STANDARDS 2 The significance only pertains to the rule

of evidence. Because if an entity or

1) Differentiate workers from employees. person or agency offers or promises for
a fee employment to two or more
A worker refers to self-employed people persons, there is a presumption on his
& those working in the service & under or her part to have engaged in the
the control of another, regardless of recruitment and placement of workers.
rank, title, or nature of work. While The burden of evidence is shifted to that
employee a salaried person working for person or to that entity or agency to
another who controls or supervises the prove otherwise. The accused must give
means, manner or method of doing the the complainant the distinct impression
work. that she/he had the ability to send the
complainant abroad for such work. Such
2) Define recruitment and placement of that the complainant was convinced to
workers. part with their money in order to be so
employed. Thus, by merely procuring a
“Recruitment and placement” refers to passport, airline ticket or a foreign visa
any act of canvassing, enlisting, for another individual, the court can
contracting, transporting, utilizing, hiring hardly qualify as recruitment activities.
or procuring workers, and includes
referrals, contract services, promising or 5) Is the conduct of preparatory interview
advertising for employment, locally or considered an act of recruitment and
abroad, whether for profit or not: placement of workers?
Provided, That any person or entity
which, in any manner, offers or promises YES
for a fee, employment to two or more <CF SHARP>
persons shall be deemed engaged in The conduct of preparatory interviews is
recruitment and placement. a recruitment activity because the act of
recruitment may be for profit or not.
3) Is it necessary that there are at least
two individuals or persons being 6) Is acceptance of payment one of the
offered an employment for a fee to be elements of recruitment and placement
considered an illegal recruitment and of workers?
placement of workers?
NO
NO “Recruitment and placement” refers to any
The number of persons dealt with is not act of canvassing, enlisting, contracting,
an essential ingredient of the act transporting, utilizing, hiring or procuring
recruitment and placement of workers. workers, and includes referrals, contract
services, promising or advertising for
4) What is the significance of the number employment, locally or abroad, whether
of persons being recruited? for profit or not: Provided, That any person
Presumption or entity which, in any manner, offers or
promises for a fee, employment to two or
 more persons shall be deemed engaged 4. Certificate of medical fitness; and
in recruitment and placement.
5. Certificate of attendance to the required
employment orientation/briefing

7) Differentiate license from authority. 10) PURPOSES of the ban:

“License” means a document issued by the (a) A worker may not be assured of the
Department of Labor authorizing a person or best possible terms and conditions of
entity to operate a private employment employment
agency. While “Authority” means a (b) The employer is protected from hiring
document issued by the Department of unskilled and unqualified Filipino workers
Labor authorizing a person or association to
engage in recruitment and placement (c) Mandatory remittance cannot easily be
activities as a private recruitment entity. evaded

8) Why is there a ban on direct hiring?

What are its exceptions?

No employer may hire a Filipino worker for

11)
overseas employment except through the
Boards and entities authorized by the 12) True or False: As a general rule, direct
Secretary of Labor. Direct-hiring by hiring of overseas Filipino Workers
members of the diplomatic corps, (OFW’s) is not allowed.
international organizations and such other
True, Art. 18 of the Labor Code provides
employers as may be allowed by the
Secretary of Labor is exempted from this that no employer may hire a Filipino
provision. worker for overseas employment except
through the Boards and entities authorized
EXPNS: by the Department of Labor and
Employment. (DOLE) except direct- hiring
1. Members of the diplomatic corp.
by members of the diplomatic corps,
2. International org; international organizations and such other
employers as may be allowed by the
3. Employers allowed by DOLE and
DOLE.
4. Name hires – they are able to secure
Another exemption if ―Name Hire,‖ which
employment contract by their own efforts
refers to a worker who is able to secure an
without assistance
overseas employment opportunity with the
9) Name hires (also called “contractual assistance or participation of any agency
worker”) should register with the POEA
13) Required capitalization:
by submitting the following
documents:  Private employment agency for local
employment: should have a minimum net
1. Employment contract;
worth of P200,000 (in case of single
2. Valid passport; proprietorship, or partnership)

