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ACKNOWLEDGMENT

The writer wishes to extend his sincerest gratitude to Atty. Carlos P. Medina,Jr., Executive Director of the Ateneo Human Rights Center, without whose supportthis paper would not have been possible. The writer also expresses his appreciationto hi, friends Attys Sedfrey M. Candelaria, Jorge R,alph C Barreno, Arnel Jose S'Baflas, Mary Jane L Zantua, Anna Janet F. Sunga and to the whole stafl includingthe interns, immersionists and paralegals, for their unceasing support during thewriter's nine-month stay with the Center. Their commitment and dedication to thefield of human rights inciuding the rights of migrant workers continue to be a constantsource of motivation.

Special thanks is owed to Atty. Amparita S. Sta. Maria, the Litigation unitDirector ofthe Center, for her invaluable time and skill in editing this work. Throughoutthis writer's stay with the Center she had been an immediate "boss", a mentor andabove all, a friend.

September, 1995

Jose Tomas C. Syquia*


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Ateneo Human Rights Center

The OCW Problems in Perspective:Causes and Remedies

IntroductionThe virtual diaspora of our countrlmen seeking employmer.rt in foreign

lands, due to the economic travails of the country these past years, will hereafterbe recounted with admiration and sympathy for their intrepidity and self-abnegation. It has, in fact, given rise to a ner.v breed of humble economic heroes,the overseas contract workers. who have breasted all hazards for hearth andfamill'. It has deplorably, also produced a new species of human r.'ultures, differenttlpes of c;es de rapina or birds of prey, whose victims are those who wouldseek a hopefully better future as migrant laborers.rThis paper was prepared with the cause of the migrant workers in mind. Toparaphrase Dr. Jose P. Rizal, by empowering people with knowledge, it becomesharder for them to be oppressed. Thus, this paper aims at a two-fold purpose:preventive and remedial. It is preventive in that it tries to present the readers,particularly the overseas contract workers (OCWs), with the pitfalls of overseas

contract employment by making them aware of recruitment violations which arecommonly committed by unscrupulous agencies. It is hoped that such awarenesswill help them to be on guard against these violations. The paper is also remedialbecause it provides the readers with the necessary information regarding the procedurefor the prosecution of cases before the Philippine Overseas Employment Authority(POEA), subject to the amendments brought about by Republic Act (R.A.) No. 80422and existing Supreme Court jurisprudence on the matter. Thus in the first part ofthis paper, after a definition of the overseas contract worker, the discussions will befocused on the recruitment agency and violations committed by it. The second partwill deal with the remedies available to the OCWs.

The writer also chose an approach which is not purely legal but also practical.Thus, aside from the applicable laws the readers are given an insight of the mostcommon violations committed against the OCWs and how these violations arecommitted. With regard to applicable laws, howeveq as of the time of writing, R.A.No. 8042, otherwise known as the Migrant Workers and Filipinos Overseas Act of


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PART I

I. Constitutional Mandate

The recognition of the OCWs not only as individuals or citizens but especiallyas an important sector of society and the need to protect them find constitutionalbasis in Section 3, paragraph 1 of Art. XIII on Social Justice and Human Rights[Labor] and in Section 1g of Art II on Declaration of Principles and State Policies[State Policies] which respectively provide:

SEC. 3. TTM STATE SHALL AFFORD FULL PROTECTION TO LABOR,LOCAL AND OVERSEAS, ORGANZED AND IINORGANZED, ANDPROMOTEFULLEMPLOYMENT0PPORTI.INITIESFoRALL.SEC 18. THE STATE AFFIRMS LABOR AS A PRIMARY SOCIALECONOMIC FORCE. IT S}TALL PROTECT THE RIGHTS OF WORKERSAND PROMOTE TFIEIR WELFAREIt is in the light of the above provisions that R.A. No. 8042 was enacted The

complete title of this law is "AN ACT TO INSTITUTE THE POLICIES OFOVERSEAS E,MPLOYMENT AND ESTABLISH A HIGF{ER STANDARD OFPROTECTION AND PROMOTION OF THE WELFARE OF MIGRANTWORKERS, THEIR FAMILIES AND OVERSEAS FILIPINOS IN DISTRESS'AND FOR OTHER PURPOSES". How this law will live up to the goals set in itstitle remains to be seen.

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Ateneo Human Riehts Center

of a worker outside the Philippines, including employment on board vessels plyinginternational waters, covered by a valid contract,3 the nationality of the employer,whether Filipino or non-Filipino being immaterial.a Thus, Filipino employers whodeploy their workers abroad under a valid contract are deemed covered by thedefi nition. 5 C onsequently, all workers employed under the above-given circumstancesare overseas contract workers (OCWs).

ffi. The Recruitment Agency

under both the POEA Rules and R.A. No. 8042, before an agency can legallyengage in recruitment and placement activities, it must first secure a license from thePOEA. This license is non-transferable.

