PRE-EMPLOYMENT

Principles and Definitions

Art.12. Statement and objectives. It is the policy of the State:

(a) To promote and maintain a state of full employment through improved manpower training, allocation and utilization;

(b) To protect every citizen desiring to work locally or overseas by securing for him the best possible terms and
conditions of employment;

(c) To facilitate a free choice of available employment by persons seeking work in conformity with the national interest;

(d) To facilitate and regulate the movement of workers in conformity with the national interest;

(e) To regulate the employment of aliens, including the establishment of a registration and/or work permit system;

(f) To strengthen the network of public employment offices and rationalize the participation of the private sector in the
recruitment and placement of workers, locally and overseas, to serve national development objectives;

(g) To insure careful selection of Filipino workers for overseas employment in order to protect the good name of the
Philippines abroad.

Title I
RECRUITMENT AND PLACEMENT OF WORKERS

Chapter I
GENERAL PROVISIONS

Art. 13. Principles and Definitions

"Worker" means any member of the labor force, whether employed or unemployed.

"Private fee-charging employment agency“ means any person or entity engaged in recruitment and placement of
workers for a fee which is charged, directly or indirectly, from the workers or employers or both.

"License" means a document issued by the Department of Labor authorizing a person or entity to operate a private
employment agency.

"Private recruitment entity" means any person or association engaged in the recruitment and placement of workers,
locally or overseas, without charging, directly or indirectly, any fee from the workers or employers.

"Authority" means a document issued by the Department of Labor authorizing a person or association to engage in
recruitment and placement activities as a private recruitment entity.

"Seaman" means any person employed in a vessel engaged in maritime navigation.

"Overseas employment" means employment of a worker outside the Philippines.

"Emigrant" means any person, worker or otherwise, who emigrates to a foreign country by virtue of an immigrant visa
or resident permit or its equivalent in the country of destination.

B. Recruitment and Placement

CETCHUP

Canvassing,Enlisting,Transporting,Contracting,Hiring,Utilizing,Procuring
CRAP

Contract Services,Referrals,Advertising for employment,Promising for employment

1. Definition: Illegal Recruitment; Prohibited Acts

Recruitment and Placement – any act of (CETCHUP) canvassing, enlisting, transporting, contracting, hiring, utilizing or
procuring workers and includes (CRAP) includes contract services, referrals, advertising for employment, promising 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.

B. Recruitment and Placement

Art. 14. Employment promotion. The Secretary of Labor shall have the power and authority:

To organize and establish new employment offices in addition to the existing employment offices under the Department
of Labor as the need arises;

To organize and establish a nationwide job clearance and information system to inform applicants registering with a
particular employment office of job opportunities in other parts of the country as well as job opportunities abroad;

To develop and organize a program that will facilitate occupational, industrial and geographical mobility of labor and
provide assistance in the relocation of workers from one area to another; and

To require any person, establishment, organization or institution to submit such employment information as may be
prescribed by the Secretary of Labor.

Article 16. Private recruitment.

Except as provided in Chapter II of this Title, no person or entity other than the public employment offices, shall engage
in the recruitment and placement of workers.

GENERAL RULE: Only public employment offices can engage in recruitment and placement of workers for local and
overseas.

EXCEPTION: Private sector may be given the privilege to engage in recruitment and placement limited only to:

1. Employment agencies

2. Recruitment entities

3. Shipping or manning agents

4. Other persons as may be authorized by Secretary of Labor and Employment

Article 18. Ban on direct-hiring.

2. No employer may hire a Filipino worker for overseas employment except through the Boards and entities
authorized by the Secretary of Labor. Direct-hiring by members of the diplomatic corps, international
organizations and such other employers as may be allowed by the Secretary of Labor is exempted from this
provision.
GENERAL RULE: No employer may hire a Filipino worker for overseas employment.

EXCEPTION:

a) diplomatic corps

b) international organizations

c) other employees allowed by Secretary of Labor and Employment

EXCEPTION TO THE EXCEPTION: Name Hire – a worker who is able to secure contract for employment overseas without
the assistance or participation of any agency.

However, he should still undergo processing by the POEA.

Article 21. Foreign service role and participation.

