modesto, Nancy Araneta and Jennelyn Baez, all registered nurses working at the Cabato Medical Hospital, who executed their respective written statements. According to them, they

heard from friends that a woman was there to recruit job applicants for Singapore so they went and apply.

The accused was charged and convicted before the RTC of Zamboanga City for the crime of Illegal Recruitment committed in a large scale and sentenced to life imprisonment and ordered to pay a fine of P100,000.

The accused appealed assigning several errors to the court, contending in main that the law defining “recruitment and placement” is void for vagueness and, thus, violates the due process clause.  Appellant also avers, as part of her sixth assigned error, that she was denied the equal protection of the laws.

ISSUES:

1. WON Sec. 13(b) of PD 442, as amended, otherwise known as Illegal Recruitment is unconstitutional? – NO

2. WON appellant was denied equal protection of the laws? – NO

3. WON appellant is guilty of the crime of Illegal Recruitment in a large scale? – NO. Guilty of only 2 counts of simple illegal recruitment

HELD:

1. Constitutionality of Section 13(b) of PD 442.

A “perfectly vague” act whose obscurity is evident on its face must be distinguished from legislation couched in imprecise language—but which nonetheless specifies a standard though defectively phrased—in which case, it may be “saved” by proper construction.

In support of her submission that Article 13 (b) is void for vagueness, appellant invokes People vs. Panis, where this Court, to use appellant’s term, “criticized” the definition of “recruitment and placement”.

However, the Court, in Panis, merely bemoaned the lack of records that would help shed light on the meaning of the proviso. The absence of such records notwithstanding, the Court was able to arrive at a reasonable interpretation of the proviso by applying principles in criminal law and drawing from the language and intent of the law itself. Section 13 (b), therefore, is not a “perfectly vague act” whose obscurity is evident on its face.   If at all, the proviso therein is merely couched in imprecise language that was salvaged by proper construction.  It is not void for vagueness.

Appellant further argues that the acts that constitute “recruitment and placement” suffer from overbreadth since by merely “referring” a person for employment, a person may be convicted of illegal recruitment. That Section 13 (b) encompasses what appellant apparently considers as customary and harmless acts such as “labor or employment referral”  (“referring” an applicant, according to appellant, for employment to a prospective employer) does not render the law overbroad. Evidently, appellant misapprehends concept of overbreadth.

A statute may be said to be overbroad where it operates to inhibit the exercise of individual freedoms affirmatively guaranteed by the Constitution, such as the freedom of speech or religion. A generally worded statute, when construed to punish conduct which cannot be constitutionally punished is unconstitutionally vague to the extent that it fails to give adequate warning of the boundary between the constitutionally permissible and the constitutionally impermissible applications of the statute. However, appellant did not even specify what constitutionally protected freedoms are embraced by the definition of “recruitment and placement” that would render the same constitutionally overbroad.

2. On Equal Protection.

Appellant also invokes the equal protection clause in her defense.  She points out that although the evidence purportedly shows that Jasmine Alejandro handed out application forms and even received Lourdes Modesto’s payment, appellant was the only one criminally charged. Alejandro, on the other hand, remained scot-free.  From this, appellant concludes that the prosecution discriminated against her on grounds of regional origins.  Appellant is a Cebuana while Alejandro is a Zamboangueña, and the alleged crime took place in Zamboanga City.

The argument has no merit.

The prosecution of one guilty person while others equally guilty are not prosecuted, however, is not, by itself, a denial of the equal protection of the laws.

A discriminatory purpose is not presumed, there must be a showing of “clear and intentional discrimination.” Appellant has failed to show that, in charging appellant in court, that there was a “clear and intentional discrimination” on the part of the prosecuting officials.

The discretion of who to prosecute depends on the prosecution’s sound assessment whether the evidence before it can justify a reasonable belief that a person has committed an offense. The presumption is that the prosecuting officers regularly performed their duties, and this presumption can be

overcome only by proof to the contrary, not by mere speculation.   Indeed, appellant has not presented any evidence to overcome this presumption.  

3. Appellant is Guilty of the crime of Simple Illegal Recruitment only.

A conviction for large scale illegal recruitment must be based on a finding in each case of illegal recruitment of three or more persons whether individually or as a group. In this case, only two persons, Araneta and Modesto, were proven to have been recruited by appellant.  The third person named in the complaint as having been promised employment for a fee, Jennelyn Baez, was not presented in court to testify.

It is true that law does not require that at least three victims testify at the trial; nevertheless, it is necessary that there is sufficient evidence proving that the offense was committed against three or more persons.

Neither can appellant be convicted for recruiting CIS agent Eileen Fermindoza or even the other persons present in the briefing of January 30, 1994.  Appellant is accused of recruiting only the three persons named in the information — Araneta, Modesto and Baez.  The information does not include Fermindoza or the other persons present in the briefing as among those promised or offered employment for a fee. To convict appellant for the recruitment and placement of persons other than those alleged to have been offered or promised employment for a fee would violate her right to be informed of the nature and cause of the accusation against her.

