Guidelines on foreign work permits, out

News Release 
Department of Labor and Employment 
12 July 2019 

Guidelines on foreign work permits, out

The much awaited guidelines that will govern the issuance of permits to foreign nationals intending to work in the Philippines has been released.

In a ceremonial signing on Thursday, Labor Secretary Silvestre Bello III, Finance Secretary Carlos Dominguez, Justice Secretary Menardo Guevarra, BIR Commissioner Cesar Dulay, PRC Chairman Teofilo Pilando, National Intelligence and Coordinating Agency Director General Alex Paul Monteagudo, Department of Foreign Affairs, the Bureau of Immigration, Department of Environment and Natural Resources, and Philippine Amusement and Gaming Corporation CEO Andrea Domingo issued Joint Memorandum Circular No. 001, series of 2019, providing the rules and regulations that spells out the reunified policy on allowing foreign workers to engage in gainful employment.

JMC 1 covers the issuance of Alien Employment Permit (AEP) by DOLE; Special Temporary Permit (STP) by PRC; Special provisional Work Permits and 9(g) visa by the BI; 47(a)2 and Authority to Employ Alien by DOJ; Authority to Hire by DENR; and the 9(g) and 47(a)2 visas by DFA.

NICA is mandated to conduct background investigations on foreign nationals to be employed to forestall possible national security implications on their entry in the Philippines.

Under the new rules, the foreign national needs to secure a Tax Identification Number (TIN) from the BIR to ensure payment of appropriate taxes, and a 'No Derogatory Record/ Information' from NICA and NBI.

Justice Secretary Guevarra said the signing of the JMC was urgent because many foreign workers were unregistered and untaxed, thus the need to regulate them is necessary to ensure they pay appropriate taxes.

Bello reiterated a rule of thumb where foreign workers cannot be given a work permit should a Filipino signify their interest to perform the available job offered to the foreign national.

Pending the development of a database, the concerned government offices are required to submit to DOLE, through the Bureau of Local Employment (BLE) and NICA, a monthly report on the permits issued for consolidation.

BLE Director Dominique Tutay reported that prior to the release and signing of the JMC, the department has observed an increase of up to 60 to 70% of AEP applications compared to last year's statistics due to the efforts to regulate.

"Because of this JMC, DOLE has been given an additional 500 labor laws compliance officers. We can now strengthen our inspection and catch these illegal foreign workers," Bello said.

Last May, various agencies signed an agreement with DOLE to formulate a joint guideline in allowing foreign nationals to work in the Philippines.

The JMC will take effect after 15 days from the date of its publication in the official gazette or in a newspaper of general circulation.

https://www.dole.gov.ph/news/guidelines-on-foreign-work-permits-out/

PROCEDURAL DUE PROCESS IN TERMINATION

In the case of United Tourist Promotions (UTP) v. Harland Kemplin, February 5, 2014, G.R. No. 205453, the Court quoted the Unilever case in explaining the requirements for procedural due process, to wit:

In Unilever Philippines, Inc. v. Maria Ruby M. Rivera, the Court laid down in detail the steps on how to comply with procedural due process in terminating an employee, viz:

(1) The first written notice to be served on the employees should contain the specific causes or grounds for termination against them, and a directive that the employees are given the opportunity to submit their written explanation within a reasonable period. "Reasonable opportunity" under the Omnibus Rules means every kind of assistance that management must accord to the employees to enable them to prepare adequately for their defense. This should be construed as a period of at least five (5) calendar days from receipt of the notice to give the employees an opportunity to study the accusation against them, consult a union official or lawyer, gather data and evidence, and decide on the defenses they will raise against the complaint. Moreover, in order to enable the employees to intelligently prepare their explanation and defenses, the notice should contain a detailed narration of the facts and circumstances that will serve as basis for the charge against the employees. A general description of the charge will not suffice. Lastly, the notice should specifically mention which company rules, if any, are violated and/or which among the grounds under Art. 282 is being charged against the employees.

