FUNDAMENTAL CONCEPTS

CONCEPT OF LABOR

BROADEST SENSE – labor includes every possible human

exertion, mental or physical, and even, spiritual.

LIMITED SENSE – refers to any bodily or intellectual exertion

done wholly or partly for a purpose other than pleasure derived
from its performance

IN PHILIPPINE LAW – labor is sometimes used to embrace all work

without reference to whether it is done by an employee to an employer or
not. In this sense, the work of agricultural tenant has been included with
the general term. This is because they physically toil for their livelihood,
and work to some extent to their landowners.

In general, the concept of labor includes in its broad sense physical

and mental work performed by an employee, and physical work
performed by anyone, whether employed by another or note.

LABOR LAW DEFINED

LABOR LAW – is that body of statutes, rules and doctrines that

defines State policies on labor and employment, and governs the rights
and duties of workers and employers respecting terms and conditions of
employment by prescribing certain standards therefor, or by establishing
a legal framework within which better terms and conditions of work
could be obtained through collective bargaining or other concerted
activity.

ELEMENTS OF LABOR LAW

a. LABOR POLICIES – These are principles or guidelines that define

State policies regarding labor and employment. Although these
policies do not govern the relations per se between workers and
employers, they represent new dimension that is an integral part of
labor law, Labor policies may be classified into Constitutional
policies (e.g. Art. XIII, Sec. 3 of the 1987 Constitution) and Statutory
Policies (e.g. Book I and II, Labor Code).

b. LABOR STANDARDS LAW – from the definition of labor law, as

given, one may cull a definition of Labor Standards Law, to wit: “it is
that body of statutes, rules and doctrines that defines State policies
on labor and employment, and governs the rights and duties of
workers and employers respecting terms and conditions of
employment by prescribing certain standards therefor.” These
standards, whether maximum or minimum, serve as bases of the
rights and duties of workers and employers. (E.g. Book III-
Condition of Employment, Labor Code as well as the decrees on
Cost of Living Allowance [PD 525], 13th month pay [PD 851]
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c. LABOR RELATIONS LAW – our given definition of labor law also

contains a working definition of labor relations law. These can be
collated from this words, “it is that body of statutes, rules and
doctrines that defines State policies on labor and employment, and
governs the rights and duties of workers and employers by
prescribing certain standards therefor, or by establishing a legal
framework within which better terms and conditions of work could
be obtained through collective bargaining or other concerted
activity.” This element of labor law sets the legal parameters
whereby workers may undertake concerted activities to secure
better conditions of employment than those prescribed by labor
standard laws. The prime example of this element of labor law is
found in Book V-Labor Relations, Labor Code and its amendatory
laws.

RELATIONSHIPS AND DISTINCTIONS

These elements of labor law are interrelated in that each is

complementary to each other. All together, they present the legal
limits within which labor and employment acts may be justified.

LABOR POLICIES Set the guidelines to be implemented by the

other two
LABOR Prescribes the demarcation s in terms and
STANDARDS LAWS conditions of employment and are essentially
substantive. Their purpose is either protective
(e.g. law on hours of work, law on weekly rest
periods) or ameliorative (e.g. minimum wage
law, law on holiday pay)

Being fixed by law, may be found in the law

itself
LABOR RELATIONS Provide the procedures that govern the
LAW methods by which terms and conditions or
work over and above the demarcations as set
by labor standards laws may be obtained,
hence, they are largely procedural in character
(e.g. law on labor organizations, law on
collective bargaining)

They are terms and conditions of weork

beyond standards obtained under labor
relations laws are not fount in the law itself,
but in collective bargaining agreements,
arbitration awards and decisions.
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SOCIAL LAWS

SOCIAL LAW – that body of rules and statutes aimed at

promoting the general welfare of all the people, with special
reference to labor.

Note:
The labor orientation of social laws has two fold
justification:

1. QUANTITATIVE REASON - Because labor constitutes the great

majority (above 85%) of the population hence any effort to
achieve the well-being of all the people, or at least the greatest
food for the greatest number, should be directed to this sector.
2. QUALITATIVE REASON – since the aim is to promote the welfare
of society, any attempt to strengthen society should be
addressed towards its weakest link, which is labor.

While social laws – like the SSS Law, GSIS Law, Medicare Act
– have workers as their direct beneficiaries, their ultimate
end is the well being of society in general.

LABOR LAW SOCIAL LAW

SIMILARITIES Share the same objective which is the
promotion of social justice.

It is in this context, it may be said that labor

law is part of social law, and it is by nature
a social law
DIFFERENCES
As to Object Seeks to improve the Aims to promote the
well-being of labor in welfare of society in
particular general
As to subject-matter Deals on the Treats of matters of
subjects of remote or indirect
proximate and direct interest to workers
interest of workers (e.g. employee
(e.g. wages, hours of compensation, social
work, etc.) security, etc.)
As to application Provides the benefits Concerned with
to workers actively those whose
employes employment is
interrupted by
sickness, disability,
death, retirement or
other causes.
SOURCES OF THE POWER TO ENACT LABOR
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1. CONSTITUTION
2. POLICE POWER

CONSTITUTIONAL MANDATES ON LABOR

Article, II, Sec. 18 - The State affirms labor as a primary social

economic force. It shall protect the rights of workers and promote their
welfare.

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

It shall guarantee the rights of all workers to self-organization,

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

The State shall promote the principle of shared responsibility

between workers and employers and the preferential use of voluntary
modes in settling disputes, including conciliation, and shall enforce their
mutual compliance therewith to foster industrial peace.

The State shall regulate the relations between workers and

employers, recognizing the right of labor to its just share in the fruits of
production and the right of enterprises to reasonable returns to
investments, and to expansion and growth.

POLICE POWER—is the power vested in the legislature by the

Constitution to make, ordain, establish all manner of wholesome and
reasonable laws for the good and welfare of the State and its people.
(ERMITA MALATE HOTEL VS. CITY MAYOR, July 31, 1967)

- the "state authority to enact legislation that may interfere with

personal liberty or property in order to promote the general
welfare." As defined, it consists of (1) an imposition of restraint
upon liberty or property, (2) in order to foster the common good.
It is not capable of an exact definition but has been, purposely,
veiled in general terms to underscore its all-comprehensive
embrace. (PASEI vs. DRILON, G.R. No. 81958 June 30, 1988)

THE BASIC PURPOSES OF POLICE POWER ARE:

a. to promote the general welfare, comfort and convenience of the
people; (ASSOCIATION OF SMALL LANDOWNERS VS. SECRETARY, 175 SCRA 343;
US VS. TORIBIO, 15 Phil. 85);
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b. to promote and preserve public health; (VILLANUEVA VS. CASTANEDA,

September 21, 1987; DECS VS. SAN DIEGO, 180 SCRA 533 [NMAT]; LORENZO VS.
DIRECTOR OF HEALTH, 50 Phil. 595—apprehend and confine lepers in a
leprosarium);
c. to promote and protect public safety; (AGUSTIN VS. EDU, 88 SCRA 195;
TAXICAB OPERATORS VS. JUINIO, 119 SCRA 897 );
d. to maintain and safeguard peace and order; (GUAZON VS. DE VILLA);
e. to protect public morals; (DE LA CRUZ VS. PARAS, 123 SCRA 569; ERMITA
MALATE HOTEL VS. CITY MAYOR, July 31, 1967; JMM PROMOTIONS VS. CA, 260
SCRA 319; VELASCO VS. VILLEGAS, February 13, 1983);
f. to promote the economic security of the people . (ichong vs. hernandez,
101 Phil. 11155)

Even if there were no provisions in the Constitution concerning

labor, the State would still have the power to enact labor laws by virtue of
its Police Power which underlies the Constitution, and is as enduring as
the State itself.

THE RATIONALE OF LABOR LAWS

Although the rights and duties arising from labor rleationships are
basically contractual in nature, those are not governed by the general law
on obligations and contracts (Book IV, Civil Code). The reason for this is
enunciated by the Civil Code, thus:

“Article 1700 - The relations between capital and labor are not
merely contractual. They are so impressed with public interest
that labor contracts must yield to the common good.
Therefore, such contracts are subject to the special laws on
labor unions, collective bargaining, strikes and lockouts,
closed shop, wages, working conditions, hours of labor and
similar subjects.”

The special laws referred to are known collectively as labor laws.

LABOR POLICIES AND RIGHTS IN THE CONSTITUTION

Aside from being one of two sources of State’s authority to enact

labor laws, the Constitution of is of fundamental significance in this field
of law. The 1987 Constitution embodies new provisions directly affecting
the rights and welfare of labor.

The present Constitution introduces new provisions which are

significant to labor law. These can be summarized as follows:

1. It defines new State Policies on Labor;

2. It guarantees individual and collective rights of workers; and
3. It contains nationalistic provisions protecting Filipino labor

NEW CONSTITUTIONAL POLICIES CONCERNING LABOR

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Article, II, Sec. 18 - The State affirms labor as a primary social

economic force. It shall protect the rights of workers and
promote their welfare.

This is the first time that a Philippine Constitution gives explicit

recognition to the role of labor in social and economic development. It
also states a policy of protection for the rights and welfare of workers.

“A primary social economic force” means that the human factor has
primacy over non-human factors of production.

Protection to labor does not indicate promotion of employment

alone. Under the welfare and social justice provisions of the Constitution,
the promotion of full employment, while desirable, cannot take a
backseat to the government’s constitutional duty to provide mechanisms
for the protection of our workforce, local or overseas. (JMM Promotion
and Management v. CA, 260 SCRA 319)

What concerns the Constitution more paramountly is employment

be above all, decent, just and humane. It is bad enough that the country
has to send its sons and daughters to strange lands, because it cannot
satisfy their employment needs at home. Under these circumstances, the
Government is duty bound to provide them adequate protection,
personally and economically, while away from home. (Philippine
Association of Service Exporters v. Drilon, 163 SCRA 386

Article XII, Section 12 - The State shall promote the

preferential use of Filipino labor, domestic materials and
locally produced goods, and adopt measures that help make
them competitive

This is a strongly nationalistic policy favoring Filipino labor, raw

materials and finished products which the State seeks to promote and
strengthen.

Article XIII, Sec. 3 - xxx

The State shall promote the principle of shared

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

For the first time, the Constitution expresses a preference in the

method of resolving industrial disputes. This is through the use of
voluntary modes such as negotiation, collective bargaining, voluntary
arbitration, mediation and conciliation. The reason is that these modes
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are less fristional and entails less social costs to the parties, to the
government and to society as a whole.

Article XIII, Section 14. The State shall protect working

women by providing safe and healthful working conditions,
taking into account their maternal functions, and such
facilities and opportunities that will enhance their welfare and
enable them to realize their full potential in the service of the
nation.

The protection of working women, which the previous Constitution

mentioned only incidentally, is now given a separate title in view of the
important role of women in Filipino society.

RESTATEMENT OF OTHER CONSTITUTIONAL POLICIES

The Constitution also restates and rephrases policies established in

the previous Constitution, and re-adopts them for further
implementations.

Article XIII, Section 3 - The State shall afford full protection to

labor, local and overseas, organized and unorganized,
and promote full employment and equality of employment
opportunities for all.

This is a more positive and comprehensive restatement of the

Protection to Labor Clause.

The State shall regulate the relations between workers and

employers, recognizing the right of labor to its just share in
the fruits of production and the right of enterprises to
reasonable returns to investments, and to expansion and
growth.

This policy precludes the Stae from adopting a laisses faire policy
on labor relations due to public interest involved therein. It also provides
guidelines by which the State’s regulatory power shall be exercised.
Laissez faire is the belief that economies and businesses function best
when there is no interference by the government. It comes from the
French, meaning to leave alone or to allow to do. It is one of the guiding
principles of capitalism and a free market economy.

