Cases

G.R. No.
113161 August 29, 1995
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
LOMA GOCE y OLALIA, DAN GOCE and NELLY D. AGUSTIN, accused. NELLY D.
AGUSTIN, accused-appellant.
REGALADO, J.:
On January 12, 1988, an information for illegal recruitment committed by a syndicate and in large
scale, punishable under Articles 38 and 39 of the Labor Code (Presidential Decree No. 442) as
amended by Section 1(b) of Presidential Decree No. 2018, was filed against spouses Dan and Loma
Goce and herein accused-appellant Nelly Agustin in the Regional Trial Court of Manila, Branch 5,
alleging
That in or about and during the period comprised between May 1986 and June 25,
1987, both dates inclusive, in the City of Manila, Philippines, the said accused,
conspiring and confederating together and helping one another, representing
themselves to have the capacity to contract, enlist and transport Filipino workers for
employment abroad, did then and there willfully and unlawfully, for a fee, recruit and
promise employment/job placement abroad, to (1) Rolando Dalida y Piernas, (2)
Ernesto Alvarez y Lubangco, (3) Rogelio Salado y Savillo, (4) Ramona Salado y
Alvarez, (5) Dionisio Masaya y de Guzman, (6) Dave Rivera y de Leon, (7) Lorenzo
Alvarez y Velayo, and (8) Nelson Trinidad y Santos, without first having secured the
required license or authority from the Department of Labor. 1
On January 21, 1987, a warrant of arrest was issued against the three accused but not one of them
was arrested. 2Hence, on February 2, 1989, the trial court ordered the case archived but it issued a
standing warrant of arrest against the accused. 3
Thereafter, on learning of the whereabouts of the accused, one of the offended parties, Rogelio
Salado, requested on March 17, 1989 for a copy of the warrant of arrest. 4 Eventually, at around
midday of February 26, 1993, Nelly Agustin was apprehended by the Paraaque police. 5 On March 8,
1993, her counsel filed a motion to revive the case and requested that it be set for hearing "for purposes
of due process and for the accused to immediately have her day in court" 6 Thus, on April 15, 1993, the
trial court reinstated the case and set the arraignment for May 3, 1993, 7 on which date of Agustin pleaded
not guilty 8 and the case subsequently went to trial.
Four of the complainants testified for the prosecution. Rogelio Salado was the first to take the
witness stand and he declared that sometime in March or April, 1987, he was introduced by Lorenzo
Alvarez, his brother-in-law and a co-applicant, to Nelly Agustin in the latter's residence at Factor,
Dongalo, Paraaque, Metro Manila. Representing herself as the manager of the Clover Placement
Agency, Agustin showed him a job order as proof that he could readily be deployed for overseas
employment. Salado learned that he had to pay P5,000.00 as processing fee, which amount he gave
sometime in April or May of the same year. He was issued the corresponding receipt. 9
Also in April or May, 1987, Salado, accompanied by five other applicants who were his relatives,
went to the office of the placement agency at Nakpil Street, Ermita, Manila where he saw Agustin
and met the spouses Dan and Loma Goce, owners of the agency. He submitted his bio-data and
learned from Loma Goce that he had to give P12,000.00, instead of the original amount of
P5,000.00 for the placement fee. Although surprised at the new and higher sum, they subsequently
agreed as long as there was an assurance that they could leave for abroad. 10
Thereafter, a receipt was issued in the name of the Clover Placement Agency showing that Salado
and his aforesaid co-applicants each paid P2,000.00, instead of the P5,000.00 which each of them
actually paid. Several months passed but Salado failed to leave for the promised overseas
employment. Hence, in October, 1987, along with the other recruits, he decided to go to the
Philippine Overseas Employment Administration (POEA) to verify the real status of Clover
Placement Agency. They discovered that said agency was not duly licensed to recruit job applicants.
Later, upon learning that Agustin had been arrested, Salado decided to see her and to demand the
return of the money he had paid, but Agustin could only give him P500.00. 11
Ramona Salado, the wife of Rogelio Salado, came to know through her brother, Lorenzo Alvarez,
about Nelly Agustin. Accompanied by her husband, Rogelio, Ramona went to see Agustin at the
latter's residence. Agustin persuaded her to apply as a cutter/sewer in Oman so that she could join
her husband. Encouraged by Agustin's promise that she and her husband could live together while
working in Oman, she instructed her husband to give Agustin P2,000.00 for each of them as
placement fee, or the total sum of P4,000.00. 12
Much later, the Salado couple received a telegram from the placement agency requiring them to
report to its office because the "NOC" (visa) had allegedly arrived. Again, around February, or
March, 1987, Rogelio gave P2,000.00 as payment for his and his wife's passports. Despite follow-up
of their papers twice a week from February to June, 1987, he and his wife failed to leave for
abroad. 13
Complainant Dionisio Masaya, accompanied by his brother-in-law, Aquiles Ortega, applied for a job
in Oman with the Clover Placement Agency at Paraaque, the agency's former office address.
There, Masaya met Nelly Agustin, who introduced herself as the manager of the agency, and the
Goce spouses, Dan and Loma, as well as the latter's daughter. He submitted several pertinent
documents, such as his bio-data and school credentials. 14
In May, 1986, Masaya gave Dan Goce P1,900.00 as an initial downpayment for the placement fee,
and in September of that same year, he gave an additional P10,000.00. He was issued receipts for
said amounts and was advised to go to the placement office once in a while to follow up his
application, which he faithfully did. Much to his dismay and chagrin, he failed to leave for abroad as
promised. Accordingly, he was forced to demand that his money be refunded but Loma Goce could
give him back only P4,000.00 in installments. 15
As the prosecution's fourth and last witness, Ernesto Alvarez took the witness stand on June 7,
1993. He testified that in February, 1987, he met appellant Agustin through his cousin, Larry Alvarez,
at her residence in Paraaque. She informed him that "madalas siyang nagpapalakad sa Oman" and
offered him a job as an ambulance driver at the Royal Hospital in Oman with a monthly salary of
about $600.00 to $700.00. 16
On March 10, 1987, Alvarez gave an initial amount of P3,000.00 as processing fee to Agustin at the
latter's residence. In the same month, he gave another P3,000.00, this time in the office of the
placement agency. Agustin assured him that he could leave for abroad before the end of 1987. He
returned several times to the placement agency's office to follow up his application but to no avail.
Frustrated, he demanded the return of the money he had paid, but Agustin could only give back
P500.00. Thereafter, he looked for Agustin about eight times, but he could no longer find her. 17
Only herein appellant Agustin testified for the defense. She asserted that Dan and Loma Goce were
her neighbors at Tambo, Paraaque and that they were licensed recruiters and owners of the Clover
Placement Agency. Previously, the Goce couple was able to send her son, Reynaldo Agustin, to
Saudi Arabia. Agustin met the aforementioned complainants through Lorenzo Alvarez who
requested her to introduce them to the Goce couple, to which request she acceded. 18
Denying any participation in the illegal recruitment and maintaining that the recruitment was
perpetrated only by the Goce couple, Agustin denied any knowledge of the receipts presented by the
prosecution. She insisted that the complainants included her in the complaint thinking that this would
compel her to reveal the whereabouts of the Goce spouses. She failed to do so because in truth, so
she claims, she does not know the present address of the couple. All she knew was that they had
left their residence in 1987. 19
Although she admitted having given P500.00 each to Rogelio Salado and Alvarez, she explained
that it was entirely for different reasons. Salado had supposedly asked for a loan, while Alvarez
needed money because he was sick at that time. 20
On November 19, 1993, the trial court rendered judgment finding herein appellant guilty as a
principal in the crime of illegal recruitment in large scale, and sentencing her to serve the penalty of
life imprisonment, as well as to pay a fine of P100,000.00. 21
In her present appeal, appellant Agustin raises the following arguments: (1) her act of introducing
complainants to the Goce couple does not fall within the meaning of illegal recruitment and
placement under Article 13(b) in relation to Article 34 of the Labor Code; (2) there is no proof of
conspiracy to commit illegal recruitment among appellant and the Goce spouses; and (3) there is no
proof that appellant offered or promised overseas employment to the complainants. 22 These three
arguments being interrelated, they will be discussed together.
Herein appellant is accused of violating Articles 38 and 39 of the Labor Code. Article 38 of the Labor
Code, as amended by Presidential Decree No. 2018, provides that any recruitment activity, including
the prohibited practices enumerated in Article 34 of said Code, undertaken by non-licensees or non-
holders of authority shall be deemed illegal and punishable under Article 39 thereof. The same
article further provides that illegal recruitment shall be considered an offense involving economic
sabotage if any of these qualifying circumstances exist, namely, (a) when illegal recruitment is
committed by a syndicate, i.e., if it is carried out by a group of three or more persons conspiring
and/or confederating with one another; or (b) when illegal recruitment is committed in large
scale, i.e., if it is committed against three or more persons individually or as a group.
At the outset, it should be made clear that all the accused in this case were not authorized to engage
in any recruitment activity, as evidenced by a certification issued by Cecilia E. Curso, Chief of the
Licensing and Regulation Office of the Philippine Overseas Employment Administration, on
November 10, 1987. Said certification states that Dan and Loma Goce and Nelly Agustin are neither
licensed nor authorized to recruit workers for overseas
employment. 23 Appellant does not dispute this. As a matter of fact her counsel agreed to stipulate that
she was neither licensed nor authorized to recruit applicants for overseas employment. Appellant,
however, denies that she was in any way guilty of illegal recruitment. 24
It is appellant's defensive theory that all she did was to introduce complainants to the Goce spouses.
Being a neighbor of said couple, and owing to the fact that her son's overseas job application was
processed and facilitated by them, the complainants asked her to introduce them to said spouses.
Allegedly out of the goodness of her heart, she complied with their request. Such an act, appellant
argues, does not fall within the meaning of "referral" under the Labor Code to make her liable for
illegal recruitment.
Under said Code, recruitment and placement refers to any act of canvassing, enlisting, contracting,
transporting, utilizing, hiring or procuring workers, and includes referrals, contract services,
promising or advertising for employment, locally or abroad, whether for profit or not; provided, that
any person or entity which, in any manner, offers or promises for a fee employment to two or more
persons shall be deemed engaged in recruitment and placement. 25 On the other hand, referral is the
act of passing along or forwarding of an applicant for employment after an initial interview of a selected
applicant for employment to a selected employer, placement officer or bureau. 26
Hence, the inevitable query is whether or not appellant Agustin merely introduced complainants to
the Goce couple or her actions went beyond that. The testimonial evidence hereon show that she
indeed further committed acts constitutive of illegal recruitment. All four prosecution witnesses
testified that it was Agustin whom they initially approached regarding their plans of working
overseas. It was from her that they learned about the fees they had to pay, as well as the papers
that they had to submit. It was after they had talked to her that they met the accused spouses who
owned the placement agency.
As correctly held by the trial court, being an employee of the Goces, it was therefore logical for
appellant to introduce the applicants to said spouses, they being the owners of the agency. As such,
appellant was actually making referrals to the agency of which she was a part. She was therefore
engaging in recruitment activity. 27
Despite Agustin's pretensions that she was but a neighbor of the Goce couple, the testimonies of the
prosecution witnesses paint a different picture. Rogelio Salado and Dionisio Masaya testified that
appellant represented herself as the manager of the Clover Placement Agency. Ramona Salado was
offered a job as a cutter/sewer by Agustin the first time they met, while Ernesto Alvarez remembered
that when he first met Agustin, the latter represented herself as "nagpapaalis papunta sa
Oman." 28 Indeed, Agustin played a pivotal role in the operations of the recruitment agency, working
together with the Goce couple.
There is illegal recruitment when one gives the impression of having the ability to send a worker
abroad." 29 It is undisputed that appellant gave complainants the distinct impression that she had the
power or ability to send people abroad for work such that the latter were convinced to give her the money
she demanded in order to be so employed. 30
It cannot be denied that Agustin received from complainants various sums for purpose of their
applications. Her act of collecting from each of the complainants payment for their respective
passports, training fees, placement fees, medical tests and other sundry expenses unquestionably
constitutes an act of recruitment within the meaning of the law. In fact, appellant demanded and
received from complainants amounts beyond the allowable limit of P5,000.00 under government
regulations. It is true that the mere act of a cashier in receiving money far exceeding the amount
allowed by law was not considered per se as "recruitment and placement" in contemplation of law,
but that was because the recipient had no other participation in the transactions and did not conspire
with her co-accused in defrauding the victims. 31 That is not the case here.
Appellant further argues that "there is no evidence of receipts of collections/payments from

complainants to appellant." On the contrary, xerox copies of said receipts/vouchers were presented
by the prosecution. For instance, a cash voucher marked as Exhibit D, 32 showing the receipt of
P10,000.00 for placement fee and duly signed by appellant, was presented by the prosecution. Another
receipt, identified as Exhibit E, 33 was issued and signed by appellant on February 5, 1987 to
acknowledge receipt of P4,000.00 from Rogelio and Ramona Salado for "processing of documents for
Oman." Still another receipt dated March 10, 1987 and presented in evidence as Exhibit F, shows that
appellant received from Ernesto Alvarez P2,000.00 for "processing of documents for Oman." 34
Apparently, the original copies of said receipts/vouchers were lost, hence only xerox copies thereof
were presented and which, under the circumstances, were admissible in evidence. When the original
writing has been lost or destroyed or cannot be produced in court, upon proof of its execution and
loss or destruction, or unavailability, its contents may be proved by a copy or a recital of its contents
in some authentic document, or by the recollection of witnesses. 35
Even assuming arguendo that the xerox copies presented by the prosecution as secondary evidence
are not allowable in court, still the absence thereof does not warrant the acquittal of appellant.
In People vs. Comia, 36where this particular issue was involved, the Court held that the complainants'
failure to ask for receipts for the fees they paid to the accused therein, as well as their consequent failure
to present receipts before the trial court as proof of the said payments, is not fatal to their case. The
complainants duly proved by their respective testimonies that said accused was involved in the entire
recruitment process. Their testimonies in this regard, being clear and positive, were declared sufficient to
establish that factum probandum.
Indeed, the trial court was justified and correct in accepting the version of the prosecution witnesses,
their statements being positive and affirmative in nature. This is more worthy of credit than the mere
uncorroborated and self-serving denials of appellant. The lame defense consisting of such bare
denials by appellant cannot overcome the evidence presented by the prosecution proving her guilt
beyond reasonable doubt. 37
The presence of documentary evidence notwithstanding, this case essentially involves the credibility
of witnesses which is best left to the judgment of the trial court, in the absence of abuse of discretion
therein. The findings of fact of a trial court, arrived at only after a hearing and evaluation of what can
usually be expected to be conflicting testimonies of witnesses, certainly deserve respect by an
appellate court. 38 Generally, the findings of fact of the trial court on the matter of credibility of witnesses
39
will not be disturbed on appeal.
In a last-ditch effort to exculpate herself from conviction, appellant argues that there is no proof of
conspiracy between her and the Goce couple as to make her liable for illegal recruitment. We do not
agree. The evidence presented by the prosecution clearly establish that appellant confabulated with
the Goces in their plan to deceive the complainants. Although said accused couple have not been
tried and convicted, nonetheless there is sufficient basis for appellant's conviction as discussed
above.
In People vs. Sendon, 40 we held that the non-prosecution of another suspect therein provided no ground
for the appellant concerned to fault the decision of the trial court convicting her. The prosecution of other
persons, equally or more culpable than herein appellant, may come later after their true identities and
addresses shall have been ascertained and said malefactors duly taken into custody. We see no reason
why the same doctrinal rule and course of procedure should not apply in this case.
WHEREFORE, the appealed judgment of the court a quo is hereby AFFIRMED in toto, with costs
against accused-appellant Nelly D. Agustin.
G.R. Nos. 96277-82 December 2, 1992

vs.
ABELARDO C. AVENDAO, accused-appellant,
GRIO-AQUINO, J.:
Six (6) separate information for Illegal Recruitment of some 38 workers were filled against appellant
Abelardo Avendao y Crespo which were docketed as Criminal Case Nos. 6113-MN, 6114-MN,
6125-MN, 6131-MN, 6143-MN and 6148-MN in the Regional Trial Court, Branch 170, at Malabon,
Metro Manila. The information alleged the following:
The undersigned Assistant Fiscal accused Abelardo Avendao of the crime of Illegal
Recruitment, committed as follows:
1. Criminal Case No. 6113-MN
That sometime in the months of June and July, 1986, in the Municipal of Malabon,
Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the
above-named accused, conspiring, confederating, with accused CARMELITO
SORIANO, JR., yet known and helping with one another, representing himself to
have the capacity to contract, enlist and transport Filipino workers for employment
abroad, did, then and there, willfully, unlawfully and feloniously, for a fee, recruit and
promise employment/job placement abroad to MARINO NOVESTRO y RONATO,
RONALDO CRUCENA y RONO, ZOCIMO DEL ROSARIO y CUBILLA, RUPERTO
LEGASPI y DIGMA and GUILLERMO ROMASANTA y LEGASPI without first
securing the required license or authority form the Department of Labor and
Employment. (p. 8, Rollo.)
2. Criminal Case 6114-MN
That sometime in the months of June, 1986, in the Municipality of Malabon, Metro
Manila, Philippines and within the jurisdiction of the Honorable Court, the above-
named accused, conspiring, confederating with accused CARMELITO SORIANO,
JR. whose identity and whereabout are not yet known and helping with one another,
representing himself to have the capacity to contract, enlist and transport Filipino
workers for employment abroad, did, then and there, wilfully, unlawfully and
feloniously, for a fee, recruit and promise employment/job placement abroad to
FELICIANO BAGO, FEDERICO MOJICA Y DEROY, DANILO PANGANIBAN y
LEGASPI and ALBERTO ESPINELLI y LEGASPI, without first securing the required
license for authority from the Department of Labor and Employment. (p. 10, Rollo.)
That sometime in the year 1986 covering the months of June, October, and
November, in the Municipality of Malabon, Metro Manila, Philippines and within the
jurisdiction of the Honorable Court, the above-named accused, conspiring,
confederating, with accused CARMELITO SORIANO, JR. whose identity and
whereabout is not yet known and helping with one another, representing himself to
abroad, did, then and there, wilfully, unlawfully and feloniously, for a fee, recruit and
promise employment/job placement abroad to ELIODORO BAGO y RONO,
PAMFILO LLAMADO y ROMASANTA, LEOPOLDO CUBILLA y EMELO, TOMAS
LIVETA y FERRERA, VIRGILIO FLORALDE y CAGITLA, RUBEN AMBAT y LIVETA,
ARTEMIO PEUS y PARANTAL, EDGARDO RODIL y RAMOS, JAIME FERRERA y
MIRANDA, ZOCIMO FERRERA y EYAYA, IRENEO RAMOS y NOCEDA, LOPE
COSTELO y DELALUYA, REYNALDO PANGANIBAN y FERRERA and APOLONIO
MOJICA y VIDALLO, without first securing the required license or authority from the
Department of Labor and Employment. (p. 11, Rollo.)
That sometime in the year 1984, 1985, 1987 covering the months of November,
September and May in the Municipality of Malabon, Metro Manila, Philippines and
within the jurisdiction of this Honorable Court, the above-named accused, conspiring,
confederating with accused CARMELITO SORIANO, JR. whose identity and
whereabout is not yet known and helping with one another, representing himself to
have the capacity to contact, enlist and transport Filipino workers for employment
abroad, did, then and there, wilfully, unlawfully and feloniously, for a fee, recruit and
promise employment/job placement abroad to HILARION PASIA y ROBLES, FELIPE
EDILLOR y EDILLON, BAYANI AFABLE y BONDOC, LEODEGARIO ROBLES y
RAMOS, AND NEL-JUNE EVANGELISTA y SARMIENTO, without first securing the
required license or authority from the Department of Labor and Employment. (p.
13, Rollo.)
5. Criminal Case No. 6143.-MN
That sometime in the year 1986 covering the months of January, March, April and
September, in the Municipality of Malabon, Metro Manila, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused, conspiring,
confederating with accused CARMELITO SORIANO, JR. whose whereabout is not
yet known and helping with one another, representing himself to have the capacity to
contract, enlist and transport Filipino workers for employment abroad, did, then and
there, wilfully, unlawfully and feloniously, for a fee, recruit and promise
employment/job placement abroad to DOMINGO ESCUBIN y ECUBI, RODOLFO
LAUZON y SERRANO, ANGELO ROBLES y MENESES, WILFREDO MORA y
ARMEROLA, BERNARDO CANILANG y AQUINO, LEOPOLDO CO y FERNANDEZ,
MARLINO CANILANG y COLOMA, JESSI SORIANO y MANUEL and MAURO
CABARDO y SANTOS, JR., without first securing the required license of authority
from the Department of Labor and Employment." (p. 15, Rollo.)
That on or about the 15th day of April, 1985, in the Municipality of Malabon, Metro
Manila, Philippines and within the jurisdiction of this Honorable Court, the above-
named accused, conspiring, confederating with accused CARMELITO SORIANO,
JR., MANUEL CALANOG and RENATO M. SORIANO whose whereabouts are not
yet known and helping with one another, representing himself to have the capacity to
contract, enlist and transport Filipino workers for employment abroad, did, then and
there, wilfully, unlawfully and feloniously for a fee, recruit and promise
employment/job placement abroad to HENRY CAMBA y LIVARA, without first
securing the required license or authority from the Department of Labor and
Employment. (p. 17, Rollo.)
Upon arraignment, Avendao pleaded not guilty to the six (6) informations. His co-accused,
Carmelito Soriano, Jr., Renato M. Soriano and Manuel Calonog have remained at large. (pp. 8-
17, Rollo.)
The cases were consolidated and jointly tried.
Except for the amounts, the circumstances, and the names of the victims, the factual scenario of
these six criminal cases are summarized in the decisions of the trial as follows:
The accused (Abelardo C. Avedao) is the Treasurer of MCBRAJ Agro-Industrial

Development Company (MAINDECO), with offices at 26 Sta. Cecilia St., Sto. Rosario
Village, Malabon, Metro Manila, which is also his residence. The company is not
licensed nor authorized to recruit workers for overseas employment. Carmelito
Soriano, Jr. is the President of the said Company, Manuel Calanog is the personnel
manager (pp. 17-18, tsn, June 21, 1988; pp. 22-23, Rec. );
In Criminal Case No. 6113, the evidence shows that Rolando Crucena and Zosimo
del Rosario went to the house of the accused sometime in June, 1986 to apply as
plumber as steel bender, respectively, in Papua, New Guinea. Guillermo Romasanta
likewise applied for a job as a plumber when he went to the house of accuse in July,
1986. They were all required to submit papers, such as bio-data, birth certificate,
marriage contract and certification of previous employment and clearances. Each
one of them was asked by the accused to give P5,500.00. After giving said amount
to the accused, the latter told them that they could leave within ninety days. Said
period expired but they were not able to leave and were asked to wait, with a
promise that they would be able to leave later, and they waited for almost one year,
until they got tired of waiting and filed a complaint against the accused.
In Criminal Case No. 6114, Feliciano Bago, Federico Mojica and Alberto Espinelli
went to the house of the accused to apply for jobs in Papua, New Guinea as steel
fixer and plumbers sometime in June, 1986, submitted their papers and paid
P5,500.00 to the accused, who told them they could leave within ninety days but
which did not materialize.
In Criminal Case No. 6125, Reynaldo Panganiban and Apolonio Mejica applied as
steelman and warehouseman, respectively, with MAINDECO in June, 1986,
submitted documents and paid P5,500.00 to the accused, who assured them that
they could leave for Papua, New Guinea, which did not materialize despite a long
period of time. Ruben Ambat applied with MAINDECO as electrician in November,
1986 and submitted documents and paid P5,500.00 to the accused , who told him he
could leave for Papua, New Guinea before Christmas or three months thereafter, but
was not able to do so. However, Pamfilo Llamado and Tomas Liveta, who likewise
applied with MAINDECO for jobs in Papua, New Guinea in June, 1986 and October,
1985, respectively, admitted that the accused only received the placement fee of
P4,500.00 from them and issued receipts thereof, but did not promise them jobs in
Papua, New Guinea, which promise was made to them by the President and
Personnel Manager of MAINDECO.
In Criminal Case No. 6131, Bayani Afable and Lodegario Robles went to MAINDECO
in March, 1987 and applied as electricians in Papua, New Guinea and talked with the
accused, who asked them to give P5,000.00 each. They gave the money and the
documents required by the office in connection with their job applications to the
accused, who assured them that they could leave for abroad.
In Criminal Case No. 6143, Rodolfo Lauzon applied on March 5, 1986 with
MAINDECO for a job as janitor in Papua, New Guinea and was asked to pay a
placement fee of P5,500.00. He paid said amount to the accused, who then told him
that he could leave after three months.
In Criminal Case No. 6148, Henry Camba applied in April, 1985 with MAINDECO for
a job as electrician in Papua, New Guinea, submitted the papers required by said
company and paid the amount of P4,000.00 to the accused and he was told that he
could leave within three to six months. However, two years lapsed and Henry Camba
was still not able to leave and he demanded for the reimbursement of the money he
paid, to no avail.
It appears that the receipts issued by the accused to the complaints show that the
payments made by them were in the form of trust deposit for one unit of share in the
company. The receipts were subsequently surrendered to the company in exchange
of certificates of common share in MCARM Agro-Industrial Development
Corporation, making the complainants stockholders of the corporation. However,
Henry Camba refused to surrender his receipt in exchange for a certificate of
common share as he was insisting that the money he paid be returned to him.
Moreover, while some of the complainants paid P5,500.00, the receipts issued to
them reflected only the amount of P4,500.00 as the balance of P1,000.00 was
allegedly for the processing of their passport and physical examination. Some of the
complainants underwent physical examination and made to attend orientation
seminars while waiting for their departure to Papua, New Guinea. The complainants
finally got tired of waiting for the promised employment abroad and filed their
complaints against the accused.
On the other hand, the accused tried to show that MAINDECO, which was engaged
in the construction business, was duly registered with the Securities and Exchange
Commission. He was appointed treasurer of the corporation and, as such, he
received payments and issued receipts. MAINDECO was invited by the government
of Papua, New Guinea to a joint venture tuna industry (Exh. "3"), for which reason, it
sold stocks to private individuals with the promise that they would be sent to Papua,
New Guinea should the joint venture materialize. He denied having talked to the
complainants regarding jobs in Papua, New Guinea, claiming that the officials who
talked to them were the President, Vice-President and Manager and his duty was
only to issue receipts to the complainants upon payment of their shares in the
corporation. However, the joint venture with Papua, New Guinea did not materialize
because the President had already disappeared. He admitted that he joined
MAINDECO because of the offer made to him by the Vice-President to go to Papua,
New Guinea.
It is admitted that MAINDECO is not licensed or authorized by the Department of

Labor and Employment to engage in recruitment of persons for overseas
employment. Consequently, the recruitment activities undertaken by MAINDECO are
illegal. Illegal recruitment, when committed by a syndicate or in large scale shall be
considered an offense involving economic sabotage. Illegal recruitment is deemed
committed by a syndicate if carried out by a group of three (3) of more persons
conspiring and/or confederating with one another in carrying out any lawful or illegal
transaction, enterprise or scheme, and it is deemed committed in large scale if
committed against three (3) or more persons individually or as a group. (Article 38,
paragraphs [a] and [b], Labor Code). The penalty of life imprisonment and a fine of
P100,000.00 shall be imposed if illegal recruitment constitutes economic sabotage.
Any person who is neither a licensee nor a holder of authority found violating any
provision of the Code shall suffer the penalty of imprisonment of not less than four
years nor more than eight years or a fine of not less than P20,000.00 nor more than
100,000.00 or both such imprisonment and fine at the discretion of the court. If the
offender is a corporation, partnership, association or entity, the the penalty shall be
imposed upon the officer or officers of the corporation, partnership, association or
entity responsible for violation. (Article 39, paragraphs [a], [c] and [d], Labor Code.)
The accused admitted that the complainants, who paid for certificates of stock of
MAINDECO, were told by the President of the corporation that they would be sent to
Papua, New Guinea pursuant to the joint venture tuna industry (tsn, Feb. 13, 1990, p.
5). In other words, the accused was aware that the complainants were offered job
opportunities in Papua, New Guinea. The assurance that they would be sent abroad,
in addition to being stockholders of the corporation, impelled the complainants to give
their money to the accused. Thus, aside from being required to pay for the
certificates of stock, the complainants were likewise required to submit documents,
such as bio-data, birth certificates, marriage contracts, clearances and certificate of
previous employment. With respect to the complainants who paid P5,500.00, only
the amount of P4,500.00 was receipted as trust deposit by the accused, who told
them that the balance of P1,000.00 was intended for the processing of their passport
and for their physical examination. Some of the complainants underwent physical
examination and attended orientation seminars while waiting for their departure. In
view of the fact that MAINDECO is not a licensed or authorized recruitment entity
and, therefore, not authorized to recruit anyone for employment, said corporation
made it appear that the payment made to it was for the purchase of certificates of
stock and that complainants were stockholders of the corporation was a cover-up to
their illegal activities.
On October 2, 1990, the trial court rendered a single decision convicting Avendao of the crime
charged and sentenced as follows:
WHEREFORE, in view of the foregoing, judgement is hereby rendered finding

accused Abelardo Avendao Y Crespo guilty beyond reasonable doubt of the crime
of Illegal Recruitment committed in large scale, thus constituting economic sabotage,
defined and penalized in Article 39, paragraph (a) of the Labor Code, in Criminal
Case Nos. 6113, 6114 and 6125 and sentences him to imprisonment and to pay a
fine of P100,000.00 in each case. In Criminal Case Nos. 6131, 6143 and 6148,
accused Abelardo Avendao Y Crespo is found guilty beyond reasonable doubt of
the crime of Illegal Recruitment defined and penalized in Article 38, paragraph (c) of
the Labor Code and sentenced to suffer the penalty of imprisonment of four (4)
years, as minimum to eight (8) years as maximum and to pay a fine of P20,000.00, in
each case.
Cost against the accused in all the above-entitled cases.

