PHILIPPINE ASSOCIATION OF SERVICE EXPORTERS, INC., PETITIONER, VS. HON. RUBEN D. TORRES, AS SECRETARY OF THE DEPARTMENT OF LABOR & EMPLOYMENT, AND JOSE N. SARMIENTO, AS ADMINIST…

This petition for prohibition with temporary restraining order
was filed by the Philippine Association of Service Exporters (PASEI, for
short), to prohibit and enjoin the Secretary of the Department of Labor and
Employment (DOLE) and the Administrator of the Philippine Overseas Employment
Administration (or POEA) from enforcing and implementing DOLE Department Order
No. 16, Series of 1991 and POEA Memorandum Circulars Nos. 30 and 37, Series of
1991, temporarily suspending the recruitment by private employment agencies of
Filipino domestic helpers for Hong Kong and vesting in the DOLE, through the
facilities of the POEA, the task of processing and deploying such workers.

PASEI is the largest national organization of private employment
and recruitment agencies duly licensed and authorized by the POEA, to engage in
the business of obtaining overseas employment for Filipino landbased workers,
including domestic helpers.

On June 1, 1991, as a result of published stories regarding the
abuses suffered by Filipino housemaids employed in Hong Kong, DOLE Secretary
Ruben D. Torres issued Department Order No. 16, Series of 1991, temporarily
suspending the recruitment by private employment agencies of “Filipino
domestic helpers going to Hong Kong” (p. 30, Rollo). The DOLE itself, through the POEA took over
the business of deploying such Hong Kong-bound workers.

“In view of the need to establish mechanisms that will enhance
the protection for Filipino domestic helpers
going to Hong Kong, the recruitment of the same by
private employment agencies is hereby temporarily suspended
effective 1 July 1991. As such, the
DOLE through the facilities of the Philippine Overseas Employment
Administration shall take over the processing and deployment of household
workers bound for Hong Kong, subject to guidelines to be issued for said
purpose.

“In support of this policy, all DOLE Regional Directors and
the Bureau of Local Employment’s regional offices are likewise directed to
coordinate with the POEA in maintaining a manpower pool of prospective domestic
helpers to Hong Kong on a regional basis.

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

Pursuant to the above DOLE circular, the POEA issued Memorandum
Circular No. 30, Series of 1991, dated July 10, 1991, providing GUIDELINES on
the Government processing and deployment of Filipino domestic helpers to Hong
Kong and the accreditation of Hong Kong recruitment agencies intending to hire
Filipino domestic helpers.

“Subject: Guidelines on the Temporary Government Processing and Deployment
of Domestic Helpers to Hong Kong

“Pursuant to
Department Order No. 16, series of 1991 and in order to operationalize the
temporary government processing and deployment of domestic helpers (DHs) to
Hong Kong resulting from the temporary suspension of recruitment by private
employment agencies for said skill and host market, the following guidelines
and mechanisms shall govern the implementation of said policy:

“I. Creation of a Joint POEA-OWWA
Household Workers Placement Unit (HWPU)

“An ad hoc, one stop Household Workers Placement Unit [or
HWPU] under the supervision of the POEA shall take charge of the various operations involved in
the Hong Kong-DH industry segment:

“The HWPU shall have the following functions in coordination
with appropriate units and other entities concerned:

“1. Negotiations with
and Accreditation of Hong Kong Recruitment Agencies

“2. Manpower Pooling

“3. Worker Training and
Briefing

“4. Processing and Deployment

“5. Welfare Programs

“II. Documentary Requirements and Other Conditions for Accreditation
of Hong Kong Recruitment Agencies or Principals

“Recruitment agencies in Hong Kong intending to hire Filipino
DHs for their employers may negotiate with the HWPU in Manila directly or
through the Philippine Labor Attache’s Office in Hong Kong.

“xxx                                       xxx                                           xxx

“X. Interim Arrangement

“All contracts stamped in Hong Kong as of June 30 shall
continue to be processed by POEA
until 31 July 1991 under the name of the Philippine agencies concerned. Thereafter, all contracts shall be processed
with the HWPU.

“Recruitment agencies in Hong Kong shall submit to the
Philippine Consulate General in Hong Kong a list of their accepted applicants
in their pool within the last week of July. The last day of acceptance shall be July 31 which shall then be the
basis of HWPU in accepting contracts for processing. After the exhaustion of their respective pools the only source of
applicants will be the POEA manpower pool.

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

On August 1, 1991, the POEA Administrator also issued Memorandum
Circular No. 37, Series of 1991,
on the processing of employment contracts of domestic workers for
Hong Kong.

