Understanding the Rights and Reliefs of Overseas Filipino Workers

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Published — January 16, 2019

The following post does not create a lawyer-client relationship between Alburo Alburo and Associates Law Offices (or any of its lawyers) and the reader. It is still best for you to engage the services of your own lawyer to address your legal concerns, if any.

Also, the matters contained in the following were written in accordance with the law, rules, and jurisprudence prevailing at the time of writing and posting, and do not include any future developments on the subject matter under discussion.

The Philippines, like most of the independent countries, and as a developing state, is concerned with the growth of the economy in order to upsurge resources for competitive trade and most importantly, to provide an improved quality of life for all. It is none other than the worker’s remittances of Overseas Filipino Workers (OFWs) who contribute significantly to the growth of the economy. (See here)

According to the data provided by the Philippine Statistics Authority (PSA), as of September 2017, there are over 2.3 million Overseas Filipino Workers (OFWs). Over 97.5% of the total number of estimated OFWs are Overseas Contract Workers (OCWs) or those with existing work contract and the rest worked overseas without contract (PSA Statistical Tables on OFW).

       The continuing increase of OFWs and the huge benefit of their remittances to the economy is a public concern. In addition, OFWs belong to a disadvantaged class. Most of them come from the poorest sector of our society. Their profile shows they live in suffocating slums, trapped in an environment of crimes. Hardly literate and in ill health, their only hope lies in jobs they find with difficulty in our country. Their unfortunate circumstance makes them easy prey to avaricious employers. They will climb mountains, cross the seas, endure slave treatment in foreign lands just to survive. Out of despondence, they will work under sub-human conditions and accept salaries below the minimum. The least we can do is to protect them with our laws (Olarte v. Nayona, G.R. No. 148407, [November 12, 2003], 461 PHIL 429-436).

Rights of Overseas Filipino Workers (OFWs) under our Labor Laws

The Constitution points out that the State affirms labor as a primary social economic force. It shall protect the rights of workers and promote their welfare (Sec. 18, Art. 2, 1987 Constitution). The rights afforded to Labor are granted not just to local workers but also those working overseas as the specific mandate of the Constitution provides that, 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 (Sec. 3, Art. 13, 1987 Constitution).

            Aside from our Constitution, some of the basic rights of OFWs are found in the provisions of the Labor Code, such as the Right to Security of Tenure and Right to Self- Organization and collective Bargaining, and the Republic Act. No. 8042 (RA No 8042), or The Migrant Workers and Overseas Filipinos Act of 1995 as amended by Republic Act No. 10022;

Rights under Republic Act. No. 8042, or The Migrant Workers and Overseas Filipinos Act of 1995 as amended by Republic Act No. 10022

            Most of the rights of an OFW is found under the provisions of RA. 8042, as amended. As a mode of implementing State protection to OFWs, a POEA- Standard Employment Contract (POEA-SEC) is required as a minimum requirement for OFW’s employment contract. Under Sec. 135 of the Revised POEA Rules and Regulations Governing the Recruitment and Employment of Landbased OFWs of 2016 (Revised POEA Rules of 2016), contracts of employment of OFWs must at least comply with the provisions indicated therein, these are:

1. Complete name and address of the employer/company;
2. Position and jobsite of the Overseas Filipino Worker;
3. Basic monthly salary, including benefits and allowances and mode of payment. The salary shall not be lower than the prescribed minimum wage in the host country or prevailing minimum wage in the National Capital Region of the Philippines, whichever is higher;
4. Food and accommodation or the monetary equivalent which shall be commensurate to the cost of living in the host country, or off-setting benefits;
5. Commencement and duration of contract;
6. Free transportation from and back to the point of hire, or off-setting benefits, and free inland transportation at the jobsite or off-setting benefits;
7. Regular work hours and day off;
8. Overtime pay for services rendered beyond the regular working hours, rest days and holidays;
9. Vacation leave and sick leave for every year of service;
10. Free emergency medical and dental treatment;
11. Just/valid/authorized causes for termination of the contract or of the services of the workers, taking into consideration the customs, traditions, norms, mores, practices, company policies and the labor laws and social legislations of the host country;
12. Settlement of disputes;
13. Repatriation of worker in case of imminent danger due to war, calamity, and other analogous circumstances, at the expense of employer; and
14. In case of worker’s death/ repatriation of Overseas Filipino Workers human remains and personal belongings, at the expense of the employer.

On the same basis, POEA may formulate country or skills specific policies and guidelines based on the following:

1. Existing labor and social laws of the host country;
2. Relevant bilateral and multilateral agreements or arrangements with the host country; and
3. Prevailing conditions/realities in the market.

Parties to overseas employment contracts are allowed to stipulate other terms and conditions and other benefits. These benefits should be over and above the minimum requirements. Said benefits shall not be contrary to law, public policy and morals (Sec. 136 of Revised POEA Rules of 2016). All additional stipulations on a POEA-approved contract shall only be valid upon prior approval from the POEA. Under Paragraph (i), Section 6 of RA No. 8042, any person who substitutes or alters, to the prejudice of the worker, of employment contract already approved and verified by the POEA from the time of actual signing thereof by the parties up to and including the period of their expiration without the approval of POEA is considered as act of illegal recruitment and shall be sanctioned accordingly.

