Desabelle, Robee Camille E.
LLB-2
G.R. No. L-4148 July 16, 1952
MANILA TERMINAL COMPANY,
INC., petitioner,
vs.
THE COURT OF INDUSTRIAL RELATIONS
and MANILA TERMINAL RELIEF AND
MUTUAL AID ASSOCIATION, respondents
Facts:
On September 1, 1945, the Manila Terminal Company, Inc.
hereinafter to be referred as to the petitioner, undertook the
arrastre service in some of the piers in Manila's Port Area at
the request and under the control of the United States Army.
The petitioner hired some thirty men as watchmen on twelve-
hour shifts at a compensation of P3 per day for the day shift
and P6 per day for the night shift. On February 1, 1946, the
petitioner began the postwar operation of the arrastre service
at the present at the request and under the control of the
Bureau of Customs, by virtue of a contract entered into with
the Philippine Government. The watchmen of the petitioner
continued in the service with a number of substitutions and
additions, their salaries having been raised during the month
of February to P4 per day for the day shift and P6.25 per day
for the nightshift. On March 28, 1947, Dominador Jimenez, a
member of the Manila Terminal Relief and Mutual Aid
Association, sent a letter to the Department of Labor,
requesting that the matter of overtime pay be investigated, but
nothing was done by the Department. On April 29, 1947,
Victorino Magno Cruz and five other employees, also member
of the Manila Transit Mutual Aid Association, filed a 5-point
demand with the Department of Labor, including overtime
pay, but the Department again filed to do anything about the
matter. On May 27, 1947, the petitioner instituted the system
of strict eight-hour shifts. On June 19, 1947, the Manila Port
Terminal Police Association, not registered in accordance with
the provisions of Commonwealth Act No. 213, filed a petition
with the Court of Industrial Relations. On July 16, 1947, the
Manila Terminal Relief and Mutual Aid Association was
organized for the first time, having been granted certificate
No. 375 by the Department of Labor. On July 28, 1947,
Manila Terminal Relief and Mutual Aid Association filed an
amended petition with the Court of Industrial Relations
praying, among others, that the petitioner be ordered to pay its
watchmen or police force overtime pay from the
commencement of their employment. On May 9, 1949, by
virtue of Customs Administrative Order No. 81 and Executive
Order No. 228 of the President of the Philippines, the entire
police force of the petitioner was consolidated with the Manila
Harvor Police of the Customs Patrol Service, a Government
agency under the exclusive control of the Commissioner of
Customs and the Secretary of Finance The Manila Terminal
Relief and Mutual Aid Association will hereafter be referred
to as the Association.
Judge V. Jimenez Yanson of the Court of Industrial Relations
in his decision of April 1, 1950, as amended on April 18,
1950, while dismissing other demands of the Association for
lack of jurisdiction, ordered the petitioner to pay to its police
force
(a) Regular or base pay corresponding to four hours' overtime
plus 25 per cent thereof as additional overtime compensation
for the period from September 1, 1945 to May 24, 1947;
(b) Additional compensation of 25 per cent to those who
worked from 6:00 p.m. to 6:00 a.m. during the same period:
(c) Additional compensation of 50 per cent for work
performed on Sundays and legal holidays during the same
period;
(d) Additional compensation of 50 per cent for work
performed on Sundays and legal holidays from May 24, 1947
to May 9, 1949; and
(e) Additional compensation of 25 per cent for work
performed at night from May 29, 1947 to May 9, 1949.
With reference to the pay for overtime service after the
watchmen had been integrated into the Manila Harbor Police,
Judge Yanson ruled that the court has no jurisdiction because
it affects the Bureau of Customs, an instrumentality of the
Government having no independent personality and which
cannot be sued without the consent of the State. (Metran vs.
Paredes, 45. Off. Gaz., 2835.)
The petitioner find a motion for reconsideration. The
Association also filed a motion for reconsideration in so far its
other demands were dismissed. Judge Yanson, concurred in by
Judge Jose S. Bautista, promulgated on July 13, 1950, a
resolution denying both motions for reconsideration. Presiding
Judge Arsenio C. Roldan, in a separate opinion concurred in
by Judge Modesto Castillo, agreed with the decision of Judge
Yanson of April 1, 1950, as to the dismissal of other demands
of the Association, but dissented therefrom as to the granting
of overtime pay. In a separate decisive opinion, Judge Juan S.
Lanting concurred in the dismissal of other demands of the
Association. With respect to overtime compensation, Judge
Lanting ruled:
1. The decision under review should be affirmed in so far it
grants compensation for overtime on regular days (not Sunday
and legal holidays)during the period from the date of entrance
to duty to May 24, 1947, such compensation to consists of the
amount corresponding to the four hours' overtime at the
regular rate and an additional amount of 25 per cent thereof.
2. As to the compensation for work on Sundays and legal
holidays, the petitioner should pay to its watchmen the
compensation that corresponds to the overtime (in excess of 8
hours) at the regular rate only, that is, without any additional
amount, thus modifying the decision under review
accordingly.
3. The watchmen are not entitled to night differential pay for
past services, and therefore the decision should be reversed
with the respect thereto.
Issue: Whether or not the Association should be paid overtime
compensation?
Ruling: Yes, the Association should be paid overtime
compensation for services rendered more than eight hours a
day.
The Association cannot be said to have impliedly waived the
right to overtime compensation, for the obvious reason that
they could not have expressly waived it." The principle of
estoppel and the laches cannot well be invoked against the
Association. In the first place, it would be contrary to the spirit
1
Desabelle, Robee Camille E. LLB-2
of the Eight Hour Labor Law, under which as already seen, the
laborers cannot waive their right to extra compensation. In the
second place, the law principally obligates the employer to
observe it, so much so that it punishes the employer for its
violation and leaves the employee or laborer free and
blameless. In the third place, the employee or laborer is in
such a disadvantageous position as to be naturally reluctant or
even apprehensive in asserting any claim which may cause the
employer to devise a way for exercising his right to terminate
the employment.
If the principle of estoppel and laches is to be applied, it may
bring about a situation, whereby the employee or laborer, who
cannot expressly renounce their right to extra compensation
under the Eight-Hour Labor Law, may be compelled to
accomplish the same thing by mere silence or lapse of time,
thereby frustrating the purpose of law by indirection.
Moreover, the Eight-Hour Law, in providing that "any
agreement or contract between the employer and the laborer or
employee contrary to the provisions of this Act shall be null
avoid ab initio," (Commonwealth Act No. 444, sec. 6),
obviously intended said provision for the benefit of the
laborers or employees. The employer cannot, therefore, invoke
any violation of the act to exempt him from liability for extra
compensation. This conclusion is further supported by the fact
that the law makes only the employer criminally liable for any
violation. It cannot be pretended that, for the employer to
commit any violation of the Eight-Hour Labor Law, the
participation or acquiescence of the employee or laborer is
indispensable, because the latter in view of his need and desire
to live, cannot be considered as being on the same level with
the employer when it comes to the question of applying for
and accepting an employment.
It is high time that all employers were warned that the public
is interested in the strict enforcement of the Eight-Hour Labor
Law. This was designed not only to safeguard the health and
welfare of the laborer or employee, but in a way to minimize
unemployment by forcing employers, in cases where more
than 8-hour operation is necessary, to utilize different shifts of
laborers or employees working only for eight hours each.
[G.R. No.151370. December 4, 2002]
ASIA PACIFIC CHARTERING (PHILS.) INC.,
petitioner, vs. MARIA LINDA R. FAROLAN, respondent.
Facts:
Petitioner Asia Pacific Chartering (Phils) Inc. was, until 1996,
the general sales agent (GSA) of the Scandinavian Airline
System (SAS), an off-line international airline company with
license to do business in the Philippines. As GSA, petitioner
sold passenger and cargo spaces for airlines operated by SAS.
Respondent Maria Linda R. Farolan was on December 16,
1992 hired as Sales Manager of petitioner for its passenger
and cargo GSA operations for SAS, following her conformity
to a December 10, 1992 letter-offer of employment from
petitioner through its Vice President/Comptroller Catalino
Bondoc.
It is gathered that Leslie Murray, the then Sales Manager of
petitioner, talked to respondent into accepting the position
after verbally briefing her on the nature of the position.
Soon after respondent assumed her post, she participated in a
number of meetings/seminars including a Customer Service
Seminar in Bangkok, Thailand, a Regional Sales Meeting on
the technical aspects of airline commercial operations in
February 1993, and a course on the highly technical airline
computer reservations system called Amadeus, all geared
towards improving her marketing and sales skills.
In September of 1993, respondent, upon instruction of
Bondoc, submitted a report where management losses were
evident. Zozobrado thus informally took over some of
respondents marketing and sales responsibilities, albeit
respondent retained her title as Sales Manager and continued
to receive her salary as such.
By petitioners claim, Zozobrado found out that respondent did
not adopt any sales strategy nor conduct any sales meeting or
develop other sources of revenue for SAS, she having simply
let her sales staff perform their functions all by themselves; in
1994, Soren Jespersen, General Manager of SAS in
Hongkong, Southern China, Taipei and the Philippines, came
to the Philippines to assess the statistics on SAS sales
revenues and SAS was convinced that respondent was not fit
for the job of Sales Manager; and in view of the changes
introduced by Zozobrado, SAS-GSA sales operations drew
positive results.
On even date, however, petitioner sent respondent a letter of
termination on the ground of loss of confidence. Thus
spawned the filing by respondent of a complaint for illegal
dismissal against petitioner, Bondoc, Zozobrado and one
Donald Marshall (the record indicates that he had ceased to be
connected with petitioner when the case was pending before
the Labor Arbiter), with prayer for damages and attorneys
fees. In her complaint petitioner alleged that Bondoc and
Zozobrado had asked her to tender her resignation as she was
not the person whom SAS was looking for to handle the
position of Sales Manager but that she refused, hence, she
was terminated by the letter of July 18, 1994 letter.
Issue: Whether or not respondents dismissal was legal?
Whether or not Farolan is a managerial employee?
Ruling:
A statement of the requisites for a valid dismissal of an
employee is thus in order, to wit: (a) the employee must be
afforded due process, i.e., he must be given opportunity to be
heard and to defend himself; and (b) dismissal must be for a
valid cause as provided in Article 282 of the Labor Code or
any of the authorized causes under Article 283 and 284 of the
same Code.
