By Rey Panaligan
Government lawyers asked the Court of Appeals (CA) Wednesday to reconsider its decision that the Department of Labor and Employment (DOLE) stopped implementing its order for the regularization of 7,344 workers hired by the Philippine Long Distance and Telephone Co. (PLDT) from external contractors.
Under the direction of Advocate General Jose C. Calida, the lawyers told the CA that PLDT had been guilty of the illegal contracting practice only for labor, as DOLE's "direct relationship of contractor operations to PLDT's main business activities" considered. "
Calida pointed out that "the services that these companies, including information technology (IT) and call handling services, are directly related to the PLDT business, if not indispensable."
He also stressed the "PLDT & # 39; s exercising control over contractors' employees" and the lack of an independent contractor's firm. "
Last month, the CA ruled that PLDT did not violate any law when the telephone company decided not to regularize its employees covered by employment contracts.
But the CA maintained the DOLE order for regularization to the extent that the personnel were involved in the installation, repair and maintenance of PLDT communication lines, because their work and services were more directly related to the business activities.
In January of this year DOLE PLDT commissioned to regularize its employees involved in BPO (business process outsourcing) services; IT service; IT support and application development; concierge, courier and office services; back office support and office operations; sale; and medical, dental, technical and other professional services.
The CA said that DOLE & # 39; s Circular No. 1, issued in 2017, actually exempted these services from the coverage of Department Order No. 174, which defined labor contracting.
Thus it was said: "there is no basis for the inclusion" of the contractors' employees who provide IT support services for PLDT in the regularization order. Personnel providing medical, dental, technical and other professional services are also excluded from the regularization, it said.
It explained that they were "independent contractors" because their "unique skills and talents" meant that the management of PLDT "had no control over the means and methods in the execution of their work".
"This group of employees is expected to provide professional service based on their own discretion as such," it added.
The CA also said that, just like BPO and IT support staff, the professionals were also exempt from DOLE Department Circular No. 001-17 due to coverage in its regularization orders.
At the same time it was stated that sales agents paid on a commission basis can not be covered by the regularization order because of the same circular.
It said that "consistent and long-established rule in case law is that those paid on a commission basis are not employees."
In the case of cleaning, maintenance and security services, these can be outsourced because they are "in no way directly related to the core activities of PLDT."
"Outsourcing of services is not necessarily illegal, and our laws permit agreements to implement specific jobs, jobs or services," the CA said.
But Calida said that the DOLE came up with findings after "laboriously investigating the totality of the facts and circumstances surrounding the relationship between PLDT and its individual contractors, as borne by the evidence that has been recorded."
He said that the evidence "shows that the contract agents declared are only agents or manpower suppliers of PLDT because of their lack of an independent enterprise."
"This is demonstrated by the right of PLDT to control the means and the way that employees perform their contracted services," he said.
Thus, Calida said, DOLE is not guilty of abuse of discretion when issuing the regularization order as opposed to the findings of the court of appeal.