Let the accused be credited with whatever preventive imprisonment he has
undergone by reason of these cases, pursuant to Article 29 of the Revised Penal
Code. (pp. 43-44, Rollo.)
Because the accused was sentenced to suffer the penalty of life imprisonment in three (3) of the Six
(6) cases, he appealed to this Court, assigning the following errors against the judgement of the
lower court:
1. The trial court erred in appreciating only the evidence of the prosecution and in
disregarding the evidence of the defense.
2. The trial court erred in convicting accused-appellant of the crime charged despite
the failure of the prosecution to prove his guilt beyond reasonable doubt. (p.
56, Rollo.)
The appeal has no merit.
The trial court correctly fount Avendao to have conspired with his co-accused Carmelito Soriano,
Jr., Manuel Calanog and Renato M. Soriano, to illegally recruit some 38 persons for overseas
employment, charging and collecting a fee of P5,500.00 from each job applicant although they (the
accused) did not have the required license and authority from the Department of Labor to engage in
recruiting workers for overseas employment. They defrauded the job applicants of the "fees"
(P5,500.00) which the latter paid for the false hope of obtaining employment in Papua, New Guinea,
which was never realized. Appellant's pretext that the fee of P5,500.00 paid by each job applicant
was not a placement fee but payment for a share of stock in MAINDECO, supposedly a prerequisite
for the deployment of the "stockholder" in Papua, New Guinea, must be rejected for the simple
reason that those who purchased the "shares" did not intend to invest, but to obtain a job placement,
in Papua, New Guinea. They were not investors but job seekers. Further proof that they were being
swindled is that those who paid P5,500.00 each received a receipt for only P4,500.00 from the
appellant who informed them that the unreceipted amount of P1,000.00 was to pay for their medical
examination and the processing of their passports, although no passports were ever issued to them.
Appellant's allegation that he allowed his residence to be used as MAINDECO's office because he
was induced to join the corporation by Gapuz, MAINDECO's Vice-President, who promised him a job
abroad, is unbelievable. At no time in the course of his testimony did he mention any attempt on his
part to follow up his supposed application for overseas employment.
Appellant's pretense that he was a "victim" like the complainants, is absurd for it was he who
collected the placement fees of the complainants.
Appellant and his co-accused committed Illegal Recruitment on a Large Scale as defined and
penalized in Articles 38(b) and 39(a) of the Labor Code, because they had victimized more than
three (3) job applications thirty eight (38) in fact.
Art. 38. Illegal Recruitment. (a) Any recruitment activities, including the prohibited
practices enumerated under Article 34 of this Code, to be undertaken by non-
licensees or non-holders of authority shall be deemed illegal and punishable under
Article 39 of this Code. This Ministry of Labor and Employment or any law
enforcement officers may initiate complainants under this Article.
(b) Illegal recruitment when committed be a syndicate or in large scale shall be
considered an offense involving economic sabotage and shall be penalized in
accordance with Article 39 hereof.
Illegal recruitment is deemed committed by a syndicate if carried out by a group of

three (3) or more persons conspiring and/or confederating with one another in
carrying out any unlawful or illegal transaction, enterprise or scheme defined under
the first paragraph hereof. Illegal recruitment is deemed committed in large scale if
committed against (3) or more persons individually or as a group."
Art. 39. Penalties. (a) The penalty of life imprisonment an a fine of One Hundred
Thousand Pesos (P100,000) shall be imposed if illegal recruitment constitutes
economic sabotage as defined herein:
xxx xxx xxx
(c) Any person who is neither a licensee nor a holder of authority under this Title
found violating any provision thereof or its implementing rules and regulations shall,
upon conviction thereof, suffer the penalty of imprisonment of not less than four
years nor more than eight years or a fine of not less than P20,000 nor more than
P100,000 or both such imprisonment and fine, at the discretion of the court;
(d) If the offender is a corporation, partnership, association or entity, the penalty shall
be imposed upon the officer or officers of the corporation, partnership, association or
entity responsible for violation; and if such officer is an alien, he shall, in addition to
the penalties herein prescribed, be deported without further proceedings; (Emphasis
supplied)
In Crim. Case Nos. 6113-MN and 6114-MN where Avendao acted in conspiracy with his co-
accused to fleece three (3) job applicants in each case of their placement fees for non-existent
overseas jobs, and in Crim, Case No. 6125-MN where they victimized five (5) persons, the crimes
committed were illegal recruitment by a syndicate (Art. 38 Labor Code). When illegal recruitment is
committed by a syndicate or in large scale, it becomes an offense involving economic sabotage (Art.
38, Labor Code) and shall be penalized with life imprisonment and a fine of P100,000 (Art. 39, par.
[a], Labor Code ).
In Crim. Case No. 6131-MN where only two persons were defrauded, and in Crim. Case Nos. 6143-
MN and 6148-MN where there was only one victim in each case, the crimes committed were simple
illegal recruitment penalized in par. (c), Art. 39.
WHEREFORE, as the trial court did not commit any reversible error in finding Avendao guilty of
large scale illegal recruitment in Criminal Cases Nos. 6113, 6114 and 6125, and of simple illegal
recruitment in Criminal Case Nos. 6131, 6143 and 6148, and as the penalties imposed are in
accordance with the law, the appealed decision is hereby AFFIRMED in toto.
SO ORDERED.
G.R. No. 96621 October 21, 1992

vs.
JOEY BODOZO y BULA, and NIMFA BODOZO y NERI, accused-appellant.
CAMPOS, JR., J.:
This is an appeal 1 interposed by accused Joey Bodozo and Nimfa Bodozo, husband and wife, from the
decision 2 of the Regional Trial Court, National Capital Judicial Region, Branch XLIX, Manila, in Criminal
Case Nos. 89-73608-SCC to 89-73613-SCC, finding them guilty beyond reasonable doubt of the crime of
illegal recruitment defined in and penalized by Article 13 in relation to Article 38 of the Labor Code, as
amended, and sentencing each of them to suffer the penalty of Life Imprisonment.
Accused-appellants were charged before the Regional Trial Court with five (5) counts of Estafa
(docketed as Criminal Case No. 89-73609 to 89-73613) and a separate charge for Illegal
Recruitment (docketed as Criminal Case NO. 89-73608).
With regards to the charge of Estafa, accused-appellants were acquitted of the crime charged.
hence this appeal refers only to the crime of illegal recruitment.
On May 30, 1989, the Assistant Prosecutor filed the following information for illegal recruitment
against Joey Bodozo and Nimfa Bodozo, to wit:
The undersigned accused JOEY BODOZO y BULA and NIMFA BODOZO y NERI of
a violation of Article 38 (a), Presidential Decree No. 1412, amending certain
provisions of Book I, Presidential Decree No. 442 (New Labor Code of the
Philippines), in relation to Article 13 (b) and (c) of said Code, as further amended by
Presidential Decree No. 1693 and Presidential Decree No. 1920, committed in a
large scale, as follows:
That in or about and during the period comprised between October 3, 1988 and April
8, 1989, in the City of Manila, Philippines, the said accused conspiring and
confederating together and mutually helping each other, representing themselves to
abroad, did then and there wilfully and unlawfully, for a fee, recruit and promise
employment/job placement abroad to Domingo Obiacoro y Gagtan, Ludivico Gagtan
y Lopez, Angelino Obiacoro y Aspiras, Prudencio Renon y Lopez and Fernando
Gagtan y Lopez, without first having secured the required license or authority from
the Department of Labor and Employment.
Contrary to Law. 3
On arraignment, accused-appellants, Joey Bodozo and Nimfa Bodozo, assisted by their counsel de
oficio, pleaded not guilty to the information.
On July 6, 1990, the trial court rendered judgment, the decretal portion of which reads as follows:
WHEREFORE, judgment is hereby rendered in these cases as follows:

1. In People versus Joey Bodozo and Nimfa Bodozo, Criminal Case No. 89-
73608, the Court finds both Accused guilty, beyond reasonable doubt, of the crime of
illegal recruitment defined in and penalized by Article 13 in relation to Article 38 of the
Labor Code, as amended, and hereby metes on each of them the penalty of LIFE
IMPRISONMENT and hereby condemns each of them "to pay" a fine of
P100,000.00, without subsidiary imprisonment in case of insolvency.
2. In People versus Joey Bodozo and Nimfa Bodozo, Criminal Case Nos. 89-73609
to 89-73613, the Court finds that the Prosecution failed to establish the guilt of the
Accused beyond reasonable doubt for the crimes charged therein and hereby acquits
them of said charges.
Both Accused are hereby ordered to refund, jointly and severally, to the following
Private Complainants the amounts appearing opposite their respective names, as
follows:
1. Prudencio Renon P19,000.00
2. Fernando Gagtan 20,000.00
3. Angelino Obiacoro 20,000.00
4. Ludovico Gagtan 10,000.00
With costs against the accused.
SO ORDERED. 4
Hence the instant appeal by the accused Joey Bodozo and Nimfa Bodozo.
Accused-appellants raised the following assignment of errors, to wit:
IN FAILING TO APPRECIATE THE QUANTUM OF EVIDENCE IN FAVOR OF THE

CLAIM OF BOTH ACCUSED THAT THEY ONLY HELPED THE PRIVATE
COMPLAINANTS APPLIED FOR JOB ABROAD, THAT THEY WERE NOT
RECRUITERS.
II
IN HOLDING THAT THE PROSECUTION HAS MARSHALLED THE DEGREE OF

PROOF WHICH PRODUCED THE CONVICTIONS OF BOTH ACCUSED.
The main thrust of this case hinges on whether or not the guilt of the accused-appellants have been
proven beyond reasonable doubt.
As found by the trial court, the facts as could be gleaned from the evidence on record, were as
follows:
When the accused Nimfa Bodozo was in Luna, La, Union, she told the private
complainants, who are simple farmers, and at the time unemployed, that she was
recruiting workers for employment in Saudi Arabia and Singapore. The accused
Nimfa Bodozo required the five (5) private complainants to submit to her, in addition
to their respective applications, NBI clearances and medical certificates in connection
with their applications. The private complainants Prudencio Renon and Fernando
Gagtan were told by the accused Nimfa Bodozo that their salary in Saudi Arabia was
US$200.00 a month, while the accused Nimfa Bodozo assured private complainant,
Angelino Obiacoro, Ludovico Gagtan and Domingo Obiacoro that they were going to
be paid, by their respective employers, in Singapore, the amount of Singapore 16.00
dollars a day. The private complainant Prudencio Renon and Fernando Gagtan
submitted their application forms, duly filled up, passports, their NBI clearances and
medical certificates to the accused Nimfa Bodozo in their residence at Quirino
Avenue, Manila, Domingo Obiacoro, Angelino Obiacoro and Ludovico Gagtan
likewise submitted to the accused their NBI clearances and medical certificates as
required by the accused. Moreover, the accused demanded from the private
complainant Prudencio Renon the amount of P19,000.00 in connection with his
application for employment abroad. Of the said amount, P15,000.00 was to be used
by the accused as processing fee for the application and papers of the private
complainant for his employment abroad Prudencio Renon paid to the accused Nimfa
Bodozo, on October 3, 1988, the amount of P15,000.00 for which the said accused
signed a Receipt. 5 The mother of Prudencio Renon paid the balance of P4,000.00 to the
same accused but the latter did not issue any receipt for said amount.
The accused Nimfa Bodozo demanded from the private complainant Fernando
Gagtan the amount of P20,000.00 in connection with his application for employment
abroad. Fernando Gagtan paid to the accused Nimfa Bodozo, also on October 3,
1988, the amount of P12,000.00 for which the said accused signed and issued
Receipts 6 and the amount of P8,000.00 through Maxima Gagtan the mother of
Fernando Gagtan, for which the accused Nimfa Bodozo issued a Receipt dated April 8,
1989. 7
The accused Nimfa Bodozo demanded from Domingo Obiacoro the amount of
P20,000.00 in connection with hi application for employment abroad. Of the amount,
P10,000.00 will be used for the purchase of a plane ticket for the private complainant for
Singapore and the balance of P10,000.00 was to be used as placement fee for the
application of the private complainant for employment abroad. Domingo Obiacoro paid
P10,000.00 to the accused Nimfa Bodozo in the house of the friend of the accused in
Luna, La Union but the accused did not issue any Receipt for the amount at the time.
Domingo Obiacoro paid the balance of P10,000.00 to the accused Nimfa Bodozo in the
house of the accused Joey Bodozo later signed and issued a Receipt for the said amount
of P20,000.00. 8
The accused Joey Bodozo demanded from Angelino Obiacoro the payment of P20,000.00 in connection with the
latter's application for employment abroad. Angelino Obiacoro gave to the accused Joey Bodozo the amount of
P10,000.00 in two (2) installments on different occasion for which the accused Joey Bodozo later signed and issued a
Receipt. 9
The accused Joey Bodozo likewise demanded from Ludovico Gagtan the payment of the
amount of P20,000.00 in connection with his application for employment abroad.
Ludovico Gagtan, through his mother, Maxima Gagtan, gave to the accused Nimfa
Bodozo the amount of P10,000.00 but the latter failed to issue any receipt at that time.
However, considering that the private complainant did not have the amount of
P10,000.00 to pay the balance of the P20,000.00 demanded by the accused, but the
latter offered to advance the amount for the account of private complainant for which the
latter and his mother, Maxima Gagtan, signed a "Promissory Note" in favor of the
accused Joey Bodozo. 10 However, the accused added the amount of P4,000.00 to the
P10,000.00 purportedly advanced by the accused for the private complainant by the way
of interests on said loan. The accused Nimfa Bodozo later signed and issued a
Receipt 11 for the amount of P10,000.00 remitted to her by the mother of Ludivico
Gagtan. 12
After a careful scrutiny of the evidence, We found no cause to disapprove the facts as stated above
and we adopt the same as Our findings of facts. In the absence of any substantial proof that the trial
court's decision was grounded entirely on speculations, surmises or conjectures, the same must be
accorded full consideration and respect. After all, the trial court is in a much better position to
observe and correctly appreciate the respective parties' evidence as they were presented. 13
The crime of illegal recruitment is defined under Article 38 (a) in relation to Article 13 (b) and 34, and
penalized under Article 39 of the Labor Code as amended by PD 1920 and PD 2018.
Article 38 (a) of the Labor Code provides as follows:
Art. 38. Illegal Recruitment. (a) Any recruitment activities, including the prohibited
practices enumerated under Article 34 of this Code, to be undertaken by the non-
Article 39 of this Code. The Ministry of Labor and Employment or any law
enforcement officer may initiate complaints under this Article. (Emphasis supplied.)
Under Article 13 (b) Recruitment and Placement is defined as:
Any act of canvassing, enlisting, contracting transporting, utilizing, hiring or procuring

workers and includes referrals, contract services, promising or advertising for
employment, locally or abroad, whether for profit or not. Provided that any person or
entity which, in any manner, offers or promises for a fee employment to two or more
persons shall be deemed engaged in recruitment and placement. (Emphasis
supplied.)
It should be noted that any of the acts mentioned in Article 13 (b) can lawfully be undertaken only by
the licensees or holders of authority to engage in the recruitment and placement workers.
The crime of illegal recruitment has two elements:
1 The offender is a non-license or non-holder of authority to lawfully engage in the

recruitment or placement of workers; and
2 That the offender undertakes either any recruitment activities defined under Article
13 (b), or any prohibited practices enumerated under Article 34 of the Labor Code.
In this case at bar, it is undisputed that accused-appellants Joey Bodozo and Nimfa Bodozo are
neither licensed not authorized to recruit workers for overseas employment as shown by the
certification 14 issued by the Philippine Overseas Employment Administration (POEA).
Accused-appellants want this Court to believe that they merely helped private complainants apply for
overseas employment. Evidences on record, however, show otherwise. Accused-appellants not only
asked private complainants to fill up application forms but also to submit to them their NBI
clearances, passports and medical certificates. In addition thereto, accused-appellants collected
payment for processing fee and other sundry expenses from private complainants, all which
constitutes acts of recruitment within the meaning of the law.
Accused-appellants point to a certain Belen Hernandez, a manager of Mcgleo International

Management and Service Contractor a duly registered and licensed recruiter, and Jing Evangelista
of Ultragen, Inc. as the persons who were responsible for the recruitment of private complainants. If
such allegations were true, why did accused-appellants not present any one of them as witness to
corroborate their claim? For reasons only known to them, they chose to suppress such testimony as
evidence and instead risked the adverse inference and legal presumption that "evidence wilfully
suppressed would be adverse if
produced. 15
Besides, if it was Belen Hernandez and Jing Evangelista who were the recruiters, why did accused-
appellants issue the receipts 16 acknowledging payments made by private complainants?
Accused-appellants Nimfa Bodozo alleged that she was forced to issue and sign receipts marked as
Exhibits J and N because private complainants Prudencio Renon and Fernando Gagtan were mad
and refused to leave the house. On the other hand, accused-appellant Joey Bodozo claimed that he,
too, was forced to issue and sign Exhibits L and E at Kalaw Street, Ermita, Manila because private
complainants Angelino Obiacoro and Domingo Obiacoro would kill him.
We find accused-appellants' alibi not convincing. Such allegations are self-serving. No evidence of
force was represented by accused-appellant Nimfa Bodozo to bolster her claim that she was forced
except to state that she was afraid of private complainants' anger. In the case of accused-appellant
Joey Bodozo, it will be noted that the alleged force happened in a busy public street. Neither did the
accused-appellants file any case against private complainants for forcing them to sign and issue said
receipts. At most, their claim of force may be said to be merely an afterthought to exculpate
themselves from the charges levelled against them by private complainants.
Moreover, We agree with the findings of the trial court that no improper motives may be attributed to
private complainants to charge accused-appellants with a serious crime as illegal recruitment.
Records show that private complainants are simple farmers, unemployed and natives of La Union,
who see employment abroad as a means to alleviate their living conditions, only to find out that they
have been the victims of illegal recruiters preying on poor workers. It has been held that "the
abscence of evidence as to an improper motive actuating the principal witnesses of the prosecution
strongly tends to sustain no improper motive existed and their testimony is worthy of full faith and
credit. 17
Lastly , under Article 38 of the Labor Code, as amended, the crime of illegal recruitment is qualified
when the same is committed against three (3) or more persons, individually or as a group. Accused-
appellant having committed the crime of illegal recruitment against Prudencio Renon, Fernando
Gagtan, Angelino Obiacoro and Ludovico Gagtan, the penalty of life imprisonment and the fine of
P100,000.00 (Article 39 (a) Labor Code of the Philippines as amended) was correctly imposed by
the trial court.
In the light of foregoing findings and for reasons indicated, We hold that the evidence was sufficient
to sustain the verdict finding the accused guilty of the crime of illegal recruitment as charged.
Accordingly, the judgment of the Regional Trial Court is hereby AFFIRMED with no pronouncement
to costs.
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. TAN TIONG
MENG alias "TOMMY TAN", accused-appellant.
DECISION
PADILLA, J.:
Accused-appellant Tan Tiong Meng alias "Tommy Tan" was charged with
Illegal Recruitment in Large Scale and six (6) counts of estafa.
The information for large scale illegal recruitment reads:
"That on or about the period comprising June 1993 to August, 1993, in the City of
Cavite, Republic of the Philippines and within the jurisdiction of this Honorable
Court, the above-named accused, using a business name RAINBOW SIM
FACTORY, a private employment recruiting agency, and misrepresenting himself to
abroad with the ability to facilitate the issuance and approval of the necessary papers
in connection therewith, when in fact he did not possess the authority or license from
the Philippine Overseas Employment Administration to do so, did, then and there,
wilfully, unlawfully and knowingly for a fee, recruit in a large scale and promise
employment in Taiwan to the following persons, to wit:
Ernesto Orcullo y Nicolas - P15,000.00

Manuel Latina y Nicanor - P15,000.00
Neil Mascardo y Guiraldo - P15,000.00
Librado C. Pozas - P15,000.00
Edgardo Tolentino y Vasquez - P15,000.00
Gavino Asiman - P15,000.00
as in fact, the said persons gave and delivered the abovestated amount, respectively, to
the herein accused who know fully well that the aforesaid persons could not be sent to
Taiwan, to the damage and prejudice of said aforementioned private complainants." [1]
The informations for estafa aver substantially the same allegations as

follows:
"In Criminal Case No. 277-93:
That on or about June 7, 1993, in the City of Cavite, Republic of the Philippines and
within the jurisdiction of this Honorable Court, the above-named accused by means of
false representations that he can secure an employment in Taiwan for Ernesto Orcullo
y Nicolas as a factory worker induced the latter to entrust to him the amount
of P15,000.00, in consideration of the promised employment, but the herein accused,
once in possession of the amount, with intent to defraud, with grave abuse of
confidence and without fulfilling his promise, did, then and there, wilfully, unlawfully
and knowingly, misapply, misappropriate and convert the same to his own personal
use and benefit and notwithstanding repeated demands made upon him for the return
of the amount, accused herein failed and refused to do so, to the damage and prejudice
of Ernesto Orcullo y Nicolas in the amount of P15,000.00, Philippine Currency." [2]
The other informations for estafa involve the following complainants and
amounts.
1) Neil Mascardo - P15,000.00
2) Manuel Latina - P15,000.00
3) Ricardo Grepo - P20,000.00
4) Librado Pozas - P15,000.00
5) Gavino Asiman - P15,000.00
Accused-appellant pleaded not guilty to all the informations and all seven
(7) cases were tried jointly.
On 12 May 1995, the Regional Trial Court, Branch 88, Cavite City rendered
a decision* the dispositive part of which reads:
"WHEREFORE, judgment is hereby rendered as follows:
1. In Criminal Case No. 278-93, the Court finds the accused GUILTY beyond reasonable
doubt of the crime of illegal recruitment in large scale defined and penalized under
Article 38 of the Labor Code, as amended in relation to Article 39 thereof, and hereby
sentences him to a penalty of life imprisonment, and to pay a fine of P100,000, without
subsidiary imprisonment in case of insolvency;
doubt of the crime of Estafa defined and penalized under Article 315 (2) (a) of the
Revised Penal Code and hereby sentences him to a penalty of imprisonment of two
(2) years as minimum, to six (6) years as the maximum; and to pay ERNESTO
ORCULLO the sum of P15,000 as actual damages and P15,000 as moral and
exemplary damages;
Revised Penal Code, and hereby sentences him to a penalty of imprisonment of two
(2) years as minimum, to six (6) years as the maximum, and to pay NEIL MASCARDO
the sum of P15,000 as actual damages and P15,000 as moral and exemplary
damages;
Revised Penal Code and hereby sentences him to a penalty of imprisonment of two
(2) years as minimum, to six (6) years as maximum; and to pay MANUEL LATINA the
sum of P15,000 as actual damages, and P15,000 as moral and exemplary damages;
(2) years as minimum, to six (6) years as maximum; and to pay RICARDO GREPO
the sum of P20,000 as actual damages and P20,000 as moral and exemplary
damages;
(2) years as minimum, to six (6) years as maximum and to pay LIBRADO POZAS the
sum of P15,000 as actual damages and P15,000 as moral and exemplary damages;
(2) years as minimum, to six (6) years as maximum; and to pay GAVINO ASIMAN the
sum of P15,000 as actual damages and P15,000 as moral and exemplary damages.
In addition to the foregoing penalties, the accused being an alien, shall be deported
without further proceedings after service of sentence.
In the service of his sentence, the accused shall be credited with the full time during
which he underwent preventive imprisonment, provided he voluntarily agreed in
writing to abide by the same disciplinary rules imposed upon convicted prisoners,
otherwise, he shall be credited with only four-fifths (4/5) thereof (Article 29, RPC, as
amended by RA No. 6127 and BP Blg. 85).
SO ORDERED." [3]
On appeal to this Court, accused-appellant assigns a single error allegedly

committed by the trial court, thus:
"THE TRIAL COURT GRAVELY ERRED IN FINDING THE ACCUSED GUILTY

BEYOND REASONABLE DOUBT OF THE OFFENSE OF ILLEGAL
RECRUITMENT IN A LARGE SCALE UNDER CRIMINAL CASE NO. 278-93
AND ESTAFA IN CRIMINAL CASE NOS. 277-93, 279-93, 280-93, 343-93, 365-93,
AND 371-93." [4]
The case for the prosecution averred the following facts:

Gavino Asiman testified that a certain Jose Percival Borja who was a friend
of his relative informed him that a job recruiter would be at Borja's house at
Capt. Villareal St., Cavite City, in case anyone was interested in an overseas
job in Taiwan. Asiman further recalled that on 18 August 1993, he and his friend,
Librado Pozas went to Borja's house where they met the accused-appellant
who told them he could get them jobs as factory workers in Taiwan with a
monthly salary of P20,000.00. Accused-appellant required them to submit their
passport, bio-data and their high school diploma as well as to pay P15,000.00
each for placement and processing fees. The former issued two (2) receipts
which he signed in the presence of Asiman and Pozas. Accused-appellant
[5]
assured them that they could leave for Taiwan twelve (12) days later. Asiman
stated that they filed the complaints for illegal recruitment when they learned
that accused-appellant was arrested for illegal recruitment activities.
Librado Pozas corroborated the testimony of Asiman. He added that Borja
had no participation in the offense as his house was merely used as a meeting
place by accused-appellant.
Neil Mascardo testified that he met accused-appellant through a friend and
also through Jose Borja. Mascardo narrated that on 7 July 1993, he went to
Borja's house to meet accused-appellant who assured him of getting him an
employment in Taiwan at the Rainbow Ship Co., a marble and handicraft factory
with a monthly salary of P20,000.00. He further testified that he
paid P15,000.00 to accused-appellant for placement and processing fees as
shown by a receipt signed by accused-appellant. Accused-appellant first told
[6]
him he could leave on 15 July 1993. When he later inquired about his departure
date, accused-appellant told him he could leave by the end of July 1993. After
July, accused-appellant told him he would leave on 15 August 1993 together
with his uncle Manuel Latina. When he failed to leave on the last mentioned
date and accused-appellant told him he would leave on 28 August 1993,
Mascardo told accused-appellant he wanted his money back. Accused-
appellant told him that a refund was not possible since he had already sent the
money to his brother-in-law in Taiwan. Mascardo decided to file a complaint for
illegal recruitment on 28 August 1993. On 31 August 1993, he, Manuel Latina
and Ernesto Orcullo went to the Philippine Overseas Employment
Administration (POEA) where they found out that accused-appellant was not a
licensed or authorized overseas recruiter.
Ricardo Grepo testified that on 11 August 1993, he went to Borja's house
where he met with accused-appellant who received from him P15,000.00 for
placement and processing fees. Accused-appellant told him he could get a job
as a factory worker in Taiwan with a monthly salary of P20,000.00. Accused-
appellant gave him a signed typewritten receipt and assured him he could
[7]
leave for Taiwan on 28 August 1993. Accused-appellant later told him that his
visa was not yet ready and he thereafter learned from Jose Borja that accused-
appellant had been arrested for illegal recruitment activities. Grepo filed his
complaint on 30 August 1993.
Lucita Mascardo-Orcullo testified that she is the wife of Ernesto Orcullo, one
of the complainants. She stated that on 7 June 1993, she went with her
husband to Borja's house where they gave Ernesto's passport and other papers
to accused-appellant who assured them that Ernesto could get a job as a
factory worker in Taiwan. Lucita further averred that they paid P15,000.00 to
accused-appellant for placement and processing fees as shown by a receipt
signed by accused-appellant. [8]
Dionisa Latina testified that she is the wife of complainant Manuel

Latina. She stated that on 9 June 1993, she and her husband went to Borja's
house to meet accused-appellant who told them that Manuel could get a job at
a toy factory in Taiwan. They paid P15,000.00 to accused-appellant who issued
a receipt and assured them Manuel could leave on 30 June 1993. After said
[9]
date, accused-appellant kept on promising them that Manuel would be able to

leave for Taiwan. The promises were never fulfilled.
Angelina de Luna, a Senior Labor Employment Officer of the POEA, testified
that their office received a subpoena from the trial court requiring the issuance
of a certification stating whether or not Tan Tiong Meng alias Tommy Tan was
authorized by the POEA to recruit workers for overseas employment. De Luna
presented a certification signed by Ma. Salome S. Mendoza, Chief, Licensing
Branch of the POEA dated 7 July 1994 stating that accused-appellant is neither
licensed nor authorized by the POEA to recruit workers for overseas
employment. [10]
Accused-appellant Tan Tiong Meng alias Tommy Tan was the only witness
for the defense. He testified that he is a Singaporean national married to Estelita
Oribiana, a Filipino-Chinese. He added that he works as a sales representative
for Oribiana Laboratory Supplies, a company owned by his brother-in-law which
sells laboratory equipment to various schools in Cavite.
Tan alleged that Jose Percival Borja was introduced to him by a certain
Malou Lorenzo at the office of their laboratory supplies in Sta. Cruz,
Manila. Lorenzo allegedly told him that Borja needed his help in processing job
applications for abroad. When he talked to Borja, the latter told him that he
could help in convincing applicants that they could work in Taiwan. Borja offered
him a P1,000.00 commission from the amount paid by each applicant.
Tan admitted having received money from all the complainants but he said
that all the money was turned over to Borja after deducting his commission. Tan
likewise admitted that he and his wife are respondents in about seventy (70)
cases of estafa and illegal recruitment but that it was Lorenzo who was the main
recruiter.
The prosecution presented Jose Percival Borja as a rebuttal witness. Borja
testified that Tan was introduced to him by Malou Lorenzo. Accused-appellant
told him that they were direct recruiters for jobs in Taiwan and that he has
relatives there. Tan's offer was attractive considering that he charged
only P15,000.00 while the prevailing rate for job placements was P45,000.00-
P60,000.00. Borja added that he even told his friends and relatives to apply with
accused-appellant. Tan had told him that he sometimes comes to Cavite to
deliver laboratory equipment. When Tan called him up to tell him he was in the
area, Borja told him to come to his house. It was at his house where Tan
accepted money from several job applicants most of whom he (Borja) did not
know. When Borja realized that Tan had cheated the applicants, he helped set
up a trap and had Tan arrested by his neighbor Tony Guinto, a Cavite City
policeman. Borja later learned that Tan had victimized several people in
Batangas and Metro Manila.
In the present appeal, accused-appellant would have the Court believe that
he merely acted as a collector of money for the principal recruiter Borja who
made the representations that he (Tan) could give the applicants jobs in
Taiwan. He maintains that he merely received commissions from the
transactions and that the deceit was employed not by him but by Borja who
introduced him as a job recruiter.
The Court is not impressed by such bizarre pretensions.
Several revealing circumstances belie the version for the defense, namely:
1. Neil Mascardo testified that accused-appellant told him he could no longer return his
money because he had already sent it to his brother-in-law Lee Shut Kua in Taiwan;
2. All the receipts issued to complainants were signed by accused-appellant;
3. Tan admitted that he and his wife are respondents in about seventy (70) cases for
estafa and illegal recruitment in Batangas; [11]
4. Tan executed a sworn statement dated 13 September 1993 before SPO2 Eduardo G.
Nover, Jr. in the presence of his lawyer Atty. Florendo C. Medina wherein he admitted
receiving P15,000.00 from Gavino Asiman;[12]
5. The complainants all pointed to Tan and not Borja as the one who had represented to
them that he could give them jobs in Taiwan.
There is no showing that any of the complainants had ill-motives against

Tan other than to bring him to the bar of justice. The testimonies of the
witnesses for the prosecution were straight-forward, credible and
convincing. The constitutional presumption of innocence in Tan's favor has
been overcome by proof beyond reasonable doubt and we affirm his
convictions.
The Labor Code defines recruitment and placement thus:
"(A)ny act of canvassing, enlisting, contracting, transporting, utilizing, hiring or

procuring workers, and includes referrals, contract services, promising or advertising
for employment, locally or abroad, whether for profit or not; Provided, that any person
or entity which, in any manner, offers or promises for a fee employment to two or
more persons shall be deemed engaged in recruitment and placement." [13]
It is clear that accused-appellant's acts of accepting placement fees from

job applicants and representing to said applicants that he could get them jobs
in Taiwan constitute recruitment and placement under the above provision of
the Labor Code.
The Labor Code prohibits any person or entity, not authorized by the POEA,
from engaging in recruitment and placement activities thus:
"(a) Any recruitment activities, including the prohibited practices enumerated under
Article 34 of this Code, to be undertaken by non-licensees or non-holders of authority
shall be deemed illegal and punishable under Article 39 of this Code x x x x
(b) Illegal recruitment when committed by a syndicate or in large scale shall be


committed against three (3) or more persons individually or as a group." [14]
The POEA having certified that accused-appellant is not authorized to

recruit workers for overseas employment, it is clear that the offense committed
against the six (6) complainants in this case is illegal recruitment in large scale
punishable under Article 39 (a) of the Labor Code with life imprisonment and a
fine of One Hundred Thousand Pesos (P100,000.00).
Accused-appellant's guilt of six (6) separate crimes of estafa has likewise
been proven.
The argument that the deceit was employed by Jose Percival Borja and not
by accused-appellant is specious, even ridiculous. All the complainants agreed
that it was accused-appellant Tan who assured them of jobs in Taiwan. The
assurances were made intentionally to deceive the would-be job applicants to
part with their money.
In People v. Calonzo, the Court reiterated the rule that a person convicted
[15]
for illegal recruitment under the Labor Code can be convicted for violation of the
Revised Penal Code provisions on estafa provided the elements of the crime
are present. In People v. Romero the elements of the crime were stated thus:
[16]
a) that the accused defrauded another by abuse of confidence or by means of deceit,

and
b) that damage or prejudice capable of pecuniary estimation is caused to the offended

party or third person.
Both elements have been proven in this case.