Because the prosecution was able to prove that appellant committed recruitment and placement against two persons only, she cannot be convicted of illegal recruitment in large scale, which requires that recruitment be committed against three or more persons.  Appellant can only be convicted of two counts of “simple” illegal recruitment, one for that committed against Nancy Araneta, and another count for that committed against Lourdes Modesto.  Appellant is sentenced, for each count, to suffer the penalty of four (4) to six (6) years of imprisonment and to pay a fine of P30,000.  

People of the PH v LOMA Goce y Olalia, DAN Goce and NELLY Agustin, accused

Facts: Jan 1988 – information for illegal recruitment by a syndicate and in large scale was filed against Sps. Goce and Agustin. A warrant of arrest was issued but none of them was arrested. Case was archived.Mar 1989 – Rogelio Salado, complainant, learned of the whereabouts of Agustin. By virtue of the standing WOA, Agustin was arrested. The case was revived. Agustin was arraigned and pleaded not guilty.

Four Complainants:

Rogelio Salado – he was introduced to Agustin by his brother in law, Lorenzo Alvarez, in March or April 1987. Agustin presented herself as manager of Clover Placement Agency and showed Salado a copy of a job order for Oman. She requested 5k as processing fee for which a receipt was issued. Agustin later introduced Salado to the Sps. Goce, owners, where they requested a higher fee of 12k. Receipts were issued.

Ramona Salado – spouse of Rogelio. She was introduced to Agustin by her brother Alvarez. Agustin persuaded her to apply as a cutter/sewer in Oman. Salado agreed since she will be working in Oman same as her hubby. She initially paid 2k, then an additional 2k.

Dionisio Masaya – applied for a job in Oman via Clover Placement Agency. He initially paid 1.9k, then an additional 10k.

Ernesto Alvarez – was offered by Agustin a job as ambulance driver in Oman, with salary of $600-$700. He paid 3k.

Bottom line – all complainants were not able to leave for Oman. They discovered that the agency was not licensed by POEA.

Agustin’s defense – she was a neighbor of the Sps. Goce who were licensed recruiters and owners of Clover. Because said agency was able to send her son to Saudi, she agreed to INTRODUCE the complainants to the Sps. She denied any participation in the illegal recruitment since INTRODUCING an applicant is not one of those prohibited acts. She admits giving money to some of the complainants but claims that it is not for partial payment /return of the fees but as a loan which she extended to them.

Issues:

1. WON act of introducing falls within the meaning of illegal recruitment / WON there is proof that Agustin offered or promised overseas employment to complainants.

2. WON there is proof of conspiracy to commit illegal recruitment

Ratio

1. Agustin is accused of violating Art 38 & 39 LC.

Art 38, as amended by PD 2018, provides that any recruitment activity, including the prohibited practices in Art 34 undertaken by non-licensees / non-holders of authority shall be deemed illegal and punishable under Art 39. It further provides that illegal recruitment shall be considered an offense involving economic sabotage if: (a) committed by a syndicate – carried out by a group of three or more persons conspiring and/or confederating with one another; (b) in large scale – against three or more persons individually or as a group.

All accused are not licensed to recruit as certified by POEA and are therefore guilty of illegal recruitment if proven that they committed any of the prohibited acts. Hence Agustin is claiming that the act of introducing applicants to the owners of a placement agency is not illegal.

Court said that under LC, recruitment and placement refer 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… Referral is the act of passing along or forwarding of an applicant for employment after an intial interview of a selected applicant for employment to a selected employer, placement officer or bureau.

Despite denials of Agustin, the testimonial evidence of all four complainants show that she further committed acts constitutive of illegal recruitment (meaning, her participation did not just end when she introduced them to the Sps.) It was Agustin who informed them of the fees to pay and the papers they had to submit. She also represented herself as the manager of the agency and claimed that she/agency is able to send Filipinos for employment abroad by showing job orders. She also persuaded them to take these job offers. All these show that she played a pivotal role.

As to the claim that there was no proof that she obtained money from them, this is belied by the photocopies of the receipts. Court said when the original has been lost or cannot be produced, its contents may be proved by a copy or a recital of its contents or by the recollection of witnesses. Even still, the absence of receipts will not warrant the acquittal of Agustin. In People v Comia, the Court held that failure to ask for receipt for fees paid, and failure to present receipts is not fatal to the case. Their testimonies, being clear and positive, are sufficient to establish that factum probandum.

2. Evidence presented by the prosecution clearly establish that Agustin confabulated with the Sps. In their plan to deceive the complainants. Although the other accused have not been tried, there is sufficient basis for Agustin’s conviction as discussed above. (yan talaga sabi sa case, ikli lang)

RTC affirmed.

PEOPLE V. ORTIZ-MIYAKE

FACTS:

Lanie Ortiz-Miyake was charged with illegal recruitment in large scale, following a complaint filed by Elenita Marasigan, Imelda Generillo and Rosamar del Rosario. Marasigan had also charged her with estafa by means of false pretenses.

