WITHDRAWAL OF APPLICATIONS: 10 MYTHS AND FACTS PART I
From Www.OFWGuideForum.com, Jun 8, 2015
The most common problems hounding an overseas applicant is the withdrawal of application to include the various documents submitted (e.g. passport, TOR, etc). There could be various reasons for their withdrawal but let's not dwell on it too much as our concern is to know the things that applicants should know in withdrawing their application before local recruitment agency.
Withdrawal of applications may be done at any stage of the overseas application process but the corresponding consequence varies.
Here are some myths and facts about withdrawal of applications:
1. Applicant must ask for employer's permission to withdraw application
Once a withdrawal of applications is made, the agency normally requires the applicant to make a withdrawal letter which is an acceptable practice. However, some, if not most, agencies require the applicant to still talk with the employer to seek permission because accordingly, only the employer can decide whether to allow the withdrawal or not.
This is a very flimsy reason. It is voluntary on the part of the applicant whether to talk to the employer regarding his/her withdrawal of application for professional ethics reason. The employer can't do anything if the applicant decides to withdraw his/her application even if the employer doesn’t want to, except to require the applicants to reimburse the cost they incur for processing of papers if said process had already started or completed.
Additionally, the employer may also blacklist¯ the applicant from ever seeking employment in their company and perhaps asking the same favor to the agency to do the same which is highly unethical. If the withdrawal was made after acceptance of job offer but before processing of papers, then there is really no need to talk to the employer.
2.Requiring applicants to pay processing fees even if no processing of papers were done
Recruitment agencies require an applicant to pay processing fees in cases of withdrawal of application even if there is no processing of papers because accordingly, the eventual withdrawal of application will not divest the recruiter of its rights to charge for expenses relating to job matching and placement.
The processing costs include visa, POEA processing fee and OWWA membership fees to be paid by the employer. (Section 2[a][c] and [d], Rule V, Part II of the 2002 POEA Rules and Regulations Governing the Recruitment and Employment of Land-based Workers).
Requiring an applicant to pay processing fees if there is no processing of papers to speak off is an absurd demand by the agency. If the applicant upon getting hired and was offered a job but later withdrew his/her application even before the start of the processing of papers process, he/she is not required by law to pay processing fees since the agency incur no damages that would warrant recovery of expenses. The processing of papers starts only upon submission of the required documents to the agency (e.g. TOR, diploma, NBI Clearance, etc), completion of necessary papers for processing by signing the same and most importantly, completion and submission of a medical exam result to the agency. Without the above-mentioned items, there can be no processing of papers, hence, no processing costs/fees are incurred by the local recruitment agency. To do otherwise is illegal and contrary to law.
3. Requiring applicants to pay placement fee in addition to withdrawal fee even without successful placement and deployment
Local recruitment agencies demand that applicants who were hired by employers or representative and whose papers had been already processed by the agency but later on decided to withdraw their application must pay placement fee despite the withdrawal in addition to the withdrawal fees as reimbursement for expenses incurred by the agency in processing the papers of the applicant.
The law is clear on this point. Recruitment agencies may charge and collect from its hired workers a placement fee in an amount equivalent to one-month salary, exclusive of documentation costs pertinent to Section 3, Rule V, Part II of the 2002 Rules and Regulations Governing the Recruitment and Employment of Land-based Workers; POEA Governing Board Resolution No. Series of 2001. Some agencies may argue that even in withdrawal of applications, the applicant is still mandated to pay the placement fee because in the first place the applicant was hired and his/her eventual withdrawal of application will not divest the agency of its right to collect placement fee. This line of argument is misplace since what the law actually referred to when it stated that "landbased agency may charge and collect from its hired workers a placement fee in an amount equivalent to one-month salary" connotes successful placement and deployment of workers. The term "hired" may be ambiguous as to what it really means, whether it connotes the applicant being hired only without mention of actual work or there must be successful placement and deployment (actual work). Reference must be made to Article 4 of the Philippine Labor Code to clear the ambiguity and it provides that any doubts in the implementation and interpretation of the provisions of the Labor Code, including its implementing rules and regulations, shall be resolved in favor of labor.
