People vs. Panis,142 SCRA 664G.R. Nos. L-58674-77 July 11, 1990

FAST FACTS: Serapio Abug was charged with illegal recruitment. His defense was that the informations filed against him did not constitute an offense because in each of the four informations filed against him, each denote that he was only recruiting one person whereas the statute requires “two or more persons”

ISSUE: Determination of the proper interpretationof Art 13(b) of PD 442/ Labor Code:

b) Recruitment and placement' refers to any act of canvassing, enlisting, contracting, transporting, 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.

HELD: The specification of two or more persons is not to create a condition prior to filing but rather it states a presumption that the individual is engaged in recruitment in consideration of a fee, however the number of persons is not an essential ingredient to the act of recruitment or placement, and it will still qualify even if only one person has been involved.

SERRANO v. GALLANT MARITIME SERVICES INC. & MARLOWE NAVIGATION CO., INC. G.R. No. 167614. March 24, 2009

Facts:

Petitioner was hired by Gallant Maritime Services, Inc. and Marlow Navigation Co., Ltd. (respondents) under a POEA-approved Contract of Employment. On March 19, 1998, the date of his departure, petitioner was constrained to accept a downgraded employment contract for the position of Second Officer with a monthly salary of US$1,000.00, upon the assurance and representation of respondents that he would be made Chief Officer by the end of April. However, respondents did not deliver on their promise to make petitioner Chief Officer. Hence, petitioner refused to stay on as Second Officer and was repatriated to the Philippines on May.  

 Petitioner's employment contract was for a period of 12 months or from March 19, 1998 up to March 19, 1999, but

at the time of his repatriation on May 26, 1998, he had served only two (2) months and seven (7) days of his contract, leaving  an unexpired portion of nine (9) months and twenty-three (23) days.

 Petitioner filed with the Labor Arbiter (LA) a Complaint against respondents for constructive dismissal and for

payment of his money claims. LA rendered the dismissal of petitioner illegal and awarding him monetary benefits. Respondents appealed to the NLRC to question the finding of the LA. Likewise, petitioner also appealed to the NLRC on the sole issue that the LA erred in not applying the ruling of the Court in Triple Integrated Services, Inc. v. National Labor Relations Commission that in case of illegal dismissal, OFWs are entitled to their salaries for the unexpired portion of their contracts.

 Petitioner also appealed to the NLRC on the sole issue that the LA erred in not applying the ruling of the Court

in Triple Integrated Services, Inc. v. National Labor Relations Commission that in case of illegal dismissal, OFWs are entitled to their salaries for the unexpired portion of their contracts. Petitioner filed a Motion for Partial Reconsideration; he questioned the constitutionality of the subject clause. Petitioner filed a Petition for Certiorari with the CA, reiterating the constitutional challenge against the subject clause. CA affirmed the NLRC ruling on the reduction of the applicable salary rate; however, the CA skirted the constitutional issue raised by petitioner.

The last clause in the 5th paragraph of Section 10, Republic Act (R.A.) No. 8042, to wit: 

Sec. 10.  Money Claims. - x x x In case of termination of overseas employment without just, valid or authorized cause as defined by law or contract, the workers shall be entitled to the full reimbursement of

his placement fee with interest of twelve 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. Applying the subject clause, the NLRC and the CA computed the lump-sum salary of petitioner at the monthly rate

of US$1,400.00 covering the period of three months out of the unexpired portion of nine months and 23 days of his employment contract or a total of US$4,200.00. 

 Impugning the constitutionality of the subject clause, petitioner contends that, in addition to the US$4,200.00

awarded by the NLRC and the CA, he is entitled to US$21,182.23 more or a total of US$25,382.23, equivalent to his salaries for the entire nine months and 23 days left of his employment contract, computed at the monthly rate of US$2,590.00

Issue:1.) Is petitioner entitled to his monetary claim which is the lump-sum salary for the entire unexpired portion of his

12-month employment contract, and not just for a period of three months?2.) Should petitioner’s overtime and leave pay form part of the salary basis in the computation of his monetary

award, because these are fixed benefits that have been stipulated into his contract?

Held:1.) Yes. Petitioner is awarded his salaries for the entire unexpired portion of his employment contract consisting of

nine months and 23 days computed at the rate of US$1,400.00 per month. The subject clause “or for three months for every year of the unexpired term, whichever is less” in the 5th paragraph of Section 10 of Republic Act No. 8042 is declared unconstitutional.

In sum, prior to R.A. No. 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 R.A. No. 8042, specifically the adoption of the subject clause, illegally dismissed OFWs with an unexpired portion of one year or more in their employment contract have since been differently treated in that their money claims are subject to a 3-month cap, whereas no such limitation is imposed on local workers with fixed-term employment.

 The Court concludes that 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.

The Court further holds that the subject clause violates petitioner's right to substantive due process, for it deprives him of property, consisting of monetary benefits, without any existing valid governmental purpose. The subject clause being unconstitutional, petitioner 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 R.A. No. 8042.

2.) No. The word salaries in Section 10(5) does not include overtime and leave pay.  For seafarers like petitioner, DOLE Department Order No. 33, series 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 eight hours, and holiday pay is compensation for any work “performed” on designated rest days and holidays.

 By the foregoing definition alone, there is no basis for the automatic inclusion of overtime and holiday pay in the

computation of petitioner's monetary award; unless there is evidence that he performed work during those periods. 

G.R. No. 162419             July 10, 2007

PAUL V. SANTIAGO, petitioner, vs.CF SHARP CREW MANAGEMENT, INC., respondent.

FACTS:

Petitioner had been working as a seafarer for Smith Bell Management, Inc. (respondent) for about five (5) years.2On 3 February 1998, petitioner signed a new contract of employment with respondent, with the duration of nine (9) months. He was assured of a monthly salary of US$515.00, overtime pay and other benefits Petitioner was to be deployed on board the "MSV Seaspread" which was scheduled to leave the port of Manila for Canada on 13 February 1998.

A week before the scheduled date of departure, Capt. Pacifico Fernandez, respondent’s Vice President, sent a facsimile message to the captain of "MSV Seaspread”, that petioner has a plan to jump ship. Petitioner was thus told that he would not be leaving for Canada anymore.

Petitioner filed a complaint for illegal dismissal, damages, and attorney's fees against respondent. The labor arbiter held respondent liable for actual damages.On appeal by respondent, the National Labor Relations Commission (NLRC) ruled that there is no employer-employee relationship between petitioner and respondent because under the Standard Terms and Conditions Governing the Employment of Filipino Seafarers on Board Ocean Going Vessels (POEA Standard Contract), the employment contract shall commence upon actual departure of the seafarer from the airport or seaport at the point of hire and with a POEA-approved contract. the NLRC found respondent’s decision not to deploy petitioner to be a valid exercise of its management prerogative.

Petitioner moved for the reconsideration of the NLRC’s Decision but his motion was denied for lack of merit.10 He elevated the case to the Court of Appeals through a petition for certiorari. the Court of Appeals ruled that petitioner is not entitled to actual damages because damages are not recoverable by a worker who was not deployed by his agency within the period prescribed in the POEA Rules. It agreed with the NLRC’s finding that petitioner’s non-deployment was a valid exercise of respondent’s management prerogative.

ISSUE:

Whether the claims or disputes of the Overseas Filipino Worker by virtue of a contract fall within the jurisdiction of the Labor Arbiter of the NLRC.

HELD:

There is some merit in the petition.

A distinction must be made between the perfection of the employment contract and the commencement of the employer-employee relationship. The perfection of the contract, which in this case coincided with the date of execution thereof, occurred when petitioner and respondent agreed on the object and the cause, as well as the rest of the terms and conditions therein. The commencement of the employer-employee relationship, as earlier discussed, would have taken place had petitioner been actually deployed from the point of hire. Thus, even before the start of any employer-employee relationship, contemporaneous with the perfection of the employment contract was the birth of certain rights and obligations, the breach of which may give rise to a cause of action against the erring party. Moreover, while the POEA Standard Contract must be recognized and respected, neither the manning agent nor the employer can simply prevent a seafarer from being deployed without a valid reason.

Respondent’s act of preventing petitioner from departing the port of Manila and boarding "MSV Seaspread" constitutes a breach of contract, giving rise to petitioner’s cause of action. Respondent unilaterally and unreasonably reneged on its obligation to deploy petitioner and must therefore answer for the actual damages he suffered.

Despite the absence of an employer-employee relationship between petitioner and respondent, the Court rules that the NLRC has jurisdiction over petitioner’s complaint. The jurisdiction of labor arbiters is not limited to claims arising from employer-employee relationships. Since the present petition involves the employment contract entered into by petitioner for overseas employment, his claims are cognizable by the labor arbiters of the NLRC.

Darvin vs. CA and People of the Philippines

G.R. No. 125044, July 13, 1998

FACTS:

Maria Toledo convinced by the petitioner that she has the authority to recruit workers for abroad and that she can facilitate the necessary papers, gave Darvin Php150,000 for airfare and US visa. However, she was not given a work permit to validly work in the US.

Issue:

Whether or not the petitioner is guilty of illegal recruitment?

Held:

There is lack of evidence that accused offered Toledo a job. Procuring of an airfare ticket and a US visa does not qualify illegal recruitment.

G.R. No. 152214             September 19, 2006

EQUI-ASIA PLACEMENT, INC., petitioner, vs.DEPARTMENT OF FOREIGN AFFAIRS (DFA) represented by the HON. DOMINGO L. SIAZON, JR., SECRETARY, DEPARTMENT OF LABOR AND EMPLOYMENT (DOLE), represented by HON. BIENVENIDO LAGUESMA, respondents.

D E C I S I O N

CHICO-NAZARIO, J.:

This is a Petition for Review on Certiorari of the Decision dated 4 October 20011 and Resolution dated 18 February 2002 of the Court of Appeals in CA-G.R. SP No. 61904. The Decision denied petitioner's petition forcertiorari while the Resolution denied its Motion for Reconsideration.

The Court of Appeals summarized the facts of this case in this wise:

On September 16, 2000, Manny dela Rosa Razon, a native of Lemery, Batangas and an overseas Filipino worker, died of acute cardiac arrest while asleep at the dormitory of the Samsong Textile Processing Factory in South Korea. Informed thereof, the Philippine Overseas Labor Office (POLO) at South Korea immediately relayed the incident to the Philippine Embassy in South Korea. Forthwith, the [Labor] Attaché of the Philippine Embassy dispatched a letter to Eleuterio N. Gardiner, administrator of the Overseas Workers Welfare Administration (OWWA). The letter reads:

"VERY URGENT, POLO has recently received a report that OFW Manny dela Rosa RAZON, an undocumented worker, died last Saturday, 16 September, from an apparent pancreatic attack or 'bangungot.'

According to the verbal reports of Moises and Ronald Recarde, Manny's co-workers, he was found already lifeless inside their quarters at around 11:00 in the morning of the above date. They rushed him to Uri Hospital where the Doctor declared him dead on arrival.

Per information gathered, the deceased is single, 29 years old, from Bukal, Lemery, Batangas. His next-of-kins are Mrs. Rowena Razon (Auntie) and Mr. Razon (Uncle) with telephone number (043)411-2308.

POLO is awaiting signed statements from the aforementioned workers who promised to send it by fax this afternoon.

We are also coordinating with the deceased's employer for documentation requirements and financial assistance for the repatriation of the remains.

We will highly appreciate if Home Office could advise the next-of-kins of the urgent need to issue a Special Power of Attorney (SPA) to facilitate the repatriation requirements of the subject.

In anticipation of the next-of-kins' likely move to seek financial assistance from OWWA for the repatriation of their loved [one], please be advised in advance that we will need about US$4,000.00 to repatriate the cadaver (to include hospital and morgue costs) to Manila. xxx"

In turn, the OWWA, through Atty. Cesar L. Chavez, indorsed the matter, for appropriate action, to Director R. Casco of the Welfare Employment Office of the Philippine Overseas Employment Administration (WEO-POEA).

