ILLEGAL RECRUITMENT

By Atty. Edwin E. Torres (June 2013)

RA 10022, which amended RA 8042 otherwise known as the "Migrant Workers and Overseas Filipinos Act of 1995," provides the following definition of illegal recruitment: "SEC. 6. Definition. - For purposes of this Act, illegal recruitment shall mean any act of canvassing, enlisting, contracting, transporti :g, utilizing, hiring, or procuring workers and includes referring, contract services, promising or advertising for employment abroad, whether for profit or not, when undertaken by non-licensee or non-holder of authority contemplated under Article 13(f) of Presidential Decree No. 442, as amended, otherwise known as the Labor Code of the Philippines: Provided, That any such non-licensee or non-holder who, in any manner, offers or promises for a fee employment abroad to two or more persons shall be deemed so engaged. It shall likewise include the following acts, whether committed by any person, whether a non-licensee, non-holder, licensee or holder of authority: (a) To charge or accept directly or indirectly any amount greater than that specified in the schedule of allowable fees prescribed by the Secretary of Labor and Employment, or to make a worker pay or acknowledge any amount greater than that actually received by him as a loan or advance; To furnish or publish any false notice or information or document in relation to recruitment or employment; To give any false notice, testimony, information or document or commit any act of misrepresentation for the purpose of securing a license or authority under the Labor Code, or for the purpose of documenting hired workers with the POEA, which include the act of reprocessing workers through a job order that pertains to nonexistent work, work different from the actual overseas work, or work with a different employer whether registered or not with the POEA; To include or attempt to induce a worker already employed to quit his employment in order to offer him another unless the transfer is designed to liberate a worker from oppressive terms and conditions of employment; To influence or attempt to influence any person or entity not to employ any worker who has not applied for employment through his agency or who has formed, joined or supported, or has contacted or is supported by any union or workers' organization; To engage in the recruitment or placement of workers in jobs harmful to public health or morality or to the dignity of the Republic of the Philippines; To fail to submit reports on the status of employment, placement vacancies, remittance of foreign exchange earnings, separation from jobs, departures and such other matters or information as may be required by the Secretary of Labor and Employment; To substitute or alter to the prejudice of the worker, employment contracts approved and verified by the Department of Labor and Employment from the time of actual signing thereof by the parties up to and including the period of the expiration of the same

(b)

(c)

(d)

(e)

(f)

(h)

(i)

U)

(k)

(I)

(m)

(n)

without the approval of the Department of Labor and Employment; For an officer or agent of a recruitment or placement agency to become an officer or member of the Board of any corporation engaged in travel agency or to be engaged directly or indirectly in the management of travel agency; To withhold or deny travel documents from applicant workers before departure for monetary or financial considerations, or for any other reasons, other than those authorized under the Labor Code and its implementing rules and regulations; Failure to actually deploy a contracted worker without valid reason as determined by the Department of Labor and Employment; Failure to reimburse expenses incurred by the worker in connection with his documentation and processing for purposes of deployment, in cases where the deployment does not actually take place without the worker's fault. Illegal recruitment when committed by a syndicate or in large scale shall be considered an offense involving economic sabotage; and To allow a non-Filipino citizen to head or manage a licensed recruitmenUmanning agency.

Illegal recruitment is deemed committed by a syndicate if carried out by a group of three (3) or more persons conspiring or confederating with one another. It is deemed committed in large scale if committed against three (3) or more persons individually or as a group. In addition to the acts enumerated above, it shall also be unlawful for any person or entity to commit the following prohibited acts: (1) Grant a loan to an overseas Filipino worker with interest exceeding eight percent (8%) per annum, which will be used for payment of legal and allowable placement fees and make the migrant worker issue, either personally or through a guarantor or accommodation party, postdated checks in relation to the said loan; Impose a compulsory and exclusive arrangement whereby an overseas Filipino worker is required to avail of a loan only from specifically designated institutions, entities or persons; Refuse to condone or renegotiate a loan incurred by an overseas Filipino worker after the latter's employment contract has been prematurely terminated through no fault of his or her own; Impose a compulsory and exclusive arrangement whereby an overseas Filipino worker is required to undergo health examinations only from specifically designated medical clinics, institutions, entities or persons, except in the case of a seafarer whose medical examination cost is shouldered by the principal/shipowner; Impose a compulsory and exclusive arrangement whereby an overseas Filipino worker is required to undergo training, seminar, instruction or schooling of any kind only from specifically designated institutions, entities or persons, except fpr recommendatory trainings mandated by principals/shipowners where the latter shoulder the cost of such trainings;

