RECRUITMENT & PLACEMENT OF WORKERS
RECRUITMENT & PLACEMENT
Article 13 (b) of the Labor Code defines
recruitment and placement as any act of
canvassing, enlisting, contracting,
transporting, utilizing, hiring or procuring
workers, and includes referrals, contact
services, promising or adverstising for
employment, locally or abroad, whether for
profit or not; provided, that any person or entity
which offers or promises for a fee employment
to two or more persons shall be deemed
engaged in recruitment & placement.
Allan was charged with illegal recruitment in that
he promised employment in Saudi Arabia &
charged fees & expenses from an individual.
He moved to quash the information on the
ground that under the provision of the Labor
Code, there would be illegal recruitment only
whenever 2 or more persons are promised or
offered any employment for a fee.
Is Allan correct or not?
Answer
Allan is wrong. The number of persons dealt
with is not an essential ingredient of the act of
recruitment & placement of workers. Any of the
acts mentioned in the Article 13 of the LC will
constitute recruitment & placement even if only
1 prospective worker is involved. The proviso
merely lays down a rule of evidence that where
a fee is collected in consideration of a promise
or offer of employment to 2 or more persons, the
individual or entity is deemed engaged in the act
of recruitment & placement.
Articles 16 & 25
In case of domestic recruitment, the general
rule is that no person or entity other than the
public employment offices shall engage in the
recruitment & placement of workers. However,
the private employment sector may participate
in the recruiment & placement of local workers
under such guidelines, rules & regulations as
may be issued by the Secretary of Labor.
Public Employment Service Office
• Carries out full employment and equality of employment
opportunities for all.
• Strengthens and expands the existing employment facilitation
service machinery of the government particularly at the local
levels by establishing all capital towns of provinces, key cities,
and other strategic areas a PESO, which shall be community-
based and maintained largely by LGUs and a number of NGOs
or community-based organizations (CBOs) and state
universities and colleges (SUCs).
• The PESOs shall be linked to the regional offices of the
Department of Labor and Employment (DOLE) for coordination
and technical supervision, and to the DOLE central office, to
constitute the national employment service network.
Regulation of Recruitment Activities
in the PRIVATE SECTOR
Only individuals & entities who have been issued
the appropriate AUTHORITY or LICENSE can
engage in or undertake recruitment and
placement.
Authority – means a document issued by the
SOLE authorizing a person or association to
engage in recruitment & placement activities as a
private recruitment entity.
License – document issued to operate a private
employment agency.
There is a ban on DIRECT HIRES. This means
that no foreign employer, principal or
contracting partner may directly hire a Filipino
worker for overseas employment except
through the POEA or through agencies
authorized by DOLE. (Article 18)
Exception: Direct hiring by members of the
diplomatic organizations & international
organizations.
Definition of terms
Contract worker – is any person working or who
worked overseas under a valid employment contract.
Name hire – is a worker who is able to secure
employment on his own w/out the assistance of any
agency.
Manning Agency – is any person, partnership or
corporation duly licensed by the Secretary to recruit
seafarers for vessels plying international water &
maritime activities.
Placement fee- the amount charged by a private
employment agency from a worker for its services in
securing employment.
Definition of terms
Service Fee – is the amount charged by a licensee
from its foreign employer principal as payment for
actual services rendered in relation to the recruitment
& employment of workers for the said employer
principal.
Overseas employment – means employment of
workers outside the Philippines.
Valid employment contract – written agreement
entered into between the ER & the local agency & the
EE approved by the POEA.
Principal – the foreign employer hiring Filipino
workers through an agency.
Philippine Overseas Employment
Adminstartion (POEA)
The POEA is the main government agency that
carries out the promotion and development of
overseas employment for Filipino workers.
It is a quasi-judicial body with authority to
adjudicate disputes arising from the employment
of OFWs.
Handles recruitment violations, ER-EE cases
arising out of overseas contracts; illegal
recruitments cases, disciplinary actions against
OFWs.
QUALIFICATIONS FOR PARTICIPATION IN
OVERSEAS RECRUITMENT
1. Citizenship – Filipino Citizen or at least 75% of
the authorized and voting capital stock is owned
& controlled by Filipino citizens; (Article 27)
2. Capitalization – minimum capitalization of P2M
in case of single proprietorship or partnership or
a minimum paid capital of P2 in case of a
corporation; (Article 28)
3.Not disqualfied by law to engage in the
recruitment of workers for overseas
employment.
