1.
Explain thoroughly how employer-employee relationships are
established?
The four-fold test is usually used to determine the existence of employer-employee
relationship:
1. Selection and engagement of the employee;
2. Payment of wages or salaries;
3. Exercise of the power of dismissal; or
4. Exercise of the power to control the employee’s conduct.
These tests, however, are not fool-proof as they admit of exceptions.
The 4th test above, the control test, is the controlling test which means that the employer
controls or has reserved the right to control the employee not only as to the result of the work to
be done but also as to the means and methods by which the same is to be accomplished.
The three (3) terms: (1) means, (2) methods and (3) results are the critical elements of the
control test.
The two-tiered test enunciated in Francisco v. NLRC, is also used to determine
employeremployee
relationship. It is composed of:
(1) The putative employer’s power to control the employee with respect to the means and
methods by which the work is to be accomplished [control test]; and
(2) The underlying economic realities of the activity or relationship [broader economic
reality test].
Employment relationship under the control test is determined under the same concept as
discussed above, that is, by asking whether “the person for whom the services are performed
reserves the right to control not only the end to be achieved but also the manner and means to be
used in reaching such an end.”
Under the economic reality test, the proper standard of economic dependence is whether
the worker is dependent on the alleged employer for his continued employment in that line of
business.
This 2-tiered test applies to cases where there are several parties alleged to be employers
of one individual. The determinant factor is economic dependency of such individuals. In other
words, under the economic reality test, the question to ask is - among the parties alleged to be the
employer, to whom is the individual economically dependent?
2. Explain and provide all the exempted employees from the
coverage of Art. 82 AND provide the basis and reason for their
exemptions AND provide illustrations for each.
The exempted employees under Art. 82 are:
a. Government employees;
-refers to the employees of government agencies, instrumentalities, or political
subdivisions and of government corporations that are not incorporated under the
Corporation Code (those which have original charters. The terms and conditions of
their employment are governed by Civil Service Law.
Undersecretaries.
b. Managerial employees;
-they are not covered because they are employed by reason of their special training,
experience, or knowledge. Therefore, the value of their work cannot be measured
in terms of hours.
Chief financial officers.
c. Other officers or members of a managerial staff;
-they are considered as managerial employees because they regularly exercise
discretion and independent judgment, and not subject to evaluation or review from
higher-ups, as such the work value cannot be measured in terms of hours.
Project engineers.
d. Domestic servants (now Kasambahays) or Persons in the personal service of
another;
-Kasambahays are not covered because the terms and conditions of employment
are governed by the provisions of RA 10361- Batas Kasambahay.
Cleaning persons of the family of the employer.
e. Workers paid by results;
-work is not measured in accordance with the time they spent to complete the work.
The time element, is in fact not a material consideration. Such work is measured
either by:
1. piece; or
2. task.
Seamstress, tailors.
f. Non-agricultural field personnel; and
-the nature of their functions which requires them to be away from the principal
office or place of business as such their work in the field cannot be determined with
reasonable certainty.
Insurance agents.
g. Members of the family of the employer.
-the amounts given by the employer by way of support may far exceed the benefits
to which the employee is entitled under the provisions of law.
Children of business owners.
h. Under Articles 94 and 95 of the Labor Code, retail and service establishments
which regularly employ less than 10 workers.
i. Retail and service establishments under LC IRR on night shift differential pay
but the number of regular employees required for the exemption is “not more
than 5 workers.