One final point. The names of a certain Malou Lorenzo and Chit Paulino
have been mentioned by accused-appellant as being illegal recruiters whom he
contends are either the main recruiters or their agents.It also appears that
accused-appellant's wife Estelita Oribiana who is a co-accused in the other
illegal recruitment complaints may be a part of a large syndicate operating in
Batangas, Cavite and Metro Manila.There is nothing on the record to show that
attempts were made to investigate these three (3) people.
The campaign and drive against illegal recruiters should be continuous and
unrelenting. Government should not be content with bringing to justice but a
number of these diabolic denizens of society who thrive on the dreams of our
countrymen of having a better life. Only when the last of their tribe has been
convicted and punished can the government rightfully claim that it has fulfilled
the constitutional mandate to protect the rights and promote the welfare of
workers. [17]
WHEREFORE, the judgment appealed from finding accused-appellant Tan

Tiong Meng alias "Tommy Tan" guilty of illegal recruitment in large scale and
six (6) counts of estafa, is hereby AFFIRMED. Costs against accused-
appellant.
SO ORDERED.
G.R. No. 113547 February 9, 1995

vs.
ANITA BAUTISTA y LATOJA, accused-appellant.
PUNO, J.:
Four (4) separate Informations 1 were filed before the Regional Trial Court of Manila (Branch XLI)
against accused ANITA BAUTISTA y LATOJA, charging her with the crimes of Illegal Recruitment In
Large Scale 2 and Estafa. 3
Upon arraignment on January 29, 1992, accused pleaded NOT GUILTY. 4 The four (4) cases were
tried jointly.
After trial, the court a quo found accused guilty as charged. 5 In the illegal recruitment case, she was
meted the penalty of life imprisonment and ordered to pay P 100,000.00 as fine. In the estafa cases, she
was sentenced from two (2) years, eight (8) months and twenty one (21) days of prision correccional as
minimum, to six (6) years, five (5) months and eleven (11) days of prision mayor as maximum for each
count of estafa, and pay each complainant the amount of P40,000.00 as civil indemnity.
Accused, thru counsel, filed her Notice of Appeal, dated March 6, 1992, indicating her desire to
elevate her case to this Court. 6 The records of the case were, however, transmitted by the trial court to
the Court of Appeals. In its Decision 7dated November 26, 1993, the appellate court affirmed appellant's
conviction. However, it modified the penalty for the three (3) estafa cases. The dispositive portion of the
decision of the appellate court states:
WHEREFORE, in Criminal Case No. 92-102377, the Court finds accused Anita
Bautista GUILTY BEYOND REASONABLE DOUBT of the crime of illegal
recruitment, described and penalized under Article 13 (b), Article 38 (a) and (b) and
Article 39 (a) of the Labor Code, and imposes upon her the penalty of life
imprisonment and fine of P100,000.00. . . .
Insofar as Criminal Case No. 92-102378, Criminal Case No. 92-102379 and Criminal
Case No. 92-102380, the Court renders judgment, finding accused Anita
Bautista GUILTY BEYOND REASONABLE DOUBT of the crime of estafa, described
and penalized under Article 315 par. 2 (a) of the Revised Penal Code, and
sentencing her in each criminal case to the indeterminate penalty of (sic) from FOUR
(4) YEARS and TWO (2) MONTHS of prision correccional, as minimum, to NINE (9)
YEARS of prision mayor, as maximum, and to pay each complainants Remigio
Fortes, Anastacio Amor and Dominador Costales, the amount of P40,000.00, without
subsidiary imprisonment in case of insolvency, with costs. Accordingly, the penalty
imposed upon accused by the lower court is MODIFIED.
IT IS SO ORDERED.
Pursuant to Section 13 of Rule 124, the appellate court elevated to us the records of the case for
review. Notice was given to appellant for her to file additional Brief if she so desires. None was filed
in her behalf.
The facts are as found by the appellate court:

Sometime in August 1991, accused Anita Bautista approached Romeo Paguio at the
latter's restaurant at 565 Padre Faura St., Manila, and offered job openings abroad.
At that time, Paguio had relatives who were interested to work abroad. Accused, who
also operated a restaurant nearby at Padre Faura, informed Paguio that she knew
somebody who could facilitate immediate employment in Taiwan for Paguio's
relatives. Accused Anita Bautista introduced Rosa Abrero to Paguio. Abrero informed
him that the applicants could leave for Taiwan within a period of one-month from the
payment of placement fees. They informed Paguio that the placement fee was
P40,000.00 for each person. Paguio contacted his relatives, complainants Remigio
Fortes and Dominador Costales who were his brothers-in-law, and Anastacio Amor,
a cousin, who lost no time raising the needed money and gave the same to Paguio.
The three were to work as factory workers and were to be paid $850.00 monthly
salary each. Paguio gave Rosa Abrero P20,000.00, which would be used in following
up the papers of the complainants; later he gave accused P40,000.00 and
P60,000.00 in separate amounts, totalling P100,000.00, as the remaining balance.
Abrero and accused Bautista promised Paguio and complainants that the latter could
leave for Taiwan before September 25, 1991. As September 25, 1991 approached,
accused Bautista informed Paguio and complainants that there was a delay in the
latter's departure because their tickets and visas had not yet been released. Accused
re-scheduled the complainants' departure to October 10, 1991. Came October 10,
1991, and complainants were still not able to leave. Paguio then required accused
Bautista to sign the "Acknowledgment Receipt," dated October 11, 1991, in which
accused admitted having received the sum of P100,000.00 from Paguio,
representing payment of plane tickets, visas and other travel documents (Exhibit A).
Paguio asked accused to return complainants' money; accused, however, promised
that complainants could leave for Taiwan before Christmas. From POEA, Paguio
secured a certification, dated January 9, 1992 attesting that Annie Bautista and Rosa
Abrero are not licensed or authorized to recruit workers for overseas employment
(Exhibit B). Complainants Fortes, Amor and Costales, as well as Paguio, gave their
written statements at the Office of the Assistant Chief Directorial Staff for Intelligence
of the WPDC, complaining about their being victims of illegal recruitment by Rosa
Abrero and Annie Bautista (Exhibits C, D, E and F).
The issue boils down to whether or not reasonable doubt exists to warrant the acquittal of appellant
Anita Bautista.
We find none.
The Labor Code defines recruitment and placement as referring to "any act of canvassing, enlisting,
contracting, transporting, utilizing, hiring or procuring workers, and includes referrals, contract
services, promising or advertising for employment, locally or abroad, whether for profit or
not: Provided that any person or entity which, in any manner, offers or promises for a fee
employment to two or more persons shall be deemed engaged in recruitment and placement." 8
It is settled that the essential elements of the crime of illegal recruitment in large scale are: (1) the
accused engages in the recruitment and placement of workers, as defined under Article 13 (b) or in
any prohibited activities under Article 34 of the Labor Code; (2) accused has not complied with the
guidelines issued by the Secretary of Labor and Employment, particularly with respect to the
securing of a license or an authority to recruit and deploy workers, either locally or overseas; and (3)
accused commits the same against three (3) or more persons, individually or a group. 9
For her exculpation, appellant denied she recruited complainants for employment abroad. She
claimed Romeo Paguio was the one who approached her and asked for someone who could help
his relatives work abroad. She thus introduced Rosa Abrero, a regular customer at her restaurant, to
Paguio. In turn, Paguio introduced Abrero to complainants in their subsequent meeting. Further,
appellant testified she was present during the recruitment of complainants since their meeting with
Abrero was held at her restaurant. Appellant likewise stressed she did not receive the amount of
P100,000.00, as stated in the Acknowledgment Receipt, dated October 11, 1991, but merely
acknowledged that said sum was received by Rosa Abrero from Romeo Paguio.
Appellant's defense does not persuade us.
Appellant's active participation in the recruitment process of complainants belies her claim of
innocence. Complainants' recruitment was initiated by appellant during her initial meeting with
Romeo Paguio. She gave the impression to Romeo Paguio and the complainants that her cohort,
Rosa Abrero, could send workers for employment abroad. She introduced Rosa Abrero to Romeo
Paguio. Both women assured the departure of complainants to Taiwan within one month from
payment of the placement fee of P40,000.00 per person. They even claimed that complainants
would work as factory workers for a monthly salary of $850.00 per person. Moreover, it was
appellant who informed Romeo Paguio that complainants' scheduled trip to Taiwan would be on
October 10, 1991, instead of the original departure date of September 25, 1991, due to some
problems on their visas and travel documents.
Her close association with Rosa Abrero is further strengthened by the Acknowledgment Receipt,
dated October 11, 1991, which was prepared by Romeo Paguio for the protection of complainants.
The receipt reads:
ACKNOWLEDGMENT RECEIPT
P100,000.00 October 11, 1991
RECEIVED FROM: ROMEO PAGUIO, the amount of ONE HUNDRED THOUSAND

(P100,000.00) PESOS, Philippine Currency, representing the payment (of) plane
ticket, visa and other travel documents.
CONFORME:
By:
(Sgd.) ROMEO PAGUIO (Sgd.) MRS. ANNIE BAUTISTA
c/o Rosa Abrero
SIGNED IN THE PRESENCE OF:
(Sgd.) Anastacio Amor Remigio Fortes
Dominador Costales
Said receipt shows that appellant collected the P100,000.00 for and in behalf of Rosa Abrero, and
bolsters Romeo Paguio's allegation that he gave P20,000.00 to Rosa Abrero, while the rest was
received by appellant. Notably, in its Decision, dated February 14, 1992, the trial court observed:
The denial(s) made by the accused of any participation in the recruitment of the
complainants do not persuade. The evidence at hand shows that she acknowledged
in writing the receipt of P100,000.00 from witness Romeo Paguio who was all along
representing the complainants in securing employment for them in Taiwan. Her
denial of having actually received the money in the sum of P100,000.00, the receipt
of which she voluntarily signed is not convincing. By her own admission, she is a
restaurant operator. In other words, she is a business woman. As such, she ought to
know the consequences in signing any receipt. That she signed Exh. "A" only goes to
show that fact, as claimed by Romeo Paguio, that she actually received the same.
It is uncontroverted that appellant and Rosa Abrero are not authorized or licensed to engage in
recruitment activities. 10 Despite the absence of such license or authority, appellant participated in the
recruitment of complainants. Since there are at least three (3) victims in this case, appellant is correctly
held criminally liable for illegal recruitment in large scale. 11
We shall now discuss appellant's culpability under the Revised Penal Code, specifically Article 315
thereof, inasmuch as her conviction for offenses under the Labor Code does not avert punishment
for offenses punishable by other laws. 12
The elements of estafa are as follows: (1) that the accused defrauded another (a) by abuse of
confidence, or (b) by means of deceit; and (2) that damage or prejudice capable of pecuniary
estimation is caused by the offended party or third party.
In the case at bench, it is crystal clear that complainants were deceived by appellant and Rosa
Abrero into believing that there were, indeed, jobs waiting for them in Taiwan. The assurances given
by these two (2) women made complainants part with whatever resources they have, in exchange
for what they thought was a promising job abroad. Thus, they sold their carabaos, mortgaged or sold
their parcels of land and even contracted loans to raise the much needed money, the P40,000.00
placement fee, required of them by accused and Rosa Abrero.
The penalty for estafa depends on the amount defrauded. Article 315 of the Revised Penal Code
provides: "the penalty of prision correccional in its maximum period to prision mayor in its minimum
period (or imprisonment ranging from 4 years, 2 months and 1 day to 8 years), if the amount of the
fraud is over P12,000.00 but does not exceed P22,000.00 pesos, and if such amount exceeds the
latter sum, the penalty provided in this paragraph shall be imposed in its maximum period (6 years, 8
months and 21 days to 8 years), adding one year for each additional P10,000.00 pesos; but the total
penalty which may be imposed shall not exceed twenty years. In such case, and in connection with
the accessory penalties which may be imposed and for the purpose of other provisions of this Code,
the penalty shall be termed prision mayor or reclusion temporal, as the case may be.
The amount defrauded in such estafa case (Criminal Case Nos. 92-102378, 92-102379, 92-102380)
is P 40,000.00. As prescribed in Article 315, supra, the penalty should be imposed in the maximum
period (6 years, 8 months and 21 days to 8 years) plus one (1) year, there being only one (1)
P10,000.00 in excess of P22,000.00. Applying the Indeterminate Sentence Law, the maximum
penalty should be taken from the aforesaid period, while the minimum term of the indeterminate
penalty shall be within the range of the penalty next lower in degree, that is prision correccional in
its minimum and medium periods which has a duration of 6 months, 1 day to 4 year and 2 months.
Considering the foregoing, the appellant court correctly imposed the indeterminate penalty of four (4)
years and two (2) months of prision correccional, as minimum, to nine (9) years of prision mayor, as
maximum.
WHEREFORE, premises considered, the decision of the Court of Appeals, finding appellant ANITA
BAUTISTA guilty beyond reasonable doubt of the crimes of Illegal Recruitment in Large
Scale (Criminal Case Nos. 92-102377) and Estafa (Criminal Case Nos. 92-102378, 92-102379, 92-
102380) is AFFIRMED. No Costs.
G.R. No. 109761 September 1, 1994

vs.
CARMELITA PUERTOLLANO COMIA, accused-appellant.
The Solicitor General for plaintiff-appellee.
Public Attorney's Office for accused-appellant.
DAVIDE, JR., J.:
For falsely representing herself to have the capacity and power to contract, enlist, and recruit
workers for employment abroad, Carmelita Puertollano Comia was charged with illegal recruitment
in large scale under paragraphs (a) and (b) of Article 38, in relation to paragraph (a) of Article 39, of
the Labor Code. The information 1was filed with the Regional Trial Court of Makati, Metro Manila,
docketed therein as Criminal Case No. 91-6443, and assigned to Branch 141 of the said court. After trial
on the merits, the court promulgated on 4 February 1993 its decision 2finding the accused guilty beyond
reasonable doubt of the offense charged and sentencing her to suffer the penalty of life imprisonment and
to pay a fine of P100,000.00.
The complaining victims of the illegal recruitment activities of the accused were Fe Dadap, Susana
Belloso, Marilyn Bibar, Sandra Cosart, and Remedios Asis. With the exception of Fe Dadap, who
withdrew her complaint because she had moved to the province with her two children, they testified
in open court that the accused defrauded each of them of sizeable cash on the assurance that they
would be given janitorial jobs in Hongkong.
The trial court summarized the evidence for the prosecution as follows:
The evidence for the prosecution shows that complainant Susana Belloso came to
know Carmelita Comia, the accused herein, thru her husband who was selling ice
candy within the premises of Tambo Elementary School in Paraaque, M.M. She had
known the accused for five years. She was working as a janitress of the above-
mentioned school. It was her husband who applied to the accused Comia for a job
employment abroad as a janitress. She paid the following amounts to Comia:
P2,600.00 at her house at Pulang Lupa, Las Pias; P450.00 at the elementary
school; P750.00 at the same school; again, P247.00 at her residence in Las Pias;
and P2,500.00 at the Chinese General Hospital in Blumentritt, Manila. After paying
these amounts, the accused Comia told her to await for a certain Doctora who will be
coming from Hong Kong. This Doctora is her boss there. On a date which she cannot
remember the accused told her that they would be leaving for Hong Kong and to
bring with her her personal belongings. At the airport, the accused Comia told them
that the Doctora will be coming at the airport. However, they were not able to leave
and so they went to the Immigration Office where she and her companions were told
that they were not scheduled to leave for abroad. A certain Sgt. Afuang brought them
to the NBI were they were investigated. The payments she gave to Comia were
never receipted by her and everytime she would ask for receipts, accused Comia
would get angry and tell her that the money would be eventually given to the
Doctora.
The second complainant, Marilyn Bibar, had known the accused for two years, also
thru her husband. It was the husband of the accused Comia who told her that the
accused came from Hong Kong, and being interested to work in Hong Kong, she
talked to the accused. She was supposed to work as a janitress in Hong Kong. The
accused told her that her employer has a hospital in Hong Kong and her name is Dr.
Zenaida Andres. She was asked to produce the originals of her birth certificate, NBI
clearance, ECG, marriage contract and x-ray. She paid the amount of P2,600.00 in
the month of March 1991. She also paid the amount of P720.00 for immigration fee
in the month of August 1991; P450.00 for processing fee of the passport in July
1991; and P2,500.00 in August of 1991. All these amounts were paid at Tambo
Elementary School in Paraaque. She was not given receipts for the payments she
made to the accused, who told her that the receipts will be kept by her. When nothing
happened to her promise for employment abroad, complainant, together with her
other companions, asked when they would be leaving but the accused merely told
her to wait until they are finally scheduled. Then, the accused told her and her
companions that they were about to leave and were advised to pack up to leave for
abroad. She and her companions proceeded to NAIA on September 31, 1991. Her
companions were Susana Belloso, Sandra Cosart, Fe Dadap, and Remedios Asis. At
the airport, they arrived at about 12 noon, and the accused Comia told her to wait for
her boss, Dra. Zenaida Andres. She, together with her companions, waited until 7:00
in the evening. When the Doctora did not arrive, her husband inquired with the
Immigration Office, but there was no such person by the name of Dra. Zenaida
Andres. She has never been introduced to Dra. Zenaida Andres by the accused.
After that they agreed among themselves to call up Dra. Zenaida Andres but the
number they called was that of McDonald's. Accused Comia even called the same
number but after waiting for a while for somebody to answer the call, a policeman
grabbed the telephone receiver and found out that there was nobody on the other
line. The policeman, after that, told them to bring accused Comia to the NBI. Sgt.
Afuang of the Immigration Office accompanied them to the NBI and accused Comia
was handcuffed. At the NBI a certain Atty. Vaplor informed them that they should
proceed with their charges against accused Comia but first, they should secure a
certification from the POEA regarding the accused's authority or license to recruit.
They were able to secure the certification dated October 1, 1991, which is Exhibit B.
The third witness for the prosecution and who is also a complainant, Sandra Cosart,
identified the accused Comia and stated that she knew the accused a long time ago.
The accused came to her house located at Fortunato Village, Feliciano Cpd., Sucat,
Paraaque, M.M. in March 1991. The accused received money from her in the
amount of P2,600.00 for the processing of her papers. The papers are the NBI
clearance, ECG, medical certificate, x-ray and visa. These papers were intended for
Hong Kong for her to work as janitress in one of the hospitals there and her employer
would be one Dra. Zenaida Andres. This was told to her by the accused Comia. She
did not receive any receipts from the accused when she gave the amount of
P2,600.00. The accused simply told her to trust her. She also gave the accused the
additional sums of P3,000.00, then P750.00, then P450.00, and then
P3,000.00, 3 which payments she gave to the accused sometime in July and August of
1991. She paid these additional amounts to the accused in her house. The accused did
not issue to her any receipts and told her to just trust her. The additional amounts were
for her plane ticket, visa and passport. Nothing happened to her intended employment in
Hong Kong, and in September of 1991 the accused Comia told her they will go to NAIA
and it will be there where she will give her passport, ticket and visa. She was with Marilyn
Bibar, Susana Belloso, Fe Dadap and Remedios Asis. They were not able to leave and
so she and her companions complained at the Immigration Office at the NAIA and they
were told that no such Zenaida Andres was leaving for abroad. They complained to the
police and the police arrested accused Comia who was brought to the NBI. Then the NBI
told them to go to POEA and there, they were able to verify that there was no person by
the name of Zenaida Andres registered as a recruiter. Comia is also not registered as a
recruiter. She identified Exh. B, which is a certification to this effect.
The fourth witness, Remedios Asis, after identifying the accused Comia, stated that
she came to know the accused because the latter was doing laundry work near their
place sometime in the first part of 1991. She and accused Comia talked about her
employment as a janitress in Hong Kong. For this reason, accused Comia received
money from her for her employment abroad as a janitress in Hong Kong. She gave to
the accused Comia P6,970.00 at her residence in 843 Manuyo St., Las Pias, M.M.
She gave the said amount last year. She did not demand any receipt from the
accused because the accused just told her to trust her. She was not able to work as
a janitress in Hong Kong. The accused Comia just told her to wait for her employer, a
certain Doctora, whose name she cannot recall. 4
It also summarized the testimony of the accused, to wit:
The defense did not introduce any documentary evidence and the accused was the
only witness. The accused denied having received any money from any of the
complainants. She claimed that since she did not receive any money from the
complainants why should she give receipts? She claimed that she was also one of
the victims of Dra. Zenaida Andres. She was applying with said Doctor in Tramo in
the same place where she (accused) resides. In fact, she claimed to have given an
application fee in the amount of P450.00 and P2,500.00. With respect to the
P2,500.00 she was able to raise this amount because she also used to work with
other families as laundrywoman. This P2,500.00 was given to Dr. Andres in
installment. Dr. Andres gave her a receipt before she was to leave for abroad
because her husband was demanding for a receipt. However, she could not produce
this receipt because the NBI allegedly took all the contents of her bag, including the
receipt. She claimed that she is only Grade II but could not read and can only write
her name. She denied that she told one of the complainants that she had been in
Hong Kong. 5
The trial court accepted the version of the prosecution because the statements of the complaining
witnesses were positive and affirmative in nature and were worthy of credit than the mere
uncorroborated and self-serving denial of the accused. It further observed that the accused had not
shown any ill motive on the part of the complainants and that the accused's reference to a certain Dr.
Zenaida Andres as the employer and, therefore, the real recruiter does not inspire belief. As to the
latter, it stated:
To the mind of the Court, Dr. Zenaida Andres is a non-existent person invented by
the accused to ward off suspicion from her when the moment of truth came, that is,
when the complainants started to show their impatience to the accused as to their
inability to leave for Hongkong. To appease the complainants, the accused, true to
her criminal mind, made up the story about leaving for Hongkong on September 31,
1991 and even pretended to be one of them. In vain, they waited for the fictitious
Dra. Andres to come, after which they agreed to call her but the telephone number
they dialed turned out to be McDonald's. Accused dialed the phone number again,
pretending to be waiting for somebody to answer the call. A policeman grabbed the
telephone from the accused and found out that there was nobody on the other line. 6
The accused seasonably filed her notice of appeal which did not, however, indicate the court to
which she was appealing. 7 In its order of 23 February 1993, the trial court erroneously directed the
elevation of the records of the case to the Court of Appeals. 8 The latter rectified the error by transmitting
the records to this Court after its receipt thereof. 9
In her Appellant's Brief, 10 the accused contends that the trial court erred:
. . . IN GIVING WEIGHT AND CREDENCE TO THE TESTIMONIES OF THE FOUR

COMPLAINANTS AND IN DISREGARDING THE TESTIMONY OF THE ACCUSED-
APPELLANT.
II
. . . IN CONVICTING THE ACCUSED-APPELLANT FOR ILLEGAL RECRUITMENT

DESPITE OF [sic] THE FAILURE OF THE PROSECUTION TO PROVE HER GUILT
BEYOND REASONABLE DOUBT. 11
In the Appellee's Brief, 12 the Office of the Solicitor General maintains that the trial court committed no
error and prays that the assailed decision be affirmed in toto.
The appeal is without merit.
Article 38 of the Labor Code provides in part as follows:
Illegal Recruitment. (a) Any recruitment activities, including the prohibited

practices enumerated under Article 34 of this Code, to be undertaken by non-
Article 39 of this Code. The Ministry of Labor and Employment or any law
enforcement officers may initiate complaints under this Article.
(b) Illegal recruitment when committed by a syndicate or in large scale shall be


committed against three (3) or more persons individually or as a group.
Article 13(b) of the same Code defines recruitment as follows:
Recruitment and placement refers to any act of canvassing, enlisting, contracting,

transporting, utilizing, hiring or procuring workers, and includes referrals, contract
services, promising or advertising for employment, locally or abroad, whether for
profit or not: Provided, that any person or entity which, in any manner, offers or
promises for a fee employment to two or more persons shall be deemed engaged in
recruitment and placement.
It is clear from the foregoing provisions that there is illegal recruitment in large scale when a person
(a) undertakes any recruitment activity defined under Article 13(b) or any prohibited practice
enumerated under Article 34 of the Labor Code; (b) does not have a license or authority to lawfully
engage in the recruitment and placement of workers; and (c) commits the same against three or
more persons, individually or as a group.
In this case, the presence of the second and third elements is beyond dispute. That the accused is
not authorized by the Philippine Overseas Employment Administration (POEA) to engage in the
recruitment and placement of workers is evidenced by a certification of the said agency dated 1
October 1991. In fact, to abbreviate the proceedings, the parties duly stipulated on the due issuance,
authenticity, and truth of the said certification. 13 There are no less than four complainants who patiently
endured the rigors of trial to denounce the accused and expose her illegal recruitment activities.
Proffered to satisfy the first element of the crime were the testimonies of the complainants pointing to
the accused as the person who promised them employment abroad and who collected and received
various amounts from them. The accused questions the sufficiency of the said testimonies
contending that Article 13(b), which defines recruitment and placement, specifically provides that the
offer or promise of employment must be "for a fee" thereby making receipts indispensable in proving
alleged payment. Since none of the four complaining witnesses presented a single receipt to prove
alleged payment of a fee, the accused contends that their claim of payment without being issued
receipts defies belief as this fact is contrary to the ordinary course of nature and ordinary habits of
life 14 and runs against the presumption that persons take ordinary care of their concerns. 15
The complainants' failure to ask for receipts for the fees they paid to the accused, as well as their
consequent failure to present receipts before the trial court as proof of the said payments, is not fatal
to their case. The complainants duly proved by their respective testimonies that the accused was
involved in the entire recruitment process. She gave the impression that she knows a certain Dr.
Zenaida Andres who owns a hospital in Hongkong and has the power to hire people for janitorial
jobs thereat. She relayed the requirements to them, monitored their compliance, and, most
especially, collected and received fees. Their testimonies in this regard, being clear and positive, are
sufficient. The accused's contention that she would not have hesitated to issue receipts if it were true
that she did transact with them is purely hypothetical and hence, does not detract from the fact
adduced by the complainants that she got their money. In People vs. Naparan 16 and People vs.
Sendon, 17 this Court did not fault the victims of illegal recruitment for not asking for receipts explaining
that inasmuch as they were inexperienced and titillated by the prospect of earning easy money abroad,
they fell easy prey to the accused-appellant's glibness and roseate promises and were deluded into
relying on her assurance that receipts for their money would be issued later.
Nor is the lack of corroboration of the testimonies of the four complainants damaging to their case.
Corroborative evidence is necessary only when there are reasons to warrant the suspicion that the
witness is prevaricating or that his observations were inaccurate. 18 In the case at bench, the
combined weight of the complainants' testimonies, unerringly narrating how they were similarly wheedled
by the accused to part with their money without receipts, render unnecessary any corroborating evidence.
Moreover, this matter essentially involves the credibility of the complainants, the best judge of which
is the trial court. It has long been settled that when the issue is one of credibility of witnesses,
appellate courts will generally not disturb the findings of the trial court, considering that the latter is in
a better position to decide the question, having heard the witnesses themselves and observed their
deportment and manner of testifying during the trial, unless it plainly overlooked certain facts of
substance and value that, if considered, might affect the result of the case. 19Since the trial court
found the positive declarations of the complainants more credible than the sole testimony of the accused
denying the transactions, there must be a well-founded reason in order to deny great weight to its
evaluation of the complainant's testimonies. The accused has failed to provide that reason.
The accused anchors her denial on another supposition, i.e., if it were true that she had received
money from the complainants, she could have easily transferred or fled to an unknown address
where she could not be located or arrested after getting the complainants' money. However, we
have held that
non-flight is not conclusive proof of innocence. 20 Unlike flight of an accused, which is competent
evidence against him as having a tendency to establish his guilt, 21 non-flight is simply inaction, which
may be due to several factors. Hence, it may not be positively construed as an indication of innocence.
The accused cannot feign innocence of the illegal recruitment by claiming that she too was a victim
of the illegal recruitment of Dr. Andres. Firstly, all the transactions from the beginning to the end
were handled by the accused. In fact, none of the complainants ever met said Dr. Andres.
Noteworthy is the fact that when the complainants asked to be introduced to Dr. Andres, the
accused brought them to the Chinese General Hospital only to be told by the accused that the doctor
had already left. 22 Secondly, if the accused were a victim of Dr. Andres and she really felt aggrieved, she
could have filed a case against her for illegal recruitment. At the very least, in order to save her own neck,
she could have utilized the compulsory process of the court to summon Dr. Andres to appear and testify
as a hostile witness. The records of the case are bereft of any indication that the said courses of action
were taken. Nor was there any allegation that said Dr. Andres was nowhere to be found. All these raise a
well-founded belief that said Dr. Andres is a fictitious person conjured by the accused to support her
nefarious scheme in the recruitment process.
This Court is fully aware of the use of fictitious persons by illegal recruiters so as to give the
impression that they have the power to send people abroad for work. In People vs. Sendon, 23 we
considered the failure of the accused therein to present evidence that the alluded person really existed
and was not merely a figment of her imagination as the factor that assumed the crucial and decisive role
against the former's bid for exculpation. Assuming arguendo, as it was similarly done in the aforecited
case, that there is really such a person, still there is sufficient evidence to hold the accused liable. The
prosecution of other persons equally culpable or even more so than the accused herein may come later
as soon as their true identities and addresses become known. The thrust of the defense to deflect liability
from the accused by claiming that she is also a victim of Dr. Andres, who should be held responsible for
the whole mess, is unavailing.
Affirmance of the appealed decision is thus inevitable. However, the dispositive portion thereof failed
to adjudge the restitution of the amounts the accused had obtained from the complainants which, as
proved, are P6,270.00 from Marilyn Bibar; P6,547.00 from Susana Belloso; P6,800.00 from Sandra
Cosart; and P6,970.00 from Remedios Asis. The accused is ordered to restore to each of them the
above amounts.
WHEREFORE, the appealed decision of the Regional Trial Court of Makati, Metro Manila, in
Criminal Case No. 91-6443 is hereby AFFIRMED, subject to the above modification decreeing the
restitution of the amounts the accused had obtained from the complainants.
Costs against accused Carmelita Puertollano Comia.
SO ORDERED.
G.R. No. L-50999 March 23, 1990

