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Psych 30 module two

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  • Rationale: To assure the best possible terms and conditions of work to the employee To assure the foreign employer that he hires only qualified filipino workers.
  • Transcript

    • 1. MODULE 2: RECRUITMENT & PLACEMENT Atty. Harve B. Abella MODULE 2: RECRUITMENT & PLACEMENT Atty. Harve B. Abella, Esq.
    • 2. Definitions
      • WORKER (Art. 13, LCP)
        • Any member of the labor force, whether employed or unemployed
      • RECRUITMENT & PLACEMENT (Art. 13, b, LCP)
        • Any act of CETCHUP
          • C anvassing
          • E nlisting
          • T ransporting
          • C ontracting
          • H iring
          • U tilizing or p rocuring workers which include:
    • 3. Definitions (continued)
      • CRAP
        • Contract services
        • Referrals
        • Advertising OR
        • Promising 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 of two or more persons shall be deemed engaged in recruitment and placement.
    • 4. NOTA BENE
      • The number of persons dealt with is not an essential ingredient of the act of recruitment and placement of workers. The proviso merely creates a presumption. (People vs. Panis, GR No. L-58674-77, [142 SCRA664] July 11, 1986)
    • 5. ELEMENTS of Engaging in Recruitment & Placement Activities
      • These Conditions MUST CONCUR:
        • The complainant had a DISTINCT IMPRESSION that the accused had the power to send the complainant abroad for work; and
        • The complainant was convinced to part with his money in order to be so employed.
          • (People vs Goce, GR NO. 118161, Aug. 29, 1995)
    • 6. ART.16: PRIVATE RECRUITMENT
      • GEN. RULE: NO PERSON or ENTITY shall engage in the recruitment and placement of workers either for local or overseas employment.
    • 7. Exceptions
      • Public employment offices
      • Private recruitment entities;
      • Private employment agencies
      • Shipping or manning agents or representatives
      • POEA
      • Construction contractors if authorized by the DOLE and the Construction Industry Authority
      • Members of the diplomatic corps (but hiring must also go through POEA)
      • Other persons or entities as may be authorized by the DOLE Secretary
      • Name Hirees
        • Individuals who by their own efforts secure overseas contracts of employment without the assistance of any agency
    • 8. Art. 17 (POEA)
      • POEA has taken over the functions of the OEBD and NSB (Overseas Employment & Dev’t Board / Nat’l. Seaman’s Board)
      • Principal FXNS pf the POEA (key: FPD)
        • Formulation, implementation and monitoring of overseas employment of Filipino workers
        • Protection of their rights to fair and equitable employment practices; and
        • Deployment of Filipino workers through government-to-government hiring
    • 9. TWO-FOLD FXNS of POEA
      • REGULATORY
        • Regulates private sector participation in the recruitment and overseas placement of workers through its licensing and registration system
      • ADJUDICATORY
        • ADMIN CASES involving violations of licensing RR and registration of recruitment and employment agencies or entities
        • DISCIPLINARY AXN CASES and other special cases which are administrative in character, involving employers, principals, contracting partners and Filipino Migrant workers.
    • 10. MWA of 1995, RA 8042 Grounds for Disciplinary Action
      • Key: PUG is V VEC ’s GIFT to DAD
      • PUG
      • PROSTITUTION
      • UNJUST refusal to depart for the worksite
      • GUNRUNNING or possession of deadly weapons
    • 11. MWA of 1995, RA 8042 Grounds for Disciplinary Action
      • V V E C
      • 4. VANDALISM or destroying company property
      • 5. VIOLATION of the laws and sacred practices of the host country and unjustified breach of employment contract
      • 6. EMBEZZLEMENT of funds of the company or of a fellow worker entrusted for delivery to relatives in the Philippines
      • 7. CREATING trouble at the worksite or in the vessel
    • 12. MWA of 1995, RA 8042 Grounds for Disciplinary Action
      • GIFT
      • 8. GAMBLING , especially where the host country prohibit the same
      • 9 . INITIATING or joining a strike or work stoppage where the laws of the host country prohibit strikes or similar actions
      • 10. Commission of a FELONY punishable by Philippine Laws of by the host country
      • 11. THEFT or robbery.
    • 13. MWA of 1995, RA 8042 Grounds for Disciplinary Action
      • DAD
      • 12. DRUNKENNESS
      • 13. Drug ADDICTION or possession or trafficking of prohibited drugs
      • 14. DESERTION or abandonment
    • 14. WHERE TO FILE