(2)

(3)

(4)

(5)

(6)

(7)

For a suspended recruitment/manning agency to engage in any kind of recruitment activity including the processing of pending workers' applications; and For a recruitment/manning agency or a foreign principaVemployer to pass on the overseas Filipino worker or deduct from his or her salary the payment of the cost of insurance fees, premium or other insurance related charges, as provided under the compulsory worker's insurance coverage.

The persons criminally liable for the above offenses are the principals, accomplices and accessories. In case of juridical persons, the officers having ownership, control, management or direction of their business who are responsible for the commission of the offense and the responsible employees/agents thereof shall be liable. In the filing of cases for illegal recruitment or any of the prohibited acts under this section, the Secretary of Labor and Employment, the POEA Administrator or their duly authorized representatives, or any aggrieved person may initiate the corresponding criminal action with the appropriate office. For this purpose, the affidavits and testimonies of operatives or personnel from the Department of Labor and Employment, POEA and other law enforcement agencies who witnessed the acts constituting the offense shall be sufficient to prosecute the accused. In the prosecution of offenses punishable under this section, the public prosecutors of the Department of Justice shall collaborate with the antiillegal recruitment branch of the POEA and, in certain cases, allow the POEA lawyers to take the lead in the prosecution. The POEA lawyers who act as prosecutors in such cases shall be entitled to receive additional allowances as may be determined by the POEA Administrator. The filing of an offense punishable under this Act shall be without prejudice to the filing of cases punishable under other existing laws, rules or regulations."

COMMENTARY:

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, contract services, promising or advertising for employment, locally or abroad, whether for profit or not." In the simplest terms, illegal recruitment is committed by persons who, without authority from the government, give the impression that they have the power to send workers abroad for employment purposes. 1 The amendments to the Labor Code introduced by RA 8042, as amended by RA 10022, otherwise known as the "Migrant Workers and Overseas Filipinos Act of 1995," broadened the concept of illegal recruitment and provided stiffer penalties, especially for those that constitute economic sabotage, i.e., illegal recruitment in large scale and illegal recruitment committed by a syndicate. There are three classes of offenses provided by RA 8941, as amended by RA 10022. These are: A. Illegal recruitment committed by a non-licensee or non-holder of authority contemplated under Article 13(f) of the Labor Code; Sub-classification: (a) illegal recruitment committed by a syndicate and (b) illegal recruitment in large scale.
1

People vs. Gallo (G.R. 185277, 18 March 2010}.

B.

Particular acts of illegal recruitment (enumerated from "a" to "n") committed by any person, whether a non-licensee, licensee, nontlc:*jer or holder of authority;
Prohibited acts enumerated from (1) to (7) committed by any

C.

person.
The gravity of the offenses is determined by the penalties imposed. The penalties, which are in Section 7 of RA 8042, as amended by RA 10022, are as follows:

A.
B.

Prohibited acts Illegal recruitment

- 6 yrs and 1 day to not more than 12 yrs - 12 yrs and 1 day to not more than 20 yrs (reclusion temporal)

Sub: B1: Non-licensee or -maximum penalty (maximum period of reclusion Non-holder temporal which is 17 yrs, 4 mo. And 1 day to 20 yrs B2: Victim is less -maximum penalty (same) Than age 18 B3: Syndicate -life imprisonment Large scale Article 12 of the Labor Code, as amended by PO 1412, distinguishes a licensee from a holder of authority with its definitions of "license" and "authority." Thus: "(d) 'License' means a document issued by the Department of Labor authorizing a person or entity to operate a private employment agency."
XXX XXX XXX

"(f)

'Authority' means a document issued by the Department of Labor authorizing a person or association to engage in recruitment and placement activities as a private recruitment entity."

