1. PHILIPPINE ASSOCIATION OF SERVICE EXPORTERS, INC., petitioner, vs. HON. FRANKLIN M. DRILON as Secretary of Labor and Employment, and TOMAS D. ACHACOSO, as Administrator of the Philippine Overseas Employment Administration, respondents.G.R. No. 81958 June 30, 1988 (FULL CASE)

The petitioner, Philippine Association of Service Exporters, Inc. (PASEI, for short), a firm "engaged principally in the recruitment of Filipino workers, male and female, for overseas placement," 1 challenges the Constitutional validity of Department Order No. 1, Series of 1988, of the Department of Labor and Employment, in the character of "GUIDELINES GOVERNING THE TEMPORARY SUSPENSION OF DEPLOYMENT OF FILIPINO DOMESTIC AND HOUSEHOLD WORKERS," in this petition for certiorari and prohibition. Specifically, the measure is assailed for "discrimination against males or females;" 2 that it "does not apply to all Filipino workers but only to domestic helpers and females with similar skills;" 3 and that it is violative of the right to travel. It is held likewise to be an invalid exercise of the lawmaking power, police power being legislative, and not executive, in character.In its supplement to the petition, PASEI invokes Section 3, of Article XIII, of the Constitution, providing for worker participation "in policy and decision-making processes affecting their rights and benefits as may be provided by law." 4 Department Order No. 1, it is contended, was passed in the absence of prior consultations. It is claimed, finally, to be in violation of the Charter's non-impairment clause, in addition to the "great and irreparable injury" that PASEI members face should the Order be further enforced.On May 25, 1988, the Solicitor General, on behalf of the respondents Secretary of Labor and Administrator of the Philippine Overseas Employment Administration, filed a Comment informing the Court that on March 8, 1988, the respondent Labor Secretary lifted the deployment ban in the states of Iraq, Jordan, Qatar, Canada, Hongkong, United States, Italy, Norway, Austria, and Switzerland. * In submitting the validity of the challenged "guidelines," the Solicitor General invokes the police power of the Philippine State.It is admitted that Department Order No. 1 is in the nature of a police power measure. The only question is whether or not it is valid under the Constitution.The concept of police power is well-established in this jurisdiction. It has been defined as the "state authority to enact legislation that may interfere with personal liberty or property in order to promote the general welfare." 5 As defined, it consists of (1) an imposition of restraint upon liberty or property, (2) in order to foster the common good. It is not capable of an exact definition but has been, purposely, veiled in general terms to underscore its all-comprehensive embrace."Its scope, ever-expanding to meet the exigencies of the times, even to anticipate the future where it could be done, provides enough room for an efficient and flexible response to conditions and circumstances thus assuring the greatest benefits." 6

It finds no specific Constitutional grant for the plain reason that it does not owe its origin to the Charter. Along with the taxing power and eminent domain, it is inborn in the very fact of statehood and sovereignty. It is a fundamental attribute of government that has enabled it to perform the most vital functions of governance. Marshall, to whom the expression has been credited, 7 refers to it succinctly as the plenary power of the State "to govern its citizens."8

"The police power of the State ... is a power coextensive with self- protection, and it is not inaptly termed the "law of overwhelming necessity." It may be said to be that inherent and plenary power in the State which enables it to prohibit all things hurtful to the comfort, safety, and welfare of society." 9

It constitutes an implied limitation on the Bill of Rights. According to Fernando, it is "rooted in the conception that men in organizing the state and imposing upon its government limitations to safeguard constitutional rights did not intend thereby to enable an individual citizen or a group of citizens to obstruct unreasonably the enactment of such salutary measures calculated to ensure communal peace, safety, good order, and welfare." 10 Significantly, the Bill of Rights itself does not purport to be an absolute guaranty of individual rights and

liberties "Even liberty itself, the greatest of all rights, is not unrestricted license to act according to one's will." 11 It is subject to the far more overriding demands and requirements of the greater number.Notwithstanding its extensive sweep, police power is not without its own limitations. For all its awesome consequences, it may not be exercised arbitrarily or unreasonably. Otherwise, and in that event, it defeats the purpose for which it is exercised, that is, to advance the public good. Thus, when the power is used to further private interests at the expense of the citizenry, there is a clear misuse of the power. 12

In the light of the foregoing, the petition must be dismissed.As a general rule, official acts enjoy a presumed valdity. 13 In the absence of clear and convincing evidence to the contrary, the presumption logically stands.The petitioner has shown no satisfactory reason why the contested measure should be nullified. There is no question that Department Order No. 1 applies only to "female contract workers," 14 but it does not thereby make an undue discrimination between the sexes. It is well-settled that "equality before the law" under the Constitution 15does not import a perfect Identity of rights among all men and women. It admits of classifications, provided that (1) such classifications rest on substantial distinctions; (2) they are germane to the purposes of the law; (3) they are not confined to existing conditions; and (4) they apply equally to all members of the same class. 16

The Court is satisfied that the classification made-the preference for female workers — rests on substantial distinctions.As a matter of judicial notice, the Court is well aware of the unhappy plight that has befallen our female labor force abroad, especially domestic servants, amid exploitative working conditions marked by, in not a few cases, physical and personal abuse. The sordid tales of maltreatment suffered by migrant Filipina workers, even rape and various forms of torture, confirmed by testimonies of returning workers, are compelling motives for urgent Government action. As precisely the caretaker of Constitutional rights, the Court is called upon to protect victims of exploitation. In fulfilling that duty, the Court sustains the Government's efforts.The same, however, cannot be said of our male workers. In the first place, there is no evidence that, except perhaps for isolated instances, our men abroad have been afflicted with an Identical predicament. The petitioner has proffered no argument that the Government should act similarly with respect to male workers. The Court, of course, is not impressing some male chauvinistic notion that men are superior to women. What the Court is saying is that it was largely a matter of evidence (that women domestic workers are being ill-treated abroad in massive instances) and not upon some fanciful or arbitrary yardstick that the Government acted in this case. It is evidence capable indeed of unquestionable demonstration and evidence this Court accepts. The Court cannot, however, say the same thing as far as men are concerned. There is simply no evidence to justify such an inference. Suffice it to state, then, that insofar as classifications are concerned, this Court is content that distinctions are borne by the evidence. Discrimination in this case is justified.As we have furthermore indicated, executive determinations are generally final on the Court. Under a republican regime, it is the executive branch that enforces policy. For their part, the courts decide, in the proper cases, whether that policy, or the manner by which it is implemented, agrees with the Constitution or the laws, but it is not for them to question its wisdom. As a co-equal body, the judiciary has great respect for determinations of the Chief Executive or his subalterns, especially when the legislature itself has specifically given them enough room on how the law should be effectively enforced. In the case at bar, there is no gainsaying the fact, and the Court will deal with this at greater length shortly, that Department Order No. 1 implements the rule-making powers granted by the Labor Code. But what should be noted is the fact that in spite of such a fiction of finality, the Court is on its own persuaded that prevailing conditions indeed call for a deployment ban.There is likewise no doubt that such a classification is germane to the purpose behind the measure. Unquestionably, it is the avowed

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objective of Department Order No. 1 to "enhance the protection for Filipino female overseas workers" 17 this Court has no quarrel that in the midst of the terrible mistreatment Filipina workers have suffered abroad, a ban on deployment will be for their own good and welfare.The Order does not narrowly apply to existing conditions. Rather, it is intended to apply indefinitely so long as those conditions exist. This is clear from the Order itself ("Pending review of the administrative and legal measures, in the Philippines and in the host countries . . ." 18), meaning to say that should the authorities arrive at a means impressed with a greater degree of permanency, the ban shall be lifted. As a stop-gap measure, it is possessed of a necessary malleability, depending on the circumstances of each case. Accordingly, it provides:

9. LIFTING OF SUSPENSION. — The Secretary of Labor and Employment (DOLE) may, upon recommendation of the Philippine Overseas Employment Administration (POEA), lift the suspension in countries where there are:1. Bilateral agreements or understanding with the Philippines, and/or,2. Existing mechanisms providing for sufficient safeguards to ensure the welfare and protection of Filipino workers. 19

The Court finds, finally, the impugned guidelines to be applicable to all female domestic overseas workers. That it does not apply to "all Filipina workers" 20 is not an argument for unconstitutionality. Had the ban been given universal applicability, then it would have been unreasonable and arbitrary. For obvious reasons, not all of them are similarly circumstanced. What the Constitution prohibits is the singling out of a select person or group of persons within an existing class, to the prejudice of such a person or group or resulting in an unfair advantage to another person or group of persons. To apply the ban, say exclusively to workers deployed by A, but not to those recruited by B, would obviously clash with the equal protection clause of the Charter. It would be a classic case of what Chase refers to as a law that "takes property from A and gives it to B." 21 It would be an unlawful invasion of property rights and freedom of contract and needless to state, an invalid act. 22 (Fernando says: "Where the classification is based on such distinctions that make a real difference as infancy, sex, and stage of civilization of minority groups, the better rule, it would seem, is to recognize its validity only if the young, the women, and the cultural minorities are singled out for favorable treatment. There would be an element of unreasonableness if on the contrary their status that calls for the law ministering to their needs is made the basis of discriminatory legislation against them. If such be the case, it would be difficult to refute the assertion of denial of equal protection." 23 In the case at bar, the assailed Order clearly accords protection to certain women workers, and not the contrary.)It is incorrect to say that Department Order No. 1 prescribes a total ban on overseas deployment. From scattered provisions of the Order, it is evident that such a total ban has hot been contemplated. We quote:

5. AUTHORIZED DEPLOYMENT-The deployment of domestic helpers and workers of similar skills defined herein to the following [sic] are authorized under these guidelines and are exempted from the suspension.

5.1 Hirings by immediate members of the family of Heads of State and Government;5.2 Hirings by Minister, Deputy Minister and the other senior government officials; and5.3 Hirings by senior officials of the diplomatic corps and duly accredited international organizations.5.4 Hirings by employers in countries with whom the Philippines have [sic] bilateral

labor agreements or understanding.

xxx xxx xxx7. VACATIONING DOMESTIC HELPERS AND WORKERS OF SIMILAR SKILLS--Vacationing domestic helpers and/or workers of similar skills shall be allowed to process with the POEA and leave for worksite only if they are returning to the same employer to finish an existing or partially served employment contract. Those workers returning to worksite to serve a new employer shall be covered by the suspension and the provision of these guidelines.xxx xxx xxx9. LIFTING OF SUSPENSION-The Secretary of Labor and Employment (DOLE) may, upon recommendation of the Philippine Overseas Employment Administration (POEA), lift the suspension in countries where there are:

1. Bilateral agreements or understanding with the Philippines, and/or,2. Existing mechanisms providing for sufficient safeguards to ensure the welfare and protection of Filipino workers. 24

xxx xxx xxxThe consequence the deployment ban has on the right to travel does not impair the right. The right to travel is subject, among other things, to the requirements of "public safety," "as may be provided by law." 25 Department Order No. 1 is a valid implementation of the Labor Code, in particular, its basic policy to "afford protection to labor," 26 pursuant to the respondent Department of Labor's rule-making authority vested in it by the Labor Code.27 The petitioner assumes that it is unreasonable simply because of its impact on the right to travel, but as we have stated, the right itself is not absolute. The disputed Order is a valid qualification thereto.Neither is there merit in the contention that Department Order No. 1 constitutes an invalid exercise of legislative power. It is true that police power is the domain of the legislature, but it does not mean that such an authority may not be lawfully delegated. As we have mentioned, the Labor Code itself vests the Department of Labor and Employment with rulemaking powers in the enforcement whereof. 28

The petitioners's reliance on the Constitutional guaranty of worker participation "in policy and decision-making processes affecting their rights and benefits" 29 is not well-taken. The right granted by this provision, again, must submit to the demands and necessities of the State's power of regulation.The Constitution declares that:Sec. 3. The State shall afford full protection to labor, local and overseas, organized and unorganized, and promote full employment and equality of employment opportunities for all. 30

"Protection to labor" does not signify the promotion of employment alone. What concerns the Constitution more paramountly is that such an employment be above all, decent, just, and humane. It is bad enough that the country has to send its sons and daughters to strange lands because it cannot satisfy their employment needs at home. Under these circumstances, the Government is duty-bound to insure that our toiling expatriates have adequate protection, personally and economically, while away from home. In this case, the Government has evidence, an evidence the petitioner cannot seriously dispute, of the lack or inadequacy of such protection, and as part of its duty, it has precisely ordered an indefinite ban on deployment.The Court finds furthermore that the Government has not indiscriminately made use of its authority. It is not contested that it has in fact removed the prohibition with respect to certain countries as manifested by the Solicitor General.

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The non-impairment clause of the Constitution, invoked by the petitioner, must yield to the loftier purposes targetted by the Government. 31 Freedom of contract and enterprise, like all other freedoms, is not free from restrictions, more so in this jurisdiction, where laissez faire has never been fully accepted as a controlling economic way of life.This Court understands the grave implications the questioned Order has on the business of recruitment. The concern of the Government, however, is not necessarily to maintain profits of business firms. In the ordinary sequence of events, it is profits that suffer as a result of Government regulation. The interest of the State is to provide a decent living to its citizens. The Government has convinced the Court in this case that this is its intent. We do not find the impugned Order to be tainted with a grave abuse of discretion to warrant the extraordinary relief prayed for.WHEREFORE, the petition is DISMISSED. No costs. SO ORDERED.

2. CHAVEZ VS BONTO-PEREZLabor Standards – Standard Employment Contract for Entertainers – LachesChavez is a dancer who was contracted by Centrum Placement & Promotions Corporation to perform in Japan for 6 months. The contract was for $1.5k a month, which was approved by POEA. After the approval of said contract, Chavez entered into a side contract reducing her salary with her Japanese employer through her local manager-agency (Jaz Talents Promotion). The salary was reduced to $500 and $750 was to go to Jaz Talents. In February 1991 (two years after the expiration of her contract), Chavez sued Centrum Placement and Jaz Talents for underpayment of wages before the POEA.The POEA ruled against her. POEA stated that the side agreement entered into by Chavez with her Japanese employer superseded the Standard Employment Contract; that POEA had no knowledge of such side agreement being entered into; that Chavez is barred by laches for sleeping on her right for two years.ISSUE: Whether or not Chavez is entitled to relief.HELD: Yes. The SC ruled that the managerial commission agreement executed by Chavez to authorize her Japanese Employer to deduct her salary is void because it is against our existing laws, morals and public policy. It cannot supersede the standard employment contract approved by the POEA with the following stipulation appended thereto:It is understood that the terms and conditions stated in this Employment Contract are in conformance with the Standard Employment Contract for Entertainers prescribed by the POEA under Memorandum Circular No. 2, Series of 1986. Any alterations or changes made in any part of this contract without prior approval by the POEA shall be null and void;The side agreement which reduced Chavez’s basic wage is null and void for violating the POEA’s minimum employment standards, and for not having been approved by the POEA. Here, both Centrum Placement and Jaz Talents are solidarily liable.Laches does not apply in the case at bar. In this case, Chavez filed her claim well within the three-year prescriptive period for the filing of money claims set forth in Article 291 of the Labor Code. For this reason, laches is not applicable.

3. People of the Philippines vs. Domingo Panis GR No. L–58674–77, July 11, 1990

FACTS:

On January 9, 1981, four information were filed in the in the Court of First Instance (CFI) of Zambales and Olongapo City alleging that herein private respondent Serapio Abug, "without first securing a license from the Ministry of Labor as a holder of authority to operate a fee-charging employment agency, did then and there wilfully, unlawfully and criminally operate a private fee charging employment agency by charging fees and expenses (from) and promising employment in Saudi Arabia" to four separate individuals. Abug filed a motion to quash

contending that he cannot be charged for illegal recruitment because according to him, Article 13(b) of the Labor Code says there would be illegal recruitment only "whenever two or more persons are in any manner promised or offered any employment for a fee.”

Denied at first, the motion to quash was reconsidered and granted by the Trial Court in its Orders dated June 24, 1981, and September 17, 1981. In the instant case, the view of the private respondents is that to constitute recruitment and placement, all the acts mentioned in this article should involve dealings with two or more persons as an indispensable requirement. On the other hand, the petitioner argues that the requirement of two or more persons is imposed only where the recruitment and placement consists of an offer or promise of employment to such persons and always in consideration of a fee.

ISSUE:

Whether or not Article 13(b) of the Labor Code provides for the innocence or guilt of the private respondent of the crime of illegal recruitment

COURT RULING:

The Supreme Court reversed the CFI’s Orders and reinstated all four information filed against private respondent.

The Article 13(b) of the Labor Code was merely intended to create a presumption, and not to impose a condition on the basic rule nor to provide an exception thereto.

Where a fee is collected in consideration of a promise or offer of employment to two or more prospective workers, the individual or entity dealing with them shall be deemed to be engaged in the act of recruitment and placement. The words "shall be deemed" create the said presumption.