Upon verification by the WEO-POEA on its data base, it was discovered that Manny Razon was recruited and deployed by petitioner Equi-Asia Placement, Inc., and was sent to South Korea on April 3, 2000 to work-train at Yeongjin Machinery, Inc. Thereupon, POEA addressed the herein first assailed telegram-directive dated September 22, 2000 to the President/General Manager of the petitioner. We quote the telegram:

"PLEASE PROVIDE PTA [Prepaid Ticket Advice] FOR THE REPATRIATION OF REMAINS AND BELONGINGS OF OFW MANNY DELA ROSA RAZON AS PER REQUEST OF PHILIPPINE EMBASSY, KOREA, YOU CAN COORDINATE WITH YOUR FOREIGN EMPLOYER AND TO WAD/OWWA (MLA) AS REGARDS TO THIS MATTER. YOU ARE GIVEN TWO (2) DAYS FROM RECEIPT HEREOF WITHIN WHICH TO PROVIDE SAID TICKET AND ASSISTANCE, KINDLY SUBMIT YOUR REPORT TO ASSISTANCE AND WELFARE DIVISION (AWD), 2/F POEA, FAILURE TO DO SO WILL CONSTRAIN US TO IMPOSE APPROPRIATE SANCTION UNDER OUR RULES"

Responding thereto, petitioner, thru its President Daniel Morga, Jr., faxed on September 26, 2000 the following message to the Assistance and Welfare Division of the POEA:

"In connection with your telegram, dated 09/22/2000, requiring us to report the circumstances surrounding the death of OFW MANNY DELA ROSA RAZON in Korea and requesting us to issue a PTA, etc., for the repatriation of the remains of said OFW, this is to report to your good office the following:

1. The deceased was deployed by our agency on April 3, 2000 to Yeongjin Machine Company in South Korea;

2. He violated his employment/training/dispatching contracts on June 25, 2000 by unlawfully escaping/running away (TNT) from his company assignment without prior KFSMB authorization and working/staying in unknown company/place;

3. He allegedly died of 'bangungot' thereafter;

In view thereof, we cannot heed your requests as embodied in your telegram. However, his relatives can avail of the benefits provided for by OWWA in cases involving undocumented/illegal Filipino workers abroad.

Trusting for your kind understanding"

On the same date – September 26, 2000 – Director Ricardo R. Casco of the WEO-POEA sent to the petitioner the herein second assailed letter-directive, which pertinently reads:

"We have received a copy of your fax message dated 26 September 2000 as regards to your response to our request for PTA for aforesaid deceased OFW. Nevertheless, may we remind you that pursuant to Sections 52, 53, 54 and 55 of the Implementing Rules Governing RA 8042, otherwise known as the Migrant Workers and Overseas Filipino Act of 1995, the repatriation of OFW, his/her remains and transport of his personal effects is the primary responsibility of the principal or agency and to immediately advance the cost of plane fare without prior determination of the cause of worker's repatriation. The Rules further provide for the procedure to be followed in cases when the foreign employer/agency fails to provide for the cost of the repatriation, compliance of which is punishable by suspension of the license of the agency or such sanction as the Administration shall deem proper. Hence, you are required to provide the PTA for the deceased OFW in compliance with the requirement in accordance with R.A. 8042. You are given forty-eight (48) hours upon receipt hereof within which to provide said ticket. Failure in this regard will constrain us to impose the appropriate sanction under our rules."

On September 27, 2000, petitioner wrote back Director Ricardo R. Casco, thus:

"In connection with your fax letter dated September 26, 2000, re: the repatriation of the remains of the deceased, ex-trainee (OFW) MANNY DELA ROSA RAZON, please be informed that the provisions of Section 53 as well as, and in relation to, Section 55 of the Omnibus Rules and Regulations Implementing the Migrant Workers and Overseas Filipinos Act of 1995 on the matters covering the following:

1. The responsibility of the agency to advance the cost of plane fare without prior determination of the cause of the deceased worker's termination.

2. The recovery of the same costs from the estate of the dead worker before the NLRC.

3. The action to be imposed by POEA for non-compliance therewith within 48 hours are violative of due process and/or the principle on due delegation of power.

This is so because Sec. 15 of R.A. 8042 clearly contemplates prior notice and hearing before responsibility thereunder could be established against the agency that sets up the defense of sole fault – in avoidance of said responsibility -. Besides, the sections in question unduly grant the powers to require advance payment of the plane fare, to impose the corresponding penalty of suspension in case of non-compliance therewith, within 48 hours and to recover said advance payment from the dead worker's estate upon the return of his remains to the country before the NLRC, when the law itself does not expressly provide for the grant of such powers.

x x x x x x x x x.

Please provide us immediately with the death certificate/post mortem report/police report pertinent to above as proof of death and cause thereof."

Nonetheless, and apprehensive of the adverse repercussions which may ensue on account of its non-compliance with the directive, petitioner, on September 29, 2000, advanced under protest the costs for the repatriation of the remains of the late Manny dela Rosa Razon.

Thereafter, petitioner went to this Court via the instant petition for certiorari, posing, for Our consideration, the sole issue of –

"WHETHER OR NOT SECTIONS 52, 53, 54 AND 55 OF THE OMNIBUS RULES AND REGULATIONS IMPLEMENTING THE MIGRANT WORKERS AND OVERSEAS FILIPINOS ACT OF 1995 (R.A. 8042), ISSUED BY DFA AND POEA, WHICH POEA SUMMARILY ORDERED THE HEREIN PETITIONER TO COMPLY VIZ-A-VIZ THE PAYMENT IN ADVANCE OF THE EXPENSES FOR THE REPATRIATION OF THE REMAINS OF A DECEASED WORKER-TRAINEE WHO, AT THE TIME OF HIS DEATH, HAS NO EXISTING EMPLOYMENT (DISPATCHING) CONTRACT WITH EITHER SAID PETITIONER OR HIS FOREIGN PRINCIPAL AND NO VALID VISA OR IS NOT WORKING WITH THE FOREIGN PRINCIPAL TO WHICH PETITIONER DEPLOYED HIM, IS ILLEGAL AND/OR VIOLATIVE OF DUE PROCESS SUCH THAT POEA ACTED WITHOUT [OR IN] EXCESS OF ITS JURISDICTION AND/OR IN GRAVE ABUSE OF DISCRETION IN ISSUING SAID ORDER TO PAY SAID EXPENSES."2

On 4 October 2001, the Court of Appeals rendered the Decision which is now the subject of the present petition. The dispositive portion of the Court of Appeals' Decision states:

WHEREFORE, for lack of merit, the instant petition is DENIED and is accordingly DISMISSED.3

In dismissing the petition for certiorari, the Court of Appeals stated that petitioner was mainly accusing the Philippine Overseas Employment Administration (POEA) of grave abuse of discretion when it ordered petitioner to pay, in advance, the costs for the repatriation of the remains of the deceased Manny dela Rosa Razon.

The Court of Appeals ruled that the POEA did not commit any grave abuse of discretion as its directives to petitioner were issued pursuant to existing laws and regulations.4 It likewise held that a petition for certiorari, which was the remedy availed of by petitioner, is not the proper remedy as the same is only available when "there is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law."5 Section 62 of the Omnibus Rules and Regulations Implementing the Migrant Workers and Overseas Filipinos Act of 1995 or Republic Act 8042 ("Omnibus Rules") states that "the Labor Arbiters of NLRC shall have the original and exclusive jurisdiction to hear and decide all claims arising out of employer-employee relationship or by virtue of any law or contract involving Filipino workers for overseas deployment including claims for actual, moral, exemplary and other forms of damages, subject to the rules and procedures of the NLRC." There is, therefore, an adequate remedy available to petitioner.

Lastly, the Court of Appeals declared that it could not strike down as unconstitutional Sections 52, 53, 54, and 55 of the Omnibus Rules as the unconstitutionality of a statute or rules may not be passed upon unless the issue is directly raised in an appropriate proceeding.6

In the present recourse, petitioner submits the following issues for our consideration:

1. The Court of Appeals erred in the appreciation of the issue as it mistakenly considered, in dismissing the petition before it, that petitioner is contesting the compliance and conformity of the POEA directives with Sections 52, 53, 54, and 55 of the Omnibus Rules and Regulations implementing in particular Section 15 of RA 8042;

2. The Court of Appeals, in dismissing the petition, again erred in ruling that constitutional questions cannot be passed upon and adjudged in a special civil action for certiorari under Rule 65 of the 1997 Rules of Civil Procedure;

3. The Court of Appeals erred in not holding that, under the facts of the case that gave rise to the petition before it, the same sections of the said rules and regulations are illegal, invalid and/or violative of the right of petitioner to due process of law and, therefore, the POEA directives issued pursuant thereto constitute acts committed without, or in excess of, jurisdiction and/or in grave abuse of discretion.7

In Our Resolution of 20 November 2002, we gave due course to the present petition and directed the parties to submit their respective memoranda.8 On 28 August 2006, we resolved to dispense with the memorandum of the estate/heirs of deceased Manny dela Rosa Razon.

At the center of this petition are the following provisions of the omnibus rules:

Section 52. Primary Responsibility for Repatriation. – The repatriation of the worker, or his/her remains, and the transport of his/her personal effects shall be the primary responsibility of the principal or agency which recruited or deployed him/her abroad. All costs attendant thereto shall be borne by the principal or the agency concerned.

Section 53. Repatriation of Workers. – The primary responsibility to repatriate entails the obligation on the part of principal or agency to advance the cost of plane fare and to immediately repatriate the worker should the need for it arise, without a prior determination of the cause of the termination of the worker's employment. However, after the worker has returned to the country, the principal or agency may recover the cost of repatriation from the worker if the termination of employment was due solely to his/her fault.

Every contract for overseas employment shall provide for the primary responsibility of agency to advance the cost of plane fare, and the obligation of the worker to refund the cost thereof in case his/her fault is determined by the Labor Arbiter.

Section 54. Repatriation Procedure. – When a need for repatriation arises and the foreign employer fails to provide for it cost, the responsible personnel at site shall simultaneously notify OWWA and the POEA of such need. The POEA shall notify the agency concerned of the need for repatriation. The agency shall provide the plane ticket or the prepaid ticket advice (PTA) to the Filipinos Resource Center or to the appropriate Philippine Embassy; and notify POEA of such compliance. The POEA shall inform OWWA of the action of the agency.

Section 55. Action on Non-Compliance. – If the employment agency fails to provide the ticket or PTA within 48 hours from receipt of the notice, the POEA shall suspend the license of the agency or impose such sanctions as it may deem necessary. Upon notice from the POEA, OWWA shall advance the costs of repatriation with recourse to the agency or principal. The administrative sanction shall not be lifted until the agency reimburses the OWWA of the cost of repatriation with legal interest.

Said provisions, on the other hand, are supposed to implement Section 15 of Republic Act No. 80429 which provides:

SEC. 15. Repatriation of Workers; Emergency Repatriation Fund. – The repatriation of the worker and the transport of his personal belongings shall be the primary responsibility of the agency which, recruited or deployed the worker overseas. All costs attendant to repatriation shall be borne by or charged to the agency concerned and/or its principal. Likewise, the repatriation of remains and transport of the personal belongings of a deceased worker and all costs attendant thereto shall be borne by the principal and/or the local agency. However, in cases where the termination of employment

is due solely to the fault of the worker, the principal/employer or agency shall not in any manner be responsible for the repatriation of the former and/or his belongings.

Petitioner contends that the Court of Appeals misappreciated the issue it presented in its petition for certiorariwhen, instead of resolving whether Sections 52, 53, 54, and 55 of the Omnibus Rules are illegal and violative of due process, it merely confined itself to the question of whether or not the POEA committed grave abuse of discretion in issuing its directives of 22 September 2000 and 27 September 2000.

Petitioner also contends that, contrary to the finding of the Court of Appeals, a special civil action for certiorari is the appropriate remedy to raise constitutional issues.

Also, petitioner insists that the subject portions of the omnibus rules are invalid on the ground that Section 15 of Republic Act No. 8042 does not impose on a recruitment agency the primary responsibility for the repatriation of a deceased Overseas Filipino Worker (OFW), while Section 52 of the Omnibus Rules unduly imposes such burden on a placement agency.

Moreover, petitioner argues that the word "likewise" at the start of the third sentence of Section 15 of Republic Act No. 8042 is used merely as a connective word indicating the similarity between a recruitment agency's financial obligation in the repatriation of living and a deceased OFW. It does not, however, necessarily make a placement agency primarily responsible for the repatriation of a deceased OFW unlike in the case of an OFW who is alive.

As for Section 53 of the Omnibus Rules, petitioner submits that the same is invalid as Section 15 of Republic Act No. 8042 clearly states that a placement agency shall not in any manner be responsible for the repatriation of the deceased OFW and his or her belongings should the termination of the OFW's employment be due to his or her fault. However, as Section 53 of the Omnibus Rules stipulates that a placement agency or principal shall bear the primary responsibility of repatriating an OFW and of advancing the payment for his or her plane fare, the omibus rules, as far as this section is concerned, is an invalid exercise of legislative power by an administrative agency.

In addition, petitioner claims Section 53 of the Omnibus Rules violates the due process clause of the constitution as it deprives the deploying agency of the right to prior notice and hearing through which it can prove that it should not bear the burden of repatriating an OFW.

Finally, petitioner points out that it should be the Overseas Workers Welfare Administration which should advance the costs of repatriation of the deceased Razon with the resources coming out of the emergency repatriation fund of said agency.

