Overseas Filipino Workers (OFWs)

1. Concept

“Overseas Filipino Worker (OFW)” – refers to a person who is to be engaged, is engaged, or has been engaged in a remunerated activity in a State of which the person is not a citizen, or on board a vessel navigating the foreign seas other than a government ship used for military or noncommercial purposes, or on an installation located offshore or on the high seas. (Section 7[g], R.A. 10801, Overseas Workers Welfare Administration Act)

a. Upholding the dignity of OFWs

SAMEER OVERSEAS PLACEMENT AGENCY, INC. v. CABILES, G.R. No. 170139, 05 August 2014)

⦁ We face a diaspora of Filipinos. Their travails and their heroism can be told a million times over; each of their stories as real as any other. Overseas Filipino workers brave alien cultures and the heartbreak of families left behind daily. They would count the minutes, hours, days, months, and years yearning to see their sons and daughters. We all know of the joy and sadness when they come home to see them all grown up and, being so, they remember what their work has cost them. Twitter accounts, Facetime, and many other gadgets and online applications will never substitute for their lost physical presence.

⦁ Unknown to them, they keep our economy afloat through the ebb and flow of political and economic crises. They are our true diplomats, they who show the world the resilience, patience, and creativity of our people. Indeed, we are a people who contribute much to the provision of material creations of this world.

⦁ This government loses its soul if we fail to ensure decent treatment for all Filipinos. We default by limiting the contractual wages that should be paid to our workers when their contracts are breached by the foreign employers. While we sit, this court will ensure that our laws will reward our overseas workers with what they deserve: their dignity.

⦁ Inevitably, their dignity is ours as well.

2. Covered by PH Labor Law

Employees are not stripped of their security of tenure when they move to work in a different jurisdiction. With respect to the rights of overseas Filipino workers, we follow the principle of lex loci contractus. (Sameer Overseas Placement Agency, Inc. v. Cabiles, En Banc, G.R. No. 170139, 05 August 2014)

The Court is not unaware of the many abuses suffered by our overseas workers in the foreign land where they have ventured, usually with heavy hearts, in pursuit of a more fulfilling future. Breach of contract, maltreatment, rape, insufficient nourishment, sub-human lodgings, insults and other forms of debasement, are only a few of the inhumane acts to which they are subjected by their foreign employers, who probably feel they can do as they please in their own country. While these workers may indeed have relatively little defense against exploitation while they are abroad, that disadvantage must not continue to burden them when they return to their own territory to voice their muted complaint. There is no reason why, in their very own land, the protection of our own laws cannot be extended to them in full measure for the redress of their grievances. (Prieto v. NLRC, G.R. No. 93699, 10 September1993)

a. Lex Loci Contractus

TRIPLE EIGHT INTEGRATED SERVICES, INC. v. NLRC, G.R. No. 129584, 03 December 1998

⦁ [The local agency] likewise attempts to sidestep the medical certificate requirement by contending that since [the Complainant-OFW] was working in Saudi Arabia, her employment was subject to the laws of the host country. Apparently, [the local agency] hopes to make it appear that the labor laws of Saudi Arabia do not require any certification by a competent public health authority in the dismissal of employees due to illness.

⦁ [The local agency’s] argument is without merit.

⦁ First, established is the rule that lex loci contractus (the law of the place where the contract is made) governs in this jurisdiction. There is no question that the contract of employment in this case was perfected here in the Philippines. Therefore, the Labor Code, its implementing rules and regulations, and other laws affecting labor apply in this case. Furthermore, settled is the rule that the courts of the forum will not enforce any foreign claim obnoxious to the forum’s public policy. Herein the Philippines, employment agreements are more than contractual in nature. The Constitution itself, in Article XIII, Section 3, guarantees the special protection of workers, to wit:

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.

It shall guarantee the rights of all workers to self organization, collective bargaining and negotiations, and peaceful concerted activities, including the right to strike in accordance with law. They shall be entitled to security of tenure, humane conditions of work, and a living wage. They shall also participate in policy and decision-making processes affecting their rights and benefits as may be provided by law.

⦁ This public policy should be borne in mind in this case because to allow foreign employers to determine for and by themselves whether an overseas contract worker may be dismissed on the ground of illness would encourage illegal or arbitrary pretermination of employment contracts.