The Court found that the manner by which complainant was
dismissed violated the basic precepts of fairness and due
process. First, without any semblance of, or written authority
whatsoever (TSN dated January 30, 1996, pp. 46 - 48),
2
Desabelle, Robee Camille E. LLB-2
respondent Zozobrado took over the functions of complainant.
Complainant claims that she has been told it was upon the will
of respondent Marshall that she be replaced. Although
respondent Zozobrado may have been merely giving pointers
and suggestions to the staff of complainant, the appearance of
authority was unpleasantly conspicuous. Later, respondent
Bondoc summoned complainant and told her to tender her
resignation or face termination. Complainant, not having been
given a justifiable ground, refused to resign. Thereafter, she
was finally terminated, without being afforded the opportunity
to be heard and to present evidence in her defense. She was
never given a written notice stating the particular acts or
omission constituting the grounds for her dismissal as required
by law.
As regards the second requisite, the rule is settled that in
termination cases, the employer bears the onus of proving that
the dismissal is for just cause failing which the dismissal is not
justified and the employee is entitled to reinstatement.
Petitioner claims that respondent failed to live up to
managements expectation in light of her failure to adopt sales
and marketing strategies to increase sales revenues of SAS,
which failure is reflective of her incompetence and
inefficiency, thus resulting to loss of revenues in 1993 and
1994.
2. It is not disputed that her job description, and the terms and
conditions of her employment, with the exception of her salary
and allowances, were never reduced to writing.
Recent decisions of this Court distinguish the treatment of
managerial employees from that of rank and file personnel
insofar as the application of the doctrine of loss of trust and
confidence is concerned.
Thus with respect to rank and file personnel, loss of trust and
confidence as ground for valid dismissal requires proof of
involvement in the alleged events in question and that mere
uncorroborated assertions and accusations by the employer
will not be sufficient. But as regards a managerial employee,
mere existence of a basis for believing that such employee has
breached the trust of his employer would suffice for his
dismissal. (Underscoring supplied)
As enunciated in Samson v. NLRC, 330 SCRA 460,
Before one may be properly considered a managerial
employee, all the following conditions must be met:
(1) Their primary duty consists of the management of the
establishment in which they are employed or of a department
or subdivision thereof;
(2) They customarily and regularly direct the work of two or
more employees therein;
(3) They have the authority to hire or fire other employees of
lower rank; or their suggestions and recommendations as to
the hiring and firing and as to the promotion or any other
change of status of other employees are given particular
weight. (Section 2(b), Rule I, Book III of the Omnibus Rules
Implementing the Labor Code, emphasis supplied).
By respondents claim, her function, as verbally explained to
her by Murray, dealt mainly with servicing of existing
clientele. Bondoc, however, described respondents functions
and duties as critical.
The following ruling of this Court in Paper Industries Corp. of
the Philippines v. Laguesma is instructive:
Managerial employees are ranked as Top Managers, Middle
Managers and First Line Managers. The mere fact that an
employee is designated manager does not ipso facto make him
one-designation should be reconciled with the actual job
description of the employee for it is the job description that
determines the nature of employment.
The absence of a written job description or prescribed work
standards, however, leaves this Court in the dark.
Even assuming, however, that respondent was a managerial
employee, the stated ground (in the letter of termination) for
her dismissal, loss of confidence, should have a basis and
determination thereof cannot be left entirely to the employer.
Loss of trust and confidence to be a valid ground for an
employees dismissal must be based on a willful breach and
founded on clearly established facts.[26] A breach is willful if
it is done intentionally, knowingly and purposely, without
justifiable excuse, as distinguished from an act done
carelessly, thoughtlessly, heedlessly or inadvertently. While an
employee may be dismissed because of inefficiency, neglect
or carelessness, the law implies a situation or undertaking by
an employee in entering into a contract of employment that he
is competent to perform the work undertaken and is possessed
of the requisite skill and knowledge to enable him to do so,
and that he will do the work of the employer in a careful
manner. If he is not qualified to do the work which he
undertakes, if he is incompetent, unskillful or inefficient, or if
he executes his work in a negligent manner or is otherwise
guilty of neglect of duty, he may lawfully be discharged
before the expiration of his term of employment.
To warrant award of moral damages, it must be shown that the
dismissal of the employee was attended to by bad faith, or
constituted an act opposite to labor, or was done in a manner
contrary to morals, good customs or public policy.
Award of moral and exemplary damages for an illegally
dismissed employee is proper where the employee had been
harassed and arbitrarily terminated by the employer.
In determining the amount of moral damages recoverable,
however, the business, social and financial position of the
offended party and the business or financial position of the
offender are taken into account.33 Given petitioners business
position or standing before and at the time of termination and
petitioners business and financial position, this Court reduces
the amount of moral damages awarded to P500,000.00 which
3
Desabelle, Robee Camille E. LLB-2
it finds reasonable. The amount of exemplary damages
awarded is accordingly reduced too to P250,000.00.
____________________________________________
G.R. No. 159577 May 3, 2006
CHARLITO PEARANDA, Petitioner,
vs.
BAGANGA PLYWOOD CORPORATION and HUDSON
CHUA, Respondents.
Facts:
Sometime in June 1999, Petitioner Charlito Pearanda was
hired as an employee of Baganga Plywood Corporation (BPC)
to take charge of the operations and maintenance of its steam
plant boiler.6 In May 2001, Pearanda filed a Complaint for
illegal dismissal with money claims against BPC and its
general manager, Hudson Chua, before the NLRC.7
After the parties failed to settle amicably, the labor arbiter8
directed the parties to file their position papers and submit
supporting documents.9 Their respective allegations are
summarized by the labor arbiter as follows:
"[Pearanda] through counsel in his position paper alleges that
he was employed by respondent [Baganga] on March 15, 1999
with a monthly salary of P5,000.00 as Foreman/Boiler
Head/Shift Engineer until he was illegally terminated on
December 19, 2000. Further, [he] alleges that his services
[were] terminated without the benefit of due process and valid
grounds in accordance with law. Furthermore, he was not paid
his overtime pay, premium pay for working during
holidays/rest days, night shift differentials and finally claims
for payment of damages and attorneys fees having been
forced to litigate the present complaint.
"Upon the other hand, respondent [BPC] is a domestic
corporation duly organized and existing under Philippine laws
and is represented herein by its General Manager HUDSON
CHUA, [the] individual respondent. Respondents thru counsel
allege that complainants separation from service was done
pursuant to Art. 283 of the Labor Code. The respondent [BPC]
was on temporary closure due to repair and general
maintenance and it applied for clearance with the Department
of Labor and Employment, Regional Office No. XI to shut
down and to dismiss employees (par. 2 position paper). And
due to the insistence of herein complainant he was paid his
separation benefits (Annexes C and D, ibid). Consequently,
when respondent [BPC] partially reopened in January 2001,
[Pearanda] failed to reapply. Hence, he was not terminated
from employment much less illegally. He opted to severe
employment when he insisted payment of his separation
benefits. Furthermore, being a managerial employee he is not
entitled to overtime pay and if ever he rendered services
beyond the normal hours of work, [there] was no office
order/or authorization for him to do so. Finally, respondents
allege that the claim for damages has no legal and factual basis
and that the instant complaint must necessarily fail for lack of
merit."
The labor arbiter ruled that there was no illegal dismissal and
that petitioners Complaint was premature because he was still
employed by BPC. The temporary closure of BPCs plant did
not terminate his employment, hence, he need not reapply
when the plant reopened.
According to the labor arbiter, petitioners money claims for
illegal dismissal was also weakened by his quitclaim and
admission during the clarificatory conference that he accepted
separation benefits, sick and vacation leave conversions and
thirteenth month pay.
Nevertheless, the labor arbiter found petitioner entitled to
overtime pay, premium pay for working on rest days, and
attorneys fees in the total amount of P21,257.98.
Issue: Whether or not Penarada is a managerial employee?
Ruling:
Yes, Penaranda is a magerail staff exempt for the provisions of
the Labor Code.
Article 82 of the Labor Code exempts managerial employees
from the coverage of labor standards. Labor standards provide
the working conditions of employees, including entitlement to
overtime pay and premium pay for working on rest days.
Under this provision, managerial employees are "those whose
primary duty consists of the management of the establishment
in which they are employed or of a department or
subdivision."
The Implementing Rules of the Labor Code state that
managerial employees are those who meet the following
conditions:
"(1) Their primary duty consists of the management of the
establishment in which they are employed or of a department
or subdivision thereof;
"(2) They customarily and regularly direct the work of two or
more employees therein;
"(3) They have the authority to hire or fire other employees of
lower rank; or their suggestions and recommendations as to
the hiring and firing and as to the promotion or any other
change of status of other employees are given particular
weight."31
The Court disagrees with the NLRCs finding that petitioner
was a managerial employee. However, petitioner was a
member of the managerial staff, which also takes him out of
the coverage of labor standards. Like managerial employees,
officers and members of the managerial staff are not entitled
to the provisions of law on labor standards.32 The
Implementing Rules of the Labor Code define members of a
managerial staff as those with the following duties and
responsibilities:
"(1) The primary duty consists of the performance of work
directly related to management policies of the employer;
"(2) Customarily and regularly exercise discretion and
independent judgment;
"(3) (i) Regularly and directly assist a proprietor or a
managerial employee whose primary duty consists of the
management of the establishment in which he is employed or
subdivision thereof; or (ii) execute under general supervision
work along specialized or technical lines requiring special
training, experience, or knowledge; or (iii) execute under
general supervision special assignments and tasks; and
"(4) who do not devote more than 20 percent of their hours
worked in a workweek to activities which are not directly and
closely related to the performance of the work described in
paragraphs (1), (2), and (3) above."33
As shift engineer, petitioners duties and responsibilities were
as follows:
4
Desabelle, Robee Camille E. LLB-2
"1. To supply the required and continuous steam to all
consuming units at minimum cost.
"2. To supervise, check and monitor manpower workmanship
as well as operation of boiler and accessories.
"3. To evaluate performance of machinery and manpower.
