Union of Sual Power Plant Employees (USPPE) v. Team Sual Corp

SECOND DIVISION

[G.R. No. 215188. March 16, 2016.]

UNION OF SUAL POWER PLANT EMPLOYEES (USPPE), REY J. BUAL AND ERNESTO G. CARDONA, SR., petitioners, vs. TEAM SUAL CORPORATION, respondent.

NOTICE

Sirs/Mesdames :

Please take notice that the Court, Second Division, issued a Resolution dated 16 March 2016 which reads as follows:

"G.R. No. 215188 — Union of Sual Power Plant Employees (USPPE), Rey J. Bual and Ernesto G. Cardona, Sr. v. Team Sual Corporation

This is a petition for review under Rule 45 of the 1997 Rules of Civil Procedure seeking the reversal of the June 2, 2014 Resolution 1 of the Court of Appeals (CA) in CA-G.R. SP No. 135430, entitled Union of Sual Power Plant Employees, et al. v. National Conciliation and Mediation Board, and its October 30, 2014 Resolution 2 denying the motion for reconsideration thereof.

The Antecedents:

Petitioners Rey J. Bual (Bual) and Ernesto G. Cardona, Sr. (Cardona), represented by petitioner Union of Sual Power Plant Employees (USPPE), were regular employees of respondent Team Sual Corporation (TSC), a corporation engaged in the business of providing electric power. They were both assigned as scaffolders in the Maintenance Department under Supervisor Joseleo E. Vicaldo (Vicaldo).

On July 21, 2008, TSC issued its SSO-050 Station Standing Order on On-Call and Call-Out Provisions. Section IV of its Implementing Guidelines states, among others, that the Company shall compensate an employee accordingly for on-call and call-out work rendered beyond regular work hours.

On December 20, 2011, Vicaldo entered into an agreement with Bual and Cardona, specifying the following terms:

1. It was agreed that R. Bual and E. Cardona will alternate monthly during call out, this will start on January 1, 2012. Rey will be on call out in the month of January, March, May, July, September and November, while Erning will be on call out in the month of February, April, June, August, October and December. The meaning of Call out is that you are being called at night to work without notifying you earlier in the day. (Unscheduled or Emergency Call)

2. Supervisor will coordinate with transport to fetch the scaffolder at their residence during call-out. (Incoming and Outgoing).

3. Inform co supervisor regarding our agreement during call out.

4. Scaffolder on duty for call out shall activate his cell phone 24 hours.

5. There shall be one regular scaffolder on duty during regular time when there is a call out at night.

6. If ever that you have a commitment or sick and you are on assigned call out for the month, inform supervisor and co scaffolder regarding this before hand. Co scaffolder shall be the duty call out." 3

On July 9, 2013, Bual and Cardona brought the matter of their agreement to the USPPE claiming that they should have been paid for their waiting time during their duty for the call-out. They sought USPPE's assistance to file a complaint against TSC for non-compensation of on-call services for more than one and a half years.

USPPE then referred the complaint to the Grievance Machinery as provided for in the Collective Bargaining Agreement for non-payment of overtime pay for allegedly working "on-call" from January 1, 2012 until July 15, 2013. It claimed entitlement to 5,002 hours of overtime pay or P1,294,707.56 for Bual and 4,636 hours of overtime pay or P1,132,561.86 for Cardona. 4

In the grievance meetings, the parties failed to reach an agreement. Consequently, USPPE brought the case before the National Conciliation and Mediation Board where the parties agreed to submit the same for Voluntary Arbitration. cSEDTC

Disposition by the OVA

After a judicious evaluation of the allegations and arguments of the parties as well as the evidence adduced on record, the Office of the Voluntary Arbitrator (OVA) found Bual and Cardona's claims without factual and legal basis. It did not find anything to support their claim that they were deprived of their time to move freely and far away from their respective places of residence and in their claim that they were confined to the four corners of their houses waiting for, and expecting anytime, a call for their needed services at the Plant, which amounted to "house confinement or house arrest." To the OVA, a reading of the subject agreement would show that if the assigned scaffolder was not available, all he had to do was just inform his supervisor and another would take his place. Clearly, according to the OVA, Bual and Cardona could not claim that they were on "on-call" or on waiting time. Further, the fact that they were required to "turn on" their cellular phone "24-7" did not constitute overtime work as it was merely a means of communication in case work would be needed to be rendered. Thus, the OVA disposed:

WHEREFORE, premises considered, judgment is hereby rendered, DISMISSING individual complainants' claim for "on-call" services for lack of merit.

Complainants' claims for moral and exemplary damages and attorney's fees are ORDERED DISMISSED for lack of jurisdiction.

SO ORDERED. 5

Petitioners' motion for reconsideration having been denied, the case was appealed to the CA.

