Recruitment and Placement of Local and Migrant Workers 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:
Department of Migrant Workers
Absorb all the powers, functions and mandate of the POEA and all the entities
enumerated in Section 19 hereof, and shall be the primary agency under the Executive
Branch of the government tasked to protect the rights and promote the welfare of OFWs,
Regardless of status and of the means of entry into the country of destination.
SOLE
has the power under Section 35 of the law to apply sanctions, as well as the authority,
conferred by Section 36, not only to "restrict and regulate the recruitment and placement
activities of all agencies," but also to "promulgate rules and regulations to carry out the
objectives and implement the provisions" governing said activities.
What is direct hiring?
“Direct Hiring” refers to the process of directly hiring workers by employers for overseas
employment as authorized by the DOLE Secretary and processed by the POEA,
including:
1. Those hired by international organizations;
2. Those hired by members of the diplomatic corps;
3. Name hires or workers who are able to secure overseas employment opportunity-
with an employer without the assistance or participation of any agency.
Does the POEA Administrator or the DOLE Secretary or DOLE Regional Director
have the power to issue closure order ?
Yes. If upon preliminary examination or surveillance, the DOLE Secretary, the POEA
Administrator or DOLE Regional Director is satisfied that such danger or exploitation
exists, a written order may be issued for the closure of the establishment being used for
illegal recruitment activity.
Does the DOLE Secretary have the power to issue warrant of arrest and search
and seizure orders ?
No. Salazar v. Achacoso, declared that the exercise by the DOLE Secretary of his twin
powers to issue arrest warrant and search and seizure orders provided under Article 38[c]
of the Labor Code is unconstitutional . Only regular courts can issue such orders.
What constitutes illegal recruitment under the Labor Code (Article 38)?
Any recruitment activities, including the prohibited practices enumerated under Article 34
of the Labor Code, undertaken by non-licensees or non-holders of authority from the
Department of Labor and Employment.
llegal recruitment may be committed by any of the following
(1) By Non-Licensee or Non-holder of authority;
(2) ANY PERSON, regardless of whether a non-licensee, non-holder, licensee or
holder of authority,
Under Section 6 of the Migrant Workers and Overseas Filipinos Act, what acts are
deemed illegal recruitment?
Any recruitment or placement activities for overseas employment such as charging
unauthorized fees, misrepresenting job conditions, or altering approved contracts—
conducted by individuals or entities lacking valid accreditation from the Philippine
Overseas Employment Administration.
What are illegal recruitment acts that can be committed by No. 1 above (NON -
LICENSEE or NON - HOLDER OF AUTHORITY)?
Any of the acts of recruitment allowed only to be done by licensees or holders of authority
canvassing, enlisting, contracting, transporting, utilizing, hiring, or procuring workers
and includes referring, contract services, promising or advertising for employment
abroad, whether for profit or not.
What practices are expressly prohibited under Article 34 of the Philippine Labor
Code? ANY PERSON, whether a NON -LICENSEE,NON -HOLDER OF AUTHORITY or
even by a LICENSEE or HOLDER OF AUTHORITY?
Any individual, entity, licensee, or holder of authority who engages in the following acts
commits an unlawful practice under Article 34:
1. Charging or accepting, directly or indirectly, fees in excess of the schedule
prescribed by the Secretary of Labor, or making a worker repay more than the
actual loan or advance received.
2. Furnishing or publishing any false notice, information, or document relating to
recruitment or employment.
3. Submitting false notices, testimony, information, or documents or committing any
act of misrepresentation to secure a license or authority under the Code.
4. Inducing or attempting to induce a worker to quit existing employment in order
to place them elsewhere, except when transferring a worker from oppressive
terms and conditions.
5. Influencing or attempting to influence any person or entity not to employ a
worker who has not applied through one’s agency.
6. Recruiting or placing workers in positions harmful to public health or morality
or injurious to the dignity of the Republic.
7. Obstructing or attempting to obstruct inspections by the Secretary of Labor or
authorized representatives.
8. Failing to file required reports on employment status, placement vacancies,
foreign exchange remittances, job separations, departures, and other
information mandated by the Secretary of Labor.
