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THE
LABOR CODE
OF THE
PHILIPPINES
PRESIDENTIAL DECREE NO. 442,
AS AMENDED
A DECREE INSTITUTING A LABOR CODE THEREBY REVISING AND CONSOLIDATING LABOR AND SOCIAL LAWS TO AFFORD PROTECTION TO LABOR, PROMOTE EMPLOYMENT AND HUMAN RESOURCES DEVELOPMENT AND INSURE INDUSTRIAL PEACE BASED ON SOCIAL JUSTICE
BOOK ONE
PRE-EMPLOYMENT
ART. 12. Statement of objectives. - It is the policy of
the State:
a) To promote and maintain a state of full employment through
improved manpower training, allocation and utilization; chanroblesvirtuallawlibrary
b) To protect every citizen desiring to work locally or overseas
by securing for him the best possible terms and conditions of employment; chanroblesvirtuallawlibrary
c) To facilitate a free choice of available employment by persons
seeking work in conformity with the national interest;
d) To facilitate and regulate the movement of workers in
conformity with the national interest;
e) To regulate the employment of aliens, including the
establishment of a registration and/or work permit system;
f) To strengthen the network of public employment offices and
rationalize the participation of the private sector in the recruitment and
placement of workers, locally and overseas, to serve national development
objectives; chanroblesvirtuallawlibrary
g) To insure careful selection of Filipino workers for overseas
employment in order to protect the good name of the Philippines abroad.
Title I
RECRUITMENT
AND
PLACEMENT OF WORKERS
Chapter I
GENERAL PROVISIONS
ART. 13. Definitions. - (a) "Worker"
means any member of the labor force, whether employed
or unemployed.
(b) "Recruitment and placement" refers to any
act of canvassing, enlisting, contracting, transporting, utilizing, hiring or
procuring workers, and includes referrals, contract services, promising or
advertising for employment, locally or abroad, whether for profit or not:
Provided, That any person or entity which, in any manner, offers or promises
for a fee, employment to two or more persons shall be deemed engaged in
recruitment and placement.
(c) "Private fee-charging employment agency"
means any person or entity engaged in recruitment and placement of workers for
a fee which is charged, directly or indirectly, from the workers or employers
or both.
(d) "License" means a document issued by the
Department of Labor authorizing a person or entity to
operate a private employment agency.
(e) "Private recruitment entity" means any
person or association engaged in the recruitment and placement of workers,
locally or overseas, without charging, directly or indirectly, any fee from the
workers or employers.
(f) "Authority" means a document issued by the
Department of Labor authorizing a person or
association to engage in recruitment and placement activities as a private
recruitment entity.
(g) "Seaman" means any person employed in a
vessel engaged in maritime navigation.
(h) "Overseas employment" means employment of a
worker outside the Philippines. chanroblesvirtuallawlibrary
(i) "Emigrant" means
any person, worker or otherwise, who emigrates to a
foreign country by virtue of an immigrant visa or resident permit or its
equivalent in the country of destination.
ART. 14. Employment promotion. - The Secretary of Labor shall have the power and authority:
(a) To organize and establish new employment offices in addition
to the existing employment offices under the Department of Labor
as the need arises;
(b) To organize and establish a nationwide job clearance and
information system to inform applicants registering with a particular
employment office of job opportunities in other parts of the country as well as
job opportunities abroad;
(c) To develop and organize a program that will facilitate
occupational, industrial and geographical mobility of labor
and provide assistance in the relocation of workers from one area to another;
and
(d) To require any person, establishment, organization or
institution to submit such employment information as may be prescribed by the
Secretary of Labor.