3. Employment visa or work permit, or  In case of corporation, it is P500,000.

equivalent document;
  Private employment agency for overseas affinity are not allowed to engage in the
employment: minimum P2 million (law recruitment an placement of workers.
requires that the capitalization shall be
Likewise, persons, partners or officers and
increased at the rate of P250,000 every
directors of corporations whose license
year)
have been previously cancelled or revoked
14) What is the purpose of the law in for violation of recruitment laws.
requiring recruitment and placement
17) Is a corporation 70% of the authorized
agency to have a substantial capital?
and capital stock of which is owned
To assure the public and the government and controlled by Filipino citizens
that it is not applied by dummy entities for allowed to engage in the recruitment
its purpose of being is to abuse and fool and placement of workers?
the people
No. If it is a corporation the authorized
15) The corporation or partnership is and voting stocks to which must be owned
engaged in a business of travel agency, and controlled that is 75% by Filipino
can the officer or members of the board citizens.
or the partners engage in the
recruitment and placement of workers? 18) Are recruitment agencies allowed in
NO the recruitment and placement of
workers in provincial job fairs? What is
Travel agencies and sales agencies of the requirement?
airline companies are prohibited from
engaging in the business of recruitment As a general rule they are not allowed,
and placement of workers for overseas however they are only allowed to conduct
employment whether for profit or not. provincial recruitment and job fairs provided
Likewise, if the travel agency is they must have authority from the POEA.
corporation, members of the Board or if it’s
a partnership, the partners are not allowed 19) What is the rationale on the
also to engage in the business of requirement of the posting of a bond
recruitment and placement of workers. for the registration of a private
recruitment agency?

