Reviewer for Labor (Finals)

 FULL TIME vs. PART-TIME ACADEMIC PERSONNEL

Manual of Regulations for Private Schools provide:
Full-time academic personnel are those meeting all the following requirements:
a. Who possess at least the minimum academic qualifications prescribed by the
Department under this Manual for all academic personnel;
b. Who are paid monthly or hourly, based on the regular teaching loads as provided for
in the policies, rules and standards of the Department and the school;
c. Whose total working day of not more than eight hours a day is devoted to the school;
d. Who have no other remunerative occupation elsewhere requiring regular hours of
work that will conflict with the working hours in the school; and
e. Who are not teaching full-time in any other educational institution.
All teaching personnel who do not meet the foregoing qualifications are considered part-
time.
 Probation and Regular Status
Section 92. Probationary Period. Subject in all instances to compliance with Department
and school requirements, the probationary period for academic personnel shall not be more
than three (3) consecutive years of satisfactory service for those in the elementary and
secondary levels

Section 93. Regular or Permanent Status. Those who have served the probationary
period shall be made regular or permanent. Full-time teachers who have satisfactorily
completed their probationary period shall be considered regular or permanent.

 What is Overload Honorary?

Overload honorary is additional compensation for overload units an academic personnel
receives.

 Are they entitled to the labor standards provided by law?

Yes, they enjoy the rights under the existing labor laws and social legislation. They only
enjoy certain standards such is the overload honorary due to the condition their work
demands.

 Non-academic personnel
Similar to a regular employee to any establishment.

 WHO ARE WORKING SCHOLARS

students work for the school, college, or university in exchange for the privilege to study
free of charge; provided the students are given real opportunity, including such facilities
as may be reasonable, necessary to finish their chosen court under such arrangement.

 Is there any employee-employer relationship between the school and the working
scholar?
Book II ,Rule X, Section 14 of IRR of Labor code - There is no employer-employee
relationship between students on the one hand, and schools, colleges or universities on
the other
 What is the legal implication for the non-existence of the EE-ER Relationship?
 The establishment has no obligation to pay any type of renumeration other than the
privilege to study free of charge. Such relationship is either created by their agreement or
the curriculum of the student requires him to work.

 Is there an exception to non-payment of compensation?

YES, under the SPED Program of DECS, compensation for working children under
non-formal education is given compensation of 60-40 payment. 60% is paid by the
establishment while the 40% is paid by the government to cover the basic necessities.

 What is CHED Memorandum Order no. 23 series 2009?

Mandates establishments who accept students for their practical training together with
the host education institution to have a robust training and program connected with the
course being taken up by the practicing student.

 APPRENTICESHIP
Article 58. Definition of Terms. As used in this Title:

"Apprenticeship" means practical training on the job supplemented by related theoretical

instruction.

An "apprentice" is a worker who is covered by a written apprenticeship agreement with

an individual employer or any of the entities recognized under this Chapter.

An "apprenticeable occupation" means any trade, form of employment or occupation

which requires more than three (3) months of practical training on the job supplemented
by related theoretical instruction.

"Apprenticeship agreement" is an employment contract wherein the employer binds

himself to train the apprentice and the apprentice in turn accepts the terms of training.

 Qualification to be an apprentice
Be at least fourteen (15) years of age;
Possess vocational aptitude and capacity for appropriate tests; and
Possess the ability to comprehend and follow oral and written instructions.
Trade and industry associations may recommend to the Secretary of Labor appropriate
educational requirements for different occupations.

 Who can employ apprentice?

Only employers in the highly technical industries may employ apprentices and only in
apprenticeable occupations approved by the Secretary of Labor and Employment.

Simply put, an establishment must:

1. Engaged in a business that is highly technical industry or utilizes the application of
advanced technology
2. Must be an apprenticeable occupation as determined.

 What government agency is in charge with determination of an apprenticeable

occupation and supervises anything related thereto
 Under RA 7796 or TESDA Law
SECTION 18. Transfer of the Apprenticeship Program. — The Apprenticeship
Program of the Bureau of Local Employment of the Department of Labor and
Employment shall be transferred to the Authority which shall implement and administer
said program in accordance with existing laws, rules and regulations.

 What are the standards provided by law for an apprentice?

Art. 61 of the Labor Code
o The period of apprenticeship shall not exceed six months.
o Apprenticeship agreements providing for wage rates below the legal minimum wage,
which in no case shall start below 75 percent of the applicable minimum wage, may be
entered into only in accordance with apprenticeship programs duly approved by the
Secretary of Labor and Employment. The Department shall develop standard model
programs of apprenticeship.

 In the absence of the determination by TESDA, there exist and EE-ER Relationship
between the “apprentice” and the establishment (Nitto Enterprises vs. NLRC)
Based on the evidence before us, petitioner did not comply with the requirements of the law.
It is mandated that apprenticeship agreements entered into by the employer and apprentice
shall be entered only in accordance with the apprenticeship program duly approved by the
Minister of Labor and Employment.

Prior approval by the Department of Labor and Employment of the proposed

apprenticeship program is, therefore, a condition sine quo non before an apprenticeship
agreement can be validly entered into.

The act of filing the proposed apprenticeship program with the Department of Labor and
Employment is a preliminary step towards its final approval and does not instantaneously
give rise to an employer-apprentice relationship.

Article 57 of the Labor Code provides that the State aims to "establish a national
apprenticeship program through the participation of employers, workers and government
and non-government agencies" and "to establish apprenticeship standards for the protection
of apprentices." To translate such objectives into existence, prior approval of the DOLE to
any apprenticeship program has to be secured as a condition sine qua non before any such
apprenticeship agreement can be fully enforced. The role of the DOLE in apprenticeship
programs and agreements cannot be debased.

Hence, since the apprenticeship agreement between petitioner and private respondent has no
force and effect in the absence of a valid apprenticeship program duly approved by the
DOLE, private respondent's assertion that he was hired not as an apprentice but as a delivery
boy ("kargador" or "pahinante") deserves credence. He should rightly be considered as a
regular employee of petitioner as defined by Article 280 of the Labor Code

 Is there any incentives for the establishment who hires apprentice?

ART. 71. Deductibility of training costs. - An additional deduction from taxable income of one-
half (1/2) of the value oflabor training expenses incurred for developing the productivity and
efficiency of apprentices shall be granted to the person or enterprise organizing an
apprenticeship program: Provided, That such program is duly recognized by the Department
 ofLabor and Employment: Provided, further, That such deduction shall not exceed ten
(10%) percent of direct labor wage: and Provided, finally, That the person or enterprise who
wishes to avail himself or itself of this incentive should pay his apprentices the minimum
wage.

 LEARNERS
persons hired as trainees in semi-skilled and other industrial occupations which are non-
apprenticeable. Learnership programs must be approved by the Authority.

 Is there any obligation to hire the learner?

ART. 74. When learners may be hired. - Learners may be employed when no experienced
workers are available, the employment of learners is necessary to prevent curtailment of
employment opportunities, and the employment does not create unfair competition in terms
of labor costs or impair or lower working standards.
 Rationale – due to the short period of time and nature of work as compared to
an apprentice, the employer has discretion to absorb the learner pursuant to art.
74 of the labor code.
 Exception to the rule : All learners who have been allowed or suffered to work
during the first two (2) months shall be deemed regular employees if training is
terminated by the employer before the end of the stipulated period through no
fault of the learners.
 What are the special conditions for a learner
ART. 75. Learnership agreement. - Any employer desiring to employ learners shall enter into
a learnership agreement with them, which agreement shall include:

(a) The names and addresses of the learners;

(b) The duration of the learnership period, which shall not exceed three (3) months;
(c) The wages or salary rates of the learners which shall begin at not less than seventy-five
percent (75%) of the applicable minimum wage; and
(d) A commitment to employ the learners if they so desire, as regular employees upon
completion of the learnership. All learners who have been allowed or suffered to work
during the first two (2) months shall be deemed regular employees if training is terminated by
the employer before the end of the stipulated period through no fault of the learners.

The learnership agreement shall be subject to inspection by the Secretary of Labor and
Employment or his duly authorized representative.

 APPRENTICE VS. LEARNERS

Both are under training to acquire skills required, and both are not as fully productive as
as regular workers.

a. Learner is a semi-skilled job traing; Apprentice requires a highly skilled job found
only in a highly technical industry.
b. Learner can be absorbed by the establishment at their discretion; Apprentice cannot
be absorbed
c. Learner has a short period for training due to being non-technical or semi-skilled;
Apprentice requires a longer period because it is a highly technical skill to acquire.
 d. Learner can be in an establishment which is non-technical; Apprentice is only on
highly technical nature

 EMPLOYMENT OF MINOR
RA 7610, Section 12 provides:
Children below fifteen (15) years of age may be employed except:
(1)When a child works directly under the sole responsibility of his parents or legal
guardian and where only members of the employer's family are employed: Provided,
however, That his employment neither endangers his life, safety and health and morals,
nor impairs his normal development: Provided, further, That the parent or legal guardian
shall provide the said minor child with the prescribed primary and/or secondary
education; or

(2) When a child's employment or participation in public & entertainment or

information through cinema, theater, radio or television is essential: Provided, The
employment contract concluded by the child's parent or guardian, with the express
agreement of the child concerned, if possible, and the approval of the Department of
Labor and Employment: Provided, That the following requirements in all instances are
strictly complied with:
(a) The employer shall ensure the protection, health, safety and morals of the child;
(b) the employer shall institute measures to prevent the child's exploitation or
discrimination taking into account the system and level of remuneration, and the
duration and arrangement of working time; and;
(c) The employer shall formulate and implement, subject to the approval and
supervision of competent authorities, a continuing program for training and skill
acquisition of the child.

In the above exceptional cases where any such child may be employed, the employer
shall first secure, before engaging such child, a work permit from the Department of
Labor and Employment which shall ensure observance of the above requirement.

The Department of Labor Employment shall promulgate rules and regulations necessary
for the effective implementation of this Section.

 Working Hours for a child employee

DO 65-04, Section 15 provides:
(a) For a child below 15 years of age, the hours of work shall not be more than twenty
20 hours a week, provided that the work shall not be more than four hours at any
given day;
(b) For a child 15 years of age but below 18, the hours of work shall not be more than
eight hours a day, and in no case beyond 40 hours a week; and
(c) No child below 15 years of age shall be allowed to work between eight o’ clock in
the evening and six o’clock in the morning of the following day and no child 15
years of age but below 18 shall be allowed to work between ten o’clock in the
evening and six o’ clock in the morning of the following day.

Sleeping time as well as travel time of a child engaged in public entertainment or

information from his/her residence to his/her workplace shall not be included as hours
 worked without prejudice to the application of existing rules on employees
compensation.

 Income management
SECTION 18. Preservation of the Working Child’s Income – The income of the
working child shall be deposited in a Trust Fund or Savings Account set up or opened
under his/her name by the administrator of such income, subject to the conditions set
forth in this section and the Civil Code.

The administrator shall make an accounting of all wages, salaries, earnings and other
income of the child. When the child’s gross earnings in a year amount to at least Two
Hundred Thousand Pesos (P200,000.00), the administrator shall set up a Trust Fund for
the child where at least thirty percent (30%) of such amount shall be deposited.

