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AIINEO HUN,IAN RIGHTS CENTER

ACKNOWLEDGMENT

The writer wishes to extend his sincerest gratitude to Atty. Carlos P. Medina, whose support Jr., Executive Director of the Ateneo Human Rights Center, without this paper would not have been possible. The writer also expresses his appreciation to hi, friends Attys Sedfrey M. Candelaria, Jorge R,alph C Barreno, Arnel Jose S' Baflas, Mary Jane L Zantua, Anna Janet F. Sunga and to the whole stafl including the interns, immersionists and paralegals, for their unceasing support during the writer's nine-month stay with the Center. Their commitment and dedication to the field of human rights inciuding the rights of migrant workers continue to be a constant
source of motivation.

unit Special thanks is owed to Atty. Amparita S. Sta. Maria, the Litigation Throughout work. Director ofthe Center, for her invaluable time and skill in editing this mentor and this writer's stay with the Center she had been an immediate "boss", a above all, a friend.
September, 1995

Jose Tomas C. Syquia*

thereafe4 he worked with

the

Ateneo

Huian

Rights Center,

pu*in;n^ tuI^t"r's Degree

in Inieiationat

im

's*neoSchoolofLawin1994ani1pused.theBarEtaminatiowin1995.ImmediateIy daoting his time and seruicu mainllt to .oerile8 contract wo*ers' He is arrently
in England' 1I'I^\'I) at the Universily of Nottingham

Ateneo Human Rights Center

The OCW Problems in Perspective: Causes and Remedies Introduction

The virtual diaspora of our countrlmen seeking employmer.rt in foreign lands, due to the economic travails of the country these past years, will hereafter

be recounted with admiration and sympathy for their intrepidity and selfabnegation. It has, in fact, given rise to a ner.v breed of humble economic heroes, the overseas contract workers. who have breasted all hazards for hearth and famill'. It has deplorably, also produced a new species of human r.'ultures, different tlpes of c;es de rapina or birds of prey, whose victims are those who would seek a hopefully better future as migrant laborers.r

This paper was prepared with the cause of the migrant workers in mind. To paraphrase Dr. Jose P. Rizal, by empowering people with knowledge, it becomes harder for them to be oppressed. Thus, this paper aims at a two-fold purpose: preventive and remedial. It is preventive in that it tries to present the readers, particularly the overseas contract workers (OCWs), with the pitfalls of overseas contract employment by making them aware of recruitment violations which are commonly committed by unscrupulous agencies. It is hoped that such awareness will help them to be on guard against these violations. The paper is also remedial because it provides the readers with the necessary information regarding the procedure for the prosecution of cases before the Philippine Overseas Employment Authority (POEA), subject to the amendments brought about by Republic Act (R.A.) No. 80422 and existing Supreme Court jurisprudence on the matter. Thus in the first part of this paper, after a definition of the overseas contract worker, the discussions will be focused on the recruitment agency and violations committed by it. The second part will deal with the remedies available to the OCWs.
The writer also chose an approach which is not purely legal but also practical. Thus, aside from the applicable laws the readers are given an insight of the most common violations committed against the OCWs and how these violations are committed. With regard to applicable laws, howeveq as of the time of writing, R.A. No. 8042, otherwise known as the Migrant Workers and Filipinos Overseas Act of 1995, has been the subject of a temporary restraining order and the implementing rules and regulations of said law have yet to be issued. This being the case, the readers will be referred alternatively to the provisions of R.A. No. 8042 and the old POEA rules. They are also advised to secure a copy of the Labor Code of the Philippines, the Philippine Overseas Employment Administration Rules and Regulations as amended (1991 POEA Rules) and R.A. No. 8042, for their ready reference.
I

People ofthe Philippines u Lucille B. Sendon, 228 SCRA 489 (1993)

1995.

'Took effect on l7 July

PART I

I.

Constitutional Mandate

$g$.-!.hHllJ: ;!:

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rl.. i-'t !! | lln n' llt

$#irff*,ilj'

q;dr.St: *lri

especially The recognition of the OCWs not only as individuals or citizens but them find constitutional as an important sector of society and the need to protect and Human Rights basis in Section 3, paragraph 1 of Art. XIII on Social Justice Declaration of Principles and State Policies [Labor] and in Section 1g of Art II on provide: [State Policies] which respectively

LOCAL AND OVERSEAS, ORGANZED AND IINORGANZED, AND PROMOTEFULLEMPLOYMENT0PPORTI.INITIESFoRALL.

SOCIAL SEC 18. THE STATE AFFIRMS LABOR AS A PRIMARY WORKERS OF ECONOMIC FORCE. IT S}TALL PROTECT THE RIGHTS AND PROMOTE TFIEIR WELFARE

SEC.

3. TTM STATE SHALL AFFORD FULL PROTECTION TO LABOR,

THE POLICIES OF complete title of this law is "AN ACT TO INSTITUTE STANDARD OF OVERSEAS E,MPLOYMENT AND ESTABLISH A HIGF{ER

It

enacted The is in the light of the above provisions that R.A. No. 8042 was

PROTECTION AND PROMOTION OF THE WELFARE OF MIGRANT IN DISTRESS' WORKERS, THEIR FAMILIES AND OVERSEAS FILIPINOS in its AND FOR OTHER PURPOSES". How this law will live up to the goals set
title remains to be seen.

Overseas Contract Employment Defined

Overseas employment is defined as employment

Ateneo Human Riehts Center

of a worker outside the Philippines, including employment on board vessels plying international waters, covered by a valid contract,3 the nationality of the employer, whether Filipino or non-Filipino being immaterial.a Thus, Filipino employers who deploy their workers abroad under a valid contract are deemed covered by the defi nition. 5 C onsequently, all workers employed under the above-given circumstances are overseas contract workers (OCWs).

ffi.

The Recruitment Agency

{daSTED
under both the POEA Rules and R.A. No. 8042, before an agency can legally engage in recruitment and placement activities, it must first secure a license from the POEA. This license is non-transferable.

