After reading “Can the DOLE make a prima facie determination of the existence of an employer-employee relationship?”, read also “How is Employer-Employee Relationship Determined?”
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In cases where the relationship of employer-employee still exists, the Secretary of Labor and Employment or his duly authorized representatives shall have the power to issue compliance orders to give effect to the labor standards provisions of the Labor Code and other labor legislation based on the findings of labor employment and enforcement officers or industrial safety engineers made in the course of inspection.
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The Court recognizes that the DOLE has the full power to determine the existence of an employer-employee relationship in cases brought to it under Article 128(b) of the Labor Code.
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The DOLE has the authority to rule on the existence of an employer-employee relationship between the parties, considering that the existence of an employer-employee relationship is a condition sine qua non for the exercise of its visitorial power.
The law says:
Article 128 of the Labor Code of the Philippines provides for the powers of the Department of Labor and Employment, to wit:
Article 128. Visitorial and Enforcement Power. – (a) The Secretary of Labor or his duly authorized representatives, including labor regulation officers, shall have access to employer’s records and premises at any time of the day or night whenever work is being undertaken therein, and the right to copy therefrom, to question any employee and investigate any fact, condition or matter which may be necessary to determine violations or which may aid in the enforcement of this Code and of any labor law, wage order or rules and regulations issued pursuant thereto.
(b) Notwithstanding the provisions of Articles 129 and 217 of this Code to the contrary, and in cases where the relationship of employer-employee still exists, the Secretary of labor and Employment or his duly authorized representatives shall have the power to issue compliance orders to give effect to labor legislation based on the findings of labor employment and enforcement officers or industrial safety engineers made in the course of inspection. The Secretary or his duly authorized representatives shall issue writs of execution to the appropriate authority for the enforcement of their orders, except in cases where the employer contests the findings of the labor employment and enforcement officer and raises issues supported by documentary proofs which were not considered in the course of inspection.
xxx” (As amended by R.A. No. 7730, June 2, 1994.)
Republic Act No. 7730, or the Act Further Strengthening The Visitorial And Enforcement Powers Of The Secretary Of Labor And Employment amends Art. 128 (b) of the Labor Code provides that:
SECTION 1. Paragraph (b) of Article 128 of the Labor Code, as amended, is hereby further amended to read as follows:
“Art. 128. Visitorial and Enforcement Power. —
“(b) Notwithstanding the provisions of Articles 129 and 217 of this Code to the contrary, and in cases where the relationship of employer-employee still exists, the Secretary of Labor and Employment or his duly authorized representatives shall have the power to issue compliance orders to give effect to the labor standards provisions of this Code and other labor legislation based on the findings of labor employment and enforcement officers or industrial safety engineers made in the course of inspection. The Secretary or his duly authorized representatives shall issue writs of execution to the appropriate authority for the enforcement of their orders, except in cases where the employer contests the findings of the labor employment and enforcement officer and raises issues supported by documentary proofs which were not considered in the course of inspection.
“An order issued by the duly authorized representative of the Secretary of Labor and Employment under this article may be appealed to the latter. In case said order involves a monetary award, an appeal by the employer may be perfected only upon the posting of a cash or surety bond issued by a reputable bonding company duly accredited by the Secretary of Labor and Employment in the amount equivalent to the monetary award in the order appealed from.”
Jurisprudence says:
The case of Bombo Radyo Phils., Inc. v. Secretary of DOLE, G.R. No. 179652, March 06, 2012 categorically states that the Department of Labor and Employment has the full power to determine the existence of an employer-employee relationship as stated in Article 128 (b) of the Labor Code. As such:
“The Court now recognizes that the DOLE has the full power to determine the existence of an employer-employee relationship in cases brought to it under Article 128(b) of the Labor Code. This power is parallel and not subordinate to that of the NLRC.
Under Art. 128(b) of the Labor Code, as amended by RA 7730, the DOLE is fully empowered to make a determination as to the existence of an employer-employee relationship in the exercise of its visitorial and enforcement power, subject to judicial review, not review by the NLRC.
The determination of the existence of an employer-employee relationship by the DOLE must be respected. The expanded visitorial and enforcement power of the DOLE granted by RA 7730 would be rendered nugatory if the alleged employer could, by the simple expedient of disputing the employer-employee relationship, force the referral of the matter to the NLRC. The Court issued the declaration that at least a prima facie showing of the absence of an employer-employee relationship be made to oust the DOLE of jurisdiction. But it is precisely the DOLE that will be faced with that evidence, and it is the DOLE that will weigh it, to see if the same does successfully refute the existence of an employer-employee relationship.
If the DOLE makes a finding that there is an existing employer-employee relationship, it takes cognizance of the matter, to the exclusion of the NLRC. The DOLE would have no jurisdiction only if the employer-employee relationship has already been terminated, or it appears, upon review, that no employer-employee relationship existed in the first place.”
In the case of South Cotabato Communications v. Hon. Sto. Tomas, et.al. (G.R. No. 217575, June 15, 2016), the Supreme Court likewise ruled in the following manner:
“Like the NLRC, the DOLE has the authority to rule on the existence of an employer-employee relationship between the parties, considering that the existence of an employer-employee relationship is a condition sine qua non for the exercise of its visitorial power. Nevertheless, it must be emphasized that without an employer-employee relationship, or if one has already been terminated, the Secretary of Labor is without jurisdiction to determine if violations of labor standards provision had in fact been committed, and to direct employers to comply with alleged violations of labor standards.”
Alburo Alburo and Associates Law Offices specializes in business law and labor law consulting. For inquiries, you may reach us at info@alburolaw.com, or dial us at (02)7745-4391/0917-5772207.
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