The Solicitor General for its part counters that Sections 52, 53, 54, and 55 of the Omnibus Rules are valid quasi-legislative acts of respondents Department of Foreign Affairs and Department of Labor and Employment.10Because of this, the requirements of prior notice and hearing are not essential. Besides, there are cases where even in the exercise of quasi-judicial power, administrative agencies are allowed, sans prior notice and hearing, to effectuate measures affecting private property, such as:

1) [F]or the summary abatement of nuisance per se which affects the immediate safety of persons and property, or 2) in summary proceedings of distraint and levy upon the property of delinquent taxpayers in the collection of internal revenue taxes, fees or charges or any increment thereto, or 3) in the preventive suspension of a public officer pending investigation. x x x.11

The Solicitor General also adds that since petitioner is engaged in the recruitment of Filipino workers for work abroad, the nature of its business calls for the exercise of the state's police power in order to safeguard the rights and welfare of the Filipino laborers. One such measure is the primary responsibility imposed upon placement agencies with regard to the repatriation of an OFW or of his remains.

The Solicitor General also argues that the wording of Section 15 of Republic Act No. 8042 leaves no doubt that a recruitment agency shall bear the primary responsibility for the repatriation of an OFW whether the latter is dead or alive.

Lastly, the Solicitor General insists that actions assailing the validity of implementing rules and regulations are within the original jurisdiction of the regional trial courts.

We shall first address the procedural question involved in the present petition.

There is no denying that regular courts have jurisdiction over cases involving the validity or constitutionality of a rule or regulation issued by administrative agencies. Such jurisdiction, however, is not limited to the Court of Appeals or to this Court alone for even the regional trial courts can take cognizance of actions assailing a specific rule or set of rules promulgated by administrative bodies. Indeed, the Constitution vests the power of judicial review or the power to declare a law, treaty, international or executive agreement, presidential decree, order, instruction, ordinance, or regulation in the courts, including the regional trial courts.12

Section 1, Rule 65 of the 1997 Rules of Civil Procedure states:

SECTION 1. Petition for Certiorari. – When any tribunal, board or officer exercising judicial or quasi-judicial functions has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal, nor any plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered annulling or modifying the proceedings of such tribunal, board or officer, and granting such incidental reliefs as law and justice may require.

The petition shall be accompanied by a certified true copy of the judgment, order or resolution subject thereof, copies of all pleadings and documents relevant and pertinent thereto, and a sworn certification of non-forum shopping as provided in the third paragraph of Section 3, Rule 46.

From this, it is clear that in order for a petition for certiorari to prosper, the following requisites must be present: (1) the writ is directed against a tribunal, a board or an officer exercising judicial or quasi-judicial functions; (2) such tribunal, board or officer has acted without or in excess of jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction; and (3) there is no appeal or any plain, speedy and adequate remedy in the ordinary course of law.

It bears emphasizing that administrative bodies are vested with two basic powers, the quasi-legislative and the quasi-judicial.13 In Abella, Jr. v. Civil Service Commission,14 we discussed the nature of these powers to be –

In exercising its quasi-judicial function, an administrative body adjudicates the rights of persons before it, in accordance with the standards laid down by the law. The determination of facts and the applicable law, as basis for official action and the exercise of judicial discretion, are essential for the performance of this function. On these considerations, it is elementary that due process requirements, as enumerated in Ang Tibay, must be observed. These requirements include prior notice and hearing.

On the other hand, quasi-legislative power is exercised by administrative agencies through the promulgation of rules and regulations within the confines of the granting statute and the doctrine of non-delegation of certain powers flowing from the separation of the great branches of the government. Prior notice to and hearing of every affected party, as elements of due process, are not required since there is no determination of past events or facts that have to be established or ascertained. As a general rule, prior notice and hearing are not essential to the validity of rules or regulations promulgated to govern future conduct.

In this case, petitioner assails certain provisions of the Omnibus Rules. However, these rules were clearly promulgated by respondents Department of Foreign Affairs and Department of Labor and Employment in the

exercise of their quasi-legislative powers or the authority to promulgate rules and regulations. Because of this, petitioner was, thus, mistaken in availing himself of the remedy of an original action for certiorari as obviously, only judicial or quasi-judicial acts are proper subjects thereof. If only for these, the petition deserves outright dismissal. Be that as it may, we shall proceed to resolve the substantive issues raised in this petition for review in order to finally remove the doubt over the validity of Sections 52, 53, 54, and 55 of the Omnibus Rules.

It is now well-settled that delegation of legislative power to various specialized administrative agencies is allowed in the face of increasing complexity of modern life. Given the volume and variety of interactions involving the members of today's society, it is doubtful if the legislature can promulgate laws dealing with the minutiae aspects of everyday life. Hence, the need to delegate to administrative bodies, as the principal agencies tasked to execute laws with respect to their specialized fields, the authority to promulgate rules and regulations to implement a given statute and effectuate its policies.15 All that is required for the valid exercise of this power of subordinate legislation is that the regulation must be germane to the objects and purposes of the law; and that the regulation be not in contradiction to, but in conformity with, the standards prescribed by the law.16 Under the first test or the so-called completeness test, the law must be complete in all its terms and conditions when it leaves the legislature such that when it reaches the delegate, the only thing he will have to do is to enforce it.17 The second test or the sufficient standard test, mandates that there should be adequate guidelines or limitations in the law to determine the boundaries of the delegate's authority and prevent the delegation from running riot.18

We resolve that the questioned provisions of the Omnibus Rules meet these requirements.

Basically, petitioner is impugning the subject provisions of the Omnibus Rules for allegedly expanding the scope of Section 15 of Republic Act No. 8042 by: first, imposing upon it the primary obligation to repatriate the remains of the deceased Razon including the duty to advance the cost of the plane fare for the transport of Razon's remains; and second, by ordering it to do so without prior determination of the existence of employer-employee relationship between itself and Razon.

Petitioner's argument that Section 15 does not provide that it shall be primarily responsible for the repatriation of a deceased OFW is specious and plain nitpicking. While Republic Act No. 8042 does not expressly state that petitioner shall be primarily obligated to transport back here to the Philippines the remains of the deceased Razon, nevertheless, such duty is imposed upon him as the statute clearly dictates that "the repatriation of remains and transport of the personal belongings of a deceased worker and all costs attendant thereto shall be borne by the principal and/or the local agency." The mandatory nature of said obligation is characterized by the legislature's use of the word "shall." That the concerned government agencies opted to demand the performance of said responsibility solely upon petitioner does not make said directives invalid as the law plainly obliges a local placement agency such as herein petitioner to bear the burden of repatriating the remains of a deceased OFW with or without recourse to the principal abroad. In this regard, we see no reason to invalidate Section 52 of the omnibus rules as Republic Act No. 8042 itself permits the situation wherein a local recruitment agency can be held exclusively responsible for the repatriation of a deceased OFW.

Nor do we see any reason to stamp Section 53 of the Omnibus Rules as invalid for allegedly contravening Section 15 of the law which states that a placement agency shall not be responsible for a worker's repatriation should the termination of the employer-employee relationship be due to the fault of the OFW. To our mind, the statute merely states the general principle that in case the severance of the employment was because of the OFW's own undoing, it is only fair that he or she should shoulder the costs of his or her homecoming. Section 15 of Republic Act No. 8042, however, certainly does not preclude a placement agency from establishing the circumstances surrounding an OFW's dismissal from service in an appropriate proceeding. As such determination would most likely take some time, it is only proper that an OFW be brought back here in our country at the soonest possible time lest he remains stranded in a foreign land during the whole time that recruitment agency contests its liability for repatriation. As aptly pointed out by the Solicitor General –

Such a situation is unacceptable.

24. This is the same reason why repatriation is made by law an obligation of the agency and/or its principal without the need of first determining the cause of the termination of the worker's employment.

Repatriation is in effect an unconditional responsibility of the agency and/or its principal that cannot be delayed by an investigation of why the worker was terminated from employment. To be left stranded in a foreign land without the financial means to return home and being at the mercy of unscrupulous individuals is a violation of the OFW's dignity and his human rights. These are the same rights R.A. No. 8042 seeks to protect.19

As for the sufficiency of standard test, this Court had, in the past, accepted as sufficient standards the following: "public interest," "justice and equity," "public convenience and welfare," and "simplicity, economy and welfare."20

In this case, we hold that the legislature's pronouncements that Republic Act No. 8042 was enacted with the thought of upholding the dignity of the Filipinos may they be here or abroad and that the State shall at all times afford full protection to labor, both here and abroad, meet the requirement and provide enough guidance for the formulation of the omnibus rules.

WHEREFORE, the Petition for Review is DENIED. The Court of Appeals' Decision dated 4 October 2001 and Resolution dated 18 February 2002 are hereby AFFIRMED. With costs.

SO ORDERED.

G.R. No. 91096 April 3, 1990

CAPRICORN INTERNATIONAL TRAVEL AND TOURS, INC., petitioner, vs.COURT OF APPEALS and SAMEER OVERSEAS PLACEMENT AGENCY, respondents.

Antonio V. Ferrer for petitioner.

Gaspar V. Tagala for private respondent.

R E S O L U T I O N

 

CORTES, J.:

The sole issue in this petition to review the decision of the Court of Appeals is whether or not the cash bond posted by a recruitment agency in the Philippine Overseas Employment Administration (POEA) may be garnished by a judgment creditor of the agency.

In Civil Case No. 86-36195 of the Regional Trial Court of Manila, judgment was rendered in favor of petitioner and against private respondent, ordering the latter to pay Ninety-one Thousand Two Hundred Sixteen Pesos and Sixty Centavos (P91,216.60) with legal interest from the filing of the complaint, 10% attorney's fees, and costs. A writ of execution was issued and a notice of garnishment of the cash bond posted by private respondent was served on the POEA.

The POEA, through its officials, was against delivering the amount of private respondent's cash bond to the sheriff, but subsequently, left with no other recourse but to comply with the trial court's orders, the POEA delivered a check for One Hundred Thousand Pesos (P100,000.00) representing the amount of the cash bond to petitioner's counsel.

In the meantime, private respondent moved to quash the notice of garnishment, but this was denied by the trial court. A motion for reconsideration was filed, but this was also denied.

Private respondent filed a petition for certiorari with the Court of Appeals, alleging that the trial court judge gravely abused his discretion when he denied the motion to quash the notice of garnishment. The Court of Appeals granted the petition and annulled the trial court's orders relative to the notice of garnishment. It also permanently enjoined petitioner from attaching, levying and garnishing private respondent's cash bond and ordered petitioner to return it to the POEA, if still unreturned.

Hence, this petition.

1. Relative to the State's regulation of recruitment and overseas placement activities, the Labor Code provides:

Art. 31. Bonds. — All applicants for license or authority shall post such cash and surety bonds as determined by the Secretary of Labor to guarantee compliance with prescribed recruitment procedures, rules and regulations, and terms and conditions of employment as appropriate.

Implementing this provision, Book II, Rule II of the POEA Rules and Regulations provides:

Section 4. Payment of Fees and Posting of Bonds. — Upon approval of the application by the Minister, the applicant shall pay an annual license fee of P6,000.00. It shall also post a cash bond of P100,000.00 and a surety bond of P150,000.00 from a bonding company acceptable to the Administration duly accredited by the Office of the Insurance Commission. The bonds shall answer for all valid and legal claims arising from violations of the conditions for the grant and use of the license or authority and contracts of employment, The bonds shall likewise guarantee compliance with the provisions of the Labor Code and its implementing rules and regulations relating to recruitment and placement, the rules of the Administration and relevant issuances of the Ministry and all liabilities which the Administration may impose. The surety bonds shall include the condition that notice of garnishment to the principal is notice to the surety.

Section 5. Issuance of License or Authority. — The Administration shall issue the corresponding license or authority upon payment in full of the required fees and posting of bonds.

xxx xxx xxx

Section 15. Renewal of License. — Within forty-five (45) days before the expiry date of the license, an agency, or entity shall submit an application for the renewal thereof to the Administration. Such application shall be supported by the following documents:

xxx xxx xxx

e. Replenishment of the cash bond in case such or any part thereof is garnished;

xxx xxx xxx

Section 19. Replenishment of Cash or Surety Bonds. — Within thirty (30) days from notice by the Administration that the bonds or any part thereof had been garnished, the agency or entity shall replenish the same. Failure to replenish shall cause the suspension or cancellation of the license or authority.

Section 20. Refund of Cash Bond. —A licensed agency or entity which voluntarily surrenders its license or authority shall be entitled to the refund of its cash bond only after posting a surety bond of similar amount valid for three (3) years.

