Art. 12. Statement of objectives.

It is the policy of the State:

To promote and maintain a state of full employment through improved manpower training, allocation and utilization;

To protect every citizen desiring to work locally or overseas by securing for him the best possible terms and conditions of
employment;

To facilitate a free choice of available employment by persons seeking work in conformity with the national interest;

To facilitate and regulate the movement of workers in conformity with the national interest;

To regulate the employment of aliens, including the establishment of a registration and/or work permit system;

To strengthen the network of public employment offices and rationalize the participation of the private sector in the
recruitment and placement of workers, locally and overseas, to serve national development objectives;

To insure careful selection of Filipino workers for overseas employment in order to protect the good name of the
Philippines abroad.

RECRUITMENT AND PLACEMENT OF WORKERS

Art. 13. Definitions.

"Worker" means any member of the labor force, whether employed or unemployed.

"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.

"Private fee-charging employment agency" means any person or entity engaged in recruitment and placement of
workers for a fee which is charged, directly or indirectly, from the workers or employers or both.

"License" means a document issued by the Department of Labor authorizing a person or entity to operate a private
employment agency.

"Private recruitment entity" means any person or association engaged in the recruitment and placement of workers,
locally or overseas, without charging, directly or indirectly, any fee from the workers or employers.

"Authority" means a document issued by the Department of Labor authorizing a person or association to engage in
recruitment and placement activities as a private recruitment entity.

"Seaman" means any person employed in a vessel engaged in maritime navigation.

"Overseas employment" means employment of a worker outside the Philippines.

"Emigrant" means any person, worker or otherwise, who emigrates to a foreign country by virtue of an immigrant visa or
resident permit or its equivalent in the country of destination.

Art. 14. Employment promotion. The Secretary of Labor shall have the power and authority:

To organize and establish new employment offices in addition to the existing employment offices under the Department
of Labor as the need arises;
To organize and establish a nationwide job clearance and information system to inform applicants registering with a
particular employment office of job opportunities in other parts of the country as well as job opportunities abroad;

To develop and organize a program that will facilitate occupational, industrial and geographical mobility of labor and
provide assistance in the relocation of workers from one area to another; and

To require any person, establishment, organization or institution to submit such employment information as may be
prescribed by the Secretary of Labor.

Art. 16. Private recruitment. Except as provided in Chapter II of this Title, no person or entity other than the public
employment offices, shall engage in the recruitment and placement of workers.

Art. 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.

Art. 23. Composition of the Boards.

The OEDB shall be composed of the Secretary of Labor and Employment as Chairman, the Undersecretary of Labor as
Vice-Chairman, and a representative each of the Department of Foreign Affairs, the Department of National Defense, the
Central Bank, the Department of Education, Culture and Sports, the National Manpower and Youth Council, the Bureau of
Employment Services, a workers organization and an employers organization and the Executive Director of the OEDB as
members.

The National Seamen Board shall be composed of the Secretary of Labor and Employment as Chairman, the
Undersecretary of Labor as Vice-Chairman, the Commandant of the Philippine Coast Guard, and a representative each of
the Department of Foreign Affairs, the Department of Education, Culture and Sports, the Central Bank, the Maritime
Industry Authority, the Bureau of Employment Services, a national shipping association and the Executive Director of the
NSB as members.

The members of the Boards shall receive allowances to be determined by the Board which shall not be more than
P2,000.00 per month.

The Boards shall be attached to the Department of Labor for policy and program coordination. They shall each be
assisted by a Secretariat headed by an Executive Director who shall be a Filipino citizen with sufficient experience in
manpower administration, including overseas employment activities. The Executive Director shall be appointed by the
President of the Philippines upon the recommendation of the Secretary of Labor and shall receive an annual salary as
fixed by law. The Secretary of Labor shall appoint the other members of the Secretariat.

The Auditor General shall appoint his representative to the Boards to audit their respective accounts in accordance with
auditing laws and pertinent rules and regulations.

Art. 24. Boards to issue rules and collect fees. The Boards shall issue appropriate rules and regulations to carry out their
functions. They shall have the power to impose and collect fees from employers concerned, which shall be deposited in
the respective accounts of said Boards and be used by them exclusively to promote their objectives.

REGULATION OF RECRUITMENT AND PLACEMENT ACTIVITIES

Art. 25. Private sector participation in the recruitment and placement of workers. Pursuant to national development
objectives and in order to harness and maximize the use of private sector resources and initiative in the development and
implementation of a comprehensive employment program, the private employment sector shall participate in the
recruitment and placement of workers, locally and overseas, under such guidelines, rules and regulations as may be
issued by the Secretary of Labor.

MISCELLANEOUS PROVISIONS

Art. 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.

Art. 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.

Art. 38. Illegal recruitment.

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.

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.

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.

Art. 39. Penalties.

The penalty of life imprisonment and a fine of One Hundred Thousand Pesos (P1000,000.00) shall be imposed if illegal
recruitment constitutes economic sabotage as defined herein;

Any licensee or holder of authority found violating or causing another to violate any provision of this Title or its
implementing rules and regulations shall, upon conviction thereof, suffer the penalty of imprisonment of not less than
two years nor more than five years or a fine of not less than P10,000 nor more than P50,000, or both such imprisonment
and fine, at the discretion of the court;

Any person who is neither a licensee nor a holder of authority under this Title found violating any provision thereof or its
implementing rules and regulations shall, upon conviction thereof, suffer the penalty of imprisonment of not less than
four years nor more than eight years or a fine of not less than P20,000 nor more than P100,000 or both such
imprisonment and fine, at the discretion of the court;

If the offender is a corporation, partnership, association or entity, the penalty shall be imposed upon the officer or
officers of the corporation, partnership, association or entity responsible for violation; and if such officer is an alien, he
shall, in addition to the penalties herein prescribed, be deported without further proceedings;

In every case, conviction shall cause and carry the automatic revocation of the license or authority and all the permits and
privileges granted to such person or entity under this Title, and the forfeiture of the cash and surety bonds in favor of the
Overseas Employment Development Board or the National Seamen Board, as the case may be, both of which are
authorized to use the same exclusively to promote their objectives.

EMPLOYMENT OF NON-RESIDENT ALIENS

Art. 40. Employment permit of non-resident aliens. Any alien seeking admission to the Philippines for employment
purposes and any domestic or foreign employer who desires to engage an alien for employment in the Philippines shall
obtain an employment permit from the Department of Labor.

The employment permit may be issued to a non-resident alien or to the applicant employer after a determination of the
non-availability of a person in the Philippines who is competent, able and willing at the time of application to perform the
services for which the alien is desired.

For an enterprise registered in preferred areas of investments, said employment permit may be issued upon
recommendation of the government agency charged with the supervision of said registered enterprise.
Art. 41. Prohibition against transfer of employment.

After the issuance of an employment permit, the alien shall not transfer to another job or change his employer without
prior approval of the Secretary of Labor.

Any non-resident alien who shall take up employment in violation of the provision of this Title and its implementing rules
and regulations shall be punished in accordance with the provisions of Articles 289 and 290 of the Labor Code.

In addition, the alien worker shall be subject to deportation after service of his sentence.

Art. 42. Submission of list. Any employer employing non-resident foreign nationals on the effective date of this Code shall
submit a list of such nationals to the Secretary of Labor within thirty (30) days after such date indicating their names,
citizenship, foreign and local addresses, nature of employment and status of stay in the country. The Secretary of Labor
shall then determine if they are entitled to an employment permit.

RULE I

Definitions of Terms

SECTION 1. Definition of terms.

(a) "Bureau" means the Bureau of Employment Services.cralaw

(b) "NSB" means the National Seamen Board.cralaw

(c) "OEDB" means the Overseas Employment Development Board.cralaw

(d) "Private recruitment entity" means any person or entity engaged in the recruitment and placement of workers
locally or overseas, without charging, directly or indirectly, any fee against the worker.cralaw
(e) "Private employment agency" means any person or entity engaged in the recruitment and placement of workers for
a fee which is charged directly against the workers or employers, or both.cralaw

(f) "Authority" means a document issued by the Secretary of Labor and Employment authorizing a person or association
to engage in recruitment and placement activities as a private recruitment entity.cralaw

(g) "License" means a document issued by the Secretary of Labor and Employment authorizing a person or entity to
operate a private employment agency.cralaw

(h) "Employment permit" means the authority issued by the Secretary of Labor and Employment to a non-resident alien
to work in the Philippines or to an employer engaged in business in the Philippines to employ such alien.cralaw

(i) "Beneficiary" means a person designated by a contract worker or seaman employed overseas to receive his monthly
remittance.cralaw

(j) "Non-resident alien" means any alien already in the Philippines or seeking admission to the Philippines to obtain
employment in any public or private enterprise.cralaw

(k) "Seaman" means any person employed in maritime navigation.cralaw

(l) "Understudy" means any qualified Filipino citizen designated by a local employer to be trained by a foreign national
allowed to work in the country by virtue of an employment permit granted to him by the Secretary of Labor and
Employment under an approved understudy training program.cralaw

(m) "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 employment locally or abroad,
whether for profit or not: Provided, That any person or entity which in any manner, offers or promises employment for a
fee to two or more persons shall be deemed engaged in recruitment and placement.cralaw

(n) "Foreign exchange earnings" means the earnings abroad of contract workers and seamen or their recruiters or local
employers or agents in terms of US dollars or any other internationally acceptable currency.cralaw

(o) "Remittance" means the amount of the foreign exchange earnings remitted by a contract worker or seaman to any
beneficiary in the Philippines through the Philippine banking system.cralaw

(p) "Placement fees" means the amount charged by a private employment agency from an applicant worker for its
services in the recruitment and placement of said worker.cralaw

(q) "Mobilization fee" means the amount charged by a licensee or authority holder from its foreign employer-
principal/partner to cover costs of recruitment, processing and documentation of its recruits for overseas
employment.cralaw

(r) "Service fee" means the amount charged by a licensee or authority holder from its foreign employer-principal/partner
as payment for actual services rendered in relation to the recruitment and employment of workers for said
principal/partner.cralaw

(s) Administration. means the Philippine Overseas Employment Administration.cralaw

(u) Administrator. means a private employment or a manning agency as herein defined.cralaw

(v) Code. means the Labor Code of the Philippines, as amended.cralaw

(w) Contracting partner. refers to a foreign party to any service agreement or project contract entered into by a
service contractor or construction contractor.cralaw

(x) Contract Worker. means any person working or who has worked overseas under a valid employment contract and
shall include seamen.cralaw

(y) Directorate. means the executive body of the Administration composed of its administrators and Directors.cralaw
(z) Director LRO. refers to the Director of the Licensing and Regulation Office.cralaw

(aa) Director MPDO. refers to the Director of the Market Development and Placement Office.cralaw

(bb) Director WAAO. refers to the Director of the Worker's Assistance and Adjudication Office.cralaw

(cc) Employer. refers to any person, partnership or corporation, whether local or foreign directly engaging the services
of the Filipino workers overseas.cralaw

(dd) Entity. means a private recruitment entity as herein defined.cralaw

(ee) Governing Board. is the policy making body of the Administration.cralaw

(ff) Manning Agency. refers to any person or entity duly licensed by the Secretary to recruit seamen for vessels plying
international waters and for related maritime activities.cralaw

(gg) Name Hire. is a worker who is able to secure employment overseas on his own without the assistance or
participation of any agency or entity.cralaw

(hh) Non-licensee or Non-holder of Authority. refers to any person, partnership or corporation which has not been
issued a valid license or authority, has been suspended, revoked or cancelled by the Administrator or Secretary.cralaw

(ii) One-Stop Processing Center. refers to an inter-agency servicing body designed to facilitate the employment and
subsequent deployment of contract workers for work overseas.cralaw

(jj) Overseas employment. means employment of a worker outside the Philippines including employment on board
vessels plying international waters, covered by a valid employment contract.cralaw

(kk) Principal. refers to any foreign person, partnership or corporation hiring Filipino workers through an
agency.cralaw

(ll) Regional Director. refers to the Directors of the Regional Office of the Department.cralaw

(mm) Regional Labor Center or RLC. refers to an overseas field office of the Administration.