9. Substituting or altering employment contracts approved and verified by the
Department of Labor—from signing through expiration—without the Secretary’s
approval.
10. Serving as an officer or board member of, or directly or indirectly managing,
a travel agency.
11. Withholding or denying travel documents from applicant workers before
departure for any monetary or financial consideration not authorized under the
Code or its implementing rules.
What additional acts are prohibited under Section 6 of the Migrant Workers and
Overseas Filipinos Act (RA 8042)?
Under Section 6 of RA 8042, it is unlawful for any person or entity to do any of the
following:
• Grant a loan to an overseas Filipino worker with interest exceeding 8 % per
annum for placement fees, and require the worker (or a guarantor) to issue
postdated checks for that loan.
• Require an overseas Filipino worker to avail of a loan exclusively from
designated institutions, entities, or persons.
• Refuse to condone or renegotiate a loan if the worker’s employment contract is
prematurely terminated through no fault of the worker.
• Mandate that health examinations be conducted only by specified clinics,
institutions, or persons (except for seafarers, whose exam costs are borne by
the shipowner).
• Compel a worker to undergo training, seminars, or schooling solely at
designated institutions or persons (except for principal-mandated trainings paid
by the principal/shipowner).
• Allow a suspended recruitment or manning agency to engage in any
recruitment activity, including processing pending applications.
• Pass on to, or deduct from, an overseas Filipino worker’s salary any
insurance costs, fees, or premiums under compulsory workers’ insurance
coverage.
Who may initiate complaints under Article 38 of the Labor Code?
The Department of Labor and Employment or any law enforcement officer may
initiate complaints.
The essential elements of illegal recruitment vary in accordance with the following
classifications?
1. Simple illegal recruitment
a. Local workers
b. Migrant workers
2. When committed by a syndicate; or
3.When committed in large scale
What are the essential elements of simple illegal recruitment for local workers
under the Labor Code (Art. 38)?
A charge of simple illegal recruitment for local workers requires proof that the accused:
• Undertook recruitment activities as defined in Article 13(b) or engaged in
prohibited activities under Article 34 of the Labor Code.
• Did not possess the necessary license or authority to perform those
activities.
It is the absence of a valid license or authority not whether money changed hands that
renders the recruitment unlawful
What are the 2 elements of simple illegal recruitment?
(1) The offender has no valid license or authority required by law to enable one to lawfully
engage in recruitment and placement of workers; and
(2) He undertakes either any activity within the meaning of “recruitment and placement”
defined under Article 13(b), (see above enumeration) or any prohibited practices (see
above enumeration) under Article34 of the Labor Code.
3.) any recruitment which does not constitute as economic sabotage
Can a recruiter be a natural or juridical person?
Yes.
Why is the presence or absence of profit immaterial in prosecutions for simple
illegal recruitment?
The Supreme Court has held that what makes an act illegal is the lack of required
licensing, not the collection of fees or profit. In C.F. Sharp vs. Español, the Court
emphasized that even if no payment is received, recruitment activities by an
unlicensed entity remain punishable under Article 38 of the Labor Code.
How does the definition of simple illegal recruitment differ for migrant workers
under R.A. No. 8042 (as amended by R.A. No. 10022)?
Under the amended Migrant Workers Act, there are two distinct types of simple illegal
recruitment:
1. License-Based Offense
o The accused undertakes any recruitment activity per Article 13(b) of the
Labor Code.
o The accused lacks the required license or authority to recruit.
NOTE: The non-licensee or non-holder of authority is presumed to be engaged in
such recruitment if he, in any manner, offers or promises for a fee employment
abroad to two or more persons.
2. Act-Based Offense
o The accused commits any act enumerated in Section 6 of R.A. 8042 (e.g.,
promising overseas employment, contracting without authority).
o It is immaterial whether the accused holds a license or not.
Additionally, anyone who, for a fee, offers or promises employment abroad to two or more
persons is conclusively presumed to be illegally recruiting under Section 6.
What distinguishes illegal recruitment by a syndicate from illegal recruitment in
large scale?
