1. PEOPLE OF THE PHILIPPINES, appellee, vs. ROSE DUJUA (at large); EDITHA S. SING (at large); GUILLERMO WILLY SAMSON (at large); RAMON

SAMSON DUJUA, accused,

RAMON SAMSON DUJUA, appellant.

FACTS: Ramon, his mother Rose Dujua, his aunt Editha Singh, and his uncle Guillermo Willy Samson were charged with Illegal Recruitment in Large Scale as they represented themselves to

have the capacity to contract, enlist, and transport Filipino workers for employment abroad, did then and there willfully and unlawfully, for a fee, recruit and promise employment /job placement

to the following applicants: Jaime Cabus y Co, Beldon S. Caluten, Fernando P. Cunanan, Paulino B. Correa, Martin D. Nacion, Romulo Partos y Tuangco, Jesus B. Briagas, Arturo Torres, Roberto A. Perlas, Ronald Alvarez and Vivencio L. Batiquin without first having secured the

required license or authority from the Department of Labor as required by law.

A promise to send Beldon to work in Japan was made by herein accused. Because of this reperesentaions, Beldon gave accused several amounts of money which were evidenced by receipts signed by Rose Dujua. When the promise remained unfulfilled, Beldon asked Ramon to

give him back his money.[13] Beldon never recovered his payments, however, prompting him and his fellow applicants to file a complaint at the National Bureau of Investigation (NBI)

Further, Perlas gave and delivered to said accused the amount of P17,000.00 on the strength of said manifestations. They also did obtain the amount of P47,000.00 from Cabus. Thus, the four

were also charged in criminal cases with separate counts of estafa committed against Roberto Perlas and Jaime Cabus.

Of the four accused, only Ramon Dujua was arrested and arraigned. His mother, aunt and uncle remain at large. Ramon entered a plea of not guilty to each of the charges, whereupon trial

commenced. While the Information for illegal recruitment named several persons as having been promised jobs by the accused, only four of them testified.

In the same way, Cabus was asked a placement fee of P45,000.00, plus the passport and processing fee, he could leave for Taiwan in a few weeks. At the airport, Ramon told Jaime that the tickets were still being processed. The flight and the job never materialized, however, so after

a week Jaime decided to file a complaint with the NBI.[27]

The accused Ramon Dujua admitted having met private complainants[51] but denied that he was a recruiter.[52] He claimed that he was a mere janitor, messenger and errand boy of the World Pack Travel and Tours; the company is owned by his aunt, Editha Singh, and managed by his

mother Rose Dujua.[54]

While admitting that he did not have a license to recruit,[55] Ramon acknowledged receiving the money given by complainants but denied knowing what it was for.[56] He said, however, that his mother only asked him to count the money.[57] He further maintained that he did not sign any

receipt relative to the payments made by private complainants.[58] The accused claimed that he was being charged only because complainants were angry with his mother.[59]

Zenaida Perez, who used to work for World Pack Travel and Tours, corroborated Ramons claim that he was a janitor/messenger in said office.

ISSUE: WON Ramon Dujua contends that the prosecution failed to prove beyond reasonable doubt that he committed the crimes of illegal recruitment in large scale and estafa.

HELD: The essential elements of the crime of illegal recruitment in large scale are: (1) the accused engages in acts of recruitment and placement of workers defined under Article 13(b) or

in any prohibited activities under Art. 34 of the Labor Code; (2) the accused has not complied with the guidelines issued by the Secretary of Labor and Employment, particularly with respect to the securing of a license or an authority to recruit and deploy workers, either locally or

overseas; and (3) the accused commits the unlawful acts against three or more persons, individually or as a group

All three elements have been established beyond reasonable doubt.

First, the testimonies of the complaining witnesses satisfactorily prove that appellant promised them employment and assured them placement overseas. Complainants were firm and categorical. All of them positively identified appellant as the person who recruited them for

employment abroad. Their testimonies dovetail each other on material points. There is no adequate showing that any of them was impelled by any ill motive to testify against appellant.

Their testimonies were straightforward, credible and convincing. As against the positive and categorical testimonies of the three complainants, appellants mere denials cannot prevail.[63]

It is irrelevant whether or not complainants claims are supported by receipts. The absence of receipts in a case for illegal recruitment does not warrant the acquittal of the appellant and is not fatal to the prosecutions case. As long as the prosecution is able to establish through credible

testimonial evidence that the appellant has engaged in Illegal Recruitment, a conviction for the offense can very well be justified.

Second, appellant did not have any license or authority to recruit persons for overseas work, as shown by the Certification issued by the POEA. Neither did his employer, the World Pack

Travel and Tours, possess such license or authority.

Third, it has been alleged and proven that appellant undertook the recruitment of not less than three persons, namely, Cabus, Caluten and Perlas.

WHEREFORE, the decision of the court a quo finding appellant Ramon Samson Dujua guilty beyond reasonable doubt of Illegal Recruitment in Large Scale and Estafa is AFFIRMED.

SO ORDERED.

2. People of the Philippines v. Larry Domingo

GR No. 181475 April 7, 2009

Facts:

Larry Lauro Domingo y Cruz was convicted of Illegal Recruitment in Large Scale and Estafa by both the trial and appellate courts. Several witnesses testified that Appellant deceived the complainants by assuring them of employment abroad provided that they submit certain

documents and pay the required placement fee; complainants paid appellant the amount he asked on account of appellants representations which turned out to be false. On appeal to the Court of

Appeals, appellant maintained that the trial court erred in finding him guilty beyond reasonable doubt, no receipts to show that he actually received money from private complainant having been submitted in evidence.

Issue:

Whether or not the non-presentation of receipts in evidence bears a material weight in convicting

the accused of the abovementioned crimes.

Held:

To prove illegal recruitment in large scale, the prosecution must prove three essential elements, to wit: (1) the person charged undertook a recruitment activity under Article 13(b) or any prohibited practice under Article 34 of the Labor Code; (2) he/she did not have the license or the

authority to lawfully engage in the recruitment and placement of workers; and (3) he/she committed the prohibited practice against three or more persons individually or as a group.

That no receipt or document in which appellant acknowledged receipt of money for the promised jobs was adduced in evidence does not free him of liability. For even if at the time appellant was

promising employment no cash was given to him, he is still considered as having been engaged in recruitment activities, since Article 13(b) of the Labor Code states that the act of recruitment

may be for profit or not. It suffices that appellant promised or offered employment for a fee to the complaining witnesses to warrant his conviction for illegal recruitment.

As to the conviction of appellant for two counts of estafa, it is well established that a person may be charged and convicted of both illegal recruitment and estafa. People v. Comila,

enlightens:

x x x The reason therefor is not hard to discern: illegal recruitment is malum prohibitum, while

estafa is malum in se. In the first, the criminal intent of the accused is not necessary for conviction. In the second, such an intent is imperative. Estafa under Article 315, paragraph 2, of the Revised Penal Code, is committed by any person who defrauds another by using fictitious

name, or falsely pretends to possess power, influence, qualifications, property, credit, agency, business or imaginary transactions, or by means of similar deceits executed prior to or

simultaneously with the commission of fraud. x x x (Emphasis supplied)

Appellant, who did not have the authority or license to recruit and deploy, misrepresented to the

complaining witnesses that he had the capacity to send them abroad for employment. This misrepresentation, which induced the complaining witnesses to part off with their money for placement and medical fees, constitutes estafa under Article 315, par. 2(a) of the Revised Penal

Code.

3. SALAZAR VS. ACHACOSO

G.R. NO. 81510;

March 14, 1990

Facts:

Rosalie Tesoro of Pasay City in a sworn statement filed with the POEA, charged petitioner,

Hortencia Salazar, with illegal recruitment. Public respondent Atty. Ferdinand Marquez sent petitioner a telegram directing him to appear to the POEA regarding the complaint against him.

