RECRUITMENT AND PLACEMENT

I. 2006 Bar
Wonder Travel and Tours Agency (WTTA) is a well-known travel agency and an authorized
sales agent of the Philippine Air Lines. Since majority of its passengers are overseas workers,
WTTA applied for a license for recruitment and placement activities. It stated in its application
that its purpose is not for profit but to help Filipinos find employment abroad. Should the
application be approved?

Can an overseas worker refuse to remit his earnings to his dependents and deposit the same in
the country where he works to gain more interests? Explain.

Answer:

a. No. The application should be disapproved. The law clearly states that travel
agencies and sales agencies of airline companies are prohibited from engaging in the
business of recruitment and placement of workers for overseas employment whether
for profit or not. (Article 26, Labor Code).

In the present case, it is clear that WTTA is the authorized sales agency of PAL; and
thus falling within the prohibition of Art. 26. Furthermore, its intention of providing
Filipinos with employment abroad will not hold water to approve its application no
matter how noble it is, because Art. 26 provides for an absolute prohibition and
does not place any merit on the intention of the applicant.

b. No Article 22. Mandatory remittance of foreign exchange earnings. It shall be

mandatory for all Filipino workers abroad to remit a portion of their foreign
exchange earnings to their families, dependents, and/or beneficiaries in the country
in accordance with rules and regulations prescribed by the Secretary of Labor.

II. 2007 Bar

a. Discuss the types of illegal recruitment under the Labor Code. In initiating actions against
alleged illegal recruiters, may the Secretary of Labor and Employment issue search and
arrest warrants?

b. Cite five grounds for disciplinary action by the Philippine Overseas Employment
Administration (POEA) against overseas workers.

Answer:
 a. Under the Labor Code, as amended by Republic Act No. 8042 otherwise known as
the “Overseas Filipinos and Migrant Workers Act of 1995”, there are two types of
illegal recruitment, particularly simple illegal recruitment and illegal recruitment
which is considered as an offense involving economic sabotage. Illegal recruitment
as an offense involving economic sabotage is committed under the following
qualifying circumstances, to wit: When illegal recruitment is committed by a
syndicate, that is when it is carried out by a group of three (3) or more persons
conspiring and/or confederating with one another; or When illegal recruitment is
committed in large scale, that is when it is committed against three (3) or more
persons whether individually or as a group.

No, the SOLE cannot issue search and arrest warrants since the provision in the LC
that confers this power to the SOLE was declared unconstitutional. - only God, no
no no. judge can issue warrants.

b. Commission by a migrant worker of any of the offenses enumerated below or of

similar offenses shall be a ground for disciplinary action:

i. Pre-employment Offenses
● using, providing, or submitting false information or documents for
purposes of job application or employment
● unjustified refusal to depart for the worksite after all employment and
travel documents have been duly approved by the appropriate
government agency/ies

ii. Offenses during employment

● commission of a felony or crime punishable by Philippine Laws or by
the laws of the host country;
● unjustified breach of employment contract;
● embezzlement of company funds or monies and/or properties of a
fellow worker entrusted for delivery to kin or relatives in the
Philippines; and
● violation/s of the sacred practices of the host country

III.
AB, a non-resident American, seeks entry to the country to work as Vice-President of a local
telecommunications company. You are with the Department of Labor and Employment (DOLE).
What permit, if any, can the DOLE issue so that AB can assume as Vice-President in the
telecommunications company? Discuss fully.

Answer:
The Labor Code provides that “any alien seeking admission to the Philippine 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 nonresident 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.

Thus, AB (or telecommunication company) should be issued the above-mentioned alien

employment permit so that AB can assume as Vice President of the Telecommunication
Company.