Only Marasigan was able to testify, however, as the other two complainants were abroad. Marasigan said Ortiz-Miyake promised her a job as factory worker in Taiwan. The former gave her P5,000 initially as placement fee, which amount subsequently became P23,000 paid in installments upon the demands of the accused. Accused gave assurances that Marasigan would have no problem getting a visa and a plane ticket. She was unable to go to Taiwan, as there was no ticket booked for her and, in fact, the supposed agency did not even know Miyake.

On the other hand, Generillo was represented by her mother, while del Rosario’s sister testified in court on the latter’s behalf. As they were not personally present, however, during the transactions with Miyake, they could only claim they gave certain amounts that were supposed to go to Miyake, and concluded that since their relatives had not been able to leave as promised by Miyake, then they were necessarily victims of illegal recruitment by the accused. A POEA representative also testified that Miyake had no authorization to recruit workers for overseas employment. [Miyake claiming she only offered discounted plane tickets to the supposed victims]

TC convicted the accused, largely basing their decision on the previous decision rendered by

Paranaque MeTC, where the two complainants now absent had filed charges of estafa against Miyake. The Court there had convicted Miyake.

ISSUE: won Miyake can be held liable for illegal recruitment on a large scale

HELD/RATIO: Ortiz-Miyake guilty only of simple illegal recruitment (and estafa).

LC: recruitment and placement is ". . . 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; becomes illegal if one has no authorization for performing such acts; becomes large scale if done against three or more persons whether individually or as a group

Right of accused to confront del Rosario and Generillo was not afforded her. Testimonies of sister and mother, respectively, mere hearsay. Although testimonies from the previous case could have been used, the decision convicting the accused of another crime (in that previous case, estafa) cannot be sustained for being violative of the accused’s right to confront witnesses.

Conviction of illegal recruitment does not preclude conviction for estafa. Burden of proof was only successfully established as to victim Marasigan. Since “large scale” not established, conviction is only for simple illegal recruitment (and estafa).

G.R. No. 173198        June 1, 2011

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. DOLORES OCDEN, Accused-Appellant.

Facts:

Ocden was originally charged with illegal recruitment in large scale and six counts of estafa by way of false pretenses executed prior to or simultaneous with the commission of fraud. All seven cases against Ocden were consolidated and were tried jointly after Ocden pleaded not guilty.

The prosecution presented three witnesses namely: Marilyn Mana-a and Rizalina Ferrer, complainants; and Julia Golidan, mother of complainants Jeffries and Howard Golidan.

Mana-a testified that sometime in the second week of August 1998, she and Isabel Dao-as went to Ocden’s house to apply for work as factory workers in Italy. They were required by Ocden to submit their bio-data and passports, pay the placement fee of P70,000, and to undergo medical examination.

Upon submitting her bio-data and passport, Mana-a paid Ocden P500 for her certificate of employment andP20,000 as down payment for her placement fee. On September 1998, Ocden accompanied Mana-a and 20 other applicants to Zamora Medical Clinic for their medical examinations, for which each of the applicants paid P3,000. Mana-a also paid to Ocden P22,000 as the second installment on her placement fee. When Josephine Lawanag, Mana-a’s sister, withdrew her application, Lawanag’s P15,000 placement fee, already paid to Ocden, was credited to Mana-a.

Ferrer narrated that she and her daughter Jennilyn were interested to work overseas. About the second week of September 1998, they approached Ocden through Fely Alipio. Ocden showed Ferrer and Jennilyn a copy of a job order from Italy for factory workers who could earn as much as $90,000 to $100,000. In the first week of October 1998, Ferrer and Jennilyn decided to apply for work, so they submitted their passports and pictures to Ocden. Ferrer also went to Manila for medical examination, for which she spent P3,500. Ferrer paid to Ocden in November 1998 the initial amount of P20,000, and in December 1998 the balance of her and Jennilyn’s placement fees. All in all, Ferrer paid Ocden P140,000, as evidenced by the receipts issued by Ocden.

Ferrer, Jennilyn, and Alipio were supposed to be included in the first batch of workers to be sent to Italy. Their flight was scheduled in December 1998. In preparation for their

flight to Italy, the three proceeded to Manila. In Manila, they were introduced by Ocden to Erlinda Ramos. Ocden and Ramos then accompanied Ferrer, Jennilyn, and Alipio to the airport where they took a flight to Zamboanga. Ocden explained to Ferrer, Jennilyn, and Alipio that they would be transported to Malaysia where their visa application for Italy would be processed.

Sensing that they were being fooled, Ferrer and Jennilyn decided to get a refund of their money, but Ocden was nowhere to be found. Ferrer would later learn from the POEA that Ocden was not a licensed recruiter. Expecting a job overseas, Ferrer took a leave of absence from her work. Thus, she lost income and spent for transportation and food expenses.

