42
G.R. No. 124841 July 31, 1998PEFTOK INTEGRATED SERVICES,
INC.,petitioner,vs.NATIONAL LABOR RELATIONS COMMISSION and EDUARDO
ABUGHO, ET. AL.,respondents.PURISIMA,J.:Pacta privata juri publico
derogare non possunt. Private agreements (between parties) cannot
derogate from public right.Filed on May 22, 1996, this petition
forcertiorariunder Rule 65 of the Revised Rules of Court seeks to
set aside the decision of the National Labor Relations Commission
(NLRC) dismissing the appeal of petitioner. The case stemmed from
the decision handed down by Labor Arbiter Noel Augusto S. Magbanua,
disposing, as follows:WHEREFORE, in view of the foregoing premises,
respondents-PEFTOK Security Agency and Timber Industries of the
Philippines, Inc. (TIPI) and Union Plywood Corporation are hereby
ordered to pay, jointly and solidarily the claims of complainants
as previously computed, as follows:1. Eduardo Abugho49,397.83
2. Clenio Macanoquit31,596.12
3. Claro Mendez49,308.83
4. Leovemin Lumban16,666.45
5. Crispin Balingkit44,772.34
6. Ulysses Labis43,812.64
7. Fidel Sabellina23,666.90
8. Leonardo Daluperi27,026.59
9. Valentine Adame17,084.92
10. Gonzalo Ernero18,018.56
11. Celso Niluag18,670.00
12. Reynaldo Maasin19,499.281
GRAND TOTALP342,598. 52
Other claims are hereby dismissed for failure to substantiate
and for lack of merit.SO ORDERED.Pertinent sheriff's return shows
that the aforesaid decision was partly executed up to fifty percent
(50%), Timber Industries of the Philippines (TIPI) having paid half
of their solidary obligation to the security guards-employees, who
quitclaimed and waived fifty percent (50%) of the benefits adjudged
in their favor. On October 13, 1989,2Eduardo Abugho, Claro Mendez
and Leonardo Daluperi executed a waiver3of all their claims against
Peftok Integrated Services, Inc. (PEFTOK, for brevity) for the
period ending on June 30, 1989. Said waiver4appeared to bar all
claims they may have had against PEFTOK before June 30, 1989. Urged
by their entitlement to full benefits as provided in the labor
arbiter's decision, the private respondents sought the issuance of
analiaswrit of execution.On May 29, 1992, Eduardo Abugho, Fidel
Sabellina, Leonardo Daluperi, Claro Mendez and Reynaldo Maasin
executed another waiver and quitclaim5purportedly renouncing
whatever claims they may have against PEFTOK for the period ending
March 15, 1998. Such waiver or quitclaim was worded to preclude
whatever claim they may have against PEFTOK on or before March 16,
1998. However, Eduardo Abugho, Fidel Sabellina, Leonardo Daluperi,
Reynaldo Maasin and Claro Mendez subsequently executed
affidavits6stating that the aforementioned quitclaims were prepared
and readied for their signature by PEFTOK and they were forced to
sign the same for fear that they would not be given their salary on
pay day, and worse, their services would be terminated if they did
not sign the said quitclaims under controversy.Private respondents
asserted that the waivers of claims signed by them are contrary to
public policy; the same being written in the English language which
they do not understand and the contents thereof were not explained
to them. On June 19, 1995, the prayer foraliaswrit of execution was
granted by Labor Arbiter Henry F. Te.In support of its prayer,
petitioner PEFTOK theorizes that the quitclaims executed by the
security guards suffer no legal infirmity. Like any other right,
the claims in dispute can be waived and waiver thereof is not
prohibited by law. No surety bond is required to perfect an appeal,
in the same manner that no bond is necessary for the issuance of
analiaswrit of execution; petitioner maintains.The comment sent in
by the Solicitor General prays that the petition be dismissed
outright for being premature and for non-compliance with the
requisite motion for reconsideration of the NLRC decision before
elevating the same to this court. It stressed that quitclaims by
employees are basically against public policy.There is no quibble
over the fact that subject decision of the labor arbiter appealed
from was received by petitioner on June 30, 1995. The appeal
therefrom should have been interposed within 10 days or not later
than July 10, 1995. But unfortunately for petitioner, its appeal
was only filed on July 17, 1995. Indeed, it is decisively clear
that petitioner's appeal is flawed by late filing. The prescribed
period for appeal is both mandatory and jurisdictional.Then, too,
the petition under consideration is likewise dismissable on the
ground of prematurity. In consonance with the principle of
exhaustion of administrative remedies, it was necessary for a
motion for reconsideration of the decision of the National Labor
Relations Commission to be filed in order to give NLRC a chance to
correct its mistakes, if there be any. So also, under Rule 65 of
the Revised Rules of Court, petitioner must establish that it has
no plain, speedy and adequate remedy in the ordinary course of law
for its perceived grievance.7It is decisively clear that they
(guards) affixed their signatures to subject waivers and/or
quitclaims for fear that they would not be paid their salaries on
pay day or worse, still, their services would be terminated if they
did not sign those papers. In short, there was no voluntariness in
the execution of the quitclaim or waivers in question. It should be
borne in mind that in this jurisdiction, quitclaims, waivers or
releases are looked upon with disfavor.8"Necessitous men are not
free men."9"They are commonly frowned upon as contrary to public
policy and ineffective to bar claims for the full measure of the
workers' legal rights."10With respect to the posting of cash or
surety bond, the requirement therefor is mandatory. The bond issine
qua nonto the perfection of appeal from the labor arbiter's
monetary award.11The posting of cash or surety bond is
unconditional"12and cannot therefore be trifled with. It is the
intendment of the law that employees be assured that if they
finally prevail in the case, they will receive the monetary award
granted them. The bond also serves to discourage employers from
using the appeal as a ploy to delay or evade payment of monetary
obligations to their employees.WHEREFORE, the petition is hereby
DISMISSED for lack of merit; the decision of the NLRC dated
February 26, 1995 is AFFIRMED and the questionedaliaswrit of
execution UPHELD.SO ORDERED.G.R. No. L-53515 February 8, 1989SAN
MIGUEL BREWERY SALES FORCE UNION (PTGWO),petitioner,vs.HON. BLAS F.
OPLE, as Minister of Labor and SAN MIGUEL
CORPORATION,respondents.Lorenzo F. Miravite for petitioner.Isidro
D. Amoroso for New San Miguel Corp. Sales Force Union.Siguion
Reyna, Montecillo & Ongsiako for private
respondent.GRIO-AQUINO,J.:This is a petition for review of the
Order dated February 28, 1980 of the Minister of Labor in Labor
Case No. AJML-069-79, approving the private respondent's marketing
scheme, known as the "Complementary Distribution System" (CDS) and
dismissing the petitioner labor union's complaint for unfair labor
practice.On April 17, 1978, a collective bargaining agreement
(effective on May 1, 1978 until January 31, 1981) was entered into
by petitioner San Miguel Corporation Sales Force Union (PTGWO), and
the private respondent, San Miguel Corporation, Section 1, of
Article IV of which provided as follows:Art. IV, Section 1.
Employees within the appropriate bargaining unit shall be entitled
to a basic monthly compensation plus commission based on their
respective sales. (p. 6, Annex A; p. 113, Rollo.)In September 1979,
the company introduced a marketing scheme known as the
"Complementary Distribution System" (CDS) whereby its beer products
were offered for sale directly to wholesalers through San Miguel's
sales offices.The labor union (herein petitioner) filed a complaint
for unfair labor practice in the Ministry of Labor, with a notice
of strike on the ground that the CDS was contrary to the existing
marketing scheme whereby the Route Salesmen were assigned specific
territories within which to sell their stocks of beer, and
wholesalers had to buy beer products from them, not from the
company. It was alleged that the new marketing scheme violates
Section 1, Article IV of the collective bargaining agreement
because the introduction of the CDS would reduce the take-home pay
of the salesmen and their truck helpers for the company would be
unfairly competing with them.The complaint filed by the petitioner
against the respondent company raised two issues: (1) whether the
CDS violates the collective bargaining agreement, and (2) whether
it is an indirect way of busting the union.In its order of February
28, 1980, the Minister of Labor found:... We see nothing in the
record as to suggest that the unilateral action of the employer in
inaugurating the new sales scheme was designed to discourage union
organization or diminish its influence, but rather it is
undisputable that the establishment of such scheme was part of its
overall plan to improve efficiency and economy and at the same time
gain profit to the highest. While it may be admitted that the
introduction of new sales plan somewhat disturbed the present
set-up, the change however was too insignificant as to convince
this Office to interpret that the innovation interferred with the
worker's right to self-organization.Petitioner's conjecture that
the new plan will sow dissatisfaction from its ranks is already a
prejudgment of the plan's viability and effectiveness. It is like
saying that the plan will not work out to the workers' [benefit]
and therefore management must adopt a new system of marketing. But
what the petitioner failed to consider is the fact that corollary
to the adoption of the assailed marketing technique is the effort
of the company to compensate whatever loss the workers may suffer
because of the new plan over and above than what has been provided
in the collective bargaining agreement. To us, this is one
indication that the action of the management is devoid of any
anti-union hues. (pp. 24-25, Rollo.)The dispositive part of the
Minister's Order reads:WHEREFORE, premises considered, the notice
of strike filed by the petitioner, San Miguel Brewery Sales Force
Union-PTGWO is hereby dismissed. Management however is hereby
ordered to pay an additional three (3) months back adjustment
commissions over and above the adjusted commission under the
complementary distribution system. (p. 26, Rollo.)The petition has
no merit.Public respondent was correct in holding that the CDS is a
valid exercise of management prerogatives:Except as limited by
special laws, an employer is free to regulate, according to his own
discretion and judgment, all aspects of employment,including
hiring, work assignments, working methods, time, place and manner
of work, tools to be used,processes to be followed,supervision of
workers, working regulations, transfer of employees, work
supervision, lay-off of workers and the discipline, dismissal and
recall of work. ... (NLU vs. Insular La Yebana Co., 2 SCRA 924;
Republic Savings Bank vs. CIR 21 SCRA 226, 235.) (Perfecto V.