Syndicate (People v. Counting
Element Large Scale
Gallo) Basis
Acts under Art. 13(b) or
Recruitment Activities prohibited practices Same as syndicate —
under Art. 34
Must have failed to
Must have no valid
License Requirement comply with DOLE —
license or authority
licensing guidelines
Unlawful acts Syndicate:
Number of Conspiracy of three (3) committed against conspirators
Participants/Victims or more persons three (3) or more Large scale:
persons victims
If there is only one complainant in several complaints, there is no illegal recruitment in
large scale. But where there are three conspiring
recruiters, there is illegal recruitment by a syndicate. (People v. Fernandez, et. al., G.R.
No. 141221-36, 2002)
ILLEGAL RECRUITMENT AS A FORM OF ECONOMIC SABOTAGE
1. When committed by a syndicate; or
2. When committed in large scale.
NOTE: THE FIGURE THREE ( 3 ) MAKES THE DIFFERENCE, THUS:
➢ 3 OR MORE RECRUITERS REGARDLESS OF NO. OF RECRUITEES = BY A SYNDICATE
➢ 3 OR MORE RECRUITEES REGARDLESS OF NO. OF RECRUITERS = IN LARGE SCALE
Syndicate
Recruitment of one (1) person would suffice to qualify the illegal recruitment act as having
been committed by a syndicate.
Large Scale
legal recruitment in large scale may be committed by only one (1) person. What is important
as qualifying element is that there should be at least three (3) victims of such illegal
recruitment, individually or as a group.
Common of syndicate and large scale
Recruitment in large scale or by a syndicate is malum prohibitum and not m alum in se.
Does the receipt of payments after a recruiter’s license has expired, for services
rendered before expiration, constitute illegal recruitment?
No. Payments collected after the license expiration for services performed while the
license was still valid do not amount to illegal recruitment. Recruitment involves the
offering or promise of employment inducements, which in this case took place during
the period of a valid license. The later payments merely cover necessary administrative,
business, and travel expenses of applicants cleared for overseas deployment (Aquino v.
CA, G.R. No. 91896, 1991).
Does the mere issuance or signing of receipts for placement fees constitute illegal
recruitment?
No. Illegal recruitment is established by undertaking recruitment activities without the
required license or authority, not by the issuance or signing of receipts for placement
fees alone. (People v. Senoron, G.R. No. 119160, 1997)
Under the amended R.A. No. 8042, how are illegal recruiters classified?
There are two categories of illegal recruiters under the amended R.A. No. 8042, as
clarified in Sto. Tomas v. Salac (G.R. No. 152642, 2012)
• Non-licensee or non-holder of authority:
Commits any act of recruitment and placement defined in Article 13(b) of
the Labor Code; or illegal recruitment under Section 6(1) of R.A. 8042; or any of
the 14 wrongful acts listed in Section 6 as amended.
• Licensed recruiter or holder of authority
Despite possessing a valid license or authority, commits any of the 14
wrongful acts enumerated in Section 6 of R.A. 8042, as amended.
What are the two kinds of illegal recruitment defined under R.A. 10022, § 5(m)?
R.A. 10022, § 5(m) classifies illegal recruitment into:
• Simple Illegal Recruitment:
recruitment activities undertaken by a person who is neither a licensed
recruiter nor a holder of authority.
• Illegal Recruitment as Economic Sabotage:
recruitment committed by a syndicate or carried out on a large scale, which
is elevated to an economic sabotage offense.
LICENSE VS. AUTHORITY
What is a “license” for overseas recruitment?
“License” refers to the document issued by the DOLE Secretary authorizing a person,
partnership or corporation to operate a private recruitment or manning agency.
What is an “authority” for overseas employment?
“Authority” refers to the document issued by the DOLE Secretary authorizing the
officers, personnel, agents or representatives of a licensed recruitment or manning
agency to conduct recruitment and placement activities in a place stated in the license
or in a specified place
When can a worker file estafa charges in addition to illegal recruitment against an
unlicensed recruiter?
A worker who suffers any pecuniary damage, regardless of amount, due to false
pretenses made before or during recruitment by a non-licensee or non-holder of
authority may pursue estafa under Article 315(2)(a) of the Revised Penal Code, in
addition to illegal recruitment charges (People v. Fernandez, G.R. Nos. 141221–36,
2002).
