Art. 25: Private Sector Participation in the Recruitment and Placement of Workers

POEA’s Retained Jurisdiction

RA 8042 transferred from POEA to NLRC the jurisdiction over OFW’s claims arising from er-ee relationship

POEA retains original and exclusive jurisdiction over cases involving violation of POEA rules and regulations, disciplinary cases and other cases that are administrative in character involving OFWs

POEA performs regulatory enforcement, and limited or special adjudicatory functions

Validity of POEA Regulations

Sec 4 (a) of EO 797 provides that POEA shall promulgate the necessary rules and regulations to govern the exercise of the adjudicatory functions of the POEA

“power of subordinate legislation”- national legislature entrust to administrative agencies

the authority to issue rules to carry out the general provisions of the statue due to its specialized activities and peculiar problems

POEA Circulars Unenforceable for Lack of Publication

administrative rules and regulations must be published if its purpose is t enforce or implement existing law pursuant to valid delegation

Art. 26: Travel Agencies Prohibited to Recruit

travel agencies and sales agencies of airline companies are prohibited

POEA Rule 1 Sec 2 also disqualify persons with derogatory records such as those convicted for illegal recruitment or other crimes involving moral turpitude

rule also prohibits any official or employee of DOLE, POEA, OWWA, DFA and other government agencies directly involved

in the implementation of RA 8042 or any of their relatives within the 4th civil degree

Art. 27: Citizenship Requirement to Participate in the Recruitment and Placement of Workers

Filipino citizens or corporations, partnerships or entities at least 75% f the authorized and voting stocks of which is owned and controlled by Filipino citizens

Art. 28: Capitalization

private employment agency for local employment should have a minimum networth of P200,000.00 in the case of single proprietorship and partnership of a minimum paid up capital of P500,000.00 in the case of a corporation

private recruitment or manning agency for overseas employment should have a minimum capitalization of P2,000,000.00 for single proprietorship or partnership and a minimum paid up capital of P2,000,000.00 for corporation

Art. 29: Non Transferability of License or Authority

Place of Recruitment

GR: licensees or holders of authority or their duly authorized representatives may undertake recruitment and placement activity only at their authorized official addresses

most of them have their official addresses in Metro Manila Under existing regulations, they may be allowed to conduct

provincial recruitment or job fairs only upon written authority from POEA

- prior to the conduct of provincial recruitment, a copy of the authority shall be presented to the DOLE? Regional Director concerned

- recruitment activities are conducted under the supervision of a DOLE employee or officer designated by the Regional Director

- recruitment of workers for overseas employment cannot be lawfully done on a house-to-house basis, in residences or in secluded places

CSNAVARRO, JD 2017

Art. 30: Registration Fees

Sec of Labor shall promulgate schedule of fees for the registration of all applicants for license or authority

Art. 31: Bonds

as determined by Sec of Labor

Amount of Bond

Recruitment or Manning Agency for Overseas Employment

Upon approval of the application for license, the applicant for license to operate a private recruitment or manning agency shall:

1. submit and Escrow Agreement in the amount of P1M, with confirmation of escrow deposit with an accredited reputable bank

2. post a surety bong in the amount of P100,000 from a bonding company acceptable to the POEA and Accredited with the Insurance Commission

surety bond shall cover the validity of the period of the license and shall include the conditions that notice to the principal is notice to the surety and that any judgment against the principal in connection with matters falling under the jurisdiction of the POEA or NLRC shall be binding and conclusive to the surety

bonds and escrows shall answer for all valid and legal claims arising from violations of the conditions for the grant and use of the license and/or accreditation and contracts of employment

bonds and escrows also guarantee compliance with the provisions of the Philippine laws and all liabilities that the POEA may impose

Enforcement

POEA posses the power to enforce liability under cash or surety bonds

Finnman Gen. Assurance v Innocencio

- Finnman claims that its liability under its own bond shall be enforced by the Insurance Commission or by regular courts (not by Sec of Labor or POEA)

- Held: His proposition is contrary with public policy which requires prompt resolution of claim against private recruitment and placement agencies. Cash and surety bonds are required by the POEA precisely as a means of ensuring prompt and effective recourse against such companies when held liable for applicants or worker’s claim

Apart from Appeal Bond

Bond required under Art 31 is different from Art 223 (renumbered as Art 229)

Art 223 is a requirement for the perfection of an appeal. It is intended to insure the payment of the monetary award if the judgment is affirmed on appeal

Art 31 are also intended to guarantee payment of all valid and legal claims against employer, but these claims are not limited to monetary awards to employees whose contract of employment have been violated.