Hernandez, Labor Relations Law, 1985 Ed., p. 44.) (Emphasis
ours.)Every business enterprise endeavors to increase its profits.
In the process, it may adopt or devise means designed towards that
goal. In Abbott Laboratories vs. NLRC, 154 SCRA 713, We ruled:...
Even as the law is solicitous of the welfare of the employees, it
must also protect the right of an employer to exercise what are
clearly management prerogatives. The free will of management to
conduct its own business affairs to achieve its purpose cannot be
denied.So long as a company's management prerogatives are exercised
in good faith for the advancement of the employer's interest and
not for the purpose of defeating or circumventing the rights of the
employees under special laws or under valid agreements, this Court
will uphold them (LVN Pictures Workers vs. LVN, 35 SCRA 147; Phil.
American Embroideries vs. Embroidery and Garment Workers, 26 SCRA
634; Phil. Refining Co. vs. Garcia, 18 SCRA 110). San Miguel
Corporation's offer to compensate the members of its sales force
who will be adversely affected by the implementation of the CDS by
paying them a so-called "back adjustment commission" to make up for
the commissions they might lose as a result of the CDS proves the
company's good faith and lack of intention to bust their
union.WHEREFORE, the petition for certiorari is dismissed for lack
of merit.SO ORDERED.
G.R. No. 101761. March 24, 1993.NATIONAL SUGAR REFINERIES
CORPORATION, petitioner, vs. NATIONAL LABOR RELATIONS COMMISSION
and NBSR SUPERVISORY UNION, (PACIWU) TUCP, respondents.Jose Mario
C. Bunag for petitioner.The Solicitor General and the Chief Legal
Officer, NLRC, for public respondent.Zoilo V. de la Cruz for
private respondent.D E C I S I O NREGALADO, J p:The main issue
presented for resolution in this original petition for certiorari
is whether supervisory employees, as defined in Article 212 (m),
Book V of the Labor Code, should be considered as officers or
members of the managerial staff under Article 82, Book III of the
same Code, and hence are not entitled to overtime rest day and
holiday pay.Petitioner National Sugar Refineries Corporation
(NASUREFCO), a corporation which is fully owned and controlled by
the Government, operates three (3) sugar refineries located at
Bukidnon, Iloilo and Batangas. The Batangas refinery was privatized
on April 11, 1992 pursuant to Proclamation No. 50. 1 Private
respondent union represents the former supervisors of the NASUREFCO
Batangas Sugar Refinery, namely, the Technical Assistant to the
Refinery Operations Manager, Shift Sugar Warehouse Supervisor,
Senior Financial/Budget Analyst, General Accountant, Cost
Accountant, Sugar Accountant, Junior Financial/Budget Analyst,
Shift Boiler Supervisor,, Shift Operations Chemist, Shift
Electrical Supervisor, General Services Supervisor, Instrumentation
Supervisor, Community Development Officer, Employment and Training
Supervisor, Assistant Safety and Security Officer, Head and
Personnel Services, Head Nurse, Property Warehouse Supervisor, Head
of Inventory Control Section, Shift Process Supervisor, Day
Maintenance Supervisor and Motorpool Supervisor.On June 1, 1988,
petitioner implemented a Job Evaluation (JE) Program affecting all
employees, from rank-and-file to department heads. The JE Program
was designed to rationalized the duties and functions of all
positions, reestablish levels of responsibility, and recognize both
wage and operational structures. Jobs were ranked according to
effort, responsibility, training and working conditions and
relative worth of the job. As a result, all positions were
re-evaluated, and all employees including the members of respondent
union were granted salary adjustments and increases in benefits
commensurate to their actual duties and functions.We glean from the
records that for about ten years prior to the JE Program, the
members of respondent union were treated in the same manner as
rank-and file employees. As such, they used to be paid overtime,
rest day and holiday pay pursuant to the provisions of Articles 87,
93 and 94 of the Labor Code as amended. With the implementation of
the JE Program, the following adjustments were made: (1) the
members of respondent union were re-classified under levels S-5 to
S-8 which are considered managerial staff for purposes of
compensation and benefits; (2) there was an increase in basic pay
of the average of 50% of their basic pay prior to the JE Program,
with the union members now enjoying a wide gap (P1,269.00 per
month) in basic pay compared to the highest paid rank-and-file
employee; (3) longevity pay was increased on top of alignment
adjustments; (4) they were entitled to increased company COLA of
P225.00 per month; (5) there was a grant of P100.00 allowance for
rest day/holiday work.On May 11, 1990, petitioner NASUREFCO
recognized herein respondent union, which was organized pursuant to
Republic Act NO. 6715 allowing supervisory employees to form their
own unions, as the bargaining representative of all the supervisory
employees at the NASUREFCO Batangas Sugar Refinery.Two years after
the implementation of the JE Program, specifically on June 20,
1990, the members of herein respondent union filed a complainant
with the executive labor arbiter for non-payment of overtime, rest
day and holiday pay allegedly in violation of Article 100 of the
Labor Code.On January 7, 1991, Executive Labor Arbiter Antonio C.
Pido rendered a decision 2 disposing as follows:"WHEREFORE,
premises considered, respondent National Sugar refineries
Corporation is hereby directed to 1. pay the individual members of
complainant union the usual overtime pay, rest day pay and holiday
pay enjoyed by them instead of the P100.00 special allowance which
was implemented on June 11, 1988; and2. pay the individual members
of complainant union the difference in money value between the
P100.00 special allowance and the overtime pay, rest day pay and
holiday pay that they ought to have received from June 1, 1988.All
other claims are hereby dismissed for lack of merit.SO ORDERED."In
finding for the members therein respondent union, the labor ruled
that the along span of time during which the benefits were being
paid to the supervisors has accused the payment thereof to ripen
into contractual obligation; at the complainants cannot be estopped
from questioning the validity of the new compensation package
despite the fact that they have been receiving the benefits
therefrom, considering that respondent union was formed only a year
after the implementation of the Job Evaluation Program, hence there
was no way for the individual supervisors to express their
collective response thereto prior to the formation of the union;
and the comparative computations presented by the private
respondent union showed that the P100.00 special allowance given
NASUREFCO fell short of what the supervisors ought to receive had
the overtime pay rest day pay and holiday pay not been
discontinued, which arrangement, therefore, amounted to a
diminution of benefits.On appeal, in a decision promulgated on July
19, 1991 by its Third Division, respondent National Labor Relations
Commission (NLRC) affirmed the decision of the labor arbiter on the
ground that the members of respondent union are not managerial
employees, as defined under Article 212 (m) of the Labor Code and,
therefore, they are entitled to overtime, rest day and holiday pay.