To provide ample protection to Filipino workers abroad, the labor attaches,

the labor reporting officers duly designated by the Secretary of Labor and the

Philippine diplomatic or consular officials concerned shall, even without prior instruction

or advice from the home office, exercise the power and duty:

a) To provide all Filipino workers within their jurisdiction assistance on all matters arising out of employment;

b) To insure that Filipino workers are not exploited or discriminated against;

c) To verify and certify as requisite to authentication that the terms and conditions of employment in contracts
involving Filipino workers are in accordance with the Labor Code and rules and regulations of the [POEA];

d) To make continuing studies or researches and recommendations on the various aspects of the employment
market within their jurisdiction;

e) To gather and analyze information on the employment situation and its probable trends, and to make such
information available; and

f) To perform such other duties as may be required of them from time to time.

g)

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.

GENERAL RULE: It is mandatory for all Filipino workers to remit a portion of their foreign exchange earnings to their
families, dependents, and/or beneficiaries in the country through BSP or DOLE authorized agents

EXCEPTION: Remittance is not mandatory in the following instance:

✔ Where the worker’s immediate family members, dependents, or beneficiaries are residing with him abroad;

✔ Filipino servicemen working in the U.S. military installations;

✔ Immigrants and Filipino professionals and employees working

✔ with the United Nations agencies or specialized bodies.

⮚ Seamen, mariners 80%

⮚ Workers of Filipino contractors and construction companies 70%
⮚ Doctors, engineers, teachers, nurses, and other professionals with free board and lodging 70%
⮚ Professionals without free
⮚ board and lodging 50%
⮚ Domestic and other service
⮚ Workers 50%

Article 25. Private sector participation in the recruitment and placement of workers.

Pursuant to national development objectives and in order to harness and maximize the use of private sector resources
and initiative in the development and implementation of a comprehensive employment program, the private
employment sector shall participate in the recruitment and placement of workers, locally and overseas, under such
guidelines, rules and regulations as may be issued by the Secretary of Labor.

Private employment agency with a license – refers to any person or entity engaged in the recruitment and placement of
workers for a fee which is charged, directly or indirectly, from the workers or employers or both.

Private recruitment entity with authority – refers to any person or association engaged in the recruitment and
placement of workers, locally or overseas, without charging, directly or indirectly, any fee from the workers or
employers.

Article 26. Travel agencies prohibited to recruit. 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.

REASONS:

❑ Travel agencies are under the supervision of Department of Tourism, not the DOLE Confusion may arise to the
detriment and disadvantage of an overseas applicant-worker

❑ May lead to exploitation of applicant worker who will be at mercy of the travel agency or sales agency of airline
company from the time his papers are processed to the time he departs

❑ Illegal recruitment activities are traced from travel agencies that facilitate papers of job-seeker for overseas;
promising that their tourist visa will be converted to working visa in the country of employment.

Article 27. Citizenship requirement. Only Filipino citizens or corporations, partnerships or entities at least seventy-five
percent (75%) of the authorized and voting capital stock of which is owned and controlled by Filipino citizens shall be
permitted to participate in the recruitment and placement of workers, locally or overseas.

Article 28. Capitalization. All applicants for authority to hire or renewal of license to recruit are required to have such
substantial capitalization as determined by the Secretary of Labor.

Capitalization Requirement

❑ Minimum capitalization of P2,000,000 for single proprietorship or partnership;

❑ Minimum paid-up capital of P2,000,000 for corporations;

Article 29. Non-transferability of license or authority.

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 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.

Article 30. Registration fees. The Secretary of Labor shall promulgate a schedule of fees for the registration of all
applicants for license or authority,

Article 31. Bonds. All applicants for license or authority shall post such cash and surety bonds as determined by the
Secretary of Labor to guarantee compliance with prescribed recruitment procedures, rules and regulations, and terms
and conditions of employment as may be appropriate.

Article 32. Fees to be paid by workers. Any person applying with a private fee-charging employment agency for
employment assistance shall not be charged any fee until he has obtained employment through its efforts or has
actually commenced employment. Such fee shall be always covered with the appropriate receipt clearly showing the
amount paid. The Secretary of Labor shall promulgate a schedule of allowable fees.

Prohibition on Charging Fees

✔ Placement fees cannot be collected from a hired worker until he has signed the employment contract
and shall be covered by receipts clearly showing the amount paid;

✔ Manning agencies shall not charge any fee from seafarer-applicants for recruitment and placement
services;

✔ No other fees or charges including processing fees shall be imposed against any worker.

