Employees entitled to service charge share

Dear PAO,
I am presently employed as a waiter for a hotel but I am under an agency. I have read about the provision of service charge under our Labor Code. I just want to know whether I am entitled to receive such service charge. Please enlighten me.
RPJ

Dear RPJ,
Article 96 of the Labor Code of the Philippines deals with the distribution of all service charges collected by hotels, restaurants and similar establishments. As stated therein:“All service charges collected by hotels, restaurants and similar establishments shall be distributed at the rate of eighty-five percent (85%) for all covered employees and fifteen percent (15%) for management. The share of the employees shall be equally distributed among them. In case the service charge is abolished, the share of the covered employees shall be considered integrated in their wages.” (Emphasis supplied)

To be considered as covered employees, one must be directly employed by the establishment and/or undertaking, whether for profit or not, but not including government employees, managerial employees, field personnel, members of the family of the employer who are dependent on him for support, domestic helpers, persons in the personal service of another, and workers who are paid by results as determined by the Secretary of Labor in appropriate regulations. (Article 82, Ibid.) In addition, there must be a concrete showing of employer-employee relationship between the claimant-employee and the employer he/she is claiming from.In a long line of cases, our Supreme Court has pronounced the so-called “four-fold test” to determine the existence of an employer-employee relationship, to wit: (1) the selection and engagement of employee; (2) the payment of wages; (3) the power of dismissal; and (4) the power to control the employee’s conduct (Escario, et al. vs. NLRC, 333 SCRA 257, G. R. No. 124055, June 8, 2000). No benefits under the Labor Code may be claimed if any of the said elements is absent.

Accordingly, you must prove that there exists an employer-employee relationship between you and the hotel in order for you to be entitled to receive your share in the service charges collected by them. Corollary to this, you must prove that the hotel is in command or control of your selection and engagement, the payment of your wages, your dismissal, as well as the conduct of the performance of your tasks as a waiter. If the hotel has no control over any of the said elements, such that when the said control belongs to the agency which hired you, then you may not demand for the said benefit from the hotel. Nevertheless, you are entitled to receive the appropriate benefits from the agency which hired you in accordance with the tenets of our Labor Code, as well as the provisions of your contract and collective bargaining agreement, if there be any.

We hope that we were able to answer your queries. Please be reminded that this advice is 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.

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