PRE-EMPLOYMENT

ART 12. IT IS THE POLICY OF THE STATE:

1. to promote and maintain a state of full employment through improved manpower training,
allocation and utilization;

2. to protect every citizen desiring to work locally/overseas by securing for him the best possible
terms and condition of employment;

3. to facilitate a free choice of available employment by persons seeking work in conformity with
the national interest;

4. to facilitate & regulate the movement of workers in conformity w/ the national interest;

5. to regulate the employment of aliens, including the establishment of a registration and/or

work permit system;

6. to strengthen the network of public employment offices and rationalize the participation of the
private sector in the recruitment and placement of workers, locally and overseas, to serve national
development objectives;

7. to insure careful selection of Filipino workers for overseas employment in order to protect the good
name of the PH abroad.

The DOLE
- by Administrative Code of 1987 (EO 292)
- the primary policy-making, programming, coordinating and administrative entity of the Executive
branch of the govt in the field of labor and employment

Its Primary responsibilities:

1. The promotion of gainful EENT opportunities and the optimization of the devt & utilization of the
country’s manpower resources;

2. The advancement of workers’ welfare by providing for just and humane working conditions and
terms of EENT;

3. The maintenance of industrial peace by promoting harmonious, equitable and stable EENT,
relations that assure protection for the Rs of all concerned parties.

RECRUITMENT & PLACEMENT OF WORKERS

ART 13. DEFINITIONS

Worker – any member of the labor force whether employed or unemployed. Recruitment & placement – any
act of canvassing, enlisting, contracting, transporting, utilizing, hiring, or procuring workers and includes
referrals, contract services, promising or advertising for EENT, locally or abroad, whether for profit or not:
provided, that any person or entity w/c, in any manner, offers or promises for a fee EENT to 2/more
persons shall be deemed engaged in recruitment & placement

Private fee-charging EEnt Agency – any person/ entity engaged in the recruitment & placement of workers
for a fee w/c is charged directly/indirectly from the workers or employers or both

License – a document issued by the DOLE authorizing a person/entity to operate a private EENT agency

Private recruitment entity – any person/assoc engaged in the recruitment & placement of workers,
locally/overseas without charging, directly/indirectly any fee from the workers or employers.
Authority – a document issued by the DOLE authorizing a person/assoc to engage in recruitment &
placement activities as a private recruitment entity

Seaman – any person employed in a vessel engaged in maritime navigation

Overseas EENT – EENT of a worker outside the PH

Emigrant – any person, worker or otherwise, who emigrates to a foreign country by virtue of an immigrant
visa or resident permit to its equivalent in the country of destination

Art 14. EMPLOYMENT PROMOTION

The Sec of Labor shall have the power & authority:

1. to organize & establish new EENT offices in addition to existing EENT offices under the DOLE
as the need arises;

2. to organize & establish a nationwide job clearance & information system to inform applicants
registering w/ a particular EENT office of job opportunities in other parts of the country as well
as job opportunities abroad;

3. to develop & organize a program that will facilitate occupational industrial and geographical
mobility of labor and provide assistance in the relocation of workers from one area to another; and

4. to require any person, establishment, org, or institution to submit such EENT information as
may be prescribed by the Sec of Labor.

Bureau of Local Employment (BLE) – assigned the effective allocation of manpower resources in local
 Ph Overseas Employment Administration (POEA) – for overseas employment

ART 15. BUREAU OF EMPLOYMENT SERVICES (NOW BLE)

- primarily responsible for developing & monitoring a comprehensive EENT program.

Powers & Duties:

1. To formulate & develop plans & programs to implement the EENT promotion objectives of
this Title;

2. To establish & maintain a registration and/or licensing system to regulate private sector participation
in the recruitment & placement of workers, locally & overseas, and to secure the best possible terms
& conditions of EENT for Filipino contract workers and compliance therewith under such rules &
regulations as may be issued by the DOLE;

3. To formulate & develop EENT programs designed to benefit disadvantaged groups &
communities;

4. To establish & maintain a registration and/or work permit system to regulate the EENT of
aliens;

5. To develop a labor market information system in aid of proper manpower and development
planning;

6. To develop a responsible vocational guidance & testing system in aid of proper human
resources allocation; and

7. To maintain a central registry of skills, except seamen

ORIGINAL & EXCLUSIVE JURISDICTION OF THE REGIONAL OFFICES OF DOLE

 over all matters/cases involving EE-EER relations including money claims, arising out of or by virtue
of any law or contracts involving Filipino workers for overseas EENT  except seamen: Provided,
thet the Bureau of Employment Services (BES) (now BLE) may, in the case of the NCR, exercise
such power, whenever the DOLE deems it appropriate.

