Short answer. Ordinarily no. Article 40 lets the permit issue only 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. An available Filipino defeats that determination.
What the law says
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
Labor Code, Article 40 — Work Permits For Foreigners. Read the full provision →
Three qualities, and all three must be missing
The condition is that the permit issue only 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. Competent, able and willing are cumulative. A local candidate who is qualified but has refused the post is not willing; one who is keen but cannot do the work is not competent. The employer's case rests on there being nobody who is all three at once, which is a narrower proposition than employers usually realise when they start.
The date the question is asked
At the time of application fixes the enquiry to a moment. It is not about whether Filipinos capable of the work exist in general, and it is not about whether one might become available later. It is about the pool available when the application was made. That cuts both ways. It protects an employer who genuinely searched and found nobody, even if a suitable candidate surfaces the following month; and it gives an employer nothing if a willing local applicant was in front of it at the time and was passed over.
The job description does most of the work
The test is tied to the services for which the alien is desired, so how the role is written determines what non-availability has to be shown against. A post described by its real functions is assessed on those functions. A post written around one candidate — an unusual language pairing, a particular former employer, a certification that only he holds — invites the question whether those requirements belong to the work or were added to make the local pool disappear. Requirements that do not correspond to the actual duties are the weak point in most of these applications.
What this means before you make the offer
Do the local search first and keep the record of it: where the post was advertised, for how long, who applied, and the specific reason each local applicant was not competent, able or willing. Note also that the article provides a different route for an enterprise registered in preferred areas of investments, where the permit may issue on the recommendation of the supervising government agency. Either way, settle this before a start date is promised — a hire made on the assumption the permit will follow is the version that goes wrong expensively.