In addition, all licensed recruitment agencies must have an official addresssubmitted to the POEA Under the 1991 POEA Rules, all recruitment activitiesshould be conducted only at said ofiicial address.6 Therefore, if a recruiter goes fromone house to another looking for applicants, there is a very high probability that he orshe is an "illegal" recruiter.

It is easy to determine if an agency is authorized by the POEA because it has aPOEA seal with a designated POEA number which must be displayed visibly. In

{daSTED


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OCW Problems in Perspective: Causes & Remedies"xxx lilt is presumed that before their deployment, the petitioners weresubjected to the trade tests required by law to be conducted by the recruitment

agenry to insure employment of only technically qualified workers for the foreignprincipal. There was no misrepresentation on tle part of the petitioners. Theyhad applied as A/C mechanics and clerk, and we may assume that the trade testsconducted on tlem were for these positions and not for the position of assistantcook. ffthey fell short of the employer's expectations, the fault lies not with thepetitioners but with the recruiting agency for deploying them even if they did notpossess the skills necessary for &e positions they were seeking.

xxx If AR and Sons felt they were not qualified for these positions, it shouldhave rejected their applications outright instead of accepting their recruitmentfees just the same and assuring them that their employment has already beenapproved by the foreign principal. It was the fault of AR and Sons for holding thepetitioners to its foreign principal as qualified when they were found later to bedeficient. xxx"

fV. Common Violations Committed Against the OCW

1. Common Recruitment Violations

Recruitment violations are unlawful activities that occur at the pre-employmentstage or before the overseas worker is deployed abroad. The 1991 POEA Rulesenumerate 21 recruitment violations. Under said Rules, these violations are notcriminal in nature but are only grounds for suspension or cancellation of the licenseof the recruitment agency. Knowing what violations are commonly committed bythe agency, it is hoped that the prospective OCW would be more cautious when


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- charging, imposing or accepting directly or indirectly, any amountof money, goods or services, or any fee or bond for any purposewhatsoever before employment is obtained;- engaging in recruitment activities in place other than that specifiedin the license without previous authoization from the Administration(PoEA);- falsifying or altering travel documents;- deploying workers whose employment and travel documents werenot processed by the Administration;- deploying workers or seafarers to vessel or principals not accreditedby the Administration;- disregard of lawful orders, notices and other processes issued by theAdministration;- coercing workers to accept prejudicial arrangements in exchangefor certain benefits that rightfully belong to the workers;- withholding of workers' salaries or remittances without justifiablereasons.

In fact the above "violations" are totally omitted under the new law. As R.A. No.8042 does not contain any provision on "Recruitment violations", a query may beposed whetherthis genre oftransgressions known as "Recruitment Volations" underthe 1991 POEA Rules still exists. Definitely, they cannot be considered illegalrecruitment activities since they are not so provided by law and, therefore, a workercannot file a criminal complaint for these violations before the regular courts. Neitherdo they fall under money claims cognizable by the Labor Arbiters. If it is to beconstrued that the new law merely amended parts of the old law and, therefore, theabove-rnentioned violations still exist independently as recruitment violations, anotherproblem becomes evident: where should the complaint be filed?

A reading ofR A No. 8042 gives the impression that the Adjudication Branchofthe POEA would be abolished. Ifthis were true, then what agency would hear anddecide cases of recruitment violations? Ifthe intention ofthe new law is to continuewith the Adjudication Branch then a situation may be arise wherein a worker mayhave to litigate his or her claims against a recruitment agency before three differentgovernment bodies. This seems te be a lacuna in the law.


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OCW Problems in Perspective: Causes & Remedies

A. Non-issuance of receipts for fees paidr6

This is one ofthe most common recruitment violations which agencies commit.Under the law all amounts received by an agency from a prospective OCW must becovered by an official receipt. The receipt must contain the name ofthe agency, theaddress and the amount received. One modus operandi of agencies is to tell theprospective OCW that it does not issue an ofiicial receipt until it has receivedthe fullplacement fee from the applicant. For example, the agency pegs the placement fee attr12,000.00 If the applicant pays only F6,000.00 (which is already above the legalrate ofP5,000.00) the agency will not issue any receipt. Ifthe applicant asks for one,the agency will merely say that inasmuch as the placement fee is not yet paid in full,it will not issue any receipt. In addition, ifthe applicant cannot pay the balance, it willget the same through salary deduction. As can be seen, although the worker pays theplacement fee he is left with no evidence of payment. Sometimes the agency willissue a "receipt" but this will actually be a "cash voucher" or any ordinary receiptwhich one can buy from any bookstore without being registered with the Bureau ofInternal Revenue (BR) This is not the receipt contemplated by the law. Otheragencies may inform the applicants that if they insist on a receipt they will not bedeployed abroad.

