Feagle Construction Corp. vs.

Gayda, 186 SCRA 589

(Labor Standards Recruiter not solidarily liable when workers agreed not to hold the recruiter liable) Facts : Herein respondents, 40 Filipino workers formerly employed with Algosaibi-Bison, Ltd. Requested petitioner recruiter to return them to their job site in Saudi Arabia. Petitioner informed the workers that it did not want to send back any workers because of the big risk due to the financial difficulties of Algosaibi-Bison Ltd.. Respondent workers assured petitioner that they were willing to assume the risk and emphasized that they were willing to sign a written statement indicating that they would not hold petitioner liable for any delay or non-payment of their salaries and any amounts due them from Algosaibi-Bison, Ltd. It was under the foregoing circumstances that petitioner reluctantly agreed to send back private respondents to Saudi Arabia to help them in their dire financial need if they would sign the aforementioned statements. When Algosaibi-Bison Ltd went into bankruptcy, private respondents filed with the POEA a complaint against petitioner for unpaid claims with the liquidator of Algosaibi-Bison Ltd. Issue : WON petitioner may be held solidarily liable with the foreign employer for any unpaid claims of private respondents against their foreign principal employer even as they have a stipulation to this effect. Held : No. As a rule, a recruiter is solidarily liable with unpaid wages of workers sent abroad. Case at bar is an exception because it was the workers who persuaded recruiter to send them back abroad despite knowledge that foreign employer might not pay their wages and they agreed not to hold recruiter responsible thereof.

Ta as vs. Cali!ornia "anu!acturing Co., #nc. $169 SCRA %9&, GR 8'68'(

(Labor Standards Both employer and labor only contractor may be liable) Facts : Petitioners filed a petition in the NLRC for reinstatement and payment of various benefits against California Manufacturing Company. The respondent company then denied the existence of an employer-employee relationship between the company and the petitioners. Pursuant to a manpower supply agreement, it appears that the petitioners prior their involvement with California Manufacturing Company were employees of Livi Manpower service, an independent contractor, which assigned them to work as promotional merchandisers. The agreement provides that: California has no control or supervisions whatsoever over [Livi's] workers with respect to how they accomplish their work or perform [Californias] obligation It was further expressly stipulated that the assignment of workers to California shall be on a seasonal and contractual basis; that [c]ost of living allowance and the 10 legal holidays will be charged directly to [California] at cost ; and that [p]ayroll for the preceding [sic] week [shall] be delivered by [Livi] at [California's] premises. Issue : WON principal employer is liable. Held : Yes. The existence of an employer-employee relation cannot be made the subject of an agreement. Based on Article 106, labor-only contractor is considered merely as an agent of the employer, and the liability must be shouldered by either one or shared by both. There is no doubt that in the case at bar, Livi performs manpower services, meaning to say, it contracts out labor in favor of clients. We hold that it is one notwithstanding its vehement claims to the contrary, and notwithstanding the provision of the contract that it is an independent contractor. The nature of ones business is not determined by self-serving appellations one attaches thereto but by the tests provided by statute and prevailing case law. The bare fact that Livi maintains a separate line of business does not extinguish the equal fact that it has provided California with workers to pursue the latters own business. In this connection, we do not agree that the petitioners had been made to perform activities which are not directly related to the general business of manufacturing, Californias purported principal operation activity. Livi, as a placement agency, had simply supplied California with the manpower necessary to carry out its (Californias) merchandising activities, using its (Californias) premises and equipment.

Ace )avigation Co., #nc. vs CA, **8 SCRA &'

(Labor Standards Tips) Facts : Under the POEA approved contract of employment, private respondent, who works as a bartender on board the vessel MV Orient Express, shall receive a monthly basic salary of US S450.00, flat rate, including overtime pay for 12 hours of work daily plus tips of US S2.00 per passenger per day. He was also entitled to 2.5 days of vacation leave with pay each month. Private respondent filed a complaint before the labor arbiter for vacation leave pay and unpaid tips amounting to US S36,000.00. The Labor Arbiter ordered the recruitment agency and the principal to pay jointly and severally private respondent his vacation leave pay. The claim for tips was dismissed for lack of merit. On appeal, NLRC ordered the payment of unpaid tips. Issue : WON employers are liable to pay tips. Held : No. Payment for overtime was included in the monthly salary, the supposed tips mentioned in the contract should be deemed included thereat. It is presumed that the parties were aware of the plain, ordinary and common meaning of the word tip. A bartender cannot feign ignorance on the practice of tipping and that tips are normally paid by customers and not by the employer. It has been said that a tip denotes a voluntary act, but whether considered from the standpoint of the giver or the recipient, a tip lacked the essential element of a gift, namely, the free bestowing of a gratuity without a consideration, and that despite its apparent voluntariness, there is an element of compulsion in tipping.

