[BES31418] Labor Standards Notes_Prelims
9. Name hires (Sec 1 (i), Rule II, Omnibus Rules and
Worker – means any member of the labor force whether
employed or unemployed
Recruitment and placement
- Refers to 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:
▪ Transporting: if ofws go abroad, it involves literal
transportation of people whether through sea or
airplane
▪ Advertising is already recruitment and placement
in the context of the Labor Code
- 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. (Art. 13, Labor Code)
Who may engage in recruitment and placement?
Article 16
GR: No person or entity other than the public employment
offices, shall engage in the recruitment and placement of
workers
- GR is general rule
- In the Philippines, some LGUs have Public
Employment Service Offices (PESO) where they
post job openings and anyone could apply as long
as they have the requirements and are fit for the
job
- Ideal rule is recruitment is done through PESO
- In the UK, a job center has all the vacant positions
job applicants could apply for and an agent would
match them with the best job available for their skill
set
XPNs (exceptions):
1. Construction contractors if authorized by the DOLE and
Construction Industry Authority
2. Other persons or entities as may be authorized by the
Secretary of Labor and Employment (SOLE)
3. Members of the diplomatic corps (but hiring must still go
through POEA) - Special consideration to diplomats under
the International law
4. Public Employment offices
5. Private recruitment office
6. Private employment agencies
7. POEA
8. Shipping or manning agents or representatives
Lesson 2: Recruitment and Placement
Regulations implementing the Migrant Workers and Overseas
Filipinos Act of 1995 as amended by R.A. 10022]
OVERSEAS EMPLOYMENT
- means employment of a worker outside the Philippines.
(Art. 13, Labor Code)
OVERSEAS FILIPINO WORKER (OFW)
- A person who is to be engaged, is engaged or has been
engaged in a remunerated activity in a State of which he or
she is not a citizen or on board a vessel navigating the
foreign seas other than a government ship used for military
or noncommercial purposes or on an installation located
offshore or on the high seas (IRR, Migrant Workers Act)
▪ Remunerated activity – has compensation, with
wage
2 KINDS OF OFW:
1. Land based OFW
- Contract worker other than a seaman including workers
engaged in offshore activities whose occupation requires that
majority of his/her working or gainful hours are spent on
land
▪ Land based OFWs are those that are not
considered a seaman
- Ex: nurses, health workers, teachers
- Filipino astronauts are land based, majority of
their working hours are spent on land
2. Sea based OFW
- "Seaman" means any person employed in a vessel engaged
in maritime navigation. (Art. 13, Labor Code)
▪ More commonly known as seaman
- Refers to any person who is employed or engaged in
overseas employment in any capacity on board a ship other
than a government ship used for military or noncommercial
purposes. The definition shall include fishermen, cruise ship
personnel and those serving on mobile offshore and drilling
units in the high seas (IRR, Migrant Workers Act)
- Members of the navy are part of the military so they are
exempt under the definition of the Sea based OFW (not
considered sea based OFW)
- Chamber maid, janitor, cook in a ship are all considered sea
based OFW
- Serving on mobile offshore and drilling units in the high
seas: workers who work on oil rigs in the middle of the
ocean
▪ although they are flown back to the land after
their job, they are still considered Sea Based OFW
since they spend most of their jobs on sea
- Militaries are not considered as OFWs since they do not
undergo recruitment through POEA
▪ It is mandated that OFWs’ hiring must go through
POEA
[BES31418] Labor Standards Notes_Prelims
Philippine Overseas Employment Administration
(POEA)
- Government agency tasked with protecting overseas
workers’ rights to fair and equitable employment practices
- Responsible for deployment of Filipinos through
government-to-government hiring
▪ Government-to-government hiring is a special
arrangement between two states/nation
▪ Ex: New Zealand would hire 1,000 nurses from
the Philippines exclusively but you don’t need to go
through a private agency but instead you have to
apply with the POEA
▪ Non government-to-government hiring would
mean that you have to go through an agency where
they review your papers and then give it to your
principal, the principal will be the one to decide if
you are going to be hired.
