Hrs of Work Labor
Hrs of Work Labor
Hrs of Work Labor
WITHOUT JUST OR VALID CAUSE giving the worker an opportunity to be heard. It is not
necessary that an actual hearing be conducted.57
Can an OFW acquire regularity of employment?
Substantive due process, on the other hand, requires
No. The prevailing rule is that OFWs are contractual
that dismissal by the employer be made under a just
(fixed-term only), not regular, employees. In fact, they
or authorized cause under Articles 282 to 284 of the
can never attain regularity of employment. Theirs is
Labor Code. (Skippers United)
always fixed-term in nature.
In this case, there was no written notice furnished to
1. Indefinite period of employment of OFWs is
De Gracia, et al. regarding the cause of their dismissal.
not valid as it contravenes the explicit
Cosmoship furnished a written notice (telex) to
provision of the POEA Rules and Regulations
Skippers, the local manning agency, claiming that De
on fixed-period employment.
Gracia, et al. were repatriated because the latter
2. OFWs do not become regular employees by voluntarily pre-terminated their contracts. This telex
reason of nature of work, that is, that they are was given credibility and weight by the Labor Arbiter
made to perform work that is usually necessary and NLRC in deciding that there was pre-termination
and desirable in the usual business or trade of of the employment contract akin to resignation and no
the employer. The exigencies of their work illegal dismissal.
necessitate that they be employed on a
However, as correctly ruled by the CA, the telex
contractual basis. This notwithstanding the
message is a biased and self-serving document that
fact that they have rendered more than twenty
does not satisfy the requirement of substantial
(20) years of service.
evidence. If, indeed, De Gracia, et al. voluntarily pre-
3. Regular employment does not result from terminated their contracts, then De Gracia, et al.
the series of re-hiring of OFWs. should have submitted their written resignations.
4. The fixed-period employment of OFWs is not (Skippers )
discriminatory against them nor does it favor What is the effect of hiring a seafarer for overseas
foreign employers. It is for the mutual interest employment but assigning him to local vessel?
of both the seafarer and the employer why the
An employment contract, like any other contract, is
employment status must be contractual only
perfected at the moment (1) the parties come to agree
or for a certain period of time. Seafarers spend
upon its terms; and (2) concur in the essential
most of their time at sea and understandably,
elements thereof: (a) consent of the contracting
they cannot stay for a long and an indefinite
parties, (b) object certain which is the subject matter
period of time at sea. Limited access to shore
of the contract and (c) cause of the obligation.
society during the employment will have an
adverse impact on the seafarer. The national, Based on the perfected contract, Private Respondent
cultural and lingual diversity among the crew Guerrero complied with his obligations thereunder
during the contract of employment is a reality and rendered his services on board the vessel.
that necessitates the limitation of its period. Contrary to petitioners contention, the contract had
an object, which was the rendition of service by
5. The expiration of the employment contracts
private respondent on board the vessel. The non-
of OFWs marks its ending.
deployment of the ship overseas did not affect the
Due Process for Seafarers /OFWs? validity of the perfected employment contract. After
For a workers dismissal to be considered valid, it must all, the decision to use the vessel for coastwise
comply with both procedural and substantive due shipping was made by petitioner only and did not bear
process. The legality of the manner of dismissal the written conformity of private respondent. A
constitutes procedural due process, while the legality contract cannot be novated by the will of only one
of the act of dismissal constitutes substantive due party.
process. Petitioner, as manning agent, is jointly and severally
Procedural due process in dismissal cases consists of liable with its principal,PC-SASCO, for private
the twin requirements of notice and hearing. The respondents claim
employer must furnish the employee with two written This must be so, because the obligations covenanted
notices before the termination of employment can be in the [manning] agreement between the local agent
effected: (1) the first notice apprises the employee of and its foreign principal are not coterminus with the
the particular acts or omissions for which his dismissal term of such agreement so that if either or both of the
is sought; and (2) the second notice informs the parties decide to end the agreement, the
employee of the employers decision to dismiss him. responsibilities of such parties towards the contracted
Before the issuance of the second notice, the employees under the agreement do not at all end, but
the same extends up to and until the expiration of the, exemplary and other forms of damages. x x x
employment contracts of the employees recruited and [Emphasis supplied]
employed pursuant to the said recruitment Since the present petition involves the employment
agreement. Otherwise, this will render nugatory the contract entered into by petitioner for overseas
very purpose for which the law governing the employment, his claims are cognizable by the labor
employment of workers for foreign jobs abroad was arbiters of the NLRC. (supra)
enacted (OSM Shipping).
• What is the doctrine of processual presumption?