(2) After serving the first notice, the employers should schedule and conduct a hearing or conference wherein the employees will be given the opportunity to: (1) explain and clarify their defenses to the charge against them; (2) present evidence in support of their defenses; and (3) rebut the evidence presented against them by the management. During the hearing or conference, the employees are given the chance to defend themselves personally, with the assistance of a representative or counsel of their choice. Moreover, this conference or hearing could be used by the parties as an opportunity to come to an amicable settlement.

(3) After determining that termination of employment is justified, the employers shall serve the employees a written notice of termination indicating that: (1) all circumstances involving the charge against the employees have been considered; and (2) grounds have been established to justify the severance of their employment.

CGRLAW & Associates

3F Builders Center, 170  Salcedo Street, 

Legaspi Village, Makati City
Tel. No. (+63 2) 985 4322
email: claude.requino@cgrlaw.ph

            info@cgrlaw.ph

website: http://www.cgrlaw.ph

This email and any files transmitted with it are confidential and intended solely for the use of the individual or entity to whom they are addressed. You are hereby notified that disclosing, copying, distributing or taking any action in reliance on the contents of this information is strictly prohibited.

Leave Benefits to Employees Provided for by Law

a.             Solo Parent's Leave (RA 8972)

-7 days for solo parent (with child custody) provided he had rendered service of 1 year

b.             Leave under RA 9262 (VAWC)

-10 days when the woman is a victim and has a pending case related to VAWC

c.              Leaves under 9710 (Magna Carta of Women)

-2 month-full leave with pay provided the woman undergone surgery due to gynecological disorder.

d.             Paternity Leave (RA 8187)

-7 days for married male to help nursing wife

e.             Maternity Leave

-60 to 78 days depending on the mode of delivery

f.             Service Incentive Leave pay

-5 days of leave, provided that he had rendered service for one year

CGRLAW & Associates

3F Builders Center, 170  Salcedo Street, 

Legaspi Village, Makati City
Tel. No. (+63 2) 985 4322
email: claude.requino@cgrlaw.ph

            info@cgrlaw.ph

website: http://www.cgrlaw.ph

This email and any files transmitted with it are confidential and intended solely for the use of the individual or entity to whom they are addressed. You are hereby notified that disclosing, copying, distributing or taking any action in reliance on the contents of this information is strictly prohibited.

Management Prerogative to Transfer Employee Security Guards

Is transfer of a security guard equivalent dismissal?

No. In cases involving security guards, a relief and transfer order in itself does not sever employment relationship between a security guard and his agency. An employee has the right to security of tenure, but this does not give him such a vested right in his position as would deprive the company of its prerogative to change his assignment or transfer him where his service, as security guard, will be most beneficial to the client. (G.R. No. 160940)

Can the agency transfer its security guard?

Yes. The right to transfer employees from one office to another- provided there is no demotion in rank or diminution of salary, benefits and other privileges- is judicially recognized as a prerogative inherent in the employer's right to effectively control and manage the enterprise. (G.R. No. 118159)

To repeat for emphasis, the security guard's right to security of tenure does not give him a vested right to the position as would deprive the company of its prerogative to change the assignment of, or transfer the security guard to, a station where his services would be most beneficial to the client. Indeed, an employer has the right to transfer or assign its employee from one office to area of operation to another, or in pursuit of its legitimate business interest, provided there is no diminution in rank or diminution of salary, benefits, and other privileges, and the transfer is not motivated by discrimination or bad faith, or effected as a form of punishment ot demotion without sufficient cause.

Is the lapse of 6 month off-detailed period equivalent to constructive illegal dismissal?

No. It is manifestly unfair and unacceptable to immediately declare the mere lapse of six month period of floating status as a case of constructive dismissal, without looking into the peculiar circumstances hat resulted in he security guard's failure to assume another post. (G.R. No. 198538)  

EXTENSION OF PROBATIONARY EMPLOYMENT IS ALLOWED WHEN VOLUNTARILY AGREED UPON BY PARTIES

There is no prohibition on the extension of probationary employment period provided that the employee voluntarily agreed to the extension. The Supreme Court acknowledges the extension as an act of compassion of the employer to the employee who failed to meet the standards of the probationary employment. The new period is given to the employee so that he can improve and prove that he is a qualified employee.