"4. To follow-up supply of waste and other materials for fuel.
"5. To train new employees for effective and safety while
working.
"6. Recommend parts and supplies purchases.
"7. To recommend personnel actions such as: promotion, or
disciplinary action.
"8. To check water from the boiler, feedwater and softener,
regenerate softener if beyond hardness limit.
"9. Implement Chemical Dosing.
"10. Perform other task as required by the superior from time
to time."34
The foregoing enumeration, particularly items 1, 2, 3, 5 and 7
illustrates that petitioner was a member of the managerial
staff. His duties and responsibilities conform to the definition
of a member of a managerial staff under the Implementing
Rules.
Petitioner supervised the engineering section of the steam
plant boiler. His work involved overseeing the operation of the
machines and the performance of the workers in the
engineering section. This work necessarily required the use of
discretion and independent judgment to ensure the proper
functioning of the steam plant boiler. As supervisor, petitioner
is deemed a member of the managerial staff.35
Noteworthy, even petitioner admitted that he was a supervisor.
In his Position Paper, he stated that he was the foreman
responsible for the operation of the boiler.36 The term
foreman implies that he was the representative of management
over the workers and the operation of the department.37
Petitioners evidence also showed that he was the supervisor
of the steam plant.38 His classification as supervisor is further
evident from the manner his salary was paid. He belonged to
the 10% of respondents 354 employees who were paid on a
monthly basis; the others were paid only on a daily basis.39
On the basis of the foregoing, the Court finds no justification
to award overtime pay and premium pay for rest days to
petitioner.
[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:
This case originated from a complaint filed on September 20,
1990 by private respondent Fermin Agao, Jr. against petitioner
for illegal dismissal, violation of P.D. No. 851, and non-
payment of five days service incentive leave for 1990. Private
respondent had been employed as a bodegero or ships
quartermaster on February 12, 1988. He complained that he
had been constructively dismissed by petitioner when the
latter refused him assignments aboard its boats after he had
reported to work on May 28, 1990.
Private respondent alleged that he had been sick and thus
allowed to go on leave without pay for one month from April
28, 1990 but that when he reported to work at the end of such
period with a health clearance, he was told to come back
another time as he could not be reinstated immediately.
Thereafter, petitioner refused to give him work. For this
reason, private respondent asked for a certificate of
employment from petitioner on September 6, 1990. However,
when he came back for the certificate on September 10,
petitioner refused to issue the certificate unless he submitted
his resignation. Since private respondent refused to submit
such letter unless he was given separation pay, petitioner
prevented him from entering the premises.
Petitioner, on the other hand, alleged that it was private
respondent who actually abandoned his work. It claimed that
the latter failed to report for work after his leave had expired
and was, in fact, absent without leave for three months until
August 28, 1998. Petitioner further claims that, nonetheless, it
assigned private respondent to another vessel, but the latter
was left behind on September 1, 1990. Thereafter, private
respondent asked for a certificate of employment on
September 6 on the pretext that he was applying to another
fishing company. On September 10, 1990, he refused to get
the certificate and resign unless he was given separation pay.
Issue: Whether or not Agao is a field employee?
Ruling:
No, Agao is not a field employee. Art. 82 of the Labor Code
provides:
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, 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.
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.
Moreover, the requirement that actual hours of work in the
field cannot be determined with reasonable certainty must be
read in conjunction with Rule IV, Book III of the
Implementing Rules which provides:
Rule IV Holidays with Pay
Section 1. Coverage - This rule shall apply to all employees
except:
(e) Field personnel and other employees whose time and
performance is unsupervised by the employer
Petitioner argues essentially that since the work of private
respondent is performed away from its principal place of
business, it has no way of verifying his actual hours of work
5
Desabelle, Robee Camille E. LLB-2
on the vessel. It contends that private respondent and other
fishermen in its employ should be classified as field personnel
who have no statutory right to service incentive leave pay.
In the case at bar, during the entire course of their fishing
voyage, fishermen employed by petitioner have no choice but
to remain on board its vessel. Although they perform non-
agricultural work away from petitioners business offices, the
fact remains that throughout the duration of their work they
are under the effective control and supervision of petitioner
through the vessels patron or master as the NLRC correctly
held.
Neither did petitioner gravely abuse its discretion in ruling that
private respondent had constructively been dismissed by
petitioner. Such factual finding of both the NLRC and the
Labor Arbiter is based not only on the pleadings of the parties
but also on a medical certificate of fitness which, contrary to
petitioners claim, private respondent presented when he
reported to work on May 28, 1990. As the NLRC held:
Anent grounds (a) and (b) of the appeal, the respondent, in a
nutshell, would like the Court to believe that the Arbiter
abused his discretion (or seriously erred in his findings of
facts) in giving credence to the factual version of the
complainant. It is settled in this jurisdiction that 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 (Dagupan Bus Co., Inc. vs. NLRC, 191 SCRA
328), and that the filing of the complaint which asked for
reinstatement plus backwages (Record, p. 20) is inconsistent
with respondents defense of abandonment.
[G.R. No. 156367. May 16, 2005]
AUTO BUS TRANSPORT SYSTEMS, INC., petitioner,
vs. ANTONIO BAUTISTA, respondent.
Facts:
Since 24 May 1995, respondent Antonio Bautista has been
employed by petitioner Auto Bus Transport Systems, Inc.
(Autobus), as driver-conductor with travel routes Manila-
Tuguegarao via Baguio, Baguio- Tuguegarao via Manila and
Manila-Tabuk via Baguio. Respondent was paid on
commission basis, seven percent (7%) of the total gross
income per travel, on a twice a month basis.
On 03 January 2000, while respondent was driving Autobus
No. 114 along Sta. Fe, Nueva Vizcaya, the bus he was driving
accidentally bumped the rear portion of Autobus No. 124, as
the latter vehicle suddenly stopped at a sharp curve without
giving any warning.
Respondent 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 twenty-four (24)
hours, as he had just arrived in Manila from Roxas, Isabela.
Respondent further alleged that he was not allowed to work
until he fully paid the amount of P75,551.50, representing
thirty percent (30%) of the cost of repair of the damaged buses
and that despite respondents pleas for reconsideration, the
same was ignored by management. After a month,
management sent him a letter of termination.
Thus, on 02 February 2000, respondent instituted a Complaint
for Illegal Dismissal with Money Claims for nonpayment of
13th month pay and service incentive leave pay against
Autobus.
Petitioner, on the other hand, maintained that respondents
employment was replete with offenses involving reckless
imprudence, gross negligence, and dishonesty. To support its
claim, petitioner presented copies of letters, memos,
irregularity reports, and warrants of arrest pertaining to several
incidents wherein respondent was involved.
Furthermore, petitioner avers that in the exercise of its
management prerogative, respondents employment was
terminated only after the latter was provided with an
opportunity to explain his side regarding the accident on 03
January 2000.
On 29 September 2000, based on the pleadings and supporting
evidence presented by the parties, Labor Arbiter Monroe C.
Tabingan promulgated a Decision,[4] the dispositive portion
of which reads:
WHEREFORE, all premises considered, it is hereby found
that the complaint for Illegal Dismissal has no leg to stand on.
It is hereby ordered DISMISSED, as it is hereby DISMISSED.
However, still based on the above-discussed premises, the
respondent must pay to the complainant the following:
a. his 13th month pay from the date of his hiring to the date of
his dismissal, presently computed at P78,117.87;
b. his service incentive leave pay for all the years he had been
in service with the respondent, presently computed at
P13,788.05.
All other claims of both complainant and respondent are
hereby dismissed for lack of merit.
Not satisfied with the decision of the Labor Arbiter, petitioner
appealed the decision to the NLRC which rendered its
decision on 28 September 2001, the decretal portion of which
reads:
[T]he Rules and Regulations Implementing Presidential
Decree No. 851, particularly Sec. 3 provides:
Section 3. Employers covered. The Decree shall apply to all
employers except to:
xxx xxx xxx
e) employers of those who are paid on purely commission,
boundary, or task basis, performing a specific work,
irrespective of the time consumed in the performance thereof.
xxx.
Records show that complainant, in his position paper,
admitted that he was paid on a commission basis.
Issue: Whether or not respondent is a field personnel not
entitled to service incentive leave?
Ruling:
No, respondent is not a field personnel but a regular employee
who performs tasks usually necessary and desirable to the
usual trade of petitioners business. Accordingly, respondent is
entitled to the grant of service incentive leave.
Petitioners contention that respondent is not entitled to the
grant of service incentive leave just because he was paid on
6
Desabelle, Robee Camille E. LLB-2
purely commission basis is misplaced. According to Article 82
of the Labor Code, 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. This
definition is further elaborated in the Bureau of Working
Conditions (BWC), Advisory Opinion to Philippine
Technical-Clerical Commercial Employees Association which
states that:
As a general rule, [field personnel] are those whose
performance of their job/service is not supervised by the
employer or his representative, the workplace being away
from the principal office and whose hours and days of work
cannot be determined with reasonable certainty; hence, they
are paid specific amount for rendering specific service or
performing specific work. If required to be at specific places at
specific times, employees including drivers cannot be said to
be field personnel despite the fact that they are performing
work away from the principal office of the employee.
To this discussion by the BWC, the petitioner differs and
postulates that under said advisory opinion, no employee
would ever be considered a field personnel because every
employer, in one way or another, exercises control over his
employees. Petitioner further argues that the only criterion that
should be considered is the nature of work of the employee in
that, if the employees job requires that he works away from
the principal office like that of a messenger or a bus driver,
then he is inevitably a field personnel.
At this point, it is necessary to stress 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. As discussed above, 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 conclude 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 observed by the Labor Arbiter and concurred in by the
Court of Appeals:
It is of judicial notice that 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-a-week 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 specific place as [sic] 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.
Respondent not being a field personnel is not covered by
Article 95 of the Labor Code. Art. 95. RIGHT TO SERVICE
INCENTIVE LEAVE
(a) Every employee who has rendered at least one year of
service shall be entitled to a yearly service incentive leave of
five days with pay.
Book III, Rule V: SERVICE INCENTIVE LEAVE
SECTION 1. Coverage. This rule shall apply to all employees
except:
(d) Field personnel and other employees whose performance is
unsupervised by the employer including those who are
engaged on task or contract basis, purely commission basis, or
those who are paid in a fixed amount for performing work
irrespective of the time consumed in the performance thereof;
...
