330 Phil. 1003
PANGANIBAN, J.:
"Pursuant to its desire to be less dependent on oil-generated power, our government encourages the exploration and use of alternative sources of energy, one of which is geothermal power. PGI is engaged in this particular line of business. Through the National Power Corporation, government consequently tapped PGI to develop, explore and promote the use of geothermal energy. PGI has exploration wells located in the province of Laguna and the Bicol Region (TIWI, Albay) where they (geothermal energy) are known to be abundant.After considering the respective position papers and documentary evidence of the parties, the labor arbiter rendered his decision finding that the case fell exactly within the ambit of Policy Instructions No. 20,[6] series of 1977 of the Department of Labor and Employment, and that all the petitioners, whose employments were shown to have been intermittent ("off and on"), were clearly project employees of BOWSC and not regular employees (whether of BOWSC or PGI), and since their services had been terminated as the project (or phases thereof) drew closer to completion, said terminations were valid for being in accord with said Policy Instructions No. 20; hence, they were not entitled to the claimed benefits, which are due only to regular employees.
Due to the 'peculiar nature' of the multifarious activities undertaken in each project site, PGI subsequently engaged the services of contractors to perform particular work/job in certain phases of its project. One of the contractors commissioned by PGI was respondent-appellee BOWSC. The 'Job Contracting Agreement' between PGI (referred to therein as the OPERATOR) and BOWSC (then known as C.B. DL Labor and Allied Services Co., likewise referred to therein as the CONTRACTOR) specifically stated, that:"WHEREAS, the OPERATOR has a contract with the National Power Corporation for the exploration and exploitation of geothermal resources on the Island of Luzon, Philippines and is now operating in the Tiwi and Mak-Bank geothermal areas within the province of Albay and Laguna, respectively;Pursuant thereto, BOWSC recruited workers to undertake its contractual obligations in favor of PGI. In the process, complainants (petitioners herein) were individually engaged as pipe fitters and pipe welders on different occassions (sic) and at different periods of time (various annexes to parties' position papers enumerated here). Depending on the need for their individual services, (petitioners) were consequently terminated but were then re-hired by BOWSC.
WHEREAS, the OPERATOR is desirous of contracting out parts and phases of its works in its operations in the Tiwi area to bona fide independent job contractors;
WHEREAS, the CONTRACTOR has the legal, capacity, professional ability, manpower capability, and is possessed of sufficient implements and capitalization to undertake such contracts and works that can meet the needs of the OPERATOR.
x x x x x x x x x
1.1 The OPERATOR shall engage the CONTRACTOR to work on such parts (and) phases of the former's operations as may from time to time be found by the OPERATOR to be suitable, proper, and feasible for job contracting by the CONTRACTOR. This Agreement shall not prevent the OPERATOR from engaging the services of other independent contractors for other parts and phases of its operations as its deems necessary.
1.2 The OPERATOR shall issue a written work order to the CONTRACTOR for each job. The CONTRACTOR shall acknowledge acceptance of the terms and receipt of the work order by signing his acceptance thereof.
2. WORK SPECIFICATIONS
2.1 The OPERATOR shall provide the plans and determine the work specifications of each job to be contracted, and shall, from time to time, advise the CONTRACTOR of any change in such plans or specifications including any change in the time limits for the completion of each job. In the same manner, the CONTRACTOR shall inform the OPERATOR, within twenty-four (24) hours from its occurrence (sic), of any change in its work schedule, manpower size and other operational problems.
2.2 The CONTRACTOR shall be responsible for the completion of each job according to the aforesaid plans and specifications and within the time set for its completion. x x x
x x x x x x x x x
2.5 For the purpose of carrying out paragraphs 2.1 and 2.2 hereof, and in order to establish an effective working coordination between the parties, the OPERATOR shall assign a representative to every job being worked by the CONTRACTOR to give instructions to and receive advise from the CONTRACTOR. The CONTRACTOR shall maintain a field office at the worksite with a representative assigned there(to) to receive instructions from and give advise to the OPERATOR.
3. FEE ARRANGEMENT
3.1 For services rendered, the OPERATOR undertakes to reimburse the CONTRACTOR as follows:
a) For work performed on a lump-sum basis, OPERATOR shall pay the CONTRACTOR the amount billed for progress payments up to a total of ninety percent of the lump-sum amount. OPERATOR shall pay the balance due the CONTRACTOR upon completion and acceptance of the work.
b) For work on a force-account basis, OPERATOR shall pay all sums due to CONTRACTOR at the end of each billing period. Labor and use of equipment shall be paid in accordance with CONTRACTOR's unit price schedule, which shall indicate an effective date of the price schedule, ANNEX 'A'.
x x x x x x x x x
4. INDEPENDENT JOB CONTRACTOR
4.1 The CONTRACTOR shall provide itself with the equipment, tools and implements needed for carrying out each work order, except those highly technical equipment required for drilling and other phases of operations which shall be provided by the OPERATOR, or those equipment which the OPERATOR elects to provide.
