9/1/22, 1:29 PM [ G.R. No.

215188, March 16, 2016 ]

SECOND DIVISION
[ G.R. No. 215188, March 16, 2016 ]
UNION OF SUAL POWER PLANT EMPLOYEES (USPPE), REY J. BUAL
AND ERNESTO G. CARDONA, SR. V. TEAM SUAL CORPORATION

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 l, 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)

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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 Pl,294,707.56 for Bual and 4,636 hours of overtime pay or PI,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.

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.

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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]
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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 Commission[10] (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.

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.

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
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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 that:

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.
xxx.

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

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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.
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 4hrs.

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

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.

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, xxx. 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
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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 andLeonen, JJ., on leave) "

Very truly yours,

(Sgd.) MA. LOURDES C. PERFECTO

Division Clerk of Court

[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.

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[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.

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