Labor legislation statues, regulations & jurisprudence governing relations bet capital & labor, by providing for certain standards of terms & conditions of EENT or providing a legal framework w/in w/c these terms & conditions & the EENT relationship may be negotiated, adjusted & administered. 2 Divisions of Labor Legislation 1. Labor Standards sets out the minimum terms, conditions & benefits of EENT that EERS must provide or comply w/ & to w/c EES are entitled as a matter of legal right. minimum requirements prescribed by existing laws, rules & regulations relating to wages, hrs of work, cost-of-living allowance and other monetary & welfare benefits, including occupational safety & health standards. material or substance to be processed 2. Labor Relations defines the status, rights & duties and the institutional mechanisms, that govern the indiv & collective interactions of EERS, EES, or their representatives. mechanism that processes the substance Labor physical toil although it does not necessarily exclude the application of skill (thus skilled & unskilled labor) Skill the familiar knowledge of any art/science, united w/ readiness & dexterity in execution/performance or in the application of the art/science to practical purposes. Work (broader than labor) covers all forms of physical/mental exertion, or both combined, for the attainment of some obj other than recreation/amusement per se. Worker (broader than EE) may refer to self-employed people & those working in the service & under the control of another, regardless of rank, title, or nature of work. - any member of the labor force whether employed/unemployed Employee a salaried person working for another who controls or supervises the means, manner or method of doing the work. Labor Law & Social Legislation Social legislation includes laws that provide particular kinds of protection/benefits to society in furtherance of social justice. Labor laws are necessarily social legislation Social Justice as the Aim Social justice humanization of laws & the equalization of social & economic forces by the State so that social justice in its rational & objectively secular conception may at leas be approximated - promotion of the welfare of the ppl, the adoption by the Govt of measures calculated to insure economic stability of all the component elements of society through the maintenance of proper economic & social equilibrium in the interrelations of the members of the community, constitutionally, through the adoption of measures legally justifiable, or extraconstitutionally, through the exercise of powers underlying the existence of all govts. 1987 Consti: protects the rights of workers & promote their welfare Basic rights of workers guaranteed by the Constitution 1. to organize themselves 2. to conduct collective bargaining/negotiation w/ mgt; 3. to engage in peaceful concerted activities, including to strike in accordance w/ law; and 4. to participate in policy & decision-making processes affecting rights & benefits Other Consti provisions that protect the Rs/promote the welfare of workers R to form unions, assocs or societies for purposes not contrary to law R of self-org even for govt EES.. No officer/Ee of the Civil Service shall be removed/suspended for cause. Temporary EES of the Govt shall be given such protection as may be provided by law Regular farmworkers shall have the R to own directly/collectively the lands they till. Landless farmworkers may be resettled by the govt in its own agri estates. Continuing program of urban land reform & housing Protection for working women taking into acct their maternal functions, etc Labor sector is entitled to seats to party list Goal: more equitable distribution of opportunities, income & wealth. Agency to promote the viability & growth of cooperatives as instruments for social justice & economic devt Govt shall increase the salary scales of the other officials & EES Career civil service EES shall be entitled to separation pay & retirement benefits, OR may be considered for reemployment in the govt Consti prol-labor, but recognizes the indispensable role of the private sector, encourages private enterprise and provides incentives to needed investments Police Power as the Basis the power of the govt to enact laws, w/in Constitutional limits to promote the order, safety, health, morals & general welfare of society power inherent in govt to protect itself & all its constituents, & for this purpose to hold the govt immune so far as necessary, from any limitatins imposed in the past. An imposition of restraint upon liberty or property in order to foster the common good. Birth of the LC Blas Ople - father of the LC LC designed to be a dynamic & growing body of laws w/c will reflect continually the lessons of practical application & experience 7 Principles Underlying the code 1. Labor relations must be made both responsive & responsible to national devt 2. Labor laws/labor relations during a period of national emergency must substitute rationality for confrontation; strikes or lockouts give way to a rational process w/c is arbitration 3. Laggard justice in the labor field is injurious to the workers, the EERS & the public; labor justice can be made expeditious w/o sacrificing due process. 4. Manpower devt & EENT must be regarded as a major dimension of labor policy, for there can be no real equality of bargaining power under conditions of severe mass unemployment. 5. There is a global labor market available to qualified Filipinos, esp those who are unemployed or whose EENT is tantamount to unemployment bcoz of their very little earnings. 6. Labor laws must command adequate resources & acquire a capable machinery for effective & sustained implementation; when labor laws cannot be enforced, both EERS & the workers are penalized, & only a corrupt few (those who are in charge of implementation) may get the reward they dont deserve. 7. There shld be popular participation in national policy-making through what is now called tripartism. Some Labor Laws before the Passage of the Code Act #1874: EERS Liability Act, Act #2549: prohibited payment of wages in non-cash form Act #2071: prohibiting slavery/involuntary servitude R #1054: requiring emergency medical treatmt for EES CA # 444: 8-hr labor law CA #103 created the Court of Industrial Relations (CIR) Pd #21 created the NLRC ( to investigate, decide & settle all disputes bet EERS & EES RA # 875: The Industrial Peace Act (the Magna Carta of Labor) RA #946: Blue Sunday Law forbids commercial, industrial or agri enterprises to open on any Sunday, Xmas Day, New Years Day, Holy Thurs & Good Friday. RA #1787: The Termination Pay Law enumerated the just causes for terminating an EENT w/o a definite period and allowed EERS to separate an EE by serving a 15-day notice per yr of service or, by paying an equivalent separation pay. Significance of Other Laws 1. Foreign Decisions numerous LC provisions are substantially similar to the Industrial Peace Act 2. The Civil Code describes the nature of labor mgt relations: The relations bet capital & labor are not merely contractual. They are so impressed w/ public interest that labor contracts must yield to the common good. such contracts are subj. to the special laws on labor unions, collective bargaining, strikes & lockouts, closed shop, wages, working conditions, hrs of labor & similar subjs. Art 1700 Neither capital nor labor shall act oppressively against the other, or impair the interest or convenience of the public Art 1701. 3. RPC punishes the use of violence or threats by either EER or EE. 4. Special Laws (SSS law, GSIS law, Agrarian Reform law, the 13th-month pay law, the Magna Carta for Public Health Workers) Art 3. [Declaration of Basic Polici] The State shall afford protection to labor, promote full EENT, ensure equal work opportunities regardless of sex, race or creed, and regulate the relations bet workers & EERS. The State shall assure the rights of workers to self-org, collective bargaining, security of tenure, and just & humane conditions of work. Balanced Approach shared responsibility. Worker & EER sectors are interdependent. Art4. [Construction in Favor of Labor] All doubts in the implementation & interpretation of the provisions of this Code, including its IRRs, shall be resolved in favor of labor. Interpretation & Construction policy is to extend the decrees applicability to a greater number of EES to enable them to avail of the benefits under the law (Liberal approach is adopted) Concern for the Lowly Worker SC reaffirms its concern for the lowly worker who, often at his EERs mercy, must look up to the law for his protection. (Reason: the EER stands on higher footing than the EE: (1,) There is greater supply than demand for labor; (2) the need for EENT by labor comes from vital & even desperate necessity.) Mgt Rights entitled to respect & enforcement in the interest of simple fair play. 1. R to manage, control, and use his property & conduct business in a manner satisfactory to himself (just discrimination in the rate of wages paid to the skillful & to the unskillful, to the efficient & inefficient.) 2. R to prescribe rules (they become part of the contract of EENT) 3. R to select EES & to decide when to engage them, except as restricted by statute or valid contract, at a wage & under conditions agreeable to them. 4. R to transfer & discharge EES in order to minimize expenses & to insure stability of the business & even to close the business, provided it is done in good faith & due to causes beyond control. Art 5. [Rules & Regulations] the DOLE & other govt agencies charged w/ the administration & enforcement of this Code or any of its parts shall promulgate the necessary IRRs. Such RRs shall become effective 15 days after announcement of their adoption in the newspapers of gen. circulation. Art 6. [Applicability] All Rs & benefits granted to workers under this Code shall, except as may otherwise be provided herein, apply alike to all workers, whether agricultural or non-agricultural. also applies to a govt corp incorporated under the Corporation Code. Test WON a govt-owned/-controlled corp is subj to CS Law is the manner of its creation. Govt corps created by special charter are subj to its provisions, while those incorporated under the gen Corp Law are not w/in the coverage of the CS law. PNOC-EDC incorp under the Corp Law subj to LC NHA incorp under Act 1459, the former corp law LC Govt agencies Ees covered by CS Law CH. 2: EMANCIPATION OF TENANTS Art 7 [Statement of Objectives] it has become imperative to start reformation w/ the emancipation of the tiller of the soil from his bondage. Art 8: [Transfer of Lands to Tenant-workers] tenant-farmers on private agri lands primarily devoted to rice & corn under a sys of share crop or lease tenancy whether classified as landed estate or not shall be deemed owner of apportion