4.2 The CONTRACTOR shall be responsible for the recruitment, hiring, placement, assignment, supervision, promotion, disciplining and termination or lay-off of its employees assigned to the job contracts. It shall be responsible for the payment of such employees' salaries or wages; allowances, vacation leaves, incentive leaves, (sick) leaves, holiday and rest day pay and premiums, overtime work pay, termination or separation pay, retirement pay, or any other remuneration pay due them whether by provision of law, contract or employment practice. The CONTRACTOR shall also be responsible for its employees' membership with the SSS/EC/Medicare or any other compulsory system and for the payment of the corresponding membership fees and premiums thereof and shall furnish to the OPERATOR proof of such membership. The CONTRACTOR shall likewise be responsible for any and all employment benefits that may now or hereafter accrue by law, contract (or) employer grant;
4.3 The CONTRACTOR agree (sic) to withdraw from the OPERATOR's project: (a) employees whose employment is for fixed periods upon the expiration of their contracts; (b) those whose employment is coterminous with the project, upon the completion of the project; (c) those whose services are no longer needed due to partial completion of the project or where their particular skills are no longer necessary; or (d) those who are found to be in violation of the OPERATOR's rules on conduct, safety, and standard operating procedures. The OPERATOR hereby reserves the right to determine at anytime during the effectivity of this Agreement, the occurrence of any of the foregoing causes for withdrawal of the CONTRACTOR's Employees from the projects.
x x x x x x x x x
4.6 The CONTRACTOR shall at all times, while work is being performed, have a competent superintendent on the job site who shall be in complete control (of) all the work. He shall be the only person of the CONTRACTOR's field employees who will be contacted for information and to whom instructions will be given by PGI's field representatives. Instructions given to said superintendent by OPERATOR shall be binding on the CONTRACTOR as if given directly to the CONTRACTOR. The superintendent shall be capable of laying out all work from the designs and specifications set forth by the OPERATOR." (Annex "A", PGI Position Paper)
From May 31 1991 to July 31, 1991, (petitioners) were terminated by BOWSC purportedly on the basis of the 'completion of several P.G.I. projects' or its 'slowing down' thereof. This fact was clearly stated in the individual termination letters addressed to each of the (petitioners) (more annexes cited). From June 28, 1991 to August 2, 1991, (petitioners) individually instituted their instant complaints at the Arbitration Branch below (Regional Arbitration Branch in Legaspi City). They prayed that they be reinstated and awarded their pecuniary claims. They also prayed that BOWSC be declared to be a 'labor-only contractor', and consequently, to declare them to be regular employees of PGI.
(Petitioners) aver that they are already regular employees of PGI because:
1. They each have rendered more than one year of service to PGI specifically citing Article 280 of the amended Labor Code;
2. The service they render are not only usual and necessary, but are essential to the main line of business of PGI;
3. BOWSC is merely a 'labor-only contractor' and therefore, PGI should be considered their true and lawful employer;
4. BOWSC does not have the requisite capital, tools, and equipment to validly pursue the work it undertook to perform in favor of PGI. In fact, they further claim that even the tools they use in performing their work is owned by PGI. Corollarily, it is argued that BOWSC does not even have the technical experties (sic) and capability to perform the job contracted to it by PGI;
5. Complainants are controlled and supervised by PGI technical field personnel (referring to respondent Rodolfo Cerdeno);
Meeting the arguments interposed therein, respondent's De Leon and Barba representing BOWSC aver that:
1. (Petitioners) are all their employees. They were all individually hired and engaged by BOWSC particularly for the PGI project.
2. BOWSC is an independent contractor. BOWSC meets the requirements to be validly considered as such.
3. BOWSC has an existing job-contract with PGI. Consequently, BOWSC directly exercises supervision and control over all the (petitioners).
4. Salaries and other wages due (petitioners) are directly paid to all of them by BOWSC alone.
5. It is solely BOWSC who terminated the services of the (petitioners), and who again re-hired them according to the need/demand for their individual services.
