07 ABS-CBN Broadcasting v Nazareno Et Al

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   ABS-CBN v NAZARENO September 26 2006/Callejo Jr., J. / Digest by Prana NATURE  Certiorari PETITIONERS  JABS-CBN Broadcasting Corporation. RESPONDENTS  Marlyn Nazareno, Merlou Gerzon, Jennifer Deiparine, and Josephine Lerasan SUMMARY  . Issue revolves around Production Assistants (Pas) and whether they are “ talents ”  or regular employees because ABS-CBN does not want to recognize them as regular employees   SC said that yes, they are regular! DOCTRINE.  While length of time may not be a sole controlling test for project employment, it can be a strong factor to determine whether the employee was hired for a specific undertaking or in fact tasked to perform functions which are vital, necessary and indispensable to the usual trade or business of the employer. FACTS.   ã   Petitioner ABS-CBN Broadcasting Corporation (ABS-CBN) is engaged in the broadcasting business and owns a network of television and radio stations, whose operations revolve around the broadcast, transmission, and relay of telecommunication signals. It sells and deals in or otherwise utilizes the airtime it generates from its radio and television operations. It has a franchise as a broadcasting company, and was likewise issued a license and authority to operate by the National Telecommunications Commission. ã   Petitioner employed respondents Nazareno, Gerzon, Deiparine, and Lerasan as production assistants (PAs) on different dates . They were assigned at the news and public affairs, for various radio programs in the Cebu Broadcasting Station. On December 19, 1996, petitioner and the ABS-CBN Rank-and-File Employees executed a Collective Bargaining Agreement (CBA) to be effective during the period from December 11, 1996 to December 11, 1999. However, since petitioner refused to recognize PAs as part of the bargaining unit, respondents were not included to the CBA. ã   On October 12, 2000, respondents filed a Complaint for Recognition of Regular Employment Status , Underpayment of Overtime Pay, Holiday Pay, Premium Pay, Service Incentive Pay, Sick Leave Pay, and 13th Month Pay with Damages against the petitioner before the NLRC. Respondents (Nazareno)  insisted that they belonged to a work pool  from which petitioner chose persons to be given specific assignments at its discretion, and were thus under its direct supervision and control regardless of nomenclature. Petitioner (ABS-CBN) alleged in its position paper that the respondents were PAs who basically assist in the conduct of a particular program ran by an anchor or talent. Among their duties include monitoring and receiving incoming calls from listeners and field reporters and calls of news sources; generally, they perform leg work for the anchors during a program or a particular production. They are considered in the industry as program employees  in that, as distinguished from regular or station employees, they are basically engaged by the station  for a particular or specific program broadcasted by the radio station . Petitioner asserted that as PAs, the complainants were issued talent information sheets  which are updated from time to time, and are thus made the basis to determine the programs to which they shall later be called on to assist. They also maintained that PAs, reporters, anchors and talents occasionally sideline for other programs they produce, such as drama talents in other productions. As program employees, a PA ’ s engagement is coterminous with the completion of the program, and may be extended/renewed provided that the program is on-going; a PA may also be assigned to new programs upon the cancellation of one program and the commencement of another. As such program employees, their compensation is computed on a program basis, a fixed amount for performance services irrespective of the time consumed. At any rate, petitioner claimed, as the payroll will show, respondents were paid all salaries and benefits due them under the law. ã   The Labor Arbiter rendered judgment in favor of the respondents, and declared that they were regular employees of petitioner as such, they were awarded monetary benefits. ã   NLRC affirmed the decision of the Labor Arbiter. ã   Petitioner filed a motion for reconsideration but CA dismissed it. ISSUES & RATIO . 1.   Whether or not the respondents were considered regular employees of ABS-CBN. –  YES.    where a person has rendered at