On the same day, after knowing that petitioner had no license to operate a recruitment agency, public respondent Administrator Tomas Achacoso issued a Closure and Seizure Order No. 1205 to petitioner. It stated that there will a seizure of the documents and paraphernalia being used or

intended to be used as the means of committing illegal recruitment, it having verified that petitioner has (1) No valid license or authority from the Department of Labor and Employment

to recruit and deploy workers for overseas employment; (2) Committed/are committing acts prohibited under Article 34 of the New Labor Code in relation to Article 38 of the same code. A team was then tasked to implement the said Order. The group, accompanied by mediamen and

Mandaluyong policemen, went to petitioners residence. They served the order to a certain Mrs. Flora Salazar, who let them in. The team confiscated assorted costumes. Petitioner filed with

POEA a letter requesting for the return of the seized properties, because she was not given prior notice and hearing. The said Order violated due process. She also alleged that it violated Sec. 2 of the Bill of Rights, and the properties were confiscated against her will and were done with

unreasonable force and intimidation.

Issue:

Whether or Not the Philippine Overseas Employment Administration (or the Secretary of Labor) can validly issue warrants of search and seizure (or arrest) under Article 38 of the Labor Code

Held:

Under the new Constitution, . . . no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or

affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. Mayors and prosecuting officers

cannot issue warrants of seizure or arrest. The Closure and Seizure Order was based on Article

38 of the Labor Code. The Supreme Court held, We reiterate that the Secretary of Labor, not being a judge, may no longer issue search or arrest warrants. Hence, the authorities must go

through the judicial process. To that extent, we declare Article 38, paragraph (c), of the Labor Code, unconstitutional and of no force and effect The power of the President to order the

arrest of aliens for deportation is, obviously, exceptional. It (the power to order arrests) cannot be made to extend to other cases, like the one at bar. Under the Constitution, it is the sole domain of the courts. Furthermore, the search and seizure order was in the nature of a general warrant.

The court held that the warrant is null and void, because it must identify specifically the things to be seized.

4.PEOPLE VS REMULLA G.R. 124443-46

On appeal is the decision1 of the Regional Trial Court, Makati City, Branch 132, in Criminal Cases

Nos. 95-653 to 95-656, convicting appellant Nimfa Remullo and sentencing her to suffer thefollowing penalties: (1) in Criminal Case No. 95-653, involving illegal recruitment on a large

scale, life imprisonment and the payment of a P100,000 fine, (2) for each case of estafa in Criminal

Cases Nos. 95-654 to 95-656, two years, four months, and one day of prision correccional to six

years and one day of prision mayor, and to indemnify the private complainants P15,000 each, and (3) to pay the costs.

Private complainants JENELYN QUINSAAT, ROSARIO CADACIO, and HONORINA MEJIA

testified on essentially the same facts. They averred that they went to appellants house sometime

in March 1993, where appellant told them she was recruiting factory workers for Malaysia.

Appellant told them to fill up application forms and to go to the office of Jamila and Co., the

recruitment agency where appellant worked. Appellant also required each applicant to submit a

passport, pictures, and clearance from the National Bureau of Investigation (NBI); and then to

undergo a medical examination. Appellant told them the placement fee was P15,000 for each

applicant, which private complainants gave her. Part of the fee was paid in appellants house and

part was paid at the Jamila office. Appellant did not issue receipts for any of the payments.

At the Jamila office, private complainants met a certain Steven Mah, the alleged broker from the

company in Malaysia that was interested in hiring the women. Mah was supposed to interview

private complainants but instead just looked at them and told them they were fit to work.

Private complainants were supposed to leave for Malaysia on June 6, 1993. On May 28, 1993,

private complainant Quinsaat testified that she and the others met with appellant at the Philippine

General Hospital where appellant showed them their plane tickets. Appellant also told them to fill

up departure cards by checking the word "holiday" thereon.

At the airport on June 6, 1993, an immigration officer told private complainants they lacked a

requirement imposed by the Philippine Overseas Employment Administration (POEA).6 Their

passports were cancelled and their boarding passes marked "offloaded". Private complainant Mejia

testified that appellant told them they were not able to leave because their visas were for tourists

only.

Appellant told private complainants they would be able to leave on June 20, 1993 but this, too, did

not push through.

Private complainant Mejia inquired from Jamila and Co. regarding their application papers. In

response, Evelyn Landrito, vice president and general manager to Jamila, denied any knowledge

of such papers. Landrito told Mejia that appellant did not submit any document to Jamila. She

further certified that appellant was not authorized to receive payments on behalf of Jamila.

EVELYN LANDRITO testified that appellant was a marketing consultant for Jamila.9 As such,

her

work was limited to securing job orders for the company through contacts abroad. According to

Landrito, appellant went on absence without leave in late 1993.

Landrito did not know the private complainants. She stated that Jamila did not have job orders

accredited by the POEA for Malaysia. She knew of a Steven Mah who represented Manifield

Enterprise but the agreement with that company did not push through and POEA did not accredit

Manifield.

THE ACCUSED IS CONVICTED OF THE CRIMES CHARGED.

Hence, this appeal. Appellant contends that the trial court erred:

... IN FINDING THE APPELLANT GUILTY BEYOND REASONABLE DOUBT OF THE

CRIMES

CHARGED.

Essentially, appellant is assailing the credibility of the witnesses presented by the prosecution,

while shifting by way of her defense the onus of illegal recruitment and estafa to third parties in

order to create a reasonable doubt.

In Criminal Case No. 95-653, appellant was charged with illegal recruitment in large scale. For

such a charge to prosper, the following elements must concur: (1) the accused was engaged in

recruitment activity defined under Article 13 (b), or any prohibited practice under Article 34 of the

Labor Code; (2) he or she lacks the requisite license or authority to lawfully engage in the

recruitment and placement of workers; and (3) he or she committed such acts against three or

more persons, individually or as a group.33

Article 13 (b) of the Labor Code provides:

ART. 13. Definitions. -- xxx

(b) "Recruitment and placement" refers to any act of canvassing, enlisting, contracting,

transporting, utilizing, hiring or procuring workers, and includes referrals, contact services,

promising or advertising for employment, locally or abroad, whether for profit or not: Provided,

That

any person or entity which, in any manner, offers or promises for a fee employment to two or

more

persons shall be deemed engaged in recruitment and placement.

We are convinced that private complainants, the main witnesses for the prosecution, were

enticedby appellant to apply for jobs abroad. The three private complainants filled up application forms atappellants house, and each paid appellant the amount of P15,000 as placement fee. However,she acted without license or lawful authority to conduct recruitment of workers for

overseasplacement. The POEAs licensing branch issued a certification stating that appellant, in herpersonal capacity, was not authorized to engage in recruitment activities.34 Evelyn

Landrito,general manager of the placement agency where appellant used to work, denied that the scope of appellants work included recruiting workers and receiving placement fees. Such lack of authorityto recruit is also apparent from a reading of the job description of a marketing

consultant,35 the post that appellant occupied at Jamila and Co.Anent appellants conviction for estafa in Criminal Cases Nos. 95-654 to 95-656, we find no error committed by the trial court.

Their conviction and sentence are fully supported by the evidence on record. For charges of estafa to prosper, the following elements must be present: (1) that the

accused defrauded another by abuse of confidence or by means of deceit, and (2) that damage or

prejudice capable of pecuniary estimation is caused to the offended party or third person.39 In

this

case, appellant clearly defrauded private complainants by deceiving them into believing that she

had the power and authority to send them on jobs abroad. By virtue of appellants false

representations, private complainants each parted with their hard-earned money. Each

complainant paid P15,000 as recruitment fee to appellant, who then appropriated the money for

her own use and benefit, but failed utterly to provide overseas job placements to the complainants.

In a classic rigmarole, complainants were provided defective visas, brought to the airport with

their

passports and tickets, only to be offloaded that day, but with promises to be booked in a plane

flight on another day. The recruits wait in vain for weeks, months, even years, only to realize they

were gypped, as no jobs await them abroad. No clearer cases of estafa could be imagined than

those for which appellant should be held criminally responsible.