 The decisions of the regional offices of the BES if so authorized by the Sec of DOLE shall be
appealable to the NLRC upon the same grounds provided in Art 233 hereof.

 The decisions of the NLRC shall be final & unappealable.

 Minister of Labor –has the power to impose & collect fees, based on rates recommended by the BES.
Such fees shall be deposited in the National Treasury as a special acct of the General Fund, for
the promotion of the objectives of the BES, subj to the provisions of Sec 40 of PD 1177.

 PD 850 – replaced BES w/ BLE, and created POEA

 AO 186 – made licensing of local recruitment agencies and the issuance of work permits to non-
resident aliens and EENT registration certificates to resident aliens a function of the regional offices
of DOLE
 RA 8795 – required the establishment of a Public Employment Service Office (PESO) in
capital towns, cities and other strategic areas
o PESO - serves as EENT service & information center
- Regularly obtains lists of job vacancies from EERS, publicizes them, invites and
evaluates applicants, and refers them for probable hiring
- Provides training and educational guidance and EENT counseling services
- Also renders special services to the public such as holding of jobfairs, livelihood and
self-employment bazaars
- Special credit assistance for placed overseas workers
- Special program for EENT of students (SPES) during summer or semestral
breaks
- Work appreciation seminars & conferences and
- Hiring of workers in infrastructure projects (WHIP)
 Ra 6885 – created WHIP, a program w/c requires the DPWH and private contractors to hire
30% of skilled and 50% unskilled labor requirements from the area where the project is being
undertaken
Art 16. PRIVATE RECRUITMENT:

GR: No person/entity other than the public EENT offices, shall engage in the recruitment & placement of
workers.

: Exceptions
1. Public EEnt offices
2. Private recruitment entities
3. Private EENT agencies
4. Shipping or manning agents or representatives
5. The POEA
6. Construction contractors if authorized to operate by DOLE and the Construction Industry
Authority
7. Members of the diplomatic corps although hirings done by them have to be processed through
the POEA
8. Other persons/entities as may be authorized by the Sec of DOLE

Art 17. OVERSEAS EMPLOYMENT DEVT BOARD

POEA – has taken over the functions of the Overseas Employment Development Board (OEDB) and
the National Seamen Board (NSB)

OFW – a Filipino worker who is to be engaged, is engaged or has been engaged in a renumenerated
activity in a country of which he/shee is not a legal resident

2 Classifications
1. Land-based – contract workers other than a seaman including workers ingaged in offshore
activities whose occupation requires that majority of his working/gainful hrs are spent on land
2. Sea-based – those employed in a vessel engaged in maritime navigation

Principal Functions of the POEA

1. Formulation, implementation and monitoring of overseas employment of Filipino workers;
2. Protection of their rights to fair and equitable employment practices;
3. Deployment of Filipino workers through govt-to-govt hiring

Regulatory Functions

1. Regulate private sector participation in the recruitment & overseas placement of workers
through its licensing and registration system;

2. Formulate & implement, in coordination w/ appropriate entities concerned, when necessary, a

system for promoting and monitoring the overseas EEnt of Filipino workers taking into
consideration their welfare and the domestic manpower requirements;

3. Inform migrant workers not only of their rights as workers but also of their rights as
human beings;

4. Instruct and guide the workers how to assert their rights and provide the available mechanism
to redress violation of their rights;

5. In the recruitment & placement of workers to service the requirements for trained and competent
Filipino workers of foreign govts and their instrumentalities, and such other employers as public
interest may require, deploy only to countries:
a. Where the PH has concluded Bilateral labor agreements or arrangements;
b. Observing and/or complying w/ the international laws and standards of migrant
workers;
c. Guaranteeing to protect the rights of Filipino migrant workers.

