Legality of Employers Requiring Third-Party Contractors to Perform Cleaning Duties in the Philippines

Introduction

In the Philippine labor landscape, the relationship between employers (principals) and third-party contractors is governed by a framework designed to protect workers' rights while allowing businesses flexibility in operations. The practice of requiring third-party contractors to perform cleaning duties raises questions about contractual obligations, labor standards, and potential circumvention of employment laws. This article examines the legality of such requirements under Philippine law, drawing from the Labor Code of the Philippines (Presidential Decree No. 442, as amended), Department of Labor and Employment (DOLE) regulations, and relevant Supreme Court jurisprudence. It explores the distinctions between permissible contracting arrangements and prohibited practices, the implications for cleaning duties specifically, employer liabilities, worker protections, and practical considerations for compliance.

Legal Framework for Contracting and Subcontracting

The foundation of contracting in the Philippines is Article 106 of the Labor Code, which permits job contracting or subcontracting provided it does not constitute "labor-only contracting." Labor-only contracting occurs when the contractor or subcontractor merely supplies workers to perform tasks that are necessary or desirable to the principal's business, without exercising substantial control over the means and methods of work, or lacking substantial capital or investment in tools and equipment. Such arrangements are illegal because they undermine security of tenure, minimum wage, and other labor benefits by disguising regular employment as temporary contracting.

In contrast, legitimate job contracting is allowed if the contractor:

Carries out a distinct and independent business.
Undertakes the contract work under its own account and responsibility.
Possesses substantial capital or investment (at least PHP 5 million under current DOLE guidelines, though this may vary).
Exercises control over the performance of the work.

DOLE Department Order No. 174, series of 2017 (DO 174-17), further regulates this by requiring contractors to register with DOLE and prohibiting arrangements that evade labor laws. Under DO 174-17, principals can engage contractors for specialized services, including those not directly related to their core business, but must ensure the contractor complies with labor standards.

Cleaning duties, often categorized as janitorial or maintenance services, fall within permissible subcontracting if handled by a legitimate contractor. However, requiring third-party contractors—originally engaged for other purposes—to perform cleaning duties could blur these lines, potentially transforming the arrangement into labor-only contracting if not properly structured.

Specific Application to Cleaning Duties

Cleaning duties encompass tasks such as sanitation, waste disposal, and upkeep of workplaces, which are essential for health and safety compliance under the Occupational Safety and Health Standards (OSHS) as amended by Republic Act No. 11058. Employers have a duty to maintain a safe workplace, and this extends to areas used by third-party contractors. However, the legality of mandating contractors to perform these duties depends on the nature of the engagement.

Permissible Scenarios

Dedicated Janitorial Contractors: Employers may legally contract specialized janitorial firms to handle cleaning. These contractors must be DOLE-registered and provide their own equipment, supervision, and trained personnel. For instance, in industries like manufacturing or hospitality, outsourcing cleaning to third parties is common and lawful, as it allows principals to focus on core operations while ensuring compliance with hygiene standards.
Incidental Cleaning in Contracts: If a third-party contractor's agreement explicitly includes minor cleaning responsibilities (e.g., a construction contractor required to clean up debris post-work), this is generally legal, provided it aligns with the contract's scope and does not constitute the primary duty. The principle of pacta sunt servanda (agreements must be kept) under the Civil Code supports enforcement of such clauses if freely entered into.
Health and Safety Mandates: During public health emergencies, such as the COVID-19 pandemic, DOLE issuances (e.g., Department Advisory No. 17-20) allowed employers to impose cleaning protocols on all workplace personnel, including contractors, to prevent disease spread. This is justified under the police power of the state and does not inherently violate labor laws if reasonable and non-discriminatory.