The above definition of "license" and "authority" leads to a further distinction between "private employment agency" and "private recruitment entity." They are defined as follows: "(c) 'Private employment agency' means any person or entity engaged in the recruitment and placement of workers for a fee which is charged directly or indirectly, from the workers or employers or both."
XXX XXX XXX

"(e)

'Private recruitment entity' means any person or association engaged in the recruitment and placement of workers, locally or overseas, without charging, directly or indirectly, any fee from the workers or employers."

Garcia testified that she applied for employment in Taiwan for the position of Electronic Operator thru Brighturn in April 2002. Due to the alleged suspension of Brighturn's license, Hu referred her to a neighboring agency (Best One), but Hu continued collecting placement fees from her. The act of referral, which means the act of passing along or forwarding an applicant after an initial interview to a selected employer, placement or bureau, is included in recruitment. Undoubtedly, the act of Hu in referring Garcia to another recruitment agency squarely fell within the purview of recruitment that was undertaken by Hu after her authority to recruit and place workers already expired on 17 December 2001. 2

People vs. Hu {G.R. No. 182232, 6 October 2008).

It is well-settled that to prove illegal recruitment, it must be shown that appellant gave complainants the distinct impression that he had the power or ability to send complainants abroad for work such that the latter were convinced to part with their money in order to be employed.ll As testified to by Mana-a, Ferrer, and Golidan, Ocden gave such an impression through the following acts: (1) Ocden informed Mana-a, Ferrer, and Golidan about the job opportunity in Italy and the list of necessary requirements for application; (2) Ocden required Mana-a, Ferrer, and Golidan's sons, Jeffries and Howard, to attend the seminar conducted by Ramos at Ocden's house in Baguio City; (3) Ocden received the job applications, pictures, bio-data, passports, and the certificates of previous employment (which was also issued by Ocden upon payment of P500.00), of Mana-a, Ferrer, and Golidan's sons, Jeffries and Howard; (4) Ocden personally accompanied Mana-a, Ferrer, and Golidan's sons, Jeffries and Howard, for their medical examinations in Manila; (5) Ocden received money paid as placement fees by Mana-a, Ferrer, and Golidan's sons, Jeffries and Howard, and even issued receipts for the same; and (6) Ocden assured Mana-a, Ferrer, and Golidan's sons, Jeffries and Howard, that they would be deployed to Italy. It is not necessary for the prosecution to present a certification that Ocden is a nonlicensee or non-holder of authority to lawfully engage in the recruitment and placement of workers. Section 6 of Republic Act No. 8042 enumerates particular acts which would constitute illegal recruitment "whether committed by any person, whether a nonlicensee, non-holder, licensee or holder of authority." Among such acts, under Section 6(m) of Republic Act No. 8042, is the "[f]ailure to reimburse expenses incurred by the worker in connection with his documentation and processing for purposes of deployment, in cases where the deployment does not actually take place without the worker's fault. "3 Illegal recruitment is committed when it is shown that petitioner gave the complainant the distinct impression that she had the power or ability to send the complainant abroad for work, such that the latter was convinced to part with his money in order to be employed. To be engaged in the practice of recruitment and placement, it is plain that there must, at least, be a promise or an offer of employment from the person posing as a recruiter whether locally or abroad. Petitioner's misrepresentations concerning her purported power and authority to recruit for overseas employment, and the collection from Menardo of various amounts, clearly indicate acts constitutive of illegal recruitment. Petitioner's claim that she did not represent herself as a licensed recruiter, but that she merely tried to help the complainants secure a tourist visa could not make her less guilty of illegal recruitment, it being enough that she gave the impression of having had the authority to recruit workers for deployment abroad. 4 A thorough scrutiny of the prosecution's evidence reveals that it failed to prove appellant's liability under Section 6 (I) of R.A. No. 8042. The law requires not only that the failure to deploy be without valid reason "as determined by the Department of Labor and Employment." The law envisions that there be independent evidence from the DOLE to establish the reason for non-deployment, such as the absence of a proper job order. No document from the DOLE was presented in the present case to establish the reason for the accused's failure to actually deploy private complainants. Thus, appellant cannot be held liable under Section 6 (I) of R.A. No. 8042. 5 The essential elements of large scale illegal recruitment to wit: a) the offender has no valid license or authority required by law to enable him to lawfully engage in recruitment and placement of workers; b) the offender undertakes any of the activities within the meaning of "recruitment and placement" under Article 13(b) of the Labor Code, or any of the prohibited practices enumerated under Article 34 of the said Code (now Section 6 of Republic Act No. 8042); and c) the offender committed the same against three (3) or more persons, individually or as a group,z are present in this case. The prosecution adduced proof beyond reasonable doubt that the appellant enlisted the three (3) complainants for overseas employment without any license to do so. 6

