Labor Law and Social Legislation › Recruitment and Placement › Regulation of Recruitment and Placement › Regulatory Authorities and their Powers and Functions

b. Department of Migrant Workers (DMW) (RA 11641)

A. Recruitment and Placement of Local and Migrant Workers (Labor Code, art. 13) (part 1 of 2)

Regulatory Authorities

Department of Migrant Workers – R.A. No. 11641, secs. 4-6

Section 4. Creation. – The Philippine Overseas Employment Administration (POEA) created under Executive Order No. 247, Series of 1987, as amended, and all the entities, agencies and units enumerated in Section 19 are consolidated and merged, and hereby constituted as the Department of Migrant Workers, hereinafter referred to as “the Department”. The Department is hereby organized structurally and functionally in accordance with the provisions of this Act.

Section 5. Mandate. – The Department shall absorb all the powers, functions and mandate of the POEA and all the entities enumerated in Section 19 hereof, and shall be the primary agency under the Executive Branch of the government tasked to protect the rights and promote the welfare of OFWs, regardless of status and of the means of entry into the country of destination. It shall formulate, plan, coordinate, promote, administer, and implement policies, and undertake systems for regulating, managing, and monitoring the overseas employment of Filipino workers and reintegration of OFWs, while taking into consideration the national development programs formulated by the National Economic and Development Authority (NEDA). It shall also promote the empowerment and protection of Filipinos working overseas by empowering and training them to gain appropriate skills and by ensuring access to continuous training and knowledge development.

Section 6. Powers and Functions. – To carry out its mandate, the Department shall:

(a) Formulate, recommend, and implement national policies, plans, programs, and guidelines that will ensure the protection of OFWs, including their safe, orderly and regular migration, the promotion of their interests, the timely and effective resolution of their problems and concerns, and their effective reintegration into Philippine society; (b) Regulate the recruitment, employment, and deployment of OFWs; (c) Investigate, initiate, sue, pursue, and help prosecute, in cooperation with the Department of Justice (DOJ) and the Inter-Agency Council Against Trafficking (IACAT), illegal recruitment and human trafficking cases as defined under Republic Act No. 8042, as amended by Republic Act No. 10022, otherwise known as the Migrant Workers and Overseas Filipinos Act of 1995, as amended, and as provided under Republic Act No. 9208, as amended by Republic Act No. 10364, otherwise known as the Anti-Trafficking in Persons Act, and other existing laws and other issuances. In the performance of its functions, the Department Secretary and his or her authorized deputy shall have the power: (1) to issue subpoena or subpoena duces tecum to any person for investigation for illegal recruitment or trafficking in persons cases as defined under Republic Act No. 9208, as amended, and other existing laws and other issuances; and hold or cite any person in contempt as may be provided by the implementing rules and regulations; (2) to administer oaths upon cases under investigation; and (3) to have access to all public records and to records of private parties and concerns, in accordance with law; (d) Protect and promote the welfare, well-being, and interests of the families of OFWs in accordance with this Act, consistent with the constitutional policy of upholding the sanctity of the family as a basic autonomous social institution and of valuing the vital role of youth in nation-building; (e) Support and assist the Department of Foreign Affairs (DFA) and relevant government agencies in building strong and harmonious partnerships with counterpart and relevant agencies in foreign countries in order to facilitate the implementation of strategies and programs for the protection and promotion of the rights and well-being of OFWs and their families, and to continuously monitor economic, political and labor developments therein; (f) Support and assist the DFA in the negotiation of bilateral and multilateral agreements, initiatives and programs, including intergovernmental processes, which primarily concern labor migration; (g) Represent, in coordination with and under the guidance of the DFA, interests pertaining to OFWs in bilateral, regional, and multilateral fora and international bodies. A written authorization shall be secured by the Department from the President, through the Secretary of Foreign Affairs, prior to any international meeting or negotiation of a treaty or executive agreement on any subject matter within its mandate; (h) Provide, in cooperation with the Department of Education (DepEd), the Department of Trade and Industry (DTI), the Commission on Higher Education (CHED), the Technical Education and Skills Development Authority (TESDA), the Maritime Industry Authority (MARINA), and other government agencies, civil society organizations, nongovernmental organizations and the private sector, trainings aimed at promoting the global competitiveness of OFWs, as well as job matching services to persons desiring to become OFWs; (i) Encourage and enhance information and resource sharing among related agencies, and develop an electronic database to improve services for OFWs in accordance with Section 18 of this Act; (j) Regulate the operations of private recruitment and manning agencies involved in the deployment of OFWs abroad to protect the interests and well-being of these workers; (k) Foster the professionalization, promote ethical recruitment practices, and ensure compliance with legal and ethical standards, training, and capacity-building of private recruitment and manning agencies; (l) Establish a 24/7 Emergency Response and Action Center Unit and media and social media monitoring center to respond to the emergency needs of OFWs and their families; (m) Perform all the powers, functions, and responsibilities assigned to all agencies, offices, or units to be transferred to, or absorbed by, the Department pursuant to the consolidation mandated by this Act; (n) Require private recruitment and manning agencies to provide comprehensive insurance to the OFWs they deploy in accordance with the law: Provided, That with respect to OFWs deployed through other arrangements, a substantially similar benefit shall be provided to the concerned OFW; (o) Develop and create a training institute that will provide substantive, analytical and strategic leadership training programs meant to equip employees of the Department , especially those who will be working overseas, with necessary knowledge and skills, such as, but not limited to, the language, customs, traditions, and laws of the host countries where OFWs are located, with due regard to the training services being provided by the Foreign Service Institute of the DFA. The training shall also include effective means and methods in handling the concerns of OFWs; (p) Develop and create an institute for advanced and strategic studies on migration and development, which shall, among others, conduct advanced, strategic and up-to-date studies and research on global migration and development trends; (q) In coordination with the DFA, conduct regular, timely and relevant political and security risk assessment of the conditions in the receiving country, including adequate evacuation plans that will be communicated with all migrant workers thereat, not only for deployment purposes but more especially in cases of emergencies which will require swift actions including, but not limited to, possible evacuation of our migrant workers; (r) Create a system for the blacklisting of persons, both natural and juridical, including local and foreign recruitment agencies, their agents, and employers, who are involved in trafficking as defined in Section 16(h), second paragraph of Republic Act No. 9208, as amended. The Department shall create and update a database of blacklisted persons which will be shared within the concerned agencies of the Department and with the IACAT. It shall also establish a monitoring system for cases involving trafficking and illegal recruitment of OFWs; and (s) Perform such other functions as may be necessary to achieve the objectives of this Act.

