Psych 30 module 2.2 to 2.4


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Psych 30 module 2.2 to 2.4

  1. 1. MODULE 2.2 Regulations of Recruitment & Placement Activities Atty. Harve B. Abella, Esq. Psy30 6:30-7:30 MWF Psy30 7:00-830 TTh
  2. 2. ART.25, LCP <ul><li>PRIVATE SECTOR PARTICIPATION IN THE RECRUITMENT AND PLACEMENT OF WORKERS </li></ul><ul><li>Private employment agencies </li></ul><ul><li>Private recruitment entities </li></ul><ul><li>Shipping or manning agencies </li></ul><ul><li>Such other persons as may be authorized by the Sec. of Labor & Employment </li></ul><ul><li>Construction contractors with a duly issued authority to operate private recruitment entities. </li></ul>
  3. 3. Qualifications For Participation in Overseas Employment Program <ul><li>1. CITIZENSHIP REQUIREMENT (Art. 27, LCP) </li></ul><ul><ul><li>Filipino citizens, partnerships or corporations </li></ul></ul><ul><ul><li>At 75% of the authorized and voting capital stock is owned & controlled by Filipinos </li></ul></ul><ul><li>2. CAPITALIZATION (Art. 28, LCP) </li></ul><ul><ul><li>For single proprietorship, or partnership, minimum capitalization of PHP 2,000,000.00 </li></ul></ul><ul><ul><li>For corporations: a minimum of PHP 2,000,000.00 provided that those with existing licenses shall within 4 years from the effectivity hereof, increase their capitalization or paid-up capital, as the case may be, to 2M at the rate of 250K every year. </li></ul></ul><ul><li>3. Those not otherwise disqualified by law or guidelines to engage in the recruitment and placement of workers for overseas employment </li></ul>
  4. 4. Disqualified from engaging in recruitment & placement for overseas employment whether for profit or not <ul><li>Travel agencies & sales agencies of airline cos. (Art. 26) </li></ul><ul><li>Officers & members of the board of any corporation or members in a partnership engaged in the business of a travel agency </li></ul><ul><li>Corporations & partnerships, when any of its officers, members of the board or partner of a corporation is engaged in the business of a travel agency (Interlocking officers) </li></ul>
  5. 5. <ul><li>4. Persons, partnerships, or corporations which have DEROGATORY RECORDS </li></ul><ul><li>Such as but not limited to those directed to be included in the list of persons & entities issued by POEA pursuant to: </li></ul><ul><li>With certified Derogatory Records – NBI or Anti-Illegal Recruitment Branch of POEA </li></ul><ul><li>Those whom probable cause/prima facie finding of guilt for illegal recruitment or other related cases exists </li></ul><ul><li>Those convicted for illegal recruitment or other related cases and/or crimes involving moral turpitude </li></ul><ul><li>Those agencies whose licenses have been previously revoked by POEA for violation of RA8042, PD442, as amended & their IRR as well as the LCP’s IRR </li></ul>Disqualified from engaging in recruitment & placement for overseas employment whether for profit or not
  6. 6. <ul><li>Persons employed in the DOLE or in other governmental agencies DIRECTLY INVOLVED in overseas employment programs and their relatives within the 4 th degree of consanguinity or affinity , or those whose license has been previously cancelled or revoked. </li></ul>Disqualified from engaging in recruitment & placement for overseas employment whether for profit or not
  7. 7. 4 th Degree of Consanguinity YOU
  8. 8. Liability of Manning Agency <ul><li>Even if it was the principal of the manning agency who entered into a contract with the employee, the manning agent in the Philippines is jointly and solidarily liable with the principal. (Seagull Maritime Corp. vs Balatongan, 2/2/89) </li></ul>
  9. 9. Art. 29 Non Transferability <ul><li>LIMITATIONS </li></ul><ul><ul><li>It may be used only by the one in whose favor it was issued; cannot be assigned, conveyed or transferred to any person or entity; </li></ul></ul><ul><ul><li>Used only in the place stated in the license </li></ul></ul><ul><ul><li>Recruitment and placement activities must be undertaken at their authorized official addresses </li></ul></ul><ul><ul><li>Provincial recruitment and/or job fairs may be allowed only when authorized by the POEA in writing </li></ul></ul><ul><li>NOTA BENE: </li></ul><ul><ul><li>AUTOMATIC REVOCATION in case of change of ownership </li></ul></ul>
