Published 15 March 2019, The Daily Tribune

One study found that there are about 2.3 million Overseas Filipino Workers (OFWs) scattered globally at any given time. With an estimated number of 4,500 OFWs leaving the country daily, it is no surprise that job seekers continue to flock recruitment agencies in search of greener pastures abroad.

But with hefty placement fees and rising costs associated with a foreign employment application, it is not uncommon for applicants to leave the country penniless, often after mortgaging their homes or farm lots and borrowing at sky-high interests. All these, with the hope that the sacrifice and indebtedness would all be worth it.

To protect those seeking foreign employment and to curb the alarming rise in the number of fly-by-night recruitment agencies, the Labor Code, as amended, prohibits and punishes the act of enlisting, contracting or procuring workers for employment abroad, whether for profit or not, without a license issued by the Philippine Overseas Employment Agency (POEA).

The law assumes that a non-licensee who, in any manner, offers or promises for a fee employment abroad to at least two persons is engaged in illegal recruitment.

It is not only non-licensed recruiters who are in violation of the law. Even licensed recruiters act illegally when they:

(a) charge or accept directly or indirectly any amount greater than the specified in the schedule of allowable fees prescribed by the Secretary of Labor and Employment, or make a worker pay any amount greater than that actually received by him as a loan or advance;

(b) furnish or publish any false notice or information or document in relation to recruitment or employment;

(c) give any false notice, testimony, information or document or commit any act of misrepresentation for the purpose of securing the requisite license for recruitment;

(d) induce 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;

(e) influence or attempt to influence any persons or entity not to employ any worker who has not applied for employment through his agency;

(f) engage in the recruitment of placement of workers in jobs harmful to public health or morality or to dignity of the Republic of the Philippines;

(g) obstruct or attempt to obstruct inspection by the Secretary of Labor and Employment or by his duly authorized representative;

(h) fail to submit reports on the status of employment, placement vacancies, remittances of foreign exchange earnings, separations from jobs, departures and such other matters or information as may be required by the Secretary of Labor and Employment;

(i) 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 without the approval of the Department of Labor and Employment;

(j) 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 a travel agency;

(k) withhold or deny travel documents from applicant workers before departure for monetary or financial considerations other than those authorized under the Labor Code and its implementing rules and regulations;

(l) fail to actually deploy without valid reasons as determined by the Department of Labor and Employment; and

(m) fail to reimburse expenses incurred by the workers 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.

When illegal recruitment is committed by a syndicate (that is, carried out by a group of three (3) or more persons conspiring or confederating with one another) or in large scale (if committed against three (3) or more persons individually or as a group), it shall be considered as offense involving economic sabotage. Bail is not a matter of right when a person is charged in court with illegal recruitment committed by a syndicate or in large scale.

In recognition of the fact that some of these fly-by-night recruiters succeed through clandestine referrals, the law also makes accountable not just those actually engaged in illegal recruitment, but also those who have aided or in any way assisted them in doing so.

In case of juridical persons such as corporations, the officers having control, management or direction of their business are liable. Even a mere employee of a company or corporation can be engaged in illegal recruitment once it is shown that he had actively and consciously participated in illegal recruitment.

A person who commits illegal recruitment may be imprisoned for twelve (12) to twenty (20) years and fined One million pesos (P1,000,000.00) to Two million pesos (P2,000,000.00).

Aside from being liable for illegal recruitment as defined and punished under the Labor Code, as amended, a person engaged in the foregoing prohibited acts may also be liable for estafa under the Revised Penal Code (RPC).

In the 2016 case of  People vs. Marissa Bayker (G.R. No. 170192, February 10, 2016), the Supreme Court clarified that a person involved in illegal recruitment committed in large scale may also be charged, personally, with the crime of estafa.

The elements of estafa as charged are, namely: (1) the accused defrauded another by abuse of confidence or by means of deceit; and (2) the offended party, or a third party suffered damage or prejudice capable of pecuniary estimation. In contrast, the crime of illegal recruitment committed in large scale requires different elements.

The Supreme Court clarified that the active representation by the accused of having the capacity to deploy abroad despite not having the authority or license to do so from the POEA constituted deceit as the first element of estafa. Her representation induced the victim to part with his money, resulting in damage that is the second element of the estafa.

Thus, a person who is not licensed to recruit a person for employment abroad, and who takes money from another person in pursuance of such promised employment, may be liable for both illegal recruitment and estafa.

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