LIKHA-PMPB v. Burlingame Corporation
LIKHA-PMPB v. Burlingame Corporation
LIKHA-PMPB v. Burlingame Corporation
However, the conduct of the said elements are proven as follows: (1) Although the
hiring process was done by F. Garil, the actual hiring itself was done through the
deployment of personnel to establishments by Burlingame., (2) The contract states
that Burlingame would pay the workers through F. Garil, stipulating that
Burlingame shall pay F. Garil a certain sum per worker on the basis of eight-hour
work every 15th and 30th of each calendar month. This evinces the fact that F.
Garil merely served as conduit in the payment of wages to the deployed personnel.
The interpretation would have been different if the payment was for the job,
project, or services rendered during the month and not on a per worker basis. (3)
The contract also provides that any personnel found to be inefficient, troublesome,
uncooperative and not observing the rules and regulations set forth by Burlingame
shall be reported to F. Garil and may be replaced upon request. Thus, the exercise
of control and supervision by Burlingame over workers supplied by F. Garil in order
to establish the inefficient, troublesome, and uncooperative nature of undesirable
personnel. Also implied in the provision on replacement of personnel carried upon
request by Burlingame is the power to fire personnel. These are indications that F.
Garil was not left alone in the supervision and control of its alleged employees.
Consequently, it can be concluded that F. Garil was not an independent contractor
since it did not carry a distinct business free from the control and supervision of
Burlingame.
It goes without saying that the contractual stipulation on the nonexistence of an
employer-employee relationship between Burlingame and the personnel provided
by F. Garil has no legal effect.
2. According to a decided case, Job contracting is permissible only if the following
conditions are met: 1) the contractor carries on an independent business and
undertakes the contract work on his own account under his own responsibility
according to his own manner and method, free from the control and direction of his
employer or principal in all matters connected with the performance of the work
except as to the results thereof; and 2) the contractor has substantial capital or
investment in the form of tools, equipment, machineries, work premises, and other
materials which are necessary in the conduct of the business. Furthermore, Section
5 of the DOLE Department Order No. 18-02, Series of 2002 provides that The
contractor or sub-contractor does not have substantial capital or investment which
relates to the job, work or service to be performed and the employees recruited,
supplied or placed by such contractor or subcontractor are performing activities
which are directly related to the main business of the principal; or the contractor
does not exercise the right to control over the performance of the work of the
contractual employee. As such, F. Garil is not an independent contractor due to
the following facts: (1) F. Garil does not have substantial capitalization or
investment in the form of tools, equipment, machineries, work premises, and other
materials, to qualify as an independent contractor. No proof was adduced to show
F. Garils capitalization. (2) the work of the promo-girls was directly related to the
principal business or operation of Burlingame. Marketing and selling of products is
an essential activity to the main business of the principal, and lastly (3) F. Garil did