However, even in the absence of the receipt as evidence of recruitment andpayment of fees, the OCW must not lose hope when bringing forth his or her claim.Failure to demand receipts as proof of payment is not fatalto a worker's case. Thereis nothing unusual in the failure of a worker to rely on the promise made by anagency. Being inexperienced and titillated by the prospect oftravelling to the vauntedlands of milk and honey, first-time OCWs are easy prey to an agency's glibness and


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Aleneo Human Rishts Ccnter

thousand (+30,000.00) pesos; and that as between a positive and categorical testimonywhich has a ring of truth on one hand and a bare denial on the other, the former isgenerally held to prevail.le In another case, the agency raised the defense of theworkers' failure to insist on a receipt. The Supreme Court said that the workersshould not be faulted for giving up a measly receipt in return for a golden opportunityto fulfill their dreams of earning easy money abroad,zo especially since the workerssatisfactorily explained that they did not insist on a receipt because the agencythreatened that they would not be able to depart if they did.B. Overcharging of fees2l

Under the 1991 POEA Rules, a seabased OCW does not have to pay anyplacement fee. For landbased OCWs the following are the allowable rates of fees tobe charged:

1. Hiring Cost for Taiwarq one month salary (mobilization fee) plusFive Thousand pesos (I5,000.00)222. For all other jobsites, Five Thousand pesos only (F5,000.00)'?3

This is another provision commonly violated by recruitment agencies. It mustbe noted that under R.A. No. 8042, this violation is now considered an act of illegalrecruitment and is, therefore, criminal in nature. It is difficult to comment on themerits of making this violation a criminal offense. On the one hand, it may be aneffective deterrent on the agencies not to charge unlawful fees considering the penaltyinvolved; but on the other hand, it might be difficult for a worker to prove this chargeas the quantum of evidence that would be required is proofbeyond reasonable doubt.If the worker does not have any receipt as evidence of payment, it now becomeslaborious to prove that illegal exactions took place; whereas formerly only substan-tial evidence was required in order to prove the charge of unlawful exaction.2a

In the absence of any receipt, it would seem that the issue would revolve uponcredibility. Jurisprudence states that it is against human nature and experience for


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OCW Problems in Perspective: Causes & Remediestheir testimony is worthy of full faith and credit.26

C. Contract signing only after payment of fees27

This category of violation and letter "B" above actually constitute only oneprovisior under the 1991 POEA Rules. Under R.A. No. 8042, however, the act ofmaking the worker sign the contract only after payment of fees is no longer consideredillegal recruitment.

Theoretically, before an OCW pays his or her placement fee, he or she musthave already signed a contract of employment duly certified by the POEA. It is onlyafter the signing of an approved contract that the agency should collect the placementfee. However, what happens in practice is very different. After the initial applicationby the worker with the agency by means of filling up ofthe bio-data sheet, the agencywill check ifthe worker's qualification fits a particular job description for employmentabroad. If it does, it would then send a telegram to the applicant asking him or her toreport to the agency. If it thinks that he or she qualifies, the agency would then referthe applicant to a medical clinic for medical examination, and then for trade testing.Sometimes the agency would also ask the applicant to get his or her passport fromthe Department of Foreign Affairs (DFA) Thereafter, the scheme in getting theplacement fee begins. More often than not, the agency will inform the applicant thatthere is ajob order abroad but it would take some time to process the papers. However,it wili tell the applicant that if he or she can pay the placement fee as soon as possible,this would speed up the application process. Also, the agency may ask the applicantto sign a number of documents some of which may be blank papers with the explanationthat this is also needed in order to help speed up the processing of the necessarydocuments. It is important to stress to all prospective applicants that they should becareful in signing documents. There have been instances where the blank documents


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Ateneo Human Rights Cenlerit will be approved by the POEA are the following:

a. gsaranteed minimum wages/overtime payb. free transport to and from point of hirec. free medical and dental treatment and facilitiesd. just cause for terminatione. workmen's compensation/war hazardf. repatriation of workers remainsg. assistance on remittance of workers salariesh. free and adequate board and lodging and food allowancesViolations under this category shall be discussed within the context of contractsubstitution.

