493 Phil. 923
PANGANIBAN, J.:
“WHEREFORE, premises considered, the petition is GRANTED and the decision dated May 18, 2001 and resolution dated June 29, 2001 of the NLRC are hereby annulled and set aside. [Petitioner] Filsystems, Inc. is hereby ordered to reinstate [respondent] immediately to his former position without loss of seniority and privileges with full back wages from the date of his dismissal until his actual reinstatement, plus 10% of the total monetary award as attorney’s fees.”[5]The assailed Resolution denied petitioners’ Motion for Reconsideration.
“[Respondent] avers that he started working with [Petitioner] Filsystems, Inc., a corporation engaged in construction business, on June 12, 1989; that he was initially hired by [petitioner] company as an ‘installer’; that he was later promoted to mobile crane operator and was stationed at the company premises at No. 69 Industria Road, Bagumbayan, Quezon City; that his work was not dependent on the completion or termination of any project; that since his work was not dependent on any project, his employment with the [petitioner-]company was continuous and without interruption for the past ten (10) years; that on October 1, 1999, he was dismissed from his employment allegedly because he was a project employee. He filed a pro forma complaint for illegal dismissal against the [petitioner] company on November 18, 1999.“The [petitioner-]company however claims that complainant was hired as a project employee in the company’s various projects; that his employment contracts showed that he was a project worker with specific project assignments; that after completion of each project assignment, his employment was likewise terminated and the same was correspondingly reported to the DOLE.‘SO ORDERED.’
“Labor Arbiter Veneranda C. Guerrero dismissed the complaint for lack of merit, ruling thus:
‘WHEREFORE, premises considered, judgment is hereby rendered dismissing the complaint for illegal dismissal for lack of merit.‘[Petitioner] Filsystems, Inc. is hereby ordered to pay complainant Roger D. [F]uente the amount of FOUR THOUSAND TWO HUNDRED TWELVE PHILIPPINE PESOS (P4,212.00) representing his pro-rata 13th month pay for 1999, plus ten percent (10%) thereof as and for attorney’s fees.
“[Respondent] appealed. However, [the] National Labor Relations Commission (NLRC) dismissed the same and the subsequent motion for reconsideration.”[6]
“The employment contracts signed by petitioner Puente do not have the specified duration for each project contrary to the provision of Article 280 of the Labor Code, nor did petitioner work in the project sites, but had always been assigned at the company plant attending to the maintenance of all mobile cranes of the company, performing tasks vital and desirable in the employer’s usual business for ten (10) continuous years.”[7]The CA concluded that respondent was a regular employee of petitioners.
“1. Whether or not the Court of Appeals erred and committed grave abuse of discretion in finding that:In the main, the issues boil down to (1) whether Roger Puente is a project employee, and (2) whether he is entitled to reinstatement with full back wages.‘The employment contracts signed by private respondent Puente do not have the specified duration for each project contrary to the provision of Art. 280 of the Labor Code, nor did petitioner work in the project sites, but had always been assigned at the company plant attending to the maintenance of all mobile cranes of the company, performing tasks vital and desirable in the company’s usual business for ten (10) continuous years.’“2. Whether or not the Court a quo erred and committed grave abuse of discretion in finding that the private respondent is a regular employee and not a project employee?
“3. Whether or not the Court a quo erred and committed grave abuse of discretion in giving due course to the private respondent’s petition for certiorari under Rule 65 of the 1997 Rules on Civil Procedure; and in annulling and setting aside the Decision dated May 18, 2001 and the Resolution dated June 29, 2001 of the NLRC?
“4. Whether or not the Court a quo erred and committed grave abuse of discretion in ruling that the evidence submitted by the petitioners proving that there was retrenchment program implemented by the petitioner company, as a defense that the private respondent’s services was terminated due to absence if not lack of construction project contract, where he may be redeployed or reinstated?
“5. Whether or not the Court a quo erred and committed grave abuse of discretion in ordering the reinstatement of the private respondent, with full back wages plus payment of 10% attorney’s fees?”[9]
ART. 280. Regular and Casual Employment. - The provision of written agreement to the contrary notwithstanding and regardless of the oral agreement of the parties, an employment shall be deemed to be regular where the employee has been engaged to perform activities which are usually necessary or desirable in the usual business or trade of the employer, except where the employment has been fixed for a specific project or undertaking the completion or termination of which has been determined at the time of the engagement of the employee or where the work or services to be performed is seasonal in nature and the employment is for the duration of the season.With particular reference to the construction industry, to which Petitioner Filsystems belongs, Department (of Labor and Employment) Order No. 19,[11] Series of 1993, states:
2.1 Classification of employees. – The employees in the construction industry are generally categorized as a) project employees and b) non-project employees. Project employees are those employed in connection with a particular construction project or phase thereof and whose employment is co-terminous with each project or phase of the project to which they are assigned.The above-quoted provisions make it clear that a project employee is one whose “employment has been fixed for a specific project or undertaking the completion or termination of which has been determined at the time of the engagement of the employee or where the work or services to be performed is seasonal in nature and the employment is for the duration of the season.” In D.M. Consunji, Inc. v. NLRC,[12] this Court has ruled that “the length of service of a project employee is not the controlling test of employment tenure but whether or not ‘the employment has been fixed for a specific project or undertaking the completion or termination of which has been determined at the time of the engagement of the employee.’”x x x x x x x x x
2.2 Indicators of project employment. – Either one or more of the following circumstances, among other, may be considered as indicators that an employee is a project employee.
(a) The duration of the specific/identified undertaking for which the worker is engaged is reasonably determinable.
(b) Such duration, as well as the specific work/service to be performed, is defined in an employment agreement and is made clear to the employee at the time of hiring.
(c) The work/service performed by the employee is in connection with the particular project/undertaking for which he is engaged.
(d) The employee, while not employed and awaiting engagement, is free to offer his services to any other employer.
(e) The termination of his employment in the particular project/undertaking is reported to the Department of Labor and Employment (DOLE) Regional Office having jurisdiction over the workplace within 30 days following the date of his separation from work, using the prescribed form on employees’ terminations/dismissals/suspensions.
(f) An undertaking in the employment contract by the employer to pay completion bonus to the project employee as practiced by most construction companies.
a) Project employees whose aggregate period of continuous employment in a construction company is at least one year shall be considered regular employees, in the absence of a “day certain” agreed upon by the parties for the termination of their relationship. Project employees who have become regular shall be entitled to separation pay.Respondent’s employment contract provides as follows:
A “day” as used herein, is understood to be that which must necessarily come, although is may not be known exactly when. This means that where the final completion of a project or phase thereof is in fact determinable and the expected completion is made known to the employee, such project employee may not be considered regular, notwithstanding the one-year duration of employment in the project or phase thereof or the one-year duration of two or more employments in the same project or phase of the object. (Italicization and emphasis supplied)
“x x x employment, under this contract is good only for the duration of the project unless employee’s services is terminated due to completion of the phase of work/section of the project or piece of work to which employee is assigned:Evidently, although the employment contract did not state a particular date, it did specify that the termination of the parties’ employment relationship was to be on a “day certain” -- the day when the phase of work termed “Lifting & Hauling of Materials” for the “World Finance Plaza” project would be completed. Thus, respondent cannot be considered to have been a regular employee. He was a project employee.
“We agree clearly that employment is on a Project to Project Basis and that upon termination of services there is no separation pay:(Phase of Work/Piece of Work)”[18]
POSITION :Mobil Crane Operator PROJECT NAME :World Finance Plaza LOCATION :Meralco Ave., Ortigas Center, Pasig City ASSIGNMENT :Lifting & Hauling of Materials