6. G.R. No.

79255 January 20, 1992

UNION OF FILIPRO EMPLOYEES (UFE), petitioner,
vs.
BENIGNO VIVAR, JR., NATIONAL LABOR RELATIONS COMMISSION and
NESTL PHILIPPINES, INC. (formerly FILIPRO, INC.), respondents.
Facts:
Filipro Inc. (now Nestle Philippines, Inc.) had excluded sales personnel from the
holiday pay award and changed the divisor in the computation of benefits from 251
to 261 days. Both Filipro and the Union of Filipro Employees submitted the case for
voluntary arbitration and appointed respondent Benigno Vivar, Jr. as voluntary
arbitrator. In his decision, Vivar directed Filipro to pay its monthly paid employees
holiday pay pursuant to Article 94 of the Code, subject only to the exclusions and
limitations specified in Article 82 and such other legal restrictions as are provided
for in the Code.
With the decision by Vivar, Filipro filed a motion for clarification seeking (1) the
limitation of the award to 3 years, (2) exclusion of its sales personnel (consisted by
salesmen, sales representatives, truck drivers, merchandisers and medical
representatives) from the award of the holiday pay, and (3) deduction from the
holiday pay award of overpayment for overtime, night differential, vacation and sick
leave benefits due to the use of 251 divisor. On the same light, the Union filed their
answer that the award should be made effective from the date of effectivity of the
Labor Code, their sales personnel are not field personnel and are therefore entitled
to holiday pay, and the use of 251 as divisor is an established employee benefit
which cannot be diminished.
Vivar issued an order declaring that the effectivity of the holiday pay award shall
retroact to November 1, 1974, the date of effectivity of the labor Code. However,
he adjudged the sales personnel are field personnel and, as such, are not entitled to
holiday pay. He likewise ruled that the divisor should be changed from 251 to 261
due to the grant of 10 days holiday pay and ordered the reimbursement of
overpayment for overtime, night differential, vacation and sick leave pay due to the
use of 251 days as divisor.
Treating the motions for partial reconsideration of the parties, Vivar forwarded the
case to the NLRC, which remanded the case to Vivar on the ground that it has no
jurisdiction to review decisions in voluntary arbitration cases. In a letter, Vivar
refused to take cognizance of the case because, according to him, he had resigned
from service already.

Ruling:

1. Whether or not Nestles sales personnel are entitled to holiday pay

Under Article 82, field personnel are not entitled to holiday pay. Said article defines
field personnel as 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.
It is undisputed that these sales personnel start their field work at 8:00 a.m. after
having reported to the office and come back to the office at 4:00 p.m. or 4:30 p.m. if
they are Makati-based. However, the Union maintains that the period between 8:00
a.m. to 4:00 or 4:30 p.m. comprises the sales personnels working hours which can
be determined with reasonable certainty.
However, the court does not agree. The law requires that the actual hours of work
in the field be reasonably ascertained. The company has no way of determining
whether or not these sales personnel, even if they report to the office before 8:00
a.m. prior to field work and come back at 4:30 p.m., really spend the hours in
between in actual field work.
Moreover, the Court fails to see how the company can monitor the number of actual
hours spend in field work by an employee through imposition of sanctions on
absenteeism.

2. Whether or not, related to the award of holiday pay, the divisor should be
changed from 251 to 261 days and whether or not the previous use of 251 as
divisor resulted in overpayment for overtime
The use of 251 days divisor by Filipro indicates that holiday pay is not yet included
in the employees salary, otherwise the divisor should have been 261.
It must be stressed that the daily rate, assuming there are no intervening salary
increases, is a constant figure for the purpose of computing overtime and night
differential pay and commutation of sick and vacation leave credits. Necessarily,
the daily rate should also be the same for computing the 10 unpaid holidays.
The respondent Arbitrators order to change the divisor from 251 to 261 days would
result in a lower daily rate which is violative of the prohibition or non-diminution of
benefits found in Article 100 of the Labor Code. To maintain the same daily rate if
the divisor is adjusted to 261 days, then the dividend, which represents the
employees annual salary, should correspondingly be increased too incorporate the
holiday pay.
Moreover, the reckoning period for the application of the holiday award is October
23, 1984.

