Illegal recruitment

Sect. 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 a non-licensee or non-holder of authority...It shall likewise include the following acts, whether committed by any person, whether a non-licensee, 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 any amount greater than that actually received by him as a loan or advance;

(b) To furnish or publish any false notice or information or document in relation to recruitment or employment;

(c) To give any false notice, testimony, information or document or commit any act of misrepresentation for the purpose of securing a license or authority under the Labor Code;

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(f) To engage in the recruitment or placement of workers in jobs harmful to public health or morality...

(g) To obstruct or attempt to obstruct inspection by the Secretary of Labor and Employment or by his duly authorized representative;

(h) To fail to submit reports on the status of employment, placement vacancies, remittance of foreign exchange earnings, separation from jobs, departures and such other matters or information as may be required by the Secretary of Labor and Employment;

(i) To substitute or alter to the prejudice of the worker, employment contracts approved and verified by the Department of Labor and Employment.

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(k) To withhold or deny travel documents from applicant workers...

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(m) Failure to reimburse expenses incurred by the worker in connection with his documentation and processing for purposes of deployment, in cases where the deployment does not actually take place...Illegal recruitment when committed by a syndicate or in large scale shall be considered an offense involving economic sabotage.

Illegal recruitment is deemed committed by a syndicate if carried out by a group of three (3) or more persons conspiring or confederating with one another. It is deemed committed in large scale if committed against three (3) or more persons individually or as a group. The persons criminally liable for the above offences are the principals, accomplices and accessories. In case of juridical persons, the officers having control, management or direction of their business shall be liable.

Sect. 7. Penalties.

(a) Any person found guilty of illegal recruitment shall suffer the penalty of imprisonment...and a fine...

(b) The penalty of...and a fine of...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.

Sect. 8. Prohibition on Officials and Employees.   It shall be unlawful for any official or employee of the Department of Labor and Employment, the...Overseas Employment Administration, or the Overseas Workers Welfare Administration (OWWA), or the Department of Foreign Affairs, or other government agencies involved in the implementation of this Act...to engage, directly or indirectly in the business of recruiting  migrant workers  as defined in this Act. The penalties provided in the immediate preceding paragraph shall be imposed upon them.

[Philippines, Migrant Workers and Overseas Filipinos Act of 1995 (No. 8042)]

Sect. 1. Obligation to take out licence.   (1) Employers (hereinafter referred to as "manpower suppliers" or "suppliers") who intend to place the services of workers (hereinafter referred to as "temporary workers") at the disposal of third parties (hereinafter referred to as "client") as a commercial operation without engaging in placement activities as defined in section 13 of the Employment promotion Act shall require a licence to that effect.

(2) Where workers are placed at the disposal of third parties for the purpose of performing work, the person who makes their services available is presumed to engage in placement activities if he fails to assume the normal obligations and risks of an employer (section 3 (1), clauses 1 to 5) or if any single assignment extends over more than three months.

Sect. 2. Issue of licence and cessation of validity.   (1) To obtain a licence an application must be made in writing.

(2) The issue of a licence may be subjected to certain conditions or circumstances arise that would justify the refusal of a licence on any of the grounds listed in section 3.  Such obligations may also be imposed, modified or supplemented after a licence has already been granted.

(3) Where no final decision on the application can yet be made, a licence may be granted subject to withdrawal.

(4) The licence shall be issued for a period not exceeding one year.  Applications for renewal must be made not later than three months before the expiry of the said one-year period.  Unless the issuing authority refuses to renew the licence before the end of the said year, its validity shall be deemed to have been extended for another year.  Even if no renewal is granted, the licence shall continue to be operative for a maximum of six months for the purpose if winding up the contracts lawfully made in pursuance of section 1.

(5) After a manpower supplier has been lawfully operating under section 1 for three consecutive years, the licence may be granted without limit of time.  The licence shall lapse if the supplier has made no use of it for one year.

