II. Pre-employment Flashcards
What is illegal recruitment?
- Any act of Canvassing, Enlisting, Transporting,
Contracting, Hiring, Utilizing, or Procuring
workers; (C-E-T-C-H-U-P) and - Includes Contract services, Referrals,
Advertising or Promising for employment,
locally or abroad, whether for profit or not.
(C-R-A-P) (Art. 13(b), LC
What is ban on direct hiring?
GR: An employer may only hire Filipino workers for
overseas employment through POEA or entities
authorized by DOLE.
What are the entities prohibited from recruiting?
- Travel agencies and sales agencies of airline
companies; (Art. 26, LC) - Officers or members of the board of any corporation or members in a partnership
engaged in the business of a travel agency; - 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; - 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;
c. Convicted for illegal recruitment or
other related cases and/or crimes involving moral turpitude; and
d. Agencies whose licenses have been previously revoked or cancelled by the
POEA for violation of R.A. No. 8042, as amended by R.A. No. 10022, P.D. 442 as
amended, and their IRRs.
- Any official or employee of the DOLE, POEA,
OWWA, DFA, and other government agencies
directly involved in the implementation of R.A.
No. 8042, as amended by R.A. No. 10022
and/or any of his/her relatives within the 4th
civil degree of consanguinity or affinity; and - 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)
Discuss the policy of recruitment of NRA
What are the grounds for Suspension or Cancellation of License or Authority?
- Commission of prohibited acts under Art. 34 of
LC; - Publishing job announcements without
POEA’s approval; - Charging a fee which may be in excess of the
authorized amount before a worker is employed; - Deploying workers without processing through POEA; and
- Recruitment in places outside its authorized
area. (Sec. 4, Rule II, Book IV, POEA Rules)
What are the elements of illegal recruitment?
The offender undertakes any of the activities within the meaning of “recruitment and
placement” under Art. 13(b) of the LC, or any of the prohibited practices enumerated under
Art. 34 of the LC; and
- The offender has no valid license or authority
required by law to enable him to lawfully engage in recruitment and placement of workers. (People v Chua, G.R. No. 187052, 13
Sept. 2012
Give the exception on the Ban on Direct Hiring.
- International organizations (e.g., World Bank)
- Name Hires – individual workers who were
able to secure contracts for overseas employment on their own efforts and
representations without the assistance or participation of any agency. Their hiring,
nonetheless, must be processed through the
POEA. - Members of the diplomatic organizations (e.g.,
those employed by an embassy. - Other Employers as may be allowed by DOLE
such as workers hired by a relative/family member who is a permanent resident of the host country.
What are the types of IR?
If committed by a syndicate - carried out by
a group of three or more persons conspiring
and/or confederating with one another; or
IR committed by large scale?
If committed by large scale - if committed
against three or more persons individually or
as a group.
Give the prescription of IR
Prescription of action: 20 years.
What is the difference bet IR and Estafa?
Malum prohibitum Malum in se
It is not required that it
be shown that the
recruiter wrongfully
represented himself as
a licensed recruiter.
NOTE: It is enough that
the victims were
deceived as they relied
on the
misrepresentation and
scheme that caused
them to entrust their
money in exchange of
what they later
discovered was a vain
hope of obtaining
employment abroad
ESTAFA:
Malum in se
Accused defrauded
another by abuse of
confidence or by
means of deceit.
NOTE: It is essential
that the false statement
or fraudulent
representation
constitutes the very
cause or the only
motive which induces
the complainant to
part with the thing of
value
What is Solidary Liability of Recruitment Agencies?
Private Employment Agency and the Principal or Foreign-based Employer.
They are jointly and solidarily liable for any violation of the recruitment agreement and the contracts of employment.
This joint and solidary liability imposed by law
against recruitment agencies and foreign employers
is meant to assure the aggrieved worker of
immediate and sufficient payment of what is due
him. (Becmen Service Exporter and Promotion v.
Cuaresma, G.R. Nos. 182978-79, 07 Apr. 2009)
What is the Theory of Imputed Knowledge
A rule in insurance law that any information
material to the transaction, either possessed by the
agent at the time of the transaction or acquired by
him before its completion, is deemed to be the
knowledge of the principal, at least so far as the
transaction is concerned, even though in fact, the
knowledge is not communicated to the principal at
all.(Leonor v. Filipinas Compania, 17 Oct. 2002)
The Theory of Imputed Knowledge teaches that the
knowledge of the agent is knowledge of the
principal. (Sunace International Management
Services, Inc. v. NLRC, et al., G.R. No. 161757, 25 Jan.
2006)
Who are the persons required to obtain AEP?
GR: All foreign nationals who intend to engage in
gainful employment in the Philippine shall apply for
Alien Employment Permit (AEP).
Foreign nationals exempt from AEP
- All members of the diplomatic service and
foreign government officials accredited by and
with reciprocity arrangement with the
Philippines; - Officers and staff of international organizations
of which the Philippine government is a
member, and their legitimate spouses desiring
to work in the Philippines; - Owners and representatives of foreign
principals whose companies are accredited by
the POEA, who come to the Philippines for a
limited period and solely for the purpose of
interviewing Filipino applicants for
employment abroad; - Foreign nationals who come to the Philippines
to teach, present and/or conduct research
studies in universities and colleges as visiting,
exchange or adjunct professors under formal
agreements between the universities and
colleges in the Philippines and foreign
universities or colleges; or between the
Philippine government and foreign
government, provided that the exemption is on
a reciprocal basis; - Permanent resident foreign nationals and
probationary or temporary resident visa
holders under Sec. 13(a-f) of the Philippine
Immigration Act of 1940 and Sec. 3 of the Alien
Social Integration Act of 1995 (R.A. 9717); - Refugees and stateless persons recognized by
the DOJ; and - All foreign nationals granted exemption by law.
(Sec. 2, D.O. 186-17)
