LABOR LAW AND SOCIAL LEGISLATION

1. While in lloilo, V introduced herself to L, M, N and O as a recruiter of

workers for Malaysia and showed them a job order and calling card.
Believing such representations, L, M, N and O submitted their applications
and paid PhP10, 000 to V. After about a month, V informed them that they
cannot be deployed and that the fees collected cannot be returned
anymore. V explained that the visa or the medical certificates had already
expired. Suspicious on the matter, they later discovered upon inquiry that
V did not have authority to recruit. Is V guilty of any crime?
Answer: Yes, V is guilty of illegal recruitment in large scale. Article 38 of the Labor
Code provides that any recruitment activity to be undertaken by non-licensee or non-
holders of authority shall be deemed illegal and punishable. Section 6 of R.A. No. 8042, as
amended, also provides that illegal recruitment includes the failure to reimburse expenses
incurred by the worker in connection with is documentation and processing or purposes
of deployment in cases where the deployment does not actually take place without the
worker's fault. In either case, such illegal recruitment is deemed committed i large scale if
committed against three or more persons individually or as a group. In the present case,
A was a non-licensee or non-holder of authority to recruit workers for deployment abroad
she offered or promised employment abroad to more than three private complainants; she
received monies from said complainants purportedly as placement or processing fees and
complainants were not actually deployed to Malaysia (People of the Philippines v. Gilda
Abellanosa, G.R. No. 214340, July 19, 2017, Covered Case).

2. H was introduced to M as a person who can facilitate papers for workers.

During a meeting, H explained the requirements for working as teaching
personnel in UK. H also showed pictures of other people she had
supposedly helped to get employment. With such representations, M
agreed to apply for work in the UK. M paid PhP150, 000 for which H
promised to personally process the visa application. After repeated but
vain follow-ups, M discovered that H did not have any license or authority
to recruit. In the case for illegal recruitment, H did not dispute her lack of
license or authority to conduct recruitment activities, but she maintained
that the transaction was only for securing a visa which did not qualify as a
"recruitment activity". Is the argument of H tenable?
Answer:
The argument is not tenable. 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 Non-license holders are liable by the simple act
of engaging in recruitment and placement activities. Under Article 13(b) of Presidential
Decree No. 442, as amended, also known as the Labor Code of the Philippines,
recruitment and placement refers to "any act of canvassing, enlisting, contracting,
transporting, utilizing, hiring or procuring workers, and includes referrals, contact
services, promising or advertising for employment, locally or abroad, whether for profit or
not. It is the absence of the necessary license or authority to recruit and deploy workers
that renders the recruitment activity unlawful. To prove illegal recruitment, it must be
shown that the accused gave the complainants the distinct impression that she had the
power or ability to deploy the complainants abroad in a manner that they were convinced
to part with their money for that end (People of the Philippines v. Erinda A. Sison
"Margarita S. Aguilar", G.R. No. 187160, August 9, 2017, Covered Case).

3. What are the other prohibited activities under Art. 34, and considered as
illegal recruitment under R.A. 8042, as amended by R.A. No. 10022?
Answer:
The following acts are the prohibited activities under Art. 34, and considered as illegal
recruitment under Sec.6 of BA. No. 8042 (as amended by R.A. No. 10022):
 Illegal exaction - To charge greater amount than that specified in the schedule of
allowable fees;
 False information -To furnish any false information in relation to recruitment
or employment;
 False statements - To give any false notice, testimony, etc. or commit any act of
misrepresentation to secure a license or authority;
 Obstruct inspection To obstruct or attempt to obstruct inspection by the Labor
Secretary or his authorized representatives;
 Unjustified non-deployment - Failure to deploy a contracted worker without a
valid reason as determined by the DOLE;
 Non-reimbursement upon failure TO DEPLOY - Failure to reimburse
expenses incurred by the worker in connection with the documentation and
processing for purposes of deployment, in cases where the deployment does not
actually take place without the worker's fault;
 Delegation to an alien - To allow a non-Filipino citizen to head or manage a
licensed repayment/manning agency;
 Withholding travel documents - To withhold travel documents from applicant
workers before departure for unauthorized monetary considerations;

4. K was employed with R Agency as a cashier. Under direction of her

employer, K recruited A, B, C, D and E for overseas employment and
assured them that R Agency can deploy them to Taiwan as factory
workers. Being the cashier, K received the payments of the said applicants
and transmitted the same to the company treasurer. However, the
applicants were never deployed. When they found out that K did not have
any license or authority to recruit, they filed a criminal complaint for
illegal recruitment in large scale against K. In her defense, K contended
that she cannot be held liable for illegal recruitment because she did not
 benefit from the transaction and that only her employer should be held
liable. Is the contention correct?

Answer:
No, the contention is not correct. For illegal recruitment in large scale to prosper, the
prosecution has to prove three essential elements: (1) the accused undertook a recruitment
activity under Article 13(6) or any prohibited practice under Article 34 of the Labor
Code; (2) the accused did not have the license or the authority to lawfully engage in the
recruitment and placement of workers; and (3) the accused committed such illegal
activity against three or more persons individually or as a group. In this case, all the
elements are present. K cannot escape liability by conveniently limiting her participation
as a cashier of R Agency. Section 6 of RA 8042, as amended, is equivocal that illegal
recruitment may or may not be for profit. It is immaterial therefore whether K remitted
the placement fee to the agency treasurer or appropriated them. Even if K was a mere
cashier, such fact did not make her any less an employee to be held liable for illegal
recruitment as principal by direct participation, together with the employer, as it was
shown that she actively and consciously participated in the recruitment process (People
v. Chua, G.R. No. 184058, March 10, 2010).

5. Differentiate illegal recruitment and estafa.

Answer:
The following are the differences between illegal recruitment and estafa:
 As to nature: legal recruitment is malum prohibitum where criminal intent is not
necessary, whereas estafa is malum in se where criminal intent is necessary
 As to governing law: illegal recruitment is penalized under the Labor Code,
whereas estafa is penalized under the Revised Penal Code;
 As to scope: legal recruitment is limited to acts related to recruitment activities,
whereas estafa is wider in scope covering deceits whether related to recruitment
activities or not.

6. X, a seafarer, signed a POEA-approved contract of employment with RV

Company, with a duration of nine (9) months. The employment contract
provides that the employer-employee relationship shall commence only
upon the seafarer's actual departure from the port in the point of hire in
Manila. Five days before the departure from Manila to Canada, the
company informed X that he would not be allowed to leave for Canada
because the company feared that he might jump ship. X filed a complaint
for illegal dismissal, overtime pay, damages and attorney's fees with the
Labor Arbiter against RV Company. In its defense, RV Company argued
that the jurisdiction of the Labor Arbiter is limited to claims arising out of
an employer-employee relationship and since such relationship did not
commence without the seafarer's actual departure, it moved for the
 dismissal of the complaint for lack of jurisdiction. Is the motion to dismiss
proper?
Answer:
No, the motion to dismiss is not proper. Section 10 of R.A. No. 8042 (as amended)
provides that the Labor Arbiter shall have the original and exclusive jurisdiction to
hear and decide claims arising out of an employer-employee relationship or by virtue
of any law or contract involving Filipino workers for overseas deployment including
claims for actual, moral, exemplary, and other forms of damage. In Santiago v. CF
Sharp Crew Management, the Supreme Court made a distinction between the
perfection of the employment contract and the commencement of the employer-
employee relationship. The perfection of the employment contract occurs when the
parties agree on the object and cause, as well as the rest of the terms and conditions
therein. On the other hand, the employer-employee relationship commences when the
worker is actually deployed from the point of hire Thus, even before the start of the
employer-employee relationship, contemporaneous with the perfection of the
employment contract is the birth of certain right and obligations, the breach of which
may give rise to a cause of action against the erring party. Applying to the case at bar,
the claim is based on the employment contract entered into between X and RV
Company for overseas employment. Therefore, X's claims are cognizable by the Labor
Arbiter (Santiago v. CF Sharp Crew Management, Inc., G.R. No. 162419, July 40-
2007)

7. In 2012, H filed a complaint for permanent total disability against X

Manning Agency and B, the company president. H alleged that he fell on
deck while lifting heavy loads of lube oil drum, with his left arm hitting
the floor. The incident resulted in his being permanently unfit for further
sea service. While the LA and NLRC held that there was no permanent
disability, X Manning Agency and B were held solidarily liable for
payment of temporary disability benefits. B contended that he cannot be
held liable without showing that he acted beyond the scope of his
authority or with malice. Is the argument of B correct?
Answer:
No, B's argument is incorrect. Section 10 of RA 8042, as amended, expressly provides
for joint and solidary liability or corporate directors and officers with the
recruitment/placement agency for all money claims or damages that may be awarded
to Overseas-Filipino Workers (OFWs). While a corporate director, trustee, or officer
who entered into contracts in behalf of the corporation generally cannot be held
personally liable for the liabilities of the latter, in deference to the separate and distinct
legal personality of a corporation from the persons composing it personal liability of
such corporate director, trustee, or officer, along although not necessarily) with the
corporation, may validly attach when he is made by a specific provision of law
personally answerable for his corporate action, as in this case (Gargallo v. Dohle
Seafront Crewing et al, G.R. No 215551, August 17, 2016).
 8. X Agency hired P as an assistant cook onboard Royale, a cruise ship
belonging to a foreign principal, Cruise Lines. He signed a one-year
contract where he was mainly tasked to assist the chief cook in preparing
meals. Sometime during his 3d month, C began harassing P while at work.
In dire need of ncome, P tolerated the acts of the chief cook until he was
suddenly told that his services would be terminated as soon as the cruise
ship arrives at the next port, in Thailand. P had to spend his own money to
go back home. Upon arriving in the Philippines, P filed a money claim
with the NLRC, which ruled that there was illegal dismissal. Thus, the
NLRC awarded full reimbursement of his placement fee with interest at
12% per annum and the payment of his salaries for the unexpired portion
of the contract. X Agency and Z Cruise Lines argued that pursuant to R.A.
8042, as amended by R.A. 10022, PShall only be entitled to three months
for every year of the unexpired term, since it is less than the unexpired
term of the contract. Is the contention of X Agency and Z Cruise Lines
tenable?
Answer:
No, the contention is not tenable. Section 10 of R.A. No. 8042, as amended, provides
that in case of termination of overseas employment without just, valid or authorized
cause as defined by law or contract, the Worker shall be entitled to the full
reimbursement of his placement fee with interest at twelve percent (12%) per annum,
plus his salaries for the unexpired portion his employment contract or for three (3)
months for every year of the unexpired term, whichever is less. In the case of Serrano
v. Gallant Maritime Services Inc., the Court has declared the clause "or for three (3)
months for every year of the unexpired term, whichever is less" as unconstitutional
for violating the equal protection clause and substantive due process. Accordingly; P
is entitled to full reimbursement of his placement fee with interest at twelve percent
(12%) per annum, plus his salaries for the unexpired portion the contract (A. No.
8042, as amended; Sameer Overseas Placement v. cabiles, GR. Tvo. T70T39, August
5, 2014)
9. What is the rule on direct hiring of migrant workers?
Answer:
Article 18 of the Labor Code provides that no employer may hire a Filipino
worker for overseas employment except through the Boards and entities
authorized by the Secretary of Labor. Thus, no employer shall directly hire an
Overseas Filipino Worker for overseas employment (LABOR CODE, Art. 18;
Revised POEA Rules and Regulations Governing the Recruitment and
Employment of Landbased OFW, Sec. 123).
However, the rule is not absolute. The 2016 Revised POEA Rules and
Regulations state that the following are exempted from the ban on direct hiring:
a. Members of the diplomatic corps;
b. International organizations;
c. Heads of state and government officials with the rank of at least deputy
minister; or
d. Other employers as may be allowed by the Secretary of Labor and
Employment, such as:
i. Those provided in (a), (b) and (c) who bear a lesser rank, if endorsed by
the POLO, or Head of Mission in the absence of the POLO;
ii. Professionals and skilled workers with duly executed/authenticated
contracts containing terms and conditions over and above the standards
set by the POEA. The number of professional and skilled Overseas Filipino
Workers hired for the first time by the employer shall not exceed five (5).
For the purpose of determining the number, workers hired as a group shall
be counted as one; or
ii. Workers hired by a relative/family member who is a permanent
resident of the host country (Revised POEA Rules and Regulations
Governing the Recruitment and Employment of Landbased OFW, Sec.
124).