Article 33. Reports on employment status.

Whenever the public interest requires, the Secretary of Labor may direct all persons or entities within the coverage of
this Title to submit a report on the status of employment, including job vacancies, details of job requisitions, separation
from jobs, wages, other terms and conditions and other employment data.

Article 34: Prohibited Practices

1. To charge or accept, directly or indirectly, any amount greater than that specified in the schedule of allowable
fees prescribed by the Secretary of Labor, or to make a worker pay any amount greater than that actually
received by him as a loan or advance

2. To furnish or publish any false notice or information or document in relation to recruitment or employment

3. To give any false notice, testimony, information or document or commit any act of misrepresentation for the
purpose of securing a license or authority under this Code

4. To induce or attempt to induce a worker already employed to quit his employment in order to offer him to
another unless the transfer is designed to liberate the worker from oppressive terms and conditions of
employment

5. To influence or to attempt to influence any person or entity not to employ any worker who has not applied for
employment through his agency

6. To engage in the recruitment or placement of workers in jobs harmful to public health or morality or to the
dignity of the Republic of the Philippines

7. To obstruct or attempt to obstruct inspection by the Secretary of Labor or by his duly authorized representatives

8. To fail to file reports on the status of employment, placement vacancies, remittance of foreign exchange
earnings, separation from jobs, departures and such other matters or information as may be required by the
Secretary of Labor
 9. To substitute or alter employment contracts approved and verified by the Department of Labor from the time of
actual signing thereof by the parties up to and including the periods of expiration of the same without the
approval of the Secretary of Labor

10. To become an officer or member of the Board of any corporation engaged in travel agency or to be engaged
directly or indirectly in the management of a travel agency

11. To withhold or deny travel documents from applicant workers before departure for monetary or financial
considerations other than those authorized under this Code and its implementing rules and regulations

12. Failure to actually deploy without valid reason as determined by DOLE

13. 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

Article 35. Suspension and/or cancellation of license or authority.

The Minister of Labor shall have the power to suspend or cancel any license or authority to recruit employees for
overseas employment for violation of rules and regulations issued by the Ministry of Labor, the Overseas Employment
Development Board, or for violation of the provisions of this and other applicable laws, General Orders and Letters of
Instructions.

Grounds for Suspension of License

1. Committing any of the prohibited practices under Article 34 and other pertinent provisions of the Labor Code;

2. Engaging in recruitment and deployment in violation of the license or authority and other activities without prior
authorization from POEA;

3. Disregard of lawful orders, notices and other processes issued by the POEA;

4. Coercing with workers to accept prejudicial arrangements in exchange of certain benefits that rightfully belongs to
workers;

5. Withholding of workers’ salaries or remittances without justifiable reasons;

6. Committing other acts similar and analogous to the foregoing.

Grounds for Revocation of License

1. Violation of the conditions of license;

2. Engaging in acts of misrepresentation for the purposes of securing a license or

renewal thereof, such a giving false testimonies or falsified documents;

3. Engaging in recruitment or placement of workers in jobs harmful to public health or morality or to the dignity of the
Republic of the Philippines;

4. Incurring an accumulated three (3) counts of suspension by an agency based on final and executor orders within the
validity of the license.

Art. 38. Illegal recruitment

Any recruitment activities, including the prohibited practices enumerated under Article 34 of this Code, to be
undertaken by non-licensees or non holders of authority, shall be deemed illegal and punishable under Article 39 of this
Code. The Department of Labor and Employment or any law enforcement officer may initiate complaints.

To prove illegal recruitment, it must be shown that the accused gave the distinct impression that he had the power or
ability to send complainants abroad for work such that the latter were convinced to part with their money in order to be
deployed.

A person is guilty of illegal recruitment when he gives the impression that he has the power to send workers abroad.

Illegal recruitment involving economic sabotage

1. By a syndicate – carried out by a group of 3 or more persons confederating with one another

2. In large scale – committed against 3 or more persons individually or as a group

Labor Code

local recruitment and employment

Illegal Recruitment (Art. 38)

Any recruitment activity including Prohibited Acts under Art. 34 committed by non licensees or non holders of authority.

