By Siesta-friendly
While there’s much touting whenever the government is able to get another country to accept our workers, there doesn’t seem much soul-searching when they come home abused or in body bags.
Instances of Illegal Recruitment
As the OFW’s fate often lies on the recruiter, in the interest of emphasizing what to avoid, we list below the prohibited acts of recruitment under our laws[1]
a) Recruitment done without government license or authority. The law defines recruitment as any act of canvassing, enlisting, contracting, transporting, utilizing, hiring or procuring workers and includes referrals, contract services, promising or advertising for employment abroad, whether for profit or not.
If you want to take a risk on an unlicensed and unauthorized recruiter, remember that he has not put up the required P100,000.00 surety bond, nor the P1,000,000.00 escrow deposit, to answer for workers’ money claims.[2] Of course, he’s still liable but there’s no specific bond or escrow deposit to go after; you will have to go after his real and personal properties.
b) To charge or accept any amount greater than that allowed by law, or to make a worker pay the recruiter (or its agents) any amount greater than that actually advanced to him.
The recruiter can only charge a placement fee equivalent to one month’s salary, exclusive of documentation and processing costs. And no other charges in whatever form, purpose or manner shall be imposed on and paid by the worker without prior POEA approval.[3]
Documentation costs include fees for passport, NBI/Police/Barangay clearance, medical examinations, medicare premium, trade tests, authentication and birth certificate, inoculation (when required by the host country). If the recruiter offers these services, the worker is liable only for the cost of the document.[4]
Processing costs include visa, POEA processing fee, and OWWA membership fee to be paid by the employer, unless otherwise provided.[5]
c) Charging or accepting any money, goods or services for any purpose before a worker obtains employment. The law specifically states that no worker should be charged any fee by the recruiter until he has obtained employment through him and that such fee should always be covered with the appropriate receipt clearly showing the amount paid.[6]
d) Charging or collecting placement fee for deployment to countries that do not allow the charging or collection of placement and recruitment fees (like Canada).
e) Collecting any fee from a worker without issuing the appropriate receipt clearly showing the amount paid and the purpose for which payment was made;
f) Engaging in act/s of misrepresentation in connection with recruitment and placement of workers, such as furnishing or publishing any false information
g) To give any false information or commit any act of misrepresentation for the purpose of securing a government license or authority under the Labor Code;
h) To induce 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 employment).
i) To influence or attempt to influence any person or entity not to employ any worker who has not applied for employment through his agency.
j) To recruit workers in jobs harmful to public health or morality or to the dignity of the Republic of the Philippines. If the government prohibits OFWs from working in Iraq, no one should be recruiting you to do so.
k) To substitute or alter employment contracts approved and verified by the DOLE from the time of signing by the parties up to and including the expiration date of the same, without DOLE approval.
l) To withhold travel or other pertinent documents from workers for considerations other than those authorized by the Labor Code.
m) To fail to actually deploy without valid reason as determined by the DOLE. Note that agencies are required to deploy their recruits within the 60 days from the date of issuance of the overseas employment certificate.[7]
n) To fail to reimburse the worker’s expenses incurred in connection with documentation and processing for purposes of deployment, in cases where the deployment fails without the worker’s fault.
o) Engaging in recruitment activities in places other than that specified in the license without POEA authorization. If recruitment is conducted in the province, check the agency’s provincial recruitment authority because no agency is allowed to conduct provincial recruitment, job fairs or recruitment activities outside of the address stated in the license or POEA-approved national offices without POEA authority.[8]
p) Appointing agents, representatives or employees without POEA approval.[9]So, we go back to the first rule of dealing only with POEA-licensed or POEA-authorized people.
q) Falsifying or altering a worker’s travel documents.
r) Deploying workers whose employment and travel documents were not processed by the POEA or any POEA-licensed agency.
s) Deploying workers to principals not POEA-accredited/registered.
t) Withholding workers’ salaries/remittances without justifiable reasons, or shortchanging remittances.
u) Deploying underage workers.
v) Failure to comply with the undertaking to provide Pre-Departure Orientation Seminar to workers.
It goes without saying that you should always get a copy of your contract, read it carefully, make sure that you understand the terms and that they’re not contradictory to what your recruiter promised.