On their part, PGI postulated the following defenses, to wit:
1. There is no privity of contract between the individual (petitioners) and PGI. It was BOWSC alone who engaged (petitioners') services. BOWSC is, therefore, the employer of complainants. As far as PGI is concerned, it does not know any of the individual (petitioners). Wages and other benefits due the (petitioners) are solely paid by BOWSC.
2. BOWSC is an independent contractor who meets the requisites defined by law to be validly considered as such.
3. There is an existing 'Job Contracting Agreement' between PGI and BOWSC. (Petitioners) were detailed by BOWSC the PGI project pursuant to said contract.
4. PGI does not control and/or supervise the (petitioners).
5. It was solely BOWSC who terminated each of the (petitioners).
In the arbitration proceedings below, (petitioners) presented, among others, the following documentary evidence to buttress their claims that they are actually employees of PGI, not BOWSC, to wit: a) Daily Time Records x x x, to show that PGI required each of them to register their arrival and departure in the project site; (b) Borrower's Slip x x x, to show that they borrowed tools and other equipments owned by PGI in the conduct of their work; (c) Manpower Progress Report x x x, to show that they even reported their activities to PGI; and (d) PGI Memorandum dated 19 June 1991 addressed to BOWSC Supervisors, Team Leaders and Work Personnel x x x, to show that PGI directly Supervised them and even assigned them to specific work groups."
1. Rodrigo Bordeos P9,464.00Dissatisfied, petitioners interposed an appeal to respondent. Commission which, in the now-assailed Resolution, dismissed the same for lack of merit and affirmed the decision of the arbiter. The financial assistance was upheld as BOWSC did not appeal from the arbiter's ruling.
2. Lorenzo Belo 9,464.00
3. Romeo Bueno 17,628.00
4. Hermie Crucillo 3,328.00
5. Reynaldo Ceruma 12,324.00
6. Leo Cerullo 11,754.00
7. Salvador Consuelo 11,754.00
8. Edgar Concina 14,196.00
9. Godofredo Cas 4,732.00
10. Lorenzo ClariƱo 4,108.00
GRAND TOTAL P98,752.00
Other claims are dismissed for lack of merit."
"I - The resolution of public respondent contains a finding not disclosed by the records.But the main issues in this case are whether BOWSC was an independent job contractor, or a labor-only contractor, (the answer to which will determine whether an employer-employee relationship exists between PGI and the petitioners), and whether petitioners were project employees, asfound by the arbiter and affirmed by respondent NLRC, or regular employees, as claimed by petitioners (which in turn determines the subsidiary question of the legality of their dismissal).
II. - Public respondent committed grave abuse of discretion in concluding that BOWSC is a legitimate contractor.
III - Public respondent committed grave abuse of discretion in concluding that petitioners are project employees.
IV - Public respondent committed; grave abuse of discretion in concluding that petitioners were legally dismissed."
"As a rule, the original and exclusive jurisdiction to review a decision or resolution of respondent NLRC, in a petition for certiorari under Rule 65 of the Rules of Court, does not include a correction of its evaluation of the evidence but is confined to issues of jurisdiction or grave abuse of discretion."[14]And, more than just a settled rule, it is a doctrine approximating immutability that the factual findings of labor tribunals are conclusive and binding on this Court when supported by substantial evidence.[16] We reiterate that:
"x x x In certiorari proceedings under Rule 65 of the Rules of Court, judicial review by this Court does not go so far as to evaluate the sufficiency of evidence upon which the Labor Arbiter and the NLRC based their determinations, the inquiry being limited essentially to whether or not said public respondents had acted, without or in excess of x x x jurisdiction or with grave abuse of discretion. x x x."[15]
"The NLRC's factual findings, if supported by substantial evidence, are entitled to great respect and even finality, unless petitioner is able to show that it simply and arbitrarily disregarded evidence before it or had misapprehended evidence to such an extent as to compel a contrary conclusion if such evidence had been properly appreciated."[17]Petitioners have precisely failed in that respect. A close look at the NLRC Resolution in question, which upheld the arbiter's decision, confirms that the findings of facts therein are supported by substantial evidence.[18] Hence, they can no longer be disturbed by this Court.