constituting a family-size farm of 5 hectares if not irrigated & 3 hectares if irrigated.. In all cases, the landowners may retain an area of not more than 7 hectares if such landowner is cultivating such area or will now cultivate it. Art 9. [Determination of Land Value] For the purpose of determining the cost of the land to be transferred to the tentant-farmer, the value of the land shall be equivalent to 2 & times the average harvest of 3 normal crop yrs immediately preceding the promulgation of PD 27 (OCT 21, 1972). The total cost of the land, including interest at the rate of 6% per annum, shall be pd by the tenant in 15 yrs of 15 equal annual amortizations. In case of default, the amortizations due shall be pd by the farmers cooperative in w/c the defaulting tenant-farmer is a member, w/ the coop having a right of recourse against him. The govt shall guarantee such amortizations w/ shares of stock in govtowned & -controlled corps. Art 10. [Conditions of Ownership] No title to the land acquired by the tenantfarmer under PD 27 shall be actually issued to him unless & until he has become a full-fledged member of a duly recognized farmers coop. Title to the land acquired pursuant to PD 27 or the Land Reform Program of the Govt shall not be transferable except by hereditary succession or to the Govt in accdance w/ the provisions of PD 27, the Code of Agrarian Reforms & other existing laws & regulations. Art 11. [Implementing Agency] The Dept of Agrarian Reform shall promulgate the necessary rules & regulations to implement the provisions of this Chapter. *Land for the landless battlecry dramatizing the increasingly urgent demand of the dispossessed for a plot of earth as their place under the sun. *CARP Law signed by Cory, declaring full land ownership in favor of the beneficiaries of the PD 27. Share tenancy abolished, put the agricultural leasehold sys in its stead, geared towards eventual ownership of land by its tillers Consti - State shall undertake an Agrarian Reform Program, and encourage & undertake the just distribution of all agri lands, subj to such priorities & reasonable retention limits as the Congress may prescribe, Compensation scheme: Sec 18 of CARP: Title to all expropriated properties shall be transferred to the State only upon full payment of compensation of their respective owners. Retention Limits provided for by RA 6657 : as otherwise provided.. no person may own/retain directly/indirectly, any public/private agri land, the size of w/c shall vary accdg to factors governing a viable family-sized farm, such as commodity produced, terrain, infrastructure, & soil fertility as determined by the Presidential Agrarian Reform Council (PARC). 3 hectares may be awarded to each child of the landowner, subj to the ff qualifications: (1.) he is at least 15 y/o, and (2) he is actually tilling the land or directly managing the farm; Provided, that landowners whose lands have been covered b PD 27 shall be allowed to keep the area originally retained by them thereunder; Provided further, that orig homestead grantees or direct compulsory heirs who still own the org homestead at the time of the approval of this Act shall retain the same areas as long as the continue to cultivate said homestead. Lands not covered 1. Lands obtained through homestead patent: Homestead Act gives a needy citizen a piece of land where he may build a modest house for himself & family & plant what is necessary for subsistence & for the satisfaction of lifes other needs. - superior over the rights of tenants 2. Residential Subdivisions not considered agricultural. An agricultural leasehold cannot be established on land w/c has ceased to be devoted to cultivation or farming bcoz of its conversion into a residential subd. 3. Livestock, poultry & Swine raising lands: Sec 2 of RA 6657 w/c includes private agri lands devoted to commercial livestock, poultry & swine raising in the definition of commercial farms is invalid. They are covered by the agrarian reform prog of the State. The Greatest BlessingThe Worst Crime Frederick Taylor an increased output invariably gives more work to more men, & never in the history of the world has it more than temporarily, and then for only a very short time, diminished by the number of men at work in any trade The Greatest Exploiter Blas Ople unemployment is the greatest exploiter of labor. Mass unemployment tends to leave the EER all-powerful and the worker defenseless More Capital Means More Jobs Adam Smith 2 kinds of funds: (1) the Revenue w/c is over & above what is necessary for the maintenance; and (2) the Stock w/c is over & above shat is necessary for the EENT of their masters. The demand for those who live by wages necessarily increases w/ the increase of the revenue & stock of every country and cannot increase w/o it. The increase of revenue & stock is the increase of national wealth. An Exploited Class J. Reynato Puno Overseas workers constitute an exploited class. Their unfortunate circumstance makes them easy prey to avaricious EERs. They will work under subhuman conditions & accept salaries below the minimum. 9% of Filipinos are Based OverseasPh Star RA 6657 Comprehensive Agrarian Reform Program Aim: A more equitable distribution & ownership of land, w/ due regard to the rights of landowners to just compensation & to the ecological needs of the nation Basis: the R of farmers & regular farm workers, who are landless, to own directly or collectively the lands they till or, in the case of other farm workers, to receive a share of the fruits thereof The State: shall respect the R of small landowners & shall provide incentives for voluntary land-sharing shall recognize the R of farmers, farm workers & landowners, as well as cooperatives & other independent farmers org, to participate in the planning, org, & mgt of the program & shall provide support to agriculture though tech & research & financial, production, marketing & other support services may resettle landless farmers & farm workers in its own agricultural estates shall encourage the formation & maintenance of economic-sized family farms to be constituted by indiv beneficiaries & small landowners shall protect the Rs of subsistence fishermen to the preferential use of communal marine & fishing resources both inland & offshore shall provide support to such fishermen thru appropriate tech & research, adequate financial, production & marketing assistance shall protect offshore fishing grounds of subsistence fishermen against foreign intrusion. Fisherworkers shall redeive a just share from their labor in the utilization of marine & fishing resources owners of agri land have the oblig to cultivate directly or thru labor admin the lands they own & thereby make the land productive. Shall provide incentives to landowners to invest the proceeds of the agrarian reform prog to promote industrialization, EENT & privatization of pub sector enterprises May lease undeveloped lands of pub domain to qualified entities for the devt of capital-intensive farms, traditional & pioneering crops esp those for export (subj. to Rs of beneficiaries) Definitions 1. Agrarian Reform the redistribution of lands, regardless of crops/fruits produced, to farmers & regular farm workers who are landless, irrespective of tenurial arrangemt, to include the totality of factors & support services designed to lift the economic status of the beneficiaries and all other arrangemts alternative to the physical redistribution of lands (production or profit-sharing, labor admin, distribution of shares of stock) 2. Agriculture, Agricultural Enterprise or Agricultural Activity the cultivation of the soil, planting of crops, growing of fruit trees, incl. the harvesting of such farm products, & other farm activities 3. Agricultural land land devoted to agricultural activity, and NOT classified as mineral, forest, residential, commercial or industrial land 4. Agrarian Dispute any controversy relating to tenurial arrangements, whether leasehold, tenancy, stewardship or otherwise, over lands devoted to agri including disputes concerning farm workers assocs, or representation of persons in negotiating, fixing, maintaining, changing or seeking to arrange terms of conditions of such tenurial arrangements including controversy relating to compensation of lands acquired under this Act & other terms & conditions of transfer of ownership from landowners to farm workers, tenants & other agrarian reform beneficiaries 5. Idle / Abandoned Land any agricultural land not cultivated, tilled or developed to produce any crop nor devoted to any specific economic purpose continuously for a period of 3 yrs immediately prior to the receipt of notice of acquisition by the govt but does NOT include land that has become permanently or regularly devoted to non-agricultural purposes does NOT include land w/c has become unproductive by reason of force majeure or F event 6. Farmer a natural person whose primary livelihood is cultivation of land or the production of agri crops either by himself, or primarily w/ the assistance of his immediate farm household, whether the land is owned by him, or by another person under a leasehold or tenancy agreement 7. Farmworker a netural person who renders service for value as an EE or laborer in an agricultural enterprise or farm 8. Regular Farmworker a natural person who is employed on a permanent basis by an agricultural enterprise or farm 9. Season Farmworker a natural person who is employed on a recurrent, periodic or intermittent basis by an agricultural enterprise or farm h. Cooperatives orgs composed primarily of small agri producers, farmers, farmworkers or other agrarian reform beneficiaries who voluntarily organize themselves for the purpose of pooling land, human, technological, financial or other economic resources & operated on the principle of one member, one vote. ( a juridical person may be a member of a coop, w/ the same Rs & duties as a natural person. Scope: all public & private agricultural lands, incl. other lands of the pub domain suitable for agriculture 1. All alienable & disposable lands of the pub domain devoted to or suitable for agriculture 2. All lands of the pub domain in excess to the specific limits as determined by Congress 3. All other lands owned by the Govt devoted to or suitable for agri 4. All private lands devoted to or suitable for agri regardless of the agri products raised/can be raised thereon Schedule of Implementation: w/in 10 yrs from effectivity Retention Limits: no person may own or retain, directly, any pub or private agricultural land, the size of w/c shall vary accdg to factors governing a viable family-sized farm landowner may retain only 5 hectares. 