Requisites of recruitment and

placement
In order for an activity to be considered as “recruitment and placement” as described in
Article 13 [b] of the Labor Code, the following elements must concur:
1. A person or entity is engaged in any act of canvassing, enlisting, contracting,
transporting, utilizing, hiring or procuring workers, including referrals, contract
services, promising or advertising for employment;
2. The recruitment and placement of workers is either for local or overseas
employment; and
3. The recruitment and placement may or may not be for profit. (See also Section 1, Rule I,
Book I, Rules to Implement the Labor Code).
Distinctions between Private
Employment Agency (PEA) and
Private Recruitment Entity (PRE)
As defined in Article 13 of the Labor Code, a private employment agency technically
may be distinguished from a private recruitment entity as follows:
1. A PEA has a right duly recognized in law to charge a fee, directly or indirectly,
from the workers or the employers or from both; while a PRE does not charge any
fee either directly or indirectly from the workers or employers to which they would be
deployed;
2. PEA is authorized to recruit only for overseas placement or deployment; while
PRE is allowed to recruit for both local and overseas deployment.
3. PEA derives its authority to recruit and place workers from a document
denominated as a “license”; while PRE sources its authority from a document called
“authority.”
Four requisites before deployment
of OFWs (Sec. 4 RA 8042)
SEC. 4. Deployment of Migrant Workers - The State shall deploy overseas Filipino
workers only in countries where the rights of Filipino migrant workers are protected. The
government recognizes any of the following as guarantee on the part of the receiving
country for the protection and the rights of overseas Filipino workers:
(a) It has existing labor and social laws protecting the rights of migrant workers;
(b) It is a signatory to multilateral conventions, declaration or resolutions relating to the
protection of migrant workers;
(c) It has concluded a bilateral agreement or arrangement with the government
protecting the rights of overseas Filipino workers; and
(d) It is taking positive, concrete measures to protect the rights of migrant workers.
Documented vs. undocumented
OFWs
Regular/Documented Filipino migrant workers.
The term "Regular/Documented Filipino migrant workers" is mentioned once in RA. No.
10022 but it was not defined therein. The 2010 Omnibus Rules and Regulations define
it as referring to the following:
1. Those who possess valid passports and appropriate visas or permits to stay and
work in the receiving country; and
2. Those whose contracts of employment have been processed by the POEA, or
subsequently verified and registered on-site by the POLO, if required by law or
regulation.

Irregular/Undocumented Filipino migrant workers.

The term "Irregular/Undocumented Filipino migrant workers" is also mentioned only
once in R.A. No. 10022 but it was not defined therein. The 2010 Omnibus Rules and
Regulations define it as referring to the following:
1. Those who acquire their passports through fraud or misrepresentation;
2. Those who possess expired visas or permits to stay;
3. Those who have no travel document whatsoever;
4. Those who have valid but inappropriate visas; or
5. Those whose employment contracts were not processed by the POEA or
subsequently verified and registered on-site by the POLO, if required by law or
regulation.
OFW in distress
The term “overseas Filipinos in distress” is defined under the Omnibus Rules as
referring to overseas Filipinos who have valid medical, psychological or legal assistance
problems requiring treatment, hospitalization, counseling, legal representation as
specified in Sections 24 and 26 of R.A. No. 8042 or any other kind of intervention with
the authorities in the country where they are found.
Nationality of the employer,
immaterial
"It must be emphasized that both the statute, specifically Section 14 (a) of EO No. 797,
as well as the relevant regulations, generally make reference to Employment to Filipinos
overseas. They do not limit the coverage to non-Filipino employers. Filipinos working
overseas share the same risks and burdens whether their employers be Filipino or
foreign."  (Philippine-Singapore Parts Corporation v. NLRC, G. R. No. 67035; Eastern
Shipping Lines, Inc. v. POEA, G. R. No. 77828)
"It is well-known that foreign-owned and foreign-registered vessels have frequently also
secured Philippine registration where the interest of convenience of the owners dictated
such second or dual registration. The underlying regulatory policy is that Filipino
seafarers working on ocean-going vessels should receive the same wages and benefits
without regard to nationality or nationalities of the vessels on which they
serve." (Eastern Shipping Lines, Inc. v. POEA, G. R. No. 77828)
Survey of doctrinal cases on the
nature of employment of OFWs
OFWs can never acquire regular employment
OFWs are contractual employees, NOT REGULAR EMPLOYEES
Related cases:
Brent School Inc. v Zamora (G. R. No. 48494, February 5, 1990, 181 SCRA 702)
Seamen (now Seafarers) and overseas contract workers are NOT COVERED by the
term “regular employment” as defined in Article 280 of the Labor Code;
Coyoca v. NLRC (G. R. No. 113658, March 31, 1995, 240 SCRA 190, 194)
Employment of Filipino Seamen is governed by the Rules and Regulations of the
POEA. The Standard Employment Contract governing the Employment of All Filipino
Seamen on Board Ocean-Going Vessels of the POEA, particularly Part 1, Sec. C which
provides that contract of Seamen shall be for a fixed period, shall not be longer than
twelve (12) months;
Millares v. NLRC (G. R. No. 110524, July 29, 2002, 385 SCRA 306)
OFW’s cannot acquire regular employment, the fact that employment of seafarers is
governed by the contracts they sign everytime they are re-hired and their employment is
terminated when the contract expires;
Employment is fixed for a certain period of time;
They fall under the exception of Art. 280 whose employment has been fixed for a
specific project or undertaking the completion or termination of which has been
determined at the time of engagement of the employee or where the work or service to
be performed is seasonal in the nature and the employment is for the duration of the
season.
