Position Paper 2 for Labor Law Review

REPUBLIC OF THE PHILIPPINES DEPARTMENT OF LABOR AND EMPLOYMENT NATIONAL LABOR RELATIONS COMMISSION Regional Arbitration Branch No. III City of San Fernando, Pampanga

A, B, C, and D, Complainants,

versus

NLRC CASE No. RAB III 08-21823-14

JOSE, Respondent x-------------------------------------------------------------x

POSITION PAPER

COMPLAINANTS, by counsel, unto this Honorable Office, respectfully state:

STATEMENT OF FACTS AND RELEVANT ANTECEDENTS

1.

That the respondent, Jose, is a neighbor who presented himself with a

letter of introduction from a said relative of Mr. Solatorio, the President of Solatorio Manpower and Placement Agency Inorporated such company being able to employ and send workers overseas by thousands;

2.

That knowing that the complainants are seeking employement abroad, the

respondent invited the former to come with him to the offices of Solatorio Manpower and Placement Agency Inorporated;

3.

That on the respondent’s lead, the complainants gave their passports and

fifty thousand pesos each to Mr. Solatorio;

4.

That despite such payment and compliance, the complainants have

remained to be unemployed even after six months from the date of payment;

5.

That the complainants demanded from Mr. Solatorio that the placement

fees be refunded and their passports returned;

6.

That such demands were refused and that Mr. Solatorio can no longer be

located;

7.

That the respondent, by showing that he had a letter of introduction for

Mr. Solatorio, advertised the company and is, in such way, connected to or employed under Solatorio Manpower and Placement Agency;

7.

That by way of inviting us to the said company, amplified by the

inducement of a letter of introduction which the respondent claimed to possess, the latter advertised the company;

8.

That based on the foregoing, the respondent committed illegal recruitment

in large sale and has violated the prohibited acts laid out under the Labor Code of the Philippines. Hence, this position paper.

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ISSUE

WHETHER OR NOT THE RESPONDENT’S ACT CONSTITUTES “RECRUITMENT AND PLACEMENT”

WHETHER OR NOT THE RESPONDENT’S ACT CONSTITUTES ILLEGAL RECRUITMENT UNDER THE LABOR CODE;

ARGUMENTS AND DISCUSSIONS

I

Under Art. 13(b) of the Labor Code: “x x x 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. ”

The respondent, through a referral, recruited the complainants and gave of a distinct impression that he had the ability to send the latter abroad for work, as provided in the case Rodolfo vs. People, 2006. Another well-established rule is that there is no need for the payment or acceptance of placement fees. As pronounced by the Supreme Court in the case of C.F. Sharp vs. Espanol, 2007 “The act of recruitment may be "for profit or not." Notably, it is the lack of the necessary license or authority, not the fact of payment that renders the recruitment activity x x x unlawful.”

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Therefore, despite the fact that there was no payment made to the respondent, his mere act of inviting the complainants and exhibiting that impression that he had the ability to send them abroad, constituted recruitment through referral. II

The Labor Code has expressly defined what activities or acts constitute illegal recruitment by a syndicate or in large scale, under Article 38: “(a) Any recruitment activities, including the prohibited practices enumerated under Article 34 of this Code, to be undertaken by non-licensees or non-holders of authority, shall be deemed illegal and punishable under Article 39 of this Code. The Department of Labor and Employment or any law enforcement officer may initiate complaints under this Article.

(b) Illegal recruitment when committed by a syndicate or in large scale shall be considered an offense involving economic sabotage and shall be penalized in accordance with Article 39 hereof. Illegal recruitment is deemed committed by a syndicate if carried out by a group of three 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. x x x” The acts committed by the accused constituted illegal recruitment in large scale, whose essential elements are the following:

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(1) The accused engages in acts of recruitment and placement of workers defined under Article 13(b) of the Labor Code or in any prohibited activities under Article 43 of the Labor Code;

(2) The accused has not complied with the guidelines issued by the Secretary of Labor and Employment, particularly with respect to the securing of license or an authority to recruit and deploy workers, either locally or overseas; and

(3) The accused commits the unlawful acts against three or more persons individually or as a group. All three elements are present in this given case. Firstly, the respondent clearly recruited the complainants through referral when it induced them to believe that he had the ability to send the complainants abroad for employment. Secondly, the respondent did not comply with the required process and documents demanded by law. Lastly, the respondent committed such unlawful act against more than one person. In this case, it was done against A, B, C, and D. In the instant case, there is no other plausible explanation for the acts of the respondent and to his inactions other than plain bad faith and malicious intention.

PRAYER

WHEREFORE, premises considered, it is most respectfully prayed of this Honorable Labor Arbiter, that decision be rendered, to wit:

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1. That the respondent be held liable for illegal recruitment; 2. That the respondent pay actual and moral damages and attorney’s fees; and 3. Other reliefs just and equitable under the premises are also prayed for. . RESPECTFULLY SUBMITTED.

Quezon City, June 27, 2015.

ATTY. DIANNE JHOY M. PEDROSO Pedroso and Associates Counsel for Complainants Roll of Attorney’s No. 94411 IBP No. 03425 (Lifetime) MCLE Compliance No. III – 0043029 (September 4, 2015)

Copy furnished:

ATTY. RONALD VIRAY 944 St., Quiapo, Manila EXPLANATION

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Copy of this “Position Paper” was sent by registered mail to the adverse party, instead of personal service as required by the rules, because of the lack of personnel on the part of the undersigned counsel to effect such personal service.

ATTY. DIANNE JHOY M. PEDROSO REPUBLIC OF THE PHILIPPINES) ____________________________) SS.

VERIFICATION

We, A, B, C, and D, all of legal age and Filipino, after having been duly sworn to in accordance with law, depose and state THAT:

We are the complainants in the above-entitled case, that we have caused the preparation and filing of the foregoing POSITION PAPER and we have read and understood the contents thereof and the same are true and correct to the best of our personal knowledge and based on authentic records on hand;

AFFIANTS SAYETH NAUGHT.

IN WITNESS WHEREOF, we hereunto affix our signature this June 25, 2015.

A Affiant Driver’s License No. EC902393

B Affiant

C Affiant Phil. Health No. 382102

D Affiant

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SSS No. 123455

Driver’s License No. D93082

SUBSCRIBED AND SWORN to before me this ____, 2015.; affiants exhibited to me their Driver’s License No. EC902393, Phil. Health No. 382102, SSS No. 123455, Driver’s License No. D93082 a competent and government issued i.d.

DOC. NO. ____ PAGE NO. ____

NOTARY PUBLIC

BOOK NO. ____ Series of 2015.

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