More complicated example. Let`s also assume that the contract included several multi-storey buildings that cost 5 billion pesos. Instead of doing everything, the contractor entrusted the cleaning and custody of the workers` premises as well as the workers` medical clinic to three sufficiently capitalized units that hired the janitors, security guards and doctors/nurses separately, providing the cleaning tools, weapons, medical equipment and training necessary to carry out their respective tasks. Pure employment contracts, on the other hand, are defined in article 106 of the Labour Code. It is an agreement by which the contractor, who does not have significant capital or investment in the form of tools, equipment, machinery, workspaces and others, provides employees to an employer and the hired employees carry out activities directly related to that employer`s main activity. Is it important to differentiate between subcontracting and subcontracting in the laboratory only? THERE IS. The allocation of jobs is valid and recognized by law, while pure employment contracts are a prohibited act. The conclusion that a contractor is a pure contractor is equivalent to the statement that there is an employer-employee relationship between the client and the contractor`s employees. In such a case, the pure contractor is liable to the employees in the manner and to the extent that those workers were directly employed by him. In addition, section 8(b)(4) of the Act prohibits strikes for certain objects, even if the objects are not necessarily illegal if they are reached by other means. An example of this would be a strike to force Employer A to stop doing business with Employer B. It is not illegal for Employer A to voluntarily stop doing business with Employer B, nor is it illegal for a union to simply ask to do so. However, it is illegal for the union to strike to force the employer to do so.
These points are explained in more detail in the Explanatory Note to section 8(b)(4). In any case, workers who participate in an illegal strike may be dismissed and not have the right to reinstatement. A person is considered a legitimate contract or subcontract if the following conditions coincide: “On the other hand, a pure employment contract, a prohibited act, is an agreement in which the contractor or subcontractor merely recruits, provides or places workers to perform work, work or service for a principal. The following elements are present in the case of pure assignment of work: From reading these two provisions, it is clear that: The law not only guarantees the right to strike of workers, but also restricts the exercise of this right. See e.B. Restrictions on strikes in health facilities (see below). Here, subcontracts are seen as contracts, not pure employment contracts, since the three subcontractors not only recruited the workers, but also controlled them, paid their wages and other benefits, and provided the necessary equipment and tools. “Outsourcing” is synonymous with employment contracts in the digital age. Detailed legal language.
In Sasan v. NLRC (17 October 2008), the Supreme Court ruled that an enterprise “engages in legitimate purchases or subcontracting if [it] (a) carries on an independent business and undertakes to perform the work, work or service on its own account and under its own responsibility in its own manner and method. and free from the control and direction of the client in all matters related to the execution of the work, with the exception of the results; b) . has significant capital or investment; and strikes are illegal on grounds. A strike may be illegal because a purpose or purpose of the strike is illegal. A strike in support of an unfair union labour practice or that would cause an employer to commit an unfair labour practice may be a strike for an illegal target. For example, it is unfair for an employer to dismiss an employee for failing to make certain legal payments to the union if no union safety agreement is in place (section 8(a)(3)). A strike to force an employer to do so would be a strike for an illegal object and therefore an illegal strike. Strikes of this type will be discussed in the context of the various unfair labour practices in a later section of this guide. Simple example.
According to DO 174, series of 2017 (the latest edition of the Ministry of Labor on the subject), the term “sufficient capital” means paid-up capital or net worth of at least 5 million pesos. “Investment” means the equipment and tools necessary for the performance of the Contract. Read also: How to ensure the legitimacy of employment contracts The employment contract, legitimate subcontracting or subcontracting refers to an agreement in which a principal agrees to perform or outsource with the contractor or subcontractor the performance or completion of a particular work, work or service within a specific or predetermined period of time, whether it is such work. The work or services must be performed or provided inside or outside the customer`s premises. The latter system is a “pure employment relationship” prohibited by the Labour Code (art. 106). The previous example is the “employment contract”, which is permitted under the same law. This characterization does not change even if the owner provides the building materials such as cement, gravel, wood, etc.
Under this regime, the carpenters and other workers hired by the contractor are his employees and not the owner. He is obliged to pay them at least the minimum wage, overtime and other benefits provided for by law. The owner is not responsible for these services, unless the entrepreneur pays his wages too low, in which case he would be responsible out of solidarity. In return, the contractor is required to provide all necessary cement, gravel, sand, wood and other building materials, as well as the labor, equipment and tools needed to complete the home. Legal and illegal strikes. The legality of a strike may depend on the purpose or purpose of the strike, its timing or the behaviour of the strikers. The object or objects of a strike and the legality of the objects are questions that are not always easy to determine. These issues often have to be decided by the National Labour Relations Board. The consequences can be serious for striking strikers and employers, and can lead to issues of reinstatement and additional payment. For more information, see the Basic Guide to the National Labour Relations Act. Strikes for misconduct of illegal strikers. Strikers who commit serious misconduct during a strike may be refused reinstatement in their former workplace.
This applies to both strikers in the economy and strikers who are victims of unfair labour practices. Serious misconduct includes violence and threats of violence. The U.S. Supreme Court has ruled that a “sitdown” strike, in which workers simply stay in the factory and refuse to work, depriving the owner of property, is not protected by law. Examples of serious misconduct that could result in the employees concerned losing their right to reinstatement include: “(b) Employees hired, provided or placed by such contractor or subcontractor are engaged in activities that are directly related to the principal`s principal business.” To understand the angry problem of “contractualization,” imagine the owner (also called the “principal”) of a residential property entering into an agreement with an entrepreneur (who has enough capital or investment) and forcing him to build the house of his dreams. .