RULE II

Employment Promotion

SECTION 1. Powers of the Secretary of Labor and Employment. The Secretary shall have the power and authority to:

(a) Organize and establish, as the need arises, new public employment offices in addition to or in place of existing ones
for the efficient, systematic and coordinated recruitment and placement of workers for local and overseas
employment.cralaw

(b) Organize and establish a nationwide job clearance and information system to inform applicants registering with a
particular employment office of job opportunities in other parts of the country as well as overseas.cralaw

(c) Develop and organize programs that will facilitate occupational, industrial and geographical mobility of labor and
provide assistance in the relocation of workers from one area to another.cralaw

(d) Require any person, establishment, organization or institution to submit such employment information as may be
necessary; and chan robles virtual law library

(e) Issue such rules and regulations as may be necessary to regulate and supervise private sector participation in the
recruitment and placement of workers, locally or overseas, in the context of a comprehensive national employment
program.cralaw
SECTION 2. Free placement services. The public employment offices shall provide free placement of workers applying
for both domestic and overseas placement. Applicants shall accomplish appropriate information sheets and submit such
other documents as may be prescribed by the Bureau for the purpose.cralaw

SECTION 3. Placement of workers. Any applicant registering for employment with a public employment office shall be
interviewed to determine his occupational qualifications. The public employment office shall refer him to any appropriate
job for vacancy.cralaw

SECTION 4. Vocational guidance and testing. The public employment offices shall provide adequate vocational
guidance and testing service to persons seeking help in choosing or changing an occupation. Each office shall at least
have one (1) vocational guidance and testing officer to undertake these tasks.cralaw

SECTION 5. Occupational classification of registered applicants. The public employment office shall classify registered
applicants in accordance with job-titles and codes of the Philippine Standard Classification. They shall also maintain a
registry of skills using such forms as may be appropriate for the purpose.cralaw

SECTION 6. Occupational-industrial mobility of workers. The public employment offices shall arrange for the training
or retraining of unemployed applicants in occupations or trades where they are suitably qualified and have greater
prospect of employment.cralaw

SECTION 7. Geographical movement of workers. The public employment office shall arrange for the inter-area
placement of unemployed workers through a nationwide job-clearance and information system. The transfer of workers
shall be arranged by the public employment office where the applicant is registered and the office where the vacancy
exists.cralaw

SECTION 8. Job-clearance and information system. The public employment office shall furnish lists of registered job
applicants and job openings to the Bureau which shall act as the national job-clearing house.cralaw

SECTION 9. Submission of reports. At the end of each month, every employer with at least six (6) employees shall
submit to the nearest public employment office the following:

(a) List of existing job vacancies or openings;

(b) List of new employees, if any;

(c) Terminations, lay-offs or retirements;

(d) Total number of employed workers for the period; and

(e) Request for assistance, if needed, to fill vacancies or openings.

PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. DOMINGO PANIS

Issue: Abug filed a motion to quash on the ground that the informations did not charge an offense because he was
accused of illegally recruiting only one person in each of the four informations. Under the proviso in Article 13(b), he
claimed, there would be illegal recruitment only "whenever two or more persons are in any manner promised or
offered any employment for a fee. "

"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.

The view of the private respondents is that to constitute recruitment and placement, all the acts mentioned in this
article should involve dealings with two or mre persons as an indispensable requirement. On the other hand, the
petitioner argues that the requirement of two or more persons is imposed only where the recruitment and placement
consists of an offer or promise of employment to such persons and always in consideration of a fee. The other acts
mentioned in the body of the article may involve even only one person and are not necessarily for profit.

Held: As we see it, the proviso was intended neither to impose a condition on the basic rule nor to provide an
exception thereto but merely to create a presumption. The presumption is that the individual or entity is engaged in
recruitment and placement whenever he or it is dealing with two or more persons to whom, in consideration of a fee,
an offer or promise of employment is made in the course of the "canvassing, enlisting, contracting, transporting,
utilizing, hiring or procuring (of) workers. "

The number of persons dealt with is not an essential ingredient of the act of recruitment and placement of workers.
Any of the acts mentioned in the basic rule in Article 13(b) win constitute recruitment and placement even if only one
prospective worker is involved. The proviso merely lays down a rule of evidence that where a fee is collected in
consideration of a promise or offer of employment to two or more prospective workers, the individual or entity
dealing with them shall be deemed to be engaged in the act of recruitment and placement. The words "shall be
deemed" create that presumption.

the word "shall be deemed" should by the same token be given the force of a disputable presumption or of prima
facie evidence of engaging in recruitment and placement.
 At any rate, the interpretation here adopted should give more force to the campaign against
illegal recruitment and placement, which has victimized many Filipino workers seeking a better life in a
foreign land, and investing hard- earned savings or even borrowed funds in pursuit of their dream, only to be
awakened to the reality of a cynical deception at the hands of theirown countrymen.

HELLENIC PHILIPPINE SHIPPING, INC. vs. EPIFANIO C. SIETE and NATIONAL LABOR RELATIONS
COMMISSION (NLRC)

Siete was employed on as Master of M/V Houda G by Sultan Shipping Co., Ltd., through its crewing agent, herein
petitioner.

The petitioner alleged in its answer that the complainant had been dismissed because of his failure to complete with
the instruction of Sultan Shipping to erase the timber load line on the vessel and for his negligence in the discharge
of the cargo at Tripoli that endangered the vessel and stevedores. Siete denied these averments in his reply dated
September 23, 1985, and reiterated that he had not earlier been informed of the cause of his dismissal and
repatriation, either in Cyprus or later in Manila.

ISSUE: Private respondent was illegally dismissed because, first, he was not accorded a fair investigation as required
by law, and second, because the grounds invoked for his separation have not been proved by the petitioner.

2. The petitioner argues that whatever defects might have tainted the private respondent's dismissal were
subsequently cured when the charges against him were specified and sufficiently discussed in the position papers
submitted by the parties to the POEA.

3. The Court reiterates the ruling that private employment agencies are jointly and severally liable with the
foreign-based employer for any violation of the recruitment agreement or the contract of employment.

Held: the private respondent was indeed not notified of the charges against him and that no investigation was
conducted to justify his dismissal. Moreover, the petitioner has failed to prove that Siete had been instructed to erase
the timber load lines and that he had been negligent in the cargo unloading at Tripoli.

The Court notes that the reports submitted by the petitioner to prove its charges were all prepared after the fact of
Siete's dismissal and were signed by its own employees.

The Labor Code provides as follows:

Sec. 1. Security of tenure and due process. No worker shall be dismissed except for a just or
authorized cause provided by law and after due process.

Sec. 2. Notice of dismissal. Any employer who seeks to dismiss a worker shall furnish him a
written notice stating the particular acts or omission constituting the grounds for his dismissal. In
cases of abandonment of work, the notice shall be served at the worker's last known address.

2. The issue before the POEA was in fact the lack of due process in Siete's dismissal. The law requires that the
investigation be conducted before the dismissal, not after. That omission cannot be corrected by the investigation
later conducted by the POEA. As the Solicitor General correctly maintained, the due process requirement in the
dismissal process is different from the due process requirement in the POEA proceeding. Both requirements must be
separately observed.

the case at bar because our findings here is that the dismissal was not justified.

3. The reason for the above-mentioned requirement is obvious. Were the rule otherwise, employees with legitimate
demands against the employer would be helpless to enforce them because the latter has no office or properties in
this jurisdiction. Violation of the employment contract would remain unredressed. It was precisely to correct this
difficulty that the recruiting agent is now required, as a condition for the issuance to it of a license to operate, to
assure the employee that he has remedies available in this country even if the culpable employer is beyond the reach
of our courts.

PEOPLE OF THE PHILIPPINESvs. LOMA GOCE y OLALIA, DAN GOCE and NELLY D. AGUSTIN, accused.
NELLY D. AGUSTIN
Chief of the Licensing and Regulation Office of the Philippine Overseas Employment Administration, on November 10,
1987. Said certification states that Dan and Loma Goce and Nelly Agustin are neither licensed nor authorized to
recruit workers for overseas.

Appellant does not dispute this. As a matter of fact her counsel agreed to stipulate that she was neither licensed nor
authorized to recruit applicants for overseas employment. Appellant, however, denies that she was in any way guilty
of illegal recruitment.

It is appellant's defensive theory that all she did was to introduce complainants to the Goce spouses. Being a
neighbor of said couple, and owing to the fact that her son's overseas job application was processed and facilitated
by them, the complainants asked her to introduce them to said spouses. Allegedly out of the goodness of her heart,
she complied with their request. Such an act, appellant argues, does not fall within the meaning of "referral" under
the Labor Code to make her liable for illegal recruitment.

Issue: appellant Agustin raises the following arguments: (1) her act of introducing complainants to the Goce couple
does not fall within the meaning of illegal recruitment and placement under Article 13(b) in relation to Article 34 of
the Labor Code; (2) there is no proof of conspiracy to commit illegal recruitment among appellant and the Goce
spouses; and (3) there is no proof that appellant offered or promised overseas employment to the complainants.

2. , appellant argues that there is no proof of conspiracy between her and the Goce couple as to make her liable for
illegal recruitment.

Held: referral is the act of passing along or forwarding of an applicant for employment after an initial interview of a
selected applicant for employment to a selected employer, placement officer or bureau.

Rogelio Salado and Dionisio Masaya testified that appellant represented herself as the manager of the Clover
Placement Agency. Ramona Salado was offered a job as a cutter/sewer by Agustin the first time they met, while
Ernesto Alvarez remembered that when he first met Agustin, the latter represented herself as "nagpapaalis papunta
sa Oman." Indeed, Agustin played a pivotal role in the operations of the recruitment agency, working together with
the Goce couple.

There is illegal recruitment when one gives the impression of having the ability to send a worker
abroad." It is undisputed that appellant gave complainants the distinct impression that she had the
power or ability to send people abroad for work such that the latter were convinced to give her the
money she demanded in order to be so employed.

It cannot be denied that Agustin received from complainants various sums for purpose of their applications. Her act
of collecting from each of the complainants payment for their respective passports, training fees, placement fees,
medical tests and other sundry expenses unquestionably constitutes an act of recruitment within the meaning of the
law.

2. The evidence presented by the prosecution clearly establish that appellant confabulated with the Goces in their plan to deceive
the complainants. Although said accused couple have not been tried and convicted, nonetheless there is sufficient basis for
appellant's conviction as discussed above.

In People vs. Sendon, 40 we held that the non-prosecution of another suspect therein provided no ground for the appellant
concerned to fault the decision of the trial court convicting her. The prosecution of other persons, equally or more culpable than
herein appellant, may come later after their true identities and addresses shall have been ascertained and said malefactors duly
taken into custody. We see no reason why the same doctrinal rule and course of procedure should not apply in this case.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RESTITUTO PABALAN y CALILONG

Firstly, appellant posits that he cannot be convicted of illegal recruitment because of the absence of receipts
indicating that complainants did pay him fees in consideration of his services

Although not all of the amounts testified to by complainants were covered by receipts, the fact that there were no
receipts for some of the amounts delivered to him does not mean that appellant did not accept or receive such
payments. This Court has ruled in several cases that the absence of receipts in a criminal case for illegal recruitment
does not warrant the acquittal of the accused and is not fatal to the case of the prosecution.[18] As long as the
witnesses had positively shown through their respective testimonies that the accused is the one involved in the
prohibited recruitment, he may be convicted of the offense despite the want of receipts.

The finding of illegal recruitment in large scale is justified whenever the following elements are present:
 (1) that the offender engages in the recruitment and placement of workers as defined in Article 13(b) of the
Labor Code or in any prohibited activities under Article 34 of the same code;

(2) that the offender does not have a license or authority to recruit and deploy workers, either locally or
overseas; and (3) that the offender commits the same against three

(3) or more persons, individually or as a group.[19] Article 13(b) characterizes recruitment and placement
as 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.

It will readily be noted, as earlier explained, that the exhibition of receipts is not necessary for the successful
prosecution of the offense of illegal recruitment in large scale. Since all of the above elements were satisfactorily
proven by the prosecution before the court a quo through the testimonies of its witnesses and by competent
documents, then the non-presentation of receipts should not in any way hinder the conviction of appellant.

Secondly, appellant faults the lower court for giving credence to the testimony of complainant Garcia. He claims that
aside from the testimony of Garcia, there is no other evidence presented by the prosecution to show that there was a
recruitment agreement between them and that money was received by appellant. His alleged companion in Saipan,
Aquilino Espino, was not even presented to corroborate his story

It has been held that the non-presentation of certain witnesses by the prosecution is not a plausible defense and the
matter of whom to present as witnesses for the prosecution lies in the sound discretion of the prosecutor handling
the case.

