SECOND DIVISION

[G.R. No. 106090. February 28, 1994.]

RICARDO FERNANDEZ , petitioner, v s . NATIONAL LABOR RELATIONS

COMMISSION and D. M. CONSUNJI, INC. , respondents.

DECISION

NOCON , J : p

Forming the crux of the matter in this petition for certiorari is the question of
whether or not the National Labor Relations Commission acted with grave abuse of
discretion in reversing the Labor Arbiter's decision by dismissing the complaints for illegal
dismissal, one of which is petitioner's, on the finding that they were project employees.
Petitioner was hired as a laborer at the D.M. Consunji, Inc., a construction rm, on
November 5, 1974. He became a skilled welder and worked for private respondent until
March 23, 1986 when his employment was terminated on the ground that the project
petitioner had been assigned to was already completed and there was no more work for
him to do. prLL

Skeptic of private respondent's reason, petitioner brought his plight before the
Labor Arbiter who consolidated the same with three (3) other separate complaints for
illegal dismissal and various money claims against private respondent. After ling their
respective position papers and other documents pertinent to their causes/defenses, the
parties agreed to submit the case for decision based on record.
On May 12, 1988, Labor Arbiter Fernando V. Cinco rendered a decision, nding that
complainants worked continuously in various projects ranging from ve (5) to twenty (20)
years and belonged to a work pool, the dispositive portion of which states as follows:
"WHEREFORE, premises considered, the terminations by respondent of
herein complainants are hereby declared illegal. Consequently, respondent is
ordered to reinstate the complainants, who have not yet reached the retirement
age, to their former positions plus backwages of one (1) year.LLjur

"Anent complainants who have already reached the retirement age of sixty
(60) years as of the date of this decision, respondent is thereby ordered to pay
said complainants their retirement/separation bene ts equivalent to one half
(1/2) month salary for every year of service, a fraction of at least six (6) months
being considered as one (1) whole year.

"Moreover, respondent is ordered to pay all complainants their service

incentive leave for the past three (3) years; and to pay complainants Ricardo
Fernandez, Gaudencio Merhan and Rolando Serona their 13th month pay likewise
for the past three (3) years.

"The complaints of Amador Borromeo, Jesus Espiritu and Ramon Celestial

are hereby dismissed in view of their receipt of Separation pay and their execution
of quitclaims in favor of herein respondent.
CD Technologies Asia, Inc. © 2018 cdasiaonline.com
 "The other claims are likewise dismissed for lack of merit.

"SO ORDERED.
"Metro Manila, Philippines. 12 May 1988." 1

Private respondent questioned on appeal the aforesaid decision of the Labor Arbiter
on the ground that the complainants were all project employees who were hired on a
project-to-project basis, depending on the availability of projects that the former was able
to close with its clients. Respondent pointed to the gaps in complainants' respective
employment histories to show that they were indeed hired on an "off-and-on" basis. prLL

In view of the lack of evidence on record to prove the continuous employment of

complainants-appellees, and that on the contrary, what was proven was the intermittent
nature of their work as shown by the different project contracts, the respondent
Commission concluded that complainants-appellees were project employees. The
dispositive portion of the decision dated September 29, 1989 of respondent Commission
reads:
"WHEREFORE, the decision of the Labor Arbiter is hereby set aside and a
new one entered dismissing the complaints led by complainants-appellees for
lack of merit." 2

From said decision, the complainants-appellees interposed a motion for

reconsideration which was denied for lack of merit on July 19, 1991. Respondent
Commission a rmed its nding that complainants-appellees were project employees. As
such, the nature of their employment did not change by the number of projects in which
they have rendered service. Respondent Commission also noted that the motion for
reconsideration was led only on January 29, 1990 which was beyond the ten-day
reglementary period from date of receipt of the decision on November 13, 1989. Cdpr

