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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:
Contract substitution or alteration is an act of illegal recruitment. Section 6(i) of the Republic Act No. 8042, as amended, or the Migrant Workers and Overseas Filipinos Act of 1995 provides that to substitute or alter employment contracts approved and verified by the Department of Labor and Employment from the time of actual signing thereof by the parties up to and including the period of the expiration of the same without the approval of the Department of Labor and Employment is an act of illegal recruitment.
The case of Marcelo M. Corpuz, Jr. vs. Gerwil Crewing Phils., Inc., G.R. No. 205725, January 18, 2021, provides an example of contract substitution or alteration.
In this case, Petitioner Marcelo M. Corpuz was hired as Able Seaman and was deployed last August 5, 2009 through respondent agency Gerwil under the principal, Echo Cargo & Shipping LLC.
A review of the terms and conditions of the Contract of Employment vis-a-vis the Sea Service Certificate readily reveals respondent’s overwhelming inaction in ensuring the welfare of petitioner. In the POEA-approved contract, Echo Cargo appeared as Petitioner’s foreign employer while the certificate referred to a certain Al Mansoori Production Services Co. (LLC). Based on the contract, petitioner was recruited as an Able Seaman but the certificate showed him to have worked as an Oiler. Even the vessel assignment of the petitioner appeared to be different. Furthermore, petitioner was deployed on August 5, 2008 while the certificate showed that petitioner worked as Oiler on board M.V. Alshaheen MPS (DPS2) from August 6, 2008 to August 10, 2009. Evidently, petitioner rendered his services to Al Mansoori within the same 12-month period covered by the POEA Contract executed by respondent with Echo Cargo as the foreign principal.
Hence, the salient terms of the Contract of Employment were altered or changed without the approval of the DOLE through the POEA because the respondent’s omission resulted in the change of petitioner’s foreign employer on board a different vessel, and service in a totally different capacity which working conditions may have led to his medical repatriation. Indubitably, the substitution or alteration of the POEA approved contract had relegated petitioner to the unfavorable situation which R.A. No. 8042 specifically seeks to avoid. Sec. 6 (i) of the law provides:
SEC. 6. Definition. – For purposes of this Act, illegal recruitment shall mean 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 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. It shall likewise include the following acts, whether committed by any person, whether a non-licensee, non holder, licensee or holder of authority:
(i) To substitute or alter to the prejudice of the worker, employment contracts approved and verified by the Department of Labor and Employment from the time of actual signing thereof by the parties up to and including the period of the expiration of the same without the approval of the Department of Labor and Employment;
Clearly, respondent’s inaction or omission was against existing law and public policy as it perpetrated the illegal and pernicious practice of substituting the POEA-approved contract to the detriment of the Filipino worker. Having knowingly reneged on its obligation to ensure the welfare of petitioner while deployed abroad, and in allowing the substitution of a previously approved POEA contract, respondent should be held liable.
To reiterate, Sec. 10 of R.A. No. 8042 allows the migrant worker to claim moral and exemplary damages in connection with the employment contract or as provided by law.
In Becmen, the Court imposed moral damages by reason of misconduct on the part of the employer under Article 2219 (10) of the Civil Code, which allows recovery of such damages in actions referred to in Article 21. The Court also ordered the payment of exemplary damages to set an example to foreign employers and recruitment agencies on how to treat and act on the plight of distressed Filipino migrant workers.
Licensed recruitment agencies are subject to a continuing liability to ensure the welfare of the Filipino workers they deployed abroad. Their carelessness and wanton disregard of such responsibility that result to the substitution of employment contracts previously approved by the DOLE, through the POEA, shall render them liable for damages.
Related Articles:
- Penalty for Illegal Recruitment – ALBURO ALBURO AND ASSOCIATES LAW OFFICES
- Elements and Types of Illegal Recruitment – ALBURO ALBURO AND ASSOCIATES LAW OFFICES
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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/ 0917-5772207/ 09778050020.
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