PART - II

LAW ON LABOR STANDARDS

1. What is the protection-to-labor clause in the Constitution?

“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. It shall guarantee the rights of all workers
to self-organization, collective bargaining and negotiations, and peaceful concerted activities, including the
right to strike in accordance with law. They shall be entitled to security of tenure, humane conditions of work,
and a living wage. They shall also participate in policy and decision-making processes affecting their rights and
benefits as may be provided by law.

“The State shall promote the principle of shared responsibility between workers and employers and the
preferential use of voluntary modes in settling disputes, including conciliation, and shall enforce their mutual
compliance therewith to foster industrial peace.

“The State shall regulate the relations between workers and employers, recognizing the right of labor to its
just share in the fruits of production and the right of enterprises to reasonable returns on investments, and to
expansion and growth.” (Section 3 (Labor), Article XIII [Social Justice and Human Rights] of the 1987
Constitution)

2. What are the basic principles enunciated in the Labor Code on protection to labor?

a. The State shall afford protection to labor, promote full employment, ensure equal work
opportunities regardless of sex, race or creed and regulate the relations between workers and
employers. The State shall assure the rights of workers to self-organization, collective bargaining,
security of tenure, and just and humane conditions of work.

b. Labor contracts are not ordinary contracts as the relation between capital and labor is impressed
with public interest.

c. In case of doubt, labor laws and rules shall be interpreted in favor of labor.

d. Labor Code applies to all workers, whether agricultural or non-agricultural.

e. Applicability of Labor Code to government-owned or controlled corporations: 

• When created with original or special charter - Civil Service laws, rules and regulations;

• When created under the Corporation Code - Labor Code applies.

RECRUITMENT AND PLACEMENT OF WORKERS:

3. What is the relevant law on recruitment for overseas employment?

Migrant Workers and Overseas Filipinos Act of 1995 (R. A. No. 8042).

4. What are the entities authorized to engage in recruitment and placement?

 a. public employment offices;
b. Philippine Overseas Employment Administration (POEA);
c. private recruitment entities;
d. private employment agencies;
e. shipping or manning agents or representatives;
f. such other persons or entities as may be authorized by the Secretary of Labor and
Employment; and
g. construction contractors.

5. Money claims of OFWs.

(SEE PART TWO OF THIS 3-PART PRE-WEEK SERIES FOR MORE EXTENSIVE DISCUSSION OF THIS TOPIC)

6. What is the nature of the liability of local recruitment agency and foreign principal?

1. Local Agency is solidarily liable with foreign principal.

2. Severance of relations between local agent and foreign principal does not affect liability of local
recruiter.

7. Who has jurisdiction over claims for death and other benefits of OFWs?

Labor Arbiters have jurisdiction over claims for death, disability and other benefits arising from employment of
OFWs. Work-connection is required.

8. What is the basis of compensation for death benefits of OFWs?

Basis of compensation for death generally is whichever is greater between Philippine law or foreign law.

9. Which has jurisdiction over disciplinary action cases of OFWs?

The POEA retains jurisdiction over disciplinary action cases.

10. Is direct-hiring of OFWs allowed? Why?

No. Employers cannot directly hire workers for overseas employment except through authorized entities (see
enumeration above).

The reason for the ban is to ensure full regulation of employment in order to avoid exploitation.

(Note: Any non-resident foreign corporation directly hiring Filipino workers is doing business in the
Philippines and may be sued in the Philippines).

11. What is illegal recruitment?

1. Illegal recruitment under Article 38 applies to both local and overseas employment.

2. Illegal recruitment may be committed by any person whether licensees or non-licensees or holders or non-
holders of authority.
3. Elements of illegal recruitment:

a. First element: Recruitment and placement activities.

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: 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 as engaged in such act.

b. Second element: Non-licensee or non-holder of authority - means any person, corporation or entity
which has not been issued a valid license or authority to engage in recruitment and placement by the
Secretary of Labor and Employment, or whose license or authority has been suspended, revoked or
canceled by the POEA or the Secretary of Labor and Employment.

Some relevant principles:

 Mere impression that recruiter is capable of providing work abroad is sufficient.

 "Referral" of recruits also constitutes recruitment activity.
 Absence of receipt to prove payment is not essential to prove recruitment.
 Only one (1) person recruited is sufficient to constitute recruitment.
 Non-prosecution of another suspect is not material.
 A person convicted for illegal recruitment may still be convicted for estafa.

12. When is illegal recruitment considered economic sabotage?

Illegal recruitment is considered economic sabotage - when the commission thereof is attended by the
qualifying circumstances as follows:

a. By a syndicate - if carried out by a group of 3 or more persons conspiring and confederating with one
another;

b. In large scale - if committed against 3 or more persons individually or as a group.

13. What is the prescriptive period of illegal recruitment cases?

Under R. A. 8042, the prescriptive period of illegal recruitment cases is five (5) years except illegal recruitment
involving economic sabotage which prescribes in twenty (20) years.

14. What are the requirements before a non-resident alien may be employed in the Philippines?

Any alien seeking admission to the Philippines for employment purposes and any domestic or foreign
employer who desires to engage an alien for employment in the Philippines shall obtain an employment
permit from the Department of Labor.

The employment permit may be issued to a non-resident alien or to the applicant employer after a
determination of the non-availability of a person in the Philippines who is competent, able and willing at the
time of application to perform the services for which the alien is desired.
For an enterprise registered in preferred areas of investments, said employment permit may be issued upon
recommendation of the government agency charged with the supervision of said registered enterprise.

15. May an alien employee transfer his employment after issuance of permit?

After the issuance of an employment permit, the alien shall not transfer to another job or change his employer
without prior approval of the Secretary of Labor.