Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

PHILIPPINE AIRLINES, INC., G.R. No. 146408

Petitioner,
Present:
-versus-
QUISUMBING,* J., Chairperson,
ENRIQUE LIGAN, EMELITO SOCO, CARPIO,**
ALLAN PANQUE, JOLITO OLIVEROS, CARPIO MORALES,
RICHARD GONCER, NONILON AZCUNA,***
PILAPIL, AQUILINO YBANEZ, TINGA, and
BERNABE SANDOVAL, RUEL GONCER, VELASCO, JR., JJ.
VIRGILIO P. CAMPOS, JR., ARTHUR
M. CAPIN, RAMEL BERNARDES,
LORENZO BUTANAS, BENSON
CARESUSA, JEFFREY LLENOS, ROQUE
PILAPIL, ANTONIO M. PAREJA,
Promulgated:
CLEMENTE R. LUMAYNO, NELSON
TAMPUS, ROLANDO TUNACAO,
CHERRIE ALEGRES, BENEDICTO February 29, 2008
AUXTERO, EDUARDO
MAGDADARAUG, NELSON M. DULCE,
and ALLAN BENTUZAL,
Respondents.
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - x

DECISION

CARPIO MORALES, J.:

cralawPetitioner
Philippine Airlines as Owner, and Synergy Services Corporation (Synergy) as
Contractor, entered into an Agreement[1] on July 15, 1991 whereby Synergy undertook to
provide loading, unloading, delivery of baggage and cargo and other related services to and
from [petitioner]s aircraft at the Mactan Station.[2]

The Agreement specified the following Scope of Services of Contractor Synergy:

1.2 CONTRACTOR shall furnish all the necessary capital, workers, loading,
unloading and delivery materials, facilities, supplies, equipment and tools for the
satisfactory performance and execution of the following services (the Work):

a. Loading and unloading of baggage and cargo to and from the aircraft;

b. Delivering of baggage from the ramp to the baggage claim area;

c. Picking up of baggage from the baggage sorting area to the designated

parked aircraft;

d. Delivering of cargo unloaded from the flight to cargo terminal;

 e. Other related jobs (but not janitorial functions) as may be required and
necessary;

CONTRACTOR shall perform and execute the aforementioned Work at the

following areas located at Mactan Station, to wit:

a. Ramp Area
b. Baggage Claim Area
c. Cargo Terminal Area, and
d. Baggage Sorting Area[3] (Underscoring supplied)

cralawAndit expressly provided that Synergy was an independent contractor and . . . that
there w[ould] be no employer-employee relationship between CONTRACTOR and/or its
employees on the one hand, and OWNER, on the other.[4]

cralawOn the duration of the Agreement, Section 10 thereof provided:

10. 1 cralawShould at any time OWNER find the services herein undertaken by
CONTRACTOR to be unsatisfactory, it shall notify CONTRACTOR who shall
have fifteen (15) days from such notice within which to improve the
services. If CONTRACTOR fails to improve the services under this
Agreement according to OWNERS specifications and standards, OWNER
shall have the right to terminate this Agreement immediately and without
advance notice.

10.2 Should CONTRACTOR fail to improve the services within the period
stated above or should CONTRACTOR breach the terms of this Agreement
and fail or refuse to perform the Work in such a manner as will be
consistent with the achievement of the result therein contracted for or in
any other way fail to comply strictly with any terms of this
Agreement, OWNER at its option, shall have the right to terminate this
Agreement and to make other arrangements for having said Work
performed and pursuant thereto shall retain so much of the money held
on the Agreement as is necessary to cover the OWNERs costs and
damages, without prejudice to the right of OWNER to seek resort to the
bond furnished by CONTRACTOR should the money in OWNERs possession
be insufficient.

x x x x (Underscoring supplied)