CONSTITUTIONAL RIGHTS OF WORKERS

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The Constitution is the bedrock of the most fundamental rights of

labor. These rights guaranteed by the Constitution may be lclassified
into two, namely:

1. INDIVIDUAL RIGHTS OF WORKERS – found in Art. III or the Bill

of Rights which is described as the “charter of individual
liberties”. While all persons enjoy these rights, their particular
application to workers carries a certain significance which
requires special consideration.
2. COLLECTIVE RIGHTS OF LABOR IN GENERAL – ARE ENSHRINED
IN THE Protection to Labor Clause, Article XIII, Sec. 3.

These two sets of rights are not identical. In fact they may possibly
conflict with each other, as will be noted later.

INDIVIDUAL RIGHTS OF WORKERS

RIGHT TO DUE PROCESS/EQUAL PROTECTION

Article III, Section 1 - 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 laws.

ORIGIN. By the 39th chapter of the Magna Carta wrung by the barons
from King John, the despot promised that “no man shall be taken or
imprisoned or disseized or outlawed, or in any manner destroyed; nor
shall we go upon him, nor send upon him, but by the lawful judgment of
his peers or by the law of the land [perlegem terraef.

DEFINITION. “A law which hears before it condemns, which proceeds

upon inquiry and renders judgment only after trial” [Darmouth College v.
Woodward, 4 Wheaton 518], “Responsiveness to the supremacy of reason,
obedience to the dictates of justice” [Ermita-Malate Hotel & Motel
Operators Association v. City of Manila, 20 SCRA 849]. “The embodiment
of the sporting idea of fair play”[Frankfurter, Mr. Justice Holmes and the
Supreme Court, pp 32-33].

WHO ARE PROTECTED. Universal in application to all persons, without

regard to any difference in race, color or nationality. Artificial persons are
covered by the protection but only insofar as their property is concerned
[Smith Bell & Co. v. Natividad, 40 Phil. 163], The guarantee extends to
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aliens and includes the means of livelihood [Villegas v. Hiu Chiong, 86

SCRA 275].

Philippine Moving Pictures Workers Association vs. Premier

Productions, G. R. No. L-5621, March 25, 1953, The right to labor is a
constitutional as well as a statutory right. Every man has a natural right
to the fruits of his own industry. A man who has been employed to
undertake certain labor and has put into it his time and effort is entitled
to be protected. The right of a person to his labor is deemed to be
property within the meaning of constitutional guarantees. That is his
means of livelihood. He cannot be deprived of his labor or work without
due process of law (11 Am. Jur., 333, pp. 1151-1153; 11 Am. Jur., section
344, pp. 1168-1171).

CALLANTA vs. CARNATION PHIL. G.R. No. 70615, October 28, 1986 - It
is a principle well-recognized in this jurisdiction that one's employment,
profession, trade or calling is a "property right", and the wrongful
interference therewith is an actionable wrong. The right is considered to
be property within the protection of a constitutional guaranty of due
process of law. “

FREEDOM OF EXPRESSION

Sec. 4. Art. Ill - “No law shall be passed abridging the freedom
of speech, of expression or of the press, or the right of the
people peaceably to assemble and petition the government for
redress of grievances.”

American jurisprudence interpreting this provision has applied it to

cover the labor practice of picketing. Hence, it has been declared that “by
peaceful picketing, working men communicate their grievances.” As a
means of communicating the fact of labor dispute, peaceful picketing
may be a phase of Constitutional right of free utterances. But recognition
of peaceful picketing as an exercise of free speech does not imply that
the States must be without power to confine the sphere of
communication to that directly related to the dispute (Carpenters and
Joiners Union vs. Ritter’s Café, 315 U.S. 722). In a more direct statement,
it has been held that “what is protected is the elements of
communication, not the act of patrolling or marching which may be
subject to reasonable regulation (International Brotherhood of Teamsters
vs. Hankee, 1950)

The first local application of this guarantee to a case of peaceful

picketing is recorded in Mrtera vs CIR (79 Phil 345). This protection was
expanded to apply to cases even where employer-employee relationship
was absent (de Leon vs. NLU, 100 Phil 789, PAFLU vs. Barot, 99 Phil
1008). However, subsequent doctrines have established the power of the
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court to limit the exercise of the right to parties involved in the labor
dispute, or having a direct interest to the context of this issue (PAFLU vs
Cloribel, 27 SCRA 465; RFM Workers Association vs. Reyes, 124 Phil
1442). In the later case of Liwayway Publication vs. Permanent Concrete
Workers Union, et. al. (108 SCRA 16), the Supreme Court held “the right
to picket as a means of communicating the facts of a labor dispute is a
phrase of the freedom of speech guaranteed by the constitution. If
peacefully carried out, it cannot be curtailed even in the absence of
employer-employee relationship. The right is, however, not an absolute
one. While peaceful picketing is entitled to protection as an exercise of
free speech, we believe that courts are not without power to confine or
localize the sphere of communication or the demonstration to the parties
to the labor dispute, including those with related interest, and to insulate
establishments or persons with no industrial connection or having
interest totally foreign to the context of the dispute. Thus, the right may
be regulated at the instance of third parties or 'innocent bystanders' if it
appears that the inevitable result of its exercise is to create an
impression that a labor dispute with which they have no connection or
interest exists between them and the picketing union or constitute an
invasion of their rights. In one case decided by this Court, we upheld a
trial court's injunction prohibiting the union from blocking the entrance
to a feed mill located within the compound of a flour mill with which the
union had a dispute. Although sustained on a different ground, no
connection was found other than their being situated in the same
premises. It is to be noted that in the instances cited, peaceful picketing
has not been totally banned but merely regulated. And in one American
case, a picket by a labor union in front of a motion picture theater with
which the union had a labor dispute was enjoined by the court from being
extended in front of the main entrance of the building housing the theater
wherein other stores operated by third persons were located."

The freedom of expression is available to individual workers subject

tro the limitation of industrial peace to air their valid grievances (Kapisan
Manggawa ng Camara Shoes vs Camara Shoes, 111 SCRA 478)

FREEDOM OF ASSOCIATION

Article III, Sec. 8 - “The right of the people, including those

employed in the public and private sectors, to form unions,
associations or societies for purposes not contrary to law shall
not be abridged. ”] The right is reinforced by Sec. 2 (5), Art.
IX-B, and Sec. 3, par. 2, Art. XIII.

SCOPE. The right to form, or join, unions or associations, includes the

right not to join or, if one is already a member, to disaffiliate from the
association. In Volkschel Labor Union v. Bureau of Labor Relation^, 137
SCRA 42, the right of a labor union to disaffiliate from a labor federation
was held to be part of the right to association. In Central Negros Electric
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Cooperative v. Secretary of Labor, 201 SCRA 584, the Supreme Court

upheld the right of employees of the electric cooperative to withdraw
their membership from the cooperative in order to join a labor union.

In Victoriano v. Elizalde Rope Workers Union, 59 SCRA 54, the

Supreme Court upheld the validity of R.A. 3350, exempting members of a
religious sect from being compelled to join a labor union.

Villar vs. Inciong, G.R. No. 50283-84, April 20, 1983, petitioners
although entitled to disaffiliate from their union and to form a new
organization of their own must, however, suffer the consequences of
their separation from the union under the security clause of the CBA.
Inherent in every labor union, or any organization for that matter, is the
right of self-preservation. When members of a labor union, therefore, sow
the seeds of dissension and strife within the union; when they seek the
disintegration and destruction of the very union to which they belong;
they thereby forfeit their rights to remain as members of the union which
they seek to destroy. Prudence and equity, as well as the dictates of law
and justice, therefore, compelling mandate the adoption by the labor
union of such corrective and remedial measures, in keeping with its laws
and regulations, for its preservation and continued existence; lest by its
folly and inaction, the labor union crumble and fall.

A closed-shop is a valid form of union security, and a provision

therefor in a collective bargaining agreement is not a restriction of the
right of freedom of association guaranteed by the Constitution.
(Manalang, et al. vs. Artex Development Co., Inc., et al., L-20432, October
30, 1967, 21 SCRA 561). Where in closed-shop agreement it is stipulated
that union members who cease to be in good standing shall immediately
be dismissed, such dismissal does not constitute an unfair labor practice
exclusively cognizable by the Court of Industrial Relations. (Seno vs.
Mendoza, 21 SCRA 1124).

A closed hop provision in the CBA, where applicable, does not

however mean automatic termination. Actual dismissal based on this
clause should not be characterized with arbitrariness and must always be
with due process to the employee (Manila Mandarin Employees Union vs
NLR, 154 SCRA 368; Sauyo vs Canizares, 211 SCRA 361; Kalaw vs NLR,
202 SCRA 7).

Under a maintenance of membership clause, the duty to remain a

member of the bargaining union exist only for the duration of the CBA.
Freedom of association is unconstitutionally invaded if such duty is
stipulated beyond that period. The duty ceases to be binding only during
the 60-day freedom period before the expiration of the CBA (Tanduay
Distillery Labor Unio vs. Tanduay Distillery, Inc. and NLRC, G.R. No.
75037, April 30, 1987)
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Another restriction in the application of a union security clause is

that the sanction involved therein must be explicitly stated, and cannot
be implied. If the clause does not expressly give the right to dismiss the
worker upon its violation, the employer cannot do so, as the right to
dismiss must be clear, categorical and express (Manila Cordage Co vs.
CIR, 78 SCRA 398).

In a more recent case, however, the dismissal of union members for

violating a union security clause requiring membership in good standing
“as a condition of their continued employment” was held to be valid and
privileged, and di not constitute an unfair labor practice. (Tanduay
Distillery Labor Unio vs. Tanduay Distillery, Inc. and NLRC, G.R. No.
75037, April 30, 1987)

FOR THE FIRST TIME, the Constitution grants government

employees individually the freedom of association and collectively, the
right to self-organization.

NON-IMPAIRMENT CLAUSE

Sec. 10, Art. Ill - “No law impairing the obligation of contracts
shall be passed.”

Impairment is anything that diminishes the efficacy of the contract.

There is substantial impairment when the law changes the terms of a
legal contact between the parties, either in the time or mode of
performance, or imposes new conditions, or dispenses with those
expressed, or authorizes for its satisfaction something different from that
provided in its terms [Clements v. Nolting, 42 Phil 702]

From the standpoint of a worker’s right, this guarantee could be

described more relevantly as the right to the sanctity of employment
contract.

The contracts protected by the non-impairment clause are confined

to those respecting property or property rights, such as employment
contracts. The obligation of such contract refers to the duty of
performing the contract according to the terms and intent. Thus, a
subsequent law or ordinance which destroy or diminishes the value of
these contracts or deviates from their terms impairs their obligation.

However, the principal limitation to this cause is the Police Power of

the State. When lawfully exercised, this inherent power may be justifiably
used even to the extent of impairing the obligation of contracts, because
the Police Power is superior to the non-impairment clause (Pantranco vs.
Public Service Commission, 70 Phil, 221; Abe vs. Foster Wheeler Corp.,
110 Phil 198; Asia Bed Factory vs. National Bed and Kapok Industries
Workers Union, 100 Phil 837)
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FREE ACCESS TO COUYRTS AND QUASI-JUDICIAL BODIES

Sec. 11. Art. Ill - Free access to the courts and quasijudicial
bodies and adequate legal assistance shall not be denied to
any person by reason of poverty.

This is a social justice provision, implemented by the Rules of Court

provision allowing “pauper suits”. Note the additional guarantee of
“adequate legal assistance”. Read also par. 5, Sec. 5, Art. VIII.

RIGHT TO SPEEDY DISPOSITION OF CASES

Sec. 16. Art. Ill - “All persons shall have the right to a speedy
disposition of cases before all judicial, quasi-judicial, or
administrative bodies.

