Even before the advent of the ASEAN INTEGRATION, there has been an influx of foreign workers lining up in the DOLE Regional Office, applying for an Alien Employment Permit. They are duty-bound to have this permit before working in any part of the Philippines, under Article 40, Book One of the Labor Code of the Philippines. The law provides that any alien seeking admission to the Philippines for employment purposes and any domestic or foreign employer who desires to engage an alien for employment in our country, shall obtain such employment permit. Such permit can be granted only if there is no available Filipino who is competent, able and willing at the time of the application to perform the services for which the alien is intended to be employed.
This is a protectionist policy and legal provision that expresses preference for Filipino workers. That is why we often read in our local and national newspaper of general circulation such announcements signed by the regional director of DOLE. The purpose of publication is to inform the Filipinos and to give them a chance to file an opposition or objection to hiring foreign workers if the Filipino objector is competent to do the job, and he is both able (with all the qualifications and none of the disqualifications), and he is willing to accept the job and the compensation package. Thus, we are urging Filipinos to watch these announcements and if they want, to file their opposition accordingly.
The Supreme Court has already decided a case involving a foreigner, Tim Cone who applied for a work permit in the Philippines to work as a basketball coach for the ALASKA TEAM owned by General Milling Corporation. At first the permit was granted because there was no objection. However, when Cone applied for renewal after one year, the Basketball Coaches Association of the Philippines filed an opposition. The regional director granted the permit, but on appeal by the association, Secretary Ruben Torres of the DOLE cancelled the permit and disallowed Tim Cone from resuming his coaching duties. The Supreme Court affirmed the DOLE Secretary's decision. The Filipinos have the right of first refusal relative to all jobs in the Philippines.
The case we are citing above is the case of General Milling Corporation versus Secretary Ruben Torres and the Basketball Coaches Association of the Philippines, GR No 9366, decided on 22 April 1991. The only reason why Tim Cone continued to work thereafter is that he allegedly married a Filipino woman and was granted permanent resident status with all the rights appurtenant thereto. This case illustrates how the State provides full protection to Filipino labor in accordance with Article XIII, Section 3 of the Constitution. Under Section 12 of Article XII of the same Constitution, there is an explicit preference for the use of Filipino labor. If some 12 million Filipinos have to migrate to about 200 countries all over the world just to find work, it is only proper that here in our country, they should be granted preference in work.
Under Article 40 of the Code, for enterprises registered in industries that are preferred areas for investment, the application for alien employment permit may be issued upon the recommendation of the PEZA. Under Article 41, after the permit is issued to a particular alien worker, he cannot transfer to another employer without the prior approval of the DOLE Secretary. Any alien of this provision and that of Article 40 shall be subject to prosecution under article 294, which may result to imprisonment of at least three months to a maximum of three years. Moreover, the erring alien shall be subject to deportation after serving his prison sentence.