- Performs administrative, regulatory and enforcement as
well as limited adjudicatory functions.
Jurisdiction of POEA
- 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; and
- Disciplinary action cases and other special cases which are
administrative in character involving employers, principals,
contracting partners and Filipino migrant workers
- POEA decisions are appealable to the Secretary of Labor
- We differentiate land based to sea based because POEA
have different set of rules for them because of the difference
in the nature of the job
▪ Sea based has more hazards than land based
OFWs
BAN ON DIRECT HIRING (Article 18)
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.
- Direct hiring: hiring without going through the
proper agencies
Exceptions:
✓ Done by members of the diplomatic corps or international
organizations
- Ex: if you are being hired by WHO, UN, UNHCR,
World Bank, IMF
✓ Name hires
Lesson 2: Recruitment and Placement
- exception to direct hiring, not direct hiring in the
sense, people who are able to secure contract
through their own efforts but they still need to
register with the POEA so that they can evaluate if
the employment is true or not or if everything is
okay with their employment
Reason why you have to go through an agency and
there is a ban on direct hiring:
- Agencies are accredited by the POEA and the DOLE so they
undergo the proper process to determine if they are fit to
send workers abroad
- To prevent human trafficking
- To prevent abuses and illegal activities
- Employment contracts would have to undergo scrutiny by
the POEA to review contracts and determine whether
employment abroad will be legal or not
Art. 21 – Foreign Service Role and Participation
Agencies that are relevant to the protection of OFWs
abroad:
- Department of Foreign Affairs (DFA)
▪ The one coordinating with the governments
abroad
- Department of Labor & Employment (DOLE)
- Philippine Overseas Employment Administration (POEA)
▪ Based in the Philippines and regulate the agencies
▪ More concerned with what happens with an
employee prior to going abroad and whether there
is legal recruitment
▪ Are the recruiters legal? Are they
following the rules and regulations?
▪ More administrative in nature
- Overseas Workers Welfare Administration (OWWA)
▪ Main purpose is to look after the welfare of
Filipinos working abroad
Repatriation
- sending OFWs back home from their country of destination
or the host country
- Several reasons why an OFW is being repatriated
✓ War
✓ Epidemic
✓ Pandemic
✓ Violence
✓ Massive loss of jobs due to disasters or
calamities whether natural or man made
- All costs for repatriation should be shouldered by the
agency who recruited or deployed the employee overseas
▪ In exceptional circumstances, the government
steps in and helps with the repatriation
- In case of death, the fees for repatriation should be
shouldered by the principal or the local agency
[BES31418] Labor Standards Notes_Prelims Lesson 2: Recruitment and Placement

▪ Principal – foreign employer, ask or engage to

services of an agency in the Philippines to be their
representative or agent
▪ Agency – advertise the job, in advertising the jobs
they also process the documents necessary to send
the qualified worker abroad
▪ Term for relationship between the principal and
Recruitment by the Private Sector
the agency is an “agency” under the civil code
▪ In an agency relationship, the principal is bound
- Private fee-charging employment agency means any
by the acts of the agent and in turn, the agents
person or entity engaged in recruitment and placement of
represent the principal most especially for a fee.
workers for a fee which is charged, directly or indirectly, from
⮚Agency is responsible for the Filipino
the workers or employers or both.
worker who is to be deployed abroad or
▪ If collected from the worker, it is called a
even locally (if the principal is based
placement fee
locally)
▪ If collected from the principal, it is called an
⮚They should take care of the worker
agency fee
from the time they are deployed until the
▪ The agency can charge both the worker and the
end of the contract
principal
⮚That is why they are primarily
responsible for transporting the remains of
- Private recruitment entity - means any person or
an OFW who died abroad
association engaged in the recruitment and placement of
workers, locally or overseas, without charging, directly or
- If the employee is at fault, he/she will be the one to
indirectly, any fee from the workers or employers.