Indefinite Period of Employment of OFW’s held NOT VALID
Pentagon international Shipping, Inc. v Adelantar (G. R. No. 157373, July 27, 2004)
Even if the employment contract of an OFW provides for an unlimited period, it is not
valid as it contravenes the explicit provision of the POEA Rules and Regulations on
fixed-period employment
OFWs do not become regular employees by reason of nature of work
An OFW cannot be considered a regular employee by reason of the fact that the work
he performs is usually necessary and desirable in the usual business or trade of the
employer.
Millares v. NLRC (G. R. No. 110524, July 29, 2002, 385 SCRA 306)
Petitioners Claim: they be considered as regular employees since they are performing
useful and desirable works and that they have rendered 20 years of service; in Brent
School Inc. v Zamora (G. R. No. 48494, February 5, 1990, 181 SCRA 702) Ruling, there
are certain forms of employment which also require the performance of usual and
desirable functions and which exceed one year but do not necessarily attain regular
employment status; OFWs and seafarers fall under this type of employment which are
governed by mutual agreement of the parties.
Regular employment does not result from the series of re-hiring of OFWs
Gu-Miro v. Adorable (G. R. No. 160952, August 20, 2004); continued re-hiring by the
company of the OFW to serve as Radio Officer on board the employer’s different
vessels should be interpreted not as a basis of regularization but rather as a series of
contract renewals.
TAKE NOTE: Unique cases where OFWs were declared regular employees
ATCI Overseas Corp. v CA (G. R. No. 143949, August 9, 2001); OFWs may attain
regularity of employment. Here the Filipino doctors were hired by the Ministry of public
health of Kuwait for a period of two years but were summarily terminated after 2 months
on the ground that they are physically unfit for the job. After seven months they had
ceased to work, they were repatriated to the Philippines. They claimed that they are
probationary employees at the time of their termination. Supreme Court said they are
regular employees because of the following reasons:
1. there is nothing in the record that shows and proves that they are probationary
employees at the time they were dismissed from employment;
2. there is no stipulation included in the employment contract and Memorandum of
Understanding of the petitioner and the Ministry providing for a probationary period;
3. there’s no finding of probationary employment in the decisions of POEA, NLRC
and CA;
4. petitioners were not apprised of the fact that they were to be placed on a
probationary period;

(this decision was reversed: OFWs can never become regular employees as their
engagement is required under the law to be on a fixed-term basis, Millares v. NLRC GR
No. 110524)
The fixed –period employment of OFWs not discriminatory
not discriminatory against them nor does it favor foreign employers (particularly
seafarers); seafarers nature of employment are peculiar and unique, they cannot stay
for a long and indefinite period of time at sea; national, cultural and lingual diversity
necessitates the limitation of its period.
The expiration of employment contracts of OFWs marks its ending
since OFWs are not regular employees, their employment ceases upon the expiration
of  their employment contracts
Effect of hiring of seamen for overseas employment but assigning him to local
vessel
The non-deployment of the ship overseas does not affect the validity of the perfected
employment contract (OSM Shipping Philippines Inc. v NLRC GR No. 138193, March 5,
2013);
Effect on the status of a seaman hired for overseas deployment but later
assigned to domestic operations after the expiration of his overseas contract
the employee is considered now as a domestic employee (his overseas employment is
automatically terminated upon expiration of his overseas employment contract) Delos
Santos vs. Jebsen Maritime, Inc., GR No. 154185
Very important: Sameer and
Serrano cases
Comparison between Sameer Overseas Placement case and Serrano case
doctrines on OFWs dismissal
SAMEER OVERSEAS PLACEMENT DOCTRINE
Respondent’s dismissal grounded on inefficiency and negligence less than one year
from hiring and her repatriation on the same day show not only failure on the part of
petitioner to comply with the requirement of the existence of just cause for termination;
they patently show that the employers did not comply with the due process requirement.
Thusly:
“A valid dismissal requires both a valid cause and adherence to the valid procedure of
dismissal. The employer is required to give the charged employee at least two written
notices before termination. One of the written notices must inform the employee of the
particular acts that may cause his or her dismissal. The other notice must [inform] the
employee of the employer’s decision. Aside from the notice requirement, the employee
must also be given ‘an opportunity to be heard’”.
SERRANO DOCTRINE
The phrase “of for three months for every year of the unexpired term, whichever is
less” of Sec. 10 paragraph 5 of RA 8042 has been declared unconstitutional for being
discriminatory, among other significant reasons cited thereon. Consequent to tis ruling,
illegally dismissed OFWs are now entitled to all the salaries for the entire unexpired
portion of their employment contracts, irrespective of the stipulated term or duration
thereof.