According to Golidan, sometime in October 1998, she inquired from Ocden about the latter’s overseas recruitment. Ocden informed Golidan that the placement fee was P70,000 for each applicant, that the accepted applicants would be sent by batches overseas, and that priority would be given to those who paid their placement fees early. In October 1998, Golidan brought her sons, Jeffries and Howard, to Ocden. On the same date, Jeffries and Howard handed over to Ocden their passports and P40,000 as down payment on their placement fees. In December 1998, Jeffries and Howard paid the balance of their placement fees amounting to P100,000. Ocden issued receipts for these two payments. Ocden then informed Golidan that the first batch of accepted applicants had already left, and that Jeffries would be included in the second batch for deployment, while Howard in the third batch.

In anticipation of their deployment to Italy, Jeffries and Howard left for Manila in December 1998. Through a telephone call, Jeffries informed Golidan that his flight to Italy was scheduled on December 16. However, Golidan was surprised to again receive a telephone call from Jeffries saying that his flight to Italy was delayed due to insufficiency of funds, and that Ocden went back to Baguio to look for additional funds. When Golidan went to see Ocden, Ocden was about to leave for Manila so she could be there in time for the scheduled flights of Jeffries and Howard.

On December 19, Golidan received another telephone call from Jeffries who was in Zamboanga with the other applicants. Jeffries informed Golidan that he was stranded in Zamboanga because Ramos did not give him his passport. Ramos was the one who briefed the overseas job applicants in Baguio sometime in November 1998. Jeffries instructed Golidan to ask Ocden’s help in looking for Ramos. Golidan, however, could not find Ocden in Baguio.

Golidan, with the other applicants, Mana-a and Dao-as, went to Manila to meet Ocden. When Golidan asked why Jeffries was in Zamboanga, Ocden replied that it would be easier for Jeffries and the other applicants to acquire their visas to Italy in Zamboanga.

Ocden was also able to contact Ramos, who assured Golidan that Jeffries would be able to get his passport. When Golidan went back home to Baguio, she learned through a telephone call from Jeffries that Howard was now likewise stranded in Zamboanga.

By January 1999, Jeffries and Howard were still in Zamboanga. Jeffries refused to accede to Golidan’s prodding for him and Howard to go home, saying that the recruiters were already working out the release of the funds for the applicants to get to Italy. Golidan went to Ocden, and the latter told her not to worry as her sons would already be flying to Italy because the same factory owner in Italy, looking for workers, undertook to shoulder the applicants’ travel expenses. Yet, Jeffries called Golidan once more telling her that he and the other applicants were still in Zamboanga.

Golidan went to Ocden’s residence. This time, Ocden’s husband gave Golidan P23,000 which the latter could use to fetch the applicants, including Jeffries and Howard, who were stranded in Zamboanga. Golidan traveled again to Manila with Mana-a and Dao-as. When they saw each other, Golidan informed Ocden regarding the P23,000 which the latter’s husband gave to her. Ocden begged Golidan to give her the money because she needed it badly. Of the P23,000, Golidan retained P10,000, Dao-as received P3,000, and Ocden got the rest. Jeffries, Howard and five other applicants, accompanied by Ocden, were able to return to Manila.

Thereafter, Golidan and her sons went to Ocden’s residence to ask for a refund of the money they had paid to Ocden. Ocden was able to return only P50,000. Golidan and her sons went to the Baguio office of the POEA, where they discovered that Ocden was not a licensed recruiter.

Ocden denied recruiting private complainants and claimed that she was also an applicant for an overseas job in Italy, just like them. Ocden identified Ramos as the recruiter.

RTC rendered a Decision finding Ocden guilty beyond reasonable doubt of the crimes of illegal recruitment in large scale and three counts of estafa.

CA affirmed Ocden’s conviction but modifying the penalties imposed upon her for the three counts of estafa.

Issue: W/N Ocden was guilty of illegal recruitment in large scale and estafa.

Held: Yes

Ratio:

Ocden contends that the prosecution failed to prove beyond reasonable doubt that she is guilty of the crime of illegal recruitment in large scale. Other than the bare allegations of the prosecution witnesses, no evidence was adduced to prove that she was a non-licensee or non-holder of authority to lawfully engage in the recruitment and placement of workers. No certification attesting to this fact was formally offered in evidence by the prosecution.

Article 13, paragraph (b) of the Labor Code defines and enumerates the acts which constitute recruitment and placement:

(b) "Recruitment and placement" refers to any act of canvassing, enlisting, contracting, transporting, utilizing, hiring, or procuring workers, and includes referrals, contract services, promising for 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.

