Employment of Resident Aliens

DOJ OPINION NO. 025, s. 2014 May 14, 2014 Dr. Fernando Gan Secretary General Federation of Filipino-Chinese Chambers of Commerce & Industry, Inc. 6th Floor, Federation Center Muelle de Binondo St. Binondo, Manila Dear Dr. Gan : This refers to your request for an opinion on: 1. whether resident aliens are still required to procure an employment permit from the Department of Labor and Employment (DOLE); and 2. whether resident aliens are allowed to be employed even in commercial enterprises that are reserved to be wholly owned by Filipinos as covered by RA 8762 (An Act Liberalizing the Retail Trade Business). Article 40 of the Labor Code of the Philippines states: "Art. 40. Employment permit of non-resident aliens. 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 the Philippines shall obtain an employment permit from the Department of Labor. "The employment permit may be issued to a non-resident alien or to the applicant employer after a determination of the non-availability of a person in the Philippines who is competent, able and willing at the time of application to perform the services for which the alien is desired. "For an enterprise registered in preferred areas of investments, said employment permit may be issued upon recommendation of the government agency charged with the supervision of said registered enterprise." aIcTCS Evidently, Article 40 of the Labor Code requires employment permit only for non-resident aliens. The employment permit is required for entry into the country for employment purposes and is issued after determination of the non-availability of a person in the Philippines who is competent, able and willing at the time of application to perform the services for which the alien is desired. 1 Thus, resident aliens are not required to secure employment permit. Moreover, Resident Foreign Nationals are exempted from securing an employment permit under DOLE's Department Order No. 75-06, Series of 2006. In sum, immigrants and resident aliens are not required to secure an Alien Employment Permit. They are only required to secure Alien Employment Registration Certificate (AERC), 2 to wit: "The following categories of foreign nationals are required to secure AERC from the Department, through the Regional Office: l. All foreign nationals admitted to the Philippines as immigrant and who wish to seek employment 2. All resident aliens already working in the Philippines" Anent the question of whether resident aliens are allowed to be employed even in commercial enterprises that are reserved to be wholly owned by Filipinos, Presidential Decree No. 715, otherwise known as " The Anti-Dummy Law ," aptly provides: "Any person, corporation, or association, which, having in its name or under its control, a right, franchise, privilege, property or business, the exercise or enjoyment of which is expressly reserved by the Constitution or the laws to citizens of the Philippines or of any other specific country, or to corporations or associations at least sixty per centum of the capital of which is owned by such citizens, permits or allows the use, exploitation or enjoyment thereof by a person, corporation or association not possessing the requisites prescribed by the Constitution or the laws of the Philippines; or leases, or in any other way, transfers or conveys said right, franchise, privilege, property or business to a person, corporation or association not otherwise qualified under the Constitution, or the provisions of the existing laws; or in any manner permits or allows any person, not possessing the qualifications required by the Constitution, or existing laws to acquire, use, exploit or enjoy a right, franchise, privilege, property or business, the exercise and enjoyment of which are expressly reserved by the Constitution or existing laws to citizens of the Philippines or of any other specific country, to intervene in the management, operation, administration or control thereof, whether as an officer, employee or laborer therein with or without remuneration except technical personnel whose employment may be specifically authorized by the Secretary of Justice." (Emphasis supplied) AHcaDC Clearly, the Anti-Dummy Law prohibits the employment of aliens, residents or non-residents, in any corporation or association engaged in business, the exercise or enjoyment of which is expressly reserved by the Constitution or the laws to citizens of the Philippines or whose capital should be at least 60% Filipino-owned, except technical personnel whose employment may be specifically authorized by the Secretary of Justice. Please be guided accordingly. Very truly yours, (SGD.) LEILA M. DE LIMA Secretary Footnotes 1. Farle P. Almodiel vs. National Labor Relations Commission (First Division), Raytheon Phils., Inc. , G.R. No. 100641 June 14, 1993. 2. Guidelines for the Issuance of Alien Employment Registration Certificate (AERC) pursuant to Section 3 Rule XIV, of the Omnibus Rules Implementing PD 442.