Previously, we discussed the rights of overseas Filipino workers or OFWs pre-employment.
Among these rights are the inclusion of provisions in the Philippine Overseas Employment Administration standard employment contract which must be complied with before POEA approval. In this article, we will discuss the rights of OFWs during employment and post-employment.
I. During employment:
During the duration of their overseas employment, OFWs shall be entitled to the following rights:
- Right to self-organization
- Right to collective bargaining and negotiations;
- Right, to conduct peaceful concerted activities, including the right to strike in accordance with law;
- Right to security of tenure;
- Right to humane conditions of work;
- Right to living wages; and
- Right to participate in policy and decision-making processes affecting their rights and benefits in accordance with the law.
The enumerated rights are granted to an OFW under Article XIII Section 3 of the 1987 Constitution which states that “the State shall afford full protection to labor, local and overseas, organized and unorganized, and promote full employment and equality of employment opportunities for all.”
On the right to security of tenure, OFWs are considered contractual employees whose employment ends upon the expiration of the fixed term provided for in their contracts. However, like local contractual or fixed-term employees, OFWs are also entitled to security of tenure during the period provided for in their contracts. (Roberto Ravago vs Esso Eastern Maritime and Trans-Global Maritime Agency Inc., G.R. 158324. 14 March 2005)
To emphasize, OFWs are not stripped of their security of tenure when they move to work in a different jurisdiction.
Thus, they are entitled to substantive and procedural due process before termination. They may not be removed from employment without a valid or just cause as determined by law and without going through the proper procedure. (Sameer Overseas Placement Agency Inc. v. Joy C. Cabiles, G.R. 170139, 5 August 2014)
II. Post-employment
Prior to the rulings of the Supreme Court in Antonio M. Serrano vs Gallant Maritime Services, Inc. (G.R. 167614, 24 March 2009) and Sameer Overseas Placement Agency Inc. v. Joy C. Cabiles (G.R. 170139, 5 August 2014), an OFW who has been terminated from employment without just, valid, or authorized cause, as defined by law or contract, shall be entitled to the following:
- Full reimbursement of his placement fee with an interest of twelve percent per annum; and
- Either his salaries for the unexpired portion of his employment contract or three months for every year of the unexpired term, whichever is less.
However, the Supreme Court in the Serrano and Sameer cases held that the clause “or for three months for every year of the unexpired term, whichever is less” is unconstitutional.
Thus, as it currently stands, an OFW who has been terminated from employment without just, valid, or authorized cause is entitled to the following money claims:
- Full reimbursement of his placement fee with an interest of twelve percent per annum; and
- All salaries for the unexpired portion of his employment contract.
To note, the liability of the employer and the recruitment/placement agency of an OFW for any money claims arising out of an employer-employee relationship or by virtue of any law or contract, including the claims discussed above, shall be joint and several. In other words, an OFW may file any of the above claims against either his employer or his recruitment or placement agency.
