Republic of the Philippines

COURT OF APPEALS
Manila

Petitioners,

- versus - CA- G.R.

Respondents,
x----------------------------------------------------------x

COMMENT

COMES NOW the Respondents, by the undersigned counsel, and

unto this HONORABLE TRIBUNAL, most respectfully submits this
Comment to the Motion for Reconsideration, as follows:

1. On June 06, 2019, respondents, through counsel received a

Notice dated May 20, 2019 directing the respondents through
counsel, to file comment to the Motion for Reconsideration after
ten (10) days from receipts. The tenth day to file the present
Comment is on June 14, 2019.

2. The dismissal of the petition by the Honorable Court in its

Resolution dated March 27, 2019 was well taken for being in
accordance with the law and rules of procedure.

3. That the leading case of Leo V. Mago and Colobong vs. Sun
Power Manufacturing Limited (G.R. No. 210961, January 24,
2018) cited in their Motion in support thereof, is not applicable
because this instant case is not similar with the cited leading
case.

4. The Motion for Reconsideration filed by petitioner is the

discussion of the above leading case. The allegation presented
in its Motion for Reconsideration is the pure recital of the facts
and penned Supreme Court arguments and discussions.

5. Having been said, what is controlling given such circumstances,

respondents appear to have been actually employed by
Petitioner and deployed to _______. It is worthy to mention that
Rule VIII-A, Book III of the Omnibus Rules Implementing The
 Labor Code, as amended by Department Order No. 18-A
(Series of 2011) distinguishes between legitimate and labor-
only contracting:

“Section 4. Legitimate contracting or

subcontracting. Contracting or subcontracting
shall be legitimate if all the following
circumstances concur:

(a) The contractor must be registered in

accordance with these Rules and carries a
distinct and independent business and
undertakes to perform the job, work or service on
its own responsibility, according to its own
manner and method, and free from control and
direction of the principal in all matters connected
with the performance of the work except as to the
results thereof;
(b) The contractor has substantial capital and/or
investment; and
(c) The Service Agreement ensures compliance
with all the rights and benefits under Labor Laws.

“Section 6. Prohibition against labor-only

contracting. Labor-only contracting is hereby
declared prohibited. For this purpose, labor
only contracting shall refer to an arrangement
where:

(a) The contractor does not have substantial

capital or investments in the form of tools,
equipment, machineries, work premises, among
others, and the employees recruited and placed
are performing activities which are usually
necessary or desirable to the operation of the
company, or directly related to the main business
of the principal within a definite or predetermined
period, regardless of whether such job, work or
service is to be performed or completed within or
outside the premises of the principal; or
(b) The contractor does not exercise the right to
control over the performance of the work of the
employee.”

6. Otherwise put, labor-only contracting is an arrangement where

the contractor or subcontractor merely recruits, supplies or
places workers to perform a job, work or service to the
principal1. The presumption is that a contractor is a labor-only
contractor because an employee cannot be expected to prove

1 (Escario vs. National Labor Relations Commission, 333 SCRA 287).

 the negative fact that the contractor in job-contracting2. Among
the circumstance which a person or entity which supplies
workers to another shall be deemed to be merely engaged in
labor-only contracting are : (a) when he does not have
substantial capital or investment in the form of tools, equipment,
machineries, work premises and other materials; and (b) when
the workers recruited and placed by him perform activities that
relate directly to the principal business or operations of the
employer in which the workers are habitually employed3.

7. Likewise on the issue of Jurisdiction that petitioner alleges in its

Motion for Reconsideration is futile.

8. The Honorable Tribunal already ruled on this issue. That

certiorari may be availed only for errors of jurisdiction and not of
judgment. 4

9. Petitioner failed to prove that the NLRC committed jurisdictional

error in issuing the assailed decision and resolution5.

10. Petitioner legal representative _______ with all due respect fails
to meet the standard required for reconsideration because it fails
to raise new issues of fact or law, fails to demonstrate that this
Honorable Court failed to consider any material fact, and fails to
demonstrate any manifest injustice or clear error.

11. Indeed, Petitioner legal representative Motion for

Reconsideration simply revisits the facts previously cited and
repackages the exact same arguments previously advanced in
its Petition.

12. Moreover, Petitioner has provided this Honorable Court no

reason to find that clear error exists in the Resolution dated
March 27, 2019 or that manifest injustice would result from the
decision to dismiss the instant petition.

PRAYER

WHEREFORE, premises considered, it is most respectfully prayed

unto this Honorable Court to DENY Petitioners Motion for Reconsideration.

Other reliefs just and equitable are likewise prayed for.

Quezon City, June 14, 2019.

2 (7K Corporation vs. National Labor Relations Commission, G. R. No. 148490, , November 22, 2006).
3 (Ponce vs. National Labor Relations Commission, 293 SCRA 366).
4 CA Resolution, Rollo, p. 5.
5 CA Resolution, Rollo, p. 7.