NLRC reverses Executive Labor Arbiter’s ruling; upholds legality of project employment

In a decision dated 11 June 2012, the National Labor Relations Commission (NLRC), reversed a decision of the Executive Labor Arbiter of Regional Arbitration Board (RAB) III Mariano Bactin, and declared that the complainant was a project employee of respondent company, in the case of Subic Drydock Corp (SDC) vs. Conde. SDC is being represented by this author.

“Undisputed is the fact that the Respondents merely accept contracts for repairs/maintenance of vessels from third parties and only on occasion when it has contracts of this nature that it will hire workers to do the job. The various contracts entered into between the Complainant and the Respondents  sufficiently prove the fixed-term employment between them. Careful review of the aforementioned documents shows that Complainant-Conde was hired as Mechanical Rigger assigned to different clients of Respondent-SDC such as MTSC Projects/Catleya; Super Shuttle Project; for M/V Cabilao, M/V Magsino and M/V Cabo. Thus, Respondent-SDC relies mainly on, and contingent to, the project it enters and thus, it hires project employees to meet the demands of specific projects,” NLRC states in its decision. 

Conde was initially hired as a project-based employee by SDC for a period of three months. When the last of his several contracts expired, he had just completed his project employment for two months as mechanical rigger for three vessels.

The Commission also duly noted in its decision that, “The fact that Complainant-Conde is a project employee is bolstered further with the Complainant having signed his various employment contracts for specific projects and specific period of time. He likewise signed the notice given him upon the expiration of each and every contract.”  It cited the case of William Uy Construction Corp., et. al. vs. Trinidad, involving a driver who was continuously and repeatedly rehired, but was still declared a project employee.

The case is under appeal.

Alien Employment Permit (AEP) is a Must for Expats Seeking Employment in the Philippines

For aliens/foreigners desiring to work in the Philippines, it is important to remember that aside from obtaining a working visa, they must also ensure that they have a valid alien employment permit (AEP) before they start working. Otherwise, they run the risk of facing serious legal consequences.

Under the law, the following shall apply for Alien Employment Permit (AEP):

1. All foreign nationals seeking admission to the Philippines for the purpose of employment;

2. Missionaries or religious workers who intend to engage in gainful employment;

3. Holders of Special Investors Resident Visa (SIRV), Special Retirees Resident Visa (SRRV), Treaty Traders Visa (9d) or Special Non-immigrant Visa (47(a)2), who occupy any executive, advisory, supervisory, or technical position in any establishment;

4. Agencies, organizations or individuals whether public or private, who secure the services of foreign professionals to practice their professions in the Philippines in the Philippines under reciprocity and other international agreements;

5. Non-Indo-Chinese Refugees who are asylum seekers and given refugee status by the United Nations High Commissioner on Refugees (UNHCR) or the Department of Justice under DOJ Department Order No. 94, series of 1998; and

6. Resident foreign nationals seeking employment in the Philippines.

In a March 2010 Supreme Court decision involving an alien employee with no valid alien employment permit who complained of illegal dismissal, it declared that to grant such alien’s prayer is to sanction violations of Philippine labor laws requiring aliens to secure employment permit before employment. The Supreme Court said it must leave the parties where they are, thus --

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." Section 4, Rule XIV, Book 1 of the Implementing Rules and Regulations provides:

Employment permit required for entry. —

No alien seeking employment, whether as a resident or non-resident, may enter the Philippines without first securing an employment permit from the Ministry. If an alien enters the country under a non-working visa and wishes to be employed thereafter, he may only be allowed to be employed upon presentation of a duly approved employment permit.

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. (From the consolidated Galera cases.)

For the requirements, you may visit: http://www.dole.gov.ph/fndr/bong/files/AEPChecklist.pdf