UNION OF SUAL POWER PLANT EMPLOYEES (USPPE),

REY J. BUAL AND ERNESTO G. CARDONA, SR.,

petitioners, vs. TEAM SUAL CORPORATION, respondent
FACTS

Rey J. Bual (Bual) and Ernesto G. Cardona, Sr.

(Cardona), represented by petitioner Union of Sual
Power Plant Employees (USPPE), were regular
employees of respondent Team Sual Corporation
(TSC), a corporation engaged in the business of
providing electric power

scaffolders in the Maintenance Department under

Supervisor Joseleo E. Vicaldo

TSC issued its SSO-050 Station Standing Order on

On-Call and Call-Out Provisions. Section IV of its
Implementing Guidelines states, among others,
that the Company shall compensate an employee
accordingly for on-call and call-out work rendered
beyond regular work hours.

Vicaldo entered into an agreement with Bual and

Cardona
1. R. Bual and E. Cardona will alternate
monthly during call out. meaning of Call out
is that you are being called at night to
work without notifying you earlier in the
day. (Unscheduled or Emergency
Call
2. Supervisor will coordinate with transport to
fetch the scaffolder at their
residence during call-out. (Incoming and
Outgoing).
3. Inform co supervisor regarding our
agreement during call out.
4. Scaffolder on duty for call out shall activate
his cell phone 24 hours.
5. There shall be one regular scaffolder on
duty during regular time when
there is a call out at night.
6. If ever that you have a commitment or sick
and you are on assigned call
out for the month, inform supervisor and co
scaffolder regarding this
before hand. Co scaffolder shall be the duty
call out."

Bual and Cardona brought the matter of their

agreement to the USPPE claiming that they should
have been paid for their waiting time during their
duty for the call-out. They sought USPPE's assistance
to Cle a complaint against TSC for
non-compensation of on-call services for more than
one and a half years

USPPE then referred the complaint to the Grievance

Machinery claimed entitlement to
5,002 hours of overtime pay or P1,294,707.56 for
Bual and 4,636 hours of overtime pay
or P1,132,561.86 for Cardona

USPPE brought the case before the National

Conciliation and Mediation
Board where the parties agreed to submit the same
for Voluntary Arbitration

Office of the Voluntary Arbitrator

Bual and Cardona could not claim

that they were on "on-call" or on
waiting time.

did not Cnd anything

to support their claim that they were
deprived of their time to move freely and
far away
from their respective places of residence
and in their claim that they were conCned
to
the four corners of their houses waiting for,
and expecting anytime, a call for their
needed services at the Plant, which
amounted to "house conCnement or house
arrest.
o
reading of the subject agreement would
show that if the assigned
scaffolder was not available, all he had to do
was just inform his supervisor and another
would take his place
o
fact that they were required to
"turn on" their cellular phone "24-7" did not
constitute overtime work as it was merely a
means of communication in case work
would be needed to be rendered
CA: dismissed for being wrong remedy1

petitioners were unable to prove their claim

for the on-call services, there being no
evidence to support their point that they
were deprived of their free time while on
on-call.
petitioners argued that Bual and Cardona were so
restricted during the on call/call out times that they
could not perform any other work except to wait.
Thus, they submitted that the time spent waiting for
notice to work at night even without
earlier notice during the day should be compensated.
For having been rendered in excess of the eight-hour
workday, said hours should be compensable as
overtime work. S
o

ISSUE:
1. whether Bual and Cardona were considered as
"working while on call" and
entitled to on-call services
2. whether or not individual complainants became
entitled to "on-call" pay by virtue of the
Agreement they entered with Mr. Joseleo Vicaldo,
their supervisor.
HELD
1.
petitioners failed to establish their claim for their allegedly
"on-call" services. There was no showing that they were
deprived of their time to move

1 petitioners instead of availing the said remedy (a veriCed petition for review
under Rule
43 to the CA), erroneously Cled a petition for review on certiorari under Rule 45, a
remedy exclusively cognizable by this Court

freely far away from their respective place of

residence.

issue involves a question of fact. It is settled that the

Court is not a trier of facts.

individual complainants and the Union

failed to adduce evidence that would qualify them to
be considered as "working
while on call."