2. Explicit from the provisions abovequoted are:

(a) that the cash bond is a requisite for the issuance and renewal of a license or authority to engage in the business of recruitment and overseas placement;

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

(c) that the amount of the cash bond must be maintained during the lifetime of the license or authority; and

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

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

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

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

4. From a different angle, neither may it be argued that petitioner's judgment credit, pertaining as it does to the value of airline tickets ostensibly used by private respondent to transport overseas workers abroad, this one of those for which the cash bond should answer. Private respondent's liability to petitioner relates to a purely contractual obligation arising from the purchase and sale of airline tickets. While the liability may have been incurred in connection with the business of recruiting or placing overseas workers, it is definitely not one arising from violations of the conditions for the grant and use of the license or authority and contracts of employment. Nor is it one arising from the violation of labor laws.

5. Thus, it cannot be said that the Court of Appeals erred when it annulled the assailed orders of respondent judge, enjoined petitioner from garnishing the cash bond, and ordered it to return the amount of the bond to the POEA if it had not yet done so.

ACCORDINGLY, after deliberating on the Petition, Comment and Reply, the Court Resolved to DENY the petition for lack of merit.

Fernan, C.J., Gutierrez, Jr., Feliciano and Bidin JJ., concur.

G.R. No. 94588 July 2, 1992

FINMAN GENERAL ASSURANCE CORPORATION, petitioner, vs.NLRC (POEA), ROMEO GALIZA and MILAGROS BUMANGLAG, respondents.

 

GRIÑO-AQUINO, J.:

The petitioner seeks to annul the Order dated August 3, 1989 of the Honorable Secretary of Labor and Employment, denying its appeal from the Order dated May 31, 1989 of the POEA Administrator in POEA (L) RRB Case No. 88-03-474 entitled, "Romeo Galiza and Milagros Bumanglag vs. Pan Pacific Overseas Recruitment/Finman General Assurance Corporation" directing the respondents to pay jointly and severally the complainants' claims, reiterating the ban earlier imposed on Pan Pacific Overseas Recruitment, and imposing a penalty fine of P40,000 on it.

The record shows that on July 23, 1987, Romeo Galiza and Milagros Bumanglag applied with Pan Pacific Overseas Recruitment, a placement agency with office registered at Feros Building, 176 Salcedo Street, Makati, Metro Manila, for jobs as airport porter and domestic helper respectively.

Galiza was required by the agency's General Manager, Engr. Celia Aranda, to pay a placement fee of P6,000 which he paid on July 23, 1987 to the Recruitment Director of the agency, Normita Egil, evidenced by a receipt issued in his favor.

Milagros Bumanglag was required to pay P3,000 as "processing fee" for which no receipt was issued to her by the agency.

After several months, Bumanglag followed up her application with the agency. Since the latter failed to deploy her, she withdrew her travel documents on January 23, 1988 and demanded a refund of her P3,000 placement fee. Instead of returning her money, the agency advised her to return on March 12, 1988 for the refund of P2,400 only, explaining that deductions had been made from her initial deposit of P3,000 to cover expenses for her pictures. The agency issued in her favor a note scheduling such refund.

When it appeared that the recruitment agency merely furnished false information relating to their recruitment and placement for jobs overseas, Galiza and Bumanglag filed individual complaints against Pan Pacific before the Philippine Overseas Employment Administration (POEA) [(L) RRB Case No. 88-03-474)] for violation of Articles 32 and 34(a) of the Labor Code, as amended, which provide:

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

ART. 34. Prohibited practices. —

(a) 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 actually received by him as a loan or advance.

Motu proprio, POEA impleaded as party-respondent, Pan Pacific's surety. FINMAN GENERAL ASSURANCE CORPORATION (FINMAN for brevity), which had bound itself to be jointly and severally liable for claims that may arise should the recruitment agency violate the conditions of its license. Summons were sent to the respondents at their respective official addresses. However, the summons for Pan Pacific was returned unserved with a notation "Company moved out."

FINMAN filed an Answer denying liability for the claims, and alleging POEA's lack of jurisdiction to enforce the surety's undertaking. During the hearing that followed. FINMAN further alleged that the note which the agency issued to Bumanglag indicating her refund schedule, was not a receipt because it did not acknowledge payment of any fee.

On May 31, 1989, POEA Administrator Tomas Achacoso issued an Order finding Pan Pacific liable for violation of Articles 32 and 34(a) of the Labor Code, as amended. He observed that the agency's note scheduling the refund of Bumanglag's P2,400 placement fees, while not strictly a receipt, was sufficient proof that she had

indeed paid that amount to the agency, particularly since it had been established in several other cases in the POEA against the respondent agency that it issued such "notes" to applicants claiming refund of fees paid to the agency. On the other hand. a receipt for P6,000 and a similar note scheduling the refund for the same amount issued by the agency to Galiza substantially established his payment of P6,000 which was in excess of the allowable recruitment fee of P5,000 from each hired worker. That the agency furnished false information relating to recruitment and placement to the complainants when it promised available employment for them, was established beyond cavil. The respondents were ordered to pay jointly and severally the sum of P6,000 to Galiza and P2.400 to Bumanglag. Pan Pacific was ordered to pay a fine of P40,000 and the ban earlier imposed upon it was reiterated.

FINMAN appealed the POEA Order of May 31, 1989 to the Department of Labor and Employment. On August 3, 1989, DOLE Secretary Franklin Drilon dismissed the appeal for lack of merit. A writ of execution was issued by the POEA.

FINMAN filed this petition for certiorari with preliminary mandatory injunction and/or restraining order to stop the implementation of the Orders of the POEA Administrator and the Secretary of Labor.

FINMAN alleges that the POEA acted with grave abuse of discretion amounting to lack of jurisdiction:

1. in motu proprio impleading FINHAN as a co-respondent with Pan Pacific in POEA (L) RRB Case No. 88-03-474; and

2. in directing FINMAN to pay jointly and severally with Pan Pacific the claims of Galiza and Bumanglag on the basis of the suretyship agreement executed by FINMAN, Pan Pacific and the POEA.

Petitioner alleges that the POEA has no authority under its own Rules and Regulations to implead the surety of any recruitment or placement agency in actions and/or complaints for suspension, cancellation or revocation of license or authority of the latter; that on the contrary, the authority of the POEA is limited to a determination of whether there is sufficient cause for an action upon the agency's license; that POEA's jurisdiction to hear and decide money claims is confined to employer-employee relations arising out of, or by virtue of, any law or contract, and not money claims arising from pre-employment or during recruitment conducted by the respondent agency; and finally, that if ever the surety bond may be held liable for infractions or violations of the Labor Code and POEA rules and regulations, it shall be answerable only for the sanctions, penalties or fines imposed upon the agency but definitely not for money claims of applicants not arising from employment contracts.

The petition for certiorari is without merit. The POEA Administrator did not exceed his jurisdiction nor act with grave abuse of discretion in impleading FINMAN as a co-respondent in (L) RRB Case No. 88-03-474 and directing it to pay jointly and severally with Pan Pacific the claims of the private respondents, Galiza and Bumanglag, on the basis of the surety bond it issued for Pan Pacific. Said surety bond guarantees the faithful compliance by Pan Pacific of all laws relating to the use of its license and its recruitment activities. The bond is conditioned upon the true and faithful performance and observance by Pan Pacific of its duties and obligations as a licensed placement agency (Art. 31, Title I, Book One, Labor Code of the Phils.). Accordingly, the nature of FINMAN's obligation under the suretyship agreement makes it privy to the proceedings against its principal, Pan Pacific. FINMAN is bound by a judgment against its principal eventhough it was not a party to the proceedings, for a surety is considered in law as being the same party as the debtor in relation to whatever is adjudged touching the obligation of the latter, and their liabilities are interwoven as to be inseparable (PNB vs. Hon. Pineda.197 SCRA 1, citing Lirag Textile Mills. Inc. vs. SSS, 153 SCRA 338 and Gov't. of the Phil. vs. Tizon, 20 SCRA 1187 Finman General Assurance Corporation vs. Salik, 188 SCRA 740).

WHEREFORE, the petition is DISMISSED for lack of merit. Costs against the petitioner.

SO ORDERED

G.R. No. 77279 April 15, 1988

MANUELA S. CATAN/M.S. CATAN PLACEMENT AGENCY, petitioners, vs.THE NATIONAL LABOR RELATIONS COMMISSION, PHILIPPINE OVERSEAS EMPLOYMENT ADMINISTRATION and FRANCISCO D. REYES, respondents.

Demetria Reyes, Merris & Associates for petitioners.

The Solicitor General for public respondents.

Bayani G. Diwa for private respondent.

 

CORTES, J.:

Petitioner, in this special civil action for certiorari, alleges grave abuse of discretion on the part of the National Labor Relations Commission in an effort to nullify the latters resolution and thus free petitioner from liability for the disability suffered by a Filipino worker it recruited to work in Saudi Arabia. This Court, however, is not persuaded that such an abuse of discretion was committed. This petition must fail.

The facts of the case are quite simple.

Petitioner, a duly licensed recruitment agency, as agent of Ali and Fahd Shabokshi Group, a Saudi Arabian firm, recruited private respondent to work in Saudi Arabia as a steelman.

The term of the contract was for one year, from May 15,1981 to May 14, 1982. However, the contract provided for its automatic renewal:

FIFTH: The validity of this Contract is for ONE YEAR commencing from the date the SECOND PARTY assumes hill port. This Contract is renewable automatically if neither of the PARTIES notifies the other PARTY of his wishes to terminate the Contract by at least ONE MONTH prior to the expiration of the contractual period. [Petition, pp. 6-7; Rollo, pp. 7-8].

The contract was automatically renewed when private respondent was not repatriated by his Saudi employer but instead was assigned to work as a crusher plant operator. On March 30, 1983, while he was working as a crusher plant operator, private respondent's right ankle was crushed under the machine he was operating.

On May 15, 1983, after the expiration of the renewed term, private respondent returned to the Philippines. His ankle was operated on at the Sta. Mesa Heights Medical Center for which he incurred expenses.

On September 9, 1983, he returned to Saudi Arabia to resume his work. On May 15,1984, he was repatriated.

Upon his return, he had his ankle treated for which he incurred further expenses.

On the basis of the provision in the employment contract that the employer shall compensate the employee if he is injured or permanently disabled in the course of employment, private respondent filed a claim, docketed as POEA Case No. 84-09847, against petitioner with respondent Philippine Overseas Employment Administration. On April 10, 1986, the POEA rendered judgment in favor of private respondent, the dispositive portion of which reads:

WHEREFORE, judgment is hereby rendered in favor of the complainant and against the respondent, ordering the latter to pay to the complainant:

1. SEVEN THOUSAND NINE HUNDRED EIGHTY-FIVE PESOS and 60/100 (P7,985.60), Philippine currency, representing disability benefits;

2. TWENTY-FIVE THOUSAND NINETY-SIX Philippine pesos and 20/100 (29,096.20) representing reimbursement for medical expenses;

3. Ten percent (10%) of the abovementioned amounts as and for attorney's fees. [NLRC Resolution, p. 1; Rollo, p. 16].

On appeal, respondent NLRC affirmed the decision of the POEA in a resolution dated December 12, 1986.

Not satisfied with the resolution of the POEA, petitioner instituted the instant special civil action for certiorari, alleging grave abuse of discretion on the part of the NLRC.

1. Petitioner claims that the NLRC gravely abused its discretion when it ruled that petitioner was liable to private respondent for disability benefits since at the time he was injured his original employment contract, which petitioner facilitated, had already expired. Further, petitioner disclaims liability on the ground that its agency agreement with the Saudi principal had already expired when the injury was sustained.

There is no merit in petitioner's contention.

Private respondents contract of employment can not be said to have expired on May 14, 1982 as it was automatically renewed since no notice of its termination was given by either or both of the parties at least a month before its expiration, as so provided in the contract itself. Therefore, private respondent's injury was sustained during the lifetime of the contract.

A private employment agency may be sued jointly and solidarily with its foreign principal for violations of the recruitment agreement and the contracts of employment:

Sec. 10. Requirement before recruitment.— Before recruiting any worker, the private employment agency shall submit to the Bureau the following documents:

(a) A formal appointment or agency contract executed by a foreign-based employer in favor of the license holder to recruit and hire personnel for the former ...

xxx xxx xxx

2. Power of the agency to sue and be sued jointly and solidarily with the principal or foreign-based employer for any of the violations of the recruitment agreement and the contracts of employment. [Section 10(a) (2) Rule V, Book I, Rules to Implement the Labor Code].

Thus, in the recent case of Ambraque International Placement & Services v. NLRC [G.R. No. 77970, January 28,1988], the Court ruled that a recruitment agency was solidarily liable for the unpaid salaries of a worker it recruited for employment in Saudi Arabia.

Even if indeed petitioner and the Saudi principal had already severed their agency agreement at the time private respondent was injured, petitioner may still be sued for a violation of the employment contract because no notice of the agency agreement's termination was given to the private respondent:

Art 1921. If the agency has been entrusted for the purpose of contra with specified persons, its revocation shall not prejudice the latter if they were not given notice thereof. [Civil Code].