A careful perusal of said provisions of law will result in the
conclusion that the grant of service incentive leave has been
delimited by the Implementing Rules and Regulations of the
Labor Code to apply only to those employees not explicitly
excluded by Section 1 of Rule V. According to the
Implementing Rules, Service Incentive Leave shall not apply
to employees classified as field personnel. The phrase other
employees whose performance is unsupervised by the
employer must not be understood as a separate classification
of employees to which service incentive leave shall not be
granted. Rather, it serves as an amplification of the
interpretation of the definition of field personnel under the
Labor Code as those whose actual hours of work in the field
cannot be determined with reasonable certainty.
The same is true with respect to the phrase those who are
engaged on task or contract basis, purely commission basis.
Said phrase should be related with field personnel, applying
the rule on ejusdem generis that general and unlimited terms
are restrained and limited by the particular terms that they
follow. Hence, employees engaged on task or contract basis or
paid on purely commission basis are not automatically
exempted from the grant of service incentive leave, unless,
they fall under the classification of field personnel.
[G. R. No. 123938. May 21, 1998]
LABOR CONGRESS OF THE PHILIPPINES (LCP) vs.
NATIONAL LABOR RELATIONS COMMISSION,
EMPIRE FOOD PRODUCTS, its Proprietor/President &
Manager, MR. GONZALO KEHYENG and MRS.
EVELYN KEHYENG, respondents.
Facts:
The antecedents of this case as summarized by the Office of
the Solicitor General in its Manifestation and Motion in Lieu
of Comment, are as follows:
The 99 persons named as petitioners in this proceeding were
rank-and-file employees of respondent Empire Food Products,
which hired them on various dates (Paragraph 1, Annex A of
Petition, Annex B; Page 2, Annex F of Petition).
Petitioners filed against private respondents a complaint for
payment of money claim[s] and for violation of labor
standard[s] laws (NLRC Case No. RAB-111-10-1817-90).
They also filed a petition for direct certification of petitioner
Labor Congress of the Philippines as their bargaining
representative (Case No. R0300-9010-RU-005).
7
Desabelle, Robee Camille E. LLB-2
On October 23, 1990, petitioners represented by LCP
President Benigno B. Navarro, Sr. and private respondents
Gonzalo Kehyeng and Evelyn Kehyeng in behalf of Empire
Food Products, Inc. entered into a Memorandum of
Agreement. In an Order dated October 24, 1990, Mediator
Arbiter Antonio Cortez approved the memorandum of
agreement and certified LCP as the sole and exclusive
bargaining agent among the rank-and-file employees of
Empire Food Products for purposes of collective bargaining
with respect to wages, hours of work and other terms and
conditions of employment (Annex B of Petition).
On November 9, 1990, petitioners through LCP President
Navarro submitted to private respondents a proposal for
collective bargaining. On January 23, 1991, petitioners filed a
complaint docketed as NLRC Case No. RAB-III-01-1964-91
against private respondents for:
a. Unfair Labor Practice by way of Illegal Lockout and/or
Dismissal;
b. Union busting thru Harassments [sic], threats, and
interfering with the rights of employees to self-organization;
c. Violation of the Memorandum of Agreement dated October
23, 1990;
d. Underpayment of Wages in violation of R.A. No. 6640 and
R.A. No. 6727, such as Wages promulgated by the Regional
Wage Board;
e. Actual, Moral and Exemplary Damages. (Annex D of
Petition)
After the submission by the parties of their respective position
papers and presentation of testimonial evidence, Labor Arbiter
Ariel C. Santos absolved private respondents of the charges of
unfair labor practice, union busting, violation of the
memorandum of agreement, underpayment of wages and
denied petitioners prayer for actual, moral and exemplary
damages. Labor Arbiter Santos, however, directed the
reinstatement of the individual complainants. Anent the charge
that there was underpayment of wages, the evidence points to
the contrary. The enumeration of complainants wages in their
consolidated Affidavits of merit and position paper which
implies underpayment has no leg to stand on in the light of the
fact that complainants admission that they are piece workers
or paid on a pakiao [basis] i.e. a certain amount for every
thousand pieces of cheese curls or other products repacked.
The only limitation for piece workers or pakiao workers is that
they should receive compensation no less than the minimum
wage for an eight (8) hour work [sic]. And compliance
therewith was satisfactorily explained by respondent Gonzalo
Kehyeng in his testimony (TSN, p. 12-30) during the July 31,
1991 hearing. On cross-examination, complainants failed to
rebut or deny Gonzalo Kehyengs testimony that complainants
have been even receiving more than the minimum wage for an
average workers [sic]. Certainly, a lazy worker earns less than
the minimum wage but the same cannot be attributable to
respondents but to the lazy workers.
Issue: Whether or not respondents are piece workers entitled
to reinstatement and other money claims?
Ruling:
Yes, respondents are piece workers. That petitioner employees
are pakyao or piece workers does not imply that they are not
regular employees entitled to reinstatement. Private
respondent Empire Food Products, Inc. is a food and fruit
processing company. In Tabas v. California Manufacturing
Co., Inc. (169 SCRA 497), this Honorable Court held that the
work of merchandisers of processed food, who coordinate
with grocery stores and other outlets for the sale of the
processed food is necessary in the day-to-day operation[s] of
the company. With more reason, the work of processed food
repackers is necessary in the day-to-day operation[s] of
respondent Empire Food Products.
It may likewise be stressed that the burden of proving the
existence of just cause for dismissing an employee, such as
abandonment, rests on the employer, a burden private
respondents failed to discharge.
Private respondents, moreover, in considering petitioners
employment to have been terminated by abandonment,
violated their rights to security of tenure and constitutional
right to due process in not even serving them with a written
notice of such termination. Section 2, Rule XIV, Book V of
the Omnibus Rules Implementing the Labor Code provides:
SEC. 2. Notice of Dismissal. - Any employer who seeks to
dismiss a worker shall furnish him a written notice stating the
particular acts or omission constituting the grounds for his
dismissal. In cases of abandonment of work, the notice shall
be served at the workers last known address.
Petitioners are therefore entitled to reinstatement with full
back wages pursuant to Article 279 of the Labor Code, as
amended by R.A. No. 6715. Nevertheless, the records disclose
that taking into account the number of employees involved,
the length of time that has lapsed since their dismissal, and the
perceptible resentment and enmity between petitioners and
private respondents which necessarily strained their
relationship, reinstatement would be impractical and hardly
promotive of the best interests of the parties. In lieu of
reinstatement then, separation pay at the rate of one month for
every year of service, with a fraction of at least six (6) months
of service considered as one (1) year, is in order.
That being said, the amount of back wages to which each
petitioner is entitled, however, cannot be fully settled at this
time. Petitioners, as piece-rate workers having been paid by
the piece, there is need to determine the varying degrees of
production and days worked by each worker. Clearly, this
issue is best left to the National Labor Relations Commission.
As to the other benefits, namely, holiday pay, premium pay,
13th month pay and service incentive leave which the labor
arbiter failed to rule on but which petitioners prayed for in
their complaint, we hold that petitioners are so entitled to these
benefits. Three (3) factors lead us to conclude that petitioners,
although piece-rate workers, were regular employees of
private respondents. First, as to the nature of petitioners tasks,
their job of repacking snack food was necessary or desirable in
the usual business of private respondents, who were engaged
in the manufacture and selling of such food products; second,
petitioners worked for private respondents throughout the
year, their employment not having been dependent on a
specific project or season; and third, the length of time[16]
that petitioners worked for private respondents. Thus, while
petitioners mode of compensation was on a per piece basis, the
status and nature of their employment was that of regular
employees.
The Rules Implementing the Labor Code exclude certain
employees from receiving benefits such as nighttime pay,
holiday pay, service incentive leave and 13th month pay, inter
alia, field personnel and other employees whose time and
8
Desabelle, Robee Camille E. LLB-2
performance is unsupervised by the employer, including those
who are engaged on task or contract basis, purely commission
basis, or those who are paid a fixed amount for performing
work irrespective of the time consumed in the performance
thereof. Plainly, petitioners as piece-rate workers do not fall
within this group. As mentioned earlier, not only did
petitioners labor under the control of private respondents as
their employer, likewise did petitioners toil throughout the
year with the fulfillment of their quota as supposed basis for
compensation. Further, in Section 8 (b), Rule IV, Book III
which we quote hereunder, piece workers are specifically
mentioned as being entitled to holiday pay.
SEC. 8. Holiday pay of certain employees.-
(b) Where a covered employee is paid by results or output,
such as payment on piece work, his holiday pay shall not be
less than his average daily earnings for the last seven (7)
actual working days preceding the regular holiday: Provided,
however, that in no case shall the holiday pay be less than the
applicable statutory minimum wage rate.
In addition, the Revised Guidelines on the Implementation of
the 13th Month Pay Law, in view of the modifications to P.D.
No. 851[19] by Memorandum Order No. 28, clearly exclude
the employer of piece rate workers from those exempted from
paying 13th month pay, to wit:
2. EXEMPTED EMPLOYERS
The following employers are still not covered by P.D. No.
851:
d. Employers of those who are paid on purely commission,
boundary or task basis, and those who are paid a fixed amount
for performing specific work, irrespective of the time
consumed in the performance thereof, except where the
workers are paid on piece-rate basis in which case the
employer shall grant the required 13th month pay to such
workers. (italics supplied)
The Revised Guidelines as well as the Rules and Regulations
identify those workers who fall under the piece-rate category
as those who are paid a standard amount for every piece or
unit of work produced that is more or less regularly replicated,
without regard to the time spent in producing the same.[20]
As to overtime pay, the rules, however, are different.
According to Sec. 2(e), Rule I, Book III of the Implementing
Rules, workers who are paid by results including those who
are paid on piece-work, takay, pakiao, or task basis, if their
output rates are in accordance with the standards prescribed
under Sec. 8, Rule VII, Book III, of these regulations, or
where such rates have been fixed by the Secretary of Labor in
accordance with the aforesaid section, are not entitled to
receive overtime pay. Here, private respondents did not allege
adherence to the standards set forth in Sec. 8 nor with the rates
prescribed by the Secretary of Labor. As such, petitioners are
beyond the ambit of exempted persons and are therefore
entitled to overtime pay. Once more, the National Labor
Relations Commission would be in a better position to
determine the exact amounts owed petitioners, if any.
