559 Phil. 826
WHEREFORE, premises considered, the respondent CF Sharp Agency is as it is hereby ordered suspended for a period of six (6) months or in lieu thereof, it is ordered to pay a fine of P50,000.00 for violation of Art. 29 of the Labor Code, as amended in relation to Sec. 6(b), Rule II, Book II of the Rules and Regulations Governing Overseas Employment in accordance with the schedule of penalties.C.F. Sharp elevated the Administrator's ruling to the Department of Labor and Employment (DOLE). On December 19, 1997, the then Secretary of Labor, Leonardo A. Quisumbing, issued an Order, ruling that:
Further, the respondent CF Sharp is as it is hereby ordered suspended for another period of [eighteen] (18) months or to pay the fine of P180,000.00 for committing 9 counts of violation of Article 29 of the Labor Code as amended in relation to Sec. 2(k), Rule I, Book VI of the Rules and Regulations governing Overseas Employment.
The period of suspension shall be served cummulatively (sic).
The charges of violation of Sec. 6(b) of RA 8042 are hereby referred to the Anti-Illegal Recruitment Branch for appropriate action.
WHEREFORE, except as above MODIFIED, the Order dated March 13, 1997 of the POEA Administrator is AFFIRMED.C.F. Sharp's motion for reconsideration having been denied on February 5, 1999 by the then Undersecretary, Jose M. Espanol, Jr., it elevated the case to this Court on petition for certiorari, with the case docketed as G.R. No. 137573. But, in the June 16, 1999 Resolution, this Court referred the petition to the CA.
Accordingly, the C.F. Sharp Crew Management, Inc. is hereby found guilty of having violated Sec. 6, R.A. 8042 in relation to Article 13 (b) and (f), and Article 16 of the Labor Code as amended; Rule II (jj), Book I and Sec 1 and 6, Rule I, Book II, POEA Rules and Regulations Governing Overseas Employment, for having conspired and confederated with the [Louis] Cruise Lines, Theodorus Savva and Andrias (sic) Tjiakouris in the recruitment of seafarers for LCL's ships, before it was duly accredited by POEA as the manning agency of LCL, thus a non-holder of authority at the time. The penalty imposed against it of suspension of its license for six (6) months or in lieu thereof, to pay a fine of Fifty Thousand Pesos (P50,000.00), is AFFIRMED.
Further, C.F. Sharp Crew Management, Inc. is hereby found guilty of one (1) count of violation of Art. 29 of the Labor Code in relation to Sec. 2 (k), Rule I, Book VI of the Rules and Regulations Governing Overseas Employment, and is imposed the penalty of two (2) months suspension of its license or in lieu thereof, to pay a fine of P20,000.00.
The penalties of suspension for both violations shall be served cumulatively.
Out of the P230,000.00 cash supersedeas bond posted by the petitioner-appellant, let the amount of P160,000.00 be released and refunded to it, retaining P70,000.00 to be applied to the payment of the fines as imposed above, should the petitioner opt to pay the fine instead of undergoing suspension of its license. However, the suspension shall remain in force until such fine is paid, or in the event that the petitioner-appellant further appeals this Order.
The charge and finding of violation of Sec. 6 (b) of R.A. 8042 are hereby referred to the Anti-Illegal Recruitment Branch for appropriate action.
C.F. Sharp faults the CA for ruling that petitioner is estopped from questioning the resolutions of the Secretary of Labor. It denied that it voluntarily executed, or acquiesced to, the assailed resolutions of the Secretary.
WHETHER OR NOT THE COURT OF APPEALS GRAVELY ERRED WHEN IT RULED THAT PETITIONER IS LIABLE FOR VIOLATION OF ARTICLE 29 OF THE LABOR CODE, AS AMENDED, IN RELATION TO SECTION II (k)[,] RULE I, BOOK VI OF THE RULES AND REGULATIONS GOVERNING OVERSEAS EMPLOYMENT.
- WHETHER OR NOT THE COURT OF APPEALS PATENTLY ERRED IN RULING THAT PETITIONER IS IN ESTOPPEL IN QUESTIONING THE ORDER DATED DECEMBER 19, 1997 AND THE RESOLUTION DATED FEBRUARY 5, 1999.
- WHETHER OR NOT THE COURT OF APPEALS PATENTLY ERRED WHEN IT RULED THAT PETITIONER IS LIABLE FOR VIOLATION OF SECTION 6[,] R.A. NO. 8042 IN RELATION TO ARTICLE 13 (b) and (f) AND ARTICLE 66 (sic) OF THE LABOR CODE AS AMENDED; RULE II (jj) BOOK I; AND SECTIONS 1 AND 6, RULE I, BOOK III POEA RULES AND REGULATIONS GOVERNING OVERSEAS EMPLOYMENT.
