LABOR LAW AND SOCIAL LEGISLATION

PRELIMINARY TITLE
Chapter I. General Provisions

Art. 1 NAME OF DECREE

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

Art. 2 DATE OF EFFECTIVITY

This Code shall take effect six (6) months after its promulgation.

Labor legislation
Consists of statutes, regulations, and jurisprudence governing the relations between capital and labor by providing
for certain employment standards and a legal framework for negotiating, adjusting and administering those standards
and other incidents of employment.

Labor legislation is divided into:

(1) Labor standards
(2) Labor relations

Labor standards
Terms and conditions of employment that employers must comply with and to which employees are entitle to as a
matter of legal right

Labor relations
Defines the status, rights and duties, and the institutional mechanisms that govern the individual and collective
interactions of employers, employees, or their representatives

Labor
Physical toil although it does not necessarily exclude the application of skill

Skill
The familiar knowledge of any art or science, united with readiness and dexterity in execution or performance or in
the application of the art or science to practical purposes.

Work
Covers all forms of physical or mental exertion, or both combined, for the purpose of some object other than
recreation or amusement per se.

Worker
Any member of the labor force, whether employed or unemployed (Art. 13, Labor Code)
Employee
Salaried person working for another who controls or supervises the means, manner or method of doing the work.

LABOR LAW AND SOCIAL LEGISLATION

Social Legislation
Laws that provide particular kinds of protection or benefits to society or segments thereof in furtherance of social
justice.
Labor laws are social legislation but not all social legislations are labor laws. In other words, in relation to each
other, social legislation as a concept is broader, labor laws narrower.

SOCIAL JUSTICE AS THE AIM

The aim and the reason and, therefore, the justification of labor laws is social justice.

1987 Constitution, Art II, Sec. 9

The State shall promote a just and dynamic social order that will ensure the prosperity and independence of the
nation and free the people from poverty through policies that provide adequate social services, promote full
employment, a rising standard of living, and an improved quality of life for all.

POLICE POWER AS THE BASIS

It is the power of the government to enact laws, within constitutional limits, to promote the order, safety, health,
moral and general welfare of society.

It has been ruled that the right of every person to pursue a business, occupation, or profession is subject to the
paramount right of the government as a part of its police power to impose such restrictions and regulations as the
protection of the public may require.

BIRTH OF THE LABOR CODE

Blas F. Ople – Father of the Labor Code
Signed into law as PD No. 442 on May 1, 1974

WHAT IS THE LABOR CODE?

The Labor Code is a set of substantive and procedural laws that prescribe the principal rights and responsibilities of
the industrial participants, so as to institute social justice.

RELATED LAWS

(1) The Civil Code

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

Neither capital nor labor shall act oppressively against the other, or impair the interest or convenience of
the public (Article 1701)

Art. 19. Every person must in the exercise of his right and in the performance of his duties, act with justice,
give everyone their due, and observe honesty and good faith.
Art. 20. Every person who contrary to law, willfully or negligently causes damage to another, shall
compensate the latter for the same.
Art. 21. Any person who willfully causes loss or injury to another in a manner that is contrary to morals,
good customs or public policy shall compensate the latter for the damage.

(2) The Revised Penal Code

Article 289 of the RPC punishes the use of violence or threats by either employer or employee. It says:
“The penalty of arresto mayor and a fine not exceeding P300 shall be imposed upon any person who, for
 the purpose of organizing, maintaining or preventing coalitions of capital or labor, strike of laborers or
lockout of employers, shall employ violence or threats in such a degree as to compel or force the laborers
or employers in the free and legal exercise of their industry or work, if the act shall not constitute a more
serious offense in accordance with the provisions of this Code.”

(3) Special Laws

 SSS Law
 GSIS Law
 Agrarian Reform Law
 13TH month pay law
 Magna Carta for Public Health Workers

INTERNATIONAL ASPECT
The International Labour Organization is the UN specialized agency which seeks the promotion of social justice and
internationally recognized human and labour rights. Philippines is a member of the ILO.

An essential characteristic of ILO is tripartism, that is, it is composed not only of government representatives but
also of employers’ and workers’ organizations. The principle of tripartism permeates the composition of ILO’s
deliberative bodies and influences in many respects the contents of ILO instruments.

Ratification Generally Needed; Exception

As a rule, ILO conventions are binding only for those member-states that ratify them. In 1999, however, the ILO
adoped a Declaration on Fundamental Principles and Rights at Work concerning an obligation of all ILO members
to respect and promote the fundamental rights even if they have not ratified the conventions.