IV. 2008 Bar

Richie, a driver-mechanic, was recruited by Supreme Recruiters (SR) and its principal, Mideast
Recruitment Agency (MRA), to work in Qatar for a period of two (2) years. However, soon after
the contract was approved by POEA, MRA advised SR to forego Richie’s deployment because it
had already hired another Filipino driver-mechanic, who had just completed his contract in
Qatar.
Aggrieved, Richie filed with the NLRC a complaint against SR and MRA for damages
corresponding to his two years’ salary under the POEA-approved contract. SR and MRA
traversed Richie’s complaint, raising the following arguments:

• The Labor Arbiter has no jurisdiction over the case;

• Because Richie was not able to leave for Qatar, no employer-employee relationship was
established between them; and
• Even assuming that they are liable, their liability would, at most, be equivalent to Richie’s
salary for only six (6) months, not two years. (3%).
• Rule on the validity of the foregoing arguments with reasons.

Answer:
a. The Labor Arbiter has jurisdiction. Section 10, R.A. No. 8042, reads: ―Money
Claims. – Notwithstanding any provision of law to the contrary, the Labor Arbiters
of the National Labor Relations Commission (NLRC) shall have the original and
exclusive jurisdiction to hear and decide, within ninety (90) calendar days after the
filing of the complaint, the claims arising out of an employer – employee
relationship or by virtue of any law or contract involving Filipino workers for
overseas deployment including claims for actual, moral, exemplary and other forms
of damages.‖

b. An employer – employee relationship already existed between Richie and MRA.

MRA and SR, as an agent of MRA, already approved and selected and engaged the
services of Richie.
 c. No, in the recent case of Serrano v. Gallant Maritime (G.R. No. 167614, March 24,
2009) the Supreme Court held that the clause ―three (3) months for every year of
the unexpired term, whichever is less in Section 10, R.A. No 8042 is
unconstitutional. Richie is therefore entitled to two (2) years salaries due him under
the POEA approved contract.

The argument that Richie is only entitled to his six (6) months' salary is not valid.
The reliefs granted by law to the illegally dismissed OFW s are as follows:

1. Salary for the unexpired portion of the employment contract violated together
with attorney's fees and reimbursement of amounts withheld from her salary;

2. Full reimbursement of his placement fee with interest of twelve (12 %) per annum
(Section 10 of RA 8042, otherwise known as the Migrant Workers and Overseas
Filipinos Act of 1995)

3. That "repatriation of the worker and the transport of his [ or her] personal
belongings shall be the primary responsibility of the agency which recruited or
deployed the worker overseas." The exception is when "termination of employment
is due solely to the fault of the worker," (RA 8042 (1995), Section 15) and

4. 10 % of the amount of withheld wages as attorney's fees when the withholding is

unlawful. (Article 111 , Labor Code) (Sameer Overseas Placement Agency, In c. v.
Cabiles, G.R. No. 170139, August 5, 2014)

V. 2010 Bar
On December 12, 2008, A signed a contract to be part of the crew of ABC Cruises, Inc. through
its Philippine manning agency XYZ. Under the standard employment contract of the Philippine
Overseas Employment Administration (POEA), his employment was to commence upon his
actual departure from the port in the point of hire, Manila, from where he would take a flight to
the USA to join the cruise ship “MS Carnegie.” However, more than three months after A
secured his exit clearance from the POEA for his supposed departure on January 15, 2009, XYZ
still had not deployed him for no valid reason. Is A entitled to relief? Explain.

Answer:

Yes. Recruitment or manning agencies for overseas employment are obliged to deploy the
workers they recruited within 60 days from the date of issuance of the Overseas
Employment Certificate.

If the recruitment or manning agency fails to deploy the worker within the prescribed
period, it should report the matter to the POEA within 15 days from the expiry of the
Overseas Employment Certificate, stating the reason therefore and apply for the
cancellation of the workers processed documents. Failure to deploy a contracted worker
without a valid reason will subject the recruitment agency to criminal liability.

YES. Even if no departure took place, the contract of employment has already been
perfected which creates certain rights and obligations, the breach of which may give rise to
a cause of action against the erring party.

He may file (1) a complaint for recruitment violation for XYZ’s failure to deploy him
within the prescribed period without any valid reasons; (2) a case for illegal recruitment;
and/or (3) complaint for breach of contract and damages.

