SAMPLEX LABOR 1- Midterm Atty.

Mancol 2019-2020

1.
a. What is social justice? Calalang vs Williams
i. Social justice is "neither communism, nor despotism, nor atomism, nor anarchy," but the
humanization of laws and the equalization of social and economic forces by the State so
that justice in its rational and objectively secular conception may at least be
approximated.

b. Full protection to labor- Sosito vs Aguinaldo (situational) Yes, his contention is tenable.
i. While the Constitution is committed to the policy of social justice and the protection of
the working class, it should not be supposed that every labor dispute will be
automatically decided in favor of labor. Management also has its own rights which, as
such, are entitled to respect and enforcement in the interest of simple fair play. Out of its
concern for those with less privileges in life, this Court has inclined more often than not
toward the worker and upheld his cause in his conflicts with the employer. Such
favoritism, however, has not blinded us to the rule that justice is in every case for the
deserving, to be dispensed in the light of the established facts and the applicable law and
doctrine.

2.
a. Tests to determine existence of employer-employee relationship
i. Four-fold test- In determining the existence of employer-employee relationship,
the following elements are generally considered, namely:
1. the selection and engagement of the employee;
2. the payment of wages;
3. the power of dismissal; and
4. the power to control the employees’ conduct — although the latter is the
most important element
ii. Two-tiered test- The better approach would therefore be to adopt a two-tiered
test involving:
1. the putative employer’s power to control the employee with respect to
the means and methods by which the work is to be accomplished; and
2. the underlying economic realities of the activity or relationship.
iii. Control Test- Under the control test, an employer-employee relationship exists
where the person for whom the services are performed reserves the right to
control not only the end achieved, but also the manner and means to be used in
reaching that end.
iv. Economic reality test- Under this test, the economic realities prevailing within
the activity or between the parties are examined, taking into consideration the
totality of circumstances surrounding the true nature of the relationship between
the parties.

b. Four-fold test to determine employer-employee relationship (situational) 4 fold test no

control.
3.
a. Who is a labor only contractor? Art. 106 LC
i. Art. 106- Contractor or Subcontractor

a person is deemed to be engaged in "labor only" contracting where (1) 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 (2) the workers recruited and placed by such person are performing
activities which are directly related to the principal business of such employer

Compare it to-

Art. 107 indirect employer. Specifically, there is "job contracting" where:

(1) the contractor carries on an independent business and undertakes the

contract work on his own account under his own responsibility according to his
own manner and method, free from the control and direction of his employer or
principal in all matters connected with the performance of the work except as to
the results thereof; and

(2) the contractor has substantial capital or investment in the form of tools,
equipment, machineries, work premises, and other materials which are necessary
in the conduct of his business. It may be that LUPO subsequently ran out of capital
and was unable to satisfy the award to petitioners. That was an after-the-fact
development, however, and does not detract from his status as an independent
contractor.

b. Regular Employee vs Contractor-

i. Labor only contractor Art. 106 of Labor Code- Mago vs Sun Power

Thus, in order to become a legitimate contractor, the contractor must

have substantial capital or investment, and must carry a distinct and
independent business free from the control of the principal. In addition,
the Court requires the agreement between the principal and the
contractor or subcontractor to assure the contractual employees'
entitlement to all labor and occupational safety and health standards,
free exercise of the right to self-organization, security of tenure, and
social welfare benefits.

Furthermore, the Court considers job contracting or subcontracting as

permissible when the principal agrees to farm out the performance of a
specific job, work or service to the contractor, for a definite or
predetermined period of time, regardless of whether such job, work, or
service is to be performed or completed within or outside the premises
 of the principal. Ordinarily, a contractor is presumed to be a labor-only
contractor, unless the contractor is able to discharge the burden of
overcoming this presumption. In cases when it's the principal claiming
the legitimacy of the contractor, then the burden is borne by the
principal.

ii. Not an independent contractor but a regular employee- Convoy marketing vs

Albia
The Court cannot likewise sustain petitioners’ claim that Albia is an
independent contractor. The test of independent contractorship is
whether one claiming to be an independent contractor has contracted to
do the work according to his own methods and without being subject to
the control of the employer, except only as to the results of the work. The
criteria in determining the existence of an independent and permissible
contractor relationship are as follows:

x x x Whether or not the contractor is carrying on an independent

business; the nature and extent of the work; the skill required; the
term and duration of the relationship; the right to assign the
performance of a specified piece of work; the control and
supervision of the work to another; the employer’s power with
respect to the hiring, firing and payment of the contractor’s
workers; the control of the premises; the duty to supply the
premises, tools, appliances, materials, and labor; and the mode,
manner and terms of payment.