PCL SHIPPING PHILIPPINES, INC. v. NLRC, G.R. No. 153031, 14 December 2006

⦁ [The employers, i.e. local agency and foreign principal] admit that they did not inform [the Complainant-OFW, a seafarer] in writing of the charges against him and that they failed to conduct a formal investigation to give him opportunity to air his side. However, [the employers] contend that the twin requirements of notice and hearing applies strictly only when the employment is within the Philippines and that these need not be strictly observed in cases of international maritime or overseas employment.

⦁ The Court does not agree. The provisions of the Constitution as well as the Labor Code which afford protection to labor apply to Filipino employees whether working within the Philippines or abroad. Moreover, the principle of lex loci contractus (the law of the place where the contract is made) governs in this jurisdiction. In the present case, it is not disputed that the Contract of Employment entered into by and between petitioners and private respondent was executed here in the Philippines with the approval of the Philippine Overseas Employment Administration (POEA). Hence, the Labor Code together with its implementing rules and regulations and other laws affecting labor apply in this case.

3. Security of Tenure

Employment agreements are verily more than contractual in nature in the Philippines. The Philippine Constitution and laws guarantee special protection to workers here and abroad. 23 Thus, even if a Filipino is employed abroad, he or she is entitled to security of tenure, among other constitutional rights. (Gopio v. Bautista, G.R. No. 205953, 06 June 2018)

SAMEER OVERSEAS PLACEMENT AGENCY, INC. v. CABILES, G.R. No. 170139, 05 August 2014)

⦁ By our laws, overseas Filipino workers (OFWs) may only be terminated for a just or authorized cause and after compliance with procedural due process requirements.

Article 282 of the Labor Code enumerates the just causes of termination by the employer. Thus:

Art. 282. Termination by employer. An employer may terminate an employment for any of the following causes:

(a) Serious misconduct or willful disobedience by the employee of the lawful orders of his employer or representative in connection with his work;

(b) Gross and habitual neglect by the employee of his duties;

(c) Fraud or willful breach by the employee of the trust reposed in him by his employer or duly authorized representative;

(d) Commission of a crime or offense by the employee against the person of his employer or any immediate member of his family or his duly authorized representatives; and

(e) Other causes analogous to the foregoing.

⦁ [The local agency’s] allegation that respondent was inefficient in her work and negligent in her duties may, therefore, constitute a just cause for termination under Article 282(b), but only if [the local agency] was able to prove it.

⦁ The burden of proving that there is just cause for termination is on the employer. “The employer must affirmatively show rationally adequate evidence that the dismissal was for a justifiable cause.” Failure to show that there was valid or just cause for termination would necessarily mean that the dismissal was illegal.

⦁ To show that dismissal resulting from inefficiency in work is valid, it must be shown that: 1) the employer has set standards of conduct and workmanship against which the employee will be judged; 2) the standards of conduct and workmanship must have been communicated to the employee; and 3) the communication was made at a reasonable time prior to the employee’s performance assessment.

⦁ This is similar to the law and jurisprudence on probationary employees, which allow termination of the employee only when there is “just cause or when [the probationary employee] fails to qualify as a regular employee in accordance with reasonable standards made known by the employer to the employee at the time of his [or her] engagement.”

⦁ However, we do not see why the application of that ruling should be limited to probationary employment. That rule is basic to the idea of security of tenure and due process, which are guaranteed to all employees, whether their employment is probationary or regular.

⦁ The pre-determined standards that the employer sets are the bases for determining the probationary employee’s fitness, propriety, efficiency, and qualifications as a regular employee. Due process requires that the probationary employee be informed of such standards at the time of his or her engagement so he or she can adjust his or her character or workmanship accordingly. Proper adjustment to fit the standards upon which the employee’s qualifications will be evaluated will increase one’s chances of being positively assessed for regularization by his or her employer.

⦁ Assessing an employee’s work performance does not stop after regularization. The employer, on a regular basis, determines if an employee is still qualified and efficient, based on work standards. Based on that determination, and after complying with the due process requirements of notice and hearing, the employer may exercise its management prerogative of terminating the employee found unqualified.

⦁ The regular employee must constantly attempt to prove to his or her employer that he or she meets all the standards for employment. This time, however, the standards to be met are set for the purpose of retaining employment or promotion. The employee cannot be expected to meet any standard of character or workmanship if such standards were not communicated to him or her. Courts should remain vigilant on allegations of the employer’s failure to communicate work standards that would govern one’s employment “if [these are] to discharge in good faith [their] duty to adjudicate.”

