Things to Know About Illegal Recruitment

Photo from Unsplash | Ben White

This article was originally published on March 27, 2019 and has been updated to reflect recent legal developments.

The following post does not create a lawyer-client relationship between Alburo Alburo and Associates Law Offices (or any of its lawyers) and the reader. It is still best for you to engage the services of a lawyer or you may directly contact and consult Alburo Alburo and Associates Law Offices to address your specific legal concerns, if there is any.

Also, the matters contained in the following were written in accordance with the law, rules, and jurisprudence prevailing at the time of writing and posting, and do not include any future developments on the subject matter under discussion.

---

AT A GLANCE:

Illegal recruitment is a crime defined under R.A. 8042, as amended by R.A. 10022. When committed by a syndicate or on a large scale, it is considered economic sabotage. Offenders face imprisonment, fines, revocation of licenses, and, if foreign, deportation.

---

What is Illegal Recruitment?

Under Republic Act No. 8042 (R.A. No. 8042) or the Migrant Workers Act, as amended by R.A. No. 10022, illegal recruitment shall mean any act of canvassing, enlisting, contracting, transporting, utilizing, hiring, or procuring workers. It also 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 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. Simply put, 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.

 

In addition to the above, illegal recruitment shall also include the following acts, whether committed by any person, whether a non-licensee, non-holder, licensee, or holder of authority:

1. 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;
2. To furnish or publish any false notice or information or document in relation to recruitment or employment;
3. 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;
4. 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;
5. 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;
6. 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;
7. To obstruct or attempt to obstruct inspection by the Secretary of Labor and Employment or by his duly authorized representative;
8. 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;
9. 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 without the approval of the Department of Labor and Employment;
10. 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;
11. 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;
12. Failure to actually deploy a contracted worker without valid reason as determined by the Department of Labor and Employment;
13. 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
14. To allow a non-Filipino citizen to head or manage a licensed recruitment/manning agency.

 

Elements of Illegal Recruitment 

Jurisprudence parses out the elements of illegal recruitment in the following manner: To sustain a conviction for illegal recruitment under R.A. 8042 in relation to the Labor Code, the prosecution must establish two (2) elements:.first, the offender has no valid license or authority required by law to enable one to lawfully engage in the recruitment and placement of workers; and second, the offender W1dertakes any of the activities within the meaning of recruitment and placement defined in Article 13(b) of the Labor Code, or any of the prohibited practices enumerated under Section 6 of R.A. No. 8042. (Anniban v. People of the Philippines, G.R. No. 257805, April 12, 2023)

 

Illegal Recruitment Involving Economic Sabotage

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. (Section 6, R.A. No. 8042, as amended by Section 5 of R.A. No. 10022)

 

Criminal Liability and Procedure (Section 6, R.A. No. 8042)

The following parties are criminally liable for illegal recruitment: 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 6 of RA 8042, 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 involving illegal recruitment, the public prosecutors of the Department of Justice shall collaborate with the anti-illegal 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 as Illegal Recruitment is without prejudice to the filing of cases punishable under other existing laws, rules or regulations.

 

Penalties (Section 6, R.A. No. 10022)

The following penalties are imposed on individuals found guilty of illegal recruitment:

1. “(a) Any person found guilty of illegal recruitment shall suffer the penalty of imprisonment of not less than twelve (12) years and one (1) day but not more than twenty (20) years and a fine of not less than One million pesos (P1,000,000.00) nor more than Two million pesos (P2,000,000.00).
2. The penalty of life imprisonment and a fine of not less than Two million pesos (P2,000,000.00) nor more than Five million pesos (P5,000,000.00) shall be imposed if illegal recruitment constitutes economic sabotage as denned therein. Provided, however, That the maximum penalty shall be imposed if the person illegally recruited is less than eighteen (18) years of age or committed by a non-licensee or non-holder of authority. 
3. Any person found guilty of any of the prohibited acts shall suffer the penalty of imprisonment of not less than six (6) years and one (1) day but not more than twelve (12) years and a fine of not less than Five hundred thousand pesos (P500,000.00) nor more than One million pesos (P1,000,000.00). 

If the offender is an alien, he or she shall, in addition to the penalties herein prescribed, be deported without further proceedings. 

In every case, conviction shall cause and carry the automatic revocation of the license or registration of the recruitment/manning agency, lending institution, training school or medical clinic.

---

Click here to subscribe to our newsletter

Alburo Alburo and Associates Law Offices specializes in business law and labor law consulting. For inquiries regarding legal services, you may reach us at info@alburolaw.com, or dial us at (02)7745-4391/ 09175772207/ 09778050020.

All rights reserved.