  10. 10. Art. 31. Bonds <ul><li>All applicants for license or authority shall post such cash and surety bonds as determined by the SOLE including escrow deposits </li></ul><ul><li>PURPOSES </li></ul><ul><ul><li>To guarantee compliance with prescribed recruitment procedures, rules and regulations and terms and conditions of employment </li></ul></ul><ul><ul><li>To ensure prompt and effective recourse against such companies when held liable for applicants or workers’ claims. </li></ul></ul><ul><li>(Finman Gen. Assurance vs Innocencio, November 15, 1989) </li></ul><ul><li>THE POEA POSSESESS THE POWER TO ENFORCE LIABILITY UNDER CASH OR SURETY BONDS </li></ul>
  11. 11. Art. 32. Fees to be paid by workers <ul><li>The applicant can be charged with fees ONLY AFTER he has obtained employment or has actually commenced employed. </li></ul><ul><ul><li>Fees = shall be covered with appropriate receipts showing the amount. </li></ul></ul><ul><li>POEA has the power to </li></ul><ul><ul><li>Suspend/cancel license; and </li></ul></ul><ul><ul><li>Order the refund/reimbursement of such illegally collected fees </li></ul></ul>
  12. 12. Prohibition on Charging Fees <ul><li>Placement fees CANNOT be collected from a hired worker until he has signed the employment contract & shall be covered by receipts clearly showing the amount paid </li></ul><ul><li>Manning agencies shall not charge any fee from seafarer-applicants for its recruitment & placement services </li></ul><ul><li>No other fees or charges including processing fees shall be imposed against any worker. </li></ul>
  13. 13. Art. 34 & Sec.6, RA8042 Prohibited Practices <ul><li>IT SHALL BE UNLAWFUL FOR ANY INDIVIDUAL, ENTITY, LICENSEE, OR HOLDER OF AUTHORITY: </li></ul><ul><li>To charge greater amount than that specified in the schedule of allowable fees </li></ul><ul><ul><li>ILLEGAL EXACTION </li></ul></ul><ul><li>To furnish any false information in relation to recruitment or employment </li></ul><ul><ul><li>FALSE INFORMATION </li></ul></ul><ul><li>To give any false notice, testimony, etc. or commit any act of misrepresentation to secure a license or authority </li></ul><ul><ul><li>FALSE STATEMENT </li></ul></ul><ul><li>To induce or attempt to induce a worker to quit his job in lieu of another offer unless it is designed to liberate the worker from oppressive terms of employment </li></ul><ul><ul><li>PIRATING </li></ul></ul>
  14. 14. <ul><li>To influence or attempt to influence any person or entity not to employ any worker who has not applied employment through his agency </li></ul><ul><ul><li>INFLUENCING NOT TO EMPLOY </li></ul></ul><ul><li>To engage in the recruitment or placement of jobs harmful to public health, morality or to the dignity of the Philippines </li></ul><ul><ul><li>HARMFUL JOBS </li></ul></ul><ul><li>To obstruct inspection by the Labor Secretary or his authorized representatives </li></ul><ul><ul><li>OBSTRUCT INSPECTION </li></ul></ul><ul><li>To fail to file reports on the status of employment, placement etc and such other matters as may be required by the SOLE </li></ul><ul><ul><li>FAILURE TO COMPLY WITH RULES & REGULATIONS </li></ul></ul>Art. 34 & Sec.6, RA8042 Prohibited Practices
  15. 15. <ul><li>To substitute or alter employment contracts without the approval of the SOLE </li></ul><ul><ul><li>ALTERATION OF CONTRACTS </li></ul></ul><ul><li>To become an officer or member of the Board of any corporation engaged in the management of a travel agency </li></ul><ul><ul><li>TRAVEL AGENCY OFFICERS’ ACT OF RECRUITING </li></ul></ul><ul><li>To withhold travel documents from applicant workers before departure for unauthorized monetary considerations </li></ul><ul><ul><li>WITHHOLDING TRAVEL DOCUMENTS </li></ul></ul>Art. 34 & Sec.6, RA8042 Prohibited Practices