[P]etitioner C.F. Sharp had already manifested its option to have the cash bond posted as an answer for the alternative fines imposed in the Orders dated December 19, 1997 as stated in the Order dated April 15, 1999 of the POEA, Adjudication Office x x x. Thus, for voluntary execution of the Order of the Secretary of DOLE dated December 19, 1997 by paying the adjudged fines, the petitioner was then estopped from assailing such Order before Us by way of petition for certiorari. Where a party voluntarily executes, partially or totally a judgment or acquiesces or ratifies the execution of the same, he is estopped from appealing therefrom. x x x.The April 15, 1999 Order of Deputy Commissioner Valentin C. Guanio reads:
Respondent C.F. Sharp Crew Management, Inc., thru counsel having manifested its option to have the cash bond posted answer for the alternative fines imposed in the above-entitled case; the alternative suspension imposed in the Order of the Secretary dated December 19, 1997 is hereby Lifted.
[W]e write in behalf of our client, C.F. Sharp Crew Management Inc., regarding the Advice To Operating Units dated April 15, 1999, which arose from the Decision of the Office of the Secretary of Labor in the case entitled C.F. Sharp Crew Management, Inc. versus Rizal Shipping and docketed as RV 97-01-004.C.F. Sharp's letter was explicit that the cash bond posted would be answerable for any fine that it may ultimately be held liable to pay by virtue of a final decision. In fact, on March 25, 1999, prior to the filing of the above-quoted letter-request, C.F. Sharp had already filed a petition for certiorari assailing the Orders of the Secretary of Labor. Furthermore, there is no showing that the assailed Order of then Secretary Quisumbing was indeed executed to warrant the appellate court's conclusion that C.F. Sharp was estopped from assailing the said Order. Clearly, there is no basis for the CA to rule that C.F. Sharp voluntarily executed, or acquiesced to, the execution of the unfavorable ruling of the Secretary of Labor.
In this connection, we would like to express our option to have the cash bond posted by us in the case entitled C.F. Sharp Crew Management, Inc. versus Rizal Shipping and docketed as RV 97-01-044 to answer for any fine that the Supreme Court may finally decide that our client should pay in the Case entitled, C.F. Sharp Crew Management, Inc. vs. Secretary Leonardo Quisumbing and Rizal International Shipping Services and docketed as G.R. No. 137573.
Under the circumstances, it is most respectfully requested that the aforesaid advice be RECALLED and that a clearance be issued in favor of our client, C.F. Sharp Crew Management, Inc.
Hoping for your immediate and favorable action on the matter. (Emphasis supplied)
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.On the basis of this definition — and contrary to what C.F. Sharp wants to portray - the conduct of preparatory interviews is a recruitment activity.
This Office cannot conceive of a good reason why LCL/Savva/Tjiakouris should be interested at the time in unearthing alleged violations committed by Rizal Shipping whose representative status as manning agency was to be terminated in just a few weeks thereafter, spending valuable time and money in the process. They stood to gain nothing from such taxing exercise involving several hundreds of ex-crew members, which could be handled by government agencies like the POEA, NLRC, SSS. The observation of the POEA Administrator that the complaints of the crewmen were filed only after Rizal Shipping filed its complaints with the POEA merely to bolster the defense of CF Sharp/LCL/Savva and Tjiakouris, is telling.Indeed, it was Savva and Tjiakouris that conducted the interviews, and undertook selection and hiring. However, C.F. Sharp cannot steer clear of liability for it conspired with LCL in committing illegal recruitment activities. As the Secretary of Labor had taken pains to demonstrate:
Upon the other hand, it was more to LCL'S gain to interview, select and recruit the disembarking crewmen previously recruited by Rizal Shipping, using CF Sharp's facilities, as this would result in less recruitment time and cost.
Finally, the claim of Savva and Tjiakouris that Savva "talked to the POEA representative during their visit" about these interviews and the violations which were confirmed, is just an afterthought to support their defense; there is no entry in the Inspection Report confirming such claim. If such claim were true, then the "able officer" of CF Sharp (LCL's Attorney-in fact) who signed his conformity on the 4th page of the report, and put his initial on the last page of the report containing the handwritten findings of the inspectors on the selection and recruitment activities of Savva and Tjiakouris, would have insisted that an entry be made thereon about what Savva told the inspectors, or he could simply himself have written thereon that the two LCL officials merely conducted interviews on the violations committed by Rizal Shipping. However, the report is bereft of anything to that effect. More significant is the fact that the inspectors, in their Memorandum dated December 11, 1996 (the very same day they conducted the inspection), stated that they "approached said persons" (referring to Banawis, Savva and Tjiakouris) "and told us that they were doing interview to select applicants" to complement the crew of a passenger ship for [LOUIS] CRUISE LINES."
