What is Illegal Recruitment in Large Scale?
The crime of Illegal Recruitment in Large Scale is defined under Republic Act No. 8042, otherwise known as the "Migrant Workers and Overseas Filipinos Act of 1995."
Let's first know what recruitment and placement are. Article 13 (b) of the Labor Code defines recruitment and placement as follows:
Art. 13. Definitions. – x x x
(b) "Recruitment and placement" refers to 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: Provided, That any person or entity which, in any manner, offers or promises for a fee, employment to two or more persons shall be deemed engaged in recruitment and placement.
On the other hand, Illegal Recruitment is defined under Article 38 of the Labor Code as follows:
ART. 38. Illegal Recruitment.
(a) Any recruitment activities, including the prohibited practices enumerated under Article 34 of this Code, to be undertaken by non-licensees or non-holders of authority shall be deemed illegal and punishable under Article 39 of this Code. The Department of Labor and Employment or any law enforcement officer may initiate complaints under this Article.
(b) Illegal recruitment when committed by a syndicate or in large scale shall be considered an offense involving economic sabotage and shall be penalized in accordance with Article 39 hereof.
Illegal recruitment is deemed committed by a syndicate if carried out by a group of three (3) or more persons conspiring and/or confederating with one another in carrying out any unlawful or illegal transaction, enterprise or scheme defined under the first paragraph hereof. Illegal recruitment is deemed committed in large scale if committed against three (3) or more persons individually or as a group.
(c) The Secretary of Labor and Employment or his duly authorized representatives shall have the power to cause the arrest and detention of such non-licensee or non-holder of authority if after investigation it is determined that his activities constitute a danger to national security and public order or will lead to further exploitation of job-seekers. The Secretary shall order the search of the office or premises and seizure of documents, paraphernalia, properties and other implements used in illegal recruitment activities and the closure of companies, establishments and entities found to be engaged in the recruitment of workers for overseas employment, without having been licensed or authorized to do so. (Emphases supplied)
Article 13(b) of the Labor Code provides that illegal recruitment encompasses recruitment activities for both local and overseas employment. However, Article 38 of the same Code limits said recruitment activities as those undertaken by non-licensees or non-holders of authority.[1]
Thus, based on the foregoing provisions of the Labor Code, the essential elements[2] of Illegal Recruitment in Large Scale are: (1) that the accused engaged in acts of recruitment and placement of workers as defined under Article 13(b) of the Labor Code, or in any prohibited activities listed under Articles 34[3] and 3 8[4] of the Labor Code; (2) that he/she had not complied with the guidelines issued by the Secretary of DOLE with respect to the requirement to secure a license or authority to recruit and deploy workers; and (3) that she committed the unlawful acts against three or more persons.[5]
On the other hand, RA 8042 broadened the concept of illegal recruitment for overseas employment and increased the penalties. Thus, while Article 38 of the Labor Code limits illegal recruitment to recruitment activities undertaken by non-licensees or non-holders of authority, Part II of RA 8042 defines and penalizes illegal recruitment for employment abroad, regardless of whether it was undertaken by a non-licensee or non-holder of authority or by a licensee or holder of authority.[6]
Thus, Section 6 of RA 8042 provides for the definition of illegal recruitment, as follows:
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 a 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 for 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:
(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 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;
(d) To induce 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;
(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;
(g) To obstruct or attempt to obstruct inspection by the Secretary of Labor and Employment or by his duly authorized representative;
(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 a travel agency;
(k) To withhold or deny travel documents from applicant workers before departure for monetary or financial considerations other than those authorized under the Labor Code and its implementing rules and regulations;
(l) Failure to actually deploy without valid reason as determined by the Department of Labor and Employment; and
(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.
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.
The persons liable for the above offenses are the principals, accomplices and accessories. In case of juridical persons, the officers having control, management or direction of their business shall be liable. (Emphases supplied)
People v. Tolentino,[7] explains the foregoing provision as follows:
Under RA 8042, a non-licensee or non-holder of authority commits illegal recruitment for overseas employment in two ways: (1) by 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; and (2) by undertaking any of the acts enumerated under Section 6 of RA 8042. On the other hand, a licensee or holder of authority is also liable for illegal recruitment for overseas employment when he or she undertakes any of the thirteen acts or practices [(a) to (m)] listed under Section 6 of RA 8042. To constitute illegal recruitment in large scale, the offense of illegal recruitment must be committed against three or more persons, individually or as a group.[8]