Ergo, placement fee shall only be collected for successful placement and deployment of workers. Collection of placement fees as part of the withdrawal fees is illegal and contrary to law.
4. Threatening the applicant with administrative case before POEA
For withdrawal of applications, recruitment agencies threatens applicant of possible administrative charges before the POEA for unprofessionalism or whatever flimsy reason they can come up.
If an applicant did not violate any rules and regulations of the POEA, he/she can't be the subject of any administrative case before said body. There is nothing in the Labor Code or the 2002 POEA Rules and Regulations Governing the Recruitment and Employment of Land-based Workers that provides for administrative penalties for overseas applicant who withdrew their application for whatever reason it may be.
On the contrary, recruitment agencies found violating any of the above-mentioned laws, rules and regulations are not only subjected to administrative charges for suspension/cancellation/revocation of license but more so, imposition of huge amount of fines and imprisonment of concerned agency officials for a very long time.
The only source of refuge that recruitment agencies may find in cases of withdrawal of applications is to recover expenses (processing costs, documentation fees, service fees, cancellation fees and other incidental costs) that were actually incurred by the employer or the agency and the same must be properly supported by receipts issued by BIR. Hence, the threat of filing an administrative case against the applicant is pure case of harassment and to instil fear so that he/she may yield to the whims and caprices of the recruitment agency concern.
5. Threatening the applicant with either the suspension or removal of license before the PRC
Local recruitment agencies would issue threats to applicants that he/she would either be suspended or have their license revoke by the PRC due to their withdrawal of applications because it is in violation of their Professional Oath and of the Code of Professional Ethics as set forth by the PRC.
The Professional Regulation Commission is vested with exclusive rights and jurisdiction to decide matters relating to suspension or cancellation/revocation of license of professional board passers, except for bar passers (lawyers) which falls under the authority of the Supreme Court, but only on meritorious grounds. Withdrawal of application by applicants seeking for overseas work for whatever reasons is not one of those meritorious grounds that warrants the attention of the PRC nor the suspension or cancellation/revocation of license, the PRC regulates professional board passers and only violations of PRC rules and regulations will merit either the suspension or cancellation/revocation of license of a board passer.
Ergo, the threat of suspension or removal of license is nothing but a threat without substance and is designed only as a flimsy move on the part of the agency to force the unsuspecting applicants to pay unreasonable amount of withdrawal fees.
6. Threatening the applicant of getting blacklisted¯from their agency, other employers and recruitment agencies
The agency would blacklist an applicant who cause the withdrawal of his/her application from ever securing the services of their agency, from the employers in which the applicant turn down the job opportunities, to other future employers from different companies and from the other licensed recruitment agencies in the Philippines.
There is nothing in the law that permits the agency to blacklist an applicant from ever securing overseas work either thru its agency or other agencies in the Philippines. Common sense would tell us that even if the threat of black listing would prove to be successful, the same may only apply on the concerned agency and not to the other agencies. Nor would the concerned agency be successful in convincing the millions of employer worldwide just to prove their point in order to get back to the applicant for its withdrawal of applications.
The recruitment of workers for overseas deployment is a money-making business and no fool recruiter would prevent an applicant blacklisted by a particular agency from ever securing overseas employment thru their respective agency. If an applicant somehow got blacklisted in a particular agency due to his/her withdrawal of application, he/she may always seek the services of other agencies in the Philippines. All an applicant has to do is to visit either the POEA website for the complete listing of license recruitment agencies in the Philippines and Workabroad.ph to get the details of overseas job vacancies per specialization, position, country and their corresponding interview dates, and submit his/her resume together with the required documents (e.g. copies of TOR, diploma, employment certificate, training/seminar certificate, passport, NBI clearance, PRC ID and NSO birth certificate or CENOMAR) to the agency that advertised the overseas job vacancies that one desires and await for the call of the agency in case shortlisted for final interview with either the employer or representative.
More MYTHS and FACTS » WITHDRAWAL OF APPLICATIONS: 10 MYTHS AND FACTS PART II