16. DISCIPLINARY ACTIONS INVOLVING OVERSEAS WORKERS. The POEA may undertake disciplinary action against a contract worker motu propio or upon the filing of a complaint for breach of discipline. The grounds for this action constitute commission by the workers of any of the offenses enumerated in the Rules or similar offenses while working overseas. (cf. Book VII Rule 7, POEA Rules). Breach of discipline may be penalized by stem warning, repatriation at the workers expense, suspension or disqualification from the overseas employment program. In the case of seamen, they may be desisted from the registry. These penalties are without prejudice to whatever civil or criminal liability that may be imposed by appropriate courts for such offenses.

Contract workers against whom penalties have been imposed or with pending obligations imposed upon them through an order, decision or resolution shall be included in the POEA blacklist. Such workers shall be disqualified from overseas employment unless properly cleared by the POEA or until their suspension is served or lifted. Contract workers or seamen who have a pending complaint for disciplinary action and those against whom a warrant of arrest or hold order has been issued by the appropriate agency are placed on the watch list.

17. EMPLOYMENT OF NON-RESIDENT ALIENS. The provisions of the Code on this topic have a wider application than its title might suggest. They apply to all aliens, resident or non-resident, actually employed or seeking employment in the Philippines, as well as to their present or prospective employers. All employed resident aliens are required to register with the Bureau of Local Employment under such guidelines issued by it. Resident or non-resident aliens seeking local employment must first secure an employment permit from the Bureau before they can be employed here.
As a general rule, an employment permit issued by the DOLE is the principal requirement. This is issued after their determination of the non- availability of a person in the Philippines who is competent, able and willing at the time of application to perform the services for which the alien is desired. For an enterprise registered in preferred areas of investment, the permit may be issued upon recommendation of the government agency charged with the supervision of the registered enterprise concerned (Art. 40, LC).

An employment permit is subject to certain conditions, viz: a) after its issuance, the alien shall not transfer to another job or change his employer without the prior approval of the Secretary (Art. 41-a, LC); b) if employed in an apprentice able occupation, the non-resident alien worker and his employer shall bind themselves to train at least two Filipino understudies for every alien worker for a period determined by the SOLE; and c) the alien worker shall not engage in any gainful employment other than that for which he was issued a permit (Book I rule 14, Secs. 2 & 3, OR).

Occupations nationalized or restricted by the Constitution or special laws are generally not available to aliens. An opinion of the Secretary of Justice on this matter indicates two possible exceptions, viz:

a) where the Secretary of Justice specifically authorizes the employment of foreign technical personnel; and b) where aliens are elected members of the board of corporations in proportion to their allowable participation in the capital of such corporations.

CHAPTER IV BOOK II .-- HUMAN RESOURCES DEVELOPMENT PROGRAM

1. OBJECTIVES OF THE PROGRAM. The objectives of the
human resources development program are:

a) to develop human resources; b) establish training institutions; and c) formulate such plans and programs as will ensure efficient allocation, development and utilization of the nation’s manpower, and thereby promote employment and accelerate economic and social growth (Art. 432, LC). It is evident that these objectives are complementary to those enumerated in Book I (cf. Art. 12. LC).

2. THE NATIONAL MANPOWER AND YOUTH COUNCIL. To carry out these objectives, the Labor Code reinstated the National Manpower and Youth Council (NMYC)4 attached to the Department of Labor and Employment for policy and program coordination.5 The Council is composed of the Secretary of Labor as ex-officio chairman, the Secretary of Education, Culture and Sports as ex-officio vice-chairman, and as ex-officio members: the Director General of the National Economic Development Authority, the Secretary of Agriculture, the Chairman of the Civil Service Commission, the Secretary of Social Welfare, the Secretary of Local Governments, the Secretary of Science and technology, the Secretary of Trade and Industry, as well as the Director General of the Council who is a non-voting member. In addition, the President shall appoint from the private sector two representatives each from national organizations of employers, national organizations of workers, and national family and youth organizations, each for a term of three years (Art. 45, LC).

3. RESPONSIBILITIES OF THE NMYC. The most significant responsibility of the NMYC is the formulation of a long-term national manpower plan for the optimum allocation, development and utilization of manpower for employment, entrepreneurship, and economic and social growth. This manpower plan, after adoption by the Council, shall be updated annually and submitted for approval by the President. When approved, it shall be the controlling plan for the development of manpower resources for the entire country (Art. 46, LC).

The NMYC is also tasked with the following additional functions:

a) to establish national, regional and local skills centers to promote and develop skills, as well as formulate and administer national skills standards for selected industry trades; b) to administer training programs in instructor and entrepreneurial development, vocational and trade skills, and other fields of employment, and to assist any employer or organization in training schemes designed to attain its objectives; c) establish industry boards to assist in the establishment of manpower development skills and such other functions as will provide direct participation of employers and workers in particular industries toward the fulfillment of the Councils objectives, and d) to administer ongoing technical assistance programs and/or grants-in-aid for manpower and youth development, including those which may be entered into with international and foreign organizations and nations.

4. THE PRIVATE SECTOR’S ROLE IN HUMAN RESOURCES DEVELOPMENT. The establishment of the NMYC as a national’ government agency in charge of the manpower development program does not preclude the participation of private sector in this undertaking. To begin with, the private sector is adequately represented by the six appointive members of the Council itself. Then too, private sector participates in the formulation of national skills standards, and in the composition of industry boards. In fact, the law establishes an incentive scheme to encourage such participation by allowing an additional deduction from taxable income of one-half of the value of labor training expense incurred for development programs, provided that such programs, other than apprenticeship, are approved by the Council, and the deduction does not exceed 10 percent of direct labor wage (cost) (Art. 52, LC). This incentive applies to private management development programs which are no less a part of the national manpower resources, subject to the same conditions (Op. Sec. Jus., June 23, 1978). But training programs undertaken by private training institutions operating for profit do not qualify. Regarding the second condition, “direct labor costs” means that portion of wages and salaries which can be identified with or charged directly to a product, project or service. However, this value cannot be determined in the case of businesses such as banks, building and loan associations, insurance and financing companies, stock brokers, educational institutions, consultancy firms, and other business endeavors not involving direct labor in the production of goods and services which could serve as basis for enforcing the 10 percent limitation on deductible training expenses. For lack of basis, the incentive scheme is unenforceable as to these establishments (Op. Sec. Jus. June 23, 1978).

5. TRAINING AND EMPLOYMENT OF SPECIAL WORKERS. To help meet the demand of the economy for trained manpowei Title 11 of this Book regulates the training and employment of special workers, i.e., apprentices, learners, handicapped workers and trainees. An apprentice is a worker who is covered by a written apprenticeship agreement with an individual employer or any of the entities recognized under the Labor Code in an approved apprentice able occupation. A learner is a person hired as a trainee in semi-skilled and other industrial occupations which are non-apprentice able and which may be learned through practical training on the job in a relatively short period of time which shall not exceed three months.

More Pages