For a child earning less than P200,000.00 a year, at least thirty percent (30%) of his/her
income may be deposited in a Savings Account each time the child receives an income.

The accumulated savings shall be immediately transferred to the Trust Fund for the child
should his/her total gross income for a given year is at least Two Hundred Thousand
Pesos (P200,000.00).

The child shall have full control over the Trust Fund upon reaching the age of majority.
The administrator shall render a semi-annual accounting of the Trust Fund to the
concerned Regional Office of the Department. He or she shall be required to submit,
whether actual or on-line, a verified financial statement in an appropriate form
prescribed by the Department.

 KASAMBAHAY LAW

SEC. 4. Definition of Terms. – As used in this Act, the term:

(a) Debt bondage refers to the rendering of service by the domestic worker as security or payment for a debt
where the length and nature of service is not clearly defined or when the value of the service is not
reasonably applied in the payment of the debt.

(b) Deployment expenses refers to expenses that are directly used for the transfer of the domestic worker
from place of origin to the place of work covering the cost of transportation. Advances or loans by the
domestic worker are not included in the definition of deployment expenses.

(c) Domestic work refers to work performed in or for a household or households.

(d) Domestic worker or “Kasambahay” refers to any person engaged in domestic work within an
employment relationship such as, but not limited to, the following: general househelp, nursemaid or
“yaya”, cook, gardener, or laundry person, but shall exclude any person who performs domestic work
only occasionally or sporadically and not on an occupational basis.

The term shall not include children who are under foster family arrangement, and are provided access to
education and given an allowance incidental to education, i.e. “baon”, transportation, school projects and
school activities.
(e) Employer refers to any person who engages and controls the services of a domestic worker and is party
to the employment contract.

(f) Household refers to the immediate members of the family or the occupants of the house that are directly
provided services by the domestic worker.

(g) Private Employment Agency (PEA) refers to any individual, legitimate partnership, corporation or entity
licensed to engage in the recruitment and placement of domestic workers for local employment.

(h) Working children, as used under this Act, refers to domestic workers who are fifteen (15) years old and
above but below eighteen (18) years old.

ARTICLE II

RIGHTS AND PRIVILEGES

SEC. 5. Standard of Treatment. – The employer or any member of the household shall not subject a
domestic worker or “kasambahay” to any kind of abuse nor inflict any form of physical violence or
harassment or any act tending to degrade the dignity of a domestic worker.

SEC. 6. Board, Lodging and Medical Attendance. – The employer shall provide for the basic necessities of the
domestic worker to include at least three (3) adequate meals a day and humane sleeping arrangements that
ensure safety.

The employer shall provide appropriate rest and assistance to the domestic worker in case of illnesses and
injuries sustained during service without loss of benefits.

At no instance shall the employer withdraw or hold in abeyance the provision of these basic necessities as
punishment or disciplinary action to the domestic worker.

SEC. 7. Guarantee of Privacy. – Respect for the privacy of the domestic worker shall be guaranteed at all
times and shall extend to all forms of communication and personal effects. This guarantee equally
recognizes that the domestic worker is obliged to render satisfactory service at all times.

SEC. 8. Access to Outside Communication. – The employer shall grant the domestic worker access to outside
communication during free time: Provided, That in case of emergency, access to communication shall be
granted even during work time. Should the domestic worker make use of the employer’s telephone or
other communication facilities, the costs shall be borne by the domestic worker, unless such charges are
waived by the employer.

SEC. 9. Right to Education and Training. – The employer shall afford the domestic worker the opportunity
to finish basic education and may allow access to alternative learning systems and, as far as practicable,
higher education or technical and vocational training. The employer shall adjust the work schedule of the
domestic worker to allow such access to education or training without hampering the services required by
the employer.

SEC. 10. Prohibition Against Privileged Information. – All communication and information pertaining to the
employer or members of the household shall be treated as privileged and confidential, and shall not be
publicly disclosed by the domestic worker during and after employment. Such privileged information shall
be inadmissible in evidence except when the suit involves the employer or any member of the household
in a crime against persons, property, personal liberty and security, and chastity.

ARTICLE III
 PRE-EMPLOYMENT

SEC. 11. Employment Contract. – An employment contract shall be executed by and between the domestic
worker and the employer before the commencement of the service in a language or dialect understood by
both the domestic worker and the employer. The domestic worker shall be provided a copy of the duly
signed employment contract which must include the following:

(a) Duties and responsibilities of the domestic worker;

(b) Period of employment;

(c) Compensation;

(d) Authorized deductions;

(e) Hours of work and proportionate additional payment;

(f) Rest days and allowable leaves;

(g) Board, lodging and medical attention;

(h) Agreements on deployment expenses, if any;

(i) Loan agreement;

(j) Termination of employment; and

(k) Any other lawful condition agreed upon by both parties.

The Department of Labor and Employment (DOLE) shall develop a model employment contract for
domestic workers which shall, at all times, be made available free of charge to domestic workers,
employers, representative organizations and the general public. The DOLE shall widely disseminate
information to domestic workers and employers on the use of such model employment contract.

In cases where the employment of the domestic worker is facilitated through a private employment
agency, the PEA shall keep a copy of all employment contracts of domestic workers and shall be made
available for verification and inspection by the DOLE.

SEC. 12. Pre-Employment Requirement. – Prior to the execution of the employment contract, the employer
may require the following from the domestic worker:

(a) Medical certificate or a health certificate issued by a local government health officer;

(b) Barangay and police clearance;

(c) National Bureau of Investigation (NBI) clearance; and

(d) Duly authenticated birth certificate or if not available, any other document showing the age of the
domestic worker such as voter’s identification card, baptismal record or passport.

However, Section 12(a), (b), (c) and (d) shall be standard requirements when the employment of the
domestic worker is facilitated through the PEA.
The cost of the foregoing shall be borne by the prospective employer or agency, as the case may be.

SEC. 13. Recruitment and Finder’s Fees. – Regardless of whether the domestic worker was hired through a
private employment agency or a third party, no share in the recruitment or finder’s fees shall be charged
against the domestic worker by the said private employment agency or third party.

SEC. 14. Deposits for Loss or Damage. – It shall be unlawful for the employer or any other person to require
a domestic worker to make deposits from which deductions shall be made for the reimbursement of loss
or damage to tools, materials, furniture and equipment in the household.

SEC. 15. Prohibition on Debt Bondage. – It shall be unlawful for the employer or any person acting on behalf
of the employer to place the domestic worker under debt bondage.

SEC. 16. Employment Age of Domestic Workers. – It shall be unlawful to employ any person below fifteen
(15) years of age as a domestic worker. Employment of working children, as defined under this Act, shall
be subject to the provisionsof Section 10(A), paragraph 2 of Section 12-A, paragraph 4 of Section 12-D,
and Section 13 of Republic Act No. 7610, as amended, otherwise known as the “Special Protection of
Children Against Child Abuse, Exploitation and Discrimination Act”.

Working children shall be entitled to minimum wage, and all benefits provided under this Act.

Any employer who has been sentenced by a court of law of any offense against a working child under this
Act shall be meted out with a penalty one degree higher and shall be prohibited from hiring a working
child.

SEC. 17. Employer’s Reportorial Duties. – The employers shall register all domestic workers under their
employment in the Registry of Domestic Workers in the barangay where the employer’s residence is
located. The Department of the Interior and Local Government (DILG) shall, in coordination with the
DOLE, formulate a registration system for this purpose.

SEC. 18. Skills Training, Assessment and Certification. – To ensure productivity and assure quality services, the
DOLE, through the Technical Education and Skills Development Authority (TESDA), shall facilitate
access of domestic workers to efficient training, assessment and certification based on a duly promulgated
training regulation.

ARTICLE IV

EMPLOYMENT – TERMS AND CONDITIONS

SEC. 19. Health and Safety. – The employer shall safeguard the health and safety of the domestic worker in
accordance with laws, rules and regulations, with due consideration of the peculiar nature of domestic
work.

SEC. 20. Daily Rest Period. – The domestic worker shall be entitled to an aggregate daily rest period of
eight (8) hours per day.

SEC. 21. Weekly Rest Period. – The domestic worker shall be entitled to at least twenty-four (24)
consecutive hours of rest in a week. The employer and the domestic worker shall agree in writing on the
schedule of the weekly rest day of the domestic worker: Provided, That the employer shall respect the
preference of the domestic worker as to the weekly rest day when such preference is based on religious
grounds. Nothing in this provision shall deprive the domestic worker and the employer from agreeing to
the following:

(a) Offsetting a day of absence with a particular rest day;

(b) Waiving a particular rest day in return for an equivalent daily rate of pay;

(c) Accumulating rest days not exceeding five (5) days; or

(d) Other similar arrangements.

SEC. 22. Assignment to Nonhousehold Work. – No domestic worker shall be assigned to work in a
commercial, industrial or agricultural enterprise at a wage rate lower than that provided for agricultural or
nonagricultural workers. In such cases, the domestic worker shall be paid the applicable minimum wage.

SEC. 23. Extent of Duty. – The domestic worker and the employer may mutually agree for the former to
temporarily perform a task that is outside the latter’s household for the benefit of another household.
However, any liability that will be incurred by the domestic worker on account of such arrangement shall
be borne by the original employer. In addition, such work performed outside the household shall entitle
the domestic worker to an additional payment of not less than the existing minimum wage rate of a
domestic worker. It shall be unlawful for the original employer to charge any amount from the said
household where the service of the domestic worker was temporarily performed.

SEC 24. Minimum Wage. – The minimum wage of domestic workers shall not be less than the following:

(a) Two thousand five hundred pesos (P2,500.00) a month for those employed in the National Capital
Region (NCR);

(b) Two thousand pesos (P2,000.00) a month for those employed in chartered cities and first class
municipalities; and

(c) One thousand five hundred pesos (P1,500.00) a month for those employed in other municipalities.

After one (1) year from the effectivity of this Act, and periodically thereafter, the Regional Tripartite and
Productivity Wage Boards (RTPWBs) shall review, and if proper, determine and adjust the minimum
wage rates of domestic workers.

SEC 25. Payment of Wages. – Payment of wages shall be made on time directly to the domestic worker to
whom they are due in cash at least once a month. The employer, unless allowed by the domestic worker
through a written consent, shall make no deductions from the wages other than that which is mandated
by law. No employer shall pay the wages of a domestic worker by means of promissory notes, vouchers,
coupons, tokens, tickets, chits, or any object other than the cash wage as provided for under this Act.

The domestic worker is entitled to a thirteenth month pay as provided for by law.

SEC. 26. Pay Slip. – The employer shall at all times provide the domestic worker with a copy of the pay
slip containing the amount paid in cash every pay day, and indicating all deductions made, if any. The
copies of the pay slip shall be kept by the employer for a period of three (3) years.

SEC. 27. Prohibition on Interference in the Disposal of Wages. – It shall be unlawful for the employer to interfere
with the freedom of any domestic worker to dispose of the latter’s wages. The employer shall not force,
compel or oblige the domestic worker to purchase merchandise, commodities or other properties from
the employer or from any other person, or otherwise make use of any store or services of such employer
or any other person.