7. G.R. No. 112574. October 8, 1998

MERCIDAR FISHING CORPORATION represented by its President DOMINGO

B. NAVAL, petitioner, vs. NATIONAL LABOR RELATIONS COMMISSION and
FERMIN AGAO, JR., respondents
FACTS:
Fermin Agao, a bodegero (or para sosy, ships quartermaster) at Mercidar
Fishing Corp., filed complaint for illegal dismissal, violation of PD 851 and
non-payment of 5-days service incentive leave; he started work there in 1988
and claims to have been constructively dismissed in 1990 when his employer
refused to give him assignments aboard the companys boats
LA ordered Agaos reinstatement with backwages and payment of 13 th month
pay and service incentive leave pay; NLRC dismissed the appeal of Mercidar
Fishing which claimed that Agao, as a field personnel was not entitled
under the LC to such service incentive leave pay
Petitioner contends that Agao abandoned his work, while the latter alleges
that after having been on one-month leave following a sickness, his employer
refused to give him further assignments after he reported for work
ISSUE:
WON fishing crew members are deemed field personnel, as defined under
Art. 82 of LC (NO)
WON Agao had been constructively dismissed (YES)
HELD/RATIO:
Art. 82 - "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 provisions of the Title

on Working Conditions & Rest Period according to par.1 of Art. 82 do not

apply, among others, to field personnel.)

Citing Union of Pilipro Employees (UFE) v. Vicar, which sought to explain the
meaning of "whose actual hours of work in the field cannot be determined
with reasonable certainty", the Court said that, in deciding whether or not
an employee's actual working hours in the field can be determined with
reasonable certainty, query must be made as to whether or not such
employee's time and performance is constantly supervised by the employer.

Here, the nature of the work necessarily means that the fishing crew stays
on board the vessel in the course of the fishing voyage. Although they
perform non-agricultural work away from petitioner's business offices, the
fact remains that throughout the duration of their work they are under the
effective control and supervision of petitioner through the vessel's patron or
master as the NLRC correctly held.

The Court also ruled that there was constructive dismissal of Agao. Medical
certificate shows his fitness to work when he presented the same to his
employer. Beside, as already established in jurisprudence, to constitute
abandonment of position, there must be concurrence of the intention to
abandon and some overt acts from which it may be inferred that the
employee concerned has no more interest in working. Here, the filing
of the complaint which asked for reinstatement plus backwages renders
inconsistent the respondents defense of abandonment.

8. G.R. No. 156367, May 16, 2005

AUTO BUS TRANSPORT SYSTEMS, INC., petitioner, vs. ANTONIO
BAUTISTA, respondent.
FACTS: Antonio Bautista has been employed by Autobus, as driver-conductor and
was paid on commission basis, seven percent (7%) of the total gross income per
travel, on a twice a month basis. One day, while Bautista was driving Autobus No.
114, he accidentally bumped the rear portion of Autobus No. 124. Bautista averred
that the accident happened because he was compelled by the management to go
back to Roxas, Isabela, although he had not slept for almost 24 hours, as he had just
arrived in Manila from Roxas, Isabela. He further alleged that he was not allowed to
work until he fully paid 30% of the cost of repair of the damaged buses and that his
pleas for reconsideration were ignored by management. After a month,

