Republic of the Philippines

DEPARTMENT OF LABOR AND EMPLOYMENT

Regional Office No. NCR
NATIONAL CAPITAL REGION
PAPAMARISAN FIELD OFFICE

IN THE MATTER OF INSPECTION

CONDUCTED AT: THAI BBQ
ORIGINAL RESTAURANT

Case No.

THAI BBQ ORIGINAL RESTAURANT

ROASTED MEAT COPORATION
Principal

HERNANDO MANPOWER SERVICES

SERVICE PROVIDER
x ----------------------------------------- x

POSITION PAPER

THAI BBQ ORIGINAL RESTAURANT, ROASTED MEAT

CORPORATION, through its authorized representative and unto this
Honorable Office most respectfully states:

THE PARTIES

THAI BBQ ORIGINAL RESTAURANT, ROASTED MEAT

CORPORATION (ROASTED MEAT for brevity) is a corporation duly
organized and existing under and by virtue of the laws of the Republic of
the Philippines with principal office at 166-A Alfonso XIII Barangay
Corazon De Jesus San Juan City Metro Manila which is engaged in food
and restaurant business.

HERNANDO MANPOWER SERVICES. (HERNANDO for brevity), is a

single proprietorship and is engaged in manpower services. It is a
legitimate independent contractor duly licensed by the Department of
Labor and Employment (DOLE) pursuant to Department Order No. 18-A,
Series of 2011.

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 FACTS OF THE CASE

1. Respondent ROASTED MEAT is a corporation engaged in

establishing and operating restaurants and offers such other services
pertaining to restaurant and catering business.

2. In the course of its business and from time to time when the
expected volume of work cannot be handled by its regular employees
especially during peak seasons, respondent company engage the services
of legitimate independent job contractors to provide special services to
augment its regular workforce. These legitimate contractors deploy their
own employees at ROASTED MEAT to perform the tasked contracted
and are all supervised by the former.

3. In the present case, ROASTED MEAT has an existing service

agreement with the aforementioned legitimate contractor HERNANDO
in compliance with the provisions of D.O. 18-A.

4. On or about 03 May 2018, an inspection was made by the

DOLE representatives in the premises of ROASTED MEAT located at 166-
A Alfonso XIII St. San Juan City. Based on the assessment, there were inter
alia observations made and documents that were needed to be shown
and submitted as shown in the Notice of Results.

“AS PER INTERVIEW OF WORKERS CONDUCTED AND

DOCUMENTS PRESENTED AT THE TIME OF INSPECTION,
THE FOLLOWING ARE SOME OF THE FINDINGS:

I. ON SECURITY OF TENURE (SOT):

- SUPERVISION AND CONTROL IS SHARED BY THE

AGENCY AND PRINCIPAL. FEEDBACK DURING
APPRAISAL IS PROVIDED BY THE PRINCIPAL

- EQUIPMENT USED BY THE AGENCY WORKERS IS

OWNED BY THE PRINCIPAL

xxx xxx xxx”

Hence, this position paper.

2
 DISCUSSION

ROASTED MEAT is engaged in establishing and operating

restaurants and offers such other services pertaining to restaurant and
catering business. In the course of its business for non-core tasks or
services not related and/or necessary and desirable to its principal
and/or main trade and business, it engaged the services of legitimate
independent contractor HERNANDO an entity with substantial capital
or investment and duly registered as such with the Department of Labor
and Employment (DOLE) under D.O. No. 18-A series of 2011.

The business of ROASTED MEAT is restaurant operations and

most if not all core functions are being performed by its regular
employees. These regular employees of ROASTED MEAT are directly
responsible in the day-to-day operations of the restaurant. Most non-
core functions and other support services on the other hand are
contracted out to legitimate and independent service providers duly
registered with the DOLE and in accordance with the service agreement,
i.e. HERNANDO for its employees to assist and render manual and
maintenance services, sorting, loading, storage of goods which are not
related to the manufacturing and production activities. The actual
performance of these non-core functions which are being performed by
HERNANDO employees are directly controlled and supervised by it and
these are all in accordance with the contract of services of the parties.

Being independent contractors registered with the Department of

Labor and Employment (DOLE), it is governed by Department Order No.
18-A with respect to its selection and engagement, payment of wages,
discipline, control and supervision of its employees.

The registration with the DOLE as a legitimate job contractor is not

obtained by simply filing an application with the said office. Before an
application could be processed, stringent examination of the documents
and requirements is being undertaken. In fact, ocular inspections are
conducted and that the required capitalization is proof that the applicant
has a net worth of at least Five Million Pesos (Php5,000.000.00). In other
words, these independent contractors have substantial capitalization and
were duly registered.