That is intended for the payment of all

16) Who are not allowed to engage in the valid and legal claims against an employer but
recruitment and placement of workers? these claims are limited to monetary award.
The employees contract of employment have
Persons with derogatory records such as
those committed for illegal recruitment or been violated and also for violations by the
other crimes involving moral turpitude are recruiter of the conditions for its license.
not allowed to engage in the recruitment For local employment: Bond = P25,000
and placement of workers.
Surety bond = P100,000
Also officials and employees of DOLE,
POEA, OWWA or DFA or any other gov’t The claims of OFW with respect to this bond
agencies involved in the implementation of shall prescribe after three years from the time
RA 8042 as amended or their relatives the cause of action accrued. POEA has the
within the 4th civil degree consanguinity or power to enforce liability under cash and
surety bonds that is to award appropriate No, because of Art. 29 that the license cannot
relief to the victims of the offenses such as the be transferred. The grant of a license is a gov’t
refund or reimbursement of such fees act by the DOLE based on personal
fraudulently or illegally collected. qualifications, citizenship and capitalization
requirements. The recruitment agency cannot
20) If the surety or bonding company was transfer its business address without prior
not impleaded in the case filed by the approval of the POEA. The new office shall be
overseas Filipino worker against the
subject to the normal ocular inspection
agency, would the judgment be
procedures by duly authorized
enforceable against that surety or
representatives of the POEA. To inform the
bonding company?
public, the new address shall be published in
YES. Surety is solidarily liable with the a newspaper of general circulation.
debtor. Surety’s duty is interwoven to the
principal as to be inseparable.
24) Why is it that an overseas worker
21) What are the requirements before an
cannot refuse to remit his earnings to
agency can transfer its business
his dependents?
address?
It shall be mandatory for all Filipino workers
a) The agency has to notify the Regional
abroad to remit a portion of their foreign
Office of DOLE which issued the license at
exchange earnings to their families,
least thirty working days prior to the transfer.
dependents, and/or beneficiaries in the
b) Agency has to notify DOLE which has country in accordance with rules and
jurisdiction of the new business address and regulations prescribes by the Secretary of
submit a sketch of their new office. Labor.
GR: It shall be mandatory for all OFW’s to
remit a portion of their foreign exchange
22) What is the policy of the State earnings to their families, dependents,
regarding the recruitment and and/or beneficiaries ranging from 50%-80%
placement of workers? depending on the worker’s kind of job.
(RULE VIII, Book III, POEA Rules; LC, Art.
 Does not promote overseas
22)
employment as a means to sustain
economic growth and achieve national XPNS: 1. The worker’s immediate family
development but assures that the dignity members, beneficiaried and dependents are
and fundamental human rights and residing with him abroad; 2. Immigrants and
freedom shall not be compromised or Filipino professionals and EEs working with
violated. the UN agencies or specialized bodies; 3.
Filipino servicemen working in U.S. military
 Create local employment and promote installations.
the equal distribution of wealth and the
benefits of development. Effect of Failure to Remit: 1. Workers –
shall be suspended or removed from the list
23) Why is it that a license of an agency
of eligible workers for overseas employment.
cannot be considered as one of its 2. Employers – will be excluded from the
assets? Issued by the government overseas employment program. 3. Private
based on personal qualification
employment agencies – shall face when it is committed against three or more
cancellation or revocation of their licenses or person individually or as a group.
authority to recruit. (E.O. 857)
27) Jurisdiction of case involving illegal
25) Who has jurisdiction over a money recruitment is with the RTC.
claims instituted by the overseas
The venue shall be the province or city
Filipino worker?
where the offense was committed or
It is the Labor Arbiter that has jurisdiction to where the offended party actually resides
hear and decide cases arising out of an at the time of the commission of the
employer employee relationship or by virtue offense. As long as the witness can
of a law or contract involving workers from positively show the respective testimonies
overseas employment, including claims for that the accused was the one who
actual, moral or exemplary and other forms committed the prohibited recruitment, he
of damages may be convicted despite the absence of
receipts.
Venue (Where to file?)
Take note of the prescriptive period
You are going to file at the regional
when it is involving economic
arbitration branch of the NLRC where the
sabotage, it is 20 years.
complainant resides or the principal office of
the respondent or employer is situated at the 28) In cases of illegal recruitment, we
option of the complainant. have:
In case of termination of overseas  Automatic revocation of license or
employment without just, valid or authorized authority;
cause as defined by law or there is a violation
in the contract or any unauthorized  Forfeiture of the cash and surety bonds;
deductions from the migrant worker’s salary,  Conviction for estafa be found guilty
the worker shall be entitled to full
reimbursement of the placement fee and the 29) What is the nature of the liabilities of
deductions made, interest at 12 percent per the local recruitment agency and its
annum; salary for the unexpired portion of foreign principal?
his employment contract for “three month for
Local agency is solidarily liable with the
every year of service or the unexpired
foreign principal; severance of relations
portion of the employment contract
between the local agent and foreign principal
whichever is less.”
does not affect the liability of the foreign
principal;
26) When is illegal recruitment considered
a crime of economic sabotage? 30) Can an accused be convicted of illegal
recruitment on a large scale based on
When it is committed by a syndicate or when several infractions filed by one
it is committed in a large scale. It is complainant? (There are five
committed by a syndicate when it is carried informations but only one
out by a group or by three or more persons complainant.)
conspiring or confederating with one
another. It is committed by a large scale, Illegal recruitment is deemed committed by
a syndicate if carried out by a group of three
 (3) or more persons conspiring and/or and amended the rules and regulations
confederating with one another in carrying governing overseas employment. These
out any unlawful or illegal transaction, form part of the Implementing Rules, Book I,
enterprise or scheme defined under the first in this volume.
paragraph hereof. Illegal recruitment is
deemed committed in large scale if Complaints for breach of discipline against a
committed against three contract worker shall be filed with the
(3) or more persons individually or as a Adjudication Office or Regional Office, as the
group. case may be
24) Does POEA have jurisdiction over torts?
22) Can a person be charged of illegal
recruitment and estafa simultaneously? POEA has no jurisdiction over torts. It has
Why is it separate and distinct? Elaborate. also no jurisdiction to enforce foreign
judgment because enforcement of foreign
Illegal recruitment is malum
judgment must be brought before regular
prohibitum, wherein good faith is not a courts. POEA has the power to conduct
defense whereas estafa is malum in se proceedings based on reports of violations of
(criminal intent necessary for conviction) a any grounds for disciplinary actions provided
person may be charged & convicted for both in the POEA rules and regulations and other
issuances on overseas employment subject
23) What are the functions of the POEA? What
to preliminary investigation.
are the adjudicatory functions of the
POEA? 25) Section 2. Grounds for Disciplinary
Action. - Commission by the worker of any
• Regulatory of the offenses enumerated below or of
• Adjudicatory similar offenses while working overseas
shall be subject to appropriate disciplinary
(Q: What are the adjudicatory functions? - actions as the Administration may deem
All cases admin in character.) necessary:
The principal functions of the POEA include 1) Commission of a felony or crime
the formulation, implementation and punishable by Philippine Laws or by the laws
monitoring of policies and programs on of the host country; 2) Drug addiction or
overseas employment of Filipino workers. possession or trafficking of prohibited drugs;
POEA is the protector of overseas worker’s 3) Desertion or abandonment; 4)
rights to fair and equitable employment Drunkenness, especially where the laws of
practices. An additional function of POEA is the host country prohibit intoxicating drinks; 5)
the deployment of Filipino workers through Gambling especially where the laws of the
governmenttogovernment hiring. POEA has host country prohibit the same; 6) Initiating or
extended its services nationally through its joining a strike or work stoppage where the
regional extension units to process laws of the host country prohibit strikes or
vacationing workers, register sea-based similar actions; 7) Creating trouble at the
workers, and participate in government worksite or in the vessel; 8) Embezzlement of
hiring through manpower pooling. POEA company funds or moneys and properties or
performs administrative, regulatory and a fellow worker entrusted for delivery to kin or
enforcement, as well as limited adjudicatory relatives in the Philippines; 9) Theft or
functions. Accordingly, the POEA has issued robbery; 10) Prostitution; 11) Vandalism or
 destroying company property; 12) 28) Can illegal recruitment be committed by a
Gunrunning or possession of deadly licensed or holder of authority?
weapons; 13) Violation/s of the sacred
YES
practices of the host country; and 14)
Unjustified breach of government approved 29) Who has the primary responsibility in the
employment contract. repatriation of workers and transport of
26)
his personal belongings?

