G.R. No.

179652 May 8, 2009

PEOPLE'S BROADCASTING (BOMBO RADYO PHILS., INC.), Petitioner, defendant

vs.
THE SECRETARY OF THE DEPARTMENT OF LABOR AND EMPLOYMENT, THE REGIONAL DIRECTOR, DOLE REGION VII, and
JANDELEON JUEZAN, Respondents, plaintiff

Facts:

Respondent Juezan filed a complaint against petitioner Peoples Broadcasting Service, Inc. (Bombo Radyo Phils., Inc) for illegal
deduction, non-payment of service incentive leave, 13th month pay, premium pay for holiday and rest day and illegal
diminution of benefits, delayed payment of wages and non-coverage of SSS, PAG-IBIG and Philhealth before the DOLE. In the
Inspection Report Form conducted by DOLE respondent Bombo Radyo Phils., Inc denied that there is an employer-employee
relationship with the complainant since respondent Juenzan is a drama talent hired on a per drama " participation basis."

DOLE regional director Sabulao ruled that respondent Juezan is an employee of petitioner Bombo Radyo Phils., Inc, and that the
former is entitled to his money claims amounting to P203,726.30. Which was affirmed by DOLE acting secretary

Upon appeal to CA, petitioner Bombo Radyo Phils., Inc reiterated its claim that there was no employer-employee relationship
between it and respondent Juezan because it was the drama directors and producers who paid, supervised and disciplined
respondent Juezan. It also added that the case was beyond the jurisdiction of the DOLE and should have been considered by
the labor arbiter because respondent Juenzans claim exceeded P5,000.00.

CA dismiss the petition file by petitioner Bombo Radyo Phils., Inc and ruled that the DOLE Secretary had the power to order and
enforce compliance with labor standard laws irrespective of the amount of individual claims because the limitation imposed by
Article 29 of the Labor Code had been repealed by RA No. 7730.

Issue:

WON NLRC and not the DOLE Secretary, has jurisdiction over respondent Juezans claim

Ruling: Yes.

Article 128 (b) of the Labor Code, as amended by Republic Act 7730 states that

Article 128 (b) Notwithstanding the provisions of Articles 129 and 217 of this Code to the contrary, and in cases
where the relationship of employer-employee still exists, the Secretary of Labor and Employment or his duly
authorized representatives shall have the power to issue compliance orders to give effect to the labor standards
provisions of this Code and other labor legislation based on the findings of labor employment and enforcement
officers or industrial safety engineers made in the course of inspection. The Secretary or his duly authorized
representative shall issue writs of execution to the appropriate authority for the enforcement of their orders,
except in cases where the employer contests the findings of the labor employment and enforcement officer and
raises issues supported by documentary proofs which were not considered in the course of inspection.

xxx

SC said that the provision is explicit that the visitorial and enforcement power of the DOLE comes into play only "in cases when
the relationship of employer-employee still exists."

The clause "in cases where the relationship of employer-employee still exists" signifies that the employer-employee
relationship must have existed even before the controversy. Necessarily, the DOLEs power does not apply in 2 instances,
namely: (a) where the employer-employee relationship has ceased; and (b) where no such relationship has ever existed.

Clearly the law accords a prerogative to the NLRC over the claim when the employer-employee relationship has terminated or
such relationship has not arisen at all. In the second situation especially, the existence of an employer-employee relationship is
a matter which is not easily determinable from an ordinary inspection, because the elements of such a relationship are not
verifiable from a mere ocular examination.
The existence of an employer-employee relationship is a statutory prerequisite to and a limitation on the power of the
Secretary of Labor. The rationale underlying this limitation is to eliminate the prospect of competing conclusions of the
Secretary of Labor and the NLRC, on a matter of questions of fact and law, which is best resolved by the quasi-judicial body,
NRLC, rather than an administrative official of the executive branch of the government.

Therefore, since evidence offered puts in doubt the existence of employer-employee relationship, DOLE should have referred
respondent Juezan to the NLRC for the proper dispensation of his claims.