This right is not limited to the accused in cirminal proceedings but

extends to all parties in all cases, including civil and administrative cases,
and in all proceedings, including judicial and quasi-judicial hearings.
Thus, any party to a case may demand expeditious action on all officials
who are tasked with the administration of justice [Cadalin v. POEA
Administrator, 238 SCRA 722]

However, like the right to a speedy trial, this right is violated only
when the proceedings are attended by vexatious, capricious and
oppressive delays, or when unjustified postponements of the trial are
asked for and secured, or when without cause or justifiable motive a long
period of time is allowed to elapse without the party having his case
tried. A mere mathematical reckoning of the time involved, therefore,
would not be sufficient [Binay v. Sandiganbayan, 120281-83, October 1,
1999, citing Socrates v. Sandiganbayan, supra]. Thus, in Sambang v.
General Court Martial PRO-Region 6, G.R. No. 140188, August 3, 2000,
the Supreme Court said that although it was unfortunate that it took
about 8 years before the trial of the case was resumed, there was no
delay amounting to a violation of the petitioner’s right to speedy
disposition of cases, considering that the delay was not attributable to
the prosecution.

In Tilendo v. Ombudsman, G.R. No. 165975, September 13, 2007,

the Supreme Court said that the concept of speedy disposition of cases is
relative or flexible. A simple mathematical computation of the time
involved is insufficient. In ascertaining whether the right to speedy
disposition of cases has been violated, the following factors must be
considered: (a) the length of the delay; (b) the reasons for the delay; (c)
the assertion or failure to assert such right by the accused; and (d) the
prejudice caused by the delay.
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RIGHT AGAINTS INVOLUNTARY SERVITUDE

Sec. 18(2). Art. Ill - “No involuntary servitude in any form shall
exist except as a punishment for a crime whereof the party
shall have been duly convicted”

REINFORCED by Art. 272, Revised Penal Code, which provides: “The

penalty of prision mayor and a fine of not exceeding P10,000 shall be
imposed upon anyone who shall purchase, sell, kidnap, or detain a
human being for the purpose of enslaving him.” See Caunca v. Salazar, 82
Phil 851.

Exceptions:
a) punishment for a crime whereof one has been duly convicted.
b) service in defense of the State [Sec. 4, Art. II], See People v. Zosa,
38 0.G. 1676].
c) naval [merchant marine] enlistment. See Robertson v. Baldwin,
165 U.S. 75.
d) posse comitatus. See U.S. v. Pompeya, 31 Phil 245.
e) return to work order in industries affected with public
interest. See Kapisanan ng Manggagawa sa Kahoy v. Gotamco
Sawmills, 45 O.G. Supp. No. 9, p. 147.
f) patria potestas [Art. 311, Civil Code]

COLLECTIVE RIGHTS OF LABOR

RIGHT TO SELF-ORGANIZATION

The Protection to Labor Clause (Article XIII, Sec. 3) ensures the right
of labor.

The right is protected because of the underlying reason that

workers and their employers are placed not upon a position of equality,
but upon a position of inequality. Only a well-organized, high minded
labor union speaking with a single, yet potent, voice can hope to deal
with a powerful employer with dome semblance of equality. This reason
lies at the very root of unionism.

The protection refers to ”all workers” which includes government

employess in the civil service (Art. III, Sec. 8, Art. IX, Sec. 25 [5}; Sec. 6,
E.O. No. 111), and in government owned and controlled corporation
without original charters. This is however subject to two limitations, viz:

a. High-level employees whose functions are normally considered

as policy-making or managerial or whose duties are of highly
confidential nature shall not be eligible to join the organization
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of rank-and-file government employees (Sec. 3, E.O. No. 180);

and
b. The right does not apply to members of the Armed Forces of the
Philippines, including police officers,, policemen, firemen and jail
guards (Sec. 4, E.O. No. 180)

Certain exclusions are also provided among employees in the

private sector, such as managerial employees, members of cooperatives,
etc.

In SSS Employees v. Court of Appeals, 175 SCRA 686, it was held

that employees in the civil service may not resort to strikes, walkouts and
other temporary work stoppages to pressure the Government to accede
to their demands. In Bangalisan v. Court of Appeals, G.R. No. 124678,
July 23, 1997, it was held that the ability to strike is not essential to the
right to association and that the right of the sovereign to prohibit strikers
or work stoppages was clearly recognized at common law. In JMM
Promotion and Management v. Court of Appeals, 260 SCRA 319, the
Supreme Court said that obviously, protection to labor does not mean
promotion of employment alone.

RIGHT TO COLLECTIVE BARGAINING NEGOTIATION

This right, which is also given by the Protection to Labor Clause, is

corollary to the right to self-organization. It infers the existence of a
labor organization, and indicates its role in fostering industrial peace.
Without this companion right, a labor union will have no voice or power
to represent the workers’ interest before their employer and it would be
inutile. With it, workers are enable to negotiate with the employer on the
same level and with more persuasiveness than if they were to bargain
individually and independently for the improvement of their respective
conditions.

The terms “collective bargaining” and “negotiation” are often used

interchangeably. How they differ with related terms such as grievance
pprocedure and arbitration was well pointed out by Professor Cox Dunlop
in the Harvard Law Review, thus: Collective Bargaining… normally takes
the form of negotiation when major conditions of employment to be
written into an agreement are under consideration, and of grievance
committee meetings and arbitration when questions arisingfrom the
administration of an agreement are at stake (Republic Savings Bank vs
CIR, 21 SCRA 226 citing Harvard Law Review, 1097, 1105 [1950]).

This right is applicable to government employees in the civil

service but with certain restrictions. Thus, terms and conditions of
employment, or improvements thereof, except those that are fixed by
law, may be the subject of negotiation between duly recognized
employees organization and appropriate government authorities (Sec. 13,
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E.O. No. 180). Obviously, terms and conditions fixed by law cannot be
changed by negotiation.

RIGHT TO PEACEFUL CONCERTED ACTIVITIES

This is another corollary right to self-organization as it affords to

labor unions the potential for action to enforce their demands. The right
is established in the protection to labor clause: “It shall guarantee the
rights of all workers to peaceful concerted activities including the right to
strike in accordance with law”.

The term “concerted activities” is defines as the activities of two or

more employees for the purpose of securing benefits or changes in terms
and conditions of employment, or for mutual aid or protection with
respect to their collective interest as employees. The definition
comprehensively covers a wide range of acts from grievances and
representation to strikes. Resolution of industrial disputes through
voluntary initiatives has the advantage of simplicity, certainty and privacy.
But the coercive versions of strikes and picketing, because of their far-
reaching consequences to the economy and to the larger interest of
society, are subject to regulation.

The constitution itself, in guaranteeing this right, qualifies it with

the condition that concerted activities should be “peaceful” and that the
right to strike be “in accordance with law”.

Right of Government Employees to Strike:

DELIA BANGALISAN, LUCILIN CABALFIN, EMILIA DE GUZMAN, CORAZON

GOMEZ, CORAZON GREGORIO, LOURDES LAREDO, RODOLFO MARIANO,
WILFREDO MERCADO, LIGAYA MONTANCES and CORAZON
PAGPAGUITAN, vs. HON. COURT OF APPEALS, THE CIVIL SERVICE
COMMISSION and THE SECRETARY OF THE DEPARTMENT OF EDUCATION,
CULTURE AND SPORTS, G.R. No. 124678. July 31, 1997

It is the settled rule in this jurisdiction that employees in the public

service may not engage in strikes. While the Constitution recognizes the
right of government employees to organize, they are prohibited from
staging strikes, demonstrations, mass leaves, walk-outs and other forms
of mass action which will result in temporary stoppage or disruption of
public services. The right of government employees to organize is
limited only to the formation of unions or associations, without including
the right to strike.

It is an undisputed fact that there was a work stoppage and that

petitioners’ purpose was to realize their demands by withholding their
services. The fact that the conventional term “strike” was not used by the
striking employees to describe their common course of action is
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inconsequential, since the substance of the situation, and not its

appearance, will be deemed to be controlling.

The ability to strike is not essential to the right of association. To

grant employees of the public sector the right to strike, there must be a
clear and direct legislative authority therefor. In the absence of any
express legislation allowing government employees to strike, recognizing
their right to do so, or regulating the exercise of the right, employees in
the public service may not engage in strikes, walkouts and temporary
work stoppages like workers in the private sector

“It is not the exercise by the petitioners of their constitutional right

to peaceably assemble that was punished, but the manner in which they
exercised such right which resulted in the temporary stoppage or
disruption of public service and classes in various public schools in Metro
Manila. For, indeed, there are efficient but non-disruptive avenues, other
than the mass actions in question, whereby petitioners could petition the
government for redress of grievances.”

It bears stressing that suspension of public services, however

temporary, will inevitably derail services to the public, which is one of the
reasons why the right to strike is denied government employees. It may
be conceded that the petitioners had valid grievances and noble
intentions in staging the “mass actions,” but that will not justify their
absences to the prejudice of innocent school children. Their righteous
indignation does not legalize an illegal work stoppage. The right of the
sovereign to prohibit strikes or work stoppages by public employees was
clearly recognized at common law.

RIGHT TO SECURITY OF TENURE

Under the previous law, an employer could terminate the services of

an employee with or without just cause, by simply giving him one month
notice, or compensation (mesada) in lieu thereof. This placed the
employee at the mercy of the employer on whom he depended for his
and his family’s livelihood.

This tenuous relationship has drastically changed and rectified by

the Labor Code in view of the right to security of tenure guaranteed by
the Constitutin (Art. XIII, Sec. 3). Tenure in employment means the right
to continue employment until the same is terminated under conditions
required by law. Article XIII, Sec. 3 of the Constitution guarantees to
workers security of tenure (Palmeria vs. NLRC, 247 SCRA 57).

RIGHT TO HUMANE CONDITIONS OF WORK

This collective right ensures that working conditions take into

account the health, safety and welfare of workers. The Labor Code is
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replete with provisions that address this concern. For instance, its entire
Book IV on Health, Safety and Social Welfare Benefits, relates to medical
and dental services, occupational health and safety, and a compensation
program for employees and their dependents in the event of work-
connected disability or death. Title III of Book II regulates the working
conditions for special groups of employees, working women, minors,
house helpers and home workers. The Code also empowers the Secretary
of Labor to order stoppage of work or suspension of operation of an
establishment when non-compliance with the law poses grave and
imminent danger to the health and safety of workers in the workplace.
These provisions, to cite only a few examples, illustrate the
implementation of this Constitutional Rights of workers.

RIGHT TO A LIVING WAGE

The right to a living wage is a new right established in the present

Constitution (Art. XIII, Sec. 3). The term refers not merely to the worker,
but to his family as well, and the intent is to secure the means whereby a
worker can secure the health, decency, well-being and an improved
quality of life of his family. This right is therefore imbued with social
justice implication.

A living wage is not the same as minimum wage. For a minimum

wage is a floor wage, below which remuneration cannot fall. Thus, it is
basically a quantitative concept which, despite all the factors considered,
may still be equated with the term “subsistence wage”. This has been
accurately described in Black’s Law Dictionary as “ the least wage on
which an ordinary individual can be self-sustaining, and obtain the
ordinary requirements of life.

But a living wage takes into consideration not only the workers
himself, but also his family. It concerns not only his ordinary
requirements of life, like food and shelter, but all the additional
requirements of his family – like education, clothing, health care,
entertainment, etc. This is therefore a qualitative concept intended to
secure the social end of eventually freeing the people form poverty, and
providing an improved quality of life for all. (Art. II, Sec. 9, Constitution)

RIGHT TO PARTICIPATE IN POLICY AND DECISION-MAKING

The Protection to Labor Clause also contains a new provision which

states in pertinent part: “They (all workers) shall also participate in policy
and decision-making process affecting their rights and benefits as may be
provided by law (Art. XIII, Sec. 3)

As worded, this provision does not establish a right; it merely

allows such a right if the legislature enacts the corresponding law. This
status was firmed up as a right upon the he Effectivity of Republic Act No.
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67151 on March 21, 1989, Sec. 22 of the amendatory law provides on this
point:

Section 22. Article 255 of the Labor Code, as amended, is

hereby amended to read as follows:

"Article 255. Xxx-xxx-xxx

"Any provision of law to the contrary notwithstanding, workers

shall have the right, subject to such rules and regulations as
the Secretary of Labor and Employment may promulgate, to
participate in policy and decision-making processes of the
establishment where they are employed insofar as said
processes will directly affect their rights, benefits and welfare.
For this purpose, workers and employers may form labor-
management councils: Provided, That the representatives of
the workers in such labor-management councils shall be
elected by at least the majority of all employees in said
establishment."