(G.R. No. 74246) The extension of probation was ex gratia, an act of liberality on the part of the employer affording a second chance to make good after having initially failed to prove his worth as an employee. Such an act cannot now unjustly be turned against said employer's account to compel it to keep on its payroll one who could not perform according to its work standards. The law, surely, was never meant to produce such an inequitable result.

By voluntarily agreeing to an extension of the probationary period, the employee in effect waived any benefit attaching to the completion of said period if he still failed to make the grade during the period of extension. The Court finds nothing in the law which by any fair interpretation prohibits such a waiver. And no public policy protecting the employee and the security of his tenure is served by prescribing voluntary agreements which, by reasonably extending the period of probation, actually improve and further a probationary employee's prospects of demonstrating his fitness for regular employment.

Does the Employer has the Burden of Proof to show Payment of Overtime Pay and Other Money Claims?

It has always been argued that the Employer must show proof that the employee has been duly paid of his money claims since it has in its possession proof of such payments, and in the absence of proof to the contrary, it is deemed that no payment has been made.

This contention is correct provided that the employee had already established that it is entitled to such benefits or claims. Simply put, the employee must first establish his allegation (Godofredo Morales v. Skills International Company, G.R. 149285).

In the case of Romeo Lagatic v. NLRC, G.R. 121004, January 28, 1998, the Court ruled that the employee failed to show his entitlement to overtime and rest day pay, due to lack of sufficient evidence as to the number of days and hours when he rendered overtime and rest day work. Entitlement to overtime pay must first be established by proof that said overtime work was actually performed, before an employee may avail of said benefit. To support his allegations, the employee submitted in evidence minutes of meetings wherein he was assigned to work on weekends and holidays at Cityland'd Housing projects. Suffice it to say that said minutes do not prove that the employee actually worked on said dates. It is basic rule in evidence that each party must prove his affirmative allegations.

In another cases, the court denied the claim since there were no proof adduced to show entitlement.

The employees never produced any proof of actual performance of overtime work (Julio Cagampan v. NLRC, G.R. No. 85122-24, March 22, 1991). As for the employee's claim for overtime pay, it must be denied, for other than the uncorroborated affidavits of her colleagues, there is no concrete proof that she is entitled thereto. And so must her claim for allowances, no proof to her entitlement thereto having been presented (Lilia P. Labadan v. Forest Hills Academy, G.R. No. 172295, December 23, 2008).

In the recent decided case this January 16, 2012, Abduljuahid R. Pigcaaulan v. Security and Credit Investigation, Inc., G.R. No. 173648, the Court reversed the decison of the Labor Arbiter and the NLRC and declared that "The handwritten itemized computations are self-serving, unreliable and unsubstantial evidence to sustain the grant of salary differentials, particularly overtime pay. Unsigned and unauthenticated as they are, there is no way of verifying the truth of the handwritten entries stated therein. Written only in pieces of paper and solely prepared by Canoy and Pigcaulan, tehses representatives daily time records, as termed by the Labor Arbiter, can hardly be considered as competent evidence to be used as basis to prove that the two were underpaid of their salaries. We find nothing on records whch could substantially support Pigcaulan's contention that he had rendered service beyond eight hours to entitle him to overtime pay and during Sundays to entitle him to restday pay. Hence, in the absence of any concrete proof that additional service beyond the normal working hours and days had indeed been rendered, we cannot affirm the grant of overtime pay.

Payment to Employees on Suspension due to Inclement Weather like Typhoon

PAYMENT OF WAGES FOR PRIVATE SECTOR EMPLOYEES DUE TO INCLEMENT WEATHER OR NATURAL CALAMITIES

All private sector employees are advised of the following rules for pay on suspension of work due to typhoon.

A. IF UNWORKED

• NO PAY, unless there is a favourable company policy, practice or collective bargaining agreement (CBA) granting payment of wage on said day; and
• When the employee has accrued leave credits, he may be allowed to utilise such leave so that he will ave compensation on said days.