ART. 3. DECLARATION OF BASIC POLICY

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

NONDISCRIMINATION
Since labor laws are instruments of diffusion of wealth, this Article 3 requires the State not just to promote full
employment but to assure as well equal work opportunities regardless of sex, race or creed.

It should be noted that Article 3 is incomplete in identifying “sex, race, or creed” as the three classes or qualities that
cannot justify discrimination. The anti-discrimination rule is much broader than this.

ART. 4. CONSTRUCTION IN FAVOR OF LABOR

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

INTERPRETATION AND CONSTRUCTION

Laborer’s Welfare; Liberal Approach
In carrying out and interpreting the Labor Code’s provisions and its implementing regulations, the working man’s
welfare should be the primordial and paramount consideration.
In interpreting the Constitution’s protection to labor and social justice provisions and the labor laws and rules and
regulations implementing the constitutional mandate, the Supreme Court adopts the liberal approach which favors
the exercise of labor rights.

Reason for According Greater Protection to Employees

In the matter of employment bargaining, there is no doubt that the employer stands on higher footing than the
employee. First of all, there is greater supply than demand for labor. Secondly, the need for employment by labor
comes from vital, and even desperate, necessity.

It is safe to presume, therefore, that an employee or laborer who waives in ADVANCE any benefit granted him by
law does so, certainly not in his interest or through generosity but under the forceful intimidation of urgent need, and
hence, he could not have so acted freely and voluntarily.

The 1987 Constitution (Article II, Sec. 18) declares as a state policy: “The state affirms labor as a primary social
economic force. It shall protect the rights of workers and promote their welfare.”

The Constitution commands: “The State shall afford protection to labor, local and overseas, organized and
unorganized, and promote full employment and equality of employment opportunities for all.”

The Constitution specifies the guaranteed basic rights of workers, namely:

(1) Right to organize themselves
(2) Right to conduct collective bargaining or negotiation with management
(3) Right to engage in peaceful concerted activities, including to strike in accordance with law
(4) Right to enjoy security of tenure
(5) Right to work under humane conditions
(6) Right to receive a living wage
(7) Right to participate in policy and decision-making processes affecting their right and benefits as may be
provided by law.

Concerning the rights of capital:

“The State recognizes the indispensable role of the private sector, encourage private enterprises, and provides
incentives to needed investments.”

JUSTICE, THE INTENTION OF THE LAW

Protection of labor and resolution of doubts in favor of labor cannot be pursued to the point of deliberately
committing a miscarriage of justice.

Article 4 cannot be taken to have superseded Art 10 of the Civil Code that states: “In case of doubt in the
interpretation or application of laws, it is presumed that the lawmaking body intended right and justice to prevail.”

MANAGEMENT RIGHTS
Justice is in every case for the deserving, to be dispensed in the light of the established facts and the applicable law
and doctrine.
(1) Right to return of investment and to make profit
(2) Right to prescribe rules
 Employers have the right to make reasonable rules and regulations for the government of their
employees, and when employees, with knowledge of an established rule, enter the service, the rule
becomes a part of the contract of employment.
(3) Right to select employees
 (4) Right to Transfer or Discharge Employees

RESTRICTIONS TO MANAGEMENT RIGHTS

The Constitution says that the right to own and operate economic enterprises is “subject to the duty of the State to
promote distributive justice and to intervene when the common good so demands.”

Management rights are subject to limitations provided by:

(1) Law
(2) Contract, whether individual or collective
(3) General Principles of fair play and justice

ART. 5. RULES AND REGULATIONS

The Department of Labor and Employment and other government agencies charged with the administration
and enforcement of this Code or any of its parts shall promulgate the necessary implementing rules and
regulations. Such rules and regulations shall become effective fifteen (15) days after announcement of their
adoption in newspapers of general circulation.

RULES AND REGULATIONS TO IMPLEMENT THE CODE

It has been ruled that administrative regulations and policies enacted by administrative bodies to interpret the law
which they are entrusted to enforce have the force of law, and are entitled to great respect.

When Invalid
A rule or regulations promulgated by an administrative body, such as the Department of Labor, to implement a law,
in excess of its rule-making authority, is void.

An administrative interpretation which takes away a benefit granted in the law is ultra vires, that is, beyond one’s
power.

ART. 6. APPLICABILITY
All rights and benefits granted to workers under this Code shall, except as may otherwise be provided herein,
apply alike to all workers, whether agricultural or non-agricultural.

APPLICABILITY TO GOVERNMENT CORPORATIONS

The Labor Code applies to a government corporation incorporated under the Corporation Code.

