2 Review of Philippine Migration Laws and Regulations
2 Review of Philippine Migration Laws and Regulations
2 Review of Philippine Migration Laws and Regulations
December 2011
June 2011
Abstract
The Philippines has often been cited as the global model in managing international
labor migration. Despite the complexity of our management infrastructure, however,
some gaps still remain. This paper reviews the Philippine legal and administrative
framework governing the recruitment, documentation and deployment of Filipino
workers abroad. The study finds that although the provisions of the landmark
legislation RA 8042, as amended by RA 9422 and 10022, are laudable, some of the key
provisions are not absolute. Furthermore, the study finds the need to further strengthen
policy implementation, as well as the implementing capacity of government agencies.
1
Review of Philippine migration laws and regulations
Gains, Gaps, Prospects1
Julyn S. Ambito and Melissa Suzette L. Banzon2
June 2011
Rule II of the POEA Rules and Regulations Governing the Recruitment and
Employment of Land-based Overseas Workers (POEA Rules) 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 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.” Furthermore, the recruitment
1
Background paper to the “Managing International Labor Migration: The Philippine Experience”. This paper has
benefitted from funding support from the International Development Research Centre and Philippine Institute for
Development Studies project “Different Streams, Different Needs and Impacts: Managing International Labor
Migration in ASEAN”.
2
Unit Coordinator and Associate Lawyer, respectively, Migrants’ Defense Program, Initiatives for Dialogue and
Empowerment through Alternative Legal Service (IDEALS, Inc.),
3
http://www.ilo.org/dyn/migpractice/migmain.showPractice?plang=en&p_practice_id=55
2
of Filipino workers is done through a systematic recruitment network where foreign
principals must course their manpower requirements through POEA-licensed private
employment and manning agencies.4 As part of their regulatory functions, the POEA
Rules provide that only those who possess qualifications enumerated under Rule I, Part
II shall be permitted to engage in the recruitment and placement of Filipino workers.
A. Modes of Recruitment
A prospective employer interested to hire Filipino workers may choose from the
official list of licensed private employment agencies available at the nearest Philippine
embassy or consulate in their country, or from the POEA website. Once the employer
has identified a Philippine agent that will source his/her manpower requirement,
he/she must submit the recruitment documents to the nearest Philippine Overseas
4
http://www.poea.gov.ph/about/hiring.htm
5
http://www.poea.gov.ph/about/hiring.htm
3
Labor Office (POLO) at the Philippine embassy or consulate for verification. This is to
ascertain the existence of the company or project and the need for Filipino manpower.
6
http://www.poea.gov.ph/about/hiring.htm
7
http://www.ofwguide.com/article_item-1392/Healthcare-Workers-In-Demand-in-Saudi-Arabia--Application-
Proceduresof-Saudi-Recruitment-Office.html
8
Ibid.
4
(3) Name Hires. - Some workers are regarded as name hires or those who are able
to secure an overseas employment opportunity with an employer without the assistance
or participation of any agency.
The State’s policy of extending protection and support to our overseas workers
becomes even more manifest with the State’s authorization for POEA to formulate
employment standards in accordance with the welfare objectives of the overseas
employment program.9 The law requires that the POEA should approve and verify an
overseas employment contract 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.10
A standard overseas employment contract11 must reflect the names and details
of the contracting parties (foreign employer, local agent and the OFW) who voluntarily
bind themselves to terms and conditions of employment, which shall include, among
others, the site/workplace, contract duration, employee’s position, monthly salary,
regular working hours and overtime pay, leave credits, insurance, repatriation and
termination procedures, settlement of disputes and applicable law on the contract.
9
Amelia J. Delos Santos vs. Jebsen Maritime Inc., G.R. No. 154185, November 22, 2005.
10
Seagull Maritime Corp., et al. v. Balatongan, et al., 170 SCRA 813 (1987).
11
http://www.poea.gov.ph/ofw/sec_various_new.pdf
5
the minimum; provided that the same shall not be contrary to law, public policy and
morals, and provided further, the Philippine agencies shall make foreign employers
aware of the standards of employment adopted by the POEA.12
12
§3, Id.
13
Carcamo, Dennis, “Group Urges DOLE to Probe Rampant Contract Substitution,” The Philippine Star. Available
online: http://www.philstar.com/Article.aspx?articleId=615820&publicationSubCategoryId=200, accessed on
November 23, 2010.
