Labor Code: Book I — Pre-Employment; Title II — Employment of Non-resident Alien (September 12, 2023)

Q: For an alien to be able to work in the Philippines, what permit is required? What are the conditions for the grant of such permit?

Art. 40. Employment permit of non-resident aliens. Any alien seeking admission to the Philippines for employment purposes and any domestic or foreign employer who desires to engage an alien for employment in the Philippines shall obtain an employment permit from the Department of Labor.

The employment permit may be issued to a non-resident alien or to the applicant employer after a 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 investments, said employment permit may be issued upon recommendation of the government agency charged with the supervision of said registered enterprise.

Guiding questions: Employment permit of non-resident aliens.

Q: Who? 

• Any alien seeking admission to the Philippines for employment purposes and
• Any domestic or foreign employer who desires to engage an alien for employment in the Philippines

Q: What? Shall obtain an employment permit from the Department of Labor.

Q: The employment permit may be issued to whom?

The employment permit may be issued to a...

• non-resident alien or
• applicant employer 

Q: After? After a determination of the non-availability of a person in the Philippines

Q: Non-availability of? who is competent, able and willing at the time of application to perform the services for which the alien is desired.

Q: For a what? For an enterprise registered in preferred areas of investments,

Q: Said what? Said employment permit may be issued upon recommendation of the government agency charged with the supervision of said registered enterprise.

Art. 41. Prohibition against transfer of employment.

After the issuance of an employment permit, the alien shall not transfer to another job or change his employer without prior approval of the Secretary of Labor.

Any non-resident alien who shall take up employment in violation of the provision of this Title and its implementing rules and regulations shall be punished in accordance with the provisions of Articles 289 and 290 of the Labor Code.

In addition, the alien worker shall be subject to deportation after service of his sentence.

Guiding questions: Prohibition against transfer of employment.

Q: When? After the issuance of an employment permit.

Q: What? The alien shall not:

• transfer to another job or 
• change his employer 

Q: Without what? Without prior approval of the Secretary of Labor

Q: Who? Any non-resident alien who shall take up employment in violation of the provision of this Title and its implementing rules and regulations

Q: Shall what? Shall be punished

Q: In accordance with? In accordance with the provisions of Articles 289 and 290 of the Labor Code.

Q: In addition? In addition, the alien worker shall be subject to deportation after service of his sentence.

Art. 42. Submission of list. 

Any employer employing non-resident foreign nationals on the effective date of this Code shall submit a list of such nationals to the Secretary of Labor within thirty (30) days after such date indicating their names, citizenship, foreign and local addresses, nature of employment and status of stay in the country. The Secretary of Labor shall then determine if they are entitled to an employment permit.

Guiding questions: Submission of list. 

Q: Who? Any employer employing non-resident foreign nationals 

Q: When?  on the effective date of this Code

Q: Shall what?  shall submit a list of such nationals 

Q: To whom? to the Secretary of Labor 

Q: Within? within thirty (30) days after such date

Q: Indicating what? 

indicating their:

• names
• citizenship
• foreign and local addresses
• nature of employment and
• status of stay in the country

Q: Who? The Secretary of Labor

 

Q: What?  shall then determine if they are entitled to an employment permit.

Notes:

D.O. No. 75-06 requires all foreign natioinals who intend to engage in gainful employment in the Philippines to apply for Alien Employment Permit (AEP). 

But some foreigners are exempt from the AEP requirement, such as:

• members of the diplomatic service, 
• officers and staff of international organizations, and
• elected members of a governing board who do not occupy any other position. 

We ought to watch out the rate the DOLE issues employment permit to foreign hires. May it not happen that in this country the rank and file subordinates are Filipinos, while the supervisors, managers. and highly paid "professionals/technicians" are foreigners. When this happens, we are back to the colonial time.

A non-resident foreigner who has been working in the Philippines without first securing an alien employment permit cannot be granted relief by the NLRC in an illegal dismissal complaint. In WPP Warketing vs. Calera. March 25, 2010, the court left the parties as they were.

WPP Warketing vs. Galera (March 25, 2010)

• Petitioner Jocelyn Galera is an American citizen recruited by private respondents, a corporation based in Hong Kong, China, to work in the Philippines for WPP Marketing Communcations Inc. (WPP), effective on September 1, 1999. 
• Four months passed when WPP filed before the Bureau of Immigration an application for petitioner to receive a working visa. Petitioner was designated as Vice President of WPP. 
• On December 14, 2000, she was verbally notified by private respondent of her termination and a termination letter followed the next day. 
• She filed a complaint for illegal dismissal, damages and backwages against them. 
• Galera worked in the Philippines without a proper work permit but now wants to claim employee’s benefits under Philippine labor laws.

WoN Galera was entitled to the monetary award even without securing an Alien Employment Permit prior to her employment? NO.

The law and the rules are consistent in stating that the employment permit must be acquired prior to employment. The Labor Code states: "Any alien seeking admission to the Philippines for employment purposes and any domestic or foreign employer who desires to engage an alien for employment in the Philippines shall obtain an employment permit from the Department of Labor."

Galera cannot come to this Court with unclean hands. To grant Galera’s prayer is to sanction the violation of the Philippine labor laws requiring aliens to secure work permits before their employment. We hold that the status quo must prevail in the present case and we leave the parties where they are. This ruling, however, does not bar Galera from seeking relief from other jurisdictions.

General Milling Corp vs Torres (April 22, 1991) 

• Earl Timothy Cone, a U.S. citizen, received  Alien Employment Permit to work for General Milling Corporation (GMC) in the Philippines.
• Cone was hired as a sports consultant and assistant coach for GMC's basketball team.
• His employment status was changed from a temporary visitor to a pre-arranged employee in January 1990.
• In February 1990, GMC applied for the renewal of Cone's alien employment permit, which was granted until December 1990.
• The Basketball Coaches Association of the Philippines (BCAP) appealed the permit issuance.
• The Secretary of Labor revoked Cone's permit in April 1990, stating a lack of evidence that no competent local was available and that Cone's employment did not serve the national interest.

WoN the Secretary of Labor gravely abused his discretion when he revoked petitioner Cone's alien employment permit. NO.

Petitioner GMC's claim that hiring of a foreign coach is an employer's prerogative has no legal basis at all. Under Article 40 of the Labor Code, an employer seeking employment of an alien must first obtain an employment permit from the Department of Labor. Petitioner GMC's right to choose whom to employ is, of course, limited by the statutory requirement of an alien employment permit.

Neither can petitioners validly claim that implementation of respondent Secretary's decision would amount to an impairment of the obligations of contracts. The provisions of the Labor Code and its Implementing Rules and Regulations requiring alien employment permits were in existence long before petitioners entered into their contract of employment. It is firmly settled that provisions of applicable laws, especially provisions relating to matters affected with public policy, are deemed written into contracts. Private parties cannot constitutionally contract away the otherwise applicable provisions of law.

The Labor Code itself specifically empowers respondent Secretary to make a determination as to the availability of the services of a "person in the Philippines who is competent, able and willing at the time of application to perform the services for which an alien is desired." The Department of Labor is the agency vested with jurisdiction to determine the question of availability of local workers.

The permissive language employed in the Labor Code indicates that the authority granted involves the exercise of discretion on the part of the issuing authority. In the second place, Article 12 of the Labor Code sets forth a statement of objectives that the Secretary of Labor should, and indeed must, take into account in exercising his authority and jurisdiction granted by the Labor Code.