LVN vs Phil Musicians Guild

Facts:
-

Review on certiorari Certifying the Phil Musicians Guild (FFW) as the sole
and exclusive bargaining agency of all musicians working with said
companies. (LVN, Sampaguita Pictures, and Premiere Productions)
Guild duly registered legitimate labor organization.
LVN and Sampaguita (Company) corporations duly organized under the Phil
laws, engage in the making of motion pictures and in the processing and
distribution thereof.
Employs musicians purpose of making music recordings for title music,
background music, musical numbers, finale music and other incidental music.
Prayed be declared as sole and exclusive bargaining agency for all musicians
Company - petition for certification cannot be entertained when the existence
of employer-employee relationship between the parties is contested.
The musical numbers in the filing of the companies are furnished by
independent contractors.

Issue
-

WON the musicians are employees of the said companies / WON there is EREE Relationship between the Musicians and the Companies.

Held:
-

Yes. 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. 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. 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.
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.
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 (thats 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 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 employeremployee 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 . . . ."

Legend Hotel vs Hernani S. Realuyo

Facts:
-

A case for illegal dismissal and for other labor standards benefits was filed by
Realuyo (AKA Joey R. Roa), a pianist employed to perform in the restaurant,
against Legend.
Realuyo worked as pianist; rate 400-750/night; performs at 7-10pm 6x a
week.
Hotel no ER-EE relationship; talent engaged to perform music; 3hrs/day, 2x
a week; economic crisis mgt dispense of his services.
Labor Arbiter and NLRC no ER-EE because Realuyo was receiving Talent
Fee as compensation.
CA Realuyo was supervised and controlled by the Hotels mgt, who
sometimes requires him to play tagalog songs and dress according to the
motif of the place of performance. His job was in furtherance of the
restaurant business of the hotel.

Issue:
-

WON Realuyo was an employee of the Hotel / WON there is ER-EE relationship

Held:
-

Yes. The hotel wielded the power of selection at the time it entered into the
service contract dated Sept. 1, 1992 with Roa. The hotel could not seek
refuge behind the service contract entered into with Roa. 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.
The law affords protection to an employee, and does not countenance any
attempt to subvert its spirit and intent. 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 employer-employee

relationship generally tips the scales in favor of the employer, such that the
employee is often scarcely provided real and better options.
The argument that Roa was receiving talent fee and not salary is baseless.
There is no denying that the remuneration denominated as talent fees was
fixed on the basis of his talent, skill, and the quality of music he played
during the hours of his performance. Roas 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 petitioner chose to
designate the remuneration, as per Article 97(f) of the Labor Code.
The power of the employer to control the work of the employee 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.
a. 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;
b. He could not choose the place of his performance;
c. 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
d. He was subjected to the rules on employees representation check
and chits, a privilege granted to other employees.

Dy Khe Beng vs INTERNATIONAL LABOR and MARINE UNION OF THE PHILIPPINES, ET

AL.
Facts:
-

A charge of unfair labor practice was filed against Dy Keh Beng, a proprietor
of a basket factory, by dismissing Solano and Tudla for their union activities.
Dy Keh Beng contended that he did not know Tudla and Solano was not his
employee because the latter came to the establishment only when there was
work which he did on pakiaw basis.
Solano was not his employee for the following reasons:
(1) Solano never stayed long enough at Dy's establishment;
(2) Solano had to leave as soon as he was through with the
(3) order given him by Dy;
(4) When there were no orders needing his services there was nothing
for him to do;

(5) When orders came to the shop that his regular workers could not fill
it was then that Dy went to his address in Caloocan and fetched him
for these orders; and
(6) Solano's work with Dy's establishment was not continuous.
Issue:
-

WON Tudla and Solano are employees of Dy

Held:
-

Yes. Evidence showed that the work of Solano and Tudla was continuous
except in the event of illness, although their services were compensated on
piece basis. The control test calls for the existence of the right to control the
manner of doing the work, not the actual exercise of the right considering
that Dy Keh Beng is engaged in the manufacture of baskets known as
kaing, those working under Dy would be subject to Dys specifications such
as the size and quality of the kaing. And since the laborers are done at Dys
establishments, it could be inferred that Dy could easily exercise control upon
them.
If indeed payment by piece is just a method of compensation and does not
define the essence of the relation. Payment cannot be construed by piece
where work is done in such establishment so as to put the worker completely
at liberty to turn him out and take it another at pleasure.
"Sunrise Coconut Products Co. v. Court of Industrial Relations" - judicial notice
of the fact that the so-called "pakyaw" system mentioned in this case as
generally practiced in our country, is, in fact, a labor contract -between
employers and employees, between capitalists and laborers.

RJL Martinez Fishing vs NLRC

Facts:
-

RJL is principally engaged in the deep-sea fishing business. Since 1978,

private respondents were employed by them as stevedores at Navotas Fish
Port for the unloading of tuna fish catch from petitioners' vessels and then
loading them on refrigerated vans for shipment abroad.
On March 27, 1981, private respondents Antonio Boticario, and thirty (30)
others, upon the premise that they are petitioners' regular employees, filed a
complaint against petitioners for non-payment of OT pay, premium pay, legal
holiday pay, emergency allowance, SIL and NSD. On April 21, 1981 another
complaint against petitioners for Illegal Dismissal and for Violation of Article
118 of the Labor Code.
RJL - private respondents are contract laborers whose work terminated upon
completion of each unloading, and that in the absence of any boat arrivals,

private respondents did not work for petitioners but were free to work or seek
employment with other fishing boat operators.
LA PRs are contractual employees; assuming they are employees, their
employment are coterminous with each unloading and loading job; Pet are
not under obligation to hire PRs exclusively; no termination but merely rehiring.
NLRC there is ER-EE relationship.

Issue:
-

WON there is ER-EE relationship between PRs and RJL.

Held:
-

Yes. The continuity of employment is not the determining factor, but rather
whether the work of the laborer is part of the regular business or occupation
of the employee.
Although it may be that private respondents alternated their employment on
different vessels when they were not assigned to petitioners' boats, that did
not affect their employee status. The evidence also establishes that
petitioners had a fleet of fishing vessels with about 65 ship captains, and as
private respondents contended, when they finished with one vessel, they
were instructed to wait for the next.
Industrial-Commercial-Agricultural Workers Organization vs. CIR - "that during
the temporary layoff the laborers are considered free to seek other
employment is natural, since the laborers are not being paid, yet must find
means of support" and such temporary cessation of operations "should not
mean starvation for employees and their families."
Indeed, considering the length of time that private respondents have worked
for petitioner since 1978 there is justification to conclude that they were
engaged to perform activities usually necessary or desirable in the usual
business or trade of petitioners and are, therefore, regular employees, such
that they are entitled to the benefits awarded.

PHILIPPINE SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS vs COA

Facts:
-

The petitioner was incorporated as a juridical entity over one hundred years
ago by virtue of Act No. 1285, enacted on January 19, 1905, by the Philippine
Commission. The petitioner, at the time it was created, was composed of
animal aficionados and animal propagandists. The objects of the petitioner,
as stated in Section 2 of its charter, shall be to enforce laws relating to
cruelty inflicted upon animals or the protection of animals in the Philippine

Islands, and generally, to do and perform all things which may tend in any
way to alleviate the suffering of animals and promote their welfare.
At the time of the enactment of Act No. 1285, the original Corporation Law,
Act No. 1459, was not yet in existence.
Sec. 4 power to appoint agents, and make arrest; Sec. 5 One-half of all the
fines imposed and collected through the efforts of said society. (Subsequently
recalled by CA 148 in 1936)
Dec 1, 2003, COA audit team went to the office of Pet to conduct an audit
survey.
Pet COA has no jurisdiction over them because they are a private entity.
o Jan 1905 had no Corporation Code nor SEC
o EO 63 stripped them of any governmental functions
o Nowhere in their charter is it indicated that they are a public
corporation.
o Their EEs are covered with the SSS
o No Govt appointee or rep sits on their board
COA - Pet was a government entity that was subject to the audit jurisdiction
of respondent COA.
o Pet is a Body Politic created by virtue of a legislation/special charter
o Pet exercises sovereign powers enforce the laws government
instrumentality
o Despite the passage of the Corporation Code, the law creating the
petitioner had not been abolished, nor had it been re-incorporated
under any general corporation law.
o RA 8485 designates the petitioner as a member of its Committee on
Animal Welfare which is attached to the Department of Agriculture.

Issue:
-

WON Pet is a government instrumentality

Held:
-

No. Since the underpinnings of the charter test had been introduced by the
1935 Constitution and not earlier, it follows that the test cannot apply to the
petitioner, which was incorporated by virtue of Act No. 1285, enacted on
January 19, 1905. Settled is the rule that laws in general have no retroactive
effect, unless the contrary is provided.
All statutes are to be construed as having only a prospective operation,
unless the purpose and intention of the legislature to give them a
retrospective effect is expressly declared or is necessarily implied from the
language used. In case of doubt, the doubt must be resolved against the
retrospective effect.
There are a few exceptions. Statutes can be given retroactive effect in the
following cases: (1) when the law itself so expressly provides; (2) in case of
remedial statutes; (3) in case of curative statutes; (4) in case of laws

interpreting others; and (5) in case of laws creating new rights. None of the
exceptions is present in the instant case.
SEC. 75. Any corporation or sociedad anonima formed, organized, and
existing under the laws of the Philippine Islands and lawfully transacting
business in the Philippine Islands on the date of the passage of this Act, shall
be subject to the provisions hereof so far as such provisions may be
applicable and shall be entitled at its optioneither to continue business as
such corporation or to reform and organize under and by virtue of the
provisions of this Act, transferring all corporate interests to the new
corporation which, if a stock corporation, is authorized to issue its shares of
stock at par to the stockholders or members of the old corporation according
to their interests.
In a legal regime where the charter test doctrine cannot be applied, the mere
fact that a corporation has been created by virtue of a special law does not
necessarily qualify it as a public corporation.
The amendments introduced by C.A. No. 148 made it clear that the petitioner
was a private corporation and not an agency of the government. This was
evident in Executive Order No. 63, issued by then President of the Philippines
Manuel L. Quezon, declaring that the revocation of the powers of the
petitioner to appoint agents with powers of arrest "corrected a serious defect"
in one of the laws existing in the statute books.
a reading of petitioners charter shows that it is not subject to control or
supervision by any agency of the State, unlike government-owned and
-controlled corporations. No government representative sits on the board of
trustees of the petitioner. Like all private corporations, the successors of its
members are determined voluntarily and solely by the petitioner in
accordance with its by-laws.
The fact that a certain juridical entity is impressed with public interest does
not, by that circumstance alone, make the entity a public corporation,
inasmuch as a corporation may be private although its charter contains
provisions of a public character, incorporated solely for the public good. It
must be stressed that a quasi-public corporation is a species of private
corporations, but the qualifying factor is the type of service the former
renders to the public: if it performs a public service, then it becomes a quasipublic corporation.

Feati University vs Bautista

Facts:
- January 14, 1963: the President of Feati University Faculty Club (PAFLU) wrote
a letter to Mrs. Victoria L. Araneta, President of Feati University informing her
that it registered as a labor union.
- January 22, 1963: PAFLU sent a letter with 26 demands in relation to their
employment and requesting an answer within 10 days from receipt thereof.

Araneta answered the letters, requesting that she be given at least 30 days
to study thoroughly the different phases of the demands. Meanwhile counsel
for Feati, wrote a letter to the President of PAFLU demanding proof of its
majority status and designation as a bargaining representative
February 1, 1963: the President of PAFLU rejected the extension of time and
filed a notice of strike with the Bureau of Labor due to Featis refusal to
bargain collectively.
Conciliation Division of the Bureau of Labor made efforts to conciliate them
but failed.
February 18, 1963: PAFLU declared a strike and established picket lines in the
premises of Feati resulting in the disruption of classes in the University.
March 21, 1963: the President of the Philippines certified to the Court of
Industrial Relations (CIR) the dispute between Feati and PAFLU pursuant to
the provisions of Section 10 of Republic Act No. 875.
3 cases were filed with the CIR
41-IPA PAFLUs petition to declare in contempt of court since Feati refused to
accept them back to work in violation of the return-to-work order of March 30,
1963 and has employed professors and/or instructors to take their places
1183-MC PAFLUs petition for certification election praying that it be
certified as the sole and exclusive bargaining representative
Later withdrawn since the Case 41-IPA had already been certified by the
President to the CIR and has absorbed the issues herein
V-30 PAFLUs complaint for indirect contempt of court filed against the
administrative officials of the Feati reiterating Case 41-IPA
May 10, 1963: Feati filed before the SC a petition for certiorari and prohibition
with writ of preliminary injunction which was issued upon the Feati's filing a
bond of P50,000 (increased from P1,000), ordering CIR Judge Jose S. Bautista
to desist and refrain from further proceeding
March 23, 1963: On the strength of the presidential certification, Judge
Bautista set the case for hearing
Feati, thru counsel filed a motion to dismiss the case upon the ground that
the CIR has no jurisdiction over the case, because:
o The Industrial Peace Act is NOT applicable to the University, it being an
educational institution, nor to the members of the Faculty Club, they
being independent contractors
o The presidential certification is violative of Section 10 of the Industrial
Peace Act, as the University is not an industrial establishment and
there was no industrial dispute which could be certified to the CIR
Judge Bautista denied the motion to dismiss and ordered the strikers to return
immediately to work and the University to take them back under the last
terms and conditions existing before the dispute arose
Without the motion for reconsideration having been acted upon by the CIR en
banc, Judge Bautista set the case for hearing on the merits for May 8, 1963
but was cancelled upon Featis petition for certiorari alleging that Judge Jose
S. Bautista acted without, or in excess of, jurisdiction, or with grave abuse of

discretion, in taking cognizance of, and in issuing the questioned orders in,
CIR Cases Nos. 41-IPA 1183-MC and V-30
Feati claims that it is not an employer within the contemplation of R.A. 875,
because it is not an industrial establishment
Feati also claims that it is only a lessee of the services of its professors and/or
instructors pursuant to a contract of services entered into between them
because the University does not exercise control over their work.