6
lack of resources and manpower. Many OFWs report that when they seek the help of
the POLO in the host country regarding the implementation of their contracts, officials
usually tell them to just go back to the Philippines and file money claims before the
NLRC. Many OFWs claim that POLO officers in the host country are not much of
assistance in helping them file cases for contractual violations in the host country.
One case of contract substitution is that of nineteen (19) OFWs who were
deployed as construction workers in Tripoli, Libya. Two recruitment agencies, namely
Aqua-Gem International Manpower, Incorporated and Sharikat Al-Saedi International
Manpower, Incorporated, both located in Ermita, Manila, recruited the distressed
OFWs. They departed from Manila on December 2008 to work for Cifex World
Construction Firm at Dhat El Imad, Tripoli until January 2008.14
The victims signed a contract with their respective agencies during application.
A few hours before their departure, however, they were told to sign another contract.
The wages contained in the second contract, verified by the POEA and signed by Labor
Attache Nasser Mustafa, was US$100 lower than the first contract. The poor OFWs, left
with no other choice, were forced to sign the contract since they were already at the
airport.15
14
Melencio, Gloria, E., “Labor Officer in Libya Accused of OFW Contract Substitution,” The Saudi Gazette. Available
online: http://www.saudigazette.com.sa/index.cfm?method=home.regcon&contentID=2009090148553, accessed
on November 23, 2010.
15
Ibid.
7
hours a day and seven (7) days a week without overtime pay, contrary to the provisions
in their contracts.16
The OFWs decided to stop working and went to the Philippine Embassy and
the POLO in Qatar to seek assistance. They were then threatened by Jassim with
16
Id.
17
Id.
18
“Jinggoy Probes Case of OFWs Victimized under Contract Substitution in Qatar, Libya.” Available online:
http://www.senate.gov.ph/press_release/2009/0505_estradaj1.asp, accessed on November 23, 2010.
8
incarceration for refusing to work. They were also forced to execute waivers stipulating
that they would not file a case against Jassim, in order for them to be allowed to return
to the Philippines, but at their own expense. They were told that if they refused to
execute the waiver, their passports would not be returned to them, and exit clearance
and other documentary requisites would not be issued. The OFWs executed the
waivers, which were sealed by the POLO. The waivers led to their exclusion from the
OWWA and POEA’s list of workers requesting assistance for repatriation. The OFWs
were able to go home only through financial solicitation from and generosity extended
by the Filipino community in Qatar.19
POLO officers, being on the front line in the host countries, should be more
effective in informing OFWs of the legal mechanisms through which they can recover
unpaid wages and other benefits and assist OFWs in availing of these mechanisms in
the host country. POLO officers should not confine OFWs to the option of returning to
the Philippines and filing money claims before the NLRC when legal mechanisms for
claiming unpaid wages and other benefits are available to them in the host country. In
Hongkong, for example, their Labour Tribunal has jurisdiction to hear cases involving
breach of employment contract which includes claim for unpaid wages.20 The website21
of the Judiciary of Hongkong provides the procedure on how to file money claims
against employers. It provides for a booking system in making an appointment for
filing of claim.
19
Ibid.
20 Section 7, Labour Tribunal Ordinance and the Schedule to the Ordinance
21 Judiciary of the Hong Kong Special Administrative Region of the People’s Republic of China.,
http://www.judiciary.gov.hk/en/crt_services/pphlt/html/labour.htm
9
C. The Joint and Several Liability (JSL) Rule
In a case decided by the Supreme Court24, it was held that both the recruitment
agency and the foreign employers are liable jointly and solidarily for the illegal
dismissal of their employee. In providing for the joint and solidary liability of private
recruitment agencies with their foreign principals, Republic 8042 precisely affords the
OFWs with recourse and assures them of immediate and sufficient payment of what is
due them.
22
Section 7, R.A. 10022
23
Ibid.
24
ATCI Corporation vs. Echin, G.R. No. 178551, October 11, 2010
10
The imposition of joint and solidary liability is in line with the policy of the state
to protect and alleviate the plight of the working class.25 Verily, to allow the recruitment
agency to simply wait for the judicial determination of the foreign principal’s liability
before petitioner can be held liable renders the law on joint and solidary liability inutile.