Respondent NLRC declared that these supervisory employees are
merely exercising recommendatory powers subject to the evaluation,
review and final action by their department heads; their
responsibilities do not require the exercise of discretion and
independent judgment; they do not participate in the formulation of
management policies nor in the hiring or firing of employees; and
their main function is to carry out the ready policies and plans of
the corporation. 3 Reconsideration of said decision was denied in a
resolution of public respondent dated August 30, 1991. 4Hence this
petition for certiorari, with petitioner NASUREFCO asseverating
that public respondent commission committed a grave abuse of
discretion in refusing to recognized the fact that the members of
respondent union are members of the managerial staff who are not
entitled to overtime, rest day and holiday pay; and in making
petitioner assume the "double burden" of giving the benefits due to
rank-and-file employees together with those due to supervisors
under the JE Program.We find creditable merit in the petition and
that the extraordinary writ of certiorari shall accordingly
issue.The primordial issue to be resolved herein is whether the
members of respondent union are entitled to overtime, rest day and
holiday pay. Before this can be resolved, however it must of
necessity be ascertained first whether or not the union members, as
supervisory employees, are to be considered as officers or members
of the managerial staff who are exempt from the coverage of Article
82 of the Labor Code.It is not disputed that the members of
respondent union are supervisory employees, as defined employees,
as defined under Article 212(m), Book V of the Labor Code on Labor
Relations, which reads:"(m) 'Managerial employee' is one who is
vested with powers or prerogatives to lay down and execute
management policies and/or to hire, transfer, suspend, lay-off,
recall, discharged, assign or discipline employees. Supervisory
employees are those who, in the interest of the employer
effectively recommend such managerial actions if the exercise of
such authority is not merely routinary or clerical in nature but
requires the use of independent judgment. All employees not falling
within any of those above definitions are considered rank-and-file
employees of this Book."Respondent NLRC, in holding that the union
members are entitled to overtime, rest day and holiday pay, and in
ruling that the latter are not managerial employees, adopted the
definition stated in the aforequoted statutory
provision.Petitioner, however, avers that for purposes of
determining whether or not the members of respondent union are
entitled to overtime, rest day and holiday pay, said employees
should be considered as "officers or members of the managerial
staff" as defined under Article 82, Book III of the Labor Code on
"Working Conditions and Rest Periods" and amplified in Section 2,
Rule I, Book III of the Rules to Implement the Labor Code, to
wit:"Art. 82 Coverage. The provisions of this title shall apply to
employees in all establishments and undertakings whether for profit
or not, but not to 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."As
used herein, 'managerial employees' refer to those whose primary
duty consists of the management of the establishment in which they
are employed or of a department or subdivision thereof, and to
other officers or members of the managerial staff." (Emphasis
supplied.)xxx xxx xxx'Sec. 2. Exemption. The provisions of this
rule shall not apply to the following persons if they qualify for
exemption under the condition set forth herein:xxx xxx xxx(b)
Managerial employees, if they meet all of the following conditions,
namely:(1) Their primary duty consists of the management of the
establishment in which they are employed or of a department or
subdivision thereof:(2) They customarily and regularly direct the
work of two or more employees therein:(3) They have the authority
to hire or fire other employees of lower rank; or their suggestions
and recommendations as to the hiring and firing and as to the
promotion or any other change of status of other employees are
given particular weight.(c) Officers or members of a managerial
staff if they perform the following duties and responsibilities:(1)
The primary duty consists of the performance of work directly
related to management policies of their employer;(2) Customarily
and regularly exercise discretion and independent judgment;(3) (i)
Regularly and directly assist a proprietor or a managerial employee
whose primary duty consists of the management of the establishment
in which he is employed or subdivision thereof; or (ii) execute
under general supervision work along specialized or technical lines
requiring special training, experience, or knowledge; or (iii)
execute under general supervision special assignments and tasks;
and(4) Who do not devote more 20 percent of their hours worked in a
work-week to activities which are not directly and closely related
to the performance of the work described in paragraphs (1), (2),
and above."It is the submission of petitioner that while the
members of respondent union, as supervisors, may not be occupying
managerial positions, they are clearly officers or members of the
managerial staff because they meet all the conditions prescribed by
law and, hence, they are not entitled to overtime, rest day and
supervisory employees under Article 212 (m) should be made to apply
only to the provisions on Labor Relations, while the right of said
employees to the questioned benefits should be considered in the
light of the meaning of a managerial employee and of the officers
or members of the managerial staff, as contemplated under Article
82 of the Code and Section 2, Rule I Book III of the implementing
rules. In other words, for purposes of forming and joining unions,
certification elections, collective bargaining, and so forth, the
union members are supervisory employees. In terms of working
conditions and rest periods and entitlement to the questioned
benefits, however, they are officers or members of the managerial
staff, hence they are not entitled thereto.While the Constitution
is committed to the policy of social justice and the protection of
the working class, it should not be supposed that every labor
dispute will be automatically decided in favor of labor. Management
also has its own rights which, as such, are entitled to respect and
enforcement in the interest of simple fair play. Out of its concern
for those with less privileges in life, this Court has inclined
more often than not toward the worker and upheld his cause in his
conflicts with the employer. Such favoritism, however, has not
blinded us to the rule that justice is in every case for the
deserving, to be dispensed in the light of the established facts
and the applicable law and doctrine. 5This is one such case where
we are inclined to tip the scales of justice in favor of the
employer.The question whether a given employee is exempt from the
benefits of the law is a factual one dependent on the circumstances
of the particular case, In determining whether an employee is
within the terms of the statutes, the criterion is the character of
the work performed, rather than the title of the employee's
position. 6Consequently, while generally this Court is not supposed
to review the factual findings of respondent commission,
substantial justice and the peculiar circumstances obtaining herein
mandate a deviation from the rule.A cursory perusal of the Job
Value Contribution Statements 7 of the union members will readily
show that these supervisory employees are under the direct
supervision of their respective department superintendents and that
generally they assist the latter in planning, organizing, staffing,
directing, controlling communicating and in making decisions in
attaining the company's set goals and objectives. These supervisory
employees are likewise responsible for the effective and efficient
operation of their respective departments. More specifically, their
duties and functions include, among others, the following
operations whereby the employee:1) assists the department
superintendent in the following:a) planning of systems and
procedures relative to department activities;b) organizing and
scheduling of work activities of the department, which includes
employee shifting scheduled and manning complement;c) decision
making by providing relevant information data and other inputs;d)
attaining the company's set goals and objectives by giving his full
support;e) selecting the appropriate man to handle the job in the
department; andf) preparing annual departmental budget;2) observes,
follows and implements company policies at all times and recommends
disciplinary action on erring subordinates;3) trains and guides
subordinates on how to assume responsibilities and become more
productive;4) conducts semi-annual performance evaluation of his
subordinates and recommends necessary action for their
development/advancement;5) represents the superintendent or the
department when appointed and authorized by the former;6)
coordinates and communicates with other inter and intra department
supervisors when necessary;7) recommends disciplinary
actions/promotions;8) recommends measures to improve work methods,
equipment performance, quality of service and working conditions;9)
sees to it that safety rules and regulations and procedure and are
implemented and followed by all NASUREFCO employees, recommends
revisions or modifications to said rules when deemed necessary, and
initiates and prepares reports for any observed abnormality within
the refinery;10) supervises the activities of all personnel under
him and goes to it that instructions to subordinates are properly
implemented; and11) performs other related tasks as may be assigned
by his immediate superior.From the foregoing, it is apparent that
the members of respondent union discharge duties and
responsibilities which ineluctably qualify them as officers or
members of the managerial staff, as defined in Section 2, Rule I
Book III of the aforestated Rules to Implement the Labor Code,
viz.: (1) their primary duty consists of the performance of work
directly related to management policies of their employer; (2) they
customarily and regularly exercise discretion and independent
judgment; (3) they regularly and directly assist the managerial
employee whose primary duty consist of the management of a
department of the establishment in which they are employed (4) they
execute, under general supervision, work along specialized or
technical lines requiring special training, experience, or
knowledge; (5) they execute, under general supervision, special
assignments and tasks; and (6) they do not devote more than 20% of
their hours worked in a work-week to activities which are not
directly and clearly related to the performance of their work
hereinbefore described.Under the facts obtaining in this case, we
are constrained to agree with petitioner that the union members
should be considered as officers and members of the managerial
staff and are, therefore, exempt from the coverage of Article 82.
Perforce, they are not entitled to overtime, rest day and
holiday.The distinction made by respondent NLRC on the basis of
whether or not the union members are managerial employees, to
determine the latter's entitlement to the questioned benefits, is
misplaced and inappropriate. It is admitted that these union
members are supervisory employees and this is one instance where
the nomenclatures or titles of their jobs conform with the nature
of their functions. Hence, to distinguish them from a managerial
employee, as defined either under Articles 82 or 212 (m) of the
Labor Code, is puerile and in efficacious. The controversy actually
involved here seeks a determination of whether or not these
supervisory employees ought to be considered as officers or members
of the managerial staff. The distinction, therefore, should have
been made along that line and its corresponding conceptual
criteria.II. We likewise no not subscribe to the finding of the
labor arbiter that the payment of the questioned benefits to the
union members has ripened into a contractual obligation.A. Prior to
the JE Program, the union members, while being supervisors,
received benefits similar to the rank-and-file employees such as
overtime, rest day and holiday pay, simply because they were
treated in the same manner as rank-and-file employees, and their
basic pay was nearly on the same level as those of the latter,
aside from the fact that their specific functions and duties then
as supervisors had not been properly defined and delineated from
those of the rank-and-file. Such fact is apparent from the
clarification made by petitioner in its motion for reconsideration
8 filed with respondent commission in NLRC Case No. CA No.
I-000058, dated August 16, 1991, wherein, it lucidly
explained:"But, complainants no longer occupy the same positions
they held before the JE Program. Those positions formerly
classified as 'supervisory' and found after the JE Program to be
rank-and-file were classified correctly and continue to receive
overtime, holiday and restday pay. As to them, the practice
subsists."However, those whose duties confirmed them to be
supervisory, were re-evaluated, their duties re-defined and in most
cases their organizational positions re-designated to confirm their
superior rank and duties. Thus, after the JE program, complainants
cannot be said to occupy the same positions." 9It bears mention
that this positional submission was never refuted nor controverted
by respondent union in any of its pleadings filed before herein
public respondent or with this Court. Hence, it can be safely
concluded therefrom that the members of respondent union were paid
the questioned benefits for the reason that, at that time, they
were rightfully entitled thereto. Prior to the JE Program, they
could not be categorically classified as members or officers of the
managerial staff considering that they were then treated merely on
the same level as rank-and-file. Consequently, the payment thereof
could not be construed as constitutive of voluntary employer
practice, which cannot be now be unilaterally withdrawn by
petitioner. To be considered as such, it should have been practiced
over a long period of time, and must be shown to have been
consistent and deliberate. 10The test or rationale of this rule on
long practice requires an indubitable showing that the employer
agreed to continue giving the benefits knowingly fully well that
said employees are not covered by the law requiring payment
thereof. 11 In the case at bar, respondent union failed to
sufficiently establish that petitioner has been motivated or is
wont to give these benefits out of pure generosity.B. It remains
undisputed that the implementation of the JE Program, the members
of private respondent union were re-classified under levels S-5 S-8
which were considered under the program as managerial staff
purposes of compensation and benefits, that they occupied
re-evaluated positions, and that their basic pay was increased by
an average of 50% of their basic salary prior to the JE Program. In
other words, after the JE Program there was an ascent in position,
rank and salary. This in essence is a promotion which is defined as
the advancement from one position to another with an increase in
duties and responsibilities as authorized by law, and usually
accompanied by an increase in salary. 12Quintessentially, with the
promotion of the union members, they are no longer entitled to the
benefits which attach and pertain exclusively to their positions.
