ANASTACIO VIAA vs. ALEJO AL-LAGADAN G.R. No. L-8967.

May 31, 1956 Facts: Petitioner Anastacio Viaa owned the fishing sailboat Magkapatid, which had a collision with the USS TINGLES, a vessel of the U.S. Navy. Inasmuch as Alejandro Al-Lagadan, a member of the crew of the Magkapatid, disappeared with the craft, his parents, Respondent Alejo AlLagadan and Filomena Piga, filed the corresponding claim for compensation. After appropriate proceedings, a Referee of the Workmens Compensation Commission rendered a decision in favor of the respondents. Consequently, Viana filed a petition for review, and latter, a subsequent motion for reconsideration was both denied affirming the decision of the Referee. Hence the case at bar, that the case does not fall within the purview of Act No. 3428, because the gross income of his business for the year 1947 was allegedly less than P10,000, and because Alejandro Al-Lagadan was, at the time of his death, his (Petitioners) industrial partner, not his employee. Issue: whether or not Alejandro Al-Lagadan was his industrial partner, not his employee. RULING: Petitioner maintains, contrary to the finding of the Referee and said Commissioner, that the deceased was his industrial partner, not employee. In the opinion of the Referee, as well as of said Commissioner, the mere fact that Alejandros share in the understanding could be reckoned in terms of money, sufficed to characterize him as an employee of Viaa. The Supreme Court does not share this view. Neither can they accept, however, Petitioners theory to the effect that the deceased was his partner, not an employee, simply because he (the deceased) shared in the profits, not in the losses. In determining the existence of employeremployee relationship, the following elements are generally considered, namely: (1) the selection and engagement of the employee; (2) the payment of wages; cha (3) the power of dismissal; and (4) the power to control the employees conduct, although the latter is the most important element. Assuming that the share received by the deceased could partake of the nature of wages, on which the Court need not, and do not, express their view, and that the second element, therefore, exists in the case at bar, the record does not contain any specific data regarding the third and fourth elements. With respect to the first element, the facts before the Court are insufficient to warrant a reasonable conclusion, one way or the other. On the one hand, Atty. Morente said, in his aforementioned report, that the contract commonly followed is on a share basis. The hiring of a crew is done by the patron himself. Usually, when a patron enters into a contract with the owner of the batel, he has a crew ready with him. This statement suggests that the members of the crew are chosen by the patron, seemingly, upon his sole responsibility and authority. It is noteworthy, however, that said report referred to a practice commonly and usually observed in a given place. The record is silent on whether such practice had been followed in the case
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under consideration. More important still, the language used in said report may be construed as intimating, not only that the patron selects and engages the crew, but, also, that the members thereof are subject to his control and may be dismissed by him. To put it differently, the literal import of said report is open to the conclusion that the crew has a contractual relation, not with the owner of the vessel, but with the patron, and that the latter, not the former, is either their employer or their partner. In the interest of justice and equity, and considering that a decision on the merits of the issue before us may establish an important precedent, it would be better to remand the case to the Workmens Compensation Commission for further evidence and findings on the following questions:c (1) who selected the crew of the Magkapatid and engaged their services; (2) if selected and engaged by the patron, did the latter act in his own name and for his own account, or on behalf and for the account of Viaa; (3) could Viaa have refused to accept any of the crew members chosen and engaged by the patron; (4) did Petitioner have authority to determine the time when, the place where and/or the manner or conditions in or under which the crew would work; and (5) who could dismiss its members. The case was remanded to the Workmens Compensation Commission, for further proceedings in conformity with the decision. G.R. No. L-9110 April 30, 1957 JOSEFA VDA. DE CRUZ, ET AL., plaintiffs-appellants, vs. THE MANILA HOTEL COMPANY, defendant-appellee. BENGZON, J.: FACTS: 1. Tirso Cruz with his orchestra furnished music to the Manila Hotel under the arrangement hereafter to be set forth. 2. corporation owning the Hotel gave written notice to its employees that beginning July 1, 1954 the Hotel would be leased to the Bay View Hotel, and that those employees to be laid off would be granted a separation gratuity computed according to specified terms and conditions. 3. Cruz and his musicians claimed the gratuity; 4. Manila Hotel management denied 5. Cruz et all instituted action vs Manila Hotel in CFI 6. CFI: complaint dismissed, not employees, but undependent contractor 7. Tirso Cruz the band leader died; he is now substituted by his legal heirs. 8. Cruz et al: they were employees, attached a copy of the announcement Annex A: . . . . It is for this reason that the necessary authority has already been secured for the payment of
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separation gratuity to the employees to be laid off as a result of the lease and who are not yet entitled to either the optional or compulsory retirement insurance provided under Republic Act No. 660, as amended, . . . . 9. Manila Hotel: MTD not its employees. Under the terms of the contract whereby they had rendered services to the hotel, copy of which was attached as Exhibit 1. It also alleged plaintiffs did not fall within the terms of Annex A because they were not, and never had been members of the Government Service Insurance System. ISSUE: WON Cruz et al were employees? NO, independent contractors 1. Plaintiffs' right is not predicated on some statutory provision, but upon the offer or promise contained in Annex A. Such offer or promise having been written by the defendant, it is logical to regard said defendant to in the best position to state who were the employees contemplated in the aforesaid Annex A. 2. Annex A is not a contract, but a mere offer of gratuity, the beneficiaries of which normally depended upon the free selection of the offeror. 3. Annex A extends to those employees of the Hotel who were "not yet entitled to either the optional or compulsory retirement insurance provided under Republic Act No. 660". And then we read that retirement insurance under Republic Act No. 660 is given only to those insured with the Government Service Insurance System or the G.S.I.S.; and that the herein plaintiffs were never members of (insured with) such Insurance System. 4. Even if these plaintiffs were "employees" of the Hotel in general, they cannot claim to be beneficiaries under Annex A, because they could not qualify as employees "who were not yet entitled to retirement insurance under the G.S.I.S." 5. None of them except Tirzo Cruz and Ric Cruz, is mentioned in the contract Exhibit 1. None has submitted any contract or appointment except said Exhibit 1. Obviously their connection with the Hotel was only thru Tirso Cruz who was the leader of the orchestra; and they couldn't be in a better class than Tirso Cruz who dealt with the Hotel. 6. Annex 1 the Manila Hotel contracted or engaged the "services of your orchestra" (of Tirso Cruz) composed of fifteen musicians including yourself plus Ric Cruz as vocalist" at P250 per day, said orchestra to "play from 7:30 p.m. to closing time daily". 7. What pieces the orchestra shall play, and how the music shall be arranged or directed, the intervals and other details such are left to the leader's discretion. The music instruments, the music papers and other paraphernalia are not furnished by the Hotel, they belong to the orchestra, which in turn belongs to Tirso Cruz not to the Hotel. The individual musicians, and the instruments they have not been selected by the Hotel. It reserved no power to discharge any musician. How much salary is given to the individual members is left