What is the effect of non-deployment of OFW to
overseas employment? “Presumed-identity approach” or “processual
presumption” is an International Law doctrine which
Whether the seafarer, who was prevented from dictates that where a foreign law is not pleaded or,
leaving the port of Manila and refused deployment even if pleaded, is not proved, the presumption is that
without valid reason but whose POEA-approved foreign law
employment contract provides that the employer-
employee relationship shall commence only upon the is the same as Philippine law. Thus, under this
seafarer’s actual departure from the port in the point situation, Philippine labor laws should apply in
of hire, is entitled to relief? (Santiago v CF sharp) determining the issues presented in a case.
However, a distinction must be made between the • Is due process under Philippine law applicable to
perfection of the employment contract and the termination of employment of OFWs?
commencement of the employer-employee Yes. In the absence of proof of applicable foreign law,
relationship. The perfection of the contract, which in OFWs are entitled to due process in accordance with
this case coincided with the date of execution thereof, Philippine laws.
occurred when petitioner and respondent agreed on
the object and the cause, as well as the rest of the • Is the Agabon doctrine applicable to OFWs who are
terms and conditions therein. The commencement of dismissed for cause but without due process?
the employer-employee relationship, as earlier Yes. The Agabon doctrine of awarding indemnity in the
discussed, would have taken place had petitioner been form of nominal damages in cases of valid termination
actually deployed from the point of hire. Thus, even for just or authorized cause but without procedural
before the start of any employer-employee due process also applies to termination of OFWs.
relationship, contemporaneous with the perfection of
• Who has the burden of proof to show that the
the employment contract was the birth of certain
dismissal of the OFW is legal?
rights and obligations, the breach of which may give
rise to a cause of action against the erring party. Burden of proof devolves on both recruitment agency
(santiago v CF sharp) and its foreign principal.
Respondent’s act of preventing petitioner from • Are OFWs entitled to the reliefs under the Labor
departing the port of Manila and boarding "MSV Code?
Seaspread" constitutes a breach of contract, giving No. They are not entitled to such reliefs under Article
rise to petitioner’s cause of action. Respondent 279(?) as reinstatement or separation pay in lieu of
unilaterally and unreasonably reneged on its reinstatement or full backwages.
obligation to deploy petitioner and must therefore
answer for the actual damages he suffered. (Santiago) • What are the reliefs to which OFWs are entitled?
Despite the absence of an employer-employee They are entitled to the reliefs provided under Section
relationship between petitioner and respondent, the 10 of R.A. No. 8042, as amended, to wit:
Court rules that the NLRC has jurisdiction over (1) All salaries for the unexpired portion of the
petitioner’s complaint. The jurisdiction of labor contract;
arbiters is not limited to claims arising from
(2) Full reimbursement of placement fees and
employer-employee relationships. Section 10 of R.A.
deductions made with interest at 12% per annum.
No. 8042 (Migrant Workers Act), provides that:
All the reliefs available to an illegally dismissed OFW
Sec. 10. Money Claims. – Notwithstanding any
are always monetary in nature.
provision of law to the contrary, the Labor Arbiters of
the National Labor Relations Commission (NLRC) shall It must be noted that under the 2009 Serrano
have the original and exclusive jurisdiction to hear and doctrine, (Serrano v. Gallant Maritime Services, Inc.,),1
decide, within ninety (90) calendar days after the filing an illegally dismissed OFW is now entitled to all the
of the complaint, the claims arising out of an salaries for the entire unexpired portion of their
employer-employee relationship or by virtue of any employment contracts, irrespective of the stipulated
law or contract involving Filipino workers for overseas term or duration thereof.
deployment including claims for actual, moral,
However, R.A. No. 10022 (March 8, 2010), which allowances are not included. However, this rule on
amended R.A. No. 8042 (Migrant Workers and exclusion of allowance does not apply in case it is
Overseas Filipinos Act of 1995), has replicated and re- encapsulated in the basic salary clause.
enacted the same unconstitutional provision exactly 3. Entitlement to overtime pay of OFWs. - As far as
as above quoted. entitlement to overtime pay is concerned, the correct
RE: Sameer Overseas Placement Agency, Inc. v. Joy C. criterion in determining whether or not sailors are
Cabiles entitled to overtime pay is not whether they were on
board and cannot leave ship beyond the regular eight
Sameer Overseas Placement Agency failed to show
(8) working hours a day, but whether they actually
that there was just cause for causing Joy’s dismissal.
rendered service in excess of said number of hours.
The employer, Wacoal, also failed to accord her due
An OFW is not entitled to overtime pay, even if
process of law.
guaranteed, if he failed to present any evidence to
Employees are not stripped of their security of tenure prove that he rendered service in excess of the regular
when they move to work in a different jurisdiction. eight (8) working hours a day.
