II. RECRUITMENT AND PLACEMENT OF WORKERS Flashcards
II. RECRUITMENT AND PLACEMENT OF WORKERS
A. Recruitment and Placement of Local and Migrant Workers (Labor Code, art. 13)
1. Regulatory Authorities
a. Department of Migrant Workers – R.A. No. 11641, secs. 4-6
DMW Framework
-protects&prmtes MW&Fam
-structure&offce of DmW
-functions&duties of DmW
R.A. No. 11641, sections 4-6 establish the framework for the Department of Migrant Workers. Here’s a brief explanation of each section:
- Section 4: This section outlines the creation of the Department of Migrant Workers, which is tasked with protecting the rights and promoting the welfare of Filipino migrant workers and their families. It defines the department’s scope of authority and responsibilities in addressing the various issues and challenges faced by migrant workers, including employment, social protection, and reintegration.
- Section 5: This section delineates the organizational structure of the Department of Migrant Workers, detailing its offices, functions, and powers. It specifies the key departments, bureaus, and units within the department, as well as their respective roles and responsibilities in implementing policies and programs for the benefit of migrant workers.
- Section 6: This section establishes the powers and functions of the Secretary of the Department of Migrant Workers, who serves as the head of the department. It enumerates the secretary’s duties in formulating policies, coordinating programs, and overseeing the effective implementation of initiatives aimed at safeguarding the rights and welfare of migrant workers.
II. RECRUITMENT AND PLACEMENT OF WORKERS
A. Recruitment and Placement of Local and Migrant Workers (Labor Code, art.13)
1. Regulatory Authorities
b. DOLE Secretary; Regulatory and Visitorial Powers
– Labor Code, arts. 33, 36 and 37
Labor Code, arts. 33, 36, and 37 confer regulatory and visitorial powers to the Department of Labor and Employment (DOLE) Secretary. Here’s a brief explanation of each section:
- Labor Code, Article 33: This article grants the DOLE Secretary the authority to issue rules and regulations necessary for the proper implementation and enforcement of labor laws and regulations. It empowers the Secretary to promulgate guidelines and standards governing various aspects of labor relations, occupational safety and health, and other labor-related concerns.
- Labor Code, Article 36: This article outlines the visitorial and enforcement powers of the DOLE Secretary, allowing authorized representatives of the Secretary to conduct inspections and investigations in workplaces to ensure compliance with labor laws and regulations. It authorizes DOLE officials to examine employment records, interview employees, and take other necessary actions to verify compliance with labor standards.
- Labor Code, Article 37: This article specifies the penalties and sanctions that may be imposed by the DOLE Secretary for violations of labor laws and regulations. It provides for administrative fines, penalties, and other corrective measures that may be imposed on employers found to have committed violations, with the aim of promoting compliance and deterring future infractions.
II. RECRUITMENT AND PLACEMENT OF WORKERS
A. Recruitment and Placement of Local and Migrant Workers (Labor Code, art.13)
- Regulation of Recruitment and Placement Activities
a. Ban on Direct Hiring; Exceptions
– Labor Code, art. 18
General Rule: Direct-hiring by employers of Filipino workers for overseas employment is prohibited.
Exception: All applicants for overseas employment must register exclusively with the Philippine Overseas Employment Administration (POEA) before being deployed overseas.
II. RECRUITMENT AND PLACEMENT OF WORKERS
A. Recruitment and Placement of Local and Migrant Workers (Labor Code, art.13)
- Regulation of Recruitment and Placement Activities
b. Entities and persons prohibited from recruiting.
– Labor Code, art. 26;
- R.A. No. 8042, as amended by R.A. No. 10022, sec. 6 (j);
Revised POEA Rules 2016 for Land-based Workers, Part II, Rule I, sec. 3
Based on Labor Code, art. 26 and R.A. No. 8042, as amended by R.A. No. 10022, sec. 6 (j), the entities and persons prohibited from recruiting are:
- Employers or principals: Under the Labor Code, employers or principals are prohibited from engaging in recruitment activities without the necessary license or authority from the government.
- Non-licensed agencies: Individuals or entities that are not licensed or authorized by the government to engage in recruitment activities are also prohibited from recruiting workers. This includes unauthorized recruiters or those operating without the necessary permits from the Philippine Overseas Employment Administration (POEA).
