PRE-EMPLOYMENT

Articles 12 to 39 of the renumbered Labor Code

RA 8042 as amended by RA 10022, Migrant Workers and Overseas Filipino Act
DOLE Department Order No. 141-14 Revised Rules and Regulations governing recruitment and
placement
2016 POEA Rules for Land-Based Overseas Workers
Note: Arts. 15 &. 11 were abolished (functions are now being undertaken by the POEA), Arts. 19
& 20 have been superseded by BP 79 & EO 191 respectively, while Art. 39 has been repealed

Recruitment and Placement

Art. 13. Definitions. – (b) “Recruitment and Placement” refers to 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: Provided, that any person or entity which, in any manner, offers
or promises for a fee, employment to two or more persons shall be deemed engaged in
recruitment and placement.
- The number of persons dealt with is not an essential ingredient of the act of recruitment
and placement of workers. The proviso merely creates the presumption.
On the other hand, referral is the act of passing along or forwarding of an applicant for
employment after an initial interview of a selected applicant for employment to a selected
employer, placement officer, or bureau.
Parties that may engage in recruitment and placement & exceptions
Article 16. Private Recruitment. – Except as provided in Chapter II of this Title, no person
or entity other than the public employment offices, shall engage in the recruitment and
placement of workers.
Note: As a general rule, no person or entity shall engage in the recruitment and placement of
workers either for local or overseas employment except those allowed by law like:
1. Public employment offices;
2. Private recruitment entities;
3. Private employment agencies;
4. Shipping or manning agencies;
5. POEA;
 6. Construction contractors if authorized by DOLE and Construction Industry Authority;
7. Members of the diplomatic corps but must pass through POEA; and
8. Other persons or entities authorized by DOLE

☛DOCUMENTATION OF WORKERS:
1. Contract Processing – workers hired thru the
POEA shall be issued the individual
employment contract and such other
documents as may be necessary for travel
2. Passport Documentation
3. Visa Arrangement

Prohibited Practices
Art. 34. Prohibited Practices. – It shall be unlawful for any individual, entity, 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, or to make a worker
pay 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 this Code;
(d) To induce or attempt to induce a worker already employed to quit his employment in
order to offer him to another unless the transfer is designed to liberate the worker from
oppressive terms and conditions of employment;
(e) To influence or to attempt to influence any person or entity not to employ any worker
who has not applied for employment through his agency;
(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;
(g) To obstruct or attempt to obstruct inspection by the Secretary of Labor or by his duly
authorized representatives;
 (h) To fail to file 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;
(i) To substitute or alter employment contracts approved and verified by the Department
of Labor from the time of actual signing thereof by the parties up to and including periods
of expiration of the same without the approval of the Secretary of Labor;
(j) 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 a travel agency; and
(k) To withhold or deny travel documents from applicant workers before departure for
monetary or financial considerations other than those authorized under this Code and its
implementing rules and regulations.
It is axiomatic that laws should be given a reasonable interpretation, not one which defeats the
very purpose for which they were passed. This Court has in many cases involving the construction
of statutes always cautioned against narrowly interpreting a statute as to defeat the purpose of
the legislator and stressed that it is of the essence of judicial duty to construe statutes so as to
avoid such a deplorable result (of injustice or absurdity) and that therefore “a literal
interpretation is to be rejected if it would be unjust or lead to absurd results”.
Mandatory Remittance
Art. 22. Mandatory Remittance of Foreign Exchange Earnings. – It shall be mandatory for all
Filipino workers abroad to remit a portion of their foreign exchange earnings to their families,
dependents, and/or beneficiaries in the country in accordance with rules and regulations
prescribed by the Secretary of Labor.
Notes: The provision of Article 22 on the mandatory remittance of OFW earnings was
strengthened by the issuance and implementation of EO 857 on December 13, 1982 which aims
to:
1. To protect the welfare of the families, dependents, and other beneficiaries of OFW;
2. To ensure that foreign exchange remittances of OFW are channeled through authorized
financial institutions; and
3. To help the government’s economic development programs.
The reason for this mandatory requirement is to protect the welfare of families, dependents and
beneficiaries and to ensure that the foreign exchange of these workers are remitted through
authorized financial institutions of the Philippine government in line with the country’s economic
development program. Non-compliance with the laws and regulations on remittance of foreign
exchange earnings and recourse to the use of unauthorized and unofficial financing institutions
had led to the detriment of the country’s balance of payments and economic development
program. Consequently, it is imperative that the mandatory remittance requirement be fully
complied with by all concerned through the institution of appropriate remittance facilities and
the imposition of effective sanctions.

