Section 6

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Coercive, unfair or deceptive recruitment Corporate criminal liability Criminal liability Debt bondage Employment contracts Retention of travel and identification documents

Section 6 establishes illegal recruitment as a criminal offence; 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. These include: accepting or charging fees in excess of the government mandated maximum, as well as making a worker pay any amount greater than that received by him as a loan or advance; substituting or altering employment contracts to the prejudice of the worker; withholding or denying travel documents from applicant workers before departure in order to request additional payments; failing to actually deploy a worker without a valid reason; obstructing an inspection; publishing any false information or documents regarding recruitment or employment; or any acts of misrepresentation for the purpose of securing a license. Section 6 also determines the criminal liability of both natural and legal persons.

Notes

According to a 2013 report by the International Organization for Migration,  increased vigilance on the fees imposed by recruiters is needed, as recruiters tend to charge more than what is allowed. Section 6 states that the persons criminally liable for the above offences are the principals, accomplices and accessories. In the case of businesses (juridical persons), the officers having  ownership, control, management or direction of the business, who are responsible for the commission of the offense, as well as the employees/agents responsible for the commission of the offense, shall be liable. This section is very expansive as it addresses a variety of acts that exacerbate the vulnerability of workers to exploitation. These acts, such as: the imposition of abusive debts, excessive fees, false information and deceptive recruitment, contract substitution,  witholding of documents, etc., are often part of the modus operandi of exploitative employers or networks. “

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Section 6. Definition.

For purposes of this Act, illegal recruitment shall mean any act of canvassing, enlisting, contracting, transporting, utilizing, hiring, or procuring workers and 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 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 employment abroad to two or more persons shall be deemed so engaged. It shall likewise include the following acts, whether committed by any 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 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;

(b) To furnish or publish any false notice or information or document in relation to recruitment or employment;

(c) 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;

(d) 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;

(e) 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;

(f) 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;

(h) 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;

(i) 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;

(j) 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;

(k) 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;

(l) Failure to actually deploy a contracted worker without valid reason as determined by the Department of Labor and Employment;

(m) 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

(n) To allow a non-Filipino citizen to head or manage a licensed recruitment/manning agency.

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.

In addition to the acts enumerated above, it shall also be unlawful for any person or entity to commit the following prohibited acts:

(1) Grant a loan to an overseas Filipino worker with interest exceeding eight percent (8%) per annum, which will be used for payment of legal and allowable placement fees and make the migrant worker issue, either personally or through a guarantor or accommodation party, postdated checks in relation to the said loan;

(2) Impose a compulsory and exclusive arrangement whereby an overseas Filipino worker is required to avail of a loan only from specifically designated institutions, entities or persons;

(3) Refuse to condone or renegotiate a loan incurred by an overseas Filipino worker after the latter’s employment contract has been prematurely terminated through no fault of his or her own;

(4) Impose a compulsory and exclusive arrangement whereby an overseas Filipino worker is required to undergo health examinations only from specifically designated medical clinics, institutions, entities or persons, except in the case of a seafarer whose medical examination cost is shouldered by the principal/shipowner;

(5) Impose a compulsory and exclusive arrangement whereby an overseas Filipino worker is required to undergo training, seminar, instruction or schooling of any kind only from specifically designated institutions, entities or persons, except fpr recommendatory trainings mandated by principals/shipowners where the latter shoulder the cost of such trainings;

(6) For a suspended recruitment/manning agency to engage in any kind of recruitment activity including the processing of pending workers’ applications; and

(7) For a recruitment/manning agency or a foreign principal/employer to pass on the overseas Filipino worker or deduct from his or her salary the payment of the cost of insurance fees, premium or other insurance related charges, as provided under the compulsory worker’s insurance coverage. The persons criminally liable for the above offenses are the 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.

Law / Philippines / Migrant Workers and Overseas Filipinos Act of 1995 (as Amended by Republic Act No. 10022)

This Act provides comprehensive measures for the increased protection of Filipino migrant workers. “Migrant worker” (as defined by Section 3 (a)) refers to a person who is to be engaged, is engaged or has been engaged in a remunerated activity in a state of which he or she is not a legal resident (the term is used interchangeably with overseas Filipino worker (OFW)).

The Act was enacted primarily to address fraudulent recruitment practices. Part II defines and sets forth penalties for the illegal recruitment of Filipinos for work overseas, and stipulates severe penalties of imprisonment and fines. The Act also institutes joint and several liability of the principal/employer and the recruitment agency for any monetary claims arising out of an employment relationship or by virtue of any law or contract involving Filipino workers for overseas deployment, including claims for damages.

The Act seeks to protect migrant workers by providing that OFWs shall only be deployed to countries where their rights are sufficiently protected. The act also introduces a process of terminating or banning deployment of Filipinos to countries that do not have an adequate standard protecting the human, labor, and social rights of migrant workers.

This Act also ensures free access to justice and legal assistance for OFWs, and sets the role of government agencies in promoting the welfare and rights of migrant workers.