PRE-EMPLOYMENT
Art. 12 – Statement of Objectives
3 Basic Laws that Regulated Recruitment
and Placement
 Recruitment for Overseas
Employment Act
 Private Employment Agency Act
 National Employment Service Law
These obsolete laws were replaced by Book
One, Pre-employment of the Labor code.
Purpose of Book One
The state is mandated to promote and
maintain full employment through
improved training, allocation and utilization
of manpower resources in order to have a
pool of trained workers who can be readily
employed locally or overseas.
Title 1 – RECRUITMENT AND PLACEMENT
OF WORKERS
Art. 13 – Definitions
Art. 13 (b) – Recruitment any placement
means 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
the recruitment and placement.
The number of persons dealt with is not an
essential ingredient of the act of
recruitment and placement of workers. Any
of the acts mentioned in the basic rule in
Art. 13 (b) will constitute recruitment and
placement even if only one prospective
worker is involved. (People v. Panis 142
SCRA 664)
RA 8042 (Migrant Workers and Overseas
Filipino Act)
Sec. 2 – Declaration of Policies
Sec. 3 – Definitions
 “Migrant worker” refers to a person
who is to be engaged, is engaged or
has been engaged in a renumerated
activity in a state of which he or she
is not a legal resident to be used
interchangeably with overseas
Filipino worker.
 “Gender-sensitivity” shall mean
cognizance of the inequalities and
inequities prevalent in society
between women and men and a
commitment to address issues with
concern for the respective interests
of the sexes.
 “Overseas Filipinos” refers to
dependents of migrant workers and
other Filipino nationals abroad who
are in distress as mentioned in
Sections 24 and 26 of this Act.
Sec. 4 – Deployment of Migrant Workers –
The State shall deploy overseas Filipino
workers only in countries where the rights
of Filipino migrant workers are protected.
The government recognizes any of the
following as guarantee on the part of the
receiving country for the protection and the
rights of overseas Filipino workers:
 It has existing labor and social laws
protecting the rights of migrant
workers;
 It is a signatory to multilateral
conventions, declaration or
resolutions relating to the protection
of migrant workers;
 It has concluded a bilateral
agreement or arrangement with the
government protecting the rights of
overseas Filipino workers; and
  It is taking positive, concrete
measures to protect the rights of
migrant workers.
Sec. 5 - TERMINATION OR ABANDONED
EMPLOYMENT – Notwithstanding the
provisions of Section 4 hereof, the
government, in pursuit of the national
interest or when public welfare so requires,
may, at any time, terminate or impose a
ban on the deployment of migrant workers.
RECRUITMENT AND PLACEMENT
Art. 13 (b) – Recruitment any placement
means 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
the recruitment and placement.
Art. 34 Prohibited Practices
Prohibited acts under Art. 34 constitute
illegal recruitment; also as criminal offenses
Prohibited practices under Art. 34 of LC
when undertaken by non-licensees or
holders of authority constitute illegal
recruitment under Art. 38(a) of the Labor
Code. When said prohibited practices are
committed by licensees or holders of
authority it is not an illegal recruitment,
however, it is punishable under Art. 39(b)
and Art. 303 of the LC, as an act declared to
be unlawful by Art. 34 of the LC.
Also the same prohibited practices
constitute a criminal offense under Art. 303
of the LC.
Art. 35 Suspension and/or Cancellation of
License or Authority
DOLE’s power to suspend or cancel license
or authority, concurrent with POEA.
 The Sec. of Labor and Employment
gave POEA, on its own initiative or
upon filing of complaint or report or
upon request for investigation by
any aggrieved person authority to
conduct the necessary proceedings
for the suspension or cancellation of
the license or authority of any
agency or entity for certain offenses.
(Trans Action v. Sec. of Labor)
POEA’s jurisdiction over administrative
cases on recruitment laws, rules and
regulations.
 The POEA shall exercise original and
exclusive jurisdiction to hear and
decide all cases which are
administrative in character,
involving or arising out of violations
of recruitment laws, rules and
regulations or violation of the
conditions for issuance of license to
recruit seafarers, including refund
fees collected from seafarers.
Art. 38 Illegal Recruitment.
Illegal Recruitment committed by a
syndicate if carried out by a group of three
or more persons, conspiring and/or
confederating with one another in carrying
out any unlawful or illegal transaction,
enterprise or scheme defined under Art. 34
of LC.
Illegal recruitment is deemed committed in
large scale if committed against three or
more persons individually or as a group.
Illegal recruitment shall mean any act of
canvassing, enlisting, contracting,
transporting, utilizing, hiring or procuring
workers and includes referring, contract
services, promising or advertising for
employment abroad, whether for profit or
not, when undertaken by non-licensee or
non-holder of authority contemplated
under Art. 13(f) of the LC.
Elements of Illegal Recruitment:
(a)  That the offender has no valid
license or authority required by law
to enable one to lawfully engage in
recruitment and placement of
workers;
(b)  That the offender undertakes either
any activity within the meaning of
recruitment and placement defined
