Pitfalls of being a ‘direct hire’

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ATTY. DODO DULAY

ATTY. DODO DULAY

ASK any overseas Filipino worker (OFW) how they found their job and they will most probably tell you that they applied or were recruited by a so-called placement agency, more formally known as Philippine recruitment agencies (PRAs). These “agency-hired” workers are matched by PRAs with potential employers abroad looking for different workers for an office, factory or residence.

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This matching is done by the PRAs through their overseas agencies or counterparts abroad – the foreign placement agency (FPA). The FPAs have a pool of available jobs abroad while the PRA supplies the workers needed by PRAs. Together, both the FPA and PRA work hand in hand to provide overseas employment to many Filipinos.

Of course, a few of our OFWs would say that they directly applied with or were directly hired by their foreign employer, that is, they secured a job abroad without the intervention or assistance of a local recruitment agency. These “direct hires” are usually OFWs who found overseas employment through the Internet, or were introduced and recommended by their relative-OFWs working abroad to foreign employers, or who met and were recruited by another foreign employer during their stint abroad.

Although we’ve heard many stories of people finding work abroad by themselves, not many of our kababayan are aware that direct hiring is actually banned in the country. Section 123 of the 2016 Revised POEA Rules and Regulations prohibits foreign employers from directly hiring Filipinos for overseas jobs. This is the general rule.

This ban on direct hiring, however, has a few exceptions.

Members of the diplomatic corps, international organizations, heads of state and government officials with the rank of deputy minister (or undersecretary) or higher, are exempted from the ban. Lower ranking foreign government officials may also hire directly provided the Philippine Overseas Labor Office (POLO) —the office of the Department of Labor and Employment abroad —favorably endorses the direct employment of Filipinos.

Professionals and highly skilled workers can also be hired directly provided that their work contracts have terms and conditions above and beyond the standards set by the POEA. Likewise, exempted from the ban are workers hired by a Filipino relative or family member who is a permanent residence of the country where he or she intends to work.

But being an exception, the direct hiring of Filipinos require the approval of the Secretary of the Department of Labor and Employment (DOLE). In recent months, Labor Secretary Silvestre Bello 3rd has been quite strict in approving direct hires so much so that he has been requiring applicants to personally appear before him for a face-to-face interview.

This was after DOLE discovered that some OFWs not covered by existing exemptions or not qualified for direct hiring, have been deployed without passing through POEA-accredited recruitment firms.

Due to the strict vetting process for direct hires, the number of workers directly hired by foreign employers constitute just around 10 percent of the total number of OFWs leaving for work abroad every year. Last year, there were only 7,046 direct-hire OFWs granted a clearance to work abroad. And as of last month, only 3,350 workers were allowed to leave under the direct-hire scheme, against 614,748 agency-hired workers deployed during the same period.

Despite the more rigorous screening for direct-hires, there are many aspiring OFWs who still prefer to go through the direct hiring route because it’s much cheaper than going through a local recruitment agency. True, skilled workers hired directly by foreign employers don’t have to pay the standard placement fee (equivalent to one month’s basic salary) required of agency-hired OFWs. But the downside is that direct-hire OFWs enjoy less protection than agency-hired workers.

Without a local placement agency, direct-hire workers have to put their faith in the honesty, integrity or reputation of their employers when it comes to honoring the terms of their contract. I’ve heard stories of some direct-hire workers leaving for abroad only to find out soon that the promised jobs were not available, or worse, non-existent. Others had their contract or work changed by their employers without their consent soon after arriving in the destination country.

Sure, they could sue (if at all, given the language barrier) but they only have their foreign employer to run after. Unable to work or transfer employers during the pendency of the lawsuit against their employer, many OFWs became destitute and are forced to return home without collecting a cent.

Unlike foreign direct employers, PRAs are required to post a performance bond of at least P1 million, thus guaranteeing the payment of the money claims of an agency-hired OFW in case the FPA or the foreign employer violates the contract of employment. Moreover, both the PRA and FPA can be held jointly liable by the agency-hired OFW for violations committed by the foreign employer, giving aggrieved workers more avenues to seek redress.

Not all direct-hire OFWs, however, end up in a dire situation. But it also cannot be denied that migrant workers who do not go through POEA-accredited PRAs are more exposed to abuse and exploitation, and even human trafficking. This is why public policy dictates that direct hiring should be the exception rather than the rule.

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