Company has clearly demonstrated its policy

regarding "on-call" and "call-out.

2. Complainants maintain that the Agreement modiCed

the on-call/call-out policy. We disagree
Waiting time spent by the employee shall be considered as
working time if waiting is an integral part of his work or the
employee is required or engaged by the employer to wait. 15
An employee who is required to remain on call in the
employer's premises or so close thereto that he cannot use
the time effectively and gainfully for his own purpose, shall be
considered as working while on call. 16 Here, as aptly pointed
out by respondent, even if Bual and Cardona were on call,
they were not deprived of the time to attend to their personal
pursuits; their physical presence were not required in
TSC's premises; and were not subjected to the absolute
control of TSC during the period they were on call, such that
their failure to report would justify the TSC to impose
disciplinary measures. Thus, such time cannot be considered
as compensable waiting time, notwithstanding the fact that
they were required to activate their mobile phones 24 hours
petitioners'
SUB ISSUE:
failure to follow the procedure provided for under Rule 43 of
the Rules of Court was
fatal to their cause. An appeal taken to the CA by the wrong
or inappropriate mode shall
be dismissed2
FOR REFERENCE
SSO-050 Station Standing Order on On-Call and Call-Out
Provisions, Section IV of the Implementing Guidelines thereof,
states as follows,
to wit:
Section IV. Implementing Guidelines.
On-Call
1. The Company shall compensate an employee accordingly
for OnCall work rendered beyond regular work hours.
2. Compensable hours worked depends on the actual hour
that he was

2
Citing Barra v. Civi
l Service Commission 10 (Barra), they insisted that the
demands of justice require the CA to resolve the issues before it considering that
what
was at stake was not only Bual and Cardona's positions, but their very
livelihood.Petitioners cannot successfully invoke the case of Barra, where this
Court faulted
the CA for its dismissal on the basis of technicality (failure to state the notary
public's
ofCce address). In that case, the Court applied the rule on liberality in the interest
of
substantive justice as the case appeared to be substantively meritorious and the
technical lapse was of the nature that can be complied with without doing violence
to
the mandatory provisions of the Rules.

asked to render on-call work up to the time that he's

supposed to
Cnish the job. Whether or not he is suffered to work or
permitted to
work entitles him to claim for on-call payment equivalent to
the time
that he was requested to perform On-Call job even if the job
is not
consummated.
3. Immediate superior shall sign the On-Call Advise and
Authorization
Form (Please refer to Annex A) before an On-Call Job is to be
done.
Immediate superior shall identify the nature of the job or any
other
instructions as needed and will also indicate the starting time
and
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ending time of the On-Call Job. The employee shall duly
accept the
On-Call advise by affixing his signature in the form.
4. The On-Call Advise and Authorization Form shall be
attached to the
Overtime Authorization Slip Form for proper computation of
OT,
NSD premiums or holiday premium whichever is applicable.
5. Non-accommodated rank and Cle employee will be given
temporary
accommodation while waiting for the execution of the
required job.
6. All expense borne out of the on-call job is for the account
of the
section rendering the services. Transport, accommodation,
food and
laundry of working clothes used during the on-call job are
included
as expenses of the section.
Call-Out
1. The Company shall compensate an employee accordingly
for CallOut work rendered beyond regular work hours.
2. Due to the urgency of the Call-Out job, an employee may
not punchin and punch out in the Kronos timekeeping system.
Instead, the
requisitioning Supervisor/Manager shall accomplish the CallOut
Advise and Authorization Form (Annex B) specifying the
nature of
the job to be done and the time that he actually called the
employee
to render Call-out work until the time that the work is
completed.
3. The Call-Out Advise and Authorization Form shall be
attached to the
Overtime Authorization Slip Form for proper computation of
OT,
NSD premiums or holiday premium whichever is applicable.
EcTCAD
4. An employee is compensated according to the actual
number of
hours worked. In cases where the work done is less than two
hours,
he is guaranteed call-out payment of 4 hrs