The existence of an employer-employee relationship is a condition sine qua non.

-Without such relationship, the law on labor standards will not apply.

The Four-Fold Test

a. SELECTION and ENGAGEMENT of the employees (South)

b. payment of WAGES (West)

c. power of DISMISSAL (Disaster)

d. power to CONTROL the employees’ conduct (Control)

(SWDC the acronym by Dean Abad. ^^)

The element of control is the most crucial and determinative indicator of the presence or absence of an employer-employee relationship. (Great Pacific Life Assurance Corp. vs. NLRC)

However, one must distinguish between rules that merely serve as guidelines and rules that fix the methodology and bind or restrict the party hired to the use of such means of methods. The former does not produce an employer-employee relationship while the latter does.

Not every form of control will have the effect of establishing an employer-employee relationship. (Insular Life vs. NLRC)

Cases where the employer-employee relationship exits:

a. jeepney drivers on boundary system

-The relationship that exists between jeepney owners/operators and jeepney drivers is that of an employer-employee and not one of a lessor-lessee. (Jardin vs. NLRC)

-In the lease of chattels, the lessor completely loses control over the chattel leased.

Jeepney operators exercise supervision and control over the jeepney drivers. Such operators see to it that the driver follows a route prescribed by the franchising authority and the rules promulgated as regards its operation. Jeepney drivers also perform activities which are usually necessary or desirable in the usual business or trade of the employer.

By analogy, the doctrine also applies to the relationship between bus owner/operator and the bus conductor, auto-calesa owner/operator and driver, taxi owner/operator and taxi drivers.

(Jardin vs. NLRC on taxi drivers)

Difference between an employee and independent contractor (Tan vs. Lagrama):

Independent contractor-one who carries on a distinct and INDEPENDENT BUSINESS, undertakes to perform the job, work, or service on his own account, under his own RESPONSIBILITY according to his OWN MANNER or METHOD, free from the control of the principal in all matters connected to the performance of the work except as to the results therof

-enjoys independence and freedom from the control and supervision of the principal

Employee- subject to the employer’s  power to control the means and methods by which the employee’s work is to be performed and accomplished

When a worker possesses some attributes of an employee and others of an independent contractor, which may make him fall within an intermediate area, he may be classified under the category of an employee when the economic facts of the relations make it more nearly one of employment than one of independent business enterprise with respect to the ends sought to be accomplished. (social Security System v. CA)

-The doubt to be resolved in favor of the category which is most beneficial to the worker.

Labor-only contracting

1) the person supplying workers to an employer does NOT have substantial capital or investment in the form of Tools, Equipment, Machineries, Work premises among others (TEM Work)

2) the workers recruited and placed by such person are performing activities which are directly related to the principal business of such employer (Baguio et al. vs. NLRC)

Job-contracting

1) the contractor carries on an independent business 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 related with the performance of the work except as to the results thereof

2) the contractor has substantial capital or investment in the form of Tools, Equipment, Machineries, Work Premises, and other materiaks which are necessary in the conduct of his business (Baguio et al. vs. NLRC)

Permissible job contracting or subcontracting

-refers to an arrangement whereby a principal agrees to put out or farm out with a contractor or subcontractor the performance or completion of a specific job, work, or service within a definite or predetermined period, regardless of whether such job, work, or service is to be performed or completed within or outside the premises of the principal (Vinoya vs. NLRC)I

Conditions that must occur for a person to be considered as engaged in LEGITIMATE job contracting or subcontracting

(Art. 106 Labor Code; Department Order No. 10 [May 1997], amending Rule VIII-A Book III, Implementing Rules; Department Order No. 18-02 [21 Feb 2002])

a) the contractor or subcontractor carries on a distinct and independent business and undertakes to perform the job, work, or service on his own account, under his own responsibility, according to his own manner and method, free from the control of the principal in all matters in the performance of the work except as to the results thereof

b) contractor or subcontractor has substantial capital or investment

c) the agreement between the principal and the contractor or subcontractor assures the contractual employees entitlement to all labor and occupational safety and health standards, free exercise of the right to self-organization, security of tenure, and social and welfare benefits