entirely to "the orchestra" or the leader. Payment of such salary is not made by the Hotel to the individual musicians, but only a lump-sum compensation is given weekly to Tirso Cruz. 8. An independent contractor is one who in rendering services, exercises an independent employment or occupation and represents the will of his employer only as to the results of his work and not as to the means whereby it is accomplished; one who exercising an independent employment, contracts to do a piece of work according to his own methods, without being subject to the control of his employer except as to the result of his work; and who engages to perform a certain service for another, according to his own manner and methods, without being subject to the control of his employer except as to the result of his work; and who engages to perform a certain service for another, according to his own manner and method, free from the control and direction of his employer in all matters connected with the performance of the service, except as to the result of the work. (56 C. J. S. pp. 41-43.) 9. Among the factors to be considered are whether the contractor is carrying on an independent business; whether the work is part of the employer's general 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 the work to another; the power to terminate the relationship; the existence of a contract for the performance of a specified piece of work; the control and supervision of the work; the employer's powers and duties with respect to the hiring, firing, and payment of the contractor's servants; the control of the premises; the duty to supply the premises, tools, appliances, material and labor; and the mode, manner, and terms of payment. LVN PICTURES, INC. vs. PHILIPPINE MUSICIANS Guild (FFW) & COURT OFINDUSTRIAL RELATIONS SAMPAGUITA PICTURES, INC. vs. PHILIPPINE MUSICIANS Guild (FFW) & COURT OF INDUSTRIALRELATIONS FACTS: 1. Respondent Philippine Musicians Guild (FFW) is a duly registered legitimate labor organization. LVN Pictures, Inc., Sampaguita Pictures, Inc., and Premiere Productions, Inc. are corporations, duly organized under the Philippine laws, engaged in the making of motion pictures and in the processing and distribution thereof. Petitioner companies employ musicians for the purpose of making music recordings for title music, background music, musical numbers, finale music and other incidental music, without which a motion picture is incomplete. Ninety-five (95%) percent of all the musicians playing for the musical recordings of said companies are members of the Guild. 2. The Guild has no knowledge of the existence of any other legitimate labor organization representing musicians in said companies. Premised upon these allegations, the Guild
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prayed that it be certified as the sole and exclusive bargaining agency for all musicians working in the aforementioned companies. In their respective answers, the latter denied that they have any musicians as employees, and alleged that the musical numbers in the filing of the companies are furnished by independent contractors. The lower court sustained the Guilds theory. A reconsideration of the order complained of having been deni ed by the Court en banc,LVN Pictures, inc., and Sampaguita Pictures, Inc., filed these petitions for review for certiorari. ISSUE: Whether the musicians in question(Guild members) are employees o f the petitioner film companies? YES 1. The Court agreed with the lower courts decision, to wit: Lower court resorted to apply R.A. 875 and US Laws and jurisprudence from which said Act was patterned after. (Since statutes are to be construed in the light of purposes achieved and the evils sought to be remedied). It ruled that the work of the musical director and musicians is a functional and integral part of the enterprise performed at the same studio substantially under the direction and control of the company. 2. In other words, to determine whether a person who performs work for another is the latter's employee or an independent contractor, the National Labor Relations relies on 'the right to control' test . Under this test an employer-employee relationship exist 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 the end. (United InsuranceCompany, 108, NLRB No. 115.). Notwithstanding that the employees are called independent contractors', the Board will hold them to be employees under the Act where the extent of the employer's control over them indicates that the relationship is in reality one of employment.(John Hancock Insurance Co., 2375-D, 1940, Teller, Labor Dispute Collective Bargaining, Vol.). 3. The right of control of the film company over the musicians is shown (1) by calling the musicians through 'call slips' in 'the name of the company; (2) by arranging schedules in its studio for recording sessions; (3) by furnishing transportation and meals to musicians; and(4) by supervising and directing in detail, through the motion picture director, the performance of the musicians before the camera, in order to suit the music they are playing to the picture which is being flashed on the screen. 4. The musical directors have no such control over the musicians involved in the present case. Said musical directors control neither the music to be played, nor the musicians playing it. The Premier Production did not appeal the decision of the Court en banc (tha ts why its not one of the petitioners in the case) film companies summon the musicians to work, through the musical directors. The film companies, through the musical directors, fix
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the date, the time and the place of work. The film companies, not the musical directors, provide the transportation to and from the studio. The film companies furnish meal at dinner time. It is well settled that "an employer-employee relationship exists . . .where the person for whom the services are performed reserves a right to control not only the end to be achieved but also the means to be used in reaching such end . . . ." 5. The decisive nature of said control over the "means to be used", is illustrated in the case of Gilchrist Timber Co., et al., in which, by reason of said control, the employer-employee relationship was held to exist between the management and the workers, notwithstanding the intervention of an alleged independent contractor, who had, and exercise, the power to hire and fire said workers 6. . The aforementioned control over the means to be used" in reading the desired end is possessed andexercised by the film companies over the musicians in the cases before us. 7. WHEREFORE, the order appealed from is hereby affirmed, with costs against petitioners herein. It is so ordered G.R. No. 77205 May 27, 1991 VALENTINO TORILLO, petitioner, vs. VICENTE LEOGARDO, JR., in his official capacity as Deputy Minister of Labor; the HONORABLE MINISTER OF LABOR AND EMPLOYMENT; and ABERDEEN COURT, INC., respondents. F.P. Pobre & Associates for petitioner. Delos Reyes, Bonifacio, Delos Reyes for Aberdeen Court, Inc. FERNAN, C.J.:p
FACTS: 1. Valentino Torillo, alias "Lady Valerie," was employed as an organist Aberdeen Court, Inc. in October 1977 with a daily compensation of P115.00 for five hour work a day. On July 2, 1978, he invited his co-employees for a night out in his hometown in Rosario, Cavite in celebration of his birthday. Aberdeen objected to such activity, requesting its employees, if possible, to refrain from attending the affair because the following day was a working day. 2. Torillo pushed through with his birthday party. 3. Torillo reported for work the next day, July 3. 4. On July 4, 1978, Aberdeen through its Floor Manager, informed petitioner that he was being dismissed from his employment effective that same day for having defied private respondent's order. 5. October 8, 1978 Torillo filed with the Ministry of Labor & Employment for illegal dismissal with prayer for reinstatement with backwages, including payment of his unpaid wages from July 1 to July 3, 1978, holiday pay and premium pay from February to July 1, 1978. 6