SEC 28. Prohibition Against Withholding of Wages. – It shall be unlawful for an employer, directly or
indirectly, to withhold the wages of the domestic worker. If the domestic worker leaves without any
justifiable reason, any unpaid salary for a period not exceeding fifteen (15) days shall be forfeited.
Likewise, the employer shall not induce the domestic worker to give up any part of the wages by force,
stealth, intimidation, threat or by any other means whatsoever.

SEC. 29. Leave Benefits. – A domestic worker who has rendered at least one (1) year of service shall be
entitled to an annual service incentive leave of five (5) days with pay: Provided, That any unused portion of
said annual leave shall not be cumulative or carried over to the succeeding years. Unused leaves shall not
be convertible to cash.

SEC. 30. Social and Other Benefits. – A domestic worker who has rendered at least one (1) month of service
shall be covered by the Social Security System (SSS), the Philippine Health Insurance Corporation
(PhilHealth), and the Home Development Mutual Fund or Pag-IBIG, and shall be entitled to all the
benefits in accordance with the pertinent provisions provided by law.

Premium payments or contributions shall be shouldered by the employer. However, if the domestic
worker is receiving a wage of Five thousand pesos (P5,000.00) and above per month, the domestic
worker shall pay the proportionate share in the premium payments or contributions, as provided by law.

The domestic worker shall be entitled to all other benefits under existing laws.

SEC. 31. Rescue and Rehabilitation of Abused Domestic Workers. – Any abused or exploited domestic worker
shall be immediately rescued by a municipal or city social welfare officer or a social welfare officer from
the Department of Social Welfare and Development (DSWD) in coordination with the concerned
barangay officials. The DSWD and the DILG shall develop a standard operating procedure for the rescue
and rehabilitation of abused domestic workers, and in coordination with the DOLE, for possible
subsequent job placement.

ARTICLE V

POST EMPLOYMENT

SEC. 32. Termination of Service. – Neither the domestic worker nor the employer may terminate the
contract before the expiration of the term except for grounds provided for in Sections 33 and 34 of this
Act. If the domestic worker is unjustly dismissed, the domestic worker shall be paid the compensation
already earned plus the equivalent of fifteen (15) days work by way of indemnity. If the domestic worker
leaves without justifiable reason, any unpaid salary due not exceeding the equivalent fifteen (15) days
work shall be forfeited. In addition, the employer may recover from the domestic worker costs incurred
related to the deployment expenses, if any: Provided, That the service has been terminated within six (6)
months from the domestic worker’s employment.

If the duration of the domestic service is not determined either in stipulation or by the nature of the
service, the employer or the domestic worker may give notice to end the working relationship five (5)
days before the intended termination of the service.

The domestic worker and the employer may mutually agree upon written notice to pre-terminate the
contract of employment to end the employment relationship.

SEC. 33. Termination Initiated by the Domestic Worker. – The domestic worker may terminate the
employment relationship at any time before the expiration of the contract for any of the following causes:

(a) Verbal or emotional abuse of the domestic worker by the employer or any member of the household;

(b) Inhuman treatment including physical abuse of the domestic worker by the employer or any member
of the household;
(c) Commission of a crime or offense against the domestic worker by the employer or any member of the
household;

(d) Violation by the employer of the terms and conditions of the employment contract and other
standards set forth under this law;

(e) Any disease prejudicial to the health of the domestic worker, the employer, or member/s of the
household; and

(f) Other causes analogous to the foregoing.

SEC. 34. Termination Initiated by the Employer. – An employer may terminate the services of the domestic
worker at any time before the expiration of the contract, for any of the following causes:

(a) Misconduct or willful disobedience by the domestic worker of the lawful order of the employer in
connection with the former’s work;

(b) Gross or habitual neglect or inefficiency by the domestic worker in the performance of duties;

(c) Fraud or willful breach of the trust reposed by the employer on the domestic worker;

(d) Commission of a crime or offense by the domestic worker against the person of the employer or any
immediate member of the employer’s family;

(e) Violation by the domestic worker of the terms and conditions of the employment contract and other
standards set forth under this law;

(f) Any disease prejudicial to the health of the domestic worker, the employer, or member/s of the
household; and

(g) Other causes analogous to the foregoing.

SEC. 35. Employment Certification. – Upon the severance of the employment relationship, the employer
shall issue the domestic worker within five (5) days from request a certificate of employment indicating
the nature, duration of the service and work performance.

ARTICLE VI

PRIVATE EMPLOYMENT AGENCIES

SEC. 36. Regulation of Private Employment Agencies (PEAs). – The DOLE shall, through a system of licensing
and regulation, ensure the protection of domestic workers hired through the PEAs.

The PEA shall be jointly and severally liable with the employer for all the wages, wage-related benefits,
and other benefits due a domestic worker.

The provision of Presidential Decree No. 442, as amended, otherwise known as the “Labor Code of the
Philippines”, on qualifications of the PEAs with regard to nationality, networth, owners and officers,
office space and other requirements, as well as nontransferability of license and commission of prohibited
practices, shall apply.

In addition, PEAs shall have the following responsibilities:

(a) Ensure that domestic workers are not charged or levied any recruitment or placement fees;

(b) Ensure that the employment agreement between the domestic worker and the employer stipulates the
terms and conditions of employment and all the benefits prescribed by this Act;

(c) Provide a pre-employment orientation briefing to the domestic worker and the employer about their
rights and responsibilities in accordance with this Act;

(d) Keep copies of employment contracts and agreements pertaining to recruited domestic workers which
shall be made available during inspections or whenever required by the DOLE or local government
officials;

(e) Assist domestic workers with respect to complaints or grievances against their employers; and

(f) Cooperate with government agencies in rescue operations involving abused or exploited domestic
workers.

ARTICLE VII

SETTLEMENT OF DISPUTES

SEC. 37. Mechanism for Settlement of Disputes. – All labor-related disputes shall be elevated to the DOLE
Regional Office having jurisdiction over the workplace without prejudice to the filing of a civil or criminal
action in appropriate cases. The DOLE Regional Office shall exhaust all conciliation and mediation
efforts before a decision shall be rendered.

Ordinary crimes or offenses committed under the Revised Penal Code and other special penal laws by
either party shall be filed with the regular courts.

 EMPLOYMENT OF WOMEN
 Stipulation of Marriage
Article 136. Stipulation against marriage. It shall be unlawful for an employer to require as a
condition of employment or continuation of employment that a woman employee shall not
get married, or to stipulate expressly or tacitly that upon getting married, a woman employee
shall be deemed resigned or separated, or to actually dismiss, discharge, discriminate or
otherwise prejudice a woman employee merely by reason of her marriage.
 Philippine Telegraph and Telephone Co. vs. NLRC
In the case at bar, petitioner's policy of not accepting or considering as
disqualified from work any woman worker who contracts marriage runs afoul of
the test of, and the right against, discrimination, afforded all women workers by
our labor laws and by no less than the Constitution. Contrary to petitioner's
assertion that it dismissed private respondent from employment on account of
her dishonesty, the record discloses clearly that her ties with the company were
dissolved principally because of the company's policy that married women are
not qualified for employment in PT & T, and not merely because of her
supposed acts of dishonesty.

Petitioner's policy is not only in derogation of the provisions of Article 136 of

the Labor Code on the right of a woman to be free from any kind of stipulation
against marriage in connection with her employment, but it likewise assaults
good morals and public policy, tending as it does to deprive a woman of the
 freedom to choose her status, a privilege that by all accounts inheres in the
individual as an intangible and inalienable right. 38 Hence, while it is true that the
parties to a contract may establish any agreements, terms, and conditions that
they may deem convenient, the same should not be contrary to law, morals,
good customs, public order, or public policy. 39 Carried to its logical
consequences, it may even be said that petitioner's policy against legitimate
marital bonds would encourage illicit or common-law relations and subvert the
sacrament of marriage.

 Religious Morality is not a ground to dismiss an employee (Leus vs. St. Scholastic)
The morality referred to in the law is public and necessarily secular, not religiousx x x.
"Religious teachings as expressed in public debate may influence the civil public order but
public moral disputes may be resolved only on grounds articulable in secular terms."
Otherwise, if government relies upon religious beliefs in formulating public policies and
morals, the resulting policies and morals would require conformity to what some might
regard as religious programs or agenda.The non-believers would therefore be compelled to
conform to a standard of conduct buttressed by a religious belief, i.e., to a "compelled
religion," anathema to religious freedom. Likewise, if government based its actions upon
religious beliefs, it would tacitly approve or endorse that belief and thereby also tacitly
disapprove contrary religious or non-religious views that would not support the policy. As a
result, government will not provide full religious freedom for all its citizens, or even make it
appear that those whose beliefs are disapproved are second-class citizens. Expansive
religious freedom therefore requires that government be neutral in matters of religion;
governmental reliance upon religious justification is inconsistent with this policy of neutrality.

In other words, government action, including its proscription of immorality as expressed in

criminal law like concubinage, must have a secular purpose. That is, the government
proscribes this conduct because it is "detrimental (or dangerous) to those conditions upon
which depend the existence and progress of human society" and not because the conduct is
proscribed by the beliefs of one religion or the other.

Admittedly, the petitioner is employed in an educational institution where the teachings and
doctrines of the Catholic Church, including that on pre-marital sexual relations, is strictly
upheld and taught to the students. That her indiscretion, which resulted in her pregnancy out
of wedlock, is anathema to the doctrines of the Catholic Church. However, viewed against
the prevailing norms of conduct, the petitioner’s conduct cannot be considered as disgraceful
or immoral; such conduct is not denounced by public and secular morality. It may be an
unusual arrangement, but it certainly is not disgraceful or immoral within the contemplation
of the law.

To stress, pre-marital sexual relations between two consenting adults who have no
impediment to marry each other, and, consequently, conceiving a child out of wedlock,
gauged from a purely public and secular view of morality, does not amount to a disgraceful
or immoral conduct under Section 94(e) of the 1992 MRPS.

Accordingly, the labor tribunals erred in upholding the validity of the petitioner’s dismissal.
The labor tribunals arbitrarily relied solely on the circumstances surrounding the petitioner’s
pregnancy and its supposed effect on SSCW and its students without evaluating whether the
petitioner’s conduct is indeed considered disgraceful or immoral in view of the prevailing
 norms of conduct. In this regard, the labor tribunals’ respective haphazard evaluation of the
evidence amounts to grave abuse of discretion, which the Court will rectify.

 Is marrying someone from the competitor establishment a valid ground for

dismissal? (Tecson vs, Glaxo)
In case of a constructive dismissal, the employer has the burden of proving that the transfer
and demotion of an employee are for valid and legitimate grounds, i.e., that the transfer is not
unreasonable, inconvenient, or prejudicial to the employee; nor does it involve a demotion in
rank or a diminution of his salaries, privileges and other benefits.

Assuming that there is a company policy allowing the dismissal, constructive13 or otherwise,
of an employee by reason of the employee's marriage or choice of spouse, such policy alone
cannot justify the dismissal. The employer will have to establish not only the existence of the
policy, but the presence of any of the grounds enumerated in Article 282. Our Constitution
and Labor Code guarantee an employee's security of tenure. For regular employees as
defined under the Labor Code, security of tenure is assured by the prohibition against
termination except for the causes enumerated under Articles 282 to 284.