⦁ In this case, petitioner merely alleged that respondent failed to comply with her foreign employer’s work requirements and was inefficient in her work. No evidence was shown to support such allegations. Petitioner did not even bother to specify what requirements were not met, what efficiency standards were violated, or what particular acts of respondent constituted inefficiency.

⦁ There was also no showing that respondent was sufficiently informed of the standards against which her work efficiency and performance were judged. The parties’ conflict as to the position held by respondent showed that even the matter as basic as the job title was not clear.

⦁ The bare allegations of petitioner are not sufficient to support a claim that there is just cause for termination. There is no proof that respondent was legally terminated.

⦁ Petitioner failed to comply with the due process requirements

⦁ Respondent’s dismissal less than one year from hiring and her repatriation on the same day show not only failure on the part of [the local agency] to comply with the requirement of the existence of just cause for termination. They patently show that the employers did not comply with the due process requirement.

⦁ A valid dismissal requires both a valid cause and adherence to the valid procedure of dismissal. The employer is required to give the charged employee at least two written notices before termination. One of the written notices must inform the employee of the particular acts that may cause his or her dismissal. The other notice must “[inform] the employee of the employer’s decision.” Aside from the notice requirement, the employee must also be given “an opportunity to be heard.”

⦁ Petitioner failed to comply with the twin notices and hearing requirements. Respondent started working on June 26, 1997. She was told that she was terminated on July 14, 1997 effective on the same day and barely a month from her first workday. She was also repatriated on the same day that she was informed of her termination. The abruptness of the termination negated any finding that she was properly notified and given the opportunity to be heard. Her constitutional right to due process of law was violated.

GOPIO v. BAUTISTA, G.R. No. 205953, 06 June 2018

⦁ Here, [the Local Agency] argues that there was justifiable cause for the termination of [the Complainant-OFW’s] employment since the latter has fallen short of [the Foreign Principal’s] employment and work standards. She cited the report of [the Foreign Principal’s] Chief Executive Officer and Project Team Leader, [R.] Aup, which detailed Bautista’s shortcomings, as well as the report of [P.] Thompson, Supervising Engineer of the Project to which Bautista was assigned, which mentioned the latter’s incompetence. Maintaining that the rights and obligations among the Overseas Filipino Worker (OFW), the local recruiter or agent, and the foreign employer or principal is governed by the employment contract which is the law among them, [the Local Agency] also claims that Bautista’s employment was validly terminated even without notice as he was given the equivalent of one-month salary in lieu thereof.

⦁ The Court is not convinced.

⦁ As observed by the CA, the evaluation report of [R.] Aup was made only on August 22, 2009, and the declaration of [P.] Thompson was executed only on October 1, 2009, which dates are beyond the date of termination of Bautista’s employment on July 10, 2009. The CA correctly concluded that these were made as an afterthought in order to lend credence to the claim that the termination of Bautista’s employment was for a valid reason. In Skippers United Pacific, Inc. v. Maguad, we held that the Master’s Statement Report presented by therein petitioners to corroborate their claim that the dismissal of therein respondents was for just cause, i.e., incompetence, was issued 78 days after therein respondents were repatriated to Manila and two months after the latter instituted a complaint for illegal dismissal before the NLRC. Such report can no longer be a fair and accurate assessment of therein respondents’ competence as the same was presented only after the complaint was filed. Its execution was a mere afterthought in order to justify the dismissal of therein respondents which had long been effected before the report was made; hence, such report is a self-serving one.

⦁ The Court thus finds that Bautista’s incompetence as the alleged just cause for his dismissal was not proven by substantial evidence.

⦁ In addition, Bautista was not accorded due process. Consequently, the Court is not convinced that he was legally dismissed.

⦁ The due process requirement is not a mere formality that may be dispensed with at will. Its disregard is a matter of serious concern since it constitutes a safeguard of the highest order in response to man’s innate sense of justice. To meet the requirements of due process, the employer must furnish the worker sought to be dismissed with two written notices before termination of employment can be legally effected, i.e.: (1) a notice which apprises the employee of the particular acts or omissions for which his dismissal is sought; and (2) the subsequent notice after due hearing which informs the employee of the employer’s decision to dismiss him.

⦁ Here, Bautista was dismissed under Article 4.3 of the employment contract which allegedly permits his employer, [the Foreign Principal], to terminate the contract on unspecified “other grounds” by giving one month’s written notice of its intention to terminate, or in lieu thereof, to pay the employee a sum equivalent to one month’s salary.

⦁ Bautista was notified on July 6, 2009 that his services will be terminated effective on the close of business hours on July 10, 2009, allegedly because his performance was “unsatisfactory and did not meet the standards of the Company.” He was also paid one-month salary in lieu of one month’s notice of the termination of his employment. Surely, this cannot be considered compliance with the two-notice requirement mandated by the Labor Code in effecting a valid dismissal. The Labor Code requires both notice and hearing; notice alone will not suffice. The requirement of notice is intended to inform the employee concerned of the employer’s intent to dismiss him and the reason for the proposed dismissal. On the other hand, the requirement of hearing affords the employee an opportunity to answer his employer’s charges against him and accordingly defend himself therefrom before dismissal is effected. In this case, Bautista was not given a chance to defend himself. Five days after the notice was served, he was repatriated. Clearly, he was denied his right to due process.

⦁ The CA aptly observed that Article 4.3 deprives the employee of his right to due process of law as it gives the employer the option to do away with the notice requirement provided that it grants one-month salary to the employee in lieu thereof. It denies the employee of the right to be apprised of the grounds for the termination of his employment without giving him an opportunity to defend himself and refute the charges against him. Moreover, the term “other grounds” is all-encompassing. It makes the employee susceptible to arbitrary dismissal. The employee may be terminated not only for just or authorized causes but also for anything under the sun that may suit his employer. Thus, the employee is left unprotected and at the mercy of his employer, subjected to the latter’s whims.

⦁ We cannot sustain the validity of Article 4.3 of the employment contract as it contravenes the constitutionally-protected right of every worker to security of tenure.

⦁ Bautista’s employment was for a fixed period of 31 months. Article 4.3 took back this period from him by rendering it in effect a facultative one at the option of [the Foreign Principal], which may shorten that term at any time and for any cause satisfactory to itself, to a one-month period or even less, by simply paying Bautista a month’s salary. The net effect of Article 4.3 is to render Bautista’s employment basically employment at the pleasure of [the Foreign Principal]. The Court considers that the provision is intended to prevent any security of tenure from accruing in favor of Bautista even during the limited period of 31 months.

⦁ To emphasize, overseas workers, regardless of their classification, are entitled to security of tenure, at least for the period agreed upon in their contracts. This means that they cannot be dismissed before the end of their contract terms without due process. The law recognizes the right of an employer to dismiss employees in warranted cases, but it frowns upon the arbitrary and whimsical exercise of that right when employees are not accorded due process. If they were illegally dismissed, the workers’ right to security of tenure is violated.

⦁ The law and jurisprudence guarantee to every employee security of tenure. This textual and the ensuing jurisprudential commitment to the cause and welfare of the working class proceed from the social justice principles of the Constitution that the Court zealously implements out of its concern for those with less in life, Thus, the Court will not hesitate to strike down as invalid any employer act that attempts to undermine workers’ tenurial security.

⦁ Indeed, while our Civil Code recognizes that parties may stipulate in their contracts such terms and conditions as they may deem convenient, these terms and conditions must not be contrary to law, morals, good customs, public order or policy. The employment contract between [the Foreign Principal] and Bautista is governed by Philippine labor laws. Hence, the stipulations, clauses, and terms and conditions of the contract must not contravene our labor law provisions.

⦁ Time and again, we have held that a contract of employment is imbued with public interest. The parties are not at liberty to insulate themselves and their relationships from the impact of labor laws and regulations by simply contracting with each other. Also, while a contract is the law between the parties, the provisions of positive law that regulate such contracts are deemed included and shall limit and govern the relations between the parties.

⦁ In sum, there being no showing of any clear, valid, and legal cause for the termination of Bautista’s employment and that he was not afforded due process, the law considers the matter a case of illegal dismissal for which Bautista is entitled to indemnity. We uphold the Labor Arbiter’s award of indemnity equivalent to Bautista’s salaries for the unexpired term of his employment contract, and damages.

References

⦁ 1987 Philippine Constitution

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/Updated: February 12, 2023