ART. 15. Bureau of Employment Services. - (a) The Bureau
of Employment Services shall be primarily responsible for developing and
monitoring a comprehensive employment program. It shall have the power and
duty:
1. To formulate and develop plans and programs to implement the employment
promotion objectives of this Title;
2. To establish and maintain a registration and/or licensing
system to regulate private sector participation in the recruitment and
placement of workers, locally and overseas, and to secure the best possible terms
and conditions of employment for Filipino contract workers and compliance
therewith under such rules and regulations as may be issued by the Minister of Labor;
3. To formulate and develop employment programs designed to
benefit disadvantaged groups and communities; chanroblesvirtuallawlibrary
4. To establish and maintain a registration and/or work permit
system to regulate the employment of aliens;
5. To develop a labor market
information system in aid of proper manpower and development planning;
6. To develop a responsive vocational guidance and testing
system in aid of proper human resources allocation; and
7. To maintain a central registry of skills, except seamen.
(b) The regional offices of the Ministry of Labor
shall have the original and exclusive jurisdiction over all matters or cases
involving employer-employee relations including money claims, arising out of or
by virtue of any law or contracts involving Filipino workers for overseas
employment except seamen: Provided, That the Bureau of Employment Services may,
in the case of the National Capital Region, exercise such power, whenever the
Minister of Labor deems it appropriate. The decisions
of the regional offices of the Bureau of Employment Services, if so authorized
by the Minister of Labor as provided in this Article,
shall be appealable to the National Labor Relations
Commission upon the same grounds provided in Article 223 hereof. The decisions
of the National Labor Relations Commission shall be
final and inappealable. (Superseded by Exec. Order 797, May 1, 1982).
(c) The Minister of Labor shall have
the power to impose and collect fees based on rates recommended by the Bureau
of Employment Services. Such fees shall be deposited in the National Treasury
as a special account of the General Fund, for the promotion of the objectives
of the Bureau of Employment Services, subject to the provisions of Section 40
of Presidential Decree No. 1177.
ART. 16. Private recruitment. - Except as provided in
Chapter II of this Title, no person or entity other than the public employment
offices, shall engage in the recruitment and placement of workers.
ART. 17. Overseas Employment Development Board. - An
Overseas Employment Development Board is hereby created to undertake, in
cooperation with relevant entities and agencies, a systematic program for
overseas employment of Filipino workers in excess of domestic needs and to
protect their rights to fair and equitable employment practices. It shall have
the power and duty:
1. To promote the overseas employment of Filipino workers
through a comprehensive market promotion and development program;
2. To secure the best possible terms and conditions of
employment of Filipino contract workers on a government-to-government basis and
to ensure compliance therewith;
3. To recruit and place workers for overseas employment on a
government-to-government arrangement and in such other sectors as policy may
dictate; and chanroblesvirtuallawlibrary
4. To act as secretariat for the Board of Trustees of the
Welfare and Training Fund for Overseas Workers.
ART. 18. Ban on direct-hiring.
- No employer may hire a Filipino worker for overseas employment except through
the Boards and entities authorized by the Secretary of Labor.
Direct-hiring by members of the diplomatic corps, international organizations
and such other employers as may be allowed by the Secretary of Labor is exempted from this provision.
ART. 19. Office of Emigrant Affairs. - (a) Pursuant to
the national policy to maintain close ties with Filipino migrant communities
and promote their welfare as well as establish a data bank in aid of national
manpower policy formulation, an Office of Emigrant Affairs is hereby created in
the Department of Labor. The Office shall be a unit
at the Office of the Secretary and shall initially be manned and operated by
such personnel and through such funding as are available within the Department
and its attached agencies. Thereafter, its appropriation shall be made part of
the regular General Appropriations Decree.
(b) The office shall, among others, promote the well-being of
emigrants and maintain their close link to the homeland by:
1) serving as a liaison with migrant
communities;
2) provision of welfare and cultural
services;
3) promote and facilitate
re-integration of migrants into the national mainstream;
4) promote economic; political and
cultural ties with the communities; and
5) generally to undertake such
activities as may be appropriate to enhance such cooperative links.
ART. 20. National Seamen Board. - (a) A National Seamen
Board is hereby created which shall develop and maintain a comprehensive
program for Filipino seamen employed overseas. It shall have the power and
duty:
1. To provide free placement services for seamen;
2. To regulate and supervise the activities of agents or
representatives of shipping companies in the hiring of seamen for overseas
employment and secure the best possible terms of employment for contract seamen
workers and secure compliance therewith;
3. To maintain a complete registry of all Filipino seamen.
(b) The Board shall have original and exclusive jurisdiction
over all matters or cases including money claims, involving employer-employee
relations, arising out of or by virtue of any law or contracts involving
Filipino seamen for overseas employment. The decisions of the Board shall be
appealable to the National Labor Relations Commission
upon the same grounds provided in Article 223 hereof. The decisions of the
National Labor Relations Commission shall be final
and inappealable.