Elements:

1. That the offender has no valid license or authority required by law to enable one to lawfully engage in recruitment
and placement of workers; and,

2. 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.

Illegal Recruitment (Sec.6):

Any recruitment activity committed by non- licensees / non-holders of authority; OR

Prohibited Acts (same as Art. 34 of LC) committed by any person, whether a non licensee, non-holder, licensee or holder
of authority.

Added the following in the list of Prohibited Acts:

1. fail to actually deploy without valid reason;

2. fail to reimburse expenses incurred by the worker in connection with his/her documentation and processing for
purposes of deployment, in cases where the deployment does not actually take place without the workers fault.

Non-licensee / Non-Holder of authority – any person, corporation or entity which has not been issued a valid license or
authority to engage in recruitment and placement by the Secretary of Labor, or whose license or authority has been
suspended, revoked or cancelled by the POEA or the Secretary

Who are liable:

⮚ Principals, accomplices, and accessories

⮚ For juridical persons, the officers having control, management or direction of their business shall be liable.

⮚ Where illegal recruitment is proved but the elements of “large scale” or “syndicate” are absent, the accused can be
convicted only of “simple illegal recruitment”.
Regulation of Recruitment and Placement Activities

Entities authorized to engage in recruitment and placement

a. public employment offices

b. Philippine Overseas Employment Administration (POEA)

c. private recruitment entities

d. private employment agencies

e. shipping or manning agents or representatives

f. such other persons or entities as may be authorized by the DOLE Secretary

g. construction contractors

Is direct-hiring of OFWs allowed? Why?

No. Employers cannot directly hire workers for overseas employment except through authorized entities see
(enumeration above). The reason for the ban is to ensure full regulation of employment in order to avoid exploitation.

Nature of the liability of local recruitment agency and foreign principal

1. Local Agency is solidarily liable with foreign principal.

2. Severance of relations between local agent and foreign principal does not affect liability of local recruiter.

Joint and solidary liability of recruiter with Foreign Principal

A recruitment agency is solidarily liable for the unpaid salaries of a worker it recruited for employment overseas. Even if
the recruiter and the principal had already severed their agency agreement at the time employee was injured, the
recruiter may still be sued for a violation of the employment contract because no notice of the agency agreement's
termination was given to the employee.

Contracts

Freedom to Stipulate

Terms and conditions and other benefits not provided by the minimum requirements are valid if the whole employment
package is more beneficial to the worker than the minimum. But the stipulations should not contradict law, public policy
and morals.

Minimum Provisions for Contract

1. Guaranteed wages, for regular working hours and overtime pay for services rendered beyond regular work
hours in accordance with the standards established by the Administration

2. Free transportation from point of hire to site of employment and return

3. Free emergency medical and dental treatment and facilities

4. Just causes for the termination of the contract or of the services of the workers

5. Workmen’s compensation benefits and war hazard protection

6. Repatriation of workers remains and properties in case of death to the point of hire, or if this is not possible
under the circumstances, the proper disposition thereof, upon prior arrangement with the worker’s next-of-kin
and the nearest Embassy or Consulate through the Office of the Labor Attache
 7. Assistance in the remittance of worker’s salaries, allowances or allotments to his beneficiaries

8. Free and adequate lodging facilities or compensatory food allowance at prevailing cost of living standards at the
jobsite

Dispute Settlement

Regulatory power – DOLE Secretary shall have the power to restrict and regulate the recruitment and placement
activities of all agencies within the coverage of this Title and is hereby authorized to issue orders and promulgate rules
and regulations to carry out the objectives and implement the provisions of this Title.

Jurisdiction of the POEA

Original and exclusive jurisdiction to hear and decide:

a. all cases, which are administrative in character, involving or arising out of violations of rules and regulations relating
to licensing and registration of recruitment and employment agencies or entities

b. disciplinary action cases and other special cases, which are administrative in character, involving employers,
principals, contracting partners and Filipino migrant workers.

Money Claims of OFWs

A worker dismissed from overseas employment without just, valid or authorized cause as defined by law or contract, is
entitled to:

a. full reimbursement of the placement fee with interest at 12% per annum PLUS

b. his salary for unexpired portion of his employment contract OR salary for 3 months for every year of the unexpired
term, WHICHEVER IS LESSER

3-months option available ONLY IF the employment contract is for at least one year. If the contract is shorter than that,
the salary paid should be that for the unexpired portion.