Entitlement to the benefits provided for by law requires prior
compliance with the conditions set forth therein. With the
promotion of the members of respondent union, they occupied
positions which no longer met the requirements imposed by law.
Their assumption of these positions removed them from the coverage
of the law, ergo, their exemption therefrom.As correctly pointed
out by petitioner, if the union members really wanted to continue
receiving the benefits which attach to their former positions,
there was nothing to prevent them from refusing to accept their
promotions and their corresponding benefits. As the sating goes by,
they cannot have their cake and eat it too or, as petitioner
suggests, they could not, as a simple matter of law and fairness,
get the best of both worlds at the expense of NASUREFCO.Promotion
of its employees is one of the jurisprudentially-recognized
exclusive prerogatives of management, provided it is done in good
faith. In the case at bar, private respondent union has miserably
failed to convince this Court that the petitioner acted
implementing the JE Program. There is no showing that the JE
Program was intended to circumvent the law and deprive the members
of respondent union of the benefits they used to receive.Not so
long ago, on this particular score, we had the occasion to hold
that:". . . it is the prerogative of the management to regulate,
according to its discretion and judgment, all aspects of
employment. This flows from the established rule that labor law
does not authorize the substitution of the judgment of the employer
in the conduct of its business. Such management prerogative may be
availed of without fear of any liability so long as it is exercised
in good faith for the advancement of the employer's interest and
not for the purpose of defeating on circumventing the rights of
employees under special laws or valid agreement and are not
exercised in a malicious, harsh, oppressive, vindictive or wanton
manner or out of malice or spite." 13WHEREFORE, the impugned
decision and resolution of respondent National Labor Relations
Commission promulgated on July 19, 1991 and August 30, 1991,
respectively, are hereby ANNULLED and SET ASIDE for having been
rendered and adopted with grave abuse of discretion, and the basic
complaint of private respondent union is DISMISSED.
G.R. No. 94951 April 22, 1991APEX MINING COMPANY,
INC.,petitioner,vs.NATIONAL LABOR RELATIONS COMMISSION and
SINCLITICA CANDIDO,respondents.Bernabe B. Alabastro for
petitioner.Angel Fernandez for private respondent.
GANCAYCO,J.:Is the househelper in the staff houses of an
industrial company a domestic helper or a regular employee of the
said firm? This is the novel issue raised in this petition.Private
respondent Sinclita Candida was employed by petitioner Apex Mining
Company, Inc. on May 18, 1973 to perform laundry services at its
staff house located at Masara, Maco, Davao del Norte. In the
beginning, she was paid on a piece rate basis. However, on January
17, 1982, she was paid on a monthly basis at P250.00 a month which
was ultimately increased to P575.00 a month.On December 18, 1987,
while she was attending to her assigned task and she was hanging
her laundry, she accidentally slipped and hit her back on a stone.
She reported the accident to her immediate supervisor Mila de la
Rosa and to the personnel officer, Florendo D. Asirit. As a result
of the accident she was not able to continue with her work. She was
permitted to go on leave for medication. De la Rosa offered her the
amount of P 2,000.00 which was eventually increased to P5,000.00 to
persuade her to quit her job, but she refused the offer and
preferred to return to work. Petitioner did not allow her to return
to work and dismissed her on February 4, 1988.On March 11, 1988,
private respondent filed a request for assistance with the
Department of Labor and Employment. After the parties submitted
their position papers as required by the labor arbiter assigned to
the case on August 24, 1988 the latter rendered a decision, the
dispositive part of which reads as follows:WHEREFORE, Conformably
With The Foregoing, judgment is hereby rendered ordering the
respondent, Apex Mining Company, Inc., Masara, Davao del Norte, to
pay the complainant, to wit:1 SalaryDifferential P16,289.202.
Emergency LivingAllowance 12,430.003. 13th Month PayDifferential
1,322.324. Separation Pay(One-month forevery year ofservice
[1973-19881) 25,119.30or in the total of FIFTY FIVE THOUSAND ONE
HUNDRED SIXTY ONE PESOS AND 42/100 (P55,161.42).SO ORDERED.1Not
satisfied therewith, petitioner appealed to the public respondent
National Labor Relations Commission (NLRC), wherein in due course a
decision was rendered by the Fifth Division thereof on July 20,
1989 dismissing the appeal for lack of merit and affirming the
appealed decision. A motion for reconsideration thereof was denied
in a resolution of the NLRC dated June 29, 1990.Hence, the herein
petition for review bycertiorari, which appopriately should be a
special civil action forcertiorari, and which in the interest of
justice, is hereby treated as such.2The main thrust of the petition
is that private respondent should be treated as a mere househelper
or domestic servant and not as a regular employee of petitioner.The
petition is devoid of merit.Under Rule XIII, Section l(b), Book 3
of the Labor Code, as amended, the terms "househelper" or "domestic
servant" are defined as follows:The term "househelper" as used
herein is synonymous to the term "domestic servant" and shall refer
to any person, whether male or female, who renders services in and
about the employer's home and which services are usually necessary
or desirable for the maintenance and enjoyment thereof, and
ministers exclusively to the personal comfort and enjoyment of the
employer's family.3The foregoing definition clearly contemplates
such househelper or domestic servant who is employed in the
employer's home to minister exclusively to the personal comfort and
enjoyment of the employer's family. Such definition covers family
drivers, domestic servants, laundry women, yayas, gardeners,
houseboys and other similar househelps.The definition cannot be
interpreted to include househelp or laundrywomen working in
staffhouses of a company, like petitioner who attends to the needs
of the company's guest and other persons availing of said
facilities. By the same token, it cannot be considered to extend to
then driver, houseboy, or gardener exclusively working in the
company, the staffhouses and its premises. They may not be
considered as within the meaning of a "househelper" or "domestic
servant" as above-defined by law.The criteria is the personal
comfort and enjoyment of the family of the employer in the home of
said employer. While it may be true that the nature of the work of
a househelper, domestic servant or laundrywoman in a home or in a
company staffhouse may be similar in nature, the difference in
their circumstances is that in the former instance they are
actually serving the family while in the latter case, whether it is
a corporation or a single proprietorship engaged in business or
industry or any other agricultural or similar pursuit, service is
being rendered in the staffhouses or within the premises of the
business of the employer. In such instance, they are employees of
the company or employer in the business concerned entitled to the
privileges of a regular employee.Petitioner contends that it is
only when the househelper or domestic servant is assigned to
certain aspects of the business of the employer that such
househelper or domestic servant may be considered as such as
employee. The Court finds no merit in making any such distinction.
The mere fact that the househelper or domestic servant is working
within the premises of the business of the employer and in relation
to or in connection with its business, as in its staffhouses for
its guest or even for its officers and employees, warrants the
conclusion that such househelper or domestic servant is and should
be considered as a regular employee of the employer and not as a
mere family househelper or domestic servant as contemplated in Rule
XIII, Section l(b), Book 3 of the Labor Code, as amended.Petitioner
denies having illegally dismissed private respondent and maintains
that respondent abandoned her work.1wphi1This argument
notwithstanding, there is enough evidence to show that because of
an accident which took place while private respondent was
performing her laundry services, she was not able to work and was
ultimately separated from the service. She is, therefore, entitled
to appropriate relief as a regular employee of petitioner. Inasmuch
as private respondent appears not to be interested in returning to
her work for valid reasons, the payment of separation pay to her is
in order.WHEREFORE, the petition is DISMISSED and the appealed
decision and resolution of public respondent NLRC are hereby
AFFIRMED. No pronouncement as to costs.SO ORDERED.