3 hectares: each child of landowner, that is 15y/o, and is actually tilling the land or directly managing the farm landowners whose lands have been covered by PD 27 shall be allowed to keep the area originally retained by them thereunder the original homestead grantees or direct compulsory heirs who still own the orig homestead shall retain the same areas as long as they continue to cultivate said homestead the R to choose the area to be retained belongs to the landowner. However: (a) in case the area selected by landowner is tenanted, the tenant shall have the option whether to remain therein, be a beneficiary of the same, or another agri land w/ similar/comparable features; (b) in case the tenant chooses to remain in the retained ares, he shall be considered a leaseholder & shall lose his R as a leaseholder to the land retained by the landowner. The tenant must exercise this option w/in 1 yr fr the time the landowner manifests his choice of the area for retention. Upon Acts effectivity, any sale, disposition, lease, mgt contract or transfer of position of private lands executed by the orig landowner in violation of this Act shall be null & void. Provided, that those executed prior to this Act shall be valid only when registered w the Reg of Deeds w/in 3 months after effectivity. Presidental Agrarian Reform Council (PARC) shall provide the implementing rules upon recommendation by the Provincial Agrarian Reform coordinating Committee, may declare certain provinces/regions as priority land reform areas Multinational Corps all lands of the pub domain leased, held, or possessed by multi corps or assocs, and other lands owned by the govt, or govt-owned/controlled corps, assocs, institutions or entities, devoted to existing & operational agribusiness or agro-industrial enterprises, operated by multicorps shall be programmed for acquisition & distribution immediately upon effectivity Ancestral Lands shall include, but not limited to, lands in the actual, continuous & open possession & occupation of the community and its members, provided that the Torrens System shall be respected shall be protected to ensure their economic, social & cultural well-being in the autonomous regions, the respective legislature may enact their own laws on ancestral domain subj to the provisions of the Consti, this Act and other national laws. Exemptions & Exclusions 1. Lands actually, directly & exclusively used for parks, wildlife, forest reserves, reforestation, fish sanctuaries and breeding grounds, watersheds and mangroves 2. Private lands actually, directly & exclusively used for prawn farms & fishponds (provided that said prawn farms & fishponds have not been distributed and Cert of Land Ownership Award issued to ARP. 3. Lands actually, directly & exclusively used & found to be necessary for national defense, school sites & campuses, incl experimental farm stations operated by pub/private schools for educational purposes, seeds and seedlings research and pilot production center, church sites & convents apputenat therety, mosque sites & Islamic centers appurtenant thereto, communal burial grounds & cemeteries, penal colonies & penal farms actually worked by inmates, got & private research & quarantine centers and all lands w/ 18% slope and over, except those already developed Procedure for Acquisition of Private Lands 1. After having identified the land, the landowners & beneficiaries, DAR shall send its notice to acquire the land to the owners; 2. w/in 30 days from date of receipt, landowners shall inform the DAR of his acceptance/rejection of the offer; a. if landowner accepts the offer, the LBP shall pay the landowner of the purchase price of the land w/in 30 days after he executes & delivers a deed of transfer in favor of the Govt and surrenders the Cert of Title b. in case of rejection or failure to reply, DAR shall conduct summary admin proceedings to determine compensation of the land 3. upon receipt of the landowner of the payment, or in case of rejection or no response fr the landowner, upon the deposit w/ an accessible bank or the compensation, the DAR shall take immediate possession of the land & shall request the Register of Deeds to issue a TCT in the name of the RP. 4. Any party who disagrees w/ the decision may bring the matter to the court Determination of Just Compensation cost of acquisition of the land current value of like properties, its nature, actual used and income the sworn valuation by the owner, tax declarations assessment made by the govt assessors Incentives for voluntary offers of sale addtl 5% cash Priority of Qualified Beneficiaries 1. Agricultural lessees & share tenants 2. Regular farmworkers 3. Seasonal farmworkers 4. Other farm workers 5. Actual tillers/occupants of public lands 6. Collective or cooperatives of the above beneficiaries 7. Others directly working on the land *Provided: children of landowners who are qualified shall be given preference in the distribution of the land of their parents *Provided further: actual tenant-tillers in the landholding shall not be ejected/removed therefrom. Transferability of Acquired lands by beneficiaries may not be sold, transferred or conveyed except thru hereditary succession, or to the govt, or to the LBP, or to other qualified beneficiaries for 10 yrs *Provided, that the children/spouse of the transferor shall have a R to repurchase the land fr the govt/LBP w/in 2 yrs Standing crops at the time of acquisition shall be retained by the landowner, Dar shall give a reasonable time to harvest the same Corporate Farms in case land cannot be divided directly, shall be owned collectively by the worker-beneficiaries who shall form a workers cooperative or assoc w/c will deal w/ the corp indiv members of the coop shall be provided w/ homelots or small farmlots for their family use taken fr the land owned by the coop Production-sharing - pending final land transfer Support Services 1. irrigation facilities 2. infrastructure devt & pub works projects 3. govt subsidies for the use of irrig facilities RA 9700 Act Strengthening the CARP, extending the acquisition & distribution of all agricultural lands, instituting necessary reforms, amending for the purpose certain provisions of RA 6657 State shall protect Filipino enterprises against unfair foreign competition & trade practices State recognizes that there is not enough agricultural land to be divided & distributed to each farmer & regular farmworker so that each one can own his economic-size family farm. Answer: simultaneous industrialization aimed at developing a self-reliant & independent national economy effectively controlled by Filipinos State may, in the interest of national welfare or defense, establish & operate vital industries Implementation of the prog shall be community-based State shall recognize & enforce the Rs of rural women to own & control land State shall provide incentives to landowners to invest the proceeds of the agrarian reform prog to promote industrialization, EENT & privatization of the pub sector enterprises Added Definition 1. Rural women women who are engaged directly/indirectly in farming and/or fishing as their source of livelihood, whether paid or unpaid, regular or seasonal, or in food preparation, managing the household, caring for the children, & other similar activities 2. Landless beneficiary one who owns less than 3 hectares of agri land Added Exception to Retention Limits Provincial, city & mun govt units acquiring private agri lands by expropriation to be used for actual, direct & exclusive pub purposes, such as roads & bridges, pub markets, school sites, resettlement sites, local govt facilities, pub parks & brgy plazas or squares consistent shall not be subj to the 5-hectare retention limit Order of Priority 3 hectares each to the 1st 2 beneficiaries only when these beneficiaries have rcvd 3 hectares each, shall the remaining portion of the landholding, if any, be distributed to other beneficiaries Payment by Beneficiaries payable to LBP in 30 annual amortizations at 6% interest per annum Support shall be extended equally to women & men beneficiaries Landicho v Sia Facts: 3 parcels of land were originally owned by the Aragons, tenanted by the late Arcadio Landicho from 1949 until his death in 1972, afterwhich, his tenancy rights were succeded by his son, petitioner Francisco Landicho (the other petitioners were Buenaventura (Franciscos son), and Federico (Franciscos brother), helped him cultivate the land in 1976, Francisco voluntarily surrendered his tenancy Rs over the land to the Aragons through a notarized kasulatan for a consideration of P1,000, but petitioners continued cultivating the land until 1987 when Francisco executed another notarized kasulatan thru w/c he surrendered his tenancy rights for a consideration of P3,000. On the same day as the execution of the 1987 kasulatan, the lands were sold by the Aragons for P50,000 to respondent Felix Sia, who in turn converted the same to a residential subd w/o a DAR clearance and ejected the petitioners therefrom. Peitioners filed a protest before the DAR alleging that they are the tenants of the lands and claimed that they are entitled to a disturbance compensation. They alleged that they were fooled into signing over their tenancy rights thru the machinations of the Aragons. The respondents in their answer, denied such allegation and added that the petitioners are barred by estoppel, laches and prescription Issue 1: WON petitioners are tenants of the land Held: A tenant is defined as a person who, himself and w/ the aid available from w/in his immediate farm household, cultivates the land belonging to, or possessed by another, w/ the latters consent for purposes of production, sharing the produce w/ the landholder under the share tenancy system, or paying to the landholder a price certain or ascertainable in produce or in money or both, under the leasehold tenancy system For a tenancy relationship to exist, all of the ff essential requisites must be present: 1) the parties are the landowner & the tenant 2) the subj matter is agricultural land 3) there is consent bet the parties 4) the purpose is agricultural production 5) there is personal cultivation by the tenant 6) there is sharing of the harvests bet the parties Under the definition, only Francisco possesses the requisites of a tenant. Petitioners Federico and Buenaventura are not tenants because consent (#3) by the landowners is lacking. They are merely farm helpers of Francisco as part of his immediate farm household. There was also no evidence to show that they gave a share of their harvest to the Aragons (#6). Issue 2: WON the respondents took advantage of Franciscos old age & illiteracy and employed fraudulent schemes in order to deceive him into signing the Kasulatans Held: As the legal tenant of the lands, Francisco had voluntarily surrendered his tenancy rights when he knowingly & freely executed the 1987 Kasulatan. There was no showing of foul play, because the Kasulatan was in Filipino, a language spoken & understood by