TELESFORO MAGANTE, PETITIONER, VS. NATIONAL LABOR RELATIONS COMMISSION AND CONSTRESS PHILIPPINES, INC., RESPONDENTS.

The issue in this petition for certiorari is whether public
respondent National Labor Relations Commission
committed grave abuse of discretion in
reversing and setting aside the decision of Labor Arbiter Domingo V. del
Rosario dated June 22, 1983 directing private respondent in Case No. NLRC-NCR-
8-5215-82 entitled “Telesforo Magante, complainant, vs. Constress
Philippines, Inc., respondent” to reinstate petitioner to his position
with full backwages with all the rights and benefits
granted by law.  In lieu of the aforesaid
decision, public respondent commission entered a new judgment dismissing
petitioner’s complaint for illegal dismissal on the ground that said petitioner
is a project employee whose employment terminated upon the completion of the
project to which he was assigned.^[1]

The undisputed facts of the case as culled from the records of
the case are:

Private respondent Constress
Philippines, Inc. is engaged in the concrete structural business with address at Ortigas Avenue, Pasig, Metro Manila.  Petitioner Telesforo
Magante, on the other hand, was employed by the
former as a carpenter from April 17, 1980 until his dismissal on March 6, 1982
earning three hundred pesos (P300.00), more or less, a week excluding allowance
and rendering about fourteen (14) hours of work daily from 7:00 in the morning
to 10:00 in the evening.  His work involved the making of molds (forma or
siding of cement post) for bridges, buildings, charcoal guilder, sea file, and
others.  Apparently, petitioner was never
assigned to work outside the plant of private respondent.

Every three (3) months, petitioner was made to fill up and sign
an employment contract relating to a particular phase of work in a specific
project.  Allegedly, the terms of the
contract written in English were not understood
by petitioner nor was the same explained to him.  The last hiring agreement entered into
between petitioner and private respondent was on December 7, 1981 which was to take effect on even date with an agreed compensation of
P21.36 a day.

On March 6, 1982,
private respondent posted a notice of termination on its bulletin board to take
effect the following day, March 7, 1989,
which included petitioner and other employees as among those whose services
were being terminated by private respondent. 
Petitioner was told that he cannot work anymore because he is already
old, that his contract had already expired and was not renewed being a project
employee.  The termination of petitioner
and his fellow workers was reported to the Ministry of Labor.

Consequently, petitioner filed a complaint with the then Ministry
(now Department) of Labor and
Employment for illegal dismissal.  After
the filing of the respective position papers by the parties, Labor Arbiter
Domingo del Rosario rendered a decision^[2]
on June 22, 1983 with the
following pronouncement:

“The terms of the contract that complainant is a project
worker is not the determining factor of the status of complainant or any worker
but the work performed by him and the place where he performed his
assignment.  The contract entered into by
respondent and complainant is more of a
scheme to evade its liability or obligation under the law.

WHEREFORE, respondent is directed to reinstate complainant to his
position with full backwages with all the rights and
benefits granted by law and by respondent Company.”^[3]

From the foregoing decision of the labor arbiter, private
respondent filed an appeal before the National Labor Relations Commission
premised on the ground that the termination of petitioner’s employment was
occasioned by the completion of the phase of work in the project for which he
was specifically hired and that he was duly notified thereof in compliance with
the requirements of law.

Finding merit in the appeal, public respondent held that
petitioner’s employment falls squarely within the purview of Policy Instructions
No. 20, a regulation intended for stabilizing employer-employee relations in
the construction industry which has aptly taken into consideration the unique
characteristics of respondent’s business herein, quoting the pertinent provisions 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.  x x x

“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.”^[4]

Public respondent further found that upon completion of
particular phase of work in the project for which petitioner’s services have
been hired, his termination was indubitably for cause.  With these
justifications, public respondent set aside the appealed decision of the labor
arbiter and entered a new judgment dismissing the complaint for lack of
merit.  Petitioner filed a motion for
reconsideration of the aforesaid decision but the same was denied.

Petitioner now comes before Us by way of certiorari to set
aside the aforesaid decision of public respondent promulgated on August 1, 1984
for having been issued with grave abuse of discretion.  It is asserted in the instant petition that
private respondent’s argument that petitioner was only hired for a fixed period
of time cannot escape the factual finding of the Labor Arbiter’s decision that
the contract entered into by private respondent with the petitioner is more of a scheme to evade its liability or
obligation under the law by making it appear that said petitioner is a project
to project employee.

