Pasei v torres

7/29/2019 Pasei v torres

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PHILIPPINE ASSOCIATION OF SERVICE EXPORTERS, INC.petitioner, vs. HON. RUBEN D. TORRES, as Secretary ofthe Department of Labor & Employment, and JOSE N.

SARMIENTO, as Administrator of the PHILIPPINEOVERSEAS EMPLOYMENT ADMINISTRATION, respondents.1992 Aug 6En BancG.R. No. 101279D E C I S I O NGRIO-AQUINO, J.:

This petition for prohibition with temporary restrainingorder was filed by the Philippine Association of Service

Exporters (PASEI, for short), to prohibit and enjoin theSecretary of the Department of Labor and Employment(DOLE) and the Administrator of the Philippine OverseasEmployment Administration (or POEA) from enforcing andimplementing DOLE Department Order No. 16, Series of1991 and POEA Memorandum Circular Nos. 30 and 37,Series of 1991, temporarily suspending the recruitmentby private employment agencies of Filipino domestichelpers for Hong Kong and vesting in the DOLE, through

the facilities of the POEA, the task of processing anddeploying such workers.

PASEI is the largest national organization of privateemployment and recruitment agencies duly licensed andauthorized by the POEA, to engage in the business ofobtaining overseas employment for Filipino landbasedworkers, including domestic helpers.

On June 1, 1991, as a result of published stories regardingthe abuses suffered by Filipino housemaids employed inHong Kong, DOLE Secretary Ruben D. Torres issuedDepartment Order No. 16, Series of 1991, temporarilysuspending the recruitment by private employmentagencies of "Filipino domestic helpers going to Hong

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Kong" (p. 30, Rollo). The DOLE itself, through the POEAtook over the business of deploying such Hong Kong-bound workers.

"In view of the need to establish mechanisms that willenhance the protection for Filipino domestic helpers goingto Hong Kong, the recruitment of the same by privateemployment agencies is hereby temporarily suspendedeffective 1 July 1991. As such, the DOLE through thefacilities of the Philippine Overseas EmploymentAdministration shall take over the processing anddeployment of household workers bound for Hong Kong,

subject to guidelines to be issued for said purpose.

"In support of this policy, all DOLE Regional Directors andthe Bureau of Local Employment's regional offices arelikewise directed to coordinate with the POEA inmaintaining a manpower pool of prospective domestichelpers to Hong Kong on a regional basis.

"For compliance." (Underscoring ours; p. 30, Rollo.)

Pursuant to the above DOLE circular, the POEA issuedMemorandum Circular No. 30, Series of 1991, dated July10, 1991, providing GUIDELINES on the Governmentprocessing and deployment of Filipino domestic helpers toHong Kong and the accreditation of Hong Kongrecruitment agencies intending to hire Filipino domestichelpers.

"Subject: Guidelines on the Temporary GovernmentProcessing and Deployment of Domestic Helpers to HongKong.

"Pursuant to Department Order No. 16, series of 1991 andin order to operationalize the temporary government



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processing and deployment of domestic helpers (DHs) toHong Kong resulting from the temporary suspension ofrecruitment by private employment agencies for said skill

and host market, the following guidelines andmechanisms shall govern the implementation of saidpolicy:

"I. Creation of a Joint POEA-OWWA Household WorkersPlacement Unit (HWPU).

"An ad hoc, one stop Household Workers Placement Unit[or HWPU] under the supervision of the POEA shall take

charge of the various operations involved in the HongKong-DH industry segment:

"The HWPU shall have the following functions incoordination with appropriate units and other entitiesconcerned:

"1. Negotiations with and Accreditation of Hong KongRecruitment Agencies

"2. Manpower Pooling"3. Worker Training and Briefing"4. Processing and Deployment"5. Welfare Programs.

"II. Documentary Requirements and Other Conditions forAccreditation of Hong Kong Recruitment Agencies orPrincipals.

"Recruitment agencies in Hong Kong intending to hireFilipino DHs for their employers may negotiate with theHWPU in Manila directly or through the Philippine LaborAttache's Office in Hong Kong.

"xxx xxx xxx



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"X. Interim Arrangement

"All contracts stamped in Hong Kong as of June 30 shallcontinue to be processed by POEA until 31 July 1991under the name of the Philippine agencies concerned.

Thereafter, all contracts shall be processed with theHWPU.

"Recruitment agencies in Hong Kong shall submit to thePhilippine Consulate General in Hong Kong a list of theiraccepted applicants in their pool within the last week of

July. The last day of acceptance shall be July 31 whichshall then be the basis of HWPU in accepting contracts forprocessing. After the exhaustion of their respective poolsthe only source of applicants will be the POEA manpowerpool.

"For strict compliance of all concerned." (pp. 31-35, Rollo.)

On August 1, 1991, the POEA Administrator also issued

Memorandum Circular No. 37, Series of 1991, on theprocessing of employment contracts of domestic workersfor Hong Kong.