“TO: All Philippine and Hong Kong
Agencies engaged in the recruitment of Domestic helpers for Hong Kong

“Further to Memorandum Circular No. 30, series of 1991
pertaining to the government processing and deployment of domestic helpers
(DHs) to Hong Kong, processing of employment contracts
which have been attested by the Hong Kong Commissioner of Labor up to 30 June
1991 shall be processed by the POEA Employment Contracts Processing Branch up
to 15 August 1991 only.

“Effective 16 August 1991, all Hong Kong recruitment agent/s
hiring DHs from the Philippines shall recruit under the new scheme which
requires prior accreditation with the POEA.

“Recruitment agencies in Hong Kong may apply for accreditation
at the Office of the Labor Attache, Philippine Consulate General where a POEA team is posted until 31 August
1991. Thereafter, those who failed to
have themselves accredited in Hong Kong may proceed to the POEA-­OWWA Household
Workers Placement Unit in Manila for accreditation before their recruitment and
processing of DHs shall be allowed.

“Recruitment agencies in Hong Kong who have some accepted
applicants in their pool after the cut-off period shall submit this list of
workers upon accreditation. Only those
DHs in said list will be allowed processing outside of the HWPU manpower pool.

“For strict compliance of all concerned.” (Emphasis
supplied, p. 36, Rollo.)

On September 2, 1991, the petitioner, PASEI, filed this petition
for prohibition to annul the aforementioned DOLE and POEA circulars and to
prohibit their implementation for the following reasons:

1. that the respondents
acted with grave abuse of discretion and/or in excess of their rule-making
authority in issuing said circulars;

2. that the assailed DOLE
and POEA circulars are contrary to the Constitution, are unreasonable, unfair
and oppressive; and

3. that the requirements of
publication and filing with the Office of the National Administrative Register
were not complied with.

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

Article 36 of the Labor Code grants the Labor Secretary the power
to restrict and regulate recruitment and placement activities.

“Art. 36. Regulatory Power. – The Secretary of Labor shall
have the power to restrict and regulate the
recruitment and placement activities of all agencies within the coverage of this title [Regulation of
Recruitment and Placement Activities] and is hereby authorized
to issue orders and promulgate rules and
regulations to carry out the objectives
and implement the provisions of this title.”
(Underlining ours.)

On the other hand, the scope of the regulatory authority of the
POEA, which was created by Executive Order No. 797 on May 1, 1982 to take over
the functions of the Overseas Employment Development Board, the National Seamen
Board, and the overseas employment functions of the Bureau of Employment
Services, is broad and far-ranging for:

1. Among the functions inherited by the POEA
from the defunct Bureau of Employment Services was the power and duty:

“’2. To establish and maintain a registration and/or licensing system to regulate
private sector participation in the recruitment
and placement of workers, locally and
overseas, x x x.’ (Art. 15, Labor Code, underscoring supplied).”
(p. 13, Rollo.)

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

“‘3. To recruit and place workers for overseas
employment of Filipino contract workers on a government to government
arrangement and in such other sectors as policy may dictate x x x.’ (Art. 17,
Labor Code.)” (p. 13, Rollo.)

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

“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.” (Art. 20, Labor
Code.)

The vesture of quasi-legislative and quasi?judicial powers
in administrative bodies is not unconstitutional, unreasonable and
oppressive. It has been necessitated by
“the growing complexity of the modern society” (Solid Homes, Inc. vs.
Payawal, 177 SCRA 72, 79). More and
more administrative bodies are necessary to help in the regulation of society’s
ramified activities. “Specialized
in the particular field assigned to them, they can deal with the problems
thereof with more expertise and dispatch than can be expected from the
legislature or the courts of justice” (Ibid.).

It is noteworthy that the assailed circulars do not prohibit the
petitioner from engaging in the recruitment and deployment of Filipino
landbased workers for overseas employment. A careful reading of the challenged administrative issuances discloses
that the same fall within the “administrative and policing powers
expressly or by necessary implication conferred” upon the respondents
(People vs. Maceren, 79 SCRA 450). The
power to “restrict and regulate conferred by Article 36 of the Labor Code
involves a grant of police power (City of Naga vs. Court of Appeals, 24 SCRA
898). To “restrict” means
“to confine, limit or stop” (p. 62, Rollo) and whereas the power to
“regulate” means “the power to protect, foster, promote,
preserve, and control with due regard for the interests, first and foremost, of
the public, then of the utility
and of its patrons” (Philippine Communications Satellite Corporation vs.
Alcuaz, 180 SCRA 218).