The alleged inconsistencies are too insignificant to adversely affect the testimony of witness Garcia. Given the natural
frailties of the human mind and its incapacity to assimilate all material details of a given incident, slight
inconsistencies and variances in the declarations of a witness hardly weaken their probative value.
TRANS ACTION OVERSEAS CORPORATION, petitioner, vs.
THE HONORABLE SECRETARY OF LABOR, ROSELLE
CASTIGADOR, JOSEFINA MAMON, JENELYN CASA, PEACHY
LANIOG, VERDELINA BELGIRA, ELMA FLORES, RAMONA
LITURCO, GRACE SABANDO, GLORIA PALMA, AVELYN
ALVAREZ, CANDELARIA NONO,NITA BUSTAMANTE,
CYNTHIA ARANDILLO, SANDIE AGUILAR, DIGNA
PANAGUITON, VERONICA BAYOGOS, JULIANITA
ARANADOR, LEONORA CABALLERO, NANCY BOLIVAR,
NIMFA BUCOL, ZITA GALINDO, ESTELITA BIOCOS,
MARJORIE MACATE, RUBY SEPULVIDA, ROSALIE SONDIA,
NORA MAQUILING, PAULINA CORDERO, LENIROSE
ABANGAN, SELFA PALMA, ANTONIA NAVARRO, ELSIE
PENARUBIA, IRMA SOBREQUIL, SONY JAMUAT, CLETA
MAYO, respondents.
DECISION
ROMERO, J.:
The issue presented in the case at bar is whether or not the
Secretary of Labor and Employment has jurisdiction to
cancel or revoke the license of a private fee-charging
employment agency.
From July 24 to September 9, 1987, petitioner Trans Action
Overseas Corporation, a private fee-charging employment
agency, scoured Iloilo City for possible recruits for alleged
job vacancies in Hongkong. Private respondents sought
employment as domestic helpers through petitioners
employees, Luzviminda Aragon, Ben Hur Domincil and his
wife Cecille. The applicants paid placement fees ranging
from P1,000.00 to P14,000.00, but petitioner failed to
deploy them. Their demands for refund proved unavailing;
thus, they were constrained to institute complaints against
petitioner for violation of Articles 32 and 34(a)[1] of the
Labor Code, as amended.
Petitioner denied having received the amounts allegedly
collected from respondents, and averred that Aragon,
whose only duty was to pre-screen and interview
applicants, and the spouses Domincil were not authorized
to collect fees from the applicants. Accordingly, it cannot be
held liable for the money claimed by respondents.
Petitioner maintains that it even warned respondents not to
give any money to unauthorized individuals.
POEA Regional Extension Unit Coordinator Edgar Somes
testified that although he was aware that petitioner
collected fees from respondents, the latter insisted that they
be allowed to make the payments on the assumption that it
could hasten their deployment abroad. He added that Mrs.
Honorata Manliclic, a representative of petitioner tasked to
oversee the conduct of the interviews, told him that she was
leaving behind presigned receipts to Aragon as she cannot
stay in Iloilo City for the screening of the applicants.
Manliclic, however, denied this version and argued that it
was Somes who instructed her to leave the receipts behind
as it was perfectly alright to collect fees.
On April 5, 1991, then Labor Undersecretary Nieves R.
Confesor rendered the assailed order, the dispositive
portion of which reads:
WHEREFORE, respondents are hereby ordered to pay,
jointly and severally, the following claims:
1. Rosele Castigador P14,000.00
2. Josefina Mamon 3,000.00
3. Jenelyn Casa 3,000.00 The following complaints are hereby dismissed for failure
to appear/prosecute:
4. Peachy Laniog 13,500.00
1. Jiyasmin Bantillo 6. Edna Salvante
5. Verdelina Belgira 2,000.00
2. Rosa de Luna Senail 7. Thelma Beltiar
6. Elma Flores 2,500.00
3. Elnor Bandojo 8. Cynthia Cepe
7. Ramona Liturco 2,500.00
4. Teresa Caldeo 9. Rosie Pavillon
8. Grace Sabando 3,500.00
5. Virginia Castroverde
9. Gloria Palma 1,500.00
The complaints filed by the following are hereby dismissed
10. Avelyn Alvarez 1,500.00 for lack of evidence:
11. Candelaria Nono 1,000.00 1. Aleth Palomaria 5. Mary Ann Beboso
12. Nita Bustamante 5,000.00 2. Emely Padrones 6. Josefina Tejero

13. Cynthia Arandillo 1,000.00 3. Marybeth Aparri 7. Bernadita Aprong

14. Sandie Aguilar 3,000.00 4. Lenia Biona 8. Joji Lull

15. Digna Panaguiton 2,500.00 Respondent agency is liable for twenty eight (28) counts of
violation of Article 32 and five (5) counts of Article 34 (a)
16. Veronica Bayogos 2,000.00 with a corresponding suspension in the aggregate period of
sixty six (66) months. Considering however, that under the
17. Sony Jamuat 4,500.00
schedule of penalties, any suspension amounting to a period
18. Irma Sobrequil 2,000.00 of 12 months merits the imposition of the penalty of
cancellation, the license of respondent TRANS ACTION
19. Elsie Penarubia 2,000.00 OVERSEAS CORPORATION to participate in the overseas
placement and recruitment of workers is hereby ordered
20. Antonia Navarro 2,000.00 CANCELLED, effective immediately.

21. Selfa Palma 3,000.00 SO ORDERED.[2] (Underscoring supplied)

22. Lenirose Abangan 13,300.00 On April 29, 1991, petitioner filed its Motion for Temporary
Lifting of Order of Cancellation alleging, among other things,
23. Paulina Cordero 1,400.00 that to deny it the authority to engage in placement and
recruitment activities would jeopardize not only its
24. Nora Maquiling 2,000.00 contractual relations with its foreign principals, but also the
welfare, interests, and livelihood of recruited workers
25. Rosalie Sondia 2,000.00 scheduled to leave for their respective assignments. Finally,
it manifested its willingness to post a bond to insure
26. Ruby Sepulvida 3,500.00
payment of the claims to be awarded, should its appeal or
27. Marjorie Macate 1,500.00 motion be denied.

28. Estelita Biocos 3,000.00 Finding the motion to be well taken, Undersecretary
Confesor provisionally lifted the cancellation of petitioners
29. Zita Galindo 3,500.00 license pending resolution of its Motion for Reconsideration
filed on May 6, 1991. On January 30, 1992, however,
30. Nimfa Bucol 1,000.00 petitioners motion for reconsideration was eventually
denied for lack of merit, and the April 5, 1991, order
31. Nancy Bolivar 2,000.00 revoking its license was reinstated.