      • (Rule VII of Book VII of the POEA Rules)
      • File with the Adjudication Office or Regional Office of the POEA as the case may be
      • The POEA may motu proprio undertake disciplinary action against a worker
      • It shall establish a system of watching and blacklisting
    • 15. Sec. 10, RA 8042 Jurisdiction transferred to LA of the NLRC
      • Claims arising out an EE-ER 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.
      • VENUE: Money claims or claims for damages should be filed before the RAB of the NLRC where the complainant resides or where the principal office of the respondent/employer is situated at the option of the complainant.
    • 16. Compromise Agreement
      • Sec. 10, RA 8042 as amended by RA 10002
      • Allows resolution by compromise of cases filed with the NLRC
      • Any compromise/amicable settlement or voluntary agreement on money claims inclusive of damages shall be paid within 30 days from the approval of the settlement by the appropriate authority
    • 17.
      • RULE: If terminated on grounds other than those which are lawful and valid BEFORE the agreed termination date, the employer will pay the following:
      • full reimbursement of his placement fee and the deductions made with interest at twelve percent (12%) per annum
      • 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.
      Rule on Pre-Termination of Contract
    • 18. Rule on Pre-Termination of Contract
      • RULES (under Marsaman Manning Agency vs NLRC, August 25, 1999)
      • IF the contract of employment is BELOW ONE YEAR, the salaries for the ENTIRE UNEXPIRED PORTION of the contract shall be paid.
      • IF the contract of employment is ONE YEAR AND ABOVE, then the salaries for the ENTIRE UNEXPIRED PORTION OF THE CONTRACT OR THREE (3) MONTHS PAY FOR EVERY YEAR OF THE UNEXPIRED PORTION, WHICHEVER IS LESSER, SHALL BE PAID.
    • 19. INVALID AGREEMENTS
      • Signing satisfaction receipts is not a waiver. Any agreement to receive less compensation than what the worker is entitled to recover is INVALID. (MR Yard Crew Union vs PNR)
      • An agreement that diminishes the employee’s pay and benefits as contained in a POEA-approve contract is void, unless such subsequent agreement is approved by POEA (Chavez vs Bonto-Perez, March 1, 1995)
    • 20. MINIMUM REQUIREMENTS or EMPLOYMENT CONDITIONS OF OVERSEAS EMPLOYMENT
      • Key: GFF-JW-RAF
      • Guaranteed wages for regular working hours and overtime pay
      • Free transportation from point of hire to site of employment and return
      • Free emergency medical and dental treatment and facilities
      • Just causes for termination of the services of the workers
      • Workmen ’s compensation benefits and war hazard protection
      • Repatriation of worker’s remains and properties in case of death
      • Assistance on remittance of workers salaries and allowances
      • Free and adequate board and lodging facilities or compensatory food allowance.
    • 21. ART. 18, LCP
      • BAN ON DIRECT HIRING:
      • No employer may hire a Filipino worker for overseas employment except through the boards and entities authorized by the DOLE. Direct hiring by members of the diplomatic corps, international organizations, and such other employers as may be allowed by the DOLE is exempted from this provision.
        • *NAME HIREES.
          • Individual workers who are able to secure contracts for overseas employment on their own efforts and representations without assistance or participation of any agency. Their hiring nonetheless shall pass through the POEA for processing purposes
    • 22. ART. 22, Mandatory Remittance of Foreign Exchange Earnings NATURE OF JOB FOREX REMITTANCE (% of Basic Salary) Seamen or mariners 80% Workers for Filipino contractors and construction companies 70% Professionals whose employment contracts provide for lodging facilities 70% Professionals without board and lodging 50% Domestic and other service workers 50%
    • 23. Exceptions
      • The worker’s immediate family members, dependents , or beneficiaries are residing with him abroad;
      • Filipino servicemen working in US military installations;
      • Immigrants and Filipino professionals and employees working with UN agencies or specialized bodies (Resolution No. 1-83, Inter-Agency Committee for Implementation of EO 857)
    • 24. Effect of Failure to Remit
      • Suspended or excluded from the list of eligible workers for overseas employment
      • Private employment agencies or entities shall face cancellation or revocation of their licenses or authority to recruit, without prejudice to other liabilities under existing laws (Sec. 9, EO 857, Dec. 13, 1982)

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