G.R. No. L-18353 July 31, 1963SAN MIGUEL BREWERY,
INC.,petitioner,vs.DEMOCRATIC LABOR ORGANIZATION, ET
AL.,respondents.Paredes, Poblador, Cruz and Nazareno for
petitioner.Delfin N. Mercader for respondents.BAUTISTA ANGELO,J.:On
January 27, 1955, the Democratic Labor Association filed complaint
against the San Miguel Brewery, Inc. embodying 12 demands for the
betterment of the conditions of employment of its members. The
company filed its answer to the complaint specifically denying its
material averments and answering the demands point by point. The
company asked for the dismissal of the complaint.At the hearing
held sometime in September, 1955, the union manifested its desire
to confine its claim to its demands for overtime, night-shift
differential pay, and attorney's fees, although it was allowed to
present evidence on service rendered during Sundays and holidays,
or on its claim for additional separation pay and sick and vacation
leave compensation.1wph1.tAfter the case had been submitted for
decision, Presiding Judge Jose S. Bautista, who was commissioned to
receive the evidence, rendered decision expressing his disposition
with regard to the points embodied in the complaint on which
evidence was presented. Specifically, the disposition insofar as
those points covered by this petition for review are concerned, is
as follows:1. With regard to overtime compensation, Judge Bautista
held that the provisions of the Eight-Hour Labor Law apply to the
employees concerned for those working in the field or engaged in
the sale of the company's products outside its premises and
consequently they should be paid the extra compensation accorded
them by said law in addition to the monthly salary and commission
earned by them, regardless of the meal allowance given to employees
who work up to late at night.2. As to employees who work at night,
Judge Bautista decreed that they be paid their corresponding salary
differentials for work done at night prior to January 1, 1949 with
the present qualification: 25% on the basis of their salary to
those who work from 6:00 to 12:00 p.m., and 75% to those who work
from 12:01 to 6:00 in the morning.3. With regard to work done
during Sundays and holidays, Judge Bautista also decreed that the
employees concerned be paid an additional compensation of 25% as
provided for in Commonwealth Act No. 444 even if they had been paid
a compensation on monthly salary basis.The demands for the
application of the Minimum Wage Law to workers paid on "pakiao"
basis, payment of accumulated vacation and sick leave and
attorney's fees, as well as the award of additional separation pay,
were either dismissed, denied, or set aside.Its motion for
reconsideration having been denied by the industrial courten banc,
which affirmed the decision of the courta quowith few exceptions,
the San Miguel Brewery, Inc. interposed the present petition for
review.Anent the finding of the courta quo, as affirmed by the
Court of Industrial Relations, to the effect that outside or field
sales personnel are entitled to the benefits of the Eight-Hour
Labor Law, the pertinent facts are as follows:After the morning
roll call, the employees leave the plant of the company to go on
their respective sales routes either at 7:00 a.m. for soft drinks
trucks, or 8:00 a.m. for beer trucks. They do not have a daily time
record. The company never require them to start their work as
outside sales personnel earlier than the above schedule.The sales
routes are so planned that they can be completed within 8 hours at
most, or that the employees could make their sales on their routes
within such number of hours variable in the sense that sometimes
they can be completed in less than 8 hours, sometimes 6 to 7 hours,
or more. The moment these outside or field employees leave the
plant and while in their sales routes they are on their own, and
often times when the sales are completed, or when making short trip
deliveries only, they go back to the plant, load again, and make
another round of sales. These employees receive monthly salaries
and sales commissions in variable amounts. The amount of
compensation they receive is uncertain depending upon their
individual efforts or industry. Besides the monthly salary, they
are paid sales commission that range from P30, P40, sometimes P60,
P70, to sometimes P90, P100 and P109 a month, at the rate of P0.01
to P0.01- per case.It is contended that since the employees
concerned are paid a commission on the sales they make outside of
the required 8 hours besides the fixed salary that is paid to them,
the Court of Industrial Relations erred in ordering that they be
paid an overtime compensation as required by the Eight-Hour Labor
Law for the reason that the commission they are paid already takes
the place of such overtime compensation. Indeed, it is claimed,
overtime compensation is an additional pay for work or services
rendered in excess of 8 hours a day by an employee, and if the
employee is already given extra compensation for labor performed in
excess of 8 hours a day, he is not covered by the law. His
situation, the company contends, can be likened to an employee who
is paid on piece-work, "pakiao", or commission basis, which is
expressly excluded from the operation of the Eight-Hour Labor
Law.1We are in accord with this view, for in our opinion the
Eight-Hour Labor Law only has application where an employee or
laborer is paid on a monthly or daily basis, or is paid a monthly
or daily compensation, in which case, if he is made to work beyond
the requisite period of 8 hours, he should be paid the additional
compensation prescribed by law. This law has no application when
the employee or laborer is paid on a piece-work, "pakiao", or
commission basis, regardless of the time employed. The philosophy
behind this exemption is that his earnings in the form of
commission based on the gross receipts of the day. His
participation depends upon his industry so that the more hours he
employs in the work the greater are his gross returns and the
higher his commission. This philosophy is better explained in Jewel
Tea Co. v. Williams, C.C.A. Okla., 118 F. 2d 202, as follows:The
reasons for excluding an outside salesman are fairly apparent. Such
salesman, to a greater extent, works individually. There are no
restrictions respecting the time he shall work and he can earn as
much or as little, within the range of his ability, as his ambition
dictates. In lieu of overtime he ordinarily receives commissions as
extra compensation. He works away from his employer's place of
business, is not subject to the personal supervision of his
employer, and his employer has no way of knowing the number of
hours he works per day.True it is that the employees concerned are
paid a fixed salary for their month of service, such as Benjamin
Sevilla, a salesman, P215; Mariano Ruedas, a truck driver, P155;
Alberto Alpaza and Alejandro Empleo, truck helpers, P125 each, and
sometimes they work in excess of the required 8-hour period of
work, but for their extra work they are paid a commission which is
in lieu of the extra compensation to which they are entitled. The
record shows that these employees during the period of their
employment were paid sales commission ranging from P30, P40,
sometimes P60, P70, to sometimes P90, P100 and P109 a month
depending on the volume of their sales and their rate of commission
per case. And so, insofar is the extra work they perform, they can
be considered as employees paid on piece work, "pakiao", or
commission basis. The Department of Labor, called upon to
implement, the Eight-Hour Labor Law, is of this opinion when on
December 9, 1957 it made the ruling on a query submitted to it,
thru the Director of the Bureau of Labor Standards, to the effect
that field sales personnel receiving regular monthly salaries, plus
commission, are not subject to the Eight-Hour Labor Law. Thus, on
this point, said official stated:. . . Moreover, when a fieldman
receives a regular monthly salary plus commission on percentage
basis of his sales, it is also the established policy of the Office
to consider his commission as payment for the extra time he renders
in excess of eight hours, thereby classifying him as if he were on
piecework basis, and therefore, technically speaking, he is not
subject to the Eight-Hour Labor Law.We are, therefore, of the
opinion that the industrial court erred in holding that the
Eight-Hour Labor Law applies to the employees composing the outside
service force and in ordering that they be paid the corresponding
additional compensation.With regard to the claim for night salary
differentials, the industrial court found that claimants Magno
Johnson and Jose Sanchez worked with the respondent company during
the period specified by them in their testimony and that watchmen
Zoilo Illiga, Inocentes Prescillas and Daniel Cayuca rendered night
duties once every three weeks continuously during the period of the
employment and that they were never given any additional
compensation aside from their monthly regular salaries. The court
found that the company started paying night differentials only in
January, 1949 but never before that time. And so it ordered that
the employees concerned be paid 25% additional compensation for
those who worked from 6:00 to 12:00 p.m. and 75% additional
compensation for those who worked from 12:01 to 6: 00 in the
morning. It is now contended that this ruling is erroneous because
an award for night shift differentials cannot be given retroactive
effect but can only be entertained from the date of demand which
was on January 27, 1953, citing in support thereof our ruling in
Earnshaws Docks & Honolulu Iron Works v. The Court of
Industrial Relations, et al., L-8896, January 25, 1957.This ruling,
however, has no application here for it appears that before the
filing of the petition concerning this claim a similar one had
already been filed long ago which had been the subject of
negotiations between the union and the company which culminated in
a strike in 1952. Unfortunately, however, the strike fizzled out
and the strikers were ordered to return to work with the
understanding that the claim for night salary differentials should
be settled in court. It is perhaps for this reason that the courta
quogranted this claim in spite of the objection of the company to
the contrary.The remaining point to be determined refers to the
claim for pay for Sundays and holidays for service performed by
some claimants who were watchmen or security guards. It is
contended that these employees are not entitled to extra pay for
work done during these days because they are paid on a monthly
basis and are given one day off which may take the place of the
work they may perform either on Sunday or any holiday.We disagree
with this claim because it runs counter to law. Section 4 of
Commonwealth Act No. 444 expressly provides that no person, firm or
corporation may compel an employee or laborer to work during
Sundays and legal holidays unless he is paid an additional sum of
25% of his regular compensation. Thisprovisois mandatory,
regardless of the nature of compensation. The only exception is
with regard to public utilities who perform some public
service.WHEREFORE, the decision of the industrial court is hereby
modified as follows: the award with regard to extra work performed
by those employed in the outside or field sales force is set aside.
The rest of the decision insofar as work performed on Sundays and
holidays covering watchmen and security guards, as well as the
award for night salary differentials, is affirmed. No costs.