"TO: All Philippine and Hong Kong Agencies engaged inthe recruitment of Domestic helpers for Hong Kong.

"Further to Memorandum Circular No. 30, series of 1991pertaining to the government processing and deployment

of domestic helpers (DHs) to Hong Kong, processing ofemployment contracts which have been attested by theHong Kong Commissioner of Labor up to 30 June 1991shall be processed by the POEA Employment ContractsProcessing Branch up to 15 August 1991 only.



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"Effective 16 August 1991, all Hong Kong recruitmentagent/s hiring DHs from the Philippines shall recruit underthe new scheme which requires prior accreditation with

the POEA.

"Recruitment agencies in Hong Kong may apply foraccreditation at the Office of the Labor Attache, PhilippineConsulate General where a POEA team is posted until 31August 1991. Thereafter, those who failed to havethemselves accredited in Hong Kong may proceed to thePOEA-OWWA Household Workers Placement Unit in Manilafor accreditation before their recruitment and processing

of DHs shall be allowed.

"Recruitment agencies in Hong Kong who have someaccepted applicants in their pool after the cut-off periodshall submit this list of workers upon accreditation. Onlythose DHs in said list will be allowed processing outside ofthe HWPU manpower pool.

"For strict compliance of all concerned." ( mphasis

supplied, p. 36, Rollo.)

On September 2, 1991, the petitioner, PASEI, filed thispetition for prohibition to annul the aforementioned DOLEand POEA circulars and to prohibit their implementationfor the following reasons:

1. that the respondents acted with grave abuse ofdiscretion and/or in excess of their rule-making authority

in issuing said circulars;2. that the assailed DOLE and POEA circulars are contraryto the Constitution, are unreasonable, unfair andoppressive; and



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3. that the requirements of publication and filing with theOffice of the National Administrative Register were notcomplied with.

There is no merit in the first and second grounds of thepetition.

Article 36 of the Labor Code grants the Labor Secretarythe power to restrict and regulate recruitment andplacement activities.

"Art. 36. Regulatory Power. The Secretary of Labor

shall have the power to restrict and regulate therecruitment and placement activities of all agencieswithin the coverage of this title [Regulation ofRecruitment and Placement Activities] and is herebyauthorized to issue orders and promulgate rules andregulations to carry out the objectives and implement theprovisions of this title." (Italics ours.)

On the other hand, the scope of the regulatory authority

of the POEA, which was created by Executive Order No.797 on May 1, 1982 to take over the functions of theOverseas Employment Development Board, the NationalSeamen Board, and the overseas employment functionsof the Bureau of Employment Services, is broad and far-ranging for:

1. Among the functions inherited by the POEA from thedefunct Bureau of Employment Services was the power

and duty:""2. To establish and maintain a registration and/orlicensing system to private sector participation in therecruitment and placement of workers, locally and



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overseas, . . . .' (Art. 15, Labor Code, talics supplied)." (p.13, Rollo.)

2. It assumed from the defunct Overseas EmploymentDevelopment Board the power and duty:

"'3. To recruit and place workers for overseasemployment of Filipino contract workers, on agovernment to government arrangement and in suchother sectors as policy may dictate . . . .' (Art. 17, LaborCode.)" (p. 13, Rollo.)

3. From the National Seamen Board, the POEA took over:

"2. To regulate and supervise the activities of agents orrepresentatives of shipping companies in the hiring ofseamen for overseas employment; and secure the bestpossible terms of employment for contract seamenworkers and secure compliance therewith." (Art. 20, LaborCode.)

The vesture of quasi-legislative and quasi-judicial powersin administrative bodies is not unconstitutional,unreasonable and oppressive. It has been necessitated by"the growing complexity of the modern society" (SolidHomes, Inc. vs. Payawal, 177 SCRA 72, 79). More andmore administrative bodies are necessary to help in theregulation of society's ramified activities. "Specialized inthe particular field assigned to them, they can deal withthe problems thereof with more expertise and dispatch

than can be expected from the legislature or the courts ofjustice" (Ibid.).

It is noteworthy that the assailed circulars do not prohibitthe petitioner from engaging in the recruitment anddeployment of Filipino landbased workers for overseas



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employment. A careful reading of the challengedadministrative issuances discloses that the same fallwithin the "administrative and policing powers expressly

or by necessary implication conferred" upon therespondents (People vs. Maceren, 79 SCRA 450). Thepower to "restrict and regulate conferred by Article 36 ofthe Labor Code involves a grant of police power (City ofNaga vs. Court of Appeals, 24 SCRA 898). To "restrict"means "to confine, limit or stop" (p. 62, Rollo) andwhereas the power to "regulate" means "the power toprotect, foster, promote, preserve, and control with dueregard for the interests, first and foremost, of the public,

then of the utility and of its patrons" (PhilippineCommunications Satellite Corporation vs. Alcuaz, 180SCRA 218).