In People v. Fernandez (G.R. Nos. 141221–36, 2002), a job applicant paid fees to an
unlicensed recruiter who promised overseas employment but never delivered any
placement documents or travel arrangements. The applicant lost the entire amount paid.
The Supreme Court ruled that, beyond illegal recruitment charges, the applicant could
validly file estafa under Article 315(2)(a) of the Revised Penal Code because any
pecuniary damage stemming from false pretenses by a non-licensee no matter how
small triggers liability for estafa.
Under Section 10 of R.A. No. 8042, the overseas employer (principal) and the local
placement agency share joint and several liability for all claims arising from an
overseas-employment contract, and this solidary-liability clause must be included as a
condition for POEA approval. Even if the agency agreement between recruiter and
principal is later terminated, the recruiter remains liable to the deployed workers for
wages, benefits, or injury compensation until each worker’s contract expires unless
the recruiter gives individual notice of termination. In Catan v. NLRC (G.R. No.
77279, 1988), the Supreme Court held that a licensed recruiter still owed disability
benefits and medical expenses to an injured employee whose recruiter-principal
agreement had ended, because no notice of termination was given and the worker’s
overseas contract was still in force.
What did the Supreme Court rule in Catan v. NLRC about a recruiter’s liability when
the recruiter-principal agreement ends without notice to the worker?
Answer: The Court ruled that the recruiter remains solidarily liable for all obligations
under the overseas-employment contract, including injury compensation, through
the expiration of the worker’s term if no notice of agency termination is given.
What is the nature of the liability between local recruiter and its foreign principal?
The nature of their liability is “solidary” or “joint and several” for any and all claims
arising out of the employment contract of OFWs.
What are some relevant principles on the persons liable for illegal recruitment?
1. Employees of a licensed recruitment agency may be held liable for illegal
recruitment as principal by direct participation, together with his employer, if it is
shown that he actively and consciously participated in illegal recruitment.
2. Good faith and merely following orders of superiors are not valid defenses
of an employee.
3. A manager of a recruitment/manning agency is not a mere employee. As such,
he receives job applications,interviews applicants and informs them of the agency’s
requirement of payment of performance or cash bond prior to the applicant’s deployment.
As the crewing manager, he was at the forefront of the company’s recruitment
Activities
Is the solidary liability of corporate officers with the recruitment agency “automatic”
in character?
No. In order to hold the officers of the agency solidarily liable, it is required that there
must be proof of their culpability therefor. Thus, it was held in the 2013 case of Gagui v.
Dejero, that while it is true that R.A. 8042 and the Corporation Code provide for solidary
liability, this liability must be so stated in the decision sought to be implemented. Absent
this express statement, a corporate officer may not be impleaded and made to personally
answer for the liability of the corporation
Where may a complainant file a criminal complaint under Section 9 of RA No. 8042?
The offended party may elect to file the complaint at the Regional Trial Court (RTC) of the
province or city:
• Where the offense was committed
• Where the offended party resided at the time the offense was committed
Explain the Theory of Imputed Knowledge in Philippine agency law. Under what
circumstances is an agent’s knowledge imputed to the principal, and how does this
doctrine determine the period during which a recruitment agency remains liable for
claims arising from an extended employment contract? Illustrate your answer with
reference to New Life v. Court of Appeals (G.R. No. 94071, 1992) and Sunace
International Management Services, Inc. v. NLRC (G.R. No. 161757, 2006)?
Under the Theory of Imputed Knowledge, whatever an agent knows while acting
within the scope of his authority is legally attributed to the principal. The rationale
is that a principal cannot disclaim notice or knowledge of facts that came to the
agent while the latter was performing tasks on the principal’s behalf.
New Life v. Court of Appeals established that notice or knowledge received by an
employment agency acting as agent binds the principal foreign employer. Conversely,
knowledge held solely by the principal is not imputed back to the agent.