ART. 21. Foreign service role
and participation. - To provide ample protection to Filipino workers
abroad, the labor attaches, the labor
reporting officers duly designated by the Secretary of Labor
and the Philippine diplomatic or consular officials concerned shall, even
without prior instruction or advice from the home office, exercise the power
and duty: chanroblesvirtuallawlibrary
(a) To provide all Filipino workers within their jurisdiction
assistance on all matters arising out of employment;
(b) To insure that Filipino workers are not exploited or
discriminated against;
(c) To verify and certify as requisite to authentication that
the terms and conditions of employment in contracts involving Filipino workers
are in accordance with the Labor Code and rules and
regulations of the Overseas Employment Development Board and National Seamen
Board;
(d) To make continuing studies or researches and recommendations
on the various aspects of the employment market within their jurisdiction;
(e) To gather and analyze information on the employment
situation and its probable trends, and to make such information available; and
(f) To perform such other duties as may be required of them from
time to time.
ART. 22. Mandatory remittance of foreign exchange earnings. -
It shall be mandatory for all Filipino workers abroad to remit a portion of
their foreign exchange earnings to their families, dependents, and/or
beneficiaries in the country in accordance with rules and regulations
prescribed by the Secretary of Labor.
ART. 23. Composition of the Boards. - (a) The OEDB shall
be composed of the Secretary of Labor and Employment
as Chairman, the Undersecretary of Labor as
Vice-Chairman, and a representative each of the Department of Foreign Affairs,
the Department of National Defense, the Central Bank,
the Department of Education, Culture and Sports, the National Manpower and
Youth Council, the Bureau of Employment Services, a workers’ organization and
an employers’ organization and the Executive Director of the OEDB as members.
(b) The National Seamen Board shall be composed of the Secretary
of Labor and Employment as Chairman, the
Undersecretary of Labor as Vice-Chairman, the
Commandant of the Philippine Coast Guard, and a representative each of the
Department of Foreign Affairs, the Department of Education, Culture and Sports,
the Central Bank, the Maritime Industry Authority, the Bureau of Employment
Services, a national shipping association and the Executive Director of the NSB
as members.
The members of the Boards shall receive allowances to be
determined by the Board which shall not be more than P2,000.00
per month.
(c) The Boards shall be attached to the Department of Labor for policy and program coordination. They shall each
be assisted by a Secretariat headed by an Executive Director who shall be a
Filipino citizen with sufficient experience in manpower administration,
including overseas employment activities. The Executive Director shall be
appointed by the President of the Philippines upon the recommendation of the
Secretary of Labor and shall receive an annual salary
as fixed by law. The Secretary of Labor shall appoint
the other members of the Secretariat.
(d) The Auditor General shall appoint his representative to the
Boards to audit their respective accounts in accordance with auditing laws and
pertinent rules and regulations. chanroblesvirtuallawlibrary
ART. 24. Boards to issue rules and collect fees. - The Boards
shall issue appropriate rules and regulations to carry out their functions.
They shall have the power to impose and collect fees from employers concerned,
which shall be deposited in the respective accounts of said Boards and be used
by them exclusively to promote their objectives.
Chapter II
REGULATION OF RECRUITMENT AND PLACEMENT
ACTIVITIES
ART. 25. Private sector participation in the recruitment and
placement of workers. - Pursuant to national development objectives and in
order to harness and maximize the use of private sector resources and
initiative in the development and implementation of a comprehensive employment
program, the private employment sector shall participate in the recruitment and
placement of workers, locally and overseas, under such guidelines, rules and
regulations as may be issued by the Secretary of Labor.
