Labor Legislation

Article 12 of PD 442

General policies on overseas employment:

1) Promote and maintain state of full employment

2) Protect citizens desiring to work locally or overseas by securing for them best possible terms and conditions

3) Facilitate free choice of available employment

4) Facilitate and regulate movement of workers

5) Regulate employment of aliens (including registration/permit system)

6) Strengthen network of public employment offices and rationalize private sector part'n in recruitment and placement.

7) Insure careful selection of Filipino workers for overseas employment to protect good name of Republic of the Philippines

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RA 8042 adds:

Uphold dignity of citizens, in general, Filipino migrant workers, in particular

• Full protection to labor
• State will not promote overseas employment to sustain economic growth, but the program shall rest on assurance that dignity and rights of Filipino citizen shall not be compromised or violated.
• Equality of women and men. Gender sensitive criteria to be applied in formulation of policies
• Free access to courts and adequate legal assistance.

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RA 8042 adds:

• Right of FILIPINO MIGRANT WORKERs to participate in democratic decision-making processes and representation in institutions. relevant to overseas employment.
• Deployment of only skilled workers
• NGOs recognized as partners of state in protecting FILIPINO MIGRANT WORKER/S. State to cooperate with them.
• Administrative costs in recruitment/placement (these services shall be rendered free)

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Significant

The program exists to protect rights of FILIPINO MIGRANT WORKERs

The new policy is seen in several other provisions:

a) Deployment shall be allowed only in countries where the rights of FMWs are protected.

i. Existing labor and social laws protecting the rights of migrant workers;

ii. It is signatory to multilateral conventions, declarations or resolutions relating to protection of migrant workers;

iii. It has concluded a bilateral agreement with the government protecting rights of OFWs; or

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Significant

4. It is taking positive, concrete measures to protect rights of migrant workers.
5. The government, in pursuit of national interest or when public welfare so requires, may terminate or impose a ban on deployment.

Significant

vi. Legal assistance is seen as important in protecting FMs

vii. Participation of FILIPINO MIGRANT WORKERs in decision-making processes and representation in institutions.

vii. Only skilled workers shall be deployed.

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How state power has been used to protect OFWs?

In Philippine Association of Service Exporters, Inc. vs. Drilon

The SC upheld a department order banning deployment of Filipinas as domestics. PASEI complained that this violated equal protection. Why single out Filipinas? Why was it not applicable to Filipinos? The SC said this rested on a substantial distinction. Reports from overseas and in the press showed that abuses against Filipina domestics was rampant. There were no such reports regarding male domestics.

In Philippine Association of Service Exporters, Inc. vs. Drilon

PASEI then says this violates the right to travel, obligations of contracts and their right to participate in policy and decision-making processes affecting their rights and duties. The SC said the order was in the nature of a police power measure - to protect OFWs from abuses. Those rights are subject to a valid exercise of police power.

JMM Promotion and Management vs. CA, August 15, 1996

Issue: POEA requirement that applicants for jobs as entertainers first had to present proof of academic and artistic skills before their Artist Record Book could be processed.

JMM Promotion complained that violated the obligation of their contracts as several of those they had contracted for may not be able to return abroad.

JMM Promotion and Management vs. CA, August 15, 1996

Held: The SC said the rule was a valid exercise of police power. We take judicial notice of the fact that most of our women, a large number employed as domestic helpers and entertainers, worked under exploitative conditions marked by physical and personal abuse. Many ended up as prostitutes abroad. The intent was to require that those who wanted to become artists abroad had reasonable artistic and educational skills, therefore they could be deployed. The welfare of Filipino performing artists, particularly the women, was in mind.

NOTE:

This is consistent with the protection to labor clause in the constitution. Protection to labor does not indicate promotion of employment alone. The promotion of full employment cannot take a backseat to the government’s constitutional duty to provide mechanisms for protection of our workforce local or overseas.

Their assertion of property rights must therefore yield to police power. Under police power, the right to engage in a profession may be subject to reasonable restriction.

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RECRUITMENT OF LOCAL AND MIGRANT WORKERS

Q: Who is a worker?

A: Any member of the labor force, whether employed or unemployed. (Art. 13 [a], LC)

Q: What are the essential elements in determining�whether one is engaged in recruitment /placement?

A: It must be shown that:

1. The accused gave the complainant the distinct impression that she had the power or ability to send the complainant for work,

2. Such that the latter was convinced to part with his money in order to be so employed. (People v. Goce, G.R. No.113161, Aug. 29, 1995)

Q: Who is deemed engaged in recruitment and�placement?

A: Any person or entity which, in any manner, offers or promises for a fee employment to two or more persons. (Art. 13[b], LC)

Q: What is the rule in recruitment and placement?

General Rule: No person or entity other than the public employment offices, shall engage in the recruitment and placement of workers.

