SILVA, MERLO SEBASTHIAN C.
Assignment
004 – 2022
LABOR LAW REVIEW
Atty. Porfirio DG. Panganiban, Jr.
1. Provide an a detailed discussion on the difference, significant changes and
consequential advantages of the two laws, Republic Act No. 8042 Republic
Act No. 10022. BE EXHAUSTIVE!!
Republic Act. No. 10022 amended certain provisions of Republic Act. No. 8042.
Some of the notable changes in the law are as follows:

Declaration of Policies [ALL]

Criteria for Host Countries [DOLE, POEA, DFA]

Termination or Ban on Deployment [POEA, DFA]

recruiters [DOJ, POEA, DOLE]

Prosecution and Penalties [DOJ, POEA]

Money Claims [NLRC]

Free Legal Assistance and Witness Protection [POEA, DOJ, DFA]

Mandatory Repatriation of Underage OFWs [POEA, OWWA]

National Reintegration Center for OFWs [DOLE, OWWA, NRCO, POEA, TESDA,
TLRC]

Migrant Workers and Other Overseas Filipinos Resource Center [DFA, DOLE,
OWWA, DSWD]

Shared Government Information System for a Migration [DFA, CFO, DOLE, DOT,
DOJ, BI, NBI, DILG, NTC, CICT, NCC, NSCB, NSO]

Role of POEA, OWWA, DOH, LGUs [+ DOLE, DILG]

Legal Assistant for Migrant Workers [DFA]

Legal Assistance Fund [DFA]

POEA and OWWA Board Memberships [DOLE, POEA, OWWA]

Report to Congress [DFA, DOLE]

Exemption from Travel Tax, Documentary Stamp Tax, and Airport Fee [DOLE, POEA,
DOF]

Compulsory Insurance Coverage for Agency-Hired Workers [IC, DOLE, POEA,
NLRC]

