THIRD DIVISION
G.R. No. 192282, October 05, 2016
A. NATE CASKET MAKER AND/OR ARMANDO AND ANELY NATE, Petitioners, v. ELIAS V. ARANGO, EDWIN M. MAPUSAO, JORGE C. CARIÑO, JERMIE MAPUSAO, WILSON A. NATE, EDGAR A. NATE, MICHAEL A. MONTALES, CELSO A. NATE, BENJES A. LLONA AND ALLAN A. MONTALES, Respondent.
D E C I S I O N
PERALTA, J.:
Before us is a Petition for Review on Certiorari1 under Rule 45 of the Rules of Court which seeks the reversal of the Decision2 dated January 6, 2010, and Resolution3 dated May 13, 2010 of the Court of Appeals (CA) in CA-G.R. SP No. 106965. The CA reversed and set aside the Decision4 of the National Labor Relations Commission (NLRC), Sixth Division, in NLRC NCR Case No. 00-02-01233-07 which affirmed the Decision5 of the Labor Arbiter dismissing the complaint for illegal dismissal, underpayment of wages, and non-fayment of overtime pay, holiday pay, service incentive leave pay and 13th month pay filed by respondents.
The factual antecedents are as follows:
chanRoblesvirtualLawlibraryPetitioners Armando and Anely Nate are the owners/proprietors of A. Nate Casket Maker. They employed respondents on various dates as carpenters, mascilladors and painters in their casket-making business from 1998 until their alleged termination in March 2007. Petitioners alleged in their Position Paper6 that respondents are pakyaw workers who are paid per job order.7 Respondents are "stay-in" workers with free board and lodging, but they would "always" drink, quarrel with each other on petty things such that they could not accomplish the job orders on time. Hence, petitioners would then be compelled to "contract out" to other workers for the job to be finished. On February 3, 2007, they met with respondents in order to present a proposed employment agreement which would change the existing pakyaw system to "contractual basis" and would provide for vacation leave and sick leave pay and other benefits given to regular employees. Petitioners alleged that the proposed employment agreement would be more beneficial to respondents.8chanrobleslaw
On the other hand, respondents alleged in their Position Paper,9 that they worked from Monday to Saturday, from 7:00a.m. to 10:00 p.m., with no overtime pay and any monetary benefits despite having claimed for such. On March 15, 2007, they were called by petitioners and were made to sign a Contract of Employment10 with the following terms and conditions: (1) they shall be working on contractual basis for a period of five months; (2) renewal of employment contract after such period shall be on a case-to-case basis or subject to respondents' efficiency and performance; (3) petitioners shall reserve the right to terminate their employment should their performance fall below expectations or if the conditions under which they were employed no longer exist; (4) their wages shall be on a piece-rate basis; (5) in the performance of their tasks, they shall be obliged to strictly follow their work schedules; (6) they shall not be eligible to avail of sick leave or vacation leave, nor receive 13th month pay and/or bonuses, or any other benefits given to a regular employee. Respondents then alleged that when they were adamant and eventually refused to sign the contract, petitioners told them to go home because their employment has been terminated.
On February 8, 2007, respondents filed a Complaint for illegal dismissal and non-payment of separation pay against petitioners. On March 15, 2007, they amended the complaint to include claims for underpayment of wages, non-payment of overtime pay, holiday pay, 5-day service incentive leave pay and 13th month pay.
On August 15, 2007, Labor Arbiter (LA) Eduardo J. Carpio, issued a Decision dismissing the complaint for lack of merit. While the LA acknowledged that respondents being pakyaw workers are considered regular employees, he ruled that petitioners did not terminate the services of respondents and believed in the denial of petitioners that respondents were called to their office on March 15, 2007 since respondents already initiated the present case on February 8, 2007. On the issue of underpayment, the LA held that respondents were earning more than the minimum wage per day; and as pakyaw workers, though they are deemed regular workers, they are not entitled to overtime pay, holiday pay, service incentive leave pay and 13th month pay citing the case of field personnel and those paid on purely commission basis.