4. PEOPLE VS CAPT. GASACAO (2005) G.R. 168449 Facts:Appellant was the Crewing Manager of Great Eastern Shipping Agency Inc., a licensed local manning agency, while his nephew and co-accused, Jose Gasacao, was the President. As the crewing manager, appellant's duties included receiving job applications, interviewing the applicants and informing them of the agency's requirement of payment of performance or cash bond prior to deployment.On August 4, 2000, appellant and Jose Gasacao were charged with Large Scale Illegal Recruitment defined under Section 6, paragraphs (a), (l) and (m) of Republic Act (RA) No. 8042 or the Migrant Workers and Overseas Filipinos Act of 1995, and penalized under Section 7 (b) of the same law, before the RTC of Quezon City.Only the appellant was arrested while Jose Gasacao remained at large. When arraigned, appellant pleaded not guilty to the offense charged. Thereafter, trial on the merits ensued. On March 5, 2001, the RTC of Quezon City, Branch 218, rendered its Joint Decision convicting appellant of Large Scale Illegal Recruitment in Crim. Case No. Q-00-94240 and acquitting him of the charge in Crim. Case No. Q-00-94241.Conformably with our pronouncement in People v. Mateo, 6 which modified pertinent provisions of the Rules of Court insofar as they provide for direct appeals from the RTC to the Supreme Court in cases where the penalty imposed is death, reclusion perpetua or life imprisonment, as in this case, as well as this Court's Resolution dated September 19, 1995, we resolved on February 2, 2005 to transfer the case to the Court of Appeals for appropriate action and disposition.Issue: WON an error attended the trial court's findings, as affirmed by the Court of Appeals, that appellant was guilty beyond reasonable doubt of the crime of large scale illegal recruitment.Held: ILLEGAL RECRUITMENTSec. 6. DEFINITIONS. — For purposes of this Act, illegal recruitment shall mean any act of canvassing, enlisting, contracting, transporting,

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utilizing, hiring, procuring workers and includes referring, contract services, promising or advertising for employment abroad, whether for profit or not, when undertaken by a non-licensee or non-holder of authority contemplated under Article 13(f) of Presidential Decree No. 442, as amended, otherwise known as the Labor Code of the Philippines: Provided, that such non-licensee or non-holder who, in any manner, offers or promises for a fee employment abroad to two or more persons shall be deemed so engaged. It shall likewise include the following acts, whether committed by any persons, whether a non-licensee, non-holder, licensee or holder of authority.(a) To charge or accept directly or indirectly any amount greater than the specified in the schedule of allowable fees prescribed by the Secretary of Labor and Employment, or to make a worker pay any amount greater than that actually received by him as a loan or advance;(l) Failure to actually deploy without valid reason as determined by the Department of Labor and Employment; and(m) Failure to reimburse expenses incurred by the workers in connection with his documentation and processing for purposes of deployment, in cases where the deployment does not actually take place without the worker's fault. Illegal recruitment when committed by a syndicate or in large scale shall be considered as offense involving economic sabotage. Illegal recruitment is deemed committed by a syndicate carried out by a group of three (3) or more persons conspiring or confederating with one another. It is deemed committed in large scale if committed against three (3) or more persons individually or as a group.REPUBLIC ACT NO. 8042 (THE MIGRANT WORKERS AND OVERSEAS FILIPINO ACT OF 1995); LICENSE DIFFERENTIATED FROM AUTHORITY - A license is a document issued by the Department of Labor and Employment (DOLE) authorizing a person or entity to operate a private employment agency, while an authority is a document issued by the DOLE authorizing a person or association to engage in recruitment and placement activities as a private recruitment entity. However, it appears that even licensees or holders of authority can be held liable for illegal recruitment should they commit any of the above-enumerated acts.Thus, it is inconsequential that appellant committed large scale illegal recruitment while Great Eastern Shipping Agency, Inc. was holding a valid authority. We thus find that the court below committed no reversible error in not appreciating that the manning agency was a holder of a valid authority when appellant recruited the private complainants.There is no merit in appellant's contention that he could not be held liable for illegal recruitment since he was a mere employee of the manning agency, pursuant to Section 6 of RA No. 8042 which provides:The persons criminally liable for the above offenses are the principals, accomplices and accessories. In case of juridical persons, the officers having control, management or direction of their business shall be liable.ILLEGAL RECRUITMENT IN LARGE SCALE, CREWING MANAGER OF A SHIPPING AGENCY PROMISED THE COMPLAINANTS THAT THEY WILL BE DEPLOYED ABROAD AFTER THEY HAVE PAID THE CASH BOND — Contrary to appellant's claim, he is not a mere employee of the manning agency but the crewing manager. As such, he receives job applications, interviews applicants and informs them of the agency's requirement of payment of performance or cash bond prior to the applicant's deployment. As the crewing manager, he was at the forefront of the company's recruitment activities.The testimonies of the private complainants clearly established that appellant is not a mere employee of Great Eastern Shipping Agency Inc. As the crewing manager, it was appellant who made representations with the private complainants that he can secure overseas employment for them upon payment of the cash bond.It is well settled that to prove illegal recruitment, it must be shown that appellant gave complainants the distinct impression that he had the power or ability to send complainants abroad for work such that the latter were convinced to part with their money in order to be employed. 10 Appellant's act of promising the private complainants

that they will be deployed abroad within three months after they have paid the cash bond clearly shows that he is engaged in illegal recruitment. AN EMPLOYEE OF A COMPANY OR CORPORATION ENGAGED THEREIN MAY BE HELD LIABLE AS PRINCIPAL TOGETHER WITH HIS EMPLOYER. — The trial court's appreciation of the complainants' testimonies deserves the highest respect since it was in a better position to assess their credibility. Even assuming that appellant was a mere employee, such fact is not a shield against his conviction for large scale illegal recruitment. In the case of People vs. Cabais, we have held that an employee of a company or corporation engaged in illegal recruitment may be held liable as principal, together with the employer, if it is shown that he actively and consciously participated in the recruitment process. Clearly, the acts of appellant vis-à-vis the private complainants, either as the crewing manager of Great Eastern Shipping Agency Inc. or as a mere employee of the same, constitute acts of large scale illegal recruitment which should not be countenanced.

We find no reason to deviate from the findings of the trial court that appellant is guilty beyond reasonable doubt of large scale illegal recruitment. It was established that he promised overseas employment to five applicants, herein private complainants. He interviewed and required them to complete and submit documents purportedly needed for their employment. Although he informed them that it is optional, he collected cash bonds and promised their deployment notwithstanding the proscription against its collection under Section 60 of the Omnibus Rules and Regulations Implementing R.A. No. 8042 13 which state that:SEC. 60. Prohibition on Bonds and Deposits. — In no case shall an employment agency require any bond or cash deposit from the worker to guarantee performance under the contract or his/her repatriation.

5. PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. DOLORES DE LEON Y MISAJON, accused-appellant.D E C I S I O NROMERO, J.:

Appellant Dolores de Leon was charged with violation of Article 38 (a) of Presidential Decree 1412 in relation to Article 15 (b) and (c) of the Labor Code in an information which reads:"That in or about and during the period comprised between July 6, 1992 and September 30, 1992, inclusive, in the City of Manila, Philippines, the said accused, representing herself to have the capacity to contract, enlist and transport Filipino workers for employment in Jeddah/Saudi Arabia, did then and there wilfully and unlawfully for a fee, recruit and promise employment/job placement in said country to Roberto Porio y Silva, Ambrosio Miler y dela Cruz, Rafael Laurente y Enriquez, Olimpia Guillena y Daliopac, Cipriano Perez y Bongoy, Charlene Tatlonghari y Sota, Elvira Banta y Puno, Purita Joaquin y Flores, Loreta Tatlonghari y Toboro, Joseph Chavez y Cater, Analiza Tatlonghari y Toboro, Jaime Indaya y Lambozon, Manuel Cabusao y Parungao, Edgardo Alagao y dela Cruz, Raymunda Miguelles y Balaba, Desiree dela Cruz y Laconsay, Felicidad Galvez y Ducusin, Exequiel Miguelles y Cirunay, Rosenda Jose y Perez, Guillermo Lampa y Tansueco, Edmar Alagao y dela Cruz, Rommel Lozano y Cortez, Rodante Sunico y Galvez and Romeo Porio y Silva, without first having secured the required license or authority from the Department of Labor and Employment."

The prosecution's evidence shows that:Appellant is a former overseas contract worker placed by All Seasons Manpower for employment as a midwife in Kuwait from 1989 to September 1991 and as a nursing aide in Jeddah from February 1992 to June 1992.On August 14, 1992, appellant went to the house of Mr. Tatlonghari and offered him and his daughter-in-law, Charlene Tatlonghari, placement in Jeddah, Saudi Arabia. Although Charlene already had a

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pending application in another agency, she still submitted her bio-data to appellant.On August 15, 1992, appellant told Charlene that she would be hired as a clerk with a monthly salary of US$450.00. On August 16, 1992, Charlene withdrew her passport from the other agency and gave it to appellant together with P1,000.00, which was P400.00 short of the amount required by appellant allegedly for travel tax. No receipt was issued but appellant promised Charlene's departure on August 28, 1992.[1]

The scheduled departure was postponed as were the succeeding schedules, prompting Charlene and the other applicants to go to All Seasons Manpower in Makati. They saw appellant there and she advised them to attend a seminar at the Philippine Overseas Employment Agency (POEA). However, they were warned not to talk with anyone in the said government agency. Subsequently, she learned that appellant was arrested in one of the lodging houses in Sta. Cruz, Manila where all the applications and other documents were found beneath the bed. When she saw appellant at the police station, appellant told Charlene not to join the other accusers who caused her arrest.[2]

Rodante Sunico, a food server at Jollibee along Rizal Avenue, Manila met appellant on August 15, 1992. Appellant was introduced as a recruiter who had already sent five workers to the Middle East. Sunico gave appellant his bio-data and other documents after she promised him that he would be included as a nurse in the second batch of workers for Saudi Arabia.On August 21, 1992, Sunico went to the house of Mr. Tatlonghari where he gave appellant the amount of P5,400.00 allegedly for processing his passport and payment of travel tax.[3] Sunico was not issued a receipt but appellant required him to come back on the eve of his scheduled departure on August 28, 1992. This "departure" was, however, postponed several times. Later, Sunico learned from Charlene Tatlonghari that appellant was arrested and detained by the police. Sunico confronted appellant who promised to settle the obligation but failed;[4] whereupon he went to All Seasons Manpower in Makati where he was told that the said agency did not know appellant.Guillermo Lampa, a tricycle driver, was recruited by appellant on August 4, 1992. He was offered a janitorial job in Jeddah, Saudi Arabia with a monthly salary of US$300.00. Lampa and his wife gave appellant P1,000.00 for medical expenses and another P1,000.00 for a joint account with his wife. No receipt was issued by appellant but she promised him that he would leave in two weeks' time and that All Seasons Manpower would pay for his plane ticket.[5] Lampa never left as promised and on September 27, 1992, he learned that appellant had been arrested. At police headquarters, appellant promised to refund Lampa's money but failed to do so.Manuel Cabusao, a carpenter, met appellant through one Desiree de la Cruz. Also present then were his brother Leonardo Cabusao, Guillermo Lampa, Rommel Losano, Joseph Chavez and Analiza Tatlonghari. Appellant offered him a janitorial job in a hospital in Saudi Arabia with a monthly salary of US$300.00. He gave appellant P2,700.00 for the processing of the travel documents. No receipt was issued by appellant allegedly because the amount involved was small and because the amount he should have paid was P5,000.00. Appellant scheduled his departure on September 11, 1992 but postponed the same. He then started looking for appellant until he learned that she was staying in a hotel in Bambang, Jose Abad Santos, Tondo, Manila. He relayed the information to his co-applicants who sought the help of the Barangay Chairman in arresting appellant.[6] During the preliminary investigation, appellant promised to refund the amount he paid, but failed to do so.Joseph Chavez, a bakery caretaker in Bambang Market, met appellant on September 6, 1992 through the wife of his co-applicant Guillermo Lampa. Appellant represented herself as a recruiter of All Seasons Manpower in Makati and offered him a janitorial job in Bahrain because two applicants were rejected. He gave appellant P6,500.00 supposedly for medical, processing and placement fees. Appellant did not issue a receipt because she was in a hurry. His departure was scheduled on September 22, 1992 and when nothing happened, he

waited for appellant. Later, he learned that she had been arrested by barangay officials. Like the other applicants, he executed a sworn statement.[7]

Roberto Porio, an electrician, went to the house of appellant on July 9, 1992 in the belief that appellant, as alleged owner of All Seasons Manpower in Makati, was recruiting workers for abroad. He applied as nursing aide and gave appellant his NBI clearance, passport, pictures and P2,300.00.[8] Since he trusted appellant, he did not ask her for a receipt. Thereafter, appellant disappeared.On September 27, 1992, he saw appellant at police headquarters where she promised to refund his money. He executed an affidavit stating the circumstances of the illegal recruitment.The prosecution also presented POEA records, duly identified by Visitacion Carreon, POEA Senior Officer, showing that All Seasons Manpower International Services is a licensed placement agency.[9]However, appellant's name was not among the list of personnel submitted by said agency to the POEA.

On April 28, 1993, the trial court rendered a decision, the dispositive portion of which states:"WHEREFORE, judgment is hereby rendered finding the accused Dolores de Leon guilty of the crime of Illegal Recruitment in large scale and hereby sentences her to suffer the penalty of life imprisonment and to pay a fine of P100,000.00, and further, for the said accused to indemnify the complainants as follows -1. To Rodante Sunico the sum of P5,400.00 with interest at the legal rate from October 22, 1992 until the same is fully paid;2. To Charlene Tatlonghari the sum of P1,000.00 with interest at the legal rate from October 22, 1992 until the same is fully paid;3. To Guillermo Lampa the sum of P2,000.00 with interest at the legal rate from October 22, 1992 until the same is fully paid;4. To Manuel Cabusao the sum of P2,700.00 with interest at the legal rate from October 22, 1992 until the same is fully paid;5. To Joseph Chavez the sum of P6,500.00 with interest at the legal rate from October 22, 1992 until the same is fully paid; and6. To Roberto Porio the sum of P2,300.00 with interest at the legal rate from October 22, 1992 until the same is fully paid.Costs against the accused.SO ORDERED."[10]

Appellant now questions the said decision of the trial court saying that it erred in not acquitting her of the offense charged on the ground that her guilt was not proved beyond reasonable doubt. Appellant asserts that it was not she but her suitor, Rolando Clemente, who received the payments from the complaining witnesses. She explained further that all she did was to accompany them to All Seasons Manpower in an effort to help them find jobs abroad.

We find appellant's contentions unworthy of belief.In People v. Benemerito,[11] we said "Illegal recruitment is defined

in Article 38 of the Labor Code, as amended, as follows: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 Ministry 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.Article 13(b) of the same 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

5

manner, offers or promises for a fee employment to two or more persons shall be deemed engaged in recruitment and placement."

To prove illegal recruitment, only two elements need be shown: (1) the person charged with the crime must have undertaken recruitment activities; and (2) the said person does not have a license or authority to do so.

A license is a document issued by the Department of Labor and Employment (DOLE) authorizing a person or entity to operate a private employment agency, while an authority is a document issued by the DOLE authorizing a person or association to engage in recruitment and placement activities as a private recruitment agency.[12]

Large scale illegal recruitment is punishable by life imprisonment and a fine of P100,000.00 under Article 39(a) of the Labor Code.[13]

In the instant case, appellant clearly committed large scale illegal recruitment as she recruited at least three persons, giving them the impression that she had the capability of sending them abroad for assured jobs in Saudi Arabia, and collecting various amounts allegedly for processing and placement fees without license or authority to do so.

Against the prosecution's overwhelming evidence, appellant could only offer a bare denial and an obviously concocted story that it was her suitor who actually recruited the various complainants and not she. This suitor was never presented to corroborate her statements, nor were other evidence presented to cast even an iota of doubt on the testimony of the prosecution's witnesses.

After a thorough and painstaking review, the Court is satisfied that there is nothing in the records to signify that the trial court ignored or misappreciated substantial facts as would warrant a reversal of its findings and conclusions.[14]

As we declared in People v. Naparan, Jr.:[15]

"Nitong mga nakaraang buwan, ang pansin ng sambayanan ay natuon sa mga krimen na karumaldumal na katulad ng pagpatay at pagsasamantala sa ating mga kababaihan. Wari ay nakaligtaan natin ang mga salarin na di nahuhuli sa mga mamamatay tao. Sila rin ay nagsasamantala sa mga inosente at walang malay. Ang kaibhan nga lamang ay ang kanilang biktima ay yaong ating mga kababayan na nangangarap na mangibang bayan upang sila ay mahango sa karalitaan sampu ng kanilang pamilya.Sa masidhi nilang hangarin, halos hindi nagdadalawang-isip kapag may balanang nangangako na ipadadala sila sa mga bayang nakaririwasa kung sila ay magbabayad ng sapat na salapi. Upang mapaniwala sila, ang mga may masasamang tangka ay nagpapanggap na sila ay malakas at may koneksyon sa mga Embahada ng mga bayang ito. Hindi lamang madudulas ang kanilang dila. Umaasta silang maykaya. Naroong sabihin na nakatira sila sa otel o pook ng mayayaman. Kapag nakikipagkita sa kanilang kliyente ay magara ang suot at nakakotse. Anupat ang mga pobreng nangangarap ay gagawin ang lahat ng makakaya upang makapagbayad ng hinihinging pamasahe sa eroplano.Kadalasan ay nangungutang sila o ang mga magulang nila sa 'sinco-seis;' o dili kaya'y nagsasangla ng lupain o nagbibili ng mga ari-ariang gaya ng kalabaw. Kanila namang nahihimok ang kamaganakan nila na tumulong sapagkat nangangakong magpapadala ng higit na maraming kuwarta na pambayad sa kanilang utang o dili kaya ay pampaaral sa mga nakababatang kapatid.Sa oras na nakapagbitiw ng salapi ang biktima, ang manlilinlang ay dagling nawawala na parang bula. Sapagkat karamihan sa kanila ay 'illegal recruiter' at walang lisensya sa Philippine Overseas Employment Administration (POEA), hindi na matutunton ang kanilang bakas.Totoong napakarami na ang ating kaawa-awang kababayan na napagsamantalahan na ng gayon. Nakalulungkot na kahit na magbabala ang pamahalaan at ang mga opisinang kinauukulan, hindi rin dinidinggin ng mga nais na mapabuti ang kalagayan nila sa buhay sa pamamagitan ng pangingibang bayan.Napapanahon nang iparating sa mga salarin na iyan na hindi pahihintulutan ng pamahalaan ang gayong malawakang pangloloko sa mga maralita na masasabing ang kasalanan lamang ay 'naghangad ng kagitna, isang salop ang nawala." Kami ay maaasahang magpataw ng akma at nauukol na parusa na bilanggo habang buhay at multa sa halagang Isang Daang Libong Piso (P100,000.00) sa katulad ng

nasasakdal sa kasong itong nakasalang sa Kataastaasang Hukuman ngayon. Umaasa kaming ito ay magsisilbing halimbawa sa mga walang awa nating kababayan na patuloy ang gawang panlilinlang sa kanilang kapwa Pilipino."