DECISION AFFIRMED

6.Asia Pacific Chartering vs Farolan

FACTS:

Petitioner Asia Pacific Chartering (Phils) Inc. hired Respondent Maria Linda R. Farolan as Sales

Manager of petitioner for its passenger and cargo GSA operations for SAS. Respondent, upon instruction of Bondoc, submitted a report the same reflects that there was a drop in SAS sales

revenues which to her was attributable to market forces beyond her control. .Noting the marked decline in SAS sales revenues, petitioner directed its high ranking officer Roberto Zozobrado in to conduct an investigation on the matter and identify the problem/s and implement possible

solutions. Zozobrado thus informally took over some of respondents marketing and sales responsibilities, albeit respondent retained her title as Sales Manager and continued to receive

her salary as such. Thereafter petitioner sent respondent a letter of termination on the ground of loss of confidence.

ISSUE: Whether or not respondent's dismissal was legal.

HELD: NO

A statement of the requisites for a valid dismissal of an employee is thus in order, to wit: (a)

the employee must be afforded due process, i.e., he must be given opportunity to be heard and to defend himself; and (b) dismissal must be for a valid cause as provided in Article 282 of the

Labor Code or any of the authorized causes under Article 283 and 284 of the same Code.

[W]e find that the manner by which complainant was dismissed violated the basic precepts of fairness and due process. Respondent was terminated, without being afforded the opportunity to

be heard and to present evidence in her defense. She was never given a written notice stating the particular acts or omission constituting the grounds for her dismissal as required by law.

As regards the second requisite, the rule is settled that in termination cases, the employer bears the onus of proving that the dismissal is for just cause failing which the dismissal is not justified

and the employee is entitled to reinstatement. Recent decisions of this Court distinguish the treatment of managerial employees from that of rank and file personnel insofar as the application of the doctrine of loss of trust and confidence is concerned. Thus with respect to rank and file

personnel, loss of trust and confidence as ground for valid dismissal requires proof of involvement in the alleged events in question and that mere uncorroborated assertions and

accusations by the employer will not be sufficient. But as regards a managerial employee, mere existence of a basis for believing that such employee has breached the trust of his employer would suffice for his dismissal. Loss of trust and confidence to be a valid ground for an

employees dismissal must be based on a willful breach and founded on clearly established facts.

A breach is willful if it is done intentionally, knowingly and purposely, without justifiable excuse, as distinguished from an act done carelessly, thoughtlessly, heedlessly or inadvertently.

Even assuming, however, that respondent was a managerial employee, the stated ground (in the letter of termination) for her dismissal, loss of confidence, should have a basis and

determination thereof cannot be left entirely to the employer.

-> failed to meet both requisites

7. Pearanda vs Baganga Plywood

FACTS:

Sometime in June 1999, Petitioner Charlito Pearanda was hired as an employee of Baganga

Plywood Corporation (BPC) to take charge of the operations and maintenance of its steam plant boiler. In May 2001, Pearanda filed a Complaint for illegal dismissal with money claims against

BPC and its general manager, Hudson Chua, before the NLRC.

After the parties failed to settle amicably, the labor arbiter directed the parties to file their

position papers and submit supporting documents. Their respective allegations are summarized by the labor arbiter as follows:

"[Pearanda] through counsel in his position paper alleges that he was employed by respondent [Baganga] on March 15, 1999 with a monthly salary of P5,000.00 as Foreman/Boiler Head/Shift

Engineer until he was illegally terminated on December 19, 2000. Further, [he] alleges that his services [were] terminated without the benefit of due process and valid grounds in accordance

with law. Furthermore, he was not paid his overtime pay, premium pay for working during holidays/rest days, night shift differentials and finally claims for payment of damages and attorneys fees having been forced to litigate the present complaint.

Respondents thru counsel allege that complainants separation from service was done pursuant to Art. 283 of the Labor Code. The respondent [BPC] was on temporary closure due to repair and

general maintenance and it applied for clearance with the Department of Labor and Employment, Regional Office No. XI to shut down and to dismiss employees . And due to the insistence of

herein complainant he was paid his separation benefits. Consequently, when respondent [BPC] partially reopened in January 2001, [Pearanda] failed to reapply. Hence, he was not terminated from employment much less illegally. He opted to severe employment when he insisted payment

of his separation benefits. Furthermore, being a managerial employee he is not entitled to overtime pay and if ever he rendered services beyond the normal hours of work, [there] was no

office order/or authorization for him to do so. Finally, respondents allege that the claim for damages has no legal and factual basis and that the instant complaint must necessarily fail for lack of merit."

The labor arbiter ruled that there was no illegal dismissal and that petitioners Complaint was premature because he was still employed by BPC.The temporary closure of BPCs plant did not

terminate his employment, hence, he need not reapply when the plant reopened.

According to the labor arbiter, petitioners money claims for illegal dismissal was also weakened

by his quitclaim and admission during the clarificatory conference that he accepted separation benefits, sick and vacation leave conversions and thirteenth month pay.

Nevertheless, the labor arbiter found petitioner entitled to overtime pay, premium pay for working on rest days, and attorneys fees in the total amount of P21,257.98.13

ISSUE: W/N petitioner is a regular employee?

W/N he is entitled to some other benefits such as overtime pay?

HELD:

Petitioner claims that he was not a managerial employee, and therefore, entitled to the award

granted by the labor arbiter.

Article 82 of the Labor Code exempts managerial employees from the coverage of labor

standards. Labor standards provide the working conditions of employees, including entitlement to overtime pay and premium pay for working on rest days. Under this provision, managerial

employees are "those whose primary duty consists of the management of the establishment in which they are employed or of a department or subdivision."

The Implementing Rules of the Labor Code state that managerial employees are those who meet the following conditions:

"(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."

The Court disagrees with the NLRCs finding that petitioner was a managerial employee. However, petitioner was a member of the managerial staff, which also takes him out of the

coverage of labor standards. Like managerial employees, officers and members of the managerial staff are not entitled to the provisions of law on labor standards. The Implementing Rules of the Labor Code define members of a managerial staff as those with the following duties and

responsibilities:

"(1) The primary duty consists of the performance of work directly related to management

policies of the 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 than 20 percent of their hours worked in a workweek to activities which are not directly and closely related to the performance of the work described in paragraphs

(1), (2), and (3) above."

As shift engineer, petitioners duties and responsibilities were as follows:

"1. To supply the required and continuous steam to all consuming units at minimum cost.

"2. To supervise, check and monitor manpower workmanship as well as operation of boiler and accessories.

"3. To evaluate performance of machinery and manpower

"5. To train new employees for effective and safety while working.

"7. To recommend personnel actions such as: promotion, or disciplinary action.

The foregoing enumeration, particularly items 1, 2, 3, 5 and 7 illustrates that petitioner was a member of the managerial staff. His duties and responsibilities conform to the definition of a

member of a managerial staff under the Implementing Rules.

Petitioner supervised the engineering section of the steam plant boiler. His work involved overseeing the operation of the machines and the performance of the workers in the engineer ing section. This work necessarily required the use of discretion and independent judgment to ensure

the proper functioning of the steam plant boiler. As supervisor, petitioner is deemed a member of the managerial staff.

Noteworthy, even petitioner admitted that he was a supervisor. In his Position Paper, he stated that he was the foreman responsible for the operation of the boiler. The term foreman implies

that he was the representative of management over the workers and the operation of the department. Petitioners evidence also showed that he was the supervisor of the steam plant.38 His classification as supervisor is further evident from the manner his salary was paid. He

belonged to the 10% of respondents 354 employees who were paid on a monthly basis; the others were paid only on a daily basis.

On the basis of the foregoing, the Court finds no justification to award overtime pay and premium pay for rest days to petitioner.

8. MERCIDAR FISHING CORPORATION represented by its President DOMINGO B.

NAVAL, petitioner, vs. NATIONAL LABOR RELATIONS COMMISSION and FERMIN

AGAO, JR., respondents.

Facts:

Private respondent had been employed as a bodegero or ships quartermaster on February 12, 1988. He complained that he had been constructively dismissed by petitioner when the latter

refused him assignments aboard its boats after he had reported to work on May 28, 1990. Private respondent alleged that he had been sick and thus allowed to go on leave without pay for one

month from April 28, 1990 but that when he reported to work at the end of such period with a health clearance, he was told to come back another time as he could not be reinstated immediately. Thereafter, petitioner refused to give him work. For this reason, private

respondent asked for a certificate of employment from petitioner on September 6, 1990. However, when he came back for the certificate on September 10, petitioner refused to issue the

certificate unless he submitted his resignation. Since private respondent refused to submit such letter unless he was given separation pay, petitioner prevented him from entering the premises.