II. RECRUITMENT AND PLACEMENT OF WORKERS
A. Recruitment and Placement of Local and Migrant Workers (Labor Code, art.13)
- Regulation of Recruitment and Placement Activities
c. Non-transferability of License or Authority – Labor Code, art. 29
The key points regarding the non-transferability of license or authority under Labor Code, art. 29 are:
- Restriction on Transfer: Licenses or authorities issued to entities or individuals for engaging in recruitment activities cannot be transferred to another person or entity.
- Personal Nature: The license or authority is considered personal and specific to the entity or individual to whom it was issued. It cannot be assigned or conveyed to any other party.
- Regulation of Recruitment Activities: This provision aims to ensure the proper regulation of recruitment activities by maintaining control over who is authorized to engage in such activities, preventing unauthorized parties from conducting recruitment operations.
II. RECRUITMENT AND PLACEMENT OF WORKERS
A. Recruitment and Placement of Local and Migrant Workers (Labor Code, art.13)
d. Suspension or cancellation of license or authority
– Labor Code, art. 35;
- Revised POEA Rules 2016 for Land-based Workers,
Part III, Rule I, secs. 101 and 104
The key points regarding the non-transferability of license or authority under Labor Code, art. 29 are:
- Restriction on Transfer: Licenses or authorities issued to entities or individuals for engaging in recruitment activities cannot be transferred to another person or entity.
- Personal Nature: The license or authority is considered personal and specific to the entity or individual to whom it was issued. It cannot be assigned or conveyed to any other party.
- Regulation of Recruitment Activities: This provision aims to ensure the proper regulation of recruitment activities by maintaining control over who is authorized to engage in such activities, preventing unauthorized parties from conducting recruitment operations.
II. RECRUITMENT AND PLACEMENT OF WORKERS
A. Recruitment and Placement of Local and Migrant Workers (Labor Code, art.13)
e. Prohibited Practices
– Labor Code, art. 34;
- R.A. No. 8042, as amended by R.A. No. 10022, sec. 6;
- Revised POEA Rules 2016 for Land-based Workers, Part I, Rule X, sec. 76
The prohibited practices as to recruitment and placement of local and migrant workers, based on the specified laws and rules, typically include:
- Charging of Illegal Fees: It is prohibited to charge workers, whether local or migrant, with illegal recruitment fees or placement fees, except those authorized by law. Any imposition of such fees beyond what is allowed constitutes a violation.
- Illegal Recruitment: Engaging in illegal recruitment activities, such as misrepresentation, deception, or coercion, is strictly prohibited. This includes promising non-existent jobs, requiring excessive fees, or offering fraudulent contracts.
- Discrimination: Practices that discriminate against workers based on age, gender, nationality, religion, or other factors are prohibited. This includes unfair hiring practices or providing unequal treatment to workers.
- Non-Compliance with Regulations: Failure to comply with regulations set forth by government agencies, such as the Department of Labor and Employment (DOLE) or the Philippine Overseas Employment Administration (POEA), regarding recruitment and placement procedures is also prohibited.
- Violation of Contractual Obligations: Failure to honor contractual obligations, such as providing the agreed-upon wages, benefits, or working conditions, constitutes a prohibited practice in recruitment and placement.
- Human Trafficking and Exploitation: Any involvement in human trafficking or exploitation of workers, including forced labor, debt bondage, or involuntary servitude, is strictly prohibited and punishable by law.
These prohibited practices aim to protect the rights and welfare of workers and ensure fair and ethical recruitment and placement processes.
II. RECRUITMENT AND PLACEMENT OF WORKERS
A. Recruitment and Placement of Local and Migrant Workers (Labor Code, art.13)
f. Illegal Recruitment
i. Elements and Types
– Labor Code, art. 38;
- R.A. No. 8042, as amended by R.A. No. 10022, sec. 6
The elements of illegal recruitment, as defined by the specified laws and rules, typically include:
- Committing acts constituting recruitment: This involves the act of hiring, engaging, or enlisting workers for employment abroad, whether for profit or not.
- Without the necessary license or authority: Illegal recruitment occurs when the recruitment activities are conducted without the appropriate license or authority from the government agency tasked with regulating overseas employment, such as the Philippine Overseas Employment Administration (POEA).
- Misrepresentation, deception, or other prohibited acts: Illegal recruitment also encompasses actions involving misrepresentation, deception, or other prohibited acts intended to induce individuals to seek employment abroad. This includes false promises regarding job opportunities, wages, benefits, or working conditions.
Based on these elements, the types of illegal recruitment may include:
- Simple Illegal Recruitment: Involves the act of recruiting workers for overseas employment without the required license or authority, or with misrepresentation or deception, but without the involvement of large-scale operations or syndicates.
- Large-Scale Illegal Recruitment: Refers to illegal recruitment activities conducted by a group of persons, whether acting individually or as a group, that constitutes a systematic or organized scheme carried out on a large scale.
- Syndicated Illegal Recruitment: Involves illegal recruitment activities committed by a group of three or more persons conspiring or confederating with one another in carrying out any unlawful or illegal transaction, enterprise, or scheme that constitutes large-scale illegal recruitment.
These types of illegal recruitment are serious offenses under Philippine law and are subject to severe penalties, including imprisonment and fines, to protect the rights and welfare of Filipino workers.
II. RECRUITMENT AND PLACEMENT OF WORKERS
A. Recruitment and Placement of Local and Migrant Workers (Labor Code, art.13)
f. Illegal Recruitment
ii. Illegal recruitment vs. Estafa
– R.A. No. 8042, as amended by R.A. No. 10022, sec. 6; Revised Penal Code, art. 315, par. 2 (a)
Illegal Recruitment vs. Estafa in Philippine Law: Key Differences and Similarities
Both illegal recruitment and estafa are criminal offenses in the Philippines, but they have distinct elements. Here’s a comparison based on jurisprudence and relevant laws (R.A. No. 8042, R.A. No. 10022, and Revised Penal Code):
Key Differences:
1) Deception vs. Exploitation:
Illegal Recruitment: Focuses on deception used to exploit or profit from a person seeking employment. The recruiter misrepresents or conceals facts about the job offer, terms, or working conditions.
Example: An agency promises a high-paying overseas job but sends the worker to a low-paying, dangerous job with different terms.
Estafa: Involves deception to defraud someone of money or property. The offender intentionally deceives the victim to gain something of value.
Example: A person offers a non-existent job and collects placement fees from the applicant with no intention of fulfilling their promise.
2) Specific vs. General Intent:
Illegal Recruitment: Requires specific intent to exploit, deceive, or profit from the job seeker’s vulnerability.
Estafa: Can be committed with general intent to defraud, even if the specific outcome (employment) wasn’t promised.
3) Laws and Penalties:
Illegal Recruitment: Punishable under Republic Act No. 8042 (as amended by R.A. No. 10022), with penalties ranging from imprisonment to fines.
Estafa: Punishable under Article 315 of the Revised Penal Code, with varying penalties depending on the amount of damage caused.
Key Similarities:
1) Deception: Both involve deceiving the victim.
2) Harm: Both cause harm to the victim, usually financial loss.
3) Criminal Offenses: Both are criminal acts punishable by law.
Additional Points:
a) Jurisprudence: Court decisions (jurisprudence) play a significant role in interpreting the elements of these crimes. Consulting a lawyer for specific cases is recommended.
b) Overlapping Elements: In some situations, the facts of a case might constitute both illegal recruitment and estafa. The prosecution will determine the most appropriate charge based on the evidence.
Example:
An agency deceives applicants by promising high-paying jobs in Canada but collects exorbitant placement fees without securing them any employment. This scenario could be charged as both illegal recruitment (deception for profit) and estafa (fraudulent collection of fees).
II. RECRUITMENT AND PLACEMENT OF WORKERS
A. Recruitment and Placement of Local and Migrant Workers (Labor Code, art.13)
g. Solidary Liability of Local Recruitment Agency and Foreign Employer
– R.A. No. 8042, as amended by R.A. No. 10022, sec. 10;
Theory of Imputed Knowledge
Solidary Liability and Imputed Knowledge in Philippine Recruitment Laws
- Solidary Liability of Local Recruitment Agency and Foreign Employer (R.A. No. 8042, as amended):
The concept of solidary liability is enshrined in Republic Act No. 8042, also known as the Migrant Workers and Overseas Filipinos Act, as amended by R.A. No. 10022. This principle ensures the protection of Filipino overseas workers (OFWs) by holding both the local recruitment agency and the foreign employer accountable for:
Money claims: This includes unpaid wages, salaries, benefits, reimbursements, and other financial obligations arising from the employment contract.
Damages: This covers moral and exemplary damages awarded by the court due to violations of the OFW’s rights.
Key Points:
Joint and Several Liability: The local agency and foreign employer are jointly and severally liable. This means the aggrieved OFW can demand the full amount owed from either party.
Easier Recovery: Solidary liability allows the OFW to pursue claims against whichever party is more readily accessible, simplifying the recovery process.