Sect. 3. Refusal.   (1) A licence shall not be granted or renewed if there are facts to warrant the assumption that the applicant

a) Cannot be trusted to exercise his activity in accordance with section 1, notably because he does not comply with the statutory provisions relating to social security, to the withholding and remittance of payroll tax, to placement, to recruitment of workers abroad, to work permits or occupational safety and health, or does not fulfil the obligations imposed on him by labour legislation;

b) Lacks the organizational facilities to discharge the normal duties of an employer in a proper manner;

c) Limits the duration of the labour contract with the temporary worker to a specified period without any objective justification on grounds connected with the personal circumstances of the temporary worker concerned;

d) Enters into a series of labour contracts of unspecified duration with the temporary worker each of which he terminated by giving notice and then re-engages the temporary worker within the three months following the termination of the previous employment relationship;

e) Limits the duration of the employment relationship with the temporary worker to the period covered by his initial assignment with a client; or

f) Places the temporary worker at the disposal of the same client for more than three consecutive months, such period to be deemed to include any immediately preceding period during which the same worker was placed at the disposal of the same client by another manpower supplier.

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Sect. 4. Cancellation.   (1) A licence that is contrary to the provisions of the law may be cancelled with effect as from the date of cancellation.  The fourth sentence of section 2 (4) shall apply, mutatis mutandis.

(2) On the application from the manpower supplier, the issuing authority shall make good to him the financial loss [the supplier] incurs through having trusted in the continued operation of the licence, to the extent that his trust is to be taken into account when weighed against the public interest. Such trust cannot be invoked by manpower supplier, if -

The licence was obtained by fraud, intimidation or an offence against the law;

The licence was obtained on the strength of statements that were untruthful or incomplete on essential points; or

He knew that the licence was contrary to the law or should have been aware of that fact, if it had not been for his gross negligence.

The compensation paid for financial loss shall not, however, exceed the manpower supplier's interest in maintaining the licence.  The amount to be paid in compensation shall be fixed by the issuing authority.  To be receivable, the claim must be brought within a year reckoned from the date on which the issuing authority has drawn the supplier's attention to the said time limit.

(3) A licence may be cancelled only within the year following the date at which the competent authority became aware of the facts warranting cancellation.

Sect. 5. Withdrawal.   (1) A licence may be withdrawn with effect as from the date of withdrawal, if

It has been granted subject to withdrawal in accordance with section 2 (3);

The manpower supplier has failed to comply within the appointed period with an obligation imposed on him under section 2 (2);

Facts that arise after the licence is issued wold justify refusal of the licence by the issuing authority; or

There is a change in the legal position which would justify refusal of the licence by the issuing authority; in such cases section 4 (2) shall apply, mutatis mutandis

(2) As soon as the withdrawal takes effect the licence shall lose its validity.  The fourth sentence of section 2 (4) shall apply, mutatis mutandis.

(3) A licence shall not be withdrawn where another licence of the same content would have to be granted.

(4) A licence may be withdrawn only within the year following the date on which the issuing authority became aware of the facts warranting withdrawal.

Sect. 6. Enforcement.   Where a manpower supplier places temporary workers at the disposal of a third party without holding the required licence, the issuing authority shall enjoin the manpower to cease and desist and prevent him from carrying on such activity...

Sect. 7. Notification and information.   (1) After the licence is granted, the manpower supplier shall, without being requested to do so, notify the issuing authority in advance of the transfer, closure or setting-up of establishments, parts of establishments or subsidiary establishments, in so far as their activities consist in the provision of manpower.  Where the licence has been granted to a group of persons, association, corporation body and another person is subsequently appointed to manage or represent it in accordance with the law or the statutes or articles of association of the said body, such change shall likewise be brought to the knowledge of the authority without prior request.