The Supreme Court, in the case of Antonio M. Serrano v. Gallant Maritime Services,
Inc., et al., March 24, 2008, declared unconstitutional the subject clause “or for three (3)
months for every year of the unexpired term, whichever is less” in the fifth paragraph
of Section 10 of R.A. 8042. The court concluded that the subject clause contained a
suspect classification in that, in the computation of the monetary benefits of employees
who are illegally discharged, it imposes a three (3)-month cap on the claim of OFWs
with an unexpired portion of one (1) year or more in their contracts, but none on the
claims of other OFWs or local workers with fixed-term employment. The subject clause
singles out one classification of OFWs and burdens it with a peculiar disadvantage. It
25
Datuman v. First Cosmopolitan Manpower And Promotion Services, Inc., G.R. No. 156029, November 14, 2008,
571 SCRA 41, 42.
26
Id.
27
Section 10, Republic Act 8042.
11
does not state or imply any definitive governmental purpose and it is for this precise
reason that the clause violates not just the workers’ right to equal protection but also
their right to substantial due process.
Congress, however, re-enacted the clause “or for three (3) months for every year
of the unexpired term, whichever is less” in Section 7 of R.A. 10022. Congress’ re-
enactment notwithstanding, the Supreme Court’s ruling striking down the subject
clause must prevail, for it is the final arbiter on the constitutionality of the law to which
Congress must yield.
E. Illegal Recruitment
One of the reprehensible felonies existent in the Philippines today is illegal
recruitment. R.A.10022 amending R.A.8042 defines illegal recruitment as “any act of
canvassing, enlisting, contracting, transporting, utilizing, hiring, or 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 any 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.” The law includes the
commission of prohibited acts by any person, whether a non-licensee, non-holder,
licensee or holder of authority.
12
control, management or direction of their business who are responsible for the
commission of the offense and the responsible employees/agents thereof shall be liable.
General Observation
Despite these regulations, there are still many cases of illegal recruitment and
trafficking reported by OFWs. This can be attributed to the fact that although the law is
in place to protect OFWs, implementation of the law leaves much to be desired. For
instance, many illegal recruiters, despite being issued multiple warrants of arrest,
manage to evade arrest and continue to recruit unknowing OFWs desperate to work
overseas. The Task Force Against Illegal Recruitment (TFAIR), an inter-agency body
tasked to coordinate the efforts of different government agencies in the arrest and
prosecution of illegal recruiters, currently has 20,000 unserved warrants for over two
hundred large-scale illegal recruiters in the country. While the TFAIR is unable to arrest
these large-scale illegal recruiters, they continue to swindle many OFWs of excessive
placement fees and deploy OFWs to hazardous jobs overseas.
The Anti-Trafficking in Persons Act (R.A. 9208), which was enacted in 2003, is
also poorly implemented. Despite the thousands of OFWs, mainly women, who are
trafficked each year, there have only been thirteen (13) convictions under the law. A
13
legal system riddled with corruption and influence-peddling enables many traffickers
to evade arrest and prosecution through extrajudicial means.
14
I. RECRUITMENT AND PLACEMENT OF WORKERS
Improvement on the laws: Since we already have existing laws (RA 8042 as
amended by RA 10022, RA 9208 Anti-Trafficking in Persons Act and EO on TFAIR),
an improvement on the application/implementation of these laws in so far as
implementation is concerned. As mentioned, there is dismal prosecution/conviction
of Illegal Recruiters or Traffickers due to unserved warrants of arrests. To aid the
speedy prosecution of Illegal Recruitment cases, TFAIR should post and publish the
photographs with vital information of the top Illegal Recruiters. An Executive Order
maybe passed to carry out this amendment.
New Policy: Illegal recruiters are not always of Philippine Citizenship. They
could be foreign nationals. And we are yet to see foreigner-illegal recruiter convicted
in our courts of justice. Hence, there is a proposal to amend Section 2 of the Revised
Penal Code (RPC) penalizing foreigners on migration/recruitment-related acts
committed within the Philippine territory28.