B. IF WORKED

• NO ADDITIONAL PAY is given to the employees but only their salary on said day.

Although it is NO WORK NO PAY, to alleviate the plight of employees in times of crisis, the employers may provide such extra incentives or benefits to employees who reported for work.


*Labor Advisory 10, s. 2013

CGRLAW & Associates

5F First Global Building, 122 Gamboa Street

corner Salcedo Street, Legaspi Village, Makati City

Tel. No. (+63 2) 985 4322/  (+63 2) 889 5210

Mobile: +63 918 948 6092

email:claude.requino@cgrlaw.tk

info@cgrlaw.tk

website: http://www.cgrlaw.tk

This email and its attachments are intended solely for the use of the addressee.  This message and any attachment are confidential and may be privileged attorney-client communication or otherwise protected from disclosure.  If you are not the intended recipient, you are hereby notified that you have received this message in error; any review, dissemination, distribution or copying of this message and/or attachment is strictly prohibited.  If you are not the addressee or the person responsible for delivering this email and any attachments included to the addressee, you may not copy, deliver, or otherwise distribute this email and any attachments included to anyone else.  If you have received this message in error, please notify us by reply and immediately delete this message and all its attachments from your system.

REMINDER ON EMPLOYERS NOT TO HIRE FOREIGNERS WITHOUT PROPER WORK PERMITS

REMINDER ON EMPLOYERS NOT TO HIRE FOREIGNERS WITHOUT PROPER WORK PERMITS

The Bureau of Immigration had repeatedly reminded the employers not to engage the services of foreigners without the proper working Visa or Work Permit.

The  Philippine Immigration Act under Section 9 (g) provides a foreigner who is hired to work in the Philippines must have a Pre-Arranged Working Visa and an Alien Employment Permit to be secured from the Department of Labor and Employment.

If the foreigner hired will only work  as a consultant for a short period of time, the employers may apply for Special Working Permits. Special Working Permits are valid for 3 months and renewable for another 3 months.

The employment of foreigners without the proper permit is punishable by fine and imprisonment.

MANAGEMENT PREROGATIVE: Rights of the employer to make profit

MANAGEMENT PREROGATIVE: Rights of the employer to make profit

Labor disputes cannot always be in favor of labor. The employers also have rights as much as the employees. The employer is allowed to control the variables in business operations, to enhance the chances of making a profit.  The Supreme Court have held in various cases that management is free to regulate, according to its own discretion and judgment, all aspects of employment, including hiring, work assignments, working methods, time, place and manner of work, processes to be followed, supervision of workers, working regulations, transfer of employees, work supervision, layoff of workers and discipline, dismissal and recall of workers. The Court, in another case, further states that while tilting the scales of justice in favor of workers, the fundamental law also guarantees the right of the employer to reasonable returns for his investment. xxx we must acknowledge the prerogative of the employer to adopt such measures as will promote greater efficiency, reduce overhead costs and enhance prospects of economic gains, albeit always within the framework of existing laws.

Some points to consider:

1.       When is management prerogative justified?

Management prerogative is justified, provided that the following are exercised:

a.       In good faith

b.      For the advancement of the employer’s interest

c.       Not to circumvent the rights of the employees

2.       Is it the prerogative of management to transfer an employee?

Yes. The management can transfer employee where it is perceived by the employer that the employee’s qualifications, aptitudes, and competence can function with maximum benefit to the company. This is a privilege inherent in the employer’s right to control and manage his enterprise effectively. An employee who refuses to be transferred when such transfer is valid, is guilty of insubordination.

3.       Is non-competition clause in employment contract valid?

Yes. The employer has a right to protect trade secrets and other proprietary data since a former employee, in whom the employer had invested time, training, and other resources, could potentially cause significant business loses to the employer if he is allowed to work with a competitor or set up his own business upon resignation or termination from the employer’s business.

4.       Is contracting out of services (hiring contractual) valid?

Yes. Management may contact out services in the exercise of its management prerogatives. The reduction of employees in a company made necessary by the introduction of the services of an independent contractor is justified when the latter is undertaken in order to effectuate more economic and efficient methods of production. The complaining employee must prove that the management acted maliciously.