G.R. No. 96078 January 9, 1992HILARIO
RADA,petitioner,vs.NATIONAL LABOR RELATIONS COMMISSION (Second
Division) and PHILNOR CONSULTANTS AND PLANNERS,
INC.,respondents.Cabellero, Calub, Aumentado & Associates Law
Offices for petitioner.REGALADO,J.:In this special civil action
forcertiorari, petitioner Rada seeks to annul the decision of
respondent National Labor Relations Commission (NLRC), dated
November 19, 1990, reversing the decision of the labor arbiter
which ordered the reinstatement of petitioner with backwages and
awarded him overtime pay.1The facts, as stated in the Comment of
private respondent Philnor Consultants and Planners, Inc.
(Philnor), are as follows:Petitioner's initial employment with this
Respondent was under a "Contract of Employment for a Definite
Period" dated July 7, 1977, copy of which is hereto attached and
made an integral part hereof asAnnex Awhereby Petitioner was hired
as "Driver" for the construction supervision phase of the Manila
North Expressway Extension, Second Stage (hereinafter referred to
as MNEE Stage 2) for a term of "about 24 months effective July 1,
1977.xxx xxx xxxHighlighting the nature of Petitioner's
employment,Annex Aspecifically provides as follows:It is hereby
understood that the Employer does not have a continuing need for
the services of the Employee beyond the termination date of this
contract and that the Employee's services shall automatically, and
without notice, terminate upon the completion of the above
specified phase of the project; and that it is further understood
that the engagement of his/her services is coterminus with the same
and not with the whole project or other phases thereof wherein
other employees of similar position as he/she have been hired.
(Par. 7, emphasis supplied)Petitioner's first contract of
employment expired on June 30, 1979. Meanwhile, the main project,
MNEE Stage 2, was not finished on account of various constraints,
not the least of which was inadequate funding, and the same was
extended and remained in progress beyond the original period of 2.3
years. Fortunately for the Petitioner, at the time the first
contract of employment expired, Respondent was in need of Driver
for the extended project. Since Petitioner had the necessary
experience and his performance under the first contract of
employment was found satisfactory, the position of Driver was
offered to Petitioner, which he accepted. Hence a second Contract
of Employment for a Definite Period of 10 months, that is, from
July 1, 1979 to April 30, 1980 was executed between Petitioner and
Respondent on July 7, 1979. . . .In March 1980 some of the areas or
phases of the project were completed, but the bulk of the project
was yet to be finished. By that time some of those project
employees whose contracts of employment expired or were about to
expire because of the completion of portions of the project were
offered another employment in the remaining portion of the project.
Petitioner was among those whose contract was about to expire, and
since his service performance was satisfactory, respondent renewed
his contract of employment in April 1980, after Petitioner agreed
to the offer. Accordingly, a third contract of employment for a
definite period was executed by and between the Petitioner and the
Respondent whereby the Petitioner was again employed as Driver for
19 months, from May 1, 1980 to November 30, 1981, . . .This third
contract of employment was subsequently extended for a number of
times, the last extension being for a period of 3 months, that is,
from October 1, 1985 to December 31, 1985, . . .The last extension,
from October 1, 1985 to December 31, 1985 (Annex E) covered by an
"Amendment to the Contract of Employment with a Definite Period,"
was not extended any further because Petitioner had no more work to
do in the project. This last extension was confirmed by a notice on
November 28, 1985 duly acknowledged by the Petitioner the very next
day, . . .Sometime in the 2nd week of December 1985, Petitioner
applied for "Personnel Clearance" with Respondent dated December 9,
1985 and acknowledged having received the amount of P3,796.20
representing conversion to cash of unused leave credits and
financial assistance. Petitioner also released Respondent from all
obligations and/or claims, etc. in a "Release, Waiver and
Quitclaim" . . .2Culled from the records, it appears that on May
20, 1987, petitioner filed before the NLRC, National Capital
Region, Department of Labor and Employment, a Complaint for
non-payment of separation pay and overtime pay. On June 3, 1987,
Philnor filed its Position Paper alleging,inter alia, that
petitioner was not illegally terminated since the project for which
he was hired was completed; that he was hired under three distinct
contracts of employment, each of which was for a definite period,
all within the estimated period of MNEE Stage 2 Project, covering
different phases or areas of the said project; that his work was
strictly confined to the MNEE Stage 2 Project and that he was never
assigned to any other project of Philnor; that he did not render
overtime services and that there was no demand or claim for him for
such overtime pay; that he signed a "Release, Waiver and Quitclaim"
releasing Philnor from all obligations and claims; and that
Philnor's business is to provide engineering consultancy services,
including supervision of construction services, such that it hires
employees according to the requirements of the project manning
schedule of a particular contract.3On July 2, 1987, petitioner
filed an Amended Complaint alleging that he was illegally dismissed
and that he was not paid overtime pay although he was made to
render three hours overtime work form Monday to Saturday for a
period of three years.On July 7, 1987, petitioner filed his
Position Paper claiming that he was illegally dismissed since he
was a regular employee entitled to security of tenure; that he was
not a project employee since Philnor is not engaged in the
construction business as to be covered by Policy Instructions No.
20; that the contract of employment for a definite period executed
between him and Philnor is against public policy and a clear
circumvention of the law designed merely to evade any benefits or
liabilities under the statute; that his position as driver was
essential, necessary and desirable to the conduct of the business
of Philnor; that he rendered overtime work until 6:00 p.m. daily
except Sundays and holidays and, therefore, he was entitled to
overtime pay.4In his Reply to Respondent's Position Paper,
petitioner claimed that he was a regular employee pursuant to
Article 278(c) of the Labor Code and, thus, he cannot be terminated
except for a just cause under Article 280 of the Code; and that the
public respondent's ruling inQuiwa vs.Philnor Consultants and
Planners, Inc.5is not applicable to his case since he was an
administrative employee working as a company driver, which position
still exists and is essential to the conduct of the business of
Philnor even after the completion of his contract of
employment.6Petitioner likewise avers that the contract of
employment for a definite period entered into between him and
Philnor was a ploy to defeat the intent of Article 280 of the Labor
Code.On July 28, 1987, Philnor filed its Respondent's Supplemental
Position Paper, alleging therein that petitioner was not a company
driver since his job was to drive the employees hired to work at
the MNEE Stage 2 Project to and from the filed office at Sto.
Domingo Interchange, Pampanga; that the office hours observed in
the project were from 7:00 a.m. to 4:00 p.m. Mondays through
Saturdays; that Philnor adopted the policy of allowing certain
employees, not necessarily the project driver, to bring home
project vehicles to afford fast and free transportation to and from
the project field office considering the distance between the
project site and the employees' residence, to avoid project delays
and inefficiency due to employee tardiness caused by transportation
problem; that petitioner was allowed to use a project vehicle which
he used to pick up and drop off some ten employees along Epifanio
de los Santos Avenue (EDSA), on his way home to Marikina, Metro
Manila; that when he was absent or on leave, another employee
living in Metro Manila used the same vehicle in transporting the
same employees; that the time used by petitioner to and from his
residence to the project site from 5:30 a.m. to 7:00 a.m. and from
4:00 p.m. to 6:00 p.m., or about three hours daily, was not
overtime work as he was merely enjoying the benefit and convenience
of free transportation provided by Philnor, otherwise without such
vehicle he would have used at least four hours by using public
transportation and spent P12.00 daily fare; that in the case
ofQuiwa vs.Philnor Consultants and Planners, Inc., supra, the NLRC
upheld Philnor's position that Quiwa was a project employee and he
was not entitled to termination pay under Policy Instructions No.
20 since his employment was coterminous with the completion of the
project.On August 25, 1987, Philnor filed its Respondent's
Reply/Comments to Complainant's Rejoinder and Reply, submitting
therewith two letters dated January 5, 1985 and February 6, 1985,
signed by MNEE Stage 2 Project employees, including herein
petitioner, where they asked what termination benefits could be
given to them as the MNEE Stage 2 Project was nearing completion,
and Philnor's letter-reply dated February 22, 1985 informing them
that they are not entitled to termination benefits as they are
contractual/project employees.On August 31, 1989, Labor Arbiter
Dominador M. Cruz rendered a decision7with the following
dispositive portion:WHEREFORE, in view of all the foregoing
considerations, judgment is hereby rendered:(1) Ordering the
respondent company to reinstate the complainant to his former
position without loss of seniority rights and other privileges with
full backwages from the time of his dismissal to his actual
reinstatement;(2) Directing the respondent company to pay the
complainant overtime pay for the three excess hours of work
performed during working days from January 1983 to December 1985;
and(3) Dismissing all other claims for lack of merit.SO
ORDERED.Acting on Philnor's appeal, the NLRC rendered its assailed
decision dated November 19, 1990, setting aside the labor arbiter's
aforequoted decision and dismissing petitioner's complaint.Hence
this petition wherein petitioner charges respondent NLRC with grave
abuse of discretion amounting to lack of jurisdiction for the
following reasons:1. The decision of the labor arbiter, dated
August 31, 1989, has already become final and executory;2. The case
ofQuiwa vs.Philnor Consultants and Planners, Inc. is not binding
nor is it applicable to this case;3. The petitioner is a regular
employee with eight years and five months of continuous services
for his employer, private respondent Philnor;4. The claims for
overtime services, reinstatement and full backwages are valid and
meritorious and should have been sustained; and5. The decision of
the labor arbiter should be reinstated as it is more in accord with
the facts, the law and evidence.The petition is devoid of merit.1.