Glo e "ac+ay Ca le and Radio Corp. vs ),RC, 16* SCRA &1- G.R. )o. ,.&%156
(Labor Standards - COLA, payment of wage in unworked days) Facts : Wage Order No. 6 increased the cost-of-living allowance (COLA) of non-agricultural workers in the private sector. Petitioner Corporation complied with said Order by paying its monthly-paid employees the mandated P3.00 per day COLA. In its computation, Petitioner Corporation multiplied the P3.00 daily COLA by 22 days, which is the number of working days in the company. Respondent Union disagreed with the computation alleging that prior to the effectivity of the Wage Order, Petitioner Corporation had been computing and paying the COLA on the basis of 30 days per month and that this constituted an employer practice, which should not be unilaterally withdrawn. The Labor Arbiter sustained the position of Petitioner Corporation by holding that the monthly COLA should be computed on the basis of 22 days, since the evidence showed that there are only 22 days in a month for monthly-paid employees in the company. The NLRC reversed the Labor Arbiter on appeal, holding that Petitioner Corporation was guilty of illegal deductions considering that COLA should be paid and computed on the basis of 30 days since workers paid on a monthly basis are entitled to COLA on days unworked; and the full allowance enjoyed by Petitioner Corporations monthly-paid employees before the CBA executed between the parties constituted voluntary employer practice, which cannot be unilaterally withdrawn. Issue : WON the computation and payment of COLA on the basis of 30 days per month constitute an employer practice which should not be unilaterally withdrawn. Held : No. Section 5 of the Rules Implementing Wage Orders Nos. 2, 3, 5 and 6 provides that all covered employees shall be entitled to their daily living allowance during the days that they are paid their basic wage, even if unworked. The primordial consideration for entitlement of COLA is that basic wage is being paid. The payment of COLA is mandated only for the days that the employees are paid their basic wage, even if said days are unworked. On the days that employees are not paid their basic wage, the payment of COLA is not mandated. Moreover, Petitioner Corporation cannot be faulted for erroneous application of a doubtful or difficult question of law. Since it is a past error that is being corrected, no vested right may be said to have arisen nor any diminution of benefit under Article 100 of the Labor Code may be said to have resulted by virtue of the correction.

Traders Royal /an+ vs ),RC, 189 SCRA 0&%- G. R. )o. 88168, August *', 199'
(Labor Standards bonus, diminution of benefits) Facts : Respondent union filed a letter-complaint against petitioner TRB for the diminution of benefits being enjoyed by the employees since time immemorial, e.g. mid-year bonus, from 2 months gross pay to 2 months basic and year-end bonus from 3 months gross to only 2 months. Petitioner insisted that it had paid the employees holiday pay. The practice of giving them bonuses at years end, would depend on how profitable the operation of the bank had been. NLRC found TRB guilty of diminution of benefits due to the private respondents and ordered it to pay the said employees claims for differentials in their holiday, mid-year, and year-end bonuses. Issue : Whether or not bonuses are part of labor standards. Held : No. A bonus is a gratuity or act of liberality of the giver which the recipient has no right to demand as a matter of right. It is something given in addition to what is ordinarily received by or strictly due the recipient. The granting of a bonus is basically a management prerogative which cannot be forced upon the employer who may not be obliged to assume the onerous burden of granting bonuses or other benefits aside from the employees basic salaries or wages.

"illares vs. )ational ,a or Relations Co11ission, *'5 SCRA 5'' 219993

(Labor Standards wages, customary facilities) Facts : Article 97, par. (f), of the Labor Code defined wage as the remuneration or earnings, however designated, capable of being expressed in terms of money, whether fixed or ascertained on a time, task, piece, or commission basis, or other method of calculating the same, which is payable by an employer to an employee under a written or unwritten contract of employment for work done or to be done, or for services rendered or to be rendered and includes the fair and reasonable value, as determined by the Secretary of Labor, of board, lodging, or other facilities customarily furnished by the employer to the employee. 116 employees of Paper Industries Corporation of the Philippines (PICOP) in Bislig, Surigao del Sur were terminated under a retrenchment program as a solution to a major financial setback. Aside from their one month basic pay, petitioners believe that the allowances they allegedly regularly received on a monthly basis should have also been included in the computation of their separation. PICOP grants the following allowances: 1. 2. Staff allowance/managersallowanceto those who live in rented houses near the mill site which ceases whenever a vacancy occurs in the companys free housing facilities. Transportationallowancein the form of advances for actual transportation expenses subject to liquidation is given to key officers and managers who use their own vehicles in the performance of their duties. This privilege is discontinued when the conditions no longer obtain. 3. Bisligallowanceis given to managers and officers on account of the hostile environment prevailing therein. Once the recipient is transferred elsewhere, the allowance ceases. Applying Art. 97, par (f) of the Labor Code which defines wage, the Executive Labor Arbiter opined that the subject allowances, being customarily furnished by respondent PICOP and regularly received by petitioners, formed part of the latters wage. However, the NLRC decreed that the allowances did not form part of the salary base used in computing separation pay since the same were contingency-based. Issue : Whether or not the allowances in question are considered facilities customarily furnished. Held : No. Customary is founded on long established and constant practice connoting regularity. The receipt of allowance on a monthly basis does not ipso facto characterize it as regular and forming part of salary because the nature of the grant is a factor worth considering. The subject allowances were temporarily, not regularly received by petitioners because once the conditions for the availment ceased to exist, the allowance reached the cutoff point. The petitioners continuous enjoyment of the disputed allowances was based on contingencies the occurrence of which wrote finis to such enjoyment.