32. Leonora Caballero 13,900.00
33. Julianita Aranador 14,000.00
The complaints of Ma. Luz Alingasa, Nimfa Perez, and Cleta
Mayo are hereby dismissed in view of their desistance.
Petitioner contends that Secretary Confesor acted with
grave abuse of discretion in rendering the assailed orders
on alternative grounds, viz.: (1) it is the Philippine Overseas
Employment Administration (POEA) which has the
exclusive and original jurisdiction to hear and decide illegal
recruitment cases, including the authority to cancel
recruitment licenses, or (2) the cancellation order based on
the 1987 POEA Schedule of Penalties is not valid for non-
compliance with the Revised Administrative Code of 1987
regarding its registration with the U.P. Law Center.
Under Executive Order No. 797[3] (E.O. No. 797) and
Executive Order No. 247 (E.O. No. 247),[4] the POEA was
established and mandated to assume the functions of the
Overseas Employment Development Board (OEDB), the
National Seamen Board (NSB), and the overseas
employment function of the Bureau of Employment
Services (BES). Petitioner theorizes that when POEA
absorbed the powers of these agencies, Article 35 of the
Labor Code, as amended, was rendered ineffective.
The power to suspend or cancel any license or authority to
recruit employees for overseas employment is vested upon
the Secretary of Labor and Employment. Article 35 of the
Labor Code, as amended, which provides:
ART. 35. Suspension and/or Cancellation of License or
Authority. - The Minister of Labor shall have the power to
suspend or cancel any license or authority to recruit
employees for overseas employment for violation of rules
and regulations issued by the Ministry of Labor, the
Overseas Employment Development Board, and the
National Seamen Board, or for violation of the provisions of
this and other applicable laws, General Orders and Letters
of Instructions.
In the case of Eastern Assurance and Surety Corp. v.
Secretary of Labor,[5] we held that:
The penalties of suspension and cancellation of license or
authority are prescribed for violations of the above quoted
provisions, among others. And the Secretary of Labor has
the power under Section 35 of the law to apply these
sanctions, as well as the authority, conferred by Section 36,
not only to restrict and regulate the recruitment and
placement activities of all agencies, but also to promulgate
rules and regulations to carry out the objectives and
implement the provisions governing said activities.
Pursuant to this rule-making power thus granted, the
Secretary of Labor gave the POEA,[6] on its own initiative or
upon filing of a complaint or report or upon request for
investigation by any aggrieved person, x x (authority to)
conduct the necessary proceedings for the suspension or
cancellation of the license or authority of any agency or
entity for certain enumerated offenses including -
1) the imposition or acceptance, directly or indirectly, of
any amount of money, goods or services, or any fee or bond
in excess of what is prescribed by the Administration, and
2) any other violation of pertinent provisions of the Labor
Code and other relevant laws, rules and regulations.[7]
The Administrator was also given the power to order the
dismissal of the case or the suspension of the license or
authority of the respondent agency or contractor or
recommend to the Minister the cancellation thereof.[8]
(Underscoring supplied)
This power conferred upon the Secretary of Labor and
Employment was echoed in People v. Diaz,[9] viz.:
A non-licensee or non-holder of authority means 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. (Underscoring supplied)
In view of the Courts disposition on the matter, we rule that
the power to suspend or cancel any license or authority to
recruit employees for overseas employment is concurrently
vested with the POEA and the Secretary of Labor.
As regards petitioners alternative argument that the non-
filing of the 1987 POEA Schedule of Penalties with the UP
Law Center rendered it ineffective and, hence, cannot be
utilized as basis for penalizing them, we agree with
Secretary Confesors explanation, to wit:
On the other hand, the POEA Revised Rules on the Schedule
of Penalties was issued pursuant to Article 34 of the Labor
Code, as amended. The same merely amplified and
particularized the various violations of the rules and
regulations of the POEA and clarified and specified the
penalties therefore (sic). Indeed, the questioned schedule of
penalties contains only a listing of offenses. It does not
prescribe additional rules and regulations governing
overseas employment but only detailed the administrative
sanctions imposable by this Office for some enumerated
prohibited acts.
Under the circumstances, the license of the respondent
agency was cancelled on the authority of Article 35 of the
Labor Code, as amended, and not pursuant to the 1987
POEA Revised Rules on Schedule of Penalties.[10]
WHEREFORE, in view of the foregoing, the instant petition
is hereby DISMISSED. Accordingly, the decision of the
Secretary of Labor dated April 5, 1991, is AFFIRMED. No
costs.
SO ORDERED.
IMELDA DARVIN, petitioner, vs. HON. COURT OF APPEALS
and PEOPLE OF THE PHILIPPINES,respondents.
DECISION
ROMERO, J.:
Before us is a petition for review of the decision of the Court
of Appeals in C.A.-G.R. CR. No. 15624 dated January 31,
1996,[1] which affirmed in toto the judgment of the
Regional Trial Court, Branch 19, Bacoor, Cavite, convicting
accused-appellant, Imelda Darvin for simple illegal
recruitment under Article 38 and Article 39, in relation to
Article 13 (b) and (c), of the Labor Code, as amended.
Accused-appellant was charged under the following
information:
That on or about the 13th day of April 1992, in the
Municipality of Bacoor, Province of Cavite, Philippines and
within the jurisdiction of this Honorable Court, the above-
named accused, through fraudulent representation to one
Macaria Toledo to the effect that she has the authority to
recruit workers and employees for abroad and can facilitate
the necessary papers in connection thereof, did, then and
there, wilfully, unlawfully and feloniously, hire, recruit and
promise a job abroad to one Macaria Toledo, without first
securing the necessary license and permit from the
Philippine Overseas Employment Administration to do so,
thereby causing damage and prejudice to the aforesaid
Macaria Toledo.
Contrary to law.[2]
The evidence for the prosecution, based on the testimony of
private respondent, Macaria Toledo, shows that sometime
in March, 1992, she met accused-appellant Darvin in the
latters residence at Dimasalang, Imus, Cavite, through the
introduction of their common friends, Florencio Jake Rivera
and Leonila Rivera. In said meeting, accused-appellant
allegedly convinced Toledo that by giving her P150,000.00,
the latter can immediately leave for the United States
without any appearance before the U.S. embassy.[3] Thus,
on April 13, 1992, Toledo gave Darvin the amount of
P150,000.00, as evidenced by a receipt stating that the
amount of P150,000.00 was for U.S. Visa and Air fare.[4]
After receiving the money, Darvin assured Toledo that she
can leave within one week. However, when after a week,
there was no word from Darvin, Toledo went to her
residence to inquire about any development, but could not
find Darvin. Thereafter, on May 7, 1992, Toledo filed a
complaint with the Bacoor Police Station against Imelda
Darvin. Upon further investigation, a certification was
issued by the Philippine Overseas Employment
Administration (POEA) stating that Imelda Darvin is neither
licensed nor authorized to recruit workers for overseas
employment.[5] Accused-appellant was then charged for
estafa and illegal recruitment by the Office of the Provincial
Prosecutor of Cavite.
Accused-appellant, on the other hand, testified that she
used to be connected with Dale Travel Agency and that in
1992, or thereabouts, she was assisting individuals in
securing passports, visa, and airline tickets. She came to
know Toledo through Florencio Jake Rivera, Jr. and Leonila
Rivera, alleging that Toledo sought her help to secure a
passport, US visa and airline tickets to the States. She claims
that she did not promise any employment in the U.S. to
Toledo. She, however, admits receiving the amount of
P150,000.00 from the latter on April 13, 1992 but contends
that it was used for necessary expenses of an intended trip
to the United States of Toledo and her friend, Florencio
Rivera[6] as follows:P45,000.00 for plane fare for one
person; P1,500.00 for passport, documentation and other
incidental expenses for each person; P20,000.00 for visa
application cost for each person; and P17,000.00 for
services.[7] After receiving the money, she allegedly told
Toledo that the papers will be released within 45 days. She
likewise testified that she was able to secure Toledos
passport on April 20, 1992 and even set up a date for an
interview with the US embassy. Accused alleged that she
was not engaged in illegal recruitment but merely acted as a
travel agent in assisting individuals to secure passports and
visa.
In its judgment rendered on June 17, 1993, the Bacoor,
Cavite RTC found accused-appellant guilty of the crime of
simple illegal recruitment but acquitted her of the crime of
estafa. The dispositive portion of the judgment reads as
follows:
WHEREFORE, premises considered, accused Imelda Darvin
is hereby found guilty beyond reasonable doubt of the
crime of Simple Illegal Recruitment for having committed
the prohibited practice as defined by paragraph (b) of
Article 34 and punished by paragraph (c) of Article 39 of
the Labor Code, as amended by PD 2018.
Accused Imelda Darvin is hereby ordered to suffer the
prison term of Four (4) years, as minimum, to Eight (8)
years, as maximum; and to pay the fine of P25,000.00.
Regarding her civil liability, she is hereby ordered to
reimburse the private complainant the sum of P150,000.00
and attorneys fees of P10,000.00.
She is hereby acquitted of the crime of Estafa.
SO ORDERED.[8]
On appeal, the Court of Appeals affirmed the decision of the
trial court in toto, hence this petition.
Before this Court, accused-appellant assails the decision of
the trial and appellate courts in convicting her of the crime
of simple illegal recruitment. She contends that based on
the evidence presented by the prosecution, her guilt was
not proven beyond reasonable doubt.
We find the appeal impressed with merit.
Article 13 of the Labor Code, as amended, provides the
definition of recruitment and placement as:
x x x; b) 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, Article 38 of the Labor Code provides:
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 Ministry of Labor and Employment or any
law enforcement officer may initiate complaints under this
Article.
x x x x x x x x x.
Applied to the present case, to uphold the conviction of
accused-appellant, two elements need to be shown: (1) the
person charged with the crime must have undertaken
recruitment activities; and (2) the said person does not
have a license or authority to do so.[9]
In this case, private respondent, Macaria Toledo alleged that
she was offered a job in the United States as nursing
aide[10] by accused-appellant. In her direct examination,
she testified as follows:
Atty Alejandro:
Q : How did you come to know the accused?
Witness : I was introduced by my two friends. One of whom
is my best friend. That according to them, this accused has
connections and authorizations, that she can make people
leave for abroad, sir.
Court : What connections?
Witness : That she has connections with the Embassy and
with people whom she can approach regarding work
abroad, your Honor.
xxxxxxxxx
Q : When you came to meet for the first time in Imus, Cavite,
what transpired in that meeting of yours?
A : When I came to her house, the accused convinced me
that by means of P150,000.00, I will be able to leave
immediately without any appearance to any embassy, non-
appearance, Sir.
Q : When you mentioned non-appearance, as told to you by
the accused, precisely, what do you mean by that?
A : I was told by the accused that non-appearance, means
without working personally for my papers and through her
efforts considering that she is capacitated as according to
her I will be able to leave the country, Sir.
xxxxxxxxx
Atty. Alejandro : What transpired after the accused told you
all these things that you will be able to secure all the
documents without appearing to anybody or to any
embassy and that you will be able to work abroad?
Witness : She told me to get ready with my P150,000.00,
that is if I want to leave immediately, Sir.
Atty. Alejandro : When you mentioned kaagad, how many
days or week?
Witness : She said that if I will able to part with my
P150,000.00. I will be able to leave in just one week time,
Sir.
x x x x x x x x x.[11]
The prosecution, as evidence, presented the certification
issued by the POEA that accused-appellant Imelda Darvin is
not licensed to recruit workers abroad.
It is not disputed that accused-appellant does not have a
license or authority to engage in recruitment activities. The
pivotal issue to be determined, therefore, is whether the
accused-appellant indeed engaged in recruitment activities,
as defined under the Labor Code. Applying the rule laid
down in the case of People v. Goce,[12] to prove that
accused-appellant was engaged in recruitment activities as
to commit the crime of illegal recruitment, it must be shown
that the accused appellant gave private respondent the
distinct impression that she had the power or ability to
send the private respondent abroad for work such that the
latter was convinced to part with her money in order to be
so employed.
In this case, we find no sufficient evidence to prove that
accused-appellant offered a job to private respondent. It is
not clear that accused gave the impression that she was
capable of providing the private respondent work abroad.
What is established, however, is that the private respondent
gave accused-appellant P150,000.00. The claim of the
accused that the P150,000.00 was for payment of private
respondents air fare and US visa and other expenses cannot
be ignored because the receipt for the P150,000.00, which
was presented by both parties during the trial of the case,
stated that it was for Air Fare and Visa to USA.[13] Had the
amount been for something else in addition to air fare and
visa expenses, such as work placement abroad, the receipt
should have so stated.
By themselves, procuring a passport, airline tickets and
foreign visa for another individual, without more, can
hardly qualify as recruitment activities. Aside from the
testimony of private respondent, there is nothing to show
that accused-appellant engaged in recruitment activities.
We also note that the prosecution did not present the
testimonies of witnesses who could have corroborated the
charge of illegal recruitment, such asFlorencio Rivera, and
Leonila Rivera, when it had the opportunity to do so. As it
stands, the claim of private respondent that accused-
appellant promised her employment abroad is
uncorroborated. All these, taken collectively, cast
reasonable doubt on the guilt of the accused.
This Court can hardly rely on the bare allegations of private
respondent that she was offered by accused-appellant
employment abroad, nor on mere presumptions and
conjectures, to convict the latter. No sufficient evidence was
shown to sustain the conviction, as the burden of proof lies
with the prosecution to establish that accused-appellant
indeed engaged in recruitment activities, thus committing
the crime of illegal recruitment.
In criminal cases, the burden is on the prosecution to prove,
beyond reasonable doubt, the essential elements of the
offense with which the accused is charged; and if the proof
fails to establish any of the essential elements necessary to
constitute a crime, the defendant is entitled to an acquittal.
Proof beyond reasonable doubt does not mean such a
degree of proof as, excluding the possibility of error,
produces absolute certainty. Moral certainty only is
required, or that degree of proof which produces conviction
in an unprejudiced mind.[14]
At best, the evidence proffered by the prosecution only goes
so far as to create a suspicion that accused-appellant
probably perpetrated the crime charged. But suspicion
alone is insufficient, the required quantum of evidence
being proof beyond reasonable doubt. When the Peoples
evidence fail to indubitably prove the accuseds authorship
of the crime of which he stands accused, then it is the Courts
duty, and the accuseds right, to proclaim his innocence.
Acquittal, therefore, is in order.[15]
WHEREFORE, the appeal is hereby GRANTED and the
decision of the Court of Appeals in CA-G.R. CR No. 15624
