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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
- Recruitment and placement refer to any act of canvassing, enlisting, transporting, contracting, hiring, utilizing or procuring workers, and included contract services, referrals, advertising, or promising for employment, locally or abroad, whether for profit or not.
The law says:
“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. (Article 13, Chapter I, Title I, Book I, Labor Code of the Philippines)
Recruitment and placement of workers become illegal when such acts are done by non-licensees or non-holders of authority, and as such are punishable under the Labor Code.
The law says:
“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.
xxx” (Article 38, Chapter III, Title I, Book I, Labor Code of the Philippines)
Recruitment and placement of workers for overseas employment
Overseas employment refers to the engagement of a Filipino seafarer on board a ship navigating foreign waters other than a government ship used for military or noncommercial purposes, or on an installation located offshore or on the high seas under a government-approved standard employment contract. (Rule II (33), 2016 POEA Rules and Regulations Governing Overseas Employment.)
Entitles disqualified from participating or engaging in recruitment and placement of workers for overseas employment
The law says:
SECTION 3. Who are Disqualified. — The following persons and entities are disqualified to participate or engage in the recruitment and placement of seafarers for overseas employment:
- Travel agencies and sales agencies of airline companies;
- Officers or members of the Board of any corporation or partners in a partnership engaged in the business of a travel agency;
- The applicant is presently an incorporator, director or key officer of at least five (5) licensed manning agencies;
- Corporations and partnerships, where 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;
- Individuals, partners, officers or directors of an insurance company who make, propose or provide an insurance contract under the compulsory insurance coverage for seafarers.
- Sole proprietors, partners or officers and members of the board with derogatory records, such as, but not limited to the following:
- Those convicted, or against whom probable cause or prima facie finding of guilt is determined by a competent authority, for illegal recruitment, or for other related crimes or offenses committed in the course of, related to, or resulting from, illegal recruitment, or for crimes involving moral turpitude;
- Those agencies whose licenses have been revoked for violation of RA 8042 (Migrant Workers and Overseas Filipinos Act of 1995), as amended, PD 442 (Labor Code of the Philippines), as amended, and RA 9208 (Trafficking in Persons Act of 2003), as amended, and their implementing rules and regulations;
- Those agencies whose licenses have been cancelled, or those who, pursuant to the Order of the Administrator, were included in the list of persons with derogatory record for violation of recruitment laws; and
- Any official or employee of the DOLE, POEA, OWWA, DFA, DOJ, DOH, BI, IC, NLRC, TESDA, CFO, NBI, PNP, Civil Aviation Authority of the Philippines (CAAP), MARINA, international airport authorities, and other government agencies directly involved in the implementation of RA 8042, as amended, and/or any of his/her relatives within the fourth civil degree of consanguinity or affinity. (Section 3, Rule I, Part II, 2016 POEA Rules and Regulations Governing Overseas Employment)
Illegal recruitment under Article 38 of the Labor Code apply to recruitment and placement for both local and overseas employment. However, for recruitment and placement for local employment, the governing law is Article 38 of the Labor Code, while that for overseas employment is based on Republic Act No. 8042 or the Migrant Workers and Overseas Filipinos Act of 1995, as amended by Republic Act No. 10022.
Section 14 of R.A. No. 10022 states that:
Section 14. Subparagraph (b.1) of paragraph (b) of Section 23 of Republic Act No. 8042, as amended, is hereby amended to read as follows:
“(b.1) Philippine Overseas Employment Administration. – The Administration shall regulate private sector participation in the recruitment and overseas placement of workers by setting up a licensing and registration system. It shall also formulate and implement, in coordination with appropriate entities concerned, when necessary, a system for promoting and monitoring the overseas employment of Filipino workers taking into consideration their welfare and the domestic manpower requirements. It shall be responsible for the regulation and management of overseas employment from the pre-employment stage, securing the best possible employment terms and conditions for overseas Filipino workers, and taking into consideration the needs of vulnerable sectors and the peculiarities of sea-based and land-based workers. In appropriate cases, the Administration shall allow the lifting of suspension of erring recruitment/manning agencies upon the payment of fine of Fifty thousand pesos (P50,000.00) for every month of suspension.
“in addition to its powers and functions, the Administration shall inform migrant workers not only of their rights as workers but also of their rights as human beings, instruct and guide the workers how to assert their rights and provide the available mechanism to redress violation of their rights. It shall also be responsible for the implementation, in partnership with other law-enforcement agencies, of an intensified program against illegal recruitment activities. For this purpose, the POEA shall provide comprehensive Pre-Employment Orientation Seminars (PEOS) that will discuss topics such as prevention of illegal recruitment and gender-sensitivity.
“The Administration shall not engage in the recruitment and placement of overseas workers except on a government-to-government arrangement only.
“In the recruitment and placement of workers to service the requirements for trained and competent Filipino workers of foreign governments and their instrumentalities, and such other employers as public interests may require, the Administration shall deploy only to countries where the Philippine has conclude bilateral labor agreements or arrangements: Provided, That such countries shall guarantee to protect the rights of Filipino migrant workers; and Provided, further, That such countries shall observe and/or comply with the international laws and standards for migrant workers.” (Emphasis supplied.)
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