WHEREFORE, the judgment of the trial court finding Dolores de Leon GUILTY beyond reasonable doubt of the crime of illegal recruitment in large scale is hereby AFFIRMED.

SO ORDERED.6. SEAGULL MARITIME CORP. AND PHILIMARE SHIPPING & EQUIPMENT SUPPLY vs NERRY D. BALATONGAN, NATIONAL LABOR RELATIONS COMMISSION AND PHILIPPINE OVERSEAS EMPLOYMENT ADMINISTRATIONOn November 2, 1982, a "crew Agreement" was entered into by private respondent Nerry D. Balatongan and Philimare Shipping and Equipment Supply (hereinafter called Philimare) whereby the latter employed the former as able seaman on board its vessel "Santa Cruz" (renamed "Turtle Bay") with a monthly salary of US $ 300.00. Said agreement was processed and approved by the National Seaman's Board (NSB) on November 3, 1982. 1

While on board said vessel the said parties entered into a supplementary contract of employment on December 6, 1982 2 which provides among others:

1. The employer shall be obliged to insure the employee during his engagement against death or permanent invalidity caused by accident on board up to:

US $ 40,000 - for death caused by accidentUS $ 50,000 - for permanent total disability caused by accident. 3

On October 6, 1983 Balatongan met an accident in the Suez Canal, Egypt as a result of which he was hospitalized at the Suez Canal Authority Hospital. Later, he was repatriated to the Philippines and was hospitalized at the Makati Medical Center from October 23, 1983 to March 27, 1984. On August 19, 1985 the medical certificate was issued describing his disability as "permanent in nature."Balatongan demanded payment for his claim for total disability insurance in the amount of US $ 50,000.00 as provided for in the contract of employment but his claim was denied for having been submitted to the insurers beyond the designated period for doing so.Thus, Balatongan filed on June 21, 1985 a complaint against Philimare and Seagull Maritime Corporation (hereinafter called Seagull) in the Philippine Overseas Employment Administration (POEA) for non-payment of his claim for permanent total disability with damages and attorney's fees.After the parties submitted their respective position papers with the corresponding documentary evidence, the officer-in-charge of the Workers Assistance and Adjudication Office of the POEA rendered a decision on May 2, 1986, the dispositive part of which reads as follows:

WHEREFORE, premises considered, respondents are hereby ordered to pay complainant the amount of US $ 50,000.00 representing permanent total disability insurance and attorney's fees at 10% of the award. Payment should be made in this Office within ten (10) days from receipt hereof at the prevailing rate of exchange. This Office cannot however rule on damages, having no jurisdiction on the matter.SO ORDERED. 4

Seagull and Philimare appealed said decision to the National Labor Relations Commission (NLRC) on June 4, 1986. Pending resolution of their appeal because of the alleged transfer of the agency of Seagull to Southeast Asia Shipping Corporation, Seagull filed on April 28, 1987 a Motion For Substitution/Inclusion of Party Respondent which was opposed by Balatongan. 5 This was followed by an ex-parte motion for leave to file third party complaint on June 4, 1987 by Seagull. A decision was promulgated on December 7, 1987 denying both motions and dismissing the appeal for lack of merit. 6 A motion for

6

reconsideration of said decision was denied for lack of merit in a resolution dated February 26, 1988. 7

Hence, Seagull and Philimare filed this petition for certiorari with a prayer for the issuance of a temporary restraining order based on the following grounds:

1. Respondent POEA erred in applying the Supplemental Contract;2. Respondents POEA and NLRC acted with grave abuse of discretion in holding that the Supplemental Contract was signed on board MV Santa Cruz by and between private respondent and your petitioner; and3. Respondent NLRC acted with grave abuse of discretion in not giving due course to your petitioners' Motion for Leave to File Third Party Complaint as well as their Motion for Inclusion/Substitution of respondents. 8

On March 21, 1988, the Court issued a temporary restraining order enjoining respondents from enforcing the questioned decision and resolution of public respondents.Petitioners argue that prior to private respondent's departure he executed a crew agreement on November 2, 1982 which was duly approved by the POEA; that the supplementary contract of employment that was entered into on board the vessel "Turtle Bay" which provides for a US $ 50,000.00 insurance benefit in case of permanent disability was neither approved nor verified by respondent POEA; and that the same violates Article 34(i) of the Labor Code, as amended, which provides as follows:

Art. 34. Prohibited Practices. - It shall be unlawful for any individual, entity, licensee, or holder of authority:xxx xxx xxxxxx xxx xxx(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 period of expiration of the same without the approval of the Department of Labor.

Petitioners also call attention to Article VIII, paragraph 2 of the Supplementary Contract which provides as follows:

2. Notwithstanding his claim against the insurers the employee hereby expressly waives all claims of his own or his heirs for compensation of damages due to death or permanent invalidity which he suffered during his engagement against the employers ... unless his death or permanent invalidity has been caused by willful act of any of the above-named persons. 9

Petitioners stress that while public respondents upheld the applicability of said supplementary contract insofar as it increased the benefits to private respondent, public respondents considered the provision on the waiver against all claims by private respondent to be contrary to public policy.In its questioned decision dated December 7, 1987, the respondent NLRC made the following disquisition:

The focal issue for determination is the validity and enforceability of the second contract of employment entered into by and between complainant and respondents on board the vessel where the former had served as a member of its complement despite the absence of NSB verification or approval. With respect to the findings of facts in the appealed decision, We consider the same as duly supported by substantial evidence and the admissions of the parties in their pleadings.Much stress and emphasis are made by the respondents in their appeal that this claim has no

legal basis or footing inasmuch as the second contract of employment containing a total disability insurance benefit of US $ 50,000.00, much more than that embodied in the first contract of employment which was approved by the defunct NSB, was not verified or approved by the latter. Accordingly, the respondents posit the argument that subject claim may not prosper pursuant to the provisions of Art. 34(i) of the Labor Code, as amended, which provides that it shall be unlawful for any individual, entity, licensee, or holder of authority '(T)o 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 period of expiration of the same without the approval of the Department of Labor.Did the POEA commit a reversible error when it considered the second contract of employment as valid sans any verification or approval thereof by the NSB? Our answer to this query is in the negative. Apparently, the intention of the law when Art. 34 of the Labor Code was enacted is to provide for the prohibited and unlawful practices relative to recruitment and placement. As shown in the 'Explanatory Note' of Parliamentary Bill No. 4531, pertaining to Art. 34 (supra), thus:Many of the provisions are already existing and were simply restated. Some however were restated with modifications and new ones were introduced to reflect what in the past have been noted to be pernicious practices which tend to place workers at a disadvantage.'it is indubitably clear that the purpose of having overseas contracts of employment approved by the NSB(POEA) is whether or not such contracts conform to the minimum terms and conditions prescribed by the NSB (POEA). In other words, the law did not at all prohibit any alteration which provided for increases in wages or other benefits voluntarily granted by the employer. Precisely, under Section 2, Rule 1, Book V of the Rules and Regulations of the POEA, '(t)he standard format of employment contracts shall set the minimum standards of the terms and conditions of employment. All employers and principals shall adopt the model contract in connection with the hiring of workers without prejudice to their adopting other terms and conditions of employment over and above the minimum standards of the Administration.' Where, as here, it is admitted that the second contract although not verified or approved by the NSB (POEA) granted more benefits by way of total disability insurance to the complainant, the respondents may not be allowed to disvow their own voluntary acts by insisting that such beneficial contract in favor of the seaman is null and void. (Emphasis supplied.) 10

We agree.The supplementary contract of employment was entered into between petitioner and private respondent to modify the original contract of employment The reason why the law requires that the POEA should approve and verify a contract under Article 34(i) of the Labor Code is to insure that the employee shall not thereby be placed in a disadvantageous position and that the same are within the minimum standards of the terms and conditions of such employment contract set by the POEA. This is why a standard format for employment contracts has been adopted by the Department of Labor. However, there is no prohibition against stipulating in a contract more benefits to

7

the employee than those required by law. Thus, in this case wherein a "supplementary contract" was entered into affording greater benefits to the employee than the previous one, and although the same was not submitted for the approval of the POEA, the public respondents properly considered said contract to be valid and enforceable. Indeed, said pronouncements of public respondents have the effect of an approval of said contract. Moreover, as said contract was voluntarily entered into by the parties the same is binding between them. 11 Not being contrary to law, morals, good customs, public policy or public order, its validity must be sustained. 12 By the same token, the court sustains the ruling of public respondents that the provision in the supplementary contract whereby private respondent waives any claim against petitioners for damages arising from death or permanent disability is against public policy, oppressive and inimical to the rights of private respondent. The said provision defeats and is inconsistent with the duty of petitioners to insure private respondent against said contingencies as clearly stipulated in the said contract.Petitioners however argue that they could not have entered into said supplementary contract of employment as Philimare was a mere manning agent in the Philippines of the shipping company managed by Navales Shipping Management and Marine Consultant (Pte) Ltd., its principal. Petitioners assert that the said supplementary contract was entered into by private respondent with their principal, Navales Shipping Management and Marine Consultant (Pte) Ltd. on board the vessel Turtle Bay so petitioners cannot be held responsible thereunder.This Court is not a trier of facts and the findings of the public respondents are conclusive in this proceeding. Public respondents found that petitioner Philimare and private respondent entered into said supplementary contract of employment on December 6, 1982. Assuming for the sake of argument that it was petitioners' principal which entered into said contract with private respondent, nevertheless petitioner, as its manning agent in the Philippines, is jointly responsible with its principal thereunder. 13

There is no question that under the said supplementary contract of employment, it is the duty of the employer, petitioners herein, to insure the employee, during his engagement, against death and permanent invalidity caused by accident on board up to $ 50,000.00. Consequently, it is also its concomitant obligation to see to it that the claim against the insurance company is duly filed by private respondent or in his behalf, and within the time provided for by the terms of the insurance contract.In this case, the private respondent met the accident on October 6, 1983. Since then, he was hospitalized at the Suez Canal Authority Hospital and thereafter be was repatriated to the Philippines wherein he was also hospitalized from October 22, 1983 to March 27, 1984. It was only on August 19, 1985 that he was issued a medical certificate describing his disability to be permanent in nature. It was not possible for private respondent to file a claim for permanent disability with the insurance company within the one-year period from the time of the injury, as his disability was ascertained to be permanent only thereafter. Petitioners did not exert any effort to assist private respondent to recover payment of his claim from the insurance company. They did not even care to dispute the finding of the insurer that the claim was not flied on time. 14 Petitioners must, therefore, be held responsible for its omission, if not negligence, by requiring them to pay the claim of private respondent.The Court finds that the respondent NLRC did not commit a grave abuse of discretion in denying petitioners, motion for leave to file third-party complaint and substitution inclusion of party respondent. Such motion is largely addressed to the discretion of the said Commission. Inasmuch as the alleged transfer of interest took place only after the POEA had rendered its decision, the denial of the motion so as to avoid further delay in the settlement of the claim of private respondent was well-taken. At any rate, petitioners may pursue their claim against their alleged successor-in-interest in a separate suit.WHEREFORE, the petition is hereby DISMISSED for lack of merit and the temporary restraining order issued by this Court on March 21, 1988 is hereby LIFTED. No costs. This decision is immediately executory. SO ORDERED.

7. STRONGHOLD INSURANCE COMPANY, INC. vs CA : G.R. No. 88050 January 30, 1992 (full case)The petitioner invokes due process to escape liability on a surety bond executed for the protection of a Filipino seaman. It is a familiar argument that will be denied, in light of the following findings.Acting on behalf of its foreign principal, Qatar National Fishing Co., Pan Asian Logistics and Trading, a domestic recruiting and placement agency, hired Adriano Urtesuela as captain of the vessel M/V Oryx for the stipulated period of twelve months. The required surety bond, in the amount of P50,000.00, was submitted by Pan Asian and Stronghold Insurance Co., Inc., the herein petitioner, to answer for the liabilities of the employer. Urtesuela assumed his duties on April 18, 1982, but three months later his services were terminated and he was repatriated to Manila. He thereupon filed a complaint against Pan Asian and his former employer with the Philippine Overseas Employment Administration for breach of contract and damages.In due time, the POEA rendered a decision in his favor for the amount of P6,374.94, representing his salaries for the unexpired portion of his contract and the cash value of his unused vacation leave, plus attorney's fees and costs, which the respondents were required to pay. The judgment eventually became final and executory, not having been appealed on time. Pursuant thereto, a writ of execution was issued against Pan Asian but could be enforced only against its cash bond of P10,000.00, the company having ceased to operate. Urtesuela then filed a complaint with the Insurance Commission against Stronghold on the basis of the aforementioned surety bond and prayed for the value thereof plus attorney's fees and litigation costs.Under the bond, the petitioner and Pan Asian undertook —

To answer for all liabilities which the Philippine Overseas Employment Administration may adjudge/impose against the Principal in connection with the recruitment of Filipino seamen.It is understood that notice to the Principal is notice to the surety. (Exh. "I-2").WHEREAS, the liability of the surety under this Bond shall in no case exceed the sum of PESOS: FIFTY THOUSAND ONLY (P50,000.00) Philippine Currency.

After hearing, the Insurance Commission held that the complaint should be reformed because the provisions in the surety bond were not stipulations pour autrui to entitle Urtesuela to bring the suit himself. It held that the proper party was the POEA. 1 This ruling was reversed on appeal by the respondent court in its decision dated April 20, 1989. 2 It was there declared that, as the actual beneficiary of the surety bond, Urtesuela was competent to sue Stronghold, which as surety was solidarily liable with Pan Asian for the judgment rendered against the latter by the POEA.The petitioner asks for reversal of the Court of Appeals. It submits that the decision of the POEA is not binding upon it because it was not impleaded in the complaint; it was not notified thereof nor did it participate in the hearing; and it was not specifically directed to pay the damages awarded to the complainant.In support of its posture, the petitioner cites abundant jurisprudence, particularly Aguasin v. Velasquez, 3 where the Court held:

If the surety is to be bound by his undertaking, it is essential according to Section 10 of Rule 62 in connection with Section 20 of Rule 59 of the Rules of Court that the damages be awarded upon application and after proper hearing and included in the judgment. As a corollary to these requirements, due notice to the plaintiff and his surety setting forth the facts showing his right to damages and the amount thereof under the bond is indispensable. This has to be so if the surety is not to be condemned or made to pay without due process of law. It is to be kept in mind that the surety in this case was not a party to the action and had no notice of or intervention in the trial. It seems elementary that before being condemned to

8

pay, it was the elementary right of the surety to be heard and to be informed that the party seeking indemnity would hold it liable and was going to prove the grounds and extent of its liability. This case is different from those in which the surety, by law and/or by the terms of his contract, has promised to abide by the judgment against the principal and renounced the right to be sued or cited.

The Court has gone over the decision and finds that the petitioner is "hoist by its own petard." For as the quoted excerpt itself says, the case is "different from those in which the surety, by law and/or by the terms of his contract, has promised to abide by the judgment against the principal and renounced the right to be sued or cited."In the surety bond, the petitioner unequivocally bound itself:

To answer for all liabilities which the Philippine Overseas Employment Administration may adjudge/impose against the Principal in connection with the recruitment of Filipino seamen.

Strictly interpreted, this would mean that the petitioner agreed to answer for whatever decision might be rendered against the principal, whether or not the surety was impleaded in the complaint and had the opportunity to defend itself. There is nothing in the stipulation calling for a direct judgment against the surety as a co-defendant in an action against the principal. On the contrary, the petitioner agreed "to answer for all liabilities" that "might be adjudged or imposed by the POEA against the Principal."But even if this interpretation were rejected, considering the well-known maxim that "the surety is a favorite of the law," the petitioner would still have to explain its other agreement that "notice to the Principal is notice to the surety." This was in fact another special stipulation typewritten on the printed form of the surety bond prepared by the petitioner. Under this commitment, the petitioner is deemed, by the implied notice, to have been given an opportunity to participate in the litigation and to present its side, if it so chose, to avoid liability. If it did not decide to intervene as a co-defendant (and perhaps also as cross-claimant against Pan Asian), it cannot be heard now to complain that it was denied due process.The petitioner contends, however, that the said stipulation is unconstitutional and contrary to public policy, because it is "a virtual waiver" of the right to be heard and "opens wide the door for fraud and collusion between the principal and the bond obligee" to the prejudice of the surety. Hence, disregarding the stipulation, the petitioner should be deemed as having received no notice at all of the complaint and therefore deprived of the opportunity to defend itself.The Court cannot agree. The argument assumes that the right to a hearing is absolute and may not be waived in any case under the due process clause. This is not correct. As a matter of fact, the right to be heard is as often waived as it is invoked, and validly as long as the party is given an opportunity to be heard on his behalf. 4

The circumstance that the chance to be heard is not availed of does not disparage that opportunity and deprive the person of the right to due process. This Court has consistently held in cases too numerous to mention that due process is not violated where a person is not heard because he has chosen, for whatever reason, not to be heard. It should be obvious that if he opts to be silent where he has a right to speak, he cannot later be heard to complain that he was unduly silenced.Neither is public policy offended on the wicked ground of fraud and collusion imagined by the petitioner. For one thing, the speculation contravenes without proof the presumption of good faith and unreasonably imputes dishonest motives to the principal and the obligee. For another, it disregards the fiduciary relationship between the principal and the surety, which is the legal and also practical reason why the latter is willing to answer for the liabilities of the former.In a familiar parallel, notice to the lawyer is considered notice to the client he represents even if the latter is not actually notified. It has not been suspected that this arrangement might result in a confabulation between the counsel and the other party to the client's prejudice.

