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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 salariesand 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 exceptionbecause 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.

Taas 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 CaliforniaManufacturing 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 liabil ity 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 one’s 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 latter’s 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,” California’s purported “principal

operation activity.” Livi, as a placement agency, had simply supplied California with the manpower necessary to carry out

its (California’s) merchandising activities, using its (California’s) premises and equipment.

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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 andnot 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.

Gloe "ac+ay Cale 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 Corporation’s 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.

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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 year’s 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 employee’s basic salaries or wages”.

"illares vs. )ational aor Relations Coission, *'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.   Staff allowance/managersallowanceto those who live in rented houses near the mill site which ceases whenever a

vacancy occurs in the company’s free housing facilities.

2.   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.   Bislig allowanceis 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

latter’s 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.

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Celestial, et al. vs Sout4ern "indanao periental Station, et al., 1'6 74il 696- G.R. )o.

1095', eceer 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, andthereafter 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.

ncyclopaedia /ritannica, #nc vs. )RC, G.R. )o. 8&'98, )oveer %, 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 latter’s

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 petitionerwas 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.

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Held: No. Control of employee’s 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&%. ctoer 8, 1998- 09& SCRA %%'

(Labor Standards – Fishermen are not field personnels, Article 82)

Facts: Private respondent employed as a “bodegero” or ship’s 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 employer’s 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

vessel’s patron or master.

Association o! "arine !!icers and Seaen o! Reyes and i Co. vs. aguesa, 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 patron’s 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 ship’s

mechanical and electrical equipment.

Thus the exercise of discretion and judgment in directing a ship’s 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, Feruary 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 respondent’s 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

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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. Petitioner’s 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

worker’s 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 Tetile <or+ers ;nion vs aor Ariter, &'&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. 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.

2. WON the Carlota ruling is applicable in the case herein.

Held:

1. Yes. If the Christmas bonus was included in the 13th 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.”

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

(Labor Standards – Bus drivers and conductors on a purely commission basis are entitled to 13 th month pay)

Facts: Petitioner union complaint for payment of 13 th 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 13 th month pay pursuant to the exempting provisions enumerated in paragraph 2 of the Revised

Guidelines on the Implementation of the 13

th

 Month Pay Law. Section of Article XIV of the CBA expressly provides thatdrivers 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 13 th 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.

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

(Labor Standards – Commissions included in the computation of 13 th  month pay)

Facts: Petitioner Corporation pays its salesmen a small fixed or guaranteed wage; the greater part of the latter’s 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 Duplicator’s

employees-salesmen, are not overtime payments, nor profit-sharing payments nor any other fringe benefit. Thus,

salesmen’s 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 RelationsCoission, RE!PON"ENT!

Paras, J.:

#ACT!$

On August 27, 1982, the private respondent filed a complaint for illegal dismissal against the petitioner. he privaterespondent !as a de"it agent, defined as #an insurance agent selling$servicing industrial life plans and polic% holders&. 'ehad 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 andlater a certain commission from his total collections. 'e !as promoted to the position of *one +upervisor and !as given

additional allo!ance fied at P'P11).)) per !ee(. 'o!ever, he !as reverted "ac( to his former position after t!omonths 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 thela! against illegal dismissal. he latter-s compensation, in the form of commissions and "onuses, !as "ased on actualproduction.

he a"or Ar"iter dismissed the complaint on the ground that the emplo%er/emplo%ee did not eist "et!een the parties.On appeal, the 0 reversed the ruling stating that the private respondent !as a regular emplo%ee as defined under

 Article 281 of the a"or ode.

I!!%E$

3hether or not an emplo%er/emplo%ee relationship eisted "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 thatthe compensation that these agents on commission received is not paid "% the insurance compan% "ut "% the investor 4orthe person insured5. he test is !hether the #emplo%er& controls or has reserved the right to control the #emplo%ee& notonl% as to the result of the !or( to "e done "ut also as to the means and methods "% !hich the same is to "eaccomplished.

he private respondent received a definite minimum amount per !ee( as his !age (no!n as #sales reserve&. 'e !asassigned 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 o" of collection. onversel%, he !as promoted to *one +upervisor !ith additional allo!ance of adefinite amount aside from the regular !ee(l% #allo!ance&. 'is contract of services !as neither for a piece of !or( nor fora definite period.

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he private respondent !as controlled "% the petitioner not onl% as to the (ind of !or(6 the amount of results, the (ind ofperformance "ut also the po!er of dismissal. hus, he !as an emplo%ee of the petitioner.

he appealed decision is A;<.

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 , one of several fishing vessels o!ned and operated "%

private respondent <e >u?man ishing ;nterprises !hich is primaril% engaged in the fishing "usiness !ith port and office

at amaligan, amarines +ur. Petitioners rendered service a"oard said fishing vessel in various capacities, as follo!s:

 Alipio uga and Jose Parma patron$pilot6 ;ladio alderon, chief engineer6 aurente =autu, second engineer6 Jaime

=ar"in, master fisherman6 0icanor rancisco, second fisherman6 Philip ervantes and ;leuterio =ar"in, fishermen.