Except for respondent Benedicto Auxtero (Auxtero), the rest of the respondents, who appear
to have been assigned by Synergy to petitioner following the execution of the July 15, 1991
Agreement, filed on March 3, 1992 complaints before the NLRC Regional Office VII
at Cebu City against petitioner, Synergy and their respective officials for underpayment, non-
payment of premium pay for holidays, premium pay for rest days, service incentive leave
pay, 13th month pay and allowances, and for regularization of employment status with
petitioner, they claiming to be performing duties for the benefit of [petitioner] since their job
is directly connected with [its] business x x x.[5]

cralawRespondent Auxtero had initially filed a complaint against petitioner and Synergy and
their respective officials for regularization of his employment status. Later alleging that he
was, without valid ground, verbally dismissed, he filed a complaint against petitioner and
Synergy and their respective officials for illegal dismissal and reinstatement with
full backwages.[6]
The complaints of respondents were consolidated.

By Decision[7] of August 29, 1994, Labor Arbiter Dominador Almirante found Synergy an
independent contractor and dismissed respondents complaint for regularization against
petitioner, but granted their money claims. The fallo of the decision reads:

WHEREFORE, foregoing premises considered, judgment is hereby rendered as

follows:

(1) Ordering respondents PAL and Synergy jointly and severally to pay all the
complainants herein their 13th month pay and service incentive leave
benefits;

xxxx

(3) Ordering respondent Synergy to pay complainant Benedicto Auxtero a

financial assistance in the amount of P5,000.00.

The awards hereinabove enumerated in the aggregate total amount of THREE

HUNDRED TWENTY-TWO THOUSAND THREE HUNDRED FIFTY NINE PESOS AND
EIGHTY SEVEN CENTAVOS (P322,359.87) are computed in detail by our Fiscal
Examiner which computation is hereto attached to form part of this decision.

The rest of the claims are hereby ordered dismissed for lack of merit.[8]
(Underscoring supplied)

cralawOnappeal by respondents, the NLRC, Fourth Division, Cebu City, vacated and set aside
the decision of the Labor Arbiter by Decision[9] of January 5, 1996, the fallo of which reads:

cralawWHEREFORE, the Decision of the Labor Arbiter Dominador A. Almirante,

dated August 29, 1994, is hereby VACATED and SET ASIDE and judgment is
hereby rendered:

1. Declaring respondent Synergy Services Corporation to be a labor-only

contractor;

2. Ordering respondent Philippine Airlines to accept, as its regular

employees, all the complainants, . . . and to give each of them the salaries,
allowances and other employment benefits and privileges of a regular
employee under the Collective Bargaining Agreement subsisting during the
period of their employment;

xxxx

4. Declaring the dismissal of complainant Benedicto Auxtero to be illegal and

ordering his reinstatement as helper or utility man with
respondent Philippine Airlines, with full backwages, allowances and other
benefits and privileges from the time of his dismissal up to his actual
reinstatement; and

5. Dismissing the appeal of respondent Synergy Services Corporation, for lack of

merit.[10] (Emphasis and underscoring supplied)

cralawOnly petitioner assailed the NLRC decision via petition for certiorari before this Court.
By Resolution[11] of January 25, 1999, this Court referred the case to the Court of Appeals for
appropriate action and disposition, conformably with St. Martin Funeral Homes v. National
Labor Relations Commission which was promulgated on September 16, 1998.

cralawThe
appellate court, by Decision of September 29, 2000, affirmed the Decision of the
NLRC. Petitioners motion for reconsideration having been denied by Resolution of December
[12]

21, 2000,[13]the present petition was filed, faulting the appellate court

I.

. . . IN UPHOLDING THE NATIONAL LABOR RELATIONS COMMISSION DECISION

WHICH IMPOSED THE RELATIONSHIP OF EMPLOYER-EMPLOYEE BETWEEN
PETITIONER AND THE RESPONDENTS HEREIN.

II.