Without any mention of the denial of said motion for reconsideration, petitioner
alone comes before this Court on a petition led on July 21, 1992 and assails the decision
dated September 29, 1989 of respondent Commission contending that it is more in
keeping with the intent and spirit of the law to consider him and the thirteen (13) other
complainants in the consolidated cases as regular employees.
At the outset, it is obvious that the petition was not led within a reasonable time
from receipt of the questioned decision on November 13, 1989 as the petition was led
only on July 21, 1992. Neither does the ling of the petition appear to be reasonable from
the date of receipt of the denial of the motion for reconsideration on August 2, 1991.
Reckoned from this later date, petitioner waited for almost one year before he availed of
this extraordinary remedy of certiorari. We have consistently stated that "the yardstick to
measure the timeliness of a petition for certiorari is the reasonableness of the duration of
time that had expired from the commission of the acts complained of up to the institution
of the proceedings to annul the same." 3 Without doubt, petitioner's negligence or
indifference for such a long period of time has in the meantime rendered the questioned
decision final and no longer assailable. LLjur

Even if we were to dispense with the requirement that the petition should be led
within a reasonable time, the petition would still have to be dismissed on the merits.
Private respondent presented material documents showing that petitioner was hired as a
project employee with the speci c dates of hiring, the duration of hiring, the dates of his
lay-offs, including the lay-off reports and the termination reports submitted to the then
CD Technologies Asia, Inc. © 2018 cdasiaonline.com
 Ministry of Labor and Employment. Such data covered the period from November 5, 1974
to March 23, 1986.
Inasmuch as the documentary evidence clearly showed gaps of a month or months
between the hiring of petitioner in the numerous projects wherein he was assigned, the
ineluctable conclusion is that petitioner has not continuously worked with private
respondent but only intermittently as he was hired solely for speci c projects. As such, he
is governed by Policy Instruction No. 20, the pertinent portions of which read as follows:
"Generally, there are two types of employees in the construction industry,
namely 1) Project Employees and 2) Non-project Employees.

"Project employees are those employed in connection with a particular

construction project. Non-project employees are those employed by a
construction company without reference to a particular project.

"Project employees are not entitled to termination pay if they are

terminated as a result of the completion of the project or any phase thereof in
which they are employed, regardless of the number of projects in which they have
been employed by a particular construction company." LLpr

Petitioner cites Article 280 of the Labor Code as legal basis for the decision of the
Labor Arbiter in his favor. The text of Article 280 states as follows:
"Article 280. Regular and Casual Employment. — The provisions 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 xed for a speci c 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.

"An employment shall be deemed to be casual if it is not covered by the

preceding paragraph: Provided, That, any employee who has rendered at least one
year of service whether such service is continuous or broken, shall be considered
a regular employee with respect to the activity in which he is employed and his
employment shall continue while such actually exists." prLL

Petitioner claims that the above-quoted proviso in Article 280 of the Labor Code
supports his claim that he should be regarded as a regular employee.
We disagree. The proviso in the second paragraph of Article 280 of the Labor Code
has recently been explained in Mercado v. NLRC , 4 where it was held that said proviso
deems as regular employees only those "casual" employees who have rendered at least
one year of service regardless of the fact that such service may be continuous or broken. It
is not applicable to "project" employees, who are speci cally excepted therefrom. Thus,
the Court therein said:
"The general rule is that the o ce of a proviso is to qualify or modify only
the phrase immediately preceding it or restrain or limit the generality of the clause
that it immediately follows. (Statutory Construction by Ruben Agpalo, 1986 ed., p.
173). Thus, it has been held that a proviso is to be construed with reference to the
immediately preceding part of the provision to which it is attached, and not to the
statute itself or to other sections thereof. (Chinese Flour Importers Association v.
CD Technologies Asia, Inc. © 2018 cdasiaonline.com
 Price Stabilization Board, 89 Phil. 469 (1951); Arenas v. City of San Carlos, G.R.
No. 24024, April 5, 1978, 82 SCRA 318 (1978). The only exception to the rule is
where the clear legislative intent is to restrain or qualify not only the phrase
immediately preceding it (the proviso) but also earlier provisions of the statute or
even the statute itself as a whole. (Commissioner of Internal Revenue v. Filipinas
Compania de Seguros, 107 Phil. 1055 (1960)" Cdpr