Exceptions:

1. Construction contractors if authorized by the DOLE and Construction Industry Authority.
2. Other persons or entities as may be authorized by the Secretary Labor or Employment
3. Members of the diplomatic corps (but hiring must go through POEA)
4. Public employment offices
5. Private recruitment offices
6. Private employment agencies

Exceptions:

7. Philippine Overseas Employment Administration

8. Shipping or manning agents or representatives

9. Name hires

Question?

What if employment is offered to only one person?

Question?

A: Immaterial. The number of persons dealt with is not an essential ingredient of the act of recruitment and placement of workers. The proviso merely lays down a rule of evidence that where a fee is collected in consideration of a promise or offer of employment to two or more prospective workers, the individual or entity dealing with them shall be deemed to be engaged in the act of recruitment and placement. The words "shall be deemed“ create that presumption. (People v. Panis, G.R. L‐58674‐77, July 11, 1986)

Illegal Recruitment, Art. 38 (Local), Sec. 6, Migrant�Workers Act, RA 8042

Q: What is a license?

It is issued by DOLE authorizing a person or entity to operate a private employment agency.

Grounds for revocation of license

1. Incurring an accumulated 3 counts of suspension by an agency based on final and executory orders within the period of validity of its license.
2. Violations of the conditions of license
3. Engaging in acts of misrepresentation for the purpose of securing a license or renewal
4. Engaging in the recruitment or placement of workers to jobs harmful to the public health or morality or to the dignity of the country. (Sec. 3, Rule I, Book VI, Rules and Regulations Governing Overseas Employment)

Grounds for suspension or cancellation of license

1. Prohibited acts under Art. 34

2. Publishing job announcements w/o

POEA’s approval

3. Charging a fee which may be in excess of

the authorized amount before a worker is

employed

4. Deploying workers w/o processing

through POEA

5. Recruitment in places outside its

authorized area. (Sec. 4, Rule II, Book IV,

POEA Rules)

Q: What is an Authority?

A: It is a document issued by the DOLE authorizing a person or association to engage in recruitment and placement activities as a private recruitment entity.

Q: A Recruitment and Placement Agency declared voluntary bankruptcy. Among its assets is its license to engage in business. Is the license of the bankrupt agency an asset which can be sold in public auction by the liquidator?

Answer

The LC (Art. 29) provides that no license to engage in recruitment and placement shall be used directly or indirectly by any person other than the one in whose favor it was issued, nor may such license be transferred, conveyed or assigned to any other person or entity.

Problem:

Suppose you advertise while you have a license. The workers are deployed overseas. When the license has expired, then they pay you the fees. Is this collection of fees illegal recruitment, for having been done without a license?

Answer:

No. The concept of recruitment refers to offering of inducements to qualified personnel to enter a job. Payments for overseas employment are necessary consequences of applying for overseas employment, it would be asking too much to require a licensed agency to stop all transactions on the day its license expires. It must still be able to continue winding up of operations.

Who are the persons prohibited from engaging the business of recruiting migrant workers?

Unlawful for any official or Ee of the:

a. DOLE

b. POEA

c. Overseas Workers Welfare Administration (OWWA)

d. DFA

e. Other gov’t agencies involved in the implementation of this Act

Unlawful for any official or Employee of the:

2. Their relatives within the 4th civil degree of consanguinity or affinity, to engage, directly or indirectly in the business of recruiting migrant workers. (Sec. 8, R.A.8042)

Illegal Recruitment

Elements of Illegal Recruitment

1. Offender is a non‐licensee or non‐holder of authority to lawfully engage in the recruitment/placement of workers.

2. Offender undertakes:

a. Any act of canvassing, enlisting, contracting, transporting, utilizing,

hiring or procuring workers, and includes referrals, contact services,

promising or advertising for employment, locally or abroad, whether for profit or not (Art. 13[b]); or

Elements of Illegal Recruitment

b. Any of prohibited practices under Art. 34

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, or to make a worker pay 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 this Code.

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Elements of Illegal Recruitment

b. Any of prohibited practices under Art. 34

4. To induce or attempt to induce a worker already employed to quit his employment in order to offer him to another unless the transfer is designed to liberate the worker from oppressive terms and conditions of employment;

5. To influence or to attempt to influence any person or entity not to employ any worker who has not applied for employment through his agency;

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Elements of Illegal Recruitment

b. Any of prohibited practices under Art. 34

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 obstruct or attempt to obstruct inspection by the Secretary of Labor or by his duly authorized representatives;

8. To fail to file 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.

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Elements of Illegal Recruitment

b. Any of prohibited practices under Art. 34

9. To substitute or alter employment contracts approved and verified by the Department of Labor from the time of actual signing thereof by the parties up to and including the periods of expiration of the same without the approval of the Secretary of Labor;

10. 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 a travel agency; and

Elements of Illegal Recruitment

b. Any of prohibited practices under Art. 34.

11. To withhold or deny travel documents from applicant workers before departure for monetary or financial considerations other than those authorized under this Code and its implementing rules and regulations.