This right does not apply to all types of policy and decision-making
by management, but only to those that directly affect the rights, benefits
and welfare of workers.

Aside from establishing this right, RA No. 6715 also dispelled all
doubts about the legitimacy of labor-management councils which are
allowed even in organized establishments precisely to implement this
participatory right. In unorganized establishment, such council are
allowed to assist in promoting industrial peace.

OTHER FEATURES PROTECTING FILIPINO LABOR

The Constitution also embodies other new provisions favorable to

Filipino labor. Specifically, it contains new nationalistic measures which
further augment those currently in force.

The Basic Nationalistic Policy on labor is articulated as follows:

Article XII, Section 12 - The State shall promote the

preferential use of Filipino labor, domestic materials and
locally produced goods, and adopt measures that help make
them competitive.

1
AN ACT TO EXTEND PROTECTION TO LABOR, STRENGTHEN THE CONSTITUTIONAL RIGHTS OF
WORKERS TO SELF-ORGANIZATION, COLLECTIVE BARGAINING AND PEACEFUL CONCERTED
ACTIVITIES, FOSTER INDUSTRIAL PEACE AND HARMONY, PROMOTE THE PREFERENTIAL USE OF
VOLUNTARY MODES OF SETTLING LABOR DISPUTES, AND REORGANIZE THE NATIONAL LABOR
RELATIONS COMMISSION, AMENDING FOR THESE PURPOSES CERTAIN PROVISIONS OF
PRESIDENTIAL DECREE NO. 442, AS AMENDED, OTHERWISE KNOWN AS THE LABOR CODE OF THE
PHILIPPINES, APPROPRIATING FUNDS THEREFORE AND FOR OTHER PURPOSES
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Consistent with this declared policy, the Constitution nationalizes

the new fields of endeavors. Thus:

Article XII, Section 14 (2) - The practice of all professions in

the Philippines shall be limited to Filipino citizens, save in
cases prescribed by law.

Article XIV, Section 4(2) - Educational institutions, other than

those established by religious groups and mission boards,
shall be owned solely by citizens of the Philippines or
corporations or associations at least sixtyper centum of the
capital of which is owned by such citizens. The Congress may,
however, require increased Filipino equity participation in all
educational institutions

The control and administration of educational

institutions shall be vested in citizens of the Philippines.

Article XVI, Section 11 - The ownership and management of

mass media shall be limited to citizens of the Philippines, or
to corporations, cooperatives or associations, wholly-owned
and managed by such citizens.

The Congress shall regulate or prohibit monopolies in

commercial mass media when the public interest so requires.
No combinations in restraint of trade or unfair competition
therein shall be allowed.cralaw
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THE DECREE AND ITS PRELIMINARIES

PRESIDENTIAL DECREE NO. 442

A DECREE INSTITUTING A LABOPR CODE, THEREBY REVISING AND
CONSOLIDATING LABOR AND SOCIAL LAWS TO AFFORD PROTECTION
TO LABOR, PROMOITE EMPLOYMENT AND HUMAN RESOURCES
DEVELOPMENT AND ENSURE INDUSTRIAL PEACE BASED ON SOCIAL
JUSTICE

Name of Decree. - This Decree shall be known as the “Labor Code of the
Philippines.”

Salient Features of the Labor Code

a. It re-orients labor laws towards development and employment goals;
b. It institutionalizes the NLRC to facilitate the speedy settlement of labor
disputes;
c. It establishes a new system of workmen’s compensation;
d. It establishes a system for employment of overseas workers and
optimizes national benefit therefrom in the form of dollar remittances
and improved skills and technology for our people; and
e. It institutionalizes voluntary arbitration as a mode of settling labor
disputes.

Art. 2. Date of Effectivity. – This Code shall take effect six (6) months
after its promulgation.
Effectivity of the Labor Code
Took effect on November 1, 1974
Promulgated on May 1, 1974

The reason and justification for the creation of this Labor Code of
the Philippines is social justice where labor laws are for the humanization
and equalization of social and economic forces of the State, thus promote
the protection of the rights and welfare of the workers. The Code is a
mechanism that guarantees the order, safety, health, equity, morals and
general welfare of the Filipino communities.

COVERAGE:

1. LABOR STANDARDS – cover the laws established by the State

that set out the minimum terms, conditions and benefits of
employment that employers must provide with and to which
employees are entitled as a matter of right. These statutory
terms and standards include the wages, work hours, safety,
health and benefits for work related injuries and the guidelines
on post-employment entitlements.
2. LABOR RELATIONS – define the body of laws, rules, principles
and doctrines imposed by the State which regulates the relations
between employers and employees in terms of the mechanism
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that control the conditions of employment beyond labor

standards law in terms of status, rights, and duties, as well as
the institutional guidepost that govern the individual and
collective interaction between employers, employees and their
representatives. As a regulatory negotiated labor measure, it
embraces the procedural framework on resolving disputes
through collective bargaining agreement, mediation and
arbitration; and including unionization, negotiation, penalties,
claims and awards.

Art. 3. DECLARATION OF BASIC POLICY. – The State shall afford

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

Reason for Affording Protection to Labor

- Protection to labor is intended to raise the worker to equal

footing with the employer and shield him from abuses brought
about by the necessity for survival.

- Sanchez vs. Harry Lyons – employer stands on higher footing

than the employee. First, there is greater supply than demand for
labor. Second, the need for employment by labor comes from
vital and even desperate necessity.

- Article 24 of the Civil Code – “In all contractual property or other

relations, when one of the parties is at a disadvantage on
account of his moral dependence, ignorance, indigence, mental
weakness, tender age or other handicap, the courts must be
vigilant for his protection.”

Extent of the Protection

- The protective mantle is available not only against oppressive

employees but also against unscrupulous union leaders.

- Heirs of Teodulo Cruz vs. CIR – The union is an agent of its

members for the purpose of securing for them fair and just
wages and good working conditions and is subject to the
obligation of giving the members as its principals all information
relevant to union and labor matters entrusted to it. In the case,
the union leadership was recreant in its duty towards the union
members for failing to disclose the full situation of their
judgment credit against respondent. Fair dealings, which is
fiduciary in nature, arises from two factors:
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a. Degree of dependence of the individual employee on

the union organization;
b. A corollary of the first; is the comprehensive power
vested in the union with respect to the individual.

Limitations

a. Protection to labor cannot be used as a pretext to defeat the

rights and prerogatives of an employer. Thus, the validity of the
dismissal of an employee found guilty of violating rules designed
for the safety of the employees themselves, should be upheld
because it protects labor and at the same time gives the
employer its due.

b. Protection to labor cannot be used as an excuse to distribute

judgment on the basis of sympathies and inclinations, and
consequently, distribute charities at the expense of the
employer, because our constitutional government assures the
latter against deprivation of property except in accordance with
the statues and supplementary equitable principles.

c. Protection to labor is not available where both parties have

violated the law because in such a case, neither party is entitled
to protection

Art. 4. CONSTRUCTION IN FAVOR OF LABOR. – All doubts in the

implementation and interpretation of the provisions of this Code,
including its implementing rules and regulations shall be resolved in
favor of labor.

REASON FOR THE LAW

 Doubts are resolved in favor of labor in line with the principle

that those who have less in life should have more in law.
 When conflicting interest of labor and capital are weighed on the
scales of social justice, the heavier influence of the latter must be
counter-balanced by the sympathy and compassion the law must
accord the underprivileged worker.
 A contrary ruling would be a dilution and emasculation of the
protection to labor clause of the Constitution.

APPLICABILITY
 Article 4 applies only when there is a doubt.
 When there is no doubt, there is no room for construction.
 Where the evidence is clear that an employee is not an asset but a
liability that delays production and sets a bad example to his co-
Workers, the courts should not hesitate to confirm or order his
dismissal.
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Limitation

 The fundamental principles of due process should sternly be

applied on both the poor and the rich in order to attain proper
justice.

 The benevolent policy of the law towards the employee does not
oblige courts to be unjust and unfair to employers.

ART. 5. Rules and Regulations. The Department of Labor and other

government agencies charged with the administration and enforcement
of this Code or any of its parts shall promulgate the necessary IRRs. Such
RRs shall become effective 15 days after announcement of their adoption
in newspapers of general circulation.

o A grant of quasi-legislative power to the DOLE and other gov’t

agencies charged with the administration and enforcement of the
Labor Code or any part thereof.

 POEA
 National Wages and Productivity Commission
 Employees’ Compensation Commission
 NLRC

 Limitation: cannot enlarge or amend the provisions of the Labor

Code
 Effectivity of LC IRRs: February 3, 1975

ART. 6. APPLICABILITY. All rights and benefits granted to workers under

this Code shall, except as may otherwise be provided herein, apply alike
to all workers, whether agricultural or non-agricultural.

 The LC applies only to employees in the private sector, whether

agricultural or non-agricultural.

 Government employees: Civil Service Law

 GOCCs created by special charter: Civil Service Law
 GOCCs organized under the Corporation Law: LC

To be covered by the LC, there must be employer-employee

relationship.
 E-E criteria: (Viana v. Al-LAgadan)

1. Selection and engagement of employee

o Hiring
o Written contract, not necessary
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o An understanding that one is to render service to the other,

and a recognition by them of the right of one to order and
control the other is sufficient
2. Payment of wages
1. Wages – remuneration of earnings
2. Considered wages if paid in consideration of:
a) The labor being performed
b) The results or finished work

3. Power of dismissal

o Person hired is subjected to the rules of discipline of the

employer

4. Power to control the employee’s conduct

 Most important element

CONTROL TEST: the person for whom the services are performed
reserves the rights to control not only the end to be achieved but also the
means to be used in reaching such end.

 The control should be on both the means and the end

Insurance agents:
1. Salaried personnel who keep definite hours and work under the control
and supervision of the company – E-E relationship exists
2. Registered representatives who work on commission basis – no E-E
relationship
• The nature of the relationship between a company and its
collecting agents depends on the circumstances of each
particular relationship.
• There exists an E-E relationship between a corporation and
an in-house lawyer as they are paid regular salaries
• E-E relationship exists between a school and its professors.
The school has control over the work of the professors and
the latter are compensated for their services by wages or
salaries rather than by profits.
• No E-E relationship exists between working students and the
colleges or universities. Such rule applies only to labor
controversies, not to civil suits for damages arising from a
tortuous act of a working student.
• E-E relationship between resident physicians and training
hospitals exists, unless:
1. There is training agreement between them
2. The training program is duly accredited or
approved by the appropriate government agency
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• E-E relationship exists between hospitals and their consultants only for
purposes of allocating responsibility in medical negligence cases
• E-E relationship between a jeepney owner and driver under the
boundary system exists.
• There is no E-E relationship between a shipping company and the
workers of stevedoring or arrastre company, unless the same in fact
acted as agent only.
• An E-E relationship is created by contract and cannot be forced upon
either party simply upon order of a labor arbiter.
• Any competent and relevant evidence may be admitted as proof of E-E
relationship.
• The E-E relationship is deemed suspended in the ff cases:
1. When the employee is under suspension, either as a
disciplinary penalty or as a preventive measure during
the pendency of a disciplinary proceedings against him
2. During off season, in case of regular seasonal
employees
3. When fishing vessels are drydocked or undergoing
repairs
4. When an employee is laid-off for a period not
exceeding 6mos due to suspension of business
operations
5. When an employee fulfills a civic or military duty

• Termination of E-E relationship:

1. Dismissal
2. Resignation or abandonment of employment
3. Expiration of employment period
• Factors that do not interrupt employment relationship:
1. Leave of absence with pay
2. Illegal dismissal
3. Strike
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EMANCIPATION OF TENANTS
Art. 7. Statement of objectives.Inasmuch as the old concept of land
ownership by a few has spawned valid and legitimate grievances that
gave rise to violent conflict and social tension and the redress of such
legitimate grievances being one of the fundamental objectives of the New
Society, it has become imperative to start reformation with the
emancipation of the tiller of the soil from his bondage.

