Tecnologías de la Información
CAPITULO 3: LOS SISTEMAS DE INFORMACIÓN EN LAS ORGANIZACIONES
3.1. LA ERA DE LA INFORMACIÓN
HELD: Synergy is a mere “labor-only” contractor.
There is "labor-only" contracting where the person supplying workers to an employer does not have substantial capital or investment in the form of tools, equipment, machineries, work premises, among others, AND the workers recruited and placed by such person are performing activities which are directly related to the principal business of such employer. In such cases, the person or intermediary shall be considered merely as an agent of the employer who shall be responsible to the workers in the same manner and extent as if the latter were directly employed by him.
One who claims to be an independent contractor has to prove that he contracted to do the work according to his own methods and without being subject to the employer's control except only as to the results.
While petitioner claimed that it was Synergy's supervisors who actually supervised respondents, it failed to present evidence thereon. It did not even identify who were the Synergy supervisors assigned at the workplace.
Respondents having performed tasks which are usually necessary and desirable in the air transportation business of petitioner, they should be deemed its regular employees and Synergy as a labor-only contractor.
OREGAS v. NLRC, 559 SCRA 153
FACTS: Petitioners Rommel C. Oregas, Darwin R. Hilario and Sherwin A.
Arboleda worked as valet parking and door attendants in respondent Dusit Hotel Nikko. They have employment contracts with respondent FVA. In 2000, FVA recalled petitioners from Dusit. Petitioners then instituted a complaint for illegal dismissal, regularization, premium pay for holiday and rest day, holiday pay, service incentive leave pay, 13th month pay and attorney's fees against respondents Dusit, Philippine Hotelier's, Inc. and FVA.
Petitioners alleged that despite the length of their service, Dusit never
granted them the status and benefits of a regular employee. Thus, when the rank and file employees' union of Dusit learned that petitioners were entitled to regularization, Dusit immediately terminated their services due to "end of contract."
On 3/6/2001, Labor Arbiter Potenciano S. Canizares, Jr. dismissed the complaint for lack of merit. Petitioners failed to prove that they were employees of Dusit. Petitioners admitted that they transferred to FVA after their previous placement agencies terminated their contracts of services with Dusit. Labor Arbiter Canizares also noted that petitioners signed application and employment contracts with FVA and were under its payrolls and accounts. Thus, FVA was petitioners' employer. Finally, he ruled that petitioners were merely recalled and not dismissed from the service by FVA.
On appeal, the NLRC issued a Resolution dated August 25, 2003, modifying the decision of Labor Arbiter. The NLRC observed that the four-fold test in determining the existence of an employer-employee relationship is present in petitioners' relationship with FVA. On the matter of selection and engagement, records showed that petitioners applied with and were employed by FVA. Although they were required to test drive by Dusit, it was done only to verify if they had the necessary skills and competence required by the job. On the matter of control, it was established that petitioners maintained their daily time records with FVA. On the matter of dismissal, FVA exercised its power to dismiss when it recalled petitioners from Dusit. Finally, on the matter of payment of wages, it is undisputed that petitioners were under the payrolls and accounts of FVA.
Nevertheless, the NLRC noted that after petitioners' recall, they were no longer given new assignments. Since more than six months have already lapsed, petitioners were deemed to have been constructively dismissed and therefore entitled to separation pay of one-half month pay for every year of service.
Petitioners elevated the case to the CA which affirmed the NLRC resolution.
Reconsideration having been denied, petitioners raises the instant petition.
ISSUES
WON Respondent FVA is an independent contractor
WON there an EMPLOYER-EMPLOYEE RELATIONSHIP exists between Petitioners and Respondent Hotel
HELD
1.