The 1987 Constitution provides:

“The Civil Service embraces all branches, subdivisions, instrumentalities and agencies of the Government, including
government-owned or controlled corporations with original charters.”

Government corporations created by Congress are subject to Civil Service rules, while those incorporated under the
general Corporation Law are covered by the Labor Code.

PNOC-EDC, FTI, NHA

PNOC-EDC – incorporated under the general Corporation Law. Its employees are subject to the provisions of the
Labor Code, among which are those on the rights to unionize and to strike.

Food Terminal, Inc. is a government-owned and controlled corporation without original charter. The DOLE, and not
the CSC has jurisdiction over the dispute arising from employment with FTI.
NHA was incorporated under Act No. 1459, the former corporation law, it is a government-owned or controlled
corporation whose employees are subject to the provisions of the Labor Code.

NON-APPLICABILITY TO GOVERNMENT AGENCIES

Instrumentality – authority to which the state delegates government power for the performance of a state function.

In case of a labor dispute between the employees and the government, Section 15 of E.O. No. 180, dated June 1,
1987 provides that the Public Sector Labor-Management Council, not the DOLE, shall hear the dispute.

Similarly, employees of the SSS are civil service employees. When they went on strike, the RTC, not the NLRC,
had jurisdiction to hear the petition to enjoin the strike.

NOTE: Notwithstanding the above stated, it should be noted that the Labor Code provisions on the State Insurance
Fund do apply to government personnel covered by the GSIS.

APPLICABILITY WITHOUT EMPLOYER-EMPLOYEE RELATIONSHIP

Employment relationship is NOT a pre-condition to the applicability of the Code.

When one speaks of employment benefits or of unionization, then employment relationship is an essential
requirement.

CHAPTER II
EMANCIPATION OF TENANTS
(to be discussed in Agrarian Reform Law)

BOOK ONE
PRE-EMPLOYMENT

ART. 12. STATEMENT OF OBJECTIVES

It is the policy of the State:
(a) To promote and maintain a state of full employment through improved manpower training,
allocation and utilization;
(b) To protect every citizen desiring to work locally or overseas by securing for him the best possible
terms and condition of employment;
(c) To facilitate a free choice of available employment by persons seeking work in conformity with the
national interest;
(d) To facilitate and regulate the movement of workers in conformity with the national interest;
(e) To regulate the employment of aliens, including the establishment of a registration and/or work
permit system;
(f) To strengthen the network of public employment offices and rationalize the participation of the
private sector in the recruitment and placement of workers, locally and overseas, to serve national
development objectives;
(g) To insure careful selection of Filipino workers for overseas employment in order to protect the good
name of the Philippines abroad.
 Title I
RECRUITMENT AND PLACEMENT OF WORKERS

Chapter I
GENERAL PROVISIONS

ART. 13. DEFINITIONS

(a) “Worker” means any member of the labor force, whether employed or unemployed
(b) “Recruitment and placement” refers to any act of canvassing, enlisting, contracting, transporting,
utilizing, hiring or procuring workers, and includes referrals, contract services, promising or
advertising for employment, locally or abroad, whether for profit or not: Provided, That any person
or entity which, in any manner, offers or promises for a fee employment to two or more persons shall
be deemed engaged in recruitment and placement.
(c) “Private fee-charging employment agency” means any person or entity engaged in the recruitment
and placement of workers for a fee which is charged, directly or indirectly, from the workers or
employers or both.
(d) “License” means a document issued by the Department of Labor authorizing a person or entity to
operate a private employment agency.
(e) “Private recruitment entity” means any person or association engaged in the recruitment and
placement of workers, locally or overseas, without charging, directly or indirectly, any fee from the
workers or employers.
(f) “Authority” means a document issued by the Department of Labor authorizing a person or
association to engage in recruitment and placement activities as a private recruitment agency.
(g) “Seaman” means any person employed in a vessel engaged in maritime navigation.
(h) “Overseas employment” means employment of a worker outside the Philippines.
(i) “Emigrant” means any person, worker or otherwise, who emigrates to a foreign country by virtue of
an immigrant visa or resident permit or its equivalent in the country of destination.

Any such activity done by any person without the required license from the Bureau of Local Employment or the
Philippine Overseas Employment Administration is punishable as illegal recruitment.

ART. 14. EMPLOYMENT PROMOTION

The Secretary of Labor shall have the power and authority:
(a) To organize and establish new employment offices in addition to the existing employment offices
under the Department of Labor as the need arises;
(b) To organize and establish a nationwide job clearance and information system to inform applicants
registering with a particular employment office of job opportunities in other parts of the country as
well as job opportunities abroad;
(c) To develop and organize a program that will facilitate occupational, industrial and geographical
mobility of labor and provide assistance in the relocation of workers from one area to another; and
(d) To require any person, establishment, organization or institution to submit such employment
information as may be prescribed by the Secretary of Labor.

