Dear PAO,
I hope you can give guidance on my concern. My father has been a taxi driver for a taxi company for the past 30 years. He is set to retire next month on his 60th birthday. However, the taxi company said that he is not entitled to retirement since he is just an independent contractor. Are they correct?
Jamie
Dear Jamie,
Thank you for writing to our column. We will address your query as best as we can.
First, we define a regular employee under Article 295 of the Labor Code as:
a. When an employee has been engaged to perform activities which are usually necessary or desirable in the usual business or trade of the employer;
b. When an employee has rendered at least one (1) year of service, whether such service is continuous or broken, with respect to the activity in which he is employed.
In Expedition Construction Corporation et al. v. Alexander M. Africa, GR 228671, Dec. 14, 2017, penned by Associate Justice Mariano Del Castillo, the Supreme Court held that there is a four-fold test to determine whether an employer-employee relationship exists, to wit:
First, if your father applied, and the taxi company engaged your father to drive their taxis for their company, the first test of selection and engagement of the employee is satisfied.
Second, assuming that your father earns and remits boundary to the taxi company, the same satisfies the second test of payment of wages, as held in Jardin, et al. v. National Labor Relations Commission, Feb. 23, 2000, J. Quisumbing, which states:
“Now, the fact that the drivers do not receive fixed wages but get only that in excess of the so-called “boundary” they pay to the owner/operator is not sufficient to withdraw the relationship between them from that of employer and employee. We have applied by analogy the above-stated doctrine to the relationships between bus owner/operator and bus conductor, auto-calesa owner/operator and driver, and recently between taxi owners/operators and taxi drivers. Hence, petitioners are undoubtedly employees of private respondent because as taxi drivers they perform activities which are usually necessary or desirable in the usual business or trade of their employer.” (Underscoring supplied)
Third, the taxi company has the right to terminate the services of your father.
Fourth, and most importantly, the control test. If the taxi company dictated the hours when your father has to return the taxi cab; assigned the specific taxi unit he can drive, provided the tools for repair, set the rules with respect to traffic violations, among other things, these are badges of having control.
Based on the above-cited provisions, your father should be considered a regular employee, and not a mere independent contractor. As a regular employee, who has rendered 30 years of service, he is entitled to retirement pay as laid down in Article 302 (formerly Article 287) of the Labor Code.
We hope that we were able to answer your queries. This advice was based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.
Thank you for your continued trust and support.
Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net