The Solicitor-General, when required to file a Comment to the
instant petition, took the same stand as petitioner citing the case of Fegurin, et al. vs. National Labor
Relations Commission, et al.^[5]
as the basis for considering petitioner as
a regular and permanent employee who should therefore be reinstated to
his position with backwages.^[6]

In view of the Solicitor-General’s contrary stand to the decision
of public respondent National Labor Relations Commission, the latter was given
an opportunity to file its own comment to
the petition.  In the aforesaid comment,
public respondent defends its decision in line with Article 281 of the Labor
Code which provides the exception to regular and casual employment, that is,
when 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 employment.  Public
respondent contends that petitioner’s case falls within the exception and the Fegurin case relied upon by petitioner does not
stand on all fours with the present case because the complainants in said case
had lengths of service for nine (9), eight (8) and six (6) years, the shortest
being three (3) years.  In the instant case,
petitioner worked only for over a year,
his last contract lasting only a span of four (4) months.  Furthermore, Article 281 of the Labor Code is
intended for all industries
except the construction industry. 
Precisely, Policy Instruction
No. 20 was promulgated for the reason that problems of regularity of employment
in the construction industry has continued to plague it.  This policy merely implements the exception
to Article 281 of the Labor Code.^[7]

We find merit in the petition as We sustain the position of the
Solicitor-General that petitioner Telesforo Magante was a regular
employee of private respondent.

Article 281 of the Labor Code provides:

“Article 281.  Regular
and Casual Employment. – The provisions of written agreement to the contrary
notwithstanding and regardless of the oral agreements 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.”

As aptly observed by the Solicitor-General, petitioner has established
that since the very inception of his employment in 1980, he was never deployed
from project to project of private respondent but had been regularly assigned
to perform carpentry work under the supervision of a certain Bernardo Padaon who, since 1964 until his resignation on January 2,
1982 worked for private respondent as the supervisor of its Carpentry
Department.  This goes to show two
things:  that petitioner was assigned to
perform tasks which are usually necessary or desirable in the usual business or
trade of private respondent; and that said assignments did not end on a project
to project basis, although the contrary was made to appear by private
respondent through the signing of separate employment contracts allegedly for
different projects because it is indeed obvious that petitioner continued to
perform the same kind of work throughout his period of employment allegedly
considered to have been done on a project to project basis.

Although petitioner had only rendered almost two years of service,
nevertheless this should not detract from his status of being a regular
employee because as correctly stated by the labor arbiter, the determining
factor of the status of complainant-petitioner or any worker is the nature of
the work performed by the latter and the place where he performed his
assignment.

We have re-examined the case of Fegurin
vs. National Labor Relations Commission^[8]
and found that although the facts of the said case are not on all fours with the
instant petition there being a work pool to which the complaining employees
therein belonged, nonetheless, the doctrine therein may be similarly applied in
the case at bar considering that the nature of the work of petitioner herein
and in said case also involved carpentry work and there was a continuous
assignment of similar workload from project to project.

We held therein that
the employment of petitioners with the company for several years [four (4) of
whom for nine (9) years, one (1) for eight (8) years, another for six (6)
years, the shortest term being three (3) years] despite the shorter employment
periods specified in their notices of employment, performing activities usually
necessary or desirable in the usual business of the company, shows that they
are regular employees.

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 the completion of each construction project, as required by Policy Instruction No.
20.^[9]
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.” (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
Magante was only a project worker.

The foregoing considered, public respondent National Labor
Relations Commission gravely abused its discretion in closing its eyes to the
evidence on record and the factual findings of the labor arbiter in setting
aside the decision of the latter. 
Construing the employment contract signed by petitioner with private
respondent solely on its face without considering the surrounding circumstances
in this case serves to defeat the purpose for which the Labor Code and its
implementing rules were enacted.

WHEREFORE, the petition for certiorari is granted,
and the decision of the National Labor Relations Commission, dated August 1, 1984 is hereby REVERSED and
SET ASIDE and the decision of the Labor Arbiter dated June 22, 1983 is hereby AFFIRMED and REINSTATED.

SO ORDERED.

Gutierrez, Jr., Feliciano, Bidin, and Cortes, JJ., concur.

^[1]
Rollo, pp. 25-28.

^[2]
Rollo, pp. 16-18.

^[3]
Decision, Rollo, p. 18.

^[4]
Underscoring supplied, Rollo, p. 27.

^[5]
120 SCRA 910.

^[6]
Rollo, pp. 44-52.

^[7]
Rollo,  pp.
60-64.

^[8]
Supra.

^[9]
Ochoco vs. National Labor Relations
Commission, 120 SCRA 774.