Thereafter, respondents elevated the case before the NLRC, Sixth Division. On July 29, 2008, the NLRC affirmed the Decision of the LA and held that no substantial evidence was presented to show that petitioners terminated the employment of respondents. It stated that pakyaw workers are not entitled to money claims because their work depends on the availability of job orders from petitioners' clients. Also, there was no proof that overtime work was rendered by respondents. A motion for reconsideration was filed by respondents but the same was denied.
Aggrieved, respondents filed a petition for certiorari before the CA. In a Decision dated January 6, 2010, the CA reversed and set aside the decision ofthe NLRC. The fallo states:
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WHEREFORE, the petition for certiorari is GRANTED. Public Respondent's Decision dated July 29, 2008 and Resolution dated November 7, 2008 in NLRC LAC No. 12-003252-07 (NCR Case No. 00-02-01233-07) are REVERSED AND SET ASIDE, and in lieu thereof, a new one is ENTERED, declaring petitioners to have been illegally dismissed and ordering private respondents to pay them backwages, separation pay and other monetary benefits as required by law. Upon the finality of this decision and for the enforcement of the same, the Labor Arbiter of origin is directed to conduct further proceedings for the purpose of determining the amount of backwages and separation pay due petitioners.
SO ORDERED.11
- THE HONORABLE COURT OF APPEALS COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN DECLARING THAT COMPLAINANTS WERE ILLEGALLY DISMISSED; [and]
- THERE ARE SERIOUS ERRORS IN THE FINDINGS OF FACTS WHICH, IF NOT CORRECTED, WOULD CAUSE GRAVE AND IRREPARABLE DAMAGE TO THE PRIVATE RESPONDENTS.12
As a rule, only questions of law may be raised in a Rule 45 petition. In one case, we discussed the particular parameters of a Rule 45 appeal from the CA's Rule 65 decision on a labor case, as follows:ChanRoblesVirtualawlibraryIn a Rule 45 review, we consider the correctness of the assailed CA decision, in contrast with the review for jurisdictional error that we undertake under Rule 65. Furthermore, Rule 45 limits us to the review of questions of law raised against the assailed CA decision. In ruling for legal correctness, we have to view the CA decision in the same context that the petition for certiorari it ruled upon was presented to it; we have to examine the CA decision from the prism of whether it correctly determined the presence or absence of grave abuse of discretion in the NLRC decision before it, not on the basis of whether the NLRC decision on the merits of the case was correct. In other words, we have to be keenly aware that the CA undertook a Rule 65 review, not a review on appeal, of the NLRC decision challenged before it.17
A. NATE CASKET MAKER
30 Espirito St. Pangulo
Malabon, Metro Manila
CONTRACT OF EMPLOYMENTDATE: February 3, 2007
You arc hereby assigned as worker/laborer at A. NATE CASKET MAKER. The following constitute the terms and conditions under which the management of NATE CASKET MAKER governs.
You will be working a 5-month contract basis. Your contract will be renewed on a case-to-case basis or based upon the efficiency of your performance. The company also reserves the right to discontinue or terminate your employment anytime if your performance does not come to expectations or if the conditions under which you have been employed no longer exist.
You will be receiving remuneration on a per item/piece basis [i.e., per casket made]. You are obliged to follow strictly your schedules to work or perform your duty. During the period of your employment, you will not [be] eligible to earn or receive any sick leave pay, [vacation] leave pay, or any other benefits given to regular employees such as 13th month pay and bonuses.
This contract and other conditions of your employment arc governed further by existing company policies and regulations, of which you have already been oriented into, and by future company policies which may be issued from time to time.Mr. and Mrs. Armando and Anely NATE
Proprietor Proprietress
I hereby accept this employment contract knowing and understanding fully well the terms and conditions under which it shall be governed. I hereby acknowledge that I have been thoroughly oriented and I fully understand the whole company policies, rules and regulations and thereby agree to abide by them when employed.