Emphasis is made that the Certificate of Registration issued by the

DOLE shows the legitimacy as an independent contractor of respondent
ROASTED MEAT contrary to the findings of the inspecting officer. In fact,
the Supreme Court lucidly explicitly ruled in Gallego vs. Bayer
Philippines, Inc. (G.R. No. 179807, July 31, 2009), that:

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 “The DOLE certificate having been issued
by a public officer, it carries with it the
presumption that it was issued in the regular
performance of official duty. Petitioner’s bare
assertions fail to rebut this presumption.
Further, since the DOLE is the agency primarily
responsible for regulating the business of
independent job contractors, the Court can
presume, in the absence of evidence to the
contrary, that it had thoroughly evaluated the
requirements submitted by PRODUCT IMAGE
before issuing the Certificate of Registration.”

Thus, a company’s certificate of registration, in the absence of any

evidence to the contrary, proves that it is a legitimate independent
contractor.

Furthermore, aside from the said capitalization, these contractors

have sufficient supply of protective gears, uniforms, clothing, safety
gears, tools and equipment among others.

In addition, the manner and procedure for the accomplishment of

the work performed by the employees of HERNANDO and at ROASTED
MEAT rest solely with the former’s discretion. As such, ROASTED MEAT
did not exercise control in the execution of the particular tasks required
under the service agreement as it left this matter to the exclusive
discretion of the legitimate independent contractors.

Moreover, all directives and instructions as to the performance of

their work come from the independent contractors and not from its
principal and it is the former which oversees and supervise the day to day
work of its employees assigned at ROASTED MEAT all in accordance
with the existing Contract of Services herein mentioned. Note that in the
Contract of Services presented herein, it specifically identified the work
and service being contracted. It likewise states and defines the obligation
of both parties. Hence, the employees of independent contractor
assigned to its principal are under the direct control and supervision of
the former.

Further, the independent contractors’ personnel perform works

which are outside of the normal activities or operations of its client as the
functions are only incidental to its day to day operations and not in any
way related to the principal purpose of the business of its client.

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 It is apt to state that, ROASTED MEAT has its own roster of
employees and that it pays the required SSS, PAG-IBIG & PHIL Health
contributions for employers. To prove the same, attached herewith is the
summary of the payments made by ROASTED MEAT to the
aforementioned government institutions for the year 2017 which will
include to those documents that will be submitted to this office for
compliance. It is a matter of simple logic that only an employer would
pay the SSS employer contributions required by law.

Contrary to the findings of the Labor Inspector, the claim that the
agency workers perform work under the shared supervision ROASTED
MEAT and HERNANDO has no factual and legal basis. Noticeably, these
are empty allegations without any evidence in support thereof. To
emphasize, HERNANDO has supervisors assigned at ROASTED MEAT’s
premises. These supervisors were the ones who directly monitor,
supervise the manner including the work performance and attitude of its
own employees.

It is a well-accepted principle that he who alleges a fact has the

burden of proving it (Republic vs. CA, 182 SCRA 290). Mere allegation
is not evidence and allegation without concrete evidence is nothing
(Gatmaitan vs. CA, 200 SCRA 37; Martinez vs. NLRC, 272 SCRA 793).
Likewise, there was no proof whatsoever that was submitted that would
lead an objective mind to believe that employees of the independent
contractors are performing functions which are indispensable to the
business of ROASTED MEAT.

It is worthy to mention that the independent contractor of

ROASTED MEAT (a) selects and hires its own employees; (b) pays the
wages/salaries of its own employees; (c) has the power of dismissal over
its own employees; and most importantly, (d) has power of control over
its own employees assigned at ROASTED MEAT.

Likewise, the independent contractor have supervisors assigned to

its client who directly monitors and supervises the manner, including the
work performance and attitude of its employees all in compliance with
the terms and conditions of their existing Contracts of Services.

With respect to the findings that the tools and equipment are
owned by ROASTED MEAT, it must be pointed out as it observed, that
most if not all of the employees of the independent contractor are just
helpers, and does not need tools and equipment to perform their
functions.

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 Verily, ROASTED MEAT has fully complied with the requirements
of the law, only that there was an incorrect perception when an
assessment was made.

At this juncture, ROASTED MEAT reserve its right to present

additional evidence in the course of the proceedings or as may be
required by this Honorable Office.

PRAYER

WHEREFORE, premises considered, it is most respectfully prayed

of this Honorable Office that the documents that will be submitted to this
Honorable Office be considered and admitted in the final resolution of
this case. Consequently, the findings in the Notice of Results conducted
be RECONSIDERED and SET ASIDE and a new one be rendered declaring
that no violation was committed by THAI BBQ ORIGINAL, ROASTED
MEAT CORP.

Other relief and remedies just and equitable under the premises
are likewise prayed for.

San Juan City for Mandaluyong City, September 17, 2018.

MANUEL C. ACAB II
Legal Officer
ROASTED MEAT CORPORATION