THE DOLE: ITS RESPONSIBILITY

The Administrative Code of 1987 names the DOLE as “the primary policy-making, programming, coordinating, and
administrative entity of the Executive Branch of the government in the field of labor and employment.”

Primary responsibilities:
  The promotion of gainful employment opportunities and the optimization of the development and
utilization of the country’s manpower resources;
 The advancement of worker’s welfare by providing for just and humane working conditions and
terms of employment;
 The maintenance of industrial peace by promoting harmonious, equitable and stable employment
relations that assure protection for the rights of all concerned parties.

ART. 15. BUREAU OF EMPLOYMENT SERVICES

(a) The Bureau of Employment Services shall be primarily responsible for developing and monitoring a
comprehensive employment program. It shall have the power and duty:
a. To formulate and develop plans and programs to implement the employment promotion
objectives of this Title;
b. To establish and maintain a registration and/or licensing system to regulate private sector
participation in the recruitment and placement of workers, locally and overseas, and to
secure the best possible terms and conditions of employment for Filipino contract workers
and compliance therewith under such rules and regulations as may be issued by the
Department of Labor and Employment;
c. To formulate and develop employment programs designed to benefit disadvantaged groups
and communities;
d. To establish and maintain a registration and/or work permit system to regulate the
employment of aliens
e. To develop a labor market information system in aid of proper manpower and development
planning;
f. To develop a responsible vocational guidance and testing system in aid of proper human
resources allocation; and
g. To maintain a central registry of skills, except seamen.

E.O. 797 created a Bureau of Local Employment to assume the functions of the Bureau of Apprenticeship and the
Bureau of Employment Services.

D.O. No. 141-14 contains the Revised Rules and Regulations Governing Recruitment and Placement for Local
Employment. The reference to “overseas” recruitment and placement now pertains to POEA, not BLE (formerly
BES) in Article 15 (a,2)

ART. 16. PRIVATE RECRUITMENT

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

AUTHORIZED ENTITIES
Although this Article says that only public employment offices shall engage in the recruitment and placement of
workers, Article 25 provides a broad exception as it states that “the private employment sector shall participate in
the recruitment and placement of workers, locally and overseas.”

The follower entities are authorized to recruit and place workers for local or overseas employment:
a. Public employment offices (PESO)
b. Private employment agencies
c. Shipping or manning agents or representatives
d. Philippine Overseas Employment Agency (POEA)
 e. Construction contractors if authorized to operate by DOLE and the Construction Industry
Authority
f. Members of the diplomatic corps although hirings done by them have to processed through the
POEA
g. Other persons or entities as may be authorized by the DOLE secretary

ART. 17. OVERSEAS EMPLOYMENT DEVELOPMENT BOARD

An Overseas Employment Development Board is hereby created to undertake, in cooperation with relevant
entities and agencies, a systematic program for overseas employment of Filipino workers in excess of
domestic needs and to protect their rights to fair and equitable employment practices.
It shall have the power and duty:
1. To promote the overseas employment of Filipino workers through a comprehensive market
promotion and development program.
2. To secure the best possible terms and conditions of employment of Filipino contract workers of a
government-to-government basis and to ensure compliance therewith;
3. To recruit and place workers for overseas employment on a government-to-government arrangement
and in such other sectors as policy may dictate; and
4. To act as secretariat for the Board of Trustees of the Welfare and Training Fund for Overseas
Workers.

E.O. No. 797 was passed in 1982 aimed at streamlining operations in the overseas employment program. The
OEDB, NSB, and the overseas employment program of the Bureau of Employment Services were united in a single
structure – the Philippine Overseas Employment Administration (POEA)

R.A. No. 8042, approved on June 7, 1995, is known as the “Migrant Workers and Overseas Filipinos Act of 1995.”
This law institutes the policies on overseas employment and establishes a higher standard of protection and
promotion of the welfare of migrant workers, their families, and of overseas Filipinos in distress.

R.A. No. 10022, improves the standard of protection and promotion of welfare provided under R.A. No. 8042.

OVERSEAS EMPLOYMENT POLICY

RA 8042 as amended by RA 10022 seek to afford heavy lines of protection and assistance for both document and
undocumented migrant workers.

