10) Mercidar Fishing Corp v.

NLRC, 8 October 1998 (CARO) The meaning of whose actual hours of work in the filed cannot be determined with
Petitioner: Mercidar Fishing Corporation represented by Pres. Domingo Naval
Respondent: NLRC and Fermin Agao, Jr.
Working Conditions - Coverage
Facts:
- Fermin Agao filed a complaint against Mercidar for illegal dismissal, 13th month pay, and
nonpayment of 5 days service incentive leave.
- Agaos version: He was employed as a bodegero or ships quartermaster; he was
constructively dismissed Mercidar refused to assign him to the boats after he reported
to work from a sick leave.
- Agao said that he was allowed to go on sick leave for 1 month without pay and to return
after he gets health clearance; however when he returned to work, he was told to come
back another time as he could not be immediately reinstated.
- Agao then asked for a certificate of employment which Mercidar refused to issue unless
he submits his resignation. Agao refused to submit his resignation unless he was
given separation pay Mercidar then prevented him from entering the premises
- Mercidars version: It claims Agao actually abandoned his work when he failed to report
for work after his leave expired. He was in fact absent without leave for 3 months, but
nonetheless, Mercidar assigned him to another vessel. Agao then asked for the
certificate of employment on the pretext that he was applying to another fishing
company, but he refused to receive it unless he be paid separation pay and benefits.
- LA Agao, ordering Mercidar to reinstate him and pay 13th month pay and incentive
leave pay
- NLRC dismissed appeal for lack of merit; dismissed petitioners claim that it cannot
be held liable for service incentive leave pay by fishermen in its employ as the latter
supposedly are field personnel and thus not entitled to such pay under the Labor Code.
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. CoverageThis rule shall apply to all employees except: xxx
(e) Field personnel and other employees whose time and performance is unsupervised
by the employer
The above rule does not add an element to the definition of field personnel, it just expounds
the meaning of the above phrase. Hence, in deciding whether or not an employees actual
working hours in the field can be determined with reasonable certainty, query must be made
as to whether or not such employees time and performance is constantly supervised by the
employer. If the employer has absolutely no way of reasonably ascertaining whether the
employee is actually doing field work during the stipulated period of work hours, then such
worker is a field personnel.
Here, during the entire course of their fishing voyage, Mercidars fishermen 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 [bc they cant make takas so Mercidar knows that
theyre working on the boat]. Petition dismissed.

Issue: W/N fishing crew members are field personnel and are thus not entitled to incentive
leave pay? NO.

Mercidars argument:
Since Agaos work is performed away from Mercidars principal place of business [bc hes
works on a boat at sea], it has no way of verifying his actual hours of work on the vessel. It
contends that Agao and other fishermen in its employ should be classified as field personnel
who have no statutory right to service incentive leave pay.

Held: 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.
xxx
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.