6. 7. 8. 9.

10. 11.

12.

13. 14.

15.

Aberdeen: Torillo abandoned his work in failing to report for duty after his birthday celebration. Ministry of Labor: IFO Torillo, reinstate + backwages + holiday pay Aberdeen appealed Ministry of Labor and Employment, thru Deputy Minister Vicente Leogardo, Jr., issued an order affirming that of Director Estrella with the modif: in lieu of reinstatement, petitioner should be paid separation pay equivalent to petitioner's wages for two (2) months. Torillo filed an urgent motion for execution Ministry of Labor, National Capital Region, thru its Officer-in-Charge, Romeo A. Young, issued a writ of execution on May 13, 1986 directing the sheriff to execute the order of Deputy Minister Leogardo, Jr. requiring private respondent to pay petitioner the total amount of P280,715.00 representing his backwages from July 4, 1978 to February 13, 1986, legal holiday pay for seven days, separation pay of two (2) months and unpaid wages for three (3) days. Personal properties of private respondent were levied upon. These personal properties were to have been sold in a public auction scheduled on May 30, 1986 were it not for the motion to quash the writ of execution Officer-in-charge Romeo A. Young of the Ministry of Labor, National Capital Region, issued a restraining order enjoining the assigned sheriff from proceeding with the auction sale Deputy Minister Vicente Leogardo, Jr. issued an order setting aside the order dated July 23, 1986, stating therein that the February 13, 1986 Order stands with the clarification that the affirmative relief granted to complainant does not include the payment of backwages. In addition, the writ of execution dated May 13, 1986 to enforce payment of backwages in the amount of P280,715.00 was quashed. Aberdeen: backwages should not be awarded to petitioner since the order of Deputy Minister Leogardo, Jr. on February 13, 1986 stated that in lieu of reinstatement, petitioner should only be paid separation pay equivalent to his wages for two (2) months. Assuming that petitioner is entitled to backwages, the law allows the employer to deduct from his backwages his income earned elsewhere during the time he was out of work. Torillo should be present during the computation of the monetary award. Backwages is available only where reinstatement is ordered.

ISSUE: WON the award of backwages in addition to an award of separation pay to an illegally dismissed employee whose reinstatement is no longer feasible is proper? YES 1. Illegality of petitioner's dismissal is a matter long settled in the Order dated November 23, 1978 issued by Director Estrella, which on appeal, was affirmed by then Deputy Minister Vicente Leogardo, Jr. on February 13, 1986. The finding of illegality of dismissal having thus attained finality, petitioner now questions the scope and extent of the reliefs granted to him by public respondent. 2. A number of cases have already been decided by this Court whereby an illegally dismissed employee is awarded both backwages and separation pay. 3. Article 280 (now Article 279) of the Labor Code provides that "an employee who is unjustly dismissed from work shall be entitled to reinstatement without loss of seniority rights and other privileges and to his full backwages . . . ." Backwages in general are granted on grounds of equity for earnings which a worker or employee has lost due to his illegal dismissal. Reinstatement, on the 7

