I'm Giancarlo Enrico S. Pozon, a Wushu instructor, investor and Barrister... That's right, Barrister; I graduated from law school and took the Bar Exams, now I'm waiting for the results. I created this blog to make Philippine Law easy to understand for the average person. It's all about free legal advice. There are many law blogs. But the problem is that many of them are written for lawyers and law students. They use words that can't be understood by ordinary people.
Many lawyers, judges and law students consider themselves as superior to most human beings because of their knowledge of the law. It bothers me since the law is supposed to serve society. Since the law is meant to serve society as a whole, it is important that is must be understood by everybody.
This does not mean that we should all become lawyers. It means that although law is a highly specialized profession, the first duty of everybody in this profession is to make the law understandable to all; that's why all these articles are free legal advice.
Like I said, this blog is about law -but it's for the ordinary people, not the lawyers. It's for the ordinary folk so they will know what is good and bad for them, and that making them aware of the law will help us all improve society as a whole. This is free legal advice for everybody!
The indicators of illegal recruitment in the Labor Code were modified by RA 8042 and further modified by RA 10022. The list below contains the acts which indicate that illegal recruitment is being committed.
1. Directly or indirectly charging or accepting any amount greater than the ones prescribed in the DOLE schedule of fees or making a worker pay or acknowledge an amount given to him as a loan or advance.
2.) Furnishing or publishing false notices, documentation or information related to employment or recruitment.
3.) Giving false notices, testimony, information or document or committing acts of misrepresentation in order to get a license or authority under the Labor Code or for documenting hired workers through a job order pertaining to non-existent work, work that's different from the actual overseas work or work with a different employer whether or not registered with the POEA.
4.) Inducing a worker who is already employed to quit his job unless the change is done to free that worker from oppressive working conditions and terms.
5.) Influencing any person or entity not to hire a worker who hasn't applied through the recruiter's agency or who has formed, joined a labor union or worker's organization.
6.) Engaging in the recruitment or placement of workers in jobs harmful to public health or morals or embarrassing to the Philippine government.
7. Failing to submit reports on employment status, placement vacancies, remittance of foreign exchange earnings, separation from jobs, departures and other matters or information required by the DOLE secretary.
8.) Substituting or altering employment contracts already approved and verified by the DOLE from the time of actual signing to to expiration without the approval of the DOLE and to the worker's prejudice.
9.) For an officer or agent of a recruitment/placement agency to become a board member or officer of a travel agency or to directly or indirectly manage a travel agency.
10.) Withholding or denying travel documents from applicant workers before departure for monetary/financial consideration or for reasons other than those allowed by the Labor Code and its implementing rules and regulations.
11.) Failing to actually deploy a contracted worker without a valid reason as determined by the DOLE.
12.) Failure to reimburse expenses the worker incurred in connection with his documentation and processing for deployment purposes in case deployment doesn't actually take place without the worker's fault.
13.) Allowing a person who isn't a Filipino citizen to head or manage a recruitment/manning agency.
14.) Granting a loan to an OFW with interest higher than 8%, which will be used for paying legal and allowable placement fees and making the OFW issue postdated checks, either personally of through a guarantor/accommodation party, in relation to the loan.
15.) Imposing an compulsory and exclusive agreement where and OFW should obtain a loan only from specifically designated persons or institutions.
16.) Refusing to condone or renegotiate a loan incurred by an OFW after the OFW's employment was permanently terminated prematurely without his fault.
17.) Imposing a compulsory and exclusive arrangement where an OFW should undergo medical examinations only from specifically designated persons, clinics or institutions except in case of a seafarer whose medical examination is paid for by the principal/shipowner.
18.) Imposing a compulsory and exclusive requirement where an OFW should undergo training, seminar, or schooling only from specifically designated institutions, persons or entities except for recommendatory training mandated and paid for by principal/shipowners.
19.)For a suspended recruitment/manning agency to engage in any kind of recruitment activity including the processing of pending workers' applications
20.) For a recruitment agency or foreign principal/employer to pass on an OFW or deduct the cost of insurance fees, premiums of other insurance-related charges from the OFW's salary.