The DOLE website offers more tips to avoid illegal recruitment:[10]
a) Do not deal with licensed agencies without job orders.
b) Do not be enticed by ads or brochures requiring you to reply to a Post Office (P.O.) Box, and to enclose payment for processing of papers.
c) Do not deal with training centers and travel agencies which promise overseas employment. Remember that travel agencies and sales agencies of airline companies are prohibited from engaging in the business of recruitment for overseas employment.[11]
d) Do not accept a tourist visa. No legitimate job order requires a mere tourist visa.
e) Do not deal with fixers. They’re just middle men who have no registered business and who can easily disappear (with your money).
Job Ads
Next, let’s see how to determine a legitimate job post for overseas employment. If there is a registered/accredited foreign principal or project, the job ad (including press releases) should include the following:[12]
1. Name, address and POEA license number of the agency;
2. Name and work site of prospective registered/accredited principal;
3. Skill categories and qualification standards; and
4. Number of positions available.
If it is only for manpower pooling purposes, the job ad should include the following:[13]
1. Indication in bold letters that the ad is for manpower pooling only and that no fees will be collected from the applicants;
2. Name, address and POEA license number of the agency;
3. Name and work site of prospective principal/project; and
4. Skill categories and qualification standards.
If the ad is directly published by the foreign principal/employer, it should be POEA-approved.[14]
Employment Contract
Now let’s focus on where a lot of issues have arisen: the employment contract. These are the minimum requirements for employment contracts (for land-based workers):[15]
1. Guaranteed wages for regular working hours and overtime services not lower than whichever is the highest among a) the host country’s prescribed minimum wage, b) standards set forth in an international agreement, or c) the Philippine’s prescribed minimum wage.
2. Free transportation to and from worksite, or other benefit to offset the lack of free transportation;
3. Free food and accommodation, or other benefit to offset the lack of free; and
4. Just causes for the contracts’ termination of the worker’s services;
While parties to the employment contract are free to stipulate other terms, the employment package should be more beneficial to the worker than the minimum prescribed and should not be contrary to law, public policy and morals. By and of which country, we’re just not sure.[16]
As long as we’re on the topic, it would be good to inquire if the employer will provide among other things:
a) Free transportation from point of hire to site of employment and return, i.e, free roundtrip airfare;
b) Free emergency medical and dental treatment and facilities;
c) Workmen’s compensation benefits and war hazard protection;
d) Repatriation of workers remains and properties in case of death to the point of hire;
e) Assistance in the remittance of worker’s salaries, allowances or allotments; and
f) Free food and accommodation at prevailing cost of living standards at the jobsite.
By the way, in case you got your employment contract without a recruiter in sight: Good for you! But remember that you need to be processed by and registered with the POEA nonetheless.[17]
Remedy
Of course, notwithstanding the rules and the many warnings, violations never cease. When they occur, go straight to the Legal Assistance Division of the POEA. If abroad, head to the Philippine Embassy or Consulate.
Sources:
[1] Sec. 1, Rule X, Part II, POEA Rules And Regulations Governing The Recruitment And Employment Of Land-Based Overseas Workers, 4 February 2002.
See also Sec. 2, Rule I, Part VI, Ibid.
[2] Sec. 4, Rule II, Part II, POEA Rules, supra.
[3] POEA Memorandum Circular No. 14, s. 1999, 10 May 1999.
[4] Sec. 3, Rule V, Part II, POEA Rules, supra.
[5] Sec. 2, Ibid.
[6] Sec. 2, Rule I, Part VI, POEA Rules, supra.
[7] Sec. 3, Rule III, Part III, Ibid.
[8] Sec.15, Rule II, Part II, Ibid.
[9] See Sec. 11, Rule II, Part II, Ibid.
[10] Accessed 1 May 2008. http://www.dole.gov.ph/faq/details.asp?id=F0000095.
[11] Sec. 1, Rule X, Part II, POEA Rules, supra.
[12] Section 1, Rule VII, Part II, POEA Rules, supra.
[13] Section 2, Ibid.
[14] Section 3, Ibid.
[15] Section 2, Rule I, Part V, Ibid.
[16] Section 3, Ibid.
[17] Sec. 8, Rule III, Part III, Ibid.
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