Full time but not regular

Under Article 157 of the Labor Code, employers with more than 200 workers should provide or make available medical and allied services consisting of a full time registered nurse, part time physician and dentist and an emergency clinic. Does this mean that the employer should hire or employ a nurse, doctor and dentist? This is the issue raise in this case of registered nurses Mila and Rina.

Mila and Rina were rendering services since 1996 and 1999 respectively as nurses in a clinic provided and maintained by a five star island resort hotel (the hotel) for the doctor whose services it retains under a Memorandum Agreement (MOA). Pursuant to the MOA, the doctor is paid a monthly retainer’s fee of P60,000 plus 70% of the service charges from hotel guests who avail of the clinic services. Out of the fee and services charges, the retained doctor pays for the salaries, SSS contributions and other benefits of the staff including the nurses, their group life, group personal accident and life insurance as well as VAT and withholding taxes. The doctor could hire her own nurses and other clinic personnel.

When Dr. Pita was retained as the hotel doctor, Mila and Rina continued rendering services as nurses in the clinic upon their request. They observe clinic hours and render services only to hotel guests and employees. During the hotel’s peak months of operation, Dr. Pita would hire additional nurses whose salaries were recommended by the hotel’s HRD based on the billings prepared by her (Dr. Pita).

In late 2002, Mila and Rina decided to file with the National Labor Relations Commission (NLRC a complaint for regularization, underpayment of wages, non-payment of holiday pay, night shift differential and 13th month pay differential against both the hotel and Dr. Pita claiming that they are regular employees of the hotel. They insisted that under Article 157 of the Labor Code, the hotel is required to hire a full time registered nurse apart from a physician, hence their engagement should be deemed as regular employment, the provisions of the MOA notwithstanding. Mila and Rina further contended that the MOA is contrary to public policy as it circumvents security of tenure and therefore void. At most they argue that the MOA is a mere job contract. Were Mila and Rina correct?

No. Article 157 of the Labor Code does not require the engagement of full time nurses as regular employees of a company employing not less than 50 workers. Under the said Article, the hotel, which employs more than 200 workers is mandated to furnish its employees with services of a full time registered nurse, a part time physician and dentist and an emergency clinic which means that it should provide or make available such medical and allied services to its employees, not necessarily to hire or employ those service providers.

The term “full time” in Article 157 cannot be construed as referring to the type of employment of the person engaged to provide the services. Article 157 must not be read alongside Article 280 of the Labor Code in order to vest employer-employee relationship on the employer and the person engaged to perform work required in the usual business or trade of the employer. Any agreement may provide that one party shall render services for and in behalf of another no matter how necessary for the latter’s business, even without being hired as an employee. Article 280 is not the yardstick for determining the existence of employment relationship. As it is, the provision merely distinguishes between two kinds of employees, i.e., regular or casual.

The phrase “services of a full-time registered nurse” should thus be taken to refer to the kind of services that the nurse will render in the company’s premises and to its employees, not the manner of the engagement (Escasinas and Singco vs. Shangri-La’s Mactan Island Resort and Pepito, G.R. 178827, March 4, 2009).

Note: Books containing compilation of my articles on Labor Law and Criminal Law (Vols. I and II) are now available. Call tel. 7249445.

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