JOSE SONGCO, ROMEO CIPRES, and AMANCIO MANUEL, petitioners,
vs
NATIONAL LABOR RELATIONS COMMISSION (FIRST DIVISION), LABOR ARBITER FLAVIO
AGUAS, and F.E. ZUELLIG (M), INC., respondents.
Raul E. Espinosa for petitioners.
Lucas Emmanuel B. Canilao for petitioner A. Manuel.
Atienza, Tabora, Del Rosario & Castillo for private respondent.
MEDIALDEA, J.:
This is a petition for certiorari seeking to modify the decision of the National Labor Relations
Commission in NLRC Case No. RB-IV-20840-78-T entitled, "Jose Songco and Romeo Cipres,
Complainants-Appellants, v. F.E. Zuellig (M), Inc., Respondent-Appellee" and NLRC Case No. RN-
IV-20855-78-T entitled, "Amancio Manuel, Complainant-Appellant, v. F.E. Zuellig (M), Inc.,
Respondent-Appellee," which dismissed the appeal of petitioners herein and in effect affirmed the
decision of the Labor Arbiter ordering private respondent to pay petitioners separation pay
equivalent to their one month salary (exclusive of commissions, allowances, etc.) for every year of
service.
The antecedent facts are as follows:
Private respondent F.E. Zuellig (M), Inc., (hereinafter referred to as Zuellig) filed with the Department
of Labor (Regional Office No. 4) an application seeking clearance to terminate the services of
petitioners Jose Songco, Romeo Cipres, and Amancio Manuel (hereinafter referred to as petitioners)
allegedly on the ground of retrenchment due to financial losses. This application was seasonably
opposed by petitioners alleging that the company is not suffering from any losses. They alleged
further that they are being dismissed because of their membership in the union. At the last hearing of
the case, however, petitioners manifested that they are no longer contesting their dismissal. The
parties then agreed that the sole issue to be resolved is the basis of the separation pay due to
petitioners. Petitioners, who were in the sales force of Zuellig received monthly salaries of at least
P40,000. In addition, they received commissions for every sale they made.
The collective Bargaining Agreement entered into between Zuellig and F.E. Zuellig Employees
Association, of which petitioners are members, contains the following provision (p. 71, Rollo):
ARTICLE XIV Retirement Gratuity
Section l(a)-Any employee, who is separated from employment due to old age,
sickness, death or permanent lay-off not due to the fault of said employee shall
receive from the company a retirement gratuity in an amount equivalent to one (1)
month's salary per year of service. One month of salary as used in this paragraph
shall be deemed equivalent to the salary at date of retirement; years of service shall
be deemed equivalent to total service credits, a fraction of at least six months being
considered one year, including probationary employment. (Emphasis supplied)
On the other hand, Article 284 of the Labor Code then prevailing provides:
Art. 284. Reduction of personnel. The termination of employment of any employee
due to the installation of labor saving-devices, redundancy, retrenchment to prevent
losses, and other similar causes, shall entitle the employee affected thereby to
separation pay. In case of termination due to the installation of labor-saving devices
or redundancy, the separation pay shall be equivalent to one (1) month pay or to at
least one (1) month pay for every year of service, whichever is higher. In case of
retrenchment to prevent losses and other similar causes, the separation pay shall be
equivalent to one (1) month pay or at least one-half (1/2) month pay for every year of
service, whichever is higher. A fraction of at least six (6) months shall be considered
one (1) whole year. (Emphasis supplied)
In addition, Sections 9(b) and 10, Rule 1, Book VI of the Rules Implementing the Labor Code
provide:
xxx
Sec. 9(b). Where the termination of employment is due to retrechment initiated by the
employer to prevent losses or other similar causes, or where the employee suffers
from a disease and his continued employment is prohibited by law or is prejudicial to
his health or to the health of his co-employees, the employee shall be entitled to
termination pay equivalent at least to his one month salary, or to one-half
month pay for every year of service, whichever is higher, a fraction of at least six (6)
months being considered as one whole year.
xxx
Sec. 10. Basis of termination pay. The computation of the termination pay of an
employee as provided herein shall be based on his latest salary rate, unless the
same was reduced by the employer to defeat the intention of the Code, in which case
the basis of computation shall be the rate before its deduction. (Emphasis supplied)
On June 26,1978, the Labor Arbiter rendered a decision, the dispositive portion of which reads (p.
78, Rollo):
RESPONSIVE TO THE FOREGOING, respondent should be as it is hereby, ordered

to pay the complainants separation pay equivalent to their one month salary
(exclusive of commissions, allowances, etc.) for every year of service that they have
worked with the company.
SO ORDERED.
The appeal by petitioners to the National Labor Relations Commission was dismissed for lack of
merit.
Hence, the present petition.
On June 2, 1980, the Court, acting on the verified "Notice of Voluntary Abandonment and
Withdrawal of Petition dated April 7, 1980 filed by petitioner Romeo Cipres, based on the ground that
he wants "to abide by the decision appealed from" since he had "received, to his full and complete
satisfaction, his separation pay," resolved to dismiss the petition as to him.
The issue is whether or not earned sales commissions and allowances should be included in the
monthly salary of petitioners for the purpose of computation of their separation pay.
The petition is impressed with merit.
Petitioners' position was that in arriving at the correct and legal amount of separation pay due them,
whether under the Labor Code or the CBA, their basic salary, earned sales commissions and
allowances should be added together. They cited Article 97(f) of the Labor Code which includes
commission as part on one's salary, to wit;
(f) 'Wage' paid to any employee shall mean the remuneration or earnings, however
designated, capable of being expressed in terms of money, whether fixed or
ascertained on a time, task, piece, or commission basis, or other method of
calculating the same, which is payable by an employer to an employee under a
written or unwritten contract of employment for work done or to be done, or for
services rendered or to be rendered, and includes the fair and reasonable value, as
determined by the Secretary of Labor, of board, lodging, or other facilities customarily
furnished by the employer to the employee. 'Fair reasonable value' shall not include
any profit to the employer or to any person affiliated with the employer.
Zuellig argues that if it were really the intention of the Labor Code as well as its implementing rules
to include commission in the computation of separation pay, it could have explicitly said so in clear
and unequivocal terms. Furthermore, in the definition of the term "wage", "commission" is used only
as one of the features or designations attached to the word remuneration or earnings.
Insofar as the issue of whether or not allowances should be included in the monthly salary of
petitioners for the purpose of computation of their separation pay is concerned, this has been settled
in the case of Santos v. NLRC, et al., G.R. No. 76721, September 21, 1987, 154 SCRA 166, where
We ruled that "in the computation of backwages and separation pay, account must be taken not only
of the basic salary of petitioner but also of her transportation and emergency living allowances." This
ruling was reiterated in Soriano v. NLRC, et al., G.R. No. 75510, October 27, 1987, 155 SCRA 124
and recently, in Planters Products, Inc. v. NLRC, et al., G.R. No. 78524, January 20, 1989.
We shall concern ourselves now with the issue of whether or not earned sales commission should
be included in the monthly salary of petitioner for the purpose of computation of their separation pay.
Article 97(f) by itself is explicit that commission is included in the definition of the term "wage". It has
been repeatedly declared by the courts that where the law speaks in clear and categorical language,
there is no room for interpretation or construction; there is only room for application (Cebu Portland
Cement Co. v. Municipality of Naga, G.R. Nos. 24116-17, August 22, 1968, 24 SCRA 708; Gonzaga
v. Court of Appeals, G.R.No. L-2 7455, June 28,1973, 51 SCRA 381). A plain and unambiguous
statute speaks for itself, and any attempt to make it clearer is vain labor and tends only to obscurity.
How ever, it may be argued that if We correlate Article 97(f) with Article XIV of the Collective
Bargaining Agreement, Article 284 of the Labor Code and Sections 9(b) and 10 of the Implementing
Rules, there appears to be an ambiguity. In this regard, the Labor Arbiter rationalized his decision in
this manner (pp. 74-76, Rollo):
The definition of 'wage' provided in Article 96 (sic) of the Code can be correctly be
(sic) stated as a general definition. It is 'wage ' in its generic sense. A careful perusal
of the same does not show any indication that commission is part of salary. We can
say that commission by itself may be considered a wage. This is not something novel
for it cannot be gainsaid that certain types of employees like agents, field personnel
and salesmen do not earn any regular daily, weekly or monthly salaries, but rely
mainly on commission earned.
Upon the other hand, the provisions of Section 10, Rule 1, Book VI of the
implementing rules in conjunction with Articles 273 and 274 (sic) of the Code
specifically states that the basis of the termination pay due to one who is sought to
be legally separated from the service is 'his latest salary rates.
x x x.
Even Articles 273 and 274 (sic) invariably use 'monthly pay or monthly salary'.
The above terms found in those Articles and the particular Rules were intentionally
used to express the intent of the framers of the law that for purposes of separation
pay they mean to be specifically referring to salary only.
.... Each particular benefit provided in the Code and other Decrees on Labor has its
own pecularities and nuances and should be interpreted in that light. Thus, for a
specific provision, a specific meaning is attached to simplify matters that may arise
there from. The general guidelines in (sic) the formation of specific rules for particular
purpose. Thus, that what should be controlling in matters concerning termination pay
should be the specific provisions of both Book VI of the Code and the Rules. At any
rate, settled is the rule that in matters of conflict between the general provision of law
and that of a particular- or specific provision, the latter should prevail.
On its part, the NLRC ruled (p. 110, Rollo):
From the aforequoted provisions of the law and the implementing rules, it could be
deduced that wage is used in its generic sense and obviously refers to the basic
wage rate to be ascertained on a time, task, piece or commission basis or other
method of calculating the same. It does not, however, mean that commission,
allowances or analogous income necessarily forms part of the employee's salary
because to do so would lead to anomalies (sic), if not absurd, construction of the
word "salary." For what will prevent the employee from insisting that emergency
living allowance, 13th month pay, overtime, and premium pay, and other fringe
benefits should be added to the computation of their separation pay. This situation, to
our mind, is not the real intent of the Code and its rules.
We rule otherwise. The ambiguity between Article 97(f), which defines the term 'wage' and Article
XIV of the Collective Bargaining Agreement, Article 284 of the Labor Code and Sections 9(b) and 10
of the Implementing Rules, which mention the terms "pay" and "salary", is more apparent than real.
Broadly, the word "salary" means a recompense or consideration made to a person for his pains or
industry in another man's business. Whether it be derived from "salarium," or more fancifully from
"sal," the pay of the Roman soldier, it carries with it the fundamental idea of compensation for
services rendered. Indeed, there is eminent authority for holding that the words "wages" and "salary"
are in essence synonymous (Words and Phrases, Vol. 38 Permanent Edition, p. 44 citing Hopkins
vs. Cromwell, 85 N.Y.S. 839,841,89 App. Div. 481; 38 Am. Jur. 496). "Salary," the etymology of
which is the Latin word "salarium," is often used interchangeably with "wage", the etymology of
which is the Middle English word "wagen". Both words generally refer to one and the same meaning,
that is, a reward or recompense for services performed. Likewise, "pay" is the synonym of "wages"
and "salary" (Black's Law Dictionary, 5th Ed.). Inasmuch as the words "wages", "pay" and "salary"
have the same meaning, and commission is included in the definition of "wage", the logical
conclusion, therefore, is, in the computation of the separation pay of petitioners, their salary base
should include also their earned sales commissions.
The aforequoted provisions are not the only consideration for deciding the petition in favor of the
petitioners.
We agree with the Solicitor General that granting, in gratia argumenti, that the commissions were in
the form of incentives or encouragement, so that the petitioners would be inspired to put a little more
industry on the jobs particularly assigned to them, still these commissions are direct remuneration
services rendered which contributed to the increase of income of Zuellig . Commission is the
recompense, compensation or reward of an agent, salesman, executor, trustees, receiver, factor,
broker or bailee, when the same is calculated as a percentage on the amount of his transactions or
on the profit to the principal (Black's Law Dictionary, 5th Ed., citing Weiner v. Swales, 217 Md. 123,
141 A.2d 749, 750). The nature of the work of a salesman and the reason for such type of
remuneration for services rendered demonstrate clearly that commission are part of petitioners'
wage or salary. We take judicial notice of the fact that some salesmen do not receive any basic
salary but depend on commissions and allowances or commissions alone, are part of petitioners'
wage or salary. We take judicial notice of the fact that some salesman do not received any basic
salary but depend on commissions and allowances or commissions alone, although an employer-
employee relationship exists. Bearing in mind the preceeding dicussions, if we adopt the opposite
view that commissions, do not form part of wage or salary, then, in effect, We will be saying that this
kind of salesmen do not receive any salary and therefore, not entitled to separation pay in the event
of discharge from employment. Will this not be absurd? This narrow interpretation is not in accord
with the liberal spirit of our labor laws and considering the purpose of separation pay which is, to
alleviate the difficulties which confront a dismissed employee thrown the the streets to face the harsh
necessities of life.
Additionally, in Soriano v. NLRC, et al., supra, in resolving the issue of the salary base that should
be used in computing the separation pay, We held that:
The commissions also claimed by petitioner ('override commission' plus 'net deposit
incentive') are not properly includible in such base figure since such commissions
must be earned by actual market transactions attributable to petitioner.
Applying this by analogy, since the commissions in the present case were earned by actual market
transactions attributable to petitioners, these should be included in their separation pay. In the
computation thereof, what should be taken into account is the average commissions earned during
their last year of employment.
The final consideration is, in carrying out and interpreting the Labor Code's provisions and its
implementing regulations, the workingman's welfare should be the primordial and paramount
consideration. This kind of interpretation gives meaning and substance to the liberal and
compassionate spirit of the law as provided for in Article 4 of the Labor Code which states that "all
doubts in the implementation and interpretation of the provisions of the Labor Code including its
implementing rules and regulations shall be resolved in favor of labor" (Abella v. NLRC, G.R. No.
71812, July 30,1987,152 SCRA 140; Manila Electric Company v. NLRC, et al., G.R. No. 78763, July
12,1989), and Article 1702 of the Civil Code which provides that "in case of doubt, all labor
legislation and all labor contracts shall be construed in favor of the safety and decent living for the
laborer.
ACCORDINGLY, the petition is hereby GRANTED. The decision of the respondent National Labor
Relations Commission is MODIFIED by including allowances and commissions in the separation pay
of petitioners Jose Songco and Amancio Manuel. The case is remanded to the Labor Arbiter for the
proper computation of said separation pay.
G.R. No. 76633 October 18, 1988

EASTERN SHIPPING LINES, INC., petitioner,
vs.
PHILIPPINE OVERSEAS EMPLOYMENT ADMINISTRATION (POEA), MINISTER OF LABOR
AND EMPLOYMENT, HEARING OFFICER ABDUL BASAR and KATHLEEN D.
SACO, respondents.
Jimenea, Dala & Zaragoza Law Office for petitioner.
The Solicitor General for public respondent.
Dizon Law Office for respondent Kathleen D. Saco.
CRUZ, J.:
The private respondent in this case was awarded the sum of P192,000.00 by the Philippine
Overseas Employment Administration (POEA) for the death of her husband. The decision is
challenged by the petitioner on the principal ground that the POEA had no jurisdiction over the case
as the husband was not an overseas worker.
Vitaliano Saco was Chief Officer of the M/V Eastern Polaris when he was killed in an accident in
Tokyo, Japan, March 15, 1985. His widow sued for damages under Executive Order No. 797 and
Memorandum Circular No. 2 of the POEA. The petitioner, as owner of the vessel, argued that the
complaint was cognizable not by the POEA but by the Social Security System and should have been
filed against the State Insurance Fund. The POEA nevertheless assumed jurisdiction and after
considering the position papers of the parties ruled in favor of the complainant. The award consisted
of P180,000.00 as death benefits and P12,000.00 for burial expenses.
The petitioner immediately came to this Court, prompting the Solicitor General to move for dismissal
on the ground of non-exhaustion of administrative remedies.
Ordinarily, the decisions of the POEA should first be appealed to the National Labor Relations
Commission, on the theory inter alia that the agency should be given an opportunity to correct the
errors, if any, of its subordinates. This case comes under one of the exceptions, however, as the
questions the petitioner is raising are essentially questions of law. 1 Moreover, the private respondent
himself has not objected to the petitioner's direct resort to this Court, observing that the usual procedure
would delay the disposition of the case to her prejudice.
The Philippine Overseas Employment Administration was created under Executive Order No. 797,
promulgated on May 1, 1982, to promote and monitor the overseas employment of Filipinos and to
protect their rights. It replaced the National Seamen Board created earlier under Article 20 of the
Labor Code in 1974. Under Section 4(a) of the said executive order, the POEA is vested with
"original and exclusive jurisdiction over all cases, including money claims, involving employee-
employer relations arising out of or by virtue of any law or contract involving Filipino contract
workers, including seamen." These cases, according to the 1985 Rules and Regulations on
Overseas Employment issued by the POEA, include "claims for death, disability and other benefits"
arising out of such employment. 2
The petitioner does not contend that Saco was not its employee or that the claim of his widow is not
compensable. What it does urge is that he was not an overseas worker but a 'domestic employee
and consequently his widow's claim should have been filed with Social Security System, subject to
appeal to the Employees Compensation Commission.
We see no reason to disturb the factual finding of the POEA that Vitaliano Saco was an overseas
employee of the petitioner at the time he met with the fatal accident in Japan in 1985.
Under the 1985 Rules and Regulations on Overseas Employment, overseas employment is defined
as "employment of a worker outside the Philippines, including employment on board vessels plying
international waters, covered by a valid contract. 3 A contract worker is described as "any person
working or who has worked overseas under a valid employment contract and shall include seamen" 4 or
"any person working overseas or who has been employed by another which may be a local employer,
foreign employer, principal or partner under a valid employment contract and shall include
seamen." 5 These definitions clearly apply to Vitaliano Saco for it is not disputed that he died while under
a contract of employment with the petitioner and alongside the petitioner's vessel, the M/V Eastern
Polaris, while berthed in a foreign country. 6
It is worth observing that the petitioner performed at least two acts which constitute implied or tacit
recognition of the nature of Saco's employment at the time of his death in 1985. The first is its
submission of its shipping articles to the POEA for processing, formalization and approval in the
exercise of its regulatory power over overseas employment under Executive Order NO. 797. 7 The
second is its payment 8 of the contributions mandated by law and regulations to the Welfare Fund for
Overseas Workers, which was created by P.D. No. 1694 "for the purpose of providing social and welfare
services to Filipino overseas workers."
Significantly, the office administering this fund, in the receipt it prepared for the private respondent's
signature, described the subject of the burial benefits as "overseas contract worker Vitaliano
Saco." 9 While this receipt is certainly not controlling, it does indicate, in the light of the petitioner's own
previous acts, that the petitioner and the Fund to which it had made contributions considered Saco to be
an overseas employee.
The petitioner argues that the deceased employee should be likened to the employees of the
Philippine Air Lines who, although working abroad in its international flights, are not considered
overseas workers. If this be so, the petitioner should not have found it necessary to submit its
shipping articles to the POEA for processing, formalization and approval or to contribute to the
Welfare Fund which is available only to overseas workers. Moreover, the analogy is hardly
appropriate as the employees of the PAL cannot under the definitions given be considered seamen
nor are their appointments coursed through the POEA.
The award of P180,000.00 for death benefits and P12,000.00 for burial expenses was made by the
POEA pursuant to its Memorandum Circular No. 2, which became effective on February 1, 1984.
This circular prescribed a standard contract to be adopted by both foreign and domestic shipping
companies in the hiring of Filipino seamen for overseas employment. A similar contract had earlier
been required by the National Seamen Board and had been sustained in a number of cases by this
Court. 10 The petitioner claims that it had never entered into such a contract with the deceased Saco, but
that is hardly a serious argument. In the first place, it should have done so as required by the circular,
which specifically declared that "all parties to the employment of any Filipino seamen on board any
ocean-going vessel are advised to adopt and use this employment contract effective 01 February 1984
and to desist from using any other format of employment contract effective that date." In the second
place, even if it had not done so, the provisions of the said circular are nevertheless deemed written into
the contract with Saco as a postulate of the police power of the State. 11
But the petitioner questions the validity of Memorandum Circular No. 2 itself as violative of the
principle of non-delegation of legislative power. It contends that no authority had been given the
POEA to promulgate the said regulation; and even with such authorization, the regulation represents
an exercise of legislative discretion which, under the principle, is not subject to delegation.
The authority to issue the said regulation is clearly provided in Section 4(a) of Executive Order No.
797, reading as follows:
... The governing Board of the Administration (POEA), as hereunder provided shall
promulgate the necessary rules and regulations to govern the exercise of the
adjudicatory functions of the Administration (POEA).
Similar authorization had been granted the National Seamen Board, which, as earlier observed, had
itself prescribed a standard shipping contract substantially the same as the format adopted by the
POEA.
The second challenge is more serious as it is true that legislative discretion as to the substantive
contents of the law cannot be delegated. What can be delegated is the discretion to
determine how the law may be enforced, not whatthe law shall be. The ascertainment of the latter
subject is a prerogative of the legislature. This prerogative cannot be abdicated or surrendered by
the legislature to the delegate. Thus, in Ynot v. Intermediate Apellate Court 12 which annulled
Executive Order No. 626, this Court held:
We also mark, on top of all this, the questionable manner of the disposition of the
confiscated property as prescribed in the questioned executive order. It is there
authorized that the seized property shall be distributed to charitable institutions and
other similar institutions as the Chairman of the National Meat Inspection
Commission may see fit, in the case of carabaos.' (Italics supplied.) The phrase "may
see fit" is an extremely generous and dangerous condition, if condition it is. It is laden
with perilous opportunities for partiality and abuse, and even corruption. One
searches in vain for the usual standard and the reasonable guidelines, or better still,
the limitations that the officers must observe when they make their distribution. There
is none. Their options are apparently boundless. Who shall be the fortunate
beneficiaries of their generosity and by what criteria shall they be chosen? Only the
officers named can supply the answer, they and they alone may choose the grantee
as they see fit, and in their own exclusive discretion. Definitely, there is here a 'roving
commission a wide and sweeping authority that is not canalized within banks that
keep it from overflowing,' in short a clearly profligate and therefore invalid delegation
of legislative powers.
There are two accepted tests to determine whether or not there is a valid delegation of legislative
power, viz, the completeness test and the sufficient standard test. Under the first test, the law must
be complete in all its terms and conditions when it leaves the legislature such that when it reaches
the delegate the only thing he will have to do is enforce it. 13 Under the sufficient standard test, there
must be adequate guidelines or stations in the law to map out the boundaries of the delegate's authority
and prevent the delegation from running riot. 14
Both tests are intended to prevent a total transference of legislative authority to the delegate, who is
not allowed to step into the shoes of the legislature and exercise a power essentially legislative.
The principle of non-delegation of powers is applicable to all the three major powers of the
Government but is especially important in the case of the legislative power because of the many
instances when its delegation is permitted. The occasions are rare when executive or judicial powers
have to be delegated by the authorities to which they legally certain. In the case of the legislative
power, however, such occasions have become more and more frequent, if not necessary. This had
led to the observation that the delegation of legislative power has become the rule and its non-
delegation the exception.
The reason is the increasing complexity of the task of government and the growing inability of the
legislature to cope directly with the myriad problems demanding its attention. The growth of society
has ramified its activities and created peculiar and sophisticated problems that the legislature cannot
be expected reasonably to comprehend. Specialization even in legislation has become necessary.
To many of the problems attendant upon present-day undertakings, the legislature may not have the
competence to provide the required direct and efficacious, not to say, specific solutions. These
solutions may, however, be expected from its delegates, who are supposed to be experts in the
particular fields assigned to them.
The reasons given above for the delegation of legislative powers in general are particularly
applicable to administrative bodies. With the proliferation of specialized activities and their attendant
peculiar problems, the national legislature has found it more and more necessary to entrust to
administrative agencies the authority to issue rules to carry out the general provisions of the statute.
This is called the "power of subordinate legislation."
With this power, administrative bodies may implement the broad policies laid down in a statute by
"filling in' the details which the Congress may not have the opportunity or competence to provide.
This is effected by their promulgation of what are known as supplementary regulations, such as the
implementing rules issued by the Department of Labor on the new Labor Code. These regulations
have the force and effect of law.
Memorandum Circular No. 2 is one such administrative regulation. The model contract prescribed
thereby has been applied in a significant number of the cases without challenge by the employer.
The power of the POEA (and before it the National Seamen Board) in requiring the model contract is
not unlimited as there is a sufficient standard guiding the delegate in the exercise of the said
authority. That standard is discoverable in the executive order itself which, in creating the Philippine
Overseas Employment Administration, mandated it to protect the rights of overseas Filipino workers
to "fair and equitable employment practices."
Parenthetically, it is recalled that this Court has accepted as sufficient standards "Public interest"
in People v. Rosenthal 15 "justice and equity" in Antamok Gold Fields v. CIR 16 "public convenience and
welfare" in Calalang v. Williams 17 and "simplicity, economy and efficiency" in Cervantes v. Auditor
General, 18 to mention only a few cases. In the United States, the "sense and experience of men" was
accepted in Mutual Film Corp. v. Industrial Commission, 19 and "national security" in Hirabayashi v. United
States. 20
It is not denied that the private respondent has been receiving a monthly death benefit pension of
P514.42 since March 1985 and that she was also paid a P1,000.00 funeral benefit by the Social
Security System. In addition, as already observed, she also received a P5,000.00 burial gratuity from
the Welfare Fund for Overseas Workers. These payments will not preclude allowance of the private
respondent's claim against the petitioner because it is specifically reserved in the standard contract
of employment for Filipino seamen under Memorandum Circular No. 2, Series of 1984, that
Section C. Compensation and Benefits.
1. In case of death of the seamen during the term of his Contract, the employer shall
pay his beneficiaries the amount of:
a. P220,000.00 for master and chief engineers
b. P180,000.00 for other officers, including radio operators and

master electrician
c. P 130,000.00 for ratings.
2. It is understood and agreed that the benefits mentioned above shall be separate
and distinct from, and will be in addition to whatever benefits which the seaman is
entitled to under Philippine laws. ...
3. ...
c. If the remains of the seaman is buried in the Philippines, the

owners shall pay the beneficiaries of the seaman an amount not
exceeding P18,000.00 for burial expenses.
The underscored portion is merely a reiteration of Memorandum Circular No. 22, issued by the
National Seamen Board on July 12,1976, providing an follows:
Income Benefits under this Rule Shall be Considered Additional Benefits.
All compensation benefits under Title II, Book Four of the Labor Code of the
Philippines (Employees Compensation and State Insurance Fund) shall be granted,
in addition to whatever benefits, gratuities or allowances that the seaman or his
beneficiaries may be entitled to under the employment contract approved by the
NSB. If applicable, all benefits under the Social Security Law and the Philippine
Medicare Law shall be enjoyed by the seaman or his beneficiaries in accordance
with such laws.
The above provisions are manifestations of the concern of the State for the working class,
consistently with the social justice policy and the specific provisions in the Constitution for the
protection of the working class and the promotion of its interest.
One last challenge of the petitioner must be dealt with to close t case. Its argument that it has been
denied due process because the same POEA that issued Memorandum Circular No. 2 has also
sustained and applied it is an uninformed criticism of administrative law itself. Administrative
agencies are vested with two basic powers, the quasi-legislative and the quasi-judicial. The first
enables them to promulgate implementing rules and regulations, and the second enables them to
interpret and apply such regulations. Examples abound: the Bureau of Internal Revenue adjudicates
on its own revenue regulations, the Central Bank on its own circulars, the Securities and Exchange
Commission on its own rules, as so too do the Philippine Patent Office and the Videogram
Regulatory Board and the Civil Aeronautics Administration and the Department of Natural Resources
and so on ad infinitum on their respective administrative regulations. Such an arrangement has been
accepted as a fact of life of modern governments and cannot be considered violative of due process
as long as the cardinal rights laid down by Justice Laurel in the landmark case of Ang Tibay v. Court
of Industrial Relations 21 are observed.
Whatever doubts may still remain regarding the rights of the parties in this case are resolved in favor
of the private respondent, in line with the express mandate of the Labor Code and the principle that
those with less in life should have more in law.
When the conflicting interests of labor and capital are weighed on the scales of social justice, the
heavier influence of the latter must be counter-balanced by the sympathy and compassion the law
must accord the underprivileged worker. This is only fair if he is to be given the opportunity and the
right to assert and defend his cause not as a subordinate but as a peer of management, with which
he can negotiate on even plane. Labor is not a mere employee of capital but its active and equal
partner.
WHEREFORE, the petition is DISMISSED, with costs against the petitioner. The temporary
restraining order dated December 10, 1986 is hereby LIFTED. It is so ordered.
[G.R. No. 116629. January 16, 1998]