(2) At the request of the issuing authority the manpower supplier shall furnish all information that is necessary for the implementation of this Act. The information shall be supplied fully, accurately, within the appointed time and free of charge. At the request of the issuing authority the manpower supplier shall produce business documents or records to substantiate the truth of his statements or establish their credibility in another manner. The manpower supplier shall... For not less than three years.

(3) Where such action appears warranted by the facts of the case, the agents of the issuing authority shall be authorised to enter the property and business premises of the manpower supplier and carry out investigations on the spot.  The supplier shall not obstruct any action taken under the preceding sentence...

Sect.  8. Statistical reports.   (1) Once every six months the manpower supplier shall furnish the issuing authority with statistical data on

The number of temporary workers assigned, broken down by sex, nationality, occupational categories and the nature of the activity they engaged in before the contractual relationship with the supplier was established;

• The number of individual assignments, broken down by economic branches;
• The number of clients that made use of his services broken down by economic branches;
• The number and duration of the labour contracts made with each temporary worker;
• The number of assignments days of each temporary worker broken down by individual assignments.
• The issuing authority may limit the obligation to furnish the data referred to in the preceding sentence.

Sect.  9. Nullity.   The following shall be null and void:

• Contracts made between manpower suppliers and clients as well as contracts made between manpower supplier and temporary workers, where the supplier does not hold the licence required under section 1;
• Time limits set on the duration of the labour contract between the supplier and the temporary worker, unless they are justified on the objective grounds connected with the personal circumstance of the temporary worker;
• Termination by the manpower supplier of his labour contract with the temporary worker, if the supplier re-engage him within three months of such termination;
• Any stipulations to debar a client from engaging a temporary worker at a time when the latter is no longer under contract to the supplier;
• Any stipulations to debar a temporary worker from entering into a labour contract with a client at a time when the said worker is no longer under contract to the supplier

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Sect. 11. Other provisions relating to temporary labour contracts.   (1) The manpower supplier shall be bound to establish and sign a document embodying the basic terms of the labour contract. The said document shall indicate -

• The manpower supplier's company and its address, the issuing authority and the place and date of issue of the licence granted under section 1;
• The name and surname of the temporary worker, his place of residence and address and his date and place of birth;
• The nature of the activity to be performed by the temporary worker including any obligation to perform work abroad;
• The commencement and duration of the employment relationship as well as any grounds for limiting its duration to a specified term;
• The periods of notice for termination of the employment relationship;
• Remuneration and mode of payment;
• Benefits in the event of sickness, leave and temporary non-employment;
• Date and place of the establishment of the employment relationship.

Further points agreed upon may also be included in the document. The document provided for in the first sentence need not be drawn up where the employment relationship is established by a written agreement containing the indications required under the second sentence. The manpower supplier shall give the temporary worker the document established under the first or the fourth sentence and keep a copy of the said document for not less than three years.

(2) In addition the manpower supplier shall, at the time the contract is made, give the temporary worker a memorandum produced by the issuing authority which summarises the basic elements of this Act.  Alien temporary worker shall receive the memorandum and the document established under sub-section (1) in their own mother tongue.  The costs entailed in connection with the memorandum shall be borne by supplier.

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(5) The temporary worker shall not be bound to work for a client directly involved in a labour dispute.  In the event of a labour dispute covered by the preceding sentence the manpower supplier shall make it clear to the temporary worker that he is entitled to refuse to carry out such work.

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Sect. 12. Legal relationship between the manpower supplier and the client.   (1) The contract between the manpower supplier and the client must be made in writing. In the instrument the supplier must state whether he holds the licence prescribed in section 1.

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Sect. 15. Alien temporary workers without a work permit.   Any manpower supplier who in violation of section 1 places an alien worker who does not hold a work permit...at the disposal of a third party without being authorised to do so, shall be liable to a term of imprisonment not exceeding...or a fine of not less than..."

[Germany, Act Respecting the Provision of Manpower as a Commercial Operation (Manpower  Provision Act), 1972]