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Contractual status for almost 3 years

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1 Contractual status for almost 3 years on Wed Dec 07, 2016 11:02 am

sereneguy1234


Arresto Menor
Good Morning, I am currently employed by a Foreign company. I am currently working as Field personnel being sent overseas to do some overseas work on a regular basis (like every month). It sounds good and promising job. Honestly, I enjoy what i do here and the privilege of going overseas frequently. However, my worry is my employment status. Since my boss is a foreigner who comes to our Phil.office only once a month. Every year, I have to sign a contract stating that "i am a contractor providing certain services to the company and whereas, company utilize contractor's services as provided etc.etc....

Now I'm about to sign another 1 year contract by January 2017, i had a discussion with my boss last Nov. demanding to my foreigner boss, that i be hired as regular employee instead of annual contract.

I need to clarify that i have no complain with the company and my boss since almost everything is being provided by the company under the discretion of my director.
During our previous years, he mentioned something like the head office which is located overseas, is not really focus on Philippine office and they just rely on whatever our director is reporting to them.

My worry is that, my director is about to retire in 1 1/2 years from now. I told him that once he retires, we don't know if they will still continue the operation of this office or just replace him.

Right now we do not have the security of tenure since the contract is terminated annually. If they decided to no longer use our services, then all they have to do is not to renew the contract.

The reason they need to hire us are: Filipinos can do their work with advantage of speaking english better than any of them.
We do engineering work and at the same time do sales as previously done by 2 persons always (Technical person and a sales man who can speak english).

Right now, my salary, taxes and benefits is being handled by a BPO which they say are our employer which we also sign a contract stating that we are hired to work for this company (but on a contractual status also but every 6 months) .

My boss told me, he wanted to do so, but he was advice by his consultant that it is legally impossible.
He also told me that it's too difficult since nobody from them stays at the office permanently.
When he asked me why i wanted to be a regular employee while i am also enjoying the benefits of regular employee.
I simply say, it's the security of tenure.
I am at my 40's now and i can't find a job in flash specially if i don't get a separation pay or early retirement.

Can any body here give me advice what is my next move here without offending my boss or the head office.
Is my employment status violating the labor code regarding rules on contractual employee?
Is it really impossible or too difficult to do so?

I just want financial security for my family.

Sorry for the very long post. If it is too confusing,please do not hesitate to ask me.

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2 Re: Contractual status for almost 3 years on Wed Dec 07, 2016 11:48 am

lukekyle


Reclusion Perpetua
Your setup is that of a contractor not a contractual employee. You are a seller/supplier of services. As such wala talagang security of tenure kasi hindi ka naman considered employee.
I would suggest that you factor in na the separation pay with what you are receiving now. If you are receiving 200k per year. maybe try asking for 220k. so in effect you receive na your "separation pay" in advance

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3 Re: Contractual status for almost 3 years on Wed Dec 07, 2016 2:00 pm

sereneguy1234


Arresto Menor
So base from the type of work we are rendering, i assume that this is legal? Our company is not violating anything?

Can I ask one more thing sir, My director is also insinuating that he wants to hire us directly, however he told me that base on his consultant. It is legally impossible (whatever that means by the consultant). He told me that they don't know how to do it in such a way that we can comply with Philippine law.

If you don't mind sir, could you please tell me what shall i do (procedure) just in case he formally consider us to be hire as regular employees? I want to lay out options for him regarding the procedures and the possibilities that we can be hired directly.

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4 Re: Contractual status for almost 3 years on Wed Dec 07, 2016 2:28 pm

lukekyle


Reclusion Perpetua
grey area. If maganda pagkagawa nila ng contract they probably made a way to make it legal.
So clarify ko lang you have a contract between you and the Foreign company and a contract between you and the BPO?

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5 Re: Contractual status for almost 3 years on Wed Dec 07, 2016 3:27 pm

sereneguy1234


Arresto Menor
Yes sir which made it more complicated. We are contractor of the foreign company. At the same time we are a contractual employee of the BPO stating that we are hire for the position of ...... directly reporting to...... This is a project based employment for 12 months (with a page entitled Leter of commitment  and agreement to commit for a minimum of 6 months).

In actual the BPO doesn't know the full detail of our work for this company except deployed overseas for engineering work. The BPO's function is purely to process our salary, taxes and common benefits.

All the work and deployment to where, depends on the foreign company where we are staying.

In fairness to these 2 companies, we are treated very well and give us what due to us.

My only complain is that the employment security is really dim specially once our trusted foreign boss retires.

To add up: We are receiving 2 incomes. 1 from the BPO (taxed) but all being paid by this foreign company and 1 from the foreign company as a fee (also taxed) since we are considered contractors.

I wanted to clarify things with my foreign boss but it seems he himself is so confuse and doesn't even know what to do except to rely on the 3rd party consultant (also handling our accounting and expenses matters) whom he is paying monthly.

Please tell me if if i am wrong: Since we do not have an HRD, I suggested to my boss that we change the annual contract and sign a new agreement stating that we are regular employees and still keep the service of the BPO to process our salary, taxes and benefits but as a 3rd party and not as employer.

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6 Re: Contractual status for almost 3 years on Wed Dec 07, 2016 3:51 pm

lukekyle


Reclusion Perpetua
Please tell me if if i am wrong: Since we do not have an HRD, I suggested to my boss that we change the annual contract and sign a new agreement stating that we are regular employees and still keep the service of the BPO to process our salary, taxes and benefits but as a 3rd party and not as employer.
- Nothing wrong with this. If payag yung employer this would be best for you. I'm just guessing but is your employer registered to do business sa philippines? One possible reason why they said its not legal for them to hire employees directly is perhaps that. maybe thats why they have to engage the services of another firm so you guys will have SSS, etc.

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7 Re: Contractual status for almost 3 years on Wed Dec 07, 2016 4:11 pm

sereneguy1234


Arresto Menor
Well, our SEC registration states that we are representative office of this foreign company. We don't receive order nor generate sales. Though we are providing sales domestic and overseas. All PO is addressed to the head office overseas.

Sir, is there any legal loop holes with regards to our employment status? One that i can imply to my boss and a bit put a little pressure to them to seriously find a way to change our employment status?
Example: Though i am not really sure, but is the government's order to stop ENDO (or end to contractualization) will cover us? If no, do you have any suggestions for any action i should do in order for my employer to act on this?

Honestly, i love this job and i like the company of these people, but i love my family even more hence i worry so much for the future.
(another dilemma of mine was, since i am bound by the contract, once a better opportunity knocks at my door, i can't just jump into it without consequences). I also cannot decline the contract without a new employer.....haaaay) by the way, I really do appreciate you sir for taking time to answer my queries.

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8 Re: Contractual status for almost 3 years on Wed Dec 07, 2016 4:45 pm

lukekyle


Reclusion Perpetua
Gov't order to stop endo but no law accompanying it. Labor secretary said what the president meant was to stop the illegal forms of endo not the legitimate ones. Furthermore your employer will claim that you are contractors and not employees. Gov't will supposedly come out with new guidelines regarding contractualization on Dec 15 but without new laws i dont know how they will enforce them.

Best just wait for the 15th and see if there are any new changes to the policy and how it would apply to you

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9 Re: Contractual status for almost 3 years on Wed Dec 07, 2016 4:55 pm

sereneguy1234


Arresto Menor
I think for now that is what i need to do. Thank you very much sir for finding time to answer my questions.

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