NFD INTERNATIONAL MANNING AGENTS and BARBER
INTERNATIONAL A/S, petitioners, vs. THE NATIONAL LABOR
RELATIONS COMMISSION and NELIA MISADA, for herself and in
behalf of her minor children CAESAR and ALPHA JOY, all
surnamed MISADA and HIMAYA ENVIDIADO, for herself and in
behalf of her minor children HENREA, HAZEL, and HENDRICK, all
surnamed ENVIDIADO, respondents.
DECISION
PUNO, J.:
This special civil action for certiorari seeks to annul and set aside the decision dated
April 25, 1994 of the National Labor Relations Commission which ordered petitioners to
pay a total of U.S.$26,641.42 as death benefits to private respondents.
Petitioner NFD International Manning Agents, Inc., a
domestic manning corporation, engaged the services of Eduardo
P. Misada and Enrico A. Envidiado to work for petitioner Barber International
A/S (Barber), a Norwegian shipping company. Misada and Envidiado were hired as
second and third officers, respectively, on board the vessel M/V Pan Victoria. They were
to travel from Sweden to South Korea for a period of ten months from January 1991 to
November 1991.
On July 5, 1991, private respondent Nelia Misada received notice that her husband,
Eduardo Misada, died on June 28, 1991 while on board the M/V Pan Victoria. On July 12,
1991, private respondent Himaya Envidiado likewise received notice that her husband,
Enrico Envidiado, died on board the vessel.
As heirs of the deceased seamen, private respondents, in their behalf and in behalf
of their minor children, filed for death compensation benefits under the Philippine
Overseas Employment Agency (POEA) Standard Contract of Employment and the
Norwegian National Insurance Scheme (NIS) for Filipino Officers. Their claims were
denied by petitioners.
Private respondents filed separate complaints before the POEA Adjudication Office.
They prayed for U.S.$13,000.00 each as death compensation under the POEA Standard
Contract of Employment and U.S.$30,000.00 for each wife and U.S.$8,000.00 for each
child under eighteen years under the Norwegian NIS.[1]
In their Answer, petitioners claimed that private respondents are not entitled to death
benefits on the ground that the seamen's deaths were due to their own willful act. They
alleged that the deceased were among three (3) Filipino seamen who implanted
fragments of reindeer horn in their respective sexual organs on or about June 18,
1991; that due to the lack of sanitary conditions at the time and place of implantation, all
three seamen suffered "severe tetanus" and "massive viral infections;" that Misada and
Envidiado died within days of the other; that the third seaman, Arturo Fajardo, narrowly
missed death only because the vessel was at port in Penang, Malaysia at the time the
tetanus became critical.[2]
The complaints were consolidated and the parties filed their respective position
papers and documentary evidence. On October 20, 1993, the POEA Administrator
dismissed the case for lack of merit.
Private respondents appealed to respondent Commission. During the pendency of
the appeal, private respondents submitted additional documentary evidence in support of
their Memorandum on Appeal.
On April 25, 1994, respondent Commission reversed the POEA Administrator and
ordered petitioners to pay private respondents the following:
"(a) To complainant Nelia F. Misada and her two minor children, Julius Caesar
and Alpha Joy, all surnamed Misada:
(1) Death compensation of U.S.$13,000.00 under the POEA Standard Format;
(b) To complainant Himaya G. Envidiado and her three (3) minor children,
Henrea, Hazel and Hendrick, all surnamed Envidiado;
(1) Death compensation of U.S.$13,000.00 under the provisions of the POEA

Rules and Regulations; and
(2) Backwages as of July 1991 amounting to U.S.$641.42 or its peso

equivalent.
SO ORDERED." [3]
Hence this petition. Petitioners claim that:

"I
FIRSTLY, THE NLRC COMMITTED GRAVE ABUSE OF DISCRETION IN

CONSIDERING DOCUMENTS WHICH DO NOT FORM PART OF THE
EVIDENCE IN THE INSTANT CASE, THEREBY DEPRIVING PETITIONERS
OF DUE PROCESS;
II
SECONDLY, THE NLRC COMMITTED GRAVE ABUSE OF DISCRETION

WHEN IT OVERTURNED WHAT HAS BEEN ESTABLISHED BY
CIRCUMSTANTIAL AND DOCUMENTARY EVIDENCE ON THE BASIS OF
DOCUMENTS WHICH AT BEST ARE HEARSAY; and
III
THIRDLY, THE NLRC COMMITTED GRAVE ABUSE OF DISCRETION IN

REVERSING THE POEA DECISION ON THE BASIS OF DOCUMENTS
WHICH AT BEST ARE NOT CONCLUSIVE AS TO THE CAUSE OF DEATH
OF SUBJECT SEAMEN." [4]
Petitioners claim respondent Commission gravely abused its discretion in admitting

private respondent's additional evidence on appeal. Petitioners allege that the additional
evidence were "surreptitiously" submitted in violation of petitioner's right to due process.
The submission of additional evidence before the respondent Commission is not
prohibited by the New Rules of Procedure of the NLRC. After all, rules of evidence
prevailing in courts of law or equity are not controlling in labor cases.[5] The NLRC and
labor arbiters are directed to use every and all reasonable means to ascertain the facts
in each case speedily and objectively, without regard to technicalities of law and
procedure all in the interest of substantial justice.[6] In keeping with this directive, it has
been held that the NLRC may consider evidence, such as documents and affidavits,
submitted by the parties for the first time on appeal.[7] The submission of additional
evidence on appeal does not prejudice the other party for the latter could submit counter-
evidence.[8]
In the case at bar, the additional evidence was submitted by private respondents
before the respondent Commission in their Memorandum on Appeal dated November 8,
1993. The decision of respondent Commission was rendered on April 25, 1994, i.e., six
(6) months after the additional documents were submitted. Petitioners had ample
opportunity to object and refute the documents. They had the chance to submit counter-
evidence during this period but they did not do so. It was only when they moved for
reconsideration of the decision of respondent Commission that they questioned the
admission of these evidence.
The essence of due process is simply an opportunity to be heard, or as applied to
administrative proceedings, a fair and reasonable opportunity to explain one's side. [9] It is
also an opportunity to seek a reconsideration of the action or ruling complained of. [10] It is
not the denial of the right to be heard but denial of the opportunity to be heard that
constitutes violation of due process of law.[11]
Procedural matters having been disposed of, the substantive issue in this case is
whether respondent Commission gravely erred in finding that the deaths of the two
seamen, Eduardo Misada and Enrico Envidiado, did not come as a result of their willful
and deliberate act.
Part II, Section C, No. 1, Paragraph 1 of the POEA "Standard Employment Contract
Governing the Employment of All Filipino Seamen on Board Ocean-Going
Vessels"[12] provides that:
"1. In case of death of the seaman during the term of this Contract, the
employer shall pay his beneficiaries the Philippine Currency equivalent to the
amount of U.S.$50,000.00 and an additional amount of U.S.$7,000.00 to each
child under the age of twenty-one (21) but not exceeding four children at the
exchange rate prevailing during the time of payment.
x x x."[13]
Part II, Section C, No. 6 of the same Standard Employment Contract also provides:
"6. No compensation shall be payable in respect of any injury, incapacity,

disability or death resulting from a willful act on his own life by the seaman,
provided, however, that the employer can prove that such injury, incapacity,
disability or death is directly attributable to him." [14]
The death of a seaman during the term of his employment makes the employer liable
to the former's heirs for death compensation benefits. The POEA Standard Employment
Contract fixes the amount at U.S.$50,000.00 and an additional amount of U.S.$7,000.00
for each child, not exceeding four, under twenty-one years of age. The employer becomes
liable once it is established that the seaman died during the effectivity of his employment
contract. This rule, however, is not absolute. The employer may be exempt from liability
if he can successfully prove that the seaman's death was caused by an injury directly
attributable to his deliberate or willful act.[15]
In the instant case, petitioners claim that the deaths of the two seamen came as a
result of their self-inflicted injuries. As proof, petitioners presented written statements from
the master of the M/V Pan Victoria, the medical reports of Misada, Envidiado and Arturo
Fajardo, the seaman who survived the infection, and the written statements of three (3)
officers of the vessel taken during a special inquiry conducted after their deaths.
Petitioners contend that Misada and Envidiado and Arturo Fajardo implanted
fragments of the horn of a reindeer or antelope in their respective sexual organs while on
a voyage on board the M/V Pan Victoria.The horn was left by a Greek officer from a
previous voyage. Misada found the horn and asked for it from the Chief Officer. Misada
gave the horn to the Second Engineer to carve and shape for implantation.Thereafter,
shaped fragments of the horn were inserted by Misada and Envidiado subcutaneously
into their respective sex organs on June 19, 1991 while that of Fajardo was implanted two
or three days later. The implantations were made surgically in the absence of sanitary
and sterile facilities.
Several days later, Misada complained of difficulty in swallowing and breathing. He
had severe tonsillitis and was suffering from spasms and convulsions.[16] The ship captain
was compelled to alter course and drop anchor at Colombo, Sri Lanka for medical
treatment.[17] Misada, however, died on board the vessel on June 28, 1991. His dead body
was examined at the Colombo General Hospital, Colombo, Sri Lanka, where the cause
of his death was placed as "acute laryngo-trachea bronchitis with pneumonia due to viral
infection."[18]
It was after the vessel left Colombo on June 30, 1991 that Envidiado started exhibiting
the same symptoms as Misada. The ship captain had to drop anchor at the nearest port
which was Galle, Sri Lanka.[19]Envidiado was brought ashore and admitted to hospital. He
died a few days later.
On July 3, 1991, Arturo Fajardo started exhibiting the same symptoms as the two
other seamen. On inquiry, the master of the vessel learned that Misada, Envidiado and
Fajardo implanted pieces of reindeer horn in their sex organs. Fajardo's condition
worsened and the master was compelled to drop anchor at Penang, Malaysia where
Fajardo was admitted to hospital on July 5, 1991. He was diagnosed to be suffering from
tetanus and given medication for said illness. Fajardo recovered two weeks later. [20]
As a result of this chain of events, the master of the vessel conducted a formal inquiry
to verify the cause of the seamen's deaths and illness. Written testimonies as to the
events leading to their deaths were taken from the master, the Chief Officer, Second
Engineer and Second Cook.
The testimonies of the officers are insufficient to prove the fact that Misada's and
Envidiado's deaths were caused by self-inflicted injuries. The testimonies were given by
people who merely observed and narrated the circumstances surrounding the deaths of
the two seamen and the illness of Fajardo. Fajardo himself did not submit any testimony
regarding the implantation. The testimonies of the officers are, at best,
hearsay. Moreover, the officers did not have the competence to make a medical finding
as to the actual cause of the deaths. No autopsy report was presented to corroborate
their testimonies. On the contrary, Eduardo Misada was medically diagnosed to have died
of "acute laryngo-trachea bronchitis with pneumonia probably due to viral cause."[21] This
was declared in his "Cause of Death Form" after his dead body was examined on June
29, 1991 by Dr. Sydney Prematirat, a Judicial Medical Officer at Colombo, Sri Lanka.
Enrico Envidiado was not issued a "Cause of Death Form." While still alive, he was
examined in Galle, Sri Lanka by Consultant Physician Chandima de Mel who found a
wound in his penis and diagnosed his illness as "severe tetanus." [22] His "Certificate for
Removal of A Dead Body" dated July 8, 1991 issued by Dr. T.L. Seneviratne, Chief
Medical Officer of Health, Municipal Council, Colombo, Sri Lanka,[23] and "Certificate of
Embalming" dated July 8, 1991 issued by Keith Anthony Raymond[24] stated that Envidiado
died of "viral myocarditis-- natural causes."
The "Certificate for Removal of a Dead Body" and "Certificate of Embalming" are not
proofs of the real cause of death. Their probative value is confined only to the fact of
death.[25] These documentary evidence, however, did not at all indicate that Envidiado died
of tetanus as previously diagnosed by Dr. de Mel. And despite Dr. de Mel's allegedly
correct diagnosis, Envidiado died a few days later.
As correctly found by respondent Commission, petitioners' evidence insufficiently
proves the fact that the deaths of the two seamen were caused by their own willful and
deliberate act. And even if the seamen implanted fragments of reindeer horn in their sex
organs, the evidence does not substantially prove that they contracted tetanus as a result
of the unsanitary surgical procedures they performed on their bodies.Neither does the
evidence show that the tetanus was the direct cause of their deaths.
IN VIEW WHEREOF, the petition is dismissed and the decision of respondent
National Labor Relations Commission in NLRC CA No. 006490-94 is affirmed.
SECOND DIVISION
JESUS E. VERGARA, G.R. No. 172933
Petitioner,
Present:
QUISUMBING, J., Chairperson,

CARPIO MORALES,
- versus - TINGA,
VELASCO, JR., and
BRION, JJ.
Promulgated:
HAMMONIA MARITIME
SERVICES, INC. and ATLANTIC October 6, 2008
MARINE LTD.,
Respondents.
x -------------------------------------------------------------------------------------------x
DECISION
BRION, J.:
Seaman Jesus E. Vergara (petitioner) comes to us through this Petition for Review
on Certiorari[1] with the plea that we set aside for being contrary to law and
jurisprudence the Decision[2]promulgated on March 14, 2005 and the
Resolution[3] promulgated on June 7, 2005 by the Court of Appeals (CA), both issued
in C.A.-G.R. SP No. 85347 entitled Jesus E. Vergara v. National Labor Relations
Commission, et al.
THE FACTUAL BACKGROUND
On April 4, 2000, petitioner was hired by respondent Hammonia Maritime

Services, Inc. (Hammonia) for its foreign principal, respondent Atlantic Marine Ltd.,
(Atlantic Marine). He was assigned to work on board the vessel British Valour under
contract for nine months, with a basic monthly salary of US$ 642.00.
The petitioner was a member of the Associated Marine Officers and

Seamans Union of the Philippines (AMOSUP). AMOSUP had a collective
bargaining agreement (CBA) with Atlantic Marine, represented in this case by
Hammonia.
The petitioner left the Philippines on April 15, 2000 to rendezvous with his
ship and to carry out therein his work as a pumpman. In August 2000, while
attending to a defective hydraulic valve, he felt he was losing his vision. He
complained to the Ship Captain that he was seeing black dots and hairy figures
floating in front of his right eye. His condition developed into a gradual visual loss.
The ships medical log entered his condition as internal bleeding in the eye or
glaucoma.[4] He was given eye drops to treat his condition.
The petitioner went on furlough in Port Galveston, Texas and consulted a physician
who diagnosed him to be suffering from vitreal hemorrhage with small defined area
of retinal traction. Differential diagnosis includes incomplete vitreal detachment
ruptured macro aneurism and valsulva retinopathy.[5] He was advised to see an
ophthalmologist when he returned home to the Philippines.
He was sent home on September 5, 2000 for medical treatment. The

company-designated physician, Dr. Robert D. Lim of the Marine Medical Services
of the Metropolitan Hospital, confirmed the correctness of the diagnosis at Port
Galveston, Texas. Dr. Lim then referred the petitioner to an ophthalmologist at
the Chinese General Hospital who subjected the petitioners eye to focal laser
treatment on November 13, 2000; vitrectomy with fluid gas exchange on December
7, 2000; and a second session of focal laser treatment on January 13, 2001.
On January 31, 2001, the ophthalmologist pronounced the petitioner fit to

resume his seafaring duties per the report of Dr. Robert D. Lim, Medical
Coordinator.[6] The petitioner then executed a certificate of fitness for work in the
presence of Dr. Lim.[7] Claiming that he continued to experience gradual visual loss
despite the treatment, he sought a second opinion from another ophthalmologist, Dr.
Patrick Rey R. Echiverri, who was not a company-designated physician. Dr.
Echiverri gave the opinion that the petitioner was not fit to work as a pumpman
because the job could precipitate the resurgence of his former condition.
On March 20, 2001, the petitioner submitted himself to another examination,

this time by Dr. Efren R. Vicaldo, a physician who was not also designated by the
company. Dr. Vicaldo opined that although the petitioner was fit to work, he had a
Grade X (20.15%) disability which he considered as permanent partial disability.
Armed with these two separate diagnoses, the petitioner demanded from his
employer payment of disability and sickness benefits, pursuant to the Philippine
Overseas Employment AdministrationStandard Employment Contract Governing
the Employment of all Filipino Seamen on Board Ocean-going Vessels (POEA
Standard Employment Contract), and the existing CBA in the company. The
company did not heed his demand, prompting the petitioner to file a complaint for
disability benefits, sickness allowance, damages and attorneys fees, docketed as
NLRC NCR OFW Case No. (M) 01-050809-00.
On January 14, 2003, Labor Arbiter Madjayran H. Ajan rendered a decision in the
petitioners favor.[8] The Arbiter ordered Hammonia and Atlantic Marine to pay the
petitioner, jointly and severally, sickness allowance of US$ 2,568.00 and disability
benefits of US$ 60,000.00 under the CBA, and 10% of the monetary award in
attorneys fees.
The respondents appealed to the National Labor Relations Commission

(NLRC) which rendered a decision on March 19, 2004 reversing the Labor Arbiters
ruling.[9] It dismissed the complaint on the ground that the petitioner had been
declared fit to resume sea duty and was not entitled to any disability benefit. By
resolution, the NLRC denied the petitioners motion for reconsideration.[10]
The petitioner thereafter sought relief from the CA via a petition

for certiorari under Rule 65 of the Rules of Court. The CA dismissed the petition in
a Decision promulgated on March 14, 2005,[11] and likewise denied the petitioners
motion for reconsideration.[12] Hence, the present petition.
THE PETITION
The petitioner contends that the CA erred in denying him disability benefits contrary
to existing jurisprudence, particularly the ruling of this Court in Crystal Shipping
Inc., A/S Stein Line Bergen v. Deo P. Natividad,[13] and, in strictly interpreting the
POEA Standard Employment Contract and the CBA between the parties on the
matter of who determines a seafarers disability.
The petitioner particularly questions the CA decision for giving credit to the
certification by the company-designated physician, Dr. Robert Lim, that declared
him fit to work.[14] On the assumption that he was indeed fit to work, he submits that
he should have been declared to be under permanent total disability because the fit-
to-work declaration was made more than 120 days after he suffered his disability.
The petitioner laments that the CA accorded much weight to the company-
designated physicians declaration that he was fit to work.[15] He considers this a strict
and parochial interpretation of the POEA Standard Employment Contract and the
CBA. While these documents provide that it is the company doctor who must certify
a seafarer as permanently unfit for further sea service, this literal interpretation, to
the petitioner, is absurd and contrary to public policy; its effect is to deny and deprive
the ailing seaman of his basic right to seek immediate attention from any competent
physician.He invokes in this regard our ruling in German Marine Agencies, Inc. et
al., v. National Labor Relations Commission.[16]
In a different vein, the petitioner impugns the pronouncement of Dr. Robert Lim, the
company-designated physician, that he was fit to resume sea duties as of January 31,
2001 since Dr. Lim did not personally operate on and attend to him when he was
treated; he had been under the care of an ophthalmologist since September 6,
2000. The petitioner points out that there is nothing in the record to substantiate the
correctness of Dr. Lims certification; neither did the attending eye specialist issue
any medical certification, progress report, diagnosis or prognosis on his eye
condition that could be the basis of Dr. Lims certification. The petitioner stresses
that Dr. Lims certification was not based on his first hand findings as it was
issued in his capacity as the Medical Coordinator of
the Metropolitan Hospital.[17] He also points out that Dr. Lim is not an eye specialist.
To the petitioner, it is the competence of the attending physician and not the
circumstance of his being company-designated that should be the key consideration
in determining the true status of the health of the patient/seaman. He seeks to rebut
Dr. Lims certification through the opinion of his private ophthalmologist, Dr. Patrick
Rey R. Echiverri that he would not advise him to do heavy work; he would not also
be able to perform tasks that require very detailed binocular vision as the right eyes
visual acuity could only be corrected to 20/30 and near vision to J3 at best. [18] The
petitioner likewise relies on the assessment and evaluation of Dr. Efren R. Vicaldo
that he suffers from partial permanent disability with a Grade X (20.15%)
impediment and is now unfit to work as a seaman.[19]
The petitioner disputes the respondent companies claim that he is no longer disabled
after his visual acuity had been restored to 20/20; it is fallacious because it views
disability more in its medical sense rather than on its effect on the earning capacity
of the seaman. Citing supporting jurisprudence, the petitioner posits that in disability
compensation, it is the inability to work resulting in the impairment of ones earning
capacity that is compensated, not the injury itself. He maintains that even if his visual
acuity is now 20/20 as alleged by the company-designated physician, he can
nevertheless no longer perform his customary work as pumpman on board an ocean-
going vessel since the job involves a lot of strain that could again cause his vitreous
hemorrhage. This limitation impairs his earning capacity so that he should be legally
deemed to have suffered permanent total disability from a work-related injury. In
this regard, the petitioner cites as
well his unions CBA[20] whose paragraph 20.1.5 provides that:
20.1.5 Permanent Medical Unfitness - A seafarer whose disability is assessed at

50% or more under the POEA Employment Contract shall, for the purpose
of this paragraph is regarded as permanently unfit for further sea service in
any capacity and entitled to 100% compensation, i.e., US$ 80,000 for
officers and US$ 60,000 for ratings. Furthermore, any seafarer assessed at
less than 50% disability under the Contract but certified as permanently
unfit for further sea services in any capacity by the company doctor, shall
also be entitled to 100% compensation.
Finally, the petitioner contends that because there is doubt as to the accuracy of the
medical opinion of the company-designated physician, the doubt should be resolved
in his favor, citing Sy v. Court of Appeals,[21] as well as Article 4 of the Labor
Code.[22]
THE CASE FOR RESPONDENTS
In a memorandum[23] filed on December 20, 2007, respondents Hammonia and

Atlantic Marine entreat this Court to dismiss the petition under the following
arguments:
1. The provisions of the POEA Standard Employment Contract and the CBA
between the parties clearly provide that the assessment of the company-designated
physician should be accorded respect.
2. There are no legal or factual bases for the petitioners claim of total and permanent
disability benefits as he was declared fit to work.
3. The petitioners reliance on the Crystal Shipping v. Natividad[24] case is misplaced.
4. The petitioner is not entitled to attorneys fees.
The respondents anchor their case on their compliance with the law and the existing
CBA as applied to the petitioners circumstances.
They point out that upon the petitioners repatriation, he was immediately referred to
an ophthalmologist who scheduled him for observation and regular monitoring
preparatory to possible vitrectomy. He was prescribed medication in the meantime.
On November 13, 2000, the petitioner underwent laser treatment of the right eye,
which he tolerated well. His vitrectomy, scheduled on November 22, 2000, was
deferred because he was noted to have accentuated bronchovascular marking on his
chest x-ray, and mild chronic obstructive pulmonary disease as revealed by his
pulmonary function test. He was given medication for his condition and was advised
to stop smoking.
The petitioner was cleared for surgery on November 29, 2000. He underwent
vitrectomy with fluid gas exchange and focal laser treatment of his affected eye
on December 7, 2000. He tolerated the procedure well. His condition stabilized and
he was discharged for management as an outpatient on December 9, 2000.
On December 13, 2000, the petitioners vision was 20/40 (r) and 20/20 (l) with
correction and slight congestion observed in his right eye. His vision improved to
20/25 (r) and 20/20 (l) by December 20, 2000 although a substantial lesion was
observed and contained by laser markings. This remained constant and by January
11, 2001, no sign of vitreous hemorrhage was noted on fundoscopy.
On January 13, 2001, petitioner underwent his second session of laser treatment and
he again tolerated the procedure well. By January 31, 2001, his visual acuity was
improved to 20/20 for both eyes, with correction. He was prescribed eyeglasses and
was found fit to resume his sea duties. The petitioner executed a certificate of fitness
for work under oath, witnessed by Dr. Robert Lim, the company-designated
physician who had declared the petitioner fit to work based on the opinion of the
handling eye specialist.[25]
The respondents anchor their objection to the grant of disability benefits on

Dr. Lims certification. They dispute the petitioners contention that the medical
certifications and assessments by the petitioners private physicians - Dr. Echiverri
and Dr. Vicaldo - should prevail.
The respondents object particularly to the petitioners claim that Dr. Lims
assessment is not authoritative because Dr. Lim does not appear to be an eye
specialist.[26] They point out that the issue of Dr. Lims qualifications and competence
was never raised at any level of the arbitration proceedings, and, therefore, should
not be entertained at this stage of review. They submit that if the petitioner truly
believed that the company-designated physician was incompetent, he should have
raised the matter at the earliest possible opportunity, or at the time he accepted Dr.
Lims assessment. On the contrary, they point out that the petitioner concurred with
the assessment of the company-designated physician by executing a certificate of
fitness to work.[27]
The respondents likewise question the petitioners reliance on Art. 20.1.5 of the CBA
for his claim that he is entitled to 100% disability compensation since his doctors,
Echiverri and Vicaldo, declared him unfit to work as a seaman although his disability
was determined to be only at Grade X (20.15%), a partial permanent disability. They
contend that the petitioners position is contrary to what the cited provision provides
as the CBA[28] specifically requires a company doctor to certify a seafarer as
permanently unfit for service in any capacity.
The respondents bewail the petitioners attempt to have this Court find him
permanently disabled because he was under the medication and care of the company-
designated physician for over four (4) months or more than 120 days. They cite
Section 20 B of petitioners POEA Standard Employment Contract whose relevant
portion states: [29]
3. Upon sign-off from vessel for medical treatment, the seafarer is entitled to
sickness allowance equivalent to his basic wage until he is declared fit to work or
the degree of his permanent disability has been assessed by the company-designated
physician, but in no case shall this period exceed one hundred twenty (120) days.
xxx
In case of permanent total or partial disability of the seafarer caused by either injury
or illness the seafarer shall be compensated in accordance with the schedule of
benefits enumerated in Section 30 of his Contract.
The respondents then point out that Section 30 provides a schedule of disability for
injuries, disease or illness contracted. Any item in the schedule classified under
Grade I constitutes total and permanent disability entitled to a disability allowance
equivalent to US$60,000 (US$50,000 x 120%). They consider reliance on this
Courts ruling in Crystal Shipping v. Natividad;[30] Government Service Insurance
System v. Cadiz;[31] and Ijares v. Court of Appeals,[32] to be misplaced with respect
to the advocated conversion of the petitioners medical condition from temporary to
permanent disability.
The respondents stress that in the present case, the petitioner had been accorded the
necessary medical treatment, including laser treatment by company-designated
physicians, that restored his visual acuity to 20/20. He was declared fit to work upon
his return to the full possession of all his physical and mental faculties and after he
was cleared of all impediments. They contend as well that all that the petitioner could
present in support of his claim for total permanent disability was the Grade X
disability assessment issued by his private physician, Dr. Vicaldo, that he is now
unfit to work as seaman. They point out that Dr. Vicaldo himself is not an eye
specialist.
Finally, the respondents insist that neither factual nor legal basis exists for petitioners
claim of Grade I total and permanent disability benefits. Factually, the petitioner was
declared fit to work by the company-designated physician. Legally, only blindness
or total and permanent loss of vision of both eyes is considered a Grade I disability
under the terms of the POEA Standard Employment Contract. Under its Section 30
on the portion on Eyes, only total and permanent loss of vision of both eyes can be
considered as Grade I disability, not the petitioners claimed impairment of vision in
the right eye.
THE COURTS RULING
We find no merit in the petition.
The Governing Law and Rules.
Entitlement to disability benefits by seamen on overseas work is a matter

governed, not only by medical findings but, by law and by contract. The material
statutory provisions are Articles 191 to 193 under Chapter VI (Disability Benefits) of
the Labor Code, in relation with Rule X of the Rules and Regulations Implementing
Book IV of the Labor Code. By contract, Department Order No. 4, series of 2000 of
the Department of Labor and Employment (the POEA Standard Employment
Contract) and the parties CBA bind the seaman and his employer to each other.
By way of background, the Department of Labor and Employment (DOLE),

