More on employing a foreign national: Hiring Non Resident Aliens
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The selection and engagement of the employee is a factor in determining the existence employer-employee relationship
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Generally, the government may not interfere with the right of an employer to hire his employee
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Employing a foreign national is subject to the requirement of an alien employment permit.
Management prerogative is an inherent right of the employer to regulate all aspects of employment.
However, there are instances where a particular work can only be done by a person with special skills or expertise. It is a good thing if the employer could hire a local who fits perfectly with the job description. But what if the employer, despite efforts in trying to hire the prospective employee failed to locate a qualified person in the country? Or, what if a qualified person is available in the country but is not willing to be employed? Is there a remedy for such employer?
May an employer hire a foreign national?
The law says:
Yes.
Employing a foreign national or a non-resident alien is allowed. However, before resorting to employing a foreign national, the employer must first determine the non-availability of a person in the Philippines who is competent, able and willing at the time of application to perform the services which the foreign national is desired.
In addition, before employing a foreign national, the foreign national must have an Alien Employment Permit (AEP) which is a document issued by the Department of Labor and Employment (DOLE) through its Regional Offices and is one of the requirements for a foreign national to work in the country. Do note that not all foreign nationals are required to secure AEP. Some are excluded and some are exempted.
Based on the foregoing, it seems that the employment of foreign national is not that easy as employing a local. An employer might argue that it is a management prerogative to employ a foreign national.
Is employing a foreign national a management prerogative?
The Supreme Court says:
Let us take the case of General Milling Corporation and Earl Timothy Cone vs. Honorable Ruben D. Torres et. al., G.R. No. 93666, April 22, 1991.
In this case, Earl Timothy Cone (Cone), a United States citizen, by virtue of an Alien Employment Permit issued in his favor, entered into a contract of employment whereby he undertook to coach for General Milling Corporation’s (employer) basketball team.
After sometime, the employer requested for the renewal of Cone’s AEP but the Secretary of Labor issued a Decision ordering the cancellation of Cone’s employment permit on the ground that there was no showing that there is no person in the Philippines who is competent, able and willing to perform the services required nor that the hiring of Cone would redound to the national interest.
The employer filed a Motion a for Reconsideration. It claimed that hiring of a foreign coach is an employer’s prerogative.
Is the employer correct?
No.
The Supreme Court ruled that an alien seeking employment of an alien must first obtain an employment permit from the Department of Labor. The employer’s right to choose whom to employs is limited by the statutory requirement of AEP.
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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