Every May 1st, organized labor consistently comes together to advocate for their usual requests: increased salaries, job security through permanent positions, reduced costs, an end to “end-of-contract” practices like “5-5-5,” among others.
HOWEVER, MY THOUGHTS THIS YEAR VEER TOWARD UNORGANIZED LABOR, mainly the self-employed, those belonging to the so-called “gig” economy like musicians, dance instructors, singers, ballet dancers, and others similarly situated, like online sellers, influencers, delivery drivers, seasonal workers, and construction laborers who are paid on a per-gig or per-day basis.
Apparently, the word gig originated from musicians who ask one another, “May gig ka ba ngayon? (‘Do you have a gig today?’ or ‘Do you have a performance today?’ or, from the young, ‘Are you attending a party tonight?’)” The slang has been expanded to include those using an app to hitch a ride from Grab or Angkas, to buy fast food from Jollibee, or to purchase clothing, drugs, or homemade crafts. Or wider, to college professors, movie stars, directors, stuntmen, or even dance instructors.
In contrast to typical workers who put in an eight-hour shift daily, these individuals do not adhere to such schedules. They also lack a consistent employer and uniform working times. These professionals choose when to work based on their preferences and get compensated for individual tasks completed. This flexible model has seen significant growth due to advancements in technology.
Certain elements such as film celebrities receive hefty payments, often up to ₱1 million per day of filming. In stark contrast, some basic workers like refuse collectors and ditch diggers earn as little as ₱500 a day. This disparity prompts me to question: Can legislation be enacted to provide similar advantages to these less privileged employees as those received by members of structured unions?
When asked about this issue, AI-trained Jay de Claro, who serves as the president of the Social Security System (SSS), stated that they are currently working on providing coverage for gig workers within their purview, as permitted under Republic Act No. 11199. The intention of the SSS to extend these benefits to gig workers is commendable.
BUT, IN GENERAL, HOW DOES THE LAW PROTECT these lowly gig workers? To begin with, our Constitution (Article XIII, Section 3) has a bias for labor. This bias is reflected in Article 4 of our lengthy Labor Code: “All doubts in the implementation and interpretation of the provisions of this Code, including its implementing rules and regulations, shall be resolved in favor of labor.”
Gig workers do not fall under the direct coverage of the Labor Code. Nonetheless, I believe Article 106 of the Code concerning contractualization might apply here: “when the individual providing laborers to an employer [first point] lacks significant assets like tools, machinery, equipment, workspace, etc., and [second point] those hired and assigned by this individual perform tasks closely tied to the main operations of the primary entity.” Under these conditions, the party facilitating the gig worker should be seen simply as an extension of the employer’s agency, bearing full responsibility for the welfare of these workers just as they would for their regular employees.
If a “freelance” driver receives a vehicle from the company, follows set schedules consistently, and operates under the control of this same firm, they should be classified as a regular employee. However, when the situation mirrors what happens with Grab drivers—wherein the individual either owns or rents their vehicle through a third party but utilizes the Grab application solely for connecting with passengers—they fall into the category of being independent contractors.
To determine whether an occasional worker, such as someone engaged in gigs, qualifies for the same benefits afforded to regular staff members, the Supreme Court has established five key criteria:
Initially, an employee is considered a regular staff member until the employer can prove that:
(1) The hiring agreement explicitly states that the position is temporary and limited to a particular task whose completion marks the end point known beforehand;
(2) There actually was a distinct project carried out; and
(3) Both sides entered into the arrangement freely without any coercion or deception affecting their decision-making process.
Secondly, once deemed a regular employee initially, job security becomes applicable. Consequently, later executing project employment agreements won’t weaken this established position.
Thirdly, even if originally hired as a project employee, this position might evolve into a permanent role provided two conditions: first, there is ongoing reemployment following the end of the project period; and second, the duties carried out by what was deemed a “project employee” are essential, crucial, and integral to the normal operations or commerce conducted by the employer.
Fourth, regular employees follow the “no work, no pay” rule, which means employers aren’t required to compensate them during their leaves. If there’s an excess of regularized staff members, employers have the authority to use managerial discretion to choose who gets assigned to available projects and who remains on leave.
Fifth, the submission of termination reports to the Department of Labor Field Offices might be viewed as an indication of project employment; however, failing to submit these reports doesn’t necessarily lead to automatic regularization.
Ultimately, I think Congress needs to create laws addressing the state, advantages, and hazards associated with the gig economy and its workforce. This is because the Labor Code was established before the digital era began and thus does not explicitly encompass these modern-day workers.
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