DATE: February 3, 2007 EMPLOYEE/WORKER20
8. Considering that the complainants refuse to do their work, a meeting was held on February 8, 2007, to have a proposal for a change of [pakyaw] system to that of contractual basis, giving them the sample employment agreement for them to study. The herein respondents explained to them that the change of work system to that of a contract basis which is beneficial to the complainants, the employees will receive a vacation and sick leave, or any other benefits given to a regular [employee] x x x.25cralawred
Art. 280. Regular and Casual Employment. The provisions of written agreement to the contrary notwithstanding and regardless of the oral agreement of the parties, an employment shall be deemed to be regular where the employee has been engaged to perform activities which are usually necessary or desirable in the usual business or trade of the employer, except 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 or where the work or services to be performed is seasonal in nature and the employment is for the duration of the season.
An employment shall be deemed to be casual if it is not covered by the preceding paragraph; Provided, That, any employee who has rendered at least one year of service, whether such service is continuous or broken, shall be considered a regular employee with respect to the activity in which he is employed and his employment shall continue while such activity exist.
Article XIII. Social Justice and Human Rights
Labor
It shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations, and peaceful concerted activities, including the right to strike in accordance with law. They shall be entitled to security of tenure, humane conditions of work, and a living wage. They shall also participate in policy and decision-making processes affecting their rights and benefits as may be provided by law.31
SEC. 2. Notice of Dismissal. - Any employer who seeks to dismiss a worker shall furnish him a written notice stating the particular acts or omission constituting the grounds for his dismissal. In cases of abandonment of work, the notice shall be served at the workers' last known address.
In short, in determining whether workers engaged on "pakyaw" or task basis" is entitled to holiday and SIL pay, the presence (or absence) of employer supervision as regards the worker's time and performance is the key: if the worker is simply engaged on "pakyaw" or task basis, then the general rule is that he is entitled to a holiday pay and SIL pay unless exempted from the exceptions specifically provided under Article 94 (holiday pay)40 and Article 95 (SIL pay)41 of the Labor Code. However, if the worker engaged on pakyaw or task basis also falls within the meaning of "field personnel" under the law, then he is not entitled to these monetary benefits.42
The governing law on 13th month pay is Presidential Decree No. 851.45 As with holiday and SIL pay, 13th month pay benefits generally cover all employees; an employee must be one of those expressly enumerated to be exempted. Section 3 of the Rules and Regulations Implementing P.D. No. 851 enumerates the exemptions from the coverage of 13th month pay benefits. Under Section 3(e), "employers of those who are paid on xxx task basis, and those who are paid a fixed amount for performing a specific work, irrespective of the time consumed in the performance thereof' are exempted.
Note that unlike the IRR of the Labor Code on holiday and SIL pay, Section 3(e) of the Rules and Regulations Implementing PD No. 851 exempts employees "paid on task basis" without any reference to "field personnel." This could only mean that insofar as payment of the 13th month pay is concerned, the law did not intend to qualify the exemption from its coverage with the requirement that the task worker be a "field personnel" at the same time.46
Endnotes:
1Rollo, pp. 3-15.
2 Penned by Associate Justice Hakim S. Abdulwahid, with Associate Justices Ramon M. Balo, Jr. and Amy C. Lazaro-Javier, concurring; rollo, pp. 217-226.
3 Id. at 239-240.
4 Id. at 153-159.
5 Id. at 123-129.
6 Id. at 18-24.
7 Petitioners presented as evidence several job orders for caskets dating from February 1, 2007 to February 8, 2007 which were attached as Annexes "A" to "E" in their Position Paper; id. at 25-30.
8Rollo, p. 20.
9 Id. at 31-36.
10 Annex "A" of the Position Paper of Respondents; id. at 37.
11Rollo, pp. 225-226.
12 Id. at 8.
13 Id.
14Fuji Television Network, Inc. v. Espiritu, G.R. Nos. 204944-45, December 3, 2014, 744 SCRA, 31, 63.
15 700 Phil. 1, 9 (2012).
16 613 Phil. 696. 707 (2009).
17Career Philippines v. Serna, supra note 15. (Emphasis in the original)
18Fuji Television Network, Inc. v. Espiritu, supra note 14, at 65-66.
19Philippine Rural Reconstruction Movement (PRRM) v. Pulgar; 637 Phil. 244, 252 (2010).
20Rollo, p. 37.
21 Respondents' (petitioners, herein) Reply to Complainants' (respondents, herein) Position Paper, id. at 41; Petition for Certiorari filed by herein respondents with the CA, id. at 213; Petitioners' Comment to the Petition for Review (filed by herein respondents with the CA), id. at 245.