Although the subject clause was declared not violative of Section 10 Article III of the
Constitution on non-impairment of contracts, it was, however, pronounced that it
violated Section 1, Article III; Section 18, Article II; and Section 3, Article XIII of the
Constitution on labor as a protected sector. A closer examination of the subject clause
reveals that it has a discriminatory intent against, and an invidious impact on, OFWs at
the following levels: First, OFWs with employment contract of less than one year vis-à-
vis OFWs with employment contracts of one year or more; Second, among OFWs with
employment contracts of more than one year; and Third, OFWs vis-à-vis local workers
with fixed-period employment.
On the first, the enactment of the subject clause in RA 8042 introduced a differential
rule of computation of the money claims of illegally dismissed OFWs based on their
employment periods, in the process singling out one category whose contracts have an
unexpired portion of one year or more and subjecting them to the peculiar disadvantage
of having their monetary awards limited to their salaries for 3 months or for the
unexpired portion thereof, whichever is less, but all the while sparing the other category
from such prejudice, simply because the latter’s unexpired contracts fall short of one
year.
On the second, the subject clause “or for three months for every year of the unexpired
term, whichever is less” contains the qualifying phrases “every year” and “unexpired
term.” Corollarily, the unexpired term must be at least one year for if it were any shorter,
there would be no occasion for such unexpired term to be measured by every year; and
the original term must be more than one year, for otherwise, whatever would be the
unexpired term thereof will not reach even a year. Consequently, the more decisive
factor in the determination of when the subject clause shall apply is not the length of the
original contract period, but the length of the unexpired portion of the contract period –
the subject clause applies in cases when the unexpired portion of the contract period is
at least one year, which arithmetically requires that the original contract period be more
than one year. Viewed in that light, the subject clause creates a sub-layer of
discrimination among OFWs whose contract periods are for more than one year: those
who are illegally dismissed with less than one year left in their contracts shall be entitled
to their salaries for the entire unexpired portion thereof, while those who are illegally
dismissed with one year or more remaining in their contracts shall be covered by the
subject clause and their monetary benefits limited to their salaries for the 3 months only.
On the third, prior to RA 8042, OFWs and local workers with fixed-term employment
who were illegally discharged were treated alike in terms of the computation of their
money claims: they were uniformly entitled to their salaries for the entire unexpired
portions of their contracts. But with the enactment of RA 8042, specifically the adoption
of the subject clause, the illegally dismissed OFWs with an unexpired portion of one
year or more in the employment contract have since been differently treated in that their
money claims are subject to the 3-month cap, whereas no such limitation is imposed on
local workers with fixed-term employment. The subject clause singles out one
classification of OFWs and burdens it with a peculiar disadvantage.
There can never be a justification for any form of government action that alleviates the
burden of one sector, but imposes the same burden on another sector, especially when
the favored sector is composed of private business such as placement agencies, while
the disadvantaged sector is composed of OFWs whose protection no less than the
Constitution commands. The idea that private business interest can be elevated to the
level of a compelling interest is odious.
The subject clause does not state or imply any definitive governmental purpose; and it
is for that precise reason that the clause violates not just the petitioner’s right to equal
protection, but also her righto substantive due process under Section 1 Article III of the
Constitution.
 In the computation of the lump-sum salary due an illegally dismissed OFW, there are
two clauses as points of reckoning: first, is the cumulative salary for the unexpired
portion of his employment; and second, is the grant of 3 months’ salary for every year
of the unexpired term, whichever is less. By reason of this latest Serrano doctrine, al
past decision apply.
APPLICATION OF THE SERRANO AND SAMEER RULINGS
The clause “or for three months for every year of the unexpired term, whichever is
less” having been declared unconstitutional in Serrano and Sameer after the provision
found its way again in RA 10022 which took effect in 2010, the proper indemnity in
illegal dismissal cases, according to Gopio, should be the amount equivalent to the
unexpired term of the employment contract. In this case, since Bautista’s contract is for
31 months with a monthly salary of P115,850.00 and he was illegally dismissed just 9
months after his deployment in Papua New Guinea, therefore, there remain 22 months
of his unexpired contract. Hence, said amount should be multiplied by 22 months, the
remaining term of his employment contract, or a total amount of P2,548,700.00.
COMPONENT OF CONTRACT’S UNEXPIRED PORTION
In the computation of the amount due to an illegally dismissed OFW, only the salaries
for the unexpired portion of the employment contract should be included, as pronounced
in Serrano, thus:
“The word salaries in Section 10(5) do not include overtime and leave pay. For
seafarers like petitioner, DOLE Department Order No. 33, series of 1996, provides a
Standard Employment Contract of Seafarers, in which salary is understood as the
basic wage, exclusive of overtime, leave pay and other bonuses; whereas overtime
pay is compensation for all work ‘performed’ in excess of the regular 8 hours and
holiday pay is compensation for any work ‘performed’ on designated rest days and
holidays.”