The amendments to the Labor Code introduced by Republic Act No. 8042, otherwise known as the Migrant Workers and Overseas Filipinos Act of 1995, broadened the concept of illegal recruitment and provided stiffer penalties, especially for those that constitute economic sabotage, i.e., illegal recruitment in large scale and illegal recruitment committed by a syndicate. Pertinent provisions of Republic Act No. 8042 are reproduced below:

SEC. 6. Definition. - For purposes of this Act, 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 contemplated under Article 13(f) of Presidential Decree No. 442, as amended, otherwise known as the Labor Code of the Philippines: 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 charge or accept directly or indirectly any amount greater than that specified in the schedule of allowable fees prescribed by the Secretary of Labor and Employment, or to make a worker pay any amount greater than that actually received by him as a loan or advance;

(b) To furnish or 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 Secretary of Labor and Employment or by his duly authorized representative;

(h) To fail to submit 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 and Employment;

(i) To substitute or alter to the prejudice of the worker, employment contracts approved and verified by the Department of Labor and Employment from the time of actual signing thereof by the parties up to and including the period of the expiration of the same without the approval of the Department of Labor and Employment;

(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 Labor Code and its implementing rules and regulations;

(l) Failure to actually deploy without valid reason as determined by the Department of Labor and Employment; and

(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 worker's 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 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.

Sec. 7. Penalties. –

(a) Any person found guilty of illegal recruitment shall suffer the penalty of imprisonment of not less than 6 years and 1 day but not more than 12 years and a fine of P200,000 nor more than P500,000.

(b) The penalty of life imprisonment and a fine of not less than Five P500,000 nor more than P1,000,000 shall be imposed if illegal recruitment constitutes economic sabotage as defined herein.

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 non-licensee or non-holder of authority.

It is well-settled that to prove illegal recruitment, it must be shown that appellant gave complainants the distinct impression that he had the power or ability to send complainants abroad for work such that the latter were convinced to part with their money in order to be employed. 

It is not necessary for the prosecution to present a certification that Ocden is a non-licensee or non-holder of authority to lawfully engage in the recruitment and placement of workers. Section 6 of Republic Act No. 8042 enumerates particular acts which would constitute illegal recruitment "whether committed by any person, whether a non-licensee, non-holder, licensee or holder of authority." Among such acts, under Section 6(m) of Republic Act No. 8042, is the "[f]ailure 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 worker’s fault."

Since illegal recruitment under Section 6(m) can be committed by any person, even by a licensed recruiter, a certification on whether Ocden had a license to recruit or not, is inconsequential. Ocden committed illegal recruitment as described in said provision by receiving placement fees, evidenced by receipts Ocden herself issued; and failing to reimburse/refund to Mana-a, Ferrer, and Golidan’s two sons the amounts they had paid when they were not able to leave for Italy, through no fault of their own.

Contrary to Ocden’s claims, Golidan had personal knowledge of Ocden’s illegal recruitment activities, which she could competently testify to. Golidan herself had

personal dealings with Ocden as Golidan assisted her sons, Jeffries and Howard, in completing the requirements for their overseas job applications, and later on, in getting back home from Zamboanga where Jeffries and Howard were stranded, and in demanding a refund from Ocden of the placement fees paid. That Golidan is seeking a reimbursement of the placement fees paid for the failed deployment of her sons Jeffries and Howard strengthens, rather than weakens, the prosecution’s case. Going back to illegal recruitment under Section 6(m) of Republic Act No. 8042, failure to reimburse the expenses incurred by the worker when deployment does not actually take place, without the worker’s fault, is illegal recruitment.

The affidavit of desistance purportedly executed by Jeffries and Howard does not exonerate Ocden from criminal liability when the prosecution had successfully proved her guilt beyond reasonable doubt. (People v. Romero)

Generally, the Court attaches no persuasive value to affidavits of desistance, especially when it is executed as an afterthought. It would be a dangerous rule for courts to reject testimonies solemnly taken before the courts of justice simply because the witnesses who had given them, later on, changed their mind for one reason or another, for such rule would make solemn trial a mockery and place the investigation of truth at the mercy of unscrupulous witness.

Ocden’s denial of any illegal recruitment activity cannot stand against the prosecution witnesses’ positive identification of her in court as the person who induced them to part with their money upon the misrepresentation and false promise of deployment to Italy as factory workers. Besides, despite several opportunities given to Ocden by the RTC, she failed to present Ramos, who Ocden alleged to be the real recruiter and to whom she turned over the placement fees paid by her co-applicants.

Ocden further argues that the prosecution did not sufficiently establish that she illegally recruited at least three persons, to constitute illegal recruitment on a large scale. Out of the victims named in the Information, only Mana-a and Ferrer testified in court. Mana-a did not complete her testimony. Ocden again objects to Golidan’s testimony as hearsay, not being based on Golidan’s personal knowledge.

Under the last paragraph of Section 6, Republic Act No. 8042, illegal recruitment shall be considered an offense involving economic sabotage if committed in a large scale, that is, committed against three or more persons individually or as a group.