E. Contract SubstitutionzeContract substitution occurs when an agency or foreign principal substitutesthe approved work contract with another agreement or makes alterations in theemployment contract which contains provisions below the minimum requirements.All contracts for overseas employment have certain minimum provisions (see D)required by the POEA. This is the reason why they have to be duly approved by thePOEA in order to determine whether said contracts comply with such requirementsand to insure that the workers shall not be placed in a disadvantageous position.Necessarily, contract substitution almost always involves the signing of at least a

second contract which did not pass the POEA. However, the fact that the workersigned a second contract does not necessarily mean that he or she is estopped fromquestioning it The circumstances surrounding the signing of the substitute contracthave to be considered as these may show that the worker was under constraint insigning the same. The POEA will only allow a substitution if the second contractcontains more favorable provisions than all the minimum requirements set by it. Thus,in a case wherein a "supplementary contract" was entered into affording greaterbenefits to the workers than the previous one, and although the same was not submiuedfor the approval of the POEA, the contract can properly be considered as valid andenforceable, provided that any provision contrary to morals, good customs, public


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many documents in one sitting so much so that the applicants hardly have time to goover all documents thoroughly. Eventuallythe applicants end up signing two contracts,one which contains all the minimum requirements which will then be presented to thePOEA or Labor Assistance Center at the NAIA before departure, and the secondcontract which will be inserted inside an envelope containing all the worker's traveldocuments which is usually given just before he or she embarks for abroad.

As mentioned earlier, sometimes the agenc| wiil ask workers to sign blankdocuments which will actually be used by the agency to fill out the necessary detailsit may need. When a worker is told by the agency that everything is already preparedand that he or she will leave on a given date, the agency also informs the worker thatall the rlecessary documents will be given to him or her at the airport. Then, justbefore the worker is about to board the plane, representative of the agency rfilldeliver the documents to the worker and ask him or her to sign some contracts beforethe papers are turned over to the worker. As the worker is already placed in anawkward predicament, he or she will sign all the papers rather than lose the opporhrnityto leave. Later, the worker will be surprised to find out that the employment contractwith him or her is difFerent from the one he or she originally signed.

It is also not unusual for the foreign principal to force overseas workers to signanother contract upon their arrival at thejob site. There have been even instanceswhere agencies forged the signatures of workers in either the first or the secondcontract.

The Supreme Court has held that a local labor contractor remains to be theemployer ofworkers even if there is an assignment oftheir contracts of employmentto the foreign employer.32 Also, a local recruitment agency that severs the agencyagreement with its foreign principal may still be sued for violation of the employmentcontract committed by the foreign principal. The obligation of the local recruitmentagency toward the workers it deploys abroad is not coterminous with its agreementwith the principal, but extends until the expiration of the employment contracts ofthe workers deployed and recruited.33


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Ateneo Humari Rights Center

R Failure to deploy workerc without valid reason within the prescribed periodgUnder the law an agency must deploy a worker within 120 calendar days from

the date of signing of the employment contract. Failure of the agency to deploy aworker within the prescribed period without valid reason shall be a cause for thesuspension or cancellation of license or fine. In addition, the agency must return alldocuments at no cost to the worker, including the placement fee paid by the latter.Failure to do so shall give rise to a cause of action against the agency.It cannot be over emphasized that the worker should as much as possible demandfor a receipt from the agency for any payment made. If none is issued then it isrecommended that the worker make his or her own, containing all the relevantinformation such as the amount paid, date and place of issue, and the time when thetransaction took place. He or she must have a representative ofthe recruitment agency

sign the receipt. The worker is also advised to keep all receipts from the very firstmoment that he or she thought of going overseas. These receipts which include themedical examination receipts, trade testing receipts, transportation, etc., will be veryimportant especially if the worker was not deployed and is now seeking refund asthese are the best evidence that the transaction of recruitment took place.Furthermore, all certificates issued by medical clinics and testing centers, etc.,should be kept until the worker returns. It is advisable to have photocopies of allthese documents. The worker should also give copies to his or her nearest kin as anadditional safety measure in case the worker's own copies are lost or in case something

t3


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If it is the worker who withdraws his or her application from the agency within120 calendar days from the signing of the employment contract, the law providesthat the agency must refund the amount paid by the worker after deducting actualexpenses incurred in the documentation as may be supported by receipts. Thus, ifthe agency cannot show any receipt for expenses incurred it must return the wholeamount paid by the worker.G. Viotation of any provision of the Labor Coipon.q.tu

,This is a "catch all" provision of the Labor Code. fut. 39 (b) specificallyprovides that any violation of any provision of the Labor Code and the POEA rulesand regulations carries with it a penalty of imprisonment and/or fine. With theexception of those acts which are no longer considered illegal recruitment underR.A. No. 8042 and, therefore, have been effectively decriminalized, all other provisionsin the Labor Code and the 1991 POEA Rules and Regulations would come under thepurview of Art. 39 (b)