Substantive and Procedural Due Process in OFW Termination Cases
OFWs are entitled to security of tenure as guaranteed under the Constitution and the
laws of the Philippines. Thus, OFWs may only be terminated for a just or authorized
cause (substantive due process) and after compliance with procedural due process
requirements. Article 297 of the Labor Code enumerates the just causes of termination
by the employer and Articles 298 [283] and 299 [284] thereof enumerate the authorized
causes.
The fundamental procedural rights afforded under the Philippines laws to workers
equally apply to OFWs. This means that the employer must give the concerned
employee at least two notices before his or her termination. Specifically, the employer
must inform the employee of the cause or causes for his or her termination and
thereafter, the employer’s decision to dismiss him. Aside from the notice requirement,
the employee must be accorded the opportunity to be heard.
 Damages entitlement of OFW
Private employment agency must “assume joint and solidary 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 payment of wages, death and disability
compensation and repatriations”.  Moreover, an agency which is a corporation or a
partnership must agree that its officers, partners and directors “will be jointly and
severally liable with the company over claims arising from employer employee
relationship”. What this means is that if an OFW wants to make a claim for
compensation for an illegal action or breach of contract by the employer, he or she may
make that claim, not only against the employment agency, but also against its partners
or directors.
Termination of employment of
OFWs
OFWs are entitled to security of tenure as guaranteed under the Constitution and the
laws of the Philippines. Thus, OFWs may only be terminated for a just or authorized
cause (substantive due process) and after compliance with procedural due process
requirements. Art. 297 [282] of the Labor Code enumerates the just causes of
termination by the employer and Articles 298 [283] and 299 [284] thereof enumerate the
authorized causes. The fundamental procedural rights afforded under the Philippine
laws to workers equally apply to OFWs. This means that the employer must give the
concerned employee at least two (2) notices before his or her termination. Specifically,
the employer must inform the employee of the cause or causes for his or her
termination, and thereafter, the employer’s decision to dismiss him. Aside from the
notice requirement, the employee must be accorded the opportunity to be heard.
In Agabon vs. NLRC [G.R. No. 158693: November 17, 2004], The procedure for
terminating an employee is found in Book VI, Rule I, Section 2(d) of the Omnibus Rules
Implementing the Labor Code:
Standards of due process: requirements of notice. - In all cases of termination of
employment, the following standards of due process shall be substantially observed:
1. For termination of employment based on just causes as defined in Article 282 of
the Code.

 A written notice served on the employee specifying the ground or grounds for
termination, and giving to said employee reasonable opportunity within which to
explain his side;

 A hearing or conference during which the employee concerned, with the

assistance of counsel if the employee so desires, is given opportunity to respond to
the charge present his evidence or rebut the evidence resented against him; and
 A written notice of termination served on the employee indicating that upon due
consideration of all the circumstances, grounds have been established to justify his
termination.

     *In case of termination, the foregoing notices shall be served on the employee’s last
known address.
Awards of indemnity in OFW cases
applying Agabon case
Background:
SC upheld the dismissal against the petitioners (Jenny Agabon and Virgilio Agabon)
because it was established that the petitioners abandoned their jobs to work for another
company. Private respondent, however, did not follow the notice requirements and
instead argued that sending notices to the last known addresses would have been
useless because they did not reside their anymore. Unfortunately, this is not a valid
excuse because the law mandates the twin notice requirements to the employee’s last
known address. Thus it should be held liable for non-compliance with the procedural
requirements of due process.
Art. 279 means that the termination is illegal if it is not for any of the justifiable or
authorized by law. Where the dismissal is for just cause but, the lack of statutory due
process should not nullify but the employer should indemnify the employee for the
violation of his statutory rights The indemnity should be stiffer to discourage the
abhorrent practice of “dismiss now, pay later” which we sought to deter in Serrano
ruling. The sanction should be in the nature of indemnification or penalty and should
depend on the facts of each case, taking into special consideration the gravity of due
process violation of the employer.
ART. 279. Security of Tenure. - In cases of regular employment, the employer shall
not terminate the services of an employee except for a just cause or when authorized by
this Title. An employee who is unjustly dismissed from work shall be entitled to
reinstatement without loss of seniority rights and other privileges and to his full
backwages, inclusive of allowances, and to his other benefits or their monetary
equivalent computed from the time his compensation was withheld from him up to the
time of his actual reinstatement.
The Supreme Court upheld the decision of the Court of Appeals in fixing the amount to
P30,000.00 each as nominal damages for non-compliance with statutory due process. The CA
believes that this form of damages would serve to deter employers from future violations of the
statutory due process rights of employees. At the very least, it provides a vindication or
recognition of this fundamental right granted to the latter under the Labor Code and its
Implementing Rules.
Private respondent is liable for petitioners' holiday pay, service incentive leave pay and
13th month pay without deductions. (Agabon vs. NLRC, G.R. No. 158693, November
17, 2004)
Application:
Indemnity in the form of nominal damages.  If an OFW is dismissed for a just and
authorized cause and after affording him procedural process, his dismissal is
considered perfectly valid and legal, and therefore, he is not entitled to any salary for
the unexpired portion of his employment contract or any other form of relief. However, if
there is just or authorized cause but procedural process was not afforded to him, the
rule that applies is the Agabon Doctrine.