In this connection the NLRC elaborated:

Suffice it to state that albeit local respondent M. S. Catan Agency was at the time of complainant's accident resulting in his permanent partial disability was (sic) no longer the accredited agent of its foreign principal, foreign respondent herein, yet its responsibility over the proper implementation of complainant's employment/service contract and the welfare of complainant himself in the foreign job site, still existed, the contract of employment in question not having expired yet. This must be so, because the obligations covenanted in the recruitment agreement entered into by and between the local agent and its foreign principal are not coterminus with the term of such agreement so that if either or both of the parties decide to end the agreement, the responsibilities of such parties towards the contracted employees under the agreement do not at all end, but the same extends up to and until the expiration of the employment contracts of the employees recruited and employed pursuant to the said recruitment agreement. Otherwise, this will render nugatory the very purpose for which the law governing the employment of workers for foreign jobs abroad was enacted. [NLRC Resolution, p. 4; Rollo, p. 18]. (Emphasis supplied).

2. Petitioner contends that even if it is liable for disability benefits, the NLRC gravely abused its discretion when it affirmed the award of medical expenses when the said expenses were the consequence of private respondent's negligence in returning to work in Saudi Arabia when he knew that he was not yet medically fit to do so.

Again, there is no merit in this contention.

No evidence was introduced to prove that private respondent was not medically fit to work when he returned to Saudi Arabia. Exhibit "B", a certificate issued by Dr. Shafquat Niazi, the camp doctor, on November 1, 1983, merely stated that private respondent was "unable to walk properly, moreover he is still complaining [of] pain during walking and different lower limbs movement" [Annex "B", Reply; Rollo, p. 51]. Nowhere does it say that he was not medically fit to work.

Further, since petitioner even assisted private respondent in returning to work in Saudi Arabia by purchasing his ticket for him [Exhibit "E"; Annex "A", Reply to Respondents' Comments], it is as if petitioner had certified his fitness to work. Thus, the NLRC found:

Furthermore, it has remained unrefuted by respondent that complainant's subsequent departure or return to Saudi Arabia on September 9, 1983 was with the full knowledge, consent and assistance of the former. As shown in Exhibit "E" of the record, it was respondent who facilitated the travel papers of complainant. [NLRC Resolution, p. 5; Rollo, p. 19].

WHEREFORE, in view of the foregoing, the petition is DISMISSED for lack of merit, with costs against petitioner.

SO ORDERED.

G.R. No. 78085 October 16, 1989

ROYAL CROWN INTERNATIONALE, petitioner, vs.NATIONAL LABOR RELATIONS COMMISSI0N and VIRGILIO P. NACIONALES, respondents.

Ceferino Padua Law Office for petitioner.

Acosta & Rico Law Offices for private respondent.

 

CORTES, J.:

Petitioner Royal Crown Internationale seeks the nullification of a resolution of the National Labor Relations Commission (NLRC) which affirmed a decision of the Philippine Overseas Employment Administration (POEA) holding it liable to pay, jointly and severally with Zamel-Turbag Engineering and Architectural Consultant (ZAMEL), private respondent Virgilio P. Nacionales' salary and vacation pay corresponding to the unexpired portion of his employment contract with ZAMEL.

In 1983, petitioner, a duly licensed private employment agency, recruited and deployed private respondent for employment with ZAMEL as an architectural draftsman in Saudi Arabia. On May 25, 1983, a service agreement was executed by private respondent and ZAMEL whereby the former was to receive per month a salary of US$500.00 plus US$100.00 as allowance for a period of one (1) year commencing from the date of his arrival in Saudi Arabia. Private respondent departed for Saudi Arabia on June 28,1983.

On February 13, 1984, ZAMEL terminated the employment of private respondent on the ground that his performance was below par. For three (3) successive days thereafter, he was detained at his quarters and was not allowed to report to work until his exit papers were ready. On February 16, 1984, he was made to board a plane bound for the Philippines.

Private respondent then filed on April 23, 1984 a complaint for illegal termination against petitioner and ZAMEL with the POEA, docketed as POEA Case No. (L) 84-04-401.

Based on a finding that petitioner and ZAMEL failed to establish that private respondent was terminated for just and valid cause, the Workers' Assistance and Adjudication Office of the POEA issued a decision dated June 23, 1986 signed by Deputy Administrator and Officer-in-Charge Crescencio M. Siddayao, the dispositive portion of which reads:

WHEREFORE, judgment is hereby rendered in favor of the complainant and against respondents, ordering the latter to pay, jointly and severally, to complainant the following amounts:

1. TWO THOUSAND SIX HUNDRED FORTY US DOLLARS (US$2,640.00) or its equivalent in Philippine currency at the time of payment, representing the salaries corresponding to the unexpired portion of complainant's contract;

2. SIX HUNDRED US DOLLARS (US$ 600.00) less partial payment of FIVE HUNDRED FIFTY-EIGHT SAUDI RIYALS (SR558), or its equivalent in Philippine currency at the time of actual payment, representing the unpaid balance of complainant's vacation pay;

3. THREE HUNDRED FIFTY US DOLLARS (US$350.00) or its equivalent in Philippine currency at the time of actual payment representing reimbursement of salary deductions for return travel fund;

4. Ten percent (10%) of the above-stated amounts, as and for attorney's fees.

Complainant's claim for legal and transportation expenses are hereby DISMISSED for lack of merit.

SO ORDERED.

[POEA Decision, p. 5; Rollo, p. 34.]

On July 18, 1986, petitioner filed thru its new counsel a motion for reconsideration which was treated as an appeal to the NLRC by the POEA. Petitioner alleged that the POEA erred in holding it solidarity liable for ZAMEL's violation of private respondent's service agreement even if it was not a party to the agreement.

In a resolution promulgated on December 11, 1986, the NLRC affirmed the POEA decision, holding that, as a duly licensed private employment agency, petitioner is jointly and severally liable with its foreign principal ZAMEL for all claims and liabilities which may arise in connection with the implementation of the employment contract or service agreement [NLRC Decision, pp. 3-4; Rollo, pp. 26-27].

On March 30, 1987, the NLRC denied for lack of merit petitioner's motion for reconsideration.

Hence, petitioner filed the present petition captioned as "Petition for Review".

At this point, it is not amiss to note that the filing of a "Petition for Review" under Rule 45 of the Rules of Court is not the proper means by which NLRC decisions are appealed to the Supreme Court. It is only through a petition for certiorari under Rule 65 that NLRC decisions may be reviewed and nullified on the grounds of lack of jurisdiction or grave abuse of discretion amounting to lack or excess of jurisdiction. Nevertheless, in the interest of justice, this Court opted to treat the instant petition as if it were a petition for certiorari. Thus, after the filing of respondents' comments, petitioner's joint reply thereto, and respondents' rejoinders, the Court resolved to consider the issues joined and the case submitted for decision.

The case at bar involves two principal issues, to wit:

I. Whether or not petitioner as a private employment agency may be held jointly and severally liable with the foreign-based employer for any claim which may arise in connection with the implementation of the employment contracts of the employees recruited and deployed abroad;

II. Whether or not sufficient evidence was presented by petitioner to establish the termination of private respondent's employment for just and valid cause.

I.

Petitioner contends that there is no provision in the Labor Code, or the omnibus rules implementing the same, which either provides for the "third-party liability" of an employment agency or recruiting entity for violations of an employment agreement performed abroad, or designates it as the agent of the foreign-based employer for purposes of enforcing against the latter claims arising out of an employment agreement. Therefore, petitioner concludes, it cannot be held jointly and severally liable with ZAMEL for violations, if any, of private respondent's service agreement.

Petitioner's conclusion is erroneous. Petitioner conveniently overlooks the fact that it had voluntarily assumed solidary liability under the various contractual undertakings it submitted to the Bureau of Employment Services. In applying for its license to operate a private employment agency for overseas recruitment and placement, petitioner was required to submit, among others, a document or verified undertaking whereby it assumed all responsibilities for the proper use of its license and the implementation of the contracts of employment with the workers it recruited and deployed for overseas employment [Section 2(e), Rule V, Book 1, Rules to Implement the Labor Code (1976)]. It was also required to file with the Bureau a formal appointment or agency contract executed by the foreign-based employer in its favor to recruit and hire personnel for the former, which contained a provision empowering it to sue and be sued jointly and solidarily with the foreign principal for any of the violations of the recruitment agreement and the contracts of employment [Section 10 (a) (2), Rule V, Book I of the Rules to Implement the Labor Code (1976)]. Petitioner was required as well to post such cash and surety bonds as determined by the Secretary of Labor to guarantee compliance with prescribed recruitment procedures, rules and regulations, and terms and conditions of employment as appropriate [Section 1 of Pres. Dec. 1412 (1978) amending Article 31 of the Labor Code].

These contractual undertakings constitute the legal basis for holding petitioner, and other private employment or recruitment agencies, liable jointly and severally with its principal, the foreign-based employer, for all claims filed by recruited workers which may arise in connection with the implementation of the service agreements or employment contracts [See Ambraque International Placement and Services v. NLRC, G.R. No. 77970,

January 28, 1988, 157 SCRA 431; Catan v. NLRC, G.R. No. 77279, April 15, 1988, 160 SCRA 691; Alga Moher International Placement Services v. Atienza, G.R. No. 74610, September 30, 1988].

In a belated attempt to bolster its position, petitioner contends in its joint reply that the omnibus rules implementing the Labor Code are invalid for not having been published in the Official Gazette pursuant to the Court's pronouncements in the cases of Tanada v. Tuvera [G.R. No. 63915, April 25, 1985, 136 SCRA 27; December 29, 1986, 146 SCRA 446]. Petitioner further contends that the 1985 POEA Rules and Regulations, in particular Section 1, Rule I of Book VII** quoted in the NLRC decision, should not have been retroactively applied to the case at bar.

But these contentions are irrelevant to the issues at bar. They proceed from a misapprehension of the legal basis of petitioner's liabilities as a duly licensed private employment agency. It bears repeating that the basis for holding petitioner jointly and severally liable with the foreign-based employer ZAMEL is the contractual undertakings described above which it had submitted to the Bureau of Employment Services. The sections of the omnibus rules implementing the Labor Code cited by this Court merely enumerate the various documents or undertakings which were submitted by petitioner as applicant for the license to operate a private employment agency for overseas recruitment and placement. These sections do not create the obligations and liabilities of a private employment agency to an employee it had recruited and deployed for work overseas. It must be emphasized again that petitioner assumed the obligations and liabilities of a private employment agency by contract. Thus, whether or not the omnibus rules are effective in accordance with Tanada v. Tuvera is an issue the resolution of which does not at all render nugatory the binding effect upon petitioner of its own contractual undertakings.

The Court, consequently, finds it unnecessary to pass upon both the implications of Tanada v. Tuvera on the omnibus rules implementing the Labor Code as well as the applicability of the 1985 POEA Rules and Regulations.

Petitioner further argues that it cannot be held solidarily liable with ZAMEL since public respondent had not acquired jurisdiction over ZAMEL through extra-territorial service of summons as mandated by Section 17, Rule 14 of the Rules of Court.

This argument is untenable. It is well-settled that service upon any agent of a foreign corporation, whether or not engaged in business in the Philippines, constitutes personal service upon that corporation, and accordingly, judgment may be rendered against said foreign corporation [Facilities Management Corporation v. De la Osa, G.R. No. L-38649, March 26, 1979, 89 SCRA 131]. In the case at bar, it cannot be denied that petitioner is an agent of ZAMEL. The service agreement was executed in the Philippines between private respondent and Milagros G. Fausto, the General Manager of petitioner, for and in behalf of ZAMEL [Annex "D" of Petition, p. 3; Rollo, p. 37]. Moreover, one of the documents presented by petitioner as evidence, i.e., the counter-affidavit of its General Manager Ms. Fausto, contains an admission that it is the representative and agent of ZAMEL [See Paragraph No. 1 of Annex "H" of Petition; Rollo. p. 43].

Considering the foregoing, the Court holds that the NLRC committed no grave abuse of discretion amounting to lack or excess of jurisdiction in declaring petitioner jointly and severally liable with its foreign principal ZAMEL for all claims which have arisen in connection with the implementation of private respondent's employment contract.

II.

Petitioner asserts that the NLRC failed to consider the overwhelming evidence it had presented before the POEA which establishes the fact that private respondent was terminated for just and valid cause in accordance with his service agreement with ZAMEL.

This assertion is without merit. The NLRC upheld the POEA finding that petitioner's evidence was insufficient to prove termination from employment for just and valid cause. And a careful study of the evidence thus far presented by petitioner reveals to this Court that there is legal basis for public respondent's conclusion.