The Solicitor General, in his Comment, aptly observed:

" . . . Said Administrative Order [i.e., DOLE AdministrativeOrder No. 16] merely restricted the scope or area ofpetitioner's business operations by excluding therefrom

recruitment and deployment of domestic helpers for HongKong till after the establishment of the `mechanisms' thatwill enhance the protection of Filipino domestic helpersgoing to Hong Kong. In fine, other than the recruitmentand deployment of Filipino domestic helpers forHongkong, petitioner may still deploy other class ofFilipino workers either for Hongkong and other countriesand all other classes of Filipino workers for othercountries.

"Said administrative issuances, intended to curtail, if notto end, rampant violations of the rule against excessivecollections of placement and documentation fees, travelfees and other charges committed by private employmentagencies recruiting and deploying domestic helpers to



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Hongkong. [They are] reasonable, valid and justifiedunder the general welfare clause of the Constitution, sincethe recruitment and deployment business, as it is

conducted today, is affected with public interest.

"xxx xxx xxx

"The alleged takeover [of the business of recruiting andplacing Filipino domestic helpers in Hongkong] is merely aremedial measure, and expires after its purpose shallhave been attained. This is evident from the tenor ofAdministrative Order No. 16 that recruitment of Filipino

domestic helpers going to Hongkong by privateemployment agencies are hereby 'temporarily suspendedeffective July 1. 1991.'

"The alleged takeover is limited in scope, being confinedto recruitment of domestic helpers going to Hongkongonly.

"xxx xxx xxx

" . . . the justification for the takeover of the processingand deploying of domestic helpers for Hongkong resultingfrom the restriction of the scope of petitioner's business isconfined solely to the unscrupulous practice of privateemployment agencies victimizing applicants foremployment as domestic helpers for Hongkong and notthe whole recruitment business in the Philippines." (pp.62-65. Rollo.)

The questioned circulars are therefore a valid exercise ofthe police power as delegated to the executive branch ofGovernment.



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Nevertheless, they are legally invalid, defective andunenforceable for lack of proper publication and filing inthe Office of the National Administrative Register as

required in Article 2 of the Civil Code, Article 5 of theLabor Code and Sections 3(1) and 4, Chapter 2, Book VIIof the Administrative Code of 1987 which provide:

"Art. 2. Laws shall take effect after fifteen (15) daysfollowing the completion of their publication in the OfficialGazette, unless it is otherwise provided. . . . ." (CivilCode.)

"Art. 5. Rules and Regulations. The Department ofLabor and other government agencies charged with theadministration and enforcement of this Code or any of itsparts shall promulgate the necessary implementing rulesand regulations. Such rules and regulations shall becomeeffective fifteen (15) days after announcement of theiradoption in newspapers of general circulation." ( mphasissupplied, Labor Code, as amended.)

Section 3. Filing. (1) Every agency shall file with theUniversity of the Philippines Law Center, three (3)certified copies of every rule adopted by it. Rules in forceon the date of effectivity of this Code which are not filedwithin three (3) months shall not thereafter be the basisof any sanction against any party or persons."( nderscoring supplied, Chapter 2, Book VII of theAdministrative Code of 1987.)

"Section 4. Effectivity. In addition to other rule-making requirements provided by law not inconsistentwith this Book, each rule shall become effective fifteen(15) days from the date of filing as above provided unlessa different date is fixed by law, or specified in the rule incases of imminent danger to public health, safety and



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welfare, the existence of which must be expressed in astatement accompanying the rule. The agency shall takeappropriate measures to make emergency rules known to

persons who may be affected by them." ( mphasissupplied, Chapter 2, Book VII of the Administrative Codeof 1987.)

Once more, we advert to our ruling in Taada vs. Tuvera,146 SCRA 446 that:" . . . Administrative rules and regulations must also bepublished if their purpose is to enforce or implementexisting law pursuant also to a valid delegation," (p. 447.).

"Interpretative regulations and those merely internal innature, that is, regulating only the personnel of theadministrative agency and not the public, need not bepublished. Neither is publication required of the so-calledletters of instructions issued by administrative superiorsconcerning the rules or guidelines to be followed by theirsubordinates in the performance of their duties." (p. 448.)

"We agree that publication must be in full or it is nopublication at all since its purpose is to inform the publicof the content of the laws." (p. 448.)

For lack of proper publication, the administrative circularsin question may not be enforced and implemented.

WHEREFORE, the writ of prohibition is GRANTED. Theimplementation of DOLE Department Order No. 16, Series

of 1991, and POEA Memorandum Circular Nos. 30 and 37,Series of 1991, by the public respondents is herebySUSPENDED pending compliance with the statutoryrequirements of publication and filing under theaforementioned laws of the land.



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SO ORDERED.

Narvasa, C.J., Gutierrez, Jr., Cruz, Feliciano, Padilla, Bidin,

Medialdea, Regalado, Davide, Jr., Romero, Nocon andBellosillo, JJ., concur.


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Pasei v torres