Petitioner questions the jurisdiction of respondent NLRC in taking
cognizance of the appeal filed by Philnor in spite of the latter's
failure to file a supersedeas bond within ten days from receipt of
the labor arbiter's decision, by reason of which the appeal should
be deemed to have been filed out of time. It will be noted,
however, that Philnor was able to file a bond although it was made
beyond the 10-day reglementary period.While it is true that the
payment of the supersedeas bond is an essential requirement in the
perfection of an appeal, however, where the fee had been paid
although payment was delayed, the broader interests of justice and
the desired objective of resolving controversies on the merits
demands that the appeal be given due course. Besides, it was within
the inherent power of the NLRC to have allowed late payment of the
bond, considering that the aforesaid decision of the labor arbiter
was received by private respondent on October 3, 1989 and its
appeal was duly filed on October 13, 1989. However, said decision
did not state the amount awarded as backwages and overtime pay,
hence the amount of the supersedeas bond could not be determined.
It was only in the order of the NLRC of February 16, 1990 that the
amount of the supersedeas bond was specified and which bond, after
an extension granted by the NLRC, was timely filed by private
respondent.Moreover, as provided by Article 221 of the Labor Code,
"in any proceeding before the Commission or any of the Labor
Arbiters, the rules of evidence prevailing in Courts of law or
equity shall not be controlling and it is the spirit and intention
of this Code that the Commission and its members and the Labor
Arbiters shall use every and all reasonable means to ascertain the
facts in each case speedily and objectively without regard to
technicalities of law or procedure, all in the interest of due
process.8Finally, the issue of timeliness of the appeal being an
entirely new and unpleaded matter in the proceedings below it may
not now be raised for the first time before this Court.92.
Petitioner postulates that as a regular employee, he is entitled to
security of tenure, hence he cannot be terminated without cause.
Private respondent Philnor believes otherwise and asserts that
petitioner is merely a project employee who was terminated upon the
completion of the project for which he was employed.In holding that
petitioner is a regular employee, the labor arbiter found that:. .
. There is no question that the complainant was employed as driver
in the respondent company continuously from July 1, 1977 to
December 31, 1985 under various contracts of employment. Similarly,
there is no dispute that respondent Philnor Consultant &
Planner, Inc., as its business name connotes, has been engaged in
providing to its client(e)le engineering consultancy services. The
record shows that while the different labor contracts executed by
the parties stipulated definite periods of engaging the services of
the complainant, yet the latter was suffered to continue performing
his job upon the expiration of one contract and the renewal of
another. Under these circumstances, the complaint has obtained the
status of regular employee, it appearing that he has worked without
fail for almost eight years, a fraction of six months considered as
one whole year, and that his assigned task as driver was necessary
and desirable in the usual trade/business of the respondent
employer. Assuming to be true, as spelled out in the employment
contract, that the Employer has no "continuing need for the
services of the Employe(e) beyond the termination date of this
contract and that the Employee's services shall automatically, and
without notice, terminate upon completion of the above specified
phase of the project," still we cannot see our way clear why the
complainant was hired and his services engaged contract after
contract straight from 1977 to 1985 which, to our considered view,
lends credence to the contention that he worked as regular driver
ferrying early in the morning office personnel to the company main
office in Pampanga and bringing back late in the afternoon to
Manila, and driving company executives for inspection of
construction workers to the jobsites. All told, we believe that the
complainant, under the environmental facts obtaining in the case at
bar, is a regular employee, the provisions of written agreement to
thecontrary notwithstanding and regardless of the oral
understanding of the parties . . .10On the other hand, respondent
NLRC declared that, as between the uncorroborated and unsupported
assertions of petitioners and those of private respondent which are
supported by documents, greater credence should be given the
latter. It further held that:Complainant was hired in a specific
project or undertaking as driver. While such project was still
on-going he was hired several times with his employment period
fixed every time his contract was renewed. At the completion of the
specific project or undertaking his employment contract was not
renewed.We reiterate our ruling in the case of(Quiwa) vs.Philnor
Consultants and Planners, Inc.,NLRC RAB III 5-1738-84, it is being
applicable in this case,viz.:. . . While it is true that the
activities performed by him were necessary or desirable in the
usual business or trade of the respondent as consultants, planners,
contractor and while it is also true that the duration of his
employment was for a period of about seven years, these
circumstances did not make him aregular employee in contemplation
of Article 281 of (the) Labor Code. . . .11Our ruling inSandoval
Shipyards, Inc.vs.National Labor Relations Commission, et al.12is
applicable to the case at bar. Thus:We hold that private
respondents were project employees whose work was coterminous with
the project or which they were hired. Project employees, as
distinguished from regular or non-project employees, are mentioned
in section 281 of the Labor Code as those "where the employment has
been fixed for a specific project or undertaking the completion or
termination of which has been determined at the time of the
engagement of the employee."Policy Instructions No. 20 of the
Secretary of Labor, which was issued to stabilize employer-employee
relations in the construction industry, provides:Project employees
are those employed in connection with a particular construction
project. Non-project (regular) employees are those employed by a
construction company without reference to any particular
project.Project employees are not entitled to termination pay if
they are terminated as a result of the completion of the project or
any phase thereof in which they are employed, regardless of the
number of projects in which they have been employed by a particular
construction company. Moreover, the company is not required to
obtain clearance from the Secretary of Labor in connection with
such termination.The petitioner cited three of its own cases
wherein the National Labor Relations Commission, Deputy Minister of
Labor and Employment Inciong and the Director of the National
Capital Region held that the layoff of its project employees was
lawful. Deputy Minister Inciong in TFU Case No. 1530, In Re
Sandoval Shipyards, Inc. Application for Clearance to Terminate
Employees, rendered the following ruling on February 26, 1979;We
feel that there is merit in the contention of the applicant
corporation. To our mind, the employment of the employees concerned
were fixed for a specific project or undertaking.For the nature of
the business the corporation is engaged into is one which will not
allow it to employ workers for an indefinite period.It is
significant to note that the corporation does not construct vessels
for sale or otherwise which will demand continuous productions of
ships and will need permanent or regular workers. It merely accepts
contracts for shipbuilding or for repair of vessels form third
parties and, only, on occasion when it has work contract of this
nature that it hires workers to do the job which, needless to say,
lasts only for less than a year or longer.The completion of their
work or project automatically terminates their employment, in which
case, the employer is, under the law, only obliged to render a
report on the termination of the employment. (139-140,Rolloof G.R.
No. 65689) (Emphasis supplied)InCartagenas, et al.vs.Romago
Electric Company, Inc., et al.,13we likewise held that:As an
electrical contractor, the private respondent depends for its
business on the contracts it is able to obtain from real estate
developers and builders of buildings. Since its work depends on the
availability of such contracts or "projects," necessarily the
duration of the employment's of this work force is not permanent
but co-terminus with the projects to which they are assigned and
from whose payrolls they are paid.It would be extremely burdensome
for their employer who, like them, depends on the availability of
projects, if it would have to carry them as permanent employees and
pay them wages even if there are no projects for them to work on.
(Emphasis supplied.)It must be stressed herein that although
petitioner worked with Philnor as a driver for eight years, the
fact that his services were rendered only for a particular project
which took that same period of time to complete categorizes him as
a project employee. Petitioner was employed for one specific
project.A non-project employee is different in that the employee is
hired for more than one project. A non-project employee,vis-a-visa
project employee, is best exemplified in the case ofFegurin, et
al.vs.National Labor Relations Commission, et al.14wherein four of
the petitioners had been working with the company for nine years,
one for eight years, another for six years, the shortest term being
three years. In holding that petitioners are regular employees,
this Court therein explained:Considering the nature of the work of
petitioners, that of carpenter, laborer or mason, their respective
jobs would actually be continuous and on-going. When a project to
which they are individually assigned is completed, they would be
assigned to the next project or a phase thereof. In other words,
they belonged to a "work pool" from which the company would draw
workers for assignment to other projects at its discretion. They
are, therefore, actually "non-project employees."From the
foregoing, it is clear that petitioner is a project employee
considering that he does not belong to a "work pool" from which the
company would draw workers for assignment to other projects at its
discretion. It is likewise apparent from the facts obtaining herein
that petitioner was utilized only for one particular project, the
MNEE Stage 2 Project of respondent company. Hence, the termination
of herein petitioner is valid by reason of the completion of the
project and the expiration of his employment contract.3. Anent the
claim for overtime compensation, we hold that petitioner is
entitled to the same. The fact that he picks up employees of
Philnor at certain specified points along EDSA in going to the
project site and drops them off at the same points on his way back
from the field office going home to Marikina, Metro Manila is not
merely incidental to petitioner's job as a driver. On the contrary,
said transportation arrangement had been adopted, not so much for
the convenience of the employees, but primarily for the benefit of
the employer, herein private respondent. This fact is inevitably
deducible from the Memorandum of respondent company:The herein
Respondent resorted to the above transport arrangement because from
its previous project construction supervision experiences,
Respondent found out that project delays and inefficiencies
resulted from employees' tardiness; and that the problem of
tardiness, in turn, was aggravated by transportation problems,
which varied in degrees in proportion to the distance between the
project site and the employees' residence. In view of this lesson
from experience, and as a practical, if expensive, solution to
employees' tardiness and its concomitant problems, Respondent
adopted the policy of allowing certain employees not necessarily
project drivers to bring home project vehicles, so that employees
could be afforded fast, convenient and free transportation to and
from the project field office. . . .15Private respondent does not
hesitate to admit that it is usually the project driver who is
tasked with picking up or dropping off his fellow employees. Proof
thereof is the undisputed fact that when petitioner is absent,
another driver is supposed to replace him and drive the vehicle and
likewise pick up and/or drop off the other employees at the
designated points on EDSA. If driving these employees to and from
the project site is not really part of petitioner's job, then there
would have been no need to find a replacement driver to fetch these
employees. But since the assigned task of fetching and delivering
employees is indispensable and consequently mandatory, then the
time required of and used by petitioner in going from his residence
to the field office and back, that is, from 5:30 a.m. to 7:00 a.m.
and from 4:00 p.m. to around 6:00 p.m., which the labor arbiter
rounded off as averaging three hours each working day, should be
paid as overtime work. Quintessentially, petitioner should be given
overtime pay for the three excess hours of work performed during
working days from January, 1983 to December, 1985.WHEREFORE,
subject to the modification regarding the award of overtime pay to
herein petitioner, the decision appealed from is AFFIRMED in all
other respects.SO ORDERED.