Thus, the validity of a company policy on marriage such as that maintained by Glaxo would
not necessarily be determinative of the question of whether an employee who violated such
policy may be terminated. Still, there may be instances wherein the validity of the policy,
whether standing by itself or as incorporated into an employment contract, would be the
decisive factor. Such may arise if for example, the employee is sought to be dismissed on the
ground of loss of confidence,14 and such loss of confidence developed due to the marriage
to an employee from a rival company. In such cases wherein it is necessary to pass judgment
on the employer's policy itself, the following points should be considered

 Is marrying a co-employee a valid ground for dismissal (Star Paper Corp. vs. Simbol)
It is significant to note that in the case at bar, respondents were hired after they were found
fit for the job, but were asked to resign when they married a co-employee. Petitioners failed
to show how the marriage of Simbol, then a Sheeting Machine Operator, to Alma Dayrit,
then an employee of the Repacking Section, could be detrimental to its business operations.
Neither did petitioners explain how this detriment will happen in the case of Wilfreda Comia,
then a Production Helper in the Selecting Department, who married Howard Comia, then a
helper in the cutter-machine. The policy is premised on the mere fear that employees married
to each other will be less efficient. If we uphold the questioned rule without valid
justification, the employer can create policies based on an unproven presumption of a
perceived danger at the expense of an employee’s right to security of tenure.

Petitioners contend that their policy will apply only when one employee marries a co-
employee, but they are free to marry persons other than co-employees. The questioned
policy may not facially violate Article 136 of the Labor Code but it creates a disproportionate
effect and under the disparate impact theory, the only way it could pass judicial scrutiny is a
showing that it is reasonable despite the discriminatory, albeit disproportionate, effect. The
failure of petitioners to prove a legitimate business concern in imposing the questioned
policy cannot prejudice the employee’s right to be free from arbitrary discrimination based
upon stereotypes of married persons working together in one company.40
 Lastly, the absence of a statute expressly prohibiting marital discrimination in our jurisdiction
cannot benefit the petitioners. The protection given to labor in our jurisdiction is vast and
extensive that we cannot prudently draw inferences from the legislature’s silence41 that
married persons are not protected under our Constitution and declare valid a policy based on
a prejudice or stereotype. Thus, for failure of petitioners to present undisputed proof of a
reasonable business necessity, we rule that the questioned policy is an invalid exercise of
management prerogative. Corollarily, the issue as to whether respondents Simbol and Comia
resigned voluntarily has become moot and academic.

 BONA FIDE OCCUPATIONAL QUALIFICATION

As a general rule, the state shall promote equal work opportunities to all. By way of an
exception, we have BFOQ

A job applicant or worker who does not possess a qualification, may be disqualified on
that basis provided that;
(1) that the employment qualification is reasonably related to the essential operation of
the job involved; and,
(2) that there is a factual basis for believing that all or substantially all persons meeting
the qualification would be unable to properly perform the duties of the job.

 ANTI SEXUAL HARASSMENT

RA 7877 provides:
SECTION 3. Work, Education or Training -Related, Sexual Harassment Defined. -
Work, education or training-related sexual harassment is committed by an employer,
employee, manager, supervisor, agent of the employer, teacher, instructor, professor,
coach, trainor, or any other person who, having authority, influence or moral
ascendancy over another in a work or training or education environment, demands,
requests or otherwise requires any sexual favor from the other, regardless of whether
the demand, request or requirement for submission is accepted by the object of said
Act.

(a) In a work-related or employment environment, sexual harassment is committed

when:
(1) The sexual favor is made as a condition in the hiring or in the
employment, re-employment or continued employment of said individual, or in granting
said individual favorable compensation, terms of conditions, promotions, or privileges;
or the refusal to grant the sexual favor results in limiting, segregating or classifying the
employee which in any way would discriminate, deprive ordiminish employment
opportunities or otherwise adversely affect said employee;
(2) The above acts would impair the employee's rights or privileges under
existing labor laws; or
(3) The above acts would result in an intimidating, hostile, or offensive
environment for the employee.

(b) In an education or training environment, sexual harassment is committed:

(1) Against one who is under the care, custody or supervision of the offender;
(2) Against one whose education, training, apprenticeship or tutorship is
entrusted to the offender;
 (3) When the sexual favor is made a condition to the giving of a passing
grade, or the granting of honors and scholarships, or the payment of a stipend,
allowance or other benefits, privileges, or consideration; or
(4) When the sexual advances result in an intimidating, hostile or offensive
environment for the student, trainee or apprentice.

Any person who directs or induces another to commit any act of sexual harassment
as herein defined, or who cooperates in the commission thereof by another without
which it would not have been committed, shall also be held liable under this Act.

 EMPLOYMENT OF HOMEWORKERS (self-explanatory)

Article 153. Regulation of industrial homeworkers. The employment of industrial homeworkers
and field personnel shall be regulated by the government through the appropriate regulations
issued by the Secretary of Labor and Employment to ensure the general welfare and protection
of homeworkers and field personnel and the industries employing them.

Article 154. Regulations of Secretary of Labor. The regulations or orders to be issued pursuant to
this Chapter shall be designed to assure the minimum terms and conditions of employment
applicable to the industrial homeworkers or field personnel involved.

Article 155. Distribution of homework. For purposes of this Chapter, the "employer" of
homeworkers includes any person, natural or artificial who, for his account or benefit, or on
behalf of any person residing outside the country, directly or indirectly, or through an employee,
agent contractor, sub-contractor or any other person:

Delivers, or causes to be delivered, any goods, articles or materials to be processed or fabricated

in or about a home and thereafter to be returned or to be disposed of or distributed in
accordance with his directions; or

Sells any goods, articles or materials to be processed or fabricated in or about a home and then
rebuys them after such processing or fabrication, either by himself or through some other
person.

 NIGHT WORKERS
 Department order no. 119-12
o Any employed person whose work covers the period from 10pm to 6am provided
the worker performs less than seven hours consecutive work
o Transfer
 Night workers who are certified by competent public physician, as unfit to
render night work, due to health reasons, shall be transferred to a job for
which they are fit to work whenever practicable. The transfer of the EE
must be to a similar or equivalent position and in good faith
 If such transfer is not practicable or the worker are unable to render night
for continuous period of not less than six months upon the certification,
this worker shall be granted the same company benefit similar to others
who are unable to work due to illness
 A night worker certified as temporarily unfit for night work for a period of
less than six months shall be given the same protection against dismissal or
 notice of dismissal as other workers who are prevented from working for
health reasons.
 After six months or certification that it cannot be cured, the worker can be
separated from work based on authorized cause.
 Simply put, you are entitled to avail all leave credits, after satisfaction you
are on leave without pay within the same 6month period to recover.
Exceeding 6mnths without recovery or certification that it cannot be
recovered in less than six months you are terminated for authorize cause.

 MEDICAL, DENTAL AND OCCUPATIONAL SAFETY (self-explanatory)

Article 156. First-aid treatment. Every employer shall keep in his establishment such first-aid
medicines and equipment as the nature and conditions of work may require, in accordance with
such regulations as the Department of Labor and Employment shall prescribe.

The employer shall take steps for the training of a sufficient number of employees in first-aid
treatment.

Article 157. Emergency medical and dental services. It shall be the duty of every employer to
furnish his employees in any locality with free medical and dental attendance and facilities
consisting of:

The services of a full-time registered nurse when the number of employees exceeds fifty (50) but
not more than two hundred (200) except when the employer does not maintain hazardous
workplaces, in which case, the services of a graduate first-aider shall be provided for the
protection of workers, where no registered nurse is available. The Secretary of Labor and
Employment shall provide by appropriate regulations, the services that shall be required where
the number of employees does not exceed fifty (50) and shall determine by appropriate order,
hazardous workplaces for purposes of this Article;

The services of a full-time registered nurse, a part-time physician and dentist, and an emergency
clinic, when the number of employees exceeds two hundred (200) but not more than three
hundred (300); and

The services of a full-time physician, dentist and a full-time registered nurse as well as a dental
clinic and an infirmary or emergency hospital with one bed capacity for every one hundred (100)
employees when the number of employees exceeds three hundred (300).

In cases of hazardous workplaces, no employer shall engage the services of a physician or a

dentist who cannot stay in the premises of the establishment for at least two (2) hours, in the case
of those engaged on part-time basis, and not less than eight (8) hours, in the case of those
employed on full-time basis. Where the undertaking is non-hazardous in nature, the physician
and dentist may be engaged on retainer basis, subject to such regulations as the Secretary of
Labor and Employment may prescribe to insure immediate availability of medical and dental
treatment and attendance in case of emergency. (As amended by Presidential Decree NO. 570-A,
Section 26)

Article 158. When emergency hospital not required. The requirement for an emergency hospital
or dental clinic shall not be applicable in case there is a hospital or dental clinic which is
 accessible from the employer’s establishment and he makes arrangement for the reservation
therein of the necessary beds and dental facilities for the use of his employees.

Article 159. Health program. The physician engaged by an employer shall, in addition to his
duties under this Chapter, develop and implement a comprehensive occupational health program
for the benefit of the employees of his employer.

Article 160. Qualifications of health personnel. The physicians, dentists and nurses employed by
employers pursuant to this Chapter shall have the necessary training in industrial medicine and
occupational safety and health. The Secretary of Labor and Employment, in consultation with
industrial, medical, and occupational safety and health associations, shall establish the
qualifications, criteria and conditions of employment of such health personnel.

Article 161. Assistance of employer. It shall be the duty of any employer to provide all the
necessary assistance to ensure the adequate and immediate medical and dental attendance and
treatment to an injured or sick employee in case of emergency.

 EMPLOYEE’S COMPENSATION AND STATE INSURANCE FUND

 What is EC Law
Law providing for compensation for loss of income resulting from injury, disablement,
or death of workmen through work related accident

 OLD law vs. NEW law

Under the old law, the burden of proof that the illness did not arise from employment or
at least aggravated by it, fell on the ER’s shoulder. The EE had the duty to show
connection

Under the new law, in order for the EE to be entitled to sickness or death benefits, the
sickness or death must either be: (a) occupational disease listed, (b) illness caused by
employment subject to proof that the risk of contracting the same is increased by
working conditions.

 What is State Insurance fund?

The ER’s monthly contribution, from which compensation to be paid to claimant
employee or the employee’s dependents in case the employee suffers from a work-
connected injury or disease

 Process for claiming

EE must notify ER within 5 days, and ER in return must record the notice. Within 5
days from recording, ER reports to the system the sickness, injury or death. System then
decides whether it is compensable or not.

Any adverse finding of the system is appealable to ECC, and the decision of ECC is
appealable to CA via rule 43 and appealable to SC via rule 45

 Liberal interpretation rule

 EC law should adopt a liberal attitude in favour of the EE in deciding the claim for
compensability, especially where there is some basis in the facts for inferring a work-
connection to the accident

Giving meaning and substance to the spirit of law embodied in Art. 4 of the LC.