Simple Illegal Recruitment

It is considered simple illegal recruitment when it involves less than three (3) victims or recruiters.

CASE

Larry Domingo was accused of the crime of illegal recruitment. He argued that he issued no receipt or document in which he acknowledged as having received any money for the promised jobs. Hence, he should be free him from liability. Was Larry engaged in recruitment activities

HELD

Yes. Even if at the time Larry was promising employment no cash was given to him, he is still considered as having been engaged in recruitment activities, since Art.13(b) of the LC states that the act of recruitment may be for profit or not. It suffices that Larry promised or offered employment for a fee to the complaining witnesses to warrant his conviction for illegal recruitment. (People v. Domingo, G.R. No. 181475, April 7, 2009, J. Carpio‐ Morales)

Illegal Recruitment

LC (ART 38)

• Local recruitment
• Illegal recruitment under Art. 38 means any recruitment activity including prohibited acts under Art. 34 committed by non‐licensees or non‐ holders of authority

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R.A 8042 as amended by R. A 10022

• Applies to recruitment for overseas employment
• Illegal recruitment under Sec. 6 means any recruitment activity committed by non‐licensees/ non‐holders of authority or prohibited acts (same as Art. 34, LC)

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Illegal Recruitment

LC (ART 38)

R.A 8042 as amended by R. A 10022

Added to the following in the list of prohibited acts:

1. Failure to actually deploy without valid reason;

2. Failure to reimburse expenses incurred by the worker in connection with his/her documentation and processing for purposes of deployment;

3. To allow a non‐Filipino citizen to head or manage a licensed recruitment/ manning agency.

Illegal recruitment considered as economic sabotage

When it is committed:

1. When it is committed:

By a syndicate – carried out by 3 or more persons conspiring/confederating with one another or

2. In large scale -- – committed against 3 or more persons individually or as a group. (Sec. 6, 10022)

CASE

While her application for renewal of her license to recruit workers for overseas employment was still pending Maryrose Ganda recruited Alma and her 3 sisters, Ana, Joan, and Mavic, for employment as housemates in Saudi Arabia. Maryrose represented to the sisters that she had a license to recruit workers for overseas employment and demanded and received P30,000.00 from each of them for her services.

CASE

However, her application for the renewal of her license was denied, and consequently failed to employ the 4 sisters in Saudi Arabia. The sisters charged Maryrose with large scale illegal recruitment. Testifying in her defense, she declared that she acted in good faith because she believed that her application for the renewal of her license would be approved. She adduced in evidence the Affidavits of Desistance which the four private complainants had executed after the prosecution rested its case. In the said affidavits, they acknowledge receipt of the refund by Maryrose of the total amount of P120,000.00 and indicated that they were no longer interested to pursue the case against her. Resolve the case with reasons.

HELD

Illegal recruitment is defined by law as any recruitment activities undertaken by non‐licenses or non‐holders of authority. (People v. Senoron, G.R. No. 119160, Jan. 30,1997) And it is large scale illegal recruitment when the offense is committed against 3 or more persons, individually or as a group. (Art. 38[b], LC) In view of the above, Maryrose is guilty of large scale illegal recruitment. Her defense of GF and the Affidavit of Desistance as well as the refund given will not save her because R.A. No. 8042 is a special law, and illegal recruitment is malum prohibitum. (People v. Saulo, G.R. No. 125903, Nov. 15, 2000).

CASE

Sometime in the month of March 1997, in the City of Las Piñas, Bugo by means of false pretenses and fraudulent representation convinced Dado to give the amount of P 120,000.00 for processing of his papers so that he can be deployed to Japan. Dado later on found out that Bugo had misappropriated, misapplied and converted the money to her own personal use and benefit. Can Dado file the cases of illegal recruitment and estafa simultaneously?

HELD

Yes, illegal recruitment and estafa cases may be filed simultaneously or separately. A person who is convicted of illegal recruitment may, in addition, be convicted of estafa under Article 315, par. 2(a) of the RPC. In the same manner, a person acquitted of illegal recruitment may be held liable for estafa. Double jeopardy will not set in because illegal recruitment is malum prohibitum, in which there is no necessity to prove criminal intent, whereas estafa is malum in se, in the prosecution of which, proof of criminal intent is necessary. (Sy v. People, G.R. No. 183879, April 14, 2010

ILLEGAL RECRUITMENT

Malum prohibitum, thus:

1. Criminal intent is NOT necessary

2. it is a crime which involves moral turpitude

ESTAFA

Malum in se, thus:

1. criminal intent is necessary

2. crime which involves moral turpitude

ILLEGAL RECRUITMENT

It is not required that it be shown that the recruiter wrongfully represented himself as a licensed recruiter

ESTAFA

Accused defrauded another by abuse of confidence, or by means of deceit

Note: Double jeopardy will not set

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Article III of the 1987 Philippine Constitution:

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“No person shall be twice put in jeopardy of punishment for the same offense. If an act is punished by law or an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act.”