Petitioner, on the other hand, alleged that it was private respondent who actually abandoned his work. It claimed that the latter failed to report for work after his leave had expired and was, in

fact, absent without leave for three months until August 28, 1998. Petitioner further claims that, nonetheless, it assigned private respondent to another vessel, but the latter was left behind on September 1, 1990. Thereafter, private respondent asked for a certificate of employment on

September 6 on the pretext that he was applying to another fishing company. On September 10, 1990, he refused to get the certificate and resign unless he was given separation pay.

The Labor arbiter ruled in favor of the respondent. Petitioner appealed to the NLRC which, on August 30, 1993, dismissed the appeal for lack of merit. The NLRC dismissed petitioners claim

that it cannot be held liable for service incentive leave pay by fishermen in its employ as the latter supposedly are field personnel and thus not entitled to such pay under the Labor Code.

Issue:

Whether or not the private respondent can be classified as field personnel under article 82 of the

Labor Code.

Held:

Yes. 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.

Petitioner argues essentially that since the work of private respondent is performed away from its principal place of business, it has no way of verifying his actual hours of work on the vessel. It

contends that private respondent and other fishermen in its employ should be classified as field personnel who have no statutory right to service incentive leave pay.

The court does not agree. In contrast, in the case at bar, during the entire course of their fishing

voyage, fishermen employed by petitioner have no choice but to remain on board its vessel. Although they perform non-agricultural work away from petitioners business offices, the fact remains that throughout the duration of their work they are under the effective control and

supervision of petitioner through the vessels patron or master as the NLRC correctly held.

9. AUTO BUS TRANSPORT SYSTEMS, INC., petitioner, vs. ANTONIO BAUTISTA,

respondent.

Facts:

Since 24 May 1995, respondent Antonio Bautista has been employed by petitioner Auto Bus Transport Systems, Inc. (Autobus), as driver-conductor. Respondent was paid on commission basis, seven percent (7%) of the total gross income per travel, on a twice a month basis. On 03

January 2000, the bus he was driving accidentally bumped the rear portion of Autobus No. 124, as the latter vehicle suddenly stopped at a sharp curve without giving any warning.

Respondent averred that the accident happened because he was compelled by the management to go back drive although he had not slept for almost twenty-four (24) hours. Respondent further

alleged that he was not allowed to work until he fully paid the thirty percent (30%) of the cost of repair of the damaged buses. After a month, management sent him a letter of termination.

Respondent filed a complaint for illegal dismissal with money claim.

Labor Arbiter dismissed the case filed by the respondent. There was no illegal dismissal, however, he was entitled to be paid his 13th month salary and service incentive leave pay. NLRC affirmed LAs decision, but removing the 13th month pay. Upon request for review, the CA also

affirmed NLRCs decision.

Issue:

1. Was the respondent entitled to service incentive leave?

2. How much service incentive leave is he entitled to?

Held:

Yes. According to Book III, Rule V of the Implementing Rules and Regulations of the Labor

Code, Service Incentive Leave shall not apply to employees classified as field personnel. Employees engaged on task or contract basis or paid on purely commission basis are not

automatically exempted from the grant of service incentive leave, unless, they fall under the classification of field personnel.

According to Article 82 of the Labor Code, 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. The circumstances of the driver show that he is under constant supervision while in the performance of his work. Respondent is not a field personnel but a

regular employee who performs tasks usually necessary and desirable to the usual trade of petitioners business. Accordingly, respondent is entitled to the grant of service incentive leave.

In connection with to Book III, Rule V of the Implementing Rules and Regulations of the Labor Code, Article 95 (a) of the Labor Code also states that 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.

Up to what amount of service incentive leave pay respondent is entitled to?

Applying Article 291 of the Labor Code in light of this peculiarity of the service incentive leave, the three (3)-year prescriptive period commences, the cause of action to claim the payment of his accumulated service incentive leave thus accrued from the time when his employer dismissed

him and failed to pay his accumulated leave credits. The prescriptive period with respect to his claim for service incentive leave pay only commenced from the time the employer failed to

compensate his accumulated service incentive leave pay at the time of his dismissal.

10. Labor Congress of the Philippines vs NLRC

290 SCRA 509

Facts:

The 99 persons named as petitioners in this proceeding were rank-and-file employees of

respondent Empire Food Products, which hired them on various dates

Petitioners filed against private respondents a complaint for payment of money claims and for

violation of labor standard lawa. They also filed a petition for direct certification of petitioner Labor Congress of the Philippines as their bargaining representative.

On October 23, 1990, petitioners represented by LCP President Benigno B. Navarro, Sr. and private respondents Gonzalo Kehyeng and Evelyn Kehyeng in behalf of Empire Food Products,

Inc. entered into a Memorandum of Agreement which provided, among others, the following:

1. That in connection with the pending Petition for Direct Certification filed by the Labor

Congress with the DOLE, Management of the Empire Food Products has no objection [to] the direct certification of the LCP Labor Congress and is now recognizing the Labor Congress of the

Philippines (LCP) and its Local Chapter as the SOLE and EXCLUSIVE Bargaining Agent and Representative for all rank and file employees of the Empire Food Products regarding WAGES, HOURS OF WORK, AND OTHER TERMS AND CONDITIONS OF EMPLOYMENT;

2. That with regards [sic] to NLRC CASE NO. RAB-III-10-1817-90 pending with the NLRC

parties jointly and mutually agreed that the issues thereof, shall be discussed by the parties and resolve[d] during the negotiation of the Collective Bargaining Agreement;

3. That Management of the Empire Food Products shall make the proper adjustment of the Employees Wages within fifteen (15) days from the signing of this Agreement and further agreed to register all the employees with the SSS;

4. That Employer, Empire Food Products thru its Management agreed to deduct thru payroll

deduction UNION DUES and other Assessment[s] upon submission by the LCP Labor Congress individual Check-Off Authorization[s] signed by the Union Members indicating the amount to be deducted and further agreed all deduction[s] made representing Union Dues and Assessment[s]

shall be remitted immediately to the LCP Labor Congress Treasurer or authorized representative within three (3) or five (5) days upon deductions [sic], Union dues not deducted during the

period due, shall be refunded or reimbursed by the Employer/Management. Employer/Management further agreed to deduct Union dues from non-union members the same amount deducted from union members without need of individual Check-Off Authorizations

[for] Agency Fee;

5. That in consideration [of] the foregoing covenant, parties jointly and mutually agreed that

NLRC CASE NO. RAB-III-10-1817-90 shall be considered provisionally withdrawn from the Calendar of the National Labor Relations Commission(NLRC), while the Petition for direct

certification of the LCP Labor Congress parties jointly move for the direct certification of the LCP Labor Congress;

6. That parties jointly and mutually agreed that upon signing of this Agreement, no Harassments [sic], Threats, Interferences [sic] of their respective rights under the law, no Vengeance or

Revenge by each partner nor any act of ULP which might disrupt the operations of the business;

7. Parties jointly and mutually agreed that pending negotiations or formalization of the propose[d] CBA, this Memorandum of Agreement shall govern the parties in the exercise of their respective rights involving the Management of the business and the terms and condition[s]

of employment, and whatever problems and grievances may arise by and between the parties shall be resolved by them, thru the most cordial and good harmonious relationship by

communicating the other party in writing indicating said grievances before taking any action to another forum or government agencies;

8. That parties [to] this Memorandum of Agreement jointly and mutually agreed to respect, abide and comply with all the terms and conditions hereof. Further agreed that violation by the parties of any provision herein shall constitute an act of ULP.

On January 23, 1991, petitioners filed a complaint against private respondents for Unfair Labor

Practice, underpayment of wages, union busting through harassment and moral and exemplary damages.

The Labor Arbiter ruled in favor of the respondents but was remanded back to the arbiter by the NLRC. However, the Labor Arbiter still dismissed the complaint hence this case.

Issue:

Whether or not petitioners are entitled to holiday pay, premium pay and other benefits?