YES. the Labor Arbiter, NLRC and the CA were unanimous in finding that FVA was a legitimate job contractor. Among the circumstances that established the status of FVA as a legitimate job contractor are: (1) FVA is registered with the DOLE and the DTI;(2) FVA has a Contract for Services with Dusit for the supply of valet parking and door attendant services;(3) FVA has an independent business and provides valet parking and door attendant services to other clients like Mandarin Oriental, Manila Hotel, Peninsula Manila Hotel, Westin Philippine Plaza, Golden BHotel, Pan Pacific Manila Hotel, and Strikezone Bowling Lane;and (4) FVA's total assets from 1997 to 1999 amount to P1,502,597.70 to P9,021,335.13.In addition, it provides the uniforms and lockers of its employees.
2.
NO. By applying the four-fold test used in determining an employer-employee relationship, the status of FVA as the employer of petitioners is indubitably established.a.
Petitioners applied and signed employment contracts with FVA. They were merely assigned to Dusit conformably with the Contract for Services between FVA and Dusit.b. FVA assigned a supervisor in Dusit to monitor petitioners' attendance, leaves of absence, performance and conduct.
Petitioners also maintained their daily time records with FVA.
c. Petitioners were duly notified by FVA that they would be assigned to Dusit for five months only. Thereafter, they may either be recalled for transfer to other clients or be reassigned to Dusit depending on the result of FVA's evaluation of their performance. In this case, FVA opted to recall petitioners from Dusit.
d. While FVA billed Dusit for the services rendered, it was actually FVA which paid petitioners' salaries. Worthy of note, FVA registered petitioners with the Bureau of Internal Revenue and the Social Security System as its employees.
In summary, this Court accepts as established the fact that FVA is a legitimate job contractor and, in contemplation of law, the employer of petitioners.
DISPOSITION: The instant petition is DENIED for lack of merit. CA’s decision is AFFIRMED.
ESCARIO v. NLRC | GR No 124055 | June 8, 2000
FACTS: Petitioners allege that they were employed by CMC as
merchandisers. Among the tasks assigned to them were the withdrawing of stocks from the warehouse, the fixing of prices, price-tagging, displaying of merchandise, and the inventory of stocks. These were done under the control, management and supervision of CMC. The materials and equipment necessary in the performance of their job, such as price markers, gun taggers, toys, pentel pen, streamers and posters were provided by CMC. Their salaries were being paid by CMC. According to petitioners, the hiring, control and supervision of the workers and the payment of salaries, were all coursed by CMC through its agent D.L.
Admark in order for CMC to avoid its liability under the law.
On 7 February 1992, petitioners filed a case against CMC before the Labor Arbiter for the regularization of their employment status. During the pendency of the case before the Labor Arbiter, D.L. Admark sent to petitioners notice of termination of their employment effective 16 March
1992. Hence, their complaint was amended so as to include illegal
dismissal as cause of action. Thereafter, twenty-seven more persons joined as complainants. CMC filed a motion to implead as party-defendant D. L.
Admark and at the same time the latter filed a motion to intervene. Both motions were granted.
CMC, on the other hand, denied the existence of an employer-employee relationship between petitioner and itself. Rather, CMC contended that it is D.L. Admark who is the employer of the petitioners. While CMC is engaged in the manufacturing of food products and distribution of such to
wholesalers and retailers, it is not allowed by law to engage in retail or direct sales to end consumers. It, however, hired independent job contractors such as D.L. Admark, to provide the necessary promotional activities for its product lines.
For its part, D.L. Admark asserted that it is the employer of the petitioners.
Its primary purpose is to carry on the business of advertising, promotion and publicity, the sales and merchandising of goods and services and conduct survey and opinion polls. As an independent contractor it serves several clients among which include Purefoods, Corona Supply, Firstbrand, Splash Cosmetics and herein private respondent California Marketing.
On 29 July 1994, the Labor Arbiter rendered a decision finding that petitioners are the employees of CMC as they were engaged in activities that are necessary and desirable in the usual business or trade of CMC.1 In justifying its ruling, the Labor Arbiter cited the case of Tabas vs.
CMC which, likewise, involved private respondent CMC.
