ACQUIRED JURISDICTION OF LABOR ARBITERS ON MIGRANT WORKERS MONEY CLAIMS
Under R.A. 8042 or the Migrant Workers and Overseas Filipinos Act of 1995

WHAT IS RA #8042 OR THE MIGRANT WORKERS AND OVERSEAS FILIPINOS ACT OF 1995?

     Taken from its title, it is an act to institute the policies of overseas employment and establish a higher standard of protection and promotion of the welfare of migrant workers, their families and overseas Filipinos in distress, and for other purposes.

WHAT CHANGE HAS THIS NEW LAW MADE THAT AFFECTED NLRC?

     It confers a new jurisdiction to the Labor Arbiters of NLRC, which is the commonly called the "POEA transferred jurisdiction".

WHAT IS THE "POEA TRANSFERRED JURISDICTION"?

     Before RA#8042, POEA had the original and exclusive jurisdiction over money claims of Filipino workers for overseas employment. Section 10 of this new law confers this jurisdiction with modification, on the Labor Arbiters of NLRC, as it provides:

     This is the so called "POEA transferred jurisdiction".

WHAT IS THE EFFECT OF THIS TRANSFER OF JURISDICTION ON CASES PENDING WITH POEA?

     All unresolved money claims pending with POEA as of 15 July 1995 shall be referred to NLRC for disposition (Section 63, Omnibus Rules and Regulations.)

     Also, it necessitates the revision of the NLRC Rules and Regulations. As can be observed in the next answers to questions, referral to POEA Rules and Regulations on Overseas Employment has to be constantly made to clarify several aspects of the newly acquired NLRC jurisdiction.

IS THE POEA TRANSFERRED JURISDICTION THE SAME AS THE NLRC NEWLY ACQUIRED JURISDICTION?

     No. While the "POEA transferred jurisdiction" pertains to the money claims of FILIPINO WORKERS FOR OVERSEAS EMPLOYMENT, the NLRC newly acquired jurisdiction pertains to that of FILIPINO WORKERS FOR OVERSEAS DEPLOYMENT. These two differ in that:

     Clearly, therefore, the NLRC’s newly acquired jurisdiction is wider in scope than the POEA transferred jurisdiction.

DOES THE WIDER SCOPE OF THE NLRC NEWLY ACQUIRED JURISDICTION COVER THOSE FILIPINOS WHO ARE WORKING OR HAVE WORKED OVERSEAS WITHOUT A VALID EMPLOYMENT CONTRACT OR CONTRACT APPROVED BY POEA? OTHERWISE STATED, ARE MONEY CLAIMS OF WORKERS ILLEGALLY RECRUITED WITHIN THE JURISDICTION OF NLRC?

     RA #8042 does not qualify between a Filipino worker who has or has no valid employment contract. It defines the newly acquired jurisdiction to cover money claims arising out of:

1. an employer – employee relationship or
2. by virtue of any law or contract involving FILIPINO WORKERS FOR OVERSEAS DEPLOYMENT, including claims for actual, moral, exemplary and other forms of damages.

     However, considering the answer to the next question (Q#7) it can be inferred that only Migrant Workers deployed by licensed recruitment/placement agencies can file their money claims with NLRC.

AGAINST WHO MAY A OVERSEAS FILIPINO WORKERS FOR OVERSEAS DEPLOYMENT FILE MONEY CLAIMS?

     According to Section 10 of RA #8042, these money claims can made against:

1. the recruitment /placement agency, with its performance bond answerable for all money claims or damages that may be awarded the worker; (as of May 1, 1998, POEA has not implemented the requirement for an agency performance bond).
2. the principal/employer with the recruitment/placement agency whose joint and several or solidary liability shall be incorporated in the contract for overseas employment as a condition precedent for the contract’s approval by POEA;
3. if the recruitment/placement agency is juridical being, the corporate officers and directors and partners, as the case may be, who are jointly and solidarily liable with the corporation or partnership for the claims and damages.

IF THE ABOVE ENTITIES CAN NO LONGER BE LOCATED FOR WHATEVER REASON, WHAT CAN BE THE RECOURSE OF AN OFW?

     An OFW may verify with POEA if the above entities have remaining bonds or escrow deposits which shall answer for the agencies liabilities on the employment contract.

WHAT ARE CASH BOND AND DEPOSIT IN ESCROW?

     A private employment agency or a manning agency, when granted a license to operate, posts a cash bond of P100,000.00 and surety bond of P50,000.00 to answer for all valid and legal claims arising from violations of the conditions for the grant and use of the license, and/or accreditation and contracts of employment (Sec. 4, Rule II, Book II, POEA Rules and Regulations).