management sent him a letter of termination. Thus, he instituted a Complaint for

Illegal Dismissal with Money Claims for nonpayment of 13th month pay and service
incentive leave pay. Autobus maintained that Bautistas employment was replete
with offenses. Furthermore, Autobus avers that in the exercise of its management
prerogative, Bautista's employment was terminated only after the latter was
provided with an opportunity to explain.
The Labor Arbiter dismissed the complaint but ordered Autobus to pay his 13th
month pay from the date of his hiring to the date of his dismissal, as well as his
service incentive leave pay for all the years he had been in service. Autobus
appealed to the NLRC which deleted the award of 13 th month pay based on the
Rules and Regulations Implementing Presidential Decree No. 851, particularly Sec. 3
which exempts employers of those who are paid on purely commission, boundary,
or task basis. Records showed that Bautista, in his position paper, admitted that he
was paid on a commission basis. The award of service incentive leave pay was
maintained. Thus, Autobus sought a reconsideration which was denied by NLRC. CA
affirmed the decision of the NLRC.
ISSUE: Whether or not Bautista is entitled to service incentive leave.
HELD: The contention of Autobus that Bautista is not entitled to the grant of service
incentive leave just because he was paid on purely commission basis is misplaced.
What must be ascertained in order to resolve the issue of propriety of the grant of
service incentive leave to respondent is whether or not he is a field personnel.
Along the routes that are plied by these bus companies, there are its inspectors
assigned at strategic places who board the bus and inspect the passengers, the
punched tickets, and the conductors reports. There is also the mandatory once-aweek car barn or shop day, where the bus is regularly checked as to its mechanical,
electrical, and hydraulic aspects, whether or not there are problems thereon as
reported by the driver and/or conductor. They too, must be at a specific place at a
specified time, as they generally observe prompt departure and arrival from their
point of origin to their point of destination. In each and every depot, there is always
the Dispatcher whose function is precisely to see to it that the bus and its crew
leave the premises at specific times and arrive at the estimated proper time.
These, are present in the case at bar. The driver, the complainant herein, was
therefore under constant supervision while in the performance of this work. He
cannot be considered a field personnel.
Therefore, Bautista is not a field personnel but a regular employee who performs
tasks usually necessary and desirable to the usual trade of business of Autobus.
Accordingly, Bautista is entitled to the grant of service incentive leave.
9. G.R. No. 162813

February 12, 2007

FAR EAST AGRICULTURAL SUPPLY, INC. and/or ALEXANDER UY, Petitioners,

vs.
JIMMY LEBATIQUE and THE HONORABLE COURT OF APPEALS, Respondents.
Doctrine: In cases of illegal dismissal, the burden is on the employer to prove that
the termination was for a valid cause. In this case, petitioners failed to discharge
such burden. Petitioners aver that Lebatique was merely suspended for one day but
he abandoned his work thereafter. To constitute abandonment as a just cause for
dismissal, there must be: (a) absence without justifiable reason; and (b) a clear
intention, as manifested by some overt act, to sever the employer-employee
relationship.
The definition of a "field personnel" is not merely concerned with the location where
the employee regularly performs his duties but also with the fact that the
employees performance is unsupervised by the employer. It was held that field
personnel are those who regularly perform their duties away from the principal
place of business of the employer and whose actual hours of work in the field
cannot be determined with reasonable certainty. Thus, in order to determine
whether an employee is a field employee, it is also necessary to ascertain if actual
hours of work in the field can be determined with reasonable certainty by the
employer. In so doing, an inquiry must be made as to whether or not the
employees time and performance are constantly supervised by the employer.
Facts:
Petitioner Far East Agricultural Supply, Inc. (Far East) hired on March 4, 1996 private
respondent Jimmy Lebatique as truck driver. He delivered animal feeds to the
companys clients
On January 24, 2000, Lebatique complained of nonpayment of overtime work
particularly when he was required to make a second delivery in Novaliches, Quezon
City. That same day, Manuel Uy, brother of Far Easts General Manager and
petitioner Alexander Uy, suspended Lebatique apparently for illegal use of company
vehicle. Even so, Lebatique reported for work the next day but he was prohibited
from entering the company premises.
Lebatique sought the assistance of the Department of Labor and Employment
(DOLE). According to Lebatique, two days later, he received a telegram from
petitioners requiring him to report for work. When he did the next day, January 29,
2000, Alexander asked him why he was claiming overtime pay. Lebatique explained
that he had never been paid for overtime work since he started working for the
company. He also told Alexander that Manuel had fired him. After talking to Manuel,
Alexander terminated Lebatique and told him to look for another job.
Lebatique filed a complaint for illegal dismissal and nonpayment of overtime pay.
The Labor Arbiter found that Lebatique was illegally dismissed, and ordered his