Celestial, et al. vs Sout4ern "indanao 56peri1ental Station, et al., 1'6 74il 696- G.R. )o. ,. 1095', 8ece1 er 9, 1959
(Labor Standards Agricultural Employees) Facts : The Minimum Wage Law provides that in order than an employee or laborer may be paid the minimum wage of P2.50 a day, he must be employed by an enterprise engaged in agriculture; said enterprise should operate a farm comprising more than 12 hectares; and said employee or laborer should be engaged in agriculture. Section 2 of the Minimum Wage Law (RA 602) provides a definition of agriculture: Agriculture includes farming in all its branches and among other things include cultivation and tillage of the soil, dairying, the production, cultivation, growing, and harvesting of any agricultural or horticultural commodities, the raising of livestock or poultry, and any practices performed by a farmer or on a farm as an incident to or in conjunction with such farming operations, but does not include the manufacturing or processing of sugar, coconuts, abaca, tobacco, pineapples or other farm products. Respondent experimental station, which operates a farm comprising of 960 hectares, is an agency of the Bureau of Plant Industry which are both engaged in agriculture or are dedicated in agricultural functions as provided by sections 1753 and 1754 of the Revised Administrative Code. Petitioners, employees of the experimental station alleged that they are entitled to the minimum wage of P4.00 a day, instead of P2.50, which was actually paid them by the respondent experimental station. The Auditor General rendered a decision that they are entitled to the latter amount. Issue : WON employees of an experimental station engaged in agriculture are agricultural employees. Held : Yes. Where an experimental station operates a farm comprising 960 hectares, and, through its employees and laborers actually tills the soil, introduces and plants seeds of the best crop varieties found by it after study and experiment, raises said crops in the best approved methods of cultivation, including the spacing of each plant or seedling and the amount of water needed through irrigation, weeding, etc., and the other proper harvesting of the crops, including the timing and method, discovers plant pests and their eradication by means of treatment with the proper insecticides, and thereafter extracts the seeds from the harvest for sale and distribution to farmers, there can be no question that all these acts and functions fall within the definition of agriculture provided in the Minimum Wage Law, and consequently, are agricultural. It follows that the laborers and farm workers who actually carry out and perform these functions are also engaged in agriculture. Some employees in the experimental station may be engaged in office work. In as much as they are all employed by the same, which is a farm enterprise, and their work is incidental to agriculture, they may also be considered as agricultural workers and employees.

5ncyclopaedia /ritannica, #nc vs. ),RC, G.R. )o. 8&'98, )ove1 er %, 1996- 06% SCRA 1
(Labor Standards Inexistence of employer-employee relationship) Facts : Private respondent was a sales division manager of private petitioner and was in charge of selling the latters products through sales representatives. As compensation, private respondent receive commissions from the products sold by his agents. After resigning from office to pursue his private business, he filed a complaint against the petitioner, claiming for non-payment of separation pay and other benefits. Petitioner alleged that complainant was not its employee but an independent dealer authorized to promote and sell its products and in return, received commissions therefrom. Petitioner did not have any salary and his income from petitioner was dependent on the volume of sales accomplished. He had his own office, financed the business expense, and maintained his own workforce. Thus petitioner argued that it had no control and supervision over the complainant as to the manner and means he conducted his business operations. The Labor Arbiter ruled that complainant was an employee of the petitioner company. Petioner had control over the complainant since the latter was required to make periodic reports of his sales activities to the company. Issue : Whether or not there exists an employer-employee relationship.

Held : No. Control of employees conduct is commonly regarded as the most crucial and determinative indicator of the presence or absence of an employer-employee relationship. Under this, an employer-employee relationship exists where the person for whom the services are performed reserves the right to control not only the end to be achieved, but also the manner and means to be used in reaching that end. The fact that petitioner issued memoranda to private respondent and to other division sales managers did not prove that petitioner had actual control over them. The different memoranda were merely guidelines on company policies which the sales managers follow and impose on their respective agents.

"ercidas Fis4ing Corporation vs. ),RC, G.R. )o. 1105&%. 9cto er 8, 1998- 09& SCRA %%'
(Labor Standards Fishermen are not field personnels, Article 82) Facts : Private respondent employed as a bodegero or ships quartermaster complained of being constructively dismissed by petitioner corporation when the latter refused him assignments aboard its boats after he had reported to work. The Larbor Arbiter rendered a decision ordering petitioner corporation to reinstate complainant with back wages, pay him his 13th month pay and incentive leave. Petitioner claims that it cannot be held liable for service incentive leave pay by fishermen in its employ as the latter supposedly are field personnel and thus not entitled to such pay under the Labor Code. Article 82 of the Labor Code provides among others that field personnel shall refer to non-agricultural employees who regularly perform their duties away from the principal place of business or branch of office of the employer and whose actual hours of work in the field cannot be determined with reasonable certainty. Issue : WON fishermen are considered field personnel. Held : No. Although fishermen perform non-agricultural work away from their employers business offices, the fact remains that throughout the duration of their work they are under the effective control and supervision of the employer through the vessels patron or master.

Association o! "arine 9!!icers and Sea1en o! Reyes and ,i1 Co. vs. ,agues1a, 0*9 SCRA %6'
(Labor Standards Marine officers are managerial employees) Facts : Petitioner union claims that the positions major patron, minor patron, chief mate and chief engineer are not managerial employees but rank and file, and hence these employees would be eligible to form part of the union and take part in the certification election. Petitioner contends that the marine officers in question must possess the power to lay down and formulate management policies aside from just executing such policies. Said marine officers do not have this power because they merely navigate the bay and rivers of Pasig and Bataan hauling LPGs. Public respondent opined in an evaluation of the afore-mentioned job descriptions that these are managerial positions based on Article 212 (m) of the Labor Code which defines managerial employees as one who is vested with powers or prerogatives to lay down and execute management policies and/or to hire, transfer , suspend, lay-off, recall, discharge, assign or discipline employees. Issue : WON the positions of major patron, minor patron, chief mate and chief engineer are managerial. Held : Yes. The job description on record discloses that the major patrons duties include taking complete charge and command of the ship and performing responsibilities and duties of a ship captain; the minor patron also commands the vessel, plying the limits of inland waterways, ports and estuaries; the chief mate performs the functions of an executive officer next in command to the captain; and the chief marine engineer takes over-all charge of the operations of the ships mechanical and electrical equipment. Thus the exercise of discretion and judgment in directing a ships course is as much managerial in nature as decisions arrived at in the confines of the more conventional board room or executive office.