 To be compensable
The following must be present in order for an injury to be compensable;
1. The EE must have been injured at the place where his work requires him to be;
2. While performing his official functions
3. If the injury is sustained elsewhere, the EE must have been executing an order for
the ER
 Arising out and in the course of meaning
o Arising out – employment is the contributing cause without which the accident
would never actually happened, whether the risk in inherent or not, as long as
employment is the proximate cause of the injury.
o In the course of – the injury sustained must arise during the course of employment
or any incident provided that there is a reasonable margin of time and space where
the work is done.
 24 hrs duty doctrine or the marked men doctrine
Any employee of the law enforcement including firemen are considered to
be in duty for 24hr provided that they are performing work necessarily
related to the nature of their work
o Hinoguin vs. ECC
Indeed, it appears to us that a soldier should be presumed to be
on official duty unless he is shown to have clearly and
unequivocally put aside that status or condition temporarily by,
e.g., going on an approved vacation leave. 8 Even vacation
leave may, it should be remembered, be preterminated by
superior orders.

More generally, a soldier in the Armed Forces must accept

certain risks, for instance, that he will be fired upon by forces
hostile to the State or the Government. That is not, of course,
the only ask that he is compelled to accept by the very nature
of his occupation or profession as a soldier. Most of the
persons around him are necessarily also members of the Armed
Forces who carry firearms, too. In other words, a soldier must
also assume the risk of being accidentally fired upon by his
fellow soldiers. This is reasonably regarded as a hazard or risk
inherent in his employment as a soldier.

o Exception to 24hrs doctrine (GSIS vs. Alegre)

Taking together jurisprudence and the pertinent guidelines of
the ECC with respect to claims for death benefits, namely: (a)
that the employee must be at the place where his work requires
him to be; (b) that the employee must have been performing
his official functions; and (c) that if the injury is sustained
elsewhere, the employee must have been executing an order for
 the employer, it is not difficult to understand then why SPO2
Alegre's widow should be denied the claims otherwise due her.
Obviously, the matter SPO2 Alegre was attending to at the
time he met his death, that of ferrying passengers for a fee, was
intrinsically private and unofficial in nature proceeding as it did
from no particular directive or permission of his superior
officer. In the absence of such prior authority as in the cases
of Hinoguin and Nitura, or peacekeeping nature of the act
attended to by the policeman at the time he died even without
the explicit permission or directive of a superior officer, as in
the case of P/Sgt. Alvaran, there is no justification for holding
that SPO2 Alegre met the requisites set forth in the ECC
guidelines. That he may be called upon at any time to render
police work as he is considered to be on a round-the-clock duty
and was not on an approved vacation leave will not change the
conclusion arrived at considering that he was not placed in a
situation where he was required to exercise his authority and
duty as a policeman. In fact, he was refusing to render one
pointing out that he had already complied with the duty
detail. 8 At any rate, the 24-hour duty doctrine, as applied to
policemen and soldiers, serves more as an after-the-fact
validation of their acts to place them within the scope of the
guidelines rather than a blanket license to benefit them in all
situations that may give rise to their deaths. In other words, the
24-hour duty doctrine should not be sweepingly applied to all
acts and circumstances causing the death of a police officer but
only to those which, although not on official line of duty, are
nonetheless basically police service in character
 Exceptions to “Premise Rule”
1. Going to- Coming from work – by virtue of ECC Resolution no. 3914-A it extends the
compensable coverage of the “off premise rule”. Any injury or death of a covered
member in an accident while he is going to or coming from the workplace shall be
compensable provided;
a. The act of the employee of going to or coming from the workplace must be
continuing act, that he has not diverted by any other activity and he had not
departed from his usual route
b. If an employee is on an special errand, it must be official and in connection with
his work (Special Errand Rule)
2. Acts of Ministration – activities done by a person for the purpose of satisfying the call
of nature, they are deemed incidents of employment, so the injuries sustained thereby are
compensable
3. Acts beneficial to ER – an injury sustained by an EE outside his regular working hours
or during a temporary stoppage of work, may be compensable as arising out of and in
the course of the employment provided that at the time of the engagement for the
benefit of ER he sustained injry.
4. Shuttle bus doctrine or Extra-premise rule – where the company provide the means
of transportation in going to and coming from the place of work is liable for the injury
sustained by EEs while on board said means of transportation because it is an extension
of the premise of the ER
 5. Boarding or Lodging on ER premise – any injury sustained while lodging in the ER’s
premise is compensable though not performing task related to the nature of work as it is
incidental to employment. PROVIDED that said lodging by the EE is pursuant to
express or implied requirement of the contract of employment, otherwise it if it is merely
permissive but not required it cannot be compensable.
6. Dual purpose doctrine – by virtue of ECC Resolution no. 99-08-0469, the following
shall be followed;
a. an injury an EE suffers during a trip that serves both business and personal is
deemed within the course of employment, provided the main purpose is for
ER’s benefit, even if such trip coincided with personal purpose.
b. It’s considered as personal trip when the EE still made such trip spite of failure
or absence of the business or official purpose
c. It’s considered as official trip if the EE still made such trip despite the failure or
absence of the private purpose thereof.
d. Whether a trip is to be taken as personal or official, it is always presumed to be
in the interest of ER as to warrant allowance or compensation
e. The test is to determine the primary purpose.
7. ER sponsored activities – any recreational activities during the temporary cessation of
work is considered as compensable when such activity is sponsored, encouraged by the
ER to the end of efficiency of their service.
8. Force Majeure – as a rule, acts of god is non-compensable as it is beyond the control of
the ER and EE.
a. Exception – Positional and Local Risks – if an employee by reason of his
duties, is exposed to a special or peculiar danger from the element, that is, one
greater than that to which other persons in other community are exposed, and
an injury is sustained by reason of the elements, it is considered compensable.
9. Assault – motive is material in determining compensability if the assault happened
outside the premises of the ER. If the motive is work related then it is compensable

 No Compensation at All
Article 172. Limitation of liability. The State Insurance Fund shall be liable for
compensation to the employee or his dependents, except when the disability or death
was occasioned by the employee’s intoxication, willful intention to injure or kill himself
or another, notorious negligence, or otherwise provided under this Title.
a. Habitual Intoxication
b. Willful intention to injure or kill himself or another
c. Notorious negligence
 How about suicide?
 GR: Non-compensable due to letter b
 XCP: Showing of mental illness by a medical finding regardless whether
simple or clinical as long as there is an existence of proximate cause or
increased risk theory

 Compensation if disease is not listed as occupational disease

o Increased risk theory – due to the innate hazards found in the working
condition, the EE under such condition has an aggravated risk of contracting a
specific disease as compared to other EE in non-hazardous or different working
 condition. Disease must not be existing, at the time of employment and was
aggravated by the hazards.
 Proximate cause doctrine - An act from which an injury results as a natural,
direct, uninterrupted consequence and without which the injury would not have
occurred.
o NOTE: Even if this two theory is primarily used in proving work-related non-listed
occupational disease, they can still be used in proving occupational disease sustained
during performance of duty.

 Cancer: New Doctrine, Proof is required (Raro vs. ECC)

Jurisprudence on the compensability of cancer ailments has of late become a source of
confusion among the claimants and the government agencies enforcing the employees'
compensation law. The strongly lingering influence of the principles of 94 presumption of
compensability" and "aggravation" found in the defunct Workmen's Compensation Act but
expressly discarded under the present compensation scheme has led to conflict and
inconsistency in employees' compensation decisions.

The problem is attributable to the inherent difficulty in applying the new principle of "proof
of increased risk." There are two approaches to a solution in cases where it cannot be proved
that the risk of contracting an illness not listed as an occupational disease was increased by
the claimant's working conditions. The one espoused by the petitioner insists that if a
claimant cannot prove the necessary work connection because the causes of the disease are
still unknown, it must be presumed that working conditions increased the risk of contracting
the ailment. On the other hand, the respondents state that if there is no proof of the required
work connection, the disease is not compensable because the law says so.

In Navalta v. Government Service Insurance System (G.R. No. 46684, April 27, 1988) this Court
recognized the fact that cancer is a disease of still unknown origin which strikes; people in all
walks of life, employed or unemployed. Unless it be shown that a particular form of cancer is
caused by specific working conditions (e. g. chemical fumes, nuclear radiation, asbestos dust,
etc.) we cannot conclude that it was the employment which increased the risk of contracting
the disease

For the guidance of the administrative agencies and practising lawyers concerned, this
decision expressly supersedes the decisions in Panotes v. Employees' Compensation
Commission [128 SCRA 473 (1984)]; Mercado v. Employees' Compensation Commission [127 SCRA
664 (1984)]; Ovenson v. Employees' Compensation Commission [156 SCRA 21 (1987)]; Nemaria v.
Employees' Compensation Commission [155 SCRA 166 (1987)] and other cases with conclusions
different from those stated above.

 Double Recovery under EC with Civil Law (Ysmael Maritime Corp. vs. Avelino)
In the recent case of Floresca vs. Philex Mining Company, L-30642, April 30, 1985, 136 SCRA
141, involving a complaint for damages for the death of five miners in a cave in on June 28,
1967, this Court was confronted with three divergent opinions on the exclusivity rule as
presented by several amici curiae One view is that the injured employee or his heirs, in case of
death, may initiate an action to recover damages [not compensation under the Workmen's
Compensation Act) with the regular courts on the basis of negligence of the employer
pursuant to the Civil Code. Another view, as enunciated in the Robles case, is that the remedy
of an employee for work connected injury or accident is exclusive in accordance with Section
 5 of the WCA. A third view is that the action is selective and the employee or his heirs have a
choice of availing themselves of the benefits under the WCA or of suing in the regular courts
under the Civil Code for higher damages from the employer by reason of his negligence. But
once the election has been exercised, the employee or his heirs are no longer free to opt for
the other remedy. In other words, the employee cannot pursue both actions simultaneously.
This latter view was adopted by the majority, in the Floresca case, reiterating as main authority
its earlier decision in Pacaña vs. Cebu Autobus Company, L-25382, April 30, 1982, 32 SCRA 442.
In so doing, the Court rejected the doctrine of exclusivity of the rights and remedies granted
by the WCA as laid down in the Robles case.

 Double Recovery under EC with System

By virtue of PD1921, it lifted the ban against double recovery of benefits in EC law and the
Systems : "Art. 173. Extent of liability. — Unless otherwise provided, the liability of the State
Insurance Fund under this Title shall be exclusive and in place of all other liabilities of the
employer to the employee or his dependents or anyone otherwise entitled to recover
damages on behalf of the employee of his dependents. The payment of compensation under
this Title shall not bar the recovery of benefits as provided for in Sec. 699 of the Revised
Administrative Code, Republic Act numbered eleven hundred sixty-one, as amended,
Republic Act numbered six hundred ten, as amended, Republic Act numbered forty-eight
hundred sixty-four, as amended, and other laws whose benefits are administered by the
System or by other agencies of the government."

 Who are the beneficiary under the EC Law

o Primary Beneficiary
 Dependent spouse until he/she remarries;
 Dependent children (Legit, legitimated, natural born, legally adopted)
o Secondary Beneficiary
 Illegitimate children
 Legitimate descendants
 Parents, grandparents, grandchildren
 Reason for hierarchy
 Dependency theory –the hierarchy is based on as to who are the in
most need of the support and reliance of the covered EE due to loss of
earning capacity. This is not gauge on the need of basic necessities but
the entirety of support and dependence.
 In case of two wives for muslim (Akmad vs. GSIS)
A careful study of the circumstance of the case led us (ECC) to believe that the
second wife is also entitled to compensation.

Note should be taken that the law permits a Muslim male to have more than
one wife, but not more than four at a time, provided he can deal with them with
equal companionship and just treatment as enjoined by the Islamic law.

