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Also, the matters contained in the following were written in accordance with the law, rules, and jurisprudence prevailing at the time of writing and posting, and do not include any future developments on the subject matter under discussion.
AT A GLANCE:
On June 9, 2023, the Department of Migrant Workers (DMW) released Department Circular No. 1 or the 2023 DMW Rules and Regulations Governing the Recruitment and Employment of Landbased Overseas Filipino Workers (“2023 Rules” for brevity). According to former Department Secretary Susan Ople, the 2023 Rules were issued to “ensure better protection and empowerment” of the country’s Overseas Filipino Workers (OFWs), and to “enable the industry to succeed and flourish” (Philippine News Agency, 2023).
Some of the salient features of the 2023 Rules include: the redefinition of “Overseas Filipino Worker”; the regulation of accommodation facilities; the extended validity period of licenses of recruitment agencies; the “cardinal sins” of recruitment agencies; and the inclusion of a simplified penalty structure.
On June 9, 2023, the Department of Migrant Workers (DMW) released Department Circular No. 1 or the 2023 DMW Rules and Regulations Governing the Recruitment and Employment of Landbased Overseas Filipino Workers (“2023 Rules”) – effectively repealing the 2016 Revised Rules and Regulations governing the same matter (“2016 Revised Rules”).
According to former Department Secretary Susan Ople, the 2023 Rules were issued to “ensure better protection and empowerment” of the country’s Overseas Filipino Workers (OFWs), and to “enable the industry to succeed and flourish” (Philippine News Agency, 2023). Likewise, the DMW claims that it took great pains so that the provisions were simpler and more straightforward, keeping in mind the ease of undertaking the processes involved in the recruitment and employment of landbased OFWs.
Some of the salient features of the 2023 Rules include: the redefinition of “Overseas Filipino Worker”; the extended validity period of licenses of recruitment agencies; the regulation of accommodation facilities; the “cardinal sins” of recruitment agencies; and the inclusion of a simplified penalty structure.
Redefining “Overseas Filipino Worker”
Under the 2016 Revised Rules, an “Overseas Filipino Worker or Migrant Worker” referred to a person “who is to be engaged, is engaged, or has been engaged in a remunerated activity in a State or country of which the worker is not a citizen.”
The 2023 Rules, however, redefined the meaning of “Overseas Filipino Worker” such that an OFW shall now refer only to:
“a Filipino who is to be engaged, is engaged, or has been engaged in remunerated activity in a country of which he or she is not an immigrant, citizen, or permanent resident or is not awaiting naturalization, recognition, or admission, whether land-based or sea-based regardless of status; excluding a Filipino engaged under a government-recognized exchange visitor program for cultural and educational purposes” (Part I, Rule I, par. 29, 2023 Rules)
The 2023 Rules effectively excluded immigrants of permanent residents of foreign countries, as well as Filipinos abroad who are awaiting naturalization, recognition, or admission, from the coverage of OFWs and from the protection and application of requirements and penalties, under the new rules.
Licensing and Regulation
A number of processes under the 2016 Revised Rules have been deleted under the 2023 Rules, as reflected in, for example, the shortened Sections under Rule II on the Issuance of License to a Recruitment Agency.
But apart from the deletion and simplification of the Sections, pertinent are the rules extending the validity of different types of licenses issued to recruitment agencies, as follows:
- A “provisional license” is now valid for a period of three (3) years, whereas it had only been valid for two (2) years under the 2016 Revised Rules (Sec. 11, 2023 Rules); and
- A “regular license” is now valid for six (6) years, as opposed to the four-year validity under the 2016 Revised Rules (Sec. 17, 2023 Rules).
The renewal of these licenses under the 2023 Rules is now reliant upon the submission of documents and processes to be prescribed by the Department, along with the payment of a license fee of Two Hundred (PhP200,000.00) (Sec. 18, 2023 Rules).
Accommodation Facilities
The 2023 Rules have added Rule XV on “Accommodation Facilities”, which Rule has no counterpart under the 2016 Revised Rules, save perhaps Sec. 135(d) of the 2016 Revised Rules which require that the minimum employment contracts for OFWs must include “[f]ood and accommodation or the monetary equivalent which shall be commensurate to the cost of living in the host country, or off-setting benefits.”
Under the 2023 Rules, recruitment agencies are required to provide OFWs with “adequate provisions such as food, drinking water, beds, blankets, toilet facilities, and other amenities to ensure decent and humane living conditions, free of charge” (Sec. 101, 2023 Rules). Likewise, these agencies are reminded that the travel and employment documents of OFWs shall not be withheld, nor shall OFWs be prevented from freely leaving the accommodation facilities or from communicating their loved ones (Sec. 101, 2023 Rules).
To monitor the compliance of this rule, recruitment agencies are required to submit quarterly reports, with the documentary appendices of attestations, copies of logbooks, and other materials prescribed by the DMW (Sec. 102, 2023 Rules).
Twenty Cardinal Sins of Recruitment Agencies
Then Department Secretary Ople said that the new rules lay bare and punish the “cardinal sins” committed by recruitment agencies, which may lead to the cancellation of these agencies’ licenses. Verily, Rule II, Part IV of the 2023 Rules governs the “Recruitment Violation Cases, Classification of Offenses and Penalties.” This part of the 2023 Rules likewise contains the “cardinal sins”, listed as “Serious Offenses” under Sec. 139. Notable among these serious offenses is the newly included offense of “graft and corrupt practices.”
Simplified Penalty Structure
The lengthy list of penalties imposed by the 2016 Revised Rules under Part IV, Rules III (Grounds for Imposition of Administrative Sanctions Against a Licensed Recruitment Agency), IV (Disciplinary Actions Against Principals/Employers), and V (Disciplinary Action Against Overseas Filipino Workers) have likewise been simplified and embodied in Part IV, Rule II of the 2023 Rules on the Recruitment Violation Cases, Classification of Offenses and Penalties.
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Alburo Alburo and Associates Law Offices specializes in business law and labor law consulting. For inquiries regarding legal services, you may reach us at info@alburolaw.com, or dial us at (02)7745-4391/ 0917-5772207/ 09778050020.
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