CONTRATUAL STIPULATIONS
Seagull Maritime v. Balatongan
The Supreme Court there said that a supplemental agreement for insurance against accidental death permanent disability is enforceable even if there is no POEA approval. The purpose of requiring POEA approval is to ensure they conform to minimum terms and conditions of employment prescribed by POEA. The law does not prohibit alterations increasing benefits voluntarily.
LABOR CODE
The Labor Code makes it a prohibited act to alter or reduce employment contracts before they terminate without DOLE approval. RA 8042 qualifies this further by making it illegal if it is to the prejudice of the worker.
What is an example of an illegal alteration?
Chavez v. Bonto-Perez (1995) - A side agreement authorizes the employee to deduct the $250 commission of the Overseas Contract Worker’s manager. This is void as against public policy.
Note: it is possible the provision of the contract is legal if there was POEA approval
CASE
A seaman, while the ship he is working in is en route to Hongkong, gets off in Thailand, wanders around Bangkok for four days and then, attacks a policeman. The policeman shoots and kills him. Even before this, he is said to have caused trouble on the ship and was even threatened by the other crew members
HELD
Standard Format Contract of Employment exempting the employer from liability should not apply in the instant case.
1) The fact that the deceased suffered from mental disorder at the time of his repatriation means that he must have been deprived of the full use of his reason, and that thereby, his will must have been impaired, at the very least. Thus, his attack on the policeman can in no wise characterized as a deliberate, willful or voluntary act on his part.
HELD
2) We also agree that in light of the deceased's mental condition, petitioners "should have observe some precautionary measures and should not have allowed said seaman to travel home alone", and their failure to do so rendered them liable for the death of Pineda
"the obligations and liabilities of the (herein petitioners) do not end upon the expiration of the contracted period as (petitioner are) duty bound to repatriate the seaman to the point of hire to effectively terminate the contract of employment.”
LABOR CODE
Article 172 of the Labor Code provides for a limitation on the liability of the State Insurance Fund when the "disability or death was occasioned by the employee's intoxication, willful intention to injure or kill himself or another, notorious negligence . . ."
Who are the persons recruited for overseas employment?
RA 8042 refers to them as Overseas Filipino Workers or Filipino Migrant Workers: A person who is to be engaged, is engaged or has been engaged in a remunerable activity in a state of which he is not a legal resident.
Implementing Rules and Regulation
The IRR refer also to Documented and Undocumented Migrant Workers. You are documented if
(1) A valid passport, visa/permit and contracts of employment processed by POEA, if required ; and
(2) Registered with the Migrant Workers and Other Overseas Filipino Resource Center of the Embassy)
Pretermination of contract of migrant worker
Serrano v. Gallant Maritime Services & Marlow�Navigation Co., Inc., G.R. No. 167614, Mar.24, 2009
FACTS: Serrano, a seafarer, was hired by Gallant Maritime and Marlow Navigation Co. for 12 months as Chief Officer. On the date of his departure, he was constrained to accept a downgraded employment contract for the position of Second Officer, upon the assurance that he would be made Chief Officer after a month. It was not done; hence, he refused to stay on as Second Officer and was repatriated to the Phils. He had served only 2 months & 7 days of his contract, leaving an unexpired portion of 9 months & 23 days.
Serrano v. Gallant Maritime Services & Marlow�Navigation Co., Inc., G.R. No. 167614, Mar.24, 2009
Serrano filed with the LA a Complaint against Gallant Maritime and Marlow for constructive dismissal and for payment of his money claims.
The LA rendered a favorable decision to Serrano awarding him $8,770.00, representing his salary for 3 months of the unexpired portion of his contract of employment applying R.A. 8042, Sec
10, par 5:
R.A. 8042, Sec 10, par 5:�
Money Claims. ‐ In case of termination of overseas employment without just, valid or authorized cause as defined by law or contract, the workers shall be entitled to the full reimbursement of his placement fee with interest of 12% per annum, plus his salaries for the unexpired portion of his employment contract or for 3 months for every year of the unexpired term, whichever is less.
Serrano v. Gallant Maritime Services & Marlow�Navigation Co., Inc., G.R. No. 167614, Mar.24, 2009
ISSUE: Is the subject clause constitutional?
HELD: No. The subject clause contains a suspect classification in that, in the computation of the monetary benefits of fixed‐term employees who are illegally discharged, it imposes a 3‐month cap on the claim of OFWs with an unexpired portion of one year or more in their contracts, but none on the claims of other OFWs or local workers with fixed‐term employment. The subject clause singles out one classification of OFWs and burdens it with a peculiar disadvantage.
Serrano v. Gallant Maritime Services & Marlow�Navigation Co., Inc., G.R. No. 167614, Mar.24, 2009
The clause is a violation of the right of Serrano and other OFWs to equal protection and right to substantive due process, for it deprives him of property, consisting of monetary benefits, without any existing valid governmental purpose.
Furthermore, prior to R.A. 8042, all OFWs, regardless of contract periods or the unexpired portions thereof, were treated alike in terms of the computation of their monetary benefits in case of illegal dismissal. Their claims were subjected to a uniform rule of computation: their basic salaries multiplied by the entire unexpired portion of their employment contracts. The same applies local workers with fixed‐term employment.