Also, since the Philippines is still at Tier 2 (US State Department Watch list re:
Situation Report on cases of Trafficking in the Country) , the Government should
28
Introduced by (Former) Dean Merlin Magallona (UP College of Laws) . Lecture, Revisiting Constitutional
Guarantees. February 5, 2010)
15
endeavor to forge and enforce bilateral and or multi-lateral agreements among
countries to come up with mechanisms to prevent trafficking and fully fully
respond to the problems of international trafficking.
New Policy: Since one of the most common problems encountered by OFWs
is debt bondage brought about by loans at usurious interest rates to pay for
excessive placement fees, it will certainly benefit many OFWs if the government
implements a “no placement fee” policy. Many labor-receiving countries, such as the
United States, United Kingdom, Ireland, Israel and the Netherlands impose a “no
placement fee” policy on migrant workers. This is to prevent a situation where
migrant workers find themselves unable to earn anything to send to their families
back home during their first few months of work, due to substantial deductions
from their wages to pay for expenses incurred in placement and other fees.
Many OFWs are also illegally dismissed from employment long before they
have finished their contracts. They are therefore unable to save enough money to
16
pay for loans incurred for placement and other fees upon repatriation to the
Philippines. After selling their properties and using their savings to pay for
placement fees, many OFWs find themselves with no money or property when they
are illegally dismissed shortly after deployment. A “no placement fee” policy will
prevent this situation where OFWs lose all their properties just to pay for placement
fees and find themselves with no savings upon termination from employment.
Abolition of placement fee will also unclog the dockets of both administrative
and judicial bodies of complaints arising from collection of excessive fees. Courts
and quasi-judicial bodies can then focus on other offenses such as human trafficking
and decide cases with dispatch.
Conduct of PDOS
Another problem is that the PDOS is conducted right before the OFWs’
scheduled date of departure. This is a time when OFWs are too preoccupied with
last minute arrangements for their travel and other concerns. OFWs are therefore
unable to focus on matters taken up during the PDOS and remember the useful tips
17
given to them. Government/accredited institutions should conduct the PDOS at
least three (3) days before the OFWs’ scheduled date of departure to give them
ample time to digest the material and prepare themselves psychologically for the
trip.
18
of the States including grievance procedure, rules on settling claims and venue of
action.
New Policy: As an innovation to this system, the Philippines, aside from BLAs
could also negotiate other form of Bilateral Agreement (BAs) such as Bilateral Social
Security Agreements (SSAs) 30 which will ensure that Filipino migrants and their
families are accorded social security and equal entitlements to benefits granted to
national of the host country and vice versa.; or Anti-Trafficking Agreements (ATAs).
Malaysia for example, has formulated their version of Trafficking in Persons Act in
2007. Given that Malaysia is one of the destination countries of trafficked persons,
the Philippine Government may negotiate a bilateral agreement as regards the
enforcement/application of both laws, specifically on prosecution of perpetrators in
trafficking cases and safeguarding the rights and security of the victims-survivors of
trafficking.
Also, in accordance with the context of State’s liability arising from breach of
duty to protect, it is high time that international conventions be converted to binding
regional or bilateral treaties. The Philippine Government has to move away from
29
Asian Labor Migration:The Role of Bilateral Labor and Similar Agreements. Stella P. Go. De La Salle University
30
Ibid.
19
negotiating general agreements towards more focused and implementable instruments.
One example is the negotiation of JPEPA (Japan-Philippines Economic Partnership
Agreement). While it is a bilateral agreement, it is more of an economic agreement, not
primarily labor agreement, whilst it include migration component setting conditions for
the entry of Filipino nurses and caregivers to Japan. There is now a mixed up of
priorities and interests, while economically, the Philippines might push its interest in
the agreement but it somehow put the welfare and interest of the Filipino nurse and
caregivers at stake. They (nurses) are being discriminated with regard to education,
experience and wage requirement. Chapter 9 of the JPEPA provides terms of reference
that are lopsided and not to the interest of the Filipino people and migrant workers
(Table 2).
Lastly, to better protect the rights and welfare of the migrant workers and the
members of their families, it is worth considering entering into Bilateral or Regional
Agreements with other Labor-sending Countries like Indonesia, Sri-Lanka or Nepal.
The more state parties advocating for the rights of workers, the more chances to be
heard.
20
represent OFW clients or prosecute cases before the judicial and quasi-judicial
bodies of the receiving countries.