Monetary awards to OFWs, do not
apply Art. 279 on local employment
The reliefs under article 279 of the Labor code are  not available to OFWs.
Any and all claims arising from the employment of OFWs, including those for death or
illness compensations, are not rooted from the provisions of the Labor Code (NYK-Fil
Ship Management, Inc.  v. NLRC).
Reinstatement or separation pay in lieu of reinstatement or full backwages, are not
available to OFWs as provided for in ART 279.
A validly dismissed OFW is not entitled to his salary for the unexpired portion of
his employment contract.
How to reckon the monetary awards to OFWs illegally dismissed prior to the
effectivity of R.A. No. 8042.
EDI- Staffbuilders international, Inc. v. NLRC) instructs that in termination cases arising
before the effectivity of R. A No. 8042, on August 25, 1995 [approved on June 7,
1995] where the OFWs are dismissed without just cause, they are entitled to payment
of their salaries corresponding to the unexpired portion of their fixed-term contract.
Consequently, since the OFW in this case was dismissed prior to the effectivity of R.A
No. 8042, he is entitled to all his salaries for the unexpired portion of his contract,
without the qualification now found in Section 10 of said law. *This is still a good rule
Qualification in par. 5 section 10 of R.A no. 8042 declared unconstitutional.
The 5th paragraph of section 10 of R. A. No. 8042 qualifies, as a form of relief, the
amount of monetary award to which an illegally dismissed OFW is entitled. The amount
of monetary award is made dependent on the term or duration of his contract of
employment, thus:
“In case of termination of overseas employment without just, valid or authorized cause
as defined by law or contract, the worker shall be entitled to the full reimbursement of
his placement fee with interest at twelve percent (12%) per annum, plus his salaries for
the unexpired portion of his employment contract or for three (3) months for every year
of the unexpired term, whichever is less.” *Unconstitutional so go back to EDI case
Monetary award to OFW is not in the nature of separation pay or backwages but a
form of indemnity.
Only salaries are to be included in the computation of the amount de for the
unexpired portion of the contract.
Entitlement to overtime pay of OFWs.
Reimbursement of placement fee included in the monetary award to an OFW.
Costs of repatriation and transport of personal belongings should be included in
the monetary award to an illegally dismissed OFW.
Indemnity for OFWs; Separation
pay or backwages for local
employment
“Monetary award to OFW is not in the nature of separation pay or backwages but a
form of indemnity.”
The award of salaries for the unexpired portion of an OFW’s employment contract is not
an award of backwages or separation pay but a form of indemnity for the OFW who was
illegally dismissed. (Skippers United Pacific, Inc. v. NLRC, G.R. 148893, July 12, 2006).
Entitlement of OFWs of damages
& attorney’s fees
In the 2005 case of Athenna, the High Tribunal ruled that because of the breach of
contract and bad faith alleged against the employer and the petitioner recruitment
agency, the award of P50,000 in moral damages and P50,000 as exemplary damages,
in addition to attorney’s fees of ten percent (10%) of the aggregate monetary awards,
must be sustained.
Likewise, in the case of ATCI Overseas , the award of attorney’s fees equivalent to ten
percent (10%) of the total award was held legally and morally justified as the OFWs
were compelled to litigate and thus incur expenses to protect their rights and interests.
Basis of computation of death
benefits of OFW
The basis of computation of death benefits of OFW generally, is whichever is greater
between Philippine law and foreign law.
The family of an active OFW at the time of his death is entitled to receive P100, 000.00
if the cause of death is natural, and P200, 000.00 if the cause of death is accident. On
top of that is a burial benefit of P20,000.00 shall be provided in case of the member’s
death.
Rules on repatriation of OFWs
Repatriation of workers, in general.
The repatriation of a land-based worker or seafarer and the transport of his personal
belonging are the primary responsibility of the agency which recruited or deployed the
worker overseas. All costs attendant to repatriation should be charged to the agency
concerned and/or it’s principal. Likewise, the repatriation of remains and transport of the
personal belongings of a deceased land-based worker or seafarer and all costs
attendant thereto should be borne by the principal and/or the local agency. However, in
cases where termination of employment is due solely to the fault of the employee, the
principal/employer or agency is not in any manner responsible for the repatriation of the
former and/or his belongings. (Sec. 1, Rule III, Part VIII; Sec. 1, Rule II, Part VII)
Repatriation costs when employment is terminated.
The principal or agency is required to advance the cost of plane fare without prior
determination of the cause of the termination of the land-based worker’s or seafarer’s
employment. However, the principal or agency may recover the cost of repatriation from
the worker or seafarer upon his return to the Philippines if termination of employment is
due solely to the employee’s fault. (Sec. 2, Rule III, Part VIII; Sec. 2, Rule II, Part VII;
Sec. 53, Omnibus Rules and Regulations Implementing Migrant Workers and Overseas
Filipinos Act of 1995)
Repatriation in case of fault of migrant worker.
In cases where the termination of employment is due solely to the fault of the worker,
the principal/employer or agency is not in any manner responsible for the repatriation of
the former and/or his belongings. (Sec. 15, RA No. 8042)
Repatriation procedure.
