Labor Law Review Lecture Notes – October 25, 2022 Prepared by: JOSE, Lovella Anne J.

Recruitment and Placement (Part II) of the definition contradicts the first part, how
to harmonize this conflict?
Relevant Principles
Answer: Regardless of the number of
 A liaison officer working in a persons dealt with, recruitment and
recruitment company, bearing a job placement are still constituted. The proviso
order and canvassing in a remote merely lays down a rule of evidence that
barangay is engaged in recruitment where a fee is collected in consideration of a
and placement. promise or offer of employment to two (2) or
 The offer of employment need not be more prospective workers, the individual or
categorical. entity dealing with them shall be deemed to
 The employment aspect initiated by a be engaged in the act of recruitment and
person and not by an employee of a placement. The words "shall be deemed"
travel agency does not amount to create that presumption. (People vs. Panis)
engagement in recruitment and
placement. Illegal Recruitment
 Referral letter by a Labor Arbiter
 A person, entity, partnership or
amounts to recruitment and
corporation recruits without a license or
placement.
an authority to recruit.
 Mere suggestion to complainants
where they could apply is equivalent or License
tantamount to referral. (People vs.
Martinez) - It is an authority also given to a person,
 A person referred to an educational entity, corporation or partnership to
institution by a recruitment agency for operate a recruitment agency.
the reason of training and by the - Broader in scope, since recruitment
initiative of the client does not amount violations can arise and disciplinary
to recruitment and placement. Such actions.
employment contracted abroad is mere Authority
consequence after training of the
client. - Issued to liaison officers normally.
 The mere fact that the recruitment - The value of the authority issued to a
agency does not charge any placement person is that the person can go out of
fees will not detract the fact that it still the premises of the recruitment
engaged in recruitment and placement. agency, provided that it explicitly
 All acts under the definition of provides where it can happen.
recruitment and placement must be - More specific in scope, since only
committed towards employment, and disciplinary actions may arise.
not for any other purpose. GR: Only Filipino citizens can engage in
Question: The definition of "recruitment and recruitment and placement. (for single
placement" under Art. 13(b) of the Labor proprietorship)
Code includes promising or advertising for XPN: Foreigners can come in the picture in
employment, locally or abroad, whether for juridical entities such as partnership or
profit or not, provided, that any person or corporations, provided that the 75%
entity which, in any manner, offers or capitalization requirement is owned by
promises for a fee, employment to two or Filipinos.
more persons shall be deemed engaged in
recruitment and placement. The second part

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Labor Law Review Lecture Notes – October 25, 2022 Prepared by: JOSE, Lovella Anne J.

NOTE: Foreigners cannot be the head or Regulatory and Visitorial Functions in

manager of the recruitment and placement Recruitment and Placement both Local
company. Otherwise, it will be considered and Overseas
illegal recruitment.
Local Recruitment – exercised by the
Question: An Arab national who has a share Secretary of Labor
in a recruitment agency went abroad to look
Art. 36 of the Labor Code
for a head or manager of such agency. Does
the action amounts to prohibited act under
Regulatory Power. – The Secretary of
the law?
Labor shall have the power to restrict and
Answer: Yes, the law provides that it is regulate the recruitment and placement
prohibited to allow a non-Filipino citizen to activities of all agencies within the
head or manage a licensed coverage of this Title and is hereby
recruitment/manning agency.
authorized to issue orders and promulgate
NOTE: Family drivers are not considered rules and regulations to carry out the
domestic workers. Family drivers shall be objectives and implement the provisions of
subject on the provisions of the New Civil this Title.
Code or any related laws, rules and
regulations. (Atienza vs. Saluta, GR 233413,
June 17, 2019) [company drivers are not
Art. 37 of the Labor Code
included]

RA 10361 intentionally excluded family Visitorial Power. – The Secretary of Labor

drivers. or his duly authorized representatives
NOTE: The penalties imposed under DO 216- may, at any time, inspect the premises,
20 and DO 217-20 are administrative books of accounts and records of any
penalties. It does not bar the institution of person or entity covered by this Title,
illegal recruitment complaints and will not be require it to submit reports regularly on
tantamount to double jeopardy. prescribed forms, and act on violation of
Question: Who has jurisdiction over any provisions of this Title.
recruitment violations in local recruitment and
placement?
Art. 128 of the Labor Code – Visitorial and
Answer: The Regional Director of the
Enforcement Power
Department of Labor and Employment,
particularly the Regional Office which issued - Labor standards violations and
the license of such recruitment and placement occupational health violations.
agency. - The agency is still liable, but it is their
compliance with the labor standards or
Question: Who has jurisdiction over
occupational health and safety with
recruitment violations in overseas
respect to its own employees.
recruitment and placement?