2. trlegal RecruitmentA. Definition

Under Sec. 6 of R.A. No. 8042 illegal recruitment is defined as:"x x x any act of canvassing, enlisting, contracting, transporting, utilizing, hring,or procuring workers and includes referring, contract services, promising oradvertising for employnent abroad, whether for profit or not, when undertakenby a nonJicensee or non-holder of authority contemplated under Article 13 (f) ofPresidential Decree No. 442, as amended, otherwise known as the Labor Code

ffii


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Ateneo Human Rights Cenler

Labor and Employment, or to make a worker pay any amount greater than thatactually received by him as a loan or advance;(b) To furnish or publish any false notice or information or document inrelation to recruitnent or emplol'rnent;(c) To grve any frlse notice, testimony, information or document or commitany 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 hisemployment in orderto offer him another unless thetransfer is designedto liberatea worker from oppressive terms and conditions of employrnent;(e) To influence or attemptto influence any person or enttty notto employany worker who has not applied for emplo5nnent through his agency;(0 To engage in the recruitment or placement of workers in jobs harmfirlto public health or morality or to the digruty of the Republic of the philippines;(g) To obstruct or attempt to obstruct inspection by the Secretary ofLabor and Employrnent or by his duly authorized representative;(h) To fail to submit reports on the status of emplol,rnent, placementvacancies, remittance of foreign exchange earnings, separation from jobs,deparlures and such other matters or information as may be required by theSecretary of Labor and Employment,(i) To substitute or alter to the prejudice of the worker, employmentcontracts approved and verified by the Department of Labor and Employmentfrom the time of actual sigmng thereof by the parties up to and including theperiod of the expiration of the same without the approval of the Department ofLabor and Employment,O For an officer or agent of a recruitment or placement agency to become


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OCW Problems in Pers

with his documentation and processing for purposes of deployment, in caseswhere the deployment does not actually take place without the worker's fault.Illegal recruitment when committed by a syndicate or in large scale shall beconsidered an offense involving economic sabotage." (underscoring supplied)An unlicensed agency or person conducting any of the recruitment activity

above-mentioned is automati cally engaged in illegal recruitment by the simple factthat it has no license. The act being mala prohibita, rnlent is immaterial. Take notethat the clause immediately following the word "Provided' does not mean that aperson/agency must illegally recruit at least two persons for a fee to commit therri*" of illegal recruitment. It has been held that the proviso is merely an evidentiarycondition that establi shes a prima facie presumption of illegal recruitment.3T

This Supreme Court ruling is favorable to the OCWs inasmuch as if two ormore of them file a complaint for illegal recruitment before a fiscal, a prima faciepresumptionagainst the unlicensed recruiter, and consequently, a case can immediatelybe filed in court. The unlicensed recruiter will have the burden of overcoming thispresumption. To reiterate, even if an unlicensed recruiter promises or offers overseasLmployment to only one person for a fee, said recruiter can be held liable for illegalrecruitment; however, there will be no primafacie presumption.

The underscored portion of the afore-quoted law emphasizes the innovationbrought by R.A. No. 8042. It is now clear that even LICENSED AGENCIES can beprosecuted for illegal recruitment if they commit any of the following acts under Sec-6 ofR.A. No. 8042. Previously, it was difficult to hold licensed agencies liable for thecrime of illegal recruitment because the said crime can only be committed by thosewho conduct recruitment without the necessary license or whose license have beencancelled or suspended. At most, licensed agencies were only charged administrativelybefore the pOEA for committing acts which under the i991 POEA Rules wereconsidered recruitment violations. The most serious penalty that could be imposedon an erring agency then was revocation of its license. Wth the expansion of theconcept of illegal recruitment including most recruitment violations, officers of erringug"n.i", .un ,ro* be held criminally liable for illegal recruitment. Hopefully thettrreat of imprisonment and fine hanging over them like the sword of Damocles over


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Ateneo Human Rights Centermala prohibita,but the same must be inherently immoral. The performance of theact itself and not the prohibition by the statute is determinative of moral turpitude.The Court went on to say that moral turpitude does not, however, include acts whichare not by themselves immoral but whose illegality lies in the fact of being positivelyprohibited. With all due respect, this writer has his reservations on thesepronouncements for what can be more despicable than conning your fellow citizensout of their savings by playing on their hopes and dreams of having a better lifeoutside their country? It is a known fact that most of our workers spend their life-savings, borrow at usurious interests andlor sell their properties just to be able tocome up with the required placement fees which are often bloated beyond the legalceiling. Therefore, it would seem clear that the act of defrauding a worker of his orher hard earned money is inlerently immoral, albeit the author also recognizes thatthe ruling in this case may have been decided given its peculiar facts, to wit. Theaccused who was a public employee was being removed on the ground of moralturpitude for his involvement in an illegal recruitment case. Howeveq he was just avolunteer employee of the recruitment agency, without compensation, and had onlyhoped that he would be deployed for overseas employment. He was also a victim ofthe unscrupulous acts of others who had capitaltzedon his service. The court, therefore,ruled that he cannot be removed from his public position considering that the crimeof illegal recruitment does not involve moral turpitude.