dated January 31, 1996, is REVERSED and SET ASIDE.
Accused-appellant Imelda Darvin is hereby ACQUITTED on
ground of reasonable doubt. Accordingly, let the accused be
immediately released from her place of confinement unless
there is reason to detain her further for any other legal or
valid cause.No pronouncement as to costs.
SO ORDERED.
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. BULU
CHOWDURY, accused-appellant.
DECISION
PUNO, J.:
In November 1995, Bulu Chowdury and Josephine Ong were
charged before the Regional Trial Court of Manila with the
crime of illegal recruitment in large scale committed as
follows:
"That sometime between the period from August 1994 to
October 1994 in the City of Manila, Philippines and within
the jurisdiction of this Honorable Court, the above-named
accused, representing themselves to have the capacity to
contract, enlist and transport workers for employment
abroad, conspiring, confederating and mutually helping one
another, did then and there willfully, unlawfully and
feloniously recruit the herein complainants: Estrella B.
Calleja, Melvin C. Miranda and Aser S. Sasis, individually or
as a group for employment in Korea without first obtaining
the required license and/or authority from the Philippine
Overseas Employment Administration."[1]
They were likewise charged with three counts of estafa
committed against private complainants.[2] The State
Prosecutor, however, later dismissed the estafa charges
against Chowdury[3] and filed an amended information
indicting only Ong for the offense.[4]
Chowdury was arraigned on April 16, 1996 while Ong
remained at large. He pleaded "not guilty" to the charge of
illegal recruitment in large scale.[5]
Trial ensued.
The prosecution presented four witnesses: private
complainants Aser Sasis, Estrella Calleja and Melvin
Miranda, and Labor Employment Officer Abbelyn Caguitla.
Sasis testified that he first met Chowdury in August 1994
when he applied with Craftrade Overseas Developers
(Craftrade) for employment as factory worker in South
Korea. Chowdury, a consultant of Craftrade, conducted the
interview. During the interview, Chowdury informed him
about the requirements for employment. He told him to
submit his passport, NBI clearance, passport size picture
and medical certificate. He also required him to undergo a
seminar. He advised him that placement would be on a first-
come-first-serve basis and urged him to complete the
requirements immediately. Sasis was also charged a
processing fee of P25,000.00. Sasis completed all the
requirements in September 1994. He also paid a total
amount of P16,000.00 to Craftrade as processing fee. All
payments were received by Ong for which she issued three
receipts.[6] Chowdury then processed his papers and
convinced him to complete his payment.[7]
Sasis further said that he went to the office of Craftrade
three times to follow up his application but he was always
told to return some other day. In one of his visits to
Craftrades office, he was informed that he would no longer
be deployed for employment abroad. This prompted him to
withdraw his payment but he could no longer find
Chowdury. After two unsuccessful attempts to contact him,
he decided to file with the Philippine Overseas Employment
Administration (POEA) a case for illegal recruitment against
Chowdury. Upon verification with the POEA, he learned that
Craftrade's license had already expired and has not been
renewed and that Chowdury, in his personal capacity, was
not a licensed recruiter.[8]
Calleja testified that in June 1994, she applied with
Craftrade for employment as factory worker in South Korea.
She was interviewed by Chowdury. During the interview, he
asked questions regarding her marital status, her age and
her province. Toward the end of the interview, Chowdury
told her that she would be working in a factory in Korea. He
required her to submit her passport, NBI clearance, ID
pictures, medical certificate and birth certificate. He also
obliged her to attend a seminar on overseas employment.
After she submitted all the documentary requirements,
Chowdury required her to pay P20,000.00 as placement fee.
Calleja made the payment on August 11, 1994 to Ong for
which she was issued a receipt.[9] Chowdury assured her
that she would be able to leave on the first week of
September but it proved to be an empty promise. Calleja
was not able to leave despite several follow-ups. Thus, she
went to the POEA where she discovered that Craftrade's
license had already expired. She tried to withdraw her
money from Craftrade to no avail. Calleja filed a complaint
for illegal recruitment against Chowdury upon advice of
POEA's legal counsel.[10]
Miranda testified that in September 1994, his cousin
accompanied him to the office of Craftrade in Ermita, Manila
and introduced him to Chowdury who presented himself as
consultant and interviewer. Chowdury required him to fill
out a bio-data sheet before conducting the interview.
Chowdury told Miranda during the interview that he would
send him to Korea for employment as factory worker. Then
he asked him to submit the following documents: passport,
passport size picture, NBI clearance and medical certificate.
After he complied with the requirements, he was advised to
wait for his visa and to pay P25,000.00 as processing fee. He
paid the amount of P25,000.00 to Ong who issued receipts
therefor.[11] Craftrade, however, failed to deploy him.
Hence, Miranda filed a complaint with the POEA against
Chowdury for illegal recruitment.[12]
Labor Employment Officer Abbelyn Caguitla of the
Licensing Branch of the POEA testified that she prepared a
certification on June 9, 1996 that Chowdury and his co-
accused, Ong, were not, in their personal capacities, licensed
recruiters nor were they connected with any licensed
agency. She nonetheless stated that Craftrade was
previously licensed to recruit workers for abroad which
expired on December 15, 1993. It applied for renewal of its
license but was only granted a temporary license effective
December 16, 1993 until September 11, 1994. From
September 11, 1994, the POEA granted Craftrade another
temporary authority to process the expiring visas of
overseas workers who have already been deployed. The
POEA suspended Craftrade's temporary license on
December 6, 1994.[13]
For his defense, Chowdury testified that he worked as
interviewer at Craftrade from 1990 until 1994. His primary
duty was to interview job applicants for abroad. As a mere
employee, he only followed the instructions given by his
superiors, Mr. Emmanuel Geslani, the agencys President
and General Manager, and Mr. Utkal Chowdury, the agency's
Managing Director. Chowdury admitted that he interviewed
private complainants on different dates. Their office
secretary handed him their bio-data and thereafter he led
them to his room where he conducted the interviews.
During the interviews, he had with him a form containing
the qualifications for the job and he filled out this form
based on the applicant's responses to his questions. He then
submitted them to Mr. Utkal Chowdury who in turn
evaluated his findings. He never received money from the
applicants. He resigned from Craftrade on November 12,
1994.[14]
Another defense witness, Emelita Masangkay who worked
at the Accreditation Branch of the POEA presented a list of
the accredited principals of Craftrade Overseas
Developers[15] and a list of processed workers of Craftrade
Overseas Developers from 1988 to 1994.[16]
The trial court found Chowdury guilty beyond reasonable
doubt of the crime of illegal recruitment in large scale. It
sentenced him to life imprisonment and to pay a fine of
P100,000.00. It further ordered him to pay Aser Sasis the
amount of P16,000.00, Estrella Calleja, P20,000.00 and
Melvin Miranda, P25,000.00. The dispositive portion of the
decision reads:
"WHEREFORE, in view of the foregoing considerations, the
prosecution having proved the guilt of the accused Bulu
Chowdury beyond reasonable doubt of the crime of Illegal
Recruitment in large scale, he is hereby sentenced to suffer
the penalty of life imprisonment and a fine of P100,000.00
under Art. 39 (b) of the New Labor Code of the Philippines.
The accused is ordered to pay the complainants Aser Sasis
the amount of P16,000.00; Estrella Calleja the amount of
P20,000.00; Melvin Miranda the amount of
P25,000.00."[17]
Chowdury appealed.
The elements of illegal recruitment in large scale are:
(1) The accused undertook any recruitment activity defined
under Article 13 (b) or any prohibited practice enumerated
under Article 34 of the Labor Code;
(2) He did not have the license or authority to lawfully
engage in the recruitment and placement of workers; and
(3) He committed the same against three or more persons,
individually or as a group.[18]
The last paragraph of Section 6 of Republic Act (RA)
8042[19] states who shall be held liable for the offense,
thus:
"The persons criminally 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."
The Revised Penal Code which supplements the law on
illegal recruitment[20] defines who are the principals,
accomplices and accessories. The principals are: (1) those
who take a direct part in the execution of the act; (2) those
who directly force or induce others to commit it; and (3)
those who cooperate in the commission of the offense by
another act without which it would not have been
accomplished.[21] The accomplices are those persons who
may not be considered as principal as defined in Section 17
of the Revised Penal Code but cooperate in the execution of
the offense by previous or simultaneous act.[22] The
accessories are those who, having knowledge of the
commission of the crime, and without having participated
therein, either as principals or accomplices, take part
subsequent to its commission in any of the following
manner: (1) by profiting themselves or assisting the
offenders to profit by the effects of the crime; (2) by
concealing or destroying the body of the crime, or the
effects or instruments thereof, in order to prevent its
discovery; and (3) by harboring, concealing, or assisting in
the escape of the principal of the crime, provided the
accessory acts with abuse of his public functions or
whenever the author of the crime is guilty of treason,
parricide, murder, or an attempt at the life of the chief
executive, or is known to be habitually guilty of some other
crime.[23]
Citing the second sentence of the last paragraph of Section 6
of RA 8042, accused-appellant contends that he may not be
held liable for the offense as he was merely an employee of
Craftrade and he only performed the tasks assigned to him
by his superiors. He argues that the ones who should be
held liable for the offense are the officers having control,
management and direction of the agency.
As stated in the first sentence of Section 6 of RA 8042, the
persons who may be held liable for illegal recruitment are
the principals, accomplices and accessories. An employee of
a company or corporation engaged in illegal recruitment
may be held liable as principal, together with his
employer,[24] if it is shown that he actively and consciously
participated in illegal recruitment.[25] It has been held that
the existence of the corporate entity does not shield from
prosecution the corporate agent who knowingly and
intentionally causes the corporation to commit a crime. The
corporation obviously acts, and can act, only by and through
its human agents, and it is their conduct which the law must
deter. The employee or agent of a corporation engaged in
unlawful business naturally aids and abets in the carrying
on of such business and will be prosecuted as principal if,
with knowledge of the business, its purpose and effect, he
consciously contributes his efforts to its conduct and
promotion, however slight his contribution may be.[26] The
law of agency, as applied in civil cases, has no application in
criminal cases, and no man can escape punishment when he
participates in the commission of a crime upon the ground
that he simply acted as an agent of any party.[27] The
culpability of the employee therefore hinges on his
knowledge of the offense and his active participation in its
commission. Where it is shown that the employee was
merely acting under the direction of his superiors and was
unaware that his acts constituted a crime, he may not be
held criminally liable for an act done for and in behalf of his
employer.[28]
The fundamental issue in this case, therefore, is whether
accused-appellant knowingly and intentionally participated
in the commission of the crime charged.
We find that he did not.
Evidence shows that accused-appellant interviewed private
complainants in the months of June, August and September
in 1994 at Craftrade's office. At that time, he was employed
as interviewer of Craftrade which was then operating under
a temporary authority given by the POEA pending renewal
of its license.[29] The temporary license included the
authority to recruit workers.[30] He was convicted based
on the fact that he was not registered with the POEA as
employee of Craftrade. Neither was he, in his personal
capacity, licensed to recruit overseas workers. Section 10
Rule II Book II of the Rules and Regulation Governing
Overseas Employment (1991) requires that every change,
termination or appointment of officers, representatives and
personnel of licensed agencies be registered with the POEA.
Agents or representatives appointed by a licensed
recruitment agency whose appointments are not previously
approved by the POEA are considered "non-licensee " or
"non-holder of authority" and therefore not authorized to
engage in recruitment activity.[31]
Upon examination of the records, however, we find that the
prosecution failed to prove that accused-appellant was
aware of Craftrade's failure to register his name with the
POEA and that he actively engaged in recruitment despite
this knowledge. The obligation to register its personnel
with the POEA belongs to the officers of the agency.[32] A
mere employee of the agency cannot be expected to know
the legal requirements for its operation. The evidence at
hand shows that accused-appellant carried out his duties as
interviewer of Craftrade believing that the agency was duly
licensed by the POEA and he, in turn, was duly authorized
by his agency to deal with the applicants in its behalf.
Accused-appellant in fact confined his actions to his job
description. He merely interviewed the applicants and
informed them of the requirements for deployment but he
never received money from them. Their payments were
received by the agency's cashier, Josephine Ong.
Furthermore, he performed his tasks under the supervision
of its president and managing director. Hence, we hold that
the prosecution failed to prove beyond reasonable doubt
accused-appellant's conscious and active participation in
the commission of the crime of illegal recruitment. His
conviction, therefore, is without basis.
This is not to say that private complainants are left with no
remedy for the wrong committed against them. The
Department of Justice may still file a complaint against the
officers having control, management or direction of the
business of Craftrade Overseas Developers (Craftrade), so
long as the offense has not yet prescribed. Illegal
recruitment is a crime of economic sabotage which need to
be curbed by the strong arm of the law. It is important,
however, to stress that the government's action must be
directed to the real offenders, those who perpetrate the
crime and benefit from it.
IN VIEW WHEREOF, the assailed decision of the Regional
Trial Court is REVERSED and SET ASIDE. Accused-appellant
is hereby ACQUITTED. The Director of the Bureau of
Corrections is ordered to RELEASE accused-appellant
unless he is being held for some other cause, and to
REPORT to this Court compliance with this order within ten
(10) days from receipt of this decision. Let a copy of this
Decision be furnished the Secretary of the Department of
Justice for his information and appropriate action.
SO ORDERED.
G.R. No. 103144 April 4, 2001
PHILSA INTERNATIONAL PLACEMENT and SERVICES
CORPORATION, petitioner,
vs.
THE HON. SECRETARY OF LABOR AND EMPLOYMENT,
VIVENCIO DE MESA, RODRIGO MIKIN and CEDRIC LEYSON,
respondents.
GONZAGA-REYES, J.:
This is a petition for certiorari from the Order dated
November 25, 1991 issued by public respondent Secretary
of Labor and Employment. The November 25, 1991 Order
affirmed in toto the August 29, 1988 Order of the Philippine
Overseas Employment Administration (hereinafter the
"POEA") which found petitioner liable for three (3) counts
of illegal exaction, two (2) counts of contract substitution
and one count of withholding or unlawful deduction from
salaries of workers in POEA Case No. (L) 85-05-0370.
