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PRE-EMPOLYMENTRecruitment and Placement of Workers

Chapter IIIMISCELLANEOUS PROVISIONS

Art. 36. Regulatory power. - The Secretary of Labor shall have the power to restrict and regulate the recruitment and placement activities of all agencies within the coverage of this Title and is hereby authorized to issue orders and promulgate rules and regulations to carry out the objectives and implement the provisions of this Title.

Art. 37. Visitorial Power. - The Secretary of Labor or his duly authorized representatives may, at any time, inspect the premises, books of accounts and records of any person or entity covered by this Title, require it to submit reports regularly on prescribed forms, and act on violation of any provisions of this Title.

Art. 38. Illegal recruitment. -(a)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.

(b)Illegal recruitment when committed by a syndicate or in large scale shall be considered an offense involving economic sabotage and shall be penalized in accordance with Article 39 hereof. 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. Illegal recruitment is deemed committed in large scale if committed against three (3) or more persons individually or as a group.

(c) The Secretary of Labor and Employment or his duly authorized representatives shall have the power to cause the arrest and detention of such non-licensee or non-holder of authority if after investigation it is determined that his activities constitute a danger to national security and public order or will lead to further exploitation of job-seekers. The Secretary shall order the search of the office or premises and seizure of documents, paraphernalia, properties and other implements used in illegal recruitment activities and the closure of companies, establishments and entities found to be engaged in the recruitment of workers for overseas employment, without having been licensed or authorized to do so.

Art. 39. Penalties. – (a) The penalty of life imprisonment and a fine of One Hundred Thousand Pesos (P1000,000.00) shall be imposed if illegal recruitment constitutes economic sabotage as defined herein;

(b) Any licensee or holder of authority found violating or causing another to violate any provision of this Title or its implementing rules and regulations shall, upon conviction thereof, suffer the penalty of imprisonment of not less than two years nor more than five years or a fine of not less than P10,000 nor more than P50,000, or both such imprisonment and fine, at the discretion of the court;

(c) Any person who is neither a licensee nor a holder of authority under this Title found violating any provision thereof or its implementing rules and regulations shall, upon conviction thereof, suffer the penalty of imprisonment


of not less than four years nor more than eight years or a fine of not less than P20,000 nor more than P100,000 or both such imprisonment and fine, at the discretion of the court;

(d) If the offender is a corporation, partnership, association or entity, the penalty shall be imposed upon the officer or officers of the corporation, partnership, association or entity responsible for violation; and if such officer is an alien, he shall, in addition to the penalties herein prescribed, be deported without further proceedings;

(e) In every case, conviction shall cause and carry the automatic revocation of the license or authority and all the permits and privileges granted to such person or entity under this Title, and the forfeiture of the cash and surety bonds in favor of the Overseas Employment Development Board or the National Seamen Board, as the case may be, both of which are authorized to use the same exclusively to promote their objectives.

1. Power of the Secretary of Labor and EmploymentEntrusted with the task of restricting and regulating the

recruitment and placement activities of employment agencies, the DOLE Secretary exercises regulatory power, or the authority to issue orders and promulgate rules and regulations to carry out the objectives and implement the legal provisions on the subject. In aid thereof, he or his duly authorized representative exercises visitorial power, or the authority to inspect the premises, books of accounts and records of the said agencies, require them to submit reports and act on the discovered violations of the said legal provisions.

The validity of the orders, rules and regulations issued in the exercise of regulatory power under Article 36 is subject to the same conditions that apply to administrative orders and rules in general. As


noted in the discussion of Article 5 (supra.), these are that they must be issued with on the authority of law and must not be contrary to law and the constitution, aside from the fact that the enabling statute must be complete in itself and contain an adequate standard for the guidance of the administrative agency or officer concerned.

2. Illegal RecruitmentBefore the changes introduced by R.A. No. 8042, illegal

recruitment was defined by Article 38 as any recruitment activity under Article 13(b) or any of the prohibited practices under Article 34, undertaken by non-licensees or non-holders of authority. It would seem then, that, with respect to the prohibited practices, if they were undertaken by licensees or holders of authority, the offense committed was not illegal recruitment, although they were punishable just the same under Article 39(b).

The prohibited practice here referred to are, by reference to provision of Section 6 of R. A. 8042, is amended by R. A. 10022, defined as acts of illegal recruitment committed by any person whether a non-licensee, non-holder, licensee or holder of authority.