:o vs. ),RC, G.R. )o. 1016'5, Fe ruary 0, 0'''- *0% SCRA %*&
(Labor Standards Existence of employer-employee relationship) Facts : Private respondent working as a barber on piece-rate basis was designated by petitioners as caretaker of their barbershop. Private respondents duties as caretaker, in addition to his being a barber, were: 1) to report to the owners of the barbershop whenever the aircondition units malfunction and/or whenever water or electric power supply was

interrupted; 2) to call the laundry woman to wash dirty linen; 3) to recommend applicants for interview and hiring; 4) to attend to other needs of the shop. For this additional job, he was given an honorarium equivalent to1/3 of the net income of the shop. Private respondent left his job voluntarily because of his misunderstanding with his co-worker and demanded separation pay and other monetary benefits. Petitioners contends that respondent was not their employee but their partner in trade whose compensation was based on a sharing arrangement per haircut or shaving job done. Issue : Whether or not there exist an employer-employee relationship. Held : Yes. In determining the existence of an employer-employee relationship, the following elements are considered: 1) selection and engagement of worker; 2) power of dismissal; 3) the payment of wages; and 4) the power to control the workers conduct, with the latter assuming primacy in the overall consideration. The power of control refers to the existence of the power and not necessarily to the actual exercise thereof. It is not essential for the employer to actually supervise the performance of duties of the employee; it is enough that the employer has the right to wield that power.

;nited C"C Te6tile <or+ers ;nion vs ,a or Ar iter, ,.&'&6*, April *', 198&- 1%9 SCRA %0%
(Labor Standards Payment of Christmas Bonus under the CBA; 13 th month pay under PD 851 and the La Carlota doctrine) Facts : Petitioner union filed a complaint against CTMI for non-payment of the 1978 Christmas bonus of rank and file employees as provided in their CBA. The decision of the SC has become final and executory in favor of the petitioner union. Subsequently, CTMI filed an appeal stating that the decision of the SC has become moot and academic by virtue of a previous jurisprudence (La Carlota) ruling that employers already paying the equivalent of the 13 th month pay to their employees, such as Christmas bonus, are under no legal obligation to pay an additional month pay prescribed under PD 851. Respondent Labor Arbiter refused to continue with the execution of the decision contending that it has become moot and academic. Issue: 1. 2. Held : 1. Yes. If the Christmas bonus was included in the 13 th month pay, then there would be no need for having a specific provision on Christmas bonus in the CBA. But it did provide, thus the intention is clear that said bonus is meant to be in addition to the legal requirement. 2. No. La Carlota doctrine cannot be applied because judgments which had been long become final and executory can no longer be amended or modified by the courts. Such doctrine known as the law of the case. WON employer paying its employees the Christmas bonus under the CBA is no longer required to pay the 13th month pay provided under PD 851. WON the Carlota ruling is applicable in the case herein.

7AC#<; vs ),RC, 0%& SCRA 056

(Labor Standards Bus drivers and conductors on a purely commission basis are entitled to 13 thmonth pay) Facts : Petitioner union complaint for payment of 13th month pay to the drivers and conductors of respondent company, on the ground that although said drivers and conductors are compensated on a purely commission basis as described in their CBA, they are automatically entitled to the basic minimum pay mandated by law should said commission be less than their basic minimum for eight (8) hours work. Respondent Vallacar Transit, Inc. contended that since said drivers are compensated on a purely commission basis, they are not entitled to 13th month pay pursuant to the exempting provisions enumerated in paragraph 2 of the Revised Guidelines on the Implementation of the 13th Month Pay Law. Section of Article XIV of the CBA expressly provides that drivers and conductors paid on a purely commission are not legally entitled to 13 th month pay. Said CBA, being the law between the parties, must be respected. Issue : WON the bus drivers and conductors of respondent Vallacar Transit, Inc. are entitled to 13 thmonth pay. Held : Yes. For purposes of entitling rank and file employees a 13th month pay, it is immaterial whether the employees concerned are paid a guaranteed wage plus commission or a commission with guaranteed wage inasmuch as the bottom line is that they receive a guaranteed wage. Thus is correctly construed in the MOLE Explanatory Bulletin No. 86-12. The 13th month pay of bus drivers and conductors must be one-twelfth (1/12) of their total earnings during the calendar year.

74ilippine 8uplicators, #nc. vs. ),RC, 0%1 SCRA *8' 219953

(Labor Standards Commissions included in the computation of 13th month pay) Facts : Petitioner Corporation pays its salesmen a small fixed or guaranteed wage; the greater part of the latters wages or salaries being composed of the sales or incentive commissions earned on actual sales of duplicating machines closed by them. Thus the sales commissions received for every duplicating machine sold constituted part of the basic compensation or remuneration of the salesmen of the Philippine Duplicators for doing their job. The Labor Arbiter directed Petitioner Duplicators to pay 13 th month pay to private respondent employees computed on the basis of their fixed wages plus sales commission. Sec. 4 of the Supplementary Rules and Regulations Implementing PD No. 851 (Revised Guidelines Implementing 13th Month Pay) provides that overtime pay, earning and other remuneration which are not part of the basic salary shall not be included in the computation of the 13th month pay. Petitioner Corporation contends that their sales commission should not be included in the computation of the 13 th month pay invoking the consolidated cases of Boie-Takeda Chemicals, Inc. vs Hon. Dionisio dela Serna and Philippine Fuji Xerox Corp. vs Hon. Crecencio Trajano, were the so-called commissions of medical representatives of Boie-Takeda Chemicals and rank-and-file employees of Fuji Xerox Co. were not included in the term basic salary in computing the 13th month pay. Issue : WON sales commissions comprising a pre-determined percent of the selling price of the goods are included in the computation of the 13th month pay. Held : Yes. These commission which are an integral part of the basic salary structure of the Philippine Duplicators employees-salesmen, are not overtime payments, nor profit-sharing payments nor any other fringe benefit. Thus, salesmens commissions comprising a pre-determined percent of the selling price of the goods were properly included in the term basic salary for purposes of computing the 13th month pay. Commissions of medical representatives of Boie-Takeda Chemicals and rank-and-file employees of Fuji Xerox Co. were not included in the term basic salary because these were paid as productivity bonuses which is not included in the computation of 13th month pay.