Petitioner Philsa International Placement and Services
Corporation (hereinafter referred to as "Philsa") is a
domestic corporation engaged in the recruitment of
workers for overseas employment. Sometime in January
1985, private respondents, who were recruited by
petitioner for employment in Saudi Arabia, were required
to pay placement fees in the amount of P5,000.00 for
private respondent Rodrigo L. Mikin and P6,500.00 each for
private respondents Vivencio A. de Mesa and Cedric P.
Leyson.1
After the execution of their respective work contracts,
private respondents left for Saudi Arabia on January 29,
1985. They then began work for Al-Hejailan Consultants
A/E, the foreign principal of petitioner.
While in Saudi Arabia, private respondents were allegedly
made to sign a second contract on February 4, 1985 which
changed some of the provisions of their original contract
resulting in the reduction of some of their benefits and
privileges.2 On April 1, 1985, their foreign employer
allegedly forced them to sign a third contract which
increased their work hours from 48 hours to 60 hours a
week without any corresponding increase in their basic
monthly salary. When they refused to sign this third
contract, the services of private respondents were
terminated by Al-Hejailan and they were repatriated to the
Philippines.3
Upon their arrival in the Philippines, private respondents
demanded from petitioner Philsa the return of their
placement fees and for the payment of their salaries for the
unexpired portion of their contract. When petitioner
refused, they filed a case before the POEA against petitioner
Philsa and its foreign principal, Al-Hejailan., with the
following causes of action:
1. Illegal dismissal;
2. Payment of salary differentials;
3. Illegal deduction/withholding of salaries;
4. Illegal exactions/refund of placement fees; and
5. Contract substitution. 4
The case was docketed as POEA Case No. (L) 85-05 0370.
Under the rules of the POEA dated May 21, 1985,
complaints involving employer-employee relations arising
out of or by virtue of any law or contract involving Filipino
workers for overseas employment, including money claims,
are adjudicated by the Workers' Assistance and
Adjudication Office (hereinafter the "WAAO") thru the
POEA Hearing Officers.5 On the other hand, complaints
involving recruitment violations warranting suspension or
cancellation of the license of recruiting agencies are
cognizable by the POEA thru its Licensing and Recruitment
Office (hereinafter the "LRO"). 6 In cases where a complaint
partakes of the nature of both an employer-employee
relationship case and a recruitment regulation case, the
POEA Hearing Officer shall act as representative of both the
WAAO and the LRO and both cases shall be heard
simultaneously. In such cases, the Hearing Officer shall
submit two separate recommendations for the two aspects
of the case. 7
In the case at bench, the first two causes of action were in
the nature of money claims arising from the employer-
employee relations and were properly cognizable by the
WAAO. The last two causes of action were in the nature of
recruitment violations and may be investigated by the LRO.
The third cause of action, illegal deduction/withholding of
salary, is both a money claim and a violation of recruitment
regulations and is thus under the investigatory jurisdiction
of both the WAAO and the LRO.
Several hearings were conducted before the POEA Hearing
Officer on the two aspects of private respondents'
complaint. During these hearings, private respondents
supported their complaint with the presentation of both
documentary and testimonial evidence. When it was its turn
to present its evidence, petitioner failed to do so and
consequently, private respondents filed a motion to decide
the case on the basis of the evidence on record. 8
On the aspects of the case involving money claims arising
from the employer-employee relations and illegal dismissal,
the POEA rendered a decision dated August 31, 1988 9 , the
dispositive portion of which reads:
"CONFORMABLY TO THE FOREGOING, judgment is hereby
rendered ordering respondent PHILSA INTERNATIONAL
PLACEMENT AND SERVICE CORPORATION to pay
complainants, jointly and severally with its principal Al-
Hejailan, the following amounts, to wit:
1. TWO THOUSAND TWO HUNDRED TWENTY FIVE SAUDI
RIYALS (SR2,225.00) to each complainant, representing the
refund of their unpaid separation pay;
2. ONE THOUSAND SAUDI RIYALS (SR1,000.00) for V.A. de
Mesa alone, representing the salary deduction from his
March salary;
3. TWO THOUSAND SAUDI RIYALS (SR2,000.00) each for
R.I. Mikin and C.A.P. Leyson only, representing their
differential pay for the months of February and March,
1985; and
4. Five percent (5%) of the total awards as and by way of
attorney's fees.
All payments of the abovestated awards shall be made in
Philippine Currency equivalent to the prevailing exchange
rate according to the Central Bank at the time of payment.
All other claims of complainants as well as the
counterclaims of respondent are dismissed for lack of merit.
SO ORDERED." 10
Under the Rules and Regulations of the POEA, the decision
of the POEA-Adjudication Office on matters involving
money claims arising from the employer-employee
relationship of overseas Filipino workers may be appealed
to the National Labor Relations Commission (hereinafter
the "NLRC)11 . Thus, as both felt aggrieved by the said
POEA Decision, petitioner and private respondents filed
separate appeals from the August 31, 1988 POEA Decision
to the NLRC.
In a decision dated July 26, 1989 12 , the NLRC modified the
appealed decision of the POEA Adjudication Office by
deleting the award of salary deductions and differentials.
These awards to private respondents were deleted by the
NLRC considering that these were not raised in the
complaint filed by private respondents. The NLRC likewise
stated that there was nothing in the text of the decision
which would justify the award.
Private respondents filed a Motion for Reconsideration but
the same was denied by the NLRC in a Resolution dated
October 25; 1989.
Private respondents then elevated the July 26, 1989
decision of the NLRC to the Supreme Court in a petition for
review for certiorari where it was docketed as G.R. No.
89089. However, in a Resolution dated October 25, 1989,
the petition was dismissed outright for "insufficiency in
form and substance, having failed to comply with the Rules
of Court and Circular No. 1-88 requiring submission of a
certified true copy of the questioned resolution dated
August 23, 1989." 13
Almost simultaneous with the promulgation of the August
31, 1988 decision of the POEA on private respondents'
money claims, the POEA issued a separate Order dated
August 29, 1988 14 resolving the recruitment violations
aspect of private respondents' complaint. In this Order, the
POEA found petitioner guilty of illegal exaction, contract
substitution, and unlawful deduction. The dispositive
portion of this August 29, 1988 POEA Order reads:
"WHEREFORE, premises considered, this Office finds herein
respondent PHILSA International Placement and Services
Corporation liable for three (3) counts of illegal exaction,
two (2) counts of contract substitution and one count of
withholding or unlawful deduction from salaries of
workers.
Accordingly, respondent is hereby ordered to refund the
placement fees in the amount of P2,500.00 to Rodrigo L.
Mikin, P4,000.00, each, to Vivencio A. de Mesa and Cedric
A.P. Leyson plus restitution of the salaries withheld in the
amount of SR1,000.00 to Vivencio A. de Mesa.
Moreover, respondent's license is hereby suspended for
eight (8) months to take effect immediately and to remain
as such until full refund and restitution of the above-stated
amounts have been effected or in lieu thereof, it is fined the
amount of SIXTY THOUSAND (P60,000.00) PESOS plus
restitution.
SO ORDERED."
In line with this August 29, 1988 Order, petitioner
deposited the check equivalent to the claims of private
respondents and paid the corresponding fine under protest.
From the said Order, petitioner filed a Motion for
Reconsideration which was subsequently denied in an
Order dated October 10, 1989.
Under the POEA Rules and Regulations, the decision of the
POEA thru the LRO suspending or canceling a license or
authority to act as a recruitment agency may be appealed to
the Ministry (now Department) of Labor and Employment.
15 Accordingly, after the denial of its motion for
reconsideration, petitioner appealed the August 21, 1988
Order to the Secretary of Labor and Employment. However,
in an Order dated September 13, 1991,16public respondent
Secretary of Labor and Employment affirmed in toto the
assailed Order. Petitioner filed a Motion for
Reconsideration but this was likewise denied in an Order
dated November 25, 1991.
Hence, the instant Petition for Certiorari where petitioner
raises the following grounds for the reversal of the
questioned Orders:
I On this point, we have carefully examined the records of the
THE PUBLIC RESPONDENT HAS ACTED WITHOUT OR IN
EXCESS OF JURISDICTION OR WITH GRAVE ABUSE OF
DISCRETION IN HOLDING PETITIONER GUILTY OF
ILLEGAL EXACTIONS. THE FINDING IS NOT SUPPORTED BY
EVIDENCE AND IN ANY EVENT, THE LAW ON WHICH THE
CONVICTION IS BASED IS VOID.
II
THE PUBLIC RESPONDENT HAS ACTED WITHOUT OR IN
EXCESS OF JURISDICTION OR WITH GRAVE ABUSE OF
DISCRETION IN PENALIZING PETITIONER WITH
CONTRACT SUBSTITUTION. IN THE PREMISES, THE
CONTRACT SUBSTITUTION IS VALID AS IT IMPROVED THE
TERMS AND CONDITIONS OF PRIVATE RESPONDENTS'
EMPLOYMENT.
III.
THE PUBLIC RESPONDENT HAS ACTED WITHOUT OR IN
EXCESS OF JURISDICTION, OR WITH GRAVE ABUSE OF
DISCRETION IN HOLDING PETITIONER LIABLE FOR
ILLEGAL DEDUCTIONS/WITHHOLDING OF SALARIES FOR
THE SUPREME COURT ITSELF HAS ALREADY ABSOLVED
PETITIONER FROM THIS CHARGE.
With respect to the first ground, petitioner would want us
to overturn the findings of the POEA, subsequently affirmed
by the Secretary of the Department of Labor and
Employment, that it is guilty of illegal exaction committed
by collecting placement fees in excess of the amounts
allowed by law. This issue, however, is a question of fact
which cannot be raised in a petition for certiorari under
Rule 65. 17 As we have previously held:
"It should be noted, in the first place, that the instant
petition is a special civil action for certiorari under Rule 65
of the Revised Rules of Court. An extraordinary remedy, its
use is available only and restrictively in truly exceptional
cases wherein the action of an inferior court, board or
officer performing judicial or quasi-judicial acts is
challenged for being wholly void on grounds of jurisdiction.
The sole office of the writ of certiorari is the correction of
errors of jurisdiction including the commission of grave
abuse of discretion amounting to lack or excess of
jurisdiction. It does not include correction of public
respondent NLRC's evaluation of the evidence and factual
findings based thereon, which are generally accorded not
only great respect but even finality." 18
The question of whether or not petitioner charged private
respondents placement fees in excess of that allowed by law
is clearly a question of fact which is for public respondent
POEA, as a trier of facts, to determine. As stated above, the
settled rule is that the factual findings of quasi-judicial
agencies like the POEA, which have acquired expertise
because their jurisdiction is confined to specific matters, are
generally accorded not only respect, but at times even
finality if such findings are supported by substantial
evidence. 19
case and it is clear that the ruling of public respondent
POEA that petitioner is guilty of illegal exaction is
supported by substantial evidence. Aside from the
testimonial evidence offered by private respondents, they
also presented documentary evidence consisting of receipts
issued by a duly authorized representative of petitioner
which show the payment of amounts in excess of those
allowed by the POEA. In contrast, petitioner did not present
any evidence whatsoever to rebut the claims of private
respondents despite the many opportunities for them to do
so.
Petitioner insists, however, that it cannot be held liable for
illegal exaction as POEA Memorandum Circular No. 11,
Series of 1983, which enumerated the allowable fees which
may be collected from applicants, is void for lack of
publication.
There is merit in the argument.
In Taada vs. Tuvera 20 , the Court held, as follows:
"We hold therefore that all statutes, including those of local
application and private laws, shall be published as a
condition for their effectivity, which shall begin fifteen days
after publication unless a different effectivity date is fixed
by the legislature.
Covered by this rule are presidential decrees and executive
orders promulgated by the President in the exercise of
legislative powers whenever the same are validly delegated
by the legislature or, at present, directly conferred by the
Constitution: Administrative rules and regulations must
also be published if their purpose is to enforce or
implement existing law pursuant to a valid delegation.
Interpretative regulations and those merely internal in
nature, that is, regulating only the personnel of the
administrative agency and the public, need not be
published. Neither is publication required of the so-called
letter of instructions issued by the administrative superiors
concerning the rules or guidelines to be followed by their
subordinates in the performance of their duties."
Applying this doctrine, we have previously declared as
having no force and effect the following administrative
issuances: a) Rules and Regulations issued by the Joint
Ministry of Health-Ministry of Labor and Employment
Accreditation Committee regarding the accreditation of
hospitals, medical clinics and laboratories; 21 b) Letter of
Instruction No. 416 ordering the suspension of payments
due and payable by distressed copper mining companies to
the national government; 22 c) Memorandum Circulars
issued by the POEA regulating the recruitment of domestic
helpers to Hong Kong; 23 d) Administrative Order No.
SOCPEC 89-08-01 issued by the Philippine International
Trading Corporation regulating applications for
importation from the People's Republic of China;24and e)
Corporate Compensation Circular No. 10 issued by the
Department of Budget and Management discontinuing the
payment of other allowances and fringe benefits to
government officials and employees. 25 In all these cited
cases, the administrative issuances questioned therein were
uniformly struck down as they were not published or filed
with the National Administrative Register as required by
the Administrative Code of 1987. 26
POEA Memorandum Circular No. 2, Series of 1983 must
likewise be declared ineffective as the same was never
published or filed with the National Administrative
Register.
POEA Memorandum Order No. 2, Series of 1983 provides
for the applicable schedule of placement and
documentation fees for private employment agencies or
authority holders. Under the said Order, the maximum
amount which may be collected from prospective Filipino
overseas workers is P2,500.00. The said circular was
apparently issued in compliance with the provisions of
Article 32 of the Labor Code which provides, as follows:
"ARTICLE 32. Fees to be paid by workers. Any person
applying with a private fee-charging employment agency
for employment assistance shall not be charged any fee
until he has obtained employment through its efforts or has
actually commenced employment. Such fee shall be always
covered with the approved receipt clearly showing the
amount paid. The Secretary of Labor shall promulgate a
schedule of allowable fees." (italic supplied)
It is thus clear that the administrative circular under
consideration is one of those issuances which should be
published for its effectivity, since its purpose is to enforce
and implement an existing law pursuant to a valid
delegation. 27 Considering that POEA Administrative
Circular No. 2, Series of 1983 has not as yet been published
or filed with the National Administrative Register, the same
is ineffective and may not be enforced.
The Office of the Solicitor General argues however that the
imposition of administrative sanctions on petitioner was
based not on the questioned administrative circular but on
Article 32 and Article 34 (a) 28 of the Labor Code.
The argument is not meritorious. The said articles of the
Labor Code were never cited, much less discussed, in the
body of the questioned Orders of the POEA and Secretary of
Labor and Employment. In fact, the said Orders were
consistent in mentioning that petitioner's violation of
Administrative Circular No. 2, Series of 1983 was the basis
for the imposition of administrative sanctions against
