AFTER more than 40 years of neglect, the House has finally realized the need to strengthen and regulate the indiscriminate employment of foreign nationals in the country without the prior approval of the Secretary of Labor, among others.
As a result, thousands of foreign nationals are working in hotels, mining firms, cigarette manufacturers and other companies to the prejudice of qualified Filipinos, many of them had to travel abroad to seek employment under adverse social, economic and labor conditions.
The House Committee on Labor and Employment has approved a consolidated proposal to strengthen House Bill (HB) 277 intended to amend Articles 40, 41 and 42 of Title II, Book One of Presidential Decree 442, as amended, otherwise known as the Labor Code of the Philippines.
The committee, chaired by Rep. Randolph S. Ting of the Third District of Cagayan, has approved the measure authored by Reps. Karlo Alexei B. Nograles of the First District of Davao City and Jericho B. Nograles of PBA, in consolidation with HB 710 filed by Rep. Bellaflor J. Angara-Castillo of the Lone District of Aurora.
Nograles, chairman of the House Committee on Appropriations, said one of the country’s commitments to the World Trade Organization (WTO)-General Agreement on Trade in Service (GATS) is to review the restrictions in Title II, Article 40 of P.D. 442. The main restriction in the hiring of a foreign national is the Labor Market Test (LMT) used to determine the non-availability of a qualified, able and willing person in the Philippines to do the services for which the foreign national is being hired. This test is comparable to an Economic Needs Test implemented by other countries.
Nograles explained that the proposed amendment of the Labor Code provision is intended to facilitate uniformity by properly stating the term used by the country in its commitments entered into via bilateral, regional and multilateral agreements.
“It is a way for the country to determine if there is a short supply of workers in specific industries, occupations and professions which probably inhibits the country from increased productivity and industry development. It includes a provision for training of Filipino understudies to transfer skills and technology from the foreign national,” he argued.
Moreover, increased fines and penalties for violations by foreign nationals are also updated to address inflation since the law was enacted almost four decades ago.
In conclusion, Nograles said as the country strives to meet its commitment in the WTO-GATS, Asean Economic Community (AEC), and other bilateral, regional and multilateral agreements, it is expected to at least review the affected national laws and policies.
“The proposed agreement is a timely initiative to update the said law as the country modernizes as part of a global community. It is also a show of good faith to countries, regions and international bodies the Philippines has agreements with, that the country is willing to accommodate changes in order to meet its commitments. The proposed amendment is beneficial to the country as it paves the way to an improved but still protective policy on employment of foreign nationals,” Nograles said.
The consolidated bill sought to amend Article 40 of PD 442, as amended, so that Title II is renamed Employment of Non-Resident Foreign Nationals. The title of Article 40 is also changed to Employment Permit for Non-resident Foreign Nationals.
The substantial amendment to Article 40 provides: “All non-resident foreign nationals seeking employment in the Philippines shall obtain an employment permit from the Department of Labor and Employment.”
The amendment further provides that “an employment permit may be issued to non-resident foreign national subject to the Labor Market Test based on the non-availability of qualified and willing Filipino nationals.”
Moreover, the Labor Secretary is authorized to grant exemptions from the LMT to foreign nationals as provided for under existing laws and agreements, as well as in industries or occupations or practice of professions where there is short supply, after tripartite consultation. Foreign nationals issued employment permits shall transfer technology to Filipino understudies within a prescribed period, the amendment further provides.
The amendment to Article 41 (Prohibition Against Transfer of Employment) of PD 442, as amended, provides that after the issuance of an employment permit, the foreign national shall not transfer to another job or change his employer without prior approval of the Labor Secretary.
Furthermore, any non-resident foreign national, who shall take up employment in violation of the provision of this bill and its implementing rules and regulations, as well as the employer or the responsible person representing the employer, shall be punished with a fine or not less than P50,000 nor more than P100,000, or imprisonment of not less than six months nor more than six years, or both such fine and imprisonment, at the discretion of the court. The foreign national shall be subject to deportation after service of his sentence, the amendment provides.
Moreover, the amendment provides that the Labor Secretary is authorized to impose a fine of P50,000 for every year or fraction thereof to both the foreign national found working without valid employment permit and to the employer.
Lastly, the amendment to Article 42 (Submission of List) of PD 442, as amended, provides that any employer hiring non-resident foreign nationals shall submit a list of such nationals, indicating their names, citizenship, foreign and local addresses, nature of employment and status of stay in the country. The Labor Secretary shall then determine if they are entitled to an employment permit.
To reach the writer, e-mail cecilio.arillo@gmail.com.