"The agreement (Job Contracting Agreement) confirms the status of BOWSC as an independent contractor not only because BOWSC is explicitly and specifically described as such, but also because its provisions specifically permit BOWSC to perform the stipulated services to PGI without being subject to the control of the latter, except only as to the result of the work to be performed (Ibid., Singer Sewing Machine Company vs. Drilon, p. 276). While it may be true that (petitioners) were required to submit manpower progress reports and to register their respective arrivals and departures) through individual time cards, these, to our mind, are not enough indicators to demonstrate control of PGI over them. At most, they merely ensure order in the project site. But they do not indicate PGI's control over the means BOWSC, through (petitioners), will perform the work it contracted to do. This conclusion of ours finds support in jurisprudence. In a similar case, the Supreme Court recently held, that:
'The requirement that collection agents utilize only receipt forms and report forms issued by the Company and that reports shall be submitted at least once a week is not necessarily an indication of control over the means by which the job of collection is to be performed. The agreement itself specifically explains that receipt forms shall be used for the purpose of avoiding a co-mingling of personal funds of the agent with money collected on behalf of the Company. Likewise, the use of standard report forms as well as the regular time within which to submit a report of collection are intended to facilitate order in office procedures. Even if the report requirements are to be called control measures, any control is only with respect to the end result of the collection since the requirements regulate the things to be done after the performance of the collection job or the rendition of the service.' (Singer Sewing Machine Company vs. Drilon, 193 SCRA 270, 276, emphasis merely added)"
"As contractor, it undertakes the contract work on its own account under its own responsibility according to his (sic) own manner and method free from the control and direction of PGI or its representative in all matters connected with the performance of the work except the results of the work performed and accomplished. It took (charge) in the fixing and payment of salaries for its workers. Likewise it supervises the (petitioners) in the performance and accomplishment of their work. It also provides for the tools, equipment, machineries necessary in the conduct of its business.[20]Consequently, the findings of both the arbiter and respondent Commission take BOWSC out of the ambit of labor-only contracting as proscribed in Article 106 of the Labor Code[22] and further discussed in Sections 8 and 9, Rule VIII, Book III of the Omnibus Rules Implementing the Labor Code.[23]
x x x x x x x x x
"Another line of theory set by the (petitioners) in order to establish employer-employee relationship with PGI and to further convince us that they are regular employees of the latter, is the allegation that respondent Build-O-Weld was a labor only contractor. Nonetheless, it was not substantially proven by (petitioners) that the former does not have capital or investment in the form of tools, equipment, machineries, work premises. On the contrary, records will however reveal that Build-O-Weld has a performance bond in the amount of P100,000.00 to answer for the faithful compliance and performance of its obligation embodied in the contract (Annex B, respondent PGI position paper). He who alleges a particular fact must prove (it). The evidence of (petitioners) are mute evidence (sic) to sustain a finding that Build-O-Weld is a labor only contractor."[21]
In this case, records reveal that (petitioners) were employed only for the PGI project. Upon completion of the PGI (project) or the phase for which their services were engaged, they were terminated by BOWSC. They were never recalled nor were they ever required to be, in a work pool from which BOWSC could utilize them in another project. It was only when their services were subsequently needed for the PGI project that they were again engaged by BOWSC. Thus, (petitioners) were clearly and correctly declared to be project employees (Philippine National Construction Corporation vs. National Labor Relations Commission, 174 SCRA 191). In the case of lead complainant (petitioner) Rodrigo Bordeos, there was even an instance when he himself resigned from BOWSC (Letter of Resignation from Mr. Bordeos dated 9 January 1990, addressed to respondent Mrs. Aida Barba, Annex "A-5", respondent De Leon and Barba's Position Paper). This indubitably shows that Mr. Bordeos himself recognized BOWSC as his actual employer. x x x.In addition to the foregoing, we also considered the following significant observation made by the arbiter:
Based on the aforequoted declaration, it is apparent that (petitioners) were correctly declared to be project employees of BOWSC. The evidence clearly established that they were solely hired by BOWSC, notwithstanding unsubstantiated claims to the contrary. It would therefore be most unfair and unjust to hold PGI to be the employer of (petitioners) (Luzviminda Visayan, et al., vs. National Labor'Relations Commission, 196 SCRA 410, 418). Wages (were) paid each of the individual (petitioners) only by BOWSC (Sara vs. Aguinaldo, 166 SCRA 625, 629). Add to this, the independent contractorship relation between PGI and BOWSC, all these lead us to this inescapable conclusion. The decision of the Labor Arbiter below is valid, legal, binding, and is furthermore supported by substantial evidence (Mercado, Sr. vs. National Labor Relations Commission, 201 SCRA 332, 339)."
"Noticeably, (petitioners') employment was on and off, as shown in their position paper. This (led) us more to be believe that indeed they (were) project employees, whose employment ceased after the completion of a particular project and rehired again for another project. This fact cast serious doubts on the assertion of (petitioners) that they are regular employees of respondent PGI."