When the need for repatriation arises and the principal fails to provide the costs, the
Philippine Embassy/Consulate/Overseas Labor Office at worksite should simultaneously
notify the POEA and OWWA of such need. POEA should require the agency to provide
the plane ticket or a pre-paid ticket advice to the Philippine
Embassy/Consulate/Overseas Labor Office and to report its compliance to the POEA
which should advise OWWA accordingly. (Sec. 3, Rule III, Part VIII, 2002 POEA Rules
for Land-Based Overseas Worker; Sec. 3, Rule II, Part VII, 2003 POEA Rules for
Seafarers; Sec. 15, RA No. 8042; Secs. 52 and 54, Omnibus Rules and Regulations
Implementing the Migrant Workers and Overseas Filipinos Act of 1995)
Administrative sanction for non-compliance.
If the employment agency fails to provide the ticket or pre-paid ticket advise within 48
hours from receipt of notice, POEA should suspend the documentary processing of the
agency or impose such sanctions, as it may deem necessary. POEA may request
OWWA in advance the costs of repatriation with legal interest. (Sec. 4, Rule III, Part
VIII; Sec. 4, Rule II, Part VII; Sec. 55, Omnibus Rules and Regulations Implementing
Migrant Workers and Overseas Filipinos Act of 1995)
Repatriation in case of war and other events.
OWWA, in coordination with appropriate international agencies, should undertake the
repatriation of workers in cases of war, epidemic, disasters or calamities, natural or
man-made, and other similar events without prejudice to reimbursement by the
responsible principal or agency within 60 days from notice. In such case, POEA should
simultaneously identify and give notice to the agencies concerned. However, in cases
where the principal or recruitment agency cannot be identified, all costs attendant to
repatriation should be borne by the OWWA. Sec. 15, RA No. 8042; Sec. 56, Omnibus
Rules and Regulations Implementing Migrant Workers and Overseas Filipinos Act of
1995)
Mandatory repatriation of underaged migrant workers.
Upon discovery or being informed of the presence of migrant workers whose actual
ages fall below the minimum age requirement for overseas deployment, the responsible
officers in the foreign service should, without delay, repatriate said workers and advise
the Department of Foreign Affairs through the fastest means of communications
available, of such discovery and other relevant information. The cost mandated under
RA No. 8042 should be borne correspondingly by the agency and/or principal of
OWWA, as the case may be. (Sec. 16, RA No. 8042; Sec. 57, Omnibus Rules and
Regulations Implementing Migrant Workers and Overseas Filipinos Act of 1995)
Other cases of repatriation.
In all cases where the principal or agency of the worker cannot be identified, cannot be
located or had ceased operations, and the worker is in need and without means,
OWWA personnel at jobsite, in coordination with DFA, should cause the repatriation. All
costs attendant to repatriation borne by the OWWA are chargeable to the Emergency
Repatriation Fund provided under RA NO. 8042, without prejudice to OWWA requiring
the agency/employer of the worker to reimburse the cost of repatriation in appropriate
cases. (Sec. 58, Omnibus Rules and Regulations Implementing Migrant Workers and
Overseas Filipinos Act of 1995)
Existence and degree of seafarer’s
disability; how determined and
declared
1. Disability should be understood on the basis of loss of earning capacity and not
on its medical signifance.
2. Certification by a company-designated physician; accreditation with POEA not
necessary.
3. Findings of company-designated physician, not conclusive.
4. OFW should present controverting evidence.
5. Right of OFW to seek a second opinion from physicians other than company-
designated physician. *2019 BAR on  third-doctor conflict resolution.

In case of conflict opinions, that which is favorable to the OFW should be adopted.
Award in foreign currency; how
computed
In case the salary of an illegally dismissed employee is in foreign currency (say, US
Dollars) as in the case of OFWs, the monetary award equivalent to the salary for the
unexpired portion should be paid at its prevailing peso equivalent at the time of payment
in accordance with Republic Act No. 8183 which provides in its Section 1 that “[a]ll
monetary obligations shall be settled in the Philippine currency which is legal tender in
the Philippines.  However, the parties may agree that the obligation or transaction shall
be settled in any other currency at the time of payment.” (Republic Act No. 8183 entitled
“An Act Repealing Republic Act Numbered Five Hundred Twenty-Nine Entitled ‘An Act
to Assure the Uniform Value of Philippine Coin and Currency’”; Asia World Recruitment,
Inc. vs. NLRC, G. R. No. 113363, Aug. 24, 1999).
Funds established for OFWs
RA 8042 has established the following funds for availment by migrant and overseas
Filipinos:
1. Migrant Workers Loan Guarantee Fund
2. Emergency Repatriation Fund
3. Legal Assistance Fund
4. Congressional Migrant Workers Scholarship Fund
Mandatory obligation to remit
foreign exchange earnings
It shall be mandatory for all Filipino workers abroad to remit a portion of their foreign
exchange earnings to their families, dependents and/or beneficiaries in the country in
accordance with rules and regulations prescribed by the Secretary of Labor and
Employment.