It must be borne in mind that the basic principle in termination cases is that the burden of proof rests upon the employer to show that the dismissal is for just and valid cause, and failure to do so would necessarily mean that the dismissal was not justified and, therefore, was illegal [Polymedic General Hospital v. NLRC, G.R. No. 64190, January 31, 1985,134 SCRA 420; and also Article 277 of the Labor Code]. And where the termination cases involve a Filipino worker recruited and deployed for overseas employment, the burden naturally devolves upon both the foreign-based employer and the employment agency or recruitment entity which recruited the worker, for the latter is not only the agent of the former, but is also solidarily liable with its foreign principal for any claims or liabilities arising from the dismissal of the worker.

In the case at bar, petitioner had indeed failed to discharge the burden of proving that private respondent was terminated from employment for just and valid cause. Petitioner's evidence consisted only of the following documents:

(1) A letter dated May l5, 1984 allegedly written by an official of ZAMEL, stating that a periodic evaluation of the entire staff was conducted; that the personnel concerned were given a chance to improve; that complainant's performance was found below par; and that on February 13,1984, at about 8:30 AM, complainant was caught on the way out of the office to look for another job during office hours without the permission of his supervisor;

(2) A telex message allegedly sent by employees of ZAMEL, stating that they have not experienced maltreatment, and that the working conditions (in ZAMEL) are good;

(3) The signatures of fifteen (15) persons who allegedly sent the telex message;

(4) A receipt dated February 16, 1984 signed by complainant, stating that he was paid SR915 representing his salary and SR558, representing vacation pay for the month of February 1984;

(5) The counter-affidavit of Milagros G. Fausto, the General Manager of Royal Crown, stating that complainant was dismissed because of poor performance, acts of dishonesty and misconduct, and denying complainant's claim that his salary and leave pay were not paid, and that he was maltreated [See POEA Decision, p. 3; Rollo, p. 32, See also Annexes "E", "F", "F-1 ", "G" and "H" of Petition; Rollo, pp. 38-43].

Certainly, the telex message supposedly sent by the employees of ZAMEL is not relevant in the determination of the legality of private respondent's dismissal. On the other hand, the receipt signed by private respondent does not prove payment to him of the salary and vacation pay corresponding to the unexpired portion of his contract.

More importantly, except for its allegation that private respondent was caught on February 13,1984 on his way out of the office compound without permission, petitioner had failed to allege and to prove with particularity its charges against private respondent. The letter dated May 15, 1984 allegedly written by the Actg. Project Architect and the counter-affidavit of petitoner's General Manager merely stated that the grounds for the employee's dismissal were his unsatisfactory performance and various acts of dishonesty, insubordination and misconduct. But the particular acts which would indicate private respondent's incompetence or constitute the above infractions were neither specified nor described therein. In the absence of any other evidence to substantiate the general charges hurled against private respondent, these documents, which comprise petitioner's evidence in chief, contain empty and self-serving statements insufficient to establish just and valid cause for the dismissal of private respondent [See Euro-Lines, Phils., Inc. v. NLRC, G.R. No. 75782, December 1, 1987,156 SCRA 78; Ambraque International Placement and Services v. NLRC, supra].

The Court is aware of the document attached in petitioner's manifestation and joint reply which is purportedly a xerox copy of a statement executed on December 13, 1987 in Saudi Arabia by private respondent claiming that the latter had settled the case with ZAMEL and had "received all [his] benefits that is salary, vacation pay, severance pay and all other bonuses before [he] left the kingdom of Saudi Arabia on 13 Feb. 1984 and hereby indemnify [ZAMEL] from any claims or liabilities, [he] raised in the Philippine Courts" [Annex "A" of petitioner's

Manifestation with Motion to hold in Abeyance; Rollo, p. 82. And also Annex "A" of petitioner's Joint Reply; Rollo, p. 111].

But the veracity of the contents of the document is precisely disputed by private respondent. He claims that he was made to sign the above statement against his will and under threat of deportation [See Telex of private respondent received by the Supreme Court of the Philippines on January 14,1988; Rollo, p. 83. And also private respondent's Rejoinder, pp. 1-3; Rollo, pp. 139-141].

Petitioner finally contends that inasmuch as clause no. 13 of the service agreement provided that the law under which the agreement shall be regulated was the laws of Saudi Arabia [Annex "D" of Petition, p. 2; Rollo, p. 36], public respondent should have taken into account the laws of Saudi Arabia and the stricter concept of morality availing in that jurisdiction for the determination of the legality of private respondent's dismissal.

This contention is patently erroneous. The provisions of the Labor Code of the Philippines, its implementing rules and regulations, and doctrines laid down in jurisprudence dealing with the principle of due process and the basic right of all Filipino workers to security of tenure, provide the standard by which the legality of the exercise by management of its prerogative to dismiss incompetent, dishonest or recalcitrant employees, is to be determined. Whether employed locally or overseas, all Filipino workers enjoy the protective mantle of Philippine labor and social legislation, contract stipulations to the contrary notwithstanding. This pronouncement is in keeping with the basic public policy of the State to afford protection to labor, promote full employment, ensure equal work opportunities regardless of sex, race or creed, and regulate the relations between workers and employers. For the State assures the basic rights of all workers to self-organization, collective bargaining, security of tenure, and just and humane conditions of work [Article 3 of the Labor Code of the Philippines; See also Section 18, Article II and Section 3, Article XIII, 1987 Constitution]. This ruling is likewise rendered imperative by Article 17 of the Civil Code which states that laws "which have for their object public order, public policy and good customs shall not be rendered ineffective by laws or judgments promulgated, or by determination or conventions agreed upon in a foreign country."

Needless to say, the laws of Saudi Arabia which were, incidentally, neither pleaded nor proved by petitioner, have absolutely no bearing whatsoever to the case at bar.

The Court holds, therefore, that the NLRC committed no grave abuse of discretion amounting to lack or excess of jurisdiction in upholding the POEA's finding of insufficiency of evidence to prove termination for just and valid cause.

WHEREFORE, the Court Resolved to DISMISS the instant petition.

People vs. Chowdury [G.R. No. 129577-80 February 15, 2000]Post under case digests, labor law at Monday, March 19, 2012 Posted by Schizophrenic Mind

Facts: Bulu Chowdury was charged with the crime of illegal recruitment in large scale by recruiting Estrella B.

Calleja, Melvin C. Miranda and Aser S. Sasis for employment in Korea. Evidence shows that accused –

appellant interviewed private complainant in 1994 at Craftrade’s office. At that time, he was an interviewer of

Craftrade which was operating under temporary authority given by POEA pending the renewal of license. He

was charged based on the fact that he was not registered with the POEA as employee of Craftrade and he is

not in his personal capacity, licensed to recruit overseas workers. The complainants also averred that during

their applications for employment for abroad, the license of Craftrade was already expired. 

For his defense Chowdury testified that he worked as interviewer at Craftrade from 1990 until 1994. His

primary duty was to interview job applicants for abroad. As a mere employee, he only followed the instructions

given by his superiors, Mr. Emmanuel Geslani, the agency's President and General Manager, and Mr.

UtkalChowdury, the agency's Managing Director. 

Issue: Whether or not accused-appellant knowingly and intentionally participated in the commission of the

crime charged. 

Held: No, an employee of a company or corporation engaged in illegal recruitment may be held liable as

principal, together with his employer, if it is shown that he actively and consciously participated in illegal

recruitment. In this case, Chowdury merely performed his tasks under the supervision of its president and

managing director. The prosecution failed to show that the accused-appellant is conscious and has an active

participation in the commission of the crime of illegal recruitment. Moreover, accused-appellant was not aware

of Craftrade's failure to register his name with the POEA and the prosecution failed to prove that he actively

engaged in recruitment despite this knowledge. The obligation to register its personnel with the POEA belongs

to the officers of the agency. A mere employee of the agency cannot be expected to know the legal

requirements for its operation. The accused-appellant carried out his duties as interviewer of Craftrade

believing that the agency was duly licensed by the POEA and he, in turn, was duly authorized by his agency to

deal with the applicants in its behalf. Accused-appellant in fact confined his actions to his job description. He

merely interviewed the applicants and informed them of the requirements for deployment but he never received

money from them. Chowdury did not knowingly and intentionally participated in the commission of illegal

recruitment being merely performing his task and unaware of illegality of recruitment.

Case Digest on People v. Nellie Cabais y Gamuela

G.R. No. 129070.  March 16, 2001.Accused was convicted of illegal recruitment committed in large scale by a syndicate, and sentenced to life imprisonment and a fine. She was also convicted for two counts of estafa,and sentenced to (a) in Criminal Case No. 13999-R, to six (6) months and one (1) day of prision correccional, as minimum, to seven (7) years, eight (8) months and twenty-one (21) days of prision mayor, as maximum, and to indemnify the offended party Joan Merante, in the amount of P40,000.00 as actual damages, and costs; (b) in Criminal Case No. 14000-R, to six (6) months and one (1) day of prision correccional, as minimum, to six (6) years, eight (8) months and twenty (20) days of prision mayor, as maximum, and to indemnify the offended party, Nancy Oidi, in the amount of P21,000.00 as actual damages, and costs.HELD:The essential elements of illegal recruitment committed in large scale are: (1) that the accused engaged in acts of recruitment and placement of workers as defined under Article 13 (b) or in any prohibited activities under Article 34 of the Labor Code; (2) that the accused had not complied with the guidelines issued by the Secretary of Labor and Employment, particularly with respect to the requirement to secure a license or an authority to recruit and deploy workers, either locally or overseas; and (3) that the accused committed the unlawful acts against three (3) or more persons, individually or as a group.Accused-appellant contends that she was not involved in recruitment but was merely an employee of a recruitment agency. An employee of a company or corporation engaged in illegal recruitment may be held liable as principal, together with his employer, if it is shown that he actively and consciously participated in illegal recruitment. In this case, accused was the one who informed complainants of job prospects in Korea

and the requirements for deployment. She also received money from them as placement fees. All of the complainants testified that they personally met accused-appellant and transacted with her regarding the overseas job placement offers. Complainants parted with their money, evidenced by receipts signed by accused Cabais and accused Forneas. Thus, accused-appellant actively participated in the recruitment of the complainants.Furthermore, accused-appellant did not possess any license to engage in recruitment activities, as evidenced by a certification from the POEA and the testimony of a representative of said government agency. Her acts constituted recruitment, and considering that she admittedly had no license or authority to recruit workers for overseas employment, accused-appellant is guilty of illegal recruitment. Despite the fact that she was just an ordinary employee of the company, her criminal liability would still stand for being a conspirator with the corporate officers in undertaking illegal recruitment activities. Since the recruitment involves three or more persons, accused-appellant is guilty of illegal recruitment in a large scale punishable under Article 39 of the Labor Code with life imprisonment and a fine of one hundred thousand pesos.As to the charges of estafa, accused-appellant contends that she is not liable for the offenses charged because she did not appropriate for her own use the money given to her by complainants as placement and passport fees. The elements of estafa are: (a) that the accused defrauded another by abuse of confidence or by means of deceit, and (b) that damage or prejudice capable of pecuniary estimation is caused to the offended party or third person. From the foregoing, the fact that the money was appropriated by accused for her own use is not an element of the crime of estafa. Thus, accused-appellant Cabais’ contention under such ground is untenable. Moreover, accused-appellant misrepresented herself to complainants as one who can make arrangements for job placements in Korea. Complainants were successfully induced to part with their money, causing them damage and prejudice. Consequently, accused-appellant is guilty of estafa.

SALAZAR VS. ACHACOSO [183 SCRA 145; G.R. NO. 81510; 14 MAR 1990]

Facts: Rosalie Tesoro of Pasay City in a sworn statement filed with the POEA, charged petitioner with

illegal recruitment. Public respondent Atty. Ferdinand Marquez sent petitioner a telegramdirecting him to

appear to the POEA regarding the complaint against him. On the same day, after knowing that petitioner had

no license to operate a recruitment agency, public respondent Administrator Tomas Achacoso issued a

Closure and Seizure Order No. 1205 to petitioner. It stated that there will a seizure of the documents and

paraphernalia being used or intended to be used as the means of committing illegalrecruitment, it having

verified that petitioner has— (1) No valid license or authority from the Department of Labor and Employment to

recruit and deploy workers for overseas employment; (2) Committed/are committing acts prohibited under

Article 34 of the New Labor Code in relation to Article 38 of the same code. A team was then tasked to

implement the said Order. The group, accompanied by mediamen and Mandaluyong policemen, went to

petitioner’s residence. They served the order to a certain Mrs. For a Salazar, who let them in. The team

confiscated assorted costumes. Petitioner filed with POEA a letter requesting for the return of the seized

properties, because she was not given prior notice and hearing. The said Order violated dueprocess. She also

alleged that it violated sec 2 of the Bill of Rights, and the properties were confiscated against her will and were

done with unreasonable force and intimidation. 

