ILLEGAL RECRUITMENT

By Atty. Edwin E. Torres (MSU June 2018)

RA 10022, which amended RA 8042 otherwise known as the “Migrant Workers and Overseas Filipinos Act of
1995,” provides the following definition of illegal recruitment:

"SEC. 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 what was 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
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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;

1
The POEA is the agency under the DOLE that approves overseas employment contracts.
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(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.

In the filing of cases for illegal recruitment or any of the prohibited acts under this section,
the Secretary of Labor and Employment, the POEA Administrator or their duly authorized
representatives, or any aggrieved person may initiate the corresponding criminal action
with the appropriate office. For this purpose, the affidavits and testimonies of operatives or
personnel from the Department of Labor and Employment, POEA and other law
enforcement agencies who witnessed the acts constituting the offense shall be sufficient to
prosecute the accused.

In the prosecution of offenses punishable under this section, the public prosecutors of the
Department of Justice shall collaborate with the anti- illegal recruitment branch of the
POEA and, in certain cases, allow the POEA lawyers to take the lead in the prosecution.
The POEA lawyers who act as prosecutors in such cases shall be entitled to receive
additional allowances as may be determined by the POEA Administrator.
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The filing of an offense punishable under this Act shall be without prejudice to the filing of
cases punishable under other existing laws, rules or regulations."

COMMENTARY:

Article 13(b) of the Labor Code defines recruitment and placement as "any act of canvassing, enlisting,
contracting, transporting, utilizing, hiring or procuring workers; and includes referrals, contract services,
promising or advertising for employment, locally or abroad, whether for profit or not." In simple terms, illegal
recruitment is committed by persons who, without authority from the government, give the impression that
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they have the power to send workers abroad for employment purposes.

The amendments to the Labor Code introduced by RA 8042, as amended by RA 10022, otherwise known as
the “Migrant Workers and Overseas Filipinos Act of 1995,” broadened the concept of illegal recruitment and
provided stiffer penalties, especially for those that constitute economic sabotage, ​i.e., illegal recruitment in
large scale and illegal recruitment committed by a syndicate.

There are three classes of offenses provided by Section 6 of RA 8941, as amended by RA 10022. These
are:

A. Illegal recruitment committed by a non-licensee or non-holder of authority

contemplated under Article 13(f) of the Labor Code;

B. Particular acts of illegal recruitment (enumerated from “a” to “n” of Section 6 which
are actually the acts prohibited under Article 34 of the Labor Code) committed by
any person, whether a non-licensee, licensee, non-holder or holder of authority;

Sub-classification: (a) illegal recruitment committed by a syndicate and (b) illegal

recruitment in large scale.

C. Prohibited acts enumerated from (1) to (7) committed by any person.

The gravity of the offenses is determined by the penalties imposed. The penalties, which are in Section 7 of
RA 8042, as amended by RA 10022, are as follows:

A. Prohibited acts - 6 yrs and 1 day to not more than 12 yrs

B. Illegal recruitment - 12 yrs and 1 day to not more than 20 yrs
(reclusion temporal)
Sub-classifications:
B1: Non-licensee or - maximum penalty (maximum period of reclusion
Non-holder temporal which is 17 yrs, 4 mo. and 1 day to 20 yrs
B2: Victim is less - maximum penalty (same)
than age 18
B3: Syndicate - life imprisonment
Large scale

Article 12 of the Labor Code, as amended by PD 1412, distinguishes a licensee from a holder of authority
with its definitions of “license” and “authority.” Thus:

“(d) ‘​License​’ means a document issued by the Department of Labor authorizing a

person or entity to operate a ​private employment agency​.”

xxx xxx xxx

“(f) ‘​Authority​’ means a document issued by the Department of Labor authorizing a

person or association to engage in recruitment and placement activities as a
private recruitment entity​.”

The above definition of “license” and “authority” leads to a further distinction between “private employment
agency” and “private recruitment entity.” They are defined as follows:

2
People vs. Gallo (G.R. 185277, 18 March 2010).
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“(c) ‘​Private employment agency​’ means any person or entity engaged in the
recruitment and placement of workers for a fee which is charged directly or
indirectly, from the workers or employers or both.”

xxx xxx xxx

“(e) ‘​Private recruitment entity​’ means any person or association engaged in the
recruitment and placement of workers, locally or overseas, without charging,
directly or indirectly, any fee from the workers or employers.”

Garcia testified that she applied for employment in Taiwan for the position of Electronic Operator thru
Brighturn in April 2002. Due to the alleged suspension of Brighturn's license, Hu referred her to a neighboring
agency (Best One), but Hu continued collecting placement fees from her. The act of ​referral​, which means
the act of passing along or forwarding an applicant after an initial interview to a selected employer,
placement or bureau​, is included in recruitment. Undoubtedly, the act of Hu in referring Garcia to another
recruitment agency squarely fell within the purview of recruitment that was undertaken by Hu after her
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authority to recruit and place workers already expired on 17 December 2001.

To prove illegal recruitment, an alleged recruiter must be shown to have given to supposed victims the
distinct impression that he had the power or ability to send them abroad for work such that the latter were
 convinced to part with their money in order to be employed. Such impression are shown by the following
acts: (1) informed the victims about the job opportunity abroad and the list of necessary requirements for
application; (2) requiring the victims to attend the seminar conducted in his house; (3) received the job
applications, pictures, bio-data, passports, and the certificates of previous employment; (4) personally
accompanying the victims for their medical examinations; (5) receiving money paid as placement fees and
issuing receipts for the same; and (6) assuring the victims that they would be deployed abroad. It is not
necessary for the prosecution to present a certification that the recruiter is a non-licensee or non-holder of
authority to lawfully engage in the recruitment and placement of workers. Section 6 of Republic Act No. 8042
enumerates particular acts which would constitute ​illegal recruitment "whether committed by any person,
whether a non-licensee, non-holder, licensee ​or holder of authority​." Among such acts, under Section 6(m)
of Republic Act No. 8042, is the "[f]ailure 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
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actually take place without the worker’s fault."

Illegal recruitment is committed when it is shown that petitioner gave the complainant the distinct impression
that she had the power or ability to send the complainant abroad for work, such that the latter was convinced
to part with his money in order to be employed. To be engaged in the practice of recruitment and placement,
it is plain that ​there must, at least, be a promise or an offer of employment from the person posing as a
recruiter whether locally or abroad​. Petitioner’s misrepresentations concerning her purported power and
authority to recruit for overseas employment, and the collection from Menardo of various amounts, clearly
indicate acts constitutive of illegal recruitment. Petitioner’s claim that she did not represent herself as a
licensed recruiter, but that she merely tried to help the complainants secure a tourist visa could not make her
less guilty of illegal recruitment, it being enough that she gave the impression of having had the authority to
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recruit workers for deployment abroad.

Section 6 (l) of R.A. No. 8042 requires failure to deploy be ​without valid reason "​as determined by the
Department of Labor and Employment.​" The law envisions that there be independent evidence from the
DOLE to establish the reason for non-deployment, such as the absence of a proper job order. Hence,
acquittal is in order where there is no document from the DOLE that is presented to establish the reason for
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the failure to actually deploy migrant workers.

The essential elements of ​large scale illegal recruitment to wit: a) the offender has no valid license or
authority required by law to enable him to lawfully engage in recruitment and placement of workers; b) the
offender undertakes any of the activities within the meaning of "recruitment and placement" under Article
13(b) of the Labor Code, or any of the prohibited practices enumerated under Article 34 of the said Code
(now Section 6 of Republic Act No. 8042); and c) the offender committed the same against three (3) or more
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persons, individually or as a group.

Section 9 of RA 8042 provides for the venue of criminal actions of illegal recruitment, to wit:

3
People vs. Hu (G.R. No. 182232, 6 October 2008).
4
People vs. Ocden (G.R. No. 173198, 1 June 2011).
5
People vs. Lapasaran (G.R. No. 179907, 12 February 2009).
6
Ibid.
7
People vs. Espenilla (G.R. No. 193667, 29 February 2012).
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“A criminal action arising from illegal recruitment as defined herein shall be filed with the Regional
Trial Court of the province or city where the offense was committed or where the offended
party actually resides at the time of the commission of the offense. x x x.”

There is nothing arbitrary or unconstitutional in Congress fixing an alternative venue for violations of Section
6 of RA 8042 that differs from the venue established by the Rules on Criminal Procedure. Section 9 of RA
8042, as an exception to the rule on venue of criminal actions, is consistent with the law’s declared policy of
providing a criminal justice system that protects and serves the best interests of the victims of illegal
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recruitment.

The penultimate paragraph of Section 6 of R.A. No. 8042 explicitly states that those criminally liable are the
"​principals, accomplices, and accessories. In case of juridical persons, the officers having control,
management or direction of their business shall be liable​.​" ​Contrary to appellant's claim, the testimonies of
the complaining witnesses and the documentary evidence for the prosecution clearly established that he was
not a mere employee of Loran, but its Operations Manager. The license of Loran, the files of the POEA and
the nameplate prominently displayed on his office desk reflected his position as Operations Manager. As
such, he received private complainants' job applications; and interviewed and informed them of the agency’s
requirements prior to their deployment, such as NBI clearance, police clearance, medical certificate, previous
employment certificate and the payment of placement fee. He was also responsible for the radio
advertisements and leaflets, which enticed complaining witnesses to apply for employment with the agency.
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Clearly, as Operations Manager, he was in the forefront of the recruitment activities.

The defense of being a mere employee is not a shield against a person’s conviction for large scale illegal
recruitment. In ​People v. Gasacao and ​People v. Sagayaga,​ the Court reiterated the ruling in ​People v.
Cabais, ​People v. Chowdury a ​ nd ​People v. Corpuz ​that an employee of a company or corporation engaged
in illegal recruitment may be held liable as principal by direct participation, together with its employer, if it is
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shown that he ​actively and consciously participated in the recruitment process​.

The defense of lack of awareness of the illegal nature of the recruitment is unavailing. Illegal recruitment
penalized under RA 8042, or "The Migrant Workers and Overseas Filipinos Act of 1995," is a special law, a
violation of which is ​malum prohibitum, not ​malum in se​. Hence, intent is thus immaterial. ​A person may
be charged and convicted of both illegal recruitment and estafa. This is because they are different offenses.
The first is ​malum prohibitum while the second is ​malum in se.​ In the first, the criminal intent of the
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accused is not necessary for conviction. In the second, such an intent is imperative.

The offense of illegal recruitment in large scale is committed against three or more persons. Hence, the
penalty of life imprisonment shall apply collectively to all the cases lumped together, and not individually. The
same is true with the accompanying penalty of fine; it must likewise be imposed collectively on all the cases
lumped together, not individually. But the offender should be made to reimburse to each private complainant
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the amount he respectively received from each of them.

8
Sto. Tomas, et al vs. Salac, et al. (G.R. No. 152642, 13 November 2012).
9
People vs. Nogra (G.R. No. 170834, 29 August 2008).
10
Ibid.
11
People vs. Chua (G.R. No. 184058, 10 March 2010).
12
People vs. Abellanosa (G.R. No. 214340, 19 July 2017).