Illegal recruitment doesn't necessarily mean that the recruiter is illegal. Even legal recruitment agencies can commit illegal recruitment. Furthermore, illegal recruitment can be considered as economic sabotage in any of the following circumstances:
1.) If committed by a syndicate -committed by at least 3 people
2.) Committed in large scale -committed against 3 victims
Penalties for Illegal Recruitment
1.) 12 years and 1 day to 20 years and a fine of Php1-2M for illegal recruitment
2.) Life imprisonment and a fine of Php2-5M for economic sabotage. And if the victim is less than 17 years old or the recruiter isn't legal the maximum penalty is imposed.
3.) 6 years and 1 day to 12 years and a fine of Php500,000-1M for any of the acts of illegal recruitment
Note also: If the offender is a foreigner, he will be deported after serving sentence and without deportation proceedings. In all cases, the license and authority of the agency will be revoked -as well as those of the schools, clinics and institutions involved.
A person convicted of illegal recruitment can also be convicted of estafa if the prosecution can prove the presence of estafa's elements.
6.) Engaging in the recruitment or placement of workers in jobs harmful to public health or morals or embarrassing to the Philippine government.
7. Failing to submit reports on employment status, placement vacancies, remittance of foreign exchange earnings, separation from jobs, departures and other matters or information required by the DOLE secretary.
8.) Substituting or altering employment contracts already approved and verified by the DOLE from the time of actual signing to to expiration without the approval of the DOLE and to the worker's prejudice.
9.) For an officer or agent of a recruitment/placement agency to become a board member or officer of a travel agency or to directly or indirectly manage a travel agency.
10.) Withholding or denying travel documents from applicant workers before departure for monetary/financial consideration or for reasons other than those allowed by the Labor Code and its implementing rules and regulations.
11.) Failing to actually deploy a contracted worker without a valid reason as determined by the DOLE.
12.) Failure to reimburse expenses the worker incurred in connection with his documentation and processing for deployment purposes in case deployment doesn't actually take place without the worker's fault.
13.) Allowing a person who isn't a Filipino citizen to head or manage a recruitment/manning agency.
14.) Granting a loan to an OFW with interest higher than 8%, which will be used for paying legal and allowable placement fees and making the OFW issue postdated checks, either personally of through a guarantor/accommodation party, in relation to the loan.
15.) Imposing an compulsory and exclusive agreement where and OFW should obtain a loan only from specifically designated persons or institutions.
16.) Refusing to condone or renegotiate a loan incurred by an OFW after the OFW's employment was permanently terminated prematurely without his fault.
17.) Imposing a compulsory and exclusive arrangement where an OFW should undergo medical examinations only from specifically designated persons, clinics or institutions except in case of a seafarer whose medical examination is paid for by the principal/shipowner.
18.) Imposing a compulsory and exclusive requirement where an OFW should undergo training, seminar, or schooling only from specifically designated institutions, persons or entities except for recommendatory training mandated and paid for by principal/shipowners.
19.)For a suspended recruitment/manning agency to engage in any kind of recruitment activity including the processing of pending workers' applications
20.) For a recruitment agency or foreign principal/employer to pass on an OFW or deduct the cost of insurance fees, premiums of other insurance-related charges from the OFW's salary.
Illegal recruitment doesn't necessarily mean that the recruiter is illegal. Even legal recruitment agencies can commit illegal recruitment. Furthermore, illegal recruitment can be considered as economic sabotage in any of the following circumstances:
1.) If committed by a syndicate -committed by at least 3 people
2.) Committed in large scale -committed against 3 victims
Penalties for Illegal Recruitment
1.) 12 years and 1 day to 20 years and a fine of Php1-2M for illegal recruitment
2.) Life imprisonment and a fine of Php2-5M for economic sabotage. And if the victim is less than 17 years old or the recruiter isn't legal the maximum penalty is imposed.
3.) 6 years and 1 day to 12 years and a fine of Php500,000-1M for any of the acts of illegal recruitment
Note also: If the offender is a foreigner, he will be deported after serving sentence and without deportation proceedings. In all cases, the license and authority of the agency will be revoked -as well as those of the schools, clinics and institutions involved.
A person convicted of illegal recruitment can also be convicted of estafa if the prosecution can prove the presence of estafa's elements.
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