In addition, all licensed recruitment agencies must have an official address submitted to the POEA Under the 1991 POEA Rules, all recruitment activities
should be conducted only at said ofiicial address.6 Therefore, if a recruiter goes from one house to another looking for applicants, there is a very high probability that he or she is an "illegal" recruiter. is easy to determine if an agency is authorized by the POEA because it has a POEA seal with a designated POEA number which must be displayed visibly. In addition, while the agency may belicensed, if it has a sub-agent the latter must also be duly licensed by the POEA and must have its own official address. These safeguards notwithstanding, an applicant is still advised to verify with the POEA the status of a recruitment agency with which he or she wishes to apply.

It

3EutemShippingLines, Inc.uPhilippineOverseasEmplovmentAdministratioq etat, 166SCRA533(1988). Eutem Shipping Lines, Inc- u- Philippine Overseu Employment Administration, et at, 170 SCRA 54 (1989). t See also Philippine-Singapore Ports Corporationu National Labor Relatiow Commission, eL aL, 218 SCRA 77 (1993) 6 See Book VI, Rule I, Section 2 O of the POEA Rules md Regulatiom, c mended (1991).

OCW Problems in Perspective: Causes & Remedies

"xxx lilt is presumed that before their deployment, the petitioners were subjected to the trade tests required by law to be conducted by the recruitment agenry to insure employment of only technically qualified workers for the foreign principal. There was no misrepresentation on tle part of the petitioners. They had applied as A/C mechanics and clerk, and we may assume that the trade tests conducted on tlem were for these positions and not for the position of assistant cook. ffthey fell short of the employer's expectations, the fault lies not with the petitioners but with the recruiting agency for deploying them even if they did not possess the skills necessary for &e positions they were seeking.

xxx If AR and Sons felt they were not qualified for these positions, it should have rejected their applications outright instead of accepting their recruitment fees just the same and assuring them that their employment has already been approved by the foreign principal. It was the fault of AR and Sons for holding the petitioners to its foreign principal as qualified when they were found later to be deficient. xxx"

fV. Common Violations Committed Against the OCW

1. Common Recruitment Violations

Recruitment violations are unlawful activities that occur at the pre-employment stage or before the overseas worker is deployed abroad. The 1991 POEA Rules enumerate 21 recruitment violations. Under said Rules, these violations are not criminal in nature but are only grounds for suspension or cancellation of the license of the recruitment agency. Knowing what violations are commonly committed by the agency, it is hoped that the prospective OCW would be more cautious when applying for overseas work.

It would seem that under R.A. No. 8042, there is no more distinction between "Recruitment Volations" and "Illegal Recruitment" as the recruitment violation activities have been listed under illegal recruitment. Howeveq a closer scrutiny of
the law would show that the following recruitment violations which were previously

included in the 1991 POEA Rules are now excluded from the illegal recruitment provision ofR.A. No. 8042, to wit:

- charging, imposing or accepting directly or indirectly, any amount of money, goods or services, or any fee or bond for any purpose
whatsoever before employment is obtained; - engaging in recruitment activities in place other than that specified in the license without previous authoization from the Administration

(PoEA);
- falsifying or altering travel documents; - deploying workers whose employment and travel documents were not processed by the Administration; - deploying workers or seafarers to vessel or principals not accredited by the Administration; - disregard of lawful orders, notices and other processes issued by the Administration; - coercing workers to accept prejudicial arrangements in exchange for certain benefits that rightfully belong to the workers; - withholding of workers' salaries or remittances without justifiable
reasons.

In fact the above "violations" are totally omitted under the new law. As R.A. No. 8042 does not contain any provision on "Recruitment violations", a query may be posed whetherthis genre oftransgressions known as "Recruitment Volations" under the 1991 POEA Rules still exists. Definitely, they cannot be considered illegal recruitment activities since they are not so provided by law and, therefore, a worker cannot file a criminal complaint for these violations before the regular courts. Neither do they fall under money claims cognizable by the Labor Arbiters. If it is to be construed that the new law merely amended parts of the old law and, therefore, the
above-rnentioned violations still exist independently as recruitment violations, another problem becomes evident: where should the complaint be filed?

A reading ofR A No. 8042 gives the impression that the Adjudication Branch ofthe POEA would be abolished. Ifthis were true, then what agency would hear and decide cases of recruitment violations? Ifthe intention ofthe new law is to continue with the Adjudication Branch then a situation may be arise wherein a worker may have to litigate his or her claims against a recruitment agency before three different government bodies. This seems te be a lacuna in the law.
On the assumption that there are some activities that can still be considered as recruitment violations, it would not be amiss to discuss some of the more common
ones.l5

It Under R.A. No. 8042, lettes B, D, E md F already comtitute illegal rrcruitment md

re thsefore qiminal

in natue.

OCW Problems in Perspective: Causes & Remedies

A. Non-issuance of receipts for fees paidr6

This is one ofthe most common recruitment violations which agencies commit. Under the law all amounts received by an agency from a prospective OCW must be covered by an official receipt. The receipt must contain the name ofthe agency, the address and the amount received. One modus operandi of agencies is to tell the prospective OCW that it does not issue an ofiicial receipt until it has receivedthe full placement fee from the applicant. For example, the agency pegs the placement fee at tr12,000.00 If the applicant pays only F6,000.00 (which is already above the legal rate ofP5,000.00) the agency will not issue any receipt. Ifthe applicant asks for one, the agency will merely say that inasmuch as the placement fee is not yet paid in full, it will not issue any receipt. In addition, ifthe applicant cannot pay the balance, it will get the same through salary deduction. As can be seen, although the worker pays the placement fee he is left with no evidence of payment. Sometimes the agency will issue a "receipt" but this will actually be a "cash voucher" or any ordinary receipt which one can buy from any bookstore without being registered with the Bureau of Internal Revenue (BR) This is not the receipt contemplated by the law. Other agencies may inform the applicants that if they insist on a receipt they will not be deployed abroad.

However, even in the absence of the receipt as evidence of recruitment and payment of fees, the OCW must not lose hope when bringing forth his or her claim. Failure to demand receipts as proof of payment is not fatalto a worker's case. There is nothing unusual in the failure of a worker to rely on the promise made by an agency. Being inexperienced and titillated by the prospect oftravelling to the vaunted lands of milk and honey, first-time OCWs are easy prey to an agency's glibness and roseate promises.'7 The absence of receipts does not mean that the agency did not transact with the overseas worker for the entire process of recruitment can still be established by the clear and positive testimony of the worker.l8 In one case where the agency merely denied the allegation that it received the placement fee, the Supreme Court said that the crucial point to consider is that the workers categorically and unequivocally testified that the agency collected from them the amount of Thirty
o

Book I, Title I, Chapter II, Art. 32 ofthe Labor Code. See spra at note 1 . See People ofthe Philipptnes u Carmelita Puertollano Comia, 236 SCRA I 85 ( I 994)

Aleneo Human Rishts Ccnter

thousand (+30,000.00) pesos; and that as between a positive and categorical testimony which has a ring of truth on one hand and a bare denial on the other, the former is generally held to prevail.le In another case, the agency raised the defense of the

workers' failure to insist on a receipt. The Supreme Court said that the workers should not be faulted for giving up a measly receipt in return for a golden opportunity to fulfill their dreams of earning easy money abroad,zo especially since the workers satisfactorily explained that they did not insist on a receipt because the agency threatened that they would not be able to depart if they did.

B. Overcharging

of fees2l

Under the 1991 POEA Rules, a seabased OCW does not have to pay any placement fee. For landbased OCWs the following are the allowable rates of fees to be charged:
1. Hiring Cost for Taiwarq one month salary (mobilization fee) plus Five Thousand pesos (I5,000.00)22 2. For all other jobsites, Five Thousand pesos only (F5,000.00)'?3
This is another provision commonly violated by recruitment agencies. It must be noted that under R.A. No. 8042, this violation is now considered an act of illegal recruitment and is, therefore, criminal in nature. It is difficult to comment on the merits of making this violation a criminal offense. On the one hand, it may be an effective deterrent on the agencies not to charge unlawful fees considering the penalty involved; but on the other hand, it might be difficult for a worker to prove this charge as the quantum of evidence that would be required is proofbeyond reasonable doubt. If the worker does not have any receipt as evidence of payment, it now becomes laborious to prove that illegal exactions took place; whereas formerly only substantial evidence was required in order to prove the charge of unlawful exaction.2a

In the absence of any receipt, it would seem that the issue would revolve upon credibility. Jurisprudence states that it is against human nature and experience for strangers to conspire and accuse another of a most serious crime just to mollify their hurt feelings especially if the cornplainants are from the rural areas.z5 Furthermore, the absence of evidence as to an improper motive actuating the principal witnesses of the prosecution strongly tends to sustain that no improper motive existed and that
te Spouses Wcente and Gloia Manalo u Hon Niqes Roldan-Confeso1 zoSeePeopleofthePhilippineswPaulinoNaparanJxyNaca4225
'?r

et aL, 215 SCRA SCRATl4(1993).

S0S

(1992).

Section 2(a), sapra aLnote 6. Department Order No. 2. See Memormdm Order No. 5, Senes of 1985. b See supra at note I 9. 25 See People ofthe Philippines u Nelia Coronaciony Noque and Eduardo Aquino y Aquino, 237 SCRA227 (1994), see also Peopte ofthe Philippines u Elizabeth Coral y Adela4 230 SCRA 499 (1994).
See POEA " 23

OCW Problems in Perspective: Causes & Remedies

their testimony is worthy of full faith and credit.26

C. Contract signing only after payment of fees27

This category of violation and letter "B" above actually constitute only one provisior under the 1991 POEA Rules. Under R.A. No. 8042, however, the act of making the worker sign the contract only after payment of fees is no longer considered illegal recruitment. Theoretically, before an OCW pays his or her placement fee, he or she must have already signed a contract of employment duly certified by the POEA. It is only after the signing of an approved contract that the agency should collect the placement fee. However, what happens in practice is very different. After the initial application by the worker with the agency by means of filling up ofthe bio-data sheet, the agency will check ifthe worker's qualification fits a particular job description for employment abroad. If it does, it would then send a telegram to the applicant asking him or her to report to the agency. If it thinks that he or she qualifies, the agency would then refer the applicant to a medical clinic for medical examination, and then for trade testing. Sometimes the agency would also ask the applicant to get his or her passport from the Department of Foreign Affairs (DFA) Thereafter, the scheme in getting the placement fee begins. More often than not, the agency will inform the applicant that there is ajob order abroad but it would take some time to process the papers. However, it wili tell the applicant that if he or she can pay the placement fee as soon as possible, this would speed up the application process. Also, the agency may ask the applicant to sign a number of documents some of which may be blank papers with the explanation that this is also needed in order to help speed up the processing of the necessary documents. It is important to stress to all prospective applicants that they should be careful in signing documents. There have been instances where the blank documents signed eventually turned out to be promissory notes of the applicant-worker in favor of the agency (especially if the full [illegal] placement fee has not yet been paid). D. Non-Compliance with the Minimum Provisions of a Contract28
Among the minimum requirements which a model contract must contain before
:e.
Peaple ol'the l)hil]ppnes u Joey Bodoza y Bula and Nimfa Bodozo y Book I 1. Rule \. Sectron 2 (a), I 99 I POEA Rules sapra at nole 6. Book \ Ruie il. Scctron I (b), I 991 POEA Rules sapra at nole 6.

Nei,

21

5 SCRA 33 (1992)

Ateneo Human Rights Cenler

it will be approved by the POEA are the following:

a. gsaranteed minimum wages/overtime pay b. free transport to and from point of hire
c. free medical and dental treatment and facilities d. just cause for termination e. workmen's compensation/war hazard

f. repatriation of workers remains

g. assistance on remittance
of workers salaries h. free and adequate board and lodging and food allowances Violations under this category shall be discussed within the context of contract substitution.

E. Contract Substitutionze
Contract substitution occurs when an agency or foreign principal substitutes the approved work contract with another agreement or makes alterations in the employment contract which contains provisions below the minimum requirements. All contracts for overseas employment have certain minimum provisions (see D) required by the POEA. This is the reason why they have to be duly approved by the POEA in order to determine whether said contracts comply with such requirements and to insure that the workers shall not be placed in a disadvantageous position. Necessarily, contract substitution almost always involves the signing of at least a second contract which did not pass the POEA. However, the fact that the worker signed a second contract does not necessarily mean that he or she is estopped from questioning it The circumstances surrounding the signing of the substitute contract have to be considered as these may show that the worker was under constraint in signing the same. The POEA will only allow a substitution if the second contract
contains more favorable provisions than all the minimum requirements set by it. Thus, in a case wherein a "supplementary contract" was entered into affording greater benefits to the workers than the previous one, and although the same was not submiued

for the approval of the POEA, the contract can properly be considered as valid and enforceable, provided that any provision contrary to morals, good customs, public policy or public order shall be considered null and void.30 Moreover, annotations on the original contract agreed upon by the parties which only clarify certain provisions are not considered violations.3
There are numerous ways by which an unscrupulous agency is able to replace a contract duly approved by the POEA. An agency may ask applicants to sign so
u'
Ja

Section 2(l), sapra at note 6. Seagull Maitime Corp- and Philmare thipping & Equipment Supply v. Nerry D- Balatongan, et aL, 170 SCRA 813 ( 1989) tt Norberto Soiano u Ofshore Shipping andManning Corporation, et al., 177 SCRA 513 (l 989).

many documents in one sitting so much so that the applicants hardly have time to go over all documents thoroughly. Eventuallythe applicants end up signing two contracts, one which contains all the minimum requirements which will then be presented to the POEA or Labor Assistance Center at the NAIA before departure, and the second contract which will be inserted inside an envelope containing all the worker's travel documents which is usually given just before he or she embarks for abroad.

As mentioned earlier, sometimes the agenc| wiil ask workers to sign blank documents which will actually be used by the agency to fill out the necessary details it may need. When a worker is told by the agency that everything is already prepared and that he or she will leave on a given date, the agency also informs the worker that all the rlecessary documents will be given to him or her at the airport. Then, just before the worker is about to board the plane, representative of the agency rfill deliver the documents to the worker and ask him or her to sign some contracts before the papers are turned over to the worker. As the worker is already placed in an awkward predicament, he or she will sign all the papers rather than lose the opporhrnity to leave. Later, the worker will be surprised to find out that the employment contract with him or her is difFerent from the one he or she originally signed.

It is also not unusual for the foreign principal to force overseas workers to sign another contract upon their arrival at thejob site. There have been even instances where agencies forged the signatures of workers in either the first or the second contract.
The Supreme Court has held that a local labor contractor remains to be the employer ofworkers even if there is an assignment oftheir contracts of employment to the foreign employer.32 Also, a local recruitment agency that severs the agency agreement with its foreign principal may still be sued for violation of the employment contract committed by the foreign principal. The obligation of the local recruitment agency toward the workers it deploys abroad is not coterminous with its agreement with the principal, but extends until the expiration of the employment contracts of the workers deployed and recruited.33

;'
33

See

Hydro Resources Contractors Corporation v. The National Labor Relatiow Commission et al., 168 SCRA 385 (,1988).

Supraalnole13.

Ateneo Humari Rights Center

t3

R Failure to deploy workerc without valid reason within the prescribed periodg
Under the law an agency must deploy a worker within 120 calendar days from the date of signing of the employment contract. Failure of the agency to deploy a worker within the prescribed period without valid reason shall be a cause for the suspension or cancellation of license or fine. In addition, the agency must return all documents at no cost to the worker, including the placement fee paid by the latter. Failure to do so shall give rise to a cause of action against the agency.

It cannot

be over emphasized that the

worker should

as much as possible demand

for a receipt from the agency for any payment made. If none is issued then it is recommended that the worker make his or her own, containing all the relevant
information such as the amount paid, date and place of issue, and the time when the transaction took place. He or she must have a representative ofthe recruitment agency sign the receipt. The worker is also advised to keep all receipts from the very first moment that he or she thought of going overseas. These receipts which include the medical examination receipts, trade testing receipts, transportation, etc., will be very
these are the best evidence that

important especially if the worker was not deployed and is now seeking refund as the transaction of recruitment took place.

Furthermore, all certificates issued by medical clinics and testing centers, etc., should be kept until the worker returns. It is advisable to have photocopies of all these documents. The worker should also give copies to his or her nearest kin as an additional safety measure in case the worker's own copies are lost or in case something happens to the worker. In relation to this, it is advisable to have all medical examinations and trade testings conducted only by duly accredited clinics and testing centers since they would carry the presumption of regularity.35 As earlier stated, the recruitment agencies have a duty to have all their applicants examined only by duly accredited medical clinics. The same may be said for testing centers.

3a 35

Sec.2 (p), rupra alnotn 6.

A list of rcsedited hospitals and clinics

can be

fomd in the "OCW Hmdbook:

Gabay paa sa Mmggagawang Pilipino" pp. 165-175

If it is the worker who withdraws his or her application from the agency within 120 calendar days from the signing of the employment contract, the law provides that the agency must refund the amount paid by the worker after deducting actual expenses incurred in the documentation as may be supported by receipts. Thus, if the agency cannot show any receipt for expenses incurred it must return the whole amount paid by the worker.

G. Viotation of any provision of the Labor Coipon.q.tu

,

This is a "catch all" provision of the Labor Code. fut. 39 (b) specifically provides that any violation of any provision of the Labor Code and the POEA rules and regulations carries with it a penalty of imprisonment and/or fine. With the exception of those acts which are no longer considered illegal recruitment under R.A. No. 8042 and, therefore, have been effectively decriminalized, all other provisions in the Labor Code and the 1991 POEA Rules and Regulations would come under the purview of Art. 39 (b)

2. trlegal Recruitment
A. Definition

ffii
as:

Under Sec. 6 of R.A. No. 8042 illegal recruitment is defined

"x x x any act of canvassing, enlisting, contracting, transporting, utilizing, hring, or procuring workers and includes referring, contract services, promising or advertising for employnent abroad, whether for profit or not, when undertaken by a nonJicensee 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 employrnent abroad to two or more persons shall be deemed so engaged. It shall likewise include the following acts. whether committed by an), 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
16

Chapter

III, Art.

39 (b),

vpra

note at 16

Ateneo Human Rights Cenler

Labor and Employment, or to make a worker pay any amount greater than that actually received by him as a loan or advance;

(b) To furnish or publish any false notice or information or document in relation to recruitnent or emplol'rnent;
(c) To grve any frlse notice, testimony, information or document or commit any act of misrepresentation for the purpose of securing a license or authority under the Labor Code;

(d) To induce or attempt to induce a worker already employed to quit his employment in orderto offer him another unless thetransfer is designedto liberate a worker from oppressive terms and conditions of employrnent;
(e) To influence or attemptto influence any person or enttty notto employ any worker who has not applied for emplo5nnent through his agency;

(0 To engage in the recruitment or placement of workers in jobs harmfirl to public health or morality or to the digruty of the Republic of the philippines;

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

of

(h) To fail to submit reports on the status of emplol,rnent, placement vacancies, remittance of foreign exchange earnings, separation from jobs, deparlures 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 sigmng 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,
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;

(i)

(k) To 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) Failure to actually deploy without valid reason as determined by the Deparfrnent of Labor and Employment; and
(m) Failure to reimburse
expenses incurred by the worker in connection

OCW Problems in Pers

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." (underscoring supplied)

An unlicensed agency or person conducting any of the recruitment activity

above-mentioned is automati cally engaged in illegal recruitment by the simple fact that it has no license. The act being mala prohibita, rnlent is immaterial. Take note that the clause immediately following the word "Provided' does not mean that a person/agency must illegally recruit at least two persons for a fee to commit the rri*" of illegal recruitment. It has been held that the proviso is merely an evidentiary condition that establi shes a prima facie presumption of illegal recruitment.3T

This Supreme Court ruling is favorable to the OCWs inasmuch as if two or more of them file a complaint for illegal recruitment before a fiscal, a prima facie
presumptionagainst the unlicensed recruiter, and consequently, a case can immediately be filed in court. The unlicensed recruiter will have the burden of overcoming this presumption. To reiterate, even if an unlicensed recruiter promises or offers overseas Lmployment to only one person for a fee, said recruiter can be held liable for illegal recruitment; however, there will be no primafacie presumption.

The underscored portion of the afore-quoted law emphasizes the innovation brought by R.A. No. 8042. It is now clear that even LICENSED AGENCIES can be prosecuted for illegal recruitment if they commit any of the following acts under Sec6 ofR.A. No. 8042. Previously, it was difficult to hold licensed agencies liable for the crime of illegal recruitment because the said crime can only be committed by those who conduct recruitment without the necessary license or whose license have been cancelled or suspended. At most, licensed agencies were only charged administratively before the pOEA for committing acts which under the i991 POEA Rules were considered recruitment violations. The most serious penalty that could be imposed on an erring agency then was revocation of its license. Wth the expansion of the concept of illegal recruitment including most recruitment violations, officers of erring ug"n.i", .un ,ro* be held criminally liable for illegal recruitment. Hopefully the ttrreat of imprisonment and fine hanging over them like the sword of Damocles over them would deter them from committing acts like over charging of placement fees, contract substitution, and non-deployment of workers'

It is interesting to note that in the case of The Court Administrator u Lorenzo moral Sen Andreft the Sulreme Court held that illegal recruitment does not involve of regardless in itself turpitude because moral turpitude implies something immoral whether or not it is punishable by law. Accordingly, it is not enough that the act is
'1

People ofthe Philippines v. Hon Domingo Panls, la2 SCRA 664 (1986) r97 scRA 7M (1991).

Ateneo Human Rights Center

t7

mala prohibita,but the same must be inherently immoral. The performance of the act itself and not the prohibition by the statute is determinative of moral turpitude. The Court went on to say that moral turpitude does not, however, include acts which are not by themselves immoral but whose illegality lies in the fact of being positively

prohibited. With all due respect, this writer has his reservations on these pronouncements for what can be more despicable than conning your fellow citizens out of their savings by playing on their hopes and dreams of having a better life outside their country? It is a known fact that most of our workers spend their lifesavings, borrow at usurious interests andlor sell their properties just to be able to come up with the required placement fees which are often bloated beyond the legal ceiling. Therefore, it would seem clear that the act of defrauding a worker of his or her hard earned money is inlerently immoral, albeit the author also recognizes that the ruling in this case may have been decided given its peculiar facts, to wit. The accused who was a public employee was being removed on the ground of moral turpitude for his involvement in an illegal recruitment case. Howeveq he was just a volunteer employee of the recruitment agency, without compensation, and had only hoped that he would be deployed for overseas employment. He was also a victim of the unscrupulous acts of others who had capitaltzedon his service. The court, therefore, ruled that he cannot be removed from his public position considering that the crime of illegal recruitment does not involve moral turpitude.
An issue that often crops up is whether or not a person prosecuted for illegal recruitment can still be prosecuted for estafa. This has already been settled in the case of People of the Philippines v. Gener Turda3e wherein the Supreme Court held that there is no double jeopardy since estafa is wider in scope than illegal recruitment and covers deceits whether or not related to recruitment activities. Furthermore, in estafa, damage is essential while in illegal recruitment it is not; and while estafa is malum in se,lllegal recruitment is malum prohibitum.

B. Illegal recruitment

as economic sabotage

Illegal recruitment when committed by a syndicate or in a large scale shall be considered an offense involving economic sabotage. Illegal recruitment as economic sabotage is committed by a syndicate if the recruitment is carried out by a group of three (3) or more persons conspiring or confederating with one another. There is large scale illegal recruitment when the illegal act is committed against three (3) or more persons individually or as a group.a0

Notice that in large scale illegal recruitment, the victims need not have been recruited at the same time or place. It is possible that they were recruited one at a
ao

r' 233 scRA 702 ( 1994), see also See Sec. 6 (n), R.A. No. 8042.

pe

opre of the philippines v. Femando Manungas, Jr. y Go,23 r scRA

(r 994)

OCW Problems in Perspeclive: Causes & Remedies

time at different places and yet the charge will be large scale illegal recruitment for the law uses the phrase "committed against three (3) or more persons individualllz or as a group." (underscoring supplied)

It is important to distinguish if the offense is an ordinary illegal recruitment or one involving economic sabotage because the prescriptive periods and penalties are exceptionally disparate.

C. Prescriptive

Periodal

a. Ordinary Illegal Recruitment: FIVE YEARS; b. Those considered as Economic Sabotage:

TWENTY YEARS.

D.

Penaltiesa2 a. Ordinary

and

Illegal recruitment: 6 years and 1 day to 12 years fine of not less than P200,000 but not more than F500,000.

b. Economic Sabotage: Life Imprisonment and a fine of not less than P500,000 but not more than Fl,000,000. c. The maximum penalty will be imposed if the person illegally recruited is LESS than 18 or if committed by a non-licensee or non-holder of authority.
Since the law uses the conjunctive "and" between the penalties of imprisonment

and fine, both penalties have to be imposed together and not in the alternative. In addition, as economic sabotage is punishable by life imprisonment such offense is not bailable under the new guidelines on bail issued by the Supreme Court.a3 Hence, if
ar Sec. 12,
a2 a3

R.A. No. 8M2. Circulu

12-94.

Sec. 7, R.A. No. 8042. See Supreme Court

Ateneo Human Rights Center

t9

there are three (3) or more complainants against an illegal recruiter the'latter cannot post bail.

In terms of weighing evidence in a case for illegal recruitment, it has been held that self-serving negative evidence cannot prevail over positive identification.a Thus, in a situation wherein the complaining workers positively identified the accused as the person who recruited them for work abroad, the latter's denial that he never knew the complainants until they met at the fiscal's office and later in court should be given only scant consideration.a5 Also, the fact that someone else prepared the receipt is not material for what is important is that the private complainants were united in stating that the accused personally signed the receipts in their presence after receiving money from them.{

3. Illegal Dismissal/Money Claims

@-

[t
be recalled that one of the requirements of an overseas contract is that there must be a provision stating that the worker can only be dismissed for a just cause. In addition, before a worker can be dismissed, he or she must have had an opportunity to defend himself or herself a7 This dual aspect is what is referred to as substantive and procedural dtre process. A violation of either will amount to an illegal dismissal. Substantive due process simply means thataworker may not be removed except

It will

for a just and valid cause as provided for by law.a8 For example, dismissal may be justified if the worker is rowdy, proves to be inefficient or suffers from an incurable disease. Normally the causes for termination will be stated in the contract of employment; even if they are not, the bottom line is that a worker, whether
probationary or pennanent,ae is accorded some form of security oftenure in the sense that he or she may not be dismisied at the whims of the employer.to Ifthis security is
a Supra atnotn39. n5 People of the Philippines v. Cisostomo Bugaoan y lgnacio, 1 g3 SCRA 62 (1990). a6 People ofthe Philippinesu Zenaida E. Wllafuerte,23ZSCRA225 (tg94). a1-Inter-Oienl Maitime Enterpiiset, Inc-, et aL, v. National Labor Relatiorc Commisioa 235 SCRA 263 (l 994). ae Erectors Incorporqtedu National Labor Relatiore commissio4 First Diisio4 163 scRA 104 (l9gg). oe See Land and Housing Development Corp. and Amerad Betong Vagforbattinger (ABI/) u. Natio,nal Labor Relatiore Commission, 166 SCRA 291 (1988). In this cme the Supreme Court applied Art. 280 of the Labor Code in detemining whether the overeeru conlract worker wN a probationary, pemment or ccual employee. 5a See Alga Moher u Hon Atiere4 et aL; flpra alnote 14, see also Omar K AI:Esa'yi and Compa4| Ltd u Hermino Flores, I 83 SCRA 458
(1eeO)

OCW Problems in Perspeclive: Causes & Remedies

violaced, then the agency that deployed the worker will be held liable for the capricious

acts of the foreign employer.

It

is not enough that there is ajust cause for dismissal. The worker must also be

afforded procedural due process. This merely connotes that the worker must be informed of the charge against him or her and given the opportunity to refute it.51 This procedure for terminating employment is set ou{ in the rules implementing Batas PambansaBilang(B P.Blg.) 130 whichconsistsofanoticeofdismissal, anopportunity to answer, a hearing, and a notification of the decision to dismiss.52 The minimum requirement consists of notice to the employees intended to be dismissed and the grant to them of an opportunity to present their own side.53 In furnishing the notice the POEA requires at least one (l) month notice.5a This is to afford the worker enough time to properly prepare'for his or her departure. Notwithstanding this, there are many instances wherein the worker was just notified on the same day that he or she was made to leave.

The subsequent compliance with procedural due process before the POEA does not wipe out the defect of its earlier denial by the employer. The law requires
that the investigationbe conductedbefore the dismissal and not after. Thus, the absence of a prior investigation cannot be corrected by the presentation of charges against the worker and the investigation later conducted by the POEA' especially if the ground for the dismissal is found to be unjustified.55

It would be futile to argue that our laws, especially the procedural ones, do not apply to OCWs who are covered by foreign contracts of employment. The governing
principle is that parties may not contract away applicable provisions of laws especially peremptory provisions dealing with matters heavily impressed with public interest. The law relating to labor and employment is clearly such an area and parties are not at liberty to insulate themselves and their relationship from the impact of labor laws and regulation by simply contracting with each other.56 In the case of Royal Crown Internationale v. National Labor Relations Commission51 our Supreme Court said:

"x x x The provisions of the Labor Code of the Philippines, its

implementing rules and regulations, and doctrines laid down injurisprudence dealing with the principle of due process and the basic right of

all Filipino workers to security of tenure, provide the standard by which the legality ofthe exercise by management ofits prerogative to dismiss incompetent, dishonest or recalcitrant employees, is to be
5t
52

Supraatnole4T.
See

Taihei Company
aL

Ltd

and

Maitime Factors, lnc., u

v. Jose

'3

Klneness Maitime Agency, Inc., et aL

note
4'7
.

The National Labor Relatiorc Commrtio4 200 SCRA 498 (1991) Marius R Palmos, et aL, 232 SCRA 448 (1994).

a Supra

t5SeeHellenicPhilippineShipping,Inc.uEpifunioC.Stele, l95SCRAl79(1991).
t6 See Manila

Resource Ddelopment Corporation u- The National Labor Relatiorc Commttsoa 213 SCRA 298 (1992).

'

178 SCRA 569 (1989).

Ateneo Human Rights Center

2L

determined. Whether employed locally or overseas, all Filipino workers enjoy the protective mantle of Philippine labor and social
legislation, contract stipulations to the contrary notwithstanding. This pronouncement is in keeping with the basic public policy of the State to afford protection to labor x x x."

In overseas employment, there is a presumption that OCWs abide by the terms of the contract, behave in the best manner and tradition of a Filipino, observe and respect the laws, customs, morals, traditions, and practices of the country where he or she is working.58 This presumption is very favorable to the worker because in trying to establish a case ofillegal dismissal, once the employer-employee relationship has been established, the burden of proof shifts to the employer.5e The employer must prove that there was a just cause for termination, and failure to do so would result in a finding that the dismissal was unjustified.6o In one case it was held that the failure to present any evidence to show why and how workers were declared to be unfit for the job belies assertions that the workers were unfit.61 Also, the absence of details surrounding the charge of disagreeable conduct ofthe worker casts doubts on the veracity of the charge. Sweeping statements are not looked upon favorably and they cast doubt on the validity of the dismissal.62 The burden of proof in showing just and valid cause for termination is imposed upon both the foreign-based employer and the employment agency or recruitment entity which recruited the workers, for the latter is not only the agent of the former, but is also solidarily liable with its foreign principal for any claims.63 In like manner, in a claim for underpayrnent the burden of proof is also with the employer who must show that the salary of the worker was fully paid because he or she is in possession of the documents evidencing payment.s The Supreme Court will give credence to the workers' claims rather than to the agency/employer which merely denied the claim without submitting its own evidence to refute it. Since it is so easy to say that the workers' evidence was insufficient, the agency should refute the assertions of the workers by producing the records and logbooks of the foreign employeq which could easily be obtained by them since they are the agents of the
employer.65

There are instances wherein the agency will seek to bar the recovery of the worker of any additional claim by presenting a quitclaim. The signing of a quitclaim does not necessarily mean that the worker is bound by it. The fact that the consideration
58
5e

see Ramon Rue and Supra al note 14.

Roita Rue

u.

National Labor Relatiorc commission et ar, 237 scRA

523

(lgg4).

60.see
61

62
63

Rqtet & Lim compan1l, Inc., u. National Labor Relatiorc commisaio4 et aL, z0l scRA 772 (1991). Supra atnole 50. See Ambraque Intemational Placement & Sevices u. The National Labor Relatiore Communoa 157 SCRA 431 (1988)
57
.

4 .tupla at note 58. 6' see Alejandro J. cuadrt et aL, u National Labor Relatiore commissio4 et aL, 201 scRAzTg (1992).

Supra at notn

a,

OCW Problems in Perspective: Causes & Remedies

given in exchange thereof is very much less than the amount the worker is claiming will render the quitclaim null and void for being contrary to public policy especially where there is clear proof that the waiver was wangled from an unsuspecting or gullible person, or the terms of settlement are unconscionable on its face.66

PART

tr

V. Causes of Action

The three most common causes of action often cited by aggrieved workers are

the following:

: Recruitment Violations : Illegal Recruitment : Illegal Dismissal which almost always includes money claims
It
is not advisable to rely solely on the PRO-FORMA complaints that the OCW

fills up and files. The PRO-FORMA complaint does not provide an opportunity for the worker to narrate all the important facts of the case. By making a narrative complaint-affidavit or complaint it will be easier to explain the evidence to be presented, or if there is none, the narration will better explain such absence.

1. Recruitment Violations (1991 POEA Rules) CAVEAT: The discussion is based on the 1991 POEA Rules, as R.A. No. u042 does not contain any provision relating to Recruitment Violations. It is with
this reservation that the following procedure is given.

- Jurisdiction. UNDER the 1991 POEA Rules, the POEA Adjudication Office has jurisdiction.
- Procedure: Recruitment violations'are administrative in nature. Upon the filing of the complaint the Hearing Officer will issue summons to the defendant instructing
66

Claita II

Cruz v. National Labor Relatiow Commissio4 et aL, 203 SCRA 286 (1991); citingPeiqeut u NLRC, 186 SCRA 724.

Ateneo Human Riqhts Cenler

him or her to answer within 10 CALENDAR days. Only one motion for a l0-day extension is allowed. After the termination ofthe hearings, the hearing officer has 30 days to resolve the case.

Appeal: Any party aggrieved by the Decision of the Hearing Officer may appeal the same to the National Labor Relations Commission (NLRC), within ten (10) calendar days from receipt hereof by filing with the Adjudication office, PoEd the following:

a) A Memorandum of Appeal or Motion for P*econsideration

grounds relied upon (5 copies);

speci$ing the

b)

Serving a copy ofthe above to the adverse party; and

an appeal fee ofP100.00.

c) Paying

Any Motion for Reconsideration shall be treated as an appeal provided that if it meets the above requirements, otherwise the same shall not be given due course. Petitions for Review shall be filed with the Secretary oflabor within l0 CALENDAR days from receipt of the order by the parties. (Section 2, Rule IV, Book vI, 1991 Rules and Regulations Governing overseas Employment)

- Review:

Money claims underthis cause of action are in the form of actual damages, i.e., placement fees, medical expenses, etc.

- Claims:

2. Illegal Recruitment (1991 POEA Rules and RA. No. S042)

For illegal recruitment the complainant can file either an administrative complaint

with the POEA or a criminal complaint before the REGULAR COLIRTS. For the administrative complaint the penalty will only be cancellation ofthe license to operate. On the other hand, the criminal action carries the penalty of imprisonment and fine.

- Jurisdiction: Administrative - complaint to be filed with the POEA. Criminal underR.A. No. 8042, a criminal complaint must be filed withthe REGIONAL TRIAL COIIRT oftheprovince or citywherethe offensewas committed orwherethe offended party actually resides at the time of the commission of the offense.67
- Procedure: The procedure for filing a criminal case of illegal recruitment is substantiallythe same as in other criminal cases. It is initiated by the filing of a complaint before the fiscal.
t
See Sec. 9, R.A. No. 8042

live: Causes & Remedies

3. Iltegal lbrmination/Money Claims (R.A. No. 8042)

Formerly the Adjudication Branch of the POEA had the authority to hear and decide all claims arising out of an employer employee relationship involving overseas workers. This authority has already been abrogated by R.A. No. 8042.68

- Jurisdiction: Under the new law, the LABOR ARBITERS of the National Labor Relations Commission Q'ILRC) have original and exclusive jurisdiction'

Procedure: From the filing of the complaint, the Labor Arbiter has 90 calendar days to hear and decide the case. There are penalties provided for by law if the Labor Arbiter fails to comply with this mandatory period such as:

a. withholding of salary

b. suspension c. dismissal

Appeal: This portion follows again the procedure mentioned in the Labor Code and the 1991 POEARules and Regulations, as amended. From the Labor Arbiter's decision an appeal can be made to the National Labor Relations Commission (NLRC) within 10 C.ALENDAR DAYS, and from the NLRC, a petition for certiorari under Rule 65 can be made to the Supreme Court within a REASONABLE PERIOD OF TIME (The rule ofthumb is 90 daYs).

Requirements for perfection of appeal to the NLRC: file within 10 calendar days:
a) file a memorandum of aPPeal; b) must be under oath; c) pay appeal fee;

d) proofofservice,
e)

if

agency is the one appealing and there is a monetary award, post a cash or suretY bond.6e

Claims: Money claims can be made for under payment of wages (claim the difference), unpaid wages (if worker was not paid for months worked), or actual wages and expenses (all expenses incurred in relation to the overseas employment,
i.e., medical, trade testing, ete.).

R.A. No. 8042 also allows moral, exemplary darnages and attorneys

See Src. 10, R.A. No. 8O42. 6' See Book VIL Rule V, Section 5, 1991 POEA Rules, supra at note 6'

.{.Dco Human Rights Cenler

'C

fees to be awarded. This is another innovation of the new law which is welcomed by most workers. Now they can be "compensated" for the mental angulsh and zufferings which they have undergone in the hands of unscrupulous employers/agencies.

In case of termination without just, valid or authorized cause as defined by law or contract, the worker can claim FULL reimbursement of placement fee with interest atl2Yoper cmnum,PLUS salaries fortheunexpired portion ofhis employment contract OR THREE (3) months for every year of the unexpired ternr, whichever is
less.To

In one case the Supreme Court awarded separation pay although not provided for by the POEA rules. The Court applied the Labor Code provision on separation pay stating that if dismissal is due to retrenchment or reduction ofpersonnel, separation pay must be awarded.Tt

VI. Conclusion
Undoubtedly, overseas employment has helped so manyFilipinos improve their lives. With the dollar remittances, it has also contributed to the improvement of the economy of the country. It is unfortunate though that in their quest for greener pastures, many of our "modern heroes" have become victims of abusive employers and unscrupulous recruitment agencies. It has taken a long tirhe for government to begin to take a serious look at their plight. Hopefully, the rights of our workers will be better protected in the future and they can have immediate access to justice with
the support of our government The manner bywhich our OCWs should be iegarded can be summed up in the following pronouncements of our Supreme Court:

"[w]hen the conflicting interests of labor and capital are weighed on the scales of, social justice, the heavier influence of the latter must be counterbalanced by the sympathy and compassion the law must accord 'the underprivileged worker. This is only fair if he is to be given the ;opportunity-and the right-to assert and defend his cause not as a subordinate but as a peer ofmanagement, withwhich he can negotiate on even plane. Labor is not d mere employee of capital but its active and
equal partner."72

t
1t

Scc. 10,

RA

No. E042.

Stpra atnob49. a Slpra at note 3.

The Ateneo Human R.ights Center

The Ateneo Human Rights Center (AI{RC) was established in October 1986 as one of the first university-based institutions engaged in the promotion of peace, development and human rights in the Philippines. It is housed in the School oflaw of the Ateneo de Manila University. The Center seeks to realize its mandate through programs which focus on the continuinfi fcji-mation of human rights advocates among lawyers, law students and grassroots leaders, the monitoring of the human rights situation in the Philippines and abroad, research and publication, public education on peace, development and human rights, and legal assistance to indigent victims of human rights abuses. Thus, the Center assigns law students through the internship program to work with human rights organizations in the Philippines, conducts training seminars for the benefit ofgovernment and non-government orgarnzations and grassroots communities, publishes a monthly newsletter and a yearly journal, and renders legal assistance to indigent clients and grassroots communities.

As varied as the Center's programs, its beneficiaries include urban poor

communities, women, children, laborers, migrant workers, students, non-governmental organizattons, and the general public.

As an institution of the Ateneo de Manila University, the Center has access to valuable resources of the university and the law school in the implementation of its programs. Volunteer law professors, alumni practitioners and law students lend additional support to its activities.

The Ateneo Human Rights Center is located at 130 H.V. De la Costa, S.J. Street, Salcedo Vllage, Makati, Philippines.