3
4

5
6

People vs. Ocden (G.R. No. 173198, 1 June 2011). People vs. Lapasaran (G.R. No. 179907, 12 February 2009). 1bid. People vs. Espenilla (G.R. No. 193667, 29 February 2012).

Section 9 of RA 8042 ("The Migrant Workers and Overseas Filipinos Act of 1995") provides for the venue, to wit: "A criminal action arising from illegal recruitment as defined herein shall be filed with the Regional Trial Court of the province or city where the offense was committed or where the offended party actually resides at the time of the commission of the offense. x x x." There is nothing arbitrary or unconstitutional in Congress fixing an alternative venue for violations of Section 6 of RA 8042 that differs from the venue established by the Rules on Criminal Procedure. Section 9 of RA 8042, as an exception to the rule on venue of criminal actions, is consistent with the law's declared policy of providing a criminal justice system that protects and serves the best interests of the victims of illegal recruitment. 7 The penultimate paragraph of Section 6 of R.A. No. 8042 explicitly states that those criminally liable are the "principals, accomplices, and accessories. In case of juridical persons, the officers having control, management or direction of their business shall be liable." Contrary to appellant's claim, the testimonies of the complaining witnesses and the documentary evidence for the prosecution clearly established that he was not a mere employee of Loran, but its Operations Manager. The license of Loran, the files of the POEA and the nameplate prominently displayed on his office desk reflected his position as Operations Manager. As such, he received private complainants' job applications; and interviewed and informed them of the agency's requirements prior to their deployment, such as NBI clearance, police clearance, medical certificate, previous employment certificate and the payment of placement fee. He was also responsible for the radio advertisements and leaflets, which enticed complaining witnesses to apply for employment with the agency. Clearly, as Operations Manager, he was in the forefront of the recruitment activities. 8 The defense of being a mere employee is not a shield against his conviction for large scale illegal recruitment. In People v. Gasacao and People v. Sagayaga, the Court reiterated the ruling in People v. Cabais, People v. Chowdury and People v. Corpuz that an employee of a company or corporation engaged in illegal recruitment may be held liable as principal by direct participation, together with its employer, if it is shown that he actively and consciously participated in the recruitment process. 9 The defense of lack of awareness of the illegal nature of the recruitment is unavailing. Illegal recruitment penalized under RA 8042, or ''The Migrant Workers and Overseas Filipinos Act of 1995," is a special law, a violation of which is malum prohibitum, not 1 malum in se. Hence, intent is thus immaterial." 10

Sto. Tomas, et al vs. Salac, et al. (G.R. No. 152642, 13 November 2012). People vs. Nogra (G.R. No. 170834, 29 August 2008). 9 1bid. 10 People vs. Chua (G.R. No. 184058, 10 March 2010).
8