Indeed, a careful reading of the proviso readily discloses that the same relates to
employment where the employee is engaged to perform activities that are usually
necessary or desirable in the usual business or trade of the employer but hastens to
qualify that project employment is specifically exempted therefrom.
Finally, petitioner relies on Policy Instruction No. 20 which was issued by then
Secretary Blas F. Ople to stabilize employer-employee relations in the construction
industry to support his contention that workers in the construction industry may now be
considered regular employees after their long years of service with private respondent.
The pertinent provision of Policy Instruction No. 20 reads:
"Members of a work pool from which a construction company draws its
project employees, if considered employees of the construction company while in
the work pool, are non-project employees or employees for an inde nite period. If
they are employed in a particular project, the completion of the project or of any
phase thereof will not mean severance of employer-employee relationship." cdll

Respondent Commission correctly observed in its decision that complainants, one

of whom petitioner, failed to consider the requirement in Policy Instruction No. 20 that to
qualify as member of a work pool, the worker must still be considered an employee of the
construction company while in the work pool. In other words, there must be proof to the
effect that petitioner was under an obligation to be always available on call of private
respondent and that he was not free to offer his services to other employers.
Unfortunately, petitioner miserably failed to introduce any evidence of such nature during
the times when there were no project.
Noteworthy in this case is the fact that herein private respondent's lay-off reports
and the termination reports were duly submitted to the then Ministry of Labor and
Employment everytime a project was completed in accordance with Policy Instruction No.
20, which provides:
"Project employees are not entitled to termination pay if they are
terminated as a result of the completion of the project or any phase thereof in
which they are employed, regardless of the number of projects in which they have
been employed by a particular construction company. 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." LexLib

The presence of this factor makes this case different from the cases decided by the
Court where the employees were deemed regular employees. The cases of Ochoco v.
National Labor Relations Commission, 5 Philippine National Construction Corporation v.
National Labor Relations Commission, 6 Magante v. National Labor Relations Commission ,
7 and Philippine National Construction Corporation v. National Labor Relations, et al. , 8
uniformly held that the failure of the employer to report to the nearest employment o ce
the termination of workers everytime a project is completed proves that the employees
are not project employees. Contrariwise, the faithful and regular effort of private
CD Technologies Asia, Inc. © 2018 cdasiaonline.com
 respondent in reporting every completion of its project and submitting the lay-off list of its
employees proves the nature of employment of the workers involved therein as project
employees. Given this added circumstance behind petitioner's employment, it is clear that
he does not belong to the work pool from which the private respondent would draw
workers for assignment to other projects at its discretion. cdll

WHEREFORE, the instant petition for certiorari is hereby DISMISSED in view of the
foregoing reasons.
SO ORDERED.
Narvasa, C .J ., Padilla, Regalado and Puno, JJ ., concur.

Footnotes

1. Rollo, pp. 30-31.

2. Rollo, p. 20.
3. Cortez v. CFI of Cadiz, 52 Phil. 214 (1928); Centenera v. Yatco, 106 Phil. 1064 (1960),
Province of Misamis Occidental v. Catolico, G.R. No. 24397, 23 SCRA 1295 (1968);
Toledo v. Pardo, G.R. No. 56761, 118 SCRA 566 (1982); San Juan v. Cuento, G.R. No. L-
45063, 160 SCRA 277 (1988); Allied Leasing & Finance Corporation v. Court of Appeals,
G.R. No. 91988, 197 SCRA 71 (1991).

4. G.R. No. 79869, 201 SCRA 332 (1991).

5. G.R. No. 56363, 120 SCRA 774 (1983).

6. G.R. No. 85323, 174 SCRA 191 (1989).

7. G.R. No. 74969, 188 SCRA 21 (1990).
8. G.R. No. 95816, 215 SCRA 204 (1992).

CD Technologies Asia, Inc. © 2018 cdasiaonline.com