Applying the foregoing criteria, Albia cannot be considered as an

independent contractor. There is no dispute that it was Convoy who
engaged the services of Albia as a driver without the intervention of a
third party, paid his wages on a per trip basis, and abruptly terminated
his services the next day after admitting to have consumed three bottles
of beer after finishing his deliveries on July 22, 2004. There is, likewise,
no question that Convoy controls or has reserved its right to control
Albia’s conduct, not only as to the result of his work but also as to the
means and methods by which such result is to be accomplished.

4.
a. Who is a regular employee? regular employees or those who have been engaged to
perform activities which are usually necessary or desirable in the usual business or trade
of the employer;
b. Who is a Casual employee? casual employees or those who are not regular, project, or
seasonal employees. Jurisprudence later added a fifth (5th) kind, the fixed-term
employee. Based on Article 295, the law determines the nature of the employment,
regardless of any agreement expressing otherwise.
 c. Who is a probationary employee? A probationary employee, as understood under Article
282 (now Article 281) of the Labor Code, is one who is on trial by an employer during
which the employer determines whether or not he is qualified for permanent
employment. Probationary employment shall not exceed six (6) months from the date the
employee started working, unless it is covered by an apprenticeship agreement
stipulating a longer period. The services of an employee who has been engaged on a
probationary basis may be terminated for a just cause or when he fails to qualify as a
regular employee in accordance with reasonable standards made known by the employer
to the employee at the time of his engagement.
d. Who is a project employee? project employees or those whose employment has been
fixed for a specific project or undertaking, the completion or termination of which has
been determined at the time of the engagement of the employee;
e. Seasonal employees or those who work or perform services which are seasonal in nature,
and the employment is for the duration of the season; and
5.
a. What is illegal recruitment?
Article 13(b) of the Labor Code defines recruitment and placement as: any act of
canvassing, enlisting, contracting, transporting, utilizing, hiring or procuring workers, and
includes referrals, contract services, promising or advertising for employment, locally or
abroad whether for profit or not: Provided, That any person or entity which in any
manner, offers or promises for a fee employment to two or more persons shall be deemed
engaged in recruitment and placement.

On the basis of this definition—and contrary to what C.F. Sharp wants to portray—the
conduct of preparatory interviews is a recruitment activity.

It is the lack of the necessary license or authority, not the fact of payment, that renders
the recruitment activity of LCL unlawful.—The fact that C.F. Sharp did not receive any
payment during the interviews is of no moment. From the language of Article 13(b), the
act of recruitment may be “for profit or not.” Notably, it is the lack of the necessary license
or authority, not the fact of payment, that renders the recruitment activity of LCL
unlawful.

ART. 38. Illegal Recruitment.

(a) Any recruitment activities, including the prohibited practices enumerated under
Article 34 of this Code, to be undertaken by non-licensees or non-holders of authority,
shall be deemed illegal and punishable under Article 39 of this Code. The Department of
Labor and Employment or any law enforcement officer may initiate complaints under this
Article.

D.O. 141-14

Section 42. Acts constituting illegal recruitment. –

 Illegal recruitment shall mean any act of canvassing, enlisting, contracting, utilizing, hiring
or procuring workers and includes referrals, contract services, promising or advertising
for local employment, whether for profit or not, when undertaken by a non-licensee or
non-holder of authority; provided, that any such non-licensee or non-holder of authority
who, in any manner, offer or promises for a free employment to two or more persons
shall be deemed so engaged.

The following acts shall be unlawful when committed by any person whether or not a
holder of a license or authority:

a. To charge or accept directly or indirectly any amount or to make a worker pay the
agency or its representatives any amount greater than that actually loaned or advanced
to him;

b. To furnish or publish any false notice or information in relation to recruitment or

employment;

c. To give any false notice, testimony, information or document or commit any act of
misrepresentation for the purpose of securing a license or authority;

d. To induce or attempt to induce a worker already employed to quit his employment in

order to offer him another unless the transfer is designed to liberate a worker from
oppressive terms and conditions of employment;

e. To influence or attempt to influence any person or entity not to employ any worker
who has not applied for employment through his agency;

f. To engage in the recruitment or placement of workers in jobs harmful to public health

or morality or to the dignity of the Republic of the Philippines;

g. To obstruct or attempt to obstruct inspection by the Secretary or by his/her duly

authorized representatives;

h. To substitute or alter to the prejudice of the worker, employment contract prescribed

by the Department from the time of actual signing thereof by the parties up to and
including the period of the expiration of the same without the approval of the
Department.

b. Illegal recruitment situational. Is he guilty of illegal recruitment?