In People v. Hu, we held that a conviction for large scale illegal recruitment must be based on a finding in each case of illegal recruitment of three or more persons, whether individually or as a group. While it is true that the law does not require that at least three victims testify at the trial, nevertheless, it is necessary that there is sufficient evidence proving that the offense was committed against three or more persons. In this

case, there is conclusive evidence that Ocden recruited Mana-a, Ferrer, and Golidan’s sons, Jeffries and Howard, for purported employment as factory workers in Italy.

We are likewise affirming the conviction of Ocden for the crime of estafa. The very same evidence proving Ocden’s liability for illegal recruitment also established her liability for estafa.

It is settled that a person may be charged and convicted separately of illegal recruitment under Republic Act No. 8042 in relation to the Labor Code, and estafa under Article 315, paragraph 2(a) of the RPC. (People v. Yabut)

Art. 315. Swindling (estafa). - Any person who shall defraud another by any of the means mentioned hereinbelow x

2. By means of any of the following false pretenses or fraudulent acts executed prior to or simultaneously with the commission of the fraud:

(a) By using fictitious name, or falsely pretending to possess power, influence, qualifications, property, credit, agency, business or imaginary transactions; or by means of other similar deceits.

The elements of estafa are: (a) that the accused defrauded another by abuse of confidence or by means of deceit, and (b) that damage or prejudice capable of pecuniary estimation is caused to the offended party or third person. Both these elements are present in the instant case. The penalty for estafa depends on the amount of defraudation.

G.R. No. 167614

ANTONIO M. SERRANO, petitioner, vs GALLANT MARITIME SERVICES, INC. and MARLOW NAVIGATION CO., INC., respondents

MAIN ISSUE: Last clause in the 5th paragraph of Section 10, Republic Act (R.A.) No. 8042

Sec. 10. Money Claims. - x x x In case of termination of overseas employment without just, valid or authorized cause as defined by law or contract, the workers shall be entitled to the full reimbursement of his placement fee with interest of twelve percent (12%) per annum, plus his salaries for the unexpired portion of his employment contract or for three (3) months for every year of the unexpired term, whichever is less.

FACTS:

Petitioner was hired by Gallant Maritime Services, Inc. and Marlow Navigation Co., Ltd. (respondents) under a Philippine Overseas Employment Administration (POEA)-approved Contract of Employment with the following terms and conditions:

Duration of Contract: 12 months

Position: Chief Officer Basic pay: US$1,400/m

Overtime Pay US$700/m

Vacation Leave: 7 days/month

Hours of Work: 48 hrs/wk

On the date of his departure, he was constrained to accept a downgraded employment contract for the position of Second Officer with a monthly salary of US$1,000, upon the assurance and representation of respondents that he would be made Chief Officer by the end of April 1998.

Respondents did not deliver on their promise to make petitioner Chief Officer. Hence, petitioner refused to stay on as Second Officer and was repatriated to the Philippines on May 26, 1998. (There is an unexpired term of 9 months, 23 days)

Petitioner filed a Complaint against respondents for constructive dismissal and for payment of his money claims as well as moral and exemplary damages and attorney's fees.

ISSUES:

1. Whether or not the subject clause violates Section 10, Article III of the Constitution on non-impairment of contracts - NO

2. Whether or not the subject clause violate Section 1, Article III of the Constitution,

and Section 18, Article II and Section 3, Article XIII on labor as a protected sector – YES

HELD:

1. The subject clause may not be declared unconstitutional on the ground that it impinges on the impairment clause, for the law was enacted in the exercise of the police power of the State to regulate a business, profession or calling, particularly the recruitment and deployment of OFWs, with the noble end in view of ensuring respect for the dignity and well-being of OFWs wherever they may be employed.

2. On the second issue, the answer is in the affirmative.

Tribunal Monetary Claims Awarded Other Awards

LA US$8,770 (3 months of the unexpired portion of the contract, based on the last clause in the 5th paragraph of Sec 10, RA No. 8042 )

applied the salary rate of $2,590.00, consisting of petitioner's “basic salary, $1,400.00/month + $700.00/month, fixed OT pay, +

$490.00/month, VL pay = $2,590.00/month.”

10% Fees; No moral and exemplary damages

NLRC US$4,245 (3 months)

-reduced the applicable salary rate from $2,590.00 to $1,400.00 because R.A. No. 8042 “does not provide for the award of overtime pay, which should be proven to have been actually performed, and for vacation leave pay.”

10% Fees; No moral and exemplary damages

CA affirmed the NLRC, and skirted the constitutional issue just raised by petitioner.

To Filipino workers, the rights guaranteed under the foregoing constitutional provisions translate to economic security and parity.

Upon cursory reading, the subject clause appears facially neutral, for it applies to all OFWs. However, a closer examination reveals that the subject clause has a discriminatory intent against, and an invidious impact on, OFWs at two levels:

First, OFWs with employment contracts of less than one year vis-à-vis OFWs with employment contracts of one year or more;

A plain reading of Sec. 10 clearly reveals that the choice of which amount to award an illegally dismissed overseas contract worker, i.e., whether his salaries for the unexpired portion of his employment contract or three (3) months’ salary for every year of the unexpired term, whichever is less, comes into play only when the employment contract concerned has a term of at least one (1) year or more. This is evident from the words "for every year of the unexpired term" which follows the words "salaries x x x for three months."

