National context

philippines-cropThe Philippines faces significant challenges as a source country and, to a lesser extent, a destination and transit country for men, women, and children subjected to trafficking for labour exploitation and forced labor. According to the International Labour Organization (ILO), one million Filipino men and women leave the country every year to work overseas, and a total of 10 million Filipinos live and work abroad. A significant number of these Filipino overseas workers have been found to have been trafficked and subjected to servitude, debt bondage and forced labour in a number of industries, including in the manufacturing, construction, agricultural, fishing, seafaring, and the domestic work and service sectors in Asia and in the Middle East.

Poor socio-economic conditions prevalent in parts of the country – including poverty, high levels of unemployment, discrimination and gender-based violence – as well large-scale displacement due to armed conflict and natural disasters, render large sectors of the population highly vulnerable both to transnational and internal trafficking. Within the country, people are trafficked mostly from rural areas of the Philippines to urban centers. Children and adults are exploited for their labour through debt bondage and forced labour in agriculture, including in tobacco fields, sugar cane and banana plantations, small-scale manufacturing, and in the fishing industry.

The Filipino model of labour migration

The rapid population growth of the Philippines during the last five decades has placed enormous pressures on the labour market, resulting in high unemployment and underemployment. Since the 1970s, the Philippines has actively pursued overseas employment as a national policy in order to promote economic growth by boosting domestic consumption through remittances from abroad— which amounted to almost $27 billion in 2014.

The Philippines has been recognised as a regional leader in the fight against trafficking and as a regulatory model for migration. However, the high vulnerability of large sectors of the population, coupled with the promise of better work prospects abroad, has led to the proliferation of illegal recruiters and to a significant number of Filipino workers being trafficked and exploited overseas. According to the Special Rapporteur on Human Trafficking, traffickers lure victims through false promises of good working and living conditions or sham offers of employment, and often operate with the acquiesence of local officials. Meanwhile, recruitment agencies –legal and illegal– involved in the trafficking chain, charge victims enormous placement fees.

Regulation of labour recruitment

The Migrant Workers and Overseas Filipinos Act of 1995 was enacted primarily to address fraudulent recruitment practices. The Act establishes illegal recruitment as a criminal offence, determines the criminal liability of both natural and legal persons, and stipulates strict penalties of imprisonment and fines. It criminalises any recruitment activities carried out by brokers that are not properly licensed under the labor code, and specifies a number of acts that shall be considered unlawful recruitment, irrespective of whether the recruiter holds a license. Significantly, the Act also institutes joint and several liability of the principal/employer and the recruitment agency for any monetary claims arising out of any rights violations experienced by a migrant worker at the hands of the employer in the country of destination.

The Labour Code institutionalizes and regulates the collection of fees  by recruitment agencies, and enables the Secretary for Labour to set out the maximum allowable fees. The Labour Code prescribes a stringent system for licensing and regulating private recruitment agencies. The Code also confers the Minister of Labour the power to suspend or cancel the license of a private recruitment agency for the violation of any of the provisions in the Labour Code, as well as in any other applicable mechanisms and any rules or regulations issued by the Ministry of Labor. In 2014, the Ministry cancelled 54 licenses on account of prohibited recruitment practices such as misrepresentation, illegal collection of placement fees or non-issuance of appropriate receipts. This is a relatively small number in proportion to the number of licensed agencies operating in the Philippines, which according to the Philippines Overseas Employment Agency database amounted to over 1,200 agencies in August 2015.

Under the POEA Rules and Regulations, only Filipino citizens with the necessary capitalization can be licensed as employment agents. The license is granted after the applicant commits to complying with the Rules, which includes disclosing to prospective migrants all terms and conditions of employment, assuming joint and several liability with the employer, negotiating the best terms and conditions of employment, and deploying at least 100 workers within the first year. In addition, the rules make recruitment agents responsible for sending workers to the mandatory skills testing and medical examination, and provide that Overseas Filippino Workers (OFWs) must receive a copy of their work contract, which must be in conformity with the standard contract for that particular occupation. The minimum conditions to be included in the work contract include: guaranteed wages and overtime pay—no lower than the minimum wages in the country of destination—free transportation to and from the worksite, free food and accommodation, and just causes for termination of the contract.
The Philippine legislation devoted to the protection of OFWs is comprehensive. Problems arise in the implementation of the laws and regulations in the Philippines, rather than in the legal framework itself. According to a 2013 report by the International Organization for Migration, increased vigilance regarding the fees imposed by recruiters is needed, as recruiters tend to charge more than what is allowed. The coordination of the multiplicity of agencies working to protect OFWs constitutes another challenge. According to the Special Rapporteur on Human Trafficking, while the government has continued to develop programmes to respond to the challenges faced by migrant workers, improper implementation, follow-up, monitoring and evaluation of these programs remains a persistent problem.