Art. 8. Transfer of lands to tenant-workers.Being a vital part of the

labor force, tenant-farmers on private agricultural lands primarily devoted
to rice and corn under a system of share crop or lease tenancy whether
classified as landed estate or not shall be deemed owner of a portion
constituting a family-size farm of five (5) hectares, if not irrigated and
three (3) hectares, if irrigated.

In all cases, the land owner may retain an area of not more than
seven (7) hectares if such landowner is cultivating such area or will now
cultivate it.

Art. 9. Determination of land value.For the purpose of determining the

cost of the land to be transferred to the tenant-farmer, the value of the
land shall be equivalent to two and one-half (2-1/2) times the average
harvest of three (3) normal crop years immediately preceding the
promulgation of Presidential Decree No. 27 on October 21, 1972.

The total cost of the land, including interest at the rate of six
percent (6%) per annum, shall be paid by the tenant in fifteen (15) years
of fifteen (15) equal annual amortizations.

In case of default, the amortization due shall be paid by the

farmers’ cooperative in which the defaulting tenant-farmer is a member,
with the cooperative having a right of recourse against him.

The government shall guarantee such amortizations with shares of

stock in government-owned and government-controlled corporations.

Art. 10. Conditions of ownership.No title to the land acquired by the

tenant-farmer under Presidential Decree No. 27 shall be actually issued to
him unless and until he has become a full-pledged member of a duly
recognized farmers’ cooperative.

Title to the land acquired pursuant to Presidential Decree No. 27 or

the Land Reform Program of the Government shall not be transferable
except by hereditary succession or to the Government in accordance with
the provisions of Presidential Decree No. 27, the Code of Agrarian
Reforms and other existing laws and regulations.
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Art. 11. Implementing agency.The Department of Agrarian Reform

shall promulgate the necessary rules and regulations to implement the
provisions of this Chapter.

PRE-EMPLOYMENT

Art. 12. Statement of objectives. It is the policy of the State:

a. To promote and maintain a state of full employment through

improved manpower training, allocation and utilization;
b. To protect every citizen desiring to work locally or overseas by
securing for him the best possible terms and conditions of
employment;
c. To facilitate a free choice of available employment by persons
seeking work in conformity with the national interest;
d. To facilitate and regulate the movement of workers in
conformity with the national interest;
e. To regulate the employment of aliens, including the
establishment of a registration and/or work permit system;
f. To strengthen the network of public employment offices and
rationalize the participation of the private sector in the
recruitment and placement of workers, locally and overseas,
to serve national development objectives;
g. To insure careful selection of Filipino workers for overseas
employment in order to protect the good name of the
Philippines abroad.

Title I
RECRUITMENT AND PLACEMENT OF WORKERS
Chapter I
GENERAL PROVISIONS
Art. 13. Definitions.

a. "Worker" means any member of the labor force, whether

employed or unemployed.
b. "Recruitment and placement" refers to any act of canvassing,
enlisting, contracting, transporting, utilizing, hiring or
procuring workers, and includes referrals, contract services,
promising or advertising for employment, locally or abroad,
whether for profit or not: Provided, That any person or entity
which, in any manner, offers or promises for a fee,
employment to two or more persons shall be deemed
engaged in recruitment and placement.
c. "Private fee-charging employment agency" means any
person or entity engaged in recruitment and placement of
workers for a fee which is charged, directly or indirectly, from
the workers or employers or both.
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d. "License" means a document issued by the Department of

Labor authorizing a person or entity to operate a private
employment agency.
e. "Private recruitment entity" means any person or association
engaged in the recruitment and placement of workers, locally
or overseas, without charging, directly or indirectly, any fee
from the workers or employers.
f. "Authority" means a document issued by the Department of
Labor authorizing a person or association to engage in
recruitment and placement activities as a private recruitment
entity.
g. "Seaman" means any person employed in a vessel engaged in
maritime navigation.
h. "Overseas employment" means employment of a worker
outside the Philippines.
i. "Emigrant" means any person, worker or otherwise, who
emigrates to a foreign country by virtue of an immigrant visa
or resident permit or its equivalent in the country of
destination.

Recruitment and placement

Refers to any act of hiring or procuring workers.
It includes:
a. Referrals;
b. Contract services
c. Promising or advertising a local or overseas
job

- Number of persons dealt with, not

essential

RECRUITMENT AND CONTRACTING/SUBCONTRACTING

PLACEMENT

The agency merely engages a job The contractor/subcontractor

applicant for the purpose of undertakes a specific job or service
placing him with another for a principal with the use of its own
employer employees
Needs a license or authority from Doesn’t
the DOLE
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Art. 14. Employment promotion.The Secretary of Labor shall have the

power and authority:

a. To organize and establish new employment offices in addition

to the existing employment offices under the Department of
Labor as the need arises;

b. To organize and establish a nationwide job clearance and

information system to inform applicants registering with a
particular employment office of job opportunities in other
parts of the country as well as job opportunities abroad;

c. To develop and organize a program that will facilitate

occupational, industrial and geographical mobility of labor
and provide assistance in the relocation of workers from one
area to another; and

d. To require any person, establishment, organization or

institution to submit such employment information as may be
prescribed by the Secretary of Labor.

 Purpose: to ensure the availability of adequate employment services
so that employment could be maximized through efficient
organization of the labor market.

 Functions of public employment office:

1. Provide free placement of workers applying for both domestic

and overseas employment;

2. Provide adequate vocational guidance and testing services to

persons seeking help in choosing or changing an occupation

3. Classify registered applicants in accordance with job titles and

codes of Philippine Standard Classification

4. Arrange for the training or retraining of unemployed applicants

in occupation or trades where they are suitably qualified and
where they have greater prospects of employment.

5. Arrange for inter-area placements of unemployed workers

through a nationwide job clearance and information system

6. Furnish the Bureau of Local Employment or POEA with list of

registered job applicants

 Employers with at least 6 employees are obliged to submit a
monthly report to the nearest public employment office, on
the ff:
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1. List of existing job vacancies or openings

2. List of new employees, if there are any
3. Termination, lay-off or retirement
4. Total number of employed workers for the period;
and
5. Request for assistance, if needed to fill vacancies or
openings

Art. 15. Bureau of Employment Services.

a. The Bureau of Employment Services shall be primarily

responsible for developing and monitoring a comprehensive
employment program. It shall have the power and duty:

1. To formulate and develop plans and programs to

implement the employment promotion objectives of this
Title;
2. To establish and maintain a registration and/or licensing
system to regulate private sector participation in the
recruitment and placement of workers, locally and
overseas, and to secure the best possible terms and
conditions of employment for Filipino contract workers
and compliance therewith under such rules and
regulations as may be issued by the Minister of Labor;
3. To formulate and develop employment programs
designed to benefit disadvantaged groups and
communities;
4. To establish and maintain a registration and/or work
permit system to regulate the employment of aliens;
5. To develop a labor market information system in aid of
proper manpower and development planning;
6. To develop a responsive vocational guidance and testing
system in aid of proper human resources allocation; and
7. To maintain a central registry of skills, except seamen.

b. (Repealed by E.O. 797)

c. The Minister of Labor shall have the power to impose and

collect fees based on rates recommended by the Bureau of
Employment Services. Such fees shall be deposited in the
National Treasury as a special account of the General Fund,
for the promotion of the objectives of the Bureau of
Employment Services, subject to the provisions of Section 40
of Presidential Decree No. 1177.
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Art. 16. Private recruitment. Except as provided in Chapter II of

this Title, no person or entity other than the public employment offices,
shall engage in the recruitment and placement of workers.

 Purpose: intended to eliminate malpractices in the recruitment and

placement of workers and to enable the Government to have a
firmer control of the labor market.

 Gen. Rule: only public employment offices can engage in

recruitment and placement of workers, whether for local or
overseas employment.

o Exception: the private sector is given the privilege to

engage in recruitment and placement, but limited to the
ff:

a. Private employment agency

– refers to any person or entity engaged in the
recruitment and placement of workers for a fee
which is charged directly or indirectly, from the
workers or employers or both.

b. Private recruitment entity

– refers to any person or association engaged in
the recruitment and placement of workers,
locally or overseas, without charging, directly or
indirectly, any fee from the workers or
employers.

c. Shipping or manning agency

– refers to any person, partnership, or
corporation duly licensed by the Secretary of
DOLE or his duly authorized representative to
recruit and deploy seafarers for maritime
employment.

d. Such other persons or entities as may be

authorized by the Secretary of DOLE

Art. 17. Overseas Employment Development Board.-An Overseas

Employment Development Board is hereby created to undertake, in
cooperation with relevant entities and agencies, a systematic program for
overseas employment of Filipino workers in excess of domestic needs
and to protect their rights to fair and equitable employment practices. It
shall have the power and duty:

To promote the overseas employment of Filipino workers through a

comprehensive market promotion and development program;
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To secure the best possible terms and conditions of employment of

Filipino contract workers on a government-to-government basis and to
ensure compliance therewith;
To recruit and place workers for overseas employment on a
government-to-government arrangement and in such other sectors as
policy may dictate; and
To act as secretariat for the Board of Trustees of the Welfare and
Training Fund for Overseas Workers.

COMMENTS:

1. Overseas Employment Development Board Now Abolished

E.O. No. 797 promulgated on May 1, 1982 abolished the Overseas

Employment Development Board (OEDB).

The Philippine Overseas Employment Administration (POEA) was

created instead.

POEA took over functions of OEDB and overseas functions of Bureau

of Employment Services.

2. OVERSEAS EMPLOYMENT

- means employment of a worker outside the Philippines

under a valid contract.
- A worker who holds an overseas employment is commonly
called a migrant worker.
- Migrant worker not only refer to land-based workers but
also to seafarers.
- The definition of overseas employment does not make any
distinction regarding the nationality of the employer.
- It is not essential that the principal employer should be a
foreigner or non-Filipino in order that an employee could
be considered to be holding an overseas employment.
- The rationale for this is that Filipinos working overseas
share the same risks and burdens, whether their employers
are Filipino or non-Filipino.
- Eastern Shipping Lines vs. POEA

3. The PHILIPPINE OVERSEAS EMPLOYMENT ADMINISTRATION

(POEA)

- POEA is the regulatory body for overseas employment.

- It has original and exclusive jurisdiction to hear and decide:

a. All cases which are administrative in character, involving
or arising out of violations of recruitment laws, rules and
regulations, including refund of fees collected from
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workers and violation of the conditions for the issuance

of license to recruit landbased overseas workers or
seafarers; and
b. Disciplinary action cases against migrant workers or
seafarers, foreign employers and principals that are
administrative in character.

- Decisions of the POEA are appealable to the Secretary of Labor

and Employment within 15 days from receipt of decision.

4. Recruitment Violation

4.1 Against Land-based Overseas Workers

4.2 Against Seafarers

5. Grounds for Disciplinary Action

5.1 Against Foreign Employers of Land-based Workers

The following are the grounds for disciplinary

action against foreign principals or employers of land-
based workers:
a. Default on its contractual obligations to the
migrant worker and/or to its Philippine
agent.
b. Gross violation of laws, rules and regulations
on overseas employment
c. Gross negligence leading to serious injury or
illness or death of the worker;
d. Grave misconduct
e. Conviction of an offense involving moral
turpitude
f. Any other case analogous to the foregoing.