At any rate, it is too late now for the petitioner to challenge the stipulation. If it believed then that it was onerous and illegal, what it should have done was object when its inclusion as a condition in the surety bond was required by the POEA. Even if the POEA had insisted on the condition, as now claimed, there was still nothing to prevent the petitioner from refusing altogether to issue the surety bond. The petitioner did neither of these. The fact is that, whether or not the petitioner objected, it in the end filed the surety bond with the suggested condition. The consequence of its submission is that it cannot now argue that it is not bound by that condition because it was coerced into accepting it.This Court has always been receptive to complaints against the denial of the right to be heard, which is the very foundation of a free society. This right is especially necessary in the court of justice, where cases are decided after the parties shall have been given an opportunity to present their respective positions, for evaluation by the impartial judge. Nevertheless, a party is not compelled to speak if it chooses to be silent. If it avails itself of the right to be heard, well and good; but if not, that is also its right. In the latter situation, however, it cannot later complain that, because it was not heard, it was deprived of due process.Worthy of consideration also is the private respondent's contention that he sought to enforce the petitioner's liability not in NSB Case No. 3810-82 as decided by the POEA, but in another forum. What he did was file an independent action for that purpose with the Insurance Commission on the basis of the surety bond which bound the petitioner to answer for whatever liabilities might be adjudged against Qatar National Fishing Co. by the POEA. In the proceedings before the Commission, the petitioner was given full opportunity (which it took) to present its side, in its answer with counterclaim to the complaint, in its testimony at the hearings, in its motion to dismiss the complaint, and in its 10-page memorandum. There is absolutely no question that in that proceeding, the petitioner was actually and even extensively heard.The surety bond required of recruitment agencies 5 is intended for the protection of our citizens who are engaged for overseas employment by foreign companies. The purpose is to insure that if the rights of these overseas workers are violated by their employers, recourse would still be available to them against the local companies that recruited them for the foreign principal. The foreign principal is outside the jurisdiction of our courts and would probably have no properties in this country against which an adverse judgment can be enforced. This difficulty is corrected by the bond, which can be proceeded against to satisfy that judgment.Given this purpose, and guided by the benign policy of social justice, we reject the technicalities raised by the petitioner against its established legal and even moral liability to the private respondent. These technicalities do not impair the rudiments of due process or the requirements of the law and must be rejected in deference to the constitutional imperative of justice for the worker.WHEREFORE, the petition is DENIED and the challenged decision of the Court of Appeals AFFIRMED in toto. The respondent court is directed to ENFORCE payment to the private respondent in full, and with all possible dispatch of the amount awarded to him by the POEA in its decision dated May 13, 1983. It is so ordered.8. EASTERN ASSURANCE & SURETY CORPORATION vs.SECRETARY OF LABOR| G.R. No. L-79436-50 January 17, 1990In connection with the application with the Philippine Overseas Employment Administration (POEA) of J & B Manpower Specialist, Inc. for a license to engage in business as a recruitment agency, a surety bond was filed on January 2, 1985 by the applicant and the Eastern Assurance and Surety Corporation, herein petitioner, in virtue of which they both held themselves —

. . . firmly bound unto (said) Philippine Overseas Employment Administration, Ministry of Labor in the penal sum of PESOS ONE HUNDRED FIFTY THOUSAND ONLY . . . (Pl50,000.00) for the payment of which will and truly to be made, . . . (they bound

9

themselves, their) heirs, executors, administrators, successors and assigns, jointly and severally . .

The bond stipulated that:a) it was "conditioned upon the true and faithful performance and observance of the . . . principal (J & B Manpower Specialist, Inc.) of its duties and obligations in accordance with all the rules and regulations promulgated by the Ministry of Labor Philippine Overseas Employment Administration and with the terms and conditions stipulated in the License;b) the liability of the . . . Surety (petitioner) shall in no case exceed the sum of PESOS ONE HUNDRED FIFTY THOUSAND (P150,000.00) ONLY, PHILIPPINE CURRENCY; 1

c) notice to the Principal is also a notice to the Surety; andd) LIABILITY of the surety . . . shall expire on JANUARY 02, 1986 and this bond shall be automatically cancelled ten (10) days after its expiration and the surety shall not be liable for any claim not discovered and presented to it in writing within said period of . . . from expiration and the obligee hereby expressly waives the rights to file any court action against the Surety after termination of said period of . . . . above cited. 2

As narrated by respondent Secretary of Labor, the facts are as follows: 3

From June 1983 to December 1985 . . . thirty three (33) . . . (persons) applied for overseas employment with . . . (J & B). In consideration of promised deployment, complainants paid respondent various amounts for various fees. Most of' the receipts issued were sighed by Mrs. Baby Bundalian, Executive Vice-President of . . . (J & B).Because of non-deployment . . . (the applicants) filed separate complaints with the Licensing and Regulation Office of POEA against . . . (J & B) for violation of Articles 32 and 34 (a) of the Labor Code between the months of April to October 1985.Despite summons/notices of hearing,, . . . (J & B) failed to file Answer nor appear in the hearings conducted.In its separate Answer, . . . EASCO essentially disclaimed liability on the ground that the claims were not expressly covered by the bond, that POEA had no jurisdiction to order forfeiture of the bond, that some of the claims were paid beyond or prior to the period of effectivity of the bond.On September 8, 1986, the POEA Administrator issued the Order in favor of complainants ruling thus:

After careful evaluation, we find that the receipts and testimonies of complainants, in the absence of controverting evidence substantially establish that respondent charged and collected fees from them in amounts exceeding what is prescribed by this Administration. Complainants' non-deployment strongly indicates that there was no employment obtained for them. Hence, violation of Articles 32 and 34 (a) of the Labor Code, as amended, is established against respondent. The claims of complainants having arose (arisen) out of acts of the principal covered under the surety (bond), the respondent surety is equally liable therefor.

Except for complainants Ramos, Samson, de Leon and Rizada, whose claims were transacted prior to the effectivity of the bond, . . . EASCO was declared jointly and severally liable with . . . (J & B) to twenty-nine (29) complainants.(The dispositive portion of the POEA Administrator's Order also contained the following statement and direction, viz.:

Respondent was suspended on May 23, 1985, June 26, 1985 and January 17, 1986 all for illegal exaction. Considering its track record of illegal exaction activities and considering further the gross violation of recruitment rules and regulations established against it in the instant cases, and the expiration of its license on February 15, 1985, it is hereby forever banned from participation in the overseas employment program. It is ordered to cease and desist from further engaging in recruitment activities otherwise it shall be prosecuted for illegal recruitment.')

(J & B filed a motion for reconsideration). On December 19, 1986, the then deputy Minister of Labor and Employment denied the . . . Motion for Reconsideration for lack of merit and affirmed the findings in the Order of the POEA Administrator finding no reversible error therein.

On appeal by EASCO — J & B having as aforestated taken no part in the proceeding despite due service of summons — the judgment was modified by the Secretary of Labor, by Order dated July 1, 1987, disposing as follows: 4

WHEREFORE, in view of the foregoing, the Resolution of the then Deputy Minister of Labor dated December 19, 1986 affirming the Order of the POEA Administrator dated September 8, 1986 is hereby MODIFIED. Respondent J & B Manpower Specialist is directed to refund all thirty-three (33) complainants as listed in the Order of September 8, 1986 in the amounts listed thereto with the modification that complainants Lucena Cabasal and Felix Rivero are both entitled only to P15,980 and not P15,980 each. Respondent Eastern Assurance and Surety Corporation is hereby found jointly and severally liable with respondent J & B Manpower Specialist to refund nineteen (19) complainants in the modified amounts . . . (particularly specified).The other findings in the Order of the POEA Administrator dated September 8, 1986 affirmed in the Resolution of the then Deputy Minister . . . are also hereby AFFIRMED. This Order is FINAL. No further Motion for Reconsideration hereof shall be entertained.

It is noteworthy that EASCO's liability for the refund, jointly and severally with its principal, was limited to 19 named complainants (in contrast to verdicts of the POEA and the Deputy Minister which both ordered payment to no less than 33 complainants) and was correspondingly reduced from P308,751.75 and US $ 400.00 5 to the aggregate amount of P 140,817.75. 6

The special civil action of certiorari at bar was thereafter instituted by EASCO 7 praying for the nullification of the POEA Administrator's Order of September 8, 1986, the Resolution of the Deputy Minister of Labor

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of' December 19, 1986, and the Order of the Secretary of Labor of July 1, 1987, It theorizes that:

1) the POEA had no jurisdiction over the claims for refund filed by non-employees;2) neither did the Secretary of Labor have jurisdiction of the claims;3) assuming they had jurisdiction, both the POEA and Secretary of Labor also committed legal errors and acted with grave abuse of discretion when they ruled that petitioner is liable on the claims.

EASCO contends that the POEA had no "adjudicatory jurisdiction" over the monetary claims in question because the same "did not arise from employer-employee relations." Invoked in support of the argument is Section 4 (a) of EO 797 providing in part 8 that the POEA has —

. . . original and exclusive jurisdiction over all cases, including money claims, involving employer-employee relations arising out of or by virtue of any law or contract involving Filipino workers for overseas employment including seamen . . .

The complaints are however for violation of Articles 32 and 34 a) of the Labor Code. Article 32 and paragraph (a) of Article 34 read as follows:

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.—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 actually received by him as a loan or advance; . . .

The penalties of suspension and cancellation of license or authority are prescribed for violations of the above quoted provisions, among others. And the Secretary of Labor has the power under Section 35 of the law to apply these sanctions, as well as the authority, conferred by Section 36, not only, to "restrict and regulate the recruitment and placement activities of all agencies," but also to "promulgate rules and regulations to carry out the objectives and implement the provisions" governing said activities. Pursuant to this rule-making power thus granted, the Secretary of Labor gave the POEA 9 "on its own initiative or upon filing of a complaint or report or upon request for investigation by any aggrieved person, . . . (authority to) conduct the necessary proceedings for the suspension or cancellation of the license or authority of any agency or entity" for certain enumerated offenses including —1) the imposition or acceptance, directly or indirectly, of any amount of money, goods or services, or any fee or bond in excess of what is prescribed by the Administration, and2) any other violation of pertinent provisions of the Labor Code and other relevant laws, rules and regulations. 10

The Administrator was also given the power to "order the dismissal of the case or the suspension of the license or authority of the respondent agency or contractor or recommend to the Minister the cancellation thereof." 11

Implicit in these powers is the award of appropriate relief to the victims of the offenses committed by the respondent agency or contractor, specially the refund or reimbursement of such fees as may have been fraudulently or otherwise illegally collected, or such money, goods or services imposed and accepted in excess of what is licitly prescribed. It would be illogical and absurd to limit the sanction on an

offending recruitment agency or contractor to suspension or cancellation of its license, without the concomitant obligation to repair the injury caused to its victims. It would result either in rewarding unlawful acts, as it would leave the victims without recourse, or in compelling the latter to litigate in another forum, giving rise to that multiplicity of actions or proceedings which the law abhors.Even more untenable is EASCO's next argument that the recruiter and its victims are in pari delicto — the former for having required payment, and the latter for having voluntarily paid, "prohibited recruitment fees" — and therefore, said victims are barred from obtaining relief. The sophistical, if not callous, character of the argument is evident upon the most cursory reading thereof; it merits no consideration whatever.The Court is intrigued by EASCO's reiteration of its argument that it should not be held liable for claims which accrued prior to or after the effectivity of its bond, considering that the respondent Secretary had conceded the validity of part of said argument, at least. The Secretary ruled that EASCO's "contention that it should not be held liable for claims/payments made to respondent agency before the effectivity of the surety bond on January 2, 1985 is well taken." According to the Secretary: 12

. . . A close examination of the records reveal(s) that respondent EASCO is not jointly and severally liable with respondent agency to refund complainants Lucena Cabasal, Felix Rivero, Romulo del Rosario, Rogelio Banzuela, Josefina Ogatis, Francisco Sorato, Sonny Quiazon, Josefina Dictado, Mario del Guzman and Rogelio Mercado (10 in all). These complainants paid respondent agency in 1984, or before the effectivity of the bond on January 2, 1985 as evidence by the reciept and their testimonies.

The related argument, that it is also not liable for claims filed after the expiry (on January 2, 1986) of the period stipulated in the surety bond for the filing of claims against the bond, must however be rejected, as the Secretary did. The Court discerns no grave abuse of discretion in the Secretary's statement of his reasons for doing so, to wit:

. . . While it may be true that respondent EASCO received notice of their claims after the ten (10) day expiration period from cancellation or after January 12, 1986 as provided in the surety bond, records show that . . . EASCO's principal, respondent agency, was notified/ summoned prior to the expiration period or before January 12, 1986. Respondent agency received summons on July 24, 1985 with respect to claims of complainants Penarroyo, dela Cruz and Canti. It also received summons on November 26, 1985 with respect to Giovanni Garbillons' claim. Respondent agency was likewise considered constructively notified of the claims of complainants Calayag, Danuco Domingo and Campena on October 6, 1985. In this connection, it may be stressed that the surety bond provides that notice to the principal is notice to the surety. Besides, it has been held that the contract of a compensated surety like respondent EASCO is to be interpreted liberally in the interest of the promises and beneficiaries rather than strictly in favor of the surety (Acoustics Inc. v. American Surety, 74 Nev-6, 320 P2d. 626, 74 Am. Jur. 2d).

So, too, EASCO's claim that it had not been properly served with summons as regards a few of the complaints must be rejected, the issue being factual, and the Court having been cited to no grave error invalidating the respondent Secretary's conclusion that summons had indeed been duly served.Finally, EASCO's half-hearted argument that its liability should be limited to the maximum amount set in its surety bond, i.e., P150,000.00, is palpably without merit, since the aggregate liability imposed on it, P140,817.75, supra, does not in fact exceed that limit.

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WHEREFORE, the petition is DISMISSED for lack of merit, and this decision is declared to be immediately executory. Costs against petitioner.SO ORDERED.9. AURORA T. AQUINO, petitioner, vs. COURT OF APPEALS and PEOPLE OF THE PHILIPPINES| G.R. No. 91896 November 21, 1991This is a petition for review seeking the reversal of the November 15, 1989 decision of the Court of Appeals, which affirmed a trial court decision finding the accused-petitioner, Aurora Aquino, guilty of illegal recruitment.The information filed against the accused-petitioner reads:

That on or about and during the period comprised between May 23, 1974 to May, 1975, both dates inclusive, in the City of Manila, Philippines, the said accused did then and there wilfully, unlawfully and knowingly, being then a private individual, recruit workers for employment abroad without first obtaining the required license or authority from the Ministry of Labor, in violation of the said Article 25, Presidential Decree 442. (Rollo, pp. 17-18)

Upon arraignment, the accused pleaded not guilty. Thereupon the trial ensued.The facts according to the prosecution are as follows:

1. Sometime in January of 1973, Rodrigo Nicolas, a laborer from Sta. Cruz, Manila, met appellant Aurora Aquino when he applied at her Manila Hotel Office in response to a published notice of alleged recruitment of workers for Guam. At such meeting, he applied for the position of carpenter. One week later, he gave appellant Pl,000.00 as part payment of the P1,500.00 required of him (pp. 9-11, TSN, June 20, 1979). A second payment of the P500.00 was made by Nicolas to appellant on September 24, 1974 (pp. 35-36, TSN, ibid.). Of the total Pl,500.00 Nicolas paid, Pl,000.00 was later refunded directly to him by appellant (pp. 12-14, TSN, ibid.) and the balance of P500.00 was included in an alleged "group refund check" for P5,270 which could not be cashed for lack of funds (pp. 34-35, TSN,ibid).2. On or about March 12, 1973, Braulio Sapitula, a farmer from Agoo, La Union, having learned that Mrs. Aurora T. Aquino, (known hereafter as Appellant) was recruiting applicants for employment in Guam, likewise applied for the position of carpenter at appellant's Manila Hotel Office and plunked down FIVE HUNDRED (P500.00) PESOS as his initial payment of the recruitment fees. A second payment of ONE THOUSAND (Pl,000.00) PESOS was delivered to the appellant by Sapitula on February 5, 1975 (p. 1, Decision).3. Sometime in May of 1973, Aurelio Costales, a resident of Sampaloc, Manila, met appellant at the Greenwich Travel Agency, where Costales likewise applied for a job in Guam and made a partial payment of P800.00 for the usual Pl,500.00 recruitment fees appellant charged job applicants (pp. 5-6, TSN, Jan. 4, 1980). A second payment of P550.00 was given by Costales to appellant on September 24, 1974 (pp. 35-36, Ibid). Later on, Costales, disappointed at not being able to go to Guam, asked for a refund of his money. He was paid P700.00 by appellant, and the balance of P650.00 was allegedly part of the alleged "group refund check" for P5,270.00 issued by appellant which was dishonored for lack of funds (pp. 15-17, Ibid.)4. Sometime in June, 1974, Benito Vertudez, a resident of Gen. Trias, Cavite, applied for a Guam

job at appellant's agency. At such time he filled out an application form and paid P70.00 for "mailing expenses" (pp. 39-44, TSN, June 14, 1979). Thereafter, in the course of following up his application to work in Guam, Vertudez paid appellant P500.00 in September, 1974, and another P500.00 in September, 1974 (pp. 51-52, Ibid). Due to appellant's inability to get him a job in Guam, Vertudez asked for the return of his money. He was issued a check for the amount of Pl,070.00 by appellant, but said check like the alleged "group refund check" was dishonored for lack of funds (p. 54, Ibid.)5. On November 2, 1978, a complaint was filed against appellant for violation of the Provisions of Article 24, of P.D. No. 442, otherwise known as the Labor Code of the Philippines, before the Regional Trial Court of Manila, Branch VIII. (Rollo, pp. 44-48)