Employers and recruitment agencies have also found ways to circumvent the law and the POEA’s regulations by exploiting the vulnerability of migrant workers. For example, in the face of poor employment prospects at home, workers may agree to enter into a ‘false’ employment contract that satisfies official requirements, knowing that a new contract will be entered into upon arrival in the destination country. Some organizations have reported a tendency to file cases under the illegal recruitment provisions in the Migrant Workers and Overseas Filipinos Act of 2015 rather than filing a complaint for trafficking under the Anti-Trafficking Act. Moreover, many cases of illegal recruitment currently go unreported because of fear that speaking out will result in a restriction on travel overseas.

Criminal liability

The Philippine Penal Code criminalizes slavery, child debt bondage and peonage or involuntary servitude.  Article 104 of the Code also creates civil liability of employers and corporations for any crimes committed by their employees or agents in the course of their duties.

The Philippines’ Anti-Trafficking in Persons Act of 2003 provides the legal framework for the criminalization of human trafficking in the Philippines. The Anti-Trafficking Act provides the definition of human trafficking under Filipino law, which mirrors the UN Human Trafficking Protocol definition. The Act specifies and criminalizes a number of ‘acts of trafficking in persons’, as well as acts that ‘promote trafficking in persons’, knowingly benefitting from or making use of, the labor or services of a person held in involuntary servitude, forced labor, or slavery. The Act specifically prohibits human trafficking for the purposes of forced labour, slavery, debt bondage and involutary servitude, and provides severe penalties, with sentences of up to life imprisonment and a five million pesos fine for those convicted of trafficking.

The Act further provides that in cases where the offender is a corporation, partnership, association or any other form of juridical person, the penalty will be imposed upon the owner, president, manager, or any responsible person who participated in the commission of the crime, or who knowingly permitted, or failed to prevent its commission. The registration and license to operate of the offending agency, corporation, association, or any other establishment, shall be cancelled and revoked permanently, and the owner, president, partner or manager will be banned from operating similar establishments  or organizations. In addition to this, the Act determines the confiscation and forfeiture of all the proceeds and properties derived from the commission of the crime of human trafficking. Finally, the Act authorizes the victim, but also the victim’s parents, spouse, siblings, children or legal guardian, to file a criminal complaint for trafficking, and stipulates that the filing of a  separate civil action by trafficking victims for the recovery of civil damages shall be exempt from the payment of filing fees.

While the government has made significant efforts to protect overseas Filipino workers and prevent their trafficking and exploitation abroad, according to the US Trafficking in Persons Report, there have only been 8 succesful convictions for human trafficking for labour exploitation since the first conviction in 2010, until March 2015. This compares to a total of 105 convictions for sex trafficking during the same period. Regarding the disproportionately low overall number of human trafficking prosecutions, given the magnitude of the issue in the Philippines, the US Trafficking in Persons Report of 2013 points to weaknesses in the judicial system of the Philippines, including the excessive length of trials and lack of public prosecutors dedicated to trafficking cases, as well as widespread corruption, which hampers efforts to hold offenders accountable.

Labour standards

The Labour Code regulates the employment of all workers, except certain excluded categories, and may be used to hold both individual and corporate employers to account for violations of labour rights. Under the Code, violations declared to be unlawful or penal in nature, are penalised with 3 months to 3 years of imprisonment, a fine ranging from 1,000 to 10,000 pesos, or both. The Code specifies that if an offence is committed by a corporation or any other juristic entity, the penalty is to be imposed upon the individual officer or officers responsible for the comission of such offense.

The Labour Code provides some rights and protections for workers, such as substantive provisions regarding working hours, weekly rest, health and safety, minimum wages, and against wage manipulation and the witholding of wages. Importantly, the Code establishes the joint and several liability of employers, as well as of any person, partnership, association or corporation which, not being an employer, contracts with an independent contractor for the performance of work, in the event that a contractor or subcontractor fails to pay the wages of his employees. Similarly, the Code provides that every employer or indirect employer shall be held responsible together with his contractor or subcontractor for any violation of any provision of the Code.

The Labor Code sets the minimum working age at 15, except where the child works directly under the sole responsibility of his/her parents or legal guardian; and his or her employment does not interfere with schooling, which is compulsory for children between the ages of six and 12. Children under the age of 15 may also be employed in public entertainment or information. The Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act expressly prohibits the worst forms of child labour, including all forms of slavery and trafficking of children, debt bondage, serfdom and forced labor. The Act further establishes the joint liability of the principal for the employment of children in the worst forms of child labour or in hazarduous work by a subcontractor, and determines a penalty of 12 to 20 years of imprisonment or a fine ranging from 100,000 to 1 million pesos, or both.

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View all articles National context Labour migration Regulation of labour recruitment Criminal liability Labour standards

The high vulnerability of large sectors of the population, coupled with the promise of better work prospects abroad, has led to the proliferation of illegal recruiters and to a significant number of Filipino workers being trafficked and exploited overseas