Answer: POEA pursuant to Joint Circular No.

01, s. 2022. There is no administrator of
POEA, it is now undersecretary.

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Labor Law Review Lecture Notes – October 25, 2022 Prepared by: JOSE, Lovella Anne J.

Direct Hiring Exceptions to the Ban on Direct Hiring:

- A foreign or local employer secures the 1. Members of the diplomatic corps;

services of an employee without an 2. Members of the international
intervention of a local recruitment and organizations immune from suit;
placement agency or POEA. 3. Such other that may be allowed by the
Secretary of Labor;
Art. 18 of the Labor Code 4. Heads of State and Government
Officials with the rank of at least deputy
Ban on Direct-Hiring. – No employer may
minister; or
hire a Filipino worker for overseas
5. Other employers as may be allowed by
employment except through the Boards the Administration, such as:
and entities authorized by the Secretary of 6. Those employers allowed by Philippine
Labor. Direct-hiring by members of the Overseas Labor Office (POLO);
diplomatic corps, international 7. Professionals and skilled workers with
organizations and such other employers as duly executed verified/authenticated
may be allowed by the Secretary of Labor contracts containing terms and
is exempted from this provision. conditions over and above the
standards set by the POEA;
8. Workers hired by a relative/family
member who is a permanent resident
Question: Why is Direct Hiring prohibited?
of the host country, except domestic
Answer: It exposes the recruited to workers. (POEA MC No. 8, s. 2018)
vulnerabilities such as exploitation.
Jurisdiction of POEA
In case of foreign employment, the recruited
- Over recruitment violations during pre-
becomes an undocumented OFW to which:
employment, employment and post-
1. Not subject to protection, not covered by a employment.
life or health insurance; - Recruitment agency and the foreign
principal may commit recruitment
2. Not covered by the visitorial and
violations or the employee.
enforcement power.
- Disciplinary action cases.
Undocumented OFW if the following - Money claims are not covered since it
requirements are absent: is under the jurisdiction of Labor Arbiter
under Sec. 10 of RA 8042.
1. Holding a Philippine passport issued
regularly; NOTE: Recruitment violations and
2. Holding a working visa or some other disciplinary actions prescribes after 3
kind of visa; years from the accrual of the recruitment
3. Covered by POEA approved contract. violation or for the cause of the disciplinary
action.
Direct Hire Name Hire
Illegal Legal Two Concepts of Illegal Recruitment
[Not absolutely
1. Those committed by non-licensees or
prohibited]
non-holders of authorities;
2. Those committed by licensees or
holders of authorities.

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Labor Law Review Lecture Notes – October 25, 2022 Prepared by: JOSE, Lovella Anne J.

NOTE: RA 8042 expounded the concept of Penalties for Local Illegal Recruitment:
illegal recruitment by including licensees or Art. 39 of the Labor Code
holders or authorities can be guilty of illegal
Penalties. –
recruitment by engaging in the prohibited
acts. (a) The penalty of life imprisonment and a fine
of One Hundred Thousand Pesos
Most common forms of illegal
(P100,000.00) shall be imposed if illegal
recruitment:
recruitment constitutes economic sabotage as
1. Illegal recruitment committed by a defined herein;
non-licensee or non-holder of
(b) Any licensee or holder of authority found
authority;
violating or causing another to violate any
2. Failure to deploy without any fault on
provision of this Title or its implementing rules
the part of the applicant;
and regulations shall, upon conviction
3. Failure to reimburse placement fee in
thereof, suffer the penalty of imprisonment of
case of non-deployment.
not less than two years nor more than five
Elements of the First Concept of Illegal years or a fine of not less than P10,000 nor
Recruitment: more than P50,000, or both such
imprisonment and fine, at the discretion of
1. No license or no authority to recruit;
the court;
2. Commission of any of the act of
recruitment and placement mentioned (c) Any person who is neither a licensee nor a
in Art. 13 of the Labor Code. holder of authority under this Title found
violating any provision thereof or its
Elements of the Second Concept of
implementing rules and regulations shall,
Illegal Recruitment:
upon conviction thereof, suffer the penalty of
1. With license or authority to recruit; imprisonment of not less than four years nor
2. Commission of the prohibited acts more than eight years or a fine of not less
enumerated in the Labor Code or RA than P20,000 nor more than P100,000 or both
8042. such imprisonment and fine, at the discretion
of the court;
Two Kinds of Illegal Recruitment
(d) If the offender is a corporation,
1. Simple Illegal Recruitment partnership, association or entity, the penalty
2. Qualified Illegal Recruitment/Economic shall be imposed upon the officer or officers
Sabotage of the corporation, partnership, association or
a. By Syndicate [3 or more persons entity responsible for violation; and if such
conspiring to commit] officer is an alien, he shall, in addition to the
b. By Large-scale [3 or more penalties herein prescribed, be deported
persons recruited] without further proceedings;
Simple Illegal Recruitment (e) In every case, conviction shall cause and
Elements: carry the automatic revocation of the license
or authority and all the permits and privileges
1. No valid license or authority; granted to such person or entity under this
2. With license or with authority; Title, and the forfeiture of the cash and surety
3. The offender undertakes any of the bonds in favor of the Overseas Employment
recruitment activity under the law [RA Development Board or the National Seamen
8042, as amended] Board, as the case may be, both of which are

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Labor Law Review Lecture Notes – October 25, 2022 Prepared by: JOSE, Lovella Anne J.

authorized to use the same exclusively to Prescriptive Period

promote their objectives.
Local Illegal Recruitment and Placement – 3
Penalties for Overseas Illegal years (Art. 305 of the Labor Code)
Recruitment: Section 7 of RA 8042, as
Simple Illegal Recruitment – 5 years (RA
amended
8042)
"(a) Any person found guilty of illegal
Qualified Illegal Recruitment – 20 years (RA
recruitment shall suffer the penalty of
8042)
imprisonment of not less than twelve (12)
years and one (1) day but not more than People vs. Manalang
twenty (20) years and a fine of not less than
One million pesos (P1,000,000.00) nor more  RA 8042 broadened the concept of
than Two million pesos (P2,000,000.00). illegal recruitment for overseas
employment and increased the
"(b) The penalty of life imprisonment and a penalties. Thus, while Article 38 of the
fine of not less than Two million pesos Labor Code limits illegal recruitment to
(P2,000,000.00) nor more than Five million recruitment activities undertaken by
pesos (P5,000,000.00) shall be imposed if non-licensees or non-holders of
illegal recruitment constitutes economic authority, Part II of RA 8042 defines
sabotage as defined therein. and penalizes illegal recruitment for
employment abroad, regardless of
"Provided, however, That the maximum
whether it was undertaken by a non-
penalty shall be imposed if the person illegally
licensee or non-holder of authority or
recruited is less than eighteen (18) years of
by a licensee or holder of authority.
age or committed by a non-licensee or non-
 Illegal recruitment in large scale can
holder of authority.
co-exist with estafa.
"(c) Any person found guilty of any of the  Bad faith and damage are not essential
prohibited acts shall suffer the penalty of in illegal recruitment.
imprisonment of not less than six (6) years
Toston vs. People
and one (1) day but not more than twelve
(12) years and a fine of not less than Five  Toston engaged in recruitment and
hundred thousand pesos (P500,000.00) nor placement when he interviewed the
more than One million pesos complainant.
(P1,000,000.00).  Interview is a component of
recruitment.
"If the offender is an alien, he or she shall, in
 Referral to Runas, and the referral to
addition to the penalties herein prescribed, be
the medical clinic constitutes acts of
deported without further proceedings.
recruitment and placement.
"In every case, conviction shall cause and  It is therefore clear that at the time of
carry the automatic revocation of the license Mary Ann's recruitment in June 2010,
or registration of the recruitment/manning Steadfast's recruitment license had not
agency, lending institutions, training school or yet been cancelled; and Toston's
medical clinic." employment thereat was duly reported
to the POEA.
NOTE: Be careful on the effectivity of the
 The fact that Toston's 2009-2011 stint
laws.
at Steadfast does not appear in
- RA 8042 – June 7, 1995 subsequent POEA record searches
- RA 10022 – March 10, 2010 cannot be held against him. In People

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Labor Law Review Lecture Notes – October 25, 2022 Prepared by: JOSE, Lovella Anne J.