Rate of Remittances
Based on Section 2, EO 857, all contracts of employment and agency or service agreements
submitted to the Ministry of Labor and Employment shall contain a proviso that shall make it
mandatory for workers to remit to the Philippines in foreign exchange at least the following
portions of their earnings:
1. Seamen and mariners – 80% of the basic salary
2. Construction companies and their workers – 70% of the basic salary
3. Professional workers (e.g. doctors, nurses, engineers, teachers) whose employment
contracts provide for free board and lodging – 70% of the basic salary
4. Professionals without free board and lodging – 50% of the basic salary
5. Domestic and other service workers – 50% of the basic salary
6. All other workers – 50% of the basic salary
Remittance Procedure
1. OFW must open a bank account prior to his departure and must give the POEA the bank
account number;
2. The licensed agency, construction, contractor or manning agent of the OFW must deposit
the amount of remittance to the OFW’s account;
3. Direct payment to beneficiaries is not allowed.
Exceptions to the Remittance Requirement
The following workers are not obliged to remit a portion of their foreign exchange earnings:
a. Workers whose immediate family members, dependents or beneficiaries are residing
with him abroad
b. Filipino servicemen working in the U.S. military installations
c. Immigrants and Filipino professionals and employees working with the United Nations
agencies or specialized bodies.
Proof of Compliance (Section 5, EO 857)
1. Confirmed bank (foreign) remittance form;
2. Certification from employer, duly authenticated, that remittance has effected;
3. Certification as to the surrender for pesos to the Philippine banking system; and
4. Receipt of International Postal Money Order
Consequences of non-remittance
1. Employer shall not be issued accreditation;
2. Passports issued to Filipino contract workers shall not be renewed after expiration;
3. Renewal of employment contracts will not be approved; and
4. No license or authority shall be issued to the agency
Regulatory and Visitorial powers of the DOLE Secretary
Art. 36. Regulatory Power. – The Secretary of Labor shall have the power to restrict and
regulate the recruitment and placement activities of all agencies within the coverage of
this Title and is hereby authorized to issue orders and promulgate rules and regulations
to carry out the objectives and implement the provisions of this Title.
● Purpose: to insure the protection of job-seekers from unscrupulous recruiters.
● Implicit in this power is the authority to award appropriate relief to victims of offenses
committed by recruitment agencies, especially the refund or reimbursement of such fees
as may have been fraudulently or illegally collected, or such goods or services imposed
and accepted in excess of what is licitly prescribed.

Art. 37. Visitorial Power. – The Secretary of Labor or his duly authorized representatives
may, at any time, inspect the premises, books of accounts and records of any person or
entity covered by this Title, require it to submit reports regularly on prescribed forms, and
act on violation of any provisions of this Title.
● Usually conducted:
○ Before issuance of license
○ In case of transfer of office
○ Upon receipt of complaint for violation of existing RRs
● Violation: appropriate sanction or denial of application for renewal of license
● Inspectors must present to the agency their Authority to Inspect stating in detail the
purpose and subject of inspection.