Francisco and was couched in plain and clear terms. Such kasulatan was also duly notarized and are considered as public documents executed w/ all the legal formalities which afford it the legal presumption of regularity and legality abent full, clear and convincing evidence to the contrary. Final ruling: Petitioners have no cause of action and the same has prescribed. Portuguez v GSIS Family Bank and CA Facts: Petitioner was employed by the respondent bank as utility clerk in 1971. Since then, he had been promoted repeatedly up to 1998 when he was temporarily assigned as caretaker of the bank and designated as Acting Asst. VP and OIC in June of 1998. Respondent bank is a banking institution originally known as Royal Savings Bank. In 1983-84, it underwent serious liquidity problems and was placed under receivership by the Central Bank, which ordered its closure in July of 1984. After 2 months, the respondent bank was reopened under the control & mgt of Comsavings Bank. In 1987, the GSIS acquired the interest of the respondent bank and took over the control & mgt of the bank and renamed it as GSIS Family Savings Bank. The designation of the petitioner as OIC & caretaker was recalled, however his appointment as Acting Asst VP was retained. In line w/ its policy to attain financial stability, the respondent bank adopted measures, one of w/c is an early retirement program. In april of 2001, petitioner opted to avail himself of this retirement package, (supposedly under protest) & received the amt of P1,342M as retirement pay. In july 2002, petitioner filed a complaint against resp bank for constructive dismissal & underpayment of wages, 13th month pay & retirement benefits before the Labor Arbiter. He alleged discrimination & unfair treatment, and intense pressure on the part of the resp bank forced him to retire at the prime of his life. Issue 1: WON there was constructive dismissal Held: No. Constructive dismissal quitting because continued EENT is rendered impossible, unreasonable or unlikely, as an offer involving a demotion in rank & a dimunition in pay. May also mean an act of clear discrimination, insensibility or disdain by an EER may become so unbearable on the part of the EE so as to foreclose any choice on his part except to resign Petitioner claims he was discriminated against as new hires were given higher salaries than he was receiving. Discrimination failure to treat all persons equally when no reasonable distinction can be found bet those favored & those not favored. It must be clearly established that (1) there is no reasonable distinction for classification that can be obtained bet persons belonging to the same class, and (2) persons belonging to the same class have not been treated alike Petitioner failed to established that he possessed the same skills, competencies & expertise as those newly hired to eliminate the possibility of substantial distinction that may warrant unequal treatment bet them. Petitioner contends that in cases of constructive dismissal, the burden of proof rests on the EER to show that the EE was dismissed on a valid & just cause. But this legal principle presupposes that there is indeed an involuntary separation from EENT & the facts attendant to such forced separation was clearly established, w/c the petitioner failed to do. It was him who availed of the voluntary retirement program. And absent the showing of duress, the presumption is that it was done by him voluntarily. While the state promotes the utmost protection of labor against capital, it does not mean that the working class is upheld in all labor dispute. The law also recognizes the rights of management. PRE-EMPLOYMENT Art 12. It is the policy of the State: 1. to promote and maintain a state of full employment through improved manpower training, allocation and utilization; 2. to protect every citizen desiring to work locally/overseas by securing for him the best possible terms and condition of employment; 3. to facilitate a free choice of available employment by persons seeking work in conformity with the national interest; 4. to facilitate & regulate the movement of workers in conformity w/ the national interest; 5. to regulate the employment of aliens, including the establishment of a registration and/or work permit system; 6. to strengthen the network of public employment offices and rationalize the participation of the private sector in the recruitment and placement of workers, locally and overseas, to serve national development objectives; 7. to insure careful selection of Filipino workers for overseas employment in order to protect the good name of the PH abroad. The DOLE by Administrative Code of 1987 (EO 292) the primary policy-making, programming, coordinating and administrative entity of the Executive branch of the govt in the field of labor and employment Its Primary responsibilities: 1. The promotion of gainful EENT opportunities and the optimization of the devt & utilization of the countrys manpower resources; 2. The advancement of workers welfare by providing for just and humane working conditions and terms of EENT; 3. The maintenance of industrial peace by promoting harmonious, equitable and stable EENT, relations that assure protection for the Rs of all concerned parties. RECRUITMENT & PLACEMENT OF WORKERS Art 13. Definitions Worker any member of the labor force whether employed or unemployed. Recruitment & placement any act of canvassing, enlisting, contracting, transporting, utilizing, hiring, or procuring workers and includes referrals, contract services, promising or advertising for EENT, locally or abroad, whether for profit or not: provided, that any person or entity w/c, in any manner, offers or promises for a fee EENT to 2/more persons shall be deemed engaged in recruitment & placement Private fee-charging EEnt Agency any person/ entity engaged in the recruitment & placement of workers for a fee w/c is charged directly/indirectly from the workers or employers or both License a document issued by the DOLE authorizing a person/entity to operate a private EENT agency Private recruitment entity any person/assoc engaged in the recruitment & placement of workers, locally/overseas without charging, directly/indirectly any fee from the workers or employers. Authority a document issued by the DOLE authorizing a person/assoc to engage in recruitment & placement activities as a private recruitment entity Seaman any person employed in a vessel engaged in maritime navigation Overseas EENT EENT of a worker outside the PH Emigrant any person, worker or otherwise, who emigrates to a foreign country by virtue of an immigrant visa or resident permit to its equivalent in the country of destination Art 14. EMPLOYMENT PROMOTION The Sec of Labor shall have the power & authority: 1. to organize & establish new EENT offices in addition to existing EENT offices under the DOLE as the need arises; 2. to organize & establish a nationwide job clearance & information system to inform applicants registering w/ a particular EENT office of job opportunities in other parts of the country as well as job opportunities abroad; 3. to develop & organize a program that will facilitate occupational industrial and geographical mobility of labor and provide assistance in the relocation of workers from one area to another; and 4. to require any person, establishment, org, or institution to submit such EENT information as may be prescribed by the Sec of Labor. Bureau of Local Employment (BLE) assigned the effective allocation of manpower resources in local Ph Overseas Employment Administration (POEA) for overseas employment Art 15. BUREAU OF EMPLOYMENT SERVICES (now BLE) - primarily responsible for developing & monitoring a comprehensive EENT program. Powers & Duties: 1. To formulate & develop plans & programs to implement the EENT promotion objectives of this Title; 2. To establish & maintain a registration and/or licensing system to regulate private sector participation in the recruitment & placement of workers, locally & overseas, and to secure the best possible terms & conditions of EENT for Filipino contract workers and compliance therewith under such rules & regulations as may be issued by the DOLE; 3. To formulate & develop EENT programs designed to benefit disadvantaged groups & communities; 4. To establish & maintain a registration and/or work permit system to regulate the EENT of aliens; 5. To develop a labor market information system in aid of proper manpower and development planning; 6. To develop a responsible vocational guidance & testing system in aid of proper human resources allocation; and 7. To maintain a central registry of skills, except seamen Original & Exclusive Jurisdiction of the regional offices of DOLE - over all matters/cases involving EE-EER relations including money claims, arising out of or by virtue of any law or contracts involving Filipino workers for overseas EENT except seamen: Provided, thet the Bureau of Employment Services (BES) (now BLE) may, in the case of the NCR, exercise such power, whenever the DOLE deems it appropriate. The decisions of the regional offices of the BES if so authorized by the Sec of DOLE shall be appealable to the NLRC upon the same grounds provided in Art 233 hereof. The decisions of the NLRC shall be final & unappealable. Minister of Labor has the power to impose & collect fees, based on rates recommended by the BES. Such fees shall be deposited in the National Treasury as a special acct of the General Fund, for the promotion of the objectives of the BES, subj to the provisions of Sec 40 of PD 1177. PD 850 replaced BES w/ BLE, and created POEA AO 186 made licensing of local recruitment agencies and the issuance of work permits to non-resident aliens and EENT registration certificates to resident aliens a function of the regional offices of DOLE RA 8795 required the establishment of a Public Employment Service Office (PESO) in capital towns, cities and other strategic areas o PESO - serves as EENT service & information center Regularly obtains lists of job vacancies from EERS, publicizes them, invites and evaluates applicants, and refers them for probable hiring Provides training and educational guidance and EENT counseling services Also renders special services to the public such as holding of jobfairs, livelihood and self-employment bazaars Special credit assistance for placed overseas workers Special program for EENT of students (SPES) during summer or semestral breaks Work appreciation seminars & conferences and Hiring of workers in infrastructure projects (WHIP) Ra 6885 created WHIP, a program w/c requires the DPWH and private contractors to hire 30% of skilled and 50% unskilled labor requirements from the area where the project is being undertaken Art 16. PRIVATE RECRUITMENT: GR: No person/entity other than the public EENT offices, shall engage in the recruitment & placement of workers. : Exceptions 1. Public EEnt offices 2. Private recruitment entities 3. Private EENT agencies 4. Shipping or manning agents or representatives 5. The POEA 6. Construction contractors if authorized to operate by DOLE and the Construction Industry Authority 7. Members of the diplomatic corps although hirings done by them have to be processed through the POEA 8. Other persons/entities as may be authorized by the Sec of DOLE Art 17. OVERSEAS EMPLOYMENT DEVT BOARD POEA has taken over the functions of the Overseas Employment Development Board (OEDB) and the National Seamen Board (NSB) OFW a Filipino worker who is to be engaged, is engaged or has been engaged in a renumenerated activity in a country of which he/shee is not a legal resident 2 Classifications 1. Land-based contract workers other than a seaman including workers ingaged in offshore activities whose occupation requires that majority of his working/gainful hrs are spent on land 2. Sea-based those employed in a vessel engaged in maritime navigation Principal Functions of the POEA 1. Formulation, implementation and monitoring of overseas employment of Filipino workers; 2. Protection of their rights to fair and equitable employment practices; 3. Deployment of Filipino workers through govt-to-govt hiring Regulatory Functions 1. Regulate private sector participation in the recruitment & overseas placement of workers through its licensing and registration system; 2. Formulate & implement, in coordination w/ appropriate entities concerned, when necessary, a system for promoting and monitoring the overseas EEnt of Filipino workers taking into consideration their welfare and the domestic manpower requirements; 3. Inform migrant workers not only of their rights as workers but also of their rights as human beings; 4. Instruct and guide the workers how to assert their rights and provide the available mechanism to redress violation of their rights; 5. In the recruitment & placement of workers to service the requirements for trained and competent Filipino workers of foreign govts and their instrumentalities, and such other employers as public interest may require, deploy only to countries: a. Where the PH has concluded Bilateral labor agreements or arrangements; b. Observing and/or complying w/ the international laws and standards of migrant workers; c. Guaranteeing to protect the rights of Filipino migrant workers. Adjudicatory Functions 1. Administrative cases involving violations of licensing rules & regulations and registration of recruitment and EEnt agencies/entities; and 2. Disciplinary action cases and other special cases w/c are administrative in character, involving employers, principals, contracting partners and Filipino migrant workers. Jurisdiction of POEA 1. all cases w/c are administrative in character, involving or arising out of violations of rules & regulations relating to licensing & registration of recruitment and employment agencies/entities; and 2. disciplinary action cases and other special cases w/c are administrative in character, involving EERS, principals, contracting partners and Filipino migrant workers 3. NO jurisdiction to enforce foreign judgment (must be brought before the regular courts). POEA is an administrative (not a court), exercising adjudicatory or quasi-judicial functions 4. NO jurisdiction over torts Grounds for Disciplinary Action 1. Commission of a felony punishable by Ph laws or by the laws of the host country; 2. Drug addiction/possession or trafficking of prohibited drugs; 3. Desertion or abandonment; 4. Drunkenness, esp where the laws of the host country prohibit intoxicating drinks; 5. Gambling, esp where the laws of the host country prohibits the same; 6. Initiating/joining a strike or work stoppage where thelaws of the host country prohibit strikes or similar actions; 7. Creating trouble at the worksite or in the vessel; 8. Embezzlement of company funds or of moneys and properties of a fellow worker entrusted for delivery to kins or relatives in the PH; 9. Theft/robbery; 10. Prostitution; 11. Vandalism or destroying company property; 12. Gunrunning or possession of deadly weapons; 13. Unjust refusal to depart for the worksite after all employment and travel documents have been duly approved by the approp govt agency/ies; and 14. Violation/s of the laws and sacred practices of the host country and unjustified breach of govt-approved EENT contract by a worker COMPROMISE AGREEMENT -consistent w/ the policy encouraging amicable settlement of labor disputes Sec 10 of RA 8042 allows resolution by compromise of cases filed w/ the NLRC - any compromise agreement on money claims inclusive of damages shall be paid w/in 4 months from the approval of the settlement Penalties for Non-compliance of the mandatory period for resolution of cases 1. The salary of such official who fails to render his decision/resolution w/in the prescribed pd shall be, or caused to be, withheld until such official complies therewith; 2. Suspension for not more than 90 days; or 3. Dismissal w/ disqualification to hold any appointive public office for 5 yrs EER/EE Relations Cases Millares & Lagda v NLRC: SC: seafarers are contractual EES Premature Termination of Contract If EE is terminated before end of contract w/o just cause, EERS will be ordered to pay their salaries corresponding to the unexpired portion of their EENT contract Pretermination Under RA 8042 A worker dismissed from overseas EENT w/o just cause as defined by law/contract is entitled to full reimbursement of his placement fee w/ interest at 12% per annum, plus the salary for the unexpired portion of their EENT contract. Due Process required to terminate employment Ex: in case of seamen must be given written notice of the charges against him, and afforded a formal investigation where he can defend himself or thru a representative before he can be dismissed & disembarked. The EER is required to furnish him w/ 2 notices: (1) written notice of charge; and (2) written notice of dismissal Contracted but not Deployed: Perfected Contract Death benefits of Seafarers entitled to death and other benefits under w/c ever is higher (foreign law or Ph law) entitled to death benefits if death occurs during the term of his contract of employment, even if death is not work-related death is caused by their own doing Disability loss or impairment of a physical or mental function resulting from injury/sickness Permanent disability the inability of a worker to perform his job for more than 120 days, regardless of WON he loses the use of any part of his body Total Disability disablement of an EE to earn wages in the same kind of work of similar nature that he was trained for or accustomed to perform, or any kind of work w/c a person of his mentality and attainments could do. It does not mean absolute helplessness. In disability compensation, it is not the injury w/c is compensated, but rather it is the incapacity to work resulting in the impairment of ones earning capacity Disability benefits by seamen a matter governed not only by medical findings but by law & contract - shall be paid beginning on the 1st day of such disability. If caused by an injury/sickness it shall not be paid longer than 120 consec days except where such injury/sickness still requires medical attendance beyond 120 days but not to exceed 240 days from onset of disability in w/c case benefit for temporary total disability shall be paid. In case of differing medical assessment a.) when a seafarer sustains a work-related illness/injury while on board, his fitness/unfitness to work shall be determined by the company-designated physician. b.) If the physician appointed by the seafarer disagrees w/ the companydesignated physicians assessment, the opinion of a 3rd doctor may be agreed jointly bet the EER and the seafarer to be the decision final and binding on them Agencies Given the Duty to promote the welfare & rights of migrant workers: 1. DFA 2. DOLE 3. POEA 4. OWWA Overseas Workers Welfare Administration provides social & welfare services including insurance coverage, legal assistance, placement assistance and remittance services to Filipino overseas workers. Under RA8042, it shall provide the Filipino migrant worker & his faily assistance in the enforcement of contractual obligs by agencies, entities and/or their principals; 5. RPM - Re-Placement and Monitoring Center develops livelihood programs for the returning workers to reintegrate the returning migrant workers to the Ph society; 6. NLRC tasked w/ the settlement/adjudication of labor disputes Art 18: BAN ON DIRECT HIRING GR: Direct hiring of Filipino workers for overseas EENT is not allowed Exceptions: 1. Members of Diplomatic corps; 2. International organizations; 3. Other employers as may be allowed by DOLE; and 4. Name hires individual workers who are able to secure contracts for overseas EENT on their own efforts and representations w/o assistance/participation of any agency. Their hiring nonetheless, shall pass through the POEA for processing purposes Rationale of the Prohibition 1. To assure the best possible terms & conditions of work to the EE; and 2. To assure the foreign EER that he hires only qualified Filipino workers Art 19: COMMISSION ON FILIPINO OVERSEAS CFO attached to the DFA; replaced the Office of Emigrant Affairs. assists in the formulation of policies affecting Filipinos overseas and formulates an integrated program that promotes the welfare of Filipinos overseas Art 21. FOREIGN SERVICE ROLE AND PARTICIPATION necessary to monitor the status of OFWs in their respective areas of assignment and insure that they are not exploited or abused by their foreign principal EERS Art 22. MANDATORY REMITTANE OF FOREIGN EXCHANGE EARNINGS All OFWs are required to remit a portion of their foreign exchange earnings ranging from 50% - 80% depending on the workers kind of job, to their families, dependents, and/or beneficiaries. Seamen/Mariners 80% Workers for Filipino Contractors & Construction companies 70% Professionals whose EENT contract provide for lodging facilities 70% Professionals w/o Board & Lodging 50% Domestic and other service workers 50% Exceptions to Mandatory Remittance 1. Fil servicemen working in US military installations; 2. Where the workers immediate family members, dependents, or beneficiaries are residing w/ him abroad; 3. Immigrants and Fil professionals and EEs working w/ UN agencies or specialized bodies Effects of Failure to Remit 1. Workers who fail to comply w/ the mandatory remittance reqment shall be suspended/excluded from the list of eligible workers for overseas EENT. Subsequent violations shall warrant his repatriation. 