other hand, means restoration to a state of condition from which one had been removed or separated. 4. Backwages and reinstatement are two reliefs given to an illegally dismissed employee. They are separate and distinct from each other. 5. However, in the event that reinstatement is no longer possible, separation pay is awarded to the employee. Thus, the award of separation pay is in lieu of reinstatement and not of backwages. In other words, an illegally dismissed employee is entitled to (1) either reinstatement, if viable, or separation pay if reinstatement is no longer viable and (2) backwages. 6. In the light of the above rulings of this Court, petitioner, by reason of his illegal dismissal is entitled to both separation pay and backwages. However, the amount of backwages shall be based on the Mercury Drug Rulewhich limits backwages of illegally dismissed employees to an amount equivalent to their wages for three (3) years, without qualification and deduction. The Court has adopted the practice of fixing the amount of backwages at a reasonable level without qualification and deduction so as to relieve the employees from proving their earnings during their layoffs and the employer from submitting counter proofs and thus obviate the twin evils of idleness on the part of the employees and attrition and undue delay in satisfying the award on the part of the employer. This practice has been hailed as a realistic, reasonable and mutually beneficial solution. An award of backwages equivalent to three years (where the case is not terminated sooner) serves as the base figure for such award without deduction. 7. Again, as we stated in Lepanto Consolidated Mining Company vs. Olegario, 26: "The Court serves notice on the National Labor Relations Commission (NLRC), labor arbiters and other responsible officials of the Department of Labor and Employment to take their bearings from this rule that illegally dismissed employees or laborers shall be entitled to reinstatement without loss of seniority (rights) and payment of backwages of not more than three (3) years without any qualification or deduction. Although this policy had been consistently adhered to by the Court even after the passage of the present Labor Code, there are still many instances, as in this case and other cases decided by the Court, where the labor arbiters and/or the NLRC still awarded backwages beyond the 3-year limit set by the Court. The governing principle, which has given consistency and stability to the law, is stare decisis et no movere (follow past precedent and do not disturb what has been settled). 27 8. With regards to petitioner's separation pay which was awarded to him in lieu of reinstatement, he shall receive the amount equivalent to one month wage/salary for every year of service, including the three-year period in which backwages are awarded. 9. Thus, based on the records of the case, we hold that the total amount due to petitioner is P146,255.37, computed as follows: A. Backwages P330,050.00*/2,779 days x 365 days x 3 years P130,048.48 B. Holiday Pay 1,610.00 C. Separation Pay P330,050.00/2,779 x 30 days x 4 years 14,251.89 D. Unpaid Wages from July 1 to 3, 1978 345.00 TOTAL P146,55.37 8

[G.R. No. 167622, November 07, 2008] GREGORIO V. TONGKO, PETITIONER, VS. THE MANUFACTURERS LIFE INSURANCE CO. (PHILS.), INC. AND RENATO A. VERGEL DE DIOS, RESPONDENTS. Facts: RESPONDENT Manufacturers Life Insurance Co. (Philippines) Inc. (Manulife) is engaged in life insurance business. On July 1, 1977, petitioner Gregorio V. Tongko entered into a Career Agents Agreement with respondent. As an agent, Tongko was to canvass for applications for life insurance, annuities, group policies and other products of Manulife and collect in exchange for provisional receipts issued by him money due or become due to the company. In a complaint for illegal dismissal filed by Tongko, Manulife interposed the defense of lack of employer-employee relationship between them. Issue: WON employer-employee exist between agent of insurance of companies? yes. If the specific rules and regulations that are enforced against insurance agents or managers are such that would directly affect the means and methods by which such agents or managers would achieve the objectives set by the insurance company, they are employees of insurance company. In the instant case, Manulife had the power of control over Tongko that would make him its employee. Several factors contribute to this conclusion. In the Agreement dated July 1, 1977 executed between Tongko and Manulife, it is provided that: The Agent hereby agrees to comply with all regulations and requirements of the Company as herein provided as well as maintain a standard of knowledge and competency in the sale of the Companys product which satisfies those set by the company and sufficiently meets the volume of new business required of Production Club membership. Under this provision, an agent of Manulife must comply with three requirements: (1) compliance with the regulations and requirements of the company; (2) maintenance of a level of knowledge of the companys products that is satisfactory to the company; and (3) compliance with a quota of new businesses. (Gregorio V. Tongko versus The Manufacturers Life Insurance Co. (Philippines) Inc., and Renato A. Vergel de Dios, G.R. No. 167622, Nov. 7, 2008). Nota Bene: On motion for Reconsideration, Supreme Court En banc reversed its ruling promulgated on June 29, 2010. SC declared that NO Employer-employee existed between Tongko and Manulife. Ruling in the Motion for Reconsideration