Held:

Yes. As to the other benefits, namely, holiday pay, premium pay, 13th month pay and service incentive leave which the labor arbiter failed to rule on but which petitioners prayed for in their

complaint, the Supreme Court held that petitioners are so entitled to these benefits. Three (3) factors lead us to conclude that petitioners, although piece-rate workers, were regular employees

of private respondents. First, as to the nature of petitioners tasks, their job of repacking snack food was necessary or desirable in the usual business of private respondents, who were engaged in the manufacture and selling of such food products; second, petitioners worked for private

respondents throughout the year, their employment not having been dependent on a specific project or season; and third, the length of time that petitioners worked for private respondents.

Thus, while petitioners mode of compensation was on a per piece basis, the status and nature of their employment was that of regular employees.

The Rules Implementing the Labor Code exclude certain employees from receiving benefits such as nighttime pay, holiday pay, service incentive leave and 13th month pay, inter alia, 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. Plainly, petitioners as piece-rate workers do not fall within this group. As mentioned earlier, not only did petitioners labor under the control of private respondents as their

employer, likewise did petitioners toil throughout the year with the fulfillment of their quota as

supposed basis for compensation. Further, in Section 8 (b), Rule IV, Book III which we quote hereunder, piece workers are specifically mentioned as being entitled to holiday pay.

SEC. 8. Holiday pay of certain employees.-

(b) Where a covered employee is paid by results or output, such as payment on piece work, his holiday pay shall not be less than his average daily earnings for the last seven (7) actual working

days preceding the regular holiday: Provided, however, that in no case shall the holiday pay be less than the applicable statutory minimum wage rate.

In addition, the Revised Guidelines on the Implementation of the 13th Month Pay Law, in view of the modifications to P.D. No. 851by Memorandum Order No. 28, clearly exclude the

employer of piece rate workers from those exempted from paying 13th month pay, to wit:

2. EXEMPTED EMPLOYERS

The following employers are still not covered by P.D. No. 851:

d. Employers of those who are paid on purely commission, boundary or task basis, and those who are paid a fixed amount for performing specific work, irrespective of the time

consumed in the performance thereof, except where the workers are paid on piece-rate basis in which case the employer shall grant the required 13th month pay to such workers. (italics supplied)

The Revised Guidelines as well as the Rules and Regulations identify those workers who fall

under the piece-rate category as those who are paid a standard amount for every piece or unit of work produced that is more or less regularly replicated, without regard to the time spent in producing the same.

As to overtime pay, the rules, however, are different. According to Sec. 2(e), Rule I, Book III of the Implementing Rules, workers who are paid by results including those who are paid on piece-

work, takay, pakiao, or task basis, if their output rates are in accordance with the standards prescribed under Sec. 8, Rule VII, Book III, of these regulations, or where such rates have been

fixed by the Secretary of Labor in accordance with the aforesaid section, are not entitled to receive overtime pay. Here, private respondents did not allege adherence to the standards set forth in Sec. 8 nor with the rates prescribed by the Secretary of Labor. As such, petitioners are

beyond the ambit of exempted persons and are therefore entitled to overtime pay. Once more, the National Labor Relations Commission would be in a better position to determine the exact

amounts owed petitioners, if any.

11. TEPOFILO ARICA et al. vs. NATIONAL LABOR RELATIONS COMMISSION

G.R. No. 78210 February 28, 1989

FACTS:

This case stemmed from a complaint filed on April 9, 1984 by the petitioners Teofilo Arica et al against private respondent Standard (Phil) Fruits Corporation (STANFILCO) for allegedly not paying the workers for their assembly time which takes place every work day from 5:30 to 6:00

am.

These preliminary activities of the workers are as follows:

(a) First there is the roll call. This is followed by getting their individual work assignments from the foreman.

(b) Thereafter, they are individually required to accomplish the Laborer's Daily Accomplishment Report during which they are often made to explain about their reported accomplishment the

following day.

(c) Then they go to the stockroom to get the working materials, tools and equipment.

(d) Lastly, they travel to the field bringing with them their tools, equipment and materials.

Petitioners contend that the preliminary activities as workers of respondents is compensable as working time since these preliminary activities are necessarily and primarily for private respondent's benefit.

Labor Arbiter Pedro C. Ramos rendered a decision dated October 9, 1985, dismissing the claim of petitioners and holding that the thirty-minute assembly time long practiced cannot be

considered waiting time or work time and, therefore, not compensable.

National Labor Relations Commission, in its decision dated December 12, 1986 affirmed the

decision of Labor Arbiter. On January 15, 1987, petitioners filed a Motion for Reconsideration which was denied for lack of merit.

Hence this petition for review on certiorari filed on May 7, 1987.

ISSUE:

Is the 30-minute activity of the petitioners before the scheduled working time is compensable under the Labor Code?

HELD:

The SC, in its decision noted that decision of the Minister of Labor, on May 12, 1978 in the case

Associated Labor Union vs. Standard (Phil.) Fruit Corporation, where significant findings of facts and conclusions had already been made on the matter. (Please note: The instant complaint is not new, the very same claim have already been brought against Stanfilco by the same group

of rank and file employees in the case of Associated Labor Union and Standard Fruit Corporation, which was filed way back April 27, 1976 when ALU was the bargaining agent of

respondent's rank and file workers.)

The Minister of Labor held:

The thirty (30)-minute assembly time long practiced and institutionalized by mutual consent of the parties under Article IV, Section 3, of the Collective Bargaining Agreement cannot be considered as waiting time within the purview of Section 5, Rule I, Book III of the Rules and

Regulations Implementing the Labor Code.

Furthermore, the thirty (30)-minute assembly is a deeply- rooted, routinary practice of the

employees, and the proceedings attendant thereto are not infected with complexities as to deprive the workers the time to attend to other personal pursuits. Their houses are situated right on the area where the farm are located, such that after the roll call, which does not necessarily require

the personal presence, they can go back to their houses to attend to some chores. In short, they are not subject to the absolute control of the company during this period, otherwise, their failure

to report in the assembly time would justify the company to impose disciplinary measures.

The thirty (30)-minute assembly time was not primarily intended for the interests of the employer, but ultimately for the employees to indicate their availability or non-availability for

work during every working day.

It is clear that herein petitioners are merely reiterating the very same claim which they filed

through the ALU and which records show had already long been considered terminated and closed by this Court in G.R. No. L-48510. Therefore, the NLRC can not be faulted for ruling that

petitioners' claim is already barred by res-judicata. It is thus axiomatic that the non-compensability of the claim having been earlier established, constitute the controlling legal rule or decision between the parties and remains to be the law of the case making this petition without

merit.

12. UNIVERSITY OF PANGASINAN FACULTY UNION v. UNIVERSITY OF

PANGASINAN And NATIONAL LABOR RELATIONS COMMISSION

G.R. No. L-63122. February 20, 1984

FACTS:

Petitioner is a labor union composed of faculty members of the respondent University of Pangasinan. The petitioners members are full-time professors, instructors, and teachers of

respondent University. The teachers in the college level teach for a normal duration of ten (10) months a school year, divided into two (2) semesters of five (5) months each, excluding the two

(2) months summer vacation. These teachers are paid their salaries on a regular monthly basis.

On December 18, 1981, the petitioner, through its President, Miss Consuelo Abad, filed a

complaint against the private respondent with the Arbitration Branch of the NLRC. The complaint seeks: (a) the payment of Emergency Cost of Living Allowances (ECOLA) for November 7 to December 5, 1981, a semestral break; (b) salary increases from the sixty (60%)

percent of the incremental proceeds of increased tuition fees.

In November and December, 1981, the petitioners members were fully paid their regular

monthly salaries. However, from November 7 to December 5, during the semestral break, they were not paid their ECOLA. The private respondent claims that the teachers are not entitled thereto because the semestral break is not an integral part of the school year and there being no

actual services rendered by the teachers during said period, the principle of "No work, no pay" applies.

During the same school year (1981-1982), the private respondent was authorized by the Ministry of Education and Culture to collect, as it did collect, from its students a fifteen (15%) percent increase of tuition fees. Petitioners members demanded a salary increase effective the first

semester of said schoolyear to be taken from the sixty (60%) percent incremental proceeds of the increased tuition fees. Private respondent refused.