On appeal, the NLRC set aside the decision of the Labor Arbiter. It ruled that no employer-employee relationship existed between the petitioners and CMC. It, likewise, held that D.L. Admark is a legitimate independent contractor, hence, the employer of the petitioners. Finding no valid grounds existed for the dismissal of the petitioners by D.L. Admark, it ordered their reinstatement. The dispositive portion of the decision reads:
WHEREFORE, premises considered, the appealed judgment is modified.
Intervenor DL ADMARK is ordered to reinstate the eighty one (81)
complainants mentioned in the appealed decision to their former positions with backwages from March 16, 1992 until they are actually reinstated.
The award of attorneys fees equivalent to ten (10%) of the award is deleted for lack of basis. Petitioners filed a motion for reconsideration but the same was denied by the NLRC for lack of merit. Hence, this petition.
ISSUE: Whether or not the petitioners are employees of the company.
HELD: The court ruled that there is no employer-employee relationship and that petitioners are employees of the agent. The agent is a legitimate independent contractor. Labor-only contractor occurs only when the contractor merely recruits, supplies or places workers to perform a job for
a principal. The labor-only contractor doesn’t have substantial capital or investment and the workers recruited perform activities directly related to the principal business of the employer. There is permissible contracting only when the contractor carries an independent business and undertakes the contract in his won manner and method, free from the control of the principal and the contractor has substantial capital or investment. The agent, and not the company, also exercises control over the petitioners. No documents were submitted to prove that the company exercised control over them. The agent hired the petitioners. The agent also pays the petitioners, no evidence was submitted showing that it was the company paying them and not the agent. It was also the agent who terminated their services. By petitioning for regularization, the petitioners concede that they are not regular employees.
ALIVIADO v. PROCTER and GAMBLE PHILS
F: Petitioners worked as merchandisers of P&G from various dates,
allegedly starting as early as 1982 or as late as June 1991, to either May 5, 1992 or March 11, 1993.
They all individually signed employment contracts with either Promm-Gem or SAPS for periods of more or less five months at a time. They were assigned at different outlets, supermarkets and stores where they handled all the products of P&G. They received their wages from Promm-Gem or SAPS.
SAPS and Promm-Gem imposed disciplinary measures on erring
merchandisers for reasons such as habitual absenteeism, dishonesty or changing day-off without prior notice.
P&G is principally engaged in the manufacture and production of different consumer and health products, which it sells on a wholesale basis to various supermarkets and distributors.[8] To enhance consumer awareness and acceptance of the products, P&G entered into contracts with Promm-Gem and SAPS for the promotion and merchandising of its products.
In December 1991, petitioners filed a complaint against P&G for regularization, service incentive leave pay and other benefits with
damages. The complaint was later amended to include the matter of their subsequent dismissal.
Ruling of the Labor Arbiter: Labor Arbiter dismissed the complaint for lack of merit and ruled that there was no employer-employee relationship between petitioners and P&G. He found that the selection and
engagement of the petitioners, the payment of their wages, the power of dismissal and control with respect to the means and methods by which their work was accomplished, were all done and exercised by Promm-Gem/SAPS. He further found that Promm-Gem and SAPS were legitimate independent job contractors.
Ruling of the NLRC: The appeal of complainants is hereby DISMISSED and the decision appealed from AFFIRMED.
Ruling of the Court of Appeals: CA likewise denied the petition.
Hence, this petition.
Petitioners’ Arguments: Petitioners insist that they are employees of P&G. They claim that they were recruited by the salesmen of P&G and were engaged to undertake merchandising chores for P&G long before the existence of Promm-Gem and/or SAPS. They further claim that when the latter had its so-called re-alignment program, petitioners were instructed to fill up application forms and report to the agencies which P&G created.
Respondents’ Arguments: On the other hand, P&G points out that the instant petition raises only questions of fact and should thus be thrown out as the Court is not a trier of facts. It argues that findings of facts of the NLRC, particularly where the NLRC and the Labor Arbiter are in agreement, are deemed binding and conclusive on the Supreme Court.
