Book I Chapter III: Miscellaneous Provisions

Question 1

What are the powers of the Secretary of Labor?

Answer 1

ART. 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.

ART. 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 violations of any provisions of this Title.

Question 2

What are acts considered as Illegal Recruitment? (RA10022)

Answer 2

1. BLE DO No. 141-14
   a) (Overcharging) To charge or accept directly or indirectly any amount or to make a worker pay the agency or its representatives any amount greater than that actually loaned or advanced to him;

b) (False Notice) To furnish or publish any false notice or information in relation to recruitment or employment;

c) (Misrepresentation to secure license) To give any false notice, testimony, information or document or commit any act of misrepresentation for the purpose of securing a license or authority;

d) (Inducing worker to quit) To induce or attempt 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 of employment;

e) (Inducement not to employ) To influence or attempt to influence any person or entity not to employ any worker who has not applied for employment through his agency;

f) (Recruitment for harmful jobs) 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;

g) (Obstructing inspection) To obstruct or attempt to obstruct inspection by the Secretary or by his/her duly authorized representatives;

h) (Contract Substitution) To substitute or alter to the prejudice of the worker, employment contract prescribed by the Department from the time of actual signing thereof by the parties up to and including the period of the expiration of the same without the approval of the Department.
2. RA 10022 (the above plus items below)

a) (Misrepresentation in documentation) 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 the Labor Code, or for the purpose of documenting hired workers with the POEA, which include the act of reprocessing workers through a job order that pertains to nonexistent work, work different from the actual overseas work, or work with a different employer whether registered or not with the POEA;
b) (Nonsubmission of reports) To fail to submit 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 and Employment;

c) (Involvement in Travel Agency) For an officer or agent of a recruitment or placement agency 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 travel agency;

d) (Withholding of documents) To withhold or deny travel documents from applicant workers before departure for monetary or financial considerations, or for any other reasons, other than those authorized under the Labor Code and its implementing rules and regulations;

e) (Failure to deploy) Failure to actually deploy a contracted worker without valid reason as determined by the Department of Labor and Employment;

f) (Failure to reimburse) 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. Illegal recruitment when committed by a syndicate or in large scale shall be considered an offense involving economic sabotage; and

g) (Non-Filipino Manager) To allow a non-Filipino citizen to head or manage a licensed recruitment/manning agency.

h) (Excessive interest) To grant 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;

i) (Specifying a loan entity) Impose a compulsory and exclusive arrangement whereby an overseas Filipino worker is required to avail of a loan only from specifically designated institutions, entities or persons;

j) (Nonrenegotiation of loan) Refuse to condone or renegotiate a loan incurred by an overseas Filipino worker after the latter’s employment contract has been prematurely terminated through no fault of his or her own;

k) (Specifying a medical entity) Impose a compulsory and exclusive arrangement whereby an overseas Filipino worker is required to undergo health examinations only from specifically designated medical clinics, institutions, entities or persons, except in the case of a seafarer whose medical examination cost is shouldered by the principal/shipowner;

l) (Specifying a training entity) Impose a compulsory and exclusive arrangement whereby an overseas Filipino worker is required to undergo training, seminar, instruction or schooling of any kind only from specifically designated institutions, entities or persons, except fpr recommendatory trainings mandated by principals/shipowners where the latter shoulder the cost of such trainings;

m) (Violation of suspension) For a suspended recruitment/manning agency to engage in any kind of recruitment activity including the processing of pending workers’ applications; and

n) (Collection of insurance premium) For a recruitment/manning agency or a foreign principal/employer to pass on the overseas Filipino worker or deduct from his or her salary the payment of the cost of insurance fees, premium or other insurance related charges, as provided under the compulsory worker’s insurance coverage.

Question 3

What are the two kinds of illegal recruiter?

Answer 3

1. a non-licensee or nonholder of authority
   a. performs any of the acts defined in the law as recruitment and placement without a license
   b. any of the fourteen acts enumerated in Section 6 of R.A. No. 8042
2. a licensed recruiter
   a. commits any of the fourteen acts enumerated in Section 6 of R.A. No. 8042

Question 4

What is the essential element in the crime of illegal recruitment?

Answer 4

• it must be shown that the accessed, without being duly authorized by law, gave complainants the distinct impression that he had the power or ability to send them abroad for work, such that the latter were convinced to part with their money in order to be employed. It is important that there must at least be a promise or offer of an employment from the person posing as a recruiter

Question 5

What are the two types of illegal recruitment?

Answer 5

1. Simple Illegal recruitment
2. Illegal recruitment as economic sabotage

Question 6

When is Illegal Recruitment considered as an offense involving Economic Sabotage?

Answer 6

1. When committed by a syndicate
2. When committed in large scale

Question 7

When is illegal recruitment committed by a syndicate?

Answer 7

• if it is carried out by a group of three or more persons conspiring and/or confederating with one another;

Question 8

When is Illegal recruitment committed in large scale?

Answer 8

• if it is committed against three or more persons individually or as a group

Question 9

Is the number of persons dealt with an essential element of the crime of illegal recruitment?

Answer 9

• No. Any acts committed without license will constitute recruitment and placement even if only one prospective worker is involved. (PP vs Panis)

Question 10

How is the crime of illegal recruitment proved?

Answer 10

• It must be shown that the accused gave the complainant the distinct impression that she had the power or ability to send the complainant abroad for work such that the latter was convinced to part with her money to be so employed. (PP vs. Goce)

Question 11

May a complaint of estafa be filed aside from illegal recruitment?

Answer 11

• Yes provided that all elements for the crime of estafa are present.
  o that the accused defrauded another by abuse of confidence or by means of deceit
  o that the damage or prejudice caused is capable of pecuniary estimation

Question 12

When is an employee of a recruitment agency liable for illegal recruitment?

Answer 12

• An employee of a company or corporation engaged in illegal recruitment may be held liable as principal together with his employer if it is shown that he actively and consciously participated in illegal recruitment.

Question 13

May the POEA validly issue a warrants of search and seizure (or arrest) under Art. 38 of the Labor Code?

Answer 13

• No, under the Constitution, only a judge may issue warrants of search and arrest.

Question 14

May the POEA validly issue a warrants of search and seizure (or arrest) under Art. 38 of the Labor Code? What is the exception?

Answer 14

• Either by virtue of a warrant of arrest issued by a judge
• Without judicial warrant per Section 5, Rule 113 of the Rules of Criminal Procedure

Question 15

What is the prescriptive period for illegal recruitment cases?

Answer 15

• Illegal recruitment under Art 39 is 3 years
• Illegal recruitment under RA 8042 is five years
• Economic sabotage is 20 years

Question 16

Is profit material in illegal recruitment?

Answer 16

• No. Recruitment could be for profit or not. It is the lack of the necessary license or authority and not the fact of payment that renders recruitment illegal (Sharp v Espanol)