VI. 2010 Bar

A was approached for possible overseas deployment to Dubai by X, an interviewer of job
applicants for Alpha Personnel Services, Inc., an overseas recruitment agency. X required A to
submit certain documents (passport, NBI clearance, medical certificate) and to pay P25,000 as
processing fee. Upon payment of the said amount to the agency cashier, A was advised to wait
for his visa. After five months, A visited the office of Alpha Personnel Services, Inc. during
which X told him that he could no longer be deployed for employment abroad. A was informed
by the Philippine Overseas Employment Administration (POEA) that while Alpha Personnel
Services, Inc. was a licensed agency, X was not registered as its employee, contrary to POEA
Rules and Regulations. Under POEA Rules and Regulations, the obligation to register personnel
with the POEA belongs to the officers of a recruitment agency.

• May X be held criminally liable for illegal recruitment? Explain.

• May the officers having control, management or direction of Alpha Personnel Services, Inc. be
held criminally liable for illegal recruitment? Explain.

Answer:

a. NO. X, as an interviewer of job applicants, performed his work with the knowledge
that he works for a licensed recruitment agency. The obligation to register its
personnel with the POEA belongs to the officers of the agency. He is in no position
to know that the officers of said recruitment agency failed to register him as its
personnel.

b. YES. Alpha, being a licensed recruitment agency, still has obligations to A for
processing his papers for overseas employment. Under Sec. 6(m) of R.A. 8042,
failure to reimburse expenses incurred by the worker in connection with his
documentation and processing for purposes of deployment, in cases where the
deployment does not actually take place without the worker’s fault, amounts to
illegal recruitment.
 VII. 2010 Bar
A was recruited to work abroad by Speedy Recruitment Agency as a technician for a Saudi
Arabian construction firm, with a monthly salary of $650.00. When she got to the construction
site, the employer compelled her to sign another contract that referred her to another employer
for a salary of $350.00. She worked for the second employer and was paid $350.00 until her two-
year contract expired. Upon her return to the Philippines, she filed a case against the agency and
the two employers. May the agency validly raise the defense that it was not privy to the transfer
of A to the second employer? Explain.

Answer: NO. Speedy's obligation to A is joint and several with the principal employer (Sec.
1 O, Rep. Act No. 8042). The liability of the principal/employer and the
recruitment/placement agency for any and all claims for money claims shall be joint and
several, which undertaking shall form part of A's employment contract, and condition
precedent for its approval. This liability shall continue during the entire period or duration
of the employment contract and shall not be affected by any substitution, amendment or
modification made locally or in a foreign country of said contract (Sec. lO, Rep. Act No.
8042).

VIII. 2011 Bar

For ten (10) separate but consecutive yearly contracts, Cesar has been deployed as an able-
bodied seaman by Meritt Shipping, through its local agent, Ace Maritime Services (agency), in
accordance with the 2000 Philippine Overseas Employment Administration Standard
Employment Contract (2000 POEA-SEC). Cesar's employment was also covered by a CBA
between the union, AMOSl.JP, and Meritt Shipping. Both the 2000 POEA-SEC and the CBA
commonly provide the same mode and procedures for claiming disability benefits. Cesar's last
contract (for nine months) expired on July 15, 2013. Cesar disembarked from the vessel M/V
Seven Seas on July 16, 2013 as a seaman on "finished contract". He immediately reported to the
agency and complained that he had been experiencing spells of dizziness, nausea, general
weakness, and difficulty in breathing. The agency referred him to Dr. Sales, a cardio-pulmonary
specialist, who examined and treated him; advised him to take a complete rest for a while; gave
him medications; and declared him fit to resume work as a seaman.

After a month, Cesar went back to the agency to ask for redeployment. The agency rejected his
application. Cesar responded by demanding total disability benefits based on the ailments that he
developed and suffered while on board Meritt Shipping vessels. The claim was based on the
certification of his physician (internist Dr. Reyes) that he could no longer undertake sea duties
because of the hypertension and diabetes that afflicted him while serving on Meritt Shipping
vessels in the last 10 years. Rejected once again, Cesar filed a complaint for illegal dismissal and
the payment of total permanent disability benefits against the agency and its principal. Assume
that you are the Labor Arbiter deciding the case. Identify the facts and issues you would consider
material in resolving the illegal dismissal and disability complaint. Explain your choices and
their materiality, and resolve the case.