Congressional Oversight Committee

Funding
The rules and regulations spell out in details the salient protective measures of the new
law, among which are:
1. Emphasis on stronger bilateral and multilateral relations with receiving countries
for protection. Interpreting provision of free skills and livelihood programs as
expanding free access to such programs;
2. Criteria for host countries (guaranteeing protection), subject to concurrence to
“take positive and concrete measures” to protect the rights of migrant workers; and
clarifying a three-step process that involves a) DFA certifications on compliance
by host countries; b) POEA resolution allowing deployment to complying host
countries; and c) POEA processing of workers’ documents to countries identified
in POEA resolutions.
3. Inclusion of amendments to prohibited acts that may constitute illegal recruitment
by licensed and unlicensed agencies, as well as other prohibited acts, such as
loans, decking practice in OFW medical examinations; and recruitment by
suspended agencies;
4. Anti-illegal recruitment programs that include institutionalizing the role of LGUs;
added capability of POEA lawyers; prosecution; and operation and surveillance to
apprehend illegal recruiters;
5. Money claims. Inclusion of voluntary arbitration;
6. Repatriation and mechanism for repatriation. Responsibility for repatriation with
principal/employer and licensed recruitment agency; 48-hour notice rule and 15day period for countries with exit visa requirements; provisions on repatriation of
underage workers and asserting penalties and liabilities for recruiters who recruit
underage migrant workers;
7. Overseas Filipino Resource Centers will now have additional required personnel,
such as psychologists, etc. and be under direct POLO supervision;
8. Institutionalizing the National Reintegration Center for OFWs;
9. Protection from abusive medical clinics;
10. Ensuring the use of the legal assistance fund for foreign lawyers and attorneys’
fees and for filing of cases against erring or abusive employers;
11. Compulsory insurance to cover agency-hired workers for accidental death, natural
death, permanent total disablement, repatriation costs, subsistence allowance
benefit, money claims, compassionate visit, medical evaluation, and medical
repatriation.
2. Discuss the following cases and enunciate clearly their doctrine:
a. Serrano v. Gallant Maritime Services, Inc. and Marlow Navigation Co.,
Inc.
Serrano signed a Contract of Employment for Chief Officer, with basic monthly
salary of US$1,400, with Gallant Maritime Services, Inc. and Marlow Navigation Co., Ltd
for 12 months.
However on the date of his departure, March 19, 1998, petitioner was constrained
to accept a downgraded employment contract for the position of Second Officer with a
monthly salary of US$1,000, upon the assurance and representation of respondents that
he would be made Chief Officer by the end of April 1998.
Respondents did not deliver on their promise. Hence, petitioner refused to stay on
as Second Officer and was repatriated to the Philippines on May 26, 1998. Petitioner had
only served 2 months and 7 days of his contract, leaving an unexpired portion of 9 months
and 23 days.
Petitioner filed with the Labor Arbiter a complaint against respondents for
constructive dismissal and for payment of his money claims, for the unexpired portion of
his contract plus adjustments to chief mate’s salary, totaling US$26,442.73.
The last clause in paragraph 10 of RA 8042 states that “In case of termination of
overseas employment without just, valid or authorized cause as defined by law or contract,
the workers shall be entitled to the full reimbursement of his placement fee with interest
of twelve percent (12%) per annum, plus his salaries for the unexpired portion of his
employment contract or for three (3) months for every year of the unexpired term,
whichever is less.”
Relying on this, the LA based his computation on the salary period of 3 months
only rather than the entire unexpired portion of 9 months and 23 days of the petitioner’s
employment contract. Thus, the LA awarded petitioner monetary benefits in the sum
$8,770.00.
ISSUE(S):
What is the source of authority of the state to protect seafarers?
Why is there a need to protect workers and eliminate discrimination?
Who bears the burden of evidence in proving some labor standards claims?
RULING:
Equality is one ideal which cries out for bold attention and action in the Constitution.
The Preamble proclaims "equality" as an ideal precisely in protest against crushing
inequities in Philippine society. To address these inequities, our Constitution, has adopted
the policy of social justice to guarantee social and economic rights to marginalized groups
of society, including labor. Under the policy of social justice, the law bends over backward
to accommodate the interests of the working class on the humane justification that those
with less privilege in life should have more in law.
While these provisions on social justice are described as nonself-executing and
does not directly bestow on the working class any actual enforceable rights, the provisions
urges not only on the legislative and executive branches but also on the judiciary to
translate this pledge into a living reality.
The law guarantees equal protection to all – that no person shall be deprived of
life, liberty, or property without due process of law nor shall any person be denied the
EQUAL PROTECTION OF THE LAW.
Section 18,63 Article II and Section 3,64 Article XIII accord all members of the
labor sector, without distinction as to place of deployment, full protection of their rights
and welfare. To Filipino workers, the rights guaranteed under the foregoing constitutional
provisions translate to economic security and parity: all monetary benefits should be
equally enjoyed by workers of similar category, while all monetary obligations should be
borne by them in equal degree; none should be denied the protection of the laws which
is enjoyed by, or spared the burden imposed on, others in like circumstances.
Laws are presumed constitutional until they are proclaimed by the court to be
otherwise. Generally, the petitioner has the burden of proof in proving that a statute is
unconstitutional. But if the challenge to the statute is premised on the denial of a
fundamental right, or the perpetuation of prejudice against persons favored by the
Constitution with special protection, it is incumbent upon the government to prove that
there is a copelling state interest for the denial of such right.
People of the Philippines vs. Teresita “Tessie” Laogo. G.R. No. 176264 January 10,
2011
FACTS: Appellant, along with a certain Susan Navarro, were found guilty of illegal
recruitment. It was found that Navarro met the complainants in a town fiesta. Navarro
invited the complainants into her house where she introduced them to appellant. Each of
the complainants were told that Navarro would be able to help them secure employment
abroad. The complainants then paid differing amounts to Navarro as placement fees, and
were issued receipts bearing the logo of Laogo Travel Consultancy, the company of
appellant. Complainants eventually found out that appellant and Navarro were not
registered with the DOLE as a recruitment agency. Appellant was found guilty by the RTC,
and her conviction was affirmed by the Court of Appeals. Appellant now challenges her
conviction, contending that she was not affiliated with Navarro, and that her business
involves the processing of visas. She was doing the same for the complainants, and was
not, in any way, affiliated with Navarro.
ISSUE: Is appellant guilty of illegal recruitment?
HELD: The lower and appellate courts found that the transaction entered into by the
complainants an appellant were followed up through appellant office. Also, the receipts
issued to the complainants were from appellant company. The fact that she eventually
changed the company name in an attempt to dissociate herself from Navarro deserves
scant consideration. Appellant engaged in recruitment activities when she promised
complainants employment abroad in exchange for consideration. She is guilty of illegal
recruitment as she was unlicensed to undertake said act.
b. SAMEER OVERSEAS PLACEMENT AGENCY INC. v. CABILES, G.R.
No. 170139, August 5, 2014
FACTS:
Petitioner, Sameer Overseas Placement Agency, Inc., is a recruitment and
placement agency.
Respondent Joy Cabiles was hired thus signed a one-year employment contract for
a monthly salary of NT$15,360.00. Joy was deployed to work for Taiwan Wacoal, Co. Ltd.
(Wacoal) on June 26, 1997. She alleged that in her employment contract, she agreed to
work as quality control for one year. In Taiwan, she was asked to work as a cutter.
Sameer claims that on July 14, 1997, a certain Mr. Huwang from Wacoal informed
Joy, without prior notice, that she was terminated and that “she should immediately report
to their office to get her salary and passport.” She was asked to “prepare for immediate
repatriation.” Joy claims that she was told that from June 26 to July 14, 1997, she only
earned a total of NT$9,000.15 According to her, Wacoal deducted NT$3,000 to cover her
plane ticket to Manila.
On October 15, 1997, Joy filed a complaint for illegal dismissal with the NLRC
against petitioner and Wacoal. LA dismissed the complaint. NLRC reversed LA’s
decision. CA affirmed the ruling of the National Labor Relations Commission finding
respondent illegally dismissed and awarding her three months’ worth of salary, the
reimbursement of the cost of her repatriation, and attorney’s fees
ISSUE:
Whether or not Cabiles was entitled to the unexpired portion of her salary due
to illegal dismissal.
HELD:
YES. The Court held that the award of the three-month equivalent of respondent’s
salary should be increased to the amount equivalent to the unexpired term of the
employment contract.
In Serrano v. Gallant Maritime Services, Inc. and Marlow Navigation Co., Inc., this
court ruled that the clause “or for three (3) months for every year of the unexpired term,
whichever is less” is unconstitutional for violating the equal protection clause and
substantive due process.
A statute or provision which was declared unconstitutional is not a law. It “confers
no rights; it imposes no duties; it affords no protection; it creates no office; it is inoperative
as if it has not been passed at all.”
The Court said that they are aware that the clause “or for three (3) months for every
year of the unexpired term, whichever is less” was reinstated in Republic Act No. 8042
upon promulgation of Republic Act No. 10022 in 2010.
Ruling on the constitutional issue
In the hierarchy of laws, the Constitution is supreme. No branch or office of the
government may exercise its powers in any manner inconsistent with the Constitution,
regardless of the existence of any law that supports such exercise. The Constitution
cannot be trumped by any other law. All laws must be read in light of the Constitution.
Any law that is inconsistent with it is a nullity.
Thus, when a law or a provision of law is null because it is inconsistent
with the Constitution, the nullity cannot be cured by reincorporation or
reenactment of the same or a similar law or provision. A law or provision of law that
was already declared unconstitutional remains as such unless circumstances have so
changed as to warrant a reverse conclusion.
The Court observed that the reinstated clause, this time as provided in Republic Act.
No. 10022, violates the constitutional rights to equal protection and due process.96
Petitioner as well as the Solicitor General have failed to show any compelling change in
the circumstances that would warrant us to revisit the precedent.
The Court declared, once again, the clause, “or for three (3) months for every year
of the unexpired term, whichever is less” in Section 7 of Republic Act No. 10022 amending
Section 10 of Republic Act No. 8042 is declared unconstitutional and, therefore, null and
void.
c. Delia D. Romero VS People of the Philippines, Romulo Padlan and
Arturo Siapno, G.R. No. 171644
FACTS:
Sometime in September 2000 Romulo went to petitioner's stall to inquire about
securing a job in Israel. Convinced by petitioner's words of encouragement and inspired
by the potential salary of US$700.00 to US$1,200.00 a month, Romulo asked petitioner
the amount of money required in order for him to be able to go to Israel. Petitioner
informed him that as soon as he could give her US$3,600.00, his papers would be
immediately processed.
Petitioner contacted Jonney Erez Mokra who instructed Romulo to attend a briefing
at his (Jonney's) house in Dau,Mabalacat, Pampanga. Romulo was able to leave for Israel
on October 26, 2000 and was able to secure a job. Unfortunately, after two and a half
months, he was caught by Israel's immigration police, detained, and then deported.
On the other hand, private respondent Arturo Siapno is petitioner's nephew. He
suffered the same fate as Romulos.
Arturo, after learning that his story was similar to Romulos checked with the DOLE
whether petitioner, Teresita D.Visperas and Jonney Erez Mokra had any license or
authority to recruit employees for overseas employment. Finding that petitioner and the
others were not authorized to recruit for overseas employment, Arturo and Romulo filed
a complaint before the NBI. Consequently, an Information was filed against petitioner and
Jonney Erez Mokra for the crime of Illegal Recruitment which reads as follows:
Upon arraignment on, petitioner, with the assistance of her counsel pleaded not
guilty, whereas accused Jonney ErezMokra was and is still at-large.
The RTC found petitioner guilty as charged. The dispositive portion of its decision
reads as follows:
On appeal, the CA affirmed in toto the decision of the RTC.
Hence, the present petition after petitioner's motion for reconsideration was denied
by the CA. Petitioner enumerates the following assignment of errors:
ISSUE:
(1) Whether the CA erred in affirming the conviction of the accused based merely on a
certification from the DOLE-Dagupan District Office without said certification being
properly identified and testified thereto,
(2) Whether the CA erred in affirming the conviction of the accused in interpreting the
gesture of good faith of the petitioner as referral in the guise of illegal recruitment.
HELD: Petition denied
ILLEGAL RECRUITMENT, TWO ELEMENTS
The crime of illegal recruitment is committed when two elements concur, namely:
(1) the offender has no valid license or authority required by law to enable one to lawfully
engage in recruitment and placement of workers; and (2) he undertakes either any activity
within the meaning of "recruitment and placement" defined under Article 13 (b), or any
prohibited practices enumerated under Article 34 of the Labor Code.
CREATION OF POEA DID NOT DIVEST SECRETARY OF LABOR OF HIS
JURISDICTION OVER RECRUITMENT AND PLACEMENT ACTIVITIES
Petitioner claims that the prosecution committed a procedural lapse in not
procuring a certification from the agency primarily involved, the Philippine Overseas
Employment Administration (POEA). The said argument, however, is flawed. A nonlicensee or non-holder of authority is any person, corporation or entity which has not been
issued a valid license or authority to engage in recruitment and placement by the
Secretary of Labor, or whose license or authority has been suspended, revoked or
cancelled by the POEA or the Secretary. Clearly, the creation of the POEA did not divest
the Secretary of Labor of his/her jurisdiction over recruitment and placement of activities.
ACTS OF PETITIONER CONSTITUTE REFERRAL UNDER ART. 13 (B) OF THE
LABOR CODE
Petitioner insists that the CA was wrong in affirming the factual findings of the trial
court. According to her, the accommodation extended by the petitioner to the private