The accused-appellant's version, on the other hand, shows that:Aurora T. Aquino, 51 years old businesswoman, disclosed that in 1973, she was a licensed contractor authorized to hire laborers as evidenced by a Labor Contractor's License (New) dated 22 May, 1973, Exh. 5, page 257, record; 21-22 tsn, July 24, 1984; said license was issued after payment of P6,000.00 for the year 1973-1974 (Exh. 5-A, page 256, record); in the recruitment of workers, she was appointed by several employers of Guam and London as their representative in the Philippines, like the Special Power of Attorney executed by George J. Viegas, dated November 29, 1973, in the territory of Agana, Guam (Exh. 6, page 258, record) authorizing her to recruit Filipinos for Guam and likewise, for London (Exh. 7, 7-A, page 260, record); she knows Benito Vertudez of General Trias, Cavite being one of the applicants for Guam and also Braulio Sapitula of Sta. Fe, Agoo, La Union include (sic) Alfredo Empredo of Pasay City, Rodrigo Nicolas of Sta. Cruz, Manila (30-31, tsn, ibid.) all of them having applied in 1973 for employment for abroad, hence, she processed their application and submitted thereafter, their application to her employer abroad, George J. Viegas (32 tsn, ibid); they were not able to leave for Guam because her employer had some trouble with his contract with the government of Guam (33 tsn, ibid); she refunded P500.00 to Sapitula (Exh. 1; 34 tsn. ibid); she refunded Alfredo Empredo on Jan. 28, 1974 P300.00 Exh. 8, page 261, record), refunded P500.00 to Benito Vertudes (Exh. 9, page 262, record), of the amount of P2,200.00 in the form of check (Exh. 10, page 265, record), handwritten receipt of P5,270.00 (Exh. 11, page 264, ibid) which was received by Aurelio Costales (41-42, TSN, Ibid); she refunded them when she said applicants cannot leave for Guam by issuing Exh. 11 for amounts indicated in the receipts (Exhs. 8, 9, 10 (44 TSN, ibid); she does not violated (sic) Art. 25, P.D. 442 for illegal recruitment because she is a duly licensed labor contractor because when she acted on the applications of the complaining witnesses, she acted as representative in the Philippines of her employer George Viegas (45 TSN, Ibid) and the money covered by the personal check (Exh. 11) belongs to the complainants; the receipts which she issued dated October 24, 1973, August 15, 1973, December 15, 1973, August 14, 1974 and June 19, 1974 show that on said dates she was a duly licensed contractor (47-48 TSN, Ibid); on its

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expiration on 18 May, 1974, she applied for a renewal of her license by writing a letter to the Bureau of Labor addressed to Minister Blas Ople (Exh. 12, dated Feb. 4, 1975; page 265, record; 5 TSN, August 14, 1984); which was a follow up of her renewal letter dated July 4, 1974 and was just waiting for the renewal of her license, so that meanwhile, she was able to talk with Under-Secretary Amado Inciong concerning said renewal's delay at the time, Sec. Ople was in Italy, hence, she was told by said Under-Secretary Inciong to proceed with her operation "until such time as the Secretary will go home." (6-7 TSN, Ibid); when she did not receive any reply to her Feb. 12, 1975 renewal communication she next made another follow-up letter dated March 3, 1975 addressed Minister to Ople (Exh. 13, NOTE: 3 TSN, October 29, 1985 not submitted and offered) and another letter dated April 29, 1975 [Exh. 14; Note: not submitted and offered, 3 TSN, October 29, 1985); she next waited for the renewal, but was not submitted and offered, 3 TSN, October 29, 1985); she next waited for the renewal, but was not able to receive any reply from the Department of Labor, hence, she stopped operations (13-14 TSN,Ibid) in 1976 (p.15 TSN, Ibid); applicants Benito Vertudes, Sapitula, Empredo, Nicolas, were not able to leave for Guam (15-16 TSN, Ibid); (Decision, pp. 4-5, Record, pp. 294-295). (Rollo, pp. 19-22)

After trial, the lower court found the accused guilty, the positive portion of its decision reads:

WHEREFORE, in view of the foregoing, the Court finds accused Aurora T. Aquino, GUILTY beyond reasonable doubt of Illegal Recruitment in violation of Art. 25, PD 442 and penalized under Art. 39 par. (b), Labor Code, sans mitigating circumstance, and applying the Indeterminate Sentence Law, hereby sentences her to an indeterminate imprisonment of FOUR (4) YEARS up to SEVEN (7) YEARS and fine of P20,000.00, with the accessory penalties of the law; to indemnify the complainants in the total amount of P5,270.00 with the legal rate of interest reckoned from the filing of instant information on Dec. 1, 1978 until fully paid, but without subsidiary imprisonment in case of insolvency; and finally, to pay the cost of the proceeding.Due to the gravity of the sentence, it is further ordered that accused serves her imprisonment at the National Penitentiary at Muntinlupa, Rizal. (Rollo, p. 22)

The accused-petitioner appealed the decision of the lower court to the Court of Appeals. After submission of memorandums, the Court of Appeals affirmed the decision of the lower court.The dispositive portion of the decision reads:

WHEREFORE, the guilt of appellant of the crime charged having been established beyond reasonable doubt, the appealed decision is hereby AFFIRMED in all aspects. No costs. (Rollo, p. 25)

The petition for review was initially denied by this Court on March 21, 1990. A motion for reconsideration was filed by the petitioner on April 5, 1990. On May 9, 1990, we gave due course to the motion for reconsideration.The petitioner relies on the following reasons for the allowance of her petition:

IThe Court of Appeals erred in not dismissing the case for want of jurisdiction by the Regional Trial Court of Manila.

II

The Court of Appeals erred in holding that the accused illegally recruited the complaints after her license expired on May 18, 1974.

IIIEven if the Regional Trial Court of Manila had jurisdiction, the Court of Appeals erred in sustaining the indemnification by the accused petitioner of the sum of P5,270.00 in favor of the complainants.

The jurisdiction of a Court is determined by the allegations of the information as to the situs of the crime. If the information alleges that the crime was committed in the place where the court is seated, then the court has jurisdiction, in the first instance, to hear the case. (Colmenares v. Villar, 33 SCRA 186 [1970]; People v. Galano, 75 SCRA 193 [1977])In this case, the then accused never raised the ground of lack of jurisdiction in the proceedings before the lower court and before the Court of Appeals. Only after she received the decision of the Court of Appeals affirming the decision of the lower court, did the appellant question the jurisdiction of the court a quo.In the interest of sound administration of justice, such practice cannot be tolerated. If we are to sanction this argument, then all the proceedings had before the lower court and the Court of Appeals while valid in all other respects would simply become useless.In the landmark case of Tijam v. Sibonghanoy (23 SCRA 29 [1968]), we held that a party who has affirmed and invoked the jurisdiction of a court to secure an affirmative relief, may not afterwards deny that same jurisdiction to escape a penalty. A party's active participation in the proceedings before the court without jurisdiction will estop the party from assailing such lack of jurisdiction. (Echaus v. Blanco, 179 SCRA 704 [1989]; Crisostomo v. Court of Appeals, 32 SCRA 54 [1970]; Libudan v. Gil, 45 SCRA 17 [1972]; and People v. Casuga y Munar, 53 SCRA 278 [1973])Anent the second issue, the Court on the basis of the evidence on record finds the accused-petitioner not guilty of illegal recruitment.Although as a general rule, the findings of fact of the Court of Appeals are conclusive upon the Supreme Court, this is, however, not without exceptions.In certain instances, the Supreme Court may review the findings of fact of the Court of Appeals as when the inference made is manifestly mistaken or when the judgment is based on misapprehension of facts or when the Court of Appeals manifestly overlooked certain relevant facts not disputed by the parties and which if properly considered, would justify a different conclusion. (Moran v. Court of Appeals, 133 SCRA 88 [1984]; Sacay v. Sandiganbayan, 142 SCRA 593 [1986]; Manlapaz v. Court of Appeals, 147 SCRA 236 [1987])There are relevant factual circumstances which the Court of Appeals manifestly misconstrued, thus, necessitating the Court to re-examine the facts.The information charges the accused-petitioner with violating Article 25 of the Labor Code which provides:

Travel agencies prohibited to recruit. — Travel agencies are prohibited from engaging in the business of recruitment and placement of workers for overseas employment whether for profit or not.The Secretary of Labor shall issue rules and regulations establishing the requirements and the procedures for the issuance of a license or authority.Every existing authority or license to hire or recruit workers on the date of effectivity of this Code shall remain valid for the duration indicated therein unless sooner cancelled, revoked, or suspended for cause by the Secretary of Labor. However, said authority or license to hire or recruit may be renewed provided that the holders thereof shall comply with all applicable provisions of this Code and its implementing rules and regulations.

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While the charge is for a violation of Article 25, the Solicitor General states that it was really Article 24 which was violated (Rollo, pp. 43, 53-54). Article 24 reads:

Authority or license to recruit. — No individual or entity may engage in the business of a private fee-charging employment agency without first obtaining a license from the Department of Labor.No individual or entity may operate a private non-fee charging employment agency without first obtaining an authority from the Department of Labor.

There is no dispute that the accused-petitioner had a valid license before May 18, 1974. She contends that her license was not renewed, not because of any violations, but because of a Ministry of Labor policy phasing out allprivate recruitment agencies. She never received any letter from the Labor Ministry about any illegal activities and never was her office raided. She claims that her activities were above-board and states that the Ministry was merely implementing a policy that no new application for a license to operate shall be entertained upon the effectivity of the Code and that all private employment agencies would be phased out within four years from that date. She argued that the phrase "no new application" should not include renewal of old applications.The information was filed against Ms. Aquino because she "wilfully, unlawfully, and knowingly . . . recruit(ed) workers for employment abroad without first obtaining the required license or authority . . ." The Solicitor General contends that when Ms. Aquino continued to charge and collect fees from her applicants/recruits after May 18, 1974, she engaged in illegal recruitment violative of Article 24 of the Labor Code.We must emphasize that this case involves a criminal prosecution for a violation of a penal provision. We are not concerned with whether or not the accused-petitioner's license should be renewed nor with the administrative actions taken by the Labor Department against recruitment agencies. By no stretch of the imagination should an acquittal in this case mean that the Court does not support the legitimate activities of the Government against illegal recruiters preying on the gullibility of poor laborers, seamen, domestics, and other workers who see employment abroad as the only way out of their grinding poverty. We simply apply the principles of Criminal Law that an accused is presumed innocent until proven guilty and that the burden of establishing guilt must be satisfactorily met by the prosecution beyond reasonable doubt.Does the receipt of payments, after the expiration of the license, for services rendered before said expiration constitute illegal recruitment? We believe that it does not, at least not for purposes of criminal prosecutions.Recruitment refers to the offering of inducements to qualified personnel to enter a particular job or employment. The advertising, the promise of future employment and other come-ons took place while Ms. Aquino was still licensed. True, the payments for services rendered are necessary consequences of the applications for overseas employment. However, it is asking too much to expect a licensed agency to absolutely at the stroke of midnight stop all transactions on the day its license expires and refuse to accept carry-over payments after the agency is closed. In any business, there has to be a winding-up after it ceases operations. The collection of unpaid accounts should not be the basis of a criminal prosecution.Thus, in the case of the complainant Braulio Sapitula, the recruitment took place at the very latest on February 12, 1973, when Sapitula went to the office of the petitioner at the annex of Manila Hotel, and correspondingly, filed his application papers for overseas employment (Rollo, p. 28); as for Rodrigo Nicolas when he met the petitioner in January, 1973 (Rollo, p. 30); and Aurelio Costales, when sometime in May, 1973, he submitted his application papers for overseas employment at the office of the accused at the Manila Hotel annex. (Rollo, pp. 30-31) Other than receipt of carry-over payments, there is no evidence of recruiting activities after May 18, 1974.

It has been suggested that once a license expires, the recruiter should turn over all continuing activities such as collections of unpaid accounts to another licensed agency in order to give teeth to the campaign against illegal recruiters. There is nothing to prevent the law from being amended to avoid the problem exemplified by this case but certainly no speculations on what could have been done should enter into the resolution of a criminal case.The Government did not question the legality of the payment as such. The prosecution is based on the date of the prohibited activity, not on the payments being illegal exactions even if effected during the correct period. The payments are necessary in order to defray the expenses entailed in any overseas contract of employment. They are intended for administrative and business expenses and for the travelling expenses of the applicants once cleared for overseas travel.In the case of one complainant, Benito Vertudes, the prosecution alleges that he filed his application paper sometime in June of 1974, a month after the expiration of Aquino's license to operate (Rollo, p. 47). On the other hand, the petitioner in her testimony before the lower court stated that Vertudes applied in 1973, within the period when her license to operate the employment agency had not yet expired. (Rollo, p. 20)This accusation against the petitioner constitutes a negative allegation where the negative fact of recruiting without a license forms an essential element of the crime charged. Hence, it was incumbent upon the prosecution to satisfactorily establish the date when Vertudes was recruited.It has not been clearly established that the petitioner is guilty of recruiting Benito Vertudes after May 18, 1974.The prosecution relied on the sole testimony of Benito Vertudes, that he applied sometime in June of 1974. His testimony was flatly denied by the petitioner who gave an earlier date. No other evidence was proferred by the prosecution particularly in relation to the recruitment of Benito Vertudes. (Rollo, pp. 29-30)In the absence of any corroborating evidence to support such particular fact, and considering that the prosecution's main theory is that collection of carry-over payments constitutes recruitment, the Court is constrained to resolve the issue in favor of the accused consistent with the rule on the construction of penal laws, that they are strictly construed against the government and liberally in favor of the accused. (See People v. Yu Hai, 99 Phil. 725 [1956])Article 25 (it should be Article 24) of the Labor Code, the violation of which was imputed to Aurora Aquino, states only that no person may operate a private fee — charging employment agency without the necessary license.Inferentially, it is the operation of this kind of employment agency without the proper license which constitutes the act of illegal recruitment.If the factual circumstances are otherwise, as when the accused does not operate any employment agency, then all activities including the acceptance of the application papers and the collection of payment would constitute acts of recruitment within the meaning of the law. Or if the accused continued to operate as before, even after the license is denied renewal, this would be punishable under the law.The facts of this case, however, conspicuously show that the recruitment activities, namely the continued operation of the Greenwich Travel Agency, the advertisements that the agency was recruiting workers for overseas employment and the active solicitation of workers ceased upon the non-renewal of Aurora Aquino's license to operate the said agency.After May 18, 1974, Aquino closed her office at the Manila Hotel Annex and settled in her residential home in Quezon City from where she conducted the winding-up of her business.Two of the complainants, namely, Aurelio Costales and Rodrigo Nicolas filed affidavits of desistance although these affidavits were not filed in the case at bar but in another criminal case of estafa filed against the petitioner.This notwithstanding, the causes of action of the two criminal cases arose from the same factual circumstances. The importance of these affidavits cannot just be ignored.

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As a rule, affidavits of desistance should not be given too much credit. Under the circumstances of this case, however, they serve to create serious doubts as to the criminal liability of the petitioner. At the very least, they call for a second look at the records of the case and the basis for the judgment of conviction. (People v. Lim, 190 SCRA 706 [1990])Anent the final argument questioning the order of the trial court, affirmed by the Court of Appeals, which required Aquino to pay the complainants the sum of P5,270.00 as reimbursements of the payments made by the latter, the court after considering the records of the case resolved to affirm the order of the Court of Appeals with modification.The petitioner professes that she has reimbursed the complainants by issuing them a group-check in the amount of P5,270.00. She states that if indeed the check bounced as alleged by the complainants, then why did not the complainants present the dishonored check or the bank's return slip to show that the checks were not encashed. (Rollo, p.12)If that be the case, then the resultant query would be: why did the petitioner not produce the check issued by her to the complainants to show that it had been honored by the drawee bank and correspondingly deducted from her account, evidencing therefore, the fact of payment?The petitioner issued a check to reimburse the complainants for the sums of money paid the latter by virtue of the "failed" overseas contract.The controversy arose when the check was dishonored by the drawee bank due to lack of funds. The petitioner, on the other hand, claims full satisfaction of the sum owed by her since she already issued a check in favor of the complainants.The argument of the petitioner is unconvincing.It has been the consistent ruling of this Court that the issuance of a check has been encashed. Although a check, as a negotiable instrument, is regarded as a substitute for money, it is not money. Hence, its mere delivery does not, by itself, operate as payment. (PAL v. Court of Appeals, 181 SCRA 557 [1990])To this end, it was de rigueur for the petitioner to have presented the check she issued to the complainants which had been honored by the drawee bank in order to show that the amount covered by the check has been received evidencing, therefore, full satisfaction of the sums of money owed to the complainants.The records reveal nothing of this sort. Nowhere during the proceedings before the lower court did the accused present any evidence showing that the checks was actually encashed. In the absence of any evidence regarding this matter, the conclusion of the Court of Appeals must be sustained.In view, however, of the affidavits of desistance executed by Aurelio Costales and Rodrigo Nicolas where both admitted that the petitioner had satisfied her monetary obligations to them (Rollo, pp. 107-108), in the amount of P650.00 and P500.00 respectively, these sums should be deducted from the total amount of P5,270.00. (Rollo, p. 18)WHEREFORE, the judgment of conviction is hereby REVERSED and accused-petitioner Aurora Aquino is ACQUITTED of the crime of illegal recruitment. The accused-petitioner is, however, ordered to pay to the remaining complainants the sum of FOUR THOUSAND ONE HUNDRED SEVENTY PESOS (P4,170.00), with legal rate of interest reckoned from the filing of the information on December 1, 1978 until fully paid. SO ORDERED.10. PEOPLE vs CABACANGAn Illegal Recruitment case was filed against appellant FELICIA MAZAMBIQUE CABACANG for allegedly committing the following act:

That in or about and during the period comprised from March 22, 1990 to April 27, 1990, both dates inclusive, in the City of Manila, Philippines, the said accused, representing herself to have the capacity to contract, enlist and transport Filipino workers for employment abroad, did then and there willfully and unlawfully, for a fee, recruit and promise employment/job placement abroad to the following persons: Romeo Eguia, Ronnie Reyes,

Armando Castro and Dante Eguia, without first having secured the required license or authority from the Department of Labor and Employment. 1

The case was raffled off to Branch 5 of the Regional Trial Court of Manila, 2 and docketed as Criminal Case No. 91-93606. A not guilty plea was entered upon her arraignment on July 17, 1991.The records reveal that the four private complainants are related. DANTE 3 and ROMEO EGUIA are brothers, and RONNIE REYES 4 and ARMANDO CASTRO are their brothers-in-law. RAMON EGUIA and prosecution witness WILMA GREGORIO 5 are Dante's and Romeo's siblings.The prosecution evidence show that appellant who is not a recruiter licensed by the Philippine Overseas Employment Administration (POEA), 6 handled the processing of the papers of cousins Ramon Eguia and Edgardo Santos. In June, 1988, the two were deployed to Abu Dhabi for employment as janitors. 7 Private complainants were encouraged by their employment, and decided to apply for overseas janitorial work as well. 8