IF THESE CASH AND SURETY BOND AND ESCROW DEPOSIT SHALL ANSWER FOR MONEY CLAIMS OF MIGRANT WORKERS, IS THERE AN ORDER FOR PROCEEDING AGAINST THEM?

     There is, per Sec. 2, Rule V, Book VI of the POEA Rules and Regulations. When a claim has been decided in favor of the worker, the Writ of Execution shall be served upon the following in the order they come, for the satisfaction of the judgment:

1. the cash bond and/or escrow deposit
2. the surety bond

WHAT HAPPENS WHEN THE CASH BOND OR DEPOSIT IN ESCROW OR THE SURETY BOND IS DEPLETED DUE TO SATISFACTION OF JUDGMENT AGAINST THE AGENCIES?

     The bonds/escrow in deposit are replenished by the agency within fifteen (15) calendar days from the date of receipt of notice from the POEA Administrator of any garnishment on the whole or part of them, otherwise, the license of the agency shall be suspended. (Sec. 23, Rule II, Book II of the POEA Rules and Regulations). This shall prevent depletion of the bond/deposit in escrow.

WHAT IF THERE ARE 2 OR MORE DECISIONS/WRITS OF EXECUTION TO BE SATISFIED? HOW CAN THEIR SATISFACTION BE MADE?

     In cases where several writs of executions are issued against the same agency, enforcement of the same through garnishment of the bonds and/or escrow in deposit shall be on a ‘first come, first served’ basis. The Writ of Execution/Order of Garnishment first served upon the Accounting Division and/or Trustee Bank of the POEA shall be satisfied, irrespective of the date of filing and order of the case or issue of the writ of execution. The cash bond and/or escrow shall be pro-rated among the claimants for writs served simultaneously. (Sec. 4, Rule V, Book V of the POEA Rules and Regulations).

AS THE SURETY BOND SHALL ANSWER FOR MONEY CLAIMS OF AN OVERSEAS FILIPINO WORKER, SHOULD THE SURETY BE INCLUDED IN THE COMPLAINT?

     No. The surety bond includes the condition that notice to the principal is notice to the surety and that any judgment against the principal in connection with matters falling under POEA’s, now NLRC’s jurisdiction shall be binding and conclusive on the surety, as required by Sec. 4, Rule II, Book II of the POEA Rules and Regulations.

     Section 10 of RA #8042 provides for a performance bond that shall answer for all money claims and damages that may be awarded to the worker. It shall be filed by the recruitment/placement agency. What is the relation of this bond to the Performance bond of workers provided in Rule VII, Book VIII of the POEA Rules and Regulations?

     None. The performance bond under the POEA Rules is filed by the worker to ensure his faithful compliance of his contract of work and to safeguard against his getting stranded abroad. This is the only performance bond under the POEA Rules.

     While it can be said that the new law is mandating POEA to require an additional bond from the recruitment/placement agency before a license can be issued to them, it can also be said that the cash bond now required of a recruitment /placement agency applicant for license, has the same purpose as the performance can mean the same.

WHAT OTHER PROVISIONS OF RA #8042 ARE IN CONNECTION WITH THE NEWLY ACQUIRED JURISDICTION OF NLRC?

     Section 10 of the newly acquired law (RA #8042) also provides that:

1. The Labor Arbiters are mandated to hear and decide money claims within 90 calendar days after the filing of the complaint, otherwise, "the responsible officer" shall be penalized with any or all of the following:
2. withholding of salary until "the said official complies therewith"
3. suspension for not more that ninety (90) days
4. Dismissal from the service with disqualification to hold any appointive public office for five (5) years without prejudice to any liability which any such official may have incurred under other existing laws or rules and regulations "as a consequence of violating the provision of this paragraph".
5. Any compromise/amicable settlement or voluntary agreement on money claims inclusive of damages shall be paid within four (4) months from the approval of the settlement by the appropriate agency (relying on the 1994 New Rules of Procedure of the NLRC, the appropriate agency here shall mean the Labor Arbiter).
6. In case of termination of overseas employment without just, valid or Authorized cause, the worker shall be entitled to the full reimbursement of his placement fee with interest of 12% per annum, plus the lesser of the 2: his salaries for the unexpired portion of his employment contract, or his salaries for three (3) months for every year of the unexpired term.
7. The officials and employees of NLRC, as one of the government agencies involved in the implementation of RA #8042, or (‘and’ according to the Omnibus Rules and Regulations Implementing RA #8042) their relatives within the 4^th civil degree of consanguinity or affinity, are prohibited to engage, directly or indirectly, in the business of recruiting migrant workers (Section 8, RA #8042).