21
REFERENCES
Laws
Republic Act 8042. Migrant Workers and Overseas Filipinos Act of 1995.
Republic Act 10022. An Act Amending Republic Act No. 8042, Otherwise Known as the Migrant
Workers and Overseas Filipinos Act of 1995,as amended, Further Improving the Standard of
Protection and Promotion of the Welfare of Migrant Workers, Their Families and Overseas
Filipinos in Distress, and For Other Purposes.
Philippine Migrants Rights Groups' Written Replies to the List of Issues Relating to the Consideration of
the Initial Report of the Philippines. Submitted to the UN Migrant Workers Committee for its
10th Session in Geneva. March 2009, Philippines.
Written Replies by the Government of the Philippines Concerning the List of Issues received by the
Committee on the Protection of the Rights of all Migrant Workers and members of their families
relating to the consideration of the Initial Report of the Philippines. United Nations. Tenth
Session, 20 April - 1 May 2009
Benjamin, Golda S.,A Summary of Arguments against the Japan-Philippines Economic Partnership
Agreement (JPEPA). Magkaisa JUNK JPEPA Coalition, October 23, 2007.
22
Go, Stella P. , Asian Labor Migration: The Role of Bilateral Labor and Similar Agreements
Guanzon, Rowena V.and Calalang Charmaine M., The Anti-Trafficking in Persons Act of 2003:
Issues and Problems
Ofreneo, Rene E. and Samonte, Isabelo A., Empowering Filipino Migrant Workers: Policy Issues and
Challenges. International Migration Paper 64. Social Protection Sector. International
Migration Programme. International Labor Office, Geneva (2005).
Reyes, Milan and Ma. Teresa C. Sanchez, Employment Productivity and Wages in the Philippine
Labor Market: An Analysis of Trends and Policies. Philippine Institute for Labor Studies,
1989. Accessed through: http://dirp3.pids.gov.ph/ris/wp/pidswp8903.pdf, accessed
on November 25, 2010.
Villalba, Mary Angela., Philippines: Good practices for the protection of Filipino Women Migrant
workers in vulnerable jobs. GENPROM Working Paper No. 8 Series on Women and
Migration.
23
Table 1. Bilateral Labor Agreements and International Instruments signed and ratified by
the Philippine Government
25
on Transnational Co-Operation for Recruiting Professionals from
the Health Sector to Positions in Norway
Memorandum of Understanding Between the Philippines and March 14, 1979
PNG
Papua New Guinea
Agreement Between the Government of the Republic of the May 10, 1997
QATAR Philippines and the Government of the State of Qatar Concerning
Filipino Manpower Employment in the State of Qatar
Additional Protocol to the Agreement between the Government of October 18,
the Republic of the Philippines and the Government of the State of 2008
Qatar Concerning Filipino Manpower Employment in the State of
Qatar signed on 10 March 1997
Memorandum of Understanding on Cooperation for the June 29, 2006
Management of the Migration Flows Between the Ministry of
SPAIN Labor and Social Affairs of the Kingdom of Spain and the Ministry
of Labor and Employment of the Republic of the Philippines
(English Version)
Memorandum of Understanding on Cooperation for the
Management of the Migration Flows Between the Ministry of
Labor and Social Affairs of the Kingdom of Spain and the Ministry
of Labor and Employment of the Republic of the Philippines
(Spanish Version)
Agreement Between the Government of the Republic of the July 2, 2002
SWITZERLA
Philippines and the Swiss Federal Council on Exchange of
ND
Professional and Technical Trainees
Memorandum of Understanding between the Manila Economic and September 3,
Cultural Office (MECO) in Taipei and the Taipei Economic and 1999
TAIWAN
Cultural Office (TECO) in the Philippines regarding the Special
Hiring Workers
Memorandum of Understanding on Special Hiring Program for January 12,
Taiwan Between the Manila Economic and Cultural Office in Taipei 2001
(MECO) and the Taipei Economic and Cultural Office (TECO) in the
Philippines
Memorandum of Understanding on Special Hiring Program for March 20, 2003
Taiwan Between the Manila Economic and Cultural Office (MECO)
in Taipei and the Taipei Economic and Cultural Office (TECO) in
the Philippines
Memorandum of Understanding between the Government of the April 9, 2007
UAE Republic of the Philippines and the Government of the United Arab
Emirates in the Field of Manpower
MoU between RP and UAE in the Field of Manpower (Arabic)
Memorandum of Understanding between the Government of the July 30, 2003
UNITED
Philippines and the Government of the Kingdom of Great Britain
KINGDOM
and Northern Ireland on Healthcare Cooperation
Recruitment Agreement Between the Government of the Republic January 8, 2002
of the Philippines and the Government of the United Kingdom of
26
Great Britain and Northern Ireland
Agreement Between the Government of the Republic of the December 28,
Philippines and the Government of the United States of America 1968
UNITED
Relating to the Recruitment and Employment of Philippines
STATES OF
Citizens by US Military Forces and Contractors of Military and
AMERICA
Civilian Agencies of the US Government in Certain Areas of the
Pacific and the Southeast Asia
Source: http://www.poea.gov.ph. Accessed on November 22, 2010.