In disposing of this Motion for Reconsideration, the Supreme Court placed heavy significance on the application of the Civil Code and Insurance provisions on agency. The original Agreement of Tongko with the company dictates that he is an insurance agent. No other documentary evidence was found to support subsequent stipulations as to their relationship that would negate the agency, and not employment, relationship on the original agreement. It was found by the Court that Tongko declared himself as business or self-employed person in his income tax return. In a sense, an independent contractor. This bolsters the content of the Agreement mentioned above that he was an insurance agent in the context of the Insurance Code and the Civil Code. To the Court, this aspect of the evidence was not considered in its original decision, which had they been given importance, would have changed the decision as it is an admission against interest on the part of Tongko. Another principle that surfaced here is the concept of estoppel. Tongkos previous admissions in several years of tax returns as an independent agent, as against his belated claim that he was all along an employee, are too diametrically opposed to be simply dismissed or ignored. As to the value of the Code of Conduct relied upon by Tongko in claiming that he is an employee, the Court posits: What, to Tongko, serve as evidence of labor law control are the codes of conduct that Manulife imposes on its agents in the sale of insurance. The mere presentation of codes or of rules and regulations, however, is not per se indicative of labor law control as the law and jurisprudence teach us. As already recited above, the Insurance Code imposes obligations on both the insurance company and its agents in the performance of their respective obligations under the Code, particularly on licenses and their renewals, on the representations to be made to potential customers, the collection of premiums, on the delivery of insurance policies, on the matter of compensation, and on measures to ensure ethical business practice in the industry. Element of control in principal-agent relationship does not make the agent an employee of the principal. The general law on agency, on the other hand, expressly allows the principal an element of control over the agent in a manner consistent with an agency relationship. In this sense, these control measures cannot be read as indicative of labor law control. Foremost among these are the directives that the principal may impose on the agent to achieve the assigned tasks, to the extent that they do not involve the means and manner of undertaking these tasks. The law likewise obligates the agent to render an account; in this sense, the principal may impose on
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the agent specific instructions on how an account shall be made, particularly on the matter of expenses and reimbursements. To these extents, control can be imposed through rules and regulations without intruding into the labor law concept of control for purposes of employment. The Court further held that a commitment to abide by the rules and regulations of an insurance company does not ipso facto make the insurance agent an employee. Neither do guidelines somehow restrictive of the insurance agents conduct necessarily indicate control as this term is defined in jurisprudence. Guidelines indicative of labor law control, should not merely relate to the mutually desirable result intended by the contractual relationship; they must have the nature of dictating the means or methods to be employed in attaining the result, or of fixing the methodology and of binding or restricting the party hired to the use of these means. In fact, results-wise, the principal can impose production quotas and can determine how many agents, with specific territories, ought to be employed to achieve the companys objectives. These are management policy decisions that the labor law element of control cannot reach. Thus, as will be shown more fully , Manulifes codes of conduct, all of which do not intrude into the insurance agents means and manner of conducting their sales and only control them as to the desired results and Insurance Code norms, cannot be used as basis for a finding that the labor law concept of control existed between Manulife and Tongko. Thus, the Court did not see the existence of such relationship and reversed its earlier ruling which granted Tongko millions in backwages and damages, among others. G.R. No. 153511 July 18, 2012 LEGEND HOTEL (MANILA), owned by TITANIUM CORPORATION, and/or, NELSON NAPUD, in his capacity as the President of Petitioner Corporation, Petitioner, vs.HERNANI S. REALUYO, also known as JOEY ROA, Respondent. BERSAMIN, J.: FACTS: 1. Realuyo aka Joey Roa: pianist at the Legend Hotels Tanglaw Restaurant from September 1992 with an initial rate of P400.00/night that was given to him after each nights performance; that his rate had increased to P750.00/night; 2. He could not choose the time of performance, which had been fixed from 7:00 pm to 10:00 pm for three to six times/week Legend Hotels restaurant manager had required him to conform with the venues motif; that he had been subjected to the rules on employees representation checks and chits, a privilege granted to other employees;
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3. July 9, 1999, the management had notified him that as a cost-cutting measure his services as a pianist would no longer be required effective July 30, 1999; 4. Roa filed an illegal dismissal case 5. Roa: Legend Hotel had been lucratively operating as of the filing of his complaint; and that the loss of his employment made him bring his complaint.2 6. Legend: no employer-employee relationship, he had been only a talent engaged to provide live music for three hours/day on two days each week; economic crisis that had hit the country constrained management to dispense with his services. 7. LA: complaint dismissed, not employee 8. CA: reversed IFO Roa ISSUES: 1. WON Roa was an employee of Legend? YES POWER OF SELECTION. This is true, notwithstanding petitioners insistence that respondent had only offered his services to provide live music at petitioners Tanglaw Restaurant, and despite petitioners position that what had really transpired was a negotiation of his rate and time of availability. The power of selection was firmly evidenced by, among others, the express written recommendation dated January 12, 1998 by Christine Velazco, petitioners restaurant manager, for the increase of his remuneration. Petitioner could not seek refuge behind the service contract entered into with respondent. It is the law that defines and governs an employment relationship, whose terms are not restricted to those fixed in the written contract, for other factors, like the nature of the work the employee has been called upon to perform, are also considered. Any stipulation in writing can be ignored when the employer utilizes the stipulation to deprive the employee of his security of tenure. The inequality that characterizes employeremployee relations generally tips the scales in favor of the employer, such that the employee is often scarcely provided real and better options SALARIES. Legend: whatever remuneration was given to respondent were only his talent fees that were not included in the definition of wage under the Labor Code; and that such talent fees were but the consideration for the service contract entered into between them. The argument is baseless. There is no denying that the remuneration denominated as talent fees was fixed on the basis of his talent and skill and the quality of the music he played during the hours of performance each night, taking into account the prevailing rate for similar talents in the entertainment industry Respondents remuneration, albeit denominated as talent fees, was still considered as included in the term wage in the sense and context of the Labor Code, regardless of how
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petitioner chose to designate the remuneration. Anent this, Article 97(f) of the Labor Code clearly states: xxx wage paid to any employee shall mean 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. Clearly, respondent received compensation for the services he rendered as a pianist in petitioners hotel. Petitioner cannot use the service contract to rid itself of the consequences of its employment of respondent. Every employer is required to pay his employees by means of a payroll, which should show in each case, among others, the employees rate of pay, deductions made from such pay, and the amounts actually paid to the employee. Yet, petitioner did not present the payroll of its employees to bolster its insistence of respondent not being its employee. That respondent worked for less than eight hours/day was of no consequence and did not detract from the CAs finding on the existence of the employer-employee relationshipArticle 83 of the Labor Code only set a maximum of number of hours as "normal hours of work" but did not prohibit work of less than eight hours. POWER OF CONTROL is considered the most significant determinant of the existence of an employer-employee relationship. This is the so-called control test, and is premised on whether the person for whom the services are performed reserves the right to control both the end achieved and the manner and means used to achieve that end Legend: it did not exercise the power of control over respondent and cites the following to buttress its submission, namely: (a) respondent could beg off from his nightly performances in the restaurant for other engagements; (b) he had the sole prerogative to play and perform any musical arrangements that he wished; (c) although petitioner, through its manager, required him to play at certain times a particular music or song, the music, songs, or arrangements, including the beat or tempo, were under his discretion, control and direction; (d) the requirement for him to wear barong Tagalog to conform with the Filipiniana motif of the venue whenever he performed was by no means evidence of control; (e) petitioner could not require him to do any other work in the restaurant or to play the piano in any other places, areas, or establishments, whether or not owned or operated by petitioner, during the three hour period from 7:00 pm to 10:00 pm, three to six times a week; and (f) respondent could not be required to sing, dance or play another musical instrument.