respondents is far from the referral as contemplated in Article 13 (b) of the Labor Code.
Nevertheless, the testimonies of the private respondents clearly establish the fact that
petitioner's conduct falls within the term recruitment as defined by law. As testified by
Romulo Padlan, petitioner convinced him and Arturo Siapno to give her US$3,600.00 for
the processing of their papers. Thus, it is apparent that petitioner was able to convince
the private respondents to apply for work in Israel after parting with their money in
exchange for the services she would render.
ABSENCE OF RECEIPTS, NOT FATAL
The Court has already ruled that the absence of receipts in a case for illegal
recruitment is not fatal, as long as the prosecution is able to establish through credible
testimonial evidence that accused-appellant has engaged in illegal recruitment. Such
case is made, not by the issuance or the signing of receipts for placement fees, but by
engagement in recruitment activities without the necessary license or authority.
d. PEOPLE OF THE PHILIPPINES v. MELISSA CHUA a.k.a. Clarita Ng
Chua, G.R. No. 187052, September 13, 2012
FACTS:
Within the period of 29 July 2002 up to 20 August 2002, accused personally met
the complainants individually and on separate dates where she represented herself to
have the capacity to contract, enlist and transport the complainants as Filipino Overseas
Workers, particularly Taiwan. She personally received various amounts as placement
fees in consideration for their overseas employment and personally issued receipts to the
complainants. Accused represented herself that she is an employee of Gate International
(Golden Gate) Office located in Paragon Tower, Ermita, Manila. She also assured them
that the earlier complainants would be able to pay their placement fees then the earlier
that they could leave. After the complainants completed payment of their placement fees,
they were made to sign a contract containing stipulations as to salary and conditions of
work. On several occasions thereafter, they returned to appellant’s office to follow-up on
their application. After several visits, however, they noticed that all the properties of
Golden Gate in its Paragon Tower Office were already gone. Thus, the complainants filed
a complaint for Illegal Recruitment and Estafa against the accused. During trial, accused
denied that she was the one who recruited the complainants and that she is merely a
cashier of Golden Gate.
ISSUE:
Whether or not the prosecution was able to sufficiently prove the crime of Illegal
Recruitment and Four (4) Estafa
HELD:
Yes, the accused cannot escape liability by conveniently limiting her participation
as a cashier of Golden Gate. Article 13(b) of the Labor Code and Section 6 of R.A. No.
8042 are unequivocal that illegal recruitment may or may not be for profit. It is immaterial,
therefore, whether appellant remitted the placement fees to the agency’s treasurer or
appropriated them. The same provision likewise provides that the persons criminally liable
for illegal recruitment are the principals, accomplices and accessories. Just the same,
therefore, appellant can be held liable as a principal by direct participation since she
personally undertook the recruitment of private complainants without a license or authority
to do so.
It is well-established in jurisprudence that a person may be charged and convicted
for both illegal recruitment and estafa. The reason therefor is not hard to discern: illegal
recruitment is malum prohibitum, while estafa is mala in se. In the first, the criminal intent
of the accused is not necessary for conviction. In the second, such intent is imperative.
Estafa under Article 315, paragraph 2(a) of the Revised Penal Code is committed by any
person who defrauds another by using fictitious name, or falsely pretends to possess
power, influence, qualifications, property, credit, agency, business or imaginary
transactions, or by means of similar deceits executed prior to or simultaneously with the
commission of fraud.
However, the Supreme Court held that the prosecution failed to establish the
presence of the third and fourth elements of estafa as to the case of private complainant
Ursulum. While Ursulum claims that he delivered to the accused some amounts, he failed
to produce receipts to substantiate the same. Instead, Ursulum relies only on ten text
messages allegedly sent by the accused as evidence of their transaction. Said text
messages alone does not constitute proof beyond reasonable doubt that appellant was
able to obtain an amount from Ursulum as a result of her false pretenses.
Unlike in illegal recruitment where profit is immaterial, a conviction
for estafa requires a clear showing that the offended party parted with his money or
property upon the offender’s false pretenses, and suffered damage thereby. In every
criminal prosecution, the State must prove beyond reasonable doubt all the elements of
the crime charged and the complicity or participation of the accused.32 It is imperative,
therefore, that damage as an element of estafa under Article 315, paragraph 2(a) be
proved as conclusively as the offense itself. The failure of the prosecution to discharge
this burden concerning the estafa allegedly committed against Ursulum warrants the
acquittal of appellant on the said charge.
e. PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. ANNA
ESPIRITU AND ELLEN MABBORANG, ACCUSED, ISABEL RIOS Y
CATAGBUI, ACCUSED-APPELLANT. G.R. No. 226140, February 26,
2020
f. ITALKARAT 18, INC. PETITIONER, VS. JURALDINE N. GERASMIO,
RESPONDENT, G.R. No. 221411, September 28, 2020
FACTS: During 2008, the Company had repeatedly informed its employees of its
proposed retrenchment program as it was suffering from serious business losses. In
particular, Gerasmio, who was designated as the Maintenance Head and Tool and Die
Maker, claimed that Noel San Pedro (San Pedro), the then Officer-In-Charge
(OIC)/Manager of the Company, informed him that the Company was planning to retrench
a substantial number of workers in his Section; and that if he opts to retire early, he will
be given a sum of P170,000.00. San Pedro then allegedly cautioned Gerasmio that if he
will not accept the offer to retire early, the Company would eventually retrench or
terminate him. from his employment, in which case, he might not even receive anything.
In light of the foregoing, Gerasmio accepted the offer and resigned. He was then informed
to return to get his check worth Pl 70,000.00. However, to his dismay, Gerasmio was later
informed by San Pedro that he would be receiving P26,901 34. Thus, Gerasmio, through
his lawyer, demanded the amount of P170,000.00 he was allegedly promised earlier.
Since the Company did not respond, Gerasmio filed the instant complaint for illegal
dismissal. On the other hand, the Company essentially alleged that Gerasmio voluntarily
resigned from his job, thus, his claims are baseless. Labor Arbiter sustained Gerasmio’s
allegations while the NLRC found that Gerasmio voluntarily resigned from his job.
ISSUE: WON Gerasmio was illegally dismissed.
HELD: No. In Gan v. Galderma Philippines, Inc., the Court held that, “since…submitted a
resignation letter, it is incumbent upon him to prove with clear, positive, and convincing
evidence that his resignation was not voluntary but was actually a case of constructive
dismissal; that it is a product of coercion or intimidation. He has to prove his allegations
with particularity.
It is therefore not enough for Gerasmio to allege that he was threathened and thereafter
misled to resign in order for the tribunals and courts to rule that he was constructively
dismissed. Gerasmio must prove with particularity the alleged acts of coercion and
intimidation which led him to resign. This, Gerasmio failed to do. Furthermore, the Court
observe that the evidence on record show that Gerasmio had already intended to resign
in 2008, even earlier than October. The evidence presented by the Company would show
that Gerasmio in fact requested for multiple leaves on various occassions, usually for
processing of his papers for work abroad. Gerasmio's allegation that the Company was
already considering retrenching its employees during the last quarter of 2008 or earlier,
which Gerasmio would want to impress upon this Court to be the catalyst that prompted
San Pedro to make the alleged offer of resignation to Gerasmio, would not have made
any difference in view of the fact that Gerasmio was already in the process of applying
for a job overseas or at the very least, intending to go abroad.
g. ADRIANO TOSTON Y HULAR, PETITIONER, VS. PEOPLE OF THE
PHILIPPINES, RESPONDENT, M G.R. No. 232049, March 03, 2021.
h. PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. AVELINA
MANALANG A.K.A. TESS ROBLES, A.K.A. ALVINA MANALANG,
ACCUSED-APPELLANT, G.R. No. 198015, January 20, 2021
3. What is recruitment? When is recruitment of a person for work considered
illegal?
Recruitment and placement refers to any act of canvassing, enlisting, contracting,
transporting, utilising, hiring or procuring workers, and includes referrals, contract
services, promising or advertising for employment, locally in the Philippines or abroad,
whether for profit or not.
Illegal Recruitment pertains to 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-license or non-holder of authority contemplated under Art 13 (F) of
Presidential Decree No. 442, as amended otherwise known as the Labor Code of the
Philippines: Provided, That any such non-licensee or non-holder who, in any manner,
offers or promises for a fee employment abroad to two or more persons shall be deemed
so engaged. (Sec. 6, RA 8042).
It shall likewise include the following acts, whether committed by any persons,
whether a non-licensee, non-holder, licensee or holder of authority.
(a)
To charge or accept directly or indirectly any amount greater than the specified in the
schedule of allowable fees prescribed by the Secretary of Labor and Employment, or to
make a worker pay any amount greater than that actually received by him as a loan or
advance;
(b) To furnish or publish any false notice or information or document in relation to recruitment
or employment;
(c)
To give any false notice, testimony, information or document or commit any act of
misrepresentation for the purpose of securing a license or authority under the Labor
Code;
(d) To induce or attempt to induce a worker already employed to quit his employment in
order to offer him another unless the transfer is designed to liberate a worker from
oppressive terms and conditions of employment;
(e)
To influence or attempt to influence any persons or entity not to employ any worker who
has not applied for employment through his agency;
(f)
To engage in the recruitment of placement of workers in jobs harmful to public health or
morality or to dignity of the Republic of the Philippines;
(g) To obstruct or attempt to obstruct inspection by the Secretary of Labor and Employment
or by his duly authorized representative;
(h) To fail to submit reports on the status of employment, placement vacancies, remittances
of foreign exchange earnings, separations from jobs, departures and such other matters
or information as may be required by the Secretary of Labor and Employment;
(i)
To substitute or alter to the prejudice of the worker, employment contracts approved and
verified by the Department of Labor and Employment from the time of actual signing
thereof by the parties up to and including the period of the expiration of the same without
the approval of the Department of Labor and Employment;
(j)
For an officer or agent of a recruitment or placement agency to become an officer or
member of the Board of any corporation engaged in travel agency or to be engaged
directly on indirectly in the management of a travel agency;
(k)
To withhold or deny travel documents from applicant workers before departure for
monetary or financial considerations other than those authorized under the Labor Code
and its implementing rules and regulations;
(l)
Failure to actually deploy without valid reasons as determined by the Department of
Labor and Employment; and
(m) Failure to reimburse expenses incurred by the workers in connection with his
documentation and processing for purposes of deployment, in cases where the
deployment does not actually take place without the worker's fault. Illegal
recruitment when committed by a syndicate or in large scale shall be considered as
offense involving economic sabotage.
4. When is recruitment considered SIMPLE and when IS IT considered as
QUALIFIED RECRUITMENT?
It is simple illegal recruitment when the following elements are present:
(a) the offender has no valid license or authority required by law to enable him to lawfully
engage in recruitment and placement of workers;
(b) the offender undertakes any of the activities within the meaning of “recruitment and
placement” under Article 13(b) of the Labor Code, or any of the prohibited practices
enumerated under Article 34 of the said Code (now Section 6 of Republic Act No.
8042
(c) the offender committed the same against three or more persons, individually or as a
group.
On the other hand, it is qualified when:
Illegal recruitment is deemed committed by a syndicate carried out by a group of
three (3) or more persons conspiring or confederating with one another. It is deemed
committed in large scale if committed against three (3) or more persons individually or as
a group. Illegal recruitment is considered as economic sabotage if it is carried out by a
group of three (3) or more persons conspiring or confederating with one another or it is
committed against three (3) or more persons individually or as a group.
The law does not require that the syndicate should recruit more than one (1) person
in order to constitute the crime of illegal recruitment by a syndicate. Recruitment of one
(1) person would suffice to qualify the illegal recruitment act as having been committed
by a syndicate. When illegal recruitment is committed by a syndicate or ina large scale or
both, it is considered an OFFENSE INVOLVING ECONOMIC SABOTAGE.
5. What are the elements of illegal recruitment.? When is illegal recruitment
deemed committed by a syndicate? When is illegal recruitment deemed
committed in large scale? When is illegal recruitment deemed an economic
sabotage?
Elements of Illegal Recruitment
(a) the offender has no valid license or authority required by law to enable him to lawfully
engage in recruitment and placement of workers;
(b) the offender undertakes any of the activities within the meaning of “recruitment and
placement” under Article 13(b) of the Labor Code, or any of the prohibited practices
enumerated under Article 34 of the said Code (now Section 6 of Republic Act No.
8042
(c) the offender committed the same against three or more persons, individually or as a
group.
Illegal recruitment is deemed committed by a syndicate carried out by a group of three
(3) or more persons conspiring or confederating with one another. It is deemed committed
in large scale if committed against three (3) or more persons individually or as a group.
Illegal recruitment is considered as economic sabotage if it is carried out by a group of
three (3) or more persons conspiring or confederating with one another or it is committed
against three (3) or more persons individually or as a group.
The law does not require that the syndicate should recruit more than one (1) person
in order to constitute the crime of illegal recruitment by a syndicate. Recruitment of one
(1) person would suffice to qualify the illegal recruitment act as having been committed
by a syndicate. When illegal recruitment is committed by a syndicate or ina large scale or
both, it is considered an OFFENSE INVOLVING ECONOMIC SABOTAGE.
6. Discuss extensively penalties for illegal recruitment under RA 10022?