or services rendered in the conduct of private respondent@s regular "usiness of tra!l 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 eceeded 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 amaligan, amarines +ur, for investigation on the report that the% sold

some of their fish/catch at midsea to the preudice 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 ndustrial Agricultural a"or Organi?ations and >eneral 3or(ers Fnion 4<AO>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, egional Ar"itration =ranch 0o. G, egaspi it%, Al"a%. he% uniforml% contended that the% !ere ar"itraril%

dismissed !ithout "eing given ample time to loo( for a ne! o".

ssue:

3hether or not the fishermen/cre! mem"ers of the tra!l fishing vessel 7$= +and%man are emplo%ees of its o!ner/

operator, <e >u?man ishing ;nterprises.

uling:

<isputing the finding of pu"lic respondent that a oint fishing venture eists "et!een private respondent and petitioners,

petitioners claim that pu"lic respondent eceeded its urisdiction 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

ecept 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

 urisprudence 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 eistence 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, epress or implied. 9 n the

a"sence of hiring, no actual emplo%er/emplo%ee relation could eist.

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rom 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 eistence of the right to control the manner of doing the !or(, not

the actual eercise of the right.

he petition is >A0;<. he Iuestioned resolution of the 0ational a"or elations ommission dated a% B),198D is

here"% ;G;+;< and +; A+<;. 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 )& Traano

#ACT!$

espondent AP filed a Petition for ertification ;lection. Petitioner opposed alleging that there is no

;/;; relationship "et!een =esa and petitioners. hese petitioners are shoe shiners paid on a commission

"asis. he Iuestion of ;/;; relationship "ecame a primordial consideration in resolving !hether or not the

su"ect shoe shiners have the uridical personalit% and standing to present a petition for certification as !ell as

to vote therein.

I!!%E$ 3$0 ;/;; relationship eists "et!een shoe shiners and =esa

HEL"$ 0o.

+hoe shiner is different from a piece !or(er:

Piece 3or(er +hoe shiner  

1. paid for !or( accomplished 1. contri"utes an%thing to the capital of the

emplo%er 

2. the emplo%er pa%s his !ages 2. paid directl% "% his customer  

B. paid for !or( accomplished !ithout concern

to the profit derived "% emplo%er 

B. the proceeds derived from the trade are

divided share !ith respondent =;+A

H. the emplo%er supervises and controls his

!or(

H. respondent does not eercise 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)eber 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

eisting rules and regulations of the compan%. n 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

ontract 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

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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 agency’s 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 respondent’s 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 latter’s 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 former’s 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, andcontained the re)uired standard stipulations or the protection o our overseas workers.

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• *n Dece!ber &+, $-, he was inor!ed, to his distress, that would be transerred to /auno,

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 wasreluctant to go. 5owever, he was assured by the I4T6AC* !anager that /auno was sae and

ade)uately protected by govern!ent troops7 !oreover 8 and this was !ore persuasive 8 he wastold he would be sent ho!e i he reused the new assign!ent. In the end, with !uch !isgiving, he

relented and agreed. 9 nad

• *n Dece!ber &, $-, his ears were conir!ed. The "nita rebels attacked the dia!ond !ining

site where Ditan was working and took hi! and si2teen other 3ilipino hostages, along with otheroreign workers. It was only on :arch $+, $-(, that the hostages were inally released ater the

intercession o their govern!ents and the International 6ed Cross. Si2 days later, Ditan and theother 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 andvarious other clai!s.

• Speciically, he sought the a!ount o9

o "S#,+'(.%%, representing his salaries or the une2pired $' weeks o his contract7

o "S#&(,%%%.%% as war risk bonus7

o "S#&,$+.(% as the value o his lost belongings7

o "S#$,$%% or unpaid vacation leave7 and !oral and e2e!plary da!ages in the su! o

"S#(%,%%%.%%, plus attorney>s ees.

• All these clai!s were dis!issed by ;*EA Ad!inistrator To!as D. Achacoso and this was air!ed in

toto by respondent 416C in a resolution which is now being challenged in this petition.

I!!%E$

3hether the petitioner is entitled to his claims !hile there are la!s and policies governing his emplo%mentoverseas.

F;+ A0< APPAO0+:

• 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 hissecond or subsequent contract.

It appears that the petitioner had not entered into a second contract with thee!ployer ater 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. Thereore 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 notrecovered, there was no proo o their loss that could support his allegations and thereore properly

re?ected.

• The clai!s or breach o contract and war risk bonus deserve a little !ore relection 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/auno. 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 thatcontract or which he is entitled to !onetary redress.

o 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,categoriing Angola as a war risk took eect only on 3ebruary +, $-(, Bater the

petitioner>s deploy!ent to Angola on 4ove!ber &', $-.B Conse)uently, the stipulationcould not be applied to the petitioner as it was not supposed to have a retroactive eect.

• The Constitution !andates the protection o labor and the sy!pathetic concern o the State or the

working class conor!ably to the social ?ustice policy. This is a co!!and the Supre!e Court

cannot disregard in the resolution o the case beore the!.

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• 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!stancesattending 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 ?ustiication that those with less privileges in lie should have

!ore privileges in law.

O0F+O0:

The challenged resolution o the 416C is hereby :*DI3IED. The private respondents are hereby

DI6ECTED ?ointly and severally to pay the petitioner9 a the current e)uivalent in ;hilippine pesos o

"S#,+'(.%%, representing his unpaid salaries or the balance o the contract ter!7 b no!inal da!agesin the a!ount o ;&%,%%%.%%7 and c $% attorney>s ees. 4o costs.

S* *6DE6ED.