reinstatement and the payment of his full back wages, 13th month pay, service
incentive leave pay, and overtime pay. The NLRCreversed. The CA reversed again,
reinstating the decision of the LA.
Petitioners contend that, (1) Lebatique was not dismissed from service but merely
suspended for a day due to violation of company rules; (2) Lebatique was not barred
from entering the company premises since he never reported back to work; and (3)
Lebatique is estopped from claiming that he was illegally dismissed since his
complaint before the DOLE was only on the nonpayment of his overtime pay.
Also, petitioners maintain that Lebatique, as a driver, is not entitled to overtime pay
since he is a field personnel whose time outside the company premises cannot be
determined with reasonable certainty. According to petitioners, the drivers do not
observe regular working hours unlike the other office employees.
Lebatique for his part insists that he was illegally dismissed and was not merely
suspended. He argues that he neither refused to work nor abandoned his job. He
further contends that abandonment of work is inconsistent with the filing of a
complaint for illegal dismissal. He also claims that he is not a field personnel, thus,
he is entitled to overtime pay and service incentive leave pay.
Issues:
- Whether or not Lebatique was illegally dismissed
- Whether or not Lebatique was a field personnel, not entitled to overtime pay
Held:
(1) Illegally Dismissed
It is well settled that in cases of illegal dismissal, the burden is on the employer to
prove that the termination was for a valid cause. In this case, petitioners failed to
discharge such burden. Petitioners aver that Lebatique was merely suspended for
one day but he abandoned his work thereafter. To constitute abandonment as a just
cause for dismissal, there must be: (a) absence without justifiable reason; and (b) a
clear intention, as manifested by some overt act, to sever the employer-employee
relationship.
The records show that petitioners failed to prove that Lebatique abandoned his job.
Nor was there a showing of a clear intention on the part of Lebatique to sever the
employer-employee relationship. When Lebatique was verbally told by Alexander
Uy, the companys General Manager, to look for another job, Lebatique was in effect
dismissed. Even assuming earlier he was merely suspended for illegal use of
company vehicle, the records do not show that he was afforded the opportunity to
explain his side. It is clear also from the sequence of the events leading to
Lebatiques dismissal that it was Lebatiques complaint for nonpayment of his

overtime pay that provoked the management to dismiss him, on the erroneous
premise that a truck driver is a field personnel not entitled to overtime pay.
An employee who takes steps to protest his layoff cannot by any stretch of
imagination be said to have abandoned his work and the filing of the complaint is
proof enough of his desire to return to work, thus negating any suggestion of
abandonment. A contrary notion would not only be illogical but also absurd.
It is immaterial that Lebatique had filed a complaint for nonpayment of overtime
pay the day he was suspended by managements unilateral act. What matters is
that he filed the complaint for illegal dismissal on March 20, 2000, after he was told
not to report for work, and his filing was well within the prescriptive period allowed
under the law.
(2) Not a field personnel, hence, entitled to overtime pay
Art. 82 defines what a field personnel is. 1 In Auto Bus Transport Systems, Inc. v.
Bautista, this Court emphasized that the definition of a "field personnel" is not
merely concerned with the location where the employee regularly performs his
duties but also with the fact that the employees performance is unsupervised by
the employer. It was held that field personnel are those who regularly perform their
duties away from the principal place of business of the employer and whose actual
hours of work in the field cannot be determined with reasonable certainty. Thus, in
order to determine whether an employee is a field employee, it is also necessary to
ascertain if actual hours of work in the field can be determined with reasonable
certainty by the employer. In so doing, an inquiry must be made as to whether or
not the employees time and performance are constantly supervised by the
employer.
As correctly found by the Court of Appeals, Lebatique is not a field personnel as
defined above for the following reasons: (1) company drivers, including Lebatique,

1 ART. 82. Coverage. - The provisions of this title [Working Conditions and Rest Periods] shall apply to employees
in all establishments and undertakings whether for profit or not, but not to government employees, managerial
employees, field personnel, members of the family of the employer who are dependent on him for support,
domestic helpers, persons in the personal service of another, and workers who are paid by results as determined by
the Secretary of Labor in appropriate regulations.
xxxx

"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.