x x x [T]here is substantial evidence on record that as alleged by Rizal Shipping, CF Sharp conspired with LCL and its officers Savva and Tjiakouris to conduct recruitment activities in its offices, at a time when LCL was not yet its POEA-accredited principal, in violation of Sec. 6, R.A. 8042 in relation to Article 13(b) and (f) and Article 16 of the Labor Code as amended; Rule II(jj) Book I, and Sec. 1 and 6, Rule I, Book III, all of the POEA Rules and Regulations Governing Overseas Employment.We need not say more.
Indeed, C.F. Sharp was aware of these violations when it alleged in its Petition for Review that:
"…in any and all events, the findings relied upon by the Public Respondent show, at best, that the parties responsible for the alleged acts of illegal recruitment are LCL and its officers alone, or at worst, LCL and its officers, in conspiracy with petitioner. Yet, it is petitioner alone, who is severely punished and penalized." (underscoring supplied)
x x x x
The intention, agreement and both common design of both LCL and CF Sharp to engage in recruitment of crewmen for LCL's ships had already been made manifest when LCL through Savva had instructed, in the October 14, 1996 letter to disembarking crewmembers, for the latter to report to CF Sharp for processing of their papers. This was followed by the execution by LCL on October 17, 1996 of a Special Power of Attorney in favor of CF Sharp as new manning agent and attorney-in-fact of LCL, with authority, among others, "to sign, authenticate and deliver all documents necessary to complete any transaction related to the recruitment and hiring of Filipino seamen including the necessary steps to facilitate the departure of recruited seamen"; "to assume, on our behalf and for our account, any liability that may arise in connection with the recruitment of seamen and/or implementation of the employment contract of said seamen." And on November 8, 1996, CF Sharp applied for accreditation as manning agent of LCL for the latter's five named vessels. The discovery by the POEA inspectors of the selection and recruitment activities undertaken by Savva and Tjiakouris at CF Sharp's offices on December 11, 1996, followed. The interviews by Savva and Tjiakouris at CF Sharp's offices on December 7, 1996 with around 300 crewmen, as sworn to by 98 crewmen (their affidavits were submitted in evidence by CF Sharp); the interviews for selection and recruitment from December 9 to 12, 1996 as found by the POEA inspectors; and the immediate deployment of 154 crewmen for LCL right after [the] POEA approval of accreditation of LCL as principal of CF Sharp, could not have been undertaken without the assistance and cooperation of CF Sharp, even before such transfer of accreditation was granted by POEA.
The petitioner-appellant must be reminded that prior to approval of the transfer of accreditation, no recruitment or deployment may be made by the principal by itself or through the would-be transferee manning agency, or by the latter, as this would constitute illegal recruitment by a non-holder of authority under Sec. 6, R.A. 8042 in relation to Article 13(b) and (f) and Article 16 of the Labor Code as amended; Rule II(jj), Book I, and Sec. 1 and 6, Rule 1, Book III, POEA Rules and Regulations Governing Overseas Employment.
The petitioner-appellant alleges that "there is no need for a license to enable LCL's officers to conduct their alleged activities of interviewing, selecting and hiring crewmen. Indeed, LCL's officers could have conducted these activities without a license."
Such claim is without legal basis, as direct hiring by employers of Filipino workers for overseas employment is banned; they can only do so through, among others, licensed private recruitment and shipping/mining agencies (Art. 18, Labor Code as amended; Sec. 1, Rule 1, Book II, POEA Rules and Regulations Governing Overseas Employment).
Art. 29. NON-TRANSFERABILITY OF LICENSE OR AUTHORITYThus, Section 2(k), Rule 1, Book VI of the POEA Rules Governing Overseas Employment provides:
No license or authority shall be used directly or indirectly by any person other than the one in whose favor it was issued or at any place other than that stated in the license or authority, nor may such license or authority be transferred, conveyed or assigned to any other person or entity. Any transfer of business address, appointment or designation of any agent or representative including the establishment of additional offices anywhere shall be subject to the prior approval of the Department of Labor. (Emphasis ours)
Section 2. Grounds for Suspension/Cancellation of License.The appointment or designation of Desiderio as an employee or agent of C.F. Sharp, without prior approval from the POEA, warrants administrative sanction. The CA, therefore, correctly rejected C.F. Sharp's posture.
x x x x
k. Appointing or designating agents, representatives or employees without prior approval from the Administration.