The Solicitor General, in his Comment, aptly observed:

“x x x Said Administrative Order [i.e., DOLE Administrative Order
No. 16] merely restricted the scope or area of petitioner’s business operations
by excluding therefrom recruitment and deployment of domestic helpers for Hong
Kong till after the establishment of the ‘mechanisms’ that will enhance the
protection of Filipino domestic helpers going to Hong Kong. In fine, other than the
recruitment and deployment of Filipino domestic
helpers for Hongkong, petitioner may still
deploy other class of Filipino workers
either for Hongkong and other countries and all other classes of Filipino
workers for other countries.

“Said administrative issuances, intended to curtail, if not to
end, rampant violations of the rule against excessive collections of placement
and documentation fees, travel fees and other charges committed by private
employment agencies recruiting and deploying domestic helpers to Hongkong. [They are] are reasonable,
valid and justified under the general
welfare clause of the Constitution, since
the recruitment and deployment business, as
it is conducted today, is affected with
public interest.

“xxx                                       xxx                                           xxx

“The alleged takeover [of the business of recruiting and
placing Filipino domestic helpers in Hongkong] is merely a remedial measure,
and expires after its purpose shall have been attained. This is evident from the tenor of
Administrative Order No. 16 that recruitment of Filipino domestic helpers going
to Hongkong by private employment agencies are hereby ‘temporarily suspended
effective July 1, 1991.’

“The alleged takeover is limited in scope, being confined to
recruitment of domestic helpers going to Hongkong only.

“xxx                           xxx                                         xxx

“x x x the justification for the takeover of the processing
and deploying of domestic helpers for Hongkong resulting from the restriction
of the scope of petitioner’s business is confined solely to the unscrupulous
practice of private employment agencies victimizing applicants for employment
as domestic helpers for Hongkong and not the whole recruitment business in the
Philippines.” (pp. 62-65, Rollo.)

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

Nevertheless, they are legally invalid, defective and
unenforceable for lack of proper publication and filing in the Office of the
National Administrative Register as required in Article 2 of the Civil Code,
Article 5 of the Labor Code and Sections 3(1) and 4, Chapter 2, Book VII of the
Administrative Code of 1987 which provide:

“Art. 2. Laws shall take effect after fifteen (15) days
following the completion of their publication in the Official Gazette, unless
it is otherwise provided. x x x.”
(Civil Code.)

“Art. 5. Rules and Regulations. – The Department of Labor and other
government agencies charged with the administration and enforcement of this
Code or any of its parts shall promulgate the necessary implementing rules and
regulations. Such rules and regulations
shall become effective fifteen (15) days after announcement of
their adoption in newspapers of general circulation.”
(Emphasis supplied, Labor Code, as amended.)

Section 3. Filing. – (1) Every agency shall file
with the University of the Philippines
Law Center, three (3) certified copies
of every rule adopted by it. Rules in force on the date of effectivity of this Code which are not filed
within three (3) months shall not thereafter be the basis of any sanction
against any party or persons.” (Underscoring supplied, Chapter 2, Book VII
of the Administrative Code of 1987.)

“Section 4. Effectivity. – In addition to other rule-making
requirements provided by law not inconsistent
with this Book, each rule shall become
effective fifteen (15) days from the date
of filing as above provided unless a different
date is fixed by law, or
specified in the rule in cases of imminent danger to public health, safety and
welfare, the existence of which must be expressed in a statement accompanying
the rule. The agency shall take
appropriate measures to make emergency rules known to persons who may be
affected by them.” (Emphasis supplied, Chapter 2, Book VII of the Administrative Code of 1987.)

Once more, we advert to our ruling in Tañada vs. Tuvera, 146 SCRA
446 that:

“x x x Administrative rules and regulations must also be
published if their purpose is to enforce or implement existing law pursuant
also to a valid delegation.” (p. 447.)

“Interpretative regulations and those merely internal in
nature, that is, regulating only the personnel of the administrative agency and
not the public, need not be published. Neither is publication required of the so-called letters of instructions
issued by administrative superiors concerning the rules or guidelines to be
followed by their subordinates in the performance of their duties.” (p.
448.)

“We agree that publication must be in full or it is no
publication at all since its purpose is to inform the public of the content of
the laws.” (p. 448.)

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

WHEREFORE, the writ of prohibition is GRANTED. The implementation of DOLE Department Order
No. 16, Series of 1991, and POEA Memorandum Circulars Nos. 30 and 37, Series of
1991, by the public respondents is hereby SUSPENDED pending compliance with the
statutory requirements of publication and filing under the aforementioned laws
of the land.

SO ORDERED.

Narvasa, C.J., Gutierrez, Jr., Cruz, Feliciano, Padilla, Bidin,
Medialdea, Regalado, Davide, Jr., Romero, Nocon, and
Bellosillo, JJ., concur.