Justice and equity demand that appellant herein and her minor child shall be
equally entitled to the benefits provided for under the law.
 Proof of evidence
o Substantial evidence - more than a mere scintilla. It means such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.
 RECRUITMENT AND PLACEMENT OF WORKERS
 Definition of Recruitment and Placement

According to Article 13(b) of Labor Code :"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.

 Essence of Recruitment and Placement

Promise or offer of employment whether for profit or not

 License procedure (Philippine Overseas Employment Administration)

Rule IV Sections 1-2 and POEA IRR 2002:

RULE IV
Private Sector Participation in Recruitment and Placement

SECTION 1. Who may participate in the private sector. — Only the following persons
or entities in the private sector may engage in the recruitment and placement of workers
either for local or overseas employment:
(a) Private employment agencies;
(b) Private recruitment entities;
(c) Shipping or manning agents or representatives; and
(d) Such other persons or entities as may be authorized by the Secretary.

SECTION 2. Citizenship requirement. — Only Filipino citizens or corporations,

partnerships or entities at least seventy-five percent (75%) of the authorized and voting
capital stock of which is owned and controlled by Filipino citizens shall be permitted to
participate in the recruitment and placement of workers, locally or overseas.

RULE II
Issuance of Licenses

SECTION 4. Pre-Qualification Requirements.— Any person applying for a license to

operate a recruitment agency shall file a written application with the Administration,
together with the following requirements:

a. Business Name Certificate issued by the Department of Trade and Industry

(DTI) in the case of a single proprietorship, or a certified copy of the Articles of
Partnership or Articles of Incorporation duly registered with the SEC in the case of a
partnership or corporation;
b. Proof of financial capacity:

i. Bank certificate showing a deposit of at least Five Million Pesos (PhP5,000,000.00),

with authority to examine the bank account;
ii. Duly filed Income Tax Returns (ITR) for the last two (2) years of the proprietor,
partners, members of the Board of Directors and major stockholders of a corporation
and official receipts showing payment of income tax; and
iii. Proof of sources of investment.

c. Proof of existence of new market:

i. POLO verified and/or consulate authenticated Recruitment/Service Agreement
(RA/SA) duly concluded by the applicant and the new principal/employer.

For this purpose, a new principal/employer refers to a principal/employer which has

never been accredited/registered with any licensed recruitment agency or with the
Administration and has been existing for at least a year; Provided, that in the case of a
foreign placement agency, its client employer/s must be identified and must not have
been accredited with any licensed recruitment agency or with the Administration.

ii. Employer’s profile to include:

a. Valid business license or commercial registration of the principal/employer, with

English translation;
b. Information on business activities;
c. Number of years in operation; and
d. Number of workers.

d. Proof of possession by the sole proprietor, managing partner, president or chief

executive officer, as the case may be, of a bachelor's degree or at least four
(4) years experience in human resource management or experience in heading or
managing a manpower business;
e. Valid clearances from the NBI and the Anti-Illegal Recruitment Branch of the
Administration for the proprietor, partners, and all members of the board of directors of
the applicant agency. If a member of the board is a foreign national, a duly authenticated
police clearance from his/her country of origin shall be required;
f. A duly notarized undertaking by the sole proprietor, the managing partner, or the
president of the corporation stating that the applicant shall:

1. Negotiate for the best terms and conditions of employment for the workers;
2. Select and deploy only medically fit and competent workers as tested by the
employers or certified by TESDA or by other competent authority;
3. Provide orientation to the workers on recruitment procedures, as well as the
country profile and the working and living conditions, and other relevant information
about the host country and work site;
4. Obtain compulsory insurance coverage for its hired workers for the duration of the
contract of employment, at no cost to the workers;
5. Provide the worker a copy of the contract upon signing and provide the OEC upon
issuance;
6. Guarantee that there is no officer or employee of the recruitment agency related
within the fourth civil degree of consanguinity or affinity to any official or employee of
any government agency engaged, directly or indirectly, in the implementation of RA
8042, as amended;
7. Assume full and complete responsibility for all claims and liabilities which may arise
in connection with the use of the license;
8. Assume joint and several liability with the employer for all claims and liabilities
which may arise in connection with the implementation of the contract, including but
not limited to unpaid wages, death and disability compensation and repatriation;
9. Assume full and complete responsibility for all acts of its officers, employees and
representatives done in connection with recruitment and placement;
10. Adhere to the ethical standards as prescribed in the Code of Conduct for Ethical
Recruitment as endorsed by recruitment industry associations and the Administration;
and
11. Guarantee compliance with existing labor and social legislation of the Philippines
and of the country of employment of the recruited workers.

g. In case of a corporation or partnership, a duly notarized undertaking by the

corporate officers and directors, or partners, that they shall be jointly and severally liable
with the corporation or partnership for claims and/or damages that may be awarded to
the workers;
h. List of all officials and personnel involved in recruitment and placement, together
with their appointment, signed bio-data and two (2) copies of their passport-size
pictures, as well as their clearances from the NBI and their individual affidavits, declaring
that they have no conviction or pending criminal case for illegal recruitment or case
involving moral turpitude;
i. Certificate of attendance of the sole proprietor, managing partner, president, chief
executive officer and/or operations manager in a Pre-Licensing Orientation Seminar
(PLOS);
j. Flowchart detailing step-by-step recruitment procedures, documentary
requirements, briefings and orientations required, authorized fees and costs, deployment
timeframes, and the responsible officer/s and process cycle time for every phase of the
process; and
k. Four-year business plan detailing financial, market and operational viability,
including projected income and a risk management plan.

B. PROVISIONAL LICENSE

SECTION 11.Issuance and Validity of a Provisional License. — Within five (5) working
days from satisfaction of the post-qualification requirements, the Administration shall
issue a provisional license which shall be valid within a non-extendible period of two (2)
years from date of issuance.

SECTION 12.Prohibition.— The agency granted with a provisional license shall not
deploy domestic workers during the validity of the provisional license.

C. REGULAR LICENSE

SECTION 13.Application for Upgrading of Provisional License to a Regular License.—

Upon application, a provisional license may be upgraded to a regular license at any time
during its validity upon deployment of one hundred (100) workers to its new principal/s,
and upon submission of the following:
a. Quality Management System (QMS) manual, defining the scope of the agency’s
quality management system that includes, among others, the quality policy and
objectives, organizational structure and management responsibilities, and documented
recruitment and deployment processes;
b. Updated bank certificate stating that the escrow deposit remains at One Million
Pesos (PhP1,000,000.00);
c. Certificate of no pending case or any substantiated adverse report during the
validity of the provisional license;
d. Certificate of attendance to the Continuing Agency Education Program (CAEP) of
all its officers and staff; and
e. Latest audited financial statement.

SECTION 14.Validity of a Regular License.— The regular license shall be valid up to

the full term of four (4) years from the date of issuance of the provisional license.

The application for upgrading of the provisional license shall be filed within three (3)
months before the expiration of the provisional license.

D. RENEWAL OF LICENSE

SECTION 15. Renewal of License. — A licensed recruitment agency should submit an

application for the renewal of its license within three (3) months before the expiration of
its license. The application shall be supported by the following documents:

a. Updated DTI registration in case of sole proprietorship, or General Information

Sheet in case of partnership and corporation;
b. Renewed/new escrow agreement with a commercial bank authorized to handle
trust accounts by the Bangko Sentral ng Pilipinas, supported by a bank certification;

Provided, that, if during the renewal, the applicant has pending recruitment violation
case/s before the Administration, an additional escrow deposit shall be required
in accordance with the following schedule:
NO. OF ADDITIONAL
PENDING ESCROW DEPOSIT
CASE/S

1 to 5 PhP50,000.00 per case

6 to 10 PhP75,000.00 per case

11 or more PhP100,000.00 per case

The total escrow deposit shall, in no case, exceed Two Million Pesos (PhP2,000,000.00).

Provided, further, that, if in the succeeding renewal, the licensed recruitment agency has
no pending case, the Administration shall allow the withdrawal of the additional escrow
deposit.
 c. Duly filed latest audited financial statements and income tax returns of the licensed
recruitment agency. In case the equity of the licensed recruitment agency is below the
minimum capitalization requirement, it shall be given thirty (30) days from release of the
renewed license to submit an SEC certification on capital infusion, otherwise the license
shall be suspended until it has complied with such requirement;
d. Clearances from the NBI and the Anti-Illegal Recruitment Branch of the sole
proprietor, partners, members of the board of directors, officers, and personnel; and
e. Valid Certificate of Compliance with general labor standards and valid Certificate of
Compliance with occupational safety and health standards.

The Administration shall only accept applications with complete requirements based on
the checklist for renewal of license. No application shall be accepted after the date of
expiration of the license.

SECTION 16.Action on Renewal of License.—The Administration shall evaluate the

application within five (5) working days from receipt of such application. The license
remains valid until the application shall have been finally acted upon.

 Capital gain stocks

ART. 27. Citizenship requirement. - Only Filipino citizens or corporations, partnerships or
entities at least seventy-five percent (75%) of the authorized and voting capital stock of
which is owned and controlled by Filipino citizens shall be permitted to participate in the
recruitment and placement of workers, locally or overseas.

ART. 28. Capitalization. - All applicants for authority to hire or renewal of license to recruit
are required to have such substantial capitalization as determined by the Secretary of Labor
 2M for single proprietorship and partnership
 5M for corporation

 Deposits and Security

o What is Escrow Deposit – Money deposited (1M) by the agency held by a duly
accredited bank. Will only be released upon a contingency.
 The contingency is any legal and valid money claims by an aggrieved OFW
for violations of the conditions for the grant and use of the license and or
accreditation and contracts of employment.
o Purpose of Escrow and its Application (Capricorn Int’l Travel vs. CA)
(a) that the cash bond is a requisite for the issuance and renewal of a license or
authority to engage in the business of recruitment and overseas placement;

(b) that the cash bond is to answer for the liabilities of the agency arising from
violations of the conditions for the grant or use of the license or authority or the
contracts of employment, the Labor Code, the POEA rules and Labor Department
issuances and all liabilities that the POEA may impose;

(c) that the amount of the cash bond must be maintained during the lifetime of the
license or authority; and
 (d) that the amount of the cash bond shall be returned to the agency only when it
surrenders its license or authority, and only upon posting of a surety bond of the
same amount valid for three (3) years.

It must also be added that the requirement for the posting of a cash bond is also an
indispensable adjunct to the requirement that the agency undertakes to assume joint
and solidary liability with the employer for all claims and liabilities which may arise in
connection with the implementation of the contract of overseas employment and to
guarantee compliance with existing labor and social legislation of the Philippines and
the country of employment [POEA Rules and Regulations, Book II, Rule II secs.
l(d), (3) and (4)].

On a broader scale, the undertaking to assume joint and solidary liability and to
guarantee compliance with labor laws, and the consequent posting of cash and
surety bonds, may be traced all the way back to the constitutional mandate for the
State to "afford full protection to labor, local and overseas" [Art. XIII, sec. 3]. The
peculiar nature of overseas employment makes it very difficult for the Filipino
overseas worker to effectively go after his foreign employer for employment-related
claims and, hence, public policy dictates that, to afford overseas workers' protection
from unscrupulous employers, the recruitment or placement agency in the
Philippines be made to share in the employer's responsibility.