Disposition of the CA

In its June 2, 2014 Resolution, the CA dismissed the petition outright on ground of technicality, viz.:

The Petition for Review (under Rule 45) is dismissed outright for being an erroneous remedy. The remedy of the aggrieved party is to file a Petition for Review under Rule 43. 6

Petitioners filed a motion for reconsideration insisting that the dismissal was erroneous. In its October 30, 2014 Resolution, the CA denied the said motion. The CA stated that under Rule 43 of the Rules of Court, appeals from the decisions of Voluntary Arbitrators should be filed with the CA via a verified petition for review. In this case, petitioners instead of availing the said remedy (a verified petition for review under Rule 43 to the CA), erroneously filed a petition for review on certiorari under Rule 45, a remedy exclusively cognizable by this Court. It stressed that the perfection of an appeal in the manner and within the period prescribed by law is not only mandatory but jurisdictional.

Technicality aside, the CA found that petitioners were unable to prove their claim for the on-call services, there being no evidence to support their point that they were deprived of their free time while on on-call.

Hence, this petition anchored on the following

GROUNDS:

I.

WITH ALL DUE RESPECT, THE HONORABLE COURT OF APPEALS ERRED IN DISMISSING THE APPEAL OF THE PETITIONERS ON THE GROUND OF TECHNICALITY

II.

THE HONORABLE COURT OF APPEALS ERRED IN NOT CONSIDERING THE DISPUTED HOURS AS HOURS WORKED. 7

On February 23, 2015, respondent TSC filed its Comment. 8 It averred that petitioners' claims were properly dismissed by the OVA and, eventually, by the CA. Also, the procedural error committed by the petitioners was fatal to their petition for certiorari before the CA.

In their Reply, 9 petitioners contended that Bual and Cardona, being workers in an industry engaged in the business of national electrification, were considered employees in an industry imbued with public interest. As such, it would have been more in accord with substantial justice if petitioners were allowed to seek redress for their oppressive situation. Citing Barra v. Civil Service Commission10(Barra), they insisted that the demands of justice require the CA to resolve the issues before it considering that what was at stake was not only Bual and Cardona's positions, but their very livelihood.

Further, petitioners argued that Bual and Cardona were so restricted during the on call/call out times that they could not perform any other work except to wait. Thus, they submitted that the time spent waiting for notice to work at night even without earlier notice during the day should be compensated. For having been rendered in excess of the eight-hour workday, said hours should be compensable as overtime work. SDAaTC

The Court's Ruling

Petitioners cannot successfully invoke the case of Barra, where this Court faulted the CA for its dismissal on the basis of technicality (failure to state the notary public's office address). In that case, the Court applied the rule on liberality in the interest of substantive justice as the case appeared to be substantively meritorious and the technical lapse was of the nature that can be complied with without doing violence to the mandatory provisions of the Rules. In Barra, the Court wrote that the better recourse to follow was to apply the rule of liberality and to give the deficient party the opportunity to comply, particularly when the amounts and interests involved in the litigation were substantial.

In this case, petitioners' claim is not impressed with merit. Moreover, petitioners' failure to follow the procedure provided for under Rule 43 of the Rules of Court was fatal to their cause. An appeal taken to the CA by the wrong or inappropriate mode shall be dismissed. 11

The right to appeal is a mere statutory privilege and may be exercised only in the manner prescribed by, and in accordance with, the provisions of law. Hence, there must be a law expressly granting such privilege. 12 The Rules of Court prescribes that the mode of appeal from decisions or orders of voluntary arbitrators is by petition for review under Rule 43. Petitioners' recourse to a petition for review under Rule 45, rather than a petition for review under Rule 43, was, therefore, fatally infirm.

Thus, the CA correctly dismissed the petition for review filed before it, being a wrong mode of appeal. AaCTcI

Even if technicality would be brushed aside, the petition would still fail. As correctly found by the CA, "petitioners failed to establish their claim for their allegedly "on-call" services. There was no showing that they were deprived of their time to move freely far away from their respective place of residence." 13

 

Further, in petitioners' second assignment of error, the Court is being asked to determine whether Bual and Cardona were considered as "working while on call" and entitled to on-call services. This issue involves a question of fact. It is settled that the Court is not a trier of facts. Petitioners want this Court to review the evidence that was already thoroughly studied by the OVA and passed upon in the assailed Resolution of the CA. The OVA wrote thats:

In the instant case, however, the individual complainants and the Union failed to adduce evidence that would qualify them to be considered as "working while on call." A mere claim is not enough. It is incumbent upon him to prove his claim with evidence. . . . .