POEA can go against the bonds in Art 31 for violations of recruiter of conditions for its license, the provisions of the Labor Code, the rules of the POEA as well as the settlements of other liabilities the recruiter may incur

therefore, recruitment agency who appeals a judgment of the POEA or Labor Arbiter to the NLRC is still obliged to pst a bond in an amount equivalent to the monetary award as required by Art. 220 of the Labor Code (notwithstanding the fact that it has already posted a bond under Art 31)

Garnishment of Bonds

bond under Art 21 is intended to answer only for employment-related claims and for violations of labor law

therefore, it cannot be garnished to satisfy a claim of travel agency against a recruitment agency as such as payment for airline tickets used by the agency’s recruits

CSNAVARRO, JD 2017

though the liability may have been incurred in connection with the business of recruiting or placing overseas workers, it is definitely not one arising from violation of the conditions for the grant and use of the license or authority and contracts of employment

nor is it one arising from a violation of labor laws

Effect of a Valid Garnishment

as soon as an Order or Notice of Garnishment is served upon the Bank, and the same is correspondingly earnmarked, the deposit in escrow shall no longer be considered sufficient

POEA shall then require the recruitment or manning agency to replenish its escrow deposit

Within 15 days from the date of receipt of notice from the POEA that the bonds or deposit in escrow, or any part of it had been garnished, the recruitment or manning agency shall replenish the same

failure to replenish such bonds or deposit in escrow within the said period shall cause the suspension of the license

Release of Cash Bond/ Deposit in Escrow

Recruitment Agency for Local Employment private recruitment and placement agency for local

employment which voluntarily surrenders its license shall be entitled to the refund of its deposited cash bond only after posting a surety bond of similar amount from a bonding company accredited to the Insurance Commission

surety bond is valid for 3 years from the expiration of the license

Recruitment or Manning Agency for Overseas Employment licensed recruitment or manning agency for overseas

employment which voluntarily surrenders its license shall be entitled to the release of the deposit in escrow, only after posting a surety bond of similar amount valid for 4 years from expiration of license and submission of clearance from the NLRC and POEA

Law as Part of the Bond

it is a settled doctrine that the conditions of a bond specified and required in the provisions of the statute or regulation providing for the submission of the bond are incorporated or built into all bonds tendered under that statute or regulation even though not there set out in printer’s ink

Art. 32: Fees to be Paid by Workers

Chargeable Fees

Placement and Documentation Fees for Overseas Employmento Fees chargeable to Principals

1. visa fee2. airfare3. POEA processing fee4. OWWA membership fee

o Fees chargeable to Workers1. placement fee in an amount equivalent to 1 month

salary exclusive of 2. documentation costs

passport NBI/police/brgy clearance authentication birth certificate medicare trade test, if necessary inoculation, when required by host country medical examination fees

Note: in case the recruitment agency agrees to perform documentation services, the worker shall pay only the actual costs of the document which shall be covered by official receipts

abovementioned placement and documentation costs are the only authorized payments that may be collected from a hired worker

CSNAVARRO, JD 2017

no other charges in whatever form, manner or purpose, shall be imposed on and be paid by the worker without prior approval of the POEA

such fees shall be collected from a hired worker only after he has obtained employment through the facilities of the recruitment agency

For Recruitment or Manning Agency for Overseas Employment

private recruitment or manning agency for overseas employment shall charge their principals a service or manning fee to cover services rendered in the recruitment and placement of workers or seafarers

Refund of Fees

POEA has the power to order refund of illegally collected fees implicit in its power to regulate the recruitment and placement

activities of all agencies is the award of appropriate relief to the victims of the offenses committed by the respondent agency or contractor

such relief includes the refund or reimbursement of such fees as may have been fraudulently or otherwise illegally collected, or such money, goods or services imposed and accepted in excess of what is licitly prescribed

Art. 33: Reports on Employment Status

Sec of Labor may direct all persons or entities within the coverage of this Title to submit a report on the status of employment whenever the public interest requires

Art. 34: Prohibited Acts

CSNAVARRO, JD 2017