Issues: (1) whether P&G is the employer of petitioners; (2) whether petitioners were illegally dismissed; and (3) whether petitioners are entitled for payment of actual, moral and exemplary damages as well as litigation costs and attorney’s fees.
H: The petition has merit. As a rule, the Court refrains from reviewing factual assessments of lower courts and agencies exercising adjudicative functions, such as the NLRC. Occasionally, however, the Court is
constrained to wade into factual matters when there is insufficient or insubstantial evidence on record to support those factual findings; or when too much is concluded, inferred or deduced from the bare or incomplete facts appearing on record.[23] In the present case, we find the need to review the records to ascertain the facts. In order to resolve the issue of whether P&G is the employer of petitioners, it is necessary to first determine whether Promm-Gem and SAPS are labor-only contractors or legitimate job contractors.
In the event that the contractor or subcontractor fails to pay the wages of his employees in accordance with this Code, the employer shall be jointly and severally liable with his contractor or subcontractor to such employees to the extent of the work performed under the contract, in the same manner and extent that he is liable to employees directly employed by him.
There is “labor-only” contracting where the person supplying workers to an employer does not have substantial capital or investment in the form of tools, equipment, machineries, work premises, among others, and the workers recruited and placed by such person are performing activities which are directly related to the principal business of such employer. In such cases, the person or intermediary shall be considered merely as an agent of the employer who shall be responsible to the workers in the same manner and extent as if the latter were directly employed by him.
Clearly, the law and its implementing rules allow contracting arrangements for the performance of specific jobs, works or services. Indeed, it is
management prerogative to farm out any of its activities, regardless of whether such activity is peripheral or core in nature. However, in order for such outsourcing to be valid, it must be made to an independent
contractor because the current labor rules expressly prohibit labor-only contracting.
In the instant case, the financial statements of Promm-Gem show that it has authorized capital stock of P1 million and a paid-in capital, or capital available for operations, of P500,000.00 as of 1990. It also has long term assets worth P432,895.28 and current assets ofP719,042.32. Promm-Gem has also proven that it maintained its own warehouse and office space with a floor area of 870 square meters. It also had under its name three
registered vehicles which were used for its promotional/merchandising business. Promm-Gem also has other clients aside from P&G. Under the circumstances, we find that Promm-Gem has substantial investment which relates to the work to be performed. These factors negate the existence of the element specified in Section 5(i) of DOLE Department Order No. 18-02.
The records also show that Promm-Gem supplied its complainant-workers with the relevant materials, such as markers, tapes, liners and cutters, necessary for them to perform their work. Promm-Gem also issued uniforms to them. It is also relevant to mention that Promm-Gem already considered the complainants working under it as its regular, not merely contractual or project, employees. This circumstance negates the
existence of element (ii) as stated in Section 5 of DOLE Department Order No. 18-02, which speaks of contractual employees. This, furthermore, negates – on the part of Promm-Gem – bad faith and intent to circumvent labor laws which factors have often been tipping points that lead the Court to strike down the employment practice or agreement concerned as contrary to public policy, morals, good customs or public order. Under the circumstances, Promm-Gem cannot be considered as a labor-only
contractor. We find that it is a legitimate independent contractor.
Furthermore, the petitioners have been charged with the merchandising and promotion of the products of P&G, an activity that has already been considered by the Court as doubtlessly directly related to the
manufacturing business, which is the principal business of
P&G. Considering that SAPS has no substantial capital or investment and the workers it recruited are performing activities which are directly related to the principal business of P&G, we find that the former is engaged in
“labor-only contracting”.
WHEREFORE, the petition is GRANTED. The case be REMANDED to the Labor Arbiter for the computation.
Sonza vs. ABS-CBN Broadcasting Corporation | GR 138051 | June 10, 2004