under Article 13(b), or any
prohibited practices enumerated
under Article 34;
Elements of Illegal Recruitment in Large
Scale:
(a) the accused undertakes any
recruitment activity defined under
Art. 13, par. (b), or any prohibited
practice enumerated under Art. 34
of the Labor Code;
(b) he does not have a license or
authority to lawfully engage in the
recruitment and placement of
workers;
(c) he commits the same against
three (3) or more persons,
individually or as a group.
Authorized place of recruitment activities.
 Recruitment activities can be
undertaken by licensee or holders of
authority at their authorized official
address or place of business.
Illegal Recruitment; Four Types
 Simple or licensee – illegal
recruitment committed by a licensee
or holder of authority against one or
two persons only;
 Non-licensee – illegal recruitment
committed by any person who is
neither a licensee nor a holder of
authority;
 Syndicated – illegal recruitment
committed by a syndicate if carried
out by a group of three or more
persons in conspiracy or
confederation with one another;
 Large scale or qualified – illegal
recruitment committed against
three or more persons, individually
or as a group.
Elements of Syndicated Illegal Recruitment:
(a) The accused have no valid license or
authority required by law to enable
them to lawfully engage in the
recruitment and placement of
workers;
(b) The accused engaged in this activity
of recruitment and placement by
actually recruiting, deploying and
transporting;
(c) Illegal recruitment was committed
by three persons conspiring and
confederating with one another.
Number of victims in large scale illegal
recruitment, essential and determinative.
Doctrinal Rulings on Illegal Recruitment
(a) Giving impression that she has the
ability to enlist workers for overseas
job placement;
(b) Failure to present receipts will not
affect the strength of the evidence
 presented as long as the payment
can be proved through clear and
convincing testimonies of credible
witnesses;
(c) No valid license or authority
required by law;
(d) Prohibited substitution or alteration
of the employment contract to the
prejudice of the worker – RA 8042;
(e) It is not necessary for the
prosecution to present
certification on license that one is
non-licensee;
(f) Failure to reimburse expenses
incurred by the underemployed
workers where the deployment does
not actually take place without the
worker’s fault;
(g) Recruitment agency’s employees
should first be registered with POEA.
Illegal recruitment in large scale is
malum prohibitum. Good faith is not
a defense;
(h) Defense of denial cannot prevail
over positive identification;
(i) Inducing applicants to part with
their money upon false
misrepresentation and promise;
(j) Execution of affidavit of desistance
affects has no effect on the criminal
liability of illegal recruitment;
(k) Money is not material to a
prosecution of illegal recruitment as
the definition of recruitment and
placement;
(l) Absence of documents evidencing
the recruitment activities strengthen
the case for illegal recruitment;
(m)Employee liable as principal by
direct participation;
(n) Number of persons recruited not
material;
(o) Mere promise or offer of overseas
employment constitutes recruitment
and placement;
(p) Referrals or conduct of interviews
may constitute illegal recruitment.
Joint and solidary liability for money claims;
liability of corporate directors and officers
not automatic – proof of culpability is
needed.
a Non suability cannot defeat the solidary
nature of the liability.
Theory of Imputed Knowledge.
 It ascribes the knowledge of the
agent (recruitment and placement
agency) to the principal-foreign
employers, not the other way
around. The agent without its
knowledge cannot be liable for
whatever changes from the
contract.
Venue of criminal action for illegal
recruitment:
 The RTC of the province or city
where the offense was committed;
 Where the offended party actually
resides at the time of the
commission of the offense.
Termination of the employment of OFWs
takes place in the following instances:
 Pre-termination of employment
contract with approval of the
employer;
 Discharge for a valid cause;
 Suffered injury or illness; or
 OFW has died.
Monetary claims of OFWs governed by RA
8042 (Migrant Workers and Overseas
Filipino Act) not of the Labor Code.
Sec. 10, par. 5 of RA 8042 as amended by
RA 10022, declared unconstitutional.
 The qualification “or for three
months for every year of the
unexpired term, whichever is less” in
par. 5, Sec. 10 of RA 8042 was
declared unconstitutional for being
discriminatory and violative of the
equal protection clause.
 It imposes a 3 month cap on the
claim of OFWs with an unexpired
portion of one year or more in their
contracts, but none of the claims of
other OFWs or local workers with
fixed-term employment.
 Under the Serrano v. Gallant
Maritime ruling, an illegally
dismissed OFW is now entitled to his
salaries for the entire unexpired
portion his employment contract
regardless of the duration of such
contract.

The correct criterion in determining

whether sailors are entitled to overtime pay
is whether they actually rendered services
in excess of said number of hours.

LA has the original and exclusive jurisdiction

over OFWs claims for disability, death and
other benefits even without er-ee
relationship.

Prescription for (simple) illegal recruitment

is five years. For large scale it is twenty
years.