In addition to the illegal recruitment activities referred to here, consisting of prohibited practices, the new law also reduces? as unlawful the following prohibited acts:

“(1) Grant a loan to an overseas Filipino worker with interest exceeding eight percent (8%) per annum, which will be used for payment of legal and allowable placement fees and make the migrant worker issue, either personally or through a guarantor or accommodation party, postdated checks in relation to the said loan;


(2) Impose a compulsory and exclusive arrangement whereby an overseas Filipino worker is required to avail of a loan only from specifically designated institutions, entities or persons;

(3) Refuse to condone or renegotiate a loan incurred by an overseas Filipino worker after the latter's employment contract has been prematurely terminated through no fault of his or her own;

(4) Impose a compulsory and exclusive arrangement whereby an overseas Filipino worker is required to undergo health examinations only from specifically designated medical clinics, institutions, entities or persons, except in the case of a seafarer whose medical examination cost is shouldered by the principal/shipowner;

(5) Impose a compulsory and exclusive arrangement whereby an overseas Filipino worker is required to undergo training, seminar, instruction or schooling of any kind only from specifically designated institutions, entities or persons, except fpr recommendatory trainings mandated by principals/shipowners where the latter shoulder the cost of such trainings;

(6) For a suspended recruitment/manning agency to engage in any kind of recruitment activity including the processing of pending workers' applications; and

(7) For a recruitment/manning agency or a foreign principal/employer to pass on the overseas Filipino worker or deduct from his or her salary the payment of the cost of insurance fees, premium or other insurance related charges, as provided under the compulsory worker's insurance coverage.”

The said prohibited acts, however, do not constitute illegal recruitment activities, otherwise they would have been lumped together with earlier enumerated prohibited practices, which are illegal recruitment activities.


Moreover, the penalty for the commissions of any of the prohibited acts is much lesser than the penalty of illegal recruitment activities.

It would also seem that since, under the old law, “recruitment and placement” included all the activities enumerated in Article 13(b), in relation to Articles 34 and 38 of the Labor Code, whether performed locally or abroad, “an employer in the Philippines who hired a worker for local employment, without a license or authority to do so, committed illegal recruitment.

R. A. 8042, as amended, corrected the confusing legal situations as depicted above by (a) redefining “recruitment and placement” for purposes of “illegal recruitment” as including all the acts referred to in Article 13(b) only when performed “for employment abroad; (b) applying the phrase “when undertaken by a licensee or non-holder of authority” only to those performing acts of recruitment and placement as so redefined; (c) including as illegal recruitment the commission of any of the acts enumerated under Section 6 of R. A. 8042, as amended; and (d) changing the phraseology and scope of the proviso in Article 13(b) of the Labor Code from “any person or entity” to “any such non-licensee or non-holder of authority under offer or promise employment for a fee to two or more persons. Indeed, the presumption under the proviso is not necessary in the case of licensees and holders of authority because recruitment and placement are the activities for which they obtained their license or authority in the first place.

Moreover, under Section 10 of R.A. 8042, as amended, jurisdiction over money claims arising out of an employer-employee relationship or by virtue of any law or contract involving Filipino workers for overseas deployment, including claims for actual, moral, exemplary and other forms of damages has been transferred from the POEA to the labor arbiters of the National Labor Relations Commission.


3. Non-License or Non-Holder of AuthorityFor purposes of illegal recruitment, a non-licensee or non holder

of authority is a person or entity who has not been issued a valid license or authority by the Secretary of Labor and Employment, or whose license or authority has been suspended, revoked or cancelled by the Secretary or the POEA. (See infra for Supreme Court rulings on this point.)

4. Illegal Recruitment as Qualified OffenseIllegal recruitment becomes a qualified offense, or is considered

an offense involving economic sabotage when a) committed by a syndicate, meaning carried out by a group of three or more persons conspiring or confederating with one another, or b) committed in large scale, that is to say against three or more persons individually as a group.