Isuue:
- WON Feati can be considered an employer and PAFLU as an employee to be
covered by R.A. 875 and have right to unionize.
Held:
- YES. petition for certiorari and prohibition with preliminary injunction in Case
G.R. No. L-21278 is dismissed.
o Section 2(c) of R.A. 875:
The term employer include any person acting in the interest of
an employer, directly or indirectly, but shall not include any
labor organization (otherwise than when acting as an employer)
or any one acting in the capacity or agent of such labor
organization.
Congress did not intend to give a complete definition of
"employer", but rather that such definition should be
complementary to what is commonly understood as
employer.
Act itself specifically enumerated those who are not
included in the term "employer" and educational
institutions are not included; hence, they can be included
in the term "employer". However, those educational
institutions that are not operated for profit are not within
the purview of Republic Act No. 875.
o Feati realizes profits and parts of such earning is
distributed as dividends to private stockholders or
individuals.
It embraces not only those who are usually and ordinarily
considered employees, but also those who have ceased
as employees as a consequence of a labor dispute.
Employee must be one who is engaged in the service of another; who
performs services for another; who works for salary or wages
- "workers" limited to those performing physical labor
o embrace stenographers and bookkeepers
o Teachers are not included
- Feati controls the work of the members of its faculty
o prescribes the courses or subjects that professors teach, and when and
where to teach
o professors' work is characterized by regularity and continuity for a
fixed duration

professors are compensated for their services by wages and salaries,

rather than by profits
o professors and/or instructors cannot substitute others to do their work
without the consent of the university
o professors can be laid off if their work is found not satisfactory
Moreover, even if university professors are considered independent
contractors, still they would be covered by Rep. Act No. 875
professors, instructors or teachers of private educational institutions who
teach to earn a living are entitled to the protection of our labor laws and
one such law is Republic Act No. 875.
The term "labor dispute" includes any controversy concerning terms, tenure
or conditions of employment, or concerning the association or representation
of persons in negotiating, fixing, maintaining, changing, or seeking to arrange
terms or conditions of employment regardless of whether the disputants
stand in proximate relation of employer and employees.
To certify a labor dispute to the CIR is the prerogative of the President under
the law (Because the strike declared by the members of the minority union
threatens a major industry of 18,000 students which affects the national
interest), and this Court will not interfere in, much less curtail, the exercise of
that prerogative. The jurisdiction of the CIR in a certified case is exclusive.
The parties involved in the case may appeal to the Supreme Court from the
order or orders thus issued by the CIR.
Section 10 of Republic Act No. 875 empowers the Court of Industrial Relations
to issue an order "fixing the terms of employment." This clause is broad
enough to authorize the Court to order the strikers to return to work and the
employer to readmit them
The return-to-work order cannot be considered as an impairment of the
contract entered into with the replacements. Besides, labor contracts must
yield to the common good and such contracts are subject to the special laws
on labor unions, collective bargaining, strikes and similar subjects.
o

ASSOCIATED LABOR UNION vs Judge Borromeo

Facts:
- ALU is a duly registered labor organization. Among the members thereof
are employees of Superior Gas and Equipment Company of Cebu, Inc
(SUGECO)
- SUGECO a domestic corporation with offices at Juan Luna Street, Cebu City
and a factory plant in Basak, Mandaue, province of Cebu.
- On January 1, 1965 ALU and SUGECO entered into a collective bargaining
contract effective up to January 1, 1966. There was an ongoing negotiations
for renewal of contract late in February 1966.
- 12 SUGECO members resigned from ALU. Thereupon negotiations stopped.
ALU requested that 12 employees not be allowed to report to work, SUGECO
rejected the request due to irreparable injury and that the contract lapsed.
SUGECO stated that the 12 employees should rejoin ALU to resume the

negotiations. ALU wrote to SUGECO of bargaining in bad faith. ALU struck and
picketed in the SUGECO plant in Mandaue.
SUGECO filed a case against ALU with CFI Cebu to restrain the same from
picketing in the said plant and offices elsewhere in the Philippines. CFI Cebu
issued a preliminary injunction prayed for by SUGECO.
ALU filed charges of ULP against SUGECO with CIR; filed a motion for
reconsideration on the issuance of the injunction. CFI denied the motion; filed
a petition for certiorari and prohibition against Judge Gomez and Borromeo
and SUGECO, prayed that CFI of Cebu has no jurisdiction over the case.
SC annulled the preliminary injunction issued by CFI Cebu and directed to
dismiss the case. The writ of injunction sought by ALU was granted May 16,
1966.
ALU resumed picketing and began to picket at the house of SUGECO's
General Manager Mr. & Mrs. Lua and Cebu Home store.
Mr. Lua filed a complaint with CFI Cebu to restrain ALU from picketing the
store and residence and recover damages.
Judge Borromeo issued an order requiring ALU to show cause order why the
writ should not be issued.
ALU filed a motion to dismiss assailed the jurisdiction of CFI Cebu to hear the
case on the ground that it has grown out from a labor dispute.
The judge denied the motion to dismiss and to reconsider his order and
dissolve the writ of injunction of June 30 1966.
ALU commenced the present action for certiorari and prohibition with
preliminary injunction to annul the writs dated June 30 and July 22 1966 and
to restrain the lower court from hearing the case.

Issue:
- WON the strike conducted at the Cebu home involves a labor dispute.
Held:
- Yes. Section 5 (a) of Republic Act No. 8758 vests in the Court of Industrial
Relations exclusive jurisdiction over the prevention of any unfair labor
practice. Moreover, for an issue "concerning terms, tenure or conditions of
employment, or concerning the association or representation of persons in
negotiating, fixing, maintaining, changing, or seeking to arrange terms or
conditions of employment" to partake of the nature of a "labor dispute", it is
not necessary that "the disputants stand in the proximate relation of
employer and employee."
- to apply the provisions of Sec. 9 of Republic Act No. 875, governing the
conditions under which "any restraining order" or "temporary or permanent
injunction" may issue in any "case involving or growing out of a labor
dispute", it is not indispensable that the persons involved in the case be
"employees of the same employer", although this is the usual case. Sec. 9,
likewise, governs cases involving persons:
o 1) "who are engaged in the same industry, trade, craft, or occupation";
or

2) "who ... have direct or indirect interests therein", or

3) "who are members of the same or an affiliated organization of
employers or employees"; or
o 4) "when the case involves any conflicting or competing interests in a
"labor dispute" (as hereinbefore defined) or "persons participating or
interested" therein (as hereinafter defined)".
Furthermore, "a person or association shall be held to be a person
participating or interested in a labor dispute if relief is sought against him or
it" and "he or it is engaged in the same industry, trade, craft, or occupation in
which such dispute occurs, or has a direct or indirect interest therein, or is a
member, officer, or agent of any association composed in whole or in part of
employees or employers engaged in such industry, trade, craft, or
occupation."
Now, then, there is no dispute regarding the existence of a labor dispute
between the ALU and SUGECO-Cebu; that SUGECO's general manager, Mrs.
Lua, is the wife of the owner and manager of Cebu Home, Antonio Lua; and
that Cebu Home is engaged in the marketing of SUGECO products. It is,
likewise, clear that as managing member of the conjugal partnership between
him and his wife, Mr. Lua has an interest in the management by Mrs. Lua of
the business of SUGECO and in the success or failure of her controversy with
the ALU, considering that the result thereof may affect the condition of said
conjugal partnership. Similarly, as a distributor of SUGECO products, the Cebu
Home has, at least, an indirect interest in the labor dispute between SUGECO
and the ALU and in Case No. R-9221. In other words, respondents herein have
an indirect interest in said labor dispute, for which reason, we find that
Section 9 of Republic Act No. 875 squarely applies to Case No. R-9414.
Goldfinger v. Feintuch - Within the limits of peaceful picketing, however,
picketing may be carried on not only against the manufacturer but against a
non-union product sold by one in unity of interest with the manufacturer who
is in the same business for profit.
American Brake Shoe Co. v. District Lodge 9 of International Association of
Machinists - Where corporate employer had separate plants in Missouri and
Pennsylvania, and labor dispute existed atMissouri plant, but not at the
Pennsylvania plant, peaceful picketing at Pennsylvania plant by members of
union representing employees at Missouri plant was not an unfair labor
practice as defined by Labor Management Relations Act....
American Jurisprudence - It seems now generally agreed that a state cannot
either by its common law or by statute prohibit the peaceful picketing of a
place of business solely on the ground that the picketing is carried on by
persons not employed therein.
o
o

Reynaldo Bautista vs Hon. Amado C. Inciong

Facts:

Bautista was employed by ALU as 'Organizer' in 1972 with a starting salary

of P250.00 a month. As such he paid his monthly SSS contributions, with the
respondent as his employer. On March 15, 1979, He was left in the office of
ALU while his other co-organizers were in Cainta, Rizal attending a
certification election at Chrysler Philippines, as he was not the organizer
assigned in said company. On March 16, 1979, he went on sick leave for ten
(10) days. His SSS sickness benefit application form signed by ALU's
physician was given to ALU for submission to the SSS. On March 16, 1979,
complainant reported back for work upon expiration of his leave but was
informed by ALU's Area Vice-President for Luzon of his termination effective
March 15, 1979. Hence, this complaint filed on March 28, 1979. On April 18,
1979, however, ALU filed a clearance application to terminate complainant's
services effective March 16, 1979 on the ground of abandonment of work.
Ministry of Labor Bautista was merely accommodated by the respondent
union after he was dismissed by his former employer sometime in 1972 and
that his membership coverage with the SSS which shows that ALU is the one
paying the employer's share in the premiums is not conclusive proof that ALU
is the Bautista employer because such payments were performed by the
respondent as a favor for all those who were performing full time union
activities with it to entitle them to SSS benefits.

Issue:
- WON Inciong is an employee of ALU
Held:
- Yes. The mere fact that the respondent is a labor union does not mean that it
cannot be considered an employer of the persons who work for it. Much less
should it be exempted from the very labor laws which it espouses as labor
organization.
- In determining the existence of an employer-employee relationship, the
elements that are generally considered are the following :
o (a) the selection and engagement of the employee;
o (b) the payment of wages;
o (c) the power of dismissal; and
o (d) the employer's power to control the employee with respect to the
means and methods by which the work is to be accomplished. It is the
so-called 'control test' that is the most important element
- Petitioner was an employee of the respondent union as reflected in the
latter's individual payroll sheets and shown by the petitioner's membership
with the Social Security System (SSS) and the respondent union's share of
remittances in the petitioner's favor. Even more significant, is the respondent
union's act of filing a clearance application with the MOL to terminate the
petitioner's services. Bautista was selected and hired by the Union. He was
paid wages by the Union. ALU had the power to dismiss him as indeed it

dismissed him. And definitely, the Union tightly controlled the work of
Bautista as one of its organizers.
Corporal, et al. vs NLRC
Facts:
- Five male petitioners, namely, Osias I. Corporal, Sr., Pedro Tolentino, Manuel
Caparas, Elpidio Lacap, and Simplicio Pedelos worked as barbers, while the
two female petitioners, Teresita Flores and Patricia Nas worked as manicurists
in New Look Barber Shop located at 651 P. Paterno Street, Quiapo, Manila
owned by private respondent Lao Enteng Co. Inc.. Petitioner Nas alleged that
she also worked as watcher and marketer of private respondent.
- Pet New Look Barbershop was originally a single proprietorship, then the
children of the owner organized a corporation w/c was registered with the
SEC. They were allowed to work for the company. Then Trinidad Ong informed
them that the building was sold and their services were no longer needed.
- PR Pet were joint venturers and were receiving 50% commission of the
amount charge from costumers no ER-EE; serious business loss; had no
control over petitioners who were free to come and go as they wished; all SSS
contribution was made by Pet.
- LA and NLRC no ER-EE relationship; Common practice in barbershop
industry that barbers scissors and razors and split their earnings; Barbers are
characterized as independent contractor.
Issue:
- WON there is ER-EE relationship between Pet and PR
Held:
- Yes. The Labor Arbiter's findings that the parties were engaged in a joint
venture is unsupported by any documentary evidence. It should be noted
that aside from the self-serving affidavit of Trinidad Lao Ong, there were no
other evidentiary documents, nor written partnership agreements presented.
We have ruled that even the sharing of proceeds for every job of petitioners
in the barber shop does not mean they were not employees of the
respondent company.
- An independent contractor is one who undertakes "job contracting", i.e., a
person who (a) carries on an independent business and undertakes the
contract work on his own account under his own responsibility according to
his own manner and method, free from the control and direction of his
employer or principal in all matters connected with the performance of the
work except as to the results thereof, and (b) has substantial capital or
investment in the form of tools, equipment, machineries, work premises, and
other materials which are necessary in the conduct of the business.
- Petitioners are not "independent contractors". They did not carry on an
independent business. Neither did they undertake cutting hair and
manicuring nails, on their own as their responsibility, and in their own manner
and method. The services of the petitioners were engaged by the respondent

company to attend to the needs of its customers in its barber shop. More
importantly, the petitioners, individually or collectively, did not have a
substantial capital or investment in the form of tools, equipment, work
premises and other materials which are necessary in the conduct of the
business of the respondent company.
ER-EE relationship - Records of the case show that the late Vicente Lao
engaged the services of the petitioners to work as barbers and manicurists in
the New Look Barber Shop, then a single proprietorship owned by him; that in
January 1982, his children organized a corporation which they registered with
the Securities and Exchange Commission as Lao Enteng Company, Inc.; that
upon its incorporation, it took over the assets, equipment, and properties of
the New Look Barber Shop and continued the business; that the respondent
company retained the services of all the petitioners and continuously paid
their wages. Clearly, all three elements exist in petitioners' and private
respondent's working arrangements.
Control - Private respondent claims it had no control over petitioners. The
power to control refers to the existence of the power and not necessarily to
the actual exercise thereof, nor is it 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. As to the "control test", the
following facts indubitably reveal that respondent company wielded control
over the work performance of petitioners, in that: (1) they worked in the
barber shop owned and operated by the respondents; (2) they were required
to report daily and observe definite hours of work; (3) they were not free to
accept other employment elsewhere but devoted their full time working in
the New Look Barber Shop for all the fifteen (15) years they have worked until
April 15, 1995; (4) that some have worked with respondents as early as in the
1960's; (5) that petitioner Patricia Nas was instructed by the respondents to
watch the other six (6) petitioners in their daily task. Certainly, respondent
company was clothed with the power to dismiss any or all of them for just
and valid cause. Petitioners were unarguably performing work necessary and
desirable in the business of the respondent company.

10) G.R. No. 192084

September 14, 2011

JOSE
MEL
BERNARTE, Petitioner,
vs.
PHILIPPINE BASKETBALL ASSOCIATION (PBA), JOSE EMMANUEL M. EALA, and
PERRY MARTINEZ,Respondents.
Facts:
Complainants (Jose Mel Bernarte and Renato Guevarra) aver that they were invited to join
the PBA as referees. During the leadership of Commissioner Emilio Bernardino, they were
made to sign contracts on a year-to-year basis. During the term of Commissioner Eala,
however, changes were made on the terms of their employment. They received a letter from

the Office of the Commissioner advising them that their contract would not be renewed
citing their unsatisfactory performance on and off the court.
Respondents aver, on the other hand, that complainants entered into two contracts of
retainer with the PBA in the year 2003. That complainants were not illegally dismissed
because they were not employees of the PBA. Their respective contracts of retainer were
simply not renewed. PBA had the prerogative of whether or not to renew their contracts,
which they knew were fixed.
Issue: Whether petitioner is an employee of respondents.
Held: NO.
To determine the existence of an employer-employee relationship, case law has consistently
applied the four-fold test, to wit: (a) the selection and engagement of the employee; (b) the
payment of wages; (c) the power of dismissal; and (d) the employers power to control the
employee on the means and methods by which the work is accomplished. The so-called
"control test" is the most important indicator of the presence or absence of an employeremployee relationship.
In this case, PBA admits repeatedly engaging petitioners services, as shown in the retainer
contracts. PBA pays petitioner a retainer fee, exclusive of per diem or allowances, as
stipulated in the retainer contract. PBA can terminate the retainer contract for petitioners
violation of its terms and conditions.
However, respondents argue that the all-important element of control is lacking in this case,
making petitioner an independent contractor and not an employee of respondents.
Petitioner contends otherwise. Petitioner asserts that he is an employee of respondents
since the latter exercise control over the performance of his work. Petitioner cites the
following:
(1) respondents classify or rate a referee;
(2) respondents require referees to attend all basketball games organized or authorized by
the PBA, at least one hour before the start of the first game of each day;
(3) respondents assign petitioner to officiate ballgames, or to act as alternate referee or
substitute; (4) referee agrees to observe and comply with all the requirements of the PBA
governing the conduct of the referees whether on or off the court;
(5) referee agrees (a) to keep himself in good physical, mental, and emotional condition
during the life of the contract; (b) to give always his best effort and service, and loyalty to
the PBA, and not to officiate as referee in any basketball game outside of the PBA, without
written prior consent of the Commissioner; (c) always to conduct himself on and off the court
according to the highest standards of honesty or morality; and
(6) imposition of various sanctions for violation of the terms and conditions of the contract.
The SC however held that the foregoing stipulations hardly demonstrate control over the
means and methods by which petitioner performs his work as a referee officiating a PBA
basketball game. The contractual stipulations do not pertain to, much less dictate, how and
when petitioner will blow the whistle and make calls. On the contrary, they merely serve as
rules of conduct or guidelines in order to maintain the integrity of the professional basketball
league.

We agree with respondents that once in the playing court, the referees exercise their own
independent judgment, based on the rules of the game, as to when and how a call or
decision is to be made. The very nature of petitioners job of officiating a professional
basketball game undoubtedly calls for freedom of control by respondents.
Moreover, the following circumstances indicate that petitioner is an independent contractor:
(1) the referees are required to report for work only when PBA games are scheduled, which
is three times a week spread over an average of only 105 playing days a year, and they
officiate games at an average of two hours per game; and
(2) the only deductions from the fees received by the referees are withholding taxes.
In other words, unlike regular employees who ordinarily report for work eight hours per day
for five days a week, petitioner is required to report for work only when PBA games are
scheduled or three times a week at two hours per game.
In addition, there are no deductions for contributions to the Social Security System,
Philhealth or Pag-Ibig, which are the usual deductions from employees salaries. These
undisputed circumstances buttress the fact that petitioner is an independent contractor, and
not an employee of respondents.
In addition, the fact that PBA repeatedly hired petitioner does not by itself prove that
petitioner is an employee of the former. For a hired party to be considered an employee, the
hiring party must have control over the means and methods by which the hired party is to
perform his work, which is absent in this case. The continuous rehiring by PBA of petitioner
simply signifies the renewal of the contract between PBA and petitioner, and highlights the
satisfactory services rendered by petitioner warranting such contract renewal. Conversely, if
PBA decides to discontinue petitioners services at the end of the term fixed in the contract,
whether for unsatisfactory services, or violation of the terms and conditions of the contract,
or for whatever other reason, the same merely results in the non-renewal of the contract, as
in the present case. The non-renewal of the contract between the parties does not constitute
illegal dismissal of petitioner by respondents.

11) G.R. No. 185251

October 2, 2009

RAUL
G.
LOCSIN
and
EDDIE
B.
TOMAQUIN, Petitioners,
vs.
PHILIPPINE LONG DISTANCE TELEPHONE COMPANY, Respondent.
Facts:
Respondent Philippine Long Distance Telephone Company (PLDT) and the Security and
Safety Corporation of the Philippines (SSCP) entered into a Security Services
Agreement3 (Agreement) whereby SSCP would provide armed security guards to PLDT to be
assigned to its various offices.
Pursuant to such agreement, petitioners Raul Locsin and Eddie Tomaquin, among other
security guards, were posted at a PLDT office.
On August 30, 2001, respondent issued a Letter terminating the Agreement effective
October 1, 2001.

Despite the termination of the Agreement, however, petitioners continued to secure the
premises of their assigned office. They were allegedly directed to remain at their post by
representatives of respondent. In support of their contention, petitioners provided the copies
of petitioner Locsins pay slips for the period of January to September 2002. 5
Then, on September 30, 2002, petitioners services were terminated.
Thus, petitioners filed a complaint before the Labor Arbiter for illegal dismissal and recovery
of money claims such as overtime pay, holiday pay, premium pay for holiday and rest day,
service incentive leave pay, Emergency Cost of Living Allowance, and moral and exemplary
damages against PLDT.
Issues: Whether or not complainants extended services to the respondent for one (1) year
from October 1, 2001 up to September 30, 2002, without a renewed contract, constitutes an
employer-employee relationship between respondent and the complainants.

Held: YES.
An Employer-Employee Relationship Existed Between the Parties.
It is beyond cavil that there was no employer-employee relationship between the parties
from the time of petitioners first assignment to respondent by SSCP in 1988 until the
alleged termination of the Agreement between respondent and SSCP. It bears pointing out
that petitioners were among those declared to be employees of their respective security
agencies and not of PLDT.
The only issue in this case is whether petitioners became employees of respondent after the
Agreement between SSCP and respondent was terminated.
This must be answered in the affirmative.
Notably, respondent does not deny the fact that petitioners remained in the premises of
their offices even after the Agreement was terminated. And it is this fact that must be
explained.
The fact remains that petitioners remained at their post after the termination of the
Agreement. Notably, in its Comment dated March 10, 2009, 8 respondent never denied that
petitioners remained at their post until September 30, 2002. While respondent denies the
alleged circumstances stated by petitioners, that they were told to remain at their post by
respondents Security Department and that they were informed by SSCP Operations Officer
Eduardo Juliano that their salaries would be coursed through SSCP as per arrangement with
PLDT, it does not state why they were not made to vacate their posts. Respondent said that
it did not know why petitioners remained at their posts.
In the ordinary course of things, responsible business owners or managers would not allow
security guards of an agency with whom the owners or managers have severed ties with to
continue to stay within the business premises. This is because upon the termination of the
owners or managers agreement with the security agency, the agencys undertaking of
liability for any damage that the security guard would cause has already been terminated.
Thus, in the event of an accident or otherwise damage caused by such security guards, it
would be the business owners and/or managers who would be liable and not the agency. The
business owners or managers would, therefore, be opening themselves up to liability for acts
of security guards over whom the owners or managers allegedly have no control.