With respect to the rights of overseas Filipino workers,
4. In case of unauthorized deductions from OFW’s
we follow the principle of lex loci contractus.
salary, he shall be entitled to the full reimbursement
The provisions of the Constitution as well as the Labor of the deductions made with interest at 12% per
Code which afford protection to labor apply to Filipino annum. This is in addition to the full reimbursement of
employees whether working within the Philippines or his placement fee with the same interest of 12% per
abroad. Moreover, the principle of lex loci contractus annum plus his salaries for the unexpired portion of
(the law of the place where the contract is made) his employment contract if he is terminated without
governs in this jurisdiction just, valid or authorized cause as defined by law or
In case of termination of overseas employment contract.
without just, valid or authorized cause as defined by CLAIMS FOR DISABILITY AND DEATH BENEFITS OF
law or contract, the workers shall be entitled to the full OFW’S
reimbursement of his placement fee with interest of
In this respect and in the context of the present case,
twelve (12%) per annum, plus his salaries for the
Article 192(c)(1) of the Labor Code provides that:
unexpired portion of his employment contract or for
three (3) months for every year of the unexpired term, The rule referred to – Rule X, Section 2 of the Rules
whichever is less. and Regulations implementing Book IV of the Labor
Code – states:
In Serrano v. Gallant Maritime Services, Inc. and
Marlow Navigation Co., Inc., this court ruled that the These provisions are to be read hand in hand with the
clause "or for three (3) months for every year of the POEA Standard Employment Contract whose Section
unexpired term, whichever is less" is unconstitutional 20 (3) states:
for violating the equal protection clause and As these provisions operate, the seafarer, upon sign-
substantive due process. off from his vessel, must report to the company-
In the hierarchy of laws, the Constitution is supreme. designated physician within three (3) days from arrival
No branch or office of the government may exercise for diagnosis and treatment. For the duration of the
its powers in any manner inconsistent with the treatment but in no case to exceed 120 days, the
Constitution, regardless of the existence of any law seaman is on temporary total disability as he is
that supports such exercise. The Constitution cannot totally unable to work. He receives his basic wage
be trumped by any other law. All laws must be read in during this period until he is declared fit to work or his
light of the Constitution. Any law that is inconsistent temporary disability is acknowledged by the company
with it is a nullity. to be permanent, either partially or totally, as his
condition is defined under the POEA Standard
We observe that the reinstated clause, this time as
Employment Contract and by applicable Philippine
provided in Republic Act. No. 10022, violates the
laws.
constitutional rights to equal protection and due
process. (Sameer) If the 120 days initial period is exceeded and no such
declaration is made because the seafarer requires
Some principles in regard to monetary awards to
further medical attention, then the temporary total
OFWs?
disability period may be extended up to a maximum of
1. Monetary award to OFW is not in the nature of 240 days, subject to the right of the employer to
separation pay or backwages but a form of indemnity. declare within this period that a permanent partial or
2. Only salaries are to be included in the computation total disability already exists. The seaman may of
of the amount due for the unexpired portion of the course also be declared fit to work at any time such
contract. Overtime, holiday and leave pay and declaration is justified by his medical condition.
The POEA Standard Employment Contract and the CBA No. Salazar v. Achacoso, declared that the exercise by
clearly provide that when a seafarer sustains a work- the DOLE Secretary of his twin powers to issue arrest
related illness or injury while on board the vessel, his warrant and search and seizure orders provided under
fitness or unfitness for work shall be determined by Article 38[c] of the Labor Code is unconstitutional.
the company-designated physician. If the physician Only regular courts can issue such orders.
appointed by the seafarer disagrees with the
company-designated physician’s assessment, the Remittance of foreign exchange earnings by OFWs
opinion of a third doctor may be agreed jointly mandatory:
between the employer and the seafarer to be the Requirement: All overseas Filipino workers are
decision final and binding on them. required to remit a portion of their foreign exchange
• Which/Who has jurisdiction over an OFW’s claims earnings ranging from 50% to 80%, depending on the
for disability and death benefits? worker’s kind of job, to their families, dependents
and/or beneficiaries (Rule VIII, Book III, POEA Rules)
a) The Labor Arbiter/s, NOT the SSS, have jurisdiction
over claims for disability, death and other benefits of Seamen or Merchants – 80%
OFWs. Workers for Filipino Contractors and Construction
b) Labor Arbiters have jurisdiction even if the case is companies – 70%
filed by the heirs of the deceased OFW. Professionals whose Employment Contract provided
• Is the Labor Code’s concept of permanent total for Lodging Facilities- 70%
disability similar to that of OFWs? Professional without Board and Lodging- 50%
Yes. The concept of this kind of disability under Article Domestic and other Service Workers- 50%
192 of the Labor Code is applicable to them as
reiterated lately in the 2013 case of Kestrel Shipping All other workers- 50%
Co., Inc. v. Munar. EMPLOYMENT OF NON-RESIDENT ALIENS
• What are the requisites for compensability of injury What is an ALIEN EMPLOYMENT PERMIT (AEP)?
or illness of seafarers?