While the complaint was pending in the arbitration branch of NLRC, the private respondent granted an across-the-board salary increase of 5.86%. Nonetheless, the petitioner is still pursuing full distribution of the 60% of the incremental proceeds as mandated by the Presidential Decree

No. 451.

ISSUES:

1. Are the petitioners members are entitled to ECOLA during the semestral break from

November 7 to December 5, 1981 of the 1981-1982 school year?

2. Shouldthe 60% of the incremental proceeds of the increased tuition fees be devoted

exclusively to salary increase?

HELD:

First Issue:

1. The various Presidential Decrees on ECOLAs to wit: PDs 1614, 1634, 1678 and 1713,

provide on "Allowances of Fulltime Employees . . ." that "Employees shall be paid in full the required monthly allowance regardless of the number of their regular working days if they incur

no absences during the month. If they incur absences without pay, the amounts corresponding to the absences may be deducted from the monthly allowance . . ." ; and on "Leave of Absence Without Pay", that "All covered employees shall be entitled to the allowance provided herein

when they are on leave of absence with pay."

2. The petitioners members are full-time employees receiving their monthly salaries irrespective

of the number of working days or teaching hours in a month. However, they find themselves in a most peculiar situation whereby they are forced to go on leave during semestral breaks. These semestral breaks are in the nature of work interruptions beyond the employees control.

3. As such, these breaks cannot be considered as absences within the meaning of the law for which deductions may be made from monthly allowances. The "No work, no pay" principle does

not apply in the instant case. The petitioners members received their regular salaries during this period. It is clear from the aforequoted provision of law that it contemplates a "no work" situation where the employees voluntarily absent themselves. Petitioners certainly do not absent

themselves during semestral breaks. Rather, they are constrained to take mandatory leave from work. For this they cannot be faulted. To a certain extent, the private respondent can specify

dates when no classes would be held.

4. Petitioners cannot be considered to be on leave without pay so as not to be entitled to ECOLA,

for, as earlier stated, the petitioners were paid their wages in full for the months of November and December of 1981, notwithstanding the intervening semestral break.

5. Furthermore, we may also by analogy apply the principle enunciated in the Omnibus Rules Implementing the Labor Code to wit:

Sec. 4. Principles in Determining Hours Worked. The following general principles shall govern in determining whether the time spent by an employee is considered hours worked for purposes of this Rule:

x x x

"(d) The time during which an employee is inactive by reason of interruptions in his work

beyond his control shall be considered time either if the imminence of the resumption of work requires the employees presence at the place of work or if the interval is too brief to be utilized

effectively and gainfully in the employees own interest." (Emphasis supplied).

The petitioners members in the case at bar, are exactly in such a situation. The semestral break scheduled is an interruption beyond petitioners control. Thus, the semestral break may also be

considered as "hours worked." For this, the teachers are paid regular salaries and, for this, they should be entitled to ECOLA.

Second Issue:

1. Section 3 of Presidential Decree 451 to wit:

SEC. 3. Limitations. The increase in tuition or other school fees or other charges as well as the new fees or charges authorized under the next preceding section shall be subject to the following conditions:

"(a) That no increase in tuition or other school fees or charges shall be approved unless sixty (60%) per centum of the proceeds is allocated for increase in salaries or wages of the members of

the faculty and all other employees of the school concerned, and the balance for institutional development, student assistance and extension services, and return to investments: Provided, That in no case shall the return to investments exceed twelve (12%) per centum of the

incremental proceeds; . . ."

x x x

2. The law is clear. The sixty (60%) percent incremental proceeds from the tuition increase are

to be devoted entirely to wage or salary increases which means increases in basic salary. The law cannot be construed to include allowances which are benefits over and above the basic salaries of

the employees. The law provides that 60% should go to wage increases and 40% to institutional developments, student assistance, extension services, and return on investments (ROI). Under the law, the last item ROI has flexibility sufficient to accommodate other purposes of the law and the

needs of the university.

DISPOSITION:

The private respondent is ordered to pay its regular fulltime teachers/employees emergency cost of living allowances for the semestral break from November 7 to December 5, 1981 and the

undistributed balance of the sixty (60%) percent incremental proceeds from tuition increases for the same schoolyear as outlined above.

13.Rada v. NLRC

G.R. No. 96078 January 9, 1992

REGALADO, J.:

Facts:

Petitioner's initial employment with this Respondent was under a "Contract of Employment for a Definite Period" dated July 7, 1977 whereby Petitioner was hired as "Driver" for the construction supervision phase of the Manila North Expressway Extension, Second Stage

(MNEE Stage 2) for a term of "about 24 months effective July 1, 1977.

Petitioner's first contract of employment expired on June 30, 1979. Meanwhile, the main project, MNEE Stage 2, was not finished due to various constraints, thus, was extended and remained in progress beyond the original period of 2.3 years. Since Respondent was in need of

Driver for the extended project, and 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. In March 1980 still, the bulk of the project was yet to be finished. Petitioner, whose contract was about to expire, and whose service performance was satisfactory, was renewed again for a third contract of employment executed

for a definite period of 19 months (May 1, 1980 to Nov. 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 (October 1, 1985 to December 31, 1985) was not extended any further because Petitioner had no more work to do in the project.

However, culled from the records, it appears that on May 20, 1987, petitioner filed before the NLRC- NCR, a Complaint for non-payment of separation pay and overtime pay and claimed also that he was illegally dismissed since he was a regular employee entitled to security of

tenure; that he was not a project employee but 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; 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.

Philnor contends 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 field office at Sto. Domingo Interchange, Pampanga; that they are not entitled to termination benefits as they are contractual/project employees.

Labor Arbiter ruled in favor of petitioner but the NLRC reversed said decision, Hence,

this civil action for certiorari.

Issue:

Was there grave abuse of discretion by NLRC amounting to lack of jurisdiction for ruling:

1. that the petitioner is not a regular employee with 8 years and 5 months of continuous

services for his employer (Philnor);

2. that claims for overtime services, reinstatement and full back wages are not valid and

not meritorious and should not have been sustained?

Held:

The petition is devoid of merit.

1. 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 7 years, these circumstances

did not make him a regular employee in contemplation of Article 281 of (the) Labor Code. 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. In this case, 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. Hence, the termination of herein petitioner is valid by reason of the completion of the project and the expiration of his employment contract.

2. 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.

WHEREFORE, subject to the modification regarding the award of overtime pay to herein

petitioner, the decision appealed from is AFFIRMED in all other respects.

14. R. B Micheal Press vs Galit

Facts

Nicasio Galit was employed by R.B. Michael Press as an offset machine operator, whose work

schedule was from 8:00 a.m. to 5:00 p.m., Mondays to Saturdays, and he was paid PhP 230 a day. During his employment, Galit was tardy for a total of 190 times, totaling to 6,117 minutes

and was absent without leave for a total of nine and a half days.

On February 22, 1999, respondent was ordered to render overtime service but he refused to do

so. The following day, respondent reported for work but petitioner Escobia told him not to work, and to return later in the afternoon for a hearing. When he returned, a copy of a Memorandum was served on him, warning for dismissal is being issued for the following offenses: 1) habitual

and excessive tardiness 2) committing acts of discourtesy, disrespect in addressing superiors 3)failure to work overtime after having been instructed to do so 4)Insubordination - willfully

disobeying, disregarding company authority.

The memorandum further provided that: " You were given verbal warnings before, but there had been no improvement on your conduct, investigation of this matter is required, you are

summoned to a hearing at 4:00 p.m. today. The hearing will determine your employment status with this company."

Respondent was terminated from employment. The employer, through petitioner Escobia, gave him his two-day salary and a termination letter. Respondent subsequently filed a complaint for illegal dismissal and money claims before the NLRC

The NLRC dismissed the appeal for lack of merit. CA found out that the refusal of respondent to render overtime work was the cause of his termination. Ruled that the time afforded to the

respondent to be heard is doubtful, there was no ample opportunity for him to explain his side and adduce evidence.

Issue: 1.w/n the tardiness are condoned

2. W/n there was insubordination or willful disobedience

3. W/n respondent was afforded due process

Held:

1. No, Respondents tardiness cannot be considered condoned by petitioners

The fact that the infractions of respondent have not been immediately subjected to sanctions

cannot be deemed a waiver of the company to enforce company rules. A waiver is a voluntary and intentional relinquishment or abandonment of a known legal right or privilege. It has been ruled that a waiver to be valid and effective must be couched in clear and unequivocal terms

which leave no doubt as to the intention of a party to give up a right or benefit which legally pertains to him.Hence, the management prerogative to discipline employees and impose

punishment is a legal right which cannot, as a general rule, be impliedly waived.n the case at bar, respondent did not adduce any evidence to show waiver or condonation on the part of petitioners. Thus the finding of the CA that petitioners cannot use the previous absences and tardiness

because respondent was not subjected to any penalty is bereft of legal basis.

Respondents excuse that he was not feeling well that day is unbelievable and obviously an afterthought. He failed to present any evidence other than his own assertion that he was sick. Also, if it was true that he was then not feeling well, he would have taken the day off, or had

gone home earlier, on the contrary, he stayed and continued to work all day, and even tried to go to work the next day, thus belying his excuse, which is, at most, a self-serving statement.

2. Yes, there was Insubordination or willful disobedience

After a re-examination of the facts, we rule that respondent unjustifiably refused to render overtime work despite a valid order to do so. The totality of his offenses against petitioner R.B.

Michael Press shows that he was a difficult employee. His refusal to render overtime work was the final straw that broke the camels back, and, with his gross and habitual tardiness and absences, would merit dismissal from service.

3. No, Due process: twin notice and hearing requirement, not satisfied.

Under the twin notice requirement, the employees must be given two (2) notices before his employment could be terminated: (1) a first notice to apprise the employees of their fault, and (2)

a second notice to communicate to the employees that their employment is being terminated.

Not to be taken lightly of course is the hearing or opportunity for the employee to defend himself personally or by counsel of his choice.

A scrutiny of the disciplinary process undertaken by petitioners leads us to conclude that they did not conform to the due process requirements, termination shows that the termination process

was a mere simulationthe required notices were given, a hearing was even scheduled and held, but respondent was not really given a real opportunity to defend himself; and it seems that petitioners had already decided to dismiss respondent from service, even before the first notice

had been given, it is plain to see that there was merely a general description of the claimed offenses of respondent. The hearing was immediately set in the afternoon of February 23,

1999the day respondent received the first notice. Therefore, he was not given any opportunity at all to consult a union official or lawyer, and, worse, to prepare for his defense. He was not given any chance at all to adduce evidence in his defense. At most, he was asked if he did not

agree to render overtime work on February 22, 1999 and if he was late for work for 197 days. He was never given any real opportunity to justify his inability to perform work on those days.

The letter did not specify the details surrounding the offenses and the specific company rule or Labor Code provision upon which the dismissal was grounded.

We conclude that termination of respondent was railroaded in serious breach of his right to due process. And as a consequence of the violation of his statutory right to due process and following Agabon, petitioners are liable jointly and solidarily to pay nominal damages to the

respondent in the amount of PhP 30,000.

15. SSS vs. CA

GR NO. 85279

July 28, 1989

Facts:

On June 11, 1987, the SSS filed with the Regional Trial Court of Quezon City a complaint for damages with a prayer for a writ of preliminary injunction against petitioners, alleging that on June 9, 1987, the officers and members of SSSEA staged an illegal strike and baricaded the

entrances to the SSS Building, preventing non-striking employees from reporting for work and SSS members from transacting business with the SSS; that the strike was reported to the Public

Sector Labor - Management Council, which ordered the strikers to return to work; that the strikers refused to return to work; and that the SSS suffered damages as a result of the strike. It appears that the SSSEA went on strike after the SSS failed to act on the union's demands, which

included: implementation of the provisions of the old SSS-SSSEA collective bargaining agreement (CBA) on check-off of union dues; payment of accrued overtime pay, night

differential pay and holiday pay; conversion of temporary or contractual employees with six (6) months or more of service into regular and permanent employees and their entitlement to the same salaries, allowances and benefits given to other regular employees of the SSS; and payment

of the children's allowance of P30.00, and after the SSS deducted certain amounts from the salaries of the employees and allegedly committed acts of discrimination and unfair labor

practices.

The position of the petitioners is that the Regional Trial Court had no jurisdiction to hear the case

initiated by the SSS and to issue the restraining order and the writ of preliminary injunction, as jurisdiction lay with the Department of Labor and Employment or the National Labor Relations

Commission, since the case involves a labor dispute. On the other hand, the SSS advances the contrary view, on the ground that the employees of the SSS are covered by civil service laws and rules and regulations, not the Labor Code, therefore they do not have the right to strike. Since

neither the DOLE nor the NLRC has jurisdiction over the dispute, the Regional Trial Court may enjoin the employees from striking.

Issue/s: Do employees covered by the Civil Service have the right to strike? Does the court have jurisdiction?

Ruling: On the right to strike of government workers, No. The Constitution provides guarantee among workers with the right to organize and conduct peaceful concerted activities. On the other

hand, EO 180 provides that the Civil Service law and rules governing concerted activities in government service shall be observed subject to any legislation that may be enacted by Congress.

Referring to Memo Circular No.6, s. 1987 of the CSC which states that prior to the enactment by Congress of applicable laws concerning strike by government employees, enjoins under pain of administrative sanctions, all government officials and employees from staging a strike,

demonstrations, mass leaves, walk-outs and other forms of mass action which will result in temporary stoppage or disruption of public service, the court ruled that in the absence of any

legislation allowing government employees to strike, they are therefore prohibited from doing so.

On the question of jurisdiction, yes. The RTC, in the exercise of its general jurisdiction under BP 129, has jurisdiction over petitioner's claim for damages and for the issuance of a writ of

injunction to stop the strike, since the Labor Code do not apply to government employees.

16. SHELL COMPANY vs NATIONAL LABOR UNION

FACTS:

Petitioner Shell Company requires some of its workers to work at night due to the need of

services during the night as planes from abroad often land and detach at night and is thus necessary to supply fuel and lubricants. Respondent National Labor Union asked for additional compensation for the workers who work at night amounting to additional 50% of the workers

regular wages. The Court of Industrial Relations granted such additional wages. Hence, this petition.

PETITIONERS CONTENTIONS:

Petitioner argues that the CIR has no power or authority to order for an additional compensation

for workers who work at night because there is no legal provision which empowers said court to do so. Also, petitioner argued that night work is not among the cases provided in Act No 444

where compulsory additional compensation should be paid for overtime work.

ISSUE:

Whether or not the petitioners workers who work at night are entitled for additional compensation

HELD:

Yes. The SC held that Act No 444 is not applicable in the case at bar because it refers only to the

maximum working day allowed in industrial establishments (8 hour a day). Act No 444 only provides for cases where payment of additional compensation is necessary such as: (1) for

overtime or work in excess of regular hours during any disaster or accident; (2) for work on Sundays and holidays; (3) in cases of emergency. Clearly, the work required by Shell is not covered by the Act No 444 because the work subject of this case is not overtime but a full day of

work for 8 hours, done at night or in night shift.

Furthermore, the case against nightwork may be said to rest upon several grounds. Undoubtedly,

night work not only in the long run affects the health of the workers, but this deprives certain things that make relativelt pleasant life like leisure or spiritual and cultural expansion. It can be

argued that workers can rest during the day after having worked at night. But can the repose by day produce to the human body the same complete recuperative effects which only the natural rest at night can give him? It is also said that due to our warm climate, some prefer to work at

night, thus avoiding the heat of the day. But this is true only in words but not in actual practice. We believe that since time immemorial the universal rule is that a man works at night due to

some driving necessity rather than for reasons of convenience.

17. LEPANTO CONSOLIDATED MINING V LEPANTO LOCAL STAFF UNION

FACTS;

Lepanto operated several mining claims in Mankayan, Benguet. On May 27, 1998, respondent

Lepanto Capataz Union (Union), a labor organization duly registered with DOLE, filed a petition for consent election with the Industrial Relations Division of the Cordillera Regional Office

(CAR) of DOLE, thereby proposing to represent 139 capatazes of Lepanto.

In due course, Lepanto opposed the petition, contending that the Union was in reality seeking a

certification election, not a consent election, and would be thereby competing with the Lepanto Employees Union (LEU), the current collective bargaining agent. Lepanto pointed out that the capatazes were already members of LEU, the exclusive representative of all rank-and-file

employees of its Mine Division.

ISSUE;

Whether or not Capatazes are already members of LEU.

Held

NO. The capatazes were performing functions totally different from those performed by the rank-and-file employees, and that the capatazes were supervising and instructing the miners, mackers and other rank-and-file workers under them, assessing and evaluating their

performance, making regular reports and recommending new systems and procedure of work, as well as guidelines for the discipline of employees. Hence, the capatazes differed from the rank-

and-file and could by themselves constitute a separate bargaining unit.

The bargaining unit sought to be represented by the appellee are the capataz employees of the

appellant. There is no other labor organization of capatazes within the employer unit except herein appellant. Thus, appellant is an unorganized establishment in so far as the bargaining unit

of capatazes is concerned. In accordance with the last paragraph of Section 11, Rule XI, Department Order No. 9 which provides that in a petition filed by a legitimate labor organization involving an unorganized establishment, the Med-Arbiter shall, pursuant to Article

257 of the Code, automatically order the conduct of certification election after determining that the petition has complied with all requirements under Section 1, 2 and 4 of the same rules and

that none of the grounds for dismissal thereof exists, the order for the conduct of a certification election is proper.

18.CALTEX REGULAR EMPLOYEES, et al vs. CALTEX (Phils.,) Inmc.

FACTS: Petitioner Union and Caltex entered into a Collective Bargaining Agreement. The CBA included the following provision:

the regular work week shall consist of eight (8) hours per day, seven (7) days, Monday through Sunday, during which regular rates of pay shall be paid in accordance with Annex B and work on

the employees one Day of Rest, shall be considered a special work day, during which Day of Rest rates of pay shall be paid as provided in Annex B. Daily working schedules shall be established by management in accordance with the requirements of efficient operations on the

basis of eight (8) hours per day for any five (5) days. Provided, however employees required to work in excess of forty (40) hours in a week shall be compensated in accordance with Annex B

of this Agreement.

The Annex B of the agreement includes the computations of the overtime pay, nightshift

differential, day off pay, holiday premium pay, Sunday premium pay.

Sometime in August 1986, the union called the attention of Caltex for the latters alleged violations of Annex B (non payment of ot, nsd, etc.). The industrial relations manager of Caltex informed the union that the differential would be timely implemented. However, no differential

payment was made for the work performed on the first 2.5 hours on a Saturday.

The union filed a case against Caltex for unfair labor practice. Petitioner charged Caltex

for shortchanging its employees by paying the work performed on the first 2.5 hours of Saturday (rest day daw nila) at regular rates when it should be paying at rest day rates. Caltex denied the

charge and said that Sunday was their rest day and not Saturday.

Labor Arbiter Guanio ruled in favor of the union and ruled that according to the CBA the

employees are given 2 rest days (sat and sun). On appeal by Caltex, the NLRC sets aside the decision of the labor arbiter. NLRC concluded that under the CBA, there is only 1 rest day

(Sunday).

ISSUE: WON the CBA provides 2 rest days (sat and sun) and therefore the first 2.5hours of Saturday be based on rest day rates?

HELD: NO.

NLRC is correct that the intention of the parties to the 1985 CBA was to provide the employees with only one (1) day of rest. The plain and ordinary meaning of the language of Article III is

that Caltex and the Union had agreed to pay day of rest rates for work performed on an employees one day of rest. To the Courts mind, the use of word one describing the phrase day of rest (of an employee) emphasizes the fact that the parties had agreed that only a single

day of rest shall be scheduled and shall be provided to the employee.

In the present case, under the 1985 CBA, hours worked on a Saturday do not, by that fact alone, necessarily constitute overtime work compensable at premium rates of pay, contrary to petitioners assertion. These are normal or regular work hours, compensable at regular rates of

pay, as provided in the 1985 CBA; under that CBA, Saturday is not a rest day or a day off. It is only when an employee has been required on a Saturday to render work in excess of the 40 hours

which constitute the regular work week that such employee may be considered as performing overtime work on that Saturday. We consider that the statutory prohibition against offsetting

undertime one day with overtime another day has no application in the case at bar.

In recapitulation, the parties 1985 CBA stipulated that employees at the Manila office, as well

as those similarly situated at the Legazpi and Marinduque Bulk Depots, shall be provided only one day of rest; Sunday and not Saturday, was designated as the day of rest. Work performed on

a Saturday is accordingly to be paid at regular rates of pay, as a rule, unless the employee shall have been required to render work in excess of 40 hours in a calendar week. The employee must, however, have in fact rendered work in excess of 40 hours before hours subsequently

worked become payable at premium rates. We conclude that the NLRC correctly set aside the palpable error committed by Labor Arbiter Guanio, when the latter imposed upon one of the

parties to the 1985 CBA, an obligation which it has never assumed.

19. MANTRADE/FMMC DIVISION EMPLOYEES AND WORKERS UNION vs.

BACUNGAN

G.R. No. L-48437. September 30, 1986

FERIA, J.

Facts:

Petition for Certiorari and Mandamus filed by petitioner against arbitrator Froilan M. Bacungan and Mantrade Development Corporation arising from the decision of respondent arbitrator that

Mantrade Development Corporation is not under legal obligation to pay holiday pay to its monthly paid employees who are uniformly paid by the month, irrespective of the number of working days therein, with a salary of not less than the statutory or established minimum wage.

In denying petitioner's claim for holiday pay, respondent arbitrator stated that although monthly salaried employees are not among those excluded from receiving such additional pay under

Article 94 of the Labor Code of the Philippines, they appear to be excluded under Sec. 2, Rule IV, Book III of the Rules and Regulations implementing said provision which provides that employees who are uniformly paid by the month, irrespective of the number of working days

therein, with a salary of not less than the statutory or established minimum wage shall be presumed to be paid for all days in the month whether worked or not. Respondent arbitrator

further opined that respondent corporation does not have any legal obligation to grant its monthly salaried employees holiday pay, unless it is argued that the pertinent section of the Rules and Regulations implementing Section 94 of the Labor Code is not in conformity with the law, and

thus, without force and effect.

Petitioner questions the validity of the pertinent section of the Rules and Regulations

Implementing the Labor Code as amended on which respondent arbitrator based his decision. On the other hand, respondent corporation raised procedural and substantive objections.

Issue:

Whether or not Sec. 2, Rule IV, Book III of the Rules and Regulations implementing Article 94 of the Labor Code is valid.

Held:

No. Section 2, Rule IV, Book III of the implementing rules issued by the then Secretary of Labor is null and void since in the guise of clarifying the Labor Code's provisions on holiday pay, they

in effect amended them by enlarging the scope of their exclusion. The coverage and scope of exclusion of the Labor Code's holiday pay provisions is spelled out under Article 82 and Article 94 provides that every worker shall be paid his regular daily wage during regular holidays,

except in retail and service establishments regularly employing less than 10 workers. From the cited provisions, it is clear that monthly paid employees are not excluded from the benefits of

holiday pay.

The questioned Sec. 2, Rule IV, Book III of the Integrated Rules adds another excluded group, namely 'employees who are uniformly paid by the month.' While the additional exclusion is only

in the form of a presumption that all monthly paid employees have already been paid holiday pay, it constitutes a taking away or a deprivation which must be in the law if it is to be valid. An

administrative interpretation which diminishes the benefits of labor more than what the statute delimits or withholds is obviously ultra vires.

The questioned decision of respondent arbitrator is SET ASIDE and respondent corporation is ordered to GRANT holiday pay to its monthly salaried employees.

20. JOSE RIZAL COLLEGE V NLRC

156 SCRA 27

FACTS: Petitioner is a non-stock, non-profit educational institution. In it exists three groups of

employees namely: personnel on monthly basis, personnel on daily basis and collegiate faculty. Personnel