[G.R. No. 132805. February 2, 1999]
PHILIPPINE AIRLINES, INC., petitioner, vs.
NATIONAL LABOR RELATIONS COMMISSION,
LABOR ARBITER ROMULUS PROTACIO and DR.
HERMINIO A. FABROS, respondents.
Facts:
Private respondent was employed as flight surgeon at
petitioner company. He was assigned at the PAL Medical
Clinic at Nichols and was on duty from 4:00 in the afternoon
until 12:00 midnight.
On February 17, 1994, at around 7:00 in the evening, private
respondent left the clinic to have his dinner at his residence,
which was about five-minute drive away. A few minutes later,
the clinic received an emergency call from the PAL Cargo
Services. One of its employees, Mr. Manuel Acosta, had
suffered a heart attack. The nurse on duty, Mr. Merlino
Eusebio, called private respondent at home to inform him of
the emergency. The patient arrived at the clinic at 7:50 in the
evening and Mr. Eusebio immediately rushed him to the
hospital. When private respondent reached the clinic at around
7:51 in the evening, Mr. Eusebio had already left with the
patient. Mr. Acosta died the following day.
Upon learning about the incident, PAL Medical Director Dr.
Godofredo B. Banzon ordered the Chief Flight Surgeon to
conduct an investigation. The Chief Flight Surgeon, in turn,
required private respondent to explain why no disciplinary
sanction should be taken against him.
In his explanation, private respondent asserted that he was
entitled to a thirty-minute meal break; that he immediately left
his residence upon being informed by Mr. Eusebio about the
emergency and he arrived at the clinic a few minutes later; that
Mr. Eusebio panicked and brought the patient to the hospital
without waiting for him.
Finding private respondents explanation unacceptable, the
management charged private respondent with abandonment of
post while on duty. He was given ten days to submit a written
answer to the administrative charge.
In his answer, private respondent reiterated the assertions in
his previous explanation. He further denied that he abandoned
his post on February 17, 1994. He said that he only left the
clinic to have his dinner at home. In fact, he returned to the
clinic at 7:51 in the evening upon being informed of the
emergency.
After evaluating the charge as well as the answer of private
respondent, petitioner company decided to suspend private
respondent for three months effective December 16, 1994.
Private respondent filed a complaint for illegal suspension
against petitioner.
Issue: Whether or not is guilty of abandonment of post while
on duty?
Ruling:
No, going home to take his dinner does not constitute
abandonment. First, as regards the legality of private
respondents suspension. The facts do not support petitioners
allegation that private respondent abandoned his post on the
evening of February 17, 1994. Private respondent left the
clinic that night only to have his dinner at his house, which
was only a few minutes drive away from the clinic. His
whereabouts were known to the nurse on duty so that he could
be easily reached in case of emergency. Upon being informed
of Mr. Acostas condition, private respondent immediately left
his home and returned to the clinic. These facts belie
petitioners claim of abandonment.
9
Desabelle, Robee Camille E. LLB-2
Petitioner argues that being a full-time employee, private
respondent is obliged to stay in the company premises for not
less than eight (8) hours. Hence, he may not leave the
company premises during such time, even to take his meals.
Articles 83 and 85 of the Labor Code read:
Art. 83. Normal hours of work.The normal hours of work of
any employee shall not exceed eight (8) hours a day.
Health personnel in cities and municipalities with a population
of at least one million (1,000,000) or in hospitals and clinics
with a bed capacity of at least one hundred (100) shall hold
regular office hours for eight (8) hours a day, for five (5) days
a week, exclusive of time for meals, except where the
exigencies of the service require that such personnel work for
six (6) days or forty-eight (48) hours, in which case they shall
be entitled to an additional compensation of at least thirty per
cent (30%) of their regular wage for work on the sixth day.
For purposes of this Article, health personnel shall include:
resident physicians, nurses, nutritionists, dieticians,
pharmacists, social workers, laboratory technicians,
paramedical technicians, psychologists, midwives, attendants
and all other hospital or clinic personnel. (emphasis supplied)
Art. 85. Meal periods.Subject to such regulations as the
Secretary of Labor may prescribe, it shall be the duty of every
employer to give his employees not less than sixty (60)
minutes time-off for their regular meals.
Section 7, Rule I, Book III of the Omnibus Rules
Implementing the Labor Code further states:
Sec. 7. Meal and Rest Periods.Every employer shall give his
employees, regardless of sex, not less than one (1) hour time-
off for regular meals, except in the following cases when a
meal period of not less than twenty (20) minutes may be given
by the employer provided that such shorter meal period is
credited as compensable hours worked of the employee;
(a) Where the work is non-manual work in nature or does not
involve strenuous physical exertion;
(b) Where the establishment regularly operates not less than
sixteen hours a day;
(c) In cases of actual or impending emergencies or there is
urgent work to be performed on machineries, equipment or
installations to avoid serious loss which the employer would
otherwise suffer; and
(d) Where the work is necessary to prevent serious loss of
perishable goods.
Rest periods or coffee breaks running from five (5) to twenty
(20) minutes shall be considered as compensable working
time.
Thus, the eight-hour work period does not include the meal
break. Nowhere in the law may it be inferred that employees
must take their meals within the company premises.
Employees are not prohibited from going out of the premises
as long as they return to their posts on time. Private
respondents act, therefore, of going home to take his dinner
does not constitute abandonment.
G.R. No. 78210
TEOFILO ARICA, DANILO BERNABE, MELQUIADES
DOHINO, ABONDIO OMERTA, GIL TANGIHAN,
SAMUEL LABAJO, NESTOR NORBE, RODOLFO
CONCEPCION, RICARDO RICHA, RODOLFO NENO,
ALBERTO BALATRO, BENJAMIN JUMAMOY,
FERMIN DAAROL, JOVENAL ENRIQUEZ, OSCAR
BASAL, RAMON ACENA, JAIME BUGTAY, and 561
OTHERS, HEREIN REPRESENTED BY KORONADO
B. APUZEN, petitioners
vs.
NATIONAL LABOR RELATIONS COMMISSION,
HONORABLE FRANKLIN DRILON, HONORABLE
CONRADO B. MAGLAYA, HONORABLE ROSARIO B.
ENCARNACION, and STANDARD (PHILIPPINES)
FRUIT CORPORATION, respondents.
Facts:
This is a petition for review on certiorari of the decision of the
National Labor Relations Commission dated December 12,
1986 in NLRC Case No. 2327 MC-XI-84 entitled Teofilo
Arica et al. vs. Standard (Phil.) Fruits Corporation
(STANFILCO) which affirmed the decision of Labor Arbiter
Pedro C. Ramos, NLRC, Special Task Force, Regional
Arbitration Branch No. XI, Davao City dismissing the claim
of petitioners.
This case stemmed from a complaint filed on April 9, 1984
against private respondent Stanfilco for assembly time, moral
damages and attorney's fees, with the aforementioned
Regional Arbitration Branch No. XI, Davao City.
After the submission by the parties of their respective position
papers (Annex "C", pp. 30-40; Annex "D", Rollo, pp. 41-50),
Labor Arbiter Pedro C. Ramos rendered a decision dated
October 9, 1985 (Annex 'E', Rollo, pp. 51-58) in favor of
private respondent STANFILCO, holding that:
Given these facts and circumstances, we cannot but agree with
respondent that the pronouncement in that earlier case, i.e. the
thirty-minute assembly time long practiced cannot be
considered waiting time or work time and, therefore, not
compensable, has become the law of the case which can no
longer be disturbed without doing violence to the time-
honored principle of res-judicata.
Petitioners contend that the preliminary activities as workers
of respondents STANFILCO in the assembly area is
compensable as working time (from 5:30 to 6:00 o'clock in the
morning) since these preliminary activities are necessarily and
primarily for private respondent's benefit.
These preliminary activities of the workers are as follows:
(a) First there is the roll call. This is followed by getting their
individual work assignments from the foreman.
(b) Thereafter, they are individually required to accomplish
the Laborer's Daily Accomplishment Report during which
they are often made to explain about their reported
accomplishment the following day.
(c) Then they go to the stockroom to get the working
materials, tools and equipment.
(d) Lastly, they travel to the field bringing with them their
tools, equipment and materials.
10
Desabelle, Robee Camille E. LLB-2
All these activities take 30 minutes to accomplish
Issue: Whether or not the 30-minute activity of the petitioners
before the scheduled working time is compensable under the
Labor Code?
Ruling:
No, the Labor Minister earlier found the thirty (30)-minute
assembly time long practiced and institutionalized by mutual
consent of the parties under Article IV, Section 3, of the
Collective Bargaining Agreement cannot be considered as
waiting time within the purview of Section 5, Rule I, Book III
of the Rules and Regulations Implementing the Labor Code.
Furthermore, the thirty (30)-minute assembly is a deeply-
rooted, routinary practice of the employees, and the
proceedings attendant thereto are not infected with
complexities as to deprive the workers the time to attend to
other personal pursuits. They are not new employees as to
require the company to deliver long briefings regarding their
respective work assignments. Their houses are situated right
on the area where the farm are located, such that after the roll
call, which does not necessarily require the personal presence,
they can go back to their houses to attend to some chores. In
short, they are not subject to the absolute control of the
company during this period, otherwise, their failure to report
in the assembly time would justify the company to impose
disciplinary measures. The CBA does not contain any
provision to this effect; the record is also bare of any proof on
this point. This, therefore, demonstrates the indubitable fact
that the thirty (30)-minute assembly time was not primarily
intended for the interests of the employer, but ultimately for
the employees to indicate their availability or non-availability
for work during every working day.
[G.R. No. L-63122. February 20, 1984.]
UNIVERSITY OF PANGASINAN FACULTY UNION,
Petitioner, v. UNIVERSITY OF PANGASINAN And
NATIONAL LABOR RELATIONS COMMISSION,
Respondents.