Great Pacific Life Assurance Corporation, PETITIONER Vs Honorato Judico and National Labor Relations Co ission, RE!PON"ENT! Paras, J.: #ACT!$ On August 27, 1982, the private respondent filed a complaint for illegal dismissal against the petitioner. he private respondent !as a de"it agent, defined as #an insurance agent selling$servicing industrial life plans and polic% holders&. 'e had definite !or( assignments including "ut not limited to selling insurance and collection of premiums from polic% holders. As compensation, he !as initiall% paid P'P2)).)) as allo!ance for thirteen !ee(s regardless of production and later a certain commission from his total collections. 'e !as promoted to the position of *one +upervisor and !as given additional allo!ance fi,ed at P'P11).)) per !ee(. 'o!ever, he !as reverted "ac( to his former position after t!o months for un(no!n reasons and !as finall% dismissed "% !a% of termination of agenc% contract. he petitioner contended that the private respondent !as not an emplo%ee of the compan% entitled to the protection of the la! against illegal dismissal. he latter-s compensation, in the form of commissions and "onuses, !as "ased on actual production. he .a"or Ar"iter dismissed the complaint on the ground that the emplo%er/emplo%ee did not e,ist "et!een the parties. On appeal, the 0.12 reversed the ruling stating that the private respondent !as a regular emplo%ee as defined under Article 281 of the .a"or 2ode. I!!%E$ 3hether or not an emplo%er/emplo%ee relationship e,isted "et!een the petitioner and private respondent. R%LING$ One salient point in the determination of emplo%er/emplo%ee relationship !hich cannot "e easil% ignored is the fact that the compensation that these agents on commission received is not paid "% the insurance compan% "ut "% the investor 4or the person insured5. he test is !hether the #emplo%er& controls or has reserved the right to control the #emplo%ee& not onl% as to the result of the !or( to "e done "ut also as to the means and methods "% !hich the same is to "e accomplished. he private respondent received a definite minimum amount per !ee( as his !age (no!n as #sales reserve&. 'e !as assigned a definite place in the office to !or( on !hen he is not in the field6 and in addition to his canvassing !or( he !as "urdened !ith the 7o" of collection. 2onversel%, he !as promoted to *one +upervisor !ith additional allo!ance of a definite amount aside from the regular !ee(l% #allo!ance&. 'is contract of services !as neither for a piece of !or( nor for a definite period.

he private respondent !as controlled "% the petitioner not onl% as to the (ind of !or(6 the amount of results, the (ind of performance "ut also the po!er of dismissal. hus, he !as an emplo%ee of the petitioner. he appealed decision is A8891:;<.

ALIPIO R& R%GA, JO!E PAR'A, ELA"IO CAL"ERON, LA%RENTE (A%T%, JAI'E (AR(IN, NICANOR #RANCI!CO, PHILIP CERVANTE! and ELE%TERIO (AR(IN, petitioners, )s& NATIONAL LA(OR RELATION! CO''I!!ION and "E G%*'AN #I!HING ENTERPRI!E! and+or AR!ENIO "E G%*'AN, respondents Facts: Petitioners !ere the fishermen/cre! mem"ers of 7$= +and%man 99, one of several fishing vessels o!ned and operated "% private respondent <e >u?man 8ishing ;nterprises !hich is primaril% engaged in the fishing "usiness !ith port and office at 2amaligan, 2amarines +ur. Petitioners rendered service a"oard said fishing vessel in various capacities, as follo!s: Alipio 1uga and Jose Parma patron$pilot6 ;ladio 2alderon, chief engineer6 .aurente =autu, second engineer6 Jaime =ar"in, master fisherman6 0icanor 8rancisco, second fisherman6 Philip 2ervantes and ;leuterio =ar"in, fishermen. 8or services rendered in the conduct of private respondent@s regular "usiness of Atra!lA fishing, petitioners !ere paid on percentage commission "asis in cash "% one :rs. Pilar de >u?man, cashier of private respondent. As agreed upon, the% received thirteen percent 41BC5 of the proceeds of the sale of the fish/catch if the total proceeds e,ceeded the cost of crude oil consumed during the fishing trip, other!ise, the% received ten percent 41)C5 of the total proceeds of the sale. he patron$pilot, chief engineer and master fisherman received a minimum income of PBD).)) per !ee( !hile the assistant engineer, second fisherman, and fisherman/!inchman received a minimum income of P2E).)) per !ee(. On +eptem"er 11, 198B upon arrival at the fishing port, petitioners !ere told "% Jorge de >u?man, president of private respondent, to proceed to the police station at 2amaligan, 2amarines +ur, for investigation on the report that the% sold some of their fish/catch at midsea to the pre7udice of private respondent. Petitioners denied the charge claiming that the same !as a countermove to their having formed a la"or union and "ecoming mem"ers of <efender of 9ndustrial Agricultural .a"or Organi?ations and >eneral 3or(ers Fnion 4<9A.O>3F5 on +eptem"er B, 198B. <uring the investigation, no !itnesses !ere presented to prove the charge against petitioners, and no criminal charges !ere formall% filed against them. 0ot!ithstanding, private respondent refused to allo! petitioners to return to the fishing vessel to resume their !or( on the same da%, +eptem"er 11, 198B. On +eptem"er 22, 198B, petitioners individuall% filed their complaints for illegal dismissal and non/pa%ment of 1Bth month pa%, emergenc% cost of living allo!ance and service incentive pa%, !ith the then :inistr% 4no! <epartment5 of .a"or and ;mplo%ment, 1egional Ar"itration =ranch 0o. G, .egaspi 2it%, Al"a%. he% uniforml% contended that the% !ere ar"itraril% dismissed !ithout "eing given ample time to loo( for a ne! 7o". 9ssue: 3hether or not the fishermen/cre! mem"ers of the tra!l fishing vessel 7$= +and%man 99 are emplo%ees of its o!ner/ operator, <e >u?man 8ishing ;nterprises. 1uling: <isputing the finding of pu"lic respondent that a A7oint fishing ventureA e,ists "et!een private respondent and petitioners, petitioners claim that pu"lic respondent e,ceeded its 7urisdiction and$or a"used its discretion !hen it added facts not contained in the records !hen it stated that the pilot/cre! mem"ers do not receive compensation from the "oat/o!ners e,cept their share in the catch produced "% their o!n efforts6 that pu"lic respondent ignored the evidence of petitioners that private respondent controlled the fishing operations6 that pu"lic respondent did not ta(e into account esta"lished 7urisprudence that the relationship "et!een the fishing "oat operators and their cre! is one of direct emplo%er and emplo%ee. 3e have consistentl% ruled that in determining the e,istence of an emplo%er/emplo%ee relationship, the elements that are generall% considered are the follo!ing 4a5 the selection and engagement of the emplo%ee6 4"5 the pa%ment of !ages6 4c5 the po!er of dismissal6 and 4d5 the emplo%er@s po!er to control the emplo%ee !ith respect to the means and methods "% !hich the !or( is to "e accomplished. 8 he emplo%ment relation arises from contract of hire, e,press or implied. 9 9n the a"sence of hiring, no actual emplo%er/emplo%ee relation could e,ist.