shoulder his/her repatriation fees
▪ Out of pure generosity such as NGOs
▪ Ex: if employee is caught for theft and is being
▪ Not charging
repatriated, he/she will be the one to bear the cost
for his/her transportation
Who can participate in recruitment? (Private Sector)
1. Shipping or manning agents or representatives
- In case of a pandemic or war, the repatriation fees will be
2. Private recruitment offices
shouldered by the government specifically the OWWA
3. Public employment offices
4. Construction contractors if authorized by the DOLE and
Article 22 – Mandatory Remittance of Foreign
Construction Industry Authority
Exchange Earnings
5. Persons that may be authorized by the SLE
6. Private employment agencies (Sec. 1, Rule VII, Book I,
- It shall be mandatory for all Filipino workers abroad to
IRR of the LC).
remit a portion of their foreign exchange earnings to their
families, dependents, and/or beneficiaries in the country in
Can a natural person participate in recruitment and
accordance with rules and regulations prescribed by the
be licensed or authorized to recruit?
SOLE
⮚Natural person vs juridical person
- Legal families are entitled to at least 50-80% of
▪ Natural person: human beings
the OFWs basic salary depending on which industry
▪ Juridical person: persons because they
they are in
are created so by fiction of law
▪ For seaman, around 80% of their basic
- Ex: partnerships, corporations, organizations
salary outside allowances
⮚YES even if you are a natural person, as long as
▪ For contractors in construction companies
you comply with the requirements, you are allowed
– 70%
to do so
▪ For doctors and nurses – 70%
- Mandatory that they also go through accredited
Requirements/ Qualifications for Participation in
financial institutions of the Philippine government
Recruitment and Placement of Workers
▪ Why it is being mandated? It helps the economy
- Proof of compliance: bank remittance forms, bank
I. Citizenship Requirement (Art. 27)
certifications
- If the OFW does not want to comply/failure to
- Only Filipino citizens or corporations, partnerships or
remit: they may be suspended or banned from
entities at least seventy-five percent (75%) of the authorized
being sent abroad but they can still be employed
and voting capital stock of which is owned and controlled by
locally
Filipino citizens shall be permitted to participate in the
- Beneficiaries need not be family members and you
recruitment and placement of workers, locally or overseas.
can also remove people from your list of
- In other industries there are also requirements:
beneficiaries
[BES31418] Labor Standards Notes_Prelims
▪ Media: 100%
▪ Advertising: 70%
▪ Why? The constitution in the law ensures that
businesses are owned by Filipinos because of the
Filipino first policy
II. Capitalization Requirement (Art.28)
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.
SINGLE CORPORATION
PROPRIETORSHIP/
PARTNERSHIP
Minimum capitalization of Minimum paid-up capital of
PHP 2,000,000.000 PHP 2,000,000.000
- Minimum 2 million of capitalization
- Single/sole proprietorship: Sole proprietorship (you as
the owner and responsible for your business)
▪ Meaning debts of your business is your personal
responsibility, you are liable to pay for the debts of
her business
- Partnership: entity created because of an agreement
between two or more people called partners and they
register their partnership with the Securities and Exchange
Commission (SEC); create something called Articles of
Partnership
▪ Articles of Partnership would define and would
include their agreements (ex: division of ownership,
contributions of each person)
- Corporation: entity created under the Corporation Code
of the Philippines
▪ Before you should have 5 incorporators, now you
can have 5 or more or even only one incorporator
- Main difference with single proprietorship: liability
⮚In a corporation, the corporation is on
its own another person separate from
those making up the corporation
⮚Meaning incorporators are not liable for
the debts of the corporation
III. Entities Disqualified (Art. 26, LC; IRR)
1. Travel agencies and sales agencies of airline companies
(Art. 26, LC)
- Why?
▪ Department of Tourism is the one regulating the
travel agencies
▪ To prevent human trafficking and illegal activities
2. Officers or members of the board of any corporations or
members in a partnership engaged in the business of a
travel agency
Lesson 2: Recruitment and Placement
3. Corporations and partnerships, when any of its officers,
members of the board or partners, is also an officer, member
of the board or partner of a corporation or partnership
engaged in the business of a travel agency
4. Persons, partnerships or corporations which have
derogatory records, such as but not limited to those
a. Certified to have derogatory record or
information by the NBI or by the Antiillegal
Recruitment Branch of the POEA
b. Against whom probable cause or prima facie
finding of guilt for illegal recruitment or other
related cases exists
- Probable cause: finding made by the
prosecutor that a person has committed a
crime and is probably guilty based from
the evidence presented, he/she may have
done the crime
c. Convicted for illegal recruitment or other related
cases and/or crimes involving moral turpitude; and
- Crime involving moral turpitude: murder,
homicide, rape (heinous crimes)
d. Agencies whose licenses have been previously
revoked or cancelled by the POEA for violation of
R.A. 8042, P.D. 442 as amended and their IRRs.
5. Any official or Ee of the DOLE, POEA, OWWA, DFA and
other government agencies directly involved in the
implementation of R.A. 8042 (Migrant Workers Act) and/or
any of his/her relatives within the 4th civil degree of
consanguinity or affinity; and you find your common
ancestor
▪ Ex: Cousins - common ancestor are grandparents
6. Persons or partners, officers and directors of corporations
whose licenses have been previously cancelled or revoked
for violation of recruitment laws (Sec. 2, Rule I, 2002 Rules
and Regulations on the Recruitment and Employment of
Land-Based Workers).
IV. Registration Fees – License/Authority
Registration Fees (Art. 30) The Secretary of Labor shall
promulgate a schedule of fees for the registration of all
applicants for license or authority.
V. Security Bond
[BES31418] Labor Standards Notes_Prelims
Bonds (Art. 31) 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.
- A bond is a tool to use as a security for the
performance of an obligation
Escrow Agreement Surety Bond
Submit an escrow Post a surety bond in the
agreement in the amount amount of PHP 100,000.00
of PHP 1,000,000.00 with from an accredited bonding
confirmation of escrow company
deposit by an accredited
reputable bank.
- Escrow agreement: deposit of PHP 1 million in a bank to be
accredited as a recruiter or agency aside of the PHP 2 million
capital
- Need to also post a bond of PHP 100,000
- Submit proof of these to DOLE
- If a recruiter violated an obligation, they will use these to
pay your victims`
SUMMARY: A recruiter must:
1. Pass the citizenship requirements
2. Have the minimum capitalization
3. Not be disqualified under Article 26 and other
enumerations
4. Pay the license and authority fee
5. Post the bond Note: if a recruiter did not meet any of
these requirements or are disqualified, they will not be
accredited (will not be given the license or authority)
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.
- All the fees you pay to the private fee-charging
employment agency must be acknowledged
through a receipt
Authorized payments
1. Placement fee in an amount equivalent to one month’s
salary of the worker, and
2. Documentation costs (Sec. 3, Rule V, POEA Rules and
Regulations)
Lesson 2: Recruitment and Placement
- Documentation costs are fees for processing of
passport, NBI clearance, birth certificate, medical
expenses, required vaccines, authentication of
documents etc.
- Documentation costs are chargeable to the worker
however, they shall not pay processing fees. They
shall only pay for the actual costs of the document
- Who shall pay for the processing of visa and POEA
processing fee, fees for ticket, OWWA membership?
Charged to the employer principal
▪ It can be initially paid by the agency but
ultimately, the agency will charge it to the
principal
▪ Why? They are the one hiring the
employee so they are the one responsible
for the employee to get to them
If you do any acts under Article 34, you may be
penalized under Article 39
1. To charge or accept, directly or indirectly, any amount
greater than that specified in the schedule of allowable fees
(refers to placement 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;
- Can you get a loan from your agency? YES you
can get any loan and it is deducted from your salary
(ex: SSS or other accredited loan facility)
- If the agency is charging more than the amount of
the loan, it is prohibited
2. To furnish or publish any false notice or information or
document in relation to recruitment or employment;
- Ex: Advertisement of nurse deployment to New
Zealand when the truth is that the deployment is
really to Afghanistan
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.
- Ex: You declare that you have PHP 2 million
capital but in reality, you only have PHP 100, 000
- Another example is falsifying bank records making
it appear that you already deposited PHP 1 million
when in fact you made no such deposit
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;
[BES31418] Labor Standards Notes_Prelims
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;
- Ex: advertisement outside of your agency for a job
opening for sex workers in Amsterdam (not
allowed)
▪ Prostitution is still a crime under the
Revised Penal Code so it offends 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;
- According to the Visitorial Power of the SOLE
- Visitorial Power is the power of the SOLE or his
authorized representative to go to the premises of
any agency at any time and to inspect the
premises, books and to determine whether they are
doing things legally
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;
- Ex: ABC Company advertised for a job position for
a nurse, but after deployment of the employees
abroad, they are informed that they are going to be
working as a domestic helper for 2 years different
from what was advertised and from the contract
they have initially signed which is for a job as a
nurse
- What you signed up for, the salary that you are
signing up for, duration of contract and the working
conditions must all be the same with what you are
actually getting/experiencing when you work
abroad
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;
and
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.
- Ex: ABC Manpower Services charge its customers
with additional costs for processing of papers i.e.,
the cost of passport processing should only be PHP
1,900 but they charge PHP 2,300 (this is already
considered a prohibited practice)
Lesson 2: Recruitment and Placement
Prohibited Practice under Migrant Workers Act Prohibited
practices in recruitment or placement
1. Furnishing or publishing any falsie
notice/information/document related to
recruitment/employment
2. Failure to file reports required by SOLE
3. Inducing or attempting to induce a worker already
employed to quit his employment in order to offer him
another unless the transfer is designed to liberate a worker
from oppressive terms and conditions
4. Recruitment/placement of workers in jobs harmful to
public health or morality or to the dignity of the country
5. Engaging directly or indirectly in the management of a
travel agency
6. Substituting or altering employment contracts without
approval of DOLE
7. Charging or accepting any amount greater than that
specified by DOLE or make a worker pay any amount greater
than actually received by him
8. Committing any act of misrepresentation to secure a
license or authority
9. Influencing or attempting to influence a person/entity not
to employ any worker who has not applied employment
through his agency
10. Obstructing or attempting to obstruct inspection by SLE
or by his representatives
11. Withholding or denying travel documents from applicant
workers before departure for monetary considerations other
than authorized by law
12. Granting a loan to an overseas Filipino worker with
interest exceeding eight percent (8%) per annum, which will
be used for payment of legal and allowable placement fees
and make the migrant worker issue, either personally or
through a guarantor or accommodation party, postdated
checks in relation to the said loan
- If an agency is granting a loan, the interest must
not be more than 8% per annum
13. Refusing to condone or renegotiate a loan incurred by an
OFW after his employment contract has been prematurely
terminated through no fault of his or her own
- If the OFWs contract was terminated without his/her fault,
then he may ask for a condonation or a renegotiation of the
loan and time to pay for it
[BES31418] Labor Standards Notes_Prelims Lesson 2: Recruitment and Placement

14. For a suspended recruitment/manning agency to engage

employment agency. recruitment and placement
in any kind of recruitment activity including the processing of activities as a private
pending worker’s applications; and recruitment entity.

15. For recruitment/manning agency or a foreign principal/Er

- License: if you want to charge fees - Authority: if you do
to pass on the OFW or deduct from his or her salary the
not want to charge fees
payment of the cause of fees, premium or other insurance
- License or authority can be converted to another, but you
related charges, as provided under the compulsory worker’s
have to apply for the proper document
insurance coverage
- Having only an authority without license but you are
charging fees can already be considered a violation
16. Imposing a compulsory and exclusive arrangement
- Both license and authority must meet the capitalization
whereby an OFW is required to:
requirement of PHP 2 million
a. Avail a loan only from specifically designated
▪ In order for them to have the proof that they are
institutions, or entities or persons
able to process the needed documents or have the
b. To undergo health examinations only from
money to spend in their business
specifically designated medical, entities or persons,
- Is license strictly for employment agencies and is authority
except seafarers whose medical examination cost is
strictly for recruitment entities? YES
shouldered by the ship owner
- If employers will be the one to shoulder
the expenses, then they are free to
designate medical entities or persons for
health examinations
c. To undergo training of any kind only from
designated institutions, entities or persons, except
for recommendatory trainings mandated by
principals/shipowners (Sec. 6, R.A. 8042, Migrant License or authority are non-transferable (Art. 29, LC).
Workers and Overseas Filipino Act, as amended by License or authority is granted on the basis of personal
R.A. 10022). qualifications of the grantee. Thus, it is beyond the
- Why? The recommended trainings by the commerce of man.
principals are being paid for by the - Why? To prevent a circumvention of the
principal requirements - Beyond the commerce of man
- You cannot undergo trainings that you ▪ in law, it means it cannot be subject of
will be the one to pay, if there is a business or commerce
recommended training by the principal, it ▪ meaning it cannot be sold, it cannot be
must always be shouldered by them traded, it cannot be transferred, it is not
an ordinary good
Persons prohibited from engaging in the business of
recruiting migrant workers ; RA 8042: Repetition of
what is in the Labor Code

1. It is unlawful for any official or Ee of the following

agencies to engage in recruiting migrant workers: DOLE,
POEA, Overseas Workers Welfare Administration (OWWA),
DFA, Other Government agencies involved in the
implementation of R.A. 8042
2. The relatives within the 4th civil degree of consanguinity
or affinity of such official or Ee are also prohibited from
engaging directly or indirectly in the business of recruiting
migrant workers (Sec. 8, R.A. 8042).
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.

LICENSE VS. AUTHORITY Who can suspend the license or authority?

- SOLE and/or POEA Administrator
LICENSE AUTHORITY

A document issued by the A document issued by the

Department of Labor Department of Labor
authorizing a person or authorizing a person or
entity to operate a private association to engage in
Regulatory Power
[BES31418] Labor Standards Notes_Prelims
Article 36. Regulatory power. The Secretary of Labor 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.
- Ex: DOLE stopped the deployment of healthcare
workers (included in their regulatory power)
Visitorial Power
Article 37. Visitorial Power. The Secretary of Labor or his
duly authorized representatives may, at any time, inspect the
premises, books of accounts and records of any person or
entity covered by this Title, require it to submit reports
regularly on prescribed forms, and act on violation of any
provisions of this Title.
ARTICLE 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 under this
Article.
KINDS OF ILLEGAL RECRUITMENT:
1. Simple illegal recruitment
- 1 recruiter = 1 worker
- 1 recruiter = 2 workers
- 2 recruiters = 1 worker
- 2 recruiters = 2 workers
- All recruiters are non-licensed and nonauthorized
2. Complex illegal recruitment
- Become complex because of the number of people involved
Lesson 2: Recruitment and Placement
- Illegal recruitment when committed by a syndicate or in
large scale shall be considered an offense involving economic
sabotage and shall be penalized in accordance with Article
39 hereof.
▪ Considered an economic sabotage because OFWs
contribute so much to the economy through their
remittances, you are disrupting the importance of
the OFWS to the economy
- Illegal recruitment is deemed committed by a syndicate if
carried out by a group of three (3) or more persons
conspiring and/or confederating with one another in carrying
out any unlawful or illegal transaction, enterprise or scheme
defined under the first paragraph hereof.