  16. 16. Module 2.3 Recruitment & Engagement (contd) Atty. Harve B. Abella, Esq. Psy 30 MWF 6:30-7:30 Psy 30 TTh 7:00-8:30
  17. 17. Art. 35 Suspension and/or cancellation of license or authority <ul><li>A license or authority may only be suspended or cancelled for violations of Articles 32 & 34, among other causes. </li></ul><ul><li>AUTHORITY (to engage in recruitment) </li></ul><ul><ul><li>Document issued by DOLE authorizing a person or association to engage in recruitment and placement activities as a private recruitment entity. (Art. 13[f],LCP) </li></ul></ul><ul><li>LICENSE (to operate) </li></ul><ul><ul><li>A document issued by the DOLE authorizing a person or entity to operate a private employment agency. </li></ul></ul>
  18. 18. Who is a non-licensee or non-holder of authority? <ul><li>Any person, corporation or entity which has not been issued a valid license or authority to engage in recruitment and placement by the SOLE, or whose license or authority has been cancelled by the POEA and the Secretary </li></ul><ul><li>GROUNDS FOR REVOCATION </li></ul><ul><ul><li>Key - IVEE </li></ul></ul>
  19. 19. Grounds for Revocation <ul><li>Incurring an accumulated 3 counts of suspension by an agency based on final and executory orders within the validity period of its license </li></ul><ul><li>Violation/s of the conditions of the license </li></ul><ul><li>Engaging in act/s of misrepresentation for the purpose of securing a license or renewal thereof; </li></ul><ul><li>Engagement in the recruitment or placement of workers to jobs harmful to the public health or morality or to the dignity of the Republic of the Philippines (POEA RULES) </li></ul>
  20. 20. Grounds for Suspension/Cancellation of License <ul><li>Charging a fee before the worker is employed or in excess of the authorized amount </li></ul><ul><li>Doing recruitment in places outside its authorized area </li></ul><ul><li>Deploying workers without processing through the POEA </li></ul><ul><li>Substituting or altering employment Contracts </li></ul><ul><li>Publishing job announcements without the POEA’s prior approval </li></ul>
  21. 21. JURISDICTION <ul><li>DOLE SECRETARY and the POEA Administrator exercise concurrent jurisdiction to suspend or cancel a license (TransAction Overseas Corp. vs SOLE, Sept 5, 1997) </li></ul>
  22. 22. LIABILITY OF RECRUITMENT AGENCIES <ul><li>The recruitment agency is SOLIDARILY LIABLE with the foreign principal for unpaid salaries of a worker if recruited. </li></ul><ul><ul><li>liability that is shared by obligors and that makes any one obligor liable for the entire obligation to the obligee but also apportions the liability among the obligors so that contribution is allowed </li></ul></ul><ul><ul><li>such liability for a tort that is imposed on joint tortfeasors </li></ul></ul><ul><li>NOTA BENE: </li></ul><ul><ul><li>The recruitment agency may still be sued even if the agency agreement between the recruitment agency and the principal is already severed if no notice of the termination was given to the employee based on Art. 1921 of the New Civil Code </li></ul></ul>
  23. 23. MODULE 2.4 Miscellaneous Provisions
  24. 24. Art. 38 Illegal Recruitment (as per MWA of 1995, RA8042) <ul><li>ILLEGAL RECRUITMENT </li></ul><ul><li>CETCHUP – CRAP </li></ul><ul><li>When undertaken by a NON-LICENSEE, NON-HOLDER of Authority, PROVIDED that such non-licensee or non-holder of authority who in any manner, offers or promises for a fee employment abroad to two or more persons shall be deemed so engaged. </li></ul>
  25. 25. It also includes the ff prohibited acts <ul><li>Prohibited Practices under Art. 34 in relation to Sec.6 RA8042 </li></ul><ul><li>Failure to actually deploy without valid reason as determined by the DOLE </li></ul><ul><li>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 </li></ul><ul><li>Recruitment and placement activities of agents or representatives appointed by a licensee whose appointments were not previously authorized by the POEA shall likewise constitute illegal recruitment </li></ul>