through the POEA, has simplified the determination of liability for work-related
death, illness or injury in the case of Filipino seamen working
on foreign ocean-going vessels.[33] Every seaman and the vessel owner (directly or
represented by a local manning agency) are required to execute the POEA Standard
Employment Contract as a condition sine qua non prior to the deployment for
overseas work. The POEA Standard Employment Contract is supplemented by the
CBA between the owner of the vessel and the covered seamen.
A notable feature of the POEA Standard Employment Contract is Section 31
its provision on the Applicable Law. It provides:
Any unresolved dispute, claim or grievance arising out of or in connection with this
Contract, including the annexes shall be governed by the laws of the Republic of
the Philippines, international conventions, treaties and convenants where the
Philippines is a signatory.
Through this provision, the DOLE skirted any possible issue regarding the law that
should govern the terms and conditions of employment of Filipino seamen working
in ocean-going vessels that have no significant Philippine presence and that hardly
see Philippine waters. Thus, with the POEA Standard Employment Contract, there
is no doubt that in case of any unresolved dispute, claim or grievance arising out of
or in connection with the contract, Philippine laws shall apply.
In real terms, this means that the shipowner an employer operating outside
Philippine jurisdiction does not subject itself to Philippine laws, except to the extent
that it concedes the coverage and application of these laws under the POEA Standard
Employment Contract. On the matter of disability, the employer is not subject to
Philippine jurisdiction in terms of being compelled to contribute to the State
Insurance Fund that, under the Labor Code, Philippine employers are obliged to
support. (This Fund, administered by the Employees Compensation Commission, is
the source of work-related compensation payments for work-related deaths, injuries,
and illnesses.) Instead, the POEA Standard Employment Contract provides its own
system of disability compensation that approximates (and even exceeds) the benefits
provided under Philippine law.[34] The standard terms agreed upon, as above pointed
out, are intended to be read and understood in accordance with Philippine laws,
particularly, Articles 191 to 193 of the Labor Code and the applicable implementing
rules and regulations in case of any dispute, claim or grievance.
In this respect and in the context of the present case, Article 192(c)(1) of the
Labor Code provides that:
x x x The following disabilities shall be deemed total and permanent:
(1) Temporary total disability lasting continuously for more than one hundred
twenty days, except as otherwise provided in the Rules;
xxx
The rule referred to - Rule X, Section 2 of the Rules and Regulations implementing
Book IV of the Labor Code - states:
Period of entitlement. (a) The income benefit shall be paid beginning on
the first day of such disability. If caused by an injury or sickness it shall not be
paid longer than 120 consecutive days except where such injury or sickness still
requires medical attendance beyond 120 days but not to exceed 240 days from
onset of disability in which case benefit for temporary total disability shall be
paid. However, the System may declare the total and permanent status at anytime
after 120 days of continuous temporary total disability as may be warranted by the
degree of actual loss or impairment of physical or mental functions as determined
by the System. [Underscoring ours]
These provisions are to be read hand in hand with the POEA Standard
Employment Contract whose Section 20 (3) states:
Upon sign-off from the vessel for medical treatment, the seafarer is entitled
to sickness allowance equivalent to his basic wage until he is declared fit to work
or the degree of permanent disability has been assessed by the company-designated
physician but in no case shall this period exceed one hundred twenty (120) days.
As these provisions operate, the seafarer, upon sign-off from his vessel, must
report to the company-designated physician within three (3) days from arrival for
diagnosis and treatment.[35] For the duration of the treatment but in no case to exceed
120 days, the seaman is on temporary total disability as he is totally unable to
work.[36] He receives his basic wage during this period[37] until he is declared fit to
work or his temporary disability is acknowledged by the company to be permanent,
either partially or totally, as his condition is defined under the POEA Standard
Employment Contract and by applicable Philippine laws.[38] If the 120 days initial
period is exceeded and no such declaration is made because the seafarer requires
further medical attention, then the temporary total disability period may be extended
up to a maximum of 240 days, subject to the right of the employer to declare within
this period that a permanent partial or total disability already exists.[39] The seaman
may of course also be declared fit to work at any time such declaration is justified by
his medical condition.
Thus, upon petitioners return to the country for medical treatment, both he and
the respondent company acted correctly in accordance with the terms of the POEA
Standard Employment Contract and the CBA; he reported to the company-designated
doctor for treatment and the latter properly referred him to an ophthalmologist at
the Chinese General Hospital. No dispute existed on the medical treatment the
petitioner received, to the point that the petitioner executed a certificate of fitness for
work based on the assessment/certification by the company-designated physician.
Problems only arose when despite the certification, the petitioner sought
second and third opinions from his own doctors, one of whom opined that he could
no longer resume work as a pumpman while the other recognized a Grade X (20.15%)
partial permanent disability. Based on these opinions, the petitioner demanded that
he be paid disability and sickness benefits; when the company refused, the demand
metamorphosed into an actual case before the NLRC Arbitration Branch.
As we outlined above, a temporary total disability only becomes permanent

when so declared by the company physician within the periods he is allowed to do
so, or upon the expiration of the maximum 240-day medical treatment period without
a declaration of either fitness to work or the existence of a permanent disability. In
the present case, while the initial 120-day treatment or temporary total disability
period was exceeded, the company-designated doctor duly made a declaration well
within the extended 240-day period that the petitioner was fit to work. Viewed from
this perspective, both the NLRC and CA were legally correct when they refused to
recognize any disability because the petitioner had already been declared fit to resume
his duties. In the absence of any disability after his temporary total disability was
addressed, any further discussion of permanent partial and total disability, their
existence, distinctions and consequences, becomes a surplusage that serves no useful
purpose.
A twist that directly led to the filing of this case is the issue of whose medical
pronouncement should be followed given that the company-designated physician had
declared the petitioner fit for work with a certification of fitness duly executed by the
latter, while the petitioners physicians gave qualified opinions on his medical
situation.
The POEA Standard Employment Contract and the CBA clearly provide that
when a seafarer sustains a work-related illness or injury while on board the vessel,
his fitness or unfitness for work shall be determined by the company-designated
physician. If the physician appointed by the seafarer disagrees with the company-
designated physicians assessment, the opinion of a third doctor may be agreed jointly
between the employer and the seafarer to be the decision final and binding on them.[40]
Thus, while petitioner had the right to seek a second and even a third opinion,
the final determination of whose decision must prevail must be done in accordance
with an agreed procedure.Unfortunately, the petitioner did not avail of this procedure;
hence, we have no option but to declare that the company-designated doctors
certification is the final determination that must prevail. We do so mindful that the
company had exerted real effort to provide the petitioner with medical assistance,
such that the petitioner finally ended with a 20/20 vision. The company-designated
physician, too, monitored the petitioners case from the beginning and we cannot
simply throw out his certification, as the petitioner suggested, because he has no
expertise in ophthalmology. Under the facts of this case, it was the company-
designated doctor who referred the petitioners case to the proper medical specialist
whose medical results are not essentially disputed; who monitored the petitioners case
during its progress; and who issued his certification on the basis of the medical
records available and the results obtained. This led the NLRC in its own ruling to note
that:
x x x more weight should be given to the assessment of degree of disability made
by the company doctors because they were the ones who attended and treated
petitioner Vergara for a period of almost five (5) months from the time of his
repatriation to the Philippines on September 5, 2000 to the time of his declaration
as fit to resume sea duties on January 31, 2001, and they were privy to petitioner
Vergaras case from the very beginning, which enabled the company-designated
doctors to acquire a detailed knowledge and familiarity with petitioner Vergaras
medical condition which thus enabled them to reach a more accurate evaluation of
the degree of any disability which petitioner Vergara might have sustained. These
are not mere company doctors. These doctors are independent medical practitioners
who passed the rigorous requirements of the employer and are more likely to protect
the interest of the employer against fraud.
Moreover, as between those who had actually attended to petitioner

Vergara throughout the duration of his illness and those who had merely examined
him later upon his recovery for the purpose of determining disability benefits, the
former must prevail.
We note, too, as the respondent company aptly observed, that the petitioner never
raised the issue of the company-designated doctors competence at any level of the
arbitration proceedings, only at this level of review. On the contrary, the petitioner
accepted his assessment of fitness and in fact issued a certification to this
effect. Under these circumstances, we find the NLRC and the CAs conclusions on
the petitioners fitness to work, based on the assessment/certification by the
company-designated physician, to be legally and factually in order.
As a last point, the petitioner has repeatedly invoked our ruling in Crystal
Shipping, Inc. v. Natividad,[41] apparently for its statement that the respondent in the
case was unable to perform his customary work for more than 120 days which
constitutes permanent total disability. This declaration of a permanent total disability
after the initial 120 days of temporary total disability cannot, however, be simply
lifted and applied as a general rule for all cases in all contexts. The specific context
of the application should be considered, as we must do in the application of all
rulings and even of the law and of the implementing regulations.
Crystal Shipping was a case where the seafarer was completely unable to
work for three years and was undisputably unfit for sea duty due to respondents
need for regular medical check-up and treatment which would not be available if he
were at sea.[42] While the case was not clear on how the initial 120-day and
subsequent temporary total disability period operated, what appears clear is that
the disability went beyond 240 days without any declaration that the seafarer
was fit to resume work. Under the circumstances, a ruling of permanent and
total disability was called for, fully in accordance with the operation of the
period for entitlement that we described above. Viewed from this perspective, the
petitioner cannot cite the Crystal Shipping ruling as basis for his claim for permanent
total disability.
Additionally and to reiterate what we pointed out above regarding the

governing rules that affect the disability of Filipino seafarers in ocean-going vessels,
the POEA Standard Employment Contract provides its own Schedule of Disability
or Impediment for Injuries Suffered and Diseases Including Occupational Diseases
or Illness Contracted (Section 32); Disability Allowances (a subpart of Section 32);
and its own guidelines on Occupational Diseases (Section 32-A) which cannot be
disregarded in considering disability compensation and benefits. All these read in
relation with applicable Philippine laws and rules should also be taken into account
in considering and citing Crystal Shipping and its related line of cases as authorities.
In light of the above conclusions, we see no need to discuss the petitioners

other submissions that the lack of disability has rendered moot, particularly the
existence of doubt that the petitioner insists should be resolved in his favor.
WHEREFORE, premises considered, we DENY the petition for lack of

merit.
G.R. No. L-58011-12 July 20, 1982
VIR-JEN SHIPPING AND MARINE SERVICES, INC., petitioner,

vs.
NATIONAL LABOR RELATIONS COMMISSION, ROGELIO BISULA, RUBEN ARROZA, JUAN
GACUTNO, LEONILO ATOK, NILO CRUZ, ALVARO ANDRADA, NEMESIO ADUG, SIMPLICIO
BAUTISTA, ROMEO ACOSTA, and JOSE ENCABO, respondents.
Maximo A. Savellano, Jr., for petitioner.
Solicitor General and Romeo M. Devera for respondents.
BARREDO, J.:
Petition for certiorari seeking the annulment or setting aside, on the grounds of excess of jurisdiction
and grave abuse of discretion, of the decision of the National Labor Relations Commission in
consolidated NSB Cases Nos. 2250-79 and 2252-79 thereof, 1 the dispositive portion of which reads
thus:
WHEREFORE, the Decision appealed from should be, as it is hereby modified in this
wise:
Respondent Vir-jen Shipping and Marine Services, Inc., is hereby ordered to pay the
following to the complainant Seamen who have not withdrawn from the case,
namely: Capt. Rogelio H. Bisula, Ruben Arroza, Juan Gacutno, Leonilo Atok, Nilo
Cruz, Alvaro Andrada, Nemesio Adug, Simplicio Bautista, Romeo Acosta and Jose
Encabo:
1. their earned wages corresponding to the period from 16 to 19 April

1979;
2. the wages corresponding to the unexpired portion of their

contracts, as adjusted by the respondent Company effective 1 March
1979;
3. the adjusted representation allowances of the complainant

Seamen who served as officers and who have not withdrawn from the
case, namely: Capt. Rogelio Bisula, Ruben Arroza, Juan Gacutno,
Leonilo Atok and Nilo Cruz;
4. their vacation pay equivalent to one-half () month's pay after six

(6) months of service and another one-half () month's pay after the
completion of the one-year contract;
5. their tanker service bonus equivalent to one-half () month's pay;

and
6. their earned overtime pay from l to l9 April 1979.
The Secretariat of the National Seamen Board is also hereby directed to issue within
five (5) days from receipt of this Decision the necessary clearances to the suspended
Seamen. (pp. 86-87, Record.)
The factual and legal background of these cases is related most comprehensively in the
"Manifestation and Comment" filed by the Solicitor General. It is as follows:
The records show that private respondents have a manning contract for a period of
one (1) year with petitioner in representation of its principal Kyoei Tanker Co. Ltd.
The terms and conditions of said contract were based on the standard contract of the
NSB. The manning contract was approved by the NSB. Aware of the problem that
vessels not paying rates imposed by the International Transport Workers Federation
(ITF) would be detained or interdicted in foreign ports controlled by the ITF, petitioner
and private respondents executed a side contract to the effect that should the vessel
M/T Jannu be required to pay ITF rates when it calls on any ITF controlled foreign
port, private respondents would return to petitioner the amounts so paid to them.
On March 23, 1979, the master of the vessel who is one of the private respondents
sent a cable to petitioner, while said vessel was en route to Australia which is an ITF
controlled port, stating that private respondents were not contented with the salary
and benefits stipulated in the manning contract, and demanded that they be given
50% increase thereof, as the "best and only solution to solve ITF problem."
Apparently, reference to "ITF" in private respondents' cable made petitioner
apprehensive since the vessel at that time was en route to Australia, an ITF port, and
would be interdicted and detained thereat, should private respondents denounce the
existing manning contract to the ITF and should petitioner refuse or be unable to pay
the ITF rates, which represent more than 100% of what is stipulated in the manning
contract. Placed under such situation, petitioner replied by cable dated March 24,
1979 to private respondents, as follows:
... WE ARE SURPRISED WITH THIS SUDDEN CHANGE OF

ATTITUDE AND DEMANDS FOR WE HAVE THOROUGHLY
EXPLAINED AND DISCUSSED ALL MATTERS PERTAINING TO
YOUR PRESENT EMPLOYMENT AND BELIEVED THAT WE
FULLY UNDERSTOOD EACH OTHER ... WE SHALL SUFFER AND
ABSORB CONSIDERABLE AMOUNT OF LOSSES WITH YOUR
DEMAND OF FIFTY PERCENT AS WE ARE ALREADY
COMMITTED TO PRINCIPALS THEREFORE TO MINIMIZE OUR
LOSSES WE PROPOSE AN INCREASE OF TWENTY FIVE
PERCENT ON YOUR BASIC PAYS PLUS THE SPECIAL
COMPENSATION FOR THIS PARTICULAR VOYAGE ... (p. 7
Comment)
On March 26, 1979, petitioner wrote a letter to the NSB denouncing the conduct of
private respondents as follows:
This is to inform you that on March 24, 1979, we received a cable from Capt. Rogelio
Bisula, Master of the above-reference vessel reading as follows:
URINFO ENTIRE JANNU OFFICERS AND CREW NOT

CONTENTED WITH PRESENT SALARY BASED ON VOLUME OF
WORK TYPE OF SHIP WITH HAZARDOUS CARGO AND
REGISTERED IN A WORLDWIDE TRADE STOP WHAT WE
DEMAND IS ONLY FIFTY PERCENT INCREASE BASED ON
PRESENT BASIC SALARY STOP THIS DEMAND THE BEST AND
ONLY SOLUTION TO SOLVE PROBLEM DUE YOUR PRESENT
RATES ESPECIALLY TANKERS VERY FAR IN COMPARISON
WITH OTHER SHIPPING AGENCIES IN MANILA.
to which we replied on March 24, 1979, as follows:
WE ARE SURPRISED WITH SUDDEN CHANGE, OF ATTITUDE

AND DEMANDS FOR WE HAVE THOROUGHLY EXPLAINED AND
DISCUSSED ALL MATTERS PERTAINING TO YOUR PRESENT
EMPLOYMENT AND BELIEVED THAT WE FULLY UNDERSTOOD
EACH OTHER STOP FRANKLY SPEAKING WE SHALL SUFFER
AND ABSORB CONSIDERABLE AMOUNT OF LOSSES WITH
YOUR DEMAND OF FIFTY PERCENT AS WE ARE COMMITTED
TO PRINCIPALS THEREFORE TO MINIMIZE OUR LOSSES WE
PROPOSE AN INCREASE OF TWENTY FIVE PERCENT ON YOUR
BASIC PAY STOP YOUR UNDERSTANDING AND FULL
COOPERATION WILL BE VERY MUCH APPRECIATED STOP PLS
CONFIRM SOONEST.
On March 25, 1979 we received the following communication from the Master of said
vessel:
OFFICERS AND CREW HESITATING TO GIVE UP DEMAND OF

FIFTY PERCENT INCREASE BUT FOR THE GOOD AND
HARMONIOUS RELATIONSHIP ON BOARD AND
RECONSIDERING YOUR SUPPOSED TO BE LOSSES IN CASE
WE CONDITIONALLY COOPERATE WITH YOUR PROPOSED
INCREASE AND TWENTY FIVE PERCENT BASED ON
INDIVIDUAL BASIC PAY WITH THE FOLLOWING TERMS AND
CONDITION STOP EFFECTIVITY OF TWENTY FIVE PERCENT
INCREASE MUST BE MARCH/79 STOP INCREASE MUST BE
COLLECTIBLE ON BOARD EFFECTIVE ABOVE DATE UNTIL
DISEMBARKATION STOP ALLOTMENT TO ALLOTEES REMAIN
AS IS STOP REASONABLE REPALLOWS FOR ALL OFFICERS BE
GIVEN EFFECTIVE MARCH/79 STOP BONUS FOR 6 MONTHS
SERVICES RENDERED BE COLLECTIBLE ON BOARD STOP
OFFICERS/CREW 30PCT O/T SHUD BE BASED NEW UPGRADED
SALARY SCALE STOP MASTER/CHENGR/CHMATE SPECIAL
COMPENSATION GIVE BY YOUR COMPANY PRIOR DEPARTURE
MANILA REMAIN AS IS.
to which we replied on March 25, 1979, as follows:
WE AGREE ALL CONDITIONS AND CONFIRM IT SHALL BE

PROPERLY ENFORCED STOP WILL PREPARE ALL REQUIRED
DOCUMENTS AND WILL BE DELIVERED ON BOARD.
For your further information and guidance, the abovementioned demands of the
officers and crew (25% increase in basic pay, increase in overtime pay and increase
in representation allowance) involve an additional amount of US$3,096.50 per
month, which our company is not in a position to shoulder.
We are, therefore, negotiating with our Principals, Messrs. Kyoei Tanker Company,
Limited, for the amendment of our agency agreement in the sense that our monthly
fee be increased correspondingly. We have sent our Executive Vice-President, Mr.
Ericson M. Marquez, to Japan to represent us in said negotiation and we will inform
you of the results thereof. (Annex "E" of Petition)
In view of private respondents' conduct and breach of contract, petitioner's principal,

Kyoei Tanker Co., Ltd. terminated the manning contract in a letter dated April 4,
1979, which reads in part;
This is with reference to your letter of March 26, 1979 and our
conference with Mr. Ericson Marquez in Tokyo on March 29, 1979,
regarding the unexpected and unreasonable demand for salary
increase of your officers and crew on the above vessel.
Frankly speaking, we fully agree with you that this action taken by
your officers and crew in demanding increase in their salaries and
overtime after being on board for only three months was very
unreasonable. Considering the circumstances when the demand was
made, we believe that their action was definitely abusive and plain
blackmail.
We regret to advise you that since this vessel is only under our
management, we also cannot afford to grant your request for an
increase of US$3,096.50 effective March 1, 1979, as demanded by
your crew. Your crew should respect their employment contracts
which was approved by your government and your National Seamen
Board should make sure that all seamen should follow their contracts.
For your information, we have discussed this matter with the owners
of the vessel, particularly the attitude and mentality of your crew on
board. Our common and final decision is not to grant your request but
also to terminate our Manning Agreement effective upon crew's
change when the vessel arrives at Japan or at any possible port
about end April, 1979.
We regret that we have to take this drastic step in order to protect

ourselves from further problem if we continue with your present
officers and crew because if their demand is granted, there is no
guarantee that they will not demand further increase in salaries in the
future when they have chance. Also, as you know the present freight
market is very bad and we cannot afford an unexpected increase in
cost of operations and more so with a troublesome and unreliable
crew that you have on board.
In view of the circumstances mentioned above, please consider this

letter as our official notice of cancellation of our Manning Agreement
effective upon the date of crew's change. (Annex "F" of Petition).
On April 6, 1979, petitioner wrote the NSB asking permission to cancel the manning
contract with petitioner, said letter reading as follows:
This is with reference to our letter of March 26, 1979, informing you of
the sudden and unexpected demands of the officers and crew of the
above vessel for a twenty five percent (25%) increase in their basic
salaries and overtime, plus an increase of the officers' representation
allowances, involving a total of US$3,096.50 per month.
As we have advised in our afore-mentioned letter, we have

negotiated with our Principals, Messrs. Kyoei Tanker Co., Ltd., to
amend our Agency Agreement by increasing our monthly fee by
US$3,096.50, and attached herewith is copy of our letter dated March
26, 1979 duly received by our Principals on March 31, 1979.
In this connection, we wish to inform your good office that our

Principals have refused to consider our request for an increase and
have also advised us of their final decision to terminate our Manning
Agreement effective upon vessel's arrival in Japan on or about April
17, 1979.
For your further information, we enclose herewith xerox copy of the
Kyoei Tanker Co., Ltd. letter dated April 4, 1979, which we just
received today via airfreight.
This is the first time that a cancellation of this nature has been made
upon us, and needless to say, we feel very embarrassed and
disappointed but we have no other alternative but to accept the said
cancellation.
In view of the foregoing, we respectfully request your authority to

cancel our Contracts of Employment and to disembark the entire
officers and crew upon vessel's arrival in Japan on or about 17th
April, 1979. (Annex "G", of Petition).
On April 10, 1979, the NSB through its Executive Director Cresencio C. Dayao wrote
petitioner authorizing it to cancel the manning contract. The NSB letter to petitioner
reads:
We have for acknowledgment your letter of 6 April 1979 in connection

with the above-captioned subject.
Considering the circumstances enumerated in your letter under reply

(and also in your letter of March 1979), we authorize you to cancel
your contracts of employment with the crew/members of the M/T
"Jannu" and you may now disembark the whole compliment upon the
vessel's arrival in Japan on or about April 17, 1979.
We trust that you will not encounter any difficulty in connection with
the disembarkation of the crew/members. (Annex "H" of Petition).
The seamen were accordingly disembarked in Japan and repatriated to Manila. They
then filed a complaint with the NSB for illegal dismissal and non-payment of wages.
After trial, the NSB found that the termination of the services of the seamen before
the expiration of their employment contract was justified "when they demanded and
in fact received from the company wages over and above the contracted rates which
in effect was an alteration and modification of a valid and existing contract ..." (Annex
"D", Petition). The seamen appealed the decision to the NLRC which reversed the
decision of the NSB and required the petitioner to pay the wages and other monetary
benefits corresponding to the unexpired portion of the manning contract on the
ground that the termination of the said contract by petitioner was without valid cause.
Hence, the present petition. (Pp. 2-9, Manifestation & Comment)
In its petition which contains practically the same facts and circumstances above-quoted, petitioner
submits for Our resolution the following issues:
I. That the respondent NLRC acted without or in excess of its jurisdiction, or with
grave abuse of discretion in said NSB Cases Nos. 2250-79 and 2252-79 when it
adjudged the petitioner Vir-jen liable to the respondents-seamen for terminating its
employment contracts with them despite the fact that prior authorization to terminate
or cancel said employment contracts and to disembark the said respondents was first
secured from and was granted by, the National Seamen Board, the government
agency primarily charged with the supervision and discipline of seamen and the
approval and enforcement of employment contracts;
II. That the respondent NLRC acted with grave abuse of discretion, or without or in
excess of its jurisdiction, or contrary to law and the evidence when it concluded that
"there is nothing on record to show that respondents-seamen made any threat that
they would complain or report to the ITF their low wage rates if their demand or
proposal for a wage increase was not met", despite the fact that in their cable of
March 23, 1979 to the petitioner, the said respondents made the following threats
and impositions: "WHAT WE DEMAND IS ONLY 50 PERCENT INCREASE BASED
ON PRESENT BASIC SALARY STOP THIS DEMAND THE BEST AND ONLY
SOLUTION TO SOLVE ITF PROBLEMS", that there are other substantial and
conclusive evidence to support the existence of such threats and intimidation which
the respondent NLRC failed and refused to consider; and that the evidence
substantially and conclusively shows that the petitioner Vir-jen was, in fact,
threatened and intimidated into giving such salary increases due to such cabled
threats and intimidation of the private respondents;
III. That the respondent NLRC acted with grave abuse of discretion or without or in
excess of jurisdiction when it concluded, in effect, that the respondents-seamen
acted within their rights when they imposed upon their employer, the herein
petitioner, their demands for salary and wages increases, in disregard of their
existing NSB-approved contracts of employment, notwithstanding the substantial and
conclusive findings of the NSB, the trier of facts which is in the best position to
assess the special circumstances of the case, that the said respondents breached
their respective contracts of employment with the petitioner, without securing the
prior approval of the NSB as required by the New Labor Code, as amended, and with
the use of threats, intimidation and coercion, when they demanded and, in fact,
received from the petitioner salaries or wages over and above their contracted rates
which the petitioner was "constrained to make" in order "to prevent the vessel from
being interdicted and/or detained by the ITF because at the time the demand for
salary increase was made the vessel was en route to Kwinana, Australia (via
Senipah, Indonesia), a port were the ITF is strong and militant," "for in the event the
vessel would be detained and/or interdicted the company (petitioner) would suffer
more losses than paying the seamen 25 % increase of their salary";
IV. That respondent NLRC committed a grave abuse of discretion or exceeded its
jurisdiction or acted contrary to law when it failed and refused to admit and take into
account the ADDENDUM AGREEMENT, dated December 27, 1978, entered into
between the petitioner and the private respondents, which would have further
enlightened the respondent NLRC on the "ITF PROBLEMS" insinuated by the private
respondents in their cable of March 23, 1979 to threaten and intimidate the petitioner
into granting the salary increases in question;
V. That respondent NLRC committed a grave abuse of discretion or acted without or

in excess of its jurisdiction or contrary to law when it ordered the petitioner Vir-jen to
pay, among others, to the private respondents their "wages corresponding to the
unexpired portion of their contracts" the said petitioner having already lost its trust
and confidence on the private respondents; that the employer cannot be legally
compelled to continue with the employment of persons in whom it has already lost its
trust and confidence; that payment to the private respondents of their wages
corresponding to the unexpired portion of their contract would be tantamount to
retaining their services after their employer, petitioner herein, had already lost its faith
and trust in them;
VI. That the respondent NLRC committed a grave abuse of discretion or exceeded its
jurisdiction in still including and considering ROMEO ACOSTA as one of the
appellants in the two (2) aforementioned NSB cases and making him a beneficiary of
its decision, dated July 8, 1981, modifying the NSB decision, dated July 2, 1980,
despite the fact that way back on October 23, 1980, Acosta had already filed in said
NSB cases a pleading, entitled "SATISFACTION OF JUDGMENT" in which he
manifested that he was not appealing the NSB decision anymore as the judgment in
his favor was already fully satisfied by the petitioner Vir-jen;
VII. That the respondent NLRC had no more jurisdiction to entertain private
respondents' appeal because the NSB decision became final and executory for
failure of said respondents to serve on he petitioner a copy of their "APPEAL AND
MEMORANDUM OF APPEAL" within the ten (10) day reglementary period for appeal
and even after the expiration of said period;
VIII. That the respondent NLRC had no jurisdiction to entertain the appeal by the
private respondents based on the supposedly verified "APPEAL AND
MEMORANDUM OF APPEAL" because the supposed signature of the person
purportedly verifying the same is forged; and that the new counsel appearing for the
private respondents on appeal was not even authorized by some of the private
respondents to appear for them;
IX. That the respondent NLRC committed a grave abuse of discretion or acted
without or in excess of jurisdiction or contrary to law when it misconstrued,
misinterpreted and misapplied to the instant case the ruling of this Honorable
Supreme Court in Wallem Philippines Shipping, Inc. vs. The Hon. Minister of Labor,
et al., G.R No. 50734, prom. February 20, 1981, despite distinct and fundamental
differences in facts between the Wallem Case and the instant case;
X. That the respondent NLRC committed a grave abuse of discretion or acted without
or in excess of its jurisdiction or acted contrary to law when it failed and refused to
consider and pass upon the substantial issues of jurisdiction, law and facts and
matters of public interests raised by the petitioner in its URGENT
MOTION/APPELLEE'S MEMORANDUM ON APPEAL, dated April 24, 1981, and in
its MOTION FOR RECONSIDERATION AND/OR NEW TRIAL, dated July 20, 1981,
filed in the two (2) cases;
XI. That the respondent NLRC committed a grave abuse of discretion or acted
without or in excess of jurisdiction or contrary to law when it failed and refused to
reconsider and set aside its decision subject-matter of this petition for certiorari,
considering Chat if allowed to stand, the said decision will open the floodgates for
Filipino seamen to disregard NSB-approved contracts of employment with impunity,
leading to the destruction of the Philippine manning industry, which is a substantial
source of revenue for the Philippine government, as well as the image of the Filipino
seamen who will undoubtedly become known far and wide as one prone to violate
the solemnity of employment contracts, compounded with the use of threats,
intimidation and blackmail, thereby necessitating a policy decision by this Honorable
Supreme Court on the matter for the survival of the manning industry. (Pp. 5-9,
Record.)
We shall deal first with the jurisdictional issue (No. VII above) to the effect that the appeal of private
respondents from the decision of the National Seamen's Board against them was filed out of time,
considering that copy of said decision was received by them on July 9, 1980 and they filed their
memorandum of appeal only on July 23, 1980 or fourteen (14) days later, whereas under article 223
of the Labor Code which governs appeals from the National Seamen's Board to the National Labor
Relations Commission per Article 20(b) of the Code provides that such appeals must be made within
ten (10) days.
In this connection, it is contended in the comment of private respondents that petitioner has
overlooked that under Section 7, Rule XIII,, Book V of the Implementing Rules of the Labor Code,
the ten-day period specified in Article 223 refers to working days and that this Court has already
upheld such construction and manner of computation in Fabula vs. NLRC, G.R. No. 54247,
December 19, 1980. Now, computing the number of working days from July 9 to July 23, 1980 We
find that there were exactly ten (10) days, hence, if We adhere to Fabula, the appeal in question
must be held to have been made on time.
But petitioner herein maintains that the Minister of Labor may not, under the guise of issuing
implementing rules of a law as authorized by the law itself, go beyond the clear and unmistakable
language of the law and expand it at his discretion. In other words, since Article 223 of the Labor
Code literally provides thus:
Appeal. Decisions, awards, or orders of the Labor Arbiters or compulsory

arbitrators are final and executory unless appealed to the Commission by any or both
of the parties within ten (10) days from receipt of such awards, orders, or decisions.
Such appeal may be entertained only on any of the following grounds:
(a) If there is a prima facie evidence of abuse of discretion on the part of the labor
Arbiter or compulsory arbitrator;
(b) If the decision, order, or award was secured through fraud or coercion, including
graft and corruption;
(c) If made purely on questions of law; and
(d) If serious errors in the findings of facts are raised which would cause grave or
irreparable damage or injury to the appellant.
To discourage frivolous or dilatory appeals, the Commission or the Labor Arbiter