. . . IN AFFIRMING THE RULING OF THE NATIONAL LABOR RELATIONS

COMMISSIONORDERING THE REINSTATEMENT OF RESPONDENT AUXTERO
DESPITE THE ABSENCE [OF] ANY FACTUAL FINDING IN THE DECISION THAT
PETITIONER ILLEGALLY TERMINATED HIS EMPLOYMENT.

III.

. . . [IN ANY EVENT IN] COMMITT[ING] A PATENT AND GRAVE ERROR IN

UPHOLDING THE DECISION OF THE NATIONAL LABOR RELATIONS COMMISSION
WHICH COMPELLED THE PETITIONER TO EMPLOY THE RESPONDENTS AS
REGULAR EMPLOYEES DESPITE THE FACT THAT THEIR SERVICES ARE IN
EXCESS OF PETITIONER COMPANYS OPERATIONAL REQUIREMENTS.
[14]
(Underscoring supplied)

cralawPetitioner
argues that the law does not prohibit an employer from engaging an
independent contractor, like Synergy, which has substantial capital in carrying on an
independent business of contracting, to perform specific jobs.

Petitioner further argues that its contracting out to Synergy various services like janitorial,
aircraft cleaning, baggage-handling, etc., which are directly related to its business, does not
make respondents its employees.

Petitioner furthermore argues that none of the four (4) elements of an employer-employee
relationship between petitioner and respondents, viz: selection and engagement of an
employee, payment of wages, power of dismissal, and the power to control employees
conduct, is present in the case.[15]

Finally, petitioner avers that reinstatement of respondents had been rendered impossible
because it had reduced its personnel due to heavy losses as it had in fact terminated its
service agreement with Synergy effective June 30, 1998[16] as a cost-saving measure.

cralawThedecision of the case hinges on a determination of whether Synergy is a mere job-

only contractor or a legitimate contractor. If Synergy is found to be a mere job-only
contractor, respondents could be considered as regular employees of petitioner as Synergy
would then be a mere agent of petitioner in which case respondents would be entitled to all
the benefits granted to petitioners regular employees; otherwise, if Synergy is found to be a
legitimate contractor, respondents claims against petitioner must fail as they would then be
considered employees of Synergy.

cralawThestatutory basis of legitimate contracting or subcontracting is provided in Article 106

of the Labor Code which reads:

cralawART.
106.cralawCONTRACTOR OR SUBCONTRACTOR. Whenever an employer
enters into a contract with another person for the performance of
the former's work, the employees of the contractor and of the latter's
subcontractor, if any, shall be paid in accordance with the provisions of this
Code.

cralawIn
the event that the contractor or subcontractor fails to pay the wages of
his employees in accordance with this Code, the employer shall be jointly and
severally liable with his contractor or subcontractor to such employees to the
extent of the work performed under the contract, in the same manner and
extent that he is liable to employees directly employed by him.

cralawThe Secretary of Labor may, by appropriate regulations, restrict or prohibit

the contracting out of labor to protect the rights of workers established under
the Code. In so prohibiting or restricting, he may make appropriate distinctions
between labor-only contracting and job contracting as well as differentiations
within these types of contracting and determine who among the parties involved
shall be considered the employer for purposes of this Code, to prevent any
violation or circumvention of any provision of this Code.

cralawThereis "labor-only" contracting where the person supplying workers to an

employer does not have substantial capital or investment in the form of
tools, equipment, machineries, work premises, among others, AND the
workers recruited and placed by such person are performing activities
which are directly related to the principal business of such employer. In
such cases, the person or intermediary shall be
considered merely as an agent of the employer who shall be responsible
to the workers in the same manner and extent as if the latter were
directly employed by him. (Emphasis, capitalization and underscoring
supplied)

