When is recruitment of workers ILLEGAL in the Philippines?
The reason why the law requires that the POEA should approve and verify a contract under Article 34(i) of the Labor Code is to insure that the employee shall not thereby be placed in a disadvantageous position and that the same are within the minimum standards of the terms and conditions of such employment contract set by the POEA. This is why a standard format for employment contracts has been adopted by the Department of Labor. However, there is no prohibition against stipulating in a contract more benefits to the employee than those required by law. Thus, in this case wherein a "supplementary contract" was entered into affording greater benefits to the employee than the previous one, and although the same was not submitted for the approval of the POEA, the public respondents properly considered said contract to be valid and enforceable. Indeed, said pronouncements of public respondents have the effect of an approval of said contract. Moreover, as said contract was voluntarily entered into by the parties the same is binding between them. Not being contrary to law, morals, good customs, public policy or public order, its validity must be sustained. (G.R. No. 82252, February 28, 1989)The purpose of Article 34, paragraph 1 of the Labor Code is clearly the protection of both parties. In the instant case, the alleged amendment served to clarify what was agreed upon by the parties and approved by the Department of Labor. To rule otherwise would go beyond the bounds of reason and justice. (G.R. No. 78409, September 14, 1989)
Pursuant to Article 38(b) in relation to Article 34 of the Code, the offense of illegal recruitment has two essential elements, to wit: (1) the accused must be engaged in the recruitment and placement of workers, whether locally or overseas; and (2) the accused has not complied with the guidelines issued by the Secretary of Labor and Employment, particularly with respect to the securing of a license or an authority to recruit and deploy workers, either locally or overseas. If it is committed against three or more persons individually or as a group, the crime becomes illegal recruitment in large scale which is considered an offense involving economic sabotage in Article 38(b) and is penalized under Article 39 of the Labor Code. Recruitment for overseas employment is not in itself necessarily immoral or unlawful. It is the lack of the necessarily license or permit that renders such recruitment activities unlawful or criminal, which is qualified into large scale recruitment when three or more persons are victimized. (G.R. No. 101579-82, December 15, 1993)
A person who violates any of the provisions under Article 13(b) and Article 34 of the Labor Code can be charged and convicted separately of illegal recruitment and estafa [Revised Penal Code, Article 315, 2(a)] because illegal recruitment is a malum prohibitum where the criminal intent of the accused is not necessary for a conviction while estafa is a malum in se where criminal intent of the accused is necessary for a conviction. (G.R. No. 91552, March 10, 1994)