shall impose reasonable penalty, including fines or censures, upon the erring parties.
the implementing rules may not provide that the said period should be computed on the basis
of working days. This, indeed, is a legal issue not brought up nor passed upon squarely in Fabula,
and petitioner prays that this Court rule on the point once and for all.
After mature and careful deliberation, We have arrived at the conclusion that the shortened period of
ten (10) days fixed by Article 223 contemplates calendar days and not working days. We are
persuaded to this conclusion, if only because We believe that it is precisely in the interest of labor
that the law has commanded that labor cases be promptly, if not peremptorily, dispose of. Long
periods for any acts to be done by the contending parties can be taken advantage of more by
management than by labor. Most labor claims are decided in their favor and management is
generally the appellant. Delay, in most instances, gives the employers more opportunity not only to
prepare even ingenious defenses, what with well-paid talented lawyers they can afford, but even to
wear out the efforts and meager resources of the workers, to the point that not infrequently the latter
either give up or compromise for less than what is due them.
All the foregoing notwithstanding, and bearing in mind the peculiar circumstances of this case,
particularly, the fact that private respondents must have been misled by the implementing rules
aforementioned. We have opted to just the same pass on the merits of the substantial issues herein,
even as We admonish all concerned to henceforth act in accordance with our foregoing view. Verily,
the Minister of Labor has no legal power to amend or alter in any material sense whatever the law
itself unequivocally specifies or fixes.
We need not ponder long on the contention of petitioner regarding the alleged forgery of the
signature of respondent Rogelio Bisula and the alleged lack of authority of the new counsel of
respondents, Atty. B. C. Gonzales, to appear for them. Resolution of these minor points, considering
their highly controversial nature, so much so that they could rationally to our mind, be decided either
way, may be dispensed with in order that We may go to the more transcendentally important main
issues before Us.
As far as issue No. VI above regarding the inclusion of Romeo Acosta among the beneficiaries of
the decision herein in question, there can be no reason why petitioner should not be sustained. It is
undenied that Acosta has filed a formal satisfaction of judgment. Indeed, it is quite relevant to
mention at this point that originally, there were twenty-eight (28) claimants against petitioner, This
number was first reduced to fifteen (15) then to ten (10) and finally to nine (9) now, by withdrawal of
the claimants themselves. These series of withdrawals lend no little degree to added enlightenment
of the discussion hereunder of the adverse positions of the remaining claimants, on the one hand,
and the petitioner, on the other.
To begin with, let it be borne in mind that seamen's contracts of the nature We have before Us now
are not ordinary ones. There are specie, laws and rules governing them precisely due to the peculiar
circumstances that surround them. Relatedly, We quote from the Manifestation and Comment of the
Solicitor General:
The employment contract in question is unlike any ordinary contract of employment,

for the reason that a manning contract involves the interests not only of the
signatories thereto, such as the local Filipino recruiting agent (herein petitioner), the
foreign owner of the vessel, and the Filipino crew members (private respondents),
but also those of other Filipino seamen in general as well as the country itself.
Accordingly, Article 12 of the Labor Code provides that it is the policy of the State not
only "to insure and regulate the movement of workers in conformity with the national
interest" but also "to insure careful selection of Filipino workers for overseas
employment in order to protect the good name of the Philippines abroad". The
National Seamen Board (NSB), which is the agency created to implement said state
policies, is thus empowered pursuant to Article 20 of the Labor Code "to secure the
best possible terms and conditions of employment for seamen, and to insure
compliance thereof" not only on the part of the owners of the vessel but also on the
part of the crew members themselves.
Conformably to the power vested in the NSB, the law requires that all manning
contracts shall be approved by said agency. It likewise provides that "it shall be
unlawful to substitute or alter any previously approved and certified employment
contract without the approval of NSB" (Section 35, Rules and Regulations in the
recruitment and placement of Filipino seamen aboard foreign going ships) and
authorizes the employer or owner of the vessel to terminate such contract for just
causes (Section 32, Ibid). Among such just causes for termination are "bad conduct
and unwanted presence prejudicial to the safety of the ship" (Guidebook for shipping
employers, page 8) and material breach of said contract.
The stringent rules governing Filipino seamen aboard foreign, going ships are
dictated by national interest. There are about 120,000 registered seamen with the
NSB. Only about 50,000 of them are employed and 70,000 or so are still hoping to
be employed. Those Filipino seamen already employed on board foreign-going ships
should accordingly conduct themselves with utmost propriety and abide strictly with
the terms and conditions of their employment contract, and the NSB should see to
that, in order that owners of foreignowned vessels will not only be encouraged to
renew their employment contract but will moreover be induced to hire other Filipino
seamen as against other competing foreign sailors. (Pp. 15-17, Manifestation &
Comment of the Solicitor General)
Pertinently, the Labor Code of the Philippines provides for the creation of a National Seamen Board
(NSB) thus:
ART. 20. National Seamen Board.(a) A National Seamen Board is hereby created
which shall developed and maintain a comprehensive program for Filipino seamen
employed overseas. It shall have the power and duty:
(1) To provide free placement services for seamen;
(2) To regulate and supervise the activities of agents or

representatives of shipping companies in the hiring of seamen for
overseas employment; and secure the best possible terms of
employment for contract seamen workers and secure compliance
therewith; and
(3) To maintain a complete registry of all Filipino seamen.
(b) The Board shall have original and exclusive jurisdiction over all matters or cases
including money claims, involving employer-employee relations, arising out of or by
virtue of any law or contracts involving Filipino seamen for overseas employment.
The decision of the Board shall be appealable to the National Labor Relations
Commission upon the same grounds provided in Article 223 hereof. The decisions of
the National Labor Relations Commission shall be final and inappealable.
The finality and unappealability of the decisions of the National Labor Relations Commission
conferred by the above provisions in cases of the nature now before Us necessarily limits Our power
in the premises to the exercise of Our plenary certiorari jurisdiction. And under the scheme of said
Article 20, in relation to Article 223 of the same Code, the reviewing authority of the Commission is
limited only to the following instances:
Appeal.Decisions, awards, or orders of the Labor Arbiters or compulsory

arbitrators are final and executory unless appealed to the Commission by any or both
of the parties within ten (10) days from receipt of such awards, orders, or decisions.
Such appeal may be entertained only on any of the following grounds:
(a) If there is prima facie evidence of abuse of discretion on the part of the Labor
Arbiter or compulsory arbitrator;
(b) If the decision, order or award was secured through fraud or coercion, including
graft and corruption;
(c) If made purely on questions of law;and
(d) If serious errors in the findings of facts are raised which would cause grave or
irreparable damage or injury to the appellant.
To discourage frivolous or dilatory appeals, the Commission or the Labor Arbiter

shall impose reasonable penalty, including fines or censures, upon the erring parties.
In all cases, the appellant shall furnish a copy of the memorandum of appeals to the
other party who shall file an answer not later than ten (10) days from receipt thereof.
xxx xxx xxx
In the light of the foregoing perspective of law and policy, all the other issues raised by petitioner
may be disposed of together. Anyway they revolve basically around the following questions:
1. In the event of conflict in the conclusions of the National Seamen Board, on the one hand, and the
National Labor Relations Commission on the other, on a matter that is fundamentally an issue of
fact, which one should prevail?
2. Under the facts of this case, was it legally proper for the Commission to disregard the permission
granted by the NSB to the petitioner to disembark and discontinue the employment of herein
respondents?
3. As a matter of fact, did respondent breach their contract with petitioner, so as to entitle the latter to
take the punitive action herein complained of?
4. Was the conformity of petitioner to pay respondents additional compensation of 25% secured by
said respondents thru threats of grave injury to petitioner who, therefore, acceded to such increase
involuntarily?
We feel that the resolution of the instant controversy hinges on whether or not it was violative of law
and policy in the light of the peculiar nature of the contracts in question as already explained at the
outset of this opinion, for the respondents to make the demand for an increase of 50% of their
respective wages stipulated in their NSB approved contracts while they were already in the midst of
the voyage to Kwinana, Australia (an ITF controlled post), pointedly mentioning in their cablegram
that such "demand (was) the best and only solution to solve ITF problem"?
On these questions, the NSB found and held:
1. Whether or not the Seamen breached their respective employment contracts;
2. Whether or not the Seamen were illegally dismissed by the Company;
3. Whether or not the monetary claims of the seamen are valid and meritorious;
4. Whether or not the monetary claims of the Company are valid and meritorious;
5. Whether or not disciplinary action should be taken against the Seamen.
With respect to the first issue, the Board believes that the answer should be in the
affirmative. This is so for the Seamen demanded and in fact received from the
Company wages over and above their contracted rates, which in effect is an
alteration or modification of a valid and subsisting contract; and the same not having
been done thru mutual consent and without the prior approval of the Board the
alteration or modification is contrary to the provisions of the New Labor Code, as
amended, more particularly Art. 34 (i) thereof which states that:
Art. 34. Prohibited practices.It shall be unlawful for any individual, entity, licensee
or holder of authority:
xxx xxx xxx
(i) To substitute or alter employment contracts approved and verified by the

Department of Labor from the time of actual signing thereof by the parties up to and
including the period of expiration of the same without the approval of the Department
of Labor;
xxx xxx xxx
The revision of the contract was not done thru mutual consent for the Company did
not voluntarily agree to an increase of wage, but was only constrained to make a
counter-proposal of 25% increase to prevent the vessel from being interdicted and/or
detained by the ITF because at the time the demand for salary increase was made
the vessel was enroute to Kwinana, Australia (via Senipah, Indonesia), a port where
the ITF is strong and militant. However, a perusal of the Cables (Exhs. "D" & "F", "3"
& "5") coming from the Seamen addressed to the Company would show the
threatening manner by which the desire for a salary increase was manifested,
contrary to their claim that it was merely a request. Aforesaid cables are hereby
quoted for ready reference:
RYCV-11-12-13-14 RECEIVED URINFO ENTIRE JANNU OFFICERS AND CREW

NOT AGREEABLE WITH YOUR SUGGESTIONS THEY ARE NOT CONTENTED
WITH PRESENT SALARY BASED IN VOLUME OF WORKS TYPE OF SHIP WITH
HAZARDOUS CARGO AND REGISTERED IN A WORLD WIDE TRADE STOP
REGARDING URCABV-14 OFFICERS AND CREW NOT INTERESTED IN ITF
MEMBERSHIP IF NOT ACTUALLY PAID WITH ITF RATE STOP WHAT WE
DEMAND IS ONLY 50 PERCENT INCREASE BASED ON PRESENT BASIC
SALARY STOP THIS DEMAND THE BEST AND ONLY SOLUTION TO SOLVE ITF
PROBLEM DUE YOUR PRESENT RATE ESPECIALLY IN TANKERS VERY FAR IN
COMPARISON WITH OTHER SHIPPING AGENCIES IN MANILA STOP LET US
SHARE EQUALLY THE FRUITS OF LONELINESS SACRIFICES AND HARDSHIP
WE ARE ENCOUNTERING ON BOARD WE REMAIN ...
REURVIR-JEN-15 OFFICERS AND CREW HESITATING TO GIVE

UP DEMAND OF 50 PERCENT INCREASE BUT FOR GOOD AND
HARMONIOUS RELATIONSHIP ONBOARD AND
RECONSIDERING YOUR SUPPOSE TO BE LOSSES IN CASE WE
CONDITIONALLY COOPERATE WITH YOUR PROPOSE
INCREASE OF 25 PERCENT BASED ON INDIVIDUAL MONTHLY
BASIC PAY WITH FOLLOWING TERMS AND CONDITIONS AA
EFFECTIVITY OF 25 PERCENT INCREASE MUST BE MARCH/79
PLUS SPECIAL COMPENSATION MENTIONED URCAB VIRJEN-14
BB NEW COMPANY CIRCULAR ON UPGRADED NEW SALARY
SCALE DULY SIGNED AND APPROVED BE FORWARDED
KWINANA AUSTRALIA OR HANDCARRIED BY YOUR
REPRESENTATIVE TO DISCUSS MATTERS OFFICIALLY CC 25
PERCENT INCREASE MUST BE COLLECTABLE ONBOARD
EFFECTIVE ABOVE DATE UNTIL DISEMBARKATION STOP
ALLOTMENT TO ALLOTTEES REMAIN AS IS DD REASONABLE
REPALLOWS FOR ALL OFFICERS BE GIVEN EFFECTIVE
MARCH/79 EE BONUS FOR 6 MONTHS SERVICE RENDERED BE
COLLECTIBLE ONBOARD FF OFFICERS/CREW 30 PERCENT' OT
SHOULD BE BASED NEW UPGRADED SALARY SCALE GG
MASTER/CHENGR/CHMATE SPECIAL COMPENSATION GIVE BY
YOUR COMPANY PRIOR DEPARTURE MANILA BE REMAIN AS IS
STOP THE ABOVE TERMS AND CONDITIONS SHOULD BE
PROPERLY ENFORCE AND DOCUMENTED ALSO COPIES AND
FORWARDED ONBOARD ON ARRIVAL KWINANA AUSTRALIA
CONFIRM ...
While the Board recognizes the rights of the Seamen to seek higher wages provided
the increase is arrived at thru mutual consent, it could not however, sanction the
same if the consent of the employer is secured thru threats, intimidation or force. In
the case at bar, the Company was compelled to accede to the demand of the
Seamen for a salary increase to forestall the possibility of the vessel being interdicted
by the ITF at Kwinana, Australia, for in the event the vessel would be detained and/or
interdicted the Company would suffer more losses than paying the Seamen 25%
increase of their
With respect to the second issue, the Board believes that the termination of the
services of the Seamen was legal and in accordance with the provisions of their
respective employment contracts. Considering the findings of the Board that the
Seamen breached their contracts, their subsequent repatriation was justified. While it
may be true that the Seamen were hired for a definite period their services could be
terminated prior to the completion of the fun term thereof for a just and valid cause.
It may be stated in passing that Vir-jen Shipping & Marine Services, Inc., despite the
fact that it was compelled to accede to a 25% salary increase for the Seamen, tried
to convince its principal Kyoei Tanker, Ltd. to an adjustment in their agency fee to
answer for the 25% increase, but the latter not only denied the request but likewise
terminated their Manning, Agreement. The Seamen's breach of their employment
contracts and the subsequent termination of the Manning Agreement of Vir-jen
Shipping & Marine Services, Inc. with the Kyoei Tanker, Ltd., justified the termination
of the Seamen's services.
With respect to the third issue the following are the findings of the Board:
As regards the claim of the Seamen for the payment of their salaries for the
unexpired portion of their employment contracts the same should be denied. This is
so because of the findings of the Board that their dismissal was legal and for a just
cause. Awards of this nature is proper only in cases where a seafarer is illegally
dismissed. (Pp. 148-151, Record)
Disagreeing with the foregoing findings of the NSB, the NLRC held:
The more important issue to be resolved in this case, however, is the question of
whether the Seamen violated their employment contracts when they demanded or
proposed and in fact accepted wages over and above their contracted rates. Stated
otherwise, could the Seamen rightfully demand or propose the revision of their
employment contracts? While they concede that they are bound by their contracts,
the Seamen claim that their cable asking for the revision of their contract rates was a
valid exercise of their right to grievance.
The right to grievance is recognized in this jurisdiction even if there is a valid and
subsisting contract, especially where there are supervening facts or events of which
a party to the contract was not apprised at the time of its conclusion. As pointed out
by the Supreme Court in the Wallem case, supra, it "is a basic right of all working
men to seek greater benefits not only for themselves but for their families as well ..."
and the "Constitution itself guarantees the promotion of social welfare and protection
to labor." In this care, records show that it was impressed on the Seamen that their
vessel would be trading only in Caribbean ports. This was admitted by the Company
in its cable to the Seamen on 10 January 1979. After the conclusion of their
contracts, however, and after they had boarded the vessel, the principals of the
Company directed the vessel to can at different ports or to engage in "worldwide
trade" which is admittedly more difficult and hazardous than trading in only one
maritime area. This is a substantial change in the original understanding of the
parties. Thus, in their cable asking for a wage increase, the Seamen expressed their
dissatisfaction by informing the Company that they were "not contented with (their)
present salary based on volume of work, type of ship with hazardous cargo
and registered in world wide trade."(emphasis supplied.) With such change in the
original agreement of the parties, we find that the Seamen were well within their
rights in demanding for the revision of their contract rates.
We also note that the Company was not exactly in good faith in contracting the
service of the Seamen. During his briefing in Manila, the Company instructed the
master of the vessel, complainant Bisula, to prepare two (2) sets of payrolls, one set
reflecting the actual salary rates of the Seamen and the other showing higher rates
based on Panamanian Shipping articles which approximate those prescribed by ITF
for its member seafarers. In compliance with this instruction, Bisula prepared the
latter payrolls. These payrolls were intended for the consumption of ITF if and when
the vessel called on ports where ITF rates were operational, the evident purpose
being to show ITF that the Company was paying the same rates prescribed by said
labor federation and thereby prevent the interdiction of the vessel. And when the
vessel was en route to Australia, an ITF-controlled port, the Company arranged for
the Seamen's membership with ITF and actually paid their membership fees without
their knowledge and consent, thereby exposing them to the danger of being
disciplined by the NSB Secretariat for having affiliated with ITF. All these have to be
mentioned here to better understand the feelings of the Seamen when they asked for
the revision of their wage rates. 2 (Pp. 83-85, Record)
Comparing these two decisions, We do not hesitate to hold that the NLRC overstepped the
boundaries of its reviewing authority and was overlenient. Whether or not respondents had breached
their contract wit petitioner is a factual issue, the peculiar nuances of which were better known to the
NSB, the fact-finding authority. Indeed, even if it was nothing more than the interpretation of the
cablegram sent by respondents to petitioner on March 23, 1979 that were the only question to be
resolved, that is, whether or not it carried with it or connoted a threat which naturally panicked
petitioner, which, to be sure, could be a question of law, still, as We see it, the conclusion of the
NLRC cannot be justified.
The NLRC ruled that in the exercise of their right to present any grievances they had and in their
desire to alleviate their condition, it was but well and proper for respondents to make a proposal for
increase of their wages, which petitioner could accept or reject. We do not see it that way.
Definitely, the reference in the cablegram to the conformity of petitioner to respondents' demand was
"the best and only solution to ITF problem" had an undertone which naturally placed petitioner hardly
in a position to answer them with a flat denial. It would be the acme of naivete for Us to go along with
the contention that the cablegram of March 23, 1979 was a mere proposal and had no trace nor tint
of threat at all. Indeed, it is alleged in the petition and there is no denial thereof that on April 23,
1979, Chief Mate Jacobo Catabay of the M/T Jannu, who was among the claimants at first, revealed
that:
On April 23, 1979, Chief Mate Jacobo H. Catabay of the M/T Jannu, in a signed
statement-report to the petitioner, marked and admitted in evidence as Exh. "10-A"
during the trial stated, as follows:
On our departure at Keelung, we did not have destination until three

(3) days later that Harman cabled us to proceed to Senipah,
Indonesia to load fun cargo to be discharged at Kwinana ,
Australia. Captain told everyone that if only we stayed so long with
the ship, he will report to ITF personally in order to get back wages. In
view that we only worked for three months so the back wages is so
small and does not worth. From that time on, Chief Engr. and Captain
have a nightly closed door conference they arrived at the conclusion
to ask for 50% salary increase and they have modified a certain
platforms. They certainly believe that Vir-jen have no choice because
the vessel is going to ITF port so they called a general meeting
conducted at the bridge during my duty hours in the afternoon. All
engine and deck personnel were present in that meeting. (Pp. 19-20,
Record.)
Well taken, indeed, is the Solicitor General's observation that:
Private respondents'conduct is uncalled for. While employees may be free to request

their employers to increase their wages, they should not use threat of such a nature
and in such a situation as to put the employer at their complete mercy and with no
choice but to accede to their demands or to face bankruptcy. This is what private
respondents did, which is an act of bad conduct prejudicial to the vessel, and a
material breach of the existing manning contract. It has adverse consequences that
led not only to the termination of the existing manning contract but to the rejection by
Kyoei Tanker Co. Ltd. of petitioner's offer to supply crew members to three other
vessels, thereby depriving unemployed Filipino seamen of the opportunity to work on
said vessels. Thus, in a letter dated May 17, 1979, Kyoei Tanker Co. Ltd. wrote
petitioner as follows:
This is with reference to your letter of Feb. 23, 1979, submitting your manning offers
on our three (3) managed vessels for delivery as follows:
1. M/V "Maya" crew,delivery end May, 1979,
2. M/T "Cedar" 28 crew, delivery end June, 1979,
3. M/T "Global Oath" 30 crew, delivery end, June 1979.
In this connection, we wish to advise you that, as a result of our unpleasant

experience with your crew on the M/T "Jannu", owners have decided to give the
manning contracts on the above three vessels to other foreign crew instead of your
company.
We deeply regret that although your crew performance on our other four (4) vessels
have been satisfactory, we were unable to persuade owners to consider your
Philippine crew because of the bad attitude and actuation of your crew manned on
board M/T "Jannu".
As we have already advised you, owners have spent more than US$30,000.00 to
replace the crew of M/T "Jannu" in Japan last April 19, 1979 which would have been
saved if your crew did not violate their employment contracts.(Annex "K"of Petition),
In the light of all the foregoing and the law and policy on the matter, it is submitted
that there was valid justification on the part of petitioner and/or its principal to
terminate the manning contract. (Pp. 12-14, Manifestation and Comment of the
Solicitor General.)
At first glance it might seem that the judgment of the NLRC should have more weight than that of
NSB. Having in view, however, the set up and relationship of these two entities framed by the Labor
Code, the NSB is not only charged directly with the administration of shipping companies in the
hiring of seamen for overseas employment by seeing to it that our seamen "secure the best possible
terms of employment for contract seamen workers and secure compliance therewith." Its
composition as of the time this controversy arose is worth notingfor it is made up of the Minister of
Labor as Chairman, the Deputy Minister as Vice Chairman, and a representative each of the
Ministries of Foreign Affairs, National Defense, Education and Culture, the Central Bank, the Bureau
of Employment Service, a worker's organization and an employee's organization and the Executive
Director of the Overseas Employment Development Board. (Article 23, Labor Code) It is such a
board that has to approve all contracts of Filipino seamen (Article 18, Labor Code). And after such
approval, the contract becomes unalterable, it being "unlawful" under Article 34 of the Code "for any
individual, entity, licensee or holder of authority: (i) to substitute or alter employment contracts
approved and verified by Department of Labor from the time of actual signing thereof by the parties
up to and including the period of expiration of the same without the approval of the Department of
Labor." In other words, it is not only that contracts may not be altered or modified or amended
without mutual consent of the parties thereto; it is further necessary to have the change approved by
the Department, otherwise, the guilty parties would be penalized.
The power of the NLRC in relation to the works and actuations of the NSB is only appellate,
according to Article 20 (b), read in relation to Article 223, principally, over questions of law, since as
to factual matters, it may exercise such appellate jurisdiction only "if errors in the findings of fact are
raised which would cause grave or irreparable damage or injury to the appellant." (par. d)
The NLRC has noted in its decision that respondents were originally made to believe that their ship
would go only to the Caribbean ports and yet after completing trips to Inchon, Korea and Kuwait and
Keelung, Taiwan, it was suddenly directed to call at Kwinana, Australia, an ITF controlled port. The
record shows that this imputation is more apparent than real, for respondents knew from the very
moment they were hired that world-wide voyages or destinations were contemplated in their
agreement. So much so that corresponding steps had to be taken to avoid interference of or trouble
about the ITF upon the ship's arrival at ITF controlled ports. As already stated earlier, the ITF
requires the seamen working on any vessel calling at ports controlled by them to be paid the rates
fixed by the ITF which are much higher than those provided in the contract's signed here, to the
extent of causing tremendous loss if not bankruptcy of the employer.
And so, as revealed to the NLRC later, in anticipation precisely of such peril to the employer and
ultimate unemployment of the seamen, in the instant case, the usual procedure undeniably known to
respondents of having two payroll's, one containing the actually agreed rates and the other ITF
rates, the latter to be shown to the ITF in order that the ship may not be detained or interdicted in
Kwinana, was followed. But according to the NLRC, this practice constitutes deception and bad faith,
and worse, it is an effect within the prohibition against alteration of contracts approved by the NSB,
considering there is nothing to show that NSB was made aware of the so-called addendum or side
agreement to the effect that should the ship manned by respondents be made to call an any ITF
controlled port, the contract with ITF rates would be shown and, if for any reason, the respondents
are required to be actually paid higher rates and they are so paid, the excess over the rates agreed
in the NSB contract shall be returned to petitioner later.
It is of insubstantial moment that the side agreement or addendum was not made known to or
presented as evidence before the NSB. We are persuaded that more or less the NSB knows that the
general practice is to have such side contracts. More importantly, the said side contracts are not
meant at all to alter or modify the contracts approved by the NSB. Rather, they are precisely
purported to enforce them to the letter, making it clearer that even if the ships have to call at ITF
controlled ports, the same shall remain to be the real and binding agreement between the parties, in
intentional disregard of whatever the ITF may exact.
We hold that there was no bad faith in having said side contracts, the intent thereof being to put into
effect the NSB directed arrangements that would protect the ship manning industry from unjust and
ruinning effects of ITF intervention. Indeed, examining the said side agreements, it is not correct to
say that the respondents were caught unaware, or by surprise when they were advised that the ship
would proceed to Kwinana, Australia, even assuming they had been somehow informed that they
would sail to the Caribbean. Said side agreements textually provide:
KNOW ALL MEN BY THESE PRESENTS:
This Addendum Agreement entered into by and between KYOEI TANKER CO.,
LTD., Principals, of the vessel M.T. "JANNU", represented herein by VIR-JEN
SHIPPING & MARINE SERVICES, INC., Manila, Philippines, as Manning Agents
(hereinafter referred to as the Company),
and
The herein-mentioned officers and crew, and engaged by the Company as

crewmembers of the vessel M/T "JANNU" with their positions, seaman certificate
numbers and signatures (hereinafter referred to as the Crewmember), hereunder
shown:
W I T N E S S E T H that:
1. WHEREAS, the Crewmember is hired and recruited as a member of the crew on

board the vessel M/T "JANNU" with the corresponding Contracts of Employment
submitted to, verified and duly approved by the National Seamen Board; that the
employment contract referred to, has clearly defined the rate of salary, wages, and/or
employment benefits for a period of one (1) year (or twelve (12) months), and any
extension thereof.
2. WHEREAS, the parties hereby further agree and covenant that should the above-
mentioned vessel enter, dock or drop anchor in ports of other countries, the
Crewmember shall not demand, ask or receive, and the Company shall have no
obligation to pay the Crewmember, salaries,, wages and/or benefits over and above
those provided for in the employment contract submitted to, verified and approved by
the National Seamen Board, which shall remain in full force and effect between the
parties. The Company as well as the Owners,, Charterers, Agents shall neither be
held accountable nor liable for any amount other than what is agreed upon and
stipulated in the aforesaid NSB-approved Contracts of Employment.
3. WHEREAS, the parties likewise agree that should the vessel enter, dock or drop
anchor in any foreign port, and in the event that the Company (and/or its Owners,
Charterers, Agents), are forced, pressured, coerced or compelled, in any way and for
whatever cause or reason, to pay the Crewmember either directly or thru their
respective allottees or other persons, salaries and benefits higher than those rates
imposed in the NSB-approved contract, the Crewmember hereby agrees and binds
himself to receive the said payment in behalf of, and in trust for, the Company
(and/or its Owners, Charterers, Agents), and to return the said amount in full to the
Company or to its agent/s in Manila, Philippines immediately upon his and/or his
allottees receipt thereof; the Crewmember hereby waives formal written demand by
the Company or its agent/s for the return thereof. The Crewmember hereby fully
understands that failure or refusal by him to return to the Company the said amount,
will render him criminally liable for Estafa, as provided for in the Revised Penal Code
of the Philippines, and in such case, the parties hereby agree that any criminal
and/or civil action in connection therewith shall be within the exclusive jurisdiction of
Philippine Courts.
4. WHEREAS, if, in order to avoid delays to the vessels, the Company is forced,
pressured, coerced or compelled to sign a Collective Bargaining Agreement or any
other Agreement with any foreign union, particularly ITF or ITF affiliated unions, and
to sign new crews' contract of employment stipulating higher wages, salaries or
benefits than the NSB-approved contract, the said agreements and contracts shall be
void from the beginning and the Crewmember shall be deemed to have automatically
waived the increased salaries and benefits stipulated in the said agreements and
employment contracts unto and in favor of the Company, and shall remain
unalterably bound by the rates, terms, and conditions of the NSB-approved contract.
5. WHEREAS, the parties also agree that should the Company, as a precautionary or
anticipatory measure for the purpose of avoiding costly delays to the vessel
prejudicial to its own interest, decide to negotiate and/or enter into any agreement in
advance with any foreign based union, particularly ITF or ITF affiliated unions, in any
foreign port where the vessel involved herein may enter, dock or drop anchor,
whatever increases in salaries or benefits to the Crewmember that the Company
may be compelled to give, over and above those stipulated in the NSB-approved
employment contracts of the Crewmember, shag, likewise, be deemed ineffective or
void from the beginning as far as the Crewmember is concerned, and any such
increases in salaries or benefits which the Crewmember shall receive pursuant
thereto shall be held by the Crewmembers in trust for the Company with the
obligation to return the same immediately upon receipt thereof, at the Company's or
its agent's office at Manila, Philippines. It is fully understood that the rates of pay and
all other terms and conditions embodied in the NSB-approved employment contracts
shall be of continuing validity and effectivity between the parties, irrespective of the
countries or ports where the said vessel shall enter, dock or drop anchor, and
irrespective of any agreement which the Company may enter or may have entered
into with any union, particularly ITF or ITF affiliated unions.
6. WHEREAS, it is likewise agreed that any undertaking made by the Company

and/or the National Seamen Board upon the request of the Company, imposed by
any foreign union, particularly ITF or ITF affiliated unions, which will negate or render
in effective any provisions of this agreement, shall also be considered null and void
from the beginning.
7. WHEREAS, lastly, this Addendum Agreement is entered into for the mutual
interest of both parties in line with the Company's desire to continue the service of
the Filipino crewmembers on board their vessel and the Crewmembers'desire to
keep their employment on board the subject vessel, thus maintaining the good image
of the Filipino seamen and contributing to the development of the Philippine manning
industry.
8. That both the Company and the Crewmember agree and bind themselves that this
Agreement shall be considered an addendum to, or as part of, the NSB-approved
employment contract entered into by the Company and the Crewmember.
IN WITNESS WHEREOF, we have hereunto affixed our signatures this December