Not Qualified to Engage in Overseas
Recruitment & Placement
1) Travel agencies and sales agencies of airline
companies; (Article 26)
2)Officers & members of Board of any corporation
engaged in the business of travel agency;
3)Corporations & partnerships, when any of its
officers, members of the board or partner is also
an officer, member or partner of a corporation or
partnership engaged in the business of a travel
agency;
4)Persons, partnership or corporations with
deragatory records such as but not limited to
overcharging of placement or documentation
fees, false documentation, illegal recruitment,
swindling or estafa or those convicted of crimes
involving moral turpitude;
5)Persons employed in DOLE or in other
government offices directly involved in the
overseas employment program & their relatives
within the 4th degree of consanguinity or affinity;
6)Persons, partners, officers and directors of
corporations whose license has been previously
canceled or revoked for violation of the LC.
MINIMUM STANDARDS FOR
OVERSEAS EMPLOYMENT
a) Guaranteed wages for regular working hours & overtime pay
for services rendered in excess of the basic working hours in
accordance with the standards established by the POEA;
b) Free transporation from point of hire to site of employment &
return
c) Free emergency medical & dental treatment & facitlities;
d) Just causes for the termination of contract;
e) Workmen's compensation benefits & war hazard protection;
f) Repatriation of worker's remain & properties in case of death to
the point of hire, or if this is not possible under the
circumstances, the proper disposition thereof, upon prior
arrangement with the worker's next-of-kin and the nearest
Philippine Embassy or Consulate through the Office of the
Labor Attache;
g) Assistance on remittance of worker's salaries, allowance or
allotments to his beneficiaries; and
h) Free & adequate board & lodging facitlities or compensatory
food allowance at prevaling cost of the living standards at the
job site.
May a foreign based employer or principal hire a
Filipino worker for overseas employment without the
intervention if the POEA?
No. There is a ban on direct hiring.
Reason?
A Filipino worker hired directly by a foreign employer
without government intervention may not be assured
of the best possible terms of employment. The
intervention from the government is necessary to
protect him from abuse & exploitation.
Liability of an Overseas
Employment Agency
A person licensed or authorized to recruit is
JOINTLY & SEVERALLY LIABLE with the
principal or foreign based employer for any
violations of recruitment agreement & contracts
of employment.
In case of termination of overseas employment
without just, valid or authorizd cause as defined
by law or contract, the worker shall be entitled
to the full reimbursement of his placement fee
with interest at 12% per annum, plus his
salaries for the unexpired portion of his
employment contract.
MANDATORY REMITTANCE
(Article 22)
a) Seaman – 80% of the basic salary
b) OFW contractors, construction companies –
70%
c)Doctors, engineers, teachers, nurses & other
professional workers whose employment
contracts provide for free board & lodging –
70%
d) All other professionals (NO B&L) – 50%
e) Domestic helpers – 50%
f) All other workers - 50%
Meaning
The amount or portion of the basic salary of
overseas Filipino workers (OFW) required under
existing laws and regulations to be remitted by the
workers to their beneficiaries in the Philippines.
Purpose
1. To boost the Philippine foreign exchange
reserves.
2.It is the policy of the State to protect the welfare
of families, dependents and beneficiaries of
Filipino workers abroad.
3.To ensure that the foreign exchange earnings of
these workers are remitted and sold for pesos to
authorized banks in the Philippines, in line with
the country's economic development program.
Proof of Compliance
a) Confirmed bank remittance form;
b) Duly authenticated certification from employer
tht remittance has been effected;
c)Bank Certification or credit payment advice
evidencing sale for pesos to Philippine banking
system;
d)Receipt of Postal Money Order;
Effect: Failure to remit
WORKERS who fail to remit to comply with the
mandatory remittance requirements shall be
suspended or excluded from the list of eligible
workers for overseas employment. Subsequent
violations will warrant his repatriation from the job
site.
EMPLOYER who fail to comply shall be excluded
from the overseas employment program
PRIVATE EMPLOYMENT AGENCY (RECRUITER)
shall face cancellation or reveocation of license.
EXPN: to mandatory remittance
a) Where the worker's immediate family members,
dependents, or beneficiaries are residing with
him abroad;
b)Filipino servicemen working in U.S. Military
installations;
c)Immigrants and Filipino professionals and
employees working with the United Nations.
Duration of a license to recruit – period of 2
years from the date of issuance unless soooner
canceled, revoked or suspended.
Subject to renewal
The license or authority to recruit is not
transferrable. (Article 29)
Change of owership of the business shall cause
automatic revocation of the license.
Article 31- Bonds
All applicants for license & authority shall post such
cash bonds as determined by the Secretary of Labor.
Purpose? To guarantee compliance with prescribed
recruitment procedures, rules, and regulations and
terms & conditions of employment; to secure all valid
& legal claims arising from the violation of the use of
the license.
Note: Overseas recruiters are subject to more
stringent requirements because of the special risks to
which OFWs are subjected by their foreign
employers.