2. EERS who fail to comply shall be excluded from the overseas EENT program. Private EENT agencies/entities shall face cancellation or revocation of their licenses or authority to recruit, w/o prejudice to other liabilities under existing laws and regulations CH 2: REGULATION OF RECRUITMENT & PLACEMENT ACTIVITIES Art 25: PRIVATE SECTOR PARTICIPATION IN THE RECRUITMENT & PLACEMENT OF WORKERS Private Sectors that can participate 1. Private EENT agencies; 2. Private recruitment agencies; 3. Shipping or manning agencies; 4. Such other persons as may be authorized by the Sec of DOLE; and 5. Construction contractors w/ a duly issued authority to operate private recruitment entities Qualifications for Participation 1. Citizenship requirement a. Filipino citizens; or b. Corporations, partnerships or entities at least 75% of the authorized and voting capital stock of w/c is owned & controlled by Filipino citizens. 2. Capitalization a. Private EENT agency for local EENT i. For single proprietorship or partnership minimum net worth of 200k pesos ii. For corporations a minimum paid up capital of 5ook pesos b. Private recruitment or manning agency for overseas EENT i. For single proprietorship or partnership P2M minimum capital ii. For corps P2M minimum paid up capital, Provided, that those w/ existing licenses shall, w/in 4 yrs from effectivity hereof, increase their capitalization or paid-up capital, as the case may be, to P2M at the rate of 250K every yr. 3. Those not otherwise disqualified by law or other govt regulations to engage in the recruitment & placement of workers for overseas EENT Disqualified from Recruitment & Placement of Workers for Overseas EEnt whether for profit or not 1. Travel agencies & sales agencies of airline companies; 2. Officers/members of the board of any corp or members in a partnership engaged in the business of a travel agency; 3. Corps & partnerships, when any of its officers, members of the board or partners, is also an officer, member of the board or partner of a corp or partnership engaged in the business of a travel agency (interlocking officers) 4. Persons, partnerships or corps which have derogatory records, such as but not limited to: a. Those certified to have derogatory record/info by the NBI or by the Anti-illegal Recruitment Branch of the POEA; b. Those against whom probable cause or prima facie finding of guilt for illegal recruitment or other related cases exists; c. Those convicted of cases and/or crimes involving moral turpitude; d. Those agencies whose licenses have been previously cancelled or revoked by POEA for violation of RA 8042, PD 442 as amended and their IRR as well as the Labor Codes IRR e. Officials/EES of the DOLE or other govt agencies directly involved in overseas EENT program and their relatives w/in the 4th degree of consanguinity or affinity; and f. Those whose License have been previously cancelled o revoked Art 29: NON-TRANSFERABILITY OF LICENSE AUTHORITY 1. It may be used only b the one in whose favor it was issued; hence, it cannot be assigned, conveyed or transferred to any other person/entity. 2. It must be used only in the place stated in the license. Thus, could only undertake recruitment & placement activities in the region where the license was granted. 3. The recruitment & placement activities must be undertaken at their authorized official addresses. 4. Provincial recruitment and/or job fairs may be allowed only when authorized by POEA in writing. * Change of ownership of single proprietorship licensed to engage in overseas EENT shall cause the automatic revocation of the license. Art 30: BONDS The Sec of Labor shall promulgate a schedule of fees for the registration of all applicants for license or authority. Art 31. BONDS All applicants for license/authority shall post such cash and surety bonds as determined by the Sec of Labor including escrow deposits. Purposes: 1. To guarantee compliance w/ prescribed recruitment procedures, rules & regulations, and terms & conditions of EENT; and 2. To ensure prompt & effective recourse against such companies when held liable for applicants/workers claim Exemption from Garnishment Cash bond filed by applicants for license/authority is not subj to garnishment by a judgment creditor of the agency. Should the bond/deposit in escrow or any part thereof be garnished, the same should be replenished by the agency w/in 15 days from notice from the POEA. Failure to replenish the same w/in the said pd shall cause the suspension of the license Note: POEA has the power to enforce liability under cash & surety bonds. Art 32: FEES TO BE PAID BY WORKERS The applicant can be charged w/ fees only after he has obtained EENT or has actually commenced EENT Fees paid shall always be covered w/ the approp receipt clearly showing the amount paid. POEA has the power to: 1. Suspend/cancel the license; and 2. Order the refund/reimbursement of such illegally collected fees Prohibition on Charging Fees 1. Placement fees cannot be collected from a hired worker until he has signed the EENT contract & shall be covered by receipts clearly showing the amt paid 2. Manning agencies shall not charge any fee from seafarer-applicants for its recruitment & placement services. All expenses for hiring seamen shall be shouldered by foreign shipping principals. 3. No other fees/charges, including processing fees shall be imposed against any worker. Art 34 & Section 6 RA 8042: PROHIBITED PRACTICES: It shall be unlawful for any indiv, entity, licensee or holder of authority: 1. To charge greater amt than that specified in the schedule of allowable fees (illegal exaction); 2. To furnish any false info in relation to recruitment/EENT (false information); 3. To give any false notice, testimony, etc. or commit any act of misrepresentation to secure a license or authority (false statements); 4. To induce or attempt to induce a worker to quit his job in lieu of another offer unless it is designed to liberate the worker from oppressive terms of EENT (pirating); 5. To influence of attempt to influence any person/entity no to employ any worker who has not applied for EENT through his agency (influencing not to employ); 6. To engage in the recruitment/placement of jobs harmful to public health, morality or to the dignity of the PH (harmful jobs); 7. To obstruct or attempt to obstruct inspection by the Labor Sec or his authorized reps (obstruct inspection); 8. To fail to file reports on the status of EENT, placement, etc. and such other matters as may be required by the Sec of Labor (failure to comply w/ rules & regulations); 9. To substitute or alter EENT contracts w/o the approval of the Sec of Labor (alteration of contracts); 10. To become an officer or member of the board of any corp engaged in the mgt of a travel agency; and 11. To withhold travel docs from applicant workers before departure for unauthorized monetary considerations (withholding documents). Art 35: SUSPENSION AND/OR CANCELLATION OF LICENSE OR AUTHORITY Non License or Non-Holder of Authority any person/corp/entity w/c has not been issued a valid license or authority to engage in recruitment & placement by the Sec of Labor, or whose license or authority has been suspended, revoked or cancelled by the POEA and the Secretary. Grounds for Revocation of License 1. Incurring an accumulated 3 counts of suspension by an agency based on final and executor orders w/in the validity period of its license; 2. Violation/s of the conditions of license; 3. Engaging in acts of misrepresentation for the purpose of securing a license or renewal thereof; and 4. Engaging in the recruitment or placement of workers to jobs harmful to the public health or morality or to the dignity of the RP Grounds for Suspension/Cancellation of License 1. The acts prohibited under Art 34; 2. Charging a fee before the worker is employed or in excess of the authorized amt; 3. Doing recruitment in places outside its authorized area; 4. Deploying workers w/o processing through the POEA; and 5. Publishing job announcements w/o POEAs prior approval Jurisdiction The DOLE Sec and the POEA Admin have concurrent jurisdiction to suspend or cancel a license Liability of Recruitment Agency Solidarily liable w/ the foreign principal for unpaid salaries of a worker it recruited. Before recruiting, the agency is required to submit a doc containing its power to sue and be sued jointly and solidarily w/ the principal or foreign-based employer for any of the violations of the recruitment agreement, and the contracts of employment Note: The recruitment agency may still be sued even if agency agreement bet recruitment agency & principal is already severed if no notice of the termination was given to the EE Exception to Liability of Recruitment agency When workers themselves insisted for the recruitment agency to send them back to their foreign EER despite their knowledge of its inability to pay their wages Contract by Prncipal Even if it was the principal of the manning agency who entered into contract w/ the EE, the manning agent in the PH is jointly & solidarily liable w/ the principal Suability of Foreign Corps A foreign corp that, thru unlicensed agents, recruits workers in the country may be suid in and found liable by Ph courts CH 3: MISCELLANEOUS PROVISIONS (as amended by RA 8042) Illegal Recruitment any act of (CETCHUP) canvassing, enlisting, transporting, contracting, utilizing, or procuring workers and includes (CRAP) contract services, referrals, or advertising, promising for employment abroad, whether for profit or not, when undertaken by a non-licensee or non-holder of authority; Provided that any such non-licensee or non-holder of authority who in any manner, offers or promises for a fee employment abroad to 2 or more persons shall be deemed so engaged. Also includes the act of reprocessing workers through a job order that pertains to nonexistent work, work different from the actual overseas work, or work w/ a different EER whether registered or not w/ the POEA It shall likewise include the commission of the ff prohibited acts whether committed by a non-licensee or non-holder of authority or a licensee or a holder of authority: 1. Those prohibited practices under Art 34; 2. Failure to actually deploy w/o valid reason as determined by DOLE; 3. Failure to reimburse expenses incurred by the worker in connection w/ his documentation & processing for purposes of deployment, in cases where the deployment does not actually take place w/o the workers fault; and 4. Recruitment & placement activities of agents or representatives appointed by a licensee, whose appointments were not previously authorized by the POEA shall likewise constitute illegal recruitment. Elements of Illegal Recruitment 1. The offender is a licensee/non-licensee or holder/non-holder of authority engaged in the recruitment & placement of workers; and 2. The offender undertakes either any recruitment activities devided under Art 13 (b) or any prohibited practices in Art 34 Simple Illegal Recruitment Where a person: 1. undertakes any recruitment activity defined under Art 