Longer work hours as supervisors, Independent Contractors etc...
Dear Atty. Biron,
I am a Branch Supervisor of a beauty shop in Makati. I work for more than 12 hours/day, 6 times a week. We are given 2 hours breaktime although this is not possible coz I cannot leave the counter having responsibilities like a cashier, supervising the hairstylists and beauty therapists and at the same time catering to clients/customers. My compensation is minimum pay: P404 with P75 allowance/day.
1. Is the company violating any labor law that seems there is an exploitation of their employee being a supervisor for the long hours of work?
2. The 2 hour breaktime is just lip service and doesn't happen in reality. What is the legal breaktime if you work for 12 hours or more?
3. Are we entitled to overtime pay as supervisors?
4. The allowance of P75/day is not enough for us supervisors, how can we ask for a raise from the owners? Is there a hard and fast rule on allowances?
5. Is there such a thing as independent contractor in the Philippines? Hairstylists and therapists are termed independent contractors since they have signed a Memorandum of Agreement with the owners. They receive compensation thru 40% commission basis of their services done in our beauty shop. The status of their employment is self-employed and are having difficulty being understood by the SSS, Philhealth and Pag-ibig for they were previously employees. With this set-up does employee-employer relationship really exist? They are not allowed to time in and out and are jsut encouraged to work as a opening and closing shifts. The previous ID which doesn't specify if the are employees are now being changed to access pass. Are the owners just going around their labor obligations or this set-up is a legal thing?
The utility staff that helps me are not paid their overtime even if she works more than 12 hours/day. Same reason as mine. They have breaktime but it is not possible in this kind of business set-up.
Sometimes I'm really confused. I beg for your legal advice and suggestions.
1. Your question is vague. Are you trying to ask this: "Is the employee violating any labor law for requiring supervisors to work for long hours?" If this is your question, please note that there is no violation in this instance. This is because Art 82 of the Labor Code states in effect that managerial employees shall be excluded from the rule under Art 83 limiting the hours of work. As a supervisor, you are considered as a part of the managerial employees, this is in accordance with the Supreme Court ruling in the case of National Sugar Refineries Corp., 24 March 1993.
2. As a supervisor, you are not entitled to the break time period required under Art. 85 of the Labor Code. But if it is stated in your contract as a supervisor that you are entitled to the 2-hour break time, then it is clear that you are entitled to this and you can demand such break time.
3. No, because as a supervisor, you are not entitled to overtime pay provided in Art. 87 in relation to Art. 82 of the Labor Code.
4. Talk to your employer in a nice way. No hard rule on this.
5. To answer your three questions, please read these:
a. There is such a thing as an independent contractor in the Philippines.
b. Although they are referred to as independent contractors, they are more properly considered as commission agents. Commission agents are not employees if these agents are not required to report for work at any time, they do not have to devote their time exclusively for the company, their time and effort they devote to work depends entirely on their own will, they are not required to account for their time nor submit a record of their activities.
c. The existence of independent contractors and commission agents are allowed by law. The facts you provided are insufficient for me to conclude whether they are circumventing labor laws.
Thanks Atty. James for your quick response to my questions.
Sorry if you find it vague but you got what I mean in my number 1 question. The rest of your answers are enlightening to me. I'll just focus on my work guided that the company is not violating any labor laws in our business set-up.
I'll pray for you and your family. Your selfless sharing of your time and knowledge is so noble and shows a lot about character. I believe our generous Lord will grant you a hundredfold for your kindness. More power to you!
Our barbers and therapists have been with the Barbershop/Beauty Salon company for more than 10 years. Ever since we engaged their services, they signed a memorandum of agreement that there is no employer-employee relationship thing. They are commission agents. Are they still considered regular employees or independent contractors? Regular employees because they have been with the company for more than one year and are necessary and desirable to the business (beauty shop) or independent contractors because they have signed a MOA (Memorandum of Agreement) stating that the four-fold test is not happening in the kind of business set-up.
Hope you can provide me an insight on this. Thank you.
The existence of an employer-employee relationship cannot be avoided simply by repudiating it in the employment contract. It cannot say that an employee is an "independent contractor" when the terms of the agreement clearly show otherwise. The employment status of a person is defined and prescribed by law and not by what the parties say it should be. In determining the status of a worker, the four-fold test on employment has to be applied. (C.A. Azucena, Jr. Everyone's Labor Code, 2007 Ed.)
Here is the four-fold test:
a. selection and engagement of the employee
b. payment of wages
c. power of dismissal
d. employers control the employee with respect to the means and methods by which the work is to be accomplished.
If these barbers and therapists were hired directly or indirectly by the business owner, their salaries/wages are paid by the owner, they can be fired by the employer and if the employer controls their means and method of accomplishing their work, then they will be considered as employees and consequently there will be an employer-employee relationship.