What constitutes illegal recruitment?
We need to know first the definition of recruitment and from there, learn when it becomes illegal.
Article 13 (b) of the Labor Code defines ‘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.
Now this becomes illegal recruitment when any of these acts is undertaken by non-licensees or non-holders of authority[1]. Thus, for one to engage in recruitment and placement, there must be a license or authority to do so.
Illegal recruitment shall also include the performance of any of the acts enumerated in Art. 34 of the Labor Code by any person ⎼ licensee, holder of authority, non-licensee, or non-holder of authority. Any person is prohibited from performing these acts because they are illegal in themselves, such as furnishing or publishing any false notice or information or document in relation to recruitment or employment[2].
Illegal recruitment in relation to overseas Filipino workers is essentially the same as above, but for more information on this, reference must be made to Republic Act No. 8042 (Migrant Workers and Overseas Filipinos Act of 1995), as amended by R.A. No. 10022.[3]
Is it necessary that the illegal recruiter must have done the act for profit?
No. Under the laws, whether it is done for profit or not, one may be held liable for illegal recruitment. Therefore, even if the illegal recruiter has not received any money from the victim, he/she may be held liable for illegal recruitment.
Illegal recruitment involving economic sabotage:
Under the laws, illegal recruitment shall be considered an offense involving economic sabotage when it is either syndicated or in large scale.
Syndicated illegal recruitment refers to illegal recruitment carried out by a group of 3 or more persons conspiring and/or confederating with one another in carrying out any unlawful or illegal transaction, enterprise or scheme.[4]
Large-scale illegal recruitment, on the other hand, refers to illegal recruitment committed against 3 or more persons individually or as a group.[5] These two, as compared to simple illegal recruitment, carry a higher penalty.
Illegal recruitment vis-à-vis Estafa:
The Supreme Court (SC) has been consistent in holding that a person may be charged and convicted for both illegal recruitment and estafa.
The SC held in a case that the reason therefor is not hard to discern: illegal recruitment is malum prohibitum, while estafa is malum in se. In the first, the criminal intent of the accused is not necessary for conviction; in the second, such an intent is imperative.[6]
As illegal recruitment is malum prohibitum, the mere commission makes it punishable regardless of the presence or absence of intent on the part of the violator.
Other important things to note about illegal recruitment based on cases decided by the SC:
a. A mere offer of an employment to a person without license or authority constitutes illegal recruitment.
The SC said that to prove illegal recruitment, it must be shown that the accused, without being duly authorized by law, gave complainants the distinct impression that he had the power or ability to send them abroad for work, such that the latter were convinced to part with their money in order to be employed.[7]
Further, the Court held that it is important that there must at least be a promise or offer of an employment from the person posing as a recruiter, whether locally or abroad.
b. Referrals are included in the definition of ‘recruitment and placement’, therefore, a person who refers a person for employment without license or authority may be held liable for illegal recruitment.
The SC said that the act of referral, which is included in recruitment, 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.[8]
[1] Art. 38 (a), Labor Code, as amended. [2] Art. 34 (b), Id. [3] For more information about illegal recruitment vis-à-vis overseas employment, you may check Philippine Overseas Employment Administration's (POEA) discussion of this at http://www.poea.gov.ph/air/whatisair.html [4] Art. 38 (b), Labor Code, as amended. [5] Id. [6] People of the Philippines v. Comila, G.R. No. 171448, February 28, 2007. [7] People of the Philippines v. Laogo, G.R. No. 176264, January 10, 2011. [8] Rodolfo v. People of the Philippines, G.R. No. 146964, August 10, 2006.