Illegal Recruitment, definition & kinds

Art. 38. Illegal Recruitment. – (a) 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.
 (b) 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.
[(c) 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.]
The crime of illegal recruitment is committed when two elements concur, namely:
(1) the offender has no valid license or authority required by law to enable one to lawfully engage
in recruitment and placement of workers; and
(2) he undertakes either any activity within the meaning of "recruitment and placement" defined
under Article 13 (b), or any prohibited practices enumerated under Article 34 of the Labor Code.
Under the first element, a non-licensee or non-holder of authority is any person, corporation or
entity which has not been issued a valid license or authority to engage in recruitment and
placement by the Secretary of Labor, or whose license or authority has been suspended, revoked
or cancelled by the POEA or the Secretary. (Romero v. People)
In illegal recruitment, mere failure of the complainant to present written receipts for money paid
for acts constituting recruitment activities is not fatal to the prosecution, provided the payment
can be proved by clear and convincing testimonies of credible witnesses.
Liabilities, pretermination of contract, penalties, remedies
For local employment
Art. 39. Penalties. – (a) The penalty of life imprisonment and a fine of One Hundred
Thousand Pesos (P100,000) shall be imposed if illegal recruitment constitutes economic
sabotage as defined herein;
 (b) Any licensee or holder of authority found violating or causing another to violate any
provision of this Title or its implementing rules and regulations shall, upon conviction
thereof, suffer the penalty of imprisonment of not less than two years nor more than five
years or a fine of not less than P10,000 nor more than P50,000 or both imprisonment and
fine, at the discretion of the court;
(c) Any person who is neither a licensee nor a holder of authority under this Title found
violating any provision thereof or its implementing rules and regulations shall, upon
conviction thereof, suffer the penalty of imprisonment of not less than four years nor
more than eight years or a fine of not less than P20,000 nor more than P100,000 or both
imprisonment and fine, at the discretion of the court;
(d) If the offender is a corporation, partnership, association or entity, the penalty shall be
imposed upon the officer or officers of the corporation, partnership, association or entity
responsible for violation; and if such officer is an alien, he shall, in addition to the penalties
herein prescribed, be deported without further proceedings;
(e) In every case, conviction shall cause and carry the automatic revocation of the license
or authority and all the permits and privileges granted to such person or entity under this
Title, and the forfeiture of the cash and surety bonds in favor of the Overseas Employment
Development Board or the National Seamen Board, as the case may be, both of which are
authorized to use the same exclusively to promote their objectives.
For overseas employment (RA 8042, as amended)
Section 7. Section 10 of Republic Act No. 8042, as amended, is hereby amended to read
as follows:
"SEC. 10. Money Claims. - Notwithstanding any provision of law to the contrary, the Labor
Arbiters of the National Labor Relations Commission (NLRC) shall have the original and
exclusive jurisdiction to hear and decide, within ninety (90) calendar days after the filing
of the complaint, the claims arising out of an employer-employee relationship or by virtue
of any law or contract involving Filipino workers for overseas deployment including claims
for actual, moral, exemplary and other forms of damage. Consistent with this mandate,
the NLRC shall endeavor to update and keep abreast with the developments in the global
services industry.
"The liability of the principal/employer and the recruitment/placement agency for any
and all claims under this section shall be joint and several. This provision shall be
incorporated in the contract for overseas employment and shall be a condition precedent
for its approval. The performance bond to de filed by the recruitment/placement agency,
as provided by law, shall be answerable for all money claims or damages that may be
awarded to the workers. If the recruitment/placement agency is a juridical being, the
corporate officers and directors and partners as the case may be, shall themselves be
 jointly and solidarily liable with the corporation or partnership for the aforesaid claims
and damages.
"Such liabilities shall continue during the entire period or duration of the employment
contract and shall not be affected by any substitution, amendment or modification made
locally or in a foreign country of the said contract.
"Any compromise/amicable settlement or voluntary agreement on money claims
inclusive of damages under this section shall be paid within thirty (30) days from approval
of the settlement by the appropriate authority.
"In case of termination of overseas employment without just, valid or authorized cause
as defined by law or contract, or any unauthorized deductions from the migrant worker's
salary, the worker shall be entitled to the full reimbursement if his placement fee and the
deductions made with interest at twelve percent (12%) per annum, plus his salaries for
the unexpired portion of his employment contract or for three (3) months for every year
of the unexpired term, whichever is less.
"In case of a final and executory judgement against a foreign employer/principal, it shall
be automatically disqualified, without further proceedings, from participating in the
Philippine Overseas Employment Program and from recruiting and hiring Filipino workers
until and unless it fully satisfies the judgement award.
"Noncompliance with the mandatory periods for resolutions of case provided under this
section shall subject the responsible officials to any or all of the following penalties:
"(a) The salary of any such official who fails to render his decision or resolution
within the prescribed period shall be, or caused to be, withheld until the said
official complies therewith;
"(b) Suspension for not more than ninety (90) days; or
"(c) Dismissal from the service with disqualification to hold any appointive public
office for five (5) years.
"Provided, however, That the penalties herein provided shall be without prejudice to any
liability which any such official may have incured under other existing laws or rules and
regulations as a consequence of violating the provisions of this paragraph."
Application of Indeterminate Sentence Law
In Romero v. People, the Court noted that the Indeterminate Sentence Law is mandatory to both
the Revised Penal Code and the special laws, and in the same ruling, the Court summarized the
application and non-application of the Indeterminate Sentence Law.
It is basic law that the application of the Indeterminate Sentence Law is mandatory where
imprisonment exceeds one (1) year, except only in the following cases:
a. Offenses punished by death or life imprisonment.
b. Those convicted of treason (Art. 114) conspiracy or proposal to commit treason (Art. 115).
c. Those convicted of misprision of treason (Art. 116), rebellion (Art. 134), sedition (Art. 139) or
espionage (Art. 117).
d. Those convicted of piracy (Art. 122).
e. Habitual delinquents (Art. 62, par. 5).
Recidivists are entitled to an Indeterminate sentence. (People v. Jaramilla, L-28547, February 22,
1974) Offender is not disqualified to avail of the benefits of the law even if the crime is committed
while he is on parole. (People v. Calreon, CA 78 O. G. 6701, November 19, 1982).
f. Those who escaped from confinement or those who evaded sentence.
g. Those granted conditional pardon and who violated the terms of the same. (People v. Corral,
74 Phil. 359).
h. Those whose maximum period of imprisonment does not exceed one (1) year.
Where the penalty actually imposed does not exceed one (1) year, the accused cannot avail
himself of the benefits of the law, the application of which is based upon the penalty actually
imposed in accordance with law and not upon that which may be imposed in the discretion of
the court.
The need for specifying the minimum and maximum periods of the indeterminate sentence is to
prevent the unnecessary and excessive deprivation of liberty and to enhance the economic
usefulness of the accused, since he may be exempted from serving the entire sentence,
depending upon his behavior and his physical, mental, and moral record. The requirement of
imposing an indeterminate sentence in all criminal offenses whether punishable by the Revised
Penal Code or by special laws, with definite minimum and maximum terms, as the Court deems
proper within the legal range of the penalty specified by the law must, therefore, be deemed
mandatory