3. Considering the rationale for requiring the posting of a cash bond and its nature,
it cannot therefore be argued that the cash bond is not exempt from execution by a
judgment creditor simply because it is not one of those enumerated in Rule 39, sec.
12 of the Rules of Court. To accede to such an argument would be tantamount to
turning a blind eye to the clear intent of the law to reserve the cash bond for the
employment-related claims of overseas workers and for violations of labor laws.

4. From a different angle, neither may it be argued that petitioner's judgment

credit, pertaining as it does to the value of airline tickets ostensibly used by private
respondent to transport overseas workers abroad, this one of those for which the
cash bond should answer. Private respondent's liability to petitioner relates to a
purely contractual obligation arising from the purchase and sale of airline tickets.
While the liability may have been incurred in connection with the business of
recruiting or placing overseas workers, it is definitely not one arising from violations
of the conditions for the grant and use of the license or authority and contracts of
employment. Nor is it one arising from the violation of labor laws.

 Insurance Fee
Agency is obligated to pay the premium to cover the OFW in cases of death, disability.
Any stipulation obligating the OFW to shoulder the whole or part of the insurance is
void.

 Jurisdiction of POEA
 All cases which are administrative in character, involving or arising out of
violations of rules and regulation relating to licensing and registration of
recruitment and employment agencies or entities
  Disciplinary action cases and other special cases which are administrative in
character, involving the principal employer, its agent, and the OFW
 Grounds for disqualification
o During Pre-employment
a. Submitting, furnishing or using false information or documents or
any form of misrepresentation for the purpose of job application or
employment.
b. Unjustified refusal to continue his/her application after signing an
employment contract, or to depart for the worksite after all
employment and travel documents have been duly approved by the
appropriate government agencies.
o During Employment
a. Commission of a felony, or crime punishable by the laws of
the Philippines or by the host country, committed during
employment.
b. Assaulting a fellow worker, the principal/employer or any
member of his/her family, or any of the directors, officers,
managerial or supervisorial staff of the principal/employer.
c. Grave abuse of authority by an officer exercising supervision
over other employees.
d. Possession or use of prohibited drugs, contraband, alcohol
or pornographic materials in violation of company policy or
laws of the host country.
e. Unjustified refusal to be repatriated in case of mandatory
repatriation in accordance with the declaration of the
Philippine government
f. Unjustified breach of employment contract.
g. Embezzlement of company funds or monies and/or
properties of a fellow worker entrusted for delivery to kin or
relatives in the Philippines.
h. Violation of the religious and cultural practices of the host
country.
i. Violation of company policies and regulations.
j. Insubordination or refusal to obey a lawful order of the
employer or the duly authorized representative.
k. Failure to refund the cost of his/her repatriation advanced
by the principal or recruitment agency, where termination of
employment was due to his/her own fault as determined by
final judgment.
l. Violation of the Code of Discipline for Overseas Filipino
Workers.
 Extent of Liability
Assume joint and several liability with the employer for all claims and liabilities which
may arise in connection with the implementation of the contract, including but not
limited to unpaid wages, death and disability compensation and repatriation;
 How about EE-ER Relation, who has jurisdiction?
By virtue of RA no. 8042, the law has transferred from POEA to the NLRC the
jurisdiction over employment cases involving OFWs.

Hence, the recourse of an OFW in cases for violation of employment contract is to

NLRC.
 Extent of Liability
Sec. 10. MONEY CLAIMS. – Notwithstanding any provision of law to the contrary,
the Labor Arbiters of the National Labor Relations Commission (NLRC) shall have
the original and exclusive jurisdiction to hear and decide, within ninety (90) calendar
days after filing of the complaint, the claims arising out of an employer-employee
relationship or by virtue of any law or contract involving Filipino workers for
overseas deployment including claims for actual, moral, exemplary and other forms
of damages.

The liability of the principal/employer and the recruitment/placement agency for

any and all claims under this section shall be joint and several. This provisions [sic]
shall be incorporated in the contract for overseas employment and shall be a
condition precedent for its approval. The performance bond to be filed by the
recruitment/placementagency, as provided by law, shall be answerable for all money
claims or damages that may be awarded to the workers. If the
recruitment/placement agency is a juridical being, the corporate officers and
directors and partners as the case may be, shall themselves be jointly and solidarily
liable with the corporation orpartnership for the aforesaid claims and damages.

Such liabilities shall continue during the entire period or duration of the employment
contract and shall not be affected by any substitution, amendment or modification
made locally or in a foreign country of the said contract.

Any compromise/amicable settlement or voluntary agreement on money claims

inclusive of damages under this section shall be paid within four (4) months from
the approval of the settlement by the appropriate authority.

In case of termination of overseas employment without just, valid or authorized

cause as defined by law or contract, the workers shall be entitled to the full
reimbursement of his placement fee with interest of twelve (12%) per annum, plus
his salaries for the unexpired portion of his employment contract or for three (3)
months for every year of the unexpired term, whichever is less.
o Validity of 3months payment of back wages for unexpired term (Serrano vs. Gallant)
A plain reading of Sec. 10 clearly reveals that the choice of which amount to award an
illegally dismissed overseas contract worker, i.e., whether his salaries for the unexpired
portion of his employment contract or three (3) months’ salary for every year of the
unexpired term, whichever is less, comes into play only when the employment contract
concerned has a term of at least one (1) year or more. This is evident from the words
"for every year of the unexpired term" which follows the words "salaries x x x for three
months." To follow petitioners’ thinking that private respondent is entitled to three (3)
months salary only simply because it is the lesser amount is to completely disregard and
overlook some words used in the statute while giving effect to some. This is contrary to
the well-established rule in legal hermeneutics that in interpreting a statute, care should
be taken that every part or word thereof be given effect since the law-making body is
presumed to know the meaning of the words employed in the statue and to have used
them advisedly.

o Validity of 3month payment of back wages for unexpired term (Sameer Overseas
Placement Agency vs. Cabiles)
The Court of Appeals affirmedthe National Labor Relations Commission’s decision
to award respondent NT$46,080.00 or the threemonth equivalent of her salary,
attorney’s fees of NT$300.00, and the reimbursement of the withheld NT$3,000.00
salary, which answered for her repatriation.

We uphold the finding that respondent is entitled to all of these awards. The award
of the three-month equivalent of respondent’s salary should, however, be increased
to the amount equivalent to the unexpired term of the employment contract.

In Serrano v. Gallant Maritime Services, Inc. and Marlow Navigation Co., Inc.,82
this court ruled that the clause "or for three (3) months for every year of the
unexpired term, whichever is less"83 is unconstitutional for violating the equal
protection clause and substantive due process.84

A statute or provision which was declared unconstitutional is not a law. It "confers

no rights; it imposes no duties; it affords no protection; it creates no office; it is
inoperative as if it has not been passed at all."85

We are aware that the clause "or for three (3) months for every year of the unexpired
term, whichever is less"was reinstated in Republic Act No. 8042 upon promulgation
of Republic Act No. 10022 in 2010.

However, we are confronted with a unique situation. The law passed incorporates
the exact clause already declared as unconstitutional, without any perceived
substantial change in the circumstances.

This may cause confusion on the part of the National Labor Relations Commission
and the Court of Appeals. At minimum, the existence of Republic Act No. 10022
may delay the execution of the judgment in this case, further frustrating remedies to
assuage the wrong done to petitioner.

Hence, there is a necessity to decide this constitutional issue.

Moreover, this court is possessed with the constitutional duty to "[p]romulgate rules
concerning the protection and enforcement of constitutional rights."87 When cases
become mootand academic, we do not hesitate to provide for guidance to bench and
bar in situations where the same violations are capable of repetition but will evade
review. This is analogous to cases where there are millions of Filipinos working
abroad who are bound to suffer from the lack of protection because of the
restoration of an identical clause in a provision previously declared as
unconstitutional.

In the hierarchy of laws, the Constitution is supreme. No branch or office of the

government may exercise its powers in any manner inconsistent with the
 Constitution, regardless of the existence of any law that supports such exercise. The
Constitution cannot be trumped by any other law. All laws must be read in light of
the Constitution. Any law that is inconsistent with it is a nullity.

Thus, when a law or a provision of law is null because it is inconsistent with the
Constitution,the nullity cannot be cured by reincorporation or reenactment of the
same or a similar law or provision. A law or provision of law that was already
declared unconstitutional remains as such unless circumstances have sochanged as to
warrant a reverse conclusion.

 Doctrine of forum of non-convenience (Manila Hotel vs. NLRC)

We note that the main aspects of the case transpired in two foreign jurisdictions and the case
involves purely foreign elements. The only link that the Philippines has with the case is that
respondent Santos is a Filipino citizen. The Palace Hotel and MHICL are foreign
corporations. Not all cases involving our citizens can be tried here.

The employment contract. — Respondent Santos was hired directly by the Palace Hotel, a
foreign employer, through correspondence sent to the Sultanate of Oman, where respondent
Santos was then employed. He was hired without the intervention of the POEA or any
authorized recruitment agency of the government.36

Under the rule of forum non conveniens, a Philippine court or agency may assume
jurisdiction over the case if it chooses to do so provided: (1) that the Philippine court is one
to which the parties may conveniently resort to; (2) that the Philippine court is in a position
to make an intelligent decision as to the law and the facts; and (3) that the Philippine court
has or is likely to have power to enforce its decision.37 The conditions are unavailing in the
case at bar.

Not Convenient. — We fail to see how the NLRC is a convenient forum given that all the
incidents of the case — from the time of recruitment, to employment to dismissal occurred
outside the Philippines. The inconvenience is compounded by the fact that the proper
defendants, the Palace Hotel and MHICL are not nationals of the Philippines. Neither .are
they "doing business in the Philippines." Likewise, the main witnesses, Mr. Shmidt and Mr.
Henk are non-residents of the Philippines.

No power to determine applicable law. — Neither can an intelligent decision be made as to

the law governing the employment contract as such was perfected in foreign soil. This calls
to fore the application of the principle of lex loci contractus (the law of the place where the
contract was made).38

The employment contract was not perfected in the Philippines. Respondent Santos signified
his acceptance by writing a letter while he was in the Republic of Oman. This letter was sent
to the Palace Hotel in the People's Republic of China.

No power to determine the facts. — Neither can the NLRC determine the facts surrounding
the alleged illegal dismissal as all acts complained of took place in Beijing, People's Republic
of China. The NLRC was not in a position to determine whether the Tiannamen Square
incident truly adversely affected operations of the Palace Hotel as to justify respondent
Santos' retrenchment.
 Principle of effectiveness, no power to execute decision. — Even assuming that a proper
decision could be reached by the NLRC, such would not have any binding effect against the
employer, the Palace Hotel. The Palace Hotel is a corporation incorporated under the laws of
China and was not even served with summons. Jurisdiction over its person was not acquired.

This is not to say that Philippine courts and agencies have no power to solve controversies
involving foreign employers. Neither are we saying that we do not have power over an
employment contract executed in a foreign country. If Santos were an "overseas contract
worker", a Philippine forum, specifically the POEA, not the NLRC, would protect him.39
He is not an "overseas contract worker" a fact which he admits with conviction.40

Even assuming that the NLRC was the proper forum, even on the merits, the NLRC's
decision cannot be sustained.