ART. 26. Travel agencies prohibited to
recruit. - Travel agencies and sales agencies of airline companies
are prohibited from engaging in the business of recruitment and placement of
workers for overseas employment whether for profit or not.
ART. 27. Citizenship requirement. - Only Filipino
citizens or corporations, partnerships or entities at least seventy-five
percent (75%) of the authorized and voting capital stock of which is owned and
controlled by Filipino citizens shall be permitted to participate in the
recruitment and placement of workers, locally or overseas.
ART. 28. Capitalization. - All applicants for authority
to hire or renewal of license to recruit are required to have such substantial
capitalization as determined by the Secretary of Labor.
ART. 29. Non-transferability of license or authority. -
No license or authority shall be used directly or indirectly by any person
other than the one in whose favor it was issued or at
any place other than that stated in the license or authority be transferred,
conveyed or assigned to any other person or entity. Any transfer of business
address, appointment or designation of any agent or representative including
the establishment of additional offices anywhere shall be subject to the prior
approval of the Department of Labor.
ART. 30. Registration fees. - The Secretary of Labor shall promulgate a schedule of fees for the
registration of all applicants for license or authority.
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
may be appropriate.
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 appropriate receipt clearly showing the amount paid.
The Secretary of Labor shall promulgate a schedule of
allowable fees.
ART. 33. Reports on employment status. - Whenever the
public interest requires, the Secretary of Labor may
direct all persons or entities within the coverage of this Title to submit a
report on the status of employment, including job vacancies, details of job
requisitions, separation from jobs, wages, other terms and conditions and other
employment data.
ART. 34. Prohibited practices. - It shall be unlawful for
any individual, entity, licensee, or holder of authority:
(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 that actually received by him as a loan or advance;
(b) To furnish or publish any false notice or information or
document in relation to recruitment or employment;
(c) To give any false notice, testimony, information or document
or commit any act of misrepresentation for the purpose of securing a license or
authority under this Code.
(d) To induce or attempt to induce a worker already employed to
quit his employment in order to offer him to another unless the transfer is
designed to liberate the worker from oppressive terms and conditions of
employment;
(e) To influence or to attempt to influence any person or entity
not to employ any worker who has not applied for employment through his agency;
(f) To engage in the recruitment or placement of workers in jobs
harmful to public health or morality or to the dignity of the Republic of the
Philippines; chanroblesvirtuallawlibrary
(g) To obstruct or attempt to obstruct inspection by the
Secretary of Labor or by his duly authorized
representatives;
(h) To fail to file reports on the status of employment,
placement vacancies, remittance of foreign exchange earnings, separation from
jobs, departures and such other matters or information as may be required by
the Secretary of Labor.
(i) To substitute or alter employment
contracts approved and verified by the Department of Labor
from the time of actual signing thereof by the parties up to and including the
periods of expiration of the same without the approval of the Secretary of Labor;
(j) To become an officer or member of the Board of any
corporation engaged in travel agency or to be engaged directly or indirectly in
the management of a travel agency; and
(k) To withhold or deny travel documents from applicant workers
before departure for monetary or financial considerations other than those
authorized under this Code and its implementing rules and regulations.
ART. 35. Suspension and/or cancellation of license or
authority. - The Minister of Labor shall have the
power to suspend or cancel any license or authority to recruit employees for
overseas employment for violation of rules and regulations issued by the
Ministry of Labor, the Overseas Employment
Development Board, or for violation of the provisions of this and other
applicable laws, General Orders and Letters of Instructions.
Chapter III
MISCELLANEOUS PROVISIONS
ART. 36. Regulatory power. - The Secretary of Labor
shall have the power to restrict and regulate the recruitment and placement
activities of all agencies within the coverage of this Title and is hereby
authorized to issue orders and promulgate rules and regulations to carry out
the objectives and implement the provisions of this Title.
ART. 37. Visitorial Power. -
The Secretary of Labor or his duly authorized
representatives may, at any time, inspect the premises, books of accounts and
records of any person or entity covered by this Title, require it to submit
reports regularly on prescribed forms, and act on violation of any provisions
of this Title.