- foreign employer or principal against whom a complaint for

disciplinary action has been filed shall be temporarily disqualified
from participating in the overseas employment program until he
submits to the jurisdiction of the POEA
- Once the foreign employer or principal submits to the jurisdiction
of the POEA, particularly upon filing of an answer in the disciplinary
action proceedings, he shall again be qualified to participate in the
overseas employment program without prejudice to the outcome of
the investigation whereby the proper penalty shall be imposed.
- However, if the evidence of guilt is strong and there is reasonable
ground to believe that the continued deployment to the principal or
employer will result to further violation or exploitation of migrant
workers, a principal or employer may be suspended (preventively)
from participating in the overseas recruitment program pending
investigation of the disciplinary action case.
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- If the penalty of suspension or disqualification is imposed through

an order, decision or resolution, the foreign employer or principal
shall be disqualified from participating in the overseas employment
program unless cleared by the POEA or the penalty imposed is
lifted.

5.2 Against Overseas Land-based Workers

The following are the grounds for disciplinary actions against

overseas land-based workers:
a. Pre-employment Offenses
i. Using, providing or submitting false information or
documents for purposes of job application or
employment
ii. Unjustified refusal to depart for the worksite after all
employment and travel documents have been duly
approved by the appropriate government agencies.
b. Offenses During Employment
i. Commission of a felony or crime punishable by Philippine
laws or by the laws of the host country;
ii. Unjustified breach of employment contract
iii. Embezzlement of company funds or monies and/or
properties of a fellow worker for delivery to kin or
relatives in the Philippines.
iv. Violation of the sacred practices of the host country

- A respondent worker subject of a pending complaint for

disciplinary action, or those against whom a warrant of arrest
or hold departure order is issued by competent authority shall
be disqualified from overseas employment unless temporarily
cleared.

- Upon filing of an answer the disciplinary action proceedings,

the respondent worker shall be qualified for overseas
employment without prejudice to the outcome of the
investigation whereby the proper penalty may be imposed.

- If the evidence of guilt is strong and the charge involves a

serious offense, the migrant worker may be preventively
suspended during the pendency of the disciplinary
proceedings.

- If the penalty of suspension or disqualification is imposed

through an order, decision or resolution, the worker shall be
disqualified from overseas employment unless cleared by the
POEA or the penalty imposed had been lifted.
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5.3 AGAINST FOREIGN PRINCIPALS OR EMPLOYERS OF

SEAFARERS

The following are the grounds for disciplinary action

against foreign principals or employers of seafarers:

a. Default on its contractual obligations to the seafarer

and/or to its Philippine agent
b. Gross violation of laws, rules and regulations on
overseas employment
c. Grave misconduct
d. Conviction of an offense involving moral turpitude
e. Gross negligence leading to serious injury or illness or
death of the seafarer
f. Any other case analogous to the foregoing

- A foreign employer or principal against whom a complaint for

disciplinary action has been filed shall be temporarily disqualified
from participating in the maritime employment program until he
submits to the jurisdiction of the POEA

- Once the principal or employer submits to the jurisdiction of the

POEA, particularly upon filing of an answer in the disciplinary action
proceedings, he shall again be qualified to participate in the
maritime employment program without prejudice to the outcome of
the investigation whereby the proper penalty shall be imposed.

- But if the evidence of guilt is strong and there is reasonable ground

to believe that the continued deployment to the principal or
employer will result to further violation or exploitation of seafarers,
the principal or employer may be suspended (preventively) from
participating in the overseas recruitment program pending
investigation of the disciplinary action case when.

- If the penalty of suspension or disqualification had been imposed

through an order, decision or resolution, the foreign employer or
principal shall be disqualified from participating in the maritime
employment unless cleared by the POEA or the penalty imposed is
lifted.

5.4 Against Seafarers

The following are the grounds for disciplinary action

against seafarers:

a. Pre-employment Offenses
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i. Submission/furnishing or using false information

or documents or any form of misrepresentation for
purpose of job application or employment
ii. Unjust refusal to join ship after all employment and
travel documents have been duly approved

b. Offenses During Employment

1. Smuggling or violation of any customs rule and

regulations of the Philippines and of foreign ports
i. Smuggling any taxable item
ii. Possession or use of prohibited drugs, narcotics
and other contraband
iii. Gun-running or possession of explosives and
the like
iv. Abetting or conniving with others to commit
smuggling
v. Misdeclaration of or failing to declare articles
leading to their seizure and fine to vessel
vi. Misdeclaration of or failing to declare articles
leading to their seizure but vessel is not
implicated
vii. Possession of pornographic materials leading to
its seizure and fine to the vessel
viii. Any other violation which will not implicate the
vessel
ix. Any violation which will implicate the vessel
2. Desertion
i. Deserting or attempting to desert employment
ii. Advising, assisting or persuading another to
desert employment
3. Absence without leave
i. Abandoning the post or duty without being
properly relieved
ii. Leaving vessel without permission from
responsible officers during working hours
iii. Entrusting to others assigned duties without
authority of the department head
iv. Leaving vessel without permission
4. Sleeping on post while on duty
5. Insubordination
i. Any act of disobedience to lawful orders of a
superior officer
ii. Attempting to assault a superior officer
iii. Assaulting a superior officer/other persons
on business with the ship without the use of
deadly weapon
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iv.
Assaulting a superior officer/other persons
on business with the ship with the use of
deadly weapon
v. Behaving with disrespect towards a superior
officer
vi. Insulting a superior officer by words or deed
vii. Inciting another to commit insubordination
6. Drunkenness
i. Being drunk while on duty
ii. Creating trouble on board due to intoxication
iii. Failure to perform assigned jobs due to
intoxication
7. Creating trouble outside the vessel’s premises
8. Gambling
i. Which results in fighting or any incident as to
upset the harmonious relationship on board
the vessel
ii. Any form of gambling which is not purely
recreational
9. Violation of company policies
i. Pilferafe or theft of ship’s store or cargo
ii. Embezzlement of company funds or monies
and/or properties of a fellow worker
entrusted fordelivery to kin or relatives in the
Philippines
iii. Unauthorized disposal of company vessel’s
properties for personal gain
iv. Any act of dishonesty with intention to
defraud the company
v. Gross negligence and failure to observe
proper storage and cargo handling
procedures resulting in delay of vessels
and/or damage to cargoes
vi. Failure to observe and comply with regulation
and non-baggage shipment and acceptance of
parcels on board.
vii. Failure to observe regulations on expiration
of liberty
viii. Being left behind by vessel in foreign port
without justifiable reason
ix. Disorderly conduct and/or disrespect towards
passengers
x. Immorality as to cast aspersion on the good
name of the vessel and company
xi. Willfully inflicting harm or injury to others
10. Incompetency and inefficiency
11. Inciting mutiny, malicious destruction of ship’s
property at any activity which will hamper the efficient
operation of the vessel
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12. Converted action to breach approved contracts

13. Any activity which tends to destroy harmonious
relationship of the company
14. Grave abuse of authority
i. Grave abuse of authority (with use of deadly
weapon) resulting in harm or injury to
subordinate
ii. Grave abuse of authority (without use of
deadly weapon) resulting in harm or injury to
subordinate
iii. Any other case of abuse of authority
15. Other gross misbehaviors prejudicial to good order
and discipline
16. Negligence causing damage, loss, spoilage or
deterioration of vessel’s stocks and property
17. Connivance with of cuddling of stowaway
18. Willfully making false statement, reports,
certification or spurious seafarer’s documents for
personal gain or with intent to mislead or defraud the
company
19. Any other cases as to cast aspersion on the good
name of the company and vessel
20. Violation of safety and environmental rules and
regulations
21. Failure to observe the drug and alcohol policy of the
company.

6. Enforcement of a Foreign Judgment

- The POEA has no jurisdiction to hear and decide a suit

for enforcement of a judgment rendered by a foreign
court.
- Action of this nature should be brought before the
regular courts of justice.

7. Power of POEA to Recruit and Place Workers

- The POEA has the power to recruit and place workers on

a government-to-government arrangement, particularly
with regard to the hiring requirements of foreign
government instrumentalities.

- It may recruit and place workers for foreign employers in

such sectors as the policy may dictate.
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Art. 18. BAN ON DIRECT-HIRING.- No employer may hire a Filipino worker

for overseas employment except through the Boards and entities authorized by the
Secretary of Labor. Direct-hiring by members of the diplomatic corps, international
organizations and such other employers as may be allowed by the Secretary of Labor is
exempted from this provision.

COMMENTS:
1. Rationale for the Law

 Art. 18 is intended to enable the monitoring of overseas

contract workers; and
 to ensure that Filipino overseas workers are afforded fair
and equitable recruitment and employment practices
thereby assuring the best terms and conditions of
employment and facilitating the enforcement of
employment contracts.
2. Exception to the Ban on Direct-Hiring

 prohibition against direct hiring of overseas workers does not

apply to workers hired by:
a. members of the diplomatic corps;
b. international organizations; and
c. other employers who may be allowed by the Secretary
of Labor and Employment to directly hire their
workers.
3. Name Hire

 A name hire is a worker who is able to secure an overseas

employment on his own without the assistance or
participation of any agency.

4. Registration of Name Hires

 Name hires should register with the POEA by submitting the

following documents:

a. Employment contract
b. Valid passport
c. Employment visa or work permit, or equivalent
document
d. Certificate of medical fitness
e. Certificate of attendance to the required employment
orientation/briefing

Article 19. Office of Emigrant Affairs. – superseded by Batas

Pambansa Bilang 79 otherwise known as the Commission on Filipinos
Overseas and for Other Purposes
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Article 20. National Seamen Board - Repealed by Executive Order No.

797 REORGANIZING THE MINISTRY OF LABOR AND EMPLOYMENT, CREATING
THE PHILIPPINE OVERSEAS EMPLOYMENT ADMINISTRATION, AND FOR OTHER
PURPOSES , particularly Sec. 4. There is hereby created a Philippine Overseas
Employment Administration, hereinafter referred to as the administration, which shall
assume the functions of the Overseas Employment Development Board, the National
Seamen Board, and the overseas employment functions of the Bureau of Employment
Services; which shall absorb the applicable functions, appropriations, records,
equipment, property, and such personnel as may be necessary of the abolished units;
and which shall have the powers, functions, and structure as provided for below.

ARTICLE 21. FOREIGN SERVICE ROLE AND PARTICIPATION.- To

provide ample protection to Filipino workers abroad, the labor attaches,
the labor reporting officers duly designated by the Secretary of Labor and
the Philippine diplomatic or consular officials concerned shall, even
without prior instruction or advice from the home office, exercise the
power and duty:
To provide all Filipino workers within their jurisdiction assistance on
all matters arising out of employment;
To insure that Filipino workers are not exploited or discriminated
against;
To verify and certify as requisite to authentication that the terms
and conditions of employment in contracts involving Filipino
workers are in accordance with the Labor Code and rules and
regulations of the Overseas Employment Development Board and
National Seamen Board;
To make continuing studies or researches and recommendations on
the various aspects of the employment market within their
jurisdiction;
To gather and analyze information on the employment situation
and its probable trends, and to make such information available;
and
To perform such other duties as may be required of them from time
to time.

COMMENTS:
1. Reason for the law:

 Art. 21 is intended to protect the overseas workers by

ensuring that they are not exploited or discriminated against.
 The protection of the Filipino migrant worker and the
promotion of their welfare, in particular, and the protection of
the dignity and fundamental rights and freedoms of Filipino
citizens abroad, in general, shall be the highest priority
concerns of the Secretary of Foreign Affairs and the Philippine
Foreign Service Posts.
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2. Country-Team Approach

 As enunciated under Executive Order No. 74 series of 1993,

the country-team approach shall be the mode under which
Philippine embassies or their personnel will operate in the
protection of the Filipino migrant workers as well as in the
promotion of their welfare.
 All officers, representatives and personnel of the Philippine
government posted abroad regardless of their mother
agencies shall, on a per country basis, act as one country-
team with a mission under the leadership of the ambassador
 The ambassador may recommend to the Secretary of DFA the
recall of officers, representatives and personnel of the
Philippine government posted abroad for acts inimical to the
national interest such as, but not limited to failure provide the
necessary services to protect the right of overseas Filipinos.

3. Services Available to Migrant Filipino Workers

 To protect and promote the welfare of migrant Filipino

workers, the following services are being extended by the
government:

a. Travel Advisory / Information Dissemination - all embassies

and consular offices, through POEA, are obliged to issue
travel advisories on labor and employment conditions,
migration realities and other facts. This is intended to
prevent illegal recruitment, fraud and exploitation or abuse
of Filipino migrant workers.
b. Repatriation of Workers – The Overseas Workers Welfare
Administration (OWWA), shall undertake the repatriation of
workers in case of war, epidemic, disasters or calamities
natural or man-made, and other similar events without
prejudice to reimbursement by the responsible principal or
agency. In case the principal or agency cannot be
identified, all costs attendant to repatriations shall be
borne by the OWWA.
c. Mandatory Repatriation of Underage Migrant Workers –
upon discovery or being informed of the presence of
migrant workers whose actual ages fall below the minimum
age requirement for overseas deployment, the responsible
officers in foreign service shall without delay repatriate said
workers and advise the DFA through the fastest means of
communication available of such discovery and other
relevant information.
d. Migrant Workers and Other Overseas Filipinos Resource Center–
within the premise of and under the administrative
jurisdiction of the Philippine embassy where there are large
concentrations of Filipino migrant workers, a Migrant
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Workers and Other Overseas Filipinos Resource Center have

been established for the purpose of extending the
following services:

i. Counseling and legal services

ii. Welfare assistance including the procurement of
medical and hospitalization services.
iii. Information, advisory and programs to promote
social integration such as post-arrival orientation,
settlement and community networking services and
activities for social interaction;
iv. Institute a scheme of registration of undocumented
workers to bring them within the purview of the
Migrant Workers and Overseas Filipinos Act of 1995
v. Human resource development, such as training and
skills upgrading
vi. Gender sensitive programs and activities to assist
particular needs of women migrant workers
vii. Orientation program for returning workers and other
migrants
viii. Monitoring of daily situations, circumstances and
activities affecting migrant workers and other
overseas Filipinos.

 The CENTER IS OPEN FOR 24 HOURS DAILY INCLUDING

SATURDAYS, SUNDAYS AND HOLIDAYS, and staffed by
foreign service personnel, service attaches or officers who
represent other Philippine government agencies abroad and if
available, individual volunteers and bona fide non-government
organizations from the host countries.
 The Center has a counterpart 24-hour information and
assistance at the DFA to ensure a continuous network and
coordinative mechanism at the home office.

4. The Legal Assistant for Migrant Workers Affairs

 The Legal Assistant for Migrant Workers Affairs (which is

under the DFA) is primarily responsible for the provision and
overall coordination of all legal assistance services to be
provided to Filipino migrant workers as well as overseas
Filipinos in distress. Among the functions and responsibilities
of the Legal Assistant are:

a. To issue guidelines, procedure and criteria for the

provision of legal assistance services to Filipino migrant
workers
b. To establish close linkages with the DOLE, POEA, OWWA
and other government agencies concerned, as well as non
governmental organizations assisting migrant workers, to
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ensure effective coordination and cooperation in the

provision of legal assistance to migrant workers
c. To tap the assistance of reputable law firms and the
Integrated Bar of the Philippines and other bar associations
to complement the government’s efforts to provide legal
assistance to migrant workers
d. To administer the legal assistance fund for migrant
workers and authorize disbursements therefrom in
accordance with the purposes for which the fund was set
up
e. To keep and maintain the shared government information
system form migrant workers.

 The Legal Assistant for Migrant Workers Affairs is authorized

to hire private lawyers, domestic or foreign, in order to assist
him in the effective discharge of his functions.

5. Role of Government Agencies

 The following government agencies shall perform the

following to promote the welfare and protect the rights of
migrant workers and, as far as practicable, all overseas
Filipinos:

a. DFA – The Department, through it’s home office or foreign posts,

shall take priority action or make representation with the foreign
authority concerned to protect the rights of migrant workers and
other overseas Filipinos and extend immediate assistance
including the repatriation of distressed or beleaguered migrant
workers and other overseas Filipinos.
b. DOLE – The Department of Labor and Employment shall see to it
that labor and social welfare laws in the foreign countries are
fairly applied to migrant workers and whenever applicable, to
other overseas Filipinos including the grant of legal assistance
and referral to proper medical centers or hospitals.
c. POEA – The POEA shall regulate private sector participation in the
recruitment and overseas placement of workers by setting up a
licensing and registration system. It shall also formulate and
implement, in coordination with appropriate entities concerned,
when necessary, a system for promoting and monitoring the
overseas employment of Filipino workers taking into
consideration their welfare and domestic manpower
requirements.
d. OWWA – The Welfare Officer or in his absence, the coordinating
officer, shall provide the Filipino migrant worker and his family
all the assistance they may need in the enforcement of
contractual obligations by agencies or entities and/or their
principals. In the performance of this function, he shall make
representation and may call on the agencies or entities
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concerned to conference or conciliation meetings for the

purpose of settling the complaints or problems brought to his
attention.

ARTICLE 22. MANDATORY REMITTANCE OF FOREIGN EXCHANGE

EARNINGS.- It shall be mandatory for all Filipino workers abroad to remit
a portion of their foreign exchange earnings to their families,
dependents, and/or beneficiaries in the country in accordance with rules
and regulations prescribed by the Secretary of Labor.

COMMENTS:

1. Remittance of Portion of the Worker’s Foreign Exchange Earnings

 Art. 22 makes it mandatory for all overseas Filipino workers to

remit a portion of their foreign exchange earnings to their
families, dependents and beneficiaries.

a. 80% of basic salary – for seamen or mariners

b. 70% of basic salary – for workers of Filipino contractors and
construction companies
c. 70% of basic salary – for doctors, engineers, teachers, nurses
and other professional workers whose employment contracts
provide for free board and lodging facilities
d. 50% of basic salary – for other professionals whose
employment contracts do not provide for free board and
lodging
e. 50% of basic salary – for domestics and other service workers
f. 50% of basic salary – for other workers not falling under the
aforementioned categories.

2. Exceptions to the Remittance Requirement

 The following workers are not obliged to remit a portion of

their foreign exchange earnings:

a. Workers whose immediate family members, dependents or

beneficiaries are residing with him abroad
b. Filipino servicemen working in the U.S. military installations
c. Immigrants and Filipino professionals and employees working
with the United Nations agencies or specialized bodies.

ART 25. PRIVATE SECTOR PARTICIPATION IN THE RECRUITMENT

AND PLACEMENT OF WORKERS QUALIFICATIONS FOR PARTICIPATION
IN THE OVERSEAS EMPLOYMENT PROGRAM:

1. Filipino citizens, partnerships or corporations at least 75% of the

authorized and voting capital stock of which is owned and
controlled by Filipino citizens;
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2. Minimum capitalization of 1M in case of single proprietorship or

partnership and a minimum of 1M paid-up capital for
corporations;
3. Those not otherwise disqualified by law or these guidelines to
engage in the recruitment and placement of workers for overseas
employment

DISQUALIFICATIONS:

1. Travel agencies and sales agencies of airline companies;

2. Officers or members of the board of any corporation or members
in a partnership engaged in the business of a travel agency;
3. Corporations and partnerships, when any of its officers,
members of the board or partners, is also an officer, member of
the board or partner of a corporation engaged in the business of
a travel agency
4. Persons, partnerships, or corporations which have derogatory
records;
5. Persons employed in the Department of Labor or in other
government agencies directly involved in overseas employment
program and their relatives within the 4th degree of
consanguinity or affinity; or
6. Those whose license has been previously canceled or revoked

ART 29. NON-TRANSFERABILITY OF LICENSE OR AUTHORITY

 No license or authority shall be used directly or indirectly by

any person other than the one in whose favor it was issued or
at any place other than that stated in the license or authority,
nor may such license or authority be transferred, conveyed or
assigned to any other person or entity.
 Licensees or holders of authority or their duly authorized
representatives may as a rule, undertake recruitment and
placement activities only at their authorized official addresses.
 Change of ownership or relationship of single proprietorship
licensed to engage in overseas employment shall cause the
automatic revocation of the license.
 All overseas land based workers shall be provided both life
and personal accident insurance.

GROUNDS FOR DISCIPLINARY ACTION

(Under the MWA [Migrant Workers Act] of 1995) ;

1. Commission of a felony punishable by the laws of the Philippines

or by the host country;
2. Drug addiction or possession or trafficking of prohibited drugs;
3. Desertion or abandonment;
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4. Drunkenness, especially where the laws of the of the host

country prohibit the same;
5. Gambling, especially where the laws of the host country prohibit
the same;
6. Initiating or joining a strike or work stoppage where the laws of
the host country prohibit strikes or similar actions;
7. Creating trouble at the worksite or in the vessel;
8. Embezzlement of company funds or of money an properties of a
fellow worker entrusted for delivery to kins or relatives in the
Philippines;
9. Theft or robbery;
10. Prostitution;
11. Vandalism or destroying company property;
12. Gunrunning or possession of deadly weapons;
13. Unjust refusal to depart for the worksite after all employment
and travel documents have been duly approved by the
appropriate government agency; and
14. Violation of the laws and sacred practices of the host country
and unjustified breach of government approved employment
contract by a worker.

Art. 31. Bonds. All applicants for license or authority shall post such
cash and surety bonds as determined by the Secretary of Labor to
guarantee compliance with prescribed recruitment procedures, rules and
regulations, and terms and conditions of employment as may be
appropriate.

PURPOSES:
1. To secure all valid and legal claims arising from a violation of the
conditions of the grant and use of the license, accreditation and
contracts of employment.
2. Intended to guarantee compliance with the LC and its IRRs
relative to the recruitment and placement

 Amount of bond for recruitment agency for local employment:
(prior to the approval of license)
a. Cash bond – 25k
b. Surety bond – 100k

 The bonds and escrow shall answer for all the valid and legal
claims arising from violations of the conditions for the grant
and use of license and/or accreditation and contracts of
employment.

 The bonds and escrow shall likewise guarantee compliance

with the provisions of Philippine laws and all liabilities that the
POEA may impose.

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 Appeal bond:
a. Art. 2232
o a requirement for the perfection of an appeal.
o Intended to insure the payment of monetary award in
the event that the judgment is affirmed on appeal
b. Art. 313
o not limited to monetary awards by employees
o Against which the POEA can go for violations by the
recruiter of the conditions for its license, the
provisions of the LC, the rules of the POEA as well as
the settlement of other liabilities the recruiter may
incur.
o Intended to answer only for employment-related
claims and for violations of labor laws. Therefore, it
cannot be garnished to satisfy a claim against a
recruitment agency that is not employment-related
or does not pertain to violation of labor laws.

 A recruiter agency who appeals a judgment of the POEA or
Labor Arbiter to the NLRC is still obliged to post a bond in an
amount equivalent to the monetary award as required by

2
Art. 223. Appeal. Decisions, awards, or orders of the Labor Arbiter are final and executory unless appealed to the Commission by
any or both parties within ten (10) calendar days from receipt of such decisions, awards, or orders. Such appeal may be entertained
only on any of the following grounds:

a. If there is prima facie evidence of abuse of discretion on the part of the Labor Arbiter;

b. If the decision, order or award was secured through fraud or coercion, including graft and corruption;

c. If made purely on questions of law; and

d. If serious errors in the findings of facts are raised which would cause grave or irreparable damage or injury to the
appellant.

In case of a judgment involving a monetary award, an appeal by the employer may be perfected only upon the posting of a cash or
surety bond issued by a reputable bonding company duly accredited by the Commission in the amount equivalent to the monetary
award in the judgment appealed from.

In any event, the decision of the Labor Arbiter reinstating a dismissed or separated employee, insofar as the reinstatement aspect is
concerned, shall immediately be executory, even pending appeal. The employee shall either be admitted back to work under the
same terms and conditions prevailing prior to his dismissal or separation or, at the option of the employer, merely reinstated in the
payroll. The posting of a bond by the employer shall not stay the execution for reinstatement provided herein.