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Legend had control of both the end achieved and the manner and means used to achieve that end was demonstrated by the following, to wit: 1. He could not choose the time of his performance, which petitioners had fixed from 7:00 pm to 10:00 pm, three to six times a week; 2. He could not choose the place of his performance; 3. The restaurants manager required him at certain times to perform only Tagalog songs or music, or to wear barong Tagalog to conform to the Filipiniana motif; and 4. He was subjected to the rules on employees representation check and chits, a privilege granted to other employees. Relevantly, it is worth remembering that the employer need not actually supervise the performance of duties by the employee, for it sufficed that the employer has the right to wield that power. POWER TO DISMISS. Legend: it had no power to dismiss respondent due to his not being even subject to its Code of Discipline, and that the power to terminate the working relationship was mutually vested in the parties, in that either party might terminate at will, with or without cause. SC: The claim is contrary to the records. Indeed, the memorandum informing respondent of the discontinuance of his service because of the present business or financial condition of petitioner showed that the latter had the power to dismiss him from employment

2. If respondent was petitioners employee, WON he was validly terminated? NO Retrenchment is one of the authorized causes for the The Court has laid down the following standards that an employer should meet to justify retrenchment and to foil abuse, namely: 1. The expected losses should be substantial and not merely de minimis in extent; 2. The substantial losses apprehended must be reasonably imminent; 3. The retrenchment must be reasonably necessary and likely to effectively prevent the expected losses; and 4. The alleged losses, if already incurred, and the expected imminent losses sought to be forestalled must be proved by sufficient and convincing evidence In termination cases, the burden of proving that the dismissal was for a valid or authorized cause rests upon the employer. Here, petitioner did not submit evidence of the losses to its business operations and the economic havoc it would thereby imminently sustain. It only claimed that respondents termination was due to its "present business/financial condition." This bare statement fell short of the norm to show a valid retrenchment. Hence, we hold that there was no valid cause for the retrenchment of respondent.
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Javier v Fly Ace PETITIONER Bitoy Javier alleged that he was an employee of respondent Fly Ace Corp., performing various tasks at its warehouse such as cleaning and arranging the canned items before their delivery to certain locations, except in instances when he would be ordered to accompany the companys delivery vehicles as pahinante. To support his claim, Javier adduced no other evidence except an affidavit executed by one Bengie Valenzuela, who only attested that he would frequently see Javier at the workplace where he was also hired as stevedore. Does Javiers evidence suffice to establish employer-employee relationship between Fly Ace and him? No. 1. Expectedly, opposing parties would stand poles apart and proffer allegations as different as chalk and cheese. It is, therefore, incumbent upon the Court to determine whether the party on whom the burden to prove lies was able to hurdle the same. No particular form of evidence is required to prove the existence of such employer-employee relationship. Any competent and relevant evidence to prove the relationship may be admitted. Hence, while no particular form of evidence is required, a finding that such relationship exists must still rest on some substantial evidence. Moreover, the substantiality of the evidence depends on its quantitative as well as its qualitative aspects. Although substantial evidence is not a function of quantity but rather of quality, the x x x circumstances of the instant case demand that something more should have been proffered. Had there been other proofs of employment, such as x x x inclusion in petitioners payroll, or a clear exercise of control, the Court would have affirmed the finding of employer-employee relationship. 2. In sum, the rule of thumb remains: the onus probandi falls on petitioner to establish or substantiate such claim by the requisite quantum of evidence. Whoever claims entitlement to the benefits provided by law should establish his or her right thereto x x x. 3. In this case, the labor arbiter and the Court of Appeals (CA) both concluded that Javier failed to establish his employment with Fly Ace. All that Javier presented were his self-serving statements purportedly showing his activities as an employee of Fly Ace. He failed to pass the substantiality requirement to support his claim. Hence, the Court sees no reason to depart from the findings of the CA. 4. While Javier remains firm in his position that as an employed stevedore of Fly Ace, he was made to work in the company premises during weekdays arranging and cleaning grocery items for delivery to clients, no other proof was submitted. The lone affidavit executed by one Bengie Valenzuela was unsuccessful in strengthening Javiers cause. All Valenzuela attested to was that he would frequently see Javier at the workplace where the latter was also hired as stevedore. Tthe Court cannot ignore the inescapable conclusion that Javiers
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mere presence at the workplace falls short in proving employment therein. The affidavit could have bolstered Javiers claim of being tasked to clean grocery items when there were no scheduled delivery trips, but no information was offered simply because the witness had no personal knowledge of Javiers employment status. The Court cannot accept Javiers statements, hook, line and sinker. (Bitoy Javier vs. Fly Ace Corp./Flordelyn Castillo, G.R. No. 192558, Feb. 15, 2012). APEX MINING CO V NLRC 196 SCRA 251 GANCAYCO; April 22, 1991 NATURE Special civil action for certiorari to annul NLRC decision FACTS - Sinclita Candida was employed by Apex Mining Company, Inc. to perform laundry services at its staff house. At first, she was paid on a piece rate basis. Later, she was paid on a monthly basis. - While she was hanging her laundry, she accidentally slipped and hit her back on a stone. She reported the accident to her immediate supervisor and to the personnel officer. As a result of the accident she was not able to continue with her work. - She was permitted to go on leave for medication and was offered P2k which was eventually increased to P5k to persuade her to quit her job, but she refused the offer and preferred to return to work. Petitioner did not allow her to return to work and dismissed her. - Labor arbiter ordered Apex Mining Company to pay the complainant Salary Differential, Emergency Living Allowance, 13th Month Pay Differential and separation pay of one month for every year of service NLRC affirmed. ISSUE WON the househelper in the staff houses of an industrial company is a domestic helper NO - Petitioner is a regular employee - Rule XIII, Section l(b), Book 3 of the Labor Code: The term "househelper" as used herein is synonymous to the term "domestic servant" and shall refer to any person, whether male or female, who renders services in and about the employer's home and which services are usually necessary or desirable for the maintenance and enjoyment thereof, and ministers exclusively to the personal comfort and enjoyment of the employer's family. - The foregoing definition clearly contemplates such househelper or domestic servant who is employed in the employer's home to minister exclusively to the personal comfort and