It would seem that SSCP was paying petitioners salaries while securing respondents
premises despite the termination of their Agreement. Obviously, it would only be respondent
that would benefit from such a situation. And it is seriously doubtful that a security agency
that was established for profit would allow its security guards to secure respondents
premises when the Agreement was already terminated.
Clearly, such a situation makes no sense, and the denials proffered by respondent do not
shed any light to the situation. It is but reasonable to conclude that, with the behest and,
presumably, directive of respondent, petitioners continued with their services. Evidently,
such are indicia of control that respondent exercised over petitioners.
Such power of control has been explained as the "right to control not only the end to be
achieved but also the means to be used in reaching such end." With the conclusion that
respondent directed petitioners to remain at their posts and continue with their duties, it is
clear that respondent exercised the power of control over them; thus, the existence of an
employer-employee relationship.
In the determination of whether an employer-employee relationship exists between two
parties, this Court applies the four-fold test to determine the existence of the elements of
such relationship.
(a) the selection and engagement of the employee;
(b) the payment of wages;
(c) the power of dismissal; and
(d) the employers power to control the employees conduct. It is the so-called "control test"
which constitutes the most important index of the existence of the employer-employee
relationship that is, whether the employer controls or has reserved the right to control the
employee not only as to the result of the work to be done but also as to the means and
methods by which the same is to be accomplished.
Evidently, respondent having the power of control over petitioners must be considered as
petitioners employerfrom the termination of the Agreement onwardsas this was the only
time that any evidence of control was exhibited by respondent over petitioners.

12) G.R. No. 169757

November 23, 2011

CESAR C. LIRIO, doing business under the name and style of CELKOR AD
SONICMIX, Petitioner,
vs.
WILMER D. GENOVIA, Respondent.
Facts:
On July 9, 2002, respondent Wilmer D. Genovia filed a complaint against petitioner Cesar
Lirio and/or Celkor Ad Sonicmix Recording Studio for illegal dismissal, non-payment of
commission and award of moral and exemplary damages.
Respondent Genovia alleged that on August 15, 2001, he was hired as studio manager by
petitioner Lirio, owner of Celkor Ad Sonicmix Recording Studio (Celkor). He was employed to
manage and operate Celkor and to promote and sell the recording studio's services to music

enthusiasts and other prospective clients. He received a monthly salary of P7,000.00. They
also agreed that he was entitled to an additional commission of P100.00 per hour as
recording technician whenever a client uses the studio for recording, editing or any related
work. He was made to report for work from Monday to Friday from 9:00 a.m. to 6 p.m. On
Saturdays, he was required to work half-day only, but most of the time, he still rendered
eight hours of work or more. All the employees of petitioner, including respondent, rendered
overtime work almost everyday, but petitioner never kept a daily time record to avoid
paying the employees overtime pay.
Respondent stated that a few days after he started working as a studio manager, petitioner
approached him and told him about his project to produce an album for his daughter, Celine
Mei Lirio and promised that he (Lirio) would draft a contract to assure respondent of his
compensation for such services. The job was done then respondent reminded petitioner
about the contract on his compensation but petitioner told respondent that since he was
practically a nobody and had proven nothing yet in the music industry, respondent did not
deserve a high compensation and informed respondent that he was entitled only to 20% of
the net profit, and not of the gross sales of the album, and that the salaries he received and
would continue to receive as studio manager of Celkor would be deducted from the said 20%
net profit share. Respondent objected and insisted that he be properly compensated. On
March 14, 2002, petitioner verbally terminated respondents services, and he was instructed
not to report for work.
Respondent asserts that he was illegally dismissed as he was terminated without any valid
grounds.
In defense, petitioner stated that respondent was not hired as studio manager, composer,
technician or as an employee in any other capacity of Celkor. Respondent could not have
been hired as a studio manager, since the recording studio has no personnel except
petitioner.
In the facts about the production of an album, Petitioner asserted that his relationship with
respondent is one of an informal partnership under Article 1767 5 of the New Civil Code, since
they agreed to contribute money, property or industry to a common fund with the intention
of dividing the profits among themselves. Petitioner had no control over the time and
manner by which respondent composed or arranged the songs, except on the result thereof.
Respondent reported to the recording studio between 10:00 a.m. and 12:00 noon. Hence,
petitioner contended that no employer-employee relationship existed between him and the
respondent, and there was no illegal dismissal to speak of.
Issue: Whether there exists an employer-employee relationship between the parties.
Held: YES.
Petitioners argument lacks merit.
In this case, complainant's evidence is substantial enough to prove the employment
relationship that on August 14, 2001, he was hired as 'Studio manager' by respondent Lirio
to manage and operate the recording studio and to promote and sell its services to music
enthusiasts and clients, proven by his receipt for this purpose from said respondent a fixed
monthly compensation of P7,000.00, with commission of P100.00 per hour when serving as
recording technician, shown by the payroll from July 31, 2001-March 15, 2002. The said
evidence points to complainant's hiring as employee so that the case comes within the
purview of our jurisdiction on labor disputes between an employer and an employee.

Respondent Lirio's so-called existence of a partnership agreement was not

substantiated and his assertion thereto, in the face of complainant's evidence,
constitute but a self-serving assertion, without probative value, a mere
invention to justify the illegal dismissal.
Indeed, we find credible that what caused complainant's dismissal on March 14, 2002 was
due to his refusal to respondent's Lirio's insistences on merely giving him 20% based on net
profit on sale of the album which he composed and arranged during his free time and,
moreover, that salaries which he received would be deducted therefrom, which obviously,
soured the relations from the point of view of respondent Lirio.
To established that an employer-employee relationship existed between petitioner and
respondent, the following elements must be present:
(a) the selection and engagement of the employee;
(b) the payment of wages;
(c) the power of dismissal; and
(d) the employers power to control the employees conduct. The most important element is
the employers control of the employees conduct, not only as to the result of the work to be
done, but also as to the means and methods to accomplish it.
In this case, the documentary evidence presented by respondent to prove that he was an
employee of petitioner are as follows:
(a) a document denominated as "payroll" (dated July 31, 2001 to March 15, 2002) certified
correct by petitioner, which showed that respondent received a monthly salary of P7,000.00
(P3,500.00 every 15th of the month and another P3,500.00 every 30th of the month) with
the corresponding deductions due to absences incurred by respondent; and
(b) copies of petty cash vouchers, showing the amounts he received and signed for in the
payrolls.
The said documents showed that petitioner hired respondent as an employee and he was
paid monthly wages ofP7,000.00. Petitioner wielded the power to dismiss as respondent
stated that he was verbally dismissed by petitioner, and respondent, thereafter, filed an
action for illegal dismissal against petitioner.
The power of control refers merely to the existence of the power. It is not essential for the
employer to actually supervise the performance of duties of the employee, as it is sufficient
that the former has a right to wield the power. Nevertheless, petitioner stated in his Position
Paper that it was agreed that he would help and teach respondent how to use the studio
equipment. In such case, petitioner certainly had the power to check on the progress and
work of respondent.
Also, petitioner failed to prove that his relationship with respondent was one of
partnership. Such claim was not supported by any written agreement. The Court notes that
in the payroll dated July 31, 2001 to March 15, 2002, 35 there were deductions from the
wages of respondent for his absence from work, which negates petitioners claim that the
wages paid were advances for respondents work in the partnership.
Remember: If doubt exists between the evidence presented by the employer and the
employee, the scales of justice must be tilted in favor of the latter.

JAVIER VS. FLY ACE CORP. Feb. 15, 2012

FACTS:
On May 23, 2008, Javier filed a complaint before the NLRC for underpayment of salaries and other labor standard
benefits. He alleged that he was an employee of Fly Ace since September 2007, performing various tasks at the
respondents 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; that he
reported for work from Monday to Saturday from 7:00 oclock in the morning to 5:00 oclock in the afternoon; that
during his employment, he was not issued an identification card and payslips by the company; that on May 6, 2008,
he reported for work but he was no longer allowed to enter the company premises by the security guard upon the
instruction of Ruben Ong (Mr. Ong), his superior;5 that after several minutes of begging to the guard to allow him to
enter, he saw Ong whom he approached and asked why he was being barred from entering the premises; that Ong
replied by saying, "Tanungin mo anak mo;" 6 that he then went home and discussed the matter with his family; that he
discovered that Ong had been courting his daughter Annalyn after the two met at a fiesta celebration in Malabon City;
that Annalyn tried to talk to Ong and convince him to spare her father from trouble but he refused to accede; that
thereafter, Javier was terminated from his employment without notice; and that he was neither given the opportunity to
refute the cause/s of his dismissal from work.
To support his allegations, Javier presented an affidavit of one Bengie Valenzuela who alleged that Javier was a
stevedore or pahinante of Fly Ace from September 2007 to January 2008. The said affidavit was subscribed before
the Labor Arbiter (LA).7
For its part, Fly Ace averred that it was engaged in the business of importation and sales of groceries. Sometime in
December 2007, Javier was contracted by its employee, Mr. Ong, as extra helper on a pakyaw basis at an agreed
rate of P 300.00 per trip, which was later increased to P 325.00 in January 2008. Denying that he was their employee,
Fly Ace insisted that there was no illegal dismissal.8 Fly Ace submitted a copy of its agreement with Milmar Hauling
Services and copies of acknowledgment receipts evidencing payment to Javier for his contracted services bearing the
words, "daily manpower (pakyaw/piece rate pay)" and the latters signatures/initials. The CA likewise added that
Javiers failure to present salary vouchers, payslips, or other pieces of evidence to bolster his contention, pointed to
the inescapable conclusion that he was not an employee of Fly Ace. Further, it found that Javiers work was not
necessary and desirable to the business or trade of the company, as it was only when there were scheduled
deliveries, which a regular hauling service could not deliver, that Fly Ace would contract the services of Javier as an
extra helper. the facts alleged by Javier did not pass the "control test." He contracted work outside the company
premises; he was not required to observe definite hours of work; he was not required to report daily; and he was free
to accept other work elsewhere as there was no exclusivity of his contracted service to the company,
ISSUE: Whether or not Javier is an employee of respondent
RULING: No. Javier is not an employee of Fly Ace.
As the records bear out, the LA and the CA found Javiers claim of employment with Fly Ace as wanting and deficient.
The Court is constrained to agree. Although Section 10, Rule VII of the New Rules of Procedure of the NLRC 28 allows
a relaxation of the rules of procedure and evidence in labor cases, this rule of liberality does not mean a complete
dispensation of proof. Labor officials are enjoined to use reasonable means to ascertain the facts speedily and
objectively with little regard to technicalities or formalities but nowhere in the rules are they provided a license to
completely discount evidence, or the lack of it.
"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.http://www.lawphil.net/judjuris/juri2009/may2009/gr_179652_2009.html - fnt31 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."30Although
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. By way of evidence on this point, all that Javier presented
were his self-serving statements purportedly showing his activities as an employee of Fly Ace.
Javier failed to pass the substantiality requirement to support his claim. Hence, the Court sees no reason to depart
from the findings of the CA. 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 to fortify his claim. The lone affidavit executed by one Bengie Valenzuela was
unsuccessful in strengthening Javiers cause. In said document, all Valenzuela attested to was that he would
frequently see Javier at the workplace where the latter was also hired as stevedore. 34 Certainly, in gauging the
evidence presented by Javier, the Court cannot ignore the inescapable conclusion that his mere presence at the
workplace falls short in proving employment therein. The supporting affidavit could have, to an extent, bolstered
Javiers claim of being tasked to clean grocery items when there were no scheduled delivery trips, but no information
was offered in this subject simply because the witness had no personal knowledge of Javiers employment status in
the company.
The Court is of the considerable view that on Javier lies the burden to pass the well-settled tests to determine the
existence of an employer-employee relationship, viz: (1) the selection and engagement of the employee; (2) the
payment of wages; (3) the power of dismissal; and (4) the power to control the employees conduct. Of these
elements, the most important criterion is whether the employer controls or has reserved the right to control the
employee not only as to the result of the work but also as to the means and methods by which the result is to be
accomplished.35
Javiers allegations did not establish that his relationship with Fly Ace had the attributes of an employer-employee
relationship on the basis of the above-mentioned four-fold test. Worse, Javier was not able to refute Fly Aces
assertion that it had an agreement with a hauling company to undertake the delivery of its goods. It was also baffling
to realize that Javier did not dispute Fly Aces denial of his services exclusivity to the company. In short, all that Javier
laid down were bare allegations without corroborative proof.
There was no substantial evidence to prove employer-employee relationship. Having a service contract with Milmar
Hauling Services for the purpose of transporting and delivering company products to customers, Fly Ace contracted
Javier as an extra helper or pahinante on a mere "per trip basis." Javier, who was actually a loiterer in the area, only
accompanied and assisted the company driver when Milmar could not deliver or when the exigency of extra deliveries
arises for roughly five to six times a month. Before making a delivery, Fly Ace would turn over to the driver and Javier
the delivery vehicle with its loaded company products. With the vehicle and products in their custody, the driver and
Javier "would leave the company premises using their own means, method, best judgment and discretion on how to
deliver, time to deliver, where and [when] to start, and manner of delivering the products." 20