v. Chowdury, this Court acquitted the recruitment is a crime of economic

accused who was found guilty of illegal sabotage which need to be curbed by
recruitment on the basis of a finding the strong arm of the law. It is
that his employment in the subject important, however, to stress that the
recruitment agency was not reported to government's action must be directed
the POEA. to the real offenders, those who
 Toston cannot be faulted for not perpetrate the crime and benefit from
following up on his registration status. it.
Since the obligation to register his
Marajas vs. People
employment fell upon Steadfast,
Toston was justified in relying upon his  Petitioner's denial that she did not
employer to faithfully comply with engage in any recruitment activity
industry regulations. Furthermore, cannot prevail over the positive
there is enough documentation on identification of private complainant of
record to prove that Toston was the former who made representations
employed at Steadfast at the time of on her capability of sending private
Mary Ann's recruitment, and that complainant to Beijing, China for
Steadfast reported his employment to employment. The Court has oft
the POEA. pronounced that denial is an inherently
 Toston was merely performing his weak defense which cannot prevail
tasks as a documented employee of a over the positive and credible
validly licensed recruitment agency, testimony of the prosecution witness
under the supervision of the agency's that the accused committed the crime.
general manager, Gutierrez. Thus, he Thus, as between a categorical
cannot be held liable for illegal testimony which has the ring of truth
recruitment per se. on the one hand, and a mere denial and
alibi on the other, the former is
People vs. Chowdury
generally held to prevail.
 The obligation to register its personnel  Section 3(a) of R.A. No. 9208 defines
with the POEA belongs to the officers of "Trafficking in Persons" as the
the agency. A mere employee of the "recruitment, transportation, transfer
agency cannot be expected to know the or harboring, or receipt of persons with
legal requirements for its operation. or without the victim's consent or
The evidence at hand shows that knowledge, within or across national
accused-appellant carried out his borders by means of threat or use of
duties as interviewer of Craftrade force, or other forms of coercion,
believing that the agency was duly abduction, fraud, deception, abuse of
licensed by the POEA and he, in turn, power or of position, taking advantage
was duly authorized by his agency to of the vulnerability of the person, or,
deal with the applicants in its behalf. the giving or receiving of payments or
 This is not to say that private benefits to achieve the consent of a
complainants are left with no remedy person having control over another
for the wrong committed against them. person for the purpose of exploitation
The Department of Justice may still file which includes at a minimum, the
a complaint against the officers having exploitation or the prostitution of
control, management or direction of others or other forms of sexual
the business of Craftrade Overseas exploitation, forced labor or services,
Developers (Craftrade), so long as the slavery, servitude or the removal or
offense has not yet prescribed. Illegal sale of organs." Furthermore, the same
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Labor Law Review Lecture Notes – October 25, 2022 Prepared by: JOSE, Lovella Anne J.

provision provides that "[t]he of DOLE or POEA. (Absence of proper

recruitment, transportation, transfer, job order)
harboring or receipt of a child for the 5. Recruitment can only take place when
purpose of exploitation shall be there is a valid job order accredited by
considered as 'trafficking in persons' the POEA. A valid job order in favor of
even if it does not involve any of the one agency can later on be transferred
means set forth in the preceding to another agency with new process of
paragraph." The crime of "Trafficking in accreditation.
Persons" becomes qualified when, 6. The mere fact that the one who issued
among others, the trafficked person is the certificate is not present in the
a child. court to testify will not affect the
probative weight of the such evidence
Jurisprudence on Illegal Recruitment
pursuant to presumption of regularity
1. Sec. 6[m] of RA 8042 criminalizes the of performance of official function.
failure to reimburse documentation and (People vs. David)
processing expenses incurred by 7. Actual receipt of a fee is not an element
applicant in case of non-deployment. of illegal recruitment. (People vs.
(there must be demand and no fault on Ballesteros)
the applicant) 8. Good faith and merely following orders
2. In illegal recruitment, mere failure to are not viable defenses in a charge of
present written receipt is not fatal to illegal recruitment. (People vs.
the prosecution. Provided that Valenciano)
payment can be proved by clear and 9. Money is immaterial in a prosecution of
convincing testimonies of credible a complaint of illegal recruitment.
witnesses. The duty to issue the official
Trafficking in Illegal
receipts is on the recruitment agency,
Persons Recruitment
hence non-issuance should not be
May or may not Does not involve
taken against the claimants. (People involve coercion, coercion but uses
vs. Espiritu, et.al) fraud, deception, more of deception,
3. A person who is charged of illegal abuse of promises and fraud.
recruitment can also be charged of vulnerability, etc.
estafa. The offense of illegal Characterized by Facilitates the entry
recruitment is malum prohibitum, subsequent from one country or
estafa is malum in se. Acquittal in exploitation after the another through an
illegal recruitment case does not mean illegal entry of one authorized or
acquittal in estafa and vice versa. person from one unauthorized or
Conviction in illegal recruitment does country to another. even licensed or
not mean conviction in estafa. (People non-licensed
vs. Sison) agency.
4. Sec. 6(L) of RA 8042 or failure to Presence of Recruitment without
actually deploy the worker without a exploitation or that a license is
valid reason as determined by DOLE the recruitment is immediately
requires special evidence. It requires facilitated for the punishable, no need
purpose of to prove
an independent evidence from DOLE or
exploitation. exploitation.
POEA. It is a certification that
deployment is possible, and that there Human rights issue. International
migration concern.
is no reason why complainant cannot
be deployed. It is issued by an Officer

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