Serrano v. Gallant Maritime Services & Marlow�Navigation Co., Inc., G.R. No. 167614, Mar.24, 2009
Thus, Serrano is entitled to his salaries for the entire unexpired period of nine months and 23 days of his employment contract, pursuant to law and jurisprudence prior to the enactment of RA 8042.
Application of Disability/Death Benefits
If the contract states compensation should be under RP law or the law of the country where the vessel is, which ever is greater, then that must be observed. If it is silent, the amount fixed in contract applies (Norse Management Co. v. NSE, Bagong Fil. Overseas Corp. v. NLRC)
The Standard employment contract drafted by POEA provides
"No compensation shall be payable in respect of any injury, incapacity, disability or death resulting from a (deliberate or) willful act on his own life by the seaman(,) provided, however, that the employer can prove that such injury, incapacity, disability or death is directly attributable to the seaman."
DIRECT HIRING
What is Direct‐hiring?
It is when an employer hires a Filipino worker for overseas employment without going through the POEA or entities authorized by the Secretary of Labor.
What is the ban on direct‐hiring?
An Er may only hire Filipino worker for overseas employment through POEA or entities authorized by DOLE.
Exceptions:
Direct hiring by –
1. International organizations
2. Name hires
3. Members of the diplomatic organizations
4. Other Ers as may be allowed by DOLE
Why is direct‐hiring prohibited?
1. To ensure the best possible terms and conditions of employment for the worker.
2. To assure the foreign Er that he hires only qualified Filipino workers.
3. To ensure full regulation of employment in order to avoid exploitation.
REGULATION AND ENFORCEMENT
What is the rule on remittance of foreign�exchange earnings?
It shall be mandatory for all OFWs to remit a portion of their foreign exchange earnings to their families, dependents, and/or beneficiaries ranging from 50% ‐ 80% depending on the worker’s kind of job. (Rule VIII, Book III, POEA Rules)
Exception
1. The worker’s immediate family members, beneficiaries and dependents are residing with him abroad
2. Immigrants and Filipino professionals and employees working with the UN agencies or specialized bodies
3. Filipino servicemen working in U.S. military installations. (Resolution No. 1‐ 83, Inter‐Agency Committee for Implementation of E.O. 857)
What is the effect of failure to remit?
Workers – Shall be suspended or removed from the list of eligible workers for overseas employment
Employers – Will be excluded from the overseas employment program. Private employment agencies shall face cancellation or revocation of their licenses or authority to recruit. (Sec. 9, E.O. 857)
Regulatory and Visitorial Powers of the Labor�Secretary
What constitute visitorial power?
What are the regulatory powers of the Secretary of Labor and Employment (SLE)?
1. Restrict and regulate the recruitment and placement activities of all agencies
2. Issue orders and promulgate rules and regulation
Give 4 instances where the visitorial power of�the SLE may be exercised under the Labor Code
Give 4 instances where the visitorial power of�the SLE may be exercised under the Labor Code
Inquire into the financial activities of legitimate labor organizations (LLO) and examine their books of accounts upon the filing of the complaint under oath and duly supported by the written consent of at least 20% of the total membership of the LO concerned.
Can SLE issue search warrants or warrants of arrest
NO
May the POEA, at any time terminate or impose�a ban on employment of migrant workers?
Answer:
Yes, in consultation with the DFA based on the ff. grounds:
What are the minimum conditions/ provisions�of overseas employment contracts?
Answer:
Guaranteed wages for regular hours and overtime, not lower than the minimum wage prescribed in all of the ff:
country and the Philippines
EMPLOYMENT OF ALIENS
General Milling Corporation v Torres
The DOLE issued an alien employment permit for Earl Cone, a U.S. citizen, as sports consultant and assistant coach for GMC. Later, the Board of Special Inquiry of the Commission on Immigration and Deportation approved Cone’s application for a change of admission status from temporary visitor to pre‐arranged employee. A month later, GMC requested that it be allowed to employ Cone as full‐fledged coach. The Dole Regional Director granted the request. The Basketball Association of the Phils. appealed the issuance of said permit to the SLE who cancelled Cone’s employment permit because GMC failed to show that there is no person in the Philippines who is competent and
General Milling Corporation v Torres
And willing to do the services nor that the hiring of Cone would redound to the national interest. Is the act of SLE valid?
Held: Yes. GMC’s claim that hiring of a foreign coach is an Er’s prerogative has no legal basis. Under Art. 40 of the LC, an Er seeking employment of an alien must first obtain an employment permit from the DOLE. GMC’s right to choose whom to employ is limited by the statutory requirement of an employment permit.
HELD
The law applies only to non-resident aliens. The requirements for alien to work are:
1) A DOLE permit, and
2) Determination that
a) there is no person in the Phil competent, able & willing to perform the services desired;
b) if it is in a preferred area of investment, there must be a recommendation by the appropriate government agency.
Art. 41. Prohibition Against Transfer of Employment
Only non‐resident aliens
Exceptions: