02 RECRUITMENT AND PLACEMENT Flashcards

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1
Q

Recruitment and placement

A

CETCHUP-CRAP - [canvassing, enlisting, transporting, contracting, hiring, utilizing, procuring workers] - includes [contract services, referrals, advertising for employment, promising]

scope: locally and abroad

LC Art. 13B. “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: 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.

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2
Q

License v. Authority

A

License – a document issued by the DOLE authorizing a person or entity to operate a private employment agency
Authority – document issued by the DOLE authorizing a person or association to engage in recruitment and placement activities as a private recruitment entity.
[Art. 13, LC]

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3
Q

Prohibited acts under R.A. No. 8042 as amended

A

Acts constituting illegal recruitment for overseas employment: IF2-PIHO-AFA-TUNA
1. Illegal Exaction\
2. False Information
3. False Statements
4. Pirating
5. Influencing not to pay
6. Harmful jobs
7. Obstruct inspection
8. Alteration of contracts
9. Failure to comply with rules and regulations
10. Travel Agency officers recruiting
11. Withholding travel documents
12. Unjustified non-deployment
13. Non-reimbursement upon failure to deply
14. Delegation to an alien

Note: these acts are also prohibited in LC and hence applies to local employment EXCEPT nos. 12-14, which are only applicable to overseas employment

If violation is regarding overseas employment, cite RA 8042
If local employment, cite Labor Code

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4
Q

Essential elements of illegal recruitment committed by person without license

A

Illegal recruitment is committed when two (2) elements concur [if commited by one without a license or authority]:
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. [People vs. Angeles GR No. 132376 April 11, 2002].

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5
Q

Elements of illegal recruitment by holder of license/authority

A

Simply the commission of prohibited acts under Sec. 6 RA 8042 or LC Art. 34

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6
Q

Elements of illegal recruitment in large scale

A

Essential elements of the crime of illegal recruitment in large scale are:
1. the accused engages in acts of recruitment and placement of workers defined under Art. 13(b) or in any prohibited activities under Art. 34 of the Labor Code;
2. the accused has not complied with the guidelines issued by the Secretary of Labor and Employment, particularly with respect to the securing of a license or an authority to recruit and deploy workers, either locally or overseas; and
3. the accused commits the unlawful acts against three or more persons, individually or as a group. [People vs. Ong GR No. 119594, January 18, 2000].

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7
Q

What is the corpus delicti in illegal recruitment?

A

To prove illegal recruitment, it must be shown that the [accused-appellant] gave complainants 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 employed. To be engaged in the practice of recruitment and placement, it is plain that there must at least be a promise or offer of employment from the person posing as a recruiter whether locally or abroad. [People vs. Angeles GR No. 132376 April 11, 2002].

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8
Q

Types of illegal recruitment

A

Simple illegal recruitment
1. Committed by non-licensee or non-holder of authority against 1 or 2 persons only
2. Committed by a licensee or holder of authoiryt when it commits any of the wrongful acts committed in Sec. 6 RA 8042 or LC Art. 34;

Illegal recruitment involving economic sabotage
1. Syndicated - when committed by a sydnicate or 3 or more persons, conspiring or confederating with one another
2. Large scale - when carried out by 1 or 2 persons against a group of any 3 or more persons individually or as a group

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9
Q

Charge of estafa along with illegal recruitment

A

A person who is convicted of illegal recruitment may, in addition, be convicted of estafa under Art. 315(2)(a) of the Revised Penal Code. There is no problem of double jeopardy because illegal recruitment is malum prohibitum, in which the criminal intent is not necessary, whereas estafa is malum in se in which the criminal intent of the accused is necessary. [People vs. Ong GR No. 119594, January 18, 2000].

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10
Q

Elements of estafa

A

Elements of estafa:
1. that the accused defrauded another by abuse of confidence or by means of deceit, and
2. that damage or prejudice capable of pecuniary estimation is caused to the offended party or third person. [People vs. Calonzo GR No. 115150, September 27, 1996)]

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11
Q

Is damage necessary in both illegal recruitment and estafa?

A

No. In estafa, damage is essential, but not in the crime of illegal recruitment.

For illegal recrtuitment, it is the lack of the necessary license or authority [or the commission of prohibited acts even with license or authority] and not the fact of payment thgat renders the recruitment activity as unlawful. [Redbook 2023]

NOTE: Damage is an element of estafa while it is not an element of illegal recruitment

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12
Q

What is the nature of liability of the local recruitment agency andthe foreign employer for claims of the OFW?

A

The nature of liability of the froeign principal/employer and the licensed local recruitment agency is joint and several (solidary) for any and all claims arising out of t he implementation of the employment contract involving OFWs. [2016 POEA Rules]

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13
Q

Is the rule on solidary liability of the corporat eofficers of recruitment agency absolute?

A

Yes. The joint and several liability of the principal/employer, recruitment/placement agency, and the corporate officers of the latter, for the money claims and damages of an OFW is absolute and without qualification. It is intended to give utmost protection to the OFW, who may not have the resources to pursue her money claims and damages against the foreign principal/employer in another country. [Princess Talent Center Production Inc. v. Magsaca, REDBOOK 2023]

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14
Q

When does the solidary liability of the foreign employer and the local recruitment agency end?

A

If either or both the parties decide to end the agreement, the responsibilities of usch parties toward the contracted employees under the agreement do not at all end, but the same extends up to and until the expiration of the employment contracts of the employees recruited and employed (Skippers United Pacific v. Maguad, REDBOOK 2023]

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15
Q

What is the effect on the solidary liability of the original recruitment agency in case of transfer of accreditation by the employer from the original recruitment agency to another agency?

A

Even if there was transfer of accreditation by the employer from one recruitment agency to another, the liability of the original agency to employees remained intact because respondent employees are not privy to such contract [Powerhouse Staff Builders International Inc. v. Rey; REDBOOK 2023]

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16
Q

What is the theory of imputed knowledge?

A

The theory of imputed knowledge ascribes the knowledge of the agent to the principal, not the other way around. The knowledge of. the principal-foreign employer cannot, therefore, be imputed to its agent [Sunace v. NLRC, REDBOOK 2023]

17
Q

What are remedies of an OFW whose employment contract has been pre-terminated (terminated before expiration)?

A
  1. Full reimbursement of placement fees with 125% interest
  2. Salaries for unexpired portion
  3. Damages if tainted with bad faith [REDBOOK 2023]
18
Q

Power of Sec of Labor to suspend or cancel license or authority

A

Art. 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.

19
Q
A