POEA clears Sentosa of illegal recruitment raps
By Veronica Uy
INQUIRER.net
First Posted 01:19pm (Mla time) 09/11/2007
MANILA, Philippines -- The Philippine Overseas Employment Administration (POEA) has “dismissed for utter lack of merit” charges of illegal recruitment, misrepresentation, and contract substitution filed against Sentosa Recruitment Agency by 26 Filipino health professionals.
The 30-page decision, signed by POEA Administrator Rosalinda Baldoz and dated September 4 but released through the agency’s docket section the afternoon of September 10, ruled: “In this instant case however no regulation on overseas employment was violated by the respondents in the recruitment and deployment of the complainants to its principal in the United States. Wherefore, premises considered, these cases are hereby dismissed for utter lack of merit.”
This follows the August 31, 2007 decision of the US Department of Justice’s Office of the Special Counsel dismissing the discrimination case filed by the same health professionals in the US, which their lawyer said has already been rendered moot and academic as the US DOJ’s Office of the Chief Administrative Hearing Officer (Ocaho) took jurisdiction over the complaints.
This case has reached the corridors of power, both here and in the US.
In the 13th Congress, Senate Minority Leader Aquilino Pimentel Jr. delivered a privilege speech on the case after then presidential chief of staff Michael Defensor called up the POEA, allegedly to intervene on behalf of Sentosa at the request of New York Senator Charles Schumer.
In the current Congress, the 14th, Senator Panfilo Lacson took the cudgels for the Filipino health professionals and also called for a Senate inquiry into the case.
The Filipino health professionals, who have become known as Sentosa 26++, include doctor-turned-nurse Elmer Jacinto who topped the 2004 medical professional licensure exam.
On the illegal recruitment charge, the POEA ruled that it “cannot impute any malice or bad faith against the respondents because, as admitted by the complainants themselves, the recruitment was totally at no cost to them and they were all grateful.”
“They, however, justify their actions by saying that they are concerned more for the protection of other nurses who are yet to be hired against the exploitative and discriminatory practices of the respondents,” it added.
Citing its own records, POEA said that since 2004, Sentosa has deployed a total of 302 nurses, “totally at no cost to the workers, all using EB-3 Immigrant Visa.”
Now, Sentosa has 2,196 job orders for the positions of nurse, nurse staff, therapists, healthcare worker, and clerks for the operations of its principal, the Sentosa Care LLC and its affiliated companies in the United States.
“As to alleged misrepresentation relating to publication of false information, this administration finds that no such false information was published in flyers or advertised in the websites that will constitute the alleged misrepresentation,” the decision read.
The POEA said the advertisement in the website of Sentosa Recruitment Agency “clearly reveals the full disclosure by the agency about the corporate setup between the Sentosa Care LLC, otherwise known as the Sentosa Care Group, and its affiliated companies as the direct employers.”
The POEA said Sentosa’s affiliate companies are listed on its website, www.sentosarecruitment.com.
“Furthermore, the affiliates where complainants in this case were supposed to work, and where they actually worked, are all duly accredited with the POEA,” it said.
The complainants also said they were made to work as agency employees and not as direct-hired employees, in violation of their contract.
“Let it be correctly stated that since all of them were hired by the Sentosa Recruitment Agency, they are agency-hired for purposes of POEA rules and regulations as distinguished from direct-hired where recruitment is done with no third-party intervention either through a local agency in the Philippines or a foreign placement agency in the host country,” the POEA said.
The POEA said Sentosa Recruitment Agency is the local agency of the direct foreign principal which is the Sentosa Care LLC and its affiliated companies.
On the allegation that the complainants did not get their salaries from Sentosa, the POEA accepted Sentosa’s explanation that this is so because its payroll, purchasing, and other administrative operations have been outsourced.
“These explanations remained unrebutted by the complainants despite vast opportunity to refute the same,” the POEA ruling said.
“We did not find it difficult to understand this outsourcing scheme considering the complexities of modern corporate setup and the rise of big businesses, making such outsourcing scheme an acceptable and sound business practice, not prohibited by law,” it added.
On the complaint that Sentosa failed to pay the health professionals the published hourly rates of $22 to $35, the POEA cited the pay stubs attached to the complainants’ affidavit-complaints which showed “that upon release of their permits to work, they actually received salaries of $22 per hour which were increased up to $25.5 per hour as they progressed with their work.”
That the complainants received $12 to $14 per hour only during the brief transition before they obtained permits to work “appears reasonable because as immigrant nurses, complainants cannot practice their professions or work without the permit to work required by US regulations,” the POEA said.
For other disagreements in the computation of overtime pay and night shift differentials, the POEA said it is beyond their jurisdiction and should be decided by the National Labor Relations Commission.
The POEA also ordered that a copy of the ruling be furnished the Philippine consulate in New York as many of the complainants are already working in US.
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