8rom the four 4H5 elements mentioned, !e have generall% relied on the so/called right/of/control test !here the person for !hom the services are performed reserves a right to control not onl% the end to "e achieved "ut also the means to "e used in reaching such end. he test calls merel% for the e,istence of the right to control the manner of doing the !or(, not the actual e,ercise of the right. he petition is >1A0 ;<. he Iuestioned resolution of the 0ational .a"or 1elations 2ommission dated :a% B),198D is here"% 1;G;1+;< and +; A+9<;. Private respondent is ordered to reinstate petitioners to their former positions or an% eIuivalent positions !ith B/%ear "ac(!ages and other monetar% "enefits under the la!. 0o pronouncement as to costs.

(esa )& Tra,ano #ACT!$ 1espondent JA:P9 filed a Petition for 2ertification ;lection. Petitioner opposed alleging that there is no ;1/;; relationship "et!een =esa and petitioners. hese petitioners are shoe shiners paid on a commission "asis. he Iuestion of ;1/;; relationship "ecame a primordial consideration in resolving !hether or not the su"7ect shoe shiners have the 7uridical personalit% and standing to present a petition for certification as !ell as to vote therein. I!!%E$ 3$0 ;1/;; relationship e,ists "et!een shoe shiners and =esa HEL"$ 0o. +hoe shiner is different from a piece !or(er:

Piece 3or(er 1. paid for !or( accomplished 2. the emplo%er pa%s his !ages B. paid for !or( accomplished !ithout concern to the profit derived "% emplo%er H. the emplo%er supervises and controls his !or(

+hoe shiner 1. contri"utes an%thing to the capital of the emplo%er 2. paid directl% "% his customer B. the proceeds derived from the trade are divided share !ith respondent =;+A H. respondent does not e,ercise control

hus, shoe shiners are not emplo%ees of the compan%, "ut are partners, "ecause there is no control "% the o!ner and shoe shiners have their o!n customers !hom the% charge a fee and divide the proceeds eIuall% !ith the o!ner.

-G&R& No& .//./ No)e ber 01, 02.23 IN!%LAR LI#E A!!%RANCE CO&, LT"&, petitioner, )s& NATIONAL LA(OR RELATION! CO''I!!ION and 'ELECIO (A!IAO, respondents& #ACT!$ +ince 19E8, respondent =asiao has "een an agent for petitioner compan%, and is authori?ed to solicit !ithin the Philippines applications for insurance policies and annuities in accordance !ith the e,isting rules and regulations of the compan%. 9n return, he !ould receive compensation, in the form of commissions. +ome four %ears later, in April 1972, the parties entered into another contract K an Agenc% :anager@s 2ontract K and to implement his end of it =asiao organi?ed an agenc% or office to !hich he gave the name :. =asiao and Associates, !hile concurrentl% fulfilling his commitments under the first contract !ith