Policies on Migrant Workers

(a) The State shall, at all times, uphold the dignity of its citizens where in country or overseas, in general, and
Filipino migrant workers, in particular, and endeavor to enter into bilateral agreements with countries
hosting overseas Filipino workers.
(b) The State shall afford full protection to labor, local and overseas, organized and unorganized, and promote
full employment and equality of employment opportunities for all.
(c) While recognizing the significant contributions of Filipino migrant workers to the national economy
through their foreign exchange remittances, the State does not promote overseas employment as a means to
sustain economic growth and achieve national development. The State, therefore, shall continuously create
local employment opportunities and promote the equitable distribution of wealth the benefits of
development.
(d) The State affirms the fundamental equality before the law of women and men and the significant role of
women in nation-building. The State shall apply gender-sensitive criteria in the formulation and
implementation of policies and programs.
 (e) Free access to the courts and quasi-judicial bodies and adequate legal assistance shall not be denied to any
person by reason of poverty. The rights and interest of distressed overseas Filipinos, in general, and
Filipino migrant workers, in particular, whether regular/document or irregular/undocumented, shall be
adequately protected and safeguarded.
(f) Filipino migrant workers and all overseas Filipinos have the right to participate in the democratic decision-
making processes of the State and to be represented in institutions relevant to overseas employment.
(g) The State recognizes that the most effective tool for empowerment is the possession of skills by migrant
workers. The government shall provide them free and accessible skills development and enhancement
programs. The government shall deploy and/or allow the deployment only of skilled Filipino workers.
(h) The State recognizes [that] non-governmental organizations, trade unions, workers associations,
recruitment and manning agencies and similar entities duly recognized as legitimate, are partners of the
State in the protection of Filipino migrant workers and in the promotion of their welfare.
(i) Government fees and other administrative costs of recruitment, introduction, placement and assistance to
migrant workers shall be rendered free without prejudice to the provision of Section 36 of R.A. No. 8042.
Nonetheless, the deployment of Filipino overseas workers, whether land-based or sea-based, by
local service contractors and manning agencies employing them shall be encouraged. Appropriate
incentives may be extended to them.

OFWs: Land-based or Sea-based

Officially, OFW’s are classified by DOLE as either land-based or sea-based. Sea-based OFW’s (or seamen) are
those employed in a vessel engaged in maritime navigation.

Sea-based work pertains to ship operations like navigation, engineering, maintenance, including a variety of
occupations from kitchen staff to on-board entertainment in large vessel ships.

Land-based OFW’s are contract workers other than a seaman including workers engaged in offshore activities
whose occupation requires that majority of his working/gainful hours are spent on land.

Selective Deployment
R.A. No. 8042 recognizes any of the following as a guarantee of the receiving country for the protection of overseas
Filipino workers:

a. It has existing labor and social laws protecting the rights of workers, including migrant workers;
b. It is a signatory to and/or a ratifier of multilateral conventions, declarations or resolutions relating to the
protection of workers, including migrant workers; and
c. It has concluded a bilateral agreement or arrangement with the government on the protection of the rights
of overseas Filipino Workers:
Provided, That the receiving country is taking positive, concrete measures to protect the rights of
migrant workers in furtherance of any of the guarantees under subparagraphs (a), (b) and (c)
thereof.

For this purpose, the DFA, through its foreign posts, shall issue a certification to the POEA, specifying therein the
pertinent provisions of the receiving country’s labor/social law, or the convention/declaration/resolution, or the
bilateral agreement/arrangement which protect the rights of migrant workers.

The members of the POEA Governing Board who actually voted in favor of an order allowing the deployment of
migrant workers without any of the aforementioned guarantees shall suffer the penalties of removal or dismissal
from service with disqualification to hold any appointive public office for five (5) years. Further, the government
official or employee responsible for the issuance of the permit or for allowing the deployment of migrant workers in
violation of this section and in direct contravention of an order by the POEA Governing Board prohibiting
deployment shall be meted the same penalties in this section.

When public welfare so requires, the POEA Governing Board, AFTER consultation with the Department of
Foreign Affairs, may, at any time, terminate or impose a ban on the deployment of migrant workers.

THE POEA; OVERVIEW OF ITS FUNCTIONS AND POWERS

POEA performs administrative, regulatory and enforcement, as well as limited adjudicatory functions. Accordingly,
the POEA has issued and amended the rules and regulations governing overseas employment.

REALIGNMENT OF JURISDICTION
R.A. No. 8042 has transferred employer-employee relations cases from the POEA to the NLRC.

Among the cases now in the hands of labor arbiters are money claims arising from pre-termination of the
employment contract without valid cause. In such case, Section 10 of R.A. No. 8042 entitles the OFW to
“reimbursement of his placement fee with interest plus his salary for the unexpired portion of the employment
contract.”

