G.R. Nos. L-63550-51. January 31, 1984
RJL MARTINEZ FISHING CORPORATION AND/OR PENINSULA FISHING CORPORATION, PETITIONERS, VS. NATIONAL LABOR RELATIONS COMISSION AND ANTONIO BOTICARIO, ISIDRO FARIOLAN, FERNANDO SEVIL…
MELENCIO-HERRERA, J.:
the Decision of respondent National Labor Relations Commission (NLRC)
in Cases Nos. AB-4-11054-81 and AB-8-12354-81 entitled Antonio
Boticario, et al. vs. RJL Fishing Corporation and/or Peninsula Fishing
corporation, dated November 26, 1982, as well as the Order, dated
February 14, 1983, denying petitioners’ Manifestation and Omnibus Motion
to dismiss private respondents’ appeal. The dispositive portion of the
challenged resolution reads:
“WHEREFORE, in view of the foregoing considerations, the Decision
appealed from is hereby set aside and another one entered, directing
respondents-appellees; (1) to reinstate complainants-appellants to their
former work, without loss of seniority rights and other privileges
appertaining thereto; (2) to pay complainants-appellants full backwages
computed from the date they were dismissed up to the date they are
actually reinstated; (3) to pay complainant-appellants legal holiday
pay, emergency living allowance and 13th month pay in accordance with
law; and (4) to pay complainants-appellants who are entitled to
incentive leave pay, as herein above determined, according to law.The claims for overtime pay and premium pay for holiday and rest day are dismissed.
SO ORDERED.”[1]
This case was originally assigned to the Second division but because of
the pendency of a lower-numbered case, G.R. No. 63474, entitled RJL
Martinez Fishing Corporation vs. National Labor Relations Commission, et
al. before the First Division, involving the same petitioners and
their workers (albeit a different group and not exactly identical
issues), this case was transferred to the latter Division for proper
action and determination. G.R. No. 63474 was dismissed by the First
Division on August 17, 1983 for lack of merit.
Petitioner corporations are principally engaged in the deep-sea fishing
business. Since 1978, private respondents were employed by them as
stevedores at Navotas Fish Port for the unloading of tuna fish catch
from petitioners’ vessels and then loading them on refrigerated vans for
shipment abroad.
On March 27, 1981, private respondents Antonio Boticario, and thirty
(30) others, upon the premise that they are petitioners’ regular
employees, filed a complaint against petitioners for non-payment of
overtime pay, premium pay, legal holiday pay, emergency allowance under
P.D. Nos. 525, 1123, 1614, 1634, 1678, 1713, 1751, 13th month pay (P.D.
851), service incentive leave pay and night shift differential.[2]
Claiming that they were dismissed from employment on March 29, 1981 as a
retaliatory measure for their having filed the said complaint, private
respondents filed on April 21, 1981 another complaint against
petitioners for Illegal Dismissal and for Violation of Article 118 of
the Labor Code, as amended.[3] Upon petitioners’ motion, these two cases were consolidated and tried jointly.
In disputing any employer-employee relationship between them,
petitioners contend that private respondents are contract laborers whose
work terminated upon completion of each unloading, and that in the
absence of any boat arrivals, private respondents did not work for
petitioners but were free to work or seek employment with other fishing
boat operators.
On February 26, 1982, the Labor Arbiter upheld petitioners’ position
ruling that the latter are extra workers, who were hired to perform
specific tasks on contractual basis; that their work is intermittent
depending on the arrival of fishing vessels; that if there are no fish
to unload and load, they work for some other fishing boat operators;
that private respondent Antonio Boticario had executed an employment
contract under which he agreed to act as a labor contractor and that the
other private respondents are his men; that even assuming that private
respondents are employees of petitioners, their employer-employee
relation is co-terminous with each unloading and loading job; that in
the same manner, petitioners are not under any obligation to hire
petitioners exclusively, hence, when they were not given any job on
March 29, 1981, no dismissal was effected but that they were merely not
rehired.[4]
On April 1, 1982, private respondents received the Decision of the Labor
Arbiter dismissing their complaints. On April 19, 1982, they filed an
appeal before respondent NLRC, which took cognizance thereof.
In its Decision of November 26, 1982, the NLRC reversed the findings of
the Labor Arbiter, and resolved, as previously stated, to uphold the
existence of employer-employee relationship between the parties.
Petitioners resorted to a “Manifestation and Omnibus Motion to Dismiss
Appeal and to Vacate and/or to Declare Null and Void the Decision of
this Honorable Commission Promulgated on November 25 (should be 26),
1982” but the same was denied, hence, the instant recourse.
As prayed for, a Temporary Restraining Order to enjoin the enforcement
of the questioned decision of respondent NLRC was issued on April 20,
1983, and on August 15, 1983, the Petition was given due course by the
Second Division.
Petitioners submit the following issues for resolution:
“I Whether or not the appeal from the decision of Labor
Arbiter filed by private respondents is within the 10-day reglementary
period;“II Whether or not respondent NLRC erred in reversing the
decision of the Labor Arbiter despite the failure to furnish petitioners
with a copy of the appeal;“III Whether or not there is an employer-employee relationship between the parties;
“IV Whether or not private respondents are entitled to legal
holiday pay, emergency living allowance, thirteenth month pay and
incentive leave pay.”1. Petitioners, joined by the Solicitor General, contend that
the appeal filed by private respondents from the Decision of the Labor
Arbiter was filed out of time considering that they received copy of the
same on April 1, 1982 but that they filed their appeal only on April
19, 1982, or 18 days later. If we were to reckon the 10-day
reglementary period to appeal as calendar days, as held in the case of
Vir-jen Shipping and Marine Services, Inc. vs. NLRC, et al.[5]
, private respondents’ appeal was, indeed, out of time. However, it
was clear from Vir-jen that the calendar day basis of computation would
apply only “henceforth” or to future cases. That ruling was not
affected by this Court’s Resolution of November 18, 1983 reconsidering
its Decision of July 20, 1982. When the appeal herein was filed on
April 19, 1982, the governing proviso was found in Section 7, Rule XIII
of the Rules and Regulations Implementing the Labor Code along with NLRC
Resolution No. 1, Series of 1977, which based the computation on ‘working days’. The very face of the Notice of Decision itself[6]
indicated that the aggrieved party could appeal within 10 “working
days” from receipt of copy of the resolution appealed from. From April 1
to April 19, 1982 is exactly ten (10) working days considering the Holy
Week and the two Saturdays and Sundays that supervened in between that
period. In other words, private respondents’ appeal, having been filed
during the time that the prevailing period of appeal was ten (10)
working days and prior to the Vir-jen case promulgated on July 20, 1982,
it must be held to have been timely filed.2. Anent the failure of private respondents to furnish
petitioners with a copy of their memorandum on appeal, suffice it to
state that the same is not fatal to the appeal.[7]3. The issue of the existence of an employer-employee
relationship between the parties is actually a question of fact, and the
finding of the NLRC on this point is binding upon us, the exceptions to
the general rule being absent in this case. Besides, the continuity of
employment is not the determining factor, but rather whether the work
of the laborer is part of the regular business or occupation of the
employer.[8] We are thus in accord with the findings of respondent NLRC in this regard.
Although it may be that private respondents alternated their employment
on different vessels when they were not assigned to petitioners’ boats,
that did not affect their employee status. The evidence also
establishes that petitioners had a fleet of fishing vessels with about
65 ship captains, and as private respondents contended, when they
finished with one vessel, they were instructed to wait for the next. As
respondent NLRC had found:
We further find that the employer-employee relationship between
the parties herein is not co-terminous with each loading and unloading
job. As earlier shown, respondents are engaged in the business of
fishing. For this purpose, they have a fleet of fishing vessels. Under
this situation, respondents’ activity of catching fish is a continuous
process and could hardly be considered as seasonal in nature. So that
the activities performed by herein complainants, i.e. unloading the
catch of tuna fish from respondents’ vessels and then loading the same
to refrigerated vans, are necessary or desirable in the business of
respondents. This circumstance makes the employment of complainants a
regular one, in the sense that it does not depend on any specific
project or seasonal activity.[9]
The employment contract signed by Antonio Boticario,[10]
which described him as “labor contractor”, is not really so inasmuch
as wages continued to be paid by petitioners and he and the other
workers were uniformly paid. He was merely asked by petitioners to
recruit other workers. Besides, labor-contracting is prohibited under
Sec. 9. (b), Rule VIII, Book III – Rules and Regulations Implementing
the Labor Code as amended.[11]
Directly in point and controlling is the ruling in an analogous case,
Philippine Fishing Boat Officers and Engineers Union vs. CIR[12] , reading:
“The Court holds, therefore, that the employer-employee
relationship existed between the parties notwithstanding evidence to the
fact that petitioners Visayas and Bergado, even during the time that
they worked with respondent company alternated their employment on
different vessels when they were not assigned on the company’s vessels.
For, as was stressed in the above-quoted case of
Industrial-Commercial-Agricultural Workers Organization vs. CIR, (16
SCRA 562 (1966), ‘that during the temporary layoff the laborers are
considered free to seek other employment is natural, since the laborers
are not being paid, yet must find means of support’ and such temporary
cessation of operations ‘should not mean starvation for employees and
their families’.”4. Indeed, considering the length of time that private
respondents have worked for petitioner – since 1978 – there is
justification to conclude that they were engaged to perform activities
usually necessary or desirable in the usual business or trade of
petitioners and are, therefore, regular employees.[13] As such, they are entitled to the benefits awarded them by respondent NLRC.
WHEREFORE, the instant Petition for Certiorari, Prohibition and Mandamus is hereby dismissed and the Temporary Restraining Order heretofore issued is hereby dissolved.
Costs against petitioners.
SO ORDERED.
Teehankee (Chairman), Plana, Relova, and Gutierrez, Jr., JJ., concur.
[1] p. 96, Rollo.
[2] p. 32, ibid.
[3] p. 33, ibid.
[4] Labor Arbiter Decision, pp. 66-67, ibid.
[5] 115 SCRA 347, July 20, 1982.
[6] p. 70, Rollo.
[7] JD Magpayo Customs Brokerage Corp. vs. NLRC, et al., 118 SCRA 645 (1982).
[8] Art. 281, Labor Code, as
amended; Philippine Fishing Boat Officers and Engineer Union vs. Court
of Industrial Relations, 112 SCRA 159 (1982).
[9] NLRC Decision, p. 94, Rollo.
[10] Annex “I-3”, Petition.
[11] “Sec. 9. Labor-only contracting. –
x x x x x x x x x
(b) Labor-only contracting as defined herein is hereby prohibited
and the person acting as contractor shall be considered merely as an
agent or intermediary of the employer who shall be responsible to the
workers in the same manner and extent as if the latter were directly
employed by him.”x x x x x x x x x
[12] 112 SCRA 159 (1982).
[13] Article 281, Labor Code, as amended.