Read also: How to ensure the legitimacy of employment contracts Legal contracts. On the other hand, the “award of contracts” is undoubtedly legal, in which, in the Rasan case, “(a) the contractor or subcontractor .. an independent company and undertakes to carry out the work, work or services. under its own responsibility in its own way and free from the control and direction of the customer in all matters. except as regards the result […]; (b) the contractor. has significant capital or investment; and (c) the agreement between the contracting authority and the contractor. guarantees contract workers the right to all occupational health and safety standards, the free exercise of the right to self-organization, security of affiliation and social and social benefits. According to Departmental Ordinance No. 174, 2017 series (DO-174), published by the Department of Labor and Employment (DOLE), the mere awarding of employment contracts is prohibited. “Thus, the applicant and the complainants (who withdrew from the case) carried out the activities necessary for the marketing of the products which Adidas (principal) manufactured itself.
They sold these products for several years, from June 1995 to 9 December 2000. Although Adidas states that it amended its articles of association in October 2002 in order to operate in the retail sector, it cannot be denied that it was already active in the retail trade in 1995 through its representatives WOSI and JCA and the prime contractor PRIME. Thus, the applicant had become a regular employee of Adidas long before she was allegedly appointed as a “contract employee” of PRIME. Adidas exercised control and supervision over the performance of the applicant`s work. However, the president responded that he could not prohibit what the labor law allows, saying, “You are asking me to break the law. What happens if I am charged? Its spokesman Harry Roque added that “the prohibition of contracting can only be extended by legislation”. ▪ The establishment of a pure employment contract leads to the declaration of the employer client. Faced with this very vulnerable position of workers, the sovereign people gave the state a constitutional mandate to provide workers with full protection. The Labour Code, in particular Articles 106 to 109, DO 18-A and labour jurisprudence, are part of the protection mechanisms to support the working class.
Recently, in at least two landmark decisions, the Supreme Court has further strengthened the state`s protective mantle against the evils of pure employment contracts. In the Lorenzo Shipping Corporation (GR 186091) case, delivered on 15 December 2011, the High Court reiterated the strict aversion of the law to pure employment contracts. According to Ministerial Order No. 174 (2017 series) of the Department of Labor and Employment (DOLE), a pure labor contract occurs if the contractor or subcontractor does not have (1) “substantial capital [at least 5 million pesos] OR (2). Investments in the form of tools, equipment, machinery, monitoring, workspaces, etc. AND (3) . Workers recruited or placed carry out activities directly related to the main activity of the contracting authority. This also happens when “the contractor . does not practice . Control of the performance of the employee`s work. The impact of these supply agreements varies considerably. According to the Labour Code, in the case of pure employment contracts, the person or intermediary acting as a contractor is considered only as the client`s representative. The customer remains liable to the employees in the same way and to the same extent as if they were directly employed by him.
Therefore, the client pays all salaries, benefits and other claims arising from the employer-employee relationship. However, in the case of statutory employment contracts, the joint and several liability of the contractor and the client exists only for the limited purpose of paying the wages of the contractor`s employees assigned to the principal under an employment contract. Even if the contractor`s employees resort to the client in the event of non-payment, there is no employer-employee relationship between the employees and the client. Liability is limited because the contractor remains the employer and the client is not responsible for any other claims of the contractor`s employees. The Philippine government has stepped up its efforts to crack down on “labor contracts” to protect workers` rights, as evidenced by its intensified monitoring and enforcement efforts. There is a need for companies to ensure that service companies and subcontractors comply with the rules on obtaining jobs by reviewing their contractual arrangements and employment practices. Similarly, the Agito Court rejected Coca-Cola`s argument that the sellers were employees of Interserve, even though Coca-Cola had produced its files containing personal data from Interserve`s records; their temporary employment contract with Interserve [the contractor]; and Interserve payslips. In stating categorically that Interserve was a pure labour contractor, the Court found that the work of the defendant sellers, namely the distribution and sale of Coca-Cola products, was manifestly essential to the applicant`s main business, Coca-Cola. (Quintanar v.
Coca-Cola Bottlers, Philippines, Inc., En Banc, June 28, 2016, citing Coca-Cola Bottlers Phils. Inc. v. Agito, G.R. No. 179546, 13. February 2009) 7) Requirement for contractor/subcontractor employees to sign a pre-dated termination letter as a condition of employment or continued employment; a blank pay slip; a departure from labour standards, including minimum wage and social or social benefits; or a termination that releases the Client or Contractor from any liability for the payment of future claims; or require the employee to become a member of a co-operative; ▪ There are illegal forms of employment contracts that are prohibited in the case of procurement and subcontracting. Under the Labour Code, the State may restrict or prohibit the distribution of labour in order to protect workers` rights. Procurement is not absolutely prohibited. The latest issue of the Department of Labor and Employment (DOLE), Departmental Ordinance (DO) 174, art.
2017, sets out the parameters of eligible contractual arrangements. Consistency of the following points is essential for a contractor to be considered a legitimate employment agent: In the case of pure employment contracts, employees hired, provided or arbitrated by the contractor perform activities directly related to the principal of his principal. In this case, the applicant`s activity as a commercial agent is directly related to RFC`s activities. Since RFC is active in the manufacture and sale of food products, it is necessary for RFC to hire a commercial agent such as the petitioner to take care of the reservation of its sales orders and the collection of payments for them. Consequently, the applicant`s activity as a commercial agent within RFC can be carried out only to the extent that it is clearly linked to its commercial activities. Logically, when PMCI`s claimant was assigned to the RFC, PMCI acted merely as a contractor. (Vinoya v. NLRC, Regent Food Corporation, G.R.
No. 126586, February 2, 2000) In summary, we believe that PRIME has not met the fourfold criterion of the employer-employee relationship, making it a pure contractual working partner according to the law and the rules. Like JCA, she was only a representative of Adidas, despite requests from some plaintiffs for dismissal in her favour. Adidas is therefore the applicant`s actual employer, which is liable to her in the same way and to the same extent as if she were directly employed by the undertaking. In this context, we note that the complainant was unlawfully dismissed, as there is clearly no valid reason for her dismissal and there is no due process. (Cusap v. Adidas Philippines, Inc., G.R. No. 201494, 29. July 2015) Since the introduction of the new guidelines, DOLE has intensified monitoring and enforcement measures to crack down on “employment contracts.” DOLE has intensified its efforts to eliminate “labor contracts” and other forms of illegal contractual arrangements by being more proactive in conducting labor evaluations and investigations into the regularization of workers` employment status in the Philippines. ▪ This is an agreement that violates laws and regulations governing procurement and procurement.
On Labor Day, President Duterte signed Executive Order No. 51 (EO 51), “protecting all workers` right to security of property” and “prohibiting contracts and subcontracting when entered into to circumvent workers` rights to property security, self-organization, and collective bargaining. as well as concerted peaceful activities”. DO 174, s 2017 explicitly states that an entrepreneur is only involved in employment contracts if this company does not have the right to control the performance of the employee`s work. The right of control includes the right to decide how work is performed, to prescribe procedures, to supervise and correct the performance, and to control the means and manner of achieving results or results. The party who can exercise this right is the employee`s true employer. If we really think about it, it is nothing more than protection for vulnerable sectors of the workforce. Labour protection is not necessarily a suppression of capital.