ART. 38. Illegal recruitment. - (a) Any recruitment
activities, including the prohibited practices enumerated under Article 34 of
this Code, to be undertaken by non-licensees or non-holders of authority, shall
be deemed illegal and punishable under Article 39 of this Code. The Department
of Labor and Employment or any law enforcement
officer may initiate complaints under this Article.
(b) Illegal recruitment when committed by a syndicate or in
large scale shall be considered an offense involving economic sabotage and
shall be penalized in accordance with Article 39 hereof.
Illegal recruitment is deemed committed by a syndicate if
carried out by a group of three (3) or more persons conspiring and/or
confederating with one another in carrying out any unlawful or illegal
transaction, enterprise or scheme defined under the first paragraph hereof.
Illegal recruitment is deemed committed in large scale if committed against
three (3) or more persons individually or as a group.
(c) The Secretary of Labor and
Employment or his duly authorized representatives shall have the power to cause
the arrest and detention of such non-licensee or non-holder of authority if
after investigation it is determined that his activities constitute a danger to
national security and public order or will lead to further exploitation of
job-seekers. The Secretary shall order the search of the office or premises and
seizure of documents, paraphernalia, properties and other implements used in
illegal recruitment activities and the closure of companies, establishments and
entities found to be engaged in the recruitment of workers for overseas
employment, without having been licensed or authorized to do so.
ART. 39. Penalties. - (a) The penalty of life
imprisonment and a fine of One Hundred Thousand Pesos (P1000,000.00)
shall be imposed if illegal recruitment constitutes economic sabotage as
defined herein;
(b) Any licensee or holder of authority found violating or
causing another to violate any provision of this Title or its implementing
rules and regulations shall, upon conviction thereof, suffer the penalty of
imprisonment of not less than two years nor more than five years or a fine of
not less than P10,000 nor more than P50,000, or both
such imprisonment and fine, at the discretion of the court;
(c) Any person who is neither a licensee nor a holder of
authority under this Title found violating any provision thereof or its
implementing rules and regulations shall, upon conviction thereof, suffer the
penalty of imprisonment of not less than four years nor more than eight years
or a fine of not less than P20,000 nor more than
P100,000 or both such imprisonment and fine, at the discretion of the court;
(d) If the offender is a corporation, partnership, association
or entity, the penalty shall be imposed upon the officer or officers of the
corporation, partnership, association or entity responsible for violation; and
if such officer is an alien, he shall, in addition to the penalties herein
prescribed, be deported without further proceedings;
(e) In every case, conviction shall cause and carry the
automatic revocation of the license or authority and all the permits and
privileges granted to such person or entity under this Title, and the
forfeiture of the cash and surety bonds in favor of
the Overseas Employment Development Board or the National Seamen Board, as the
case may be, both of which are authorized to use the same exclusively to
promote their objectives.
Title II
EMPLOYMENT OF NON-RESIDENT
ALIENS
ART. 40. Employment permit of non-resident aliens. -
Any alien seeking admission to the Philippines for employment purposes and any
domestic or foreign employer who desires to engage an alien for employment in
the Philippines shall obtain an employment permit from the Department of Labor.
The 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.
For an enterprise registered in preferred areas of investments,
said employment permit may be issued upon recommendation of the government
agency charged with the supervision of said registered enterprise.
ART. 41. Prohibition against transfer of employment. -
(a) After the issuance of an employment permit, the
alien shall not transfer to another job or change his employer without prior
approval of the Secretary of Labor.
(b) Any non-resident alien who shall take up employment in
violation of the provision of this Title and its implementing rules and
regulations shall be punished in accordance with the provisions of Articles 289
and 290 of the Labor Code.
In addition, the alien worker shall be subject to deportation
after service of his sentence.
ART. 42. Submission of list. - Any employer employing non-resident foreign nationals on the effective date of this Code shall submit a list of such nationals to the Secretary of Labor within thirty (30) days after such date indicating their names, citizenship, foreign and local addresses, nature of employment and status of stay in the country. The Secretary of Labor shall then determine if they are entitled to an employment permit. chanroblesvirtuallawlibrary
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