In addition to substantial capital-ization or investment in the form of tools, equipment, machinery or work premises, the following factors must be considered:

a) whether the contractor is carrying on an independent business

b) nature or extent or the work

c) skill required

d) term and duration of the relationship

e) right to assign the performance of specified pieces of work

f) control and supervision of the workers

g) power of the employer with respect to hiring, firing, and payment of workers of the contractor

h) control of the premises

i) duty to supply premises, tools, appliances, materials and labor

j) mode, manner, terms of payment

(Alexander Vinoya v. NLRC, Regent Food Corp and/or Ricky See; Rolando E. Escario et al vs. NLRC; Osias Corporal Sr. et al. vs. NLRC, Lao Enteng Co. Inc. and/or Trinidad Lao Ong)

In legitimate job contracting, NO employer-employee relationship exists between the owner and the employees of his contractor. (Baguio, et. al. vs. NLRC)

The owner of the project is not the direct employer but merely an INDIRECT employer, by operation of law, of his contractor’s employees.

However, as an indirect employer, the owner of the project is JOINTLY AND SEVERALLY liable with the contractor with respect to money claims of the contractor’s employees pursuant to Article 109 of the Labor Code. (DBP vs. NLRC)

The principal, as indirect employer, is also JOINTLY AND SEVERALLY liable with the contractor for violation of labor standard laws and unfair labor practice. (Deferia vs. NLRC)

It must be noted that the liability of the principal in legitimate job contracting to the employees us for a limited purpose only, e.g., unpaid wages only.

-This is to ensure that the employees are paid their wages.

The principal becomes jointly and severally with the contractor only for the payment of the employees’ wages whenever the contractor fails to pay the same. Other than that, the principal employer is NOT responsible for any claim made by the employees. (San Miguel Corp. vs. MAERC Integrated Services)

Effect of finding that a contractor is a labor-only contractor

-It is equivalent to declaring that there is an employer-employee relationship between the principal and the employees of the labor-only contractor.

(Associated Anglo-American Tobbaco Corp. vs. Clave; Industrial Timber Corp. vs. NLRC)

In such cases, the person or intermediary shall be considered merely as an AGENT of the employer. The latter shall be responsible to the workers in the manner and extent as if such workers were directly employed by the employer.

(Sandoval Shipyards Inc. vs. Prisco Pepito et. al)

-The liability of the principal to the employees of the labor-only contractor is responsible not only for unpaid wages but also for all the claims under the Labor Code and auxiliary laws.

The contractor is considered as an agent of the principal employer and the latter becomes solidarily liable WITH the labor-only contractor for all the rightful claims of the employees. (San Miguel Corp. vs. MAERC Integrated Services)

Effect for failure of owner of project to require the contractor to post a bond (in accordance with Article 108 of the Labor Code)

-the owner of project must answer for whatever the liabilities the contractor may have incurred to his employees; without prejudice on the part of the project owner to seek reimbursement from the contractor. (Baguio et. al. vs. NLRC)

Must retain all that I have read.

Abadilla 5 case regarding torture and must also compare it with Lejano v. People regarding the credibility of witnesses and alibi.

In the first case, it was ruled that alibi is the weakest of all defenses and that ballistic evidence is not indispensable when there has been positive identification from a witness. In the second case, it was ruled that an innocent person only pushes for alibi from start to end.

May gosh! can’t we rely on anything but witnesses in this country???

Anyways, under Section 12 Art III, the rights of the accused are a) the right to be informed of his right to remain silent and b) his right to legal counsel preferably of his own choice (if he cannot afford counsel, he will be provided with one).

These rights cannot be waived except in writing and in the presence of counsel.

The role of the lawyer must not be reduced to being a mere witness of the signing of a prepared testimony. (People v. Fortuna et al)

Custodial investigation- critical pre-trial stage when investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular person as a suspect

That’s it for now. Must prepare for class. ;p

I don’t want to go back to school. You can quote me on this one people! How I wish I was stuck in Vacation Land and live my days over Holiday Bliss.

I just finished uploading almost all of my pictures over at Facebook.

I don’t know why it’s making me this sad. I don’t want to go back but I have to. I just want to stay in bed and sleep my days away. sigh. That’s the life.

Idk why but I recently have an obsession to get my hair all curly. It’s probably because I haven’t done anything with my hair for the past year. I can’t even remember the last time I got a haircut. (Okay, I’m trying to grow my hair extremely long. hehe. I cut the split ends myself. ;p)

I was googling what kind of curling iron to buy because I just want to change up my look now that the year is ending. I found this site where there was this girl (I think she was Korean.) who was giving a tutorial on how to curl your hair without a curling iron.

I tried it myself and I have to say, it really worked!

Before I proceed, I must indicate that the process involves sleeping overnight with your hair did. ;p

Step one. Wash your hair.

Step two. When your hair is slightly damp, divide it into two sections.

Step three. You have to twist those sections of hair outward or inward. (I prefer outward. ;p)

Step four. Make those twists into buns. Just twirl both sections of your hair into a bun.  (At this point, you’re gonna look like Chun Li or even a cheerleader. Anyway, you’re gonna look pretty silly.)

Step five. Make sure you tie them nice and tight because you don’t want them getting all loose by the time you wake up.

Step six. Sleep with your buns. ;p

Step seven. When you wake up, unwind your hair. Don’t use a comb. Just use your fingers.

Step eight. Use a product to maintain those curls. You can use a mousse. Just make sure that you scrunch your hair from your tips then go up towards your roots. You can also use a little bit of hair spray to keep the curls intact. ^^

A little tip before I go, you might want to unwind your curls after you’ve taken your morning shower. ^^ Just wash your hair at night. (Deep sigh. The things we do to look nice. hehe)

There. I hope I was helpful. ^^.

I’ll just post pics later. ;p

Happy Holidays!

Love,

Me

The recent acquittal of Hubert Webb and Antonio Lejano along with their co-principals have stirred up the country and caused quite a commotion. This whole case reminded me of that movie “Changeling” starring Angelina Jolie.

The media definitely had a lot to say about the Vizconde massacre case. It’s everywhere. People have different points of view regarding this matter.

Why were they imprisoned for 15 years and suddenly released?

Why did the RTC and CA find them guilty but the SC acquitted them?

First of all, I believe that the NBI had a lot of fault in this case. Why were they not able to present the real perpetrators of the crime? Jessica Alfaro was their star witness. She wasn’t even there when the crime took place. She said she knew someone who knew something about what took place that night of the massacre. When she couldn’t present that “someone” she said that she would take his/her place. This was something she did not refute. (Read the decision!)

Before making any allegations, before blaming the Supreme Court, READ THE DECISION!

Hubert Webb’s alibi was that he was in the US when the crime took place. He left on March 1991 and did not come back in the country until October 1992. The crime took place on June 29, 1991. The lower courts said that Webb could have easily sneaked in the country to execute the crime and then sneak out again.

That’s why he was convicted. Okay, reality check, that’s why he was convicted? The lower courts said that the passports could have easily been tampered with and they were not enough to prove that Webb was not in the country.

The CA refused to accept the documents on the ground that the official who issued such documents could not be presented in court.

The CA claimed that there was an earlier certification from an immigration official that Webb did not enter the US. This was explained in the dissenting opinion of Justice Tagle.

“While it is true that an earlier Certification was issued by the U.S. INS on August 16, 1995 finding “no evidence of lawful admission of Webb,” this was already clarified and deemed erroneous by no less than the US INS Officials.  As explained by witness Leo Herrera-Lim, Consul and Second Secretary of the Philippine Embassy in Washington D.C., said Certification did not pass through proper diplomatic channels and was obtained in violation of the rules on protocol and standard procedure governing such request.

