• A case of OFW contract substitution

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    Persida Acosta

    Persida Acosta

    Dear PAO,
    I am applying for employment abroad. I am certain that the recruitment agency is a le–gitimate one as I have verified its license with the Philippine Overseas Employment Adminis–tration. However, I have ques–tions regarding the terms of the contract I signed. The job des–cription does not match the actual work they told me I would do abroad. Moreover, they of–fered a financing scheme with a certain financing company to cover the expenses to be incurred in connection with my employ–ment. Are all these legal?
    Karlo

    Dear Karlo,
    The law that deals with your concern is Republic Act (R.A.) 8042 or the Migrant Workers and Overseas Filipinos Act. This law provides protection to our overseas Filipino workers (OFWs). Although the title of the law may seem to deal with people already working abroad, this is not so. Under the law, an OFW refers to a person who is to be engaged, is engaged or has been engaged in a remunerated activity in a state of which he or she is not a citizen or on a vessel navigating foreign seas other than a government ship used for military or non-commercial purposes or on an installation located offshore or on the high seas; to be used interchangeably with migrant worker (Sec. 3 (a), R.A. No. 8042, as amended by R.A. 10022). Hence, the law protects even those who are being recruited for over- seas employment.

    One of the safeguards instituted by the law to applicants for overseas employment is the approval of the employment contract by the Department of Labor and Employment (DOLE). Through this mechanism, our government ensures that OFWs are not placed at a disadvantage in bargaining for the terms and conditions of their employment.

    Upon approval of the contract, the recruitment agency or even the foreign principal may not unilaterally change of modify the same to the detriment of the overseas Filipino worker. Such practice is known as contract substitution for which the recruitment agency may be held accountable (PERT/CPM Manpo–wer Exponent Co., Inc. v. Vinuy, et. al., G.R. 197528, September 5, 2012). In fact, the law specifically provides that the substitution or alteration of employment contracts approved and verified by the DOLE to the prejudice of the worker without the approval of the said office is considered a form of illegal recruitment (Sec. 6 (i), R.A. 8042).

    It is clear in your case that the recruitment agency plans to substitute or alter your employment contract by deploying you in a job that is different from that which you signed for. This is expressly prohibited by law.

    As to the loan agreement with a financing company that the recruitment agency is offering, there is no law prohibiting them from offering such an arrangement to an OFW. Making a mere offer is not illegal. However, if the recruitment agency requires an OFW to secure a loan from specific company or person, then the act becomes illegal. R.A. 8042 states that it is unlawful to impose a compulsory and ex–clusive arrangement whereby an OFW is required to avail of a loan only from specifically designated institutions, entities or persons (Sec. 6 (1).

    You mentioned that the financing scheme was offered to cover your employment expenses. In this regard, be advised that for land-based workers, the recruit–ment agency is allowed to charge placement and recruitment fees to an OFW only if the country where he will be deployed allows it, and only in an amount equivalent to one month’s salary, exclusive of documentation costs. The docu–mentation costs mentioned include expenses for passport, National Bureau of Investigatiom/police/barangay clearance, au–thentication, birth certificate, Medicare, trade test, inoculation when required by host country, and medical examination fees (Part II, Rule V, Sec. 3, POEA Rules and Regulations, Governing the Recruitment and Employment issued on February 4, 2002).

    We hope the foregoing suf–ficiently answered your query. Please bear in mind that the opinion given above is based on the facts you narrated and our appreciation of the same. This opinion may not apply should facts and circumstances change.

    Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net

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