Illegal Recruitment Economic Sabotage 8 5 12
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Transcript of Illegal Recruitment Economic Sabotage 8 5 12
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7/31/2019 Illegal Recruitment Economic Sabotage 8 5 12
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Q When is IR considered ECONOMIC SABOTAGE?
A When committed by a SYNDICATE or in LARGE SCALE
Q What is SYNDICATED IR? (or When is IR deemed committed by aSYNDICATE?)
A 1. Carried out by group of 3 or more persons; and
2. Conspiring or Confederating with each other.
Q What is LARGE SCALE IR? (or When is IR deemed committed in LARGE
SCALE?)
A 1. If committed AGAINST 3 or more persons;
2. Individually or as a group (grouply)
Q Who are the PERSONS CRIMINALLY LIABLE for IR? Sec 6, RA 8042
A 1. Principals, Accomplices & Accessories
2. If Juridical P: Officers having Control, Management, & Direction of B
3. Employees of IR who actively & consciously participate in IR (P vs.
Cabais, GR 129070, Mar 16, 2001; P vs. Flores, GR 138535-38 Apr 19, 2001)
Q Does absence or want of Receipts defeat criminal prosecution of IR?
A Yes, even by testimonial evidence if it is credible and can positively show
the IR did the prohibited acts. P vs. Sagaydo, GR 124671-75 Sept 29,
2000)
A Yes, presentation of receipts acknowledging payments is not necessary
for successful prosecution of IR charge. (P vs. Ong, GR 119594, Jan 18,
2000)
Q Does conviction of IR under LC bar prosecution for Estafa under the RPC?
No. provided the elements of estafa are present. (P vs. Calonzo, GR
115150-55, Sep 27, 1996)
General elements of estafa:
1.
Defraud another2. By means of abuse of confidence or deceit3. DamageP vs. Hernandez, GR 141221-36, Mar 7, 2002)
Accused convicted of ESTAFA Art 315 (2) RPC. Represented to have
capacity to send W to Italy. Induced W to pay P150K. NL/NA.
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Q Does DOLE Sec or POEA have power to issue ARREST & SEARCH warrants?
A No. The power belongs to a judge. They must go thru judicial process.
(Salazar vs. Achacoso & Marquez, GR 81510, Mar 14, 1990)
Note:
This does not mean DOLE Sec or POEA cannot cause the arrest of IR. Sec
5 Rule 113 of Rules of Court may still be enforced.
This does not mean DOLE Sec or POEA cannot issue CLOSURE ORDER, so
long as procedure under RA 8042s Implementing Rules is observed.
Art. 39 PENALTIES (For IR turned ECONOMIC SABOTAGE)
Q What is the penalty for simple IR? (Sec 7, RA 8042)
A Prision Mayor & Fine 200k-500k.
Q What is the penalty for IR that turned into ECONOMIC SABOTAGE? (Sec 7, RA
8042)
A Life Imprisonment and Fine 500K-1MM (for IR turned ECONOMIC SABOTAGE)
Note: The Penalty range remains discretionary to the Judge. This is an improvement
from Art. 39 (a) with penalty of LI plus Fine 100K.
Q When does the imposition of the maximum penalty for IR become
ministerial? (Sec 7, RA 8042)
A 1. victim below 18 yo2. IR by non L/A
Q When is IR considered ECONOMIC SABOTAGE?
A When committed by a SYNDICATE or in LARGE SCALE
Q What is SYNDICATED IR? (or When is IR deemed committed by a
SYNDICATE?)
A 1. Carried out by group of 3 or more persons; and
2. Conspiring or Confederating with each other.
Q What is LARGE SCALE IR? (or When is IR deemed committed in LARGE
SCALE?)
A 1. If committed AGAINST 3 or more persons;
2. Individually or as a group (grouply)
Q Many victims. Only one complainant.IR committed by 3 Recruiters. Are
the recruiters liable for LS-IR or S-IR?
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A Syndicated IR. Not LS-IR because there is only one complainant. (People
vs. Hernandez, GR 141221-36, Mar 7, 2002)
Q 6 victims. IR committed by 1 Recruiter. Is the recruiter liable for LS-IR or S-
IR?
A Large Scale IR. Not Syndicated IR because there is only one recruiter.
(People vs. Tan Tiong Meng, GR 120835-40 Apr 10, 1997; People vs.
