labor cases

• Illegal recruitment acts that can be committed by non-licensees or non-holders of authority

  • Canvassing
  • Enlisting
  • Contracting
  • Transporting
  • Utilizing
  • Hiring
  • Procuring workers
  • Referring
  • Contract services
  • Promising or advertising for employment abroad, whether for profit or not
• Non-licensee or non-holder of authority is presumed to be engaged in illegal recruitment if they, in any manner, offer or promise for a fee employment abroad to two or more persons
• License


  Document issued by the DOLE Secretary authorizing a person, partnership or corporation to operate a private recruitment or manning agency
• Authority


  Document issued by the DOLE Secretary authorizing the officers, personnel, agents or representatives of a licensed recruitment or manning agency to conduct recruitment and placement activities in a place stated in the license or in a specified place
• Elements of illegal recruitment

  • Simple illegal recruitment
  • When committed by a syndicate
  • When committed in large scale
• Simple illegal recruitment


  • The offender has no valid license or authority required by law to enable one to lawfully engage in recruitment and placement of workers
  • He undertakes either any activity within the meaning of "recruitment and placement" defined under Article 13(b) or any prohibited practices under Article 34 of the Labor Code
• A recruiter can be a natural or juridical person
• Relevant principles on illegal recruitment


  • Mere impression that a person could deploy workers overseas is sufficient to constitute illegal recruitment
  • Mere promise or offer of employment abroad amounts to recruitment
  • There is no need to show that accused represented himself as a licensed recruiter
  • Referrals may constitute illegal recruitment
  • Inducing applicants to part with their money upon false misrepresentations and promises is illegal recruitment
  • Recruitment whether done for profit or not is immaterial
  • Actual receipt of fee is not an element of the crime of illegal recruitment
  • Conduct of interviews amounts to illegal recruitment
  • Absence of receipt is not essential to hold a person guilty of illegal recruitment
  • Conviction for illegal recruitment may be made on the strength of the testimonies of the complainants
  • Absence of documents evidencing the recruitment activities strengthens, not weakens, the case for illegal recruitment
  • Only one person recruited is sufficient to convict one for illegal recruitment
  • Non-prosecution of another suspect is immaterial
  • Execution of affidavit of desistance affects only the civil liability but has no effect on the criminal liability for illegal recruitment
  • Positive identification prevails over alibi and denial
• Illegal recruitment as a form of economic sabotage

  • When committed by a syndicate
  • When committed in large scale
• Illegal recruitment committed by a syndicate


  • There are at least three (3) persons who, conspiring and/or confederating with one another, carried out any unlawful or illegal recruitment and placement activities
  • Said persons are not licensed or authorized to do so, either locally or overseas
• Illegal recruitment in large scale


  • The accused engages in the recruitment and placement of workers
  • The accused commits the same against three (3) or more persons, individually or as a group
• Recruitment in large scale or by a syndicate is malum prohibitum and not malum in se
• A person can be charged and convicted separately for illegal recruitment and estafa involving one and the same act of recruitment
• Solidary liability of local recruiter and foreign principal


  The nature of their liability is "solidary" or "joint and several" for any and all claims arising out of the employment contract of OFWs
• Solidary liability of corporate officers with the recruitment agency is not automatic, there must be proof of their culpability
• Relevant principles on persons liable for illegal recruitment


  • Employees of a licensed recruitment agency may be held liable for illegal recruitment as principal by direct participation
  • Good faith and merely following orders of superiors are not valid defenses of an employee
  • A manager of a recruitment/manning agency is not a mere employee
• Theory of imputed knowledge


  Knowledge of the agent is deemed knowledge of the principal but not the other way around
• OFWs cannot acquire regularity of employment, their employment is always fixed-term
• The non-deployment of an OFW to overseas employment does not affect the validity of the perfected employment contract
• Failure to deploy an OFW overseas is not an act designed to prevent him from attaining the status of a regular employee
• The non-deployment of the ship overseas did not affect the validity of the perfected employment contract
• A contract cannot be novated by the will of only one party
• Petitioner cannot use its own misfeasance to defeat the claim of the private respondent
• Effect of non-deployment of OFW to overseas employment

  Seafarers are considered contractual employees and cannot be considered as regular employees under the Labor Code. Their employment is governed by the contracts they sign every time they are rehired and their employment is terminated when the contract expires.
• Doctrine of processual presumption


  Where a foreign law is not pleaded or, even if pleaded, is not proved, the presumption is that foreign law is the same as Philippine law. Thus, under this situation, Philippine labor laws should apply in determining the issues presented in a case.
• OFWs are entitled to due process in accordance with Philippine laws in the absence of proof of applicable foreign law
• The Agabon doctrine of awarding indemnity in the form of nominal damages in cases of valid termination for just or authorized cause but without procedural due process also applies to termination of OFWs
• Burden of proof devolves on both recruitment agency and its foreign principal to show that the dismissal of the OFW is legal
• Reliefs to which OFWs are entitled


  • All salaries for the unexpired portion of the contract
  • Full reimbursement of placement fees and deductions made with interest at 12% per annum
• Under the 2009 Serrano doctrine, an illegally dismissed OFW is now entitled to all the salaries for the entire unexpired portion of their employment contracts, irrespective of the stipulated term or duration thereof
• The provision in R.A. No. 10022 replicating the unconstitutional part of the provision in R.A. No. 8042 was declared still unconstitutional and null and void
• Principles in regard to monetary awards to OFWs


  • Monetary award is not in the nature of separation pay or backwages but a form of indemnity
  • Only salaries are to be included in the computation of the amount due for the unexpired portion of the contract. Overtime, holiday and leave pay and allowances are not included
  • An OFW is not entitled to overtime pay, even if guaranteed, if he failed to present any evidence to prove that he rendered service in excess of the regular eight (8) working hours a day
  • In case of unauthorized deductions from OFW's salary, he shall be entitled to the full reimbursement of the deductions made with interest at 12% per annum
• Direct Hiring


  The process of directly hiring workers by employers for overseas employment as authorized by the DOLE Secretary and processed by the POEA
• The DOLE Secretary, the POEA Administrator or DOLE Regional Director may issue a written order for the closure of the establishment being used for illegal recruitment activity
• The exercise by the DOLE Secretary of his twin powers to issue arrest warrant and search and seizure orders is unconstitutional
• Alien Employment Permit (AEP)


  A document issued by the DOLE Secretary through the DOLE-Regional Director who has jurisdiction over the intended place of work of the foreign national, authorizing the foreign national to work in the Philippines
• Categories of foreign nationals EXEMPTED from securing AEP


  • Members of the diplomatic service and foreign government officials
  • Officers and staff of international organizations
  • Owners and representatives of foreign principals
  • Foreign nationals teaching, presenting or conducting research in universities and colleges
  • Permanent resident foreign nationals and probationary or temporary resident visa holders
  • Refugees and Stateless Persons
  • All foreign nationals granted exemption by law
• Categories of foreign nationals EXCLUDED from securing AEP


  • Members of the governing board with voting rights only
  • President and Treasurer who are part-owners of the company
  • Those providing consultancy services who do not have employers in the Philippines
  • Intra-corporate transferees who are managers, executives or specialists
  • Contractual service suppliers who are managers, executives or specialists
  • Representatives of the Foreign Principal/Employer assigned in the Office of Licensed Manning Agency
• Period of validity of an AEP


  One (1) year, except when employment contract provides otherwise but not to exceed three (3) years. The AEP may be renewed subject to the conditions imposed by law.
• Employees on leave of absence with pay


  Entitled to holiday pay when they are on leave of absence with pay