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enjoyment of the employer's family. The definition cannot be interpreted to include househelp or laundrywomen working in staffhouses of a company - The criteria is the personal comfort and enjoyment of the family of the employer in the home of said employer. - While it may be true that the nature of the work of a househelper, domestic servant or laundrywoman in a home or in a company staffhouse may be similar in nature, the difference in their circumstances is that in the former instance they are actually serving the family while in the latter case, whether it is a corporation or a single proprietorship engaged in business or industry or any other agricultural or similar pursuit, service is being rendered in the staffhouses or within the premises of the business of the employer. In such instance, they are employees of the company or employer in the business concerned entitled to the privileges of a regular employee. Disposition Petition dismissed REMINGTON INDUSTRIAL SALES CORP. v. CASTANEDA Facts: Erlinda Castaneda had instituted a complaint for illegal dismissal, underpayment of wages, nonpayment of overtime service incentive leave pay and non-payment of 13th month pay against Remington (a trading business) before the NLRC. Castaneda alleged: She started working in August 1983 as company cook for Remington, worked for six days a week. 6 am as she markets until 5:30 pm after employees leave. She continuously worked with Remington until unceremoniously prevented from reporting for work when it transferred to a new site. When she reported for work at the new site but was informed that Remington no longer needed her services. She was illegally dismissed because she was not given the notices required by law. So she filed her complaint for reinstatement without loss of seniority rights etc. Remington: Denied that it dismissed Erlinda illegally, saying she was a domestic helper, not a regular employee Her job did not have anything to do with the business of trading in construction or hardware materials. She did not work eight hours. After cooking lunch and snack, her time was hers. Remington did not exercise any degree of control over her work. She did not even need to punch any time card. Labor Arbiter: dismissed Castaneda complaint. She was a domestic helper. NLRC: Reversed Labor Arbiter.
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Not a domestic helper. No allegation that she worked in the house of director or Remington, Mr. Tan. Facts-wise, she worked as a cook in the office so that it benefited not the family of Mr. Tan but his employees.There is a certification issued by the corporate secretary certifying that she was a bonafide employee.Her work schedule and the fact of being paid a monthly salary indicate that she is a company employee. The food she prepares are part of the benefit the business provides for the employees.CA affirmed NLRC. ISSUE: was Castaneda a regular employee in Remington? YES. HELD: Apex Mining Co., Inc. v. NLRC: a househelper in the staff houses of an industrial company was a regular employee of the said firm. The criterion is the personal comfort and enjoyment of the family of the employer in the home of said employer.That she works within company premises and that she does not cater exclusively to the personal comfort of Mr. Tan and his family reflects the existence of Remington's right of control over her functions, which is the primary indicator of the existence of an employer-employee relationship.Wrong to say that if the work is not directly related to the employer's business, then the person performing such work could not be considered an employee. The existence of the employer-employee relationship is defined by law according to the facts of each case, regardless of the nature of the activities involved .Doctrine, also laid out in Apex:The mere fact that the househelper or domestic servant is working within the premises of the business , as in staffhouses for its guest or even for its officers and employees, warrants the conclusion that such househelper or domestic servant is and should be considered as a regular employee of the employer. NOTE: It was held she was illegally dismissed. She enjoys security of tenure. She may not be dismissed in the absence of just or authorized cause. SAN MIGUEL BREWERY SALES FORCE UNION V. OPLE 170 SCRA 25 GRIO AQUINO, J FACTS 1. On April 17, 1978, a collective bargaining agreement (effective on May 1, 1978 until January 31, 1981) was entered into by petitioner San Miguel Corporation Sales Force Union (PTGWO), and the private respondent, San Miguel Corporation, Section 1, of Article IV of which provided as follows: Art. IV, Section 1. Employees within the appropriate bargaining unit shall be entitled to a basic monthly compensation plus commission based on their respective sales. 2. In September 1979, the company introduced a marketing scheme known as the Complementary Distribution System (CDS) whereby its beer products were offered for sale directly to wholesalers through San Miguels sales offices.
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3. The labor union (herein petitioner) filed a complaint for unfair labor practice in the Ministry of Labor, with a notice of strike on the ground that the CDS was contrary to the existing marketing scheme whereby the Route Salesmen were assigned specific territories within which to sell their stocks of beer, and wholesalers bad to buy beer products from them, not from the company. 4. It was alleged that the new marketing scheme violates Section 1, Article IV of the collective bargaining agreement because the introduction of the CDS would reduce the take-home pay of the salesmen and their truck helpers for the company would be unfairly competing with them. ISSUES 1. Whether or not the Complementary Distribution System violates the collective bargaining agreement? NO HELD 1. NO. The CDS was a valid exercise of management prerogative. Except as limited by special laws, an employer is free to regulate, according to his own discretion and judgment, all aspects of employment. Including hiring, work assignments, working methods, time, place and manner of work, tools to be used, processes to be followed, supervision of workers, working regulations, transfer of employees, work supervision, layoff of workers and the discipline, dismissal and recall of work. So long as a companys management prerogatives are exercised in good faith for the advancement of the employers interest and not for the purpose of defeating or circumventing the rights of the employees under special laws or under valid agreements, this Court will uphold them. 2. Whether it is an indirect way of busting the union? NO. San Miguel Corporations offer to compensate the members of its sales force who will be adversely affected by the implementation of the CDS, by paying them a so-called back adjustment commission to make up for the commissions they might lose as a result of the CDS, proves the companys good faith and lack of intention to bust their union. SIME DARBY V NLRC Facts: Petitioner is engaged in the manufacture of automotive tires, tubes and other rubber products. Private respondent is an association of monthly salaried employees of petitioner at its Marikina factory. Beforehand, all company factory workers in Marikina including members of private respondent union worked from 7:45am to 3:45pm with a 30-minute paid on call lunch break. Petitioner issued a memorandum to all factory- based employees advising all its monthly salaried employees in its Marikina Tire Plant, except those in the Warehouse and Quality Assurance Department working on shifts.