Adjudicatory Functions
 1. Administrative cases involving violations of licensing rules & regulations and registration of
recruitment and EEnt agencies/entities; and

2. Disciplinary action cases and other special cases w/c are administrative in character, involving
employers, principals, contracting partners and Filipino migrant workers.

Jurisdiction of POEA

1. all cases w/c are administrative in character, involving or arising out of violations of rules &
regulations relating to licensing & registration of recruitment and employment agencies/entities;
and

2. disciplinary action cases and other special cases w/c are administrative in character, involving EERS,
principals, contracting partners and Filipino migrant workers

3. NO jurisdiction to enforce foreign judgment (must be brought before the regular courts). POEA is
an administrative (not a court), exercising adjudicatory or quasi-judicial functions

4. NO jurisdiction over torts

Grounds for Disciplinary Action

1. Commission of a felony punishable by Ph laws or by the laws of the host country;

2. Drug addiction/possession or trafficking of prohibited drugs;
3. Desertion or abandonment;
4. Drunkenness, esp where the laws of the host country prohibit intoxicating drinks;
5. Gambling, esp where the laws of the host country prohibits the same;
6. Initiating/joining a strike or work stoppage where thelaws of the host country prohibit strikes
or similar actions;
7. Creating trouble at the worksite or in the vessel;
8. Embezzlement of company funds or of moneys and properties of a fellow worker entrusted for
delivery to kins or relatives in the PH;
9. Theft/robbery;
10. Prostitution;
11. Vandalism or destroying company property;
12. Gunrunning or possession of deadly weapons;
13. Unjust refusal to depart for the worksite after all employment and travel documents have been duly
approved by the approp govt agency/ies; and
14. Violation/s of the laws and sacred practices of the host country and unjustified breach of
govt-approved EENT contract by a worker

COMPROMISE AGREEMENT
 -consistent w/ the policy encouraging amicable settlement of labor disputes Sec
10 of RA 8042 allows resolution by compromise of cases filed w/ the NLRC

- any compromise agreement on money claims inclusive of damages shall be paid w/in 4 months
from the approval of the settlement

Penalties for Non-compliance of the mandatory period for resolution of cases

1. The salary of such official who fails to reder his decision/resolution w/in the prescribed pd shall be, or
caused to be, withheld until such official complies therewith;

2. Suspension for not more than 90 days; or

3. Dismissal w/ disqualification to hold any appointive public office for 5 yrs

EER/EE Relations Cases

 Millares & Lagda v NLRC: SC: seafarers are contractual EES Premature Termination of
Contract
If EE is terminated before end of contract w/o just cause, EERS will be ordered to pay their salaries
corresponding to the unexpired portion of their EENT contract

Pretermination Under RA 8042

A worker dismissed from overseas EENT w/o just cause as defined by law/contract is entitled to ―full
reimbursement of his placement fee w/ interest at 12% per annum, plus the salary for the unexpired
portion of their EENT contract.

Due Process required to terminate employment

Ex: in case of seamen – must be given written notice of the charges against him, and afforded a
formal investigation where he can defend himself or thru a representative before he can be
dismissed & disembarked. The EER is required to furnish him w/ 2 notices: (1) written notice of
charge; and (2) written notice of dismissal

Contracted but not Deployed: Perfected Contract

Death benefits of Seafarers

- entitled to death and other benefits under w/c ever is higher (foreign law or Ph law)
 - entitled to death benefits if death occurs during the term of his contract of employment, even if
death is not work-related  death is caused by their own doing

Disability – loss or impairment of a physical or mental function resulting from injury/sickness

Permanent disability – the inability of a worker to perform his job for more than
120 days, regardless of WON he loses the use of any part of his body
Total Disability – disablement of an EE to earn wages in the same kind of work of similar nature that
he was trained for or accustomed to perform, or any kind of work w/c a person of his mentality
and attainments could do. It does not mean absolute helplessness. In disability compensation, it is not
the injury w/c is compensated, but rather it is the incapacity to work resulting in the impairment of
one’s earning capacity

Disability benefits by seamen

- a matter governed not only by medical findings but by law & contract
st
- shall be paid beginning on the 1 day of such disability. If caused by an injury/sickness it shall
not be paid longer than 120 consec days  except where such injury/sickness still requires medical
attendance beyond 120 days but not to exceed 240 days from onset of disability in w/c case
benefit for temporary total disability shall be paid.