Mandatory remittance – the amount or portion of the basic salary of Overseas Filipino
workers required under existing laws and regulations to be remitted by the workers to
their beneficiaries in the Philippines and sold for pesos to the Philippine banking
system.
Exceptions to mandatory remittance:
1. Where the worker’s immediate family members, dependents, or beneficiaries are
residing with him abroad;
2. Filipino servicemen working in U.S. military installations;
3. Immigrants and Filipino professionals and employees working with United Nations
agencies or specialized bodies (Resolution No. 1-83 Inter-Agency Committe for
implementation of E.O. 857).

Amount of remittance
(% of basic salary)
1. Seafarers or mariners - 80 %
2. Workers of Filipino contractors and construction companies - 70 %
3. Doctors, engineers, teachers, nurses, and other professional workers whose
employment contracts provide for free board and lodging - 70 %
4. Other professionals whose employment contracts do not provide for free board
and lodging - 50 %
5. Domestic and other service workers - 50 %
Consequences of failure to remit
earnings
 Workers who fail to comply shall be suspended or excluded from the list of
eligible workers for overseas employment.
 Subsequent violations shall warrant his repatriation from the job site at the
expense of the employer or at his expense.
 Filipino or foreign employers and/or their representatives who fail to comply with
the mandatory remittance requirements shall be excluded from the overseas
employment program, while local private employment agencies or entities shall face
cancellation or revocation of their licenses or authority to recruit, without prejudice to
other liabilities under existing laws and regulations ( Sec. 9, E.O. 857, Dec 13,
1982).

*remember substantial compliance rule

Rules on POEA Standard
Employment Contracts (POEA-
SEC) interpretation
Validity of standard form contracts.
The POEA Standard Employment Contract (POEA-SEC) for OFWs is designed
primarily for their protection and benefit in the pursuit of their employment overseas. It's
provisions must, therefore, be construed and applied fairly, reasonably and liberally in
their favor. Only then can its beneficent provisions be fully carried into effect. (Philippine
Transmarine Carriers, Inc v. NLRC, G. R. no. 123891,Feb.28,2001)
Invalidity of contract diminishing salary and benefits ;exception.
A contract which diminishes the pay and benefits of the employee as embodied in the
contract duly approved by the POEA is null and void. The exception is when such
subsequent contract providing for lesser pay and benefits is approved by the POEA.
(Chavez v. Bonto-Perez, G. R. no. 109808, March 1 1995)
Interpretation of overseas employment contract
Any ambiguity in the overseas employment contract shall be interpreted against the
parties that drafted it. (Cadalin v. POEA's Administrator, G. R. no. 104776, Dec 5,1995)
Labor Contracts must be interpreted liberally in favor of the worker.
The provisions contained in the standard contract of employment for Filipino seamen
pursuant to Memorandum Circular no. 2 are manifestations of the state in favor of the
working class provisions of the Constitution. Consequently, the payment of death
benefit pension, funeral benefit and burial gratuity to private respondent will not
preclude allowance to private respondent’s claim against petitioner which is specifically
reserved in the said standard contract of employment.
Stipulation on SSS coverage of OFWs.
Foreign shipowners and manning agencies had generally expressed their conformity to
the inclusion of Filipino seafarers on board foreign vessels, within the coverage of the
Social Security Act. The extension of coverage of the Social Security system to Filipino
seafarers arises by virtue of the assent given in the contract of employment signed by
the employer and the seafarer. By extending the benefits of the Social Security Act to
Filipino seafarers, the individual employment agreement entered into with a stipulation
of such coverage contemplated in the DOLE-SSS Memorandum of Agreement merely
gives effect to the constitutional mandate of affording protection to labor. (Sta. Rita v.
CA, G. R. no. 119891,Aug 21 1995)
Prohibited practices under Art. 34,
LC
1. To charge or accept, directly or indirectly, any amount greater than that specified
in the schedule of allowable fees prescribed by the Secretary of Labor, or to make a
worker pay any amount greater than that actually received by him as a loan or
advance;
2. To furnish or publish any false notice or information or document in relation to
recruitment or employment;
3. To give any false notice, testimony, information or document or commit any act of
misrepresentation for the purpose of securing a license or authority under this Code.
4. To induce or attempt to induce a worker already employed to quit his
employment in order to offer him to another unless the transfer is designed to
liberate the worker from oppressive terms and conditions of employment;
5. To influence or to attempt to influence any person or entity not to employ any
worker who has not applied for employment through his agency;
6. To engage in the recruitment or placement of workers in jobs harmful to public
health or morality or to the dignity of the Republic of the Philippines;
7. To obstruct or attempt to obstruct inspection by the Secretary of Labor or by his
duly authorized representatives;
8. To fail to file reports on the status of employment, placement vacancies,
remittance of foreign exchange earnings, separation from jobs, departures and such
other matters or information as may be required by the Secretary of Labor.
9. To substitute or alter employment contracts approved and verified by the
Department of Labor from the time of actual signing thereof by the parties up to and
including the periods of expiration of the same without the approval of the Secretary
of Labor;
10. To become an officer or member of the Board of any corporation engaged in
travel agency or to be engaged directly or indirectly in the management of a travel
agency; and
11. To withhold or deny travel documents from applicant workers before departure
for monetary or financial considerations other than those authorized under this Code
and its implementing rules and regulations.