JURISDICTION RETAINED WITH POEA

After the passage of R.A. No. 8042, the POEA retains original and exclusive jurisdiction to hear and decide:

(a) All cases which are administrative in character, involving or arising out of violations of rules and
regulations relating to licensing and registration of recruitment and employment agencies or entities; and
(b) Disciplinary action cases and other special cases which are administrative in character, involving
employers, principals, contracting partners and Filipino migrant workers.

GROUNDS FOR DISCIPLINARY ACTION

Commission by the worker of any of the offenses enumerated in Section 145 of the 2016 POEA rules is subject to
appropriate disciplinary actions as the POEA may deem necessary. The offenses include:

 Submission of false information or documents

 Unjustified refusal to continue his/her application after signing an employment contract
 Commission of a felony punishable by Philippine laws or by the laws of the host country
 Possession or use of prohibited drugs
 Embezzlement of company funds or of money and properties of a fellow worker entrusted for delivery to
kins or relatives in the Philippines
 Unjust refusal to depart for the worksite after all employment and travel documents have been duly
approved by the appropriate government agency/ies; and violation/s of the law and cultural practices of the
host country.

To Whom Appealable

POEA decisions on cases within its jurisdiction are appealable not to the NLRC nor directly to the Court of Appeals
but to the Secretary of Labor.

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 Department of Labor and Employment. Direct-hiring by members of the diplomatic corps,
international organization and such other employers as may be allowed by the Department of Labor and
Employment is exempted from this provision.
Direct hiring of Filipino workers by a foreign employer is not allowed.

EXCEPTION:
When direct hiring is done by members of the diplomatic corps and others mentioned in this Article.
Also excepted are “name hires” or those individual workers who are able to secure contracts for overseas
employment on their own efforts and representation without the assistance or participation of any agency. Their
hiring, nonetheless, has to be processed through the POEA.

Name hires should register with the POEA by submitting the following documents:
(a) Employment contract
(b) Valid passport
(c) Employment visa or work permit, or equivalent document
(d) Certificate of medical fitness
(e) Certificate of attendance to the required employment orientation/briefing

ART. 19. OFFICE OF EMIGRANT AFFAIRS

(a) Pursuant to the national policy to maintain close ties with Filipino migrant communities and promote
their welfare as well as establish a data bank in aid of national manpower policy formulation, an
Office of Emigrant Affairs is hereby created in the Department of Labor. The Office shall be a unit
at the Office of the Secretary and shall initially be manned, and operated by such personnel and
through such funding as are available within the Department and its attached agencies. Thereafter,
its appropriation shall be made part of the regular General Appropriations Decree.
(b) The office shall, among others, promote the well-being of emigrants and maintain their close link to
the homeland by:
a. Serving as a liaison with migrant communities
b. Providing welfare and cultural services
c. Promoting and facilitating re-international of migrants into the national mainstream
d. Promoting economic, political and cultural ties with the communities
e. Undertaking such activities as may be appropriate to enhance such cooperative links.

ART. 20. NATIONAL SEAMEN BOARD

(a) A National Seamen Board is hereby created which shall develop and maintain a comprehensive
program for Filipino seamen employed overseas. It shall have the power and duty:
a. To provide free placement services for seamen;
b. To regulate and supervise the activities of agents or representatives of shipping companies in
the hiring of seamen for overseas employment; and secure the best possible terms of
employment for contract seamen workers and secure compliance therewith;
c. To maintain a complete registry of all Filipino seamen.
i. The Board shall have original and exclusive jurisdiction over all matters or cases
including money claims, involving employer-employee relations, arising out of or by
virtue of any law or contracts involving Filipino seamen for overseas employment.

NSB NOW POEA

E.O. No. 797 abolished the National Seamen Board and transferred its functions to the POEA. The adjudicatory
jurisdiction of the office has been moved to the NLRC by R.A. No. 8042 since 1995.

ARTICLE 20 CONSTRUED; SEAMEN’S EMPLOYMENT CONTRACTS AND THE INTERNATIONAL

TRANSPORT WORKER’S FEDERATION
Article 20, no. 2, requires the POEA to “secure the best possible terms of employment for contract seamen workers
and secure compliance therewith.” The implication of this article are illustrated in the landmark case of Wallem
Shipping, Inc. vs. Ministry of Labor,on the question of immutability (changeability) of seamen’s standard contract.