Prohibited Practices

Forcing Additional Duties on Non-Janitorial Contractors: Requiring a third-party contractor engaged for skilled work (e.g., IT services or consulting) to perform cleaning duties outside their contract could be deemed illegal if it:
- Alters the employment relationship, making the contractor's workers de facto employees of the principal.
- Violates the contractor's independence, as per DO 174-17, Section 8, which prohibits principals from exercising control over contractors' methods.
- Constitutes "endo" (end-of-contract) schemes or contractualization abuses, banned under Executive Order No. 51 (2018) and Republic Act No. 10691.
Labor-Only Contracting Disguised as Cleaning: If an employer uses a sham contractor solely for cleaning to avoid direct hiring, this is prohibited. Indicators include the principal providing tools, direct supervision, or integrating workers into regular operations. Supreme Court cases like Neri v. National Labor Relations Commission (G.R. No. 97008-09, 1993) have struck down such arrangements, holding principals solidarily liable for labor claims.
Discrimination or Hazardous Conditions: Mandating cleaning without proper protective equipment or training violates OSHS and could lead to administrative penalties. If duties involve hazardous materials, compliance with Republic Act No. 6969 (Toxic Substances Act) is required.

Employer Liabilities and Worker Rights

Principals who improperly require cleaning duties from third-party contractors face significant risks:

Solidary Liability: Under Article 109 of the Labor Code, principals are jointly and severally liable with contractors for wages, benefits, and damages if the arrangement is found to be labor-only. This includes backwages, separation pay, and moral damages in cases of illegal dismissal.
Administrative Sanctions: DOLE may impose fines up to PHP 100,000 per violation under DO 174-17, or order regularization of workers. In D.O.L.E. Philippines, Inc. v. Esteva (G.R. No. 159137, 2004), the Court emphasized that principals cannot escape liability by claiming contractor independence without proof.
Criminal Liability: Extreme cases involving exploitation could trigger charges under anti-trafficking laws (Republic Act No. 9208) or for violations of minimum wage (Republic Act No. 6727).

Workers' rights include:

Fair wages (at least regional minimum, currently around PHP 400-600/day depending on region).
Social security benefits via SSS, PhilHealth, and Pag-IBIG.
Safe working conditions, with cleaning workers entitled to hazard pay if exposed to risks.
Freedom from forced labor, as protected by the 1987 Constitution (Article III, Section 18).

Contractors themselves have rights to negotiate terms and refuse unreasonable additions to their scope of work, potentially invoking breach of contract under the Civil Code (Articles 1305-1422).

Jurisprudence and Case Studies

Philippine courts have consistently scrutinized contracting arrangements:

In San Miguel Corporation v. MAERC Integrated Services, Inc. (G.R. No. 144672, 2004), the Court ruled that janitorial services could be legitimately subcontracted if the contractor maintained independence, but principals remain liable for underpayment.
Aliviado v. Procter & Gamble Phils., Inc. (G.R. No. 160506, 2010) highlighted that even peripheral tasks like cleaning, if performed by labor-only contractors, render the principal the true employer.
During the pandemic, cases under DOLE advisories upheld temporary cleaning mandates but required compensation and protective measures.

These decisions underscore that while cleaning can be outsourced, any requirement must not erode worker protections.

Practical Considerations for Compliance

To ensure legality:

Draft clear contracts specifying duties, with cleaning limited to agreed scopes.
Verify contractor registration via DOLE's online portal.
Conduct regular audits to prevent control over contractors' operations.
Provide training and equipment if duties are incidental.
Consult DOLE regional offices for guidance on specific industries.

In sectors like BPO or retail, where cleaning is routine, hybrid models (in-house and contracted) are common, but must adhere to regularization thresholds (e.g., six months for probationary periods under Article 281).

Conclusion

The legality of employers requiring third-party contractors to perform cleaning duties in the Philippines hinges on whether the arrangement respects labor laws, maintains contractor independence, and upholds worker rights. Permissible when part of legitimate subcontracting, it becomes unlawful if it masks direct employment or imposes undue burdens. Businesses must navigate this carefully to avoid liabilities, while workers and contractors should assert their protections. As labor policies evolve, staying aligned with DOLE updates is essential for fostering fair workplaces.