▪ Look at the number of perpetrators or offenders
▪ 3 or more recruiter
- Illegal recruitment is deemed committed in large scale if
committed against three (3) or more persons individually or
as a group.
▪ Look at the number of victims or workers
▪ Victims should at least be 3 or more people
Illegal recruitment can be done:
⮚ By a non-licensee
⮚ By a non-holder of authority
⮚ By a syndicate
⮚ In large scale
ELEMENTS OF ILLEGAL RECRUITMENT
1. Offender is a non-licensee or non-holder of authority to
lawfully engage in the recruitment/placement of workers.
2. Offender undertakes:
a. 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 [Art. 13(f), R.A. 8042 as amended by
R.A. 10022]; or
b. Any of prohibited practices under Art. 34 of the
LC.
3. For complex illegal recruitment, an additional element the
offender commits the act against three or more persons,
individually, or as a group (People v. Baytic, G.R. No.
150530, February 20, 2003) or there are three or more
offenders.
NOTE:
- If you’re an authority holder but you charge fees which is
only for licensed individuals, you are already considered
committing an act of illegal recruitment
- Illegal recruitment committed in a large scale and by
syndicate can be done simultaneously
Article 39. Penalties.
● Economic Sabotage - life imprisonment and a fine of One
Hundred Thousand Pesos (P100,000.00)
[BES31418] Labor Standards Notes_Prelims
- and: both life imprisonment and fine
● Offender is licensee or holder of authority
- imprisonment of not less than two years nor more than five
years or a fine of not less than P10,000 nor more than
P50,000, or both such imprisonment and fine, at the
discretion of the court;
● Offender is not licensee or holder of authority
- imprisonment of not less than four years nor more than
eight years or a fine of not less than P20,000 nor more than
P100,000 or both such imprisonment and fine, at the
discretion of the court;
● Offender is a corporation, partnership, association or
entity, the penalty shall be imposed upon the officer or
officers of the corporation, partnership, association or entity
responsible for violation; and if such officer is an alien, he
shall, in addition to the penalties be deported without further
proceedings
● Conviction means automatic revocation of license or
authority and forfeiture of bonds
Note: If the recruiter is not able to pay the fine, the fine is
converted to days of imprisonment
EMPLOYMENT 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 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.
- For an enterprise registered in preferred areas of
investments, said employment permit may be issued upon
recommendation of the government agency charged with the
supervision of said registered enterprise.
FACTORS TO CONSIDER IN EMPLOYMENT OF NRA
Non-resident alien may be hired if an employment permit is
issued to a non-resident alien or to the applicant employer
after a:
4. Determination of the non-availability of a person
in the Philippines who is competent,
Lesson 2: Recruitment and Placement
5. Able and willing at the time of application to
perform the services for which the alien is desired
(Art. 40, Title II, LC).
Note: All three (competent, able and willing) must be met
REQUIREMENTS IN EMPLOYMENT OF NONRESIDENT
ALIENS
1. Shall obtain an employment permit from the DOLE (Alien
Employment Registration Certificate)
2. The permit may be issued to a non-resident alien or to the
applicant Er 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
3. For an enterprise registered in preferred areas of
investments, said permit may be issued upon
recommendation of the Government agency charged with
the supervision of said registered enterprise (Art. 40, Title II,
LC).
Article 41. Prohibition against transfer of
employment.
- After the issuance of an employment permit, the alien shall
not transfer to another job or change his employer without
prior approval of the Secretary of Labor.
- Any non-resident alien who shall take up employment in
violation of the provision of this Title and its implementing
rules and regulations shall be punished in accordance with
the provisions of Articles 289 and 290 of the Labor Code
- In addition, the alien worker shall be subject to deportation
after service of his sentence.