13(b) or any prohibited practice enumerated under Arts 34 & 38 of the LC; and 2. does not have a license or authority to lawfully engage in the recruitment & placement of any workers. Illegal Recruitment in Large Scale further requires a 3rd element: 3. The offense is committed against 3/more persons, individually or as a group Illegal Recruitment as Economic Sabotage: 1. When illegal recruitment is committed by a syndicate (when 3/more persons conspire or confederate w/ one another in carrying out an unlawful or illegal transaction, enterprise or scheme); 2. When illegal recruitment is committed in a large scale (if committed against 3/more persons individually or as a group Consequences of Conviction 1. Automatic revocation of license/authority; 2. Forfeiture of the cash & surety bonds; 3. Conviction for the crime of estafa, if found guilty thereof Illegal Recruitment vs Estafa Illegal recruitment is malum prohibitum, whereas estafa is malum in se (criminal intent necessary for conviction) a person may be charged & convicted for both Acts Constituting Estafa - the accused represented themselves to complainants to have the capacity to send workers abroad although they did not have any authority or license, enabling them to obtain placement fee Venue of criminal action arising from Illegal Recruitment The complainant may, at his option file at the RTC of the province/city: a.) where the offense was committed; or b.) where the offended party resides at the time of the commission of the offense Prescriptive Period Imprisonment Fine Simple 5 yrs 12-20 yrs P1-2M Economic Sabotage 20 yrs Life P2-5M Note: Max penalty if the person illegally recruited is less than 18 y/o or committed by a non-licensee or non-holder of authority Absence of receipts evidencing payment, not fatal to prosecutions case for illegal recruitment as long as the witnesses can positively show through their respective testimonies that the accused is the one involved in prohibited recruitment Liability of Local EEnt agency solidarily liable w/ the foreigh principal for unpaid salaries of a worker recruited. Before recruiting, the agency is required to submit a doc containing its power to sue and be sued jointly and solidarily w/ the principal or foreign-based EER for any of the violations of the recruitment agreement and the contracts of EEnt Liability of Company Engaged in Illegal Recruitment may be held as principal, together his EER, if it is shown that he actively & consciously participated in illegal recruitment Issuance of search warrant/warrant of arrest Art 38 is unconstitutional inasmuch as it gives the Sec of Labor the power to issue search or arrest warrants The exception is in cases of deportation whom the President or the Commissioner of Immigration may order arrested, following a final roder of deportation Note: the Sec of Labor may order closure of illegal recruitment establishments because it is only administrative & regulatory in nature TITLE 2: EMPLOYMENT OF NON-RESIDENT ALIENS Alien Employment Permit (AEP) required for entry into the country for employment purposes and is issued after determination of the non-availability of a person in the pH who is competent, able and willing at the time of application to perform the services for w/c the alien is desired All foreign nationals who intend to engage in gainful EENT in the PH shall apply for AEP Employment Permit Required 1. all foreign nationals seeking admission to the PH for the purpose of EENT; 2. all non-resident foreign nationals already working in the PH; 3. non-resident foreign nationals admitted to the PH on non-working visas and who wish to seek EENT; and 4. missionaries or religious workers who intend to engage in gainful EENT. Note: AEP should be secured regardless of the source of compensation and duration of the EENT, whether the EENT is part-time or temp An AEP is issued based on the ff: 1. Compliance by the applicant EER or the foreign national w/ the substantive & documentary requirements; 2. Determination of DOLE Sec that there is no available Filipino national who is competent, able and willing to do the job for the EER; and 3. Assessment of the DOLE Sec that the EENT of the foreign national will redound to national benefit Note: Understudy Training Program is no longer a requirement in the issuance of AEP and the EEr has now the option to implement transfer of technology Requisite for EENT of Resident Aliens: Immigrants & resident aliens are not required to secure a working permit. They are required to secure their Alien Employment Registration Cert (AERC) Exemption from Permit 1. All members of the Diplomatic service and foreign govt officials accredited by and w/ reciprocity arrangement w/ the Ph govt; 2. Officers and staff of international orgs of w/c the PH is a member, and their legitimate spouses desiring to work in the PH; 3. Foreign nationals elected as members of Governing Board who do not occupy any other position, but have only voting rights in the corp; 4. All foreign nationals granted exemption by law; 5. Owners & representatives of foreign nationals whose companies are accredited by the POEA who come to the PH for a limited period and solely for the purpose of interviewing Filipino applicants for EENT abroad; 6. Foreign nationals who come to the PH to teach, present and/or conduct research studies in univs and colleges as visiting, exchange or adjunct professors under formal agreements bet the univs or colleges in the PH an foreign univs or colleges; or bet the Ph govt and foreign govt; provided that the exemption is on a reciprocal basis; and 7. Resident foreign nationals. Grounds for denial of Application of AEP 1. Misrepresentation of facts in the application; 2. Submission of falsified docs; 3. The foreign national has a derogatory record; or 4. Availability of a Fil who is competent, able and willing to the job intended for the alien. Grounds for suspension of AEP 1. The continued stay of the foreign national my result in damage to the interest of the industry of the country; and 2. the EENT of the alien is suspended by the EER or by the order of the court Grounds for revocation of AEP 1. Non-compliance w/ any of the requirement/conditions for w/c the AEP was issued; 2. Misrepresentation of facts in the application; 3. Submission of falsified docs; 4. Meritorious objection or information against the EENT of foreign national as determined by the Regional Dir; 5. Foreign national has a derogatory record; and 6. EER has terminated the EENT of the foreign national. Validity of EENT Permit 1 yr, unless the EENT contract, consultancy services or other modes of engagement provides otherwise, w/c shall in no case exceed 5yrs fine for working w/o or with an expired AEP P10K for every year or a fraction thereof. Rule on Nationalized Business GR: Foreigners may NOT be employed in certain nationalized business. Anti-Dummy Law 2-A prohibits the EENT of aliens in entities engaged in business whose exercise or enjoyment is reserved only to Fils or to corporations or assocs whose capital should be at least 60% Fil-owned Exceptions: 1. Where the Sec of Justice specifically authorizes the EEnt of technical personnel; 2. Aliens who are members of the Board of directors of corps in proportion to their allowable participation in the capital of such entities; and 3. Enterprises registered under the Omnibus Investment Code in case of technical, supervisory or advisory positions, but for a limited pd. Art 41. PROHIBITION AGAINST TRANSFER OF EENT 1. Aliens shall not transfer to another job or change his EER w/o prior approval of the Sec of Labor; 2. Non-resident aliens shall not take up EENT in violation of the provisions of the Code. Note: Violations of the abovementioned acts will subj the alien to the punishment in Art 289 & 290 and to deportation after service of sentence BOOK 2: HUMAN RESOURCES TITLE 1: NATIONAL MANPOWER DEVT PROGRAM CH 1: NATIONAL POLICIES & ADMINISTRATIVE MACHINERY FOR THEIR IMPLEMENTATION Art 43-56 TECHNICAL EDUCATION AND SKILLS DEVT AUTHORITY (TESDA) - replaced the National Manpower & Youth Council under RA 7796 Statement of Goals & Objectives 1. To attain international competitiveness; 2. To meet demands for quality middle-level manpower; 3. To disseminate scientific & technical knowledge base; 4. To recognize & encourage the complementary roles of pub & private institutions; and 5. To inculcate desirable values. Middle-level Manpower 1. Those who have acquired practical skills & knowledge through formal or non-formal educ & training equivalent to at least a secondary educ but preferably a post-secondary educ w/ a corresponding degree/diploma; or 2. Skilled workers who have become highly competent in their trade or craft as attested by industry. TITLE 2: TRAINING & EMPLOYMENT OF SPECIAL WORKERS CH1: TYPES OF SPECIAL WORKERS 1. Apprentice 2. Learner 3. Handicapped Art 57 STATEMENT OF OBJECTIVES FOR THE TRAINING & EENT OF SPECIAL WORKERS 1. To help meet the demand of the economy for trained manpower; 2. To establish a national apprenticeship program; and 3. To establish apprenticeship standards for the protection of apprentices. Art 58: DEFINITION OF TERMS Apprenticeship practical training on the job supplemented by related theoretical instruction, for a highly skilled or technical instruction for a period of 3-6 months Apprentice a person undergoing training for an approved apprenticeable occupation during an established period assured by an apprenticeship agreemt Apprenticeable Occupation an occupation officially endorsed by a tripartite body and approved for apprenticeship by the TESDA (no longer the Sec of Labor) Apprenticeship Agreement an EENT contract wherein the EER binds himself to train the apprentice and the apprentice in turn accepts the terms of training On-the-job training practical work experience through actual participation in productive activities given to or acquired by an apprentice Highly technical industries a trade, business, enterprise, industry or other activity, w/c is engaged in the application of advanced technology Art 59: QUALIFICATIONS OF APPRENTICES 1. At least 15 y/o, provided that if below 18 y/o, he shall not be eligible for hazardous occupation; 2. Physically fit for the occupation in w/c he desires to be trained; 3. Possess vocational aptitude and capacity for the particular occupation as established through appropriate tests; and 4. Possess the ability to comprehend and follow oral & written instructions. Note: Total physical fitness is not required of the apprentice-applicant unless it is essential to the expeditious and effective learning of the occupation. Only physical defects w/c constitute real impediments to effective perf as determined by the plant apprenticeship committee may dispqualify an applicant Art 60: EMPLOYMENT OF APPRENTICES Qualifications to be met by EER: 1. Only EERS in highly