The initial request was merely initiated by BID Commissioner Verceles who directly communicated with the Philippine Consulate in San Francisco, USA, bypassing the Secretary of Foreign Affairs which is the proper protocol procedure.  Mr. Steven Bucher, the acting Chief of the Records Services Board of US-INS Washington D.C. in his letter addressed to Philip Antweiler, Philippine Desk Officer, State Department, declared the earlier Certification as incorrect and erroneous as it was “not exhaustive and did not reflect all available information.”  Also, Richard L. Huff, Co-Director of the Office of Information and privacy, US Department of Justice, in response to the appeal raised by Consul General Teresita V. Marzan, explained that “the INS normally does not maintain records on individuals who are entering the country as visitors rather than as immigrants: and that a notation concerning the entry of a visitor may be made at the Nonimmigrant Information system.  Since appellant Webb entered the U.S. on a mere tourist visa, obviously, the initial search could not have produced the desired result inasmuch as the data base that was looked into contained entries of the names of IMMIGRANTS and not that of NON-IMMIGRANT visitors of the U.S..” (italics added)

Passports are official records of one’s travels. Such documents are issued by the Philippine government and the entries in them are presumed to be true. Presenting the immigration official who authenticated Webb’s passport is unnecessary according to the Supreme Court.

I don’t want to get into any fights but the Supreme Court is the only constitutional court in the country. The SC alone establishes jurisprudence and has the final say regarding cases. Whatever they have decided must be respected whether one likes it or not. Wishing that the Supreme Court did not exist will mean chaos! The justice system is not perfect. We’re all on the same page but wishing for its annihilation will not solve anything!

It is so frustrating for people to be so cynical about this case. Those who were accused were already acquitted. They should not be hated. They were also victims of some twisted plot of some greedy and manipulative people out there. Let’s move on!

I feel for the Vizconde victims and I wonder why the NBI allowed innocent people to get hurt to cover up for their stupidity and laziness. When can the police force recover from all the embarrassment and the shame? When can Filipinos return their faith in the police when they clearly lack the skill and the intelligence to solve crimes?

If somebody says that I killed somebody, how can I refute that when the police (and the lowers courts) will point out that positive identification outweighs alibi?

Let’s educate ourselves! For 15 years innocent people were put to jail. Can you imagine how it is to be locked up in Muntinlupa jail? (The horror!) In our justice system, when one’s guilt cannot be proven beyond reasonable doubt, the accused must be acquitted or the case must be dismissed. The reason behind this is that it is a mistake to put an innocent man  to jail based on mere suspicion.

To sum it all up, I say:

Talk is cheap. It’s time to move on!

Keeping it real,

Me

I just saw a news interview (Fox news) where someone (forgot his name) said that Facebook complicates relationships, like are u single, in a relationship or what not. The simplest things like changing your status from single to in a relationship or vice versa can be problematic for some people. I can say that this is true especially if you are seeing someone and that someone is not on the same page as you are.

The guy also said that maybe people can make changing their status as a romantic experience. When he said that I was like, come on! Turn it into a romantic experience? I guess I’ll pass because Facebook does not make my world go ‘round. I mean, it shows what I’ve been up to and a little bit of who I am but like I do have a life outside Facebook. I don’t take what I say or post in Facebook as serious stuff. (Except when I tell Caloy I love you) ^^

Anyway, I’m just saying that when you are in a relationship, Facebook isn’t the first thing that will pop into your mind, you know what I mean?

I must not be afraid of myself. I should not think that failure is out to get me. I have to be comfortable in my skin and just shine through my classes.

Read Read Read. Read until your eyes pop out. I can’t quit on me now.

I must always have a bag of happy thoughts every time I feel that I can’t do something.

I’ll get through this.

Random thought: Legal term of the day

Subpoena Duces Tecum- A command to a witness to produce documents.

Blogging my woes away,

Me

Like promised, I will now post an entry about Revlon’s Just Bitten Lip Stain + Balm.

I was looking for Frenzy but the store didn’t have the shade so I went for Beloved. It’s sort of a dark purple color.

Now for my review:

The stain literally stays on your lips. I fell asleep while I was still wearing it and it did not fade. It’s like I dyed my lips with grape juice. :) I wouldn’t recommend putting on too much though. It will look like you took a bite of a person or something.

Overall, I found the product refreshing. It’s not a lipstick and it will stay on for a long time.

I would definitely buy one again but in a different shade. I’m gonna try Passion next time. (the one Jessica Biel is wearing in the print ad)

Hopefully, I can also buy a Photoready compact with it. ^^

Til next time,

Me