Legitimate contracting and labor-only contracting are defined in Department Order (D.O.) No.
18-02, Series of 2002 (Rules Implementing Articles 106 to 109 of the Labor Code, as
amended) as follows:

cralawSection3. Trilateral relationship in contracting arrangements. In legitimate

contracting, there exists a trilateral relationship under which there is a contract
for a specific job, work or service between the principal and the contractor or
subcontractor, and a contract of employment between the contractor or
subcontractor and its workers. Hence, there are three parties involved in these
arrangements, the principal which decides to farm out a job or service to a
contractor or subcontractor, the contractor or subcontractor which has the
capacity to independently undertake the performance of the job, work or
service, and the contractual workers engaged by the contractor or subcontractor
to accomplish the job, work or service. (Emphasis and underscoring supplied)

cralawSection 5.cralawProhibition against labor-only contracting. Labor-only

contracting is hereby declared prohibited. For this purpose, labor-only
contracting shall refer to an arrangement where the contractor or subcontractor
 merely recruits, supplies or places workers to perform a job, work or service for
a principal, and any of the following elements are [sic] present:

(i) The contractor or subcontractor does not have substantial capital or

investment which relates to the job, work or service to be performed and
the employees recruited, supplied or placed by such contractor or
subcontractor are performing activities which are directly related to the
main business of the principal; OR

(ii) The contractor does not exercise the right to control over the
performance of the work of the contractual employee. (Emphasis,
underscoring and capitalization supplied)

Substantial capital or investment and the right to control are defined in the same Section 5 of
the Department Order as follows:

cralaw"Substantialcapital or investment" refers to capital stocks and subscribed

capitalization in the case of corporations, tools, equipment, implements,
machineries and work premises, actually and directly used by the contractor or
subcontractor in the performance or completion of the job, work or service
contracted out.

cralawThe"right to control" shall refer to the right reserved to the person for
whom the services of the contractual workers are performed, to determine not
only the end to be achieved, but also the manner and means to be used in
reaching that end.(Emphasis and underscoring supplied)cralaw

cralawFromthe records of the case, it is gathered that the work performed by almost all of the
respondents loading and unloading of baggage and cargo of passengers is directly related to
the main business of petitioner. And the equipment used by respondents as station loaders,
such as trailers and conveyors, are owned by petitioner.[17]

cralawPetitioner
asserts, however, that mere compliance with substantial capital requirement
suffices for Synergy to be considered a legitimate contractor, citing Neri v. National Labor
Relations Commission.[18] Petitioners reliance on said case is misplaced.

In Neri, the Labor Arbiter and the NLRC both determined that Building Care Corporation had a
capital stock of P1 million fully subscribed and paid for.[19] The corporations status as
independent contractor had in fact been previously confirmed in an earlier case[20] by this
Court which found it to be serving, among others, a university, an international bank, a big
local bank, a hospital center, government agencies, etc.

cralawIn
stark contrast to the case at bar, while petitioner steadfastly asserted before the Labor
Arbiter and the NLRC that Synergy has a substantial capital to engage in legitimate
contracting, it failed to present evidence thereon. As the NLRC held:

cralawThe decision of the Labor Arbiter merely mentioned on page 5 of his

decision that respondent SYNERGY has substantial capital, but there is no
showing in the records as to how much is that capital. Neither had respondents
shown that SYNERGY has such substantial capital. x x x[21] (Underscoring
supplied)
cralawIt
was only after the appellate court rendered its challenged Decision of September 29,
2002 when petitioner, in its Motion for Reconsideration of the decision, sought to prove, for
the first time, Synergys substantial capitalization by attaching photocopies of Synergys
financial statements, e.g., balance sheets, statements of income and retained earnings,
marked as Annexes A A-4.[22]

cralawMore significantly, however, is that respondents worked alongside petitioners regular

employees who were performing identical work.[23] As San Miguel Corporation
v. Aballa [24]
and DolePhilippines, Inc. v. Esteva, et al. [25]
teach, such is an indicium of labor-
only contracting.

cralawFor
labor-only contracting to exist, Section 5 of D.O. No. 18-02 which requires any of two
elements to be present is, for convenience, re-quoted:

(i) The contractor or subcontractor does not have substantial capital or

investment which relates to the job, work or service to be
performed and the employees recruited, supplied or placed by such
contractor or subcontractor are performing activities which are directly
related to the main business of the principal, OR

(ii) The contractor does not exercise the right to control over the
performance of the work of the contractual employee. (Emphasis and
CAPITALIZATION supplied)

cralawEven if only one of the two elements is present then, there is labor-only contracting.

cralawThecontrol test element under the immediately-quoted paragraph (ii), which was not
present in the old Implementing Rules (Department Order No. 10, Series of 1997), [26] echoes
the prevailing jurisprudential trend[27] elevating such element as a primary determinant of
employer-employee relationship in job contracting agreements.

One who claims to be an independent contractor has to prove that he contracted to do the
work according to his own methods and without being subject to the employers control
except only as to the results.[28]

cralawWhile
petitioner claimed that it was Synergys supervisors who actually supervised
respondents, it failed to present evidence thereon. It did not even identify who were the
Synergy supervisors assigned at the workplace.

Even the parties Agreement does not lend support to petitioners claim, thus:

Section 6. Qualified and Experienced Worker: Owners Right to Dismiss Workers.

cralawCONTRACTOR shall employ capable and experienced workers and foremen

to carry out the loading, unloading and delivery Work as well as provide all
equipment, loading, unloading and delivery equipment, materials, supplies and
tools necessary for the performance of the Work. CONTRACTOR shall upon
OWNERS request furnish the latter with information regarding the qualifications
of the formers workers, to prove their capability and experience. Contractor
shall require all its workers, employees, suppliers and visitors to comply
with OWNERS rules, regulations, procedures and directives relative to
the safety and security of OWNERS premises, properties and
operations. For this purpose, CONTRACTOR shall furnish its employees
and workers identification cards to be countersigned by
 OWNER and uniforms to be approved by OWNER. OWNER may require
CONTRACTOR to dismiss immediately and prohibit entry into OWNERS
premises of any person employed therein by CONTRACTOR who in
OWNERS opinion is incompetent or misconducts himself or does not
comply with OWNERS reasonable instructions and requests regarding
security, safety and other matters and such person shall not again be employed
to perform the services hereunder without OWNERS permission.[29] (Underscoring
partly in the original and partly supplied; emphasis supplied)

Petitioner in fact admitted that it fixes the work schedule of respondents as their work was
dependent on the frequency of plane arrivals. [30] And as the NLRC found, petitioners managers
and supervisors approved respondents weekly work assignments and respondents and other
regular PAL employees were all referred to as station attendants of the cargo operation and
airfreight services of petitioner.[31]

cralawRespondentshaving performed tasks which are usually necessary and desirable in the air
transportation business of petitioner, they should be deemed its regular employees and
Synergy as a labor-only contractor.[32]

cralawTheexpress provision in the Agreement that Synergy was an independent contractor and
there would be no employer-employee relationship between [Synergy] and/or its employees
on one hand, and [petitioner] on the other hand is not legally binding and conclusive as
contractual provisions are not valid determinants of the existence of such relationship. For it
is the totality of the facts and surrounding circumstances of the case[33] which is
determinative of the parties relationship.

cralawRespecting the dismissal on November 15, 1992[34] of Auxtero, a regular employee of

petitioner who had been working as utility man/helper since November 1988, it is not legally
justified for want of just or authorized cause therefor and for non-compliance with procedural
due process.Petitioners claim that he abandoned his work does not persuade.[35] The elements
of abandonment being (1) the failure to report for work or absence without valid or justifiable
reason, and (2) a clear intention to sever the employer-employee relationship manifested by
some overt acts,[36] the onus probandi lies with petitioner which, however, failed to discharge
the same.
cralaw
cralawAuxtero, having been declared to be a regular employee of petitioner, and found to be
illegally dismissed from employment, should be entitled to salary differential[37] from the time
he rendered one year of service until his dismissal, reinstatement plus backwages until the
finality of this decision.[38] In view, however, of the long period of time[39] that had elapsed
since his dismissal onNovember 15, 1992, it would be appropriate to award separation pay of
one (1) month salary for each year of service, in lieu of reinstatement.[40]