Second, among OFWs with employment contracts of more than one year; and

The subject clause creates a sub-layer of discrimination among OFWs whose contract periods are for more than one year: those who are illegally dismissed with less than one year left in their contracts shall be entitled to their salaries for the entire unexpired portion thereof, while those who are illegally dismissed with one year or more remaining in their contracts shall be covered by the subject clause, and their monetary benefits limited to their salaries for three months only.

Third, OFWs vis-à-vis local workers with fixed-period employment;

The provisions of the New Civil Code do not expressly provide for the remedies available to a fixed-term worker who is illegally discharged. However, it is noted that in Mackay Radio & Telegraph Co., Inc. v. Rich, the Court carried over the principles on the payment of damages underlying Article 1586 of the Civil Code of 1889 and applied the same to a case involving the illegal discharge of a local worker whose fixed-period employment contract was entered into in 1952, when the new Civil Code was already in effect. The same principles were applied to cases involving overseas Filipino workers whose fixed-term employment contracts were illegally terminated.

In sum, prior to R.A. No. 8042, OFWs and local workers with fixed-term employment who were illegally discharged were treated alike in terms of the computation of their money claims: they were uniformly entitled to their salaries for the entire unexpired portions of their contracts. But with the enactment of R.A. No. 8042, specifically the

adoption of the subject clause, illegally dismissed OFWs with an unexpired portion of one year or more in their employment contract have since been differently treated in that their money claims are subject to a 3-month cap, whereas no such limitation is imposed on local workers with fixed-term employment.

The Court concluded “that the subject clause contains a suspect classification in that, in the computation of the monetary benefits of fixed-term employees who are illegally discharged, it imposes a 3-month cap on the claim of OFWs with an unexpired portion of one year or more in their contracts, but none on the claims of other OFWs or local workers with fixed-term employment. The subject clause singles out one classification of OFWs and burdens it with a peculiar disadvantage.”

The subject clause “or for three months for every year of the unexpired term, whichever is less” in the 5th paragraph of Section 10 of Republic Act No. 8042 is DECLARED UNCONSTITUTIONAL.

Becmen Service Exporter and Promotion v Sps. Simplicio and Mila Cuaresma (in behalf of daughter Jasmin), White Falcon Services, and Jaime Ortiz (Pres. Of White Falcon)

Sps. Cuaresma (in behalf of Jasmin) v White Falcon and Becmen

Facts:

Jan 1997 – Jasmin was deployed by Becmen to serve as assistant nurse in Al-Birk Hospital in Saudi under a 3 year contract, for $247/mo.

June 1998 - she died. Jessie Fajardo, co-worker, found her dead inside her dormitory room with mouth foaming and smelling of poison. Medical report of Al-Birk Hosp stated that the cause of death was poisoning – halt in blood circulation, respiratory system and brain damage due to poisoning from unknown substance.

Sep 1998 – her body was repatriated to Manila. The City Health Officer of Cabanatuan found that Jasmin died under violent circumstances not poisoning – abrasions at her inner lip and gums; lacerated wounds and abrasions on her left and right ears; lacerated wounds and hematoma (contusions) on her elbows; abrasions and hematoma on her thigh and legs; intra-muscular hemorrhage at the anterior chest; rib fracture; puncture wounds; and abrasions on the labia minora.

Mar 1999 – Jasmin’s body was exhumed by NBI. Toxicology report tested negative ffor non-volatile, metallic poison and insecticides.

Sps. Cuaresmas received from OWWA the following: 50k death benefits, 50k loss of life; 20k funeral expenses; 10k medical reimbursement.

Nov 1999 – Sps. Filed complaint against Becmen and Rajab & Silsilah Co (principal in Saudi) claiming death and insurance benefits. Sps. Claim that Jasmin’s death was work-related having occurred at the employer’s premises; their entitled to iqama insurance; compensatory damages amounting to $103k which is the sum of her monthly salary 35 years (she was 25 yo when she died, assuming she would survive until 60 yo).

Becmen and Rajab claim that Jasmin committed suicide and relied on the medical report of Al Birk. They deny liability since the Sps. Had already received their benefits from OWWA. Later, Becmen manifested that Rajab had terminated their agency, and impleaded White Falcon as the new agency of Rajab.