28, 1978 at Manila, Philippines.
THE COMPANY
VIR-JEN SHIPPING & MARINE SERVICES, INC.
By:
(SGD.) CAPT. RUBEN R. BALTAZAR

Operations Dept.
THE CREWMEMBERS
Pos S Sig
itio C nat
Nam n # ure
e
1 Rube 2nd 1 SG
. n Mat 0 D.
Arroz e 4
a 7
2
8
2 Cres 3rd 9 SG
. encia Mat 1 D.
no e 6
Abra 6
zaldo 3
3 Salva Thir 8 SG
. dor d 4 D.
Caun Eng 9
an r. 9
5
4 Nilo 4th 1 SG
. Cruz Eng 5 D.
r. 7
7
6
2
5 Pacifi A/B 1 SG
. co 3 D.
Labio 9
s 0
4
5
6 Ram A/B 1 SG
. on 7 D.
Javie 0
r 5
4
5
7 Joaq A/B 9 SG
. uin 6 D.
Cord 5
ero 5
6
8 Rodo O/S 1 SG
. lfo 6 D.
Criso 2
stom 1
o 2
1
9 Rena O/S 1 SG
. to 3 D.
Olive 7
ros 1
3
2
1 Roge O/S 1 SG
0 lio 4 D.
. Sara 9
za 6
3
5
1 Nem Pu 1 SG
1 esio mp 5 D.
. Adug ma 7
n 2
1
5
1 Franc Oile 8 SG
2 isco r 9 D.
. Bene 4
merit 6
o 7
1 Rufin Oile 1 SG
3 o r 7 D.
. Gutie 3
rrez 6
6
3
1 Juol Oile 8 SG
4 Ram r 4 D.
. Maul 9
3
4
1 Steve Wip 1 SG
5 Mari er 4 D.
. o 6
0
9
6
1 Simpl Chi 1 SG
6 icio ef 6 D.
. Bauti Co 9
sta ok 1
4
2
1 Rom Sec 1 SG
7 eo ond 5 D.
. 9
Acost Co 9
a ok 6
0
1 Delfin Me 1 SG
8 Dago ss 4 D.
. hoy ma 4
n 0
9
6
1 Jose Me 1 SG
9 Enca ss 7 D.
. bo ma 9
n 5
5
1
(Pp. 99-103, Annex D-1 of Petition)
The NLRC has cited Wallem Philippine Shipping Inc. vs. The Minister of Labor, G. R. No. 50734-37,
February 20, 1981 (102 SCRA 835). No less than the Solicitor General maintains that said cited
case is not controlling:
A careful examination of Wallem Philippine Shipping Inc. vs. The Minister of Labor,
G. R. No. 50734-37, February, 20, 1981 shows that the same is dissimilar to the
case at bar. In the Wallem case, there was an express agreement between the
employer and the ITF representative, under which said employer bound itself to pay
the crew members salary rates similar to those of ITF. When the crew members in
the Wallem case demanded that they be paid ITF rates, they were merely asking
their employer to comply with what had been agreed upon with the ITF
representative, which conduct on their part cannot be said to be a violation of
contract but an effort to urge performance thereof. Such is not the situation in the
case at bar. In the case at bar, petitioner and private respondents had a side
agreement, whereby private respondents agreed to return to petitioner whatever
amounts petitioner would be required to pay under ITF rates. In other words,
petitioner and private respondents agreed that petitioner would not pay the ITF rate.
When private respondents used ITF as threat to secure increase in salary, they
violated the manning contract. Moreover, in the case at bar, petitioner terminated the
manning contract only after the NSB authorized it to do so, after it found the grounds
therefor to be valid. On the other hand, the termination of the manning contract in the
Wallem case was without prior authorization from the NSB.
It will be noted that private respondents sent a cable to petitioner demanding an

increase of 50% of their basic salary as the only solution to the ITF problem at a time
when the vessel M/T JANNU was enroute to Australia, an ITF port. The fact that
private respondents mentioned ITF in their cable clearly shows that if petitioner
would not accede to their demands, they would denounce petitioner to ITF. Thus,
Chief Mate Jacobo Catabay in his report dated April 23, 1979 (Exh. 10-A) stated:
On our departure at Keelung, we did not have destination until three

days later that Harman cabled us to proceed to Senipah, Indonesia to
load fun cargo to be discharged at Kwinana, Australia. Captain told
everyone that if only we stayed so long with the ship, he will report to
ITF personally in order to get back wages. In view that we only
worked for three months so the back wages is so small and does not
worth. From that time on, Chief Engr. and Captain have a nightly
closed door conference until they arrived at the conclusion to ask for
50% salary increase and they have modified a certain platforms.
They certainly believe that Vir-jen have no choice because the vessel
is going to ITF port so they called a general meeting conducted at the
bridge during my duty hours in the afternoon. All engines and deck
personnel were present in that meeting. (Emphasis supplied)
Reporting the wage scheme to the ITF would mean that the vessel would be
interdicted and detained in Australia unless petitioner pay the ITF rates, which
represent more than 100% of what is stipulated in the manning contract. Petitioner
was thus forced to grant private respondents an increase of 25% in their basic salary.
That such grant of a 25% increase was not voluntary is shown by the fact that
petitioner immediately denounced the seamen's conduct to NSB and subsequently
asked said agency authority to terminate the manning contract. (Pp. 10-12,
Manifestation & Comment of Solicitor General)
Summarizing, We are convinced that since the NSB, considering its official role in matters like those
now before Us, is the fact-finding body, and there is no sufficient cogency in the NLRC's finding that
there was no threat employed by respondents on petitioner, and, it appearing further that the well
prepared Manifestation and Comment of the Solicitor General supports the decision of the NSB,
which body, to Our mind, was in a better position than the NLRC to appraise the relevant nuances of
the actuations of both parties, We are of the considered view that the decision of the NLRC under
question constitutes grave abuse of discretion and should be set aside in favor of the NSB's
decision.
In El Hogar Filipino Mutual Building and Loan Association vs. Building Employees Inc., 107 Phil.
473, citing San Miguel Brewery vs. National Labor Union, 97 Phil. 378, We emphasized:
Much as we should expand beyond economic orthodoxy, we hold that an employer

cannot be legally compelled to continue with the employment of a person who
admittedly was guilty of misfeasance or malfeasance towards his employer, and
whose continuance in the service of the latter is patently inimical to his interest. The
law in protecting the rights of the laborer, authorizes neither the oppression nor self-
destruction of the employer. (Page 3, Record) (Emphasis supplied)
It is timely to add here in closing that situations wherein employers are practically laid in ambush or
placed in a position not unlike those in a highjack whether in the air, land or midsea must be
considered to be what they really are: acts of coercion, threat and intimidation against which the
victim has generally no recourse but to yield at the peril of irreparable loss. And when such
happenings affect the national economy, as pointed out by the Solicitor General, they must be
treated to be in the nature of economic sabotage. They should not be tolerated. This Court has to be
careful not to sanction them.
WHEREFORE, the petition herein is granted and the decision of the NLRC complained of hereby set
aside; the decision of the NSB should stand.
No costs.
G.R. No. L-58011 & L-58012 November 18, 1983
VIR-JEN SHIPPING AND MARINE SERVICES, INC., petitioner,

vs.
NATIONAL LABOR RELATIONS COMMISSION, ROGELIO BISULA RUBEN ARROZA JUAN
GACUTNO LEONILO ATOK, NILO CRUZ, ALVARO ANDRADA, NEMESIO ADUG SIMPLICIO
BAUTISTA, ROMEO ACOSTA, and JOSE ENCABO respondents.
Antonio R. Atienza for petitioner.
The Solicitor General for respondent NLRC,
Quasha, Asperilia, Ancheta &- Valmonte Pena Marcos Law Offices for private respondents.
RESOLUTION
GUTIERREZ, JR., J.: +.wph! 1
Before the Court en banc is a motion to reconsider the decision promulgated on July 20, 1982 which
set aside the decision of respondent National Labor Relations Commission and reinstated the
decision of the National Seamen Board.
To better understand the issues raised in the motion for reconsideration, we reiterate the
background facts of the case, Taken from the decision of the National Labor Relations
Commission: t.hqw
It appears that on different dates in December, 1978 and January, 1979, the Seamen
entered into separate contracts of employment with the Company, engaging them to
work on board M/T' Jannu for a period of twelve (12) months. After verification and
approval of their contracts by the NSB, the Seamen boarded their vessel in Japan.
On 10 January 1919, the master of the vessel complainant Rogelio H. Bisula,

received a cable from the Company advising him of the possibility that the vessel
might be directed to call at ITF-controlled ports said at the same time informing him
of the procedure to be followed in the computation of the special or additional
compensation of crew members while in said ports. ITF is the acronym for the
International Transport Workers Federation, a militant international labor organization
with affiliates in different ports of the world, which reputedly can tie down a vessel in
a port by preventing its loading or unloading, This is a sanction resorted to by ITF to
enforce the payment of its wages rates for seafarers the so-called ITF rates, if the
wages of the crew members of a vessel who have affiliated with it are below its
prescribed rates.) In the same cable of the Company, the expressed its regrets for
hot clarifying earlier the procedure in computing the special compensation as it
thought that the vessel would 'trade in Caribbean ports only.
On 22 March 1979, the Company sent another cable to complainant Bisula, this time
informing him of the respective amounts each of the officers and crew members
would receive as special compensation when the vessel called at the port of Kwinana
Australia, an ITF-controlled port. This was followed by another cable on 23 March
1979, informing him that the officers and crew members had been enrolled as
members of the ITF in Sidney, Australia, and that the membership fee for the 28
personnel complement of the vessel had already been paid.
In answer to the Company's cable last mentioned, complainant Bisula, in

representation of the other officers and crew members, sent on 24 March 1979 a
cable informing the Company that the officers and crew members were not
agreeable to its 'suggestion'; that they were not contented with their present salaries
'based on the volume of works, type of ship with hazardous cargo and registered in a
world wide trade': that the 'officers and crew (were) not interested in ITF membership
if not actually paid with ITF rate that their 'demand is only 50% increase based on
present basic salary and that the proposed wage increase is the 'best and only
solution to solve ITF problem' since the Company's salary rates 'especially in tankers
(are) very far in comparison with other shipping agencies in Manila ...
In reply, the Company proposed a 25% increase in the basic pay of the complainant
crew members, although it claimed, that it would "suffer and absorb considerable
amount of losses." The proposal was accepted by the Seamen with certain
conditions which were accepted by the Company. Conformably with the agreement
of the parties which was effected through the cables abovementioned, the Seamen
were paid their new salary rates.
Subsequently, the Company sought authority from the NSB to cancel the contracts of
employment of the Seamen, claiming that its principals had terminated their manning
agreement because of the actuations of the Seamen. The request was granted by
the NSB Executive Director in a letter dated 10 April 1979. Soon thereafter, the
Company cabled the Seamen informing them that their contracts would be
terminated upon the vessel's arrival in Japan. On 19 April 1979 they Arere asked to
disembark from the vessel, their contracts were terminated, and they were
repatriated to Manila. There is no showing that the Seamen were given the
opportunity to at least comment on the Company's request for the cancellation of
their contracts, although they had served only three (3) out of the twelve (12) months'
duration of their contracts.
The private respondents filed a complaint for illegal dismissal and non-payment of earned wages
with the National Seamen Board. The Vir-jen Shipping and Marine Services Inc. in turn filed a
complaint for breach of contract and recovery of excess salaries and overtime pay against the
private respondents. On July 2, 1980, the NSB rendered a decision declaring that the seamen
breached their employment contracts when they demanded and received from Vir-jen Shipping
wages over and above their contracted rates. The dismissal of the seamen was declared legal and
the seamen were ordered suspended.
The seamen appealed the decision to the NLRC which reversed the decision of the NSB and
required the petitioner to pay the wages and other monetary benefits corresponding to the unexpired
portion of the manning contract on the ground that the termination of the contract by the petitioner
was without valid cause. Vir-jen Shipping filed the present petition.
The private respondents submit the following issues in their motion for reconsideration: t.hqw
A. THIS HONORABLE COURT DID VIOLENCE TO LAW AND JURISPRUDENCE

WHEN IT HELD THAT THE FINDING OF FACT OF THE NATIONAL SEAMEN
BOARD THAT THE SEAMEN VIOLATED THEIR CONTRACTS IS MORE
CREDIBLE THAN THE FINDING OF FACT OF THE NATIONAL LABOR
RELATIONS COMMISSION THAT THE SEAMEN DID NOT VIOLATE THEIR
CONTRACT.
B. THIS HONORABLE COURT ERRED IN FINDING THAT VIR-JEN'S HAVING

AGREED TO A 25% INCREASE OF THE SEAMEN'S BASIC WAGE WAS NOT
VOLUNTARY BUT WAS DUE TO THREATS.
C. THIS HONORABLE COURT ERRED WHEN IT TOOK COGNIZANCE OF THE

ADDENDUM AGREEMENT; ASSUMING THAT THE ADDENDUM AGREEMENT
COULD BE TAKEN COGNIZANCE OF, THIS HONORABLE COURT ERRED
WHEN' IT FOUND THAT PRIVATE RESPONDENTS HAD VIOLATED THE SAME.
D, THIS HONORABLE COURT ERRED WHEN IT DID NOT FIND PETITIONER

VIRJEN LIABLE FOR HAVING TERMINATED BEFORE EXPIRY DATE THE
EMPLOYMENT CONTRACTS OF PRIVATE RESPONDENTS, THERE BEING NO
LEGAL AND JUSTIFIABLE GROUND FOR SUCH TERMINATION.
E. THIS HONORABLE COURT ERRED IN FINDING THAT THE PREPARATION BY

PETITIONER OF THE TWO PAYROLLS AND THE EXECUTION OF THE SIDE
CONTRACT WERE NOT MADE IN BAD FAITH.
F. THIS HONORABLE COURT INADVERTENTLY DISCRIMINATED AGAINST

PRIVATE RESPONDENTS.
At the outset, we are faced with the question whether or not the Court en banc should give due
course to the motion for reconsideration inspite of its having been denied twice by the Court's
Second Division. The case was referred to and accepted by the Court en banc because of the
movants' contention that the decision in this case by the Second Division deviated from Wallem Phil.
Shipping Inc. v. Minister of Labor (L-50734-37, February 20, 1981), a First Division case with the
same facts and issues. We are constrained to answer the initial question in the affirmative.
A fundamental postulate of Philippine Constitutional Law is the fact, that there is only one Supreme
Court from whose decisions all other courts are required to take their bearings. (Albert v. Court of
First Instance, 23 SCRA 948; Barrera v. Barrera, 34 SCRA 98; Tugade v. Court of Appeals, 85
SCRA 226). The majority of the Court's work is now performed by its two Divisions, but the Court
remains one court, single, unitary, complete, and supreme. Flowing from this nature of the Supreme
Court is the fact that, while ' individual Justices may dissent or partially concur with one another,
when the Court states what the law is, it speaks with only one voice. And that voice being
authoritative should be a clear as possible.
Any doctrine or principle of law laid down by the Court, whether en banc or in Division, may be
modified or reversed only by the Court en banc. (Section 2(3), Article X, Constitution.) In the rare
instances when one Division disagrees in its views with the other Division, or the necessary votes on
an issue cannot be had in a Division, the case is brought to the Court en banc to reconcile any
seeming conflict, to reverse or modify an earlier decision, and to declare the Court's doctrine. This is
what has happened in this case.
The decision sought to be reconsidered appears to be a deviation from the Court's decision,
speaking through the First Division, in Wallem Shipping, Inc. v. Hon. Minister of Labor (102 SCRA
835). Faced with two seemingly conflicting resolutions of basically the same issue by its two
Divisions, the Court. therefore, resolved to transfer the case to the Court en banc. Parenthetically,
the petitioner's comment on the third motion for reconsideration states that the resolution of the
motion might be the needed vehicle to make the ruling in the Wallem case clearer and more in time
with the underlying principles of the Labor Code. We agree with the petitioner.
After an exhaustive, painstaking, and perspicacious consideration of the motions for reconsideration
and the comments, replies, and other pleadings related thereto, the Court en banc is constrained to
grant the motions. To grant the motion is to keep faith with the constitutional mandate to afford
protection to labor and to assure the rights of workers to self-organization and to just and humane
conditions of work. We sustain the decision of the respondent National labor Relations Commission.
There are various arguments raised by the petitioners but the common thread running through all of
them is the contention, if not the dismal prophecy, that if the respondent seamen are sustained by
this Court, we would in effect "kill the en that lays the golden egg." In other words, Filipino seamen,
admittedly among the best in the world, should remain satisfied with relatively lower if not the lowest,
international rates of compensation, should not agitate for higher wages while their contracts of
employment are subsisting, should accept as sacred, iron clad, and immutable the side contracts
which require them to falsely pretend to be members of international labor federations, pretend to
receive higher salaries at certain foreign ports only to return the increased pay once the ship leaves
that port, should stifle not only their right to ask for improved terms of employment but their freedom
of speech and expression, and should suffer instant termination of employment at the slightest sign
of dissatisfaction with no protection from their Government and their courts. Otherwise, the
petitioners contend that Filipinos would no longer be accepted as seamen, those employed would
lose their jobs, and the still unemployed would be left hopeless.
This is not the first time and it will not be the last where the threat of unemployment and loss of jobs
would be used to argue against the interests of labor; where efforts by workingmen to better their
terms of employment would be characterized as prejudicing the interests of labor as a whole.
In 1867 or one hundred sixteen years ago. Chief Justice Beasley of the Supreme Court of New
Jersey was ponente of the court's opinion declaring as a conspiracy the threat of workingmen to
strike in connection with their efforts to promote unionism, t.hqw
It is difficult to believe that a right exists in law which we can scarcely conceive can
produce, in any posture of affairs, other than injuriois results. It is simply the right of
workmen, by concert of action, and by taking advantage of their position, to control
the business of another, I am unwilling to hold that a right which cannot, in any,
event, be advantageous to the employee, and which must always be hurtful to the
employer, exists in law. In my opinion this indictment sufficiently shows that the force
of the confederates was brought to bear upon their employer for the purpose of
oppression and mischief and that this amounts to a conspiracy, (State v. Donaldson,
32 NJL 151, 1867. Cited in Chamberlain, Sourcebook on Labor, p. 13. Emphasis
supplied)
The same arguments have greeted every major advance in the rights of the workingman. And they
have invariably been proved unfounded and false.
Unionism, employers' liability acts, minimum wages, workmen's compensation, social security and
collective bargaining to name a few were all initially opposed by employers and even well meaning
leaders of government and society as "killing the hen or goose which lays the golden eggs." The
claims of workingmen were described as outrageously injurious not only to the employer but more so
to the employees themselves before these claims or demands were established by law and
jurisprudence as "rights" and before these were proved beneficial to management, labor, and the
nation as a whole beyond reasonable doubt.
The case before us does not represent any major advance in the rights of labor and the workingmen.
The private respondents merely sought rights already established. No matter how much the
petitioner-employer tries to present itself as speaking for the entire industry, there is no evidence that
it is typical of employers hiring Filipino seamen or that it can speak for them.
The contention that manning industries in the Philippines would not survive if the instant case is not
decided in favor of the petitioner is not supported by evidence. The Wallem case was decided on
February 20, 1981. There have been no severe repercussions, no drying up of employment
opportunities for seamen, and none of the dire consequences repeatedly emphasized by the
petitioner. Why should Vir-jen be all exception?
The wages of seamen engaged in international shipping are shouldered by the foreign principal. The
local manning office is an agent whose primary function is recruitment and who .usually gets a lump
sum from the shipowner to defray the salaries of the crew. The hiring of seamen and the
determination of their compensation is subject to the interplay of various market factors and one key
factor is how much in terms of profits the local manning office and the foreign shipowner may realize
after the costs of the voyage are met. And costs include salaries of officers and crew members.
Filipino seamen are admittedly as competent and reliable as seamen from any other country in the
world. Otherwise, there would not be so many of them in the vessels sailing in every ocean and sea
on this globe. It is competence and reliability, not cheap labor that makes our seamen so greatly in
demand. Filipino seamen have never demanded the same high salaries as seamen from the United
States, the United Kingdom, Japan and other developed nations. But certainly they are entitled to
government protection when they ask for fair and decent treatment by their employer.-, and when
they exercise the right to petition for improved terms of employment, especially when they feel that
these are sub-standard or are capable of improvement according to internationally accepted rules. In
the domestic scene, there are marginal employers who prepare two sets of payrolls for their
employees one in keeping with minimum wages and the other recording the sub-standard wages
that the employees really receive, The reliable employers, however, not only meet the minimums
required by fair labor standards legislation but even go way above the minimums while earning
reasonable profits and prospering. The same is true of international employment. There is no reason
why this Court and the Ministry of Labor and. Employment or its agencies and commissions should
come out with pronouncements based on the standards and practices of unscrupulous or inefficient
shipowners, who claim they cannot survive without resorting to tricky and deceptive schemes,
instead of Government maintaining labor law and jurisprudence according to the practices of
honorable, competent, and law-abiding employers, domestic or foreign.
If any minor advantages given to Filipino seamen may somehow cut into the profits of local manning
agencies and foreign shipowners, that is not sufficient reason why the NSB or the ILRC should not
stand by the former instead of listening to unsubstantiated fears that they would be killing the hen
which lays the golden eggs.
Prescinding from the above, we now hold that neither the National Seamen Board nor the National
Labor Relations Commission should, as a matter of official policy, legitimize and enforce cubious
arrangements where shipowners and seamen enter into fictitious contracts similar to the addendum
agreements or side contracts in this case whose purpose is to deceive. The Republic of the
Philippines and its ministries and agencies should present a more honorable and proper posture in
official acts to the whole world, notwithstanding our desire to have as many job openings both here
and abroad for our workers. At the very least, such as sensitive matter involving no less than our
dignity as a people and the welfare of our workingmen must proceed from the Batasang Pambansa
in the form of policy legislation, not from administrative rule making or adjudication
Another issue raised by the movants is whether or not the seamen violated their contracts of
employment.
The form contracts approved by the National Seamen Board are designed to protect Filipino seamen
not foreign shipowners who can take care of themselves. The standard forms embody' the basic
minimums which must be incorporated as parts of the employment contract. (Section 15, Rule V,
Rules and Regulations Implementing the Labor Code.) They are not collective bargaining
agreements or immutable contracts which the parties cannot improve upon or modify in the course
of the agreed period of time. To state, therefore, that the affected seamen cannot petition their
employer for higher salaries during the 12 months duration of the contract runs counter to
established principles of labor legislation. The National Labor Relations Commission, as the
appellate tribunal from decisions of the National Seamen Board, correctly ruled that the seamen did
not violate their contracts to warrant their dismissal.
The respondent Commission ruled: t.hqw
In the light of all the foregoing facts, we find that the cable of the seamen proposing
an increase in their wage rates was not and could not have been intended as a threat
to comp el the Company to accede to their proposals. But even assuming, if only for
the sake of argument, that the demand or proposal for a wage increase was
accompanied by a threat that they would report to ITF if the Company did not accede
to the contract revision - although there really was no such threat as pointed out
earlier the Seamen should not be held at fault for asking such a demand. In the
same case cited above, the Supreme Court held: t.hqw
Petitioner claims that the dismissal of private respondents was

justified because the latter threatened the ship authorities in acceding
to their demands, and this constitutes serious misconduct as
contemplated by the Labor Code. This contention is not well-
taken. But even if there had been such a threat, respondents'
behavior should not be censured because it is but natural for them to
employ some means of pressing their demands for petitioner, the
refusal to abide with the terms of the Special Agreement, to honor
and respect the same, They were only acting in the exercise of their
rights, and to deprive them of their freedom of expression is contrary
to law and public policy. There is no serious misconduct to speak of
in the case at bar which would justify respondents' dismissal just
because of their firmness in their demand for the fulfillment by
petitioner of its obligation it entered into without any coercion,
specially on the part of private respondents. (Emphasis supplied).
The above citation is from Wallem.
The facts show that when the respondents boarded the M/T Jannu there was no intention to send
their ship to Australia. On January 10, 1979, the petitioner sent a cable to respondent shipmaster
Bisula informing him of the procedure to be followed in the computation of special compensation of
crewmembers while in ITF controlled ports and expressed regrets for not having earlier clarified the
procedure as it thought that the vessel would trade in Carribean ports only.
On March 22, 1979, the petitioner sent another cable informing Bisula of the special compensation
when the ship would call at Kwinana Australia.
The following day, shipmaster Bisula cabled Vir-jen stating that the officers and crews were not
interested in ITF membership if not paid ITF rates and that their only demand was a 50 percent
increase based on their then salaries. Bisula also pointed out that Vir-jen rates were "very far in
comparison with other shipping agencies in Manila."
In reply, Vir-jen counter proposed a 25 percent increase. Only after Kyoei Tanker Co., Ltd., declined
to increase the lumps sum amount given monthly to Vir-jen was the decision to terminate the
respondents' employment formulated.
The facts show that Virjen Initiated the discussions which led to the demand for increased . The
seamen made a proposal and the petitioner organized with a counter-proposal. The ship had not vet
gone to Australia or any ITF controlled port. There was absolutely no mention of any strike. much
less a threat to strike. The seamen had done in act which under Philippine law or any other civilized
law would be termed illegal, oppressive, or malicious. Whatever pressure existed, it was mild
compared to accepted valid modes of labor activity.
We reiterate our ruling in Wallem. t.hqw
Petitioner claims that the dismissal of private respondents was

justified because the latter threatened the ship authorities in acceding
to their demands, and this constitutes serious misconduct as
contemplated by the Labor Code. This contention is not well-taken.
The records fail to establish clearly the commission of any threat, But
even if there had been such a threat, respondents' behavior should
not be censured because it is but natural for them to employ some
means of pressing their demands for petitioner, who refused to abide
with the terms of the Special Agreement, to honor and respect the
same, They were only acting in the exercise of their rights, and to
deprive them of their form of expression is contrary to law and public
policy. ...
Our dismissing the petition is premised on the assumption that the Ministry of Labor and
Employment and all its agencies exist primarily for the workinginan's interests and, of course, the
nation as a whole. The points raised by the Solicitor-General in his comments refer to the issue of
allowing what the petitioner importunes under the argument of "killing the hen which lays the golden
eggs." This is one of policy which should perhaps be directed to the Batasang Pambansa and to our
country's other policy makers for more specific legislation on the matter, subject to the constitutional
provisions protecting labor, promoting social justice, and guaranteeing non-abridgement of the
freedom of speech, press, peaceable assembly and petition. We agree with the movants that there
is no showing of any cause, which under the Labor Code or any current applicable law, would
warrant the termination of the respondents' services before the expiration of their contracts. The
Constitution guarantees State assurance of the rights of workers to security of tenure. (Sec. 9,
Article II, Constitution). Presumptions and provisions of law, the evidence on record, and
fundamental State policy all dictate that the motions for reconsideration should be granted.
WHEREFORE, the motions for reconsideration are hereby GRANTED. The petition is DISMISSED
for lack of merit. The decision of the National Labor Relations Commission is AFFIRMED. No costs.
SO ORDERED. 1w ph1.t

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G.R. No.

113161 August 29, 1995

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

Appellant further argues that "there is no evidence of receipts of collections/payments from

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

1. Criminal Case No. 6113-MN

2. Criminal Case 6114-MN

3. Criminal Case No. 6125-MN

4. Criminal Case No. 6131-MN

5. Criminal Case No. 6143.-MN

6. Criminal Case No. 6148-MN

The cases were consolidated and jointly tried.

The accused (Abelardo C. Avedao) is the Treasurer of MCBRAJ Agro-Industrial

It is admitted that MAINDECO is not licensed or authorized by the Department of

WHEREFORE, in view of the foregoing, judgement is hereby rendered finding

Cost against the accused in all the above-entitled cases.

The appeal has no merit.

Illegal recruitment is deemed committed by a syndicate if carried out by a group of

xxx xxx xxx

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

CAMPOS, JR., J.:

WHEREFORE, judgment is hereby rendered in these cases as follows:

1. Prudencio Renon P19,000.00

2. Fernando Gagtan 20,000.00

3. Angelino Obiacoro 20,000.00

4. Ludovico Gagtan 10,000.00

With costs against the accused.

Accused-appellants raised the following assignment of errors, to wit:

IN FAILING TO APPRECIATE THE QUANTUM OF EVIDENCE IN FAVOR OF THE

IN HOLDING THAT THE PROSECUTION HAS MARSHALLED THE DEGREE OF

Article 38 (a) of the Labor Code provides as follows:

Under Article 13 (b) Recruitment and Placement is defined as:

Any act of canvassing, enlisting, contracting transporting, utilizing, hiring or procuring

The crime of illegal recruitment has two elements:

1 The offender is a non-license or non-holder of authority to lawfully engage in the

Accused-appellants point to a certain Belen Hernandez, a manager of Mcgleo International

Ernesto Orcullo y Nicolas - P15,000.00

The informations for estafa aver substantially the same allegations as

"In Criminal Case No. 277-93:

"WHEREFORE, judgment is hereby rendered as follows:

On appeal to this Court, accused-appellant assigns a single error allegedly

"THE TRIAL COURT GRAVELY ERRED IN FINDING THE ACCUSED GUILTY

The case for the prosecution averred the following facts:

Dionisa Latina testified that she is the wife of complainant Manuel

date, accused-appellant kept on promising them that Manuel would be able to

There is no showing that any of the complainants had ill-motives against

"(A)ny act of canvassing, enlisting, contracting, transporting, utilizing, hiring or

It is clear that accused-appellant's acts of accepting placement fees from

(b) Illegal recruitment when committed by a syndicate or in large scale shall be

Illegal recruitment is deemed committed by a syndicate if carried out by a group of

The POEA having certified that accused-appellant is not authorized to

a) that the accused defrauded another by abuse of confidence or by means of deceit,

b) that damage or prejudice capable of pecuniary estimation is caused to the offended

Both elements have been proven in this case.

WHEREFORE, the judgment appealed from finding accused-appellant Tan

G.R. No. 113547 February 9, 1995

The facts are as found by the appellate court:

Appellant's defense does not persuade us.

P100,000.00 October 11, 1991

RECEIVED FROM: ROMEO PAGUIO, the amount of ONE HUNDRED THOUSAND

(Sgd.) ROMEO PAGUIO (Sgd.) MRS. ANNIE BAUTISTA

c/o Rosa Abrero

SIGNED IN THE PRESENCE OF:

(Sgd.) Anastacio Amor Remigio Fortes