prohibited practices, but such acts or practices do not constitute illegal
recruitment when undertaken by a licensee or holder of authority. However,
under Article 38(A) of the Labor Code, when a non-licensee or non-holder of
authority undertakes such ‘prohibited practices,’ he or she is liable for illegal
recruitment. RA 8042 broadened the definition of illegal recruitment for
overseas employment by including thirteen acts or practices which now
constitute as illegal recruitment, whether committed by a non-licensee, nonholder, licensee, or holder of authority.
“Under RA 8042, a non-licensee or non-holder of authority commits
illegal recruitment for overseas employment in two ways: (1) by any act of
canvassing, enlisting, contracting, transporting, utilizing, hiring, or procuring
workers, and includes referring, contract services, promising or advertising for
employment abroad, whether for profit or not; and (2) by undertaking any of
the acts enumerated under Section 6 of RA 8042. On the other hand, a licensee
or holder of authority is also liable for illegal recruitment for overseas
employment when he or she undertakes any of the thirteen acts or practices
[(a) to (m)] listed under Section 6 of RA 8042. To constitute illegal
recruitment in large scale, the offense of illegal recruitment must be
committed against three or more persons, individually or as a group.”64
In order to further improve the standard of protection for OFWs against illegal
recruitment, Sections 6 and 7 of R. A. 8042 were further amended by R. A. 10022.65 The
changes introduced by R. A. 10022 in Sections 6 and 7 of R. A. 8042 are underlined below:
"SEC. 6. Definition. - For purposes of this Act, illegal recruitment shall mean
any act of canvassing, enlisting, contracting, transporting, utilizing, hiring, or
procuring workers and includes referring, contract services, promising or
advertising for employment abroad, whether for profit or not, when
undertaken by non-licensee or non-holder of authority contemplated under
Article 13(f) of Presidential Decree No. 442, as amended, otherwise known as
the Labor Code of the Philippines: Provided, that any such non-licensee or
non-holder who, in any manner, offers or promises for a fee employment
abroad to two or more persons shall be deemed so engaged. It shall likewise
include the following acts, whether committed by any person, whether a nonlicensee, non-holder, licensee or holder of authority:
"(a) To charge or accept directly or indirectly any amount greater than
that specified in the schedule of allowable fees prescribed by the Secretary of
Labor and Employment, or to make a worker pay or acknowledge any amount
greater than that actually received by him as a loan or advance;
64
65
Ibid.
R. A. 10022 entitled “AN ACT AMENDING REPUBLIC ACT NO. 8042, OTHERWISE KNOWN AS
THE MIGRANT WORKERS AND OVERSEAS FILIPINOS ACT OF 1995, AS AMENDED,
FURTHER IMPROVING THE STANDARD OF PROTECTION AND PROMOTION OF THE
WELFARE OF MIGRANT WORKERS, THEIR FAMILIES AND OVERSEAS FILIPINOS IN
DISTRESS, AND FOR OTHER PURPOSES” was signed into law by former President Gloria
Macapagal-Arroyo on March 10, 2010 and became effective fifteen (15) days after its publication in
at least two (2) newspapers of general circulation.
38
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