To discourage frivolous or dilatory appeals, the Commission or the Labor Arbiter shall impose reasonable penalty, including fines or
censures, upon the erring parties.

In all cases, the appellant shall furnish a copy of the memorandum of appeal to the other party who shall file an answer not later
than ten (10) calendar days from receipt thereof.

The Commission shall decide all cases within twenty (20) calendar days from receipt of the answer of the appellee. The decision of
the Commission shall be final and executory after ten (10) calendar days from receipt thereof by the parties.

Any law enforcement agency may be deputized by the Secretary of Labor and Employment or the Commission in the enforcement
of decisions, awards or orders. (As amended by Section 12, Republic Act No. 6715, March 21, 1989)

3
Art. 31. Bonds. All applicants for license or authority shall post such cash and surety bonds as determined by the Secretary of
Labor to guarantee compliance with prescribed recruitment procedures, rules and regulations, and terms and conditions of
employment as may be appropriate.
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Article 223 of the LC, notwithstanding the fact that it has

already posted a bond under Art. 31 of the LC.
 Cash bond filed by applicants for license or authority is not
subject to garnishment by judgment creditor of agency

ART 32. FEES TO BE PAID BY WORKERS

PLACEMENT FEES
a. For local employment – not exceed 20% of the worker’s 1ST month’s
basic salary.
b. For overseas land-based employment – an amount equivalent to 1
month salary, except where the prevailing system in the country
where the worker is to be deployed, either by law, practice or policy,
does not allow the charging or collection of placement and
recruitment fee.

SERVICE FEES

a. For local employment – charged against the employer which shall

not exceed 20% of the annual salary of the worker.
b. For overseas employment – charged against their principals to cover
services rendered in the recruitment, documentation and placement
of workers or seafarers. The principal shall be responsible for the
payment of the ff:
1. Visa fee
2. Airfare
3. POEA processing fee
4. OWWA membership fee

 The power of the secretary of DOLE to order the suspension of
license carries with it the power to refund such fees as may have
been illegally collected.

 Suspension or cancellation of licenses may include award of

damages to repair the injury caused to its victims

ART. 34. PROHIBITED PRACTICES. It shall be unlawful for any

individual, entity, 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, 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. commit any act of misrepresentation for the purpose of securing a
license or authority under this Code.
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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.
l. Art. 34 is confined to persons engaged in recruitment and
placement of workers for local employment, the penalty of which is
provided in art. 39 of the LC.
m. Acts enumerated constitute illegal recruitment, regardless of
whether or not the offender is a licensee of holder of authority.
n. With regard to persons with regard to persons engaged in
recruitment of workers for overseas employment, the applicable law
is Sec. 6 of the Migrant Workers and Overseas Filipinos Act of 1995.
o. The acts enumerated in Sec. 6 of the MWOFA of 1995 constitute
illegal recruitment regardless of w/n the offender is a licensee of
holder of authority.
p. A mere attempt to induce a worker to quit his job through offering
him another one constitutes a violation of Art. 34.
q. If the purpose of the inducement is to liberate the worker from
oppressive terms and conditions of employment, he will not incur
liability.
r. The pari de licto doctrine shall not apply in cases of overcharging
allowable fees
s. Alteration of employment contracts without the approval of the
Secretary of DOLE or the POEA is prohibited under Article 43 (i) of
the LC.
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 The limitation is intended to insure that the employee is not

placed in a disadvantageous position

ART 35. SUSPENSION AND/OR CANCELLATION OF LICENSE OR

AUTHORITY

GROUNDS FOR SUSPENSION OR CANCELLATION OF LICENSE:

1. Recruitment agency for local employment:

a. Violation of the conditions of license
b. Engaging in acts of misrepresentation for the purpose of
securing a license or the renewal thereof.
c. Continuous operation despite due notice that the license has
expired
d. Incurring two suspensions based on final and executory
orders
e. Engaging in labor-only contracting as defined in Art. 106 of
the LC; etc.

2. Recruitment agency for land-based overseas employment:

a. Deploying under-aged workers

b. Deploying workers to principals not accredited by the POEA
c. Falsifying or altering travel documents of applicant worker in
relation to overseas recruitment activities
d. Withholding of worker’s salaries or remittances without
justifiable reasons or shortchanging of remittances
e. Failure to comply with the undertaking to provide Pre-
Departure Orientation Seminar to workers; etc

3. Manning agency for overseas seafarers:

a. Transfer or change of ownership of a single proprietorship

licensed to engage in overseas employment
b. Falsifying or altering travel documents of applicant seafarer in
relation to recruitment activities
c. Appointing or designating agents, representatives or
employees without prior approval from the POEA
d. Failure to deploy a seafarer within the prescribed period
without valid reason
e. Disregard of orders, notices, and other processes issued by
the POEA

 Penalties imposed, as the case may be:

1. Reprimand
2. Suspension of license (2 mos to 6 mos)
3. Suspension of license (6mos and 1 day to 1 yr)
4. Cancellation of license
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 The penalty shall carry the accessory penalty of refund of the fee
charged or collected from the worker, in case of non-
deployment.

 In addition or in lieu of the penalty of suspension of license, the

POEA may impose the penalty of fine which shall be computed at
P10k for every month of suspension

 manning agency found guilty of committing an offense

regardless of the number or nature of charges, against 5 or more
complainants in a single case shall be imposed the penalty of
cancellation of license.

ART. 38. ILLEGAL RECRUITMENT. (as per RA

8042 otherwise known as the Migrant Workers’ Act of
1995)

ILLEGAL RECRUITMENT - Any act of canvassing, enlisting,

contracting, transporting, utilizing, hiring or procuring workers and
includes referring contract services, promising or advertising for
employment abroad, whether for profit or not when undertaken by a non-
licensee or non-holder of authority.

PROVIDED that any such non-licensee or non-holder of authority

who in any manner, offers or promises for a fee employment abroad to
two or more persons shall be deemed so engaged. It shall likewise
include the commission of prohibited acts whether committed by a non-
licensee or non-holder of authority or a licensee or holder of authority.

PROHIBITED PRACTICES:
(CFGIIEOFSBWF)
C to charge or accept amount beyond amount allowed by law
F to furnish or publish false notice or information in relation to
Recruitment and Placement
G to give any false notice and information or commit any act of
Misrepresentation to secure license or authority
I Induce or attempt to induce workers to quit employment to
offer him another except if the transfer is to liberate a worker
from oppressive terms and conditions of employment (NOTE:
it is not necessary that worker was actually induced or did quit
employment)
I to influence or attempt to influence any person or entity not
to employ any worker who has not applied for employment in
his agency
E to engage in the recruitment or placement of workers in jobs
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harmful to public health or morality or to the dignity of the

Phil.
O Obstruct or attempt to obstruct inspection by Secretary
F Fail to file reports
S Substitute or alter employment contracts
B Become officer or Board member of corporation engaged in
travel agency
W Withhold or deny travel documents before the departure for
monetary or financial consideration other than those
authorized by the Code.
F Failure to actually deploy without valid reason as determined
by the DOLE
F 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

THE QUALIFYING CIRCUMSTANCES THAT WOULD MAKE ILLEGAL

RECRUITMENT AS A CRIME INVOLVING ECONOMIC SABOTAGE ARE :

When committed by a SYNDICATE i.e., if it is carried out by a group

of three (3) or more persons conspiring and confederating with one
another; or

When committed in a LARGE SCALE i.e., if it is committed against

three (3) or more persons

VENUE OF ACTIONS ON ILLEGAL RECRUITMENT:

1. RTC of the province or city where the offense was committed; or

2. where the offended party resides at the time of the commission
of the offense at the option of the complainant

 These circumstances only qualify. They do not define the

offense themselves

 Recruitment and placement activities of agents or

representatives appointed by a licensee, whose appointments
were not previously authorized by the POEA shall likewise
constitute illegal recruitment.

 ART. 38 ( c ) declared unconstitutional since only a judge may

issue search warrant/ warrant of arrest. The Sec. Of Labor may
only recommend not issue. However, Closure of
establishments of illegal recruiters may still be ordered by
Secretary of Labor, same being essentially administrative and
regulatory in nature.(Salazar vs. Achacoso and Marquez)
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PRESCRIPTIVE PERIOD
Illegal Recruitment cases under RA 8042 shall prescribe in five (5)
years Provided, however, That illegal recruitment cases involving
economic sabotage shall prescribe in twenty (20) years.

ART 40. EMPLOYMENT PERMIT OF NON-RESIDENT ALIENS

 Foreigners or domestic and foreign employers desiring to

employ aliens must secure employment permit from the DOLE
upon determination of the non-availability of a person in the
Philippines who is competent, able and willing at the time of
the application to perform the services for which the alien is
desired.
 Foreigners may not be employed in certain nationalized
business.
 a non-resident alien worker and the employer shall bind
themselves to train at least 2 Filipino understudies.

PROHIBITION AGAINST EMPLOYMENT OF ALIENS

Section 2-A of the Anti-Dummy Law prohibits the employment of

aliens in establishment or entities which have under their name or control
a right, franchise, privilege, property or business the exercise or
enjoyment of which property or business the exercise or enjoyment of
which is expressly reserved by the Constitution or the laws to citizens of
the Philippines or to corporations or associations at least 60% of the
capital of which is owned by such citizens.

 EXCEPTIONS TO THE PROHIBITION:

a. where the Secretary of Justice specifically authorizes the

employment of technical personnel; or
b. where the aliens are elected members of the board of directors or
governing body of corporations or association in proportion to their
allowable participation in the capital of such entities.
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ART 45. DEFINITIONS

 MANPOWER - that portion of the nation’s population

which has actual or potential capability to contribute
directly to the production of goods and services.
 ENTREPRENEURSHIP - training for self employment or
assisting individual or small industries within the
purview of this the LC.

TRAINING AND EMPLOYMENT OF SPECIAL

WORKERS
Types of Special Workers:
1. Apprentice
2. Learners
3. Handicapped

ART 58. DEFINITION OF TERMS

 APPRENTICESHIP - practical training on the job supplemented

by related theoretical instruction
 APPRENTICE - worker who is covered by a written
apprenticeship agreement with an individual employer or any
of the entities recognized under this chapter
 APPRENTICEABLE OCCUPATION – any trade, form of
employment or occupation which requires more than 3
months of practical training on the job supplemented by
related theoretical instruction
 APPRENTICESHIP AGREEMENT – an employment contract
wherein the employer binds himself to train the apprentice
and the apprentice in turn accepts the terms of training
 ON-THE-JOB TRAINING – the practical work experience through
actual participation in productive activities given to or
acquired by an apprentice
 HIGHLY TECHNICAL INDUSTRIES – trade, business, enterprise,
industry or other activity, which is engaged in the application
of advanced technology

ART 59. QUALIFICATIONS OF APPRENTICES

Qualifications of an Apprentice

1. at least 15 years of age; provided those who are at least 15 years

of age but less than eighteen may be eligible for apprenticeship
only in non-hazardous occupations and the apprenticeship
agreement shall be signed in his behalf by the parent or
guardian or authorized representative of DOLE.
2. vocational aptitude/ capacity for appropriate test
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3. ability to comprehend and follow oral and written instructions

ART 60. EMPLOYMENT OF APPRENTICES

 Only employers in highly technical industries may hire

apprentices and only in apprenticeable occupations as
determined by the Sec. Of Labor

 Requisites for a VALID APPRENTICESHIP

1. QUALIFICATIONS OF THE APPRENTICE

2. APPRENTICESHIP AGREEMENT DULY EXECUTED AND SIGNED
PROVIDING FOR COMPENSATION NOT LESS THAN 75% OF THE
APPLICABLE MINIMUM WAGE, EXCEPT ON-THE-JOB TRAINING
(OJT)
3. APPRENTICESHIP PROGRAM DULY APPROVED BY DOLE
4. PERIOD OF APPRENTICESHIP SHALL NOT EXCEED 6 MONTHS.