Article 32 of the LC provides that the worker
shall not be charged any placement fee by the
employment agency until the former has
obtained employment through the latter's effort
or has actually commenced employment.
Local Employment & Placement – transportation
fee
Overseas Recruitment & Placement –
placement fees (shall be covered by a receipt).
ILLEGAL RECRUITMENT – when a person
undertakes any recruiting activity defined under
Article 1 of the LC without a license or authority
to do so or commits any prohibited practice
under Article 34 whether the person or entity
has a license or not.
Criminal offense
ARTICLE 34- PROHIBITED PRACTICES
1. To charge or accept, directly or indirectly any amount
greater than that specified in the schedule of allowable
fees prescribed by the SOLE or make a worker pay any
amount greater than actually received by him as a loan
or advance;
2. To furnish or publish any false notice or information or
document in relation to recruitment or employent;
3. To induce or attempt to induce a worker already
employed to quit his employment in order to offer him to
another unless the transfer is designed to liberate a
worker from oppressive terms & conditions of
employment;
4.To influence or attempt to influence any person or
entity not to employ any worker who ha not applied for
employment through agency;
5. To engage in the recruitment & placement of workers
in jobs harmful to public health or morality or to the
dignity of the RP;
6. To substitute or alter employment contracts approved
by the DOLE from the time of actual signing without
the approval of the DOLE;
7. To withold travel documents from applicant workers
before departure for monetary consideration other than
those authorized by the Code.
Note:
Substitution or alteration of employment contracts
without approval of the approval of the Secretary
of Labor & Employment (SOLE) is prohibited.
However, there is no prohibition against
stipulating in a contract more benefits to the
employee than those required by law. Thus, a
supplementary contract entered into by the OFW
& the prinicipal, giving greater benefits, although
not submitted for approval, is valid & enforceable.
(Seagull Martime vs. Blatongan, G.R. No. 82252, Feb. 28, 1989)
Under Articles 38 & 39 of the LC illegal
recruitment when committed by a syndicate or
in large scale is considered an offense involving
economic sabotage and penalized with life
imprisonment.
It is deemed committed by a syndicate if carried
out by a group of 3 or more persons
conspiring/confederating with one another in
carrying out any lawful or illegal transaction,
enterprise.
It is deemed committed in large scale if
committed against 3 or more persons.
Penalties – read Article 39
Gio & his wife Pia conviced F & her sister S, that for a
fee they could be employed in Italy. The father of F &
S paid P70,000 to Gio & Pia. But F & S were never
able to leave for Italy. Gio & Pia were also able to
persuade A that they could find work for her in HK.
They were able to get P25,000 from her but nothing
happened. Gio & Pia do not have any license or
authority to recruit.
a) May Gio & Pia be charged & convicted of large-scale
illegal recruitment?
b) May they also be charged & convicted of estafa?
a) Yes. They did not have the license or authority
to recruit & yet recruited at least 3 persons.
b)Yes. Convictions for illegal recruitment does not
preclude punishment for the other crimes
committed in the process.
SEATWORK
(1) A paper manufacturing company in Cainta,
Rizal would like to know if it has to obtain a
license or authority before it can recruit factory
workers for its plant. As an HR student, what
would be your advice?
(2) Ester Chaves, an entertainer, signed a
standard employment contract providing for a
monthly compensation of US1,500. The
contract was approved by the POEA.
Subsequently, the Japanese employer issued
another contract providing the her salary will be
adjusted to $750. Is the agreement valid?
(3) The Super Travel Agency advertises for young
women between ages 18 to 21 to work as domestic
helpers in HK. Many women, including those who are
presently employed, apply. They are told to leave their
employment for better opportunities await them in HK.
Through connections of the travel agency in POEA &
airline companies, 5 young women resigned as
teachers & are able to leave for HK. They were
however brought to prostitution houses. Did the travel
agency commit any unlawful acts?
(4)Anna, a Filipina, with Bachelor of Science in
Education degree, was recruited by a local private
employment agency with contracts abroad for a job of
tutoring in exclusive private schools in Canada. Upon
arrival in Canada, she was given work as a housemaid.
She could not leave her employment because her
recruiter told her that her transporation fare was
advanced by the employer not to mention her recruiter
is entitled to a % of her pay.
What violations were committed by the recruitment
ageny?
Is Anna under obligation to pay her ER the
transporation expenses?
(5) Proctor & Gamble is currently expanding. As a
result they are putting branches outside the
Philippines. They would like to know if they can
recruit office personnel, for its new branches.
Your opinion was sought as to whether or not a
license is necessary. As the HR Manager of
P&G, what would you advice the board?