On the other hand, the Company has clearly demonstrated its policy regarding "on-call" and "call-out." As borne by the records, on 21 July 2008, the Company issued its SSO-050 Station Standing Order on On-Call and Call-Out Provisions, Section IV of the Implementing Guidelines thereof, states as follows, to wit:

Section IV. Implementing Guidelines. —

On-Call

1. The Company shall compensate an employee accordingly for On-Call work rendered beyond regular work hours.

2. Compensable hours worked depends on the actual hour that he was asked to render on-call work up to the time that he's supposed to finish the job. Whether or not he is suffered to work or permitted to work entitles him to claim for on-call payment equivalent to the time that he was requested to perform On-Call job even if the job is not consummated.

3. Immediate superior shall sign the On-Call Advise and Authorization Form (Please refer to Annex A) before an On-Call Job is to be done. Immediate superior shall identify the nature of the job or any other instructions as needed and will also indicate the starting time and ending time of the On-Call Job. The employee shall duly accept the On-Call advise by affixing his signature in the form.

4. The On-Call Advise and Authorization Form shall be attached to the Overtime Authorization Slip Form for proper computation of OT, NSD premiums or holiday premium whichever is applicable.

5. Non-accommodated rank and file employee will be given temporary accommodation while waiting for the execution of the required job.

6. All expense borne out of the on-call job is for the account of the section rendering the services. Transport, accommodation, food and laundry of working clothes used during the on-call job are included as expenses of the section.

Call-Out

1. The Company shall compensate an employee accordingly for Call-Out work rendered beyond regular work hours.

2. Due to the urgency of the Call-Out job, an employee may not punch-in and punch out in the Kronos timekeeping system. Instead, the requisitioning Supervisor/Manager shall accomplish the Call-Out Advise and Authorization Form (Annex B) specifying the nature of the job to be done and the time that he actually called the employee to render Call-out work until the time that the work is completed.

3. The Call-Out Advise and Authorization Form shall be attached to the Overtime Authorization Slip Form for proper computation of OT, NSD premiums or holiday premium whichever is applicable. EcTCAD

4. An employee is compensated according to the actual number of hours worked. In cases where the work done is less than two hours, he is guaranteed call-out payment of 4 hrs.

In resolving this case, We shall now proceed to determine whether or not individual complainants became entitled to "on-call" pay by virtue of the Agreement they entered with Mr. Joseleo Vicaldo, their supervisor. The Agreement of the parties contains the following:

xxx xxx xxx

Complainants maintain that the Agreement modified the on-call/call-out policy. We disagree.

This Office noted with interest that the definitions of "On-Call" and "Call-Out" work in the Company are not foreign to complainants. This is supported by the fact that individual complainants have rendered "on-call" and "call-out" services which were duly paid by the Company. . . . .

xxx xxx xxx.

Considering that individual complainants were the ones seeking payment of overtime pay by claiming that they were on "on-call" they should have supported their claim by substantial evidence. . . . . Notwithstanding their sworn statements, however, individual complainants failed to prove their claim. Perforce, this Office has no alternative but to dismiss their claim for lack of merit." 14

The Court finds no cogent reason to weigh all over again the evidence in this case and to reverse the findings of the OVA.

Waiting time spent by the employee shall be considered as working time if waiting is an integral part of his work or the employee is required or engaged by the employer to wait. 15 An employee who is required to remain on call in the employer's premises or so close thereto that he cannot use the time effectively and gainfully for his own purpose, shall be considered as working while on call. 16 Here, as aptly pointed out by respondent, even if Bual and Cardona were on call, they were not deprived of the time to attend to their personal pursuits; their physical presence were not required in TSC's premises; and were not subjected to the absolute control of TSC during the period they were on call, such that their failure to report would justify the TSC to impose disciplinary measures. Thus, such time cannot be considered as compensable waiting time, notwithstanding the fact that they were required to activate their mobile phones 24 hours.

WHEREFORE, the petition is DENIED.

SO ORDERED. (Brion and Leonen, JJ., on leave)"

Very truly yours,

(SGD.) MA. LOURDES C. PERFECTODivision Clerk of Court

 

Footnotes

1. Rollo, p. 51.

2. Id. at 22-25. Penned by Associate Justice Manuel M. Barrios with Associate Justices Andres B. Reyes, Jr. and Normandie B. Pizarro, concurring.

3. Id. at 270-271.

4. Id. at 271.

5. Id. at 283.

6. Id. at 51.

7. Id. at 4.

8. Id. at 318-327.

9. Dated September 11, 2015.

10. 706 Phil. 523 (2013), cited in p. 2 of Petitioners' Reply.

11. ABS-CBN Broadcasting Corporation v. World Interactive Network Systems Japan Co., Ltd., 568 Phil. 282, 296 (2008).

12. Padua v. Court of Appeals, 546 Phil. 63, 71 (2007).

13. Rollo, p. 24.

14. Id. at 280-283.

15. Section 5 (a), Rule I, Book III, Rules to Implement the Labor Code.

16. Section 5 (b), Rule I, Book III, Rules to Implement the Labor Code.