 Doctrine of Processual Presumption (IPAMS vs. Arriola)

As an exception, the parties may agree that a foreign law shall govern the employment
contract. A synthesis of the existing laws and jurisprudence reveals that this exception is
subject to the following requisites:

That it is expressly stipulated in the overseas employment contract that a specific foreign law
shall govern;

That the foreign law invoked must be proven before the courts pursuant to the Philippine
rules on evidence;

That the foreign law stipulated in the overseas employment contract must not be contrary to
law, morals, good customs, public order, or public policy of the Philippines; and

That the overseas employment contract must be processed through the POEA.
The Court is of the view that these four (4) requisites must be complied with before the
employer could invoke the applicability of a foreign law to an overseas employment contract.
With these requisites, the State would be able to abide by its constitutional obligation to
ensure that the rights and well-being of our OFWs are fully protected. These conditions
would also invigorate the policy under R.A. No. 8042 that the State shall, at all times, uphold
the dignity of its citizens whether in country or overseas, in general, and the Filipino migrant
workers, in particular.40 Further, these strict terms are pursuant to the jurisprudential
doctrine that "parties may not contract away applicable provisions of law especially
peremptory provisions dealing with matters heavily impressed with public interest,"41 such
as laws relating to labor. At the same time, foreign employers are not at all helpless to apply
their own laws to overseas employment contracts provided that they faithfully comply with
these requisites.

If the first requisite is absent, or that no foreign law was expressly stipulated in the
employment contract which was executed in the Philippines, then the domestic labor laws
shall apply in accordance with the principle of lex loci contractus. This is based on the cases
of Sameer Overseas and PCL Shipping.
 If the second requisite is lacking, or that the foreign law was not proven pursuant to Sections
24 and 25 of Rule 132 of the Revised Rules of Court, then the international law doctrine of
processual presumption operates. The said doctrine declares that "[w]here a foreign law is
not pleaded or, even if pleaded, is not proved, the presumption is that foreign law is the same
as ours."42 This was observed in the cases of EDI-Staffbuilders and ATCI Overseas.

If the third requisite is not met, or that the foreign law stipulated is contrary to law, morals,
good customs, public order or public policy, then Philippine laws govern. This finds legal
bases in the Civil Code, specifically: (1) Article 17, which provides that laws which have, for
their object, public order, public policy and good customs shall not be rendered ineffective
by laws of a foreign country; and (2) Article 1306, which states that the stipulations, clauses,
terms and conditions in a contract must not be contrary to law, morals, good customs, public
order, or public policy. The said doctrine was applied in the case of Pakistan International.

Finally, if the fourth requisite is missing, or that the overseas employment contract was not
processed through the POEA, then Article 18 of the Labor Code is violated. Article 18
provides that no employer may hire a Filipino worker for overseas employment except
through the boards and entities authorized by the Secretary of Labor. In relation thereto,
Section 4 of R.A. No. 8042, as amended, declares that the State shall only allow the
deployment of overseas Filipino workers in countries where the rights of Filipino migrant
workers are protected. Thus, the POEA, through the assistance of the Department of
Foreign Affairs, reviews and checks whether the countries have existing labor and social laws
protecting the rights of workers, including migrant workers.43 Unless processed through the
POEA, the State has no effective means of assessing the suitability of the foreign laws to our
migrant workers. Thus, an overseas employment contract that was not scrutinized by the
POEA definitely cannot be invoked as it is an unexamined foreign law.

In other words, lacking any one of the four requisites would invalidate the application of the
foreign law, and the Philippine law shall govern the overseas employment contract.

 Placement fees and other fees

Expenses other than mentioned below are invalid.
Placement Fee- ART. 32. Fees to be paid by workers. - Any person applying with a private
fee-charging employment agency for employment assistance shall not be charged any fee
until he has obtained employment through its efforts or has actually commenced
employment. Such fee shall be always covered with the appropriate receipt clearly showing
the amount paid. The Secretary of Labor shall promulgate a schedule of allowable fees.

o Part II, Rule V, Sec. 3 of 2002 IRR of POEA

Except where the prevailing system in the country where the worker is to be deployed,
either by law, policy, practice, does not allow the charging or collection of placement and
recruitment fee, a land based agency may charge and collect for its hired workers a (1)
amount equivalent to one month salary exclusive of documentation costs

Service Fee – This a fee chargeable to the principal by the agent covering the following: visa,
airfare, POEA processing fee, OWWA membership fee. It also include payment to the agency
for securing employee for the principal employer
 Documentation Fee – are cost to be paid by the worker in case the agency has shouldered
the necessary documents needed for the deployment of the OFW.

 Direct hiring vs. Name Hiring

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.

General Rule : Employer may not hire Filipino workers for overseas without intervention of
appropriate government agency

XCPS : (1) 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.
(2) Name Hirees- an individual worker who are able to secure contracts for overseas
employment on their own efforts and representation without the assistance or participation
of any agency.

 What is OEC
Overseas employment certificate is a certificate which registers the OFW under the line of
sight of POEA while abroad. It also serves as a pass for deployment abroad and exit pass for
the bureau of immigration abroad before resumption and entry at host country.

 Who cannot engage in recruitment and placement

ART. 26. Travel agencies prohibited to recruit. - Travel agencies and sales agencies of airline
companies are prohibited from engaging in the business of recruitment and placement of
workers for overseas employment whether for profit or not.
Rationale – Does not have enough power to ensure protection of OFW

In addition to those mentioned, public official such as those working under DOLE, POEA,
OWWA, DFA and those who execute RA 8042 including their family members within the
4th civil degree of consanguinity cannot be engage in this line of business.

 What are the standards that should be included in the employment contract
a. Guaranteed wages for regular working hours and overtime pay base on the following,
whichever is the highest:
a. Phil. Law
b. Host Country Law
c. Agreement between PH and Host
d. International Standard
b. Free transportation
c. Free food and accommodation
d. Just and authorized causes for termination taking into consideration the labor and social
law of the host country
o This does not preclude stipulation of other labor standards, provided it is not
contrary to law, morals, customs, public policy, safety, order
 Selective deployment
 Together with DFA, before a country can be a host country for OFW , they must have
the following:

a. Labor law and Social laws protecting the rights of workers including migrant
workers
b. Signatory to multilateral conventions, declaration, resolution relating to the
protection of workers, including migrant workers
c. Has bilateral agreement or arrangement with our government on the protection
of the rights of OFW

 What is illegal recruitment?

By virtue of RA 8042, it expanded the liability of non-license holder in cases of illegal
recruitment, along with license holder

Sec. 6. DEFINITIONS. - For purposes of this Act, illegal recruitment shall mean any act of
canvassing, enlisting, contracting, transporting, utilizing, hiring, procuring workers and
includes referring, contact services, promising or advertising for employment abroad,
whether for profit or not, when undertaken by a non-license or non-holder of authority
contemplated under Article 13(f) of Presidential Decree No. 442, as amended, otherwise
known as the Labor Code of the Philippines. Provided, that such non-license or non-holder,
who, in any manner, offers or promises for a fee employment abroad to two or more
persons shall be deemed so engaged. It shall likewise include the following acts, whether
committed by any persons, whether a non-licensee, non-holder, licensee or holder of
authority.

(a) To charge or accept directly or indirectly any amount greater than the specified in the
schedule of allowable fees prescribed by the Secretary of Labor and Employment, or to make
a worker pay any amount greater than that actually received by him as a loan or advance;
(b) To furnish or publish any false notice or information or document in relation to
recruitment or employment;
(c) To give any false notice, testimony, information or document or commit any act of
misrepresentation for the purpose of securing a license or authority under the Labor Code;
(d) To induce or attempt to induce a worker already employed to quit his employment in
order to offer him another unless the transfer is designed to liberate a worker from
oppressive terms and conditions of employment;
(e) To influence or attempt to influence any persons or entity not to employ any worker who
has not applied for employment through his agency;
(f) To engage in the recruitment of placement of workers in jobs harmful to public health or
morality or to dignity of the Republic of the Philippines;
(g) To obstruct or attempt to obstruct inspection by the Secretary of Labor and Employment
or by his duly authorized representative;
(h) To fail to submit reports on the status of employment, placement vacancies, remittances
of foreign exchange earnings, separations from jobs, departures and such other matters or
information as may be required by the Secretary of Labor and Employment;
(i) To substitute or alter to the prejudice of the worker, employment contracts approved and
verified by the Department of Labor and Employment from the time of actual signing
thereof by the parties up to and including the period of the expiration of the same without
the approval of the Department of Labor and Employment;
 (j) For an officer or agent of a recruitment or placement agency to become an officer or
member of the Board of any corporation engaged in travel agency or to be engaged directly
on indirectly in the management of a travel agency;
(k) To withhold or deny travel documents from applicant workers before departure for
monetary or financial considerations other than those authorized under the Labor Code and
its implementing rules and regulations;
(l) Failure to actually deploy without valid reasons as determined by the Department of
Labor and Employment; and
(m) Failure to reimburse expenses incurred by the workers in connection with his
documentation and processing for purposes of deployment, in cases where the deployment
does not actually take place without the worker's fault. Illegal recruitment when committed
by a syndicate or in large scale shall be considered as offense involving economic sabotage.

Illegal recruitment is deemed committed by a syndicate carried out by a group of three (3) or
more persons conspiring or confederating with one another. It is deemed committed in large
scale if committed against three (3) or more persons individually or as a group.

The persons criminally liable for the above offenses are the principals, accomplices and
accessories. In case of juridical persons, the officers having control, management or direction
of their business shall be liable.

 Jurisdiction and prescription

It is RTC who has jurisdiction to hear cases for illegal recruitment, prescribes 5 yrs and 20
for presence of economic sabotage

 Power to issue warrants (Salazar vs. Achacoso)

We reiterate that the Secretary of Labor, not being a judge, may no longer issue search or
arrest warrants. Hence, the authorities must go through the judicial process. To that extent,
we declare Article 38, paragraph (c), of the Labor Code, unconstitutional and of no force and
effect.
The power of the President to order the arrest of aliens for deportation is, obviously,
exceptional. It (the power to order arrests) can not be made to extend to other cases, like the
one at bar. Under the Constitution, it is the sole domain of the courts.

XCPs: those mentioned under the rules of court in cases of warrantless search

 Who has power to close agency?

ART. 36. Regulatory power. - The Secretary of Labor shall have the power to restrict and
regulate the recruitment and placement activities of all agencies within the coverage of this
Title and is hereby authorized to issue orders and promulgate rules and regulations to carry
out the objectives and implement the provisions of this Title.

 DRUG FREE WORKPLACE (DO 53-03) (Salient Features)

 Mandatory for establishments having more than 10 ees, and for those less than 10, it is
encouraged
 In cases for unionized establishment, it must be part of the CBA otherwise it cannot be
registered
 Existence of two tests: Screening and Confirmatory, latter happens when the 1st test is
positive
 Confidential information, exception is the overriding need of public safety and health with
written consent of the employee concerned
 Will not automatically be terminated, 1st time positive will only warrant rehabilitation on duly
accredited establishments
o Upon re-examination and the test yields negative, the EE resumes employment
o Subsequent positive finding after rehabilitation will allow ER to sanction termination
under Art. 282 of the Labor Code
 Can be used as standard for pre-employment screening.