petitioner. Furthermore, even assuming that petitioner was
held liable under the said provisions of the Labor Code,
Articles 32 and 34 (a) of the Labor Code presupposes the
promulgation of a valid schedule of fees by the Department
of Labor and Employment. Considering that, as, previously
discussed, Administrative Circular No. 2, Series of 1983
embodying such a schedule of fees never took effect, there
is thus no basis for the imposition of the administrative
sanctions against petitioner. Moreover, under Book VI,
Chapter II, Section 3 of the Administrative Code of 1987,
"(r)ules in force on the date of the effectivity of this Code
which are not filed within three (3) months from that date
shall not thereafter be the basis of any sanction against any
party or persons." Considering that POEA Administrative
Circular No. 2 was never filed with the National
Administrative Register, the same cannot be used as basis
for the imposition of administrative sanctions against
petitioner.
The Office of the Solicitor General likewise argues that the
questioned administrative circular is not among those
requiring publication contemplated by Taada vs. Tuvera as
it is addressed only to a specific group of persons and not to
the general public.
Again, there is no merit in this argument.
The fact that the said circular is addressed only to a
specified group, namely private employment agencies or
authority holders, does not take it away from the ambit of
our ruling in Taada vs. Tuvera. In the case of Phil.
Association of Service Exporters vs. Torres,29 the
administrative circulars questioned therein were addressed
to an even smaller group, namely Philippine and Hong Kong
agencies engaged in the recruitment of workers for Hong
Kong, and still the Court ruled therein that, for lack of
proper publication, the said circulars may not be enforced
or implemented.
Our pronouncement in Taada vs. Tuvera is clear and
categorical. Administrative rules and regulations must be
published if their purpose is to enforce or implement
existing law pursuant to a valid delegation., The only
exceptions are interpretative regulations, those merely
internal in nature, or those so-called letters of instructions
issued by administrative superiors concerning the rules and
guidelines to be followed by their subordinates in the
performance of their duties. Administrative Circular No. 2,
Series of 1983 has not been shown to fall under any of these
exceptions.
In this regard, the Solicitor General's reliance on the case of
Yaokasin vs. Commissioner of Customs 30 is misplaced. In
the said case, the validity of certain Customs Memorandum
Orders were upheld despite their lack of publication as they
were addressed to a particular class of persons, the customs
collectors, who were also the subordinates of the
Commissioner of the Bureau of Customs. As such, the said
Memorandum Orders clearly fall under one of the
exceptions to the publication requirement, namely those
dealing with instructions from an administrative superior
to a subordinate regarding the performance of their duties,
a circumstance which does not obtain in the case at bench.
With respect to the second ground, petitioner would want
us to review the findings of fact of the POEA regarding the
two counts of alleged contract substitution. Again, this is a
question of fact which may not be disturbed if the same is
supported by substantial evidence. A reading of the August
29, 1988 Order of the POEA shows that, indeed, the ruling
that petitioner is guilty of two (2) counts of prohibited
contract substitution is supported by substantial evidence.
Thus:
"2. As admitted by respondent, there was definitely a
contract of substitution in the first count. The first contract
was duly approved by the Administration and, therefore,
the parties are bound by the terms and condition thereof
until its expiration. The mere intention of respondents to
increase the number of hours of work, even if there was a
corresponding increase in wage is clear violation of the
contract as approved by the Administration, and
notwithstanding the same, the amendment is evidently
contrary to law, morals, good customs and public policy and
hence, must be shunned (Art. 1306, Civil Code of the
Philippines, Book III, Title I, Chapter 1, Article 83, Labor
Code of the Philippines, as amended). Moreover, it would
appear that the proposed salary increase corresponding to
the increase in number of work bonus may just have been a
ploy as complainant were (sic) thereafter not paid at the
increased rate.
As to contract substitution in the second part, a third
contract was emphatically intended by respondent to be
signed by complainants which, however, was not
consummated due to the adamant refusal of complainants
to sign thereon. Mere intention of the respondent to commit
contract substitution for a second time should not be left
unpunished. It is the duty of this Office to repress such acts
by teaching agencies a lesson to avoid repetition of the
same violation." 31
With respect to the third ground, petitioner argues that the
public respondent committed grave abuse of discretion in
holding petitioner liable for illegal deductions/withholding
of salaries considering that the Supreme Court itself has
already absolved petitioner from this charge. Petitioner
premises its argument on the fact that the July 26, 1989
Decision of the NLRC absolving it from private respondent
de Mesa's claim for salary deduction has already attained
finality by reason of the dismissal of private respondents'
petition for certiorari of the said NLRC decision by the
Supreme Court.
Petitioner is correct in stating that the July 26, 1989
Decision of the NLRC has attained finality by reason of the
dismissal of the petition for certiorari assailing the same.
However, the said NLRC Decision dealt only with the money
claims of private respondents arising from employer-
employee relations and illegal dismissal and as such, it is
only for the payment of the said money claims that
petitioner is absolved. The administrative sanctions, which
are distinct and separate from the money claims of private
respondents, may still be properly imposed by the POEA. In
fact, in the August 31, 1988 Decision of the POEA dealing
with the money claims of private respondents, the POEA
Adjudication Office precisely declared that "respondent's
liability for said money claims is without prejudice to and
independent of its liabilities for the recruitment violations
aspect of the case which is the subject of a separate Order."
32
The NLRC Decision absolving petitioner from paying private
respondent de Mesa's claim for salary deduction based its
ruling on a finding that the said money claim was not raised
in the complaint. 33 While there may be questions
regarding such finding of the NLRC, the finality of the said
NLRC Decision prevents us from modifying or reviewing the
same. But the fact that the claim for salary deduction was
not raised by private respondents in their complaint will
not bar the POEA from holding petitioner liable for illegal
deduction or withholding of salaries as a ground for the
suspension or cancellation of petitioner's license.
Under the POEA Rules and Regulations, the POEA, on its
own initiative, may conduct the necessary proceeding for
the suspension or cancellation of the license of any private
placement agency on any of the grounds mentioned therein.
34 As such, even without a written complaint from an
aggrieved party, the POEA can initiate proceedings against
an erring private placement agency and, if the result of its
investigation so warrants, impose the corresponding
administrative sanction thereof. Moreover, the POEA, in an
investigation of an employer-employee relationship case,
may still hold a respondent liable for administrative
sanctions if, in the course of its investigation, violations of
recruitment regulations are uncovered. 35 It is thus clear
that even if recruitment violations were not included in a
complaint for money claims initiated by a private
complainant, the POEA, under its rules, may still take
cognizance of the same and impose administrative
sanctions if the evidence so warrants.
As such, the fact that petitioner has been absolved by final
judgment for the payment of the money claim to private
respondent de Mesa does not mean that it is likewise
absolved from the administrative sanctions which may be
imposed as a result of the unlawful deduction or
withholding of private respondents' salary. The POEA thus
committed no grave abuse of discretion in finding petitioner
administratively liable of one count of unlawful
deduction/withholding of salary.
To summarize, petitioner should be absolved from the three
(3) counts of illegal exaction as POEA Administrative
Circular No. 2, Series of 1983 could not be the basis of
administrative sanctions against petitioner for lack of
publication. However, we affirm the ruling of the POEA and
the Secretary of Labor and Employment that petitioner
should be held administratively liable for two (2) counts of
contract substitution and one (1) count of withholding or
unlawful deduction of salary.
Under the applicable schedule of penalties imposed by the
POEA, the penalty for each count of contract substitution is
suspension of license for two (2) months or a fine of
P10,000.00 while the penalty for withholding or unlawful
deduction of salaries is suspension of license for two (2)
months or fine equal to the salary withheld but not less
than P10,000.00 plus restitution of the amount in both
instances.36 Applying the said schedule on the instant case,
the license of petitioner should be suspended for six (6)
months or, in lieu thereof, it should be ordered to pay fine in
the amount of P30,000.00. Petitioner should likewise pay
the amount of SR1,000.00 to private respondent Vivencio A.
de Mesa as restitution for the amount withheld from his
salary.
WHEREFORE, premises considered, the September 13,
1991 and November 25, 1991 Orders of public respondent
Secretary of Labor and Employment are hereby MODIFIED.
As modified, the license of private respondent Philsa
International Placement and Services Corporation is hereby
suspended for six (6) months or, in lieu thereof, it is hereby
ordered to pay the amount of P30,000.00 as fine. Petitioner
is likewise ordered to pay the amount of SR1,000.00 to
private respondent Vivencio A. de Mesa. All other monetary
awards are deleted.
SO ORDERED.
G.R. No. 152642 November 13, 2012
HON. PATRICIA A. STO.TOMAS, ROSALINDA BALDOZ and
LUCITA LAZO, Petitioners,
vs.
REY SALAC, WILLIE D. ESPIRITU, MARIO MONTENEGRO,
DODGIE BELONIO, LOLIT SALINEL and BUDDY BONNEVIE,
Respondents.
x-----------------------x
G.R. No. 152710
HON. PATRICIA A. STO. TOMAS, in her capacity as Secretary
of Department of Labor and Employment (DOLE), HON.
ROSALINDA D. BALDOZ, in her capacity as Administrator,
Philippine Overseas Employment Administration (POEA),
and the PHILIPPINE OVERSEAS EMPLOYMENT
ADMINISTRATION GOVERNING BOARD, Petitioners,
vs.
HON. JOSE G. PANEDA, in his capacity as the Presiding Judge
of Branch 220, Quezon City, ASIAN RECRUITMENT
COUNCIL PHILIPPINE CHAPTER, INC. (ARCOPHIL), for itself
and in behalf of its members: WORLDCARE PHILIPPINES
SERVIZO INTERNATIONALE, INC., STEADFAST
INTERNATIONAL RECRUITMENT CORP., VERDANT
MANPOWER MOBILIZATION CORP., BRENT OVERSEAS
PERSONNEL, INC., ARL MANPOWER SERVICES, INC.,
DAHLZEN INTERNATIONAL SERVICES, INC., INTERWORLD
PLACEMENT CENTER, INC., LAKAS TAO CONTRACT
SERVICES LTD. CO., SSC MULTI-SERVICES, DMJ
INTERNATIONAL, and MIP INTERNATIONAL MANPOWER
SERVICES, represented by its proprietress, MARCELINA I.
PAGSIBIGAN, Respondents.
x-----------------------x
G.R. No. 167590
REPUBLIC OF THE PHILIPPINES, represented by the
HONORABLE EXECUTIVE SECRETARY, the HONORABLE
SECRETARY OF LABOR AND EMPLOYMENT (DOLE), the
PHILIPPINE OVERSEAS EMPLOYMENT ADMINISTRATION
(POEA), the OVERSEAS WORKERS WELFARE
ADMINISTRATION (OWWA), the LABOR ARBITERS OF THE
NATIONAL LABOR RELATIONS COMMISSION (NLRC), the
HONORABLE SECRETARY OF JUSTICE, the HONORABLE
SECRETARY OF FOREIGN AFFAIRS and the COMMISSION
ON AUDIT (COA), Petitioners,
vs.
PHILIPPINE ASSOCIATION OF SERVICE EXPORTERS, INC.
(P ASEI), Respondent.
x-----------------------x
G.R. Nos. 182978-79
BECMEN SERVICE EXPORTER AND PROMOTION, INC.,
Petitioner,
vs.
SPOUSES SIMPLICIO AND MILA CUARESMA (for and in
behalf of daughter, Jasmin G. Cuaresma), WHITE FALCON
SERVICES, INC., and JAIME ORTIZ (President of White
Falcon Services, Inc.), Respondents.
x-- --------------------x
GR. Nos. 184298-99
SPOUSES SIMPLICIO AND MILA CUARESMA (for and in
behalf of deceased daughter, Jasmin G. Cuaresma),
Petitioners,
vs.
WHITE FALCON SERVICES, INC. and BECMEN SERVICES
EXPORTER AND PROMOTION, INC., Respondents.
DECISION
ABAD, J.:
These consolidated cases pertain to the constitutionality of
certain provisions of Republic Act 8042, otherwise known
as the Migrant Workers and Overseas Filipinos Act of 1995.
The Facts and the Case
On June 7, 1995 Congress enacted Republic Act (R.A.) 8042
or the Migrant Workers and Overseas Filipinos Act of 1995
that, for among other purposes, sets the Governments
policies on overseas employment and establishes a higher
standard of protection and promotion of the welfare of
migrant workers, their families, and overseas Filipinos in
distress.
G.R. 152642 and G.R. 152710
(Constitutionality of Sections 29 and 30, R.A. 8042)
Sections 29 and 30 of the Act1 commanded the Department
of Labor and Employment (DOLE) to begin deregulating
within one year of its passage the business of handling the
recruitment and migration of overseas Filipino workers and
phase out within five years the regulatory functions of the
Philippine Overseas Employment Administration (POEA).
On January 8, 2002 respondents Rey Salac, Willie D.
Espiritu, Mario Montenegro, Dodgie Belonio, Lolit Salinel,
and Buddy Bonnevie (Salac, et al.) filed a petition for
certiorari, prohibition and mandamus with application for
temporary restraining order (TRO) and preliminary
injunction against petitioners, the DOLE Secretary, the
POEA Administrator, and the Technical Education and Skills
Development Authority (TESDA) Secretary-General before
the Regional Trial Court (RTC) of Quezon City, Branch 96.2
Salac, et al. sought to: 1) nullify DOLE Department Order 10
(DOLE DO 10) and POEA Memorandum Circular 15 (POEA
MC 15); 2) prohibit the DOLE, POEA, and TESDA from
implementing the same and from further issuing rules and
regulations that would regulate the recruitment and
placement of overseas Filipino workers (OFWs); and 3) also
enjoin them to comply with the policy of deregulation
mandated under Sections 29 and 30 of Republic Act 8042.
On March 20, 2002 the Quezon City RTC granted Salac, et
al.s petition and ordered the government agencies
mentioned to deregulate the recruitment and placement of
OFWs.3 The RTC also annulled DOLE DO 10, POEA MC 15,
and all other orders, circulars and issuances that are
inconsistent with the policy of deregulation under R.A.
8042.
Prompted by the RTCs above actions, the government
officials concerned filed the present petition in G.R. 152642
seeking to annul the RTCs decision and have the same
enjoined pending action on the petition.
On April 17, 2002 the Philippine Association of Service
Exporters, Inc. intervened in the case before the Court,
claiming that the RTC March 20, 2002 Decision gravely
affected them since it paralyzed the deployment abroad of
OFWs and performing artists. The Confederated Association
of Licensed Entertainment Agencies, Incorporated (CALEA)
intervened for the same purpose.4
On May 23, 2002 the Court5 issued a TRO in the case,
enjoining the Quezon City RTC, Branch 96, from enforcing
its decision.
In a parallel case, on February 12, 2002 respondents Asian
Recruitment Council Philippine Chapter, Inc. and others
(Arcophil, et al.) filed a petition for certiorari and
prohibition with application for TRO and preliminary
injunction against the DOLE Secretary, the POEA
Administrator, and the TESDA Director-General,6 before
the RTC of Quezon City, Branch 220, to enjoin the latter
from implementing the 2002 Rules and Regulations
Governing the Recruitment and Employment of Overseas
Workers and to cease and desist from issuing other orders,
circulars, and policies that tend to regulate the recruitment
and placement of OFWs in violation of the policy of
deregulation provided in Sections 29 and 30 of R.A. 8042.
On March 12, 2002 the Quezon City RTC rendered an Order,
granting the petition and enjoining the government
agencies involved from exercising regulatory functions over
the recruitment and placement of OFWs. This prompted the
DOLE Secretary, the POEA Administrator, and the TESDA
Director-General to file the present action in G.R. 152710.