     Any government official or employee found to be violating this shall be charged administratively, according to the Civil Service Rules and Regulations without prejudice to criminal prosecution (Sec. 13 of the Omnibus Rules and Regulations). 

1. The repatriation of the worker and the transport of his personal belongings shall be the primary responsibility of the agency, which recruited or deployed the overseas worker. All costs attendant to repatriation shall be borne by or charged to the agency concerned and/or its principal. Likewise, the repatriation of remains and transport of the personal belongings of a deceased worker and all costs attendant thereto shall be borne by the principal and/or local agency. EXCEPTION: when the termination of employment is due solely to the fault of the worker.

     In cases of war, epidemic, disasters or calamities, natural or man-made, and other similar events, OWWA shall undertake the repatriation without prejudice to reimbursement by the responsible principal or agency.

     When the principal or recruitment agency cannot be identified, all costs attendant to repatriation shall be borne by OWWA which shall control and administer the Emergency Repatriation Fund of P1M (Section 15, RA #8042).

1. June 7 of every year is Migrant Workers Day. DOLE shall lead and enlist the cooperation of other government agencies in its commemoration (Section 78, Omnibus Rules and Regulations Implementing RA #8042.)
2. Within one year from the effectivity of RA #8042 (which effectivity date is July 16, 1995 per NLRC Res. #1 –95), DOLE shall formulate a five-year comprehensive deregulation plan on recruitment activities. This is pursuant to a progressive policy of deregulation whereby the MIGRATION OF WORKERS BECOMES STRICTLY A MATTER BETWEEN THE WORKER AND HIS FOREIGN EMPLOYER (Sec. 29, RA #8042).

IF IT IS LEGALLY IMPOSSIBLE FOR THE MIGRANT WORKER TO FILE INDIVIDUAL COMPLAINT, WHAT DOES RA #8042 PROVIDE?

     If it is legally impossible to file individual complaints, the Department of Foreign Affairs (DFA) shall assess the rights and avenues of redress under international and regional human rights systems that are available to Migrant Workers who are victims of abuse and violation, (as far as practicable, through the Legal Assistant for Migrant Workers Affairs under the DFA), and pursue the same on behalf of the victim. If the complaint machinery is available under international or regional systems, DFA shall fully appraise the migrant worker of the existence and effectiveness of such legal options (Section 22, RA #8042).

WHAT OTHER RELEVANT RULES SHOULD BE CONSIDERED UNDER THE LABOR ARBITER’S NEWLY ACQUIRED JURISDICTION?

     According to the POEA Rules and Regulations:

1. Placement fee "shall be collected from a hired worker only after he has signed the employment contract and shall be covered by receipt clearly showing the amount paid (Sec. 2, Rule V, Book II).
2. Failure of the agency to deploy a worker within the prescribed period of deployment (pls. See: Q and A#5) without valid reasons shall be a cause for the agency to return all documents at no cost to the worker (Sec. 4, Rule II, Book III).
3. Mandatory life and personal accident insurance shall be provided by the employer without any cost to the worker (Sec. 1, Rule VIII, Book II).

WHAT OTHER CAUSES OF ACTION MAY A MIGRANT WORKER HAVE AGAINST HIS RECRUITER, WHETHER LICENSED OR NOT, AND WHERE CAN HE FILE HIS COMPLAINT?

     Aside from money claims as provided in Section 10 of RA #8042, a migrant worker can be a victim of:

1. Illegal recruitment as defined in Section 6 of RA #8042. This is a criminal case that may be perpetrated by a recruiter with or without POEA authority/license. The victim may be referred to the Anti Illegal Branch of POEA, DOJ, IBP, or the volunteer groups (Section 13, RA #8042), of to the PNP, NBI, CIS, Fiscal or Public Prosecutors. The case shall be filed with the Regional Trial Court of the province or city where the offense was committed or where the offended party actually resides at the time of the commission of the offense (Sec. 9, RA #8042). Victims of illegal recruitment are entitled to the Witness Protection Program provided by RA #6981 (Sec. 13, ibid.).
2. Recruitment violation or violations of rules and regulations relating to licensing and registration of recruitment and employment agencies or entities. The complaint shall be filed with the Adjudication Branch of POEA through the Public Assistance Division of the Anti- Illegal Recruitment Branch of POEA. (Sec. 1, Rule I, Book VI, POEA Rules and Regulations).
3. Disciplinary actions and other special cases involving employers, principals, contracting partners and including Filipino overseas workers (Sec. 1, Rule VII, Book VII, ibid. with Sec. 10, Rule !, Book III, ibid.), also before POEA.