According to private complainant Ronnie Reyes, he was approached in Lipa by appellant who represented herself as the Assistant Manager of the Lakas Agency Management Corporation located near Robinson's Department Store in Ermita, Manila. Appellant informed him that there would be a second batch of overseas workers to be deployed to Abu Dhabi. Ronnie relayed the information to Wilma, who made further inquiries and verifications from appellant about the job opportunity. 9 Wilma then directly worked out with appellant, the overseas job applications of private complainants.Private complainants filed their applications and appellant assured them that they would be able to leave for Abu Dhabi after the processing of their paper. 10 She instructed them to pay their processing fees 11 directly to her. During the period from March 3, 1990 to April 27, 1990, inclusive, private complainants through Wilma paid appellant a total of THIRTY-TWO THOUSAND FIVE HUNDRED PESOS (P32,500.00). 12

Appellant assured private complainants they could leave for Abu Dhabi on May 10, 1990, at 8:00 p.m. 13 The date of departure came without private complainants leaving Philippine soil. Thereafter, appellant told them to stay put and wait for the arrival in the Philippines of their prospective Middle Eastern employer. However, no employer arrived, and the four complainants failed to be deployed by appellant overseas. 14

Private complainants and Wilma returned to the Lakas Agency to look for appellant. They did not find her. It was then that they found out from the agency's Manager, MR. NARCISO DELA FUENTE, that appellant was merely renting a table in the office and was not, employed with Lakas. 15 The revelation moved private complainants to file a complaint against appellant with the National Bureau of Investigation (NBI). 16

The NBI was able to work out a settlement between the parties. Appellant agreed in writing to pay back the processing fees of private complainants. 17 Nonetheless, appellant did not fully fulfill her obligation under the agreement. She only refunded a total of SIX THOUSAND SEVEN HUNDRED PESOS (P6,700.00) to private complainants. 18

For her part, appellant admits that she received from private complainants, through Wilma Gregorio, the sum of THIRTY-TWO THOUSAND FIVE HUNDRED PESOS (P32,500.00). 19 She, however, denied that she was merely renting a table at the office of the Lakas Agency Management Corporation. She insisted that she was an employee of that recruitment office owned and managed by Mr. Narciso dela Fuente, 20 and that she acted as its liaison officer and messenger. As liaison officer, she assisted applicants in the processing of their documents in the POEA. She also signed documents and receipts in behalf of the recruitment agency. 21

According to appellant, it is the Lakas Agency's policy that each applicant be charged FIVE THOUSAND PESOS (P5,000.00) as processing fee, and that the airline fare of FIFTEEN THOUSAND PESOS (P15,000.00) in cases of deployment to Abu Dhabi be shouldered by the applicant. 22 The agency adopted the policy as a result of its alleged unfortunate experience with Ramon Eguia and Edgardo Santos. The

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two, she claimed, refused to pay back the cost of their tickets (THIRTY THOUSAND PESOS [P30,000.00]) which was advanced by the agency. 23

Appellant blamed private complainants for their failure to leave for Abu Dhabi as they were unable to produce the money for their air fare. 24 Allegedly, Wilma insisted that the SIXTY THOUSAND PESOS (60,000.00) for private complainants' tickets be advanced by Lakas Agency and be repaid by the four once they start working in Abu Dhabi. Her proposal did not sit well with the recruitment agency, resulting in the shelving of private complainants' deployment abroad. 25

Appellant further testified that private complainant Ronnie Reyes later withdrew his application and demanded the refund of his processing fees, plus SEVEN HUNDRED PESOS (P700.00) to cover miscellaneous expenses. 26Since private complainants' papers had already been processed in the POEA, Ronnie was informed that the agency was not obliged to make the refund to him. He was, however, insistent, so appellant took it upon herself to pay him back. 27 As guarantee for her promise to make the refund, Ronnie allegedly took her Sony stereo worth FOUR THOUSAND SEVEN HUNDRED PESOS (P4,700.00), which he never returned to her even after she had given him SIX THOUSAND SEVEN HUNDRED PESOS (P6,700.00). 28

Appellant also alleged that no similar refunds were made to the three other private complainants. Their processing fees were merely off-set against the existing obligation of Romeo Eguia and Edgardo Santos with the Lakas Agency. 29

At trial's end, appellant was found guilty of illegal recruitment and sentenced as follows:

WHEREFORE, premises considered, judgment is hereby rendered finding the accused Felicia Cabacang y Mosambique (sic) guilty beyond reasonable doubt of illegal recruitment and hereby sentences her to suffer the penalty of LIFE IMPRISONMENT and a fine of One Hundred Thousand (P100,000.00) Pesos. 30

Appellant now assails the trial court's Decision with the following arguments:

1. The court a quo erred by failing to appreciate the facts (1) that (appellant) never represented herself as licensed by the Department of Labor and Employment — Philippine Overseas Employment Administration as labor recruiter, (2) that what she represented to the applicants is that her employer LAKAS MANAGEM

ENT AGENCY is a duly licensed recruitment agency with principals-employers abroad, and (3) that the accused told applicants that she can help them get employed with the same employer of their relatives who are now working there through her help.2. The court a quo erred in finding (appellant) at fault and liable for the failure or negligence of her employer LAKAS MANAGEMENT AGENCY to register her name as its employee at the Philippine Overseas Employment Administration.3. The court a quo erred in finding (appellant) at fault or liable for the decision/policy of her employer, LAKAS MANAGEMENT AGENCY, or

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requiring the four (4) complaining witnesses to pay the cost of their plane tickets from Manila to the jobsite (Abu Dhabi, UAE);4. The court a quo erred in finding (appellant) guilty of illegal recruitment based on (appellant's) receipt of the P32,000.00 from Wilma Eguia Gregorio intended as placement fees of the four (4) complaining witnesses.

We affirm appellant's conviction with modifications.The centerpiece of appellant's defense is two-fold: (1) that she cannot be held liable for illegal recruitment since she never represented herself to private complainants as a POEA-licensed recruiter; and (2) that she was not the one responsible for the recruitment of private complainants nor for their non-deployment for work abroad, since she was merely an employee of the POEA-licensed Lakas Agency Management Corporation. We reject these contentions.Firstly, it is incorrect to maintain that to be liable for illegal recruitment, one must represent himself/herself to the victims as a duly-licensed recruiter. Illegal recruitment is defined in Article 38 (a) of the Labor Code, as amended, as "(a)ny recruitment activities, including the prohibited practices enumerated under Article 34 of this Code, to be undertaken by non-licensees or non-holders of authority." Article 13 (b) of the same Code defines "recruitment and placement" as referring to:

(A)ny 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.

Clearly, to prove illegal recruitment, only two elements need to be shown, viz.: (1) the person charged with the crime must have undertaken recruitment activities (or any of the activities enumerated in Article 34 of the Labor Code, as amended); and (2) said person does not have a license 31 or authority 32 to do so. It is not required that it be shown that such person wrongfully represented himself as a licensed recruiter.Secondly, appellant cannot successfully contend she merely performed her duties as an employee of a licensed recruitment agency. Apart

from her uncorroborated testimony on the matter, she failed to present credible evidence to buttress her claim of employment. Thus, she failed to follow the immutable rule on burden of proof that "each party must prove his own affirmative allegations by the amount of evidence required by law. 33

On the other hand, the documentary evidence of the prosecution show that appellant received private complainants' processing fees from Wilma Gregorio in her own behalf. The wordings of Exhibits "C" to "G", inclusive, are strongly persuasive on this factual issue.

They read, as follows:Exh. "C": "Received from Wilma Gregorio the amount of 5,000 only";Exh. "D": "Received from Romeo Eguia amount 5,000";Exh. "E": "Received from Wilma the amount of 5,000 Wilma — only"Exh. "F": "Received from Wilma Gregorio amount 7,500 pesos only"; andExh. "G": "Received the amount of 10,000 pesos from Wilma Gregorio as Deposit, 4 applicants."

These receipts — which are not written on Lakas agency stationary — show no indication that the payments were accepted by appellant in behalf of the Lakas Agency Management Corporation. Exh. "J", which is the Commitment/Agreement executed and signed by appellant before the NBI further proves that she was acting in her own behalf in receiving Wilma's payment. For, why else would she personally "promise to return to Wilma Gregorio . . . the amount of P32,500.00" if said sum was for the benefit of the Lakas Agency?More importantly, the prosecution demonstrated reasonable doubt that appellant performed recruitment activities without any license to do so. She informed private complainant Ronnie Reyes that there would be a second batch of janitors to be deployed to Abu Dhabi. After she accepted private complainants' job applications, she assured them that they would be able to fly to that Middle Eastern nation after their papers are processed by the POEA. She told them, through Wilma, to pay their processing fees directly to her, and later personally received the same, in the total amount of THIRTY-TWO THOUSAND PESOS (P32,000.00). She issued and signed the receipts evidencing payment to her of such fees. She processed private complainants' papers at the POEA, and she assured them that they were to fly to Abu Dhabi on May 10, 1990, at 8:00 p.m. Throughout the entire transaction, private complainants and Wilma Gregorio dealt with appellant, and with appellant alone. The only time they talked to the manager of the Lakas Agency was after their aborted flight to Abu Dhabi, when they were trying to locate the whereabouts of appellant.Clearly, it was appellant who directly recruited private complainants within the meaning of Article 38 (a) and (b) the Labor Code. Since it is undisputed that appellant is not a holder of a license or authority to recruit from the Department of Labor, through the POEA, her acts constitute illegal recruitment.Illegal recruitment carries with it the penalty of life imprisonment, and a fine which varies by degrees in accordance with the enumeration made in Article 39 of the Labor Code, as amended. In the case at bench, since appellant was charged with and convicted of illegally recruiting four (4) people, her crime is classified as having been committed in large scale. 34 As such, it is considered as involving economic sabotage, and carries with it a fine of ONE HUNDRED THOUSAND PESOS (P100,000.00). 35 In addition to these penalties, appellant must also be ordered to indemnify private complainants the unrefunded portion of their processing fees.IN VIEW WHEREOF, the Decision, dated January 25, 1994, of the Regional Trial Court of Manila, Branch 5, in Criminal Case No. 91-93606

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is AFFIRMED, subject to the modification that, in addition to being sentenced to suffer LIFE IMPRISONMENT and pay a fine of ONE HUNDRED THOUSAND PESOS (P100,000.00), appellant Felicia Mazambique Cabacang is likewise ordered to indemnify private complainants in the amount of TWENTY-FIVE THOUSAND EIGHT HUNDRED PESOS (P25,800.00). Costs against appellant.SO ORDERED.

11. People vs. Chowdury [G.R. No. 129577-80 February 15, 2000]

Facts: Bulu Chowdury was charged with the crime of illegalrecruitment 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 jobapplicants 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 inrecruitment 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 legalrequirements 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.

12. People of the Philippines v Jamilosa:

FACTS: In May 1996, Lourdes Valenciano, claiming to be an employee of Middle East International Manpower Resources, Inc., went with one Susie Caraeg to the house of Agapito De Luna, and told him he could apply for a job in Taiwan. A week later, De Luna went to Valenciano’s house, there to be told to undergo a medical examination, with the assurance that if there were a job order abroad, he would be able to leave. He was also told that the placement fee for his employment as a factory worker in Taiwan was PhP 70,000.

After passing the medical examination, De Luna paid Valenciano at the latter’s residence the following amounts: PhP 20,000 on June 21, 1996; PhP 20,000 on July 12, 1996; and PhP 30,000 on August 21, 1996. The first and last payments were turned over by Valenciano to Teresita Imperial, who issued the corresponding receipts, and the second payment was turned over by Valenciano to Rodante Imperial, who also issued a receipt. Also in May 1996, Valenciano visited the house of Allan De Villa, accompanied by Euziel N. Dela Cuesta, Eusebio T. Candelaria, and De Luna, to recruit De Villa as a factory worker in Taiwan. De Villa was also asked for PhP 70,000 as placement fee. He paid Valenciano the following amounts: PhP 20,000 on May 16, 1996 at Valenciano’s residence; PhP 20,000 onMay 30, 1996 at the Rural Bank of Calaca, Batangas; PhP 20,000 on July 8, 1996 at Valenciano’s residence; and PhP 10,000 on August 14, 1996, also at her residence. Valenciano turned over the amounts to either Teresita or Rodante. Teresita issued receipts for the May 16, July 8, and August 14, 1996 payments, while Rodante issued a receipt for the payment made onMay 30, 1996. On May 20, 1996, Valenciano, accompanied by Rodante and Puring Caraeg, went to the house of Dela Cuesta to recruit her for employment as a factory worker in Taiwan. Dela Cuesta paid Valenciano PhP 20,000 as initial payment on May 20, 1996. On May 30, 1996, she paid Valenciano another PhP 20,000. On August 12, 1996, she paid PhP 15,000, and onAugust 21, 1996, she paid PhP 7,000. Valenciano turned the May 20 and 30, 1996 payments over to Rodante, who issued receipts for these payments. The payments made on August 12 and 21, 1996 were turned over to Teresita, who also issued receipts for them. These payments were to cover the placement fee and other expenses for the processing of the requirements for the employment of Dela Cuesta in Taiwan. On May 1, 1996, Valenciano, with Rodante, Teresita, and Rommel Imperial, went to Lian, Batangas to recruit workers for employment abroad. Candelaria applied for a job as a factory worker in Taiwan when Valenciano went to his residence in Lian. Valenciano asked him for an initial payment of PhP 20,000. On May 30, 1996, Candelaria paid Valenciano PhP 20,000 when she returned to Lian. He then paid PhP 20,000 on June 24, 1996 and PhP 29,000 on July 17, 1996 at Valenciano’s residence in Manila. These payments were to cover the placement fee and the expenses for the processing of his passport and other papers connected with his application for employment as a factory worker in Taiwan. The payments made on May 30 and July 17, 1996 were turned over to Rodante, who issued a receipt for the said payments. The payment made on June 24, 1996 was turned over by Valenciano to Teresita. After the payments were made, Valenciano brought the prospective workers to the office of Middle East International Manpower Resources, Inc. in Pasay City, where they were made to fill out application forms for their employment as factory workers in Taiwan. The complainants were introduced to Romeo Marquez, alias “Rodante Imperial,” Teresita Marquez, alias “Teresita Imperial,” and Rommel Marquez, alias “Rommel Imperial,” whom Valenciano made to appear as the owners of the employment agency. She assured the prospective workers that they could leave for Taiwan within one month from the filing of their applications. During the period material, they have not yet found employment as factory workers in Taiwan. Valenciano, Rodante, Teresita, and Rommel were charged with the offense of illegal recruitment in large scale, as defined under Article 13(b) of Presidential Decree No. (PD) 442, otherwise known as the Labor Code of the Philippines, as amended, in relation to Art. 38(a), and penalized under Art. 39(c) of the Code, as amended by PD 1920 and PD 2018.

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The RTC found accused-appellant guilty, is also ordered to indemnify complainants Agapito R. de Luna, Allan Ilagan de Villa, Euziel N. dela Cuesta and Eusebio T. Candelaria the amounts of P70,000.00, P70,000.00, P62,000.00 and P69,000.00, respectively, as reparation of the damage caused.Accused-appellant appealed to this Court, but the case was transferred to the CA through a Resolution dated September 6, 2004.ISSUE: 1) the lower court gravely erred in not acquitting accused-appellant on reasonable doubt; and (2) the lower court gravely erred in holding that a conspiracy exists between accused-appellant and her co-accused.

HELD: The appeal is without merit. In her defense, accused-appellant claims that she was an ordinary employee of Middle East International Manpower Resources, Inc., where her other co-accused were the owners and managers. She also denies receiving payment from the complainants; that had she promised employment in Taiwan, this promise was made in the performance of her duties as a clerk in the company. She denies too having knowledge of the criminal intent of her co-accused, adding that she might even be regarded as a victim in the present case, as she was in good faith when she made the promise.

The claim of accused-appellant that she was a mere employee of her other co-accused does not relieve her of liability. 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 the employee actively and consciously participated in illegal recruitment. As testified to by the complainants, accused-appellant was among those who met and transacted with them regarding the job placement offers. In some instances, she made the effort to go to their houses to recruit them. She even gave assurances that they would be able to find employment abroad and leave for Taiwan after the filing of their applications. Accused-appellant was clearly engaged in recruitment activities, notwithstanding her gratuitous protestation that her actions were merely done in the course of her employment as a clerk.

Accused-appellant cannot claim to be merely following the

dictates of her employers and use good faith as a shield against criminal liability. As held in People v. Gutierrez:

Appellant cannot escape liability by claiming that she was not aware that before working for her employer in the recruitment agency, she should first be registered with the POEA. Illegal recruitment in large scale is malum prohibitum, not malum in se. Good faith is not a defense.

The claim of accused-appellant that she received no payment

and that the payments were handed directly over to her co-accused fails in the face of the testimony of the complainants that accused-appellant was the one who received the money. In spite of the receipts having been issued by her co-accused, the trial court found that payments were directly made to accused-appellant, and this finding was upheld by the CA. Nothing is more entrenched than the rule that where, as here, the findings of fact of the trial court are affirmed by the CA, these are final and conclusive upon this Court. And even if it were true that no money changed hands, money is not material to a prosecution for illegal recruitment, as the definition of “recruitment and placement” in the Labor Code includes the phrase, “whether for profit or not.” We held in People v. Jamilosa that it was “sufficient that the accused promises or offers for a fee employment to warrant conviction for illegal recruitment. Accused-appellant made representations that complainants would receive employment abroad, and this suffices for her conviction, even if her name does not appear on the receipts issued to complainants as evidence that payment was made.

The RTC found accused-appellant to have undertaken recruitment activities, and this was affirmed by the CA. A POEA certification was

submitted stating that accused-appellant was not authorized to recruit applicants for overseas employment, and she did not contest this certification. In the present case, there are four complainants: De Luna, De Villa, Dela Cuesta, and Candelaria. The three essential elements for illegal recruitment in large scale are present. Thus, there can be no other conclusion in this case but to uphold the conviction of accused-appellant and apply the penalty as imposed by law.

13. Executive Secretary vs. The Court of Appeals

Facts: Republic Act 8042, otherwise known as the Migrant Workers and Overseas Filipinos Act of 1995, took effect on 15 July 1995. The Omnibus Rules and Regulations Implementing the Migrant Workers and Overseas Filipino Act of 1995 was, thereafter, published in the 7 April 1996 issue of the Manila Bulletin. However, even before the law took effect, the Asian Recruitment Council Philippine Chapter, Inc. (ARCO-Phil.) filed, on 17 July 1995, a petition for declaratory relief under Rule 63 of the Rules of Court with the Regional Trial Court of Quezon City to declare as unconstitutional Section 2, paragraph (g), Section 6, paragraphs (a) to (j), (l) and (m), Section 7, paragraphs (a) and (b), and Sections 9 and 10 of the law, with a plea for the issuance of a temporary restraining order and/or writ of preliminary injunction enjoining The Executive Secretary, the Secretary of Justice, the Secretary of Labor and Employment, the Secretary of Foreign Affairs, OWWA Administrator, and POEA Administrator from enforcing the assailed provisions of the law. In a supplement to its petition, the ARCO-Phil. alleged that RA 8042 was self-executory and that no implementing rules were needed. It prayed that the court issue a temporary restraining order to enjoin the enforcement of Section 6, paragraphs (a) to (m) on illegal recruitment, Section 7 on penalties for illegal recruitment, and Section 9 on venue of criminal actions for illegal recruitments. On 1 August 1995, the trial court issued a temporary restraining order effective for a period of only 20 days therefrom. After the Executive Secretary, et al. filed their comment on the petition, the ARCO-Phil. filed an amended petition, the amendments consisting in the inclusion in the caption thereof 11 other corporations which it alleged were its members and which it represented in the suit, and a plea for a temporary restraining order enjoining the Executive Secretary, et al. from enforcing Section 6 subsection (i), Section 6 subsection (k) and paragraphs 15 and 16 thereof, Section 8, Section 10, paragraphs 1 and 2, and Sections 11 and 40 of RA 8042. Arco-Phil averred that the provisions of RA 8042 violate Section 1, Article III of the Constitution (i.e. discrimination against unskilled workers, discrimination against licensed and registered recruiters, among others) In their answer to the petition, the Executive Secretary, et al. alleged, inter alia, that (a) Acro-Phil has no cause of action for a declaratory relief; (b) the petition was premature as the rules implementing RA 8042 not having been released as yet; (c) the assailed provisions do not violate any provisions of the Constitution; and, (d) the law was approved by Congress in the exercise of the police power of the State. After the respective counsels of the parties were heard on oral arguments, the trial court issued on 21 August 1995, an order granting Acro-Phil’s plea for a writ of preliminary injunction upon a bond of P50,000. Acro-Phil posted the requisite bond and on 24 August 1995, the trial court issued a writ of preliminary injunction enjoining the enforcement of Section 2, subsections (g) and (i, 2nd par.); Section 6, subsections (a) to (m), and pars. 15 & 16; Section 7, subsections (a) & (b); Section 8; Section 9; Section 10; pars. 1 & 2; Section 11; and Section 40 of RA 8042, pending the termination of the proceedings. The Executive Secretary, et al. filed a petition for certiorari with the Court of Appeals assailing the order and the writ of preliminary injunction issued by the trial court. They asserted that Acro-Phil is not the real party-in-interest as petitioner in the trial court, as it was inconceivable how a non-stock and non-profit corporation, could sustain direct injury as a result of the enforcement of the law. They argued that if, at all, any damage would result in the implementation of the law, it is the licensed and registered recruitment agencies and/or the unskilled Filipino migrant workers discriminated against who would sustain the said injury or damage, not Acro-Phil. On

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5 December 1997, the appellate court came out with a four-page decision dismissing the petition and affirming the assailed order and writ of preliminary injunction issued by the trial court. The appellate court, likewise, denied the Executive Secretary, et al.’s motion for reconsideration of the said decision. They thus filed a petition for review on certiorari.

Issue: Whether ACRO-Phil has locus standi.

Held: PARTLY YES. ACRO-Phil has locus standi to file the petition in the RTC in representation of the 11 licensed and registered recruitment agencies impleaded in the amended petition. The modern view is that an association has standing to complain of injuries to its members. This view fuses the legal identity of an association with that of its members. An association has standing to file suit for its workers despite its lack of direct interest if its members are affected by the action. An organization has standing to assert the concerns of its constituents. In Telecommunications and Broadcast Attorneys of the Philippines v. Commission on Elections, the Court held that standing jus tertii would be recognized only if it can be shown that the party suing has some substantial relation to the third party, or that the right of the third party would be diluted unless the party in court is allowed to espouse the third party’s constitutional claims. Herein, ACRO-Phil filed the petition for declaratory relief under Rule 64 of the Rules of Court for and in behalf of its 11 licensed and registered recruitment agencies which are its members, and which approved separate resolutions expressly authorizing ACRO-Phil to file the said suit for and in their.behalf. The Court note that, under its Articles of Incorporation, ACRO-Phil was organized for the purposes inter alia of promoting and supporting the growth and development of the manpower recruitment industry, both in the local and international levels; providing, creating and exploring employment opportunities for the exclusive benefit of its general membership; enhancing and promoting the general welfare and protection of Filipino workers; and, to act as the representative of any individual, company, entity or association on matters related to the manpower recruitment industry, and to perform other acts and activities necessary to accomplish the purposes embodied therein. ACRO-Phil is, thus, the appropriate party to assert the rights of its members, because it and its members are in every practical sense identical. ACRO-Phil asserts that the assailed provisions violate the constitutional rights of its members and the officers and employees thereof. ACRO-Phil is but the medium through which its individual members seek to make more effective the expression of their voices and the redress of their grievances. However, ACROPHIL has no locus standi to file the petition for and in behalf of unskilled workers. The Court notes that it even failed to implead any unskilled workers in its petition. Furthermore, in failing to implead, as parties-petitioners, the 11 licensed and registered recruitment agencies it claimed to represent, ACRO-Phil failed to comply with Section 2 of Rule 63 of the Rules of Court. Nevertheless, since the eleven licensed and registered recruitment agencies for which ACRO-Phil filed the suit are specifically named in the petition, the amended petition is deemed amended to avoid multiplicity of suits.

14. Romero vs People

FACTS: PRIVATE respondent Romulo Padlan went to petitioner Delia D. Romero to inquire about securing a job in Israel. Convinced by petitioner’s words of encouragement and inspired by the potential salary of US$700 to US$1,200 a month, respondent raised the amount of US$3,600, which he gave to petitioner so that his papers could be processed.Respondent left for Israel and secured a job with a monthly salary of US$650. Unfortunately, after two and a half months, he was caught by Israel’s immigration police and deported for lack of a working visa.On his return, respondent demanded from petitioner the return of his money but the later refused.

ISSUE: Will the accused be held liable for Illegal recruitment?

Ruling: Yes.Article 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 of 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 Article 13 (b), or any prohibited practices enumerated under Article 34 of the Labor Code.x x xThus, the trial court did not err in considering the certification from the Department of Labor and Employment-Dagupan District Office stating that petitioner has not been issued any license by the POEA nor is a holder of an authority to engage in recruitment and placement activities.x x xFrom the above testimonies, it is apparent that petitioner was able to convince the private respondents to apply for work in Israel after parting with their money in exchange for the services she would render. The said act of the petitioner, without a doubt, falls within the meaning of recruitment and placement as defined in Article 13 (b) of the Labor Code

19. RESURRECCION SUZARA Vs BENIPAYO EN BANC[G.R. Nos. 57999, 58143-53. August 15, 1989.]

FACTS OF THE CASEThIS involveS a group of Filipino seamen who were declared by the defunct National Seamen Board (NSB) guilty of breaching their employment contracts with the private respondent because they demanded, upon the intervention and assistance of a third party, the International Transport Worker's Federation (ITF), the payment of wages over and above their contracted rates without the approval of the NSB. The means they used were violent and illegal. The petitioners were ordered to reimburse the total amount of US$91,348.44 or its equivalent in Philippine Currency representing the said over-payments and to be suspended from the NSB registry for a period of three years .The National Labor Relations Commission (NLRC) affirmed the decision of the NSB.In a corollary development, the private respondent, for failure of the petitioners to return the overpayments made to them upon demand by the former, filed estafa charges against some of the petitioners. The criminal cases were eventually consolidated in the sala of then respondent Judge Alfredo Benipayo. Hence, these consolidated petitions, G.R. No. 64781-99 and G.R. Nos. 57999 and 58143-53, which respectively pray for the nullification of the decisions of the NLRC and the NSB, and the dismissal of the criminal cases against the petitioners.ISSUESThe principal issue in these consolidated petitions is whether or not the petitioners are entitled to the amounts they received from the private respondent representing additional wages as determined in the special agreement. If they are, then the decision of the NLRC and NSB must be reversed. Similarly, the criminal cases of estafa must be dismissed because it follows as a consequence that the amounts received by the petitioners belong to them and not to the private respondent.

RULINGThe decisions of the National Seamen Board and National Labor Relations Commission in G. R. Nos. 64781-99 are REVERSED and SET

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ASIDE and a new one is entered holding the petitioners not guilty of the offenses for which they were charged. The petitioners' suspension from the National Seamen Board's Registry for three (3) years is LIFTED. The private respondent is ordered to pay the petitioners their earned but unpaid wages and overtime pay/allowance from November 1, 1978 to December 14, 1978 according to the rates in the Special Agreement that the parties entered into in Vancouver, Canada.The criminal cases for estafa, subject matter of G. R. Nos. 57999 and 58143-53, are ordered DISMISSED.As stated in Vir-Jen Shipping (supra):"The seamen had done no act which under Philippine law or any other civilized law would be termed illegal, oppressive, or malicious. Whatever pressure existed, it was mild compared to accepted and valid modes of labor activity."The court cannot affirm the NSB and NLRC's finding that there was violence, physical or otherwise employed by the petitioners in demanding for additional wages. The fact that the petitioners placed placards on the gangway of their ship to show support for ITF's demands for wage differentials for their own benefit and the resulting ITF's threatened interdiction do not constitute violence. The petitioners were exercising their freedom of speech and expressing sentiments in their hearts when they placed the placard "We Want ITF Rates." Under the facts and circumstances of these petitions, we see no reason to deprive the seamen of their right to freedom of expression guaranteed by the Philippine Constitution and the fundamental law of Canada where they happened to exercise it.

We likewise, find the public respondents' conclusions that the acts of the petitioners in demanding and receiving wages over and above the rates appearing in their NSB-approved contracts is in effect an alteration of their valid and subsisting contracts because the same were not obtained through mutual consent and without the prior approval of the NSB to be without basis, not only because the private respondent's consent to pay additional wages was not vitiated by any violence or intimidation on the part of the petitioners but because the said NSB-approved form contracts are not unalterable contracts that can have no room for improvement during their effectivity or which ban any amendments during their term.For one thing, the employer can always improve the working conditions without violating any law or stipulation.

20. Seagull maritime Vs nerry balatongan

FACTS OF THE CASENerry balatongan was employed as a seaman on board the vessel santa cruz. While on bOardd he entered a supplementary contract Of insurance for Accidental disability Or death. Almost a year unto his contract he met an accident which required prolonged hospitalization for almost 6 months which led to a permanent disability.Balatongan then demanded payment from his insurance coverage of $50,000 but his claim was denied because he failed to file his claim within the designated period.THis led him to file a complaint .against philmare and seagull maritime in the POEA for non payment of his i surance claim. The POEA decided in favor of Balatongan And ordered the payment Of his insurance claim. philmare filed a motion for reconsideration which was dismissed by the NLRC. Hence this petition for certiorari And restraining order. Petitioner claims that the supplementary contract vIolated article 34 of the labor code And with the supplementary contract is also a waiver for claims for compensation for damages due to death or permanent disability

ISSUESWON the supplementary contract is valid and enforceable in as much as the POEA Did not approve it Therefore violating art 34 of the labor code

RULINGThe petition was dismissed for lack of merit

SUPPLEMENTARY CONTRACT" PROVIDING FOR MORE BENEFITS TO THE WORKERS, DECLARED VALID AND ENFORCEABLE EVEN WITHOUT APPROVAL OF THE POEA. — The supplementary contract of employment was entered into between petitioner and private respondent to modify the original contract of employment. The reason why the law requires that the POEA should approve and verify a contract under Article 34(i) of the Labor Code is to insure that the employee shall not thereby be placed in a disadvantageous position and that the same are within the minimum standards of the terms and conditions of such employment contract set by the POEA. This is why a standard format for employment contracts has been adopted by the Department of Labor. However, there is no prohibition against stipulating in a contract more benefits to the employee than those required by law. Thus, in this case wherein a "supplementary contract" was entered into affording greater benefits to the employee than the previous one, and although the same was not submitted for the approval of the POEA, the public respondents properly considered said contract to be valid and enforceable. Indeed, said pronouncements of public respondents have the effect of an approval of said contract. Moreover, as said contract was voluntarily entered into by the parties the same is binding between them. Not being contrary to law, morals, good customs, public policy or public order, its validity must be sustained PROVISION ON WAIVER AGAINST ALL CLAIMS AGAINST THE EMPLOYER, HELD CONTRARY TO PUBLIC POLICY. — The court sustains the ruling of public respondents that the provision in the supplementary contract whereby private respondent waives any claim against petitioners for damages arising from death or permanent disability is against public policy, oppressive and inimical to the rights of private respondent. The said provision defeats and is inconsistent with the duty of petitioners to insure private respondent against said contingencies as clearly stipulated in the said contract.** Seagull vs balatonganRespondent nerrybalatongan and petitioner seagull had a crew agreement approved by NSB(defunct, now POEA approves such) While on board the ship petitioner and respondent entered into another contract (supplementary contract) – insurance for respondent if any case he dies or becomes permanently disabledSome time respondent met an accident in Suez canal, he was repatriated to Philippines. There he was categorized as permanently disabled.Respondent tried to claim insurance but was denied for it being filed beyond the designated periodRespondent filed complaint, adjudicator compelled petitioner to pay the insurance benefit $50000 with 10% atty feePet. Petitioned to nlrc – dismissedIssues: 1. Is Petitioner liable even if said supplementary contract was not authorized by POEA?Yes –POEA only prohibits contracts which are not up to standard of POEA rules and regulations(sec 2 rule 1 book 5 rules and regulations of POEA), and those that are against public policy law etc. Since the supplementary contract is more beneficial to the respondent more so than the minimum standard set by POEA there is no valid reason for SC to disallow such contract.

21. Ocean agency Corp vs. NLRCFACTS: On September 28, 1991, respondent Capt. Pepito M. Gucor was hired by petitioner Ocean East Agency Corp. (Ocean East), the manning agent of herein co-petitioner European Navigation, Inc. (ENI), as master of M/V "Alpine" for a period of one (1) year with a monthly salary of US$840.00. Sometime in February 1992, while the M/V "Alpine" was anchored at the Port of Havana, Cuba, respondent was informed of his repatriation for his subsequent transfer to another vessel.Perceiving the transfer as an insult to his professional competence, Capt. Gucor signified that, unless his full benefits are accorded him, he shall refuse to leave the vessel knowing the cause for his repatriation to be unreasonable. In an effort to assuage his fears, petitioners Ocean

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East and ENI advised him that his services were not terminated at all, the repatriation being solely for documentation purposes. On February 29, 1992, after his demands were fully settled, respondent agreed to be repatriated. Petitioner alleged that in view of respondent's earlier refusal to be repatriated and to man the newly-acquired MV "Havre de Grace," it was compelled to assign another master to the said vessel. Thereafter, the company decided to assign him to MV "Eleptheria-K," whose master was going on leave on February 27, which, however, respondent likewise missed for failure to disembark when ordered to do so.On the ground of serious misconduct or willful disobedience, petitioner terminated the services of respondent. In a complaint for illegal dismissal, on December 1, 1993, Philippine Overseas Employment Administration (POEA), through Administrator Felicisimo O. Joson, dismissed the said complaint for lack of merit finding respondent's apprehension as premature and that petitioners were merely acting in the exercise of their management prerogative.On appeal, this decision was reversed by the National Labor Relations Commission (NLRC) in its decision dated November 29, 1994.ISSUE: WON the intended transfer of Capt. Gucor to another vessel was in effect an alteration of his original contract which could not be done without the approval of the Secretary of Labor.HELD: Standard Employment Contract:

The CREWMEMBER agrees to be transferred at any port to any vessel owned or operated, manned or managed by the same employer provided it is accredited to the same manning agent and provided further that the rating of the crewmember and the rate of his wages and terms of service are in no way inferior and the total period of employment shall not exceed that originally agreed upon.

Article 34(i) of the Labor Code, on the other hand, reads:(i) It shall be unlawful for "any individual,

entity, licensee or holder of authority to substitute or alter employment contract 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.

Apparently, there is no inconsistency between Article 34(i) of the Labor Code and the transfer clause under the SEC. On the contrary, the latter even complements the other by way of resolving the complex demands of seafarers whose services may entail occasional transfer from one vessel to another. Obviously, the transfer clause is not without limitations. Thus, a transfer is sanctioned only if it is to any vessel owned or operated, manned or managed by the same employer provided it is accredited to the same mantling agent and that the rating of the crewmember, his wages and terms of service are in no way inferior and the total period of employment shall not exceed that originally agreed upon. In the instant case, respondent's assignment to another vessel owned by European Navigation and accredited to the same manning agent, therefore, under no circumstance, violated Article 34(i) of the Labor Code. The transfer clause is deemed incorporated into the original contract; hence, the approval of the Secretary of Labor is no longer necessary.Accordingly, we conclude that petitioners merely availed of what the employment contract allows. Indeed, it was nothing more than an application of the subject provision.

22. Serrano Vs. Gallant maritime servicesFacts:Petitioner was hired by Gallant Maritime Services, Inc. and Marlow Navigation Co., Ltd. (respondents) under aPOEA-approved Contract of Employment. On March 19, 1998, the date of his departure, petitioner was constrained toaccept a downgraded employment contract for the position of Second Officer with a monthly salary of US$1,000.00, uponthe 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 SecondOfficer 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, butat 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 onthe sole issue that the LA erred in not applying the ruling of the Court in...?

23. Pert/CPM Manpower Exponent Co., Inc. Vs. Amando A. Vinuya, et al.Facts:The respondents alleged that the agency deployed them was to work as aluminum fabricator/installer. However, they were shocked to find out what their working and living conditions were in Dubai. They were required to work from 6:30 a.m. to 6:30 p.m., with a break of only one hour to one and a half hours. When they rendered overtime work, they were most of the time either underpaid or not paid at all.Burdened by all the expenses and financial obligations, they signed new employment contracts. Due to agency’s inaction, the respondents expressed to Modern Metal their desire to resign.Out of fear, as they put it, that Modern Metal would not give them their salaries and release papers, the respondents, except Era, cited personal/family problems for their resignation. It took the agency several weeks to repatriate the respondents to the Philippines.The agency countered that the respondents were not illegally dismissed; they voluntarily resigned from their employment to seek a better paying job.The agency further alleged that the respondents even voluntarily signed affidavits of quitclaim and release after they resignedIssue:W/N petitioners were illegally dismissedHeld:The agency and its principal, Modern Metal, committed a prohibited practice and engaged in illegal recruitment when they altered or substituted the contracts approved by the Philippine Overseas Employment Administration (POEA). Article 34 (i) of the Labor Code provides: It shall be unlawful for any individual, entity, licensee, or holder of authority 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 period of expiration of the same without the approval of the Secretary of Labor. Meanwhile, Article 38 (i) of the Labor Code, as amended by R.A. 8042, defined “illegal recruitment” to include the substitution or alteration, to the prejudice of the worker, of employment contracts approved and verified by the Department of Labor and Employment from the time of actual signing thereof by the parties up to and including the period of the expiration of the same without the approval of the Department of Labor and Employment.Furthermore, the agency and Modern Metal committed breach of contract by providing substandard working and living arrangements, when the contract provided free and suitable housing. We thus cannot accept the agency’s insistence that the respondents voluntarily resigned since they personally prepared their resignation letters in their own handwriting.

24. SALAZAR VS. ACHACOSO Facts: Rosalie Tesoro charged petitioner with illegal recruitment. Public respondent Atty. Ferdinand Marquez sent petitioner a telegram directing 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

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Achacoso issued a Closure and Seizure . It stated that there will a seizure of the documents and paraphernalia being used or intended to be used as the means of committing illegal recruitment, 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 codeA 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 due process. 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 CodeHeld: Under the new Constitution, “. . . no search warrant or warrant 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 and seizure 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 Seizure Order

25. TOLOSA vs NLRC FACTSEvelyn Tolosa, was the widow of Captain Virgilio Tolosa who was hired by Qwana-Kaiun, through its manning agent, Asia Bulk, to be the master of the Vessel named M/V Lady Dona. . The vessel departed for Long Beach California, passing by Hawaii in the middle of the voyage. At the time of embarkation, CAPT. TOLOSA was allegedly shown to be in good health.“During ‘channeling activities’ upon the vessel’s departure CAPT. TOLOSA was drenched with rainwater. The following day, he had a slight fever and in the succeeding twelve (12) days, his health rapidly deteriorated resulting in his death . It was alleged that the request for emergency evacuation of Capt Tolosa was too late.Because of the death of CAPT. TOLOSA, his wife, EVELYN, as petitioner, filed a Complaint/Position Paper before the POEA against Qwana-Kaiun, thru its resident-agent. The case was however transferred to the NLRC, when the amendatory legislation expanding its jurisdiction, and removing overseas employment related claims from the ambit of POEA jurisdiction. Petitioner argues that her cause of action is not predicated on a quasi delict or tort, but on the failure of private respondents -- as employers of her husband (Captain Tolosa) -- to provide him with timely, adequate and competent medical services under Article 161 of the Labor Code.Respondents aver that the Labor Arbiter has no jurisdiction over the

subject matter, since her cause did not arise from an employer-employee relation, but from a quasi delict or tort. Further, there is no reasonable causal connection between her suit for damages and her claim under Article 217 (a)(4) of the Labor Code, which allows an award of damages incident to an employer-employee relation.ISSUEWhether or not the Labor Arbiter has jurisdiction over the subject matter.HELDThe SC held that the NLRC and the labor arbiter had no jurisdiction over petitioner’s claim for damages, because that ruling was based on a quasi delict or tort per Article 2176 of the Civil Code.After carefully examining the complaint/position paper of petitioner, we are convinced that the allegations therein are in the nature of an action based on a quasidelict or tort. It is evident that she sued Pedro Garate and Mario Asis for gross negligence. Petitioner’s complaint/position paper refers to and extensively discusses the negligent acts of shipmates Garate and Asis, who had no employer-employee relation with Captain Tolosa. The SC stressed that the case does not involve the adjudication of a labor dispute, but the recovery of damages based on a quasi delict. The jurisdiction of labor tribunals is limited to disputes arising from employer-employee relations.Not every dispute between an employer and employee involves matters that only labor arbiters and the NLRC can resolve in the exercise of their adjudicatory or quasi-judicial powers. The jurisdiction of labor arbiters and the NLRC under Article 217 of the Labor Code is limited to disputes arising from an employer-employee relationship which can only be resolved by reference to the Labor Code, other labor statutes, or their collective bargaining agreement.”23. Pert/CPM Manpower Exponent Co., Inc. Vs. Amando A. Vinuya, et al.Facts:The respondents alleged that the agency deployed them was to work as aluminum fabricator/installer. However, they were shocked to find out what their working and living conditions were in Dubai. They were required to work from 6:30 a.m. to 6:30 p.m., with a break of only one hour to one and a half hours. When they rendered overtime work, they were most of the time either underpaid or not paid at all.Burdened by all the expenses and financial obligations, they signed new employment contracts. Due to agency’s inaction, the respondents expressed to Modern Metal their desire to resign.Out of fear, as they put it, that Modern Metal would not give them their salaries and release papers, the respondents, except Era, cited personal/family problems for their resignation. It took the agency several weeks to repatriate the respondents to the Philippines.The agency countered that the respondents were not illegally dismissed; they voluntarily resigned from their employment to seek a better paying job.The agency further alleged that the respondents even voluntarily signed affidavits of quitclaim and release after they resignedIssue:W/N petitioners were illegally dismissedHeld:The agency and its principal, Modern Metal, committed a prohibited practice and engaged in illegal recruitment when they altered or substituted the contracts approved by the Philippine Overseas Employment Administration (POEA). Article 34 (i) of the Labor Code provides: It shall be unlawful for any individual, entity, licensee, or holder of authority 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 period of expiration of the same without the approval of the Secretary of Labor. Meanwhile, Article 38 (i) of the Labor Code, as amended by R.A. 8042, defined “illegal recruitment” to include the substitution or alteration, to the prejudice of the worker, of employment contracts approved and verified by the Department of Labor and Employment from the time of actual signing thereof by the parties up to and including the period of the expiration of the same without the approval of the Department of Labor and Employment.Furthermore, the agency and Modern Metal committed breach of

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contract by providing substandard working and living arrangements, when the contract provided free and suitable housing. We thus cannot accept the agency’s insistence that the respondents voluntarily resigned since they personally prepared their resignation letters in their own handwriting.

24. SALAZAR VS. ACHACOSO Facts: Rosalie Tesoro charged petitioner with illegal recruitment. Public respondent Atty. Ferdinand Marquez sent petitioner a telegram directing 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 . It stated that there will a seizure of the documents and paraphernalia being used or intended to be used as the means of committing illegal recruitment, 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 codeA 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 due process. 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 CodeHeld: Under the new Constitution, “. . . no search warrant or warrant 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 and seizure 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 Seizure Order

25. TOLOSA vs NLRC FACTSEvelyn Tolosa, was the widow of Captain Virgilio Tolosa who was hired by Qwana-Kaiun, through its manning agent, Asia Bulk, to be the master of the Vessel named M/V Lady Dona. . The vessel departed for Long Beach California, passing by Hawaii in the middle of the voyage. At the time of embarkation, CAPT. TOLOSA was allegedly shown to be in good health.“During ‘channeling activities’ upon the vessel’s departure CAPT. TOLOSA was drenched with rainwater. The following day, he had a slight fever and in the succeeding twelve (12) days, his health rapidly

deteriorated resulting in his death . It was alleged that the request for emergency evacuation of Capt Tolosa was too late.Because of the death of CAPT. TOLOSA, his wife, EVELYN, as petitioner, filed a Complaint/Position Paper before the POEA against Qwana-Kaiun, thru its resident-agent. The case was however transferred to the NLRC, when the amendatory legislation expanding its jurisdiction, and removing overseas employment related claims from the ambit of POEA jurisdiction. Petitioner argues that her cause of action is not predicated on a quasi delict or tort, but on the failure of private respondents -- as employers of her husband (Captain Tolosa) -- to provide him with timely, adequate and competent medical services under Article 161 of the Labor Code.Respondents aver that the Labor Arbiter has no jurisdiction over the subject matter, since her cause did not arise from an employer-employee relation, but from a quasi delict or tort. Further, there is no reasonable causal connection between her suit for damages and her claim under Article 217 (a)(4) of the Labor Code, which allows an award of damages incident to an employer-employee relation.ISSUEWhether or not the Labor Arbiter has jurisdiction over the subject matter.HELDThe SC held that the NLRC and the labor arbiter had no jurisdiction over petitioner’s claim for damages, because that ruling was based on a quasi delict or tort per Article 2176 of the Civil Code.After carefully examining the complaint/position paper of petitioner, we are convinced that the allegations therein are in the nature of an action based on a quasidelict or tort. It is evident that she sued Pedro Garate and Mario Asis for gross negligence. Petitioner’s complaint/position paper refers to and extensively discusses the negligent acts of shipmates Garate and Asis, who had no employer-employee relation with Captain Tolosa. The SC stressed that the case does not involve the adjudication of a labor dispute, but the recovery of damages based on a quasi delict. The jurisdiction of labor tribunals is limited to disputes arising from employer-employee relations.Not every dispute between an employer and employee involves matters that only labor arbiters and the NLRC can resolve in the exercise of their adjudicatory or quasi-judicial powers. The jurisdiction of labor arbiters and the NLRC under Article 217 of the Labor Code is limited to disputes arising from an employer-employee relationship which can only be resolved by reference to the Labor Code, other labor statutes, or their collective bargaining agreement.”

29. HOLIDAY INN MANILA V. NLRCG.R. No. 109114 September 14, 1993

TRAINING & EMPLOYMENT OF SPECIAL WORKERS: Apprentice

FACTS: Honasan was accepted for on-the-job training as telephone operator at Holiday Inn for three weeks. Subsequently, she was employed on probationary basis for six months. On her employment contract, it was stipulated that the hotel can terminate her employment any time before the end of the probationary period. Alleging that her performance did not come up to the standards of the hotel, Holiday Inn dismissed her four days before the end of her probationary period. She questioned the dismissal on the ground that she was already a regular employee; hence, she cannot be dismissed as a probationer. ISSUE: WON Honasan is still a probationer.

RULING: No. We find that Honasan was placed by the petitioner on probation twice, first during her on-the-job training for three weeks,

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and next during another period of six months, ostensibly in accordance with Article 281. Her probation clearly exceeded the period of six months prescribed by this article.

Probation is the period during which the employer may determine if the employee is qualified for possible inclusion in the regular force. In the case at bar, the period was for three weeks, during Honasan's on-the-job training. When her services were continued after this training, the petitioners in effect recognized that she had passed probation and was qualified to be a regular employee.Honasan was certainly under observation during her three-week on-the-job training. If her services proved unsatisfactory then, she could have been dropped as early as during that period. But she was not. On the contrary, her services were continued, presumably because they were acceptable, although she was formally placed this time on probation.

The consequence is that she could no longer be summarily separated on the ground invoked by the petitioners. As a regular employee, she had acquired the protection of Article 279 of the Labor Code stating as follows:Art. 279. Security of Tenure — In cases of regular employment, the employer shall not terminate the services of an employee except for a just cause or when authorized by this Title. An employee who is unjustly dismissed from work shall be entitled to reinstatement without loss of seniority rights and other privileges and to his full backwages, inclusive of allowances, and to his other benefits or their monetary equivalent computed from the time his compensation was withheld from him up to the time of his actual reinstatement.

The policy of the Constitution is to give the utmost protection to the working class when subjected to such maneuvers as the one attempted by the petitioners. This Court is fully committed to that policy and has always been quick to rise in defense of the rights of labor, as in this case.

30-31. NITTO ENTERPRISES V. NLRCG.R. No. 114337 September 29, 1995

TRAINING & EMPLOYMENT OF SPECIAL WORKERS: Apprentice & Dual Training Systems Act

FACTS: Private respondent was hired as apprentice at Nitto Enterprises for six months. At one instance, he accidentally hit and injured the leg of the office secretary who was then sent to the hospital. Later that day, he entered a workshop which was not his work station and operated one of the machines without authority. On the process, his thumb got injured. Nitto Enterprises covered for his medication. The next day, respondent was asked to resign. When respondent filed a complaint for illegal dismissal, NLRC held that respondent is not an apprentice since no apprenticeship program had yet been filed and approved at the time their agreement was executed. On the other hand, Nitto Enterprises contended that the mere signing of the apprenticeship agreement already established an employer-apprentice relationship.

ISSUE: WON respondent is considered an apprentice.

RULING: No. The law is clear on this matter. Article 61 of the Labor Code provides:Contents of apprenticeship agreement. — Apprenticeship agreements, including the main rates of apprentices, shall conform to the rules issued by the Minister of Labor and Employment. The period of apprenticeship shall not exceed six months. Apprenticeship agreements providing for wage rates below the legal minimum wage, which in no case shall start below 75% per cent of the applicable minimum wage, may be entered into only in accordance with apprenticeship program duly approved by the Minister of Labor and

Employment. The Ministry shall develop standard model programs of apprenticeship.

Petitioner did not comply with the requirements of the law. It is mandated that apprenticeship agreements entered into by the employer and apprentice shall be entered only in accordance with the apprenticeship program duly approved by the Minister of Labor and Employment.Prior approval by the Department of Labor and Employment of the proposed apprenticeship program is, therefore, a condition sine quo non before an apprenticeship agreement can be validly entered into. The act of filing the proposed apprenticeship program with the Department of Labor and Employment is a preliminary step towards its final approval and does not instantaneously give rise to an employer-apprentice relationship.Article 57 of the Labor Code provides that the State aims to "establish a national apprenticeship program through the participation of employers, workers and government and non-government agencies" and "to establish apprenticeship standards for the protection of apprentices." To translate such objectives into existence, prior approval of the DOLE to any apprenticeship program has to be secured as a condition sine qua non before any such apprenticeship agreement can be fully enforced. The role of the DOLE in apprenticeship programs and agreements cannot be debased.Hence, since the apprenticeship agreement between petitioner and private respondent has no force and effect in the absence of a valid apprenticeship program duly approved by the DOLE, private respondent's assertion that he was hired not as an apprentice but as a delivery boy ("kargador" or "pahinante") deserves credence. He should rightly be considered as a regular employee of petitioner.

32. BERNARDO V. NLRCG.R. No. 122917 July 12, 1999

RIGHTS OF PERSONS WITH DISABILITY, PRIVILEGES, AND PROTECTIONS

FACTS: Several handicapped persons were hired temporarily as money sorters and counters by the Far East Bank and were dismissed after six months by virtue of their employment contract. They filed a complaint for their dismissal. The bank argued that the complainants were not regular employees because their employment was under a special employment program and was for humanitarian reasons only. Although their contracts were renewed several times, the positions of money sorters and counters no longer exist. The NLRC agreed and ruled that complainants were hired as an accommodation to the recommendation of civic oriented personalities and that the Magna Carta for Disabled Persons was not applicable.

ISSUE: WON the proscription against discrimination against disabled persons applies in the case at bar.

RULING: Yes. Respondent bank entered into the aforesaid contract with a total of 56 handicapped workers and renewed the contracts of 37 of them. In fact, two of them worked from 1988 to 1993. Verily, the renewal of the contracts of the handicapped workers and the hiring of others lead to the conclusion that their tasks were beneficial and necessary to the bank. More important, these facts show that they were qualified to perform the responsibilities of their positions. In other words, their disability did not render them unqualified or unfit for the tasks assigned to them.

In this light, the Magna Carta for Disabled Persons mandates that a qualified disabled employee should be given the same terms and

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conditions of employment as a qualified able-bodied person. Section 5 of the Magna Carta provides:Sec. 5. Equal Opportunity for Employment. — No disabled person shall be denied access to opportunities for suitable employment. A qualified disabled employee shall be subject to the same terms and conditions of employment and the same compensation, privileges, benefits, fringe benefits, incentives or allowances as a qualified able bodied person.

The primary standard, therefore, of determining regular employment is the reasonable connection between the particular activity performed by the employee in relation to the usual trade or business of the employer. The test is whether the former is usually necessary or desirable in the usual business or trade of the employer. The connection can be determined by considering the nature of the work performed and its relation to the scheme of the particular business or trade in its entirety. Also if the employee has been performing the job for at least one year, even if the performance is not continuous and merely intermittent, the law deems repeated and continuing need for its performance as sufficient evidence of the necessity if not indispensibility of that activity to the business. Hence, the employment is considered regular, but only with respect to such activity, and while such activity exist.

Without a doubt, the task of counting and sorting bills is necessary and desirable to the business of respondent bank.As regular employees, the twenty-seven petitioners are entitled to security of tenure; that is, their services may be terminated only for a just or authorized cause. Because respondent failed to show such cause, 17 these twenty-seven petitioners are deemed illegally dismissed and therefore entitled to back wages and reinstatement without loss of seniority rights and other privileges. 18 Considering the allegation of respondent that the job of money sorting is no longer available because it has been assigned back to the tellers to whom it originally belonged, 18petitioners are hereby awarded separation pay in lieu of reinstatement.

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