In case of differing medical assessment

a.) when a seafarer sustains a work-related illness/injury while on board, his fitness/unfitness to
work shall be determined by the company-designated physician.
b.) If the physician appointed by the seafarer disagrees w/ the company- designated physician ’s
rd
assessment, the opinion of a 3 doctor may be agreed jointly bet the EER and the seafarer to
be the decision final and binding on them

Agencies Given the Duty to promote the welfare & rights of migrant workers:
1. DFA
2. DOLE
3. POEA
4. OWWA – Overseas Workers Welfare Administration – provides social & welfare services including
insurance coverage, legal assistance, placement assistance and remittance services to Filipino overseas
workers. Under RA8042, it shall provide the Filipino migrant worker & his faily assistance in the
enforcement of contractual obligs by agencies, entities and/or their principals;
5. RPM - Re-Placement and Monitoring Center – develops livelihood programs for the returning
workers to reintegrate the returning migrant workers to the Ph society;
6. NLRC – tasked w/ the settlement/adjudication of labor disputes
Art 18: BAN ON DIRECT HIRING

GR: Direct hiring of Filipino workers for overseas EENT is not allowed
 Exceptions:
1. Members of Diplomatic corps;
2. International organizations;
3. Other employers as may be allowed by DOLE; and
4. Name hires – individual workers who are able to secure contracts for overseas EENT on their
own efforts and representations w/o assistance/participation of any agency. Their hiring
nonetheless, shall pass through the POEA for processing purposes
5.
Rationale of the Prohibition
1. To assure the best possible terms & conditions of work to the EE; and
2. To assure the foreign EER that he hires only qualified Filipino workers

Art 19: COMMISSION ON FILIPINO OVERSEAS

CFO – attached to the DFA; replaced the Office of Emigrant Affairs.

- assists in the formulation of policies affecting Filipinos overseas and formulates an integrated
program that promotes the welfare of Filipinos overseas

Art 21. FOREIGN SERVICE ROLE AND PARTICIPATION

- necessary to monitor the status of OFWs in their respective areas of assignment and insure
that they are not exploited or abused by their foreign principal EERS

Art 22. MANDATORY REMITTANE OF FOREIGN EXCHANGE EARNINGS

- All OFWs are required to remit a portion of their foreign exchange earnings ranging from 50% - 80%
depending on the worker’s kind of job, to their families, dependents, and/or beneficiaries.

Seamen/Mariners – 80%
Workers for Filipino Contractors & Construction companies – 70%
Professionals whose EENT contract provide for lodging facilities – 70%
Professionals w/o Board & Lodging – 50%
Domestic and other service workers – 50%

 Exceptions to Mandatory Remittance

1. Fil servicemen working in US military installations;
2. Where the worker’s immediate family members, dependents, or beneficiaries are residing
w/ him abroad;
3. Immigrants and Fil professionals and EEs working w/ UN agencies or specialized bodies
 4.
Effects of Failure to Remit
1. Workers who fail to comply w/ the mandatory remittance reqment shall be suspended/excluded from
the list of eligible workers for overseas EENT. Subsequent violations shall warrant his repatriation.
2. EERS who fail to comply shall be excluded from the overseas EENT program. Private EENT
agencies/entities shall face cancellation or revocation of their licenses or authority to recruit,
w/o prejudice to other liabilities under existing laws and regulations

CH 2: REGULATION OF RECRUITMENT & PLACEMENT ACTIVITIES

Art 25: PRIVATE SECTOR PARTICIPATION IN THE RECRUITMENT & PLACEMENT OF

WORKERS

Private Sectors that can participate

1. Private EENT agencies;
2. Private recruitment agencies;
3. Shipping or manning agencies;
4. Such other persons as may be authorized by the Sec of DOLE; and
5. Construction contractors w/ a duly issued authority to operate private recruitment entities