The Court ruled:

“But even if there had been such a threat, respondents’ (seamen) behavior should not be censured because it is but
natural for them to employ some means of pressing their demands on the petitioner, who refused to abide with the
terms of the Special Agreement, to honor and respect the same. They were only acting in the exercise of their rights,
and to deprive them of their freedom of expression is contrary to law and public policy. There is not serious
misconduct to speak of in the case at bar which would justify respondents’ dismissal just because of their firmness in
their demand for the fulfillment by petitioner of the obligation it entered into without any coercion, especially on the
part of private respondents.

“On the other hand, it is the petitioner [employer] who is guilty of breach of contract when it dismissed the
respondents without just cause and prior to the expiration of the employment contracts. As the records clearly show,
petitioner voluntarily entered into the Special Agreement with ITF and by virtue thereof the crew men were actually
given their salary differentials in view of the new rates.”

Other Cases:
Vir-Jen Shipping and Marine Services vs. NLRC

The form contracts approved by the National Seamen Board [now POEA] are designed to protect Filipinos, not
foreign shipowners who can take care of themselves. The standard forms embody the basic minimums which must
be incorporated as parts of the employment contract. They are not collective bargaining agreements or immutable
contracts which the parties cannot improve upon or modify in the course of the agreed peril of time.

EMPLOYMENT CONDITIONS
Which law should govern one’s foreign employment?
Such jurisdiction may be that one selected by the parties. If the parties fail to select the law to be applied, the law of
the country with which the contract is “most closely connected” will apply.

Lex loci laboris – law of the country where the employee habitually carries out his work

Protection of OFWs; Lex Loci Contractus

Does the Labor Code and the Implementing Rules cover a Filipino working abroad?
To this question, the Supreme Court has replied affirmatively in at least three cases.
The Court declares in Sameer, “Employees are not stripped of their security of tenure when they move to work in a
different jurisdiction. With respect to the rights of overseas Filipino workers, we follow the principle of lex loci
contractus.”

There is no question that the contract of employment in this case was perfected here in the Philippines. Therefore, the
Labor Code, its implementing rules and regulations, and other laws affecting labor apply in this case.” These include
the POEA-SEC (Standard Employment Contract)

Minimum Provisions of POEA-SEC

a. Complete name and address of the employer/company
b. Position and jobsite of the OFW
 c. Basic monthly salary, including benefits and allowances and mode of payment. The salary shall not be lower
than the prescribed minimum wage in the HOST COUNTRY or prevailing minimum wage in the National
Capital Region of the Philippines, whichever is higher
d. Food and accommodation or the monetary equivalent which shall be commensurate to the cost of living in
the host country, or off-setting benefits
e. Commencement and duration of contract
f. Free transportation from and back to the point of hire, or off-setting benefits, and free inland transportation
at the jobsite or off-setting benefits
g. Regular work hours and day off
h. Overtime pay for services rendered beyond the regular working hours, rest days and holidays
i. Vacation leave and sick leave for every year of service
j. Free emergency medical and dental treatment
k. Just/valid/authorized causes for termination of the contract or of the services of the workers, taking into
consideration the customs, traditions, norms, mores, practices, company policies, and the labor laws and
social legislations of the host country
l. Settlement of disputes
m. Repatriation of worker in case of imminent danger due to war, calamity, and other analogous circumstances,
at the expense of the employer
n. In case of worker’s death/repatriation of OFW human remains and personal belongings, at the expense of the
employer

Disability Benefits for Injury or Illness

Maunlad Trans. Inc vs. Camoral

Elements required for an injury to be compensable:

(1) The injury or illness is work-related
(2) It occurred during the term of the seafarer’s contract

Section 20. Compensation and Benefits. –

(B) Compensation and Benefits for Injury or Illness
xxx
3. Upon sign-off from the vessel for medical treatment, the seafarer is entitled to sickness allowance equivalent to his
basic wage until he is declared fit to work or the degree of permanent disability has been assessed by the company-
designated physician but in no case shall this period exceed one hundred twenty (120) days.

For this purpose, the seafarer shall submit himself to a post employment medical examination by a company-
designated physician within three working days upon his return, except when he is physically incapacitated to do so,
in which case, a written notice to the agency within the same period is deemed as compliance. Failure of the seafarer
to comply with the mandatory reporting requirements shall result in his forfeiture of the right to claim the above
benefits.

If a doctor appointed by the seafarer disagrees with the assessment, a third doctor may be agreed jointly between the
employer and the seafarer. The third doctor’s decision shall be final and binding on both parties.