Employment of non-resident aliens
The following are Aliens required to apply for an Alien Employment Permit (AEP): 
1. All foreign nationals seeking admission to the Philippines, for the purpose of
employment;
2. Missionaries or religious workers who intend to engage in gainful employment;
3. Holders of Special Investors Resident Visa (SIRV), Special Resident Retiree’s
Visa (SRRV), Treaty Traders Visa (9D) or Special Non-Immigrant Visa (47(a)2) for
as long as they occupy any executive, advisory, supervisory, or technical position in
any Philippines establishment.
4. Agencies, organizations or individuals whether public or private, who secure the
services of foreign professionals to practice their professions in the Philippines
under reciprocity and other international agreements;
5. Non-Indo-Chinese Refugees who are asylum seekers and given refugee status
by the United Nations High Commissioner on Refugees (UNHCR) or the Department
of Justice under DOJ Department Order No. 94, series of 1998;
6. Resident foreign national seeking employment in the Philippines
Aliens exempted from AEP
The following are Aliens exempted from securing an AEP
1. Resident Foreign Nationals employed or seeking employment in the Philippines
(DO 41-03);
2. Members of the diplomatic services and foreign government officials accredited
by the Philippine government;
3. Officers and staff of international organizations of which the Philippine
government is a cooperating member, and their legitimate spouses desiring to work
in the Philippines;
4. Foreign nationals elected as members of the Governing Board who do not
occupy any other position, but have only voting rights in the corporation;
5. All foreign nationals granted exemption by special laws and all other laws that
may be promulgated by the Congress;
6. Foreign nationals who come to the Philippines to teach, present and/or conduct
research studies in universities and colleges as visiting, exchange or adjunct
professors under formal agreements between universities or colleges in the
Philippines and foreign universities or colleges; or between the Philippine
government and foreign government; provided that the exemption is on a reciprocal
basis; and
7. Owners and representatives of foreign principals, whose companies are
accredited by the Philippine Overseas Administration (POEA), who come to the
Philippines for a limited period solely for the purpose of interviewing Filipino
applicants for employment abroad.
SVEG definition; rationale; who
may avail
Definition:
Special Visa for Employment Generation is a special visa issued to a qualified non-
immigrant foreigners who shall actually employ at least 10 Filipinos in a lawful and
sustainable enterprise, trade, or industry. Qualified foreigners who are granted the
SVEG shall be considered special non-immigrants with multiple entry privileges and
conditional extended stay, without the need of prior departure from the Philippines. The
privileges of this Executive Order may extend to the qualified foreigner’s spouse and
dependent unmarried child/children below 18 years of age whether legitimate,
illegitimate or adopted. (Sec. 1 of EO 758)
Rationale:
There are foreigners who want to maintain a lawful presence in the Philippines by
actually, directly or exclusively engaging in lawful, viable, and sustainable trade,
business, industry, or activity offering local employment. A survey of NSO shows
millions of unemployed Filipinos. SVEG is for the creation of job opportunities for the
Filipino.
Who may avail:
Non-immigrant foreigners who wish to avail of the SVEG should comply with the
following conditions:
1. The foreigner shall actually, directly or exclusively engage in a viable and
sustainable commercial investment/enterprise in the Philippines, exercises/performs
management acts or has the authority to hire, promote and dismiss employees;
2. He evinces a genuine intention to indefinitely remain in the Philippines;
3. He is not a risk to national security; and
4. The foreigner’s commercial investment/enterprise must provide actual
employment to at least 10 Filipinos in accordance with Philippine labor laws and
other applicable special laws.

The above mentioned requirements must be continually satisfied by the foreigner for
him/her to continue to be a holder of the SVEG.  (sec. 2 of EO 758)
TESDA Act of 1994, goals and
objectives
RA 7796 or the “TESDA Act of 1994” has the following goals and objectives:
1. Promote and strengthen the quality of technical education and skills development
programs to attain international competitiveness;
2. Focus technical education and skills development on meeting the changing
demands for quality middle-level manpower;
3. Encourage critical and creative thinking by disseminating the scientific and
technical knowledge base of middle-level manpower development programs;
4. Recognize and encourage the complementary roles of public and private
institutions in technical education and skills development and training systems; and
5. Inculcate desirable values through the development of moral character with emphasis on
work ethic, self-discipline, selfreliance and nationalism.
Dual training system of TESDA
Dual Training System is the framework where a worker-trainee receive training both in
school through theoretical instructions and in the workshop or factory with actual
practice or application.
This is to:
1. Promote maximum protection and welfare of the worker-trainee;
2. Improve the quality, relevance, and accountability of technical education and skill
development;
3. Accelerate the employment-generation efforts of the government; and
4. Expand the range of opportunities for upward social mobility of the school-going
population beyond traditional higher levels of formal education (Sec.21 RA 7796)
Quiz 2 Coverage
This assignment is locked until Aug 28 at 12am.