Qualifications for Participation

1. Citizenship requirement
a. Filipino citizens; or
b. Corporations, partnerships or entities at least 75% of the authorized and voting capital
stock of w/c is owned & controlled by Filipino citizens.
2. Capitalization
a. Private EENT agency for local EENT
i. For single proprietorship or partnership – minimum net worth of 200k pesos
ii. For corporations – a minimum paid up capital of 5ook pesos
b. Private recruitment or manning agency for overseas EENT
i. For single proprietorship or partnership – P2M minimum capital
ii. For corps – P2M minimum paid up capital, Provided, that those w/ existing licenses
shall, w/in 4 yrs from effectivity hereof, increase their capitalization or paid-up
capital, as the case may be, to P2M at the rate of 250K every yr.
3. Those not otherwise disqualified by law or other govt regulations to engage in the recruitment &
placement of workers for overseas EENT

Disqualified from Recruitment & Placement of Workers for Overseas EEnt whether for profit or not

1. Travel agencies & sales agencies of airline companies;

 2. Officers/members of the board of any corp or members in a partnership engaged in the
business of a travel agency;

3. Corps & partnerships, when any of its officers, members of the board or partners, is also an
officer, member of the board or partner of a corp or partnership engaged in the business of a
travel agency (interlocking officers)

4. Persons, partnerships or corps which have derogatory records, such as but not limited to:

a. Those certified to have derogatory record/info by the NBI or by the Anti-illegal

Recruitment Branch of the POEA;
b. Those against whom probable cause or prima facie finding of guilt for illegal recruitment or
other related cases exists;
c. Those convicted of cases and/or crimes involving moral turpitude;

d. Those agencies whose licenses have been previously cancelled or revoked by POEA for
violation of RA 8042, PD 442 as amended and their IRR as well as the Labor Code’s
IRR

e. Officials/EES of the DOLE or other govt agencies directly involved in overseas EENT program
th
and their relatives w/in the 4 degree of consanguinity or affinity; and

f. Those whose License have been previously cancelled o revoked

Art 29: NON-TRANSFERABILITY OF LICENSE AUTHORITY

- It may be used only b the one in whose favor it was issued; hence, it cannot be assigned,
conveyed or transferred to any other person/entity.
- It must be used only in the place stated in the license. Thus, could only undertake recruitment &
placement activities in the region where the license was granted.
- The recruitment & placement activities must be undertaken at their authorized official
addresses.

* Provincial recruitment and/or job fairs may be allowed only when authorized by POEA in writing

* Change of ownership of single proprietorship licensed to engage in overseas EENT shall cause the
automatic revocation of the license.

Art 30: BONDS

The Sec of Labor shall promulgate a schedule of fees for the registration of all applicants for license
or authority.
Art 31. BONDS

All applicants for license/authority shall post such cash and surety bonds as determined by the Sec of
Labor including escrow deposits.

Purposes:
1. To guarantee compliance w/ prescribed recruitment procedures, rules & regulations, and terms &
conditions of EENT; and
2. To ensure prompt & effective recourse against such companies when held liable for
applicants/workers’ claim

Exemption from Garnishment

 Cash bond filed by applicants for license/authority is not subj to garnishment by a
judgment creditor of the agency.
Should the bond/deposit in escrow or any part thereof be garnished, the same should be
replenished by the agency w/in 15 days from notice from the POEA. Failure to replenish the
same w/in the said pd shall cause the suspension of the license
Note: POEA has the power to enforce liability under cash & surety bonds.

Art 32: FEES TO BE PAID BY WORKERS

 The applicant can be charged w/ fees only after he has obtained EENT or has actually
commenced EENT
 Fees paid shall always be covered w/ the approp receipt clearly showing the amount paid.

POEA has the power to:

1. Suspend/cancel the license; and
2. Order the refund/reimbursement of such illegally collected fees

Prohibition on Charging Fees

1. Placement fees cannot be collected from a hired worker until he has signed the EENT contract &
shall be covered by receipts clearly showing the amt paid
2. Manning agencies shall not charge any fee from seafarer-applicants for its recruitment & placement
services. All expenses for hiring seamen shall be shouldered by foreign shipping principals.
3. No other fees/charges, including processing fees shall be imposed against any worker.

