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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 a lawyer or you may directly contact and consult Alburo Alburo and Associates Law Offices to address your specific legal concerns, if there is 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.
AT A GLANCE:
The Labor Code governs the employment of aliens. Article 40 requires non-resident aliens to secure a permit when seeking admission to the country for employment purposes.
Article 40 of the Labor Code provides that:
“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-availablity 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.”
All foreign nationals who intend to engage in gainful employment in the Philippines shall apply for an Alien Employment Permit (AEP).
Gainful employment refers to a state or condition that creates an employer-employee relationship between the Philippine-based employer and the foreign national where the former has the power to hire or dismiss the foreign national from employment, pays the salaries or wages thereof and has authority to control the performance or conduct of the tasks and duties (Section 2, DOLE D.O. No. 221-20)
Labor Market Test (LMT) is the mechanism to determine the non-availability of a Filipino citizen who is competent, able, and willing at the time of application to perform the services for which the foreign national is desired.
Section 5 of DOLE D.O. No. 221-20 provides that:
At least fifteen (15) calendar days prior to the application for AEP, the employer shall cause the publication of the job vacancy being applied for by the foreign national in a newspaper of general circulation.
The DOLE-RO shall conduct LMT on all new applications for AEP and shal cause its publication in a newspaper of general circulation within two (2) working days from receipt of application.
The publication shall contain the following:
- Name of the foreign national;
- Position, job description, and qualifications;
- Salary range and other benefits, if there are any;
- Employer’s name and addres s; and
- Notice that any person in the Philippines, who is competent, able, and willing at the time of application, to perform the services for which the foreign national is desired, may file an objection at the DOLE-RO within thirty (30) days after publication.
The DOLE-ROs shall aslo publish and post in their website new AEP applications and have the same posted in the Public Employment Service Office (PESO) job boards for a period of thirty (30) days.
The LMT shall also be conducted by the DOLE-RO in cases where a foreign national is assigned an additional position during the validity of AEP. An application, together with a new contract of employment, must be filed with the DOLE-RO within fifteen (15) working days from date of appointment for publication of the additional position.
The concerned DOLE-RO may utilize other forms of quad media as an additional platform, to enhance the LMT, subject to the provisions of the Data Privacy Act of 2012 (RA 10173).
The DOLE-RO may also refer to the DOLE’s PhilJobNet and PESO Employment Information System (PEIS), the PRC’s registry of professionals, and the Technical Education and Skills Development Authority’s (TESDA) registry of certified workers to establish the availability or non-availability of able and qualified Filipino workers.
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Alburo Alburo and Associates Law Offices specializes in business law and labor law consulting. For inquiries regarding legal services, you may reach us at info@alburolaw.com, or dial us at (02)7745-4391/ 09175772207/ 09778050020.
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