Article 38

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Coercive, unfair or deceptive recruitment Corporate criminal liability Criminal liability

Article 38 defines and criminalises the offence of illegal recruitment, as any recruitment activities undertaken by unlicensed recruiters. Illegal recruitment committed by a syndicate or on a large scale is considered to be an aggravated offence “involving economic sabotage” and subject to higher penalties under Article 39.

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Article 38. Illegal recruitment.

Any recruitment activities, including the prohibited practices enumerated under Article 34 of this Code, to be undertaken by non-licensees or non-holders of authority, shall be deemed illegal and punishable under Article 39 of this Code. The Department of Labor and Employment or any law enforcement officer may initiate complaints under this Article.

Illegal recruitment when committed by a syndicate or in large scale shall be considered an offense involving economic sabotage and shall be penalized in accordance with Article 39 hereof.

Illegal recruitment is deemed committed by a syndicate if carried out by a group of three (3) or more persons conspiring and/or confederating with one another in carrying out any unlawful or illegal transaction, enterprise or scheme defined under the first paragraph hereof. Illegal recruitment is deemed committed in large scale if committed against three (3) or more persons individually or as a group.

The Secretary of Labor and Employment or his duly authorized representatives shall have the power to cause the arrest and detention of such non-licensee or non-holder of authority if after investigation it is determined that his activities constitute a danger to national security and public order or will lead to further exploitation of job-seekers. The Secretary shall order the search of the office or premises and seizure of documents, paraphernalia, properties and other implements used in illegal recruitment activities and the closure of companies, establishments and entities found to be engaged in the recruitment of workers for overseas employment, without having been licensed or authorized to do so.

Law / Philippines / Labour Code (Presidential Decree No. 442 of 1974, as amended)

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, breaches 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 Labour Code provides some rights and protections for workers, such as provisions regarding working hours, weekly rest, health and safety, minimum wages, and against wage manipulation and the witholding of wages. The Labour Code excludes domestic workers from its scope of application, and thus from the protections afforded to other workers. This major loophole was addressed through the enactment of the Domestic Workers Bill in 2013, which instituted a number of protections for domestic workers, including minimum wages, social security, leave entitlements, and protection against abuse, violence or harassment.