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Republic of the Philippines
‘Wouse of Representatives
Quejon City, Metro flanila

Nineteenth Congress

Third Regular Session
House Bill No.

Introduced by:

HON. MARISSA ‘DEL MAR’ MAGSINO
OFW PARTY LIST

EXPLANATORY NOTE

‘The 1987 Constitution upholds the right of every person to due process and
equal protection of the law. Moreover, the fundamental law mandates the State to
accord all members of the labor sector, including overseas Filipino workers (OFWs), the
full protection of their rights and welfare. More so in cases of illegal dismissal from their
jobs and in their claims for their unpaid salaries for the unexpired portion of their
employment contracts.

Accordingly, in a long-line of cases, the Supreme Court has consistently ruled
that in cases of illegal dismissal, OFWs are entitled to their salaries for the unexpired
portion of their contracts.

On June 7, 1995, Republic Act No. 8042, also known as the ‘Migrant Workers and
Overseas Filipinos Act of 1995’ was enacted into law which provides in Section 10,
paragraph 5, that:

in case of termination of overseas employment without just, valid or
authorized cause as defined by law or contract, the workers shall be
entitled to the full reimbursement of his placement fee with interest of
twelve percent (12%) per annum, plus_his salaries for the unexpired
portion of his employment contract, or for three (3) months for every year
ofunexpired term, whichever is less’.

Significantly, however, the High Court in Antonio M. Serrano vs Gallant Maritime
Services (G.R. No. 167614, March 24, 2009) declared the last phrase of the fifth paragraph


of RA 8042, that is, ‘or for three (3) months for every year of unexpired term,
whichever is less’, as unconstitutional for being violative of the equal protection clause,
substantive due process, and the protection to labor clause. The Court noted:

‘Prior to RA 8042, all OFWs, regardless of contract periods or the
unexpired portions thereof, were treated alike in terms of the
computation of their monetary benefits in case of illegal dismissal. Their
claims were subjected to a uniform rule of computation: their basic
salaries multiplied by the entire unexpired portion of their employment
contracts. The enactment of the subject clause in RA 8042 introduced a
differentiated rule of computation, ... the subject clause creates a sub-
layer of discrimination among OFWs: those who are illegally dismissed
with less than one (1) year left in their contracts shall be entitled to their
salaries for the entire unexpired portion of the contract, while those who
are illegally dismissed with one year or more remaining in their contracts
shall be covered by the subject clause, and their monetary benefits limited
to their salaries for three (3) months only for every year of the unexpired
term of their contracts.’

The subject clause singles out one classification of OFWs; those who are illegally
dismissed with one year or more remaining in their contracts and impermissibly
interferes with their exercise of a fundamental right (entitlement to claim unpaid
salaries for the unexpired portion of contract) which operates to the unreasonable
disadvantage of the burdened class.

Unfortunately, the clause (last phrase of the fifth paragraph of Section 10 of RA
8042) struck down by the Court in the Serrano case, was reinstated in Republic Act No.
10022 promulgated on March 8, 2010, amending RA 8042. This presents a unique
situation where the law more recently passed incorporates the exact clause already
declared as unconstitutional, without any perceived substantial change in the
circumstances.

Addressing the peculiar situation, the Supreme Court stated in Sameer Overseas
Placement Agency vs Joy Cabiles, G. R. No. 170139, August 5, 2014:

‘In the hierarchy of laws, the Constitution is supreme. Thus, when a
ision of law is itis inconsis i c
it i i n Ir
@ similar law or provision. A law or provision of law that was already
declared unconstitutional remains as such unless circumstances have so
changed so as to warrant a reverse conclusion.’

This bill seeks to amend paragraph 5 of Section 10 of RA 8042 as amended by RA
10022 by deleting the phrase ‘or for three (3) months for every year of unexpired term,
whichever is less’, in order to harmonize the text of the law with the Supreme Court's
decisions in the Serrano and Sameer cases declaring the subject phrase unconstitutional


for violating the substantive due process and equal protection clauses, and the
protection to labor clause.

This proposed measure is an adoption of House Bill No. 5988 principally
authored by AKBAYAN Partylist Representative Tomasito Villarin, which was passed on
Third Reading in the 16 Congress, but failed to be enacted into law due to lack of
material time.

In the light of the foregoing, the immediate passage of this bill is earnestly
sought.

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HON. ‘DEL MAR’ \GSINO


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Republic of the Philippines
House of Representatives
Queson City, Metro HMlanila

Nineteenth Congress

Third Regular Session
House Bill No. 1G

Introduced by:
HON. MARISSA ‘DEL MAR’ MAGSINO
OFW PARTY LIST

AN ACT
GRANTING THE OVERSEAS FILIPINO WORKERS THE RIGHT TO EQUAL
PROTECTION ON MONEY CLAIMS, AMENDING FOR THE PURPOSE THE FIFTH
PARAGRAPH OF SECTION 10 OF REPUBLIC ACT NO. 8042, AS AMENDED BY
REPUBLIC ACT NO. 10022, OTHERWISE KNOWN AS THE ‘MIGRANT WORKERS AND
OVERSEAS FILIPINOS ACT OF 1995'

Be it enacted by the Senate and House of Representatives of the Philippines in Congress
assembled:

Section 1. The fifth paragraph of Section 10 of Republic Act No. 8042, otherwise
known as the ‘Migrant Workers and Overseas Filipinos Act of 1995’, as amended by
Republic Act No. 10022, is hereby further amended to read as follows:

‘Section 10. Money Claims. - x x x

In case of termination of overseas employment without just, valid
or authorized cause as defined by law or contract, or any unauthorized
deductions from the migrant worker's salary, the worker shall be
entitled to the full reimbursement of his placement fee and the
deductions made with interest at twelve percent (12%) per annum, plus
his salaries for the unexpired portion of his employment contract [or for


three_{3} months _forevery_yearof the unexpired teri, whichever is,
Jess].

Section 2. All laws, presidential decrees, issuances, executive orders, letters of
instruction, rules or regulations inconsistent with the provisions of this Act are hereby

repealed or modified accordingly.

Section 3. This Act shall take effect fifteen (15) days after its publication in the Official
Gazette or in a newspaper of general circulation.

Approved.