An issue that often crops up is whether or not a person prosecuted for illegalrecruitment can still be prosecuted for estafa. This has already been settled in thecase of People of the Philippines v. Gener Turda3e wherein the Supreme Court heldthat there is no double jeopardy since estafa is wider in scope than illegal recruitmentand covers deceits whether or not related to recruitment activities. Furthermore, inestafa, damage is essential while in illegal recruitment it is not; and while estafa ismalum in se,lllegal recruitment is malum prohibitum.B. Illegal recruitment as economic sabotage

Illegal recruitment when committed by a syndicate or in a large scale shall beconsidered an offense involving economic sabotage. Illegal recruitment as economicsabotage is committed by a syndicate if the recruitment is carried out by a group of

t7


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OCW Problems in Perspeclive: Causes & Remedies

time at different places and yet the charge will be large scale illegal recruitment forthe law uses the phrase "committed against three (3) or more persons individualllz oras a group." (underscoring supplied)

It is important to distinguish if the offense is an ordinary illegal recruitment orone involving economic sabotage because the prescriptive periods and penalties areexceptionally disparate.

C. Prescriptive Periodal

a. Ordinary Illegal Recruitment: FIVE YEARS;b. Those considered as Economic Sabotage:TWENTY YEARS.

D. Penaltiesa2a. Ordinary Illegal recruitment: 6 years and 1 day to 12 yearsand a fine of not less than P200,000 but not more than F500,000.b. Economic Sabotage: Life Imprisonment and a fine of not less than

P500,000 but not more than Fl,000,000.c. The maximum penalty will

recruited is LESS than 18be imposed if the person illegallyor if committed by a non-licensee



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t9there are three (3) or more complainants against an illegal recruiter the'latter cannotpost bail.

In terms of weighing evidence in a case for illegal recruitment, it has been heldthat self-serving negative evidence cannot prevail over positive identification.a Thus,in a situation wherein the complaining workers positively identified the accused asthe person who recruited them for work abroad, the latter's denial that he neverknew the complainants until they met at the fiscal's office and later in court should begiven only scant consideration.a5 Also, the fact that someone else prepared the receiptis not material for what is important is that the private complainants were united instating that the accused personally signed the receipts in their presence after receivingmoney from them.{

3. Illegal Dismissal/Money Claims

It will be recalled that one of the requirements of an overseas contract is thatthere must be a provision stating that the worker can only be dismissed for a justcause. In addition, before a worker can be dismissed, he or she must have had anopportunity to defend himself or herself a7 This dual aspect is what is referred to assubstantive and procedural dtre process. A violation of either will amount to anillegal dismissal.

Substantive due process simply means thataworker may not be removed exceptfor a just and valid cause as provided for by law.a8 For example, dismissal may bejustified if the worker is rowdy, proves to be inefficient or suffers from an incurabledisease. Normally the causes for termination will be stated in the contract ofemployment; even if they are not, the bottom line is that a worker, whether

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OCW Problems in Perspeclive: Causes & Remedies


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violaced, then the agency that deployed the worker will be held liable for the capriciousacts of the foreign employer.

It is not enough that there is ajust cause for dismissal. The worker must also beafforded procedural due process. This merely connotes that the worker must beinformed of the charge against him or her and given the opportunity to refute it.51This procedure for terminating employment is set ou{ in the rules implementing BatasPambansaBilang(B P.Blg.) 130 whichconsistsofanoticeofdismissal, anopportunityto answer, a hearing, and a notification of the decision to dismiss.52 The minimumrequirement consists of notice to the employees intended to be dismissed and thegrant to them of an opportunity to present their own side.53 In furnishing the noticethe POEA requires at least one (l) month notice.5a This is to afford the workerenough time to properly prepare'for his or her departure. Notwithstanding this,there are many instances wherein the worker was just notified on the same day thathe or she was made to leave.