Art 34 & Section 6 RA 8042: PROHIBITED PRACTICES:

It shall be unlawful for any indiv, entity, licensee or holder of authority:

1. To charge greater amt than that specified in the schedule of allowable fees (illegal exaction);
2. To furnish any false info in relation to recruitment/EENT (false information);
3. To give any false notice, testimony, etc. or commit any act of misrepresentation to secure
 a license or authority (false statements);
4. To induce or attempt to induce a worker to quit his job in lieu of another offer unless it is
designed to liberate the worker from oppressive terms of EENT (pirating);
5. To influence of attempt to influence any person/entity no to employ any worker who has not applied
for EENT through his agency (influencing not to employ);
6. To engage in the recruitment/placement of jobs harmful to public health, morality or to the dignity
of the PH (harmful jobs);
7. To obstruct or attempt to obstruct inspection by the Labor Sec or his authorized reps
(obstruct inspection);
8. To fail to file reports on the status of EENT, placement, etc. and such other matters as may be
required by the Sec of Labor (failure to comply w/ rules & regulations);
9. To substitute or alter EENT contracts w/o the approval of the Sec of Labor (alteration of
contracts);
10. To become an officer or member of the board of any corp engaged in the mgt of a travel
agency; and
11. To withhold travel docs from applicant workers before departure for unauthorized
monetary considerations (withholding documents).

Art 35: SUSPENSION AND/OR CANCELLATION OF LICENSE OR AUTHORITY

Non License or Non-Holder of Authority – any person/corp/entity w/c has not been issued a valid license
or authority to engage in recruitment & placement by the Sec of Labor, or whose license or authority
has been suspended, revoked or cancelled by the POEA and the Secretary.

Grounds for Revocation of License

1. Incurring an accumulated 3 counts of suspension by an agency based on final and executor orders
w/in the validity period of its license;
2. Violation/s of the conditions of license;
3. Engaging in acts of misrepresentation for the purpose of securing a license or renewal
thereof; and
4. Engaging in the recruitment or placement of workers to jobs harmful to the public health or
morality or to the dignity of the RP

Grounds for Suspension/Cancellation of License

1. The acts prohibited under Art 34;
2. Charging a fee before the worker is employed or in excess of the authorized amt;
3. Doing recruitment in places outside its authorized area;
4. Deploying workers w/o processing through the POEA; and
5. Publishing job announcements w/o POEA’s prior approval

Jurisdiction
The DOLE Sec and the POEA Admin have concurrent jurisdiction to suspend or cancel a license
Liability of Recruitment Agency
 Solidarily liable w/ the foreign principal for unpaid salaries of a worker it recruited. Before
recruiting, the agency is required to submit a doc containing its power to sue and be sued jointly
and solidarily w/ the principal or foreign-based employer for any of the violations of the
recruitment agreement, and the contracts of employment
Note: The recruitment agency may still be sued even if agency agreement bet recruitment agency &
principal is already severed if no notice of the termination was given to the EE

Exception to Liability of Recruitment agency

 When workers themselves insisted for the recruitment agency to send them back to their foreign
EER despite their knowledge of its inability to pay their wages

Contract by Prncipal
 Even if it was the principal of the manning agency who entered into contract w/ the EE, the
manning agent in the PH is jointly & solidarily liable w/ the principal

Suability of Foreign Corps

 A foreign corp that, thru unlicensed agents, recruits workers in the country may be suid
in and found liable by Ph courts

CH 3: MISCELLANEOUS PROVISIONS (as amended by RA 8042)