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Private respondent felt affected adversely by the change in the workschedule and discontinuance of the 30-minute paid on call lunch break, hence the filling of complaint for unfair labor practice, discrimination and evasion of liability. The Labor Article dismissed the complainant on the ground that the change in the work scheduleand the elimination of the 30minute paid lunch break of factory workers constituted a valid exercise of management prerogative and did not decrease the benefits granted to factory workers as the working time did not go beyond 8 hours. Hence, this petition. Issue: Whether or not there was a diminution of benefits when the 30-minute paid lunch break was eliminated Held: The right to fix the work, schedules of the employees rests principally on their employer. The petitioner cities as reason for the adjustment the efficient conduct of its business operations and its improved production. Since the employees are no longer required during this one-hour lunch break, there is no more need for them to be compensated for this period. The new work schedule fully complies with the daily work period of eight (8) hours without violating the Labor Code. Also, the new schedule applies to all employees in the factory similarly situated whether they are union members or not; Even as the law is solicitous of the welfare of the employees; it must also protect the right of an employer to exercise what are clearly management prerogatives; Management retains the prerogative, whenever exigencies of the service so require, to change the working hours of its employees Petition is granted. The dismissed complaint against petitioner for unfair labor practice is affirmed. Interphil Laboratories Employees Union FFW et al Vs. Interphil Laboratories, Inc at al Facts: Interphil Laboratories Employees Union-FFW is the sole and exclusive bargaining agent of the rank- and- file employees of Interphil Laboratories, Inc- a company engaged in the business of manufacturing and packaging pharmaceutical products. They had a Collective Bargaining Agreement (CBA) effective from August 01, 1990 to July 31, 1993. Prior to the expiration of the CBA, Allesandro G. Salazar, the Vice President of the Human Resources Department of the respondent company was approached by Nestor Ocampo, the union president and Hernando Clemente. Salazar told the union officers that the matter could be discussed during formal negotiations. March 1993- The union officers again approached Salazar. They required once more about the CBA status and received the same reply from Salazar. April 1993- Ocampo requested for a meeting to discuss the duration and effectivity of CBA. Salazar however, declared that it would still be premature to discuss the matter and that the company could not make a decision at a moment.
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The following day all the rank- and file employees refused to follow their regular shift work schedule: o From 6:00 am to 6:00 pm /6:00 pm to 6:00 am o 2:00 pm to 2:00 am The employees stopped working and left their workplace without sealing the containers and securing the raw materials they were working on To minimize the damage the overtime boycott was causing the company, Salazar immediately asked for the meeting with the union officers. Gonzales told Salazar that the employees will return to their normal work schedule if the company would agree to their demands as to the effectivity and duration of the new CBA (agreement must be effective for 2 years). Again, Salazar told the union officers that the matter could be discussed during formal negotiations unsatisfied with the answer the employees started to engage in a work slowdown campaign to delay the production of the company. September 1993- respondent company filed with NLRC a petition to declare illegal petitioner unions overtime boycott and work slowdown . It amounted to illegal strike. October 1993, respondent company filed with National Conciliation and Mediation Board (NCMB) an urgent request for preventive mediation aimed to help the parties in their CBA negotiations. January 1994- petitioner union filed with the NCMB a Notice of Strike citing unfair labor allegedly committed by the respondent company. February 1994- Secretary of Labor Nieves Confessor issued an order directing respondent company to o Immediately accept all striking workers, including the 53 terminated union officers o Shop stewards and union members back to work under the same terms and conditions o To pay all the unpaid accrued year end benefits of its employees. On the other hand, petitioner union was directed to strictly and immediately comply with the return-to work order. September 1995- Secretary Quisumbing approved and adopted the decision of the Labor Arbiter Caday declaring the overtime boycott and work slowdown as illegal strike and found out that the respondent company is guilty of unfair labor practice. Petitioner unions reconsideration and petition for certiorari were denied.

Issue: 1. Whether or not the Secretary of Labor and Employment has a jurisdiction over labor and labor related dispute. YES. 2. Whether or not the 12 working hours violate the right of the employees to just work for not more than 8 hours a day. NO

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3. Whether or not the overtime boycott or work slowdown by the employees constitutes a violation of the CBA which prohibits the union to stage a strike or engage in slowdown or interruption of work. YES

Ratio: 1. In the present case, the Secretary was explicitly granted by Article 263 of the labor Code the authority to assume jurisdiction over a labor dispute causing or likely to cause or lockout in an industry. Necessarily, this authority to assume jurisdiction over the said labor dispute must include and extend to all questions and controversies including cases over which the labor arbiter has exclusive jurisdiction. 2. The regular working hours shall consist of not more than eight (8) hours. It shall be 7:30 am to 4:30 pm. The schedule of shift work shall be maintained; however, the company may change the prevailing work time at its discretion, should such change be necessary in the operations of the company. All employees shall observe such rules as have been laid down by the company for the purpose of effecting control over working hours. The Labor Arbiter found out that the respondent company had to adopt a continuous 24-hour work daily schedule by reason of the nature of its business and the demands of its clients. 3. Because there is a contractual commitment that there shall be no strikes, walkouts, stoppage or slowdown of work, boycotts or secondary boycotts x x x or any interference with any of the operations of the company during CBA. The workers refusal to adhere to the work schedule in force is a slowdown and it is inherently illegal activity essentially illegal even in the absence of a no-strike clause in a CBA. The court also agrees that such slowdown is generally condemned as inherently illicit and unjustifiable because while the employees continue to work and remain at their positions and accept the wages paid to them. They select what part of their allotted tasks they care to perform. In other words, they work on their own terms. Wherefore, the petition is DENIED DUE COURSE.

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