Protecting OFWs: This principle ensures that even if the foreign employer becomes insolvent or unreachable, the OFW has recourse through the local recruitment agency.
Example:
An OFW is illegally dismissed by their employer in Saudi Arabia. The employment contract was facilitated by a Philippine recruitment agency. The OFW is entitled to unpaid wages and moral damages. They can file a claim against either the local agency or the foreign employer to recover the full amount owed.
- Theory of Imputed Knowledge (Philippine Jurisprudence):
The theory of imputed knowledge is a legal principle applied in Philippine jurisprudence, particularly in labor cases involving recruitment agencies. It holds the agency accountable for the knowledge and actions of its agents, even if the agency itself was unaware.
Key Points:
Vicarious Liability: The agency is held vicariously liable for the misconduct or mistakes of its employees (recruiters) who act within the scope of their employment.
Protection for OFWs: This theory safeguards OFWs from unscrupulous practices by recruitment agencies, as the agency cannot claim ignorance of its employees’ actions.
Example:
A recruitment agency employee misrepresents the terms and conditions of a job offer in Canada to an OFW. The OFW accepts the offer based on this false information. Even if the agency claims they were unaware of the recruiter’s actions, they can still be held liable for the misrepresentation due to the theory of imputed knowledge.
By understanding these concepts, Filipino overseas workers can be better informed about their rights and hold both the local recruitment agency and the foreign employer accountable for violations.
II. RECRUITMENT AND PLACEMENT OF WORKERS
A. Recruitment and Placement of Local and Migrant Workers (Labor Code, art.13)
h. Termination of Contract of Migrant Workers
– R.A. No. 8042, as amended by R.A. No. 10022, sec. 10
Termination of Contract for Migrant Workers in the Philippines (R.A. No. 8042 as amended)
Philippine law, particularly Republic Act No. 8042 (as amended by R.A. No. 10022), protects Filipino migrant workers (OFWs) from unfair termination of their employment contracts. Here’s a breakdown of the key points for easy understanding:
- Just Cause vs. Illegal Termination:
A) Just Cause: The employer can terminate the contract with a valid reason, such as:
Serious misconduct by the OFW (proven theft, violence)
Willful neglect of duties (abandoning the job)
Incompetence or inefficiency (repeatedly failing to perform tasks)
Illegal Termination: The employer terminates the contract without a valid reason or violates the terms of the contract. This could include:
B) Termination due to illness or pregnancy (unless proven work-incapacity)
Unpaid wages or benefits
Discrimination based on race, religion, or gender
Key Points:
a) Security of Tenure: The law promotes “security of tenure” for OFWs, meaning they cannot be easily dismissed without justification.
b) Burden of Proof: In cases of termination, the employer has the burden of proving just cause.
c) Due Process: OFWs have the right to due process, which includes being informed of the allegations and given a chance to defend themselves.
Example (Just Cause):
An OFW is caught stealing from their employer in Singapore. The employer has just cause to terminate the contract due to serious misconduct.
Example (Illegal Termination):
An OFW in Dubai is terminated because they became pregnant. This is illegal as pregnancy is not a valid reason for termination.
- Notice Requirements:
Both employers and OFWs must follow proper notice periods for termination, as stipulated in the contract:
A) Fixed-Term Contracts: Usually require a set notice period (e.g., 30 days) before termination by either party.
B) Open-Ended Contracts: May require a longer notice period or payment in lieu of notice.
Key Points:
Following the Contract: Termination should comply with the agreed-upon notice period in the employment contract.
Protection for Both Parties: Ensures fairness and avoids abrupt job loss for the OFW or sudden replacement needs for the employer.
Example:
An OFW has a one-year fixed-term contract in Qatar with a 30-day notice period. If the employer wants to terminate early, they must provide the OFW with 30 days’ written notice (or pay in lieu of notice) before the termination date.
- Rights and Remedies:
If an OFW is illegally terminated, they have several rights and remedies available:
1) File a Complaint: They can file a complaint with the Philippine Overseas Labor Office (POLO) or the Department of Labor and Employment (DOLE) for assistance.
2) Monetary Claims: They can claim unpaid wages, benefits, and other financial entitlements arising from the contract.
3) Re-integration: In some cases, the court may order the employer to re-instate the OFW to their position.
Key Points:
Seeking Assistance: Reporting illegal termination allows the government to investigate and enforce OFW rights.