DEPORTATION VS REPATRIATION
- Deportation
▪ overt act on the part of the foreign country to
send back an undesirable alien to his country of
origin
▪ ex of undesirable alien: murderer, rapist
▪ can still serve sentence in the foreign country but
after serving the sentence, they will be deported,
▪ if deported more often they are also blacklisted
▪ there are also instances that those deported can
also go back to the foreign country, it is up to the
country of destination if they will still give the visa
to a deported alien
- Repatriation
▪ OFWs being sent home more often unwillingly
because of war, violence, etc. (on the part of the
Philippine Government or on the part of the
agency)
[BES31418] Labor Standards Notes_Prelims
Article 42. Submission of list.
Any employer employing non-resident foreign nationals on
the effective date of this Code shall submit a list of such
nationals to the Secretary of Labor within thirty (30) days
after such date indicating their names, citizenship, foreign
and local addresses, nature of employment and status of
stay in the country. The Secretary of Labor shall then
determine if they are entitled to an employment permit.
Persons required to obtain employment permit
GR: All non-resident foreign nationals who intend to engage
in gainful employment in the Philippines
XPNs:
1. Diplomatic services and foreign government officials;
- We don’t have jurisdiction over them
2. Officers and staff of international organizations and their
legitimate spouses;
- Special consent(?) is given
3. Members of governing board who have voting rights only;
4. Those exempted by special laws;
- Ex: employed by the Philippine government on a
highly technical capacity
5. Owners and representatives of foreign principals who
interview Filipino applicants for employment abroad;
6. Aliens whose purpose is to teach, present and/or conduct
research studies;
7. Resident aliens (D.O. 75-06, Series of 2006).
- A non-resident alien is someone who stayed in the
Philippines for less than 2 years
- Resident aliens are those who stayed in the
Philippines for more than two years or under the
law, those stateless aliens (ex: given refugee
status)
DURATION OF EMPLOYMENT
GR: Minimum of 1 year
XPN: If the employment contract, consultancy services, or
other modes of engagement provides otherwise, which in no
case shall exceed 5 years [DOLE D.O. 97-09, Revised Rules
for the Issuance of Employment Permits to Foreign Nationals
(2009)]. - It also depends on the contract as long as it does
not exceed 5 years
EMPLOYMENT IN NATIONALIZED ACTIVITIES
GR: Aliens may not be employed engaged in nationalized
activities - Ex of nationalized activity: mining
Lesson 2: Recruitment and Placement
XPNs:
1. Secretary of Justice specifically authorizes the
employment of technical personnel;
2. Aliens are elected members of the board of directors or
governing body of corporations or associations engaging in
partially nationalized activities shall be allowed in proportion
to their allowable participation or share in the capital of such
entities [Sec. 2(A), Anti-Dummy Law, as amended by P.D.
715]; or
3. Enterprises registered under the Omnibus Investment
Code in case of technical, supervisory or
Philippine Offshore Gaming Operators
- Licensed by the PAGCOR
- Idea is to pay taxes, licenses and create jobs for Filipinos
- Filipinos who work in POGOs operate the gaming activities -
- In a POGO, clientele should be a foreigner
- Called Philippine Offshore because it is based in the
Philippines but the players should be outside of the
Philippines
- Different with BPOs because they are not regulated with
PAGCOR and are not engaged with gambling
- POGOs are regulated by PAGCOR because they are the
government entity that regulates gambling in the Philippines
▪ Gambling is not prohibited in the Philippines it is
only regulated
- Becomes illegal when:
▪ Not creating jobs for Filipinos but instead creating
jobs for mostly Chinese mainland nationals
▪ Not issued an employment permit (violation of the
Article 40)
⮚ No determination that there are no
Filipinos not capable, not willing or not
competent to do the job
▪ Some of the adverse impacts in general:
⮚ Not paying the license fees with
PAGCOR
⮚ Chinese national that are here on
tourist visa but are working
⮚ Not registered taxpayers
⮚ Property prices have gone up in places
where there are POGOs
* there’s demand for spaces
whether residential or commercial
* POGO workers mostly have free
housing and free transportation
from POGO companies which
should be given to many Filipinos
instead