Bilateral Labour Agreements (BLAs) concerning Filipino Overseas Sea-based workers entered by
and between the Government of the Philippines
Country
Cyprus –7 September 1984
Liberia – 10 August 1985
Denmark – 2000
Netherlands – 31 May 2001
Singapore – 25 August 2001
Source: WRITTEN REPLIES BY THE GOVERNMENT OF THE PHILIPPINES CONCERNING THE
LIST OF ISSUES (CMW/C/phl/Q/1) RECEIVED BY THE COMMITTEEON THE PROTECTION OF
THE RIGHTS OF ALL MIGRANT WORKERS AND MEMBERS OF THEIR FAMILIES RELATING TO
THE CONSIDERATION OF THE INITIAL REPORT OF THE PHILIPPINES (CMW/C/phl/1)
[ In accordance with the information transmitted to States parties regarding the processing of their
reports, the present document was not formally edited before being sent to the United Nations
translation services]
27
Table 2. Chapter 9 of JPEPA
Arguments JPEPA
II. Contrary to the Executive Branch’s Page 17 of the JPEPA Joint Coordinating Team
claim of national treatment, Filipino nurses Report (2003)31 provides:
will not be treated as if they were regular
Japanese nurses; they will only be
accepted as trainees in Japan. c. The Japanese side responded
that capability of
communication in Japanese
Contrary to the Executive Branch’s claim, language as well as medical
Filipino nurses, upon entry and prior to knowledge and skills is
passing Japan’s Nursing Board Exam, will essential for health care
not be given the same salary as Japanese professionals in Japan, and
nurses. therefore obtaining national
qualification of Japan is a
minimum requirement for not
only Japanese but also
foreigners to work in Japan as
health care professionals. The
Japanese side also stressed that
the influence on domestic labor
market should be duly
considered regarding health
care professionals.
III. Contrary to the Executive Branch’s Annex 8, Section 6, paragraph 1 of the JPEPA
claim, Filipino nurses will not only be clearly belies the claim of the Executive Branch
pursuing language training in the first 6 that Filipino nurses will only be spending the
months after entry to Japan; they will be first six months of their employment contract
28
pursuing both language training and nurse for the purpose of learning Nihonggo. On the
training for $400 a month. contrary, the provision is very clear:
29
IV. The JPEPA grants Filipino nurses Appendix 1, paragraph 3 (in part) of the
only a one-year contract; the 2-year JPEPA clearly states:
extension period is discretionary on the
part of Japan. The Executive Branch’s
claim of a 3-year contract is baseless. For the purposes of entry and
temporary stay as set out in
paragraph 1 of Section 6, Japan
shall grant a stay of one (1)
year, which may be extended:
V. A provision in the JPEPA provides the Annex 8, Section 6, paragraph 1 of the JPEPA,
perfect set-up for the failure of Filipino provides in part:
nurses and for them to work as trainees for
an entire year.
1. Entry and temporary stay for a
period set out in Appendix 1 shall
The dates of entry for Filipino nurses will be be granted to a natural person of
decided by Japan. the Philippines set out in
Appendix 2, who is designated and
notified to the Government of
Japan by the Government of the
Philippines in accordance with the
Implementing Agreement, who
enters into Japan on the dates
specified by the Government of
Japan and who engages in one of
the following activities during its
temporary stay in Japan:
(emphasis supplied).