Jurisdiction over Money Claims

Labor Arbiters have jurisdiction over all monetary claims of Overseas Filipino Workers arising from 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.

Requisites for Employment of Non-Resident Aliens

1. working permit from DOLE

2. certification that there is no available Filipino willing and competent to do the job for the employer

3. alien must train at least two Filipino understudies for such undertaking

4. FOR ENTERPRISES REGISTERED IN PREFERRED AREAS OF INVESTMENT – employment permit issued upon
recommendation of government agency charged with the supervision of said registered enterprise.

Exemption from Permit

1) All members of Diplomatic Services and foreign government officials accredited with the Phil.
Government

2) Members of international organizations with which the Phil. Government is a cooperating member (i.e.
ADB, IRRI)

3) Missionaries actually engaged in missionary work

 4) All aliens granted exemption by special laws and all those whose employment in the Phil. Have been
determined by the Sec. of Labor to be beneficial to national interest.

Duration of Permit

❑ Valid for 1 year from date of issuance, unless sooner revoked by the Secretary of Labor

❑ Renewable upon showing of good cause

❑ Non-transferable

Other Prohibitions

❑ Aliens shall not transfer to another job or change his employer without prior approval of the secretary of
labor

❑ Non-resident alien shall not take up employment in violation of the provisions of the Code.

Learners Apprentices
What Persons hired as trainees in semiskilled and other Practical training on the job
industrial occupations

Non-apprenticeable Supplemented by related theoretical

instruction

May be learned through practical training on the job in a Covered by a written apprenticeship
relatively short period of time agreement with an individual employer or
entity
Shall not exceed 3 months Needs DOLE approval
Shall not exceed 6 Months

When No experienced workers available At least 14 years old

may be
hired Prevent curtailment of employment opportunities Possesses vocational aptitude and capacity
for tests
Not to create unfair competition in labor costs and lower Ability to comprehend
working Standards
List of learnable trades provided by TESDA Ability to follow oral and written instructions
Any form of employment requiring beyond 3
mos. practical training on the job
supplemented by related theoretical
instruction

D. Human Resources & Manpower Development

1. Government Machinery

Policy - It is the policy of the State to provide relevant, accessible, high quality and efficient technical education and
skills development in support of the development of high-quality Filipino middle-level manpower responsive to and in
accordance with Philippine development goals and priorities.

Power and Functions of TESDA

Responsible for formulating, continuing, coordinating, and fully integrating technical education and skills development
policies, plans and programs

D. Human Resources & Manpower Development

2. Apprenticeship and Learnership

D. Human Resources & Manpower Development

2. Apprenticeship and Learnership

Requisites for a Valid Apprenticeship

1. qualifications of apprentice are met

2. the apprentice earns not less than 75% of the prescribed minimum salary

3. apprenticeship agreement duly executed and signed

4. apprenticeship program approved by the Sec. of Labor; otherwise, the apprentice shall be deemed as a regular
employee

5. period of apprenticeship not exceed 6 months

At the termination of the apprenticeship, the employer is not required to continue the employment. Employer may not
pay wage if the apprenticeship is

❑ a requirement for graduation

❑ required by the School

❑ required by the Training Program Curriculum

❑ requisite for Board examination

Venue of Apprenticeship Programs

⮚ The plant, shop, premises of the employer or firm concerned if the apprenticeship program is organized by an
individual employer or firm.
⮚ The premises of one or several firms designated for the purpose by the organizer of the program if such organizer is
an association of employers, civic groups and the like.

⮚ DOLE training center or other public training institutions with which the Bureau has made appropriate
arrangements.

D. Human Resources & Manpower Development

2. Apprenticeship and Learnership

Contents of Learnership Agreement

1. names and addresses of employer and learner

2. occupation to be learned and the duration of the training period which shall not exceed 3 months

3. wage of the learner which shall be at least 75% of the applicable minimum wage

4. commitment to employ the learner, if he so desires, as a regular employee upon completion of training

A learner who has worked during the first two months shall be deemed a regular employee if training is terminated by
the employer before the end of the stipulated period thorough no fault of the learner.