Facts:
Petitioner is a labor union composed of faculty members of
the respondent University of Pangasinan, an educational
institution duly organized and existing by virtue of the laws of
the Philippines.
On December 18, 1981, the petitioner, through its President,
Miss Consuelo Abad, filed a complaint against the private
respondent with the Arbitration Branch of the NLRC,
Dagupan District Office, Dagupan City. The complaint seeks:
(a) the payment of Emergency Cost of Living Allowances
(ECOLA) for November 7 to December 5, 1981, a semestral
break; (b) salary increases from the sixty (60%) percent of the
incremental proceeds of increased tuition fees; and (c)
payment of salaries for suspended extra loads.
The petitioners members are full-time professors, instructors,
and teachers of respondent University. The teachers in the
college level teach for a normal duration of ten (10) months a
school year, divided into two (2) semesters of five (5) months
each, excluding the two (2) months summer vacation. These
teachers are paid their salaries on a regular monthly basis.
In November and December, 1981, the petitioners members
were fully paid their regular monthly salaries. However, from
November 7 to December 5, during the semestral break, they
were not paid their ECOLA. The private respondent claims
that the teachers are not entitled thereto because the semestral
break is not an integral part of the school year and there being
no actual services rendered by the teachers during said period,
the principle of "No work, no pay" applies.
During the same school year (1981-1982), the private
respondent was authorized by the Ministry of Education and
Culture to collect, as it did collect, from its students a fifteen
(15%) percent increase of tuition fees. Petitioners members
demanded a salary increase effective the first semester of said
schoolyear to be taken from the sixty (60%) percent
incremental proceeds of the increased tuition fees. Private
respondent refused, compelling the petitioner to include said
demand in the complaint filed in the case at bar. While the
complaint was pending in the arbitration branch, the private
respondent granted an across-the-board salary increase of
5.86%. Nonetheless, the petitioner is still pursuing full
distribution of the 60% of the incremental proceeds as
mandated by the Presidential Decree No. 451.
Aside from their regular loads, some of petitioners members
were given extra loads to handle during the same 1981-1982
schoolyear. Some of them had extra loads to teach on
September 21, 1981, but they were unable to teach as classes
in all levels throughout the country were suspended, although
said days was proclaimed by the President of the Philippines
as a working holiday. Those with extra loads to teach on said
day claimed they were not paid their salaries for those loads,
but the private respondent claims otherwise.
Issue: Whether or not petitioners members are entitled to
ECOLA during the semestral break from November 7 to
December 5, 1981 of the 1981-82 school year?
Ruling:
Yes, petitioners members are entitled to ECOLA during the
semestral break from November 7 to December 5, 1981 of the
1981-82 school year.
the principle enunciated in the Omnibus Rules Implementing
the Labor Code to wit:chanrob1es virtual 1aw library
Sec. 4. Principles in Determining Hours Worked. The
following general principles shall govern in determining
whether the time spent by an employee is considered hours
worked for purposes of this Rule:
"(d) The time during which an employee is inactive by
reason of interruptions in his work beyond his control shall be
considered time either if the imminence of the resumption of
work requires the employees presence at the place of work or
if the interval is too brief to be utilized effectively and
gainfully in the employees own interest."
The petitioners members in the case at bar, are exactly in
such a situation. The semestral break scheduled is an
interruption beyond petitioners control and it cannot be used
"effectively nor gainfully in the employees interest. Thus,
the semestral break may also be considered as "hours worked."
For this, the teachers are paid regular salaries and, for this,
they should be entitled to ECOLA. Not only do the teachers
continue to work during this short recess but much less do
they cease to live for which the cost of living allowance is
intended. The legal principles of "No work, no pay; No pay,
no ECOLA" must necessarily give way to the purpose of the
11
Desabelle, Robee Camille E. LLB-2
law to augment the income of employees to enable them to
cope with the harsh living conditions brought about by
inflation; and to protect employees and their wages against the
ravages brought by these conditions. Significantly, it is the
commitment of the State to protect labor and to provide means
by which the difficulties faced by the working force may best
be alleviated. To submit to the respondents interpretation of
the no work, no pay policy is to defeat this noble purpose. The
Constitution and the law mandate.
Anent the first issue, the various Presidential Decrees on
ECOLAs to wit: PDs 1614, 1634, 1678 and 1713, provide on
"Allowances of Fulltime Employees . . ." that "Employees
shall be paid in full the required monthly allowance regardless
of the number of their regular working days if they incur no
absences during the month. If they incur absences without pay,
the amounts corresponding to the absences may be deducted
from the monthly allowance . . ." ; and on "Leave of Absence
Without Pay", that "All covered employees shall be entitled to
the allowance provided herein when they are on leave of
absence with pay."cralaw virtua1aw library
It is beyond dispute that the petitioners members are full-time
employees receiving their monthly salaries irrespective of the
number of working days or teaching hours in a month.
However, they find themselves in a most peculiar situation
whereby they are forced to go on leave during semestral
breaks. These semestral breaks are in the nature of work
interruptions beyond the employees control. The duration of
the semestral break varies from year to year dependent on a
variety of circumstances affecting at times only the private
respondent but at other times all educational institutions in the
country. As such, these breaks cannot be considered as
absences within the meaning of the law for which deductions
may be made from monthly allowances. The "No work, no
pay" principle does not apply in the instant case. The
petitioners members received their regular salaries during this
period. It is clear from the aforequoted provision of law that it
contemplates a "no work" situation where the employees
voluntarily absent themselves. Petitioners, in the case at bar,
certainly do not, ad voluntatem, absent themselves during
semestral breaks. Rather, they are constrained to take
mandatory leave from work. For this they cannot be faulted
nor can they be begrudged that which is due them under the
law. To a certain extent, the private respondent can specify
dates when no classes would be held. Surely, it was not the
intention of the framers of the law to allow employers to
withhold employee benefits by the simple expedient of
unilaterally imposing "no work" days and consequently
avoiding compliance with the mandate of the law for those
days.chanrobles.com.ph : virtual law library
Respondents contention that "the fact of receiving a salary
alone should not be the basis of receiving ECOLA", is,
likewise, without merit. Particular attention is brought to the
Implementing Rules and Regulations of Wage Order No. 1 to
wit.
SECTION 5. Allowance for Unworked Days.
"a) All covered employees whether paid on a monthly or
daily basis shall be entitled to their daily living allowance
when they are paid their basic wage."cralaw virtua1aw library
x x x contract of employment expired, Respondent was in need of
This provision, at once refutes the above contention. It is
evident that the intention of the law is to grant ECOLA upon
the payment of basic wages. Hence, we have the principle of
"No pay, no ECOLA" the converse of which finds application
in the case at bar. Petitioners cannot be considered to be on
leave without pay so as not to be entitled to ECOLA, for, as
earlier stated, the petitioners were paid their wages in full for
the months of November and December of 1981,
notwithstanding the intervening semestral break. This, in
itself, is a tacit recognition of the rather unusual state of affairs
in which teachers find themselves. Although said to be on
forced leave, professors and teachers are, nevertheless,
burdened with the task of working during a period of time
supposedly available for rest and private matters. There are
papers to correct, students to evaluate, deadlines to meet, and
periods within which to submit grading reports. Although they
may be considered by the respondent to be on leave, the
semestral break could not be used effectively for the teachers
own purposes for the nature of a teachers job imposes upon
him further duties which must be done during the said period
of time. Learning is a never ending process. Teachers and
professors must keep abreast of developments all the time.
Teachers cannot also wait for the opening of the next semester
to begin their work. Arduous preparation is necessary for the
delicate task of educating our children. Teaching involves not
only an application of skill and an imparting of knowledge,
but a responsibility which entails self dedication and sacrifice.
The task of teaching ends not with the perceptible efforts of
the petitioners members but goes beyond the classroom: a
continuum where only the visible labor is relieved by
academic intermissions. It would be most unfair for the private
respondent to consider these teachers as employees on leave
without pay to suit its purposes and, yet, in the meantime,
continue availing of their services as they prepare for the next
semester or complete all of the last semesters requirements.
G.R. No. 96078 January 9, 1992
HILARIO RADA, petitioner,
vs.
NATIONAL LABOR RELATIONS COMMISSION
(Second Division) and PHILNOR CONSULTANTS AND
PLANNERS, INC., respondents.
Facts:
The facts, as stated in the Comment of private respondent
Philnor Consultants and Planners, Inc. (Philnor), are as
follows:
Petitioner's initial employment with this Respondent was
under a "Contract of Employment for a Definite Period" dated
July 7, 1977, copy of which is hereto attached and made an
integral part hereof as Annex A whereby Petitioner was hired
as "Driver" for the construction supervision phase of the
Manila North Expressway Extension, Second Stage
(hereinafter referred to as MNEE Stage 2) for a term of "about
24 months effective July 1, 1977.
Petitioner's first contract of employment expired on June 30,
1979. Meanwhile, the main project, MNEE Stage 2, was not
finished on account of various constraints, not the least of
which was inadequate funding, and the same was extended
and remained in progress beyond the original period of 2.3
years. Fortunately for the Petitioner, at the time the first
Driver for the extended project. Since Petitioner had the
necessary experience and his performance under the first
contract of employment was found satisfactory, the position of
Driver was offered to Petitioner, which he accepted. Hence a
second Contract of Employment for a Definite Period of 10
12
Desabelle, Robee Camille E. LLB-2
months, that is, from July 1, 1979 to April 30, 1980 was
executed between Petitioner and Respondent on July 7, 1979. .
..
In March 1980 some of the areas or phases of the project were
completed, but the bulk of the project was yet to be finished.
By that time some of those project employees whose contracts
of employment expired or were about to expire because of the
completion of portions of the project were offered another
employment in the remaining portion of the project. Petitioner
was among those whose contract was about to expire, and
since his service performance was satisfactory, respondent
renewed his contract of employment in April 1980, after
Petitioner agreed to the offer. Accordingly, a third contract of
employment for a definite period was executed by and
between the Petitioner and the Respondent whereby the
Petitioner was again employed as Driver for 19 months, from
May 1, 1980 to November 30, 1981, . . .
This third contract of employment was subsequently extended
for a number of times, the last extension being for a period of
3 months, that is, from October 1, 1985 to December 31, 1985,
...