VI. The JPEPA gives Filipino nurses a Annex 8, Section 6, par. 1, Note 3 clearly
30
maximum of three opportunities to pass the provides:
National Licensure Exam. They must pass
the exam during their one-year contract or
during the next 2 years after entry if Japan With reference to subparagraph
decides to extend their initial one-year 1(a) above, the natural person has,
contract. If they fail on their third take, they upon application and in accordance
will be required to go back to the with the laws and regulations of
Philippines. Japan, a maximum of three (3)
opportunities to take the national
examination for “Kangoshi”,
under normal circumstances,
during the maximum period of its
stay set out in Appendix 1.
Source: Benjamin, Golda S.,A Summary of Arguments against the Japan-Philippines Economic
Partnership Agreement (JPEPA). Magkaisa JUNK JPEPA Coalition, October 23, 2007.
31
Annex A. Summary of Philippine Laws on Overseas Employment
Number Full Title Salient Features/ Remarks
Presidential The 1974 Labor Code of This PD institutionalized the participation of the
Decree (PD) No. the Philippines government in overseas employment. It created the
422 Overseas Employment Development Board
(OSDB) and the National Seamen Board (NSB).The
Year Signed: two (2) Boards were mandated to undertake a
1974 systematic program for overseas employment -
focusing on market development, recruitment and
placement of Filipino workers.
Letter of The Welfare Fund for The Welfare Fund was established to provide
Instruction No. Overseas Workers social and welfare services to Filipino overseas
537 (Welfare Fund). workers, to provide skills and career development
(1977) services to Filipino overseas workers, to undertake
studies and researches for enhancement of their
social, economic and cultural well-being, and to
develop, support and finance specific projects for
the benefit of Filipino overseas workers.
PD 1412 Further amending certain Renewed the participation of the private sector in
(1978) provisions of Book I, the recruitment activities.
Presidential Decree
No.442 otherwise known
as the Labor Code of the
Philippines.
Executive Order Executive Order Creating The POEA took over the functions of the OESDB
NO. 797 the Philippine Overseas and NSB. It was also given jurisdiction to take
(1982) Employment cognizance and resolve cases involving overseas
Administration (POEA) contract workers.
EO 857 Governing the Remittance EO 857B made mandatory the requirement for
(1982) to the Philippines of overseas workers to remit part of their earnings to
Foreign Exchange their families in the Philippines and to ensure that
Earnings of Filipino these remittances passed through the official
Workers abroad and for financial institutions.
other purposes.
1987 Philippine The 1987 Constitution of Philippine labor policy was clearly defined in the
Constitution the Philippines 1987 Constitution. Article XIII states that “The
(replacing 1973 State shall afford full protection to labor, local and
Constitution) overseas, organized and unorganized, and
promote full employment and equality of
employment opportunities for all.”
Republic Act Overseas Investment This law created the Overseas Workers’
7111 Fund Act Investment Fund Board to encourage remittance of
(1991) earnings of Overseas Filipino Workers and to
safeguard /oversee the participation of said
workers’ remittances and savings in the
32
Government’s debt reduction efforts and other
productive undertakings. Incentives such as
scholarship grants, housing program, credit
assistance and other programs were also provided.
Republic Act The Migrant Workers’ Act The act was considered the first concrete measure
8042 of 1995 and public commitment of the Philippine
(1995) Government to protect the rights and promote the
welfare of the Overseas Filipino Workers (OFWs).
Republic Act Overseas Absentee Voting This law paved the way for overseas Filipinos to
9189 Act of 2003 participate in Philippine national elections. Thus,
(2003) in May 2004 some overseas Filipinos exercised
their right of suffrage.
Republic Act Anti-Trafficking in This law was regarded as one of the most
9208 Persons Act of 2003 comprehensive and progressive anti-trafficking
(2003) laws passed. This act adopted the UN definition of
trafficking in person.
Strengthening the It amended Section 23 (par.b.1) of RA 8042. Under
RA 9422 Regulatory Functions of the amendatory law, the POEA shall regulate
the POEA (amending RA private sector participation in the recruitment and
8042) overseas placement of workers by setting up a
licensing and registration system. It shall also
formulate and implement, in coordination with
appropriate entities concerned, when necessary, a
system for promoting and monitoring the overseas
employment of Filipino workers taking into
consideration their welfare and the domestic
manpower requirements.
