Illegal recruitment: The Philippine experience

by Abrera, Alcestis

Illegal recruitment: The Philippine experience

A nagging problem which undermines the effective implementation of the Philippine overseas employment program is the increasing incidence of illegal recruitment. This phenomenon, described as the "single biggest problem victimizing Filipinoworkers", demonstrates the dilemma faced by administrators of the program, i.e., nature and extent of government intervention, and the effectiveness of control measures in regulating the outflow of workers to foreign jobs. In the Philippines, this question of "balance" in terms of recruitment, regulation and protection of workers vis-a-vis market development and promotion has always been critical. The concern over abusive recruitment practices and sub-standard contract terms and conditions often conflicts with the government's desire to realize tangible economic benefits: employment and foreign exchange. There is, however, sincere interest in preventing worker exploitation, hence the installation of elaborate control measures designed to regulate private recruitment. Illegal recruitment demonstrates most clearly how certain individuals circumvent the government-installed control machinery, rendering it ineffective. It also proves that no process is invulnerable, that many procedures can be manipulated and maneuvered towards desired private ends. This paper attempts to describe, document, and evaluate the Philippine experience in its campaign against illegal recruitment. While the outflow of manpower from the Philippines can be traced back to the turn of this century, exploitative practices have been viewed with serious concern only recently, as their incidence has increasingly risen. This problem is not, of course, unique to the Philippines. Other countries in the region will find many similarities to the Philippine experience, and it is hoped that this study into the myriad causes/dimensions of illegal recruitment, while neither exhaustive nor complete, may bring better understanding and lead us nearer to finding a rational basis for evaluating the levers and options available to labor administrators.

LEGISLATION, INSTITUTIONS, INCIDENCE, PRACTICES

The issue of government intervention in the overseas employment program is a crucial one. Government intervenes in various phases from pre-employment to post-placement. Government, in most countries and in varying degrees, would be involved in market development and promotion, recruitment, regulation over contract terms and conditions, generation of foreign exchange, and welfare assistance. The role of government in the recruitment function is particularly controversial in the Philippines. When the labor code was first drafted, Philippine policy makers were of the opinion that the recruitment and placement operations should be centralized in a government authority, specifically in the Overseas Employment Development Board. All recruitment functions were to be phased out from private agencies within a four-year period, 1975-1978. That policy has since gone a full circle. Presidential Decree 442 was

amended to allow the continued participation of private fee-charging agencies. There has also been moves recently to limit the recruitment functions of the OEDB to specific government-to-government hires. Any student of illegal recruitment will be amazed by the number of legislative issuances since 1974. Pertinent legislation include P.D. 442 (better known as the Labor Code of the Philippines), P.D. 1412, Letter of Instructions 324, amendments to the various presidential decrees, and certain articles of the revised Penal Code of the Philippines, as well as rules and regulations, and policy instructions issued by the Ministry of Labor. From the outset, it is clear that while legislation seems tremendous, they lack focus and direction as they are dispersed across various materials and are at times inconsistent. Compliance and enforcement immediately pose a problem as with the many directives, there are as many loopholes, and the greater is the attraction to simply ignore the issuances. Legislation The Philippine 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." (Article 13, P.D. 442, as amended) "Illegal recruitment" is defined by Article 38 of the code as "recruitment activities undertaken by nonlicensees or non-holders of authority, provided, that the offer or promise of employment is made to two or more persons." Exceptions are: 1) Schools and civic/charitable organizations or employers for their own use, subject to rules and regulations of the Minister of Labor (Art. 16, P.D. 442, as amended) 2) Direct hire by members of diplomatic corps, international organizations, and other employers allowed by the Minister of Labor (Art. 18, Ibid) Article 39 broadens this concept of illegal recruitment to include "any violation of Title 1 of the Labor Code committed by any licensee or holder of authority." These prohibited practices directly related to overseas recruitment are: a) Overcharging of fees beyond that prescribed by the Minister of Labor actually received by workers as loan or advance. (Par. a)

In no case may the fees be charged until the worker obtained or commenced employment and the fees must always be properly receipted. (Art. 32, Ibid) Under the rules and regulations implementing P.D. 442 as amended, licensed agencies are allowed to charge a fee of P 300 per worker. Policy Instructions No. 34, Series of 1978, precribes these fees as: a) processing fee: P100.00/worker; b) Welfare Fund contribution: P100.00/worker; c) Training Fund contribution: P100.00/worker. While news reports of 1979 indicate an upward revision of fees to P500.00/worker, no official MOL issuances have actually been made on the revision. b) Furnishing/publishing false notice, information or document. (Paragraph b, Article 34) c) Giving false notice, testimony, information, document or any act of misrepresentation to secure license of authority. (Paragraph c; also Article 171, PRC)

d) Pirating of workers unless transfer is designed to liberate from oppressive terms and conditions of employment. (Paragraph d, Ibid) e) Blacklisting of workers. (Paragraph e) f) Recruitment/placement of workers in jobs harmful to public health, morality or dignity of the Republic of the Philippines. (Paragraph f) g) Obstructing or attempting to obstruct inspection by the Minister of Labor or his representative. (Paragraph g) h) Failure to file reports on status of employment, placement, vacancies, remittances of foreign exchange, earnings, separation from jobs, departure, etc., as required by the Minister of Labor. (Paragraph h; see also Article 33, Ibid)

The Minister of Labor or his duly authorized representative also has the power to recommend arrest and detention of illegal recruiters, if after proper investigation it is determined that their activities constitute danger to national security and public order or will lead to further exploitation of job seekers. (Article 38, paragraph b) Under the original Article 38, any violation of Title 1 or its implementing rules and regulations falls within the concurrent jurisdiction of military tribunals. In 1978, General Order 59 transferred the jurisdiction over most crimes, including illegal recruitment, from military tribunals to civilian courts. P.D. 1412 affirms the jurisdiction of civilian courts over illegal recruitment.

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