Summary of Rulings

LArb – dismissed for lack of merit, giving credence to Al Birk medical report

NLRC – reversed, found Jasmin a victim of compensable work-connected criminal aggression; both agencies are solidarily liable to pay $113; later reduced to $80k

CA – affirmed; later reduced the award to $8k (monthly salary x remaining contract period)

Issues

WON entitled to insurance – NO

WON death is compensable – NO

WON death was by suicide – NO

WON Becmen and Falcon are liable – YES, solidary liability

Ratio

1. NOT entitled to insurance.

The terms and conditions of Jasmin’s 1996 Employment Agreement which she and her employer Rajab freely entered into constitute the law between them. As a rule, stipulations in an employment contract not contrary to statutes, public policy, public order or morals have the force of law between the contracting parties. An examination of said employment agreement shows that it provides for no other monetary or other benefits/privileges than the following: 1. 1,300 rials (or US$247.00) monthly salary; 2. Free air tickets to KSA at the start of her contract and to the Philippines at the end thereof, as well as for her vacation at the end of each twenty four-month service; 3. Transportation to and from work; 4. Free living accommodations; 5. Free medical treatment, except for optical and dental operations, plastic surgery charges and lenses, and medical treatment obtained outside of KSA; 6. Entry visa fees will be shared equally between her and her employer, but the exit/re-entry visa fees, fees for Iqama issuance, renewal, replacement, passport renewal, sponsorship transfer and other liabilities shall be borne by her; 7. Thirty days paid vacation leave with round trip tickets to Manila after twenty four-months of continuous service; 8. Eight days public holidays per year; 9. The indemnity benefit due her at the end of her service will be calculated as per labor laws of KSA.

Thus, the agreement does not include provisions for insurance, or for accident, death or other benefits that the Cuaresmas seek to recover, and which the labor tribunals and appellate court granted variably in the guise of compensatory damages.Absence for provisions on social security and other benefits does not make the contract infirm under PH laws since under Saudi law, foreign employer is not obliged to provide her these benefits.

2. Death NOT WORK RELATED, therefore not compensable (i.e., not liable for lost earnings)

At time of death, Jasmin was not on duty but at her dormitory room on personal time. Court stated that the foreign employer cannot be expected to ensure her safety even while she is not on duty. What an employee does on free time is beyond the employer’s sphere of inquiry.The dormitory room also cannot be considered as “employer’s premises”.

3. Jasmin DID NOT COMMIT SUICIDECourt cannot subscribe to the idea that Jasmin committed suicide while halfway into her employment contract. This is beyond human comprehension for a 25 yo Filipina especially since suicide is contrary to Christian belief. Court cited Filipina’s resilience despite abuse and maltreatment. Based on past OFW experiences, Filipina’s do not simply commit suicide but rather endure.Court also found that Saudi police and autopsy reports are patently inconclusive. Their report is contradicted by the City Health Officer and by NBI. Even the toxicology report tested negative for poisonous substances. All these show that Jasmin was manhandled and possibly raped prior to death.

4. Rajab, Becmen, White Falcon solidarily liable for moral and exemplary damages

Court admonished Becmen and Falcon for simply dismissing Jasmin’s case as one of suicide instead of fighting for her rights. The Agencies prioritized their corporate interest over that of Jasmin. RA 8042 Migrant Workers and Overseas Filipinos Act provides that the State shall at all times uphold the dignity of its citizens, whether in the country or overseas. The rights and interest of distressed overseas Filipinos are adequately protected and safeguarded.Becmen and Falcon, both licensed recruitment agencies, miserably failed to abide by RA 8042. Recruitment agencies are expected to extend assistance to deployed OFWs, be the first to come the rescue of our distressed OFWs; and have the primary obligation to protect the rights and ensure the welfare of our OFWs. It should have been them who sought justice for Jasmin. Instead, it was the parents who requested an autopsy in the Ph to confirm the Saudi report. Court stated that the parents have done all that was within their power to investigate Jasmin’s case on their own.

Art 19 CC – every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith.

Art 21 CC – any person who willfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the later for the damage.

Art 24 CC – in all contractual, property or other relations, when one of the parties is at a disadvantage on account of his moral dependence, ignorance, indigence, mental weakness, tender age or other handicap, the courts must be vigilant for his protection.

Rajab, Becmen and Falcon’s acts and omissions are against public policy because they undermine and subvert the interest and general welfare of our OFWs.

Whether employed locally or overseas, all Fil workers enjoy the protective mantel of PH labor and social laws, contract stipulations to the contrary notwithstanding. This is in keeping with the Consti provision for the State to afford protection to labor, promote full employement, ensure equal work opportunities.

All labor legislation and all labor contracts shall be construed in favor of the safety and decent living for the laborer.

As a result of their misconduct, Cuaresmas are entitled to moral damages for which Becmen and Falcon are solidarily liable. Grant of moral damages to the employee by reason of misconduct on the part of the employer is sanctioned by Art 2219 (10) CC.

Private employment agencies are held jointly and severally liable with the foreign-basd employer for any violation of the recruitment agreement or contract of employement. This is meanth to assure the aggrieved worker of immediate and sufficient payment. If the agency is a juridical being, the corporate officers and directors and partners are also solidarily liable.

Falcon’s assumption of Becmen’s liability does not absolve Becmen.

CA decision set aside. Awarded P2.5M as moral damages, P250k as exemplary damages.