are directed to deliver the goods at a specified time and place; (2) they are not
given the discretion to solicit, select and contact prospective clients; and (3) Far
East issued a directive that company drivers should stay at the clients premises
during truck-ban hours which is from 5:00 to 9:00 a.m. and 5:00 to 9:00 p.m. Even
petitioners admit that the drivers can report early in the morning, to make their
deliveries, or in the afternoon, depending on the production of animal
feeds. Drivers, like Lebatique, are under the control and supervision of management
officers. Lebatique, therefore, is a regular employee whose tasks are usually
necessary and desirable to the usual trade and business of the company.
All money claims arising from an employer-employee relationship shall be filed
within three years from the time the cause of action accrued; otherwise, they shall
be forever barred. Lebatique timely filed his claim for service incentive leave pay,
considering that in this situation, the prescriptive period commences at the time he
was terminated. On the other hand, his claim regarding nonpayment of overtime
pay since he was hired in March 1996 is a different matter. In the case of overtime
pay, he can only demand for the overtime pay withheld for the period within three
years preceding the filing of the complaint on March 20, 2000. However the time
records presented were insufficient to properly compute his overtime pay.
10. G.R. No. 130693

March 4, 2004

MINDANAO STEEL CORPORATION, petitioner,

vs.
MINSTEEL FREE WORKERS ORGANIZATION (MINFREWO-NFL) CAGAYAN DE
ORO, respondent.
FACTS
Mindanao Steel Corporation and Minsteel Free Workers Organization
MINFREWO-NFL Cagayan de Oro City (Minsteel) executed a CBA (collective
bargaining agreement) providing for an increase of P20.00 in the workers
daily wage.
Prompted by the fuel price increase, the Regional Tripartite Wages and
Productivity Board (RTWPB) of Region X, Northern Mindanao, Cagayan de Oro
City issued an Interim Wage Order granting an ECOLA/temporary allowance
for 3 months pending the approval of the wage increase being petitioned by
the workers. Mindanao refused to implement the Interim Wage Order,
prompting Minsteel to file with the National Mediation and Conciliation Board
(NCMB) a complaint for payment of ECOLA against the former. Then the
parties agreed to submit the case for voluntary arbitration.
The Voluntary Arbitrator rendered a decision ordering Mindanao to pay
Minsteels members and other workers their ECOLA. Mindanao then filed a
motion for reconsideration which was denied. Mindanao filed a petitioner for
certiorari with the CA. CA affirmed the decision of the Arbitrator. Hence, this
petition for review on certiorari.

Mindanao contends that it is exempt from paying the ECOLA because

pursuant to the CBA, it already granted a wage increase of P20.00 a day.
Likewise, Mindanao claims it is entitled to creditable benefits on the basis of
Section 7 of Interim Wage Order No. RX-02 which provides:Wage
increases, rice allowance (in kind or cash), and other allowances granted
by employers to their workers because of, or in anticipation of the fuel
price hikes are creditable, provided that if the amount is less than that
prescribed in this Interim Wage Order, the employer shall give the
difference. Along the same line, Mindanao maintains that under Section 5 its
grant of wage increase to its workers pursuant to the CBA is considered
compliance with the Order, thus: Section 5. Creditable Benefits - Any wage
increases or adjustments granted between November 22, 1990 and
January 06, 1991 shall be considered as compliance with the Order
provided that if the amount is less than that prescribed, the employer shall
pay the difference.

ISSUE
WON Mindanao is exempt from paying the ECOLA in light of the CBA entered into by
the parties.
HELD
NO.
Pertinent is Section 3, Article VII of the CBA which provides: It is hereby agreed that
these salary increases shall be exclusive of any wage increase that may be
provided by law as a result of any economic change.
The above provision is clear that the salary increases, such as the P20.00 provided
under the CBA, shall not include any wage increase that may be provided by law as
a result of any economic change. Hence, aside from the P20.00 CBA wage increase,
Minsteels members are also entitled to the ECOLA under the Interim Wage Order.
In Mactan Workers Union vs. Aboitiz, it was held that the terms and conditions
of a collective bargaining contract constitute the law between the parties.
Those who are entitled to its benefits can invoke its provisions. In the event
that an obligation therein imposed is not fulfilled, the aggrieved party has the right
to go to court for redress.
Finally, the P20.00 daily wage increase granted by Mindanao to its employees under
the CBA cannot be considered as creditable benefit or compliance with the
Interim Wage Order because such was intended as a CBA or negotiated wage
increase and not because of, or in anticipation of the fuel price hikes on
December 5, 1990 x x x.
Dispositive Petition is DENIED. The assailed Decision dated May 30, 1997 and
Resolution dated August 22, 1997 rendered by the CA in are AFFIRMED.