The repatriation of the worker and the

transport of his personal belongings shall be
the primary responsibility of the agency
which recruited or deployed the worker
overseas. All costs attendant to repatriation
27) If an overseas Filipino worker is dismissed shall be borne by or charged to the agency
without just or authorized cause what are concerned and/or its principal. Likewise, the
the remedies available to him/her? repatriation of remains and transport of the
personal belongings of a deceased worker
the worker shall be entitled to full and all costs attendant thereto shall be borne
reimbursement of the placement fee and the by the principal and/or local agency.
deductions made interest at 12 percent per However, in cases where the termination of
annum; salary for the unexpired portion of his employment is due solely to the fault of the
employment contract. worker, the principal/employer or agency
shall not in any manner be responsible for
An employee who is dismissed without just the repatriation of the former and/or his
cause is entitled to any or all of the belongings.
following:
30) An employment permit may be issued to:
a) reinstatement without loss of seniority
rights; 1) A non-resident alien; or
2) The applicant employer after a
b) in lieu of reinstatement, an employee
determination of the non-availability of a
may be given separation pay of one
person in the Philippines who is competent,
month pay for every year of service
able and willing at the time of application to
(Golden Ace Builders, et. al vs. Jose
perform the services for which the alien is
Talde, May 5, 2010,
desired.
GR No. 187200);

c) full backwages, inclusive of allowances

and other benefits or their monetary GR: All non-resident foreign nationals who
equivalent from the time compensation intend to engage in gainful employment in the
was withheld up to the time of Philippines and any domestic or foreign
reinstatement; employer who desires to engage an alien for
employment in the Philippines.
d) damages if the dismissal was done in
bad faith (Aurora Land Project Corp. vs XPNs: 1) Members of the diplomatic services
NLRC, 266 SCRA 48). and foreign government officials accredited
by the Philippine government; 2) Officers and
staff of international organizations of which
 the Philippine government is a cooperating 3) Mass Media - The ownership and
member, and their legitimate spouses management must be limited to citizens of the
desiring to work in the Philippines; 3) Foreign Phil/cooperative/assoc. wholly owned and
nationals elected as members of the managed by such citizens.
Governing Board who do not occupy any
32) ANTI-DUMMY ACT – penalizes Filipinos
other position, but have only voting rights in
who permit aliens to use them as dummies to
the corporation; 4) All foreign nationals
enjoy privileges reserved for Filipinos or
granted exemption by special laws and all
Filipino corporations.
other laws that may be promulgated by the
Congress; 5) Owners and representatives of Validity of the permit: 1 year unless the
foreign principals, whose companies are employment contract or other modes of
accredited by the Philippine Overseas engagement or term of office provides for a
Employment Administration (POEA), who longer period in which in no case shall exceed
come to the Philippines for a limited period 5 years.
solely for the purpose of interviewing Filipino
applicants for employment abroad; 6) Foreign After the issuance of the employment permit,
nationals who come to the Philippines to the alien shall not transfer to another job or
teach, present and/or conduct research change their employer without prior approval
of the Sec of Labor and Employment
studies in universities and colleges provided
that the exemption is on a reciprocal basis; 33) The Secretary of Justice has rendered an
and 7) Resident foreign nationals and opinion that aliens may be employed in
temporary or probationary resident visa entities engaged in nationalized activities:
holders employed or seeking employment in
the Philippines. (DO 97-09, Series of 2009) (a) Where the Secretary of Justice specifically
authorizes the employment of foreign
Other Persons Required to Obtain an Alien technical personnel, or
Employment Permit
(b) Where the aliens are elected members of
1) Non-resident foreign nationals admitted to the board of directors or governing body of
the Philippines on non-working visas and who corporations or associations in proportion to
wish to seek employment. their allowable participation in the capital of
such entities.
2) Missionaries or religious workers who
intend to engage in gainful employmen
31) No alien employees for nationalized
industries such as:

1) Public Utilities - The constitution provides

that the executive and managing officers of
such corporation or other association
engaged in the business of public utilities
must be citizens of the Philippines.
2) Educational Institutions - The control
and administration of educational institutions
shall be vested in the citizens of the Phil. (e.g.
Pres, Dean, BOD)