            In the case of Chavez vs. Bonto-Perez, G.R. No. 109808, it was held that the subsequent executed side agreement of an OFW with her foreign employer which reduced her salary below the amount approved by the POEA is void because it is against our existing laws, morals and public policy. Side agreements cannot supersede the standard employment contract of POEA. The side agreement is a scheme all too frequently resorted to by unscrupulous employers against our helpless OFWs who are compelled to agree to satisfy their basic economic needs.

On the part of the licensed recruitment agency, they shall, prior to the signing of the employment contract, inform the OFWs of their rights and obligations, and disclose the full terms and conditions of employment. The licensed recruitment agency shall likewise ensure that the OFW is provided with a copy of the POEA-approved contract, to give the OFW ample opportunity to examine the same. (Sec. 137 of Revised POEA Rules of 2016)

            Aside from the rights granted to OFWs under the Standard Employment Contract of POEA, OFWs shall be entitled to information of venue of redress of their grievances against abusive employers. If a complaints machinery is available under international or regional systems, the Department of Foreign Affairs (DFA) shall fully apprise the Filipino migrant workers of the existence and effectiveness of such legal options||| (Sec. 22, RA No. 8042).

Right to Security of Tenure

            Overseas workers regardless of their classifications 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. If they were illegally dismissed, the workers’ right to security of tenure is violated. The rights violated when, say, a fixed-period local worker is illegally terminated are neither greater than nor less than the rights violated when a fixed-period overseas worker is illegally terminated. It is state policy to protect the rights of workers without qualification as to the place of employment. In both cases, the workers are deprived of their expected salary, which they could have earned had they not been illegally dismissed. For both workers, this deprivation translates to economic insecurity and disparity. (Sameer Overseas Placement Agency, Inc. v. Cabiles, G.R. No. 170139, [August 5, 2014])

Right to Self-Organization and Collective Bargaining

            Since 2008, the 33-year old prohibition on OFWs to join unions was lifted (See here). Currently, OFWs are still allowed to organize or join labor unions in their destination countries. The removal of the prohibition on OFWs to join unions is in accord with the Constitution, which mandates that the State is required to 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 (Sec. 3, Art. 13, 1987 Constitution).

Reliefs Entitled to Overseas Filipino Workers (OFWs)

Illegal Dismissal

            In case of illegally dismissed OFWs, backwages, reinstatement or separation pay are not entitled to them as their employment is purely fixed term in character, they are entitled only to all salaries for the unexpired portion of their employment contract (Tangga-an v. Philippine Transmarine Carriers, Inc., G.R. No. 180636, [March 13, 2013], 706 PHIL 339-354). Costs of repatriation and transport of personal belongings should be included in the monetary award to an illegally dismissed OFW (Sevillana v. I.T. (International) Corp., G.R. No. 99047, [April 16, 2001], 408 PHIL 570-588). Monetary award to OFW is not in the nature of separation pay or backwages but a form of indemnity. (Skippers United Pacific, Inc. v. National Labor Relations Commission, G.R. No. 148893, [July 12, 2006], 527 PHIL 248-263).

An OFW is not entitled to overtime pay if he failed to present any evidence to prove that he rendered service in excess of the regular eight (8) working hours a day(PCL Shipping Phils., Inc. v. National Labor Relations Commission, G.R. No. 153031, [December 14, 2006], 540 PHIL 65-85).

            In cases of breach of contract and bad faith, the court may award moral, exemplary damages and attorney’s fees to an OFW. (Athenna International Manpower Services Inc. v. Villanos, G.R. No. 151303, [April 15, 2005], 496 PHIL 210-222)

Unauthorized Deductions from OFW’s Salary

            In case of unauthorized deductions from OFW’s salary, he shall be entitled to the full reimbursement of the deductions made with interest at twelve percent (12%) per annum. This is in addition to the full reimbursement of his placement fee with the same interest of 12% per annum plus his salaries for the unexpired portion of his employment contract if he is termination without just, valid or authorized cause as defined by law or contract. (Sec. 10 RA No. 8042, see also: Sameer Overseas Placement Agency, Inc. v. Cabiles, G.R. No. 170139, [August 5, 2014])

Breach of Contract

There are some instances where the recruitment agency failed to deploy an OFW abroad after signing a POEA-approved employment contract, such act of the recruitment agency constitutes breach of contract. ||| The breach of contract entitles the OFW to actual or compensatory damages (Santiago v. CF Sharp Crew Management, Inc., G.R. No. 162419, [July 10, 2007], 554 PHIL 63-77).

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Alburo Alburo and Associates Law Offices specializes in business law and labor law consulting. For inquiries, you may reach us at info@alburolaw.com, or dial us at (02)7745-4391/0917-5772207.

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