Arabia, GR 138431-36 Sep 12, 2001)
Q May an accused be convicted of IR even if the elements of Large
scale or syndicated are not proved?
A Yes. Simple IR. (People vs. Sagun, GR119076 Mar 25, 2002)
Q What is the venue of action in IR? (Sec 7, RA 8042)
A RTC of place of commission, or
RTC of place of victim.
Q What is the mandatory periods for resolving IR case? (Sec 11, RA 8042)
A - Prelim Inv30 cal days
- If prima facie found by Prosecutorinformation filed w/in 24 hours.
- If prima facie found by Judge - information filed w/in 48 hours.
Q What is the PRESCRIPTIVE PERIOD of IR cases?
A 5 years for SIMPLE IR
20 years for IR-Economic Sabotage
Q May an accused for IR be also convicted of estafa?
A Yes. Independent of each other.
Art. 40 EMPLOYMENT OF ALIENS
Q Are all aliens required to secure Employment Permit?
A No, only NRA are required. (Almodiel vs. NLRC GR 100641, June 14, 1993,
42 SCAD 354)
Q What is required of Immigrants or RA?
A Alien Employment Registration Certificate (AERC)
Q Which Agency is empowered to Issue Alien Employment Permit ?
A DOLE.
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Q Are aliens absolutely prohibited from being employed in Nationalized
Business?
A No. They are allowed in Technical, Supervisory or Advisory Position or
where they are elected members of the governing Board with foreign
proportionate participation allowed by law.
Q What is now the prevailing Rule re Alien Employment?
A D.O. No. 75 issued May 31, 2006.
BOOK IILABOR STANDARDS
CHAPTER III
August 1, 2010
NATIONAL MANPOWER DEVELOPMENT PROGRAM
Q What are the States Objectives in Manpower Development: (Art. 43 LC)
1. DEVELOP HR2. ESTABLISH TRAINING INSTITUTIONS3. FORMULATE PLANS AND PROGRAMS
To Ensure- Efficient Allocation, Development & Utilization of the Nations Manpower
To promote- Employment and accelerate economic & social growth
Q What is Manpower?
- Portion of the nations population having actual or potential capability tocontribute directly to the production of goods and services.
Q What is Entrepreneurship?
- Training for self-employment or assisting individual or small industries withinthe purview of the National Manpower Development Program.
Q What is TESDA (Technical Education and Skills Development Authority)?
This replaced the defunct National Manpower and Youth Council by virtue of RA
7796 An Act creating TESDA (Approved Aug 25, 1994) Implementing Rules Jan 24,
1995. (Please read Appendix)
APPRENTICES
Q What is an Apprentice?
- is one trained in a highly skilled job or in a job found only in highly skilled
industry under an Apprenticeship Agreement approved by DOLE.
Q What is the maximum period of Apprenticeship?
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- 6 months-
Q What is Minimum Salary?
- 75% of minimum wage-
Q Rule: DOLEs prior approval of the Program Prerequisite or else the apprenticebecomes a regular employee
(Nitto Enterprises vs. NLRC, GR 114337 Sept 27, 1995)
Q What is the Apprenticeable Age?
15 years old.
ATLANTA INDUSTRIES, INC. VS. SABOLINO, GR 187320, Jan 26, 2011
Retention of Apprentice beyond the expiration period of Apprenticeship Agreement
makes him REGULAR EE.
LEARNERS
Q What is a Learner?
- is one trained in a semi-skilled job or in industrial occupations requiring less
than 3 months of training under a Learnership Agreement approved by
DOLE.
Q Similarity of Apprenticeship and Learnership
- training periods for job requiring skills acquirable through actual workexperience.
- 75% of MW salary-
Q Distinction of Apprenticeship and Learnership
Learner
semi-skilled job or non-technical job 3 mos training Non-apprenticeable job- ER commits to hire after learnership period
Apprentice
highly skilled or highly technical jobs 6 mos training Apprenticeable job- ER does not commit to hire after apprenticeship period
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HANDICAPPED WORKERS
Q When Employable?
1. When emp necessary to prevent curtailment of access to work opportunity2. When no unfair competition in terms of labor cost or lower work standards.
Q May handicapped workers be employed as L or A?
Yes, when the handicap does not impair job performance
Q May handicapped workers become Regular EEs?