Under RA 10022, the penalties to be imposed upon a person guilty of illegal recruitment
shall as follows:
(a) Any person found guilty of illegal recruitment shall suffer the penalty of imprisonment
of not less than twelve (12) years and one (1) day but not more than twenty (20) years
and a fine of not less than One million pesos (P1,000,000.00) nor more than Two million
pesos (P2,000,000.00).
(b) The penalty of life imprisonment and a fine of not less than Two million pesos
(P2,000,000.00) nor more than Five million pesos (P5,000,000.00) shall be imposed if
illegal recruitment constitutes economic sabotage as defined therein.
Provided, however, That the maximum penalty shall be imposed if the person illegally
recruited is less than eighteen (18) years of age or committed by a non-licensee or nonholder of authority.
(c) Any person found guilty of any of the prohibited acts shall suffer the penalty of
imprisonment of not less than six (6) years and one (1) day but not more than twelve (12)
years and a fine of not less than Five hundred thousand pesos (P500,000.00) nor more
than One million pesos (P1,000,000.00).
If the offender is an alien, he or she shall, in addition to the penalties herein prescribed,
be deported without further proceedings.
In every case, conviction shall cause and carry the automatic revocation of the license or
registration of the recruitment/manning agency, lending institutions, training school or
medical clinic.
7. How much is the fine if one is found guilty in illegal recruitment?
Republic Act No. 10022 states that any person found guilty of illegal recruitment
shall suffer the penalty of imprisonment of not less than twelve (12) years and one (1) day
but not more than twenty (20) years and a fine of not less than One million pesos
(P1,000,000.00) nor more than Two million pesos (P2,000,000.00).
If the illegal recruitment constitutes economic sabotage, the penalty of life
imprisonment and a fine of not less than Two million pesos (P2,000,000.00) nor more
than Five million pesos (P5,000,000.00) shall be imposed.
8. Provide and explain the expanded and comprehensive enumeration of
prohibited ACTS under RA 10022.
Republic Act No. 10022, otherwise known as the Migrant Workers Act” defines illegal
recruitment as 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 non-licensee or
non-holder of authority. It shall likewise include the following acts, whether committed by
any person, whether a non-licensee, non-holder, licensee or holder of authority:
(a) To charge or accept directly or indirectly any amount greater than that specified in the
schedule of allowable fees prescribed by the Secretary of Labor and Employment, or to
make a worker pay or acknowledge any amount greater than that actually received by
him as a loan or advance;
(b) To furnish or publish any false notice or information or document in relation to
recruitment or employment;
(c) To give any false notice, testimony, information or document or commit any act of
misrepresentation for the purpose of securing a license or authority under the Labor
Code, or for the purpose of documenting hired workers with the POEA, which include the
act of reprocessing workers through a job order that pertains to nonexistent work, work
different from the actual overseas work, or work with a different employer whether
registered or not with the POEA;
(d) To include or attempt to induce a worker already employed to quit his employment in
order to offer him another unless the transfer is designed to liberate a worker from
oppressive terms and conditions of employment;
(e) To influence or attempt to influence any person or entity not to employ any worker
who has not applied for employment through his agency or who has formed, joined or
supported, or has contacted or is supported by any union or workers’ organization;
(f) To engage in the recruitment or placement of workers in jobs harmful to public health
or morality or to the dignity of the Republic of the Philippines;
“h) To fail to submit reports on the status of employment, placement vacancies,
remittance of foreign exchange earnings, separation from jobs, departures and such other
matters or information as may be required by the Secretary of Labor and Employment;
(i) To substitute or alter to the prejudice of the worker, employment contracts approved
and verified by the Department of Labor and Employment from the time of actual signing
thereof by the parties up to and including the period of the expiration of the same without
the approval of the Department of Labor and Employment;
(j) For an officer or agent of a recruitment or placement agency to become an officer or
member of the Board of any corporation engaged in travel agency or to be engaged
directly or indirectly in the management of travel agency;
(k) To withhold or deny travel documents from applicant workers before departure for
monetary or financial considerations, or for any other reasons, other than those
authorized under the Labor Code and its implementing rules and regulations;
(l) Failure to actually deploy a contracted worker without valid reason as determined by
the Department of Labor and Employment;
(m) Failure to reimburse expenses incurred by the worker in connection with his
documentation and processing for purposes of deployment, in cases where the
deployment does not actually take place without the worker’s fault. Illegal recruitment
when committed by a syndicate or in large scale shall be considered an offense involving
economic sabotage; and
(n) To allow a non-Filipino citizen to head or manage a licensed recruitment/manning
agency.
In addition to the above-mentioned acts, it shall also be unlawful for any person or entity
to commit the following prohibited acts:
(1) Grant a loan to an overseas Filipino worker with interest exceeding eight percent (8%)
per annum, which will be used for payment of legal and allowable placement fees and
make the migrant worker issue, either personally or through a guarantor or
accommodation party, postdated checks in relation to the said loan;
(2) Impose a compulsory and exclusive arrangement whereby an overseas Filipino
worker is required to avail of a loan only from specifically designated institutions, entities
or persons;
(3) Refuse to condone or renegotiate a loan incurred by an overseas Filipino worker after
the latter's employment contract has been prematurely terminated through no fault of his
or her own;
(4) Impose a compulsory and exclusive arrangement whereby an overseas Filipino
worker is required to undergo health examinations only from specifically designated
medical clinics, institutions, entities or persons, except in the case of a seafarer whose
medical examination cost is shouldered by the principal/shipowner;
(5) Impose a compulsory and exclusive arrangement whereby an overseas Filipino
worker is required to undergo training, seminar, instruction or schooling of any kind only
from specifically designated institutions, entities or persons, except fpr recommendatory
trainings mandated by principals/shipowners where the latter shoulder the cost of such
trainings;
(6) For a suspended recruitment/manning agency to engage in any kind of recruitment
activity including the processing of pending workers' applications; and
(7) For a recruitment/manning agency or a foreign principal/employer to pass on the
overseas Filipino worker or deduct from his or her salary the payment of the cost of
insurance fees, premium or other insurance related charges, as provided under the
compulsory worker's insurance coverage.
9. Discuss intently but extensively the recognized liabilities of Local
Recruitment Agency and Foreign Employer as provided under RA 10022.
The liability of the principal/employer and the recruitment/placement agency for
any and all claims shall be joint and several. The performance bond to be filed by the
recruitment/placement agency, as provided by law, shall be answerable for all money
claims or damages that may be awarded to the workers. If the recruitment/placement
agency is a juridical being, the corporate officers and directors and partners as the case
may be, shall themselves be jointly and solidarily liable with the corporation or partnership
for the aforesaid claims and damages.
Such liabilities shall continue during the entire period or duration of the
employment contract and shall not be affected by any substitution, amendment or
modification made locally or in a foreign country of the said contract.
10. Discuss with fervor the difference/s between the definition provided for and
given in Article 38 of the Labor Code on the term recruitment, WITH
RESPECT TO RA 10022, definition on recruitment.
Article 38 of the Labor Code defines recruitment as any act of canvassing,
enlisting, contracting, transporting, utilizing, hiring or procuring workers, and includes
referrals contract services, promising or advertising for employment, locally or abroad,
whether for profit or not: Provided, that any person or entity which, in any manner,
offers or promises for a fee, employment to two or more persons shall be deemed
engaged in recruitment and placement.
On the other hand, RA 1002 defines recruitment as any act of canvassing, enlisting,
contracting, transporting, utilizing, or procuring workers and includes referring,
contract services, promising or advertising for employment abroad.
11. What is the legal significance of a LICENSE and an Authority?
License means a document issued by the Department of Labor authorizing a
person or entity to operate a private fee-charging employment agency. On the other
hand, Authority means a document issued by the Department of Labor authorizing a
person or entity to operate a private non-fee-charging employment agency.
Under the law, no person or entity may operate a private non-fee-charging
employment agency without an authority from the Department of Labor. Likewise, no
person or entity may operate a private fee-charging employment agency without a
license from the Department of Labor.
Basically, only entities or persons with license or holder of authority can engage
in recruitment and placement activities. It is important to determine if the recruiter has
license or authority to recruit in determining whether such person or entity committed
illegal recruitment. On the other hand, despite having the license or authority, if the
acts enumerated under RA 10022 are committed by a licensee or holder of authority,
he/she shall likewise be guilty of illegal recruitment.
12. Explain with vigor the DOCTRINE OF IMPUTED KNOWLEDGE. How does
this affect an overseas Filipino Worker or migrant worker in the protection
their interest and rights? Explain with legal basis.
The theory of imputed knowledge is a doctrine in agency stating that the principal
is chargeable with and bound by the knowledge of or notice to his agent received while
the agent was acting as such. Notice to the agent is notice to the principal.
The theory of imputed knowledge ascribes the knowledge of the agent,, to the
principal, employer, not the other way around. The knowledge of the principal-foreign
employer cannot, therefore, be imputed to its agent . (Sunace International Management
Services, Inc. vs. National Labor Relations Commission, G.R. No. 161757. January 25,
2006). Knowledge of facts acquired or possessed by an officer or agent in the course of
his employment, and in relation to matters within the scope of his authority, is notice to
the corporation or employer, whether he communicates such knowledge or not.
It protects the interests and rights of the OFWs since the employer cannot deny
liability arising from the valid and binding agreement of the recruitment agency and the
worker. The agreement between the worker and the recruitment agency will bind the
employer regardless of the knowledge of the latter regarding the agreement.
13. How are the money claims of an illegally displaced OFW or migrant workers
resolved under RA 10022?
Section 7 of RA 10022 provides for the rules regarding money claims of an illegally
displaced OFW or migrant workers. Under this provision, notwithstanding any provision
of law to the contrary, the Labor Arbiters of the National Labor Relations Commission
(NLRC) shall have the original and exclusive jurisdiction to hear and decide, within ninety
(90) calendar days after the filing of the complaint, the claims arising out of an employeremployee relationship or by virtue of any law or contract involving Filipino workers for
overseas deployment including claims for actual, moral, exemplary and other forms of
damage. Consistent with this mandate, the NLRC shall endeavor to update and keep
abreast with the developments in the global services industry.
The liability of the principal/employer and the recruitment/placement agency for any and
all claims under this section shall be joint and several. This provision shall be incorporated
in the contract for overseas employment and shall be a condition precedent for its
approval. The performance bond to de filed by the recruitment/placement agency, as
provided by law, shall be answerable for all money claims or damages that may be
awarded to the workers. If the recruitment/placement agency is a juridical being, the
corporate officers and directors and partners as the case may be, shall themselves be
jointly and solidarily liable with the corporation or partnership for the aforesaid claims and
damages.
Such liabilities shall continue during the entire period or duration of the employment
contract and shall not be affected by any substitution, amendment or modification made
locally or in a foreign country of the said contract.
Any compromise/amicable settlement or voluntary agreement on money claims inclusive
of damages under this section shall be paid within thirty (30) days from approval of the
settlement by the appropriate authority.
In case of termination of overseas employment without just, valid or authorized cause as
defined by law or contract, or any unauthorized deductions from the migrant worker's
salary, the worker shall be entitled to the full reimbursement if his placement fee and the
deductions made with interest at twelve percent (12%) per annum, plus his salaries for
the unexpired portion of his employment contract or for three (3) months for every year of
the unexpired term, whichever is less.
In case of a final and executory judgement against a foreign employer/principal, it shall
be automatically disqualified, without further proceedings, from participating in the
Philippine Overseas Employment Program and from recruiting and hiring Filipino workers
until and unless it fully satisfies the judgement award.
14. What are the remedies available to a migrant worker whose contract was preterminated, for a cause and without a cause?
In case of termination of overseas employment without just, valid or authorized
cause as defined by law or contract, or any unauthorized deduction from the migrant
worker's salary, the worker shall be entitled to the full reimbursement of his placement
fee with interest of twelve per cent (12%) per annum, plus his salaries for the unexpired
portion of his employment contract or three (3) months for every year of the unexpired
term, whichever is less.
15. What are the REGULATORY AND VISITORIAL POWERS OF the DOLE
SECRETARY in the recruitment and placement activities of all agencies?
The Secretary of Labor shall have the power to restrict and regulate the
recruitment and placement activities of all agencies within the coverage of this Title
and is hereby authorized to issue orders and promulgate rules and regulations to carry
out the objectives and implement the provisions relevant to recruitment.
Furthermore, the Secretary of Labor or his duly authorized representatives may, at
any time, inspect the premises, books of accounts and records of any person or entity
covered by this Title, require it to submit reports regularly on prescribed forms, and