In Sunace International Management Services, Inc. v. NLRC, the domestic helper’s
one-year contract expired on February 1, 1998. She continued working for two more years
under an agreement negotiated directly with her foreign employer. The Supreme Court,
through Justice Carpio Morales, held that Sunace never knew of nor consented to this
extension. Since no “knowledge” was imparted to Sunace or consent granted after
February 1, 1998, the agency relationship ended with the original contract’s
termination. Therefore, Sunace’s liability for unpaid wages and deductions ceased on
that date.
“Under Republic Act No. 8042 (Migrant Workers and Overseas Filipinos Act of
1995), Section 10, what monetary reliefs are due to a migrant worker who is
dismissed from overseas employment without just, valid, or authorized cause?
Explain each relief and illustrate how the second relief is computed.”
Section 10 of RA 8042 entitles a migrant worker dismissed without just, valid, or
authorized cause to two principal monetary reliefs:
1. Full reimbursement of the placement fee paid to the recruitment agency, plus
interest at 12% per annum, computed from the date the fee was paid until full
reimbursement.
2. Salary corresponding to either: 2.1. The unexpired portion of the employment
contract; or 2.2. Salary equivalent to three months for every year remaining in the
unexpired term—whichever amount is lesser
Explain the requirement of an employment permit for nonresident aliens under
Articles 40 to 42 of the Philippine Labor Code and discuss how failure to secure
such a permit affects an alien’s ability to invoke labor protections, citing McBurnie
v. Ganzon and Rouche v. French Chamber of Commerce in the Philippines.?
Under Article 40 of the Labor Code, any alien seeking employment in the Philippines—
and any employer wishing to hire one—must first secure an employment permit from the
Department of Labor. The permit is granted only after determining that no Filipino is
“competent, able and willing” to perform the desired work. For enterprises in preferred
investment areas, the overseeing government agency may recommend issuance of the
permit.
Article 41 further prohibits a nonresident alien from transferring to another employer or
changing jobs without the Secretary of Labor’s prior approval. Article 42 obligates existing
employers of nonresident aliens to furnish the Secretary of Labor, within 30 days of the
Code’s effectivity, a list of all such aliens, detailing their personal and employment
particulars, so their entitlement to permits can be verified.
In McBurnie v. Ganzon (2013), the Supreme Court dismissed an Australian’s illegal
dismissal claim on the ground that he never obtained an employment permit. Without that
statutorily mandated authorization, he was not “qualified and duly authorized” to invoke
Philippine labor protections, making his complaint untenable.
By contrast, in Rouche v. French Chamber of Commerce in the Philippines (2022),
the Court found that the employer’s counsel was negligent in securing Rouche’s work
visa and permit. It held that this procedural failure could not strip Rouche of his
substantive labor rights under the Code. Thus, where the employer’s own negligence
prevents permit issuance, the alien may still avail himself of labor protections in the
interest of justice.
Can an OFW acquire regularity of employment?
No. The prevailing rule is that OFWs are contractual (fixed-term only), not regular,
employees. In fact, they can never attain regularity of employment. The nature of their
employment is always fixed-term.
What are some relevant principles?
1. Indefinite period of employment of OFWs is not valid as it contravenes the explicit
provision of the POEA Rules and Regulations on fixed-period employment.
2. OFWs do not become regular employees by reason of nature of work, that is, that they
are made to perform work that is usually necessary and desirable in the usual business
or trade of the employer. The exigencies of their work necessitate that they be employed
on a contractual basis. This notwithstanding the fact that they have rendered more than
twenty (20) years of service.
3. Regular employment does not result from the series of re-hiring of OFWs.
4. The fixed-period employment of OFWs is not discriminatory against them nor does it
favor foreign employers. It is for the mutual interest of both the seafarer and the employer
why the employment status must be contractual only or for a certain period of time.
5. The expiration of the employment contracts of OFWs marks its ending.
What is the effect of hiring a seafarer for overseas employment but assigning him
to local vessel?
As held in OSM Shipping Philippines, Inc. v. NLRC,
The non-deployment of the ship overseas did not affect the validity of the perfected
employment contract. After all, the decision to use the vessel for coastwise shipping
was made by petitioner only and did not bear the written conformity of private
respondent. A contract cannot be novated by the will of only one party. The claim of
petitioner that it processed the contract of private respondent with the POEA only after
he had started working is also without merit. Petitioner cannot use its own misfeasance
to defeat his claim.
