Understanding the Basis for the POEA Certification Process
For those who would like to understand the basis of the DFA/POEA certification process, the pertinent provisions of RA 10022 or the Amendments to the Migrant Workers Act state —
Section 3. Section 4 of Republic Act No. 8042, as amended, is hereby amended to rerad as follows:
“SEC. 4. Deployment of Migrant Workers. – The State shall allow the deployment of overseas Filipino workers only in countries where the rights of Filipino migrant workers are protected. The government recognizes any of the following as a guarantee on the part of the receiving country for the protection of the rights of overseas Filipino workers:
“(a) It has existing labor and social laws protecting the rights of workers, including migrant workers;
“(b) It is a signatory to and/or a ratifier of multilateral conventions, declarations or resolutions relating to the protection of workers, including migrant workers; and
“(c) It has concluded a bilateral agreement or arrangement with the government on the protection of the rights of overseas Filipino Workers:
Provided, That the receiving country is taking positive, concrete measures to protect the rights of migrant workers in furtherance of any of the guarantees under subparagraphs (a), (b) and (c) hereof.
“In the absence of a clear showing that any of the aforementioned guarantees exists in the country of destination of the migrant workers, no permit for deployment shall be issued by the Philippine Overseas Employment Administration (POEA).
“The members of the POEA Governing Board who actually voted in favor of an order allowing the deployment of migrant workers without any of the aforementioned guarantees shall suffer the penalties of removal or dismissal from service with disqualification to hold any appointive public office for five (5) years, Further, the government official or employee responsible for the issuance of the permit or for allowing the deployment of migrant workers in violation of this section and in direct contravention of an order by the POEA Governing Board prohibiting deployment shall be meted the same penalties in this section.
“For this purpose, the Department of Foreign Affairs, through its foreign posts, shall issue a certification to the POEA, specifying therein the pertinent provisions of the receiving country’s labor/social law, or the convention/declaration/resolution, or the bilateral agreement/arrangement which protect the rights of migrant workers.
“The State shall also allow the deployment of overseas Filipino workers to vessels navigating the foreign seas or to installations located offshore or on high seas whose owners/employers are compliant with international laws and standards that protect the rights of migrant workers.
“The State shall likewise allow the deployment of overseas Filipino workers to companies and contractors with international operations: Provided, That they are compliant with standards, conditions and requirements, as embodied in the employment contracts prescribed by the POEA and in accordance with internationally-accepted standards.”
Section 4. Section 5 of Republic Act No. 8042, as amended, is hereby amended to read as follows:
“SEC. 5. Termination or Ban on Deployment. – Notwithstanding the provisions of Section 4 hereof, in pursuit of the national interest or when public welfare so requires, the POEA Governing Board, after consultation with the Department of Foreign Affairs, may, at any time, terminate or impose a ban on the deployment of migrant workers.”
1. The law does not specify categories of work to be deemed as ill-suited for OFWs, rather it clearly indicates that the DFA through our foreign posts would have to certify the suitability of host countries as destinations for our workers. Based on these certifications, the POEA Governing Board would then issue a list of compliant and non-compliant countries.
2. The law is silent on “partially compliant” countries or those where the rights of skilled workers and professionals are protected but not so for household workers and other less skilled OFWs. Based on raw information, it seems that Gulf countries with a high concentration of OFWs fall under this category.
3. The law also has an exit provision wherein the POEA Governing Board after consultations with the DFA can terminate or impose deployment bans. If, for example, Afghanistan which is now non-compliant, is able to meet the any of items (a), (b), or (c) and also provides for social and legal measures to protect our OFWs, then it can be removed from the non-compliant list of countries through another POEA Governing Board Resolution.
4. The upside of this law is that the OFWs would have a reference guide to decide on which countries are considered safe in terms of legal and social protection. The downside is that this highly arbitrary move on the part of the Philippine government could bear serious diplomatic consequences some of which may not even be declared but quietly carried out by the so-called non-compliant countries in other arenas. For example, India is included as a non-compliant country and yet, India is recognized as a huge market for tourism and investments. How will one affect the other? Fellow ASEAN members Cambodia and Timor Leste are also on the list. Were they informed beforehand or will they find out about their “unsuitability” only through the Philippine media? Was the requisite diplomatic back-channeling done prior to the issuance of the non-compliant list by the POEA today?
5. My personal concern is on the implementation of the deployment bans in certain categories of work particularly for the partially-compliant countries. Unless properly implemented, the law could open the doors to human trafficking and illegal recruitment in certain countries.
On whether this law crosses the boundaries and infringes on the right of every Filipino to travel is something best left to legal experts and the courts to consider. The effects of the POEA certification process shall be seen after the fact, and so we can only hope that the noble intentions of this law will far outweigh its negative effects on our foreign and labor policies.