Illegal Recruitment – any act of (CETCHUP) canvassing, enlisting, transporting, contracting, utilizing, or
procuring workers and includes (CRAP) contract services, referrals, or advertising, promising for
employment abroad, whether for profit or not, when undertaken by a non-licensee or non-holder of
authority; Provided that any such non-licensee or non-holder of authority who in any manner, offers or
promises for a fee employment abroad to 2 or more persons shall be deemed so engaged. Also includes
the act of reprocessing workers through a job order that pertains to nonexistent work, work different
from the actual overseas work, or work w/ a different EER whether registered or not w/ the POEA
 It shall likewise include the commission of the ff prohibited acts whether committed by a non-
licensee or non-holder of authority or a licensee or a holder of authority:
1. Those prohibited practices under Art 34;
2. Failure to actually deploy w/o valid reason as determined by DOLE;

3. Failure to reimburse expenses incurred by the worker in connection w/ his

documentation & processing for purposes of deployment, in cases where the
deployment does not actually take place w/o the worker’s fault; and
4. Recruitment & placement activities of agents or representatives appointed by a licensee,
whose appointments were not previously authorized by the POEA shall likewise
 constitute illegal recruitment.

Elements of Illegal Recruitment

1. The offender is a licensee/non-licensee or holder/non-holder of authority engaged in the
recruitment & placement of workers; and
2. The offender undertakes either any recruitment activities devided under Art 13 (b) or any
prohibited practices in Art 34

Simple Illegal Recruitment – Where a person:

1. undertakes any recruitment activity defined under Art 13(b) or any prohibited practice
enumerated under Arts 34 & 38 of the LC; and
2. does not have a license or authority to lawfully engage in the recruitment & placement of any
workers.

rd
Illegal Recruitment in Large Scale – further requires a 3 element:
3. The offense is committed against 3/more persons, individually or as a group

Illegal Recruitment as Economic Sabotage:

1. When illegal recruitment is committed by a syndicate (when 3/more persons conspire or
confederate w/ one another in carrying out an unlawful or illegal transaction, enterprise or
scheme);
2. When illegal recruitment is committed in a large scale (if committed against 3/more persons
individually or as a group

Consequences of Conviction
1. Automatic revocation of license/authority;
2. Forfeiture of the cash & surety bonds;
3. Conviction for the crime of estafa, if found guilty thereof

Illegal Recruitment vs Estafa

 Illegal recruitment is malum prohibitum,
 whereas estafa is malum in se (criminal intent necessary for conviction)
 a person may be charged & convicted for both

Acts Constituting Estafa

- the accused represented themselves to complainants to have the capacity to send workers abroad
although they did not have any authority or license, enabling them to obtain placement fee

Venue of criminal action arising from Illegal Recruitment

The complainant may, at his option file at the RTC of the province/city:

a.) where the offense was committed; or

b.) where the offended party resides at the time of the commission of the offense

PRESCRIPTIVE PERIOD
IMPRISONMENT FINE
SIMPLE 5 yrs 12-20 yrs P1-2M
ECONOMIC SABOTAGE 20 yrs Life P2-5M

Note: Max penalty if the person illegally recruited is less than 18 y/o or committed by a non-licensee
or non-holder of authority

Absence of receipts evidencing payment, not fatal to prosecution’s case for illegal recruitment – as long
as the witnesses can positively show through their respective testimonies that the accused is the one
involved in prohibited recruitment

Liability of Local EEnt agency – solidarily liable w/ the foreigh principal for unpaid salaries of a
worker recruited. Before recruiting, the agency is required to submit a doc containing its power to
sue and be sued jointly and solidarily w/ the principal or foreign-based EER for any of the
violations of the recruitment agreement and the contracts of EEnt

Liability of Company Engaged in Illegal Recruitment – may be held as principal, together his EER, if it is
shown that he actively & consciously participated in illegal recruitment

Issuance of search warrant/warrant of arrest

 Art 38 is unconstitutional inasmuch as it gives the Sec of Labor the power to issue search or
arrest warrants
 The  exception is in cases of deportation whom the President or the Commissioner of
Immigration may order arrested, following a final roder of deportation
Note: the Sec of Labor may order closure of illegal recruitment establishments because it is only
administrative & regulatory in nature

TITLE 2: EMPLOYMENT OF NON-RESIDENT ALIENS

Alien Employment Permit (AEP) – required for entry into the country for employment purposes and is
issued after determination of the non-availability of a person in the pH who is competent, able and
willing at the time of application to perform the services for w/c the alien is desired
 All foreign nationals who intend to engage in gainful EENT in the PH shall apply for AEP