SY VS. CA AND SAHOT FEBRUARY 2003

FACTS:
Sometime in 1958, private respondent Jaime Sahot5 started working as a truck helper for petitioners family-owned
trucking business named Vicente Sy Trucking. In 1965, he became a truck driver of the same family business,
renamed T. Paulino Trucking Service, later 6Bs Trucking Corporation in 1985, and thereafter known as SBT Trucking
Corporation since 1994. Throughout all these changes in names and for 36 years, private respondent continuously

served the trucking business of petitioners. In April 1994, Sahot was already 59 years old. He had been incurring
absences as he was suffering from various ailments. He inquired about his medical and retirement benefits with the
Social Security System (SSS) on April 25, 1994, but discovered that his premium payments had not been remitted by
his employer. Sahot had filed a week-long leave sometime in May 1994. On May 27th, he was medically examined
and treated for EOR, presleyopia, hypertensive retinopathy G II (Annexes "G-5" and "G-3", pp. 48, 104,
respectively),6 HPM, UTI, Osteoarthritis (Annex "G-4", p. 105),7 and heart enlargement. At the end of his week-long
absence, Sahot applied for extension of his leave for the whole month of June, 1994. Sahot found himself in a
dilemma. He was facing dismissal if he refused to work, But he could not retire on pension because petitioners never
paid his correct SSS premiums. The fact remained he could no longer work as his left thigh hurt abominably.
Petitioners ended his dilemma. They carried out their threat and dismissed him from work, effective June 30, 1994. He
ended up sick, jobless and penniless.
On September 13, 1994, Sahot filed with the NLRC NCR Arbitration Branch, a complaint for illegal dismissal,
docketed as NLRC NCR Case No. 00-09-06717-94. He prayed for the recovery of separation pay and attorneys fees
against Vicente Sy and Trinidad Paulino-Sy, Belen Paulino, Vicente Sy Trucking, T. Paulino Trucking Service, 6Bs
Trucking and SBT Trucking, herein petitioners. For their part, petitioners contend that private respondent was not
illegally dismissed as a driver because he was in fact petitioners industrial partner. They add that it was not until the
year 1994, when SBT Trucking Corporation was established, and only then did respondent Sahot become an
employee of the company.
ISSUE: WON respondent Jaime Sahot is an employee of petitioner Sy
RULING: Yes. Respondent is an employee of Sy.
there was error committed by the Labor Arbiter when he concluded that complainant was an industrial partner prior to
1994. A computation of the age of complainant shows that he was only twenty-three (23) years when he started
working with respondent as truck helper.
The elements to determine the existence of an employment relationship are: (a) the selection and engagement of the
employee; (b) the payment of wages; (c) the power of dismissal; and (d) the employers power to control the
employees conduct. The most important element is the employers control of the employees conduct, not only as to
the result of the work to be done, but also as to the means and methods to accomplish it. 19
As found by the appellate court, petitioners owned and operated a trucking business since the 1950s and by their own
allegations, they determined private respondents wages and rest day.20 Records of the case show that private
respondent actually engaged in work as an employee. During the entire course of his employment he did not have the
freedom to determine where he would go, what he would do, and how he would do it. He merely followed instructions
of petitioners and was content to do so, as long as he was paid his wages. Indeed, said the CA, private respondent
had worked as a truck helper and driver of petitioners not for his own pleasure but under the latters control.
Private respondent, for his part, denies that he was ever an industrial partner of petitioners. There was no written
agreement, no proof that he received a share in petitioners profits, nor was there anything to show he had any
participation with respect to the running of the business. 18 Article 176721 of the Civil Code states that in a contract of
partnership two or more persons bind themselves to contribute money, property or industry to a common fund, with
the intention of dividing the profits among themselves. 22 Not one of these circumstances is present in this case. No
written agreement exists to prove the partnership between the parties. Private respondent did not contribute money,
property or industry for the purpose of engaging in the supposed business. There is no proof that he was receiving a
share in the profits as a matter of course, during the period when the trucking business was under operation. Neither
is there any proof that he had actively participated in the management, administration and adoption of policies of the
business. Thus, private respondent was not an industrial partner but an employee of petitioner.

ENCYCLOPEDIA vs. NLRC and Limjoco 1996 case

FACTS:
Private respondent Benjamin Limjoco was a Sales Division Manager of petitioner Encyclopaedia Britannica and was
in charge of selling petitioner's products through some sales representatives. As compensation, private respondent
received commissions from the products sold by his agents. He was also allowed to use petitioner's name, goodwill
and logo. Petitioner would also be informed about appointments, promotions, and transfers of employees in private
respondent's district. It was, however, agreed upon that office expenses would be deducted from private respondent's
commissions. On June 14, 1974, private respondent Limjoco resigned from office to pursue his private business. Then
on October 30, 1975, he filed a complaint against petitioner Encyclopaedia Britannica with the Department of Labor
and Employment, claiming for non-payment of separation pay and other benefits, and also illegal deduction from his
sales commissions.
Petitioner Encyclopaedia Britannica alleged that complainant Benjamin Limjoco (Limjoco, for brevity) was not its
employee but an independent dealer authorized to promote and sell its products and in return, received commissions
therefrom. He also had his own separate office, financed the business expenses, and maintained his own workforce.
The salaries of his secretary, utility man, and sales representatives were chargeable to his commissions. 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 latter did not even report to the office of the petitioner and did not observe
fixed office hours. Consequently, there was no employer-employee relationship.
Limjoco maintained otherwise. He alleged that he was hired by the petitioner in July 1970, was assigned in the sales
department, and was earning a certain amount as an average monthly salary. was under the supervision of the
petitioner's officials who issued to him and his other personnel, memoranda, guidelines on company policies,
instructions and other orders. He was, however, dismissed by the petitioner when the Laurel-Langley Agreement
expired. As a result thereof, Limjoco asserts that in accordance with the established company practice and the
provisions of the collective bargaining agreement, he was entitled to termination pay, unpaid benefits (Christmas
bonus, midyear bonus, clothing allowance, vacation leave, and sick leave), and the amounts illegally deducted from
his commissions which were then used for the payments of office supplies, office space, and overhead expenses.
ISSUE: WON there is an employer employee relationship between petitioners and respondent LImjoco.
RULING: No. Limjoco is an independent contractor.

In determining the existence of an employer-employee relationship the following elements must be present: 1)
selection and engagement of the employee; 2) payment of wages; 3) power of dismissal; and 4) the power to control
the employee's conduct. Of the above, 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. 3 Under the control test, an
employer-employee relationship exists where the person for whom the services are performed reserves the right to
control not only the end to be achieved, but also the manner and means to used in reaching that end. 4
The fact that petitioner issued memoranda to private respondents 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. It should be noted that in petitioner's
business of selling encyclopedias and books, the marketing of these products was done through dealership

agreements. The sales operations were primarily conducted by independent authorized agents who did not receive
regular compensations but only commissions based on the sales of the products. These independent agents hired
their own sales representatives, financed their own office expenses, and maintained their own staff. Thus, there was a
need for the petitioner to issue memoranda to private respondent so that the latter would be apprised of the company
policies and procedures. Nevertheless, private respondent Limjoco and the other agents were free to conduct and
promote their sales operations. The periodic reports to the petitioner by the agents were but necessary to update the
company of the latter's performance and business income. Although the petitioner can fix the prices of the products for
reason of uniformity and private respondent could not alter them, the latter, nevertheless, had free rein in the means
and methods for conducting the marketing operations. He selected his own personnel and only reason why he had to
notify the petitioner about such appointments was for purpose of deducting the employees' salaries from his
commissions. (Petitioner in their agreement had to be informed about the appointments, promotions, and transfers of
employees that respondent Limjoco had to take)