Things to Know About Illegal Recruitment

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Published — March 27, 2019

The following post does not create a lawyer-client relationship between Alburo Alburo and Associates Law Offices (or any of its lawyers) and the reader. It is still best for you to engage the services of your own lawyer to address your legal concerns, if any.

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.

Related article: What you should know about engaging in recruitment business

Illegal Recruitment is one of the major problems the Philippines is facing today. As recently reported (Read here), one-hundred fifty-one (151) minor girls bound for Saudi Arabia were rescued in an attempt to involve them in illegal recruitment in June to October 2018. Also, last August 2018, four (4) Filipinos bound to Germany were also rescued and in November 2018, six (6) women bound to be recruited as entertainers in South Korea were prevented from leaving after they presented fraudulent documents. Because of these recent instances, the Department of Justice (DOJ) and the officials of the Bureau of Immigration (BI) concerned launched an intensive campaign against Illegal Recruitment through strict compliance with the guidelines set by DOJ for leaving or exiting the country in December 2018 (Read here).

What is Illegal Recruitment?

Under Republic Act No. 8042 (RA 8042) or the Migrant Workers Act, as amended, illegal recruitment shall mean any act of canvassing, enlisting, contracting, transporting, utilizing, hiring, or procuring workers. It also includes referring, contract services, promising or advertising for employment abroad, whether for profit or not, when undertaken by non-licensee or non-holder of authority contemplated under the Labor Code of the Philippines. Provided, that any such non-licensee or non-holder who, in any manner, offers or promises for a fee employment abroad to two or more persons shall be deemed so engaged. Simply put, illegal recruitment is committed by persons who, without authority from the government, give the impression that they have the power to send workers abroad for employment purposes (People v. Arnaiz, G.R. No. 205153, 9 September 2015, 770 SCRA 319).

On the same basis, illegal recruitment may also be committed by any person, whether a non-licensee, non-holder, licensee or holder of authority, if any of the following acts is performed:

1. To charge or accept directly or indirectly any amount greater than that specified in the schedule of allowable fees prescribed by the Secretary of Labor and Employment, or to make a worker pay or acknowledge any amount greater than that actually received by him as a loan or advance;
2. To furnish or publish any false notice or information or document in relation to recruitment or employment;
3. 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;
4. To include 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;
5. To influence or attempt to influence any person or entity not to employ any worker who has not applied for employment through his agency or who has formed, joined or supported, or has contacted or is supported by any union or workers’ organization;
6. 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;
7. 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;
8. To substitute or alter to the prejudice of the worker, employment contracts approved and verified by the Department of Labor and Employment 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 of Labor and Employment;
9. 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;
10. 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;
11. Failure to actually deploy a contracted worker without valid reason as determined by the Department of Labor and Employment;
12. 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
13. To allow a non-Filipino citizen to head or manage a licensed recruitment/manning agency.

Illegal Recruitment Involving Economic Sabotage

Illegal recruitment when committed by a syndicate or in large scale shall be considered an offense involving economic sabotage. Illegal recruitment is deemed committed by a syndicate if carried out by a group of three (3) or more persons conspiring and/or confederating with one another in carrying out any unlawful or illegal transaction, enterprise or scheme defined under the first paragraph hereof. On the other hand, illegal recruitment is deemed committed in large scale if committed against three (3) or more persons individually or as a group (Article 38 (b) of the Labor Code).

In the case of People vs. Velasco, 727 SCRA 257 GR 195668, June 25, 2014, if the crime is committed in large scale, the State establishes a conspiracy. Conspiracy under the Revised Penal Code is defined as:

“Conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it”

The quantum of proof required to establish conspiracy is similar to the evidence required to prove a commission of a felony, further, the elements of conspiracy must be proven beyond reasonable doubt and the evidence of actual cooperation rather than mere cognizance or approval of an illegal act is required (Reyes, Luis B., The Revised Penal Code, Criminal Law Book II, (17h Ed.),2008, page 134).

Criminal Liability and Procedure (Section 6, RA 8042)

The persons criminally liable for the illegal recruitment are the principals, accomplices and accessories. In case of juridical persons, the officers having ownership, control, management or direction of their business who are responsible for the commission of the offense and the responsible employees/agents thereof shall be liable.

In the filing of cases for illegal recruitment or any of the prohibited acts under this Section 6 of RA 8042, the Secretary of Labor and Employment, the POEA Administrator or their duly authorized representatives, or any aggrieved person may initiate the corresponding criminal action with the appropriate office. For this purpose, the affidavits and testimonies of operatives or personnel from the Department of Labor and Employment, POEA and other law enforcement agencies who witnessed the acts constituting the offense shall be sufficient to prosecute the accused.

In the prosecution of offenses involving illegal recruitment, the public prosecutors of the Department of Justice shall collaborate with the anti-illegal recruitment branch of the POEA and, in certain cases, allow the POEA lawyers to take the lead in the prosecution. The POEA lawyers who act as prosecutors in such cases shall be entitled to receive additional allowances as may be determined by the POEA Administrator. The filing of an offense punishable as Illegal Recruitment is without prejudice to the filing of cases punishable under other existing laws, rules or regulations.

Penalties (Section 7, RA 8042)

The following are the penalties imposed to any person found guilty of illegal recruitment:

1. Any person found guilty of illegal recruitment shall suffer the penalty of imprisonment of not less than twelve (12) years and one (1) day but not more than twenty (20) years and a fine of not less than One million pesos (P1,000,000.00) nor more than Two million pesos (P2,000,000.00).
2. The penalty of life imprisonment and a fine of not less than Two million pesos (P2,000,000.00) nor more than Five million pesos (P5,000,000.00) shall be imposed if illegal recruitment constitutes economic sabotage as defined therein. Provided, however, That the maximum penalty shall be imposed if the person illegally recruited is less than eighteen (18) years of age or committed by a non-licensee or non-holder of authority.
3. Any person found guilty of any of the prohibited acts shall suffer the penalty of imprisonment of not less than six (6) years and one (1) day but not more than twelve (12) years and a fine of not less than Five hundred thousand pesos (P500,000.00) nor more than One million pesos (P1,000,000.00).

If the offender is an alien, he or she shall, in addition to the penalties herein prescribed, be deported without further proceedings.

In every case, conviction shall cause and carry the automatic revocation of the license or registration of the recruitment/manning agency, lending institutions, training school or medical clinic.

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OTHER SOURCES:

1. Punay, Edu, 28,000 Travelers barred from leaving Philippines, The Philippines Star, December 20, 2018, https://www.philstar.com/nation/2018/12/20/1878390/28000-travelers-barred-leaving-philippines#YyPxWXupF1CQw6zg.99 Last Accessed: March 23, 2019
2. Ramirez, Jun, BI disallows 28,000 Pinoys from going abroad, Manila Bulletin, December 19, 2018, https://news.mb.com.ph/2018/12/19/bi-disallows-28000-pinoys-from-going-abroad/ Last Accessed: March 23, 2019

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Alburo Alburo and Associates Law Offices specializes in business law and labor law consulting. For inquiries, you may reach us at info@alburolaw.com, or dial us at (02)7745-4391/0917-5772207.

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