Employment Permit Required

1. all foreign nationals seeking admission to the PH for the purpose of EENT;
2. all non-resident foreign nationals already working in the PH;
 3. non-resident foreign nationals admitted to the PH on non-working visas and who wish to seek
EENT; and
4. missionaries or religious workers who intend to engage in gainful EENT.
Note: AEP should be secured regardless of the source of compensation and duration of the EENT,
whether the EENT is part-time or temp

An AEP is issued based on the ff:

1. Compliance by the applicant EER or the foreign national w/ the substantive &
documentary requirements;
2. Determination of DOLE Sec that there is no available Filipino national who is competent, able
and willing to do the job for the EER; and
3. Assessment of the DOLE Sec that the EENT of the foreign national will redound to national
benefit
Note: Understudy Training Program is no longer a requirement in the issuance of AEP and the EEr
has now the option to implement transfer of technology

Requisite for EENT of Resident Aliens:

 Immigrants & resident aliens are not required to secure a working permit. They are required to
secure their Alien Employment Registration Cert (AERC)

Exemption from Permit

1. All members of the Diplomatic service and foreign govt officials accredited by and w/ reciprocity
arrangement w/ the Ph govt;
2. Officers and staff of international orgs of w/c the PH is a member, and their legitimate spouses
desiring to work in the PH;
3. Foreign nationals elected as members of Governing Board who do not occupy any other position,
but have only voting rights in the corp;
4. All foreign nationals granted exemption by law;
5. Owners & representatives of foreign nationals whose companies are accredited by the POEA who
come to the PH for a limited period and solely for the purpose of interviewing Filipino applicants
for EENT abroad;
6. Foreign nationals who come to the PH to teach, present and/or conduct research studies in
univs and colleges as visiting, exchange or adjunct professors under formal agreements bet the
univs or colleges in the PH an foreign univs or colleges; or bet the Ph govt and foreign govt;
provided that the exemption is on a reciprocal basis; and
7. Resident foreign nationals.

Grounds for denial of Application of AEP

1. Misrepresentation of facts in the application;
2. Submission of falsified docs;
3. The foreign national has a derogatory record; or
4. Availability of a Fil who is competent, able and willing to the job intended for the alien.
Grounds for suspension of AEP
1. The continued stay of the foreign national my result in damage to the interest of the industry of
the country; and
2. the EENT of the alien is suspended by the EER or by the order of the court

Grounds for revocation of AEP

1. Non-compliance w/ any of the requirement/conditions for w/c the AEP was issued;
2. Misrepresentation of facts in the application;
3. Submission of falsified docs;
4. Meritorious objection or information against the EENT of foreign national as determined by the
Regional Dir;
5. Foreign national has a derogatory record; and
6. EER has terminated the EENT of the foreign national.

Validity of EENT Permit

 1 yr, unless the EENT contract, consultancy services or other modes of engagement provides
otherwise, w/c shall in no case exceed 5yrs
 fine for working w/o or with an expired AEP P10K for every year or a fraction thereof.

Rule on Nationalized Business

GR: Foreigners may NOT be employed in certain nationalized business.

Anti-Dummy Law 2-A prohibits the EENT of aliens in entities engaged in business whose exercise
or enjoyment is reserved only to Fils or to corporations or assocs whose capital should be at least
60% Fil-owned

 Exceptions:
1. Where the Sec of Justice specifically authorizes the EEnt of technical personnel;
2. Aliens who are members of the Board of directors of corps in proportion to their allowable
participation in the capital of such entities; and
3. Enterprises registered under the Omnibus Investment Code in case of technical, supervisory
or advisory positions, but for a limited pd.

Art 41. PROHIBITION AGAINST TRANSFER OF EENT

1. Aliens shall not transfer to another job or change his EER w/o prior approval of the Sec of
Labor;
2. Non-resident aliens shall not take up EENT in violation of the provisions of the Code.
Note: Violations of the abovementioned acts will subj the alien to the punishment in Art 289 & 290
and to deportation after service of sentence