G.R. No. L-17068December 30, 1961NATIONAL SHIPYARDS AND STEEL
CORPORATION,petitioner,vs.COURT OF INDUSTRIAL RELATIONS and
DOMINADOR MALONDRAS,respondents.N. C. Virata for petitioner.Mariano
B. Tuason for respondent Court.Manuel P. Calanog for respondent
Dominador Malondras.REYES, J.B.L.,J.:Petition filed by the National
Shipyards and Steel Corporation (otherwise known as the NASSCO) to
review certain orders of the respondent Court of Industrial
Relations requiring it to pay its bargeman Dominador Malondras
overtime service of 16 hours a day for a period from January 1,
1954 to December 31, 1956, and from January 1, 1957 to April 30,
1957, inclusive.The petitioner NASSCO, a government-owned and
controlled corporation, is the owner of several barges and tugboats
used in the transportation of cargoes and personnel in connection
with its business of shipbuilding and repair. In order that its
bargeman could immediately be called to duty whenever their
services are needed, they are required to stay in their respective
barges, for which reason they are given living quarters therein as
well as subsistence allowance of P1.50 per day during the time they
are on board. However, upon prior authority of their superior
officers, they may leave their barges when said barges are idle.On
April 15, 1957, 39 crew members of petitioner's tugboat service,
including therein respondent Dominador Malondras, filed with the
Industrial Court a complaint for the payment of overtime
compensation (Case No. 1059-V). In the course of the proceeding,
the parties entered into a stipulation of facts wherein the NASSCO
recognized and admitted 4. That to meet the exigencies of the
service in the performance of the above work, petitioners have to
work when so required in excess of eight (8) hours a day and/or
during Sundays and legal holidays (actual overtime service is
subject to determination on the basis of the logbook of the
vessels, time sheets and other pertinent records of the
respondent).x x x x x x x x x6. The petitioners are paid by the
respondent their regular salaries and subsistence allowance,
without additional compensation for overtime work;Pursuant to the
above stipulation, the Industrial Court, on November 22, 1957,
issued an order directing the court examiner to compute the
overtime compensation due the claimants.On February 14, 1958, the
court examiner submitted his report covering the period from
January 1 to December 31, 1957. In said report, the examiner found
that the petitioners in Case No. 1058-V, including herein
respondent Dominador Malondras, rendered an average overtime
service of five (5) hours each day for the period aforementioned,
and upon approval of the report by the Court, all the claimants,
including Malondras, were paid their overtime compensation by the
NASSCO.Subsequently, on April 30, 1958, the court examiner
submitted his second partial report covering the period from
January 1, 1954 to December 31, 1956, again giving each crewman an
average of five (5) overtime hours each day. Respondent Malondras
was not, however, included in this report as his daily time sheets
were not then available. Again upon approval by the Court, the
crewmen concerned were paid their overtime compensation.Because of
his exclusion from the second report of the examiner, and his time
sheets having been located in the meantime, Dominador Malondras, on
September 18, 1959, filed petitions in the same case asking for the
compensation and payment of his overtime compensation for the
period from January 1, 1954 to December 31, 1956, and from January
to April 30, 1957 which, he alleged, was not included in the first
report of the examiner because his time sheets for these months
could not be found at the time. Malondras' petition was opposed by
the NASSCO upon the argument, among others, that its records do not
indicate the actual number of working hours rendered by Malondras
during the periods in question. Acting on the petition and
opposition, the Industrial Court ordered the examiner to examine
the log books, daily time sheets, and other pertinent records of
the corporation for the purpose of determining and computing
whatever overtime service Malondras had rendered from January 1,
1954 to December 31, 1956.On January 15, 1960, the chief examiner
submitted a report crediting Malondras with a total of 4,349
overtime hours from January 1, 1954 to December 31, 1956, at an
average of five (5) overtime hours a day, and after deducting the
aggregate amount of subsistence allowance received by Malondras
during this period, recommended the payment to him of overtime
compensation in the total sum of P2,790.90.On February 20, 1960,
the Court ordered the examiner to make a re-examination of the
records with a view to determining Malondras' overtime service from
January 1, 1954 to December 31, 1956, and from January 1, 1957 to
April 30, 1957, but without deducting from the compensation to be
paid to him his subsistence allowance. Pursuant to this last order,
the examiner, on April 23, 1960, submitted an amended report giving
Malondras an average of sixteen (16) overtime hours a day, on the
basis of his time sheets, and recommending the payment to him of
the total amount of P15,242.15 as overtime compensation during the
periods covered by the report. This report was, over the NASSCO's
vigorous objections, approved by the Court below on May 6, 1960.
The NASSCO moved for reconsideration, which was denied by the
Courten banc, with one judge dissenting. Whereupon, the NASSCO
appealed to this Court.There appears to be no question that
respondent Malondras actually rendered overtime services during the
periods covered by the examiner's report. This is admitted in the
stipulation of facts of the parties in Case No. 1058-V; and it was
on the basis of this admission that the Court below, in its order
of November 22, 1957, ordered the payment of overtime compensation
to all the petitioners in Case No. 1058-V, including respondent
Dominador Malondras, after the overtime service rendered by them
had been determined and computed on the basis of the log books,
time sheets and other pertinent records of the petitioner
corporation.The only matter to be determined here is, therefore,
the number of hours of overtime for which Malondras should be paid
for the periods January 1, 1954 to December 31, 1956, and from
January to April 30, 1957. Respondents urge that this is a question
of fact and not subject to review by this Court, there being
sufficient evidence to support the Industrial Court's ruling on
this point. It appears, however, that in crediting Malondras with
16 hours of overtime service daily for the periods in question, the
court examiner relied only on his daily time sheets which, although
approved by petitioner's officers in charge and its auditors, do
not show the actual number of hours of work rendered by him each
day but only indicate, according to the examiner himself,
that:almost everyday Dominador Malondras was on "Detail" or
"Detailed on Board". According to the officer in charge of
Dominador Malondras, when he (Dominador Malondras) was on "Detail"
or "Detailed on Board", he was in the boat for twenty-four (24)
hours.In other words, the court examiner interpreted the words
"Detail" or "Detailed on Board" to mean that as long as respondent
Malondras was in his barge for twenty-four hours, he should be paid
overtime for sixteen hours a day or the time in excess of the legal
eight working hours that he could not leave his barge. Petitioner
NASSCO, upon the other hand, argues that the mere fact that
Malondras was required to be on board his barge all day so that he
could immediately be called to duty when his services were needed
does not imply that he should be paid overtime for sixteen hours a
day, but that he should receive compensation only for the actual
service in excess of eight hours that he can prove. This question
is clearly a legal one that may be reviewed and passed upon by this
Court.lawphil.netWe can not agree with the Court below that
respondent Malondras should be paid overtime compensation for every
hour in excess of the regular working hours that he was on board
his vessel or barge each day, irrespective of whether or not he
actually put in work during those hours. Seamen are required to
stay on board their vessels by the very nature of their duties, and
it is for this reason that, in addition to their regular
compensation, they are given free living quarters and subsistence
allowances when required to be on board. It could not have been the
purpose of our law to require their employers to pay them overtime
even when they are not actually working; otherwise, every sailor on
board a vessel would be entitled to overtime for sixteen hours each
day, even if he had spent all those hours resting or sleeping in
his bunk, after his regular tour of duty. The correct criterion in
determining whether or not sailors are entitled to overtime pay is
not, therefore, whether they were on board and can not leave ship
beyond the regular eight working hours a day, but whether they
actually rendered service in excess of said number of hours. We
have ruled to that effect inLuzon Stevedoring Co., Inc. vs. Luzon
Marine Department Union, et al., L-9265, April 29, 1957:I. Is the
definition for "hours of work" as presently applied to dryland
laborers equally applicable to seamen? Or should a different
criterion be applied by virtue of the fact that the seaman's
employment is completely different in nature as well as in
condition of work from that of a dryland laborer?x x x x x x x x
xSection 1