Answer:

The facts and the issues are:

1. Whether or not Cesar was illegally dismissed

This issue is material because Cesar's complaint is for illegal dismissal. [I]t is clear that
seafarers are considered contractual employees. They cannot be considered as regular
employees under Article 28 (now 2904) of the Labor Code. Their employment is governed
by the contracts they sign every time they are rehired and their employment is terminated
when the contract expires. (Petroleum Shipping Limited (formerly Esso International
Shipping [Bahamas] Co., Ltd. v. NLRC, G.R. No. 148130, June 16, 2006).

In this case there was no illegal dismissal but expiration of Cesar's contract.

2. Whether or not Cesar is entitled to disability compensation

3. Whether the illness is work-related and existed during the term of Cesar's employment
contract

The second and third issues are interrelated. A disability is compensable under the POEA
Standard Employment Contract if two (2) elements are present l: (1) the injury or illness
must be work-related; and (2) the injury or illness must have existed during the term of the
seafarer's employment contract. Hence, a claimant must establish the causal connection
between the work and the illness or injury sustained. (Tagle v. Anglo-Eastern Crew
Management, Philippines , Inc., 738 Phil . 871 (2014) [Per J. Mendoza, Third Division].)

The 2010 POEA Standard Employment Contract defines "work-related injury" as injury
"arising out of and in the course of employment." Thus, a seafarer has to prove that his
injury was linked to his work and was acquired during the term of employment to support
his claim for sickness allowance and disability benefits. (Ebuenga v. Southfield Agencies,
Inc., G.R. No. 208396, March 14, 2018)

Moreover, Section32-A of the POEA-SEC acknowledges the possibility of" compensation

for the death of the seafarer occurring after the employment contract on account of a
work-related illness" as long as the following conditions are met: (1) The seafarer's work
must involve the risks described herein; (2) The disease was contracted as a result of the
seafarer's exposure to the described risks; (3) The disease was contracted within a period of
exposure and under such other factors necessary to contract it; (4) There was no notorious
negligence on the part of the seafarer. (Magsaysay Maritime Corporation v. De Jesus, G.R.
No. 203943, August 30, 2017)

To be entitled to the claim for disability benefit, Cesar must prove the foregoing elements.
 IX. 2015 Bar
Rocket Corporation is a domestic corporation registered with the SEC, with 30% of its
authorized capital stock owned by foreigners and 70% of its authorized capital stock owned by
Filipinos. Is Rocket Corporation allowed to engage in the recruitment and placement of workers,
locally and overseas? Briefly state the basis for your answer. When does the recruitment of
workers become an act of economic sabotage?

Answer:

NO. Art. 21 of the Labor Code mandates that, for a corporation to validly engage in
recruitment, and local and overseas placement of workers, at least seventy-five percent
(75%) of its authorized and voting capital stock must be owned and controlled by Filipino
citizens. Since only 70% of Rockets Corporation’s authorized capital stock is owned by
Filipinos, it cannot, as a result, validly engage in recruitment, and local and overseas
placement of workers.

X. 2017 Bar
A. Andrew Manning Agency (AMA) recruited Feliciano for employment by Invictus Shipping,
its foreign principal. Meantime, AMA and Invictus Shipping terminated their agency agreement.
Upon his repatriation following his premature termination, Feliciano claimed from AMA and
Invictus Shipping the payment of his salaries and benefits for the unserved portion of the
contract. AMA denied liability on the ground that it no longer had an agency agreement with
Invictus Shipping. Is AMA correct? Explain your answer. (3%)