What is the effect of non-deployment of OFW to overseas employment?
Petitioner-seafarer, in Santiago v. CF Sharp Crew Management, Inc. was not deployed
overseas despite the signing of a POEA-approved employment contract. One of his
contentions is that such failure to deploy was an act designed to prevent him from
attaining the status of a regular employee. The Supreme Court, however, disagreed and
ruled that “seafarers are considered contractual employees and cannot be considered
as regular employees under the Labor Code. Their employment is governed by the
contracts they sign every time they are rehired and their employment is terminated when
the contract expires. The exigencies of their work necessitate that they be employed on
a contractual basis .
• What is the doctrine of processual presumption?
“Presumed-identity approach” or “processual presumption” is an International Law
doctrine which dictates that where a foreign law is not pleaded or, even if pleaded, is
not proved, the presumption is that foreign law is the same as Philippine law. Thus,
under this situation, Philippine labor laws should apply in determining the issues presented
in a case.
• Is due process under Philippine law applicable to termination of employment of
OFWs?
Yes. In the absence of proof of applicable foreign law, OFWs are entitled to due process
in accordance with Philippine laws.
• Is the Agabon doctrine applicable to OFWs who ar e dismissed for cause but without
due process?
Yes. The Agabon doctrine of awarding indemnity in the form of nominal damages in cases of
valid termination for just or authorized cause but without procedural due process also
applies to termination of OFWs.
• Who has the burden of proof to show that the dismissal of the OFW is legal?
Burden of proof devolves on both recruitment agency and its foreign principal.
• Are OFWs entitled to the reliefs under the Labor Code?
No. They are not entitled to such reliefs under Article 279 as reinstatement or separation
pay in lieu of reinstatement or full backwages. REASON: Because their employment is
fixed-term in nature. The nature of their claim therefore is purely monetary, such as the
payment of the salary for the unexpired portion of the employment contract in case their
dismissal is declared illegal.
What are the reliefs to which OFWs are entitled?
They are entitled to the reliefs provided under Section 10 of R.A. No. 8042, as amended, to
wit:
(1) All salaries for the unexpired portion of the contract;
(2) Full reimbursement of placement fees and deductions made with interest at 12% per
annum.
As pointed out above, all the reliefs available to an illegally dismissed OFW are always
monetary in nature.
It must be noted that under the 2009 Serrano doctrine, (Serrano v. Gallant Maritime
Services, Inc.,),3 an illegally dismissed OFW is now entitled to all the salaries for the entire
unexpired portion of their employment
What makes u a managerial employee
Lectures
• What makes u a managerial and employee
• Managerial . Not covered by labor code , function instill impose as a managerial .
• Labor code is only private employee
• Manner of creation is to determine the if covered by labor code or civil service .
• Special charter
• Corporation vs special law
• Charitable institution should follow holiday pay , overtime and etc.
• Not in Labor standard are 13th month pay , VAWC, Solo parenting
• Managerial cannot join union .
• Supplements the rule of diminution can be apply
• Rule of diminution can be apply without condition
• Facilities with condition
• Over time Pay if render service beyond 8 hours .
• Right to OT pay cannot be waived. But when the alleged waiver of OT pay is in
consideration of benefits and privileges, which may even exceed the OT pay, the
waiver may be permitted
• Cannot render OT without employer consent
• Premium pay : holiday pay Premium (200%) , OTP , rest day pay , di_erential pay .
anything addition to salary is premium
• Premium pay burden of proof is employee
• Holiday pay burden is employer
• DMW in charge of recruitment in OFW
• Why OFW has Special treatment
• Allowed require
• OFW is trilateral recruitment agency , OFW, foreign employer all contract
Recruitment agency . there relation governed by contract.
• In case of breach , who will cause the breach or causes of action
• Employment relation took e_ect upon employment
• Administrative liability Recruitment agency and RTC like estafa, for money claims
NLRC.
• Illegal dismissal of ofw
Assignment
Nature of liability