WHEREFORE, the petition is GRANTED. The Decision and the Resolution of the Court of Appeals are REVERSED and SET ASIDE.
The Order of the then Acting Secretary of the Department of Labor and Employment denying petitioners appeal, and the
Orders of the Director, DOLE Regional Office No. VII, are ANNULLED. The complaint against petitioner is DISMISSED.

SO ORDERED.
G.R. No. 179652 March 6, 2012

PEOPLE'S BROADCASTING SERVICE (BOMBO RADYO PHILS., INC.), Petitioner,

vs.
THE SECRETARY OF THE DEPARTMENT OF LABOR AND EMPLOYMENT, THE REGIONAL DIRECTOR, DOLE REGION VII, and
JANDELEON JUEZAN, Respondents.

Facts:

In the 2009 decision, SC said that there was no employer-employee relationship between petitioner Jauenzan and respondent
Bombo Radyo Phils., Inc. In the 2009 decision, SC also said that while the DOLE may make a determination of the existence of
an employer-employee relationship, this function is not co-extensive with the visitorial and enforcement power provided in Art.
128(b) of the Labor Code, as amended by RA 7730. The NLRC is still the primary agency tasked to determine the existence of an
employer-employee relationship. This was the interpretation of the clause "in cases where the relationship of employer-
employee still exists" in Art. 128(b)

Hence, PAO filed a Motion for Clarification of Decision as to when the visitorial and enforcement power of the DOLE be not
considered as co-extensive with the power to determine the existence of an employer-employee relationship

Issue:

May the DOLE make a determination of whether or not an employer-employee relationship exists, and if so, to what extent?

Ruling: Yes.

SC said that no limitation in the law was placed upon the power of the DOLE to determine the existence of an employer-
employee relationship. No procedure was laid down where the DOLE would only make a preliminary finding, and that the
power was primarily held by the NLRC.

The DOLE, in determining the existence of an employer-employee relationship, has a set of guidelines to follow, the same guide
the courts themselves use. The elements to determine the existence of an employment relationship are: (1) the selection and
engagement of the employee; (2) the payment of wages; (3) the power of dismissal; (4) the employers power to control the
employees conduct. The use of this test is not solely limited to the NLRC. The DOLE Secretary, or his or her representatives, can
utilize the same test, even in the course of inspection, making use of the same evidence that would have been presented
before the NLRC.

Also SC noted that despite Art. 128(b) of the Labor Code, as amended by RA 7730, there is still a threshold amount set by Arts.
129 and 217 of the Labor Code when money claims are involved, i.e., that if it is for PhP 5,000 and below, the jurisdiction is
with the regional director of the DOLE, under Art. 129, and if the amount involved exceeds PhP 5,000, the jurisdiction is with
the labor arbiter, under Art. 217. However, despite the wording of Art. 128(b), this would only apply in the course of regular
inspections undertaken by the DOLE.

In conclusion, if a complaint is brought before the DOLE to give effect to the labor standards provisions of the Labor Code or
other labor legislation, and there is a finding by the DOLE that there is an existing employer-employee relationship, the DOLE
exercises jurisdiction to the exclusion of the NLRC. If the DOLE finds that there is no employer-employee relationship, the
jurisdiction is with the NLRC. If a complaint is filed with the DOLE, and it is accompanied by a claim for reinstatement, the
jurisdiction is with the Labor Arbiter, under Art. 217(3) of the Labor Code. If a complaint is filed with the NLRC, and there is still
an existing employer-employee relationship, the jurisdiction is with DOLE .

In the present case, since SC finds that there was no employer-employee relationship between petitioner Jauenzan and
respondent Bombo Radyo Phils., and that respondent Juenzan failed to prove the existence of an employer-employee
relationship. The DOLE had no jurisdiction over the case, as there was no employer-employee relationship present. Thus, the
dismissal of the complaint against petitioner is proper.

WHEREFORE, the Decision of this Court is hereby AFFIRMED, with the MODIFICATION that in the exercise of the DOLEs
visitorial and enforcement power, the Labor Secretary or the latters authorized representative shall have the power to
determine the existence of an employer-employee relationship, to the exclusion of the NLRC. SO ORDERED.