B. As a rule, direct hiring of migrant workers is not allowed. What are the exceptions? Explain
your answer. (2.5)

C. 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)

Answer:

a. AMA is not correct. Under Sec. 10 of R.A. 8042, the solidary liability of the
principal and the recruitment agency exists for the whole duration of the
employment contract and shall not be affected by any substitution, amendment or
modification made locally or in a foreign country. Here, AMA recruited Feliciano
for employment by Invictus Shipping. Hence, AMA remains solidary liable with
 Invictus for any breach of Feliciano's employment contract, even if AMA and
Invictus had already terminated their agency contract. The joint and solidary
liability of AMA and Invictus Shipping shall continue during the entire period or
duration of Feliciano' s overseas employment contract and shall not be affected by
the termination of the agency agreement.

b. As a general rule, direct hiring of migrant workers is not allowed. The direct hires
are exempted from the ban on direct hiring for overseas employment under RA
8042, as amended by RA 10022. They are the workers directly hired by employers
for overseas employment as authorized by the Secretary of Labor and Employment
and processed by the POEA, including:
i. Those hired by international organizations
ii. Those hired members of the diplomatic corps
iii. Name hires or workers who are able to secure overseas employment
opportunity with an employer without the assistance or participation of any
agency. [Labor Code, POEA Rules] (Section l[i}, Rule II, Omnibus Rules and
Regulations Implementing The Migrant Workers and Overseas Filipinos Act
of 1995, as amended by RA 10022)

The reasons for the ban on direct hiring are:

● A worker hired directly by a foreign employer without government intervention

may not be assured of the best possible terms and conditions of employment.
● A foreign employer must also be protected. Without government intervention, a
foreign employer may be entering into a contract with a Filipino who is not
qualified to do the job.
● The mandatory requirement for remittance to the Philippines of a portion of the
worker’s foreign exchange earnings can easily be evaded by the worker.

c. NO, the employer is not correct. Only nonresident aliens who are seeking
employment in the Philippines are required to secure first an Alien Employment
Permit. Here, Phil is a resident alien, who is exempted from Alien Employment
Permit requirement. Hence, the employer is not correct in demanding that Phil first
secure an employment permit from the DOLE.

XI. 2019 Bar

Mr. A signed a one (1)-year contract with XYZ Recruitment Co. for deployment as welding
supervisor for DEF, Inc. located in Dubai. The employment contract, which the Philippine
Overseas Employment Administration (POEA) approved, stipulated a salary of US$600.00 a
month. Mr. A had only been in his job in Dubai for six (6) months when DEF, Inc. announced
that it was suffering from severe financial losses and thus intended to retrench some of its
workers, among them Mr. A. DEF, Inc. hinted, however, that employees who would accept a
lower salary could be retained.
Together with some other Filipino workers, Mr. A agreed to a reduced salary of US$400.00 a
month and thus, continued with his employment.

(a) Was the reduction of Mr. A’s salary valid? Explain. (2.5%)
(b) Assuming that the reduction was invalid, may Mr. A hold XYZ recruitment Co. liable
for underpayment of wages? Explain. (2.5%)

Answer:

a. No, the reduction of Mr. A’s salary is invalid. All the Terms and Conditions in the
POEA contract remain in force until such changes are approved by the POEA. To
substitute or alter to the prejudice of the worker, employment contracts approved
and verified by DOLE from the time of signing thereof by the parties up to and
including the period of the expiration of the same without the approval of the DOLE
constitutes prohibited practice.

b. Yes, Mr. A can hold XYZ recruitment Co. liable. The liability of the principal/
employer and the recruitment/placement agency for any and all claims under this
section shall be joint and several. This provision shall be incorporated in the
contract for overseas employment and shall be a condition precedent for its
approval. Such liabilities shall continue during the entire period or duration of the
employment contract and shall not be affected by any substitution, amendment or
modification made locally or in a foreign country of the said contract. (2"d and Jrd
paragraphs, Section 10, RA 8042 as amended by RA 10022)

In this case, the basis of the liability of XYZ recruitment Co. is its solidary liability
with its principal as provided by law. Therefore, Mr. A can hold XYZ Recruitment
Co. liable for underpayment of his wages.