cralawAsregards the remaining respondents, the Court affirms the ruling of both the NLRC and
the appellate court, ordering petitioner to accept them as its regular employees and to give
each of them the salaries, allowances and other employment benefits and privileges of a
regular employee under the pertinent Collective Bargaining Agreement.

cralawPetitioner
claims, however, that it has become impossible for it to comply with the orders
of the NLRC and the Court of Appeals, for during the pendency of this case, it was forced to
reduce its personnel due to heavy losses caused by economic crisis and the pilots strike
of June 5, 1998.[41]Hence, there are no available positions where respondents could be placed.
And petitioner informs that the employment contracts of all if not most of the
respondents . . .were terminated by Synergy effective 30 June 1998 when petitioner
terminated its contract with Synergy.[42]

cralawOther than its bare allegations, petitioner presented nothing to substantiate its
impossibility of compliance. In fact, petitioner waived this defense by failing to raise it in its
Memorandum filed onJune 14, 1999 before the Court of Appeals.[43] Further, the notice of
termination in 1998 was in disregard of a subsisting temporary restraining order[44] to
preserve the status quo, issued by this Court in 1996 before it referred the case to the Court
of Appeals in January 1999. So as to thwart the attempt to subvert the implementation of the
assailed decision, respondents are deemed to be continuously employed by petitioner, for
purposes of computing the wages and benefits due respondents.

cralawFinally,it must be stressed that respondents, having been declared to be regular

employees of petitioner, Synergy being a mere agent of the latter, had acquired security of
tenure. As such, they could only be dismissed by petitioner, the real employer, on the basis
of just or authorized cause, and with observance of procedural due process.
cralaw
WHEREFORE, the Court of Appeals Decision of September 29, 2000 is AFFIRMED with
MODIFICATION.

cralawPetitioner PHILIPPINE AIRLINES, INC. is ORDERED to:

(a) cralawaccept respondents ENRIQUE LIGAN, EMELITO SOCO, ALLAN PANQUE, JOLITO
OLIVEROS, RICHARD GONCER, NONILON PILAPIL, AQUILINO YBANEZ, BERNABE
SANDOVAL, RUEL GONCER, VIRGILIO P. CAMPOS, JR., ARTHUR M. CAPIN, RAMEL
BERNARDES, LORENZO BUTANAS, BENSON CARESUSA, JEFFREY LLENOS, ROQUE
PILAPIL, ANTONIO M. PAREJA, CLEMENTE R. LUMAYNO, NELSON TAMPUS, ROLANDO
TUNACAO, CHERRIE ALEGRES, EDUARDO MAGDADARAUG, NELSON M. DULCE and
ALLAN BENTUZAL as its regular employees in their same or substantially equivalent
positions, and pay the wages and benefits duethem as regular employees plus salary
differential corresponding to the difference between the wages and benefits given them
and those granted to petitioners other regular employees of the same rank; and

(b) cralawpay respondent BENEDICTO AUXTERO salary differential; backwages from the
time of his dismissal until the finality of this decision; and separation pay, in lieu of
reinstatement, equivalent to one (1) month pay for every year of service until the finality
of this decision.

cralawThere being no data from which this Court may determine the monetary liabilities of
petitioner, the case is REMANDED to the Labor Arbiter solely for that purpose.

cralawSO ORDERED.