  26. 26. QUALIFYING CIRCUMSTANCES that would make IR an offense involving economic sabotage <ul><li>Committed by a SYNDICATE </li></ul><ul><ul><li>Carried out by 3 or more persons conspiring & confederating with one another; OR </li></ul></ul><ul><li>Committed in a LARGE SCALE </li></ul><ul><ul><li>Committed against 3 or more persons individually or as a group </li></ul></ul><ul><ul><li>CONSEQUENCES OF CONVICTION: (AFC) </li></ul></ul><ul><ul><li>Automatic revocation of license or authority (Art. 39) </li></ul></ul><ul><ul><li>Forfeiture of the cash and surity bonds (Art. 39[e]) </li></ul></ul><ul><ul><li>Conviction for the Crime of Estafa if found guilty therefore. (PP vs Calonzo, GR No. 115150-55, September 27, 1996) </li></ul></ul>
  27. 27. Summary of Rules on Prescriptive Period & Penalty NOTE: the MAXIMUM PENALTY SHALL BE IMPOSED IF THE PERSON ILLEGALLY RECRUITED IS LESS THAN 18 YEARS OF AGE OR COMMITTED BY A NON-LICENSEE OR NON-HOLDER OF AUTHORITY SIMPLE ECON. SABOTAGE Prescriptive Period 5 years 20 years Imprisonment Prision mayor Entirety: From 6 years & 1 day to 12 years Min: 6y 1d to 8y Med: 8y 1d to 10y Max: 10y 1d to 12y Life Imprisonment Fine 200K – 500k 500k – 1M
  28. 28. Liability of Employee of Company engaged in IR May be held as PRINCIPAL together With his employer if it is shown than he actively and consciously participated in illegal recruitment PP vs Cabais, March 16, 2001 Art. 38 is unconstitutional in as much as it gives the SOLE the power to issue search or warrants of arrest (Salazar vs Achaocoso & Marquez, March 14, 1990) but the SOLE may order the closure of illegal recruitment establishments because it is only administrative and regulatory in nature.
  30. 30. Art. 40. Employment of Non-Resident Aliens <ul><li>EMPLOYMENT PERMIT </li></ul><ul><li>Required for entry into the country for employment purposes and is issued after determination of the non-availability of a person in the Philippines who is competent, able and willing at the time of application to perform the services for which the alien is required. </li></ul>
  31. 31. When Employment Permit is Required <ul><li>All foreign nationals seeking admission to the Philippines for the purpose of employment </li></ul><ul><li>All non-resident foreign nationals already working in the Philippines </li></ul><ul><li>Non-resident foreign nationals admitted to the Philippines on non-working visas and who wish to seek employment </li></ul><ul><li>Missionaries or religious workers who intend to engage in gainful employment </li></ul><ul><li>NOTE: Employment permit should be secured REGARDLESS of the source of compensation and duration of the employment whether the employment is part-time or temporary (Secs. 2&3, Revised Guidelines for the Issuance of Alien Employment Permit) </li></ul>
  32. 32. Requisites for employment of NRA <ul><li>A working permit from DOLE </li></ul><ul><li>A certification that there is no available Filipino willing and competent to do the job for the employer; and </li></ul><ul><li>The alien must train at least 2 Filipino understudies for such undertaking </li></ul><ul><li>WHO/WHAT is an understudy? </li></ul><ul><ul><li>Any qualified Filipino Citizen designated by a local employer to be trained by a foreign national allowed to work in the country by virtue of an employment permit granted by him by the SOLE under an approved understudy training program. </li></ul></ul><ul><li>PURPOSE: is to ensure actual transfer of technology </li></ul>
  33. 33. When designation of Understudies unnecessary <ul><li>Elected board members in multinational companies </li></ul><ul><li>Artists/athletes </li></ul><ul><li>Missionaries </li></ul><ul><li>Lecturers/instructors/trainers; and </li></ul><ul><li>Foreign technicians who install equipments </li></ul>
  34. 34. Requisites for Employment of Resident Aliens (R.A.) <ul><li>Immigrants and resident aliens are not required to secure a working permit. They are required to secure their Alien Certificate of Registration. (Almodiel vs NLRC, June 14, 1993) </li></ul>