the 2ompan%. 9n :a%, 1979, the 2ompan% terminated the Agenc% :anager@s 2ontract. After vainl% see(ing a reconsideration, =asiao sued the 2ompan% in a civil action and this, he !as later to claim, prompted the latter to terminate also his engagement under the first contract and to stop pa%ment of his commissions starting April 1, 198). =asiao thereafter filed !ith the then :inistr% of .a"or a complaint against the 2ompan% and its president. he complaint sought to recover commissions allegedl% unpaid thereunder, plus attorne%@s fees. he respondents disputed the :inistr%@s 7urisdiction over =asiao@s claim, asserting that he !as not the 2ompan%@s emplo%ee, "ut an independent contractor. I!!%E$ 3hether or not there e,ist an emplo%er/emplo%ee relationship "et!een =asiao and 9nsular .ife. HEL"$ he +2 ruled in favor of 9nsular .ife. 0ot ever% form of control that the hiring part% reserves to himself over the conduct of the part% hired in relation to the services rendered ma% "e accorded the effect of esta"lishing an emplo%er/emplo%ee relationship "et!een them in the legal or technical sense of the term. A line must "e dra!n some!here, if the recogni?ed distinction "et!een an emplo%ee and an individual contractor is not to vanish altogether. .ogicall%, the line should "e dra!n "et!een rules that merel% serve as guidelines to!ards the achievement of the mutuall% desired result !ithout dictating the means or methods to "e emplo%ed in attaining it, and those that control or fi, the methodolog% and "ind or restrict the part% hired to the use of such means. he first, !hich aim onl% to promote the result, create no emplo%er/emplo%ee relationship unli(e the second, !hich address "oth the result and the means used to achieve it. he distinction acIuires particular relevance in the case of an enterprise affected !ith pu"lic interest, as is the "usiness of insurance, and is on that account su"7ect to regulation "% the +tate !ith respect, not onl% to the relations "et!een insurer and insured "ut also to the internal affairs of the insurance compan%. 1ules and regulations governing the conduct of the "usiness are provided for in the 9nsurance 2ode and enforced "% the 9nsurance 2ommissioner. 9t is, therefore, usual and e,pected for an insurance compan% to promulgate a set of rules to guide its commission agents in selling its policies that the% ma% not run afoul of the la! and !hat it reIuires or prohi"its. Of such a character are the rules !hich prescri"e the Iualifications of persons !ho ma% "e insured, su"7ect insurance applications to processing and approval "% the 2ompan%, and also reserve to the 2ompan% the determination of the premiums to "e paid and the schedules of pa%ment. 0one of these reall% invades the agent@s contractual prerogative to adopt his o!n selling methods or to sell insurance at his o!n time and convenience, hence cannot 7ustifia"l% "e said to esta"lish an emplo%er/emplo%ee relationship "et!een him and the compan%. he respondents limit themselves to pointing out that =asiao@s contract !ith the 2ompan% "ound him to o"serve and conform to such rules and regulations as the latter might from time to time prescri"e. 0o sho!ing has "een made that an% such rules or regulations !ere in fact promulgated, much less that an% rules e,isted or !ere issued !hich effectivel% controlled or restricted his choice of methods K or the methods themselves K of selling insurance. A"sent such sho!ing, the 2ourt !ill not speculate that an% e,ceptions or Iualifications !ere imposed on the e,press provision of the contract leaving =asiao A... free to e,ercise his o!n 7udgment as to the time, place and means of soliciting insurance.A he 2ourt, therefore, rules that under the contract invo(ed "% him, =asiao !as not an emplo%ee of the petitioner, "ut a commission agent, an independent contractor !hose claim for unpaid commissions should have "een litigated in an ordinar% civil action. 0.12 <ecision set aside.

Ilas vs. NLRC, G.R. Nos. 90394-97, 7 February 1991; 193 SCRA 6 !
(Labor Standards Agents hired without knowledge and consent of recruitment agency) Facts : Petitioners applying for overseas employment in Doha, Qatar, with CBT/Sheik International, were assisted by a liaison officer of private respondent All Season Manpower International Services, who processed their papers and gave them travel exit passes (TEPS). After being deployed and worked for 4 months without being paid, they filed a complaint to recover their unpaid salaries and for wages covering the unexpired portion of their contracts against private respondent. Issue : WON a recruitment agency be liable for unpaid wages and other claims of overseas workers who appear to be recruited by its agent without its knowledge and consent. Held : No. It is true that the rules and regulations of the POEA provide that the private employment or recruitment agency is made to assume full and complete responsibility for all acts of its officials and representatives done in connection with recruitment and placement. However, where the recruitment was actually made by respondent agencys agent in behalf of CBT/Shiek International, not the private respondent, and the name of private respondent was only used as a means to enable petitioners to be issued TEPS for travel purposes, obviously without the knowledge and consent of private respondent, the latter cannot be held liable for the claims of petitioners.

"## $ro%o&'o( a() #a(a*e%e(&, I(+. vs. CA, G.R. No. 1!009,, Au*us& ,, 1996; !60 SCRA 319
(Labor Standards Artist Record Book as a requirement for overseas employment contract) Facts : The deployment of female entertainers to Japan was controlled by the government through Department Order No. 3, wherein said entertainers were required an Artist Record Book as a precondition to the processing by the POEA of any contract for overseas employment. Petitioners contends that overseas employment is a property right within the meaning of the Constitution and avers that the alleged deprivation thereof through the onerous requirement of an ARB violates due process and constitutes an invalid exercise of police power. Issue : WON an Artist Record Book is a valid requirement for overseas employment. Held : Yes. The ARB requirement and the questioned Department order related to its issuance were issued pursuant to a valid exercise of police power which considers the welfare of Filipino performing artists, particularly the women.

Gu-#'ro vs. A)orable, G.R. No. 1609,!, Au*us& !0, !004; 437 SCRA 16!
(Labor Law Seafarers are not considered regular employees) Facts : Petitioner services as radio officer on board respondents different vessels were terminated due to the installation of labor saving devices which made his services redundant. Petitioner argued that aside from the incentive bonus and additional allowances that he is entitled, he should be considered as a regular employee of respondent company, having been employed onboard the latters different vessels for the span of 10 years and thus, entitled to back wages and separation pay. Issue : WON seafarers are considered regular employees. Held : No. Petitioner cannot be considered as a regular employee notwithstanding that the work he performs is necessary and desirable in the business of the respondent company. The exigencies of the work of seafarers necessitates that they be employed on a contractual basis. Thus, even with the continued re-hiring by respondent company of petitioner to serve as radio officer onboard the formers different vessels, this should be interpreted not as a basis for regularization but rather a series of contract renewals.