The subsequent compliance with procedural due process before the POEAdoes not wipe out the defect of its earlier denial by the employer. The law requiresthat the investigationbe conductedbefore the dismissal and not after. Thus, the absenceof a prior investigation cannot be corrected by the presentation of charges against theworker and the investigation later conducted by the POEA' especially if the groundfor the dismissal is found to be unjustified.55

It would be futile to argue that our laws, especially the procedural ones, do notapply to OCWs who are covered by foreign contracts of employment. The governingprinciple is that parties may not contract away applicable provisions of laws especiallyperemptory provisions dealing with matters heavily impressed with public interest.The law relating to labor and employment is clearly such an area and parties are notat liberty to insulate themselves and their relationship from the impact of labor lawsand regulation by simply contracting with each other.56 In the case of Royal CrownInternationale v. National Labor Relations Commission51 our Supreme Court said:

"x x x The provisions of the Labor Code of the Philippines, its



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determined. Whether employed locally or overseas, all Filipinoworkers enjoy the protective mantle of Philippine labor and sociallegislation, contract stipulations to the contrary notwithstanding. Thispronouncement is in keeping with the basic public policy of the Stateto afford protection to labor x x x."In overseas employment, there is a presumption that OCWs abide by the termsof the contract, behave in the best manner and tradition of a Filipino, observe and

respect the laws, customs, morals, traditions, and practices of the country where heor she is working.58 This presumption is very favorable to the worker because intrying to establish a case ofillegal dismissal, once the employer-employee relationshiphas been established, the burden of proof shifts to the employer.5e The employermust prove that there was a just cause for termination, and failure to do so wouldresult in a finding that the dismissal was unjustified.6o In one case it was held that thefailure to present any evidence to show why and how workers were declared to beunfit for the job belies assertions that the workers were unfit.61 Also, the absence ofdetails surrounding the charge of disagreeable conduct ofthe worker casts doubts onthe veracity of the charge. Sweeping statements are not looked upon favorably andthey cast doubt on the validity of the dismissal.62 The burden of proof in showingjust and valid cause for termination is imposed upon both the foreign-based employerand the employment agency or recruitment entity which recruited the workers, forthe latter is not only the agent of the former, but is also solidarily liable with itsforeign principal for any claims.63

In like manner, in a claim for underpayrnent the burden of proof is also with theemployer who must show that the salary of the worker was fully paid because he orshe is in possession of the documents evidencing payment.s The Supreme Courtwill give credence to the workers' claims rather than to the agency/employer whichmerely denied the claim without submitting its own evidence to refute it. Since it is soeasy to say that the workers' evidence was insufficient, the agency should refute theassertions of the workers by producing the records and logbooks of the foreignemployeq which could easily be obtained by them since they are the agents of theemployer.65

2L

a, OCW Problems in Perspective: Causes & Remedies


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given in exchange thereof is very much less than the amount the worker is claimingwill render the quitclaim null and void for being contrary to public policy especiallywhere there is clear proof that the waiver was wangled from an unsuspecting orgullible person, or the terms of settlement are unconscionable on its face.66

PART tr

V. Causes of Action

The three most common causes of action often cited by aggrieved workers arethe following:

: Recruitment Violations: Illegal Recruitment: Illegal Dismissal which almost always includes money claimsIt is not advisable to rely solely on the PRO-FORMA complaints that the OCWfills up and files. The PRO-FORMA complaint does not provide an opportunity forthe worker to narrate all the important facts of the case. By making a narrative

complaint-affidavit or complaint it will be easier to explain the evidence to be presented,or if there is none, the narration will better explain such absence.1. Recruitment Violations (1991 POEA Rules)

CAVEAT: The discussion is based on the 1991 POEA Rules, as R.A. No.

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him or her to answer within 10 CALENDAR days. Only one motion for a l0-dayextension is allowed. After the termination ofthe hearings, the hearing officer has 30days to resolve the case.- Appeal: Any party aggrieved by the Decision of the Hearing Officer may appealthe same to the National Labor Relations Commission (NLRC), within ten (10)calendar days from receipt hereof by filing with the Adjudication office, PoEd thefollowing:

a) A Memorandum of Appeal or Motion for P*econsideration speci$ing thegrounds relied upon (5 copies);b) Serving a copy ofthe above to the adverse party; andc) Paying an appeal fee ofP100.00.Any Motion for Reconsideration shall be treated as an appeal provided that if itmeets the above requirements, otherwise the same shall not be given due course.

- Review: Petitions for Review shall be filed with the Secretary oflabor within l0CALENDAR days from receipt of the order by the parties. (Section 2, Rule IV,Book vI, 1991 Rules and Regulations Governing overseas Employment)- Claims: Money claims underthis cause of action are in the form of actual damages,i.e., placement fees, medical expenses, etc.2. Illegal Recruitment (1991 POEA Rules and RA. No. S042)

For illegal recruitment the complainant can file either an administrative complaintwith the POEA or a criminal complaint before the REGULAR COLIRTS. For theadministrative complaint the penalty will only be cancellation ofthe license to operate.On the other hand, the criminal action carries the penalty of imprisonment and fine.