act on violation of any provisions relevant to recruitment and placement.
16. Discuss all the prohibited practices in recruitment.
There are two crimes under the Labor Code, to wit: illegal recruitment, and
prohibited practices. Illegal recruitment under Article 38 is committed by a non-licensee
or non-holder of authority by engaging in recruitment activity. Prohibited practices under
Article 34 is committed by licensee or holder of authority. If the prohibited practices under
Article 34 is committed by a non-licensee or non-holder of authority, the crime committed
is illegal recruitment, and not prohibited practices.
There are three crimes under RA No. 8042, to wit: illegal recruitment without
license or authority, illegal recruitment involving prohibited acts, and prohibited
acts. Illegal recruitment without license or authority under first paragraph of Section 6 of
RA No. 8042is committed by a non-licensee or non-holder of authority by engaging in
recruitment activity. Illegal recruitment involving prohibited acts is committed by any
person, whether a non-licensee, non-holder, licensee or holder of authority by
perpetrating any of the prohibited acts under Section 6 (a) to (n) of RA No.
8042. Prohibited acts is committed by any person by perpetrating any of the unlawful acts
under Section 6 (1) to (7) of RA No. 8042.
Prohibited practices under Article 34
a. To charge or accept, directly or indirectly, any amount greater than that specified in
the schedule of allowable fees prescribed by the Secretary of Labor, or to make a
worker pay any amount greater than that actually received by him as a loan or
advance;
b. To furnish or publish any false notice or information or document in relation to
recruitment or employment;
c. To give any false notice, testimony, information or document or commit any act of
misrepresentation for the purpose of securing a license or authority under this Code.
d. To induce or attempt to induce a worker already employed to quit his employment in
order to offer him to another unless the transfer is designed to liberate the worker
from oppressive terms and conditions of employment;
e. To influence or to attempt to influence any person or entity not to employ any worker
who has not applied for employment through his agency;
f.
To engage in the recruitment or placement of workers in jobs harmful to public health
or morality or to the dignity of the Republic of the Philippines;
g. To obstruct or attempt to obstruct inspection by the Secretary of Labor or by his duly
authorized representatives;
h. To fail to file reports on the status of employment, placement vacancies, remittance
of foreign exchange earnings, separation from jobs, departures and such other
matters or information as may be required by the Secretary of Labor.
i.
To substitute or alter employment contracts approved and verified by the Department
of Labor from the time of actual signing thereof by the parties up to and including the
periods of expiration of the same without the approval of the Secretary of Labor;
j.
To become an officer or member of the Board of any corporation engaged in travel
agency or to be engaged directly or indirectly in the management of a travel agency;
and
k. To withhold or deny travel documents from applicant workers before departure for
monetary or financial considerations other than those authorized under this Code and
its implementing rules and regulations.
Prohibited Acts under RA 10022
(a) To charge or accept directly or indirectly any amount greater than that specified in the
schedule of allowable fees prescribed by the Secretary of Labor and Employment, or to
make a worker pay or acknowledge any amount greater than that actually received by
him as a loan or advance;
(b) To furnish or publish any false notice or information or document in relation to
recruitment or employment;
(c) To give any false notice, testimony, information or document or commit any act of
misrepresentation for the purpose of securing a license or authority under the Labor
Code, or for the purpose of documenting hired workers with the POEA, which include the
act of reprocessing workers through a job order that pertains to nonexistent work, work
different from the actual overseas work, or work with a different employer whether
registered or not with the POEA;
(d) To include or attempt to induce a worker already employed to quit his employment in
order to offer him another unless the transfer is designed to liberate a worker from
oppressive terms and conditions of employment;
(e) To influence or attempt to influence any person or entity not to employ any worker
who has not applied for employment through his agency or who has formed, joined or
supported, or has contacted or is supported by any union or workers' organization;
(f) To engage in the recruitment or placement of workers in jobs harmful to public health
or morality or to the dignity of the Republic of the Philippines;
(h) To fail to submit reports on the status of employment, placement vacancies,
remittance of foreign exchange earnings, separation from jobs, departures and such other
matters or information as may be required by the Secretary of Labor and Employment;
(i) To substitute or alter to the prejudice of the worker, employment contracts approved
and verified by the Department of Labor and Employment from the time of actual signing
thereof by the parties up to and including the period of the expiration of the same without
the approval of the Department of Labor and Employment;
(j) For an officer or agent of a recruitment or placement agency to become an officer or
member of the Board of any corporation engaged in travel agency or to be engaged
directly or indirectly in the management of travel agency;
(k) To withhold or deny travel documents from applicant workers before departure for
monetary or financial considerations, or for any other reasons, other than those
authorized under the Labor Code and its implementing rules and regulations;
(l) Failure to actually deploy a contracted worker without valid reason as determined by
the Department of Labor and Employment;
(m) Failure to reimburse expenses incurred by the worker in connection with his
documentation and processing for purposes of deployment, in cases where the
deployment does not actually take place without the worker's fault. Illegal recruitment
when committed by a syndicate or in large scale shall be considered an offense involving
economic sabotage; and
(n) To allow a non-Filipino citizen to head or manage a licensed recruitment/manning
agency.
In addition to the acts enumerated above, it shall also be unlawful for any person or entity
to commit the following prohibited acts:
(1) Grant a loan to an overseas Filipino worker with interest exceeding eight percent (8%)
per annum, which will be used for payment of legal and allowable placement fees and
make the migrant worker issue, either personally or through a guarantor or
accommodation party, postdated checks in relation to the said loan;
(2) Impose a compulsory and exclusive arrangement whereby an overseas Filipino
worker is required to avail of a loan only from specifically designated institutions, entities
or persons;
(3) Refuse to condone or renegotiate a loan incurred by an overseas Filipino worker after
the latter's employment contract has been prematurely terminated through no fault of his
or her own;
(4) Impose a compulsory and exclusive arrangement whereby an overseas Filipino
worker is required to undergo health examinations only from specifically designated
medical clinics, institutions, entities or persons, except in the case of a seafarer whose
medical examination cost is shouldered by the principal/shipowner;
(5) Impose a compulsory and exclusive arrangement whereby an overseas Filipino
worker is required to undergo training, seminar, instruction or schooling of any kind only
from specifically designated institutions, entities or persons, except fpr recommendatory
trainings mandated by principals/shipowners where the latter shoulder the cost of such
trainings;
(6) For a suspended recruitment/manning agency to engage in any kind of recruitment
activity including the processing of pending workers' applications; and
(7) For a recruitment/manning agency or a foreign principal/employer to pass on the
overseas Filipino worker or deduct from his or her salary the payment of the cost of
insurance fees, premium or other insurance related charges, as provided under the
compulsory worker's insurance coverage.
17. Explain the support services mandated by RA 10022 to OFW’s.
The National Reintegration Center for Overseas Filipino Workers shall be responsible
in providing the following services:
(a) Develop and support programs and projects for livelihood, entrepreneurship, savings,
investments and financial literacy for returning Filipino migrant workers and their families
in coordination with relevant stakeholders, service providers and international
organizations;
(b) Coordinate with appropriate stakeholders, service providers and relevant international
organizations for the promotion, development and the full utilization of overseas Filipino
worker returnees and their potentials;
(c) Institute, in cooperation with other government agencies concerned, a computerbased information system on returning Filipino migrant workers shall be accessible to all
local recruitment agencies and employers, both public and private;
(d) Proved a periodic study and assessment of job opportunities for returning Filipino
migrant workers;
(e) Develop and implement other appropriate programs to promote the welfare of
returning Filipino migrant workers;
(f) Maintain an internet-based communication system for on-line registration and
interaction with clients, and maintain and upgrade computer-based service capabilities of
the NRCO;
(g) Develop capacity-building programs for returning overseas Filipino workers and their
families, implementers, service providers, and stakeholders; and
"(h) Conduct research for policy recommendations and program development."
18. Discuss what is Republic Act No. 11641 An Act Creating The Department Of
Migrant Workers, Defining Its Powers And Functions, Rationalizing The
Organization And Functions Of Government Agencies Related To Overseas
Employment And Labor Migration, Appropriating Funds Therefor, And For
Other Purposes
Philippine President Rodrigo Roa Duterte signed into law the Republic Act (RA) No.
11641 creating the Department of Migrant Workers (DMW).
It is composed of the new Department’s Secretary together with officials from the offices
and departments of Foreign Affairs, Labor, Maritime, and Social Welfare.
The law was created given the mandate of the State: to protect the rights and promote
the welfare of overseas Filipino workers (OFWs) and their families; to make overseas
employment a choice, not a necessity; to strengthen the domestic labor market for the
effective reintegration of OFWs; and to progressively align programs and policies towards
the fulfillment of the 23 Objectives of the GCM. This new Department shall cover all
matters relating to OFWs, including prospective overseas workers in the Philippines and
overseas workers who have returned and reintegrated back to the country.
The general functions of the DMW are: to protect the rights and promote the welfare of
OFWs, regardless of status and of the means of entry into the country of destination; to
formulate, plan, coordinate, promote, administer, and implement policies in relation to the
overseas employment and reintegration; to undertake systems for regulating, managing,
and monitoring the overseas employment and reintegration; and to empower and train
them to gain appropriate skills and by ensuring access to continuous training and
knowledge development.
Thus, the DMW is created to specifically address the issues and concerns of Filipino
migrant workers. It can serve as a single destination for OFWs in checking available
overseas jobs, processing and issuance of overseas employment certificates, legal
assistance for cases, repatriation, reintegration, and other necessary assistance.
It merges seven (7) existing offices with migration-relation related functions. Current
services offered to migrant workers will also be served overseas with the new Migrant
Workers Office which aims to be established in Philippine Embassies and Consulates.
Thus, the creation of DMW will integrate all services offered by the merged agencies and
provide cohesion to existing policies in pre-deployment, deployment, and reintegration.
Important programs such as reintegration and training would also be given more attention.
In addition, there will now be a greater voice and representation of OFWs in the
government – at the Cabinet level with a designated Secretary, and with presence at the
local and provincial level.
Under the law, a DMW Training Institute will also be established to train and capacitate
personnel to handle OFW concerns, as well as conduct in-depth studies on migration and
development trends.
19. What is the Department of Migrant Workers Act?
Republic Act (RA) No. 11641 or the Department of Migrant Workers Act was enacted to
create the Department of Migrant Workers (DMW).
It is composed of the new Department’s Secretary together with officials from the offices
and departments of Foreign Affairs, Labor, Maritime, and Social Welfare.
The law was created given the mandate of the State: to protect the rights and promote
the welfare of overseas Filipino workers (OFWs) and their families; to make overseas
employment a choice, not a necessity; to strengthen the domestic labor market for the
effective reintegration of OFWs; and to progressively align programs and policies towards
the fulfillment of the 23 Objectives of the GCM. This new Department shall cover all
matters relating to OFWs, including prospective overseas workers in the Philippines and
overseas workers who have returned and reintegrated back to the country.
The general functions of the DMW are: to protect the rights and promote the welfare of
OFWs, regardless of status and of the means of entry into the country of destination; to
formulate, plan, coordinate, promote, administer, and implement policies in relation to the
overseas employment and reintegration; to undertake systems for regulating, managing,
and monitoring the overseas employment and reintegration; and to empower and train
them to gain appropriate skills and by ensuring access to continuous training and
knowledge development.
Thus, the DMW is created to specifically address the issues and concerns of Filipino
migrant workers. It can serve as a single destination for OFWs in checking available
overseas jobs, processing and issuance of overseas employment certificates, legal
assistance for cases, repatriation, reintegration, and other necessary assistance.
It merges seven (7) existing offices with migration-relation related functions. Current
services offered to migrant workers will also be served overseas with the new Migrant
Workers Office which aims to be established in Philippine Embassies and Consulates.
Thus, the creation of DMW will integrate all services offered by the merged agencies and
provide cohesion to existing policies in pre-deployment, deployment, and reintegration.
Important programs such as reintegration and training would also be given more attention.
In addition, there will now be a greater voice and representation of OFWs in the
government – at the Cabinet level with a designated Secretary, and with presence at the
local and provincial level.
Under the law, a DMW Training Institute will also be established to train and capacitate
personnel to handle OFW concerns, as well as conduct in-depth studies on migration and
development trends.
20. What are its functions, purposes and responsibilities?
To carry out its mandate, the Department of Migrant Workers shall:
(a) Formulate, recommend, and implement national policies, plans, programs, and
guidelines that will ensure the protection of OFWs, including their safe, orderly and regular
migration, then promotion of their interests, the timely and effective resolution of their
problems and concerns, and their effective reintegration into Philippine society;
(b) Regulate the recruitment, employment, and deployment of OFWs;
(c) Investigate, initiate, sue, pursue, and help prosecute, in cooperation with the
Department of Justice (DOJ) and the Inter-Agency Council Against Trafficking (IACAT),
illegal recruitment and human trafficking cases as defined under Republic Act No. 8042,
as amended by Republic Act No. 10022, otherwise known as the Migrant Workers and
Overseas Filipinos Act of 1995, as amended, and as provided under Republic Act No.
9208, as amended by Republic Act No. 10364, otherwise known as the Anti-Trafficking
in Persons Act, and other existing laws and other issuances. In the performance of its
functions, the Department Secretary and his or her authorized deputy shall have the
power: (1) to issue subpoena or subpoena duces tecum to any person for investigation
for illegal recruitment or trafficking in persons cases as defined under Republic Act No.
9208, as amended, and other existing laws and other issuances; and hold or cite any
person in contempt as may be provided by the implementing rules and regulations; (2) to
administer oaths upon cases under investigation; and (3) to have access to all public
records and to records of private parties and concerns, in accordance with law;
(d) Protect and promote the welfare, well-being, and interests of the families of OFWs in
accordance with this Act, consistent with the constitutional policy of upholding the sanctity
of the family as a basic autonomous social institution and of valuing the vital role of youth
in nation-building;
(e) Support and assist the Department of Foreign Affairs (DFA) and relevant government
agencies in building strong and harmonious partnerships with counterpart and relevant
agencies in foreign countries in order to facilitate the implementation of strategies and
programs for the protection and promotion of the rights and well-being of OFWs and their
families, and to continuously monitor economic, political and labor developments therein;
(f) Support and assist the DFA in the negotiation of bilateral and multilateral agreements,
initiatives and programs, including intergovernmental processes, which primarily concern
labor migration;
(g) Represent, in coordination with and under the guidance of the DFA, interests
pertaining to OFWs in bilateral, regional, and multilateral fora and international bodies. A
written authorization shall be secured by the Department from the President, through the
Secretary of Foreign Affairs, prior to any international meeting or negotiation of a treaty
or executive agreement on any subject matter within its mandate;
(h) Provide, in cooperation with the Department of Education (DepEd), the Department of
Trade and Industry (DTI), the Commission on Higher Education (CHED), the Technical
Education and Skills Development Authority (TESDAT), the Maritime Industry Authority
(MARINA), and other government agencies, civil society organizations, nongovernmental
organizations and the private sector, trainings aimed at promoting the global
competitiveness of OFWs, as well as job matching services to persons desiring to
become OFWs;
(i) Encourage and enhance information and resource sharing among related agencies,
and develop an electric database to improve services for OFWs in accordance with
Section 18 of this Act;
(j) Regulate the operations of private recruitment and manning agencies involved in the
deployment of OFWs abroad to protect the interests and well-being of these workers;
(k) Foster the professionalization, promote ethical recruitment practices, and ensure
compliance with legal and ethical standards, training, and capacity-building of private
recruitment and manning agencies;
(l) Establish a 24/7 Emergency Response and Action Center Unit and media and social
media monitoring center to respond to the emergency needs of OFWs and their families;
(m) Perform all the powers, functions, and responsibilities assigned to all agencies,
offices, or units to be transferred to, or absorbed by, the Department pursuant to the
consolidation mandated by this Act;
(n) Require private recruitment and manning agencies to provide comprehensive
insurance to the OFWs they deploy in accordance with the law: Provided, That with
respect to OFWs deployed through other arrangements, a substantially similar benefit
shall be provided to the concerned OFW;
(o) Develop and create a training institute that will provide substantive, analytical and
strategic leadership training programs meant to equip employees of the Department ,
especially those who will be working overseas, with necessary knowledge and skills, such
as, but not limited to, the language, customs, traditions, and laws of the host countries
where OFWs are located, with due regard to the training services being provided by the
Foreign Service Institute of the DFA. The training shall also include effective means and
methods in handling the concerns of OFWs;
(p) Develop and create an institute for advanced and strategic studies on migration and
development, which shall, among others, conduct advanced, strategic and up-to-date
studies and research on global migration and development trends;
(q) In coordination with the DFA, conduct regular, timely and relevant political and security
risk assessment of the conditions in the receiving country, including adequate evacuation
plans that will be communicated with all migrant workers thereat, not only for deployment
purposes but more especially in cases of emergencies which will require swift actions
including, but not limited to, possible evacuation of our migrant workers;
(r) Create a system for the blacklisting of persons, both natural and juridical, including
local and foreign recruitment agencies, their agents, and employers, who are involved in
trafficking as defined in Section 16(h), second paragraph of Republic Act No. 9208, as
amended. The Department shall create and update a database of blacklisted persons
which will be shared within the concerned agencies of the Department and with the
IACAT. It shall also establish a monitoring system for cases involving trafficking and illegal
recruitment of OFWs; and
(s) Perform such other functions as may be necessary to achieve the objectives of this
Act.
The exercise of the powers and functions of the Department shall in no way limit, restrict,
or diminish the pursuit of an independent foreign policy or the conduct of foreign relations
and treaty negotiations by the DFA.
Protection of the rights and promotion of the welfare of overseas Filipinos is a pillar of
Philippine foreign policy. The DFA shall continue providing assistance to other Filipino
nationals not covered under this Act.
21. What law protects the welfare of the OFWs?
The primary law intended to protect the welfare of the OFWs is the Migrant
Workers and Overseas Filipinos Act of 1995 or RA 8042 as amended by RA 10022.
It is enacted to institute the policies of overseas employment and establish a higher
standard of protection and promotion of the welfare of migrant workers, their families
and overseas Filipinos in distress.
Furthermore, It includes pre-employment orientation that allows 5 accredited
NGOs to offer courses on entrepreneurship, business and finance management. The
NGOs promote and protect migrant workers’ rights, as stipulated in the Act.
22. Is our Philippine labor laws applicable to OFW?
Yes. Philippine labor laws are applicable to OFWs.
The rights afforded to Labor are granted not just to local workers but also those
working overseas as the specific mandate of the Constitution provides that, 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.
In the case of Rutcher Dagasdas vs. Grand Placement, the Court held that OFWs
are entitled to the Philippine Constitution’s guarantee of security of tenure. Within his
usual two-year contract, he could not be dismissed without just cause, and is entitled to
full due process. Even if they were made to sign a waiver of this right of tenurial security,
that waiver would be deemed null and void.
23. Discuss BATAS PAMBANSA Blg. 79 or An Act Creating the Commission on
Filipinos Overseas and for Other Purposes.
In June 1980, Batas Pambansa Blg. 79 was enacted to strengthen the
government’s policy on the promotion of migrant welfare and interest. It created the
Commission on Filipinos Overseas which replaced OEA but retained and further
expanded its mandate.
24. What is the Commission on Filipinos Overseas?
Established on 16 June 1980 through Batas Pambansa 79, the Commission on
Filipinos Overseas (CFO) is an agency of the Philippine Government under the Office
of the President tasked to promote and uphold the interests, rights and welfare of
overseas Filipinos and strengthen their ties with the Motherland.
The CFO registers and provides pre-departure orientation seminars to
emigrants. It also promotes the transfer of technology as well as material and financial
contributions from overseas for development projects in underserved communities all
over the Philippines. It also provides younger generations of Filipinos overseas with
opportunities to learn Philippine history and culture.
25. What are functions, purposes and responsibilities of the CFO
Batas Pambansa Blg. 79, mandates the CFO to perform the following functions:
a. Provide advice and assistance to the President (Prime Minister) of the Philippines
and the Batasang Pambansa in the formulation of policies and measures affecting
Filipinos overseas;
b. Formulate, in coordination with agencies concerned, an integrated program for the
promotion of the welfare of Filipinos overseas for implementation by suitable existing
agencies;
c. Coordinate and monitor the implementation of such an integrated program;
d. Initiate and directly undertake the implementation of special projects and programs,
whenever necessary, to promote the welfare of Filipinos overseas with respect to their
interests and activities in the Philippines;
e. Serve as a forum for preserving and enhancing the social, economic and cultural ties
of Filipinos overseas with their motherland;
f. Provide liaison services to Filipinos overseas with appropriate government and private
agencies in the transaction of business and similar ventures in the Philippines;
g. Promulgate rules and regulations to carry out the objectives of this Act;
h. Call upon any agency of the Government, including government-owned or controlled
corporations, to render whatever assistance is needed in the pursuance of the objectives
of this Act; and
i. Perform such other related functions as may be directed by the President or assigned
by law.
26. Who are the main beneficiaries of CFO programs?
Batas Pambansa Blg. 79 includes the following persons as the main beneficiaries
of the programs to be conducted by the the CFO:
a. Filipino permanent migrants or permanent residents abroad
b. Filipinos overseas who have become naturalized citizens of other countries or
dual citizens
c. Filipino spouses and other partners of foreign nationals leaving the country
d. Descendants of Filipinos overseas, as defined in Batas Pambansa Blg. 79
e. Filipino youth overseas
f. Exchange Visitor Program participants
g. Filipino Au Pair participants
27. What are the programs of the CFO?
The Commission on Filipino Overseas has the following programs:
a. Ugnayan Series;
b.
Presidential Awards for Filipino Individuals and Organizations Overseas;
c.
Philippine Schools Overseas (PSO);
d.
YouLead (Youth Leaders in the Diaspora);
e.
Lingkod sa Kapwa Pilipino (LINKAPIL) or Link for Philippine Development;
f.
BaLinkBayan: Overseas Filipinos’ One Stop Online Portal for Diaspora Engagement;
g.
Inter-Agency Council Against Trafficking – Advocacy and Communications
Committee (IACAT-ADVOCOM);
h.
Community Education Program (CEP);
i.
PESO Sense or the Philippine Financial Freedom campaign;
j.
Migration Advocacy and Media (MAM) Awards;
k.
Month of Overseas Filipinos;
l.
Legal Assistance and Counseling Program; and
m. Overseas Filipino Centenarian Awards and Incentives.
28. What is the role of CFO in the protection of Filipino nationals migrating to
other countries?
A. Policy Advocacy
1. To advocate for coherent, coordinated and clear development policies to be
mainstreamed in the policy-making process of government: on international migration, its
cost-benefit implications and the need for both national and local governments to
maximize migration’s gains while minimizing its socio-economic costs, that while
international migration is a reality, government must create an environment that would
make migration an option rather than a matter of necessity and that the government’s
primary responsibility remains focused on sustainable, integrated, equitable, nation-wide
development taking into consideration the country’s economic, political and social
structural problems and issues especially in relation to employment, poverty alleviation,
equitable distribution of wealth and the benefit of development and improvement of all its
citizens’ quality of life.
2. To support and strengthen a favorable rights-based policy environment for the
promotion and protection of rights, welfare and status of overseas Filipinos; to assist in
the formulation and implementation of policies and programs relevant to their rights,
welfare and status.
B. Socio-economic Development
3. To develop and implement, in coordination with and with the support of other
government agencies, a streamlined and facilitative entry and directional process for
“development assistance” in the form of resources, knowledge, skills and technology from
Filipinos overseas, that will be strategic and responsive to existing development issues
and needs of the country and will optimize the assistance’s development potentials.
4. To provide mechanisms for various stakeholders to coordinate, forge partnerships,
upscale and leverage diaspora funds (e.g. remittances and savings) and investments,
broaden donors’ and investors’ base and replicate best practices especially in financial
literacy, microfinance and social enterprises, in order to make these funds more effective
tools for the country’s development and economic growth.
C. Integration and Reintegration
5. To assist in the integration of migrating Filipinos in their host countries by educating
them on the realities of international migration, preparing them to meet the practical,
cultural and psychological challenges attendant to migration and providing them other
services as may be developed and needed, mindful of the social costs of migration to the
overseas Filipinos themselves (especially for the women who are most vulnerable to
abuse, discrimination and exploitation), to the families (especially the children) they have
left behind and to their local communities.
6. To assist in the productive and seamless re-integration of returning overseas Filipinos
and their families in the country, recommending policies, programs and measures to
transform brain drain to brain gain, to enhance the returnees’ earning capabilities and for
better incentives’ package for overseas Filipinos to return, to retire and to invest.
D. Culture and Education
7. To ensure that Filipinos overseas remain rooted in their Filipino culture by developing,
implementing, promoting and coordinating with other institutions, global awareness and
appreciation of Filipino language, culture and heritage.
E. Institutional development and organizational strengthening
8. To promote the leading role of CFO on the formulation of policies and in addressing
key issues on migration and development
9. To improve and enhance CFO’s institutional capabilities for lobbying and advocacy for
policy-setting, formulation and reform; in coordinating and building consensus with all
migration-related government agencies on issues/policies/programs of major concern
and critical to overseas Filipinos; and mobilizing stakeholders in the migration and
development sector, especially for regular multi-stakeholder consultations and
collaboration.
10. To provide accurate, timely and comprehensive data on international migration of
Filipinos through linkages with government agencies and other stakeholders essential for
policy formulation and protection of overseas Filipinos.
29. WHO is the BalinkBayan under the CFO?
BaLinkBayan is the program offering of the Commission on Filipinos Overseas (CFO) that
seeks to link overseas Filipinos to social and economic development initiatives in the
Philippines and in its various localities wherever they may be in the world, 24 hours a day,
7 days a week. Serving as a one-stop online portal for diaspora engagement, CFO’s
BaLinkBayan provides an array of options for overseas Filipinos to partner with national
and local governments in starting a business, opportunities for donation and volunteer
service, and accessing online government services.
BaLinkBayan works at two levels. First, it links OFs to development oriented diaspora
initiatives including investment opportunities in the Philippines through the national portal
(www.balinkbayan.gov.ph). Second, it provides options for business and investment
opportunities in select partner local governments including automated transactional
processes at the local level. The following local governments have partnered with CFO
for the development of their localized BaLinkBayan web pages: Sorsogon City, Sorsogon
Province, Ligao City, Tabaco City, Legazpi City, Masbate City, Bacoor City, Cagayan de
Oro City, Antique, Iloilo City and Naga City (featuring Naga City’s online real property tax
assessment and payment). CFO also entered into partnership agreements with the
provinces of Pangasinan, Iloilo and Aklan, Iriga City, Cuenca, Batangas, and Guinobatan,
Albay for the development of their localized BaLinkBayan web pages.
30. Discuss RA No. 10706, AN ACT PROTECTING SEAFARERS AGAINST
AMBULANCE CHASING AND IMPOSITION OF EXCESSIVE FEES, AND
PROVIDING PENALTIES THEREFOR, otherwise known as as the “Seafarers
Protection Act of 2015.
On 26 November 2015, the Republic Act No. 10706, or the "Seafarers Protection
Act" was signed into law.
The act intends to protect seafarers against the so-called ambulance chasing
attorneys who charge excessive fees to represent seafarers and their families in cases
concerning claims for disability or death.
Under Section 3, it is prohibited for any person to engage in soliciting, personally
or through an agent, from seafarers or other workers, or their heirs, the pursuit of any
claim against an employer for the recovery of monetary claim or benefit including legal
interest arising from accidents, illness or death, in exchange for a certain amount which
shall be retained or deducted from the monetary claim or benefit granted to or awarded
to the seafarer or their heirs.
Furthermore, the Act determines, under Section 4, that attorney fees shall not
exceed 10% of the compensation or benefit awarded to the seafarer or his heirs.
There is also a provision under Section 5, that any person who violates Section 3
of the Act (Prohibition on Ambulance Chasing) shall be punished by a fine of not less than
PHP50,000.00 but not more than PHP100,000.00 or by imprisonment of not less than 1
year but not more than 2 years, or both fine and imprisonment. The same penalties shall
be imposed upon any person who shall be in collusion in the commission of the prohibited
act, as described in Section 3.
The Act's main goal is to promote the interests and welfare of the Filipino seafarers,
protecting them from individuals who actively target seafarers and their families in order
to pursue disability or death claims against an employer; and who in turn charge
excessive attorney's fees. From 16 December 2015 the seafarer will not be legally
required to pay more than 10% of the total compensation amount received, either by way
of amicable settlement or by labour courts' award.
31. Who is considered a SEAFARER under RA 10706?
The Implementing Rules and Regulations of RA 10706 defines a “seafarer” as
any person who is employed or engaged in any capacity on board a seagoing ship
navigating the foreign seas other than the government ship used for military or noncommercial purposes. The definition shall include fishermen, cruise ship personnel,
and those serving on foreign maritime mobile offshore and drilling units.
32. What is AMBULANCE CHASING under RA 10706? Who and How is this
committed?
RA 10706 defines ambulance chasing as the act of soliciting, personally or
through an agent, from seafarers, or their heirs, the pursuit of any claim against them
employers for the purpose of recovery of monetary claim or benefit, including legal
interest, arising from accident, illness or death, in exchange of an amount or fee which
shall be retained or deducted from the monetary claim or benefit granted to or awarded
to the seafarers or their heirs.
Section 1, Rule II of the Implementing Rules and Regulations of RA 10706 provides
that ambulance chasing can be committed by any person, natural or juridical, when
they committed the following acts:
a. That a person or his agent, solicits from seafarer or his heir, the pursuit of any
claim against the employer of the seafarer;
b. That such claim is for the purpose of recovery of monetary award or benefits arising
from accident, illness or death, including legal interest; and
c. That the pursuit of the claim is in exchange of an amount or fee which shall be
retained or deducted from the monetary award or benefit granted to or awarded to the
seafarers or their hers.
33. EXPLAIN DEPARTMENT ORDER NO. 153, SERIES OF 2016.
Department Order No. 153, Series of 2016 is an issuance by the Department of
Labor and Employment. It pertains to the Implementing Rules and Regulations of RA
10706.
The IRR was issued in pursuit of the mandate of the DOLE under Section 6 of RA
10706. The Seafarer’s Act mandates that within ninety (90) days from the approval of
the Act, the Secretary of Labor and Employment, in coordination with the Maritime
Industry Authority (MARINA) and the POEA, shall promulgate the necessary rules and
regulations for the effective implementation of the provisions of the law.
34. What is Republic Act (RA) 11641 also known as “An Act Creating the
Department of Migrant Workers?
Philippine President Rodrigo Roa Duterte signed into law the Republic Act (RA)
No. 11641 creating the Department of Migrant Workers (DMW).
It is composed of the new Department’s Secretary together with officials from the offices
and departments of Foreign Affairs, Labor, Maritime, and Social Welfare.
The law was created given the mandate of the State: to protect the rights and promote
the welfare of overseas Filipino workers (OFWs) and their families; to make overseas
employment a choice, not a necessity; to strengthen the domestic labor market for the
effective reintegration of OFWs; and to progressively align programs and policies towards
the fulfillment of the 23 Objectives of the GCM. This new Department shall cover all
matters relating to OFWs, including prospective overseas workers in the Philippines and
overseas workers who have returned and reintegrated back to the country.
The general functions of the DMW are: to protect the rights and promote the welfare of
OFWs, regardless of status and of the means of entry into the country of destination; to
formulate, plan, coordinate, promote, administer, and implement policies in relation to the
overseas employment and reintegration; to undertake systems for regulating, managing,
and monitoring the overseas employment and reintegration; and to empower and train
them to gain appropriate skills and by ensuring access to continuous training and
knowledge development.
Thus, the DMW is created to specifically address the issues and concerns of Filipino
migrant workers. It can serve as a single destination for OFWs in checking available
overseas jobs, processing and issuance of overseas employment certificates, legal
assistance for cases, repatriation, reintegration, and other necessary assistance.
It merges seven (7) existing offices with migration-relation related functions. Current
services offered to migrant workers will also be served overseas with the new Migrant
Workers Office which aims to be established in Philippine Embassies and Consulates.
Thus, the creation of DMW will integrate all services offered by the merged agencies and
provide cohesion to existing policies in pre-deployment, deployment, and reintegration.
Important programs such as reintegration and training would also be given more attention.
In addition, there will now be a greater voice and representation of OFWs in the
government – at the Cabinet level with a designated Secretary, and with presence at the
local and provincial level.
Under the law, a DMW Training Institute will also be established to train and capacitate
personnel to handle OFW concerns, as well as conduct in-depth studies on migration and
development trends.
35. What are APRENTICES, LEARNERS and HANDICAPPED/PERSON WITH
DISABILITY?
The Labor Code provide for the definition of Apprentices, Learners and
Handicapped/Person with Disability.
Learners are persons hired as trainees in semi-skilled and other industrial occupations
which are non-apprenticeable and which may be learned through practical training on the
job in a relatively short period of time which shall not exceed three (3) months.
An "apprentice" is a worker who is covered by a written apprenticeship agreement with
an individual employer or any of the entities recognized under Chapter of the Labor Code.
Handicapped workers are those whose earning capacity is impaired by age or physical
or mental deficiency or injury.
36. Provide the significant distinctions between apprenticeship and learnership.
The following are the distinctions:
Practical training.
Both learnership and apprenticeship involve practical training on-the-job.
Training agreement.
Learnership is governed by a learnership agreement; while apprenticeship is governed
by an apprenticeship agreement.
Occupation.
Learnership involves learnable occupations consisting of semi-skilled and other industrial
occupations
which
are
non-apprenticeable;
while
apprenticeship
concerns
apprenticeable occupations or any trade, form of employment or occupation approved for
apprenticeship by the DOLE Secretary.
Theoretical instructions.
Learnership may or may not be supplemented by related theoretical instructions; while
apprenticeship should always be supplemented by related theoretical instructions.
Ratio of theoretical instructions and on-the-job training.
For both learnership and apprenticeship, the normal ratio is one hundred (100) hours of
theoretical instructions for every two thousand (2,000) hours of practical or on-the-job
training. Theoretical instruction time for occupations requiring less than two thousand
(2,000) hours for proficiency should be computed on the basis of such ratio.
Competency-based system.
Unlike in apprenticeship, it is required in learnership that it be implemented based on the
TESDA-approved competency-based system.
Duration of training.
Learnership involves practical training on the job for a period not exceeding three (3)
months; while apprenticeship requires for proficiency, more than three (3) months but not
over six (6) months of practical training on the job.
Qualifications.
The law does not expressly mention any qualifications for learners; while the following
qualifications are required to be met by apprentices under Article 59 of the Labor Code:
(a) Be at least fourteen (14) years of age; (b) Possess vocational aptitude and capacity
for appropriate tests; and (c) Possess the ability to comprehend and follow oral and written
instructions.
Circumstances justifying hiring of trainees.
Unlike in apprenticeship, in learnership, the law, Article 74 of the Labor Code, expressly
prescribes the pre-requisites before learners may be validly employed, to wit: (a) When
no experienced workers are available; (b) The employment of learners is necessary to
prevent curtailment of employment opportunities; and (c) The employment does not
create unfair competition in terms of labor costs or impair or lower working standards.
Limitation on the number of trainees.
In learnership, a participating enterprise is allowed to take in learners only up to a
maximum of twenty percent (20%) of its total regular workforce. No similar cap is imposed
in the case of apprenticeship.
Option to employ.
In learnership, the enterprise is obliged to hire the learner after the lapse of the learnership
period; while in apprenticeship, the enterprise is given only an “option” to hire the
apprentice as an employee.
Wage rate.
The wage rate of a learner or an apprentice is set at seventy-five percent (75%) of the
statutory minimum wage.
37. Discuss the seven categories that classify PERSONS WITH DISSABILITY.
RA No. 7277 provides that there are 7 types of disabilities which are as follows:
a. Psychosocial Disability — any acquired behavioral, cognitive, emotional, social
impairment that limits one or more activities necessary for effective interpersonal
transactions and other civilizing process or activities for daily living, such as but not
limited to deviancy or anti-social behavior.
b. Chronic Illness — a group of health conditions that last a long time. It may get slowly
worse over time or may become permanent or it may lead to death. It may cause
permanent change to the body and it will certainly affect the person’s quality of life.
c. Communication Disability — an impairment in the process of speech, language or
hearing, further broken down into two types:
i. Hearing Impairment is a total or partial loss of hearing function which impede the
communication process essential to language, educational, social and/or cultural
interaction; and
ii. Speech and Language Impairment means one or more speech/language
disorders of voice, articulation, rhythm and/or the receptive or and expressive
processes of language
d. Orthopedic Disability — disability in the normal functioning of the joints, muscles or
limbs
e. Visual Disability — impairment of visual functioning even after treatment and/or
standard refractive correction, with visual acuity in the better eye of less than 6/18
for low vision and 3/60 for blind, or a visual field of less than 10 degrees from the
point of fixation. A certain level of visual impairment is defined as legal blindness.
One is legally blind when the best corrected central visual acuity in the better eye
is 6/60 or worse or side vision of 20 degrees or less in the better eye
f. Mental Disability — disability resulting from organic brain syndrome (i.e., mental
retardation, acquired lesions of the central nervous system, or dementia) and/or
mental illness (psychotic or non-psychotic disorder)
g. Learning Disability — any disorder in one or more of the basic psychological processes
(perception, comprehension, thinking, etc.) involved in understanding or in using
spoken or written language.
38. Provide a synopsis of Republic Act 10754.
Republic Act No. 10754 aims to grant opportunities to persons with disability to
blend in with society by providing a discount of twenty percent (20%) from purchased
goods and services. The same act grants them exemption from Value Added Tax over
certain goods and services, specifically laid out in Republic Act No. 9442.
39. Provide the benefits being enjoyed by PWD under Republic Act 10754.
The benefits being enjoyed by PWDs are provided under SECTION 1. Section 32