ANDRES E. DITAN, Petitioner, vs. PHILIPPINE OVERSEAS EMPLOYMENT ADMINISTRATION ADMINISTRATOR, NATIONAL LABOR RELATIONS COMMISSION, ASIAWORLD RECRUITMENT, INC., AND/OR INTRACO SALES CORPORATION, Respondents. FACTS: Andres E. Ditan was recruited by private respondent Intraco Sales Corporation, through its local agent, Asia World, the other private respondent, to work in Angola as a welding supervisor. The contract was or nine !onths, at a !onthly salary o "S#$,$%%.%% or "S#&'(.%% weekly, and contained the re)uired standard stipulations or the protection o our overseas workers.

*n Dece!ber &+, $,-., he was in or!ed, to his distress, that would be trans erred to /a un o, so!e 0(% kilo!eters east o 1uanda. This was the place where, earlier that year, the rebels had attacked and kidnapped e2patriate workers, killing two 3ilipinos in the raid. 4aturally, Ditan was reluctant to go. 5owever, he was assured by the I4T6AC* !anager that /a un o was sa e and ade)uately protected by govern!ent troops7 !oreover 8 and this was !ore persuasive 8 he was told he would be sent ho!e i he re used the new assign!ent. In the end, with !uch !isgiving, he relented and agreed.
9 nad

*n Dece!ber &,, $,-., his ears were con ir!ed. The "nita rebels attacked the dia!ond !ining site where Ditan was working and took hi! and si2teen other 3ilipino hostages, along with other oreign workers. It was only on :arch $+, $,-(, that the hostages were inally released a ter the intercession o their govern!ents and the International 6ed Cross. Si2 days later, Ditan and the other 3ilipino hostages were back in the ;hilippines. The repatriated workers had been assured by I4T6AC* that they would be given priority in re< e!ploy!ent abroad, and eventually eleven o the! were taken back. Ditan having been e2cluded, he iled in =une $,-( a co!plaint against the private respondents or breach o contract and various other clai!s. Speci ically, he sought the a!ount o 9 o o o o "S#.,+'(.%%, representing his salaries or the une2pired $' weeks o his contract7 "S#&(,%%%.%% as war risk bonus7 "S#&,$,+.(% as the value o his lost belongings7 "S#$,$%% or unpaid vacation leave7 and !oral and e2e!plary da!ages in the su! o "S#(%,%%%.%%, plus attorney>s ees.

I!!%E$

All these clai!s were dis!issed by ;*EA Ad!inistrator To!as D. Achacoso and this was a ir!ed in toto by respondent 416C in a resolution which is now being challenged in this petition.

3hether the petitioner is entitled to his claims !hile there are la!s and policies governing his emplo%ment overseas.
1F.;+ A0< APP.92A 9O0+:

Clause ( o the e!ploy!ent contract o Should the Employee enter into a further 9 to 12 months contract at the completion contract, he will be entitled to one month's paid vacation before commencement of his second or subsequent contract. It appears that the petitioner had not entered into a second contract with the e!ployer a ter the e2piration o the irst. Such re<e!ploy!ent was not a !atter o right on the part o the petitioner but dependent on the need or his skills in another pro?ect the e!ployer !ight later be undertaking. There ore properly re?ected.

As regards the cost o his belongings, the evidence shows that they were not really lost but in act returned to hi! by the rebels prior to their release. I he had other properties that were not recovered, there was no proo o their loss that could support his allegations and there ore properly re?ected. The clai!s or breach o contract and war risk bonus deserve a little !ore re lection in view o the peculiar circu!stances o this case. o The private respondents stress that the contract Ditan entered into called or his e!ploy!ent in Angola, without indication o any particular place o assign!ent in the country. This !eant he agreed to be assigned to work anywhere in that country, including /a un o. When I4T6AC* assigned Ditan to that place in the regular course o its business, it was !erely e2ercising its rights under the e!ploy!ent contract that Ditan had reely entered into. 5ence, it is argued, he cannot now co!plain that there was a breach o that contract or which he is entitled to !onetary redress. The private respondents also re?ect the clai! or war risk bonus and point out that ;*EA :e!orandu! Circular 4o. ., issued pursuant to the !andatory war risk coverage provision in Section &, 6ule @I, o the ;*EA 6ules and 6egulations on *verseas E!ploy!ent, categoriAing Angola as a war risk took e ect only on 3ebruary +, $,-(, Ba ter the petitioner>s deploy!ent to Angola on 4ove!ber &', $,-..B Conse)uently, the stipulation could not be applied to the petitioner as it was not supposed to have a retroactive e ect.

The Constitution !andates the protection o labor and the sy!pathetic concern o the State or the working class con or!ably to the social ?ustice policy. This is a co!!and the Supre!e Court cannot disregard in the resolution o the case be ore the!.

The para!ount duty o Supre!e Court is to render ?ustice through law. The law in this case allows two opposite interpretations, one strictly in avor o the e!ployers and the other liberally in avor o the worker. The choice is obvious. They ind, considering the totality o the circu!stances attending this case, that the petitioner is entitled to relie . "nder the policy o social ?ustice, the law bends over backward to acco!!odate the interests o the working class on the hu!ane ?usti ication that those with less privileges in li e should have !ore privileges in law.

2O02.F+9O0:

The challenged resolution o the 416C is hereby :*DI3IED. The private respondents are hereby DI6ECTED ?ointly and severally to pay the petitioner9 aC the current e)uivalent in ;hilippine pesos o "S#.,+'(.%%, representing his unpaid salaries or the balance o the contract ter!7 bC no!inal da!ages in the a!ount o ;&%,%%%.%%7 and cC $%D attorney>s ees. 4o costs. S* *6DE6ED.