  35. 35. Exemption from Permit <ul><li>Members of the diplomatic service and foreign government officials accredited by and with reciprocity arrangement with the Philippine Government; </li></ul><ul><li>Officers and staff of international organizations of which the Philippines is a member and their legitimate spouses desiring to work in the Philippines; </li></ul><ul><li>Foreign nationals elected as members of the GOVERNING BOARD who do not occupy any other position, but have only voting rights in the corporation; </li></ul><ul><li>All foreign nationals granted exemption by law; </li></ul><ul><li>Owners and representatives of foreign nationals whose companies are accredited by the POEA who come to the Philippines for a limited purpose of interviewing Filipino applicants for employment abroad </li></ul>
  36. 36. Exemption from permit (cont’d.) <ul><li>Foreign nationals who come to the Philippines to teach, present and/or conduct research studies in universities and colleges as visiting, exchange or adjunct professors under formal agreements between the universities and colleges in the Philippines and foreign universities or colleges, or between the Philippine government and foreign government; provided that the exemption is on a reciprocal basis; </li></ul><ul><li>Resident foreign nationals (Dept. Order No. 75-06, May 31, 2006) </li></ul>
  37. 37. Grounds for SUSPENSION of Employment permit <ul><li>The continued stay of the Foreign national which may result in damage to the interest of the industry or the country; </li></ul><ul><li>The employment of the foreign national is suspended by the employer or by order of the Court; </li></ul>
  38. 38. Grounds for REVOCATION of Employment permit <ul><li>Non-compliance with any of the requirements or conditions for which the employment permit was issued; </li></ul><ul><li>Misrepresentation of facts in the application; </li></ul><ul><li>Submission of falsified or tampered documents; </li></ul><ul><li>Meritorious objection or information against employment of foreign national as determined by the Regional Director; </li></ul><ul><li>Foreign national has derogatory record and </li></ul><ul><li>Employ has terminated the employment of the foreign national </li></ul>
  39. 39. VALIDITY OF EMPLOYMENT PERMIT <ul><li>ONE YEAR </li></ul><ul><ul><li>UNLESS the employment contract, consultancy services or other mode of engagement provides otherwise, which shall in no case exceed 5 years. </li></ul></ul><ul><li>FINE FOR WORKING WITHOUT or expired employment permit: </li></ul><ul><ul><li>P100,000.00 every year or a fraction thereof; </li></ul></ul>
  40. 40. Rule on Nationalized Businesses <ul><li>GENERAL RULE: foreigners may NOT be employed in certain nationalized businesses. </li></ul><ul><ul><li>Sec. 2-A of the Anti-Dummy Law prohibits the employment of aliens in entities engaged in business whose exercise or enjoyment is reserved only to Filipinos or to corporations or associations whose capital should be at least 60% Filipino owned </li></ul></ul><ul><li>EXCEPTIONS: </li></ul><ul><ul><li>When the SOLE specifically authorizes the employment of technical personnel </li></ul></ul><ul><ul><li>Aliens who are members of the BOD of corporations in proportion to their allowable participation in the capital of such entities (DOJ Opinion No. 143) and </li></ul></ul><ul><ul><li>Enterprises registered under the Omnibus Investment Code in case of technical, supervisory position, but for a limited period. </li></ul></ul>
  41. 41. Other Prohibitions <ul><li>Aliens shall not transfer to another job or change his employer without prior approval of the SOLE </li></ul><ul><li>NRA shall not take up employment in violation of the provisions of the LCP </li></ul><ul><li>NOTE: </li></ul><ul><ul><li>Violations of the abovementioned acts will subject the alien to the punishment provided in Art. 288 and to deportation after service of sentence. </li></ul></ul>
  42. 42. END OF LCP BOOK 1