Issue: Whether or Not the Philippine Overseas Employment Administration (or the Secretary of Labor) can

validly issue warrants of search and seizure (or arrest) under Article 38 of the Labor Code

Held: Under the new Constitution, “. . . no search warrant orwarrant of arrest shall issue except upon probable

cause to be determined personally by the judge after examination under oath or affirmation of the complainant

and the witnesses he may produce, and particularly describing the place to be searched and the persons or

things to be seized”. Mayors and prosecuting officers cannot issue warrants of seizure or arrest. The Closure

and Seizure Order was based on Article 38 of the Labor Code. The Supreme Court held, “We reiterate that the

Secretary of Labor, not being a judge, may no longer issue search or arrest warrants. Hence, the authorities

must go through the judicial process. To that extent, we declare Article 38, paragraph (c), of the Labor Code,

unconstitutional and of no force and effect… The power of the President to order the arrest of aliens for

deportation is, obviously, exceptional. It (the power to order arrests) cannot be made to extend to other cases,

like the one at bar. Under the Constitution, it is the sole domain of the courts.” Furthermore, the search

andseizure order was in the nature of a general warrant. The court held that the warrant is null and void,

because it must identify specifically the things to be seized.

WHEREFORE, the petition is GRANTED. Article 38, paragraph (c) of the Labor Code is declared

UNCONSTITUTIONAL and null and void. The respondents are ORDERED to return all materials seized as a

result of the implementation of Search and and Seizure Order No. 1205.

People vs Goce

Facts:

On January 12, 1988, an information for illegal recruitment committed by a syndicate and in large scale,

punishable under Articles 38 and 39 of the Labor Code as amended by Section 1(b) of Presidential Decree No.

2018, was filed against spouses Dan and Loma Goce and herein accused-appellant Nelly Agustin in the

Regional Trial Court of Manila, Branch 5.On January 21, 1987, a warrant of arrest was issued against the three

accused but not one of them was arrested. Hence, on February 2, 1989, the trial court ordered the case

archived but it issued a standing warrant of arrest against the accused. Thereafter, on learning of the

whereabouts of the accused, at around midday of February 26, 1993, Nelly Agustin was apprehended by the

Parañaque police. On November 19, 1993, the trial court rendered judgment finding herein appellant guilty as

a principal in the crime of illegal recruitment in large scale, and sentencing her to serve the penalty of life

imprisonment, as well as to pay a fine of P100,000.00.In her appeal, appellant Agustin raises the following

arguments:

(1) her act of introducing complainants to the Goce couple does not fall within the meaning of illegal

recruitment and placement under Article 13(b) in relation to Article 34of the Labor Code;

(2) there is no proof of conspiracy to commit illegal recruitment among appellant and the Goce spouses; and

(3) there is no proof that appellant offered or promised overseas employment to the complainants.

Appellant counsel agreed to stipulate that she was neither licensed nor authorized to recruit applicants for

overseas employment. Appellant, however, denies that she was in any way guilty of illegal recruitment. It is

appellant's defensive theory that all she did was to introduce complainants to the Goce spouses. Being a

neighbor of said couple, and owing to the fact that her son's overseas job application was processed and

facilitated by them, the complainants asked her to introduce them to said spouses. Allegedly out of the

goodness of her heart, she complied with their request.

Issues:

Whether or not appellant Agustin actions in relation with the Goce couple constitute illegal recruitment.

Held:

Appellant is accused of violating Articles 38 and 39 of the Labor Code. Article 38 of the Labor Code, as

amended by Presidential Decree No. 2018, provides that any recruitment activity, Including the prohibited

practices enumerated in Article 34 of said Code, undertaken by non-licensees or non-holders of authority shall

be deemed illegal and punishable under Article 39thereof. The same article further provides that illegal

recruitment shall be considered an offense involving economic sabotage if any of these qualifying

circumstances exist, namely, (a) when illegal recruitment is committed by a syndicate,i.e., if it is carried out by

a group of three or more persons conspiring and/or confederating with one another; or

(b) when illegal recruitment is committed in large scale, i.e., if it is committed against three or more persons

individually or as a group. 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. On the other hand, referral is the act of passing along or forwarding of

an applicant for employment after an initial interview of a selected applicant for employment to a selected

employer, placement officer or bureau. There is illegal recruitment when one gives the impression of having

the ability to send a worker abroad." It is undisputed that appellant gave complainants the distinct impression

that she had the power or ability to send people abroad for work such that the latter were convinced to give her

the money she demanded in order to be so employed.

PEOPLE v. GUTIERREZG.R. No. 124439. February 5, 2004.TlNGA, J.

Facts:

On April 18, 1994, Rosemarie Tugade went to the house of one Celia Bautista, a “recruiter-agent” of the accused, at Brgy. Bulala, Vigan, Ilocos Sur.3 Celia told Rosemarie that she had to submit the following requirements for her application to work in Dubai as a domestic helper: P4,000.00 as placement fee, P1,200.00 for passport, P850.00 for “medical,” six (6) 2x2 pictures and her original birth certificate.

The next day, Rosemarie, together with “recruiter-agent” Celia Bautista and fellow applicant Evelyn Ramos, traveled to Manila to the house of one Esther Gamilde, another of the accused’s “recruiter-agents.” There, Rosemarie and Evelyn filled out their bio-data forms. The two then underwent a medical examination before having their whole-body picture taken. Esther told them that they would know the results of their application from Celia.

Two weeks later, Celia told Rosemarie that her application for Dubai was already approved and that she will be receiving $150.00-dollars per month. For the first 3 months, however, there will be salary deductions.

On August 27, 1994, Rosemarie and Evelyn, along with Celia and Esther, went to the accused’s office at Sarifudin Manpower and General Services at EDSA Extension, Pasay City. The accused told Rosemarie that she needed to pay P2,000.00 more. The accused said she had received all of Rosemarie’s documents and the money paid to Celia. Trusting in Celia, Rosemarie did not demand a receipt from the accused.

Private complainant Evelyn Ramos was with Rosemarie when she went to Celia Bautista’s house on April 19, 1994. Celia told Evelyn that for P4,000.00 she could leave for Dubai to work as a domestic helper. Like Rosemarie, Evelyn gave all her documents and paid the fees to Celia, who in turn handed them to Esther Gamilde in Tondo. On June 10, 1994, Ramos gave Bautista P8,000.00, which was also turned over to Gamilde.

On August 22, 1994, Celia told Evelyn that she only had to wait one more week before she left for Dubai.  On August 27, 1994, Esther brought Evelyn to the accused’s office, where the accused asked for an additional P2,000.00 as processing fee for the Philippine Overseas Employment Agency (POEA). Evelyn paid the amount on August 31, 1994, including a terminal fee of P500.00. Like Rosemarie, Evelyn was not able to leave the country despite the accused’s promises.

Another complainant, Rosalyn Sumayo, also applied for overseas job placement as a domestic helper in Dubai. Her experience was more agonizing. In her case, it was one Marilyn Garcia who assisted Rosalyn. She submitted a copy of her birth certificate, 6 copies of 2 x 2 pictures, 2 copies of her whole-body picture, passport, and medical certificate. Marilyn also asked Rosalyn to pay: a processing fee of P7,500.00, P2,620.00 as full tax, P500.00 as terminal fee, and P3,000.00 as service charge.

All the documents and money given by Rosalyn to Marilyn were subsequently remitted to the accused at her office on June 28, 1994. The accused told Rosalyn that she would be leaving anytime, but after three months, Rosalyn’s departure did not push through.

Despite the setback, the accused kept assuring Rosalyn that she would still be able to leave. One time, the accused brought her to the airport and instructed her to hide in the airport restroom. After fifteen minutes, the accused told her that they had to leave the airport because ”mahigpit sa immigration.” On another occasion, the accused directed Rosalyn to hide inside the Kayumanggi Restaurant for 15 minutes. Nothing happened after, though, and they went home.

On November 14, 1994, Rosalyn was again at the airport. The accused warned her, though, that if the Immigration Officer insisted on seeing her papers, it would be better for her to leave. As directed, she left the airport when she was asked to produce her documents.

Exasperated, Rosalyn went to the accused’s house and demanded the return of her money and her documents. Instead of acceding to Rosalyn’s demands, the accused shouted at her and warned her that she had to pay a cancellation fee of $300.00. Rosalyn was not able to give the amount so she stayed with the accused, who assured her that she would still be able to leave the country and that she would receive a monthly salary of $150 to $200. These promises were never fulfilled. Rosalyn thus went to the POEA, where POEA Administrator Felicisimo Joson, Jr. informed her that the accused did not have a license to recruit.

Generosa Asuncion suffered the same fate as her co-applicants. In August 1994, she applied for overseas job placement with one Linda Rabaino. Generosa submitted her passport, medical certificate, clearance from

the National Bureau of Investigation (NBI), birth certificate, bio-data and pictures. She also paid P15,000.00 in two installments on September 9 and 12, 1994,40 which payments were not receipted.

Linda told Generosa she would be leaving on September 13, 1994. However, she was not able to leave because, according to Linda, at 25, Generosa was under-aged. Linda then referred Generosa to the accused in the latter’s office, where Linda turned over Generosa’s documents as well as the P15,000 00 to the accused. The accused promised that Linda would be able to leave, but her departure never took place.44 When Generosa demanded the return of her money and her documents, the accused told her that she had to pay a cancellation fee of $600.00. Stunned, Linda just opted to await the further outcome of her application.46 Her waiting was all for naught.

With the promises of jobs abroad unfulfilled, complainants decided to verify if the accused was a licensed recruiter. Upon learning from the POEA that she was not so licensed, they proceeded to the Philippine Anti-Crime Commission (PACC) to execute their respective affidavits.

SPO4 Johnny Marqueta investigated the women’s complaint. He confirmed with the POEA that the accused was not licensed or authorized to recruit overseas contract workers. The four complainants also informed him that the accused wanted to meet with the group on January 26, 1995.50 SPO4 Marqueta thus had their money, totaling P2,000.00, marked at the National Bureau of Investigation (NBI) Forensic Section for their entrapment operation.

On January 26, 1995, the accused met with the four complainants at Jollibee, Commonwealth Avenue, Quezon City. As soon as she finished counting the marked money and wrapping it in Jollibee napkins, the accused was arrested.

In her defense, the accused claimed that as an “employee” of a duly licensed agency who was tasked to recruit and offer job placements abroad, she could not be held liable for illegal recruitment. She admitted that she had no authority to recruit in her personal capacity, but that her authority emanated from a Special Power of Attorney (SPA) and a Certification issued by a licensed agency.

Issue:

WON appellant is guilty of illegal recruitment

Held:

Illegal recruitment is committed when two elements concur, namely: (1) the offender has no valid license or authority required by law to enable one to lawfully engage in recruitment and placement of workers; and (2) he undertakes either any activity within the meaning of “recruitment and placement” defined under Art. 13(b), or any of the prohibited practices enumerated under Art. 34 of the Labor Code. Art. 13(b) of the Labor Code defines “recruitment and placement” as “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.”

The crime becomes Illegal Recruitment in Large Scale when the two elements concur, with the addition of a third element: the recruiter committed the same against three or more persons, individually or as a group.

Section 11, Rule II, Book II of the Rules and Regulations Governing Overseas Employment requires the prior approval of the POEA of the appointment of representatives or agents:

“Section 11. Appointment of Representatives. Every appointment of representatives or agents of licensed agency shall be subject to prior approval or authority of the Administration.

“The approval may be issued upon submission of or compliance with the following requirements:

a. Proposed appointment or Special Power of Attorney;b. Clearances of the proposed representative or agent from NBI;c. A sworn or verified statement by the designating or appointing person or company assuming full

responsibility for all the acts of the agent or representative done in connection with the recruitment and placement of workers.”

Approval by the Administration of the appointment or designation does not authorize the agent or representative to establish a branch or extension office of the licensed agency represented.

Any revocation or amendment in the appointment should be communicated to the administration. Otherwise, the designation or appointment shall be deemed as not revoked or amended.

Section 1, Rule X of the same Book, in turn, provides that “recruitment and placement activities of agents or representatives appointed by a licensee, whose appointments were not authorized by the Administration shall likewise constitute illegal recruitment.”

That appellant engaged in recruitment and placement is beyond dispute. The complaining witnesses categorically testified that the accused promised them on several occasions that they would be leaving for work abroad. Appellant received complainants’ money and documents, a fact that the complainants themselves witnessed and which the accused acknowledged when she returned the same to them after the filing of the case against her. Appellant even brought complainant Rosalyn Sumayo to the airport three times, raising her expectations, but leaving her hanging in mid-air. The accused even had the audacity to demand cancellation fees from the complainants when they asked for a refund.