22 The Revised Rules of the NLRC provide under Sec. 3, Rule V, that parties should not be allowed to allege facts not referred to or included in the complaint, or position paper, affidavits and other documents. This would mean that although not contained in the complaint, any claim can still be averred in the position paper, as was done by the petitioners, or in an affidavit or other documents. (Garcia v. NLRC, G.R. No. ll 0518, August 1, 1994, 234 SCRA 632, 638).
23Rollo, p. 213.
24 Respondent's (Complainant) Memorandum of Appeal with the NLRC, id. at 133.
15Rollo, p. 20. (Underlining supplied)
26Reno Foods, Inc. v. NLRC, 319 Phil. 500, 507-508 (I995).
27Paguio v. NLRC, 451 Phil. 243, 252-253 (2003).
28 Id. at 250-251.
29Gapayao v. Fulo, et al., 711 Phil. 179, 196 (2013).
30 Labor Congress of the Philippines v. NLRC, 352 Phil. 1118, 1139 (1998).
31Emphasis supplied.
32Emphasis supplied.
33 Verdadero v. Barney Autolines Group of' Companies Transport, Inc., et al, 693 Phil. 646, 659 (2012).
34 Velasco v. NLRC, 525 Phil. 749,761 (2006).
35 In Association of Independent Unions in the Philippines v. National Labor Relations Commission (364 Phil. 697, 713 (1999) [Per J. Purisima, Third Division]), this court considered "more than eight (8) years" as substantial. In San Miguel Properties Philippines, Inc. v. Gucaban (669 Phil. 288, 302 (2011) [Per J. Peralta, Third Division]), more than 10 years had lapsed. In G & S Transport Corporation v. Infante (559 Phil. 701, 716 (2007) [Per J. Tinga, Second Division]), 17 years had lapsed from the time of illegal dismissal. In these cases, this court deemed it proper to award separation pay in lieu of reinstatement. Television Network, Inc. v. Espiritu, supra note 14, at 98.
36 Supra note 30, at 1138.
37 Velasco v. NLRC, supra note 34, at 763.
38 Labor Congress of the Philippines, supra note 30, at 1138.
39 G.R. No. 195466, July 2, 2014, 729 SCRA 67.
40 The pertinent portion of Article 94 of the Labor Code and its corresponding provision in the IRR reads:
chanRoblesvirtualLawlibraryA11. 94. Right to holiday pay. (a) Every worker shall be paid his regular daily wage during regular holidays, except in retail and service establishments regularly employing less than (10) workers.
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SECTION 1. Coverage.- This Rule shall apply to all employees except:
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(e) Field personnel and other employees whose time and performance is unsupervised by the employer including those who are engaged on task or contract basis, purely commission basis, or those who are paid a fixed amount for performing work irrespective of the time consumed in the performance thereof.
41 Art. 95. Right to service incentive.
(a) Every employee who has rendered at least one year of service shall be entitled to a yearly service incentive leave of five days with pay.
(b) This provision shall not apply to those who are already enjoying the benefit herein provided, those enjoying vacation leave with pay of at least five days and those employed in establishments regularly employing less than ten employees or in establishments exempted from granting this benefit by the Secretary of Labor and Employment after considering the viability or financial condition of such establishment.
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Section 1. Coverage. This rule shall apply to all employees except:
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(e) Field personnel and other employees whose performance' is unsupervised by the employer including those who are engaged on task or contract basis, purely commission basis, or those who are paid a fixed amount for performing work irrespective of the time consumed in the performance thereof. (Emphasis ours)
42David v. Macasio, supra note 39, at 92-93. (Underscoring supplied.)
43 "Field personnel" shall refer to non-agricultural employees who regularly perform their duties away from the principal place of business or branch office of the employer and whose actual hours of work in the field cannot be determined with reasonable certainty.
44Supra note 39.
45 Enacted on December 16, 1975.
46David v. Macasio, supra note 39, at 93-94.
47 Ledesma, Jr. v. NLRC, Second Division, 562 Phil. 939. 952 (2007).