ROGELIO CARAMOL, PETITIONER, VS. NATIONAL LABOR RELATIONS COMMISSION AND ATLANTIC GULF AND PACIFIC CO. OF MANILA, INC., RESPONDENTS.

The controversy as to whether petitioner is a regular or casual
employee arises from the conflicting interpretations by the parties of Art. 280
of the Labor Code, as amended. The
article provides –

“The provisions of written agreement to the contrary notwithstanding
and regardless of the oral agreement of the parties, an employment shall be
deemed to be regular where the
employee has been engaged to perform activities which are usually necessary or
desirable in the usual business or trade of the employer, except where the
employment has been fixed for a specific project or undertaking the completion
or termination of which has been determined at the time of the engagement of
the employee or where the work or service to be performed is seasonal in nature
and the employment is for the
duration of the season.

“An employment shall be deemed to be casual if it is not
covered by the preceding paragraph: Provided, That, any employee who has
rendered at least one year of service, whether such service is continuous or
broken, shall be considered a regular employee with respect to the activity in
which he is employed and his employment shall continue while such actually
exists.”

Petitioner Rogelio Caramol, a worker hired by respondent Atlantic
Gulf and Pacific Co. of Manila, Inc. (ATLANTIC GULF), on a
“project-to-project” basis but whose employment was renewed
forty-four (44) times by the latter, seeks the reversal of the decision of
public respondent National Labor Relations Commission (NLRC) dated 31 October
1991 in NLRC NCR 00-01-04703-88^[1] which
reversed and set aside the decision of the Labor Arbiter.

The Labor Arbiter had earlier declared respondent ATLANTIC GULF
guilty of unfair labor practice, ordered it to cease and desist from further
committing unfair labor practice against petitioner, declared illegal the
constructive dismissal of petitioner and directed respondent ATLANTIC GULF to
immediately reinstate petitioner to his former position without loss of
seniority rights and with full back wages in the amount of P68,826.94 as of 29
November 1989.^[2]

The factual findings of the Labor Arbiter show that petitioner was hired by respondent
ATLANTIC GULF on 2 June 1983 for the position of rigger. Until the occurrence of the strike on 10 May
1986, his last assignment was at respondent ATLANTIC GULF’s plant in Batangas.

Petitioner claims that because of his involvement in unionism,
particularly in actively manning the picket lines, he was among those who were
not re-admitted after the strike.

On the other hand, respondent ATLANTIC GULF contends that
petitioner was one of the several thousands of workers who were hired on a
“project-to-project” basis and whose employment was covered by Project
Employment Contract for a particular project and for a definite period of time. On 15 May 1986 private respondent dispensed
with the services of petitioner claiming as justification the completion of the
Nauru project to which petitioner was assigned and the consequent expiration of
the employment contract.

In reversing the Labor Arbiter, public respondent NLRC declared
in the dispositive portion of its questioned decision thus –

“WHEREFORE, based on the foregoing considerations, the
decision appealed from is hereby REVERSED and SET ASIDE, and finding the claim
of complainant to be without legal and factual basis.”

According to public respondent
NLRC, petitioner is a project employee falling under the exception of Art- 280
of the Labor Code, as amended, explaining that –

“x x x x As correctly asserted by respondent–company; Mr.
Caramol’s services have been fixed for a specific project shown in the
contracts of employment. The principle
of party autonomy must not be interfered with absent any showing of violation
of law, public policy and jurisprudence. ‘A contract duly entered into should be respected, since a contract is
the law between the parties’ (Pakistan International Airlines Corp. v. Ople,
G.R. No. 61594, Sept. 28, 1990).

“The exception under Article 280 of the Labor Code is
precisely designed to meet an exigency like in the case at bar x x x x

“Under the Labor Code as well as the Civil Code of the
Philippines, ‘the validity and propriety of contracts and obligations with a
fixed or definite period are recognized, and imposes no restraints on the
freedom of the parties to fix
the duration of a contract, whatever its object, be it specie, food or
services, except the general admonition against stipulations contrary to law,
morals, good custom, public order or public policy’ (Brent School, Inc. v.
Zamora, G.R. No. 48494, Feb. 5, 1990) x x x x

“Contract workers are not considered regular. Their services depend upon availability of a
project to be undertaken. Thus, it
would be unjust to retain an employee in the payroll while waiting for another
project x x x x”

Petitioner now insists that public respondent NLRC gravely abused
its discretion and committed serious errors of law and that its questioned
decision is contrary to the jurisprudential doctrine enunciated in Magante
v. NLRC^[3]
where it was held that the “project” employee therein was deemed a
regular employee considering the attendant circumstances, i.e., the employee
was assigned to perform tasks which are usually necessary or desirable in the
usual business or trade of the
employer; said assignments did not end on a project to project basis, although
the contrary was made to appear through the
signing of separate employment contracts; there were no reports of termination
submitted to the nearest public employment office every time employment was
terminated due to the completion of the project.

We grant the petition.

There is no question that stipulation on employment contract
providing for a fixed period of employment such as
“project-to-project” contract is valid provided the period was agreed
upon knowingly and voluntarily by the parties, without any force, duress or
improper pressure being brought to bear upon the employee and absent any other
circumstances vitiating his consent, or
where it satisfactorily appears that the employer and employee dealt with each
other on more or less equal terms with no moral dominance whatever being
exercised by the former over the latter.^[4]
However, where from the circumstances it is apparent that periods have been
imposed to preclude the acquisition of tenurial security by the employee, they
should be struck down as contrary to public policy, morals, good custom or
public order.

In the case before us, we find sufficiently established
circumstances showing that the supposed fixed period of employment by way of a
project-to-project contract has been imposed to preclude acquisition of
tenurial security by the petitioner. Accordingly, such arrangement must be struck down as contrary to public
policy. After a careful perusal of the
records, we sustain the findings of the Labor Arbiter that –

“x x x x The records of the case established the fact that
during the employment of complainant with the respondent company he was made to
sign a project employment contract. This practice started from the time he was hired in 1973 up to May 10,
1986 when the AG & P Workers and Employees Union staged a strike. Expressed differently this practice of the respondent insofar as the
complainant is concerned has been going on continuously for thirteen (13) long
years. This Office is of the considered
belief that the nomenclature by which he was addressed by the respondent has
already attained a regular status of employment. In addition to his length of service the documentary evidence on
record established the fact that complainant’s job is both necessary and
desirable to the business engaged in by the respondent x x x x”

Admittedly, the “project-to-project” employment of
petitioner was renewed several times, forty-four (44) project contracts^[5]
according to him. Private respondent
points to this successive employment as evidence that petitioner is a project
employee in its projects. It is asserted that being in the
construction industry, it is not unusual for private respondent and other
similar companies to hire employees or workers for a definite
period only, or whose employment is co-terminus with the completion of a
specific project as recognized by Art. 280 of the Labor Code.

However, with the successive contracts of employment where
petitioner continued to perform the same kind of work, i.e., as rigger
throughout his period of employment, it is clearly manifest that petitioner’s
tasks were usually necessary or
desirable in the usual business or trade of private respondent. There can therefore be no escape from the
conclusion that petitioner is a regular employee of private respondent ATLANTIC
GULF.

In this regard, we need only reiterate our ruling in Baguio
Country Club Corporation v. NLRC^[6] that –

“x x x x ‘The
primary standard x x x of determining a regular employment is the reasonable connection between the particular
activity performed by the employee in relation to the usual business or trade
of the employer. The test is whether
the former is usually necessary or desirable in the usual business or trade of
the employer. The connection can be determined
by considering the nature of the work performed and its relation to the scheme
of the particular business or trade in its entirety. Also, if the employee has been performing the job for at least
one year, even if the performance is not continuous or merely intermittent, the
law deems the repeated and continuing need for its performance as sufficient
evidence of the necessity if not indispensability of that activity to the
business. Hence the employment is also
considered regular, but only with respect to such activity and while such
activity exists’ (De Leon v. National Labor Relations Commission, G.R. No.
70705, August 21, 1989, 176 SCRA 615, 620-621) x x x x

“Such repeated rehiring and the continuing need for his
service are sufficient evidence of the necessity and indispensability of his
service to the petitioner’s business or trade.

“x x x x the private respondent performed the said task which
lasted for more than one year, x x x by this fact alone he is entitled by law to
be considered a regular employee.

“Owing to private respondent`s length of service with the
petitioner corporation, he became a regular employee, by operation of law, one
year after he was employed x x x x

“It is of no moment that private respondent was told when he
was hired that his employment would only be ‘on a day to day basis for a temporary period’ and may be
terminated at any time subject to the petitioner`s discretion. Precisely, the law overrides such conditions
which are prejudicial to the interest of
the worker. Evidently, the
employment contracts entered into by private respondent with the petitioner
have the purpose of circumventing the employee’s security of tenure. The Court therefore, rigorously disapproves
said contracts which demonstrate a clear attempt to exploit the employee and
deprive him of the protection sanctioned by the Labor Code.

“It is noteworthy that what determines whether a certain
employment is regular or casual is not
the will and word of the employer, to which the desperate worker often
accedes. It is the nature of the
activities performed in relation to the particular business or trade
considering all circumstances, and in some cases the length of time of its
performance and its continued existence (See De Leon v. NLRC, ibid).”

Moreover, notwithstanding its claim that petitioner was
successively employed, private respondent failed to present any report of
termination. On this point, the
pronouncement in
Magante v. NLRC^[7]
is of singular relevance to the instant case:

“Moreover, if petitioner were employed as a ‘project employee’ private respondent should have
submitted a report of termination to the nearest public employment office every
time his employment is terminated due to completion of each construction project, as required by Policy Instruction No. 20, which provides:

‘x x x Moreover,
the company is not required to
obtain a clearance from the Secretary
of Labor in connection with such termination. What is required of the company is a report to the nearest Public Employment
Office for statistical purposes’ (Italics Supplied).

“Throughout the
duration of petitioner’s employment, there should have been filed as many reports
of termination as there were construction projects actually finished if it were
true that petitioner Telesforo Maganto was only a project worker.”

We thus hold significant as to prejudice the cause of private
respondent the absence of any such
termination reports.

In ignoring or disregarding the existing jurisprudence on regular
employment, particularly the Magante
decision, by reversing the
decision of the Labor Arbiter, public respondent NLRC gravely abused its
discretion.

Respondent further claims that since the appeal was filed
twenty-nine (29) days from receipt of the NLRC decision by petitioner, the same
should be dismissed as having
been filed out of time, alluding to the penultimate paragraph of Art. 223 of
the Labor Code which states that “[t]he decision of the Commission shall be
final and executory after ten
(10) calendar days from receipt thereof by the parties.”

This is not correct. On
the contrary, the instant petition is filed pursuant to Sec. 1, Rule 65, of the
Rules of Court which may be done within a reasonable time from
receipt of the subject decision, and a period of three (3) months is considered
reasonable.^[8]
The fact that the assailed decision becomes final and executory after a ten-day
period does not preclude the adverse party from challenging it by way of an
original action for certiorari under Rule 65 of the Rules of Court. He may even further pray for the issuance of
a restraining order or a temporary injunction to prevent the immediate
execution of the assailed decision.

WHEREFORE, the petition is GRANTED. Consequently, the decision of respondent National
Labor Relations Commission dated 31 October 1991 is hereby REVERSED and SET
ASIDE. The decision of the Labor
Arbiter dated 29 November 1989 is AFFIRMED and REINSTATED.

SO ORDERED.

Cruz, (Chairman), Griño-Aquino, Davide, Jr., and Quiason, JJ., concur.

^[1]
Rollo, p. 36.

^[2]
Rollo, p. 27.

^[3]
G.R. No. 74969, 7 May 1990; 185
SCRA 21.

^[4]
Brent School, Inc. v. Zamora,
G.R. No. L-48494, 5 February
1990; 181 SCRA 702, 716.

^[5]
Reply, Rollo, pp. 105-112.

^[6]
G.R. No. 71664, 28 February 1992; 206
SCRA 643, 649-651.

^[7]
See Note 3, p. 28.

^[8]
Philec Workers’ Union v. Young,
G.R. No. 101734, 22 January 1992.