Labor Law and Social Legislation › Recruitment and Placement

C. Overseas Employment (RA 8042, as amended by RA 10022)

Recruitment of Local and Migrant Workers: Policy of Selective Deployment

The State shall allow the deployment of overseas Filipino workers only in countries where the rights of Filipino migrant workers are protected. The government recognizes any of the following as a guarantee on the part of the receiving country for the protection of the rights of overseas Filipino workers:

  • It has existing labor and social laws protecting the rights of workers, including migrant workers;
  • It is a signatory to and/or a ratifier of multilateral conventions, declarations or resolutions relating to the protection of workers, including migrant workers; and
  • It has concluded a bilateral agreement or arrangement with the government on the protection of the rights of overseas Filipino Workers:

Provided, That the receiving country is taking positive, concrete measures to protect the rights of migrant workers in furtherance of any of the guarantees under subparagraphs (a), (b) and (c) hereof [Sec. 4, RA 8042, as amended by Sec. 3, RA 10022].

[...] The Department of Foreign Affairs, through its foreign posts, shall issue a certification to the POEA, specifying therein the pertinent provisions of the receiving country's labor/ social law, or the convention/ declaration/ resolution, or the bilateral agreement/ arrangement which protect the rights of migrant workers.

The State shall also allow the deployment of overseas Filipino workers to vessels navigating the foreign seas or to installations located offshore or on high seas, whose owners/employers are compliant with international laws and standards that protect the rights of migrant workers.

The State shall likewise allow the deployment of overseas Filipino workers to companies and contractors with international operations: Provided, That they are compliant with standards, conditions and requirements, as embodied in the employment contracts prescribed by the POEA and in accordance with internationally-accepted standards [Sec. 4, RA 8042, as amended by Sec. 3, RA 10022].

Exceptions

  • Members of the diplomatic corps;
  • International organizations;
  • Heads of state and government officials with the rank of at least deputy minister;
  • Other employers as may be allowed by the Secretary of Labor and Employment, such as:
  • Those provided in (a), (b) and (c) who bear a lesser rank, if endorsed by the Philippine Overseas Labor Office (POLO), or Head of Mission in the absence of the POLO;
  • Professionals and skilled workers with duly executed/authenticated contracts containing terms and conditions over and above the standards set by the POEA. The number of professional and skilled Overseas Filipino Workers hired for the first time by the employer shall not exceed five (5). For the purpose of determining the number, workers hired as a group shall be counted as one; OR
  • Workers hired by a relative/family member who is a permanent resident of the host country [Sec. 124, 2016 Revised POEA Rules and Regulations].

Policy of Selective Deployment

The State shall allow the deployment of overseas Filipino workers only in countries where the rights of Filipino migrant workers are protected.

The government recognizes any of the following as a guarantee on the part of the receiving country for the protection of the rights of overseas Filipino workers:

  • It has existing labor and social laws protecting the rights of workers, including migrant workers;
  • It is a signatory to and/or a ratifier of multilateral conventions, declarations or resolutions relating to the protection of workers, including migrant workers; and
  • It has concluded a bilateral agreement or arrangement with the government on the protection of the rights of overseas Filipino Workers: Provided, That the receiving country is taking positive, concrete measures to protect the rights of migrant workers in furtherance of any of the guarantees under subparagraphs (a), (b) and (c) hereof. (RA 8042, Sec. 4, as amended by RA 10022, Sec. 3)
LABOR CODE R.A. No. 8042 – MIGRANT WORKERS ACT, AS AMENDED
Local recruitment and employment Applies to recruitment for overseas employment
Illegal Recruitment (Art. 38)Recruitment and placement by a non-licensee or non-holder of authority constitutes illegal recruitment under Article 38; the prohibited practices in Article 34 are separately enumerated and are not limited to non-licensees.Elements:
1. That 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. That the offender undertakes any activity within the meaning of recruitment and placement defined under Article 13(b)		 Illegal Recruitment (Sec. 6):
1. Any recruitment activity committed by non-licensees / nonholders of authority; OR
2. Any prohibited act enumerated in Section 6 committed by a licensee or holder of authority; OR
3. Added the following in the list of Prohibited Acts (DEMILRETSI):
◦ Fail to actually Deploy Without valid reason;
◦ Fail to reimburse Expenses incurred by the worker in connection with his/her documentation and processing for purposes of deployment, in cases where the deployment does not actually take place without the worker’s fault
◦ To allow a non-Filipino citizen to head or Manage a licensed recruitment/manning agency.
◦ Grant a loan to an OFW with Interest exceeding 8% per annum, to be used for payment of legal and allowable placement fees and make the OFW issue postdated checks in relation to the said loan;
◦ Impose a compulsory and exclusive arrangement whereby an OFW is required to avail of a Loan only from specifically designated institutions, entities or persons;
◦ Refuse to condone or renegotiate a loan incurred by an OFW after the latter's employment contract has been prematurely terminated through no fault of his or her own;
◦ Impose a compulsory and Exclusive arrangement whereby an OFW is required to undergo health examinations only from specifically designated medical clinics, institutions, entities or persons, (except in the case of a seafarer whose medical exam cost is shouldered by the principal/ shipowner);
◦ Impose a compulsory and exclusive arrangement whereby an OFW is required to undergo Training, seminar, instruction or schooling of any kind only from specifically designated institutions, entities or persons, except for recommendatory trainings mandated by principals/ ship owners where the latter shoulder the cost of such trainings;
◦ For a Suspended recruitment/manning agency to engage in any kind of recruitment activity including the processing of pending workers' applications;
◦ For a recruitment/ manning agency or a foreign principal/ employer to pass on the OFW or deduct from his or her salary the payment of the cost of Insurance fees, premium or other insurance related charges, as provided under the compulsory worker's insurance coverage.
A Non-Licensee / 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. The offender may be a non-licensee or a non-holder of authority and commits any of the acts of recruitment;ORA licensee or holder of authority commits any of the prohibited acts under section 6, RA 8042, as amended.

Overseas Seafarers are Contractuals

The employment of overseas seafarers is governed by the POEA Standard Employment Contract for Filipino Seamen. Their employment is governed by the contracts they sign every time they are rehired, and their employment is terminated when the contract expires. It is an accepted maritime industry practice that employment of seafarers is for a fixed period only.