5.       After completing probationary period, is an employee automatically becomes a regular employee?

No. Upon expiration of their contract of employment, academic personnel on probation cannot automatically claim security of tenure and compel their employers to renew their employment contracts. Probationary employees enjoy security of tenure, but only within the period of probation. Likewise, an employee on probation can only be dismissed for just causes or when he fails to qualify as a regular employee in accordance with the reasonable standards made known by the employer at the time of his hiring.

6.       Is term employment for more than 6 months valid?

Yes. Employment for a specific period, even more than 6 months, is valid provided that it was knowingly and voluntarily agreed upon by the parties, without any force, duress, or improper pressure.

7.       Can an employee with negative attitude be terminated?

Yes. An employee whose actions erode the morale of his co-employees may be terminated. If after several warnings, the employee obstinately refuses to curtail a bellicose inclination, he may be terminated. It will be considered as serious misconduct.

8.       Can theft of small value be a ground for termination?

Yes. The value of the property stolen is not material in termination due to serious misconduct. Even if the stolen materials are considered scrap, it still had monetary value which he cannot appropriate to himself.

9.       Can a manager contravene the directive of a VP?

No. As a general rule, although a managerial employee is clothed with discretion to determine what was in the best of the company, said managerial discretion is not without limits. Its parameters were contained the moment the discretion was exercised, and then opposed by the immediate superior for being against the policies and welfare of the company. Hence, any action in pursuit of the discretion thus opposed had ceased to be discretionary and could be considered as willful disobedience.

10.   Is there a need for actual hearing or conference in terminating an employee?

No. It is not necessary that an actual hearing or conference be held. The Labor Code only provides that an employer must provide the employee ample opportunity to be heard and to defend himself with the assistance of his representative if he so desires.

REFUSAL TO TRANSFER IS AN ACT OF INSUBORDINATION THAT WARRANTS DISMISSAL AND NON-ENTITLEMENT TO SEPARATION PAY

In the case of Juliet Gapacible v. Multimed Industries Incorporated (G.R. No. 178903, May 30, 2011), the court ruled that failure to comply with transfer order amounted to insubordination.

Juliet is the Assistant Area Sales Manager of the company in Cebu City. Since there was an ongoing reorganization in the company, she was advised that she would be transferred to its head office in Pasig City. Instead of heeding the order, Juliet, through her lawyer, Atty. Montenegro, demanded payment of separation pay and stated that he had advised his client to remain in her current position in Cebu. The company sent several letter-Memo ordering the transfer. Finally, Juliet was terminated for insubordination. Consequently, Juliet filed a complaint for illegal dismissal.

The Court ruled that Juliet was dismissed for willfully disobeying the lawful order of her employer to transfer from Cebu to Pasig City. The Court reasoned that Juliet knew and accepted respondent company's policy on transfers when she was hired and was in fact even transferred many times from one area of operations to another.

xxx

Clearly, petitioner's adamant refusal to transfer, coupled with her failure to heed the order for her to return the company vehicle, more importantly, allowing her counsel to write letters couched in harsh language to her superiors unquestionable show that she was guilty of insubordination, hence not entitled to the award of separation pay.

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CGRLAW & ASSOCIATES
Campos Rueda Building, Unit 408
101 Export Drive, Makati City
Tel. No. 290 5898 Fax. No 889 5210
Mobile: +63 918 948 6092
email:atty.claudio.g.requino@live.com.ph

   claude.requino@cgrlaw.tk

website: http://www.cgrlaw.tk

This email and its attachments are intended solely for the use of the addressee.  This message and any attachment are confidential and may be privileged attorney-client communication or otherwise protected from disclosure.  If you are not the intended recipient, you are hereby notified that you have received this message in error; any review, dissemination, distribution or copying of this message and/or attachment is strictly prohibited.  If you are not the addressee or the person responsible for delivering this email and any attachments included to the addressee, you may not copy, deliver, or otherwise distribute this email and any attachments included to anyone else.  If you have received this message in error, please notify us by reply and immediately delete this message and all its attachments from your system.