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3. Iltegal lbrmination/Money Claims (R.A. No. 8042)Formerly the Adjudication Branch of the POEA had the authority to hear and

decide all claims arising out of an employer employee relationship involving overseasworkers. This authority has already been abrogated by R.A. No. 8042.68- Jurisdiction: Under the new law, the LABOR ARBITERS of the National LaborRelations Commission Q'ILRC) have original and exclusive jurisdiction'- Procedure: From the filing of the complaint, the Labor Arbiter has 90 calendardays to hear and decide the case. There are penalties provided for by law if the LaborArbiter fails to comply with this mandatory period such as:

a. withholding of salaryb. suspensionc. dismissal- Appeal: This portion follows again the procedure mentioned in the Labor Codeand the 1991 POEARules and Regulations, as amended. From the Labor Arbiter'sdecision an appeal can be made to the National Labor Relations Commission (NLRC)within 10 C.ALENDAR DAYS, and from the NLRC, a petition for certiorari underRule 65 can be made to the Supreme Court within a REASONABLE PERIOD OFTIME (The rule ofthumb is 90 daYs).- Requirements for perfection of appeal to the NLRC: file within 10 calendar days:

a) file a memorandum of aPPeal;b) must be under oath;c) pay appeal fee;d) proofofservice,e) if agency is the one appealing and there is a monetary award,

post a cash or suretY bond.6e

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fees to be awarded. This is another innovation of the new law which is welcomed bymost workers. Now they can be "compensated" for the mental angulsh and zufferingswhich they have undergone in the hands of unscrupulous employers/agencies.

In case of termination without just, valid or authorized cause as definedby law or contract, the worker can claim FULL reimbursement of placement fee withinterest atl2Yoper cmnum,PLUS salaries fortheunexpired portion ofhis employmentcontract OR THREE (3) months for every year of the unexpired ternr, whichever isless.To

In one case the Supreme Court awarded separation pay although not providedfor by the POEA rules. The Court applied the Labor Code provision on separationpay stating that if dismissal is due to retrenchment or reduction ofpersonnel, separationpay must be awarded.TtVI. Conclusion

Undoubtedly, overseas employment has helped so manyFilipinos improve theirlives. With the dollar remittances, it has also contributed to the improvement of theeconomy of the country. It is unfortunate though that in their quest for greenerpastures, many of our "modern heroes" have become victims of abusive employersand unscrupulous recruitment agencies. It has taken a long tirhe for government tobegin to take a serious look at their plight. Hopefully, the rights of our workers willbe better protected in the future and they can have immediate access to justice withthe support of our government The manner bywhich our OCWs should be iegardedcan be summed up in the following pronouncements of our Supreme Court:

"[w]hen the conflicting interests of labor and capital are weighed on thescales of, social justice, the heavier influence of the latter must becounterbalanced by the sympathy and compassion the law must accord'the underprivileged worker. This is only fair if he is to be given the;opportunity-and the right-to assert and defend his cause not as a


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The Ateneo Human R.ights CenterThe Ateneo Human Rights Center (AI{RC) was established in October 1986as one of the first university-based institutions engaged in the promotion of peace,

development and human rights in the Philippines. It is housed in the School oflaw ofthe Ateneo de Manila University.

The Center seeks to realize its mandate through programs which focus on thecontinuinfi fcji-mation of human rights advocates among lawyers, law students andgrassroots leaders, the monitoring of the human rights situation in the Philippinesand abroad, research and publication, public education on peace, development andhuman rights, and legal assistance to indigent victims of human rights abuses.

Thus, the Center assigns law students through the internship program to workwith human rights organizations in the Philippines, conducts training seminars for thebenefit ofgovernment and non-government orgarnzations and grassroots communities,publishes a monthly newsletter and a yearly journal, and renders legal assistance toindigent clients and grassroots communities.

As varied as the Center's programs, its beneficiaries include urban poorcommunities, women, children, laborers, migrant workers, students, non-governmentalorganizattons, and the general public.

As an institution of the Ateneo de Manila University, the Center has access tovaluable resources of the university and the law school in the implementation of itsprograms. Volunteer law professors, alumni practitioners and law students lendadditional support to its activities.

The Ateneo Human Rights Center is located at 130 H.V. De la Costa, S.J.Street, Salcedo Vllage, Makati, Philippines.

ocw problem in perspection

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