There is conspiracy where the accused acted in unison with each other, evincing a common purpose or design. (People vs. Recio, 282 SCRA 105)

5. Applicable Jurisprudence on Illegal Recruitment, etc.a) The information charging the offense of illegal recruitment must

state that it is a violation of Article 38 in relation to Article 39 of the Labor Code. (People vs. de Leon, 225 SCRA 251.) This should now be adjusted in the light of R. A. No. 8042. The offense of illegal recruitment is defined in Section 6 of this law, while the penalties are provided under Section 7.

b) Lack of criminal intent is not valid defense in a case for illegal recruitment, this offense being malum prohibitum, not malum in se. The fact alone that the accused violated the law warrants his conviction. (People vs. Reyes, 282 SCRA 105.)


c) It is the prosecution that has the burden of proving absence of a license to recruit on the part of the accused. (People vs. Taguba, 229 SCRA 188.)

d) The certification of the POEA that the accused was not authorized to recruit workers for abroad is proof of his lack of license or authority. (People vs. Naparan, 225 SCRA 714.)

e) Agents or representatives appointed by a licensee or holder of authority but whose appointments were not previously authorized by the POEA are within the meaning of the term non-licensee or non-holder of authority. (Abaca vs. Court of Appeals, 290 SCRA 657.)

f) It is incorrect to maintain that to be liable for illegal recruitment one must represent himself to the victim as a duly-licensed recruiter, it being enough that he gave an impression of his ability to enlist the complainants for employment abroad in order to induce them to tender payment of fees. (People vs. Peralta, 283 SCRA 81.) But without proof that such impression was given, there is no recruitment activity and conviction for illegal recruitment has no basis. (People vs. Goce 247 SCRA 780)

g) The acts of the accused consisting of explaining to the complaining applicants the details of the job opportunities in Japan, deciding on the work each of them would be assigned to perform there, informing them of the nature of the jobs, their salary and other terms of their contract, with the accused holding himself out as capable of sending them abroad for employment, are acts of recruitment within the meaning of Article 13(b) of the Labor Code. (people vs. Honrada, 243 SCRA 640)but by themselves, procuring a passport, airline tickets and foreign visa for another individual, without more, can hardly qualify as recruitment activities. (Darvin vs. Court of Appeals, 292SCRA 534.)


h) Where the advertising, the promise of future employment and other come-ons took place while the accused was still licensed, and it was the only receipt of payment for such services that took place after the expiration of the license, there is still no illegal recruitment. (Aquino vs. Court of Appeals, 204 SCRA 240.)

i) A person convicted of a illegal recruitment under the Labor Code can also be convicted of estafa, provide the elements of the latter crime are present. (People vs. Mercado, 304 SCRA 504.)

j) Not all acts which constitutes estafa necessary establish illegal recruitment, for estafa is wider in scope and covers deceits whether or not related to recruitment activities. More importantly, the element of damage, which is essential in estafa cases, is immaterial in illegal recruitment, and while estafa is malum in se, illegal recruitment is malum prohibitum.

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6. PenaltiesUnder R.A. No. 8042, as amended any person found guilty of

illegal recruitment shall suffer the penalty of imprisonment 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 (1) Million Pesos (1,000,000.00) nor more than Two Million Pesos (2,000,000.00). If illegal recruitment constitutes economic sabotage, the penalty is life imprisonment and a fine of not less than Two Million Pesos (2,000,000.00) nor more than Five Million Pesos (5,000,000.00).

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.

In every case, conviction shall cause the automatic revocation of the license or the authority and all the permits and privileges granted


to the offending person or entity, and the forfeiture of the cash and surety bonds to the POEA which may use the same exclusively to promote its objectives.

7. Persons Criminally LiableThe person, who committed illegal recruitment, whether as

principal, accomplice or accessory, is criminally liable for it. If the offender is a corporation, partnership, association or other juridical entity, the officers having ownership, control, management or direction of the business who are responsible for the commission of the offense and the responsible employed agents thereof shall be liable, and if such officer is an alien, he shall, in addition to the prescribe penalties, suffer deportation without further proceedings.

8. Arrest and Detention of Illegal Recruiters, Etc.In the case of Salazar vs. Achacoso (183 SCRA 145), the

Supreme Court held Article 38(c) of the Labor Code to be “unconstitutional and of no force and effect” to the extent that the Secretary of Labor not being a judge, may nor issue search and arrest warrants because under the Constitution, only a judge may do the same. Since the declaration of unconstitutionality of the said provision id=s only to the extent earlier stated, it would seem that the same did not also render null and void the Secretary’s authority, under the same provision to order the closure of companies, establishments and entities found to be engaged in the recruitment of workers for overseas employment without having been licensed or authorized to do so. Moreover such power is essentially administrative and regulatory in character.In sum, the authorities concerned have to go through the necessary judicial process to obtain warrants of arrest and search of non-


licensees and non-holders of authority who engage in recruitment activities without prejudice, however to warrantless arrest and search under the conditions allowed by law.

Documents

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