34
Annex B. List of Ratifications of International Labour Conventions: Philippines
Member since 1948 34 Conventions ratified (32 in force)
C. 17 Workmen's Compensation (Accidents) Convention, 1925 17.11.1960
(No. 17)
C. 19 Equality of Treatment (Accident Compensation) 26.04.1994
Convention, 1925 (No. 19)
C. 23 Repatriation of Seamen Convention, 1926 (No. 23) 17.11.1960
C. 29 Forced Labour Convention, 1930 (No. 29) 15.07.2005
C. 53 Officers' Competency Certificates Convention, 1936 17.11.1960
(No. 53)
C. 77 Medical Examination of Young Persons (Industry) 17.11.1960
Convention, 1946 (No. 77)
C. 87 Freedom of Association and Protection of the Right to 29.12.1953
Organise Convention, 1948 (No. 87)
C. 88 Employment Service Convention, 1948 (No. 88) 29.12.1953
C. 89 Night Work (Women) Convention (Revised), 1948 (No. 89) 29.12.1953
C. 90 Night Work of Young Persons (Industry) Convention 29.12.1953
(Revised), 1948 (No. 90)
C. 93 Wages, Hours of Work and Manning (Sea) Convention 29.12.1953
(Revised), 1949 (No. 93)
Convention not in force
C. 94 Labour Clauses (Public Contracts) Convention, 1949 29.12.1953
(No. 94)
C. 95 Protection of Wages Convention, 1949 (No. 95) 29.12.1953
C. 97 Migration for Employment Convention (Revised), 1949 21.04.2009
(No. 97)
Has excluded the provisions of Annex II and III
C. 98 Right to Organise and Collective Bargaining Convention, 29.12.1953
1949 (No. 98)
C. 99 Minimum Wage Fixing Machinery (Agriculture) 29.12.1953
Convention, 1951 (No. 99)
C. 100 Equal Remuneration Convention, 1951 (No. 100) 29.12.1953
C. 105 Abolition of Forced Labour Convention, 1957 (No. 105) 17.11.1960
C. 110 Plantations Convention, 1958 (No. 110) 10.10.1968
C. 111 Discrimination (Employment and Occupation) Convention, 17.11.1960
1958 (No. 111)
C. 118 Equality of Treatment (Social Security) Convention, 1962 26.04.1994
(No. 118)
Has accepted Branches (a) to (g)
C. 122 Employment Policy Convention, 1964 (No. 122) 13.01.1976
35
C. 138 Minimum Age Convention, 1973 (No. 138) 4.06.1998
Minimum age specified: 15 years
C. 141 Rural Workers' Organisations Convention, 1975 (No. 141) 18.06.1979
C. 143 Migrant Workers (Supplementary Provisions) Convention, 14.09.2006
1975 (No. 143)
C. 144 Tripartite Consultation (International Labour Standards) 10.06.1991
Convention, 1976 (No. 144)
C. 149 Nursing Personnel Convention, 1977 (No. 149) 18.06.1979
C. 157 Maintenance of Social Security Rights Convention, 1982 26.04.1994
(No. 157)
C. 159 Vocational Rehabilitation and Employment (Disabled 23.08.1991
Persons) Convention, 1983 (No. 159)
C. 165 Social Security (Seafarers) Convention (Revised), 1987 9.11.2004
(No. 165)
Has accepted the obligations of Article 9 of the Convention in
respect of the branches mentioned in Article 3 (a), (b), (d), (e), (h)
and (i).
C. 176 Safety and Health in Mines Convention, 1995 (No. 176) 27.02.1998
C. 179 Recruitment and Placement of Seafarers Convention, 1996 13.03.1998
(No. 179)
C. 182 Worst Forms of Child Labour Convention, 1999 (No. 182) 28.11.2000
Denunciation (as a result of the ratification of Convention No. 138)
C. 59 Minimum Age (Industry) Convention (Revised), 1937 17.11.1960
(No. 59)
Denounced on 4.06.1998
Source: http://webfusion.ilo.org/public/db/standards/normes/appl/appl-byCtry.accessed on
November 23, 2010.
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