AEP - a document issued by the DOLE Secretary
1. It should be work-related; and through the DOLE-Regional Director who has
2. The injury or illness existed during the term of the jurisdiction over the intended place of work of the
seafarer’s employment contract. foreign national, authorizing the foreign national to
work in the Philippines.
1
Who are required to procure AEP?
What is direct hiring?
All foreign nationals who intend to engage in gainful
“Direct Hiring” refers to the process of directly hiring employment in the Philippines are required to apply
workers by employers for overseas employment as for AEP.
authorized by the DOLE Secretary and processed by
the POEA, including: “Gainful employment” refers to a state or condition
that creates an employer-employee relationship
1. Those hired by international organizations; between the Philippine-based company and the
2. Those hired by members of the diplomatic corps; foreign national where the former has the power to
hire or dismiss the foreign national from employment,
3. Name hires or workers who are able to secure
pays the salaries or wages thereof and has authority
overseas employment opportunity with an employer to control the performance or conduct of the tasks and
without the assistance or participation of any agency. duties.
Does the POEA Administrator or the DOLE Secretary or What are the categories of foreign nationals
DOLE Regional Director have the power to issue EXEMPTED from securing AEP?
closure order?
a) All members of the diplomatic service and foreign
Yes. If upon preliminary examination or surveillance, government officials accredited by and with
the DOLE Secretary, the POEA Administrator or DOLE reciprocity arrangement with the Philippine
Regional Director is satisfied that such danger or government;
exploitation exists, a written order may be issued for
the closure of the establishment being used for illegal b) Officers and staff of international organizations of
recruitment activity. which the Philippine government is a member, and
their legitimate spouses desiring to work in the
Does the DOLE Secretary have the power to issue
Philippines;
warrant of arrest and search and seizure orders?
c) All foreign nationals granted exemption by law;
d) Owners and representatives of foreign principals advanced level of expertise essential to the
whose companies are accredited by the POEA, who establishment/provision of the service and/or
come to the Philippines for a limited period and solely possesses proprietary knowledge of the organization's
for the purpose of interviewing Filipino applicants for service, research equipment, techniques or
employment abroad; management; may include, but is not limited to,
members of a licensed profession.
e) Foreign nationals who come to the Philippines to
teach, present and/or conduct research studies in e) Contractual service supplier who is a manager,
universities and colleges as visiting, exchange or executive or specialist and an employee of a foreign
adjunct professors under formal agreements between service supplier which has no commercial presence in
the universities or colleges in the Philippines and the Philippines:
foreign universities or colleges; or between the (i) who enters the Philippines temporarily to supply a
Philippine government and foreign government: service pursuant to a contract between his/her
provided that the exemption is on a reciprocal basis; employer and a service consumer in the Philippines;
and
(ii) must possess the appropriate educational and
f) Permanent resident foreign nationals and professional qualifications; and
probationary or temporary resident visa holders under
Section 13 of the Philippine Immigration Act of 1940. (iii) must be employed by the foreign service supplier
for at least one (1) year prior to the supply of service
What are the categories of foreign nationals in the Philippines.
EXCLUDED from securing AEP?
What is the validity of an AEP?
a) Members of the governing board with voting rights
only and do not intervene in the management of the One (1) year is the validity of an AEP.
corporation or in the day-to-day operation of the Exception: When employment contract provides
enterprise. otherwise but not to exceed three (3) years.
b) Corporate officers as provided under the The AEP may be renewed subject to the conditions
Corporation Code of the Philippines, Articles of imposed by law.
Incorporation, and By-laws of the Corporation such as
President, Secretary and Treasurer. TRAINING AND EMPLOYMENT OF SPECIAL WORKERS
P – Persons in the personal service of another Basic Salary (For purposes of computing the 13th
month pay)
Same as the Domestic Helper but includes not only
domestic servants or house helpers but drivers, valets Ø include remuneration or earnings paid by this ER for
and bodyguards as well. services rendered
o 1/12 of the total basic salary earned by an EE within P – Persons in the personal service of another
a calendar year. G – Government Employee
o To be paid only to rank-and file employees The government and any of its political subdivisions,
regardless of the amount of their basic salary. including GOCC’s, except those corporations operating
o Paid not later than December 24. essentially as private subsidiaries of the government.