Answers to Key Questions (Azucena, 2010 - p.109-160)

What acts constitute illegal recruitment and who are the persons that can be held liable for it?

Acts:

(a) To charge or accept directly or indirectly any amount greater than the specified in the schedule of allowable fees prescribed by the Secretary of Labor and Employment, or to make a worker pay any amount greater than that actually received by him as a loan or advance;

(b) To furnish or publish any false notice or information or document in relation to recruitment or employment;

(c) 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;

(d) To induce 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;

(e) To influence or attempt to influence any persons or entity not to employ any worker who has not applied for employment through his agency;

(f) To engage in the recruitment of placement of workers in jobs harmful to public health or morality or to dignity of the Republic of the Philippines;

(g) To obstruct or attempt to obstruct inspection by the Secretary of Labor and Employment or by his duly authorized representative;

(h) To fail to submit reports on the status of employment, placement vacancies, remittances of foreign exchange earnings, separations from jobs, departures and such other matters or information as may be required by the Secretary of Labor and Employment;

(i) 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;

(j) 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 on indirectly in the management of a travel agency;

(k) To withhold or deny travel documents from applicant workers before departure for monetary or financial considerations other than those authorized under the Labor Code and its implementing rules and regulations;

(l) Failure to actually deploy without valid reasons as determined by the Department of Labor and Employment; and

(m) Failure to reimburse expenses incurred by the workers 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 as offense involving economic sabotage.

Illegal recruitment is deemed committed by a syndicate carried out by a group of three (3) or more persons conspiring or confederating with one another. It is deemed committed in large scale if committed against three (3) or more persons individually or as a group. (Sec 6, RA 8042)

Persons:

1. Principals, accomplices and accessories. For juridical persons, the officers having control, management or direction of their business.

2. Employee of a company engaged in illegal recruitment held liable together his employer, if it is shown that he actively and consciously participated in illegal recruitment.

Under what circumstances is illegal recruitment an offense involving economic sabotage?

                When the ff. qualifying circumstances are present:

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. (Art 38.b, Labor Code)

Is the Labor Sec. legally authorized to order the arrest of an illegal recruiter? May he order closure of an illegal recruitment office?

                On arrest:

                Yes. The Labor Sec. may order arrest via (a) warrant of arrest issued by a judge or (b) warrantless arrest. A person who has committed any act of illegal recruitment may be arrested by virtue of a warrant issued by a Judge of RTC/MTC where the criminal information was filed after preliminary investigation. An illegal recruiter may be also lawfully be arrested without warrant under Sec 105, Rule 113 of Rules of Criminal Procedure.

                On closure:

                Yes. It is an administrative and regulatory function of the Labor Sec.

Issuance of Closure Order. - The Secretary of Labor and Employment or the POEA Administrator or the DOLE Regional Director of the appropriate regional office outside the National Capital Region, or their duly authorized representatives, may conduct an ex parte preliminary examination to determine whether the activities of a non-licensee constitute a danger to national security and public order or will lead to further exploitation of job seekers. For this purpose, the Secretary of Labor and Employment, the POEA Administrator or the Regional Director concerned or their duly authorized representatives, may examine personally the complainants and/or their witnesses in the form of searching questions and answers and shall take their testimony under oath. The testimony of the complainants and/or witnesses shall be reduced in writing and signed by them.

If upon the preliminary examination or surveillance, the Secretary of Labor and Employment, 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.

In case of a business establishment whose license or permit to operate a business was issued by the local government, the Secretary of Labor and Employment, the POEA Administrator or the Regional Director concerned shall likewise recommend to the granting authority the immediate cancellation/revocation of the license or permit to operate its business. (Sec 19, Omnibus Rules Implementing RA 8042)

Who are the foreign nationals that cannot work in the Philippines without an employment permit?

Non-resident Aliens.  Art. 40 of the Labor Code explicitly state that they should obtain an employment permit from the Dept. of Labor

Who are exempt from such requirement?

1.       Resident Aliens and immigrants – just required an Alien Employment Registration Certificate

2.       Those enumerated under DO 75-06:

o   Members of the diplomatic services and foreign government officials accredited by the Philippine government;

o   Officers and staff of international organizations of which the Philippine government is a cooperating member, and their legitimate spouses desiring to work in the Philippines;

o   Foreign nationals elected as members of the Governing Board who do not occupy any other position, but have only voting rights in the corporation;

o   All foreign nationals granted exemption by special laws and all other laws that may be promulgated by the Congress;

o   Owners and representatives of foreign principals, whose companies are accredited by the Philippine Overseas Employment Administration (POEA), who come to the Philippines for a limited period solely for the purpose of interviewing Filipino applicants for employment abroad;

o   Foreign nationals who come to the Philippines to teach, present and/or conduct research studies in universities and colleges as visiting, exchange or adjunct professors under formal agreements between the universities or colleges in the Philippines and foreign universities or colleges; or between the Philippine government and foreign government; provided that the exemption is on a reciprocal basis; and

o   Resident foreign nationals and temporary or probationary resident visa holders employed or seeking employment in the Philippines.

What is TESDA and what are its responsibilities?

TESDA – Technical Education and Skills Authority

The Authority shall primarily be responsible for formulating, continuing, coordinated and fully integrated technical education and skills development policies, plans and programs taking into consideration the following:

a) the State policy declared herein of giving new direction and thrusts to efforts in developing the quality of Filipino human resource through technical education and skills development;

b) the implementation of the above-mentioned policy requires the coordination and cooperation of policies, plans, and programs of different concerned sectors of Philippine society;

c) equal participation of representatives of industry groups, trade associations, employers, workers and government shall be made the rule in order to ensure that urgent needs and recommendations are readily addressed; and

d) improved linkages between industry, labor and government shall be given priority in the formulation of any national-level plan. (Sec. 8, RA 7796)

How may the success or failure of TESDA be measured?

Every five (5) years, independent review panel composed of three (3) persons appointed by the President shall review the performance of the Authority and shall make recommendations, based on its findings to the President and to both Houses of Congress. (Sec. 35, RA 7796)