As in G.R. 152642, the Court issued on May 23, 2002 a TRO
enjoining the Quezon City RTC, Branch 220 from enforcing
its decision.
On December 4, 2008, however, the Republic informed7 the
Court that on April 10, 2007 former President Gloria
Macapagal-Arroyo signed into law R.A. 94228 which
expressly repealed Sections 29 and 30 of R.A. 8042 and
adopted the policy of close government regulation of the
recruitment and deployment of OFWs. R.A. 9422 pertinently
provides:
xxxx
SEC. 1. Section 23, paragraph (b.1) of Republic Act No. 8042,
otherwise known as the "Migrant Workers and Overseas
Filipinos Act of 1995" is hereby amended to read as follows:
(b.1) Philippine Overseas Employment Administration
The Administration shall regulate private sector
participation in the recruitment and overseas placement of
workers by setting up a licensing and registration system. It
shall also formulate and implement, in coordination with
appropriate entities concerned, when necessary, a system
for promoting and monitoring the overseas employment of
Filipino workers taking into consideration their welfare and
the domestic manpower requirements.
In addition to its powers and functions, the administration
shall inform migrant workers not only of their rights as
workers but also of their rights as human beings, instruct
and guide the workers how to assert their rights and
provide the available mechanism to redress violation of
their rights.
In the recruitment and placement of workers to service the
requirements for trained and competent Filipino workers of
foreign governments and their instrumentalities, and such
other employers as public interests may require, the
administration shall deploy only to countries where the
Philippines has concluded bilateral labor agreements or
arrangements: Provided, That such countries shall
guarantee to protect the rights of Filipino migrant workers;
and: Provided, further, That such countries shall observe
and/or comply with the international laws and standards
for migrant workers.
SEC. 2. Section 29 of the same law is hereby repealed.
SEC. 3. Section 30 of the same law is also hereby repealed.
xxxx
On August 20, 2009 respondents Salac, et al. told the Court
in G.R. 152642 that they agree9 with the Republics view
that the repeal of Sections 29 and 30 of R.A. 8042 renders
the issues they raised by their action moot and academic.
The Court has no reason to disagree. Consequently, the two
cases, G.R. 152642 and 152710, should be dismissed for
being moot and academic.
G.R. 167590
(Constitutionality of Sections 6, 7, and 9 of R.A. 8042)
On August 21, 1995 respondent Philippine Association of
Service Exporters, Inc. (PASEI) filed a petition for
declaratory relief and prohibition with prayer for issuance
of TRO and writ of preliminary injunction before the RTC of
Manila, seeking to annul Sections 6, 7, and 9 of R.A. 8042 for
being unconstitutional. (PASEI also sought to annul a
portion of Section 10 but the Court will take up this point
later together with a related case.)
Section 6 defines the crime of "illegal recruitment" and
enumerates the acts constituting the same. Section 7
provides the penalties for prohibited acts. Thus:
SEC. 6. Definition. For purposes of this Act, illegal
recruitment shall mean any act of canvassing, enlisting,
contracting, transporting, utilizing, hiring, procuring
workers and includes referring, contract services,
promising or advertising for employment abroad, whether
for profit or not, when undertaken by a non-license 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 such
non-license 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:
xxxx
SEC. 7. Penalties.
(a) Any person found guilty of illegal recruitment shall
suffer the penalty of imprisonment of not less than six (6)
years and one (1) day but not more than twelve (12) years
and a fine not less than two hundred thousand pesos
(200,000.00) nor more than five hundred thousand pesos
(500,000.00).
(b) The penalty of life imprisonment and a fine of not less
than five hundred thousand pesos (500,000.00) nor more
than one million pesos (1,000,000.00) shall be imposed if
illegal recruitment constitutes economic sabotage as
defined herein.
Provided, however, That the maximum penalty shall be
imposed if the person illegally recruited is less than
eighteen (18) years of age or committed by a non-licensee
or non-holder of authority.10
Finally, Section 9 of R.A. 8042 allowed the filing of criminal
actions arising from "illegal recruitment" before the RTC of
the province or city where the offense was committed or
where the offended party actually resides at the time of the
commission of the offense.
The RTC of Manila declared Section 6 unconstitutional after
hearing on the ground that its definition of "illegal
recruitment" is vague as it fails to distinguish between
licensed and non-licensed recruiters11 and for that reason
gives undue advantage to the non-licensed recruiters in
violation of the right to equal protection of those that
operate with government licenses or authorities.
But "illegal recruitment" as defined in Section 6 is clear and
unambiguous and, contrary to the RTCs finding, actually
makes a distinction between licensed and non-licensed
recruiters. By its terms, persons who engage in "canvassing,
enlisting, contracting, transporting, utilizing, hiring, or
procuring workers" without the appropriate government
license or authority are guilty of illegal recruitment whether
or not they commit the wrongful acts enumerated in that
section. On the other hand, recruiters who engage in the
canvassing, enlisting, etc. of OFWs, although with the
appropriate government license or authority, are guilty of
illegal recruitment only if they commit any of the wrongful
acts enumerated in Section 6.
The Manila RTC also declared Section 7 unconstitutional on
the ground that its sweeping application of the penalties
failed to make any distinction as to the seriousness of the
act committed for the application of the penalty imposed on
such violation. As an example, said the trial court, the mere
failure to render a report under Section 6(h) or obstructing
the inspection by the Labor Department under Section 6(g)
are penalized by imprisonment for six years and one day
and a minimum fine of 200,000.00 but which could
unreasonably go even as high as life imprisonment if
committed by at least three persons.
Apparently, the Manila RTC did not agree that the law can
impose such grave penalties upon what it believed were
specific acts that were not as condemnable as the others in
the lists. But, in fixing uniform penalties for each of the
enumerated acts under Section 6, Congress was within its
prerogative to determine what individual acts are equally
reprehensible, consistent with the State policy of according
full protection to labor, and deserving of the same penalties.
It is not within the power of the Court to question the
wisdom of this kind of choice. Notably, this legislative policy
has been further stressed in July 2010 with the enactment
of R.A. 1002212 which increased even more the duration of
the penalties of imprisonment and the amounts of fine for
the commission of the acts listed under Section 7.
Obviously, in fixing such tough penalties, the law
considered the unsettling fact that OFWs must work outside
the countrys borders and beyond its immediate protection.
The law must, therefore, make an effort to somehow protect
them from conscienceless individuals within its jurisdiction
who, fueled by greed, are willing to ship them out without
clear assurance that their contracted principals would treat
such OFWs fairly and humanely.
As the Court held in People v. Ventura,13 the State under its
police power "may prescribe such regulations as in its
judgment will secure or tend to secure the general welfare
of the people, to protect them against the consequence of
ignorance and incapacity as well as of deception and fraud."
Police power is "that inherent and plenary power of the
State which enables it to prohibit all things hurtful to the
comfort, safety, and welfare of society."14
The Manila RTC also invalidated Section 9 of R.A. 8042 on
the ground that allowing the offended parties to file the
criminal case in their place of residence would negate the
general rule on venue of criminal cases which is the place
where the crime or any of its essential elements were
committed. Venue, said the RTC, is jurisdictional in penal
laws and, allowing the filing of criminal actions at the place
of residence of the offended parties violates their right to
due process. Section 9 provides:
SEC. 9. Venue. A criminal action arising from illegal
recruitment as defined herein shall be filed with the
Regional Trial Court of the province or city where the
offense was committed or where the offended party
actually resides at the time of the commission of the
offense: Provided, That the court where the criminal action
is first filed shall acquire jurisdiction to the exclusion of
other courts: Provided, however, That the aforestated
provisions shall also apply to those criminal actions that
have already been filed in court at the time of the effectivity
of this Act.
But there is nothing arbitrary or unconstitutional in
Congress fixing an alternative venue for violations of
Section 6 of R.A. 8042 that differs from the venue
established by the Rules on Criminal Procedure. Indeed,
Section 15(a), Rule 110 of the latter Rules allows exceptions
provided by laws. Thus:
SEC. 15. Place where action is to be instituted. (a) Subject
to existing laws, the criminal action shall be instituted and
tried in the court of the municipality or territory where the
offense was committed or where any of its essential
ingredients occurred. (Emphasis supplied)
xxxx
Section 9 of R.A. 8042, as an exception to the rule on venue
of criminal actions is, consistent with that laws declared
policy15 of providing a criminal justice system that protects
and serves the best interests of the victims of illegal
recruitment.
G.R. 167590, G.R. 182978-79,16 and G.R. 184298-9917
(Constitutionality of Section 10, last sentence of 2nd
paragraph)
G.R. 182978-79 and G.R. 184298-99 are consolidated cases.
Respondent spouses Simplicio and Mila Cuaresma (the
Cuaresmas) filed a claim for death and insurance benefits
and damages against petitioners Becmen Service Exporter
and Promotion, Inc. (Becmen) and White Falcon Services,
Inc. (White Falcon) for the death of their daughter Jasmin
Cuaresma while working as staff nurse in Riyadh, Saudi
Arabia.
The Labor Arbiter (LA) dismissed the claim on the ground
that the Cuaresmas had already received insurance benefits
arising from their daughters death from the Overseas
Workers Welfare Administration (OWWA). The LA also
gave due credence to the findings of the Saudi Arabian
authorities that Jasmin committed suicide.
On appeal, however, the National Labor Relations
Commission (NLRC) found Becmen and White Falcon jointly
and severally liable for Jasmins death and ordered them to
pay the Cuaresmas the amount of US$113,000.00 as actual
damages. The NLRC relied on the Cabanatuan City Health
Offices autopsy finding that Jasmin died of criminal
violence and rape.
Becmen and White Falcon appealed the NLRC Decision to
the Court of Appeals (CA).18 On June 28, 2006 the CA held
Becmen and White Falcon jointly and severally liable with
their Saudi Arabian employer for actual damages, with
Becmen having a right of reimbursement from White
Falcon. Becmen and White Falcon appealed the CA Decision
to this Court.
On April 7, 2009 the Court found Jasmins death not work-
related or work-connected since her rape and death did not
occur while she was on duty at the hospital or doing acts
incidental to her employment. The Court deleted the award
of actual damages but ruled that Becmens corporate
directors and officers are solidarily liable with their
company for its failure to investigate the true nature of her
death. Becmen and White Falcon abandoned their legal,
moral, and social duty to assist the Cuaresmas in obtaining
justice for their daughter. Consequently, the Court held the
foreign employer Rajab and Silsilah, White Falcon, Becmen,
and the latters corporate directors and officers jointly and
severally liable to the Cuaresmas for: 1) P2,500,000.00 as
moral damages; 2) P2,500,000.00 as exemplary damages; 3)
attorneys fees of 10% of the total monetary award; and 4)
cost of suit.
On July 16, 2009 the corporate directors and officers of
Becmen, namely, Eufrocina Gumabay, Elvira Taguiam,
Lourdes Bonifacio and Eddie De Guzman (Gumabay, et al.)
filed a motion for leave to Intervene. They questioned the
constitutionality of the last sentence of the second
paragraph of Section 10, R.A. 8042 which holds the
corporate directors, officers and partners jointly and
solidarily liable with their company for money claims filed
by OFWs against their employers and the recruitment firms.
On September 9, 2009 the Court allowed the intervention
and admitted Gumabay, et al.s motion for reconsideration.
The key issue that Gumabay, et al. present is whether or not
the 2nd paragraph of Section 10, R.A. 8042, which holds the
corporate directors, officers, and partners of recruitment
and placement agencies jointly and solidarily liable for
money claims and damages that may be adjudged against
the latter agencies, is unconstitutional.
In G.R. 167590 (the PASEI case), the Quezon City RTC held
as unconstitutional the last sentence of the 2nd paragraph
of Section 10 of R.A. 8042. It pointed out that, absent
sufficient proof that the corporate officers and directors of
the erring company had knowledge of and allowed the
illegal recruitment, making them automatically liable would
violate their right to due process of law.
The pertinent portion of Section 10 provides:
SEC. 10. Money Claims. x x x
The liability of the principal/employer and the
recruitment/placement agency for any and all claims under
this section shall be joint and several. This provision shall
be incorporated in the contract for overseas employment
and shall be a condition precedent for its approval. The
performance bond to be filed by the recruitment/placement
agency, as provided by law, shall be answerable for all
money claims or damages that may be awarded to the
workers. If the recruitment/placement agency is a juridical
being, the corporate officers and directors and partners as
the case may be, shall themselves be jointly and solidarily
liable with the corporation or partnership for the aforesaid
claims and damages. (Emphasis supplied)
But the Court has already held, pending adjudication of this
case, that the liability of corporate directors and officers is
not automatic. To make them jointly and solidarily liable
with their company, there must be a finding that they were
remiss in directing the affairs of that company, such as
sponsoring or tolerating the conduct of illegal activities.19
In the case of Becmen and White Falcon,20 while there is
evidence that these companies were at fault in not
investigating the cause of Jasmins death, there is no
mention of any evidence in the case against them that
intervenors Gumabay, et al., Becmens corporate officers
and directors, were personally involved in their companys
particular actions or omissions in Jasmins case.
As a final note, R.A. 8042 is a police power measure
intended to regulate the recruitment and deployment of
OFWs. It aims to curb, if not eliminate, the injustices and
abuses suffered by numerous OFWs seeking to work
abroad. The rule is settled that every statute has in its favor
the presumption of constitutionality. The Court cannot
inquire into the wisdom or expediency of the laws enacted
by the Legislative Department. Hence, in the absence of a
clear and unmistakable case that the statute is
unconstitutional, the Court must uphold its validity.
WHEREFORE, in G.R. 152642 and 152710, the Court
DISMISSES the petitions for having become moot and
academic.1wphi1
In G.R. 167590, the Court SETS ASIDE the Decision of the
Regional Trial Court ofManila dated December 8, 2004 and
DECLARES Sections 6, 7, and 9 of Republic Act 8042 valid
and constitutional.
In G.R. 182978-79 and G.R. 184298-99 as well as in G.R.
167590, the Court HOLDS the last sentence of the second
paragraph of Section 10 of Republic Act 8042 valid and
constitutional. The Court, however, RECONSIDERS and
SETS ASIDE the portion of its Decision in G.R. 182978-79
and G.R. 184298-99 that held intervenors Eufrocina
Gumabay, Elvira Taguiam, Lourdes Bonifacio, and Eddie De
Guzman jointly and solidarily liable with respondent
Becmen Services Exporter and Promotion, Inc. to spouses
Simplicia and Mila Cuaresma for lack of a finding in those
cases that such intervenors had a part in the act or omission
imputed to their corporation.
SO ORDERED.