The exercise of the powers and functions of the Department shall in no way limit, restrict, or diminish the pursuit of an independent foreign policy or the conduct of foreign relations and treaty negotiations by the DFA.

Protection of the rights and promotion of the welfare of overseas Filipinos is a pillar of Philippine foreign policy. The DFA shall continue providing assistance to other Filipino nationals not covered under this Act.

Regulatory and Visitorial Powers – Labor Code, arts. 33, 36 and 37. For overseas recruitment and placement, read these provisions together with R.A. No. 11641, secs. 4-6 and 19: the Department of Migrant Workers has absorbed the POEA’s powers and functions.

Article 33. Reports on employment status. Whenever the public interest requires, the Secretary of Labor may direct all persons or entities within the coverage of this Title to submit a report on the status of employment, including job vacancies, details of job requisitions, separation from jobs, wages, other terms and conditions and other employment data.

Article 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.

Article 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.

Regulation of Recruitment and Placement Activities

Ban on Direct Hiring; Exceptions – Labor Code, art. 18

Article 18. Ban on direct-hiring. No employer may hire a Filipino worker for overseas employment except through the Boards and entities authorized by the Secretary of Labor. Direct-hiring by members of the diplomatic corps, international organizations and such other employers as may be allowed by the Secretary of Labor is exempted from this provision.

Entities and persons prohibited from recruiting – Labor Code, art. 26; R.A. No. 8042, as amended by R.A. No. 10022, sec. 6 (j); Revised POEA Rules 2016 for Land-based Workers, Part II, Rule I, sec. 3

Article 26. Travel agencies prohibited to recruit. Travel agencies and sales agencies of airline companies are prohibited from engaging in the business of recruitment and placement of workers for overseas employment whether for profit or not.

SEC. 6. Definition. - For purposes of this Act, illegal recruitment shall mean any act of canvassing, enlisting, contracting, transporting, utilizing, hiring, or procuring workers and includes referring, contract services, promising or advertising for employment abroad, whether for profit or not, when undertaken by non-licensee or non-holder of authority contemplated under Article 13(f) of Presidential Decree No. 442, as amended, otherwise known as the Labor Code of the Philippines: Provided, That any such non-licensee or non-holder who, in any manner, offers or promises for a fee employment abroad to two or more persons shall be deemed so engaged. It shall likewise include the following acts, whether committed by any person, whether a non-licensee, non-holder, licensee or holder of authority:

(j) For an officer or agent of a recruitment or placement agency 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 travel agency;

Non-transferability of License or Authority – Labor Code, art. 29
Suspension or cancellation of license or authority – Labor Code, art. 35; Revised POEA Rules 2016 for Land-based Workers, Part III, Rule I, secs. 101 and 104

Prohibited Practices – Labor Code, art. 34; R.A. No. 8042, as amended by R.A. No. 10022, sec. 6; Revised POEA Rules 2016 for Land-based Workers, Part I, Rule X, sec. 76

"(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 and Employment, or to make a worker pay or acknowledge 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 the Labor Code, or for the purpose of documenting hired workers with the POEA, which include the act of reprocessing workers through a job order that pertains to nonexistent work, work different from the actual overseas work, or work with a different employer whether registered or not with the POEA; "(d) To include or attempt to induce a worker already employed to quit his employment in order to offer him another unless the transfer is designed to liberate a worker from oppressive terms and conditions of employment; "(e) To influence or attempt to influence any person or entity not to employ any worker who has not applied for employment through his agency or who has formed, joined or supported, or has contacted or is supported by any union or workers' organization; "(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; "(h) To fail to submit 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 and Employment; "(i) To substitute or alter to the prejudice of the worker, employment contracts approved and verified by the Department of Labor and Employment from the time of actual signing thereof by the parties up to and including the period of the expiration of the same without the approval of the Department of Labor and Employment; "(j) For an officer or agent of a recruitment or placement agency 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 travel agency; "(k) To withhold or deny travel documents from applicant workers before departure for monetary or financial considerations, or for any other reasons, other than those authorized under the Labor Code and its implementing rules and regulations; "(l) Failure to actually deploy a contracted worker without valid reason as determined by the Department of Labor and Employment; "(m) 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. Illegal recruitment when committed by a syndicate or in large scale shall be considered an offense involving economic sabotage; and "(n) To allow a non-Filipino citizen to head or manage a licensed recruitment/manning agency.

"Illegal recruitment is deemed committed by a syndicate if carried out by a group of three (3) or more persons conspiring or confederating with one another. It is deemed committed in large scale if committed against three (3) or more persons individually or as a group.

"In addition to the acts enumerated above, it shall also be unlawful for any person or entity to commit the following prohibited acts: