RICARDO FERNANDEZ, PETITIONER, VS. NATIONAL LABOR RELATIONS COMMISSION AND D.M. CONSUNJI, INC., RESPONDENTS.

Forming the crux of the matter in this petition for certiorari
is the question of whether or not the National Labor Relations Commission acted
with grave abuse of discretion in reversing the Labor Arbiter’s decision by
dismissing the complaints for illegal dismissal, one of which is petitioner’s,
on the finding that they were project employees.

Petitioner was hired as a laborer at the D.M. Consunji, Inc., a
construction firm, on November 5, 1974. He became a skilled welder and worked for private respondent until March
23, 1986 when his employment was terminated on the ground that the project
petitioner had been assigned to was already completed and there was no more
work for him to do.

Skeptic of private respondent’s reason, petitioner brought his
plight before the Labor Arbiter who consolidated the same with three (3) other
separate complaints for illegal dismissal and various money claims against
private respondent. After filing their
respective position papers and other documents pertinent to their
causes/defenses, the parties agreed to submit the case for decision based on
record.

On May 12, 1988, Labor Arbiter Fernando V. Cinco rendered a
decision, finding that complainants worked continuously in various projects
ranging from five (5) to twenty (20) years and belonged to a work pool, the
dispositive portion of which states as follows:

“WHEREFORE, premises considered, the terminations by
respondent of herein complainants are hereby declared illegal. Consequently, respondent is ordered to
reinstate the complainants, who have not yet reached the retirement age to
their former positions plus backwages of one (1) year.

“Anent complainants who have already reached the retirement
age of sixty (60) years as of the date of this decision, respondent is thereby
ordered to pay said complainants their retirement/separation benefits
equivalent to one half (1/2) month salary for every year of service, a fraction
of at least six (6) months being considered as one (I) whole year.

“Moreover, respondent is ordered to pay all complainants their
service incentive leave for the past three (3) years; and to pay complainants Ricardo Fernandez, Gaudencio Merhan
and Rolando Serona their 13th month pay likewise for the past three (3) years.

The complaints of Amador Borromeo, Jesus Espiritu and Ramon
Celestial are hereby dismissed in view of their receipt of Separation pay and
their execution of quitclaims in favor of herein respondent.

“The other claims are likewise dismissed for lack of merit.

“SO ORDERED.

“Metro Manila, Philippines. 12 May 1988.”^[1]

Private respondent questioned on appeal the aforesaid decision of
the Labor Arbiter on the ground that the complainants were all project
employees who were hired on a project-to-project basis, depending on the
availability of projects that the former was able to close with its
clients. Respondent pointed to the gaps
in complainants’ respective employment histories to show that they were indeed
hired on an “off-and-on” basis.

In view of the lack of evidence on record to prove the continuous
employment of complainants-appellees, and that on the contrary, what was proven
was the intermittent nature of their work as shown by the different project
contracts, the respondent Commission concluded that complainants-appellees were
project employees. The dispositive
portion of the decision dated September 29, 1989 of respondent Commission
reads:

“WHEREFORE, the decision of the Labor Arbiter is hereby set
aside and a new one entered dismissing the complaints filed by
complainants-appellees for lack of merit.”^[2]

From said decision, the complainants-appellees interposed a
motion for reconsideration which was denied for lack of merit on July 19,
1991. Respondent Commission affirmed
its finding that complainants-appellees were project employees. As such, the nature of their employment did
not change by the number of
projects in which they have rendered service. Respondent Commission also noted that the motion for reconsideration was
filed only on January 29, 1990 which was beyond the ten- day reglementary
period from date of receipt of the decision on November 13, 1989.

Without any mention of the denial of said motion for
reconsideration, petitioner alone comes before this Court on a petition filed
on July 21, 1992 and assails the decision dated September 29, 1989 of
respondent Commission contending that it is more in keeping with the intent and
spirit of the law to consider him and the thirteen (13) other complainants in the
consolidated cases as regular employees.

At the outset, it is obvious that the petition was not filed
within a reasonable time from receipt of the questioned decision on November
13, 1989 as the petition was filed only on July 21, 1992. Neither does the filing of the petition
appear to be reasonable from the date of receipt of the denial of the motion
for reconsideration on August 2, 1991. Reckoned from this later date, petitioner waited for almost one year before
he availed of this extraordinary remedy of certiorari. We have consistently stated that “the
yardstick to measure the timeliness of a petition for certiorari is the reasonableness
of the duration of time that had expired from the commission of the acts
complained of up to the institution of the proceedings to annul the same.”^[3]
Without doubt, petitioner’s negligence or indifference for such a long period
of time has in the meantime rendered the questioned decision final and no
longer assailable.

Even if we were to dispense with the requirement that the
petition should be filed within a reasonable time, the petition would still
have to be dismissed on the merits. Private respondent presented material documents showing that petitioner
was hired as a project employee with the specific dates of hiring, the duration
of hiring, the dates of his lay-offs, including the lay-off reports and the
termination reports submitted to the then Ministry of Labor and
Employment. Such data covered the
period from November 5, 1974 to March 23, 1986.

Inasmuch as the documentary evidence clearly showed gaps of a
month or months between the hiring of petitioner in the numerous projects
wherein he was assigned, the ineluctable conclusion is that petitioner has not
continuously worked with private respondent but only intermittently as he was
hired solely for specific projects. As
such, he is governed by Policy Instruction No. 20, the pertinent portions of
which read as follows:

“Generally, there are two types of employees in the
construction industry, namely 1) Project Employees and 2) Non-project
Employees.

“Project employees are those employed in connection with a
particular construction project. Non-project employees are those employed by a construction company
without reference to a 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.”

Petitioner cites Article 280 of the Labor Code as legal basis for
the decision of the Labor Arbiter in his favor. The text of Article 280 states as follows:

“Article 280. Regular
and Casual Employment. The provisions
of written agreement to the contrary notwithstanding and regardless of the oral
agreement of the parties, an employment shall be deemed to be regular where the
employee has been engaged to perform activities which are usually necessary or
desirable in the usual business or trade of the employer, except where the
employment has been fixed for a specific project or undertaking the completion
or termination of which has been determined at the time of the engagement of
the employee or where the work or services to be performed is seasonal in
nature and the employment is for the duration of the season.

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

Petitioner claims that the above-quoted proviso in Article 280 of
the Labor Code supports his claim that he should be regarded as a regular
employee.

We disagree. The proviso
in the second paragraph of Article 280 of the Labor Code has recently been
explained in Mercado v. NLRC,^[4] where
it was held that said proviso deems as regular employees only those
“casual” employees who have rendered at least one year of service
regardless of the fact that such service may be continuous or broken. It is not applicable to “project”
employees, who are specifically excepted therefrom. Thus, the Court therein said:

“The general rule is that the office of a proviso is to
qualify or modify only the phrase immediately preceding it or restrain or limit
the generality of the clause that it immediately follows. (Statutory Construction by Ruben Agpalo,
1986 ed., p. 173). Thus, it has been
held that a proviso is to be construed with reference to the immediately
preceding part of the provision to which it is attached, and not to the statute
itself or to other sections thereof. (Chinese Flour Importers Association v. Price Stabilization Board, 89
Phil. 469 (1951); Arenas v. City of San Carlos, G.R. No. 24024, April 5, 1978,
82 SCRA 318 (1978). The only exception
to the rule is where the clear legislative intent is to restrain or qualify not
only the phrase immediately preceding it (the proviso) but also earlier
provisions of the statute or even the statute itself as a whole. (Commissioner of Internal Revenue v.
Filipinas Compania de Seguros, 107 Phil. 1055 (1960)”

Indeed, a careful reading of the proviso readily discloses that
the same relates to employment where the employee is engaged to perform
activities that are usually necessary or desirable in the usual business or
trade of the employer but hastens to qualify that project employment is
specifically exempted therefrom.

Finally, petitioner relies on Policy Instruction No. 20 which was
issued by then Secretary Blas F. Ople to stabilize employer-employee relations
in the construction industry to support his contention that workers in the
construction industry may now be considered regular employees after their long
years of service with private respondent. The pertinent provision of Policy Instruction No. 20 reads:

“Members of a work pool from which a construction company draws
its project employees, if considered employees of the construction company
while in the work pool, are non-project employees or employees for an
indefinite period. If they are employed
in a particular project, the completion of the project or of any phase thereof
will not mean severance of employer-employee relationship.”

Respondent Commission correctly observed in its decision that
complainants, one of whom is petitioner, failed to consider the requirement in
Policy Instruction No. 20 that to qualify as member of a work pool, the worker
must still be considered an employee of the construction company while in the
work pool. In other words, there must
be proof to the effect that petitioner was under an obligation to be always
available on call of private respondent and that he was not free to offer his
services to other employers. Unfortunately, petitioner miserably failed to introduce any evidence of
such nature during the times when there were no projects.

Noteworthy in this case is the fact that herein private
respondent’s lay-off reports and the termination reports were duly submitted to
the then Ministry of Labor and Employment everytime a project was completed in
accordance with Policy Instruction No. 20, which provides:

“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 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.”

The presence of this factor makes this case different from the
cases decided by the Court where the employees were deemed regular
employees. The cases of Ochoco v.
National Labor Relations Commission,^[5]
Philippine National Construction Corporation v. National Labor Relations
Commission,^[6]
Magante v. National Labor Relations Commission,^[7] and Philippine
National Construction Corporation v. National Labor Relations
Commission, et al.,^[8] uniformly
held that the failure of the employer to report to the nearest employment
office the termination of workers everytime a project is completed proves that
the employees are not project employees. Contrariwise, the faithful and regular effort of private
respondent in reporting every completion of its project and submitting the
lay-off list of its employees proves the nature of employment of the workers
involved therein as project employees. Given this added circumstance behind petitioner’s employment, it is
clear that he does not belong to the work pool from which the private
respondent would draw workers for assignment to other projects at its
discretion.

WHEREFORE, the instant petition for certiorari is
hereby DISMISSED in view of the foregoing reasons.

SO ORDERED.

Narvasa, C.J., (Chairman), Padilla, Regalado, and Puno, JJ., concur.

^[1]
Rollo, pp. 30-31.

^[2]
Rollo, p. 20.

^[3]
Cortez v. CFI of Cadiz, 52 Phil. 214 (1928); Centenera v. Yatco,
106 Phil. 1064 (1960), Province of Misamis Occidental v. Catolico, G.R.
No. 24397, 23 SCRA 1295 (1968); Toledo v. Pardo, G.R. No. 56761, 118
SCRA 566 (1982); San Juan v. Cuento, G.R. No. L-45063, 160 SCRA 277
(1988); Allied Leasing & Finance Corporation v. Court of Appeals,
G.R. No. 91988, 197 SCRA 71 (1991).

^[4]
G.R. No. 79869, 201 SCRA 332 (1991).

^[5]
G.R. No. 56363, 120 SCRA 774 (1983);

^[6]
G.R. No. 85323, 174 SCRA 191 (1989);

^[7]
G.R. No. 74969, 188 SCRA 21 (1990);

^[8]
G.R. No. 95816, 215 SCRA 204 (1992).