Compensation: OFWs can claim financial compensation for the damages caused by the illegal termination.
Example:
An OFW in Saudi Arabia is illegally dismissed without receiving their final salary. They can file a complaint with POLO and seek assistance in recovering their unpaid wages and other benefits.
II. RECRUITMENT AND PLACEMENT OF WORKERS
B. Employment of Non-Resident Aliens
(Labor Code, arts. 40-42; DOLE D.O. No.
186-17, secs. 1-3 and 12-14, as amended by DOLE D.O. No. 221-21; DOLE D.O.
No. 205-19, secs. 1-3, 7-8)
Employment of Non-Resident Aliens in the Philippines (Current Jurisprudence and Labor Laws)
The Philippines regulates the employment of non-resident aliens to protect local jobs and ensure qualified personnel fill specific positions. Here are the key points to remember:
Work Permits and Visa Requirements:
a) Alien Employment Permit (AEP): Most foreign nationals working in the Philippines for more than 6 months require an AEP from the Department of Labor and Employment (DOLE).
b) Visa: The type of visa a non-resident alien holds will determine their eligibility for work. Some visas, like tourist visas, don’t permit employment.
Key Points:
Prioritization of Filipino Workers: Employers must demonstrate efforts to recruit qualified Filipinos before hiring foreign nationals.
Skills Gap Filling: AEPs are typically granted for jobs requiring specialized skills or knowledge unavailable locally.
Example:
A Japanese engineering firm needs a highly specialized project manager with expertise in a rare technology. They can apply for an AEP for a qualified foreign candidate if they can show they were unable to find a Filipino with the necessary skills.
Jurisprudence and Non-Resident Alien Employment:
Court decisions (jurisprudence) play a significant role in interpreting regulations related to non-resident alien employment. Here are some key considerations:
a) Fairness and Non-Discrimination: Decisions often emphasize fair treatment and ensuring foreign workers are not brought in solely to replace Filipino workers at lower wages.
b) Protection of Local Labor Force: Rulings might favor Filipino workers if qualifications are comparable to a foreign applicant.
Example:
A company fires a qualified Filipino employee and seeks to hire a foreign national for the same position at a lower salary. A legal challenge based on jurisprudence could argue this is unfair and prioritize the Filipino worker if their qualifications are sufficient.
Additional Considerations:
Taxation: Non-resident aliens with Philippine-sourced income may be subject to income tax.
Labor Rights: Non-resident alien workers with valid work permits enjoy most of the same labor rights as Filipino workers.
MCQ 1:
Question: What is the general rule regarding direct hiring by foreign employers in the Philippines under Labor Code, art. 18?
a) Direct hiring is allowed without restriction.
b) Direct hiring is allowed only for certain industries.
c) Direct hiring by foreign employers is generally prohibited.
d) Direct hiring is allowed if approved by the Secretary of Labor and Employment.
Answer: c) Direct hiring by foreign employers is generally prohibited.
In England, there’s a bustling town called Jobville where Mr. Wally, a whimsical employer, decided to hire a group of Filipino workers directly for his new amusement park in the Enchanted Forest. He bypassed the traditional recruitment agencies, thinking it would save him time and money. However, the Department of Labor and Employment’s Secretary, got wind of Mr. Wally’s direct hiring scheme and decided to intervene.
Question: Can Mr. Wally legally hire Filipino workers directly for his amusement park in Jobville?
Answer: No, Mr. Wisecrack cannot legally hire Filipino workers directly. Labor Code, art. 18, expressly prohibits direct-hiring by employers of Filipino workers for overseas employment. The Secretary of Labor and Employment has the authority to regulate recruitment and placement activities, ensuring that all applicants for overseas employment register exclusively with the Philippine Overseas Employment Administration.
Scenario 2:
In the bustling city of Employmentville, Ms. Sally Smartpants, a savvy businesswoman, wanted to hire Filipino workers directly for her international restaurant chain. She believed it would streamline the hiring process and ensure the best talent for her establishments. However, she was unsure about the legal implications of direct hiring under the Labor Code.
Question: Can Ms. Smartpants legally hire Filipino workers directly for her international restaurant chain in Employmentville?
Answer: No, Ms. Smartpants cannot legally hire Filipino workers directly for her international restaurant chain. Labor Code, art. 18, prohibits direct-hiring by employers of Filipino workers for overseas employment. The law aims to regulate recruitment and placement activities, ensuring that all applicants for overseas employment register exclusively with the Philippine Overseas Employment Administration.
