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[G.R. No. 114671. May 9, 2001]

AURELIO SALINAS, JR., et al. vs. NLRC, et al.

THIRD DIVISION

Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated MAY 9, 2001.

G. R. No. 114671 (Aurelio Salinas, Jr., Armando Samulde, Alejandro Alonzo and Avelino Cortez, petitioners vs. National Labor Relations Commission and Atlantic Gulf & Pacific Co. of Manila, Inc., respondents.)

Private respondent Atlantic Gulf & Pacific Co. of Manila, Inc. seeks reconsideration of this Court's Decision ¹ Rollo, 157.dated November 24, 1999 ordering it to reinstate herein petitioners without loss of seniority and full backwages.

In support of its motion, private respondent invokes the doctrine laid down by this court in the case of ALU-TUCP vs. NLRC. ² 234 SCRA 678, [1994]. In said case, we clarified the scope and definition of "project" in relation to project employees as follows:

"In the realm of business and industry, we note that "project" could refer to one or the other of at least two (2) distinguishable types of activities. Firstly, a project could refer to a particular job or undertaking that is within the regular or usual business of the employer company, but which is distinct and separate, and identifiable as such, from the other undertakings of the company. Such job or undertaking begins and ends at determined or determinable times. The typical example of this first type of project is a particular construction job or project of a construction company. A construction company ordinarily carries out two or more discrete identifiable construction projects: e.g., a twenty-five storey hotel in Makati; a residential condominium building in Baguio City; and a domestic air terminal in Iloilo City. Employees who are hired for the carrying out of one of these separate projects, the scope and duration of which has been determined and made known to the employees at the time of employment, are properly treated as "project employees," and their services may be lawfully terminated at completion of the project.

The term "project" could also refer to, secondly, a particular job or undertaking that is not within the regular business of the corporation. Such a job or undertaking must also be identifiably separate and distinct from the ordinary or regular business operations of the employer. The job or undertaking also begins and ends at determined or determinable times. The case at bar presents what appears to our mind as a typical example of this kind of "project." ³ Ibid., 685-686.

Private respondent contends that since jurisprudence recognizes the validity of project employment even in cases where the work performed by the employee is usually necessary and desirable to the business of the employer, the petitioners should be considered as project employees and should not be considered regular employees despite several years of service.

After a careful review, we resolve to deny private respondent's motion for reconsideration.

As previously discussed in the questioned Decision, the factual circumstances of the present case are on all fours with the case of Caramol vs. NLRC. ⁴ 225 SCRA 582, [1993].

In the case of Caramol vs. NLRC, which also involved a claim against herein respondent, this Court ⁵ First Division rejected respondent's claim that the petitioner therein was a project employee. This Court ratiocinated that the fact that the employment contract of the therein petitioner was renewed forty four (44) times wherein he performed the same kind of work clearly manifested that his tasks were usually necessary or desirable in the usual trade of business of the respondent. More importantly, this Court took into consideration the fact that, in said case, the respondent failed to file any report of termination each time the petitioner's employment was terminated due to completion of each construction project he was engaged in to the Department of Labor as required by Policy Instruction No. 20 ⁶ "xxx Moreover, the company is not required to obtain a clearance from the Secretary of Labor in connection with such termination. What is required of the company is a report to the nearest Public employment Office for statistical purposes." (We note that Policy Instruction No. 20 has been superseded by Department Order No. 19 dated April 1, 1993). ⁷ Citing Magante vs. NLRC, 185 SCRA 21.The combination of these circumstances led to no other conclusion than that the petitioner therein was a regular employee and not a project employee as contended by the respondent. The Court explained thus:

"There is no question that stipulation on employment contract providing for a fixed period of employment such as "project-to-project" contract is valid provided the period was agreed upon knowingly and voluntarily by the parties, without any force, duress or improper pressure being brought to bear upon the employee and absent any other circumstances vitiating his consent, or where it satisfactorily appears that the employer and employee dealt with each other on more or less equal terms with no moral dominance whatever being exercised by the former over the latter. However, where from the circumstances it is apparent that periods have been imposed to preclude the acquisition of tenurial security by the employee, they should be struck down as contrary to public policy, morals, good custom or public order." ⁸ Caramol vs. NLRC, Supra, p. 586.

Although, the ALU-TUCP case was decided subsequent to Caramol, the former did not expressly abandon the doctrine contained in the latter. Moreover, the facts in the ALU-TUCP case are not the same as those obtaining in Caramol or in the case at hand. In the ALU-TUCP case, the employer involved was not engaged in the construction industry where every employer who engages the services of project employees is obligated to file termination reports with the Department of Labor after completion of a particular project. On the contrary, the employer therein was the National Steel Corporation, which hired construction workers as project employees for each of the distinct component projects which were undertaken by it to implement its own Five-Year Expansion Program and not for third parties. We thus stated that:

"NSC undertook the ambitious Five Year Expansion Program I and II with the ultimate end in view of expanding the volume and increasing the kinds of products that it may offer for sale to the public. The Five Year Expansion Program had a number of component projects: e.g., (a) the setting up of a "Cold Rolling Mill Expansion Project"; (b) the establishment of a "Billet Steel-Making Plant" (BSP); (c) the acquisition and installation of a "Five Stand TDM"; and (d) the "Cold Mill Peripherals Project." Instead of contracting out to an outside or independent contractor the tasks of constructing the buildings with related civil and electrical works that would house the new machinery and equipment, the installation of the newly acquired mill or plant machinery and equipment and the commissioning of such machinery and equipment, NSC opted to execute and carry out its Five Year Expansion Projects "in house," as it were, by administration. The carrying out of the Five Year Expansion Program (or more precisely, each of its component projects) constitutes a distinct undertaking identifiable from the ordinary business and activity of NSC. Each component project, of course, begins and ends at specified times, which had already been determined by the time petitioners were engaged. We also note that NSC did the work here involved - the construction of buildings and civil and electrical works, installation of machinery and equipment and the commissioning of such machinery - only for itself. Private respondent NSC was not in the business of constructing buildings and installing plant machinery for the generat business community, i.e., for unrelated, third party, corporations. NSC did not hold itself out to the public as a construction company or as an engineering corporation." ⁹ ALU-TUCP vs. NLRC, Supra, p. 686.

ACCORDINGLY, the instant motion is hereby DENIED.

SO ORDERED.

Very truly yours,

(Sgd.) JULIETA Y. CARREON

Clerk of Court

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