4. Those illnesses not listed in Section 32 of this Contract are disputably presumed as work-related.
5. Upon sign-off of the seafarer from the vessel for medical treatment, the employer shall bear the full cost of
repatriation in the event the seafarer is declared (1) fit for repatriation; or (2) fit to work but the employer is unable to
find employment for the seafarer on board his former vessel or another vessel of the employer despite efforts.
6. In case of permanent total or partial disability of the seafarer caused by either injury or illness, the seafarer shall be
compensated in accordance with the schedule of benefits arising from an illness or disease [sic] shall be governed by
the rates and the rules of compensation applicable at the time the illness or disease was contracted.

Permanent/Total Disability
Maersk Filipinas Crewing, Inc./Maersk Services Ltd. vs. Mesina explains what constitutes permanent as well as total
disability, thus:

Permanent disability is inability of a worker to perform his job for more than 120 days, regardless of whether
or not he loses the use of any part of his body. Total disability, on the other hand, means the disablement of an
employee to earn wages in the same kind of work of similar nature that he was trained for, or accustomed to perform,
or any kind of work which a person of his mentality and attainments could do. A total disability does not require that
the employee be completely disabled, or totally paralyzed. What is necessary is that the injury must be such that the
employee cannot pursue his or her usual work and earn from it. A total disability is considered permanent if it lasts
continuously for more than 120 days.

POEA-SEC, Labor Code, and AREC Harmonized

(a) The 120 days provided in Section 20-B (3) of the POEA SEC is the period given to the employer to determine
the fitness of the seafarer to work, during which the seafarer is deemed to be in state of total and temporary
disability;
(b) The 120 days of total and temporary disability may be extended by maximum of 120 days, or up to 240 days,
should the seafarer require further medical treatment;
(c) A total and temporary disability becomes permanent when so declared by the company-designated physician
within 120 days or 240 days, as the case may be, or upon the expiration of the said periods without declaration
of either fitness to work or permanent disability and the seafarer is still unable to resume his regular seafaring
duties.

While the seafarer is partially injured or disabled, he must not be precluded from earning doing the same work he had
before his injury or disability or that he is accustomed or trained to do. Otherwise, if his illness or injury prevents him
from engaging in gainful employment for a period for more than 120 days or 240 days, as in the case here, then he
shall be deemed totally and permanently disabled.

It is no consequence that he recovered, for what is important is that he was unable to perform his customary work for
more than 120 days, and this constitutes permanent total disability.

Need for Definite Assessment within 120/240 Days

Belchem Philippines, Inc. vs. Zafra
The company-designated physicians must arrive at a definite assessment of the seafarer’s fitness to work or permanent
disability within the period of 120 or 240 days, pursuant to Article 192(c)(1) of the Labor Code and Rule XI, Section
2 of the Amended Rules of Employees Compensation. If he fails to do so and the seafarer’s medical condition
remains unresolved, the latter shall be deemed totally and permanently disabled.

Third-doctor Referral
Upon notification, the company carries the burden of initiating the process for the referral to a third doctor commonly
agreed between the parties.

In the absence of any request from him, the employer-company cannot be expected to respond. As the party seeking
to impugn the certification that the law itself recognizes as prevailing, the employee bears the burden of positive action
to prove that his doctor’s findings are correct, as well as the burden to notify the company that a contrary finding had
been made by his own physician. Upon such notification, the company must itself respond by setting into motion the
process of choosing a third doctor who, as the POEA-SEC provides, can rule with finality on the disputed medical
situations.

Seafarer’s Death Benefit: Death Need Not Have Occurred During Term of Employment

In case of death of the seafarer during the term of his contract, the employer shall pay his beneficiaries the Philippine
Currency equivalent to the amount of Fifty Thousand US dollars ($50,000) and an additional amount of Seven
Thousand US dollars ($7,000) to each child under the age of twenty-one (21) but not exceeding four (4) children, at
the exchange rate prevailing during the time of payment.

The phrase “work-related death of the seafarer, during the term of his employment contract” should not be strictly
and literally construed to mean that the seafarer’s work-related death should have precisely occurred during
the term of his employment. Rather, it is enough that the seafarer’s work-related injury or illness which
eventually causes his death should have occurred during the term of his employment.

Seafarer’s Protection; New Law Against Ambulance Chasing

Elements of ambulance chasing
(1) A person or his agents solicits from a seafarer or his heirs, the pursuit of a claim against the employer of the
seafarer;
(2) Such claim is for the purpose of recovery of monetary award or benefits arising from accident, illness or
death, including legal interest; and
(3) The pursuit of the claim is in exchange of an amount or fee which shall be retained or deducted from the
monetary award or benefit granted or awarded to the seafarers or their heirs.

The total compensation for the person who appears for or represents seafarers or his/her heirs shall not exceed 10%
of the compensation or benefit awarded to the seafarer or his/her heirs.