technical industries may employ apprentices; and 2. Only in apprenticeable occupations as determined by the TESDA. Requisites for a Valid apprenticeship 1. Qualifications of apprentice are met; 2. Apprentice earns not less than 75% of the prescribed minimum salary; 3. Apprenticeship agreemt duly executed & signed; 4. Apprenticeship program must be approved by the TESDA; otherwise the apprentice shall be deemed a regular EE; 5. Period of apprenticeship shall not exceed 6 months Note: at the termination of the apprenticeship, the EER is not required to continue the EENT There is no valid apprenticeship if: 1. The agreemt submitted to the TESDA was made long after the workers started undergoing apprenticeship; 2. The work performed by the apprenticeship was different from those allegedly approved by TESDA; 3. The workers undergoing apprenticeship are already skilled workers; 4. The workers were required to continue undergoing apprenticeship beyond 6mos. Art 61: CONTENTS OF APPRENTICESHIP AGREEMENT 1. Full name & address of the contracting parties; 2. Date of birth of the apprentice; 3. Name of trade, occupation or job in w/c the apprentice shall be trained and the dates on w/c such training will begin and will proximately end; 4. Approp number of hrs of OJT w/ compulsory theoretical instruction w/c the apprentice shall undergo during his training; 5. Schedule of the work processes of the trade/occupation in w/c the apprentice shall be trained and the approx. time to be spent on the job in each process; 6. Graduated scale of wages to be paid to the apprentice; 7. Probationary pd of the apprentice during wc either party ay summarily terminate their agreemt; and 8. A clause that if the EER is unable to fulfill his training oblig, he may transfer the agreemt, w/ the consent of the apprentice to any other EER who is willing to assume such oblig. Working Hrs shall not exceed the max number of hrs prescribed by law, if any, for a worker of his age and sex. Time spent in compulsorily theoretical instruction shall be considered hrs of work. An apprentice not otherwise barred by law from working 8hrs may be requisted by his EER to work overtime and paid accordingly. Art 62: SIGNING OF APPRENTICESHIP AGREEMENT Who signs: 1. The apprentice, if of age, otherwise, by his parent or guardian, or in the latters absence, by an authorized rep of TESDA; and 2. EER or his duly authorized rep Art 63: VENUE OF APPRENTICESHIP PROGRAM 1. Within the sponsoring firm, establishment or entity; or 2. Within a DOLE training center or other public training institutions; or 3. Initial training in trade fundamentals in a training center or other institutions w/ subsequent actual work participation w/in the sponsoring firm or entity during the final stage of training. Art 64: SPONSORING OF APPRENTICESHIP PROGRAMS BY: 1. The plant, shop or premises of the EER or firm concerned if the apprenticeship program is organized by an indiv EER or firm; 2. The premises of one or several firms designated for the purpose by the organizer of the program if such organizer is an assoc of EERS, civic group and the like; and 3. DOLE Training Center or other public training institutions w/ w/c the TESDA has made approp arrangements. Art 65-67: VIOLATION OF APPRENTICESHIP AGREEMENT Art 65: Investigation of violation of apprenticeship agreement 1. Either party to an agreemt may terminate the same after the probationary pd only for a valid cause. 2. Action may be initiated upon complaint of any interested person or upon DOLEs own initiative. Valid Cause to terminate agreement 1. By the EER: a. Habitual absenteeism in OJT and related theoretical instructions; b. Willful disobedience of company rules or insubordination to lawful order of a superior; c. Poor physical condition, permanent disability or prolonged illness w/c incapacitates the apprentice from working; d. Theft or malicious destruction of company property and/or equipment e. Poor efficiency or perf on the job or in the classroom for a prolonged period despite warnings duly given to the apprentice; and f. Engaging in violence or other forms of gross misconduct inside the EERs premises 2. By the apprentice: a. Substandard or deleterious working conditions w/in the EERs premises; b. Repeated violations by the EER of the terms of the apprenticeship agreemt; c. Cruel or inhumane treatment by the EER or his subordinates; d. Personal problem s/c in the opinion of the apprentice shall prevent him from a satisfactory perf of his job; and e. Bad health or continuing illness. Art 66: Appeal The decision of an authorized agency of the DOLE may be appealed to the Sec of Labor w/in 5 days form rcpt of the adverse decision. The decision of the Sec of Labor shall be final & executor. Art 67 Exhaustion of Administrative Remedies 1. The exhaustion of administrative remedies is a condition precedent to the institution of action. 2. The plant apprenticeship committee shall have initial responsibility for settling differences arising out of apprenticeship agreements. Art 68: APTITUDE TESTS ANTONIO M. SERRANOVS.GALLANT MARITIME SERVICES, INC. FACTS: Petitioner Antonio Serrano was hired by respondents Gallant Maritime Services, Inc. and Marlow Navigation Co., Inc., under a POEA-approved contract of employment for 12 months, as Chief Officer, with the basic monthly salary of US$1,400, plus $700/month overtime pay, and 7 days paid vacation leave per month. On the date of his departure, Serrano was constrained to accept a downgraded employment contract upon the assurance and representation of respondents that he would be Chief Officer by the end of April 1998. Respondents did not deliver on their promise to make Serrano Chief Officer. Hence, Serrano refused to stay on as second Officer and was repatriated to the Philippines, serving only two months and 7 days, leaving an unexpired portion of nine months and twenty-three days. Upon complaint filed by Serrano before the Labor Arbiter (LA), the dismissal was declared illegal. On appeal, the NLRC modified the LA decision based on the provision of RA 8042. Serrano filed a Motion for Partial Reconsideration, but this time he questioned the constitutionality of the last clause in the 5th paragraph of Section 10 of RA 8042. ISSUES: 1. Whether or not the subject clause violates Section 10, Article III of the Constitution on non-impairment of contracts; 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. HELD: On the first issue. The answer is in the negative. Petitioners claim that the subject clause unduly interferes with the stipulations in his contract on the term of his employment and the fixed salary package he will receive is not tenable. 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. On the second issue. The answer is in the affirmative. 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--vis OFWs with employment contracts of one year or more; Second, among OFWs with employment contracts of more than one year; and Third, OFWs vis--vis local workers with fixed-period employment; The subject clause singles out one classification of OFWs and burdens it with a peculiar disadvantage. Thus, the subject clause in the 5th paragraph of Section 10 of R.A. No. 8042 is violative of the right of petitioner and other OFWs to equal protection. 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. People of the Philippines (petitioner) v Jamilosa (repondent) GR No. 169076 January 23, 2007 Callejo, Sr.,: FACTS: Sometime in the months of January to February, 1996, representing to have the capacity, authority or license to contract, enlist and deploy or transport workers for overseas employment, did then and there, willfully, unlawfully and criminally recruit, contract and promise to deploy, for a fee the herein complainants, namely, Imelda D. Bamba, Geraldine M. Lagman and Alma E. Singh, for work or employment in Los Angeles, California, U.S.A. in Nursing Home and Care Center. Prosecution presented three witnesses, namely Imelda Bamba, Geraldine Lagman and Alma Singh. According to Bamba, she met the appellant on a bus. She was on her way to SM North Edsa where she was a company nurse. Appellant introduced himself as a recruiter of workers for employment abroad. Appellant told her he could help her get employed as nurse. Appellant gave his pager number and instructed her to contact him is shes interested. Sometime in January 1996, appellant fetched her at her office, went to her house and gave him the necessary documents and handed to appellant the amount of US$300.00 and the latter showed her a photocopy of her supposed US visa. However, the appellant did not issue a receipt for the said money. Thereafter, appellant told her to resign from her work because she was booked with Northwest Airlines and to leave for USA on Feb, 1996. On the scheduled departure, appellant failed to show up. Instead, called and informed her that he failed to give the passport and US visa because she had to go to province because his wife died. Trying to contact him to the supposed residence and hotel where he temporarily resided, but to no avail. Winess Lagman testified that she is a registered nurse. In January 1996, she went to SM North Edsa to visit her cousin Bamba. At that time Bamba informed her that she was going to meet to appellant. Bamba invited Lagman to go with her. The appellant convinced them of his ability to send them abroad. On their next meeting, Lagman handed to the latter the necessary documents and an amount of US$300.00 and 2 bottles of black label without any receipt issued by the appellant. Four days after their meeting, a telephone company called her because her number was appearing in appellants cell phone documents. The caller is trying to locate him as he was a swindler. She became suspicious and told Bamba about the matter. One week before her scheduled flight, appellant told her he could not meet them because his mother passed away. Lastly, Alma Singh, who is also a registered nurse, declared that she first met the appellant at SM North Edsa when Imelda Bamba introduced the latter to her. Appellant told her that he is an undercover agent of FBI and he could fix her US visa. On their next meeting, she gave all the pertinent documents. Thereafter, she gave P10,000 to the appellant covering half price of her plane ticket. They paged the appellant through his beeper to set up another appointment but the appellant avoided them as he had many things to do. The accused Jamilosa testified on direct examination that he never told Bamba that he could get her a job in USA, the truth being that she wanted to leave SM as company nurse because she was having a problem thereat. Bamba called him several times, seeking advices from him. He started courting Bamba and went out dating until latter became his girlfriend. He met Lagman and Singh thru Bamba. As complainants seeking advice on how to apply