The last extension, from October 1, 1985 to December 31,
1985 (Annex E) covered by an "Amendment to the Contract of
Employment with a Definite Period," was not extended any
further because Petitioner had no more work to do in the
project. This last extension was confirmed by a notice on
November 28, 1985 duly acknowledged by the Petitioner the
very next day, . . .
Sometime in the 2nd week of December 1985, Petitioner
applied for "Personnel Clearance" with Respondent dated
December 9, 1985 and acknowledged having received the
amount of P3,796.20 representing conversion to cash of
unused leave credits and financial assistance. Petitioner also
released Respondent from all obligations and/or claims, etc. in
a "Release, Waiver and Quitclaim" . . . 2
Culled from the records, it appears that on May 20, 1987,
petitioner filed before the NLRC, National Capital Region,
Department of Labor and Employment, a Complaint for non-
payment of separation pay and overtime pay. On June 3, 1987,
Philnor filed its Position Paper alleging, inter alia, that
petitioner was not illegally terminated since the project for
which he was hired was completed; that he was hired under
three distinct contracts of employment, each of which was for
a definite period, all within the estimated period of MNEE
Stage 2 Project, covering different phases or areas of the said
project; that his work was strictly confined to the MNEE Stage
2 Project and that he was never assigned to any other project
of Philnor; that he did not render overtime services and that
there was no demand or claim for him for such overtime pay;
that he signed a "Release, Waiver and Quitclaim" releasing
Philnor from all obligations and claims; and that Philnor's
business is to provide engineering consultancy services,
including supervision of construction services, such that it
hires employees according to the requirements of the project
manning schedule of a particular contract. 3
On July 2, 1987, petitioner filed an Amended Complaint
alleging that he was illegally dismissed and that he was not
paid overtime pay although he was made to render three hours
overtime work form Monday to Saturday for a period of three
years.
On July 28, 1987, Philnor filed its Respondent's Supplemental
Position Paper, alleging therein that petitioner was not a
company driver since his job was to drive the employees hired
to work at the MNEE Stage 2 Project to and from the filed
office at Sto. Domingo Interchange, Pampanga; that the office
hours observed in the project were from 7:00 a.m. to 4:00 p.m.
Mondays through Saturdays; that Philnor adopted the policy
of allowing certain employees, not necessarily the project
driver, to bring home project vehicles to afford fast and free
transportation to and from the project field office considering
the distance between the project site and the employees'
residence, to avoid project delays and inefficiency due to
employee tardiness caused by transportation problem; that
petitioner was allowed to use a project vehicle which he used
to pick up and drop off some ten employees along Epifanio de
los Santos Avenue (EDSA), on his way home to Marikina,
Metro Manila; that when he was absent or on leave, another
employee living in Metro Manila used the same vehicle in
transporting the same employees; that the time used by
petitioner to and from his residence to the project site from
5:30 a.m. to 7:00 a.m. and from 4:00 p.m. to 6:00 p.m., or
about three hours daily, was not overtime work as he was
merely enjoying the benefit and convenience of free
transportation provided by Philnor, otherwise without such
vehicle he would have used at least four hours by using public
transportation and spent P12.00 daily fare; that in the case of
Quiwa vs. Philnor Consultants and Planners, Inc., supra, the
NLRC upheld Philnor's position that Quiwa was a project
employee and he was not entitled to termination pay under
Policy Instructions No. 20 since his employment was
coterminous with the completion of the project.
Issue: Whether or not petitioner is entitled to overtime
compensation covering the travel time of three hours?
Ruling:
Yes, anent the claim for overtime compensation, the Court
held that petitioner is entitled to the same. The fact that he
picks up employees of Philnor at certain specified points along
EDSA in going to the project site and drops them off at the
same points on his way back from the field office going home
to Marikina, Metro Manila is not merely incidental to
petitioner's job as a driver. On the contrary, said transportation
arrangement had been adopted, not so much for the
convenience of the employees, but primarily for the benefit of
the employer, herein private respondent. This fact is inevitably
deducible from the Memorandum of respondent company:
The herein Respondent resorted to the above transport
arrangement because from its previous project construction
supervision experiences, Respondent found out that project
delays and inefficiencies resulted from employees' tardiness;
and that the problem of tardiness, in turn, was aggravated by
transportation problems, which varied in degrees in proportion
to the distance between the project site and the employees'
residence. In view of this lesson from experience, and as a
practical, if expensive, solution to employees' tardiness and its
concomitant problems, Respondent adopted the policy of
allowing certain employees not necessarily project drivers
to bring home project vehicles, so that employees could be
afforded fast, convenient and free transportation to and from
the project field office. . . . 15
Private respondent does not hesitate to admit that it is usually
the project driver who is tasked with picking up or dropping
off his fellow employees. Proof thereof is the undisputed fact
that when petitioner is absent, another driver is supposed to
replace him and drive the vehicle and likewise pick up and/or
drop off the other employees at the designated points on
EDSA. If driving these employees to and from the project site
is not really part of petitioner's job, then there would have
been no need to find a replacement driver to fetch these
13
Desabelle, Robee Camille E. LLB-2
employees. But since the assigned task of fetching and
delivering employees is indispensable and consequently
mandatory, then the time required of and used by petitioner in
going from his residence to the field office and back, that is,
from 5:30 a.m. to 7:00 a.m. and from 4:00 p.m. to around 6:00
p.m., which the labor arbiter rounded off as averaging three
hours each working day, should be paid as overtime work.
Quintessentially, petitioner should be given overtime pay for
the three excess hours of work performed during working days
from January, 1983 to December, 1985.
[G.R. No. 100388. December 14, 2000]
SOCIAL SECURITY SYSTEM, petitioner, vs. THE
COURT OF APPEALS and CONCHITA AYALDE,
respondents.
Facts:
Issue: Whether or not a payroll is an absolute proof of
employment?
Whether or not an agricultural laborer who was hired on
pakyaw basis can be considered an employee entitled to
compulsory coverage and corresponding benefits under the
Social Security Law?
Ruling:
1. No, a payroll is not an absolute proof of employment. No
particular form of evidence is required to prove the existence
of an employer-employee relationship. Any competent and
relevant evidence to prove the relationship may be admitted.
For, if only documentary evidence would be required to show
that relationship, no scheming employer would ever be
brought before the bar of justice, as no employer would wish
to come out with any trace of the illegality he has authored
considering that it should take much weightier proof to
invalidate a written instrument. Thus, as in this case where the
employer-employee relationship between petitioners and Esita
was sufficiently proved by testimonial evidence, the absence
of time sheet, time record or payroll has become
inconsequential.
The witnesses did not waver in their assertion that while Tana
was hired by Ayalde as an arador on pakyaw basis, he was
also paid a daily wage which Ayaldes overseer disbursed
every fifteen (15) days. It is also undisputed that they were
made to acknowledge receipt of their wages by signing on
sheets of ruled paper, which are different from those presented
by Ayalde as documentary evidence. In fine, we find that the
testimonies of Margarita Tana, Agaton Libawas and Aurelio
Tana prevail over the incomplete and inconsistent
documentary evidence of Ayalde.
2. Yes, petitioner should be covered by the Social Security
Law. Clearly, then, the testimonial evidence of the claimant
and her witnesses constitute positive and credible evidence of
the existence of an employer-employee relationship between
Tana and Ayalde. As the employer, the latter is duty-bound to
keep faithful and complete records of her business affairs, not
the least of which would be the salaries of the workers. And
yet, the documents presented have been selective, few and
incomplete in substance and content. Consequently, Ayalde
has failed to convince us that, indeed, Tana was not her
employee.
The argument is raised that Tana is an independenent
contractor because he was hired and paid wages on pakyaw
basis. First, while Tana was sometimes hired as an arador or
plower for intermittent periods, he was hired to do other tasks
in Ayaldes plantations. Ayalde herself admitted as much,
although she minimized the extent of Tanas labors. When a
worker possesses some attributes of an employee and others of
an independent contractor, which make him fall within an
intermediate area, he may be classified under the category of
an employee when the economic facts of the relations make it
more nearly one of employment than one of independent
business enterprise with respect to the ends sought to be
accomplished. A closer scrutiny of the records, however,
reveals that while Ayalde herself may not have directly
imposed on Tana the manner and methods to follow in
performing his tasks, she did exercise control through her
overseer.
Be that as it may, the power of control refers merely to the
existence of the power. It is not essential for the employer to
actually supervise the performance of duties of the employee;
it is sufficient that the former has a right to wield the
power.[24] Certainly, Ayalde, on her own or through her
overseer, wielded the power to hire or dismiss, to check on the
work, be it in progress or quality, of the laborers. As the
owner/lessee of the plantations, she possessed the power to
control everyone working therein and everything taking place
therein.
Jurisprudence provides other equally important considerations
which support the conclusion that Tana was not an
independent contractor. First, Tana cannot be said to be
engaged in a distinct occupation or business. His carabao and
plow may be useful in his livelihood, but he is not
independently engaged in the business of farming or plowing.
Second, he had been working exclusively for Ayalde for
eighteen (18) years prior to his demise. Third, there is no
dispute that Ayalde was in the business of growing sugarcane
in the two plantations for commercial purposes. There is also
no question that plowing or preparing the soil for planting is a
major part of the regular business of Ayalde.
G.R. No. L-1309 July 26, 1948
THE SHELL COMPANY OF PHILIPPINE ISLANDS,
LIMITED, recurrente,
vs.
NATIONAL LABOR UNION, recurrida
Facts:
Acting on a petition from the labor body called the "National
Labor Union," the Industrial Relations Court has issued a
ruling in which, inter alia, the oil firm "The Shell Company of
Philippine Islands, To their workers who work at night (from
sunset until they get up the next day) an additional
compensation of 50% on their regular wages if they worked
during the day. It seems that the company needs the night
service of a certain number of workers, since the planes
coming from abroad usually land and take off at night, which
is why it is necessary to do night work for the supply of
gasoline and lubricants, and for other things.
In the case in question, there is undoubtedly an industrial
dispute. While the company, the Shell company, is not willing
to pay its workers at night higher salaries than the workers, the
"NationalLabor Union", to which Shell workers are affiliated,
demands another type of salary for the service Night - 50%
more. This is the dispute, industrial litigation.