PEOPLE OF THE PHILIPPINES vs. ROSE DUJUA

[G.R. Nos. 149014-16. February 5, 2004]

TINGA, J.:

FACTS: Complainant Beldon Caluten, went to the accused’s office, the World Pack Travel and Tours. Upon Beldon’s inquiry, Ramon Dujua said that he sends applicants abroad and gave Beldon an application form. Beldon filled up the form and submitted it to Ramon, who told him that he must pay a processing fee and make an advance payment. Beldon was promised work as a factory worker in Japan. He advanced money for his processing fees and other expenses. Despite such payments, the promise to send Beldon to work in Japan remained unfulfilled, Beldon asked Ramon to give him back his money. Beldon never recovered his payments, however, prompting him and his fellow applicants to file a complaint at the National Bureau of Investigation (NBI). Private complainants Jaime Cabus, Roberto Perlas and Romulo Partos suffered the same fate as Beldon. He also filed a compliaint against the accused.

The prosecution presented a Certification issued by Hermogenes C. Mateo, Director II, Licensing Branch of the POEA, stating that Ramon Dujua is not licensed or authorized by the POEA to recruit workers abroad. Another Certification, of even date shows that neither is the World Pack Travel and Tours authorized to recruit workers abroad. The accused Ramon Dujua denied that he was a recruiter. He claimed that he was a mere janitor, messenger and errand boy of the World Pack Travel and Tours. The company is owned by his aunt, Editha Singh, and managed by his mother Rose Dujua. He admitted he did not have a license to recruit,but acknowledged receiving the money given by complainants but denied knowing what it was for. He said, however, that his mother only asked him to count the money.

RTC convicted Dujua of illegal recruitment in large scale, committed against Jaime Cabus, Beldon Caluten and Roberto Perlas, and of two counts of estafa, committed against Cabus and Perlas.

ISSUE: Whether or not, the prosecution proved the guilt of the accused in illegal recruitment in large scale by means of proof beyond reasonable doubt.

HELD: Yes. The essential elements of the crime of illegal recruitment in large scale are: (1) the accused engages in acts of recruitment and placement of workers defined under Article 13(b) or in any prohibited activities under Art. 34 of the Labor Code; (2) the accused has not complied with the guidelines issued by the Secretary of Labor and Employment, particularly with respect to the securing of a license or an authority to recruit and deploy workers, either locally or overseas; and (3) the accused commits the unlawful acts against three or more persons, individually or as a group. All three elements have been established beyond reasonable doubt.

First, the testimonies of the complaining witnesses satisfactorily prove that appellant promised them employment and assured them placement overseas. Complainants were firm and categorical. All of them positively identified appellant as the person who recruited them for employment abroad. Their testimonies dovetail each other on material points. There is no adequate showing that any of them was impelled by any ill motive to testify against appellant.

Second, appellant did not have any license or authority to recruit persons for overseas work, as shown by the Certification issued by the POEA. Neither did his employer, the World Pack Travel and Tours, possess such license or authority.

PEOPLE OF THE PHILIPPINES vs. ELIZABETH CORPUZG.R. No. 148198. October 1, 2003

YNARES-SANTIAGO, J.:FACTS: Private complainants Belinda Cabantog, Concepcion San Diego, Erlinda Pascual and Restian Surio went to Alga-Moher International Placement Services Corporation to apply for employment in Taiwan. They were introduced by an “Aling Josie” to the agency's President and General Manager Mrs. Evelyn Gloria H. Reyes. Mrs. Reyes asked them to accomplish the application forms. Thereafter, they were told to return to the office with P10,000.00 each as processing fee. Private complainants returned to the agency to pay the processing fees. Mrs. Reyes was not at the agency that time, but she called her secretary of three months, herein appellant Elizabeth Corpuz, on the telephone and told the latter to receive private complainants' processing fees. In compliance with the order of her employer and since the cashier was absent, appellant received the processing fees of private complainants. Thereafter, appellant advised the private complainants to wait for the contracts to arrive from the Taiwan employers.

Two months later, nothing happened to their applications. Thus, private complainants decided to ask for the refund of their money from appellant who told them that the processing fees they had paid were already remitted to Mrs. Reyes. When they talked to Mrs. Reyes, she told them that the money she received from appellant was in payment of the latter's debt. Thus, private complainants filed their complaint for illegal recruitment in large scale against appellant.

For her part, appellant resolutely denied having a hand in the illegal recruitment and claimed that she merely received complainants' processing fees in compliance with the order of her employer. Moreover, she

had no knowledge that the agency's license was suspended by the POEA on July 29, 1998, the day before the fact. The trial court found appellant guilty.

ISSUE: Whether or not the appellant guilty of the crime charged.

HELD: No. An employee of a company or corporation engaged in illegal recruitment may be held liable as principal, together with his employer, if it is shown that he actively and consciously participated in illegal recruitment. Settled is the rule that the existence of the corporate entity does not shield from prosecution the corporate agent who knowingly and intentionally causes the corporation to commit a crime. The culpability of the employee therefore hinges on his knowledge of the offense and his active participation in its commission. Where it is shown that the employee was merely acting under the direction of his superiors and was unaware that his acts constituted a crime, he may not be held criminally liable for an act done for and in behalf of his employer.

The prosecution failed to adduce sufficient evidence to prove appellant's active participation in the illegal recruitment activities of the agency. As already established, appellant received the processing fees of the private complainants for and in behalf of Mrs. Reyes who ordered her to receive the same. She neither gave an impression that she had the ability to deploy them abroad nor convinced them to part with their money. More importantly, she had no knowledge that the license was suspended the day before she received the money. Their failure to depart for Taiwan was due to the suspension of the license, an event which appellant did not have control of. Her failure to refund their money immediately upon their demand was because the money had been remitted to Mrs. Reyes on the same day she received it from them.

While we strongly condemn the pervasive proliferation of illegal job recruiters and syndicates preying on innocent people anxious to obtain employment abroad, nevertheless, we find the pieces of evidence insufficient to prove the guilt of appellant beyond reasonable doubt.

Feagle Construction Corp. vs. Gayda, 186 SCRA 589

(Labor Standards – Recruiter not solidarily liable when workers agreed not to hold the recruiter liable)

Facts: Herein respondents, 40 Filipino workers formerly employed with Algosaibi-Bison, Ltd. Requested

petitioner recruiter to return them to their job site in Saudi Arabia. Petitioner informed the workers that it did not

want to send back any workers because of the big risk due to the financial difficulties of Algosaibi-Bison Ltd..

Respondent workers assured petitioner that they were willing to assume the risk and emphasized that they

were willing to sign a written statement indicating that they would not hold petitioner liable for any delay or non-

payment of their salaries and any amounts due them from Algosaibi-Bison, Ltd. It was under the foregoing

circumstances that petitioner reluctantly agreed to send back private respondents to Saudi Arabia to help them

in their dire financial need if they would sign the aforementioned statements.

When Algosaibi-Bison Ltd went into bankruptcy, private respondents filed with the POEA a complaint against

petitioner for unpaid claims with the liquidator of Algosaibi-Bison Ltd.

Issue: WON petitioner may be held solidarily liable with the foreign employer for any unpaid claims of private

respondents against their foreign principal employer even as they have a stipulation to this effect.

Held: No. As a rule, a recruiter is solidarily liable with unpaid wages of workers sent abroad. Case at bar is an

exception because it was the workers who persuaded recruiter to send them back abroad despite knowledge

that foreign employer might not pay their wages and they agreed not to hold recruiter responsible thereof.

Ilas vs. NLRC, G.R. Nos. 90394-97, 7 February 1991; 193 SCRA   682

(Labor Standards – Agents hired without knowledge and consent of recruitment agency)

Facts: Petitioners applying for overseas employment in Doha, Qatar, with CBT/Sheik International, were

assisted by a liaison officer of private respondent All Season Manpower International Services, who processed

their papers and gave them travel exit passes (TEPS). After being deployed and worked for 4 months without

being paid, they filed a complaint to recover their unpaid salaries and for wages covering the unexpired portion

of their contracts against private respondent.

Issue: WON a recruitment agency be liable for unpaid wages and other claims of overseas workers who

appear to be recruited by its agent without its knowledge and consent.

Held: No. It is true that the rules and regulations of the POEA provide that the private employment or

recruitment agency is made to assume full and complete responsibility for all acts of its officials and

representatives done in connection with recruitment and placement. However, where the recruitment was

actually made by respondent agency’s agent in behalf of CBT/Shiek International, not the private respondent,

and the name of private respondent was only used as a means to enable petitioners to be issued TEPS for

travel purposes, obviously without the knowledge and consent of private respondent, the latter cannot be held

liable for the claims of petitioners.

GENERAL MILLING CORPORATION V TORRES

196 SCRA 215, April 22, 1991

FACTS

- DOLE NCR issued Alien Employment Permit in favor of petitioner Earl Timothy Cone, a United States citizen, as sports consultant and assistant coach for GMC. GMC and Cone entered into a contract of employment whereby the latter undertook to coach GMC's basketball team. Board of Special Inquiry of the Commission on Immigration and Deportation approved petitioner Cone's application for a change of admission status from temporary visitor to prearranged employee.

- On 9 February 1990, petitioner GMC requested renewal of petitioner Cone's alien employment permit. GMC also requested that it be allowed to employ Cone as full-fledged coach. The DOLE Regional Director, Luna Piezas, granted the request. Alien Employment Permit was issued.

- Private respondent Basketball Coaches Association of the Philippines ("BCAP") appealed the issuance of said alien employment permit to the respondent Secretary of Labor who issued a decision ordering cancellation of petitioner Cone's employment permit on the ground that there was no showing that there is no person in the Philippines who is competent, able and willing to perform the services required nor that the hiring of petitioner Cone would redound to the national interest.

ISSUES

1. WON Secretary of Labor gravely abused his discretion when he revoked petitioner Cone's alien employment permit

2. WON Section 6 (c), Rule XIV, Book I of the Omnibus Rules Implementing the Labor Code is null and void as it is in violation of the enabling law as the Labor Code does not empower respondent Secretary to determine if the employment of an alien would redound to national interest

HELD

1. NO

- Petitioners have failed to show any grave abuse of discretion or any act without or in excess of jurisdiction on the part of respondent Secretary of Labor in rendering his decision, revoking petitioner Cone's Alien Employment Permit.

- The alleged failure to notify petitioners of the appeal filed by private respondent BCAP was cured when petitioners were allowed to file their Motion for Reconsideration before respondent Secretary of Labor.

2. NO

- The Labor Code itself specifically empowers respondent Secretary to make a determination as to the availability of the services of a "person in the Philippines who is competent, able and willing at the time of application to perform the services for which an alien is desired." In short, the Department of Labor is the agency vested with jurisdiction to determine the question of availability of local workers.

- Under Article 40 of the Labor Code, an employer seeking employment of an alien must first obtain an employment permit from the Department of Labor. Petitioner GMC's right to choose whom to employ is, of course, limited by the statutory requirement of an alien employment permit.

- Petitioners will not find solace in the equal protection clause of the Constitution. As pointed out by the Solicitor-General, no comparison can be made between petitioner Cone and Mr. Norman Black as the latter is "a long time resident of the country," and thus, not subject to the provisions of Article 40 of the Labor Code which apply only to "non-resident aliens." In any case, the term "non-resident alien" and its obverse "resident alien," here must be given their technical connotation under our law on immigration.

- Neither can petitioners validly claim that implementation of respondent Secretary's decision would amount to an impairment of the obligations of contracts. The provisions of the Labor Code and its Implementing Rules and Regulations requiring alien employment permits were in existence long before petitioners entered into their contract of employment. It is firmly settled that provisions of applicable laws, especially provisions relating to matters affected with public policy, are deemed written into contracts. Private parties cannot constitutionally contract away the otherwise applicable provisions of law.

- In short, the Department of Labor is the agency vested with jurisdiction to determine the question of availability of local workers. The constitutional validity of legal provisions granting such jurisdiction and authority and requiring proof of non-availability of local nationals able to carry out the duties of the position involved, cannot be seriously questioned.

- Petitioners apparently suggest that the Secretary of Labor is not authorized to take into account the question of whether or not employment of an alien applicant would "redound to the national interest" because Article 40 does not explicitly refer to such assessment. This argument (which seems impliedly to concede that the relationship of basketball coaching and the national interest is tenuous and unreal) is not persuasive. In the first place, the second paragraph of Article 40 says: "[t]he employment permit may be issued to a non-resident alien or to the applicant employer after a determination of the non-availability of a person in the Philippines who is competent, able and willing at the time of application to perform the services for which the alien is desired."

- The permissive language employed in the Labor Code indicates that the authority granted involves the exercise of discretion on the part of the issuing authority. In the second place, Article 12 of the Labor Code sets forth a statement of objectives that the Secretary of Labor should, and indeed must, take into account in exercising his authority and jurisdiction granted by the Labor Code.

Disposition Court Resolved to DISMISS the Petition for Certiorari for lack of merit.