of Republic Act No. 7277, as amended, otherwise known as the “Magna Carta for Persons
with Disability”.
SEC. 32. Persons with disability shall be entitled to:
a. At least 20% discount and exemption from the value-added tax (VAT), if
applicable, on the following sale of goods and services for the exclusive use and
enjoyment or availment of the PWD:
a. On the fees and charges relative to the utilization of all services in hotels
and similar lodging establishments; restaurants and recreation centers;
b. On admission fees charged by theaters, cinema houses, concert halls,
circuses, carnivals and other similar places of culture, leisure and
amusement;
c. On the purchase of medicines in all drugstores;
d. On medical and dental services including diagnostic and laboratory fees
such as, but not limited to, x-rays, computerized tomography scans and
blood tests, and professional fees of attending doctors in all government
facilities, subject to the guidelines to be issued by the Department of
Health (DOH), in coordination with the Philippine Health Insurance
Corporation (PhilHealth);
e. On medical and dental services including diagnostic and laboratory fees,
and professional fees of attending doctors in all private hospitals and
medical facilities, in accordance with the rules and regulations to be
issued by the DOH, in coordination with the PhilHealth;
f. On fare for domestic air and sea travel;
g. On actual fare for land transportation travel such as, but not limited to,
public utility buses or jeepneys (PUBs/PUJs), taxis, asian utility vehicles
(AUVs), shuttle services and public railways, including light Rail Transit
(LRT), Metro Rail Transit (MRT) and Philippine National Railways (PNR);
and
h. On funeral and burial services for the death of the PWD: Provided, That
the beneficiary or any person who shall shoulder the funeral and burial
expenses of the deceased PWD shall claim the discount under this rule
for the deceased PWD upon presentation of the death certificate. Such
expenses shall cover the purchase of casket or urn, embalming, hospital
morgue, transport of the body to intended burial site in the place of origin,
but shall exclude obituary publication and the cost of the memorial lot.
b. Educational assistance to PWD, for them to pursue primary, secondary, tertiary,
post tertiary, as well as vocational or technical education, in both public and
private schools, through the provision of scholarships, grants, financial aids,
subsidies and other incentives to qualified PWD, including support for books,
learning materials, and uniform allowance to the extent feasible: Provided, That
PWD shall meet the minimum admission requirements;
c. To the extent practicable and feasible, the continuance of the same benefits and
privileges given by the Government Service Insurance System (GSIS), Social
Security System (SSS), and Pag-IBIG, as the case may be, as are enjoyed by
those in actual service;
d. To the extent possible, the government may grant special discounts in special
programs for PWD on purchase of basic commodities, subject to the guidelines
to be issued for the purpose by the Department of Trade and Industry (DTI) and
the Department of Agriculture (DA); and
e. Provision of express lanes for PWD in all commercial and government
establishments; in the absence thereof, priority shall be given to them.
40. What is Republic Act No. 10361?
Republic Act No. 10361 is more commonly referred to as the Kasambahay Law.
This was signed into law on January 18, 2013 by President Benigno S. Aquino III. It is a
landmark law regarding labor and social legislation which acknowledges the congruence
of domestic workers with formal sector workers. Through this, domestic workers’ rights
and welfare are more amplified, protected, and recognized. The Magna Carta for
Domestic Workers formally became law after sixteen (16) years of scrutiny by Congress,
following the passing of RA No. 7655, known as An Act Increasing the Minimum Wage of
Househelpers.
41. What helpers are entitled to under the Kasambahay Law
The type of helpers entitled to the protection from the Kasambahay Law include
those who perform domestic work due to employment. These workers include, but are
not limited to general house-help, nursemaid or “yaya”, cook, gardener, or laundry person,
but shall exclude any person who performs domestic work only occasionally or
sporadically and not on an occupational basis.
Meanwhile, the group does exclude children under a foster family arrangement
that are given access to education and allowances for expenses relating to education
such as transportation, projects and activities at school, and food expenses.
42. Who is covered by the Kasambahay Law?
The Kasambahay law covers all domestic workers employed and working in the
Philippines within an employment contract in exchange of household services, regardless
of whether they follow a live-in or live-out arrangement. These workers include, but are
not limited to:
a. General Househelp;
b. Yaya;
c. Cook;
d. Gardener;
e. Laundry person; or
f. Any person who regularly performs domestic work in one household on
an occupational basis.
Meanwhile, the following are excluded:
a. Service Providers;
b. Family Drivers;
c. Children under foster family arrangement; and
d. Any other person who performs work occasionally or sporadically and not
on an occupational basis.
43. Explain the Conditions of work expected by the Kasambahay under the RA
No. 10361.
a. Employment age- Children whose age is below 15 years are absolutely
prohibited to work as kasambahay.
b. Normal daily hours of work- The law does not contain any provision on the
number of normal hours of work that a kasambahay should render in a day but
merely prescribes said daily rest period of 8 hours per day.
c. 13th month pay- The kasambahay who has rendered at least 1 month of service
is entitled to 13th month pay which shall not be less than 1/12 of his/her total basic
salary earned in a calendar year.
d. Daily rest period- The kasambahay shall be entitled to an aggregate rest period
of 8 hours per day.
e. Weekly rest period- The kasambahay shall be entitled to at least 24
consecutive hours of rest in a week.
f. Service Incentive leave- A kasambahay who has rendered at least 1 year of
service shall be entitled to an annual service incentive leave of least 5 days with
pay.
g. Social security benefits-A kasambahay who has rendered at least 1 month of
service shall be covered by SSS, ECC, PhilHealth, and Pag-IBIG, and shall be
entitled to all the benefits in accordance with their respective policies, laws, rules
and regulations.
h. Loan assistance- An employer may agree to extend loan assistance to the
kasambahay in an amount not exceeding his/her 6 months’ salary.
i. Deduction of loans- By written agreement, the employer may deduct the loans
from the wage of the kasambahay, which amount shall not exceed 10% of his/her
wages every month.
j. Payment of not less than the minimum wage.
44. Discuss in detail the Kasambahay rights and privileges.
Sec. 5, Art. 2 of the Kasambahay Law provides for the rights and privileges of
domestic workers specifically against abuse, harassment, physical violence, or any act
degrading of the dignity of the domestic worker. Under Sec. 6 of the same article, it is
provided that employers shall shoulder the basic needs of domestic workers such as safe
and human sleeping arrangements, as well as three (3) adequate meals. Domestic
workers shall also be provided proper rest and assistance when they are ill or injured from
performing household services, without losing benefits. Employers shall never hold or
withdraw any basic needs rightfully provided to domestic workers as a form of
punishment. Under Sec. 7, Art. 2 of the Kasambahay Law, domestic workers’ rights to
privacy shall be observed at all times, inclusive of their personal affairs and
communication. Section 8 of the same article provides that employers shall domestic
workers access to outside communication during free time: Provided, That in case of
emergency, access to communication shall be granted even during work time. Should the
domestic worker make use of the employer’s telephone or other communication facilities,
the costs shall be borne by the domestic worker, unless such charges are waived by the
employer. Sec. 9, Art. 2 provides that the employer shall afford the domestic worker the
opportunity to finish basic education and may allow access to alternative learning systems
and, as far as practicable, higher education or technical and vocational training. The
employer shall adjust the work schedule of the domestic worker to allow such access to
education or training without hampering the services required by the employer. Under
Sec. 10, Art. 2, communication and information pertaining to the employer or members of
the household shall be treated as privileged and confidential, and shall not be publicly
disclosed by the domestic worker during and after employment. Such privileged
information shall be inadmissible in evidence except when the suit involves the employer
or any member of the household in a crime against persons, property, personal liberty
and security, and chastity.
45. Provide the Other rights and privileges for Kasambahay recognized under
RA No. 10361.
Under RA No. 10361, other rights and privileges for domestic workers include:
a. Standard of treatment- The kasambahay shall be treated with respect by
the employer or any member of the household, and shall not be subjected
to any kind of abuse;
b. Board, lodging and medical attendance- The employer shall provide for
the basic necessities of the kasambahay, to include:
i. At least 3 adequate meals a day;
ii. Humane sleeping condition that respects the person’s privacy for
live-in arrangement; and
iii. Appropriate rest and medical assistance.
c. Guarantee to privacy- Employer shall, at all times respect the right of the
kasambahay to privacy, which shall extend to all forms of communication
and personal effects.
d. Access to outside communication- During free time, the kasambahay
shall be granted access to outside communication. Should the
kasambahay use the employer’s phone or other communication facilities,
the costs shall be borne by the kasambahay unless waived by the
employer.
e. Opportunities for education and training- Kasambahay shall be given the
opportunity to finish basic education, which shall consist of elementary
and secondary education. The kasambahay may be allowed access to
alternative learning systems and, as far as practicable, higher education
or technical vocational education and training. The employer shall adjust
the work schedule of the kasambahay to allow him/her access to
education.
f. Membership in labor organization- The kasambahay shall have the right
to join a labor organization of his/her choosing for the purpose of mutual
aid and collective negotiation.
g. Health and safety- The employer shall safeguard the safety and health of
the kasambahay in accordance with the standards which DOLE shall
develop.
46. Exhaustively explain the Acts prohibited by the law.
Acts prohibited by the law are provided on Rule XII, which includes the following:
a. Employment of children below fifteen (15) years of age (Section 16, Batas
Kasambahay) – It shall be unlawful to employ any person below 15 years of
age as a domestic worker. Employment of working children, as defined
under this Act shall be subject to the provisions of Section 10(A), par 2 of
Section 12-A, par 4 of Section 12-D, and Sec 13 of RA 7610, as amended,
otherwise known as “Special Protection of Children Against Child Abuse,
Exploitation and Discrimination Act”.
b. Withholding of Wages of the Kasambahay (Section 28, Batas
Kasambahay) – It shall be unlawful for an employer, directly or indirectly, to
withhold the wages of the domestic worker. If the domestic worker leaves
without any justifiable reason, any unpaid salary for a period not exceeding
fifteen (15) days shall be forfeited. Likewise, the employer shall not induce
the domestic worker to give up any part of the wages by force, stealth,
intimidation, threat, or by any other means whatsoever.
c. Interference in the disposal of the wags of the Kasambahay (Section 27,
Batas Kasambahay) – It shall be unlawful for the employer to interfere with
the freedom of any domestic worker to dispose of the latter’s wages. The
employer shall not force, compel, or oblige the domestic worker to purchase
merchandise, commodities or other properties from the employer or from
any other person, or otherwise make use of any store or services of such
employer or any other person.
d. Requiring deposits for loss or damages (Section 14, Batas Kasambahay)
– It shall be unlawful for the employer or any other person to require a
domestic worker to make deposits from which deductions shall be made for
the reimbursement of loss or damage to tools, materials, furniture and
equipment in the household.
e. Placing the kasambahay under Debt Bondage (Section 15, Batas
Kasambahay) – It shall be unlawful for the employer or any person acting
on behalf of the employer to place the domestic worker under debt bondage.
f. Charging another household for temporarily performed tasks (Section 23,
Batas Kasambahay) – Such work performed outside the household shall
entitle the domestic worker to an additional payment of not less than the
existing minimum wage rate of a domestic worker. It shall be unlawful for
the original employer to charge any amount from the said household where
the service of the domestic worker was temporarily performed.
47. Explain the Termination of services on the side of the Employer and on the
Side of the Kasambahay.
Sec. 33 of the Kasambahay Law provides that domestic workers may terminate
services rendered to employers prior to contract expiration under the following instances:
a. Verbal or emotional abuse of the domestic worker by the employer or
any member of the household
b. Inhuman treatment including physical abuse of the domestic worker by
the employer or any member of the household
c. Commission of a crime or offense against the domestic worker by the
employer or any member of the household;
d. Violation by the employer of the terms and conditions of the employment
contract and other standards set forth under this law
e. Any disease prejudicial to the health of the domestic worker, the
employer, or member/s of the household; and
f. Other causes analogous to the foregoing
In the event that the domestic worker terminates employed services due to causes
not identified above, any unpaid salary due, not exceeding the equivalent of 15 days’
work, shall be forfeited. In addition, the employer may recover from the Kasambahay
deployment expenses, if any, if the services have been terminated within six (6) months
of employment.
Meanwhile, Sec. 34 provides that employers may also initiate termination of
domestic workers prior to contract expiration under the following circumstances:
a. Misconduct or willful disobedience by the domestic worker of the lawful
order of the employer in connection with the former’s work;
b. Gross or habitual neglect or inefficiency by the domestic worker in the
performance of duties;
c. Fraud or willful breach of the trust reposed by the employer on the
domestic worker;
d. Commission of a crime or offense by the domestic worker against the
person of the employer or any immediate member of the employer’s family
e. Violation by the domestic worker of the terms and conditions of the
employment contract and other standards set forth under this law;
f. Any disease prejudicial to the health of the domestic worker, the employer,
or member/s of the household; and
g. Other causes analogous to the foregoing
If the employer dismissed the Kasambahay for reasons other than the above,
he/she shall pay the Kasambahay the earned compensation plus indemnity in the amount
equivalent to fifteen (15) days’ work.