14
Desabelle, Robee Camille E. LLB-2
Issue: Whether or not the workers who work at night (from
sunset until they get up the next day) are entitled to an
additional compensation of 50% on their regular wages if they
worked during the day? Whether or not night shift work is
considered as a full day of work?
Ruling:
Yes, workers who work at night (from sunset until they get up
the next day) are entitled to an additional compensation of
50% on their regular wages.
For it is precisely what is said in the Commonwealth Law No.
103, an organic charter of its creation and operation, namely to
consider, investigate and prosecute the dispute, then resolve it
in the sense in which it has been resolved, that is, by
remunerating the work At night with 50% more of the day's
wages. There is no possible argument against the universal
fact that regular, normal and ordinary labor is day labor, and
that night work is very exceptional and justified only by
certain imperatively unavoidable reasons. For something
mankind has always worked during the day.
Reasons for hygiene, medicine, morality, culture, sociology,
establish that the work of nocho has many disadvantages, and
when there is no choice but to do so, it is only fair that you
pay better than usual to compensate for a certain Point to the
worker of such inconveniences. Undoubtedly, night work not
only affects the worker's health in the long run, it deprives the
worker of certain things that make life relatively pleasant,
such as a complete and uninterrupted rest and certain moments
of solace , Leisure or spiritual and cultural expansion that
could have at the end of the work in the evening and during
the early hours of the night. It is said that the worker can rest
during the day after having worked all night; But can the rest
of the day give the body that tonic and that complete
restorative effect which can only provide the natural rest at
night? It is also said that some prefer to work at night under
our scorching weather, thus avoiding the heat of the day. We
fear, however, that this is better spoken than practiced. We
believe that from time immemorial the universal rule is that
man works at night more by irremediable necessity than by
pleasant convenience.
To vulgar, universal opinion, we must add the previous
opinion, the expert criterion. The opinion of the writers and
experts militates decisively in favor of the thesis that night
work is harder and more costly than day labor, considering for
this with marked repugnance and consequently compelling
capitalist management to establish a higher scale Of wages as
an incentive to the workers to accept it . We could cite several
authorities, but not to extend this paper too much we chose to
transcribe only some, namely:
. . . Then, it must be remembered that it is distinctly
unphysiological to turn the night into day and deprive the
body of the beneficial effects of sunshine. The human
organism revolts against this procedure. Added to artificial
lighting are reversed and unnatural times of eating, resting,
and sleeping. Much of the inferiority of nightwork can
doubtless be traced to the failure of the workers to secure
proper rest and sleep, by day. Because of inability or the lack
of opportunity to sleep, nightworkers often spend their days in
performing domestic duties, joining the family in the midday
meal, 'tinkering about the place', watching the baseball game,
attending the theater or taking a ride in the car. It is not strange
that nightworkers tend to be less efficient than dayworkers and
lose more time. . . (The Management of Labor Relations, by
Watkins & Dodd, page 524.).
Nightwork. Nightwork has gained a measure of
prominence in the modern industrial system in connection
with continuous industries, that is, industries in which the
nature of the processes makes it necessary to keep machinery
and equipment in constant operation. Even in continuous
industries the tendency is definitely in the direction of FOUR
shifts of 6 hours each, with provision for an automatic change
of shift for all workers at stated intervals. Some discussion has
taken place with regard to the lengths of the period any
workers should be allowed to remain on the night shift. A
weekly change of shifts is common, specially where three or
four shifts are in operation; in other cases the change is made
fortnightly or monthly; in still other instances, no alternation is
provided for, the workers remaining on day or nightwork
permanently, except where temporary changes are made for
individual convenience.
There is sharp difference of opinion concerning the relative
merits of these systems. Advocates of the weekly change of
shifts contend that the strain of nightwork and the difficulty of
getting adequate sleep during the day make it unwise for
workers to remain on the"graveyard" shift for more than a
week at a time. Opponents urge that repeated changes make it
more difficult to settle down to either kind of shift and that
after the first week nightwork becomes less trying while the
ability to sleep by day increases. Workers themselves react in
various ways to the different systems. This much, however, is
certain: Few persons react favorably to nightwork, whether the
shift be continuous or alternating. Outside of continuous
industries, nightwork can scarcely be justified, and, even in
these, it presents serious disadvantages which must be
recognized in planing for industrial efficiency, stabilization of
the working force, the promotion of industrial good-will, and
the conservation of the health and vitality of the workers.
Nightwork cannot be regarded as desirable, either from the
point of view of the employer or of the wage earner. It is
uneconomical unless overhead costs are unusually heavy.
Frequently the scale of wages is higher as an inducement to
employees to accept employment on the night shift, and the
rate of production is generally lower. (Management of Labor
Relations, by Watkins & Dodd, pp. 522-524; emphasis ours.)
. . . The lack of sunlight tends to produce anemia and
tuberculosis and to predispose to other ills. Nightwork brings
increased liability to eyestrain and accident. Serious moral
dangers also are likely to result from the necessity of traveling
the streets alone at night, and from the interference with
normal home life. From an economic point of view, moreover,
the investigations showed that nightwork was unprofitable,
being inferior to day work both in quality and in quantity.
Wherever it had been abolished, in the long run the efficiency
both of the management and of the workers was raised.
Furthermore, it was found that nightwork laws are a valuable
aid in enforcing acts fixing the maximum period of
employment. (Principles of Labor Legislation, by Commons
and Andrews, 4th Revised Edition, p. 142.)
Special regulation of nightwork for adult men is a
comparatively recent development. Some European countries
have adopted laws placing special limitations on hours of
nightwork for men, and others prohibit such work except in
continuous processes. (Principles of Labor legislation, 4th
Revised Edition by Common & Andrews, p. 147.)
Nightwork has almost invariably been looked upon with
disfavor by students of the problem because of the excessive
strain involved, especially for women and young persons, the
large amount of lost time consequent upon exhaustion of the
workers, the additional strain and responsibility upon the
15
Desabelle, Robee Camille E. LLB-2

executive staff, the tendency of excessively fatigued workers
to "keep going" on artificial stimulants, the general
curtailment of time for rest, leisure, and cultural improvement,
and the fact that night workers, although precluded to an
extent from the activities of day life, do attempt to enter into
these activities, with resultant impairment of physical well-
being. It is not contended, of course, that nightwork could be
abolished in the continuous-process industries, but it is
possible to put such industries upon a three- or four-shifts
basis, and to prohibit nightwork for women and children.
(Labor's Progress and Problems, Vol. I, p. 464, by Professors
Millis and Montgomery.)
Nightwork. Civilized peoples are beginning to recognize
the fact that except in cases of necessity or in periods of great
emergency, nightwork is socially undesirable. Under our
modern industrial system, however, nightwork has greatly
aided the production of commodities, and has offered a
significant method of cutting down the ever-increasing
overhead costs of industry. This result has led employers to
believe that such work is necessary and profitable. Here again
one meets a conflict of economic and social interests. Under
these circumstances it is necessary to discover whether
nightwork has deleterious effects upon the health of laborers
and tends to reduce the ultimate supply of efficient labor. If it
can proved that nightwork affects adversely both the quality
and quantity of productive labor, its discontinuance will
undoubtedly be sanctioned by employers. From a social point
of view, even a relatively high degree of efficiency in night
operations must be forfeited if it is purchased with rapid
exhaustion of the health and energy of the workers. From an
economic point of view, nightwork may be necessary if the
employer is to meet the demand for his product, or if he is to
maintain his market in the face of increasing competition or
mounting variable production costs.
especially for women, is regarded by all investigators as
undesirable. Women on continuous nightwork are likely to
perform domestic duties, and this added strain undoubtedly
accounts for the poorer results of their industrial activities.
The tendency to devote to amusement and other things the
time that should be spent in rest and sleep is certainly as
common among men as among women workers and accounts
largely for the loss of efficiency and time on the part of both
sexes in nightwork.
The case against nightwork, then, may be said to rest upon
several grounds. In the first place, there are the remotely
injurious effects of permanent nightwork manifested in the
later years of the worker's life. Of more immediate importance
to the average worker is the disarrangement of his social life,
including the recreational activities of his leisure hours and the
ordinary associations of normal family relations. From an
economic point of view, nightwork is to be discouraged
because of its adverse effect upon efficiency and output. A
moral argument against nightwork in the case of women is
that the night shift forces the workers to go to and from the
factory in darkness. Recent experiences of industrial nations
have added much to the evidence against the continuation of
nightwork, except in extraordinary circumstances and
unavoidable emergencies. The immediate prohibition of
nightwork for all laborers is hardly practicable; its
discontinuance in the case of women employees is
unquestionably desirable. 'The night was made for rest and
sleep and not for work' is a common saying among wage-
earning people, and many of them dream of an industrial order
in which there will be no night shift.

Industrial experience has shown that the possession of extra-

ordinary physical strength and self-control facilitates the
reversal of the ordinary routine of day work and night rest,
with the little or no unfavorable effect on health and
efficiency. Unusual vitality and self-control, however, are not
common possessions. It has been found that the most serious
obstacle to a reversal of the routine is the lack of self-
discipline. Many night workers enter into the numerous
activities of day life that preclude sleep, and continue to
attempt to do their work at night. Evidence gathered by the
British Health of Munition Workers' Committee places
permanent night workers, whether judged on the basis of
output or loss of time, in a very unfavorable positions as
compared with day workers.

Systems of nightwork differ. There is the continuous system,

in which employees labor by night and do not attend the
establishment at all by day, and the discontinuous system, in
which the workers change to the day turn at regular intervals,
usually every other week. There are, of course, minor
variations in these systems, depending upon the nature of the
industry and the wishes of management. Such bodies as the
British Health Munition Workers' Committee have given us
valuable conclusions concerning the effect of nightwork.
Continuous nightwork is definitely less productive than the
discontinuous system. The output of the continuous day shift
does not make up for this loss in production.

There is, moreover, a marked difference between the rates of

output of night and day shifts on the discontinuous plan. In
each case investigated the inferiority of night labor was
definitely established. This inferiority is evidently the result of
the night worker's failure to secure proper amounts of sleep
and rest during the day. The system of continuous shifts,
16