B. Employment of non-resident alien

Frequency: ★★★★★

1. Alien Employment Permit (AEP)

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. (Labor Code)

a. No AEP, employment contract is void

Absent an employment permit, any employment relationship that McBurnie contemplated with the respondents was void for being contrary to law. A void or inexistent contract, in turn, has no force and effect from the beginning as if it had never been entered into. Thus, without an Alien Employment Permit, the “Employment Agreement” is void and could not be the source of a right or obligation. In support thereof, the DOLE issued a certification that McBurnie has neither applied nor been issued an Alien Employment Permit. (McBurnie v. Ganzon, En Banc, G.R. Nos. 178034 & 178117, 186984-85, 17 October 2013)

2. Non-availability of a competent person in the Philippines

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. (Paragraph 2, Article 40, Ibid.)

BAR EXAM QUESTION
(Question III[C], Labor Law, 2017 Bar Exam)
Phil, a resident alien, sought employment in the Philippines. The employer, noticing that Phil was a foreigner, demanded that he first secures an employment permit from the DOLE. Is the employer correct? Explain your answer. (2.5%)
SUGGESTED ANSWER:
Yes. Answer
Under the Labor Code, 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 alien employment permit (AEP) from the DOLE. Rule
In the case at bar, Phil as a resident alien has to secure an AEP from the DOLE prior to obtaining employment in the Philippines. Since he does not have an AEP, the employer may demand that he first obtains an AEP. Apply
Thus, the employer was correct. Conclusion

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