CONCHITA CARPIO MORALES

cralaw
Associate Justice

WE CONCUR:
 (ON OFFICIAL LEAVE)
LEONARDO A. QUISUMBING
Associate Justice
Chairperson

ANTONIO T. CARPIO ADOLFO S. AZCUNA

Associate Justice Associate Justice
Acting Chairperson

DANTE O. TINGA PRESBITERO J. VELASCO, JR.

Associate Justice Associate Justice

ATTESTATION

cralawIattest that the conclusions in the above Decision had been reached in consultation
before the case was assigned to the writer of the opinion of the Courts Division.
ANTONIO T. CARPIO
Associate Justice
Acting Chairperson

CERTIFICATION

cralawPursuant to Section 13, Article VIII of the Constitution and the Division Acting
Chairpersons Attestation, I certify that the conclusions in the above decision had been
reached in consultation before the case was assigned to the writer of the opinion of the
Courts Division.

REYNATO S. PUNO
Chief Justice

Endnotes:
*
cralawOn official leave per Special Order No. 485 dated February 14, 2008
**
cralawActing Chairperson.
***
cralawAdditional member pursuant to Special Order No. 485 dated February 14, 2008.
[1]
cralawNLRC records, Vol. I, pp. 168-177.
[2]
cralawRollo, p. 136.
[3]
cralawId. at 136-137.
[4]
cralawId. at 138.
[5]
cralawId. at 8; NLRC records, Vol. 1, p. 104.
[6]
cralawIbid.; vide also NLRC records, Vol. 1, p. 151.
[7]
cralawRollo, pp. 302-316.
[8]
cralawId. at 315-316.
[9]
cralawId. at 226-237.
[10]
cralawId. at 236-237.
[11]
cralawCA rollo, p. 179.
[12]
cralawRollo, pp. 7-17. Penned by Associate Justice B.A. Adefuin-De la Cruz and concurred in
by then Presiding Justice Salome Montoya and Associate Justice Renato Dacudao.
[13]
cralawId. at 29.
[14]
cralawId. at 42-43.
[15]
cralawId. at 47-49.
[16]
cralawId. at 52.
[17]
cralawId. at 184.
[18]
cralawG.R. Nos. 97008-09, July 23, 1993, 224 SCRA 717.
[19]
cralawId. at 720.
[20]
cralawCiting Associated Labor Unions-TUCP v. National Labor Relations Commission, G.R. No.
101784,October 21, 1991, Third Division, Minute Resolution.
[21]
cralawRollo, p. 285.
[22]
cralawVide Petitioners Motion for Reconsideration of CA Decision of September 29, 2000,
id. at 425-450.
[23]
cralawId. at 348-349; vide NLRC records, Vol. 1, pp. 105 and 223; Position Papers for
Petitioner, NLRC records, Vol. 1, pp. 83-92 and pp. 156-167; Affidavit
of Benedicto A. Auxtero, NLRC records, Vol. 1, p. 185; Memorandum for petitioner, NLRC
records, Vol. 1, pp. 206-216.
[24]
cralawG.R. No. 149011, June 28, 2005, 461 SCRA 392, 425. This Court held:
xxxx
cralawMore. Private respondents had been working in the aqua processing plant
inside the SMC compound alongside regular SMC shrimp processing workers
performing identical jobs under the same SMC supervisors. This circumstance is
another indicium of the existence of a labor-only contractorship.
x x x x (Underscoring supplied)
[25]
cralawG.R. No. 161115, November 30, 2006, 509 SCRA 332.
[26]
cralawSection 4(f) of Rule VIII-A of the Implementing Rules of Book III, as added by
Department Order No. 10, Series of 1997, merely provides:
(f) Labor-only contracting prohibited under this Rule is an arrangement where the
contractor or subcontractor merely recruits, supplies or places workers to perform
a job, work or service for a principal, and the following elements are present:
(i) The contractor or subcontractor does not have substantial capital or
investment to actually perform the job, work or service under its own account
and responsibility; and
(ii) The employees recruited, supplied or placed by such contractor
or subcontractor areperforming activities which are directly related to the
main business of the principal.
[27]
cralawVide Neri v. National Labor Relations Commission, supra note 18; Aurora Land Projects
Corp. v. National Labor Relations Commission, 334 Phil. 44, 48 (1997); Escario v. National
Labor Relations Commission, G.R. No. 124055, June 8, 2000, 333 SCRA 257; Vinoya v.
National Labor Relations Commission, G.R. No. 126586, February 2, 2000, 324 SCRA
469; National Power Corporation v. Court of Appeals, G.R. No. 119121, August 14, 1998,
294 SCRA 209.
[28]
cralawAcevedo v. Advanstar Company, Inc., G.R. No. 157656, November 11, 2005, 474 SCRA
656, 668 citing New Golden City Builders and Development Corporation v. Court
of cralawAppeals, 463 Phil. 821 (2003); San Miguel Corporation v. Aballa, supra note 24 at
421.
[29]
cralawRollo, p. 170.
[30]
cralawNLRC records, Vol. 1, p. 6.
[31]
cralawId. at 477.
[32]
cralawAboitiz Haulers, Inc. v. Dimapatoi, G.R. No. 148619, September 19, 2006, 502 SCRA
271, 287 citingGuinnux Interiors, Inc. v. National Labor Relations Commission, 339 Phil. 75,
78-79 (1997); Manila Water Company Inc. v. Pea, G.R. No. 158255, July 8, 2004, 434 SCRA
53, 60-61.
[33]
cralawSan Miguel Corporation v. Aballa, supra note 24 at 422-423 (citation omitted).
[34]
cralawNLRC records, Vol. 1, p. 185.
[35]
cralawFloren Hotel v. National Labor Relations Commission, G.R. No. 155264, May 6, 2005,
458 SCRA 128, 144; Masagana Concrete Products v. NLRC, 372 Phil. 459 (1999).
[36]
cralawNorthwest Tourism Corp. v. Court of Appeals, Former Special Third Division, G.R. No.
150591, June 27, 2005, 461 SCRA 298, 309; ACD Investigation Security Agency, Inc.
v. Daquera, G.R. No. 147473, March 30, 2004, 426 SCRA 494; Premier Development Bank
v. NLRC, 354 Phil. 851 (1998).
[37]
cralawVide Cinderella Marketing Corporation v. NLRC, 353 Phil. 284 (1998); ABS-CBN
Broadcasting Corporation v. Nazareno, G.R. No. 164156, September 2006, 503 SCRA
204; Kimberly-Clark (Phils.), Inc., v. Secretary of Labor, G.R. No. 156668, November 23,
2007 for jurisprudence on regularization differential.
[38]
cralawStar Paper Corporation v. Espiritu, G.R. No. 154006, November 2, 2006, 506 SCRA 556,
568; Tan v. Lagrama, G.R. No. 151228, August 15, 2002, 387 SCRA 393, 406; Prudential
Bank and Trust Co. v. Reyes, G.R. No. 141093, February 20, 2001, 352 SCRA 316, 332.
[39]
cralawGold City Integrated Port Service, Inc. v. National Labor Relations Commission, G.R. No.
103560,July 6, 1995, 245 SCRA 627, 641; Panday v. National Labor Relations Commission,
G.R. No. 67664,May 20, 1992, 209 SCRA 122.
[40]
cralawNorthwest Tourism Corp. v. Court of Appeals, Former Special Third Division, G.R. No.
150591, June 27, 2005, 461 SCRA 298, 311; F.F. Marine Corporation v. National Labor
Relations Commission, Second Division, G.R. No. 152039, April 8, 2005, 455 SCRA 154,
174.
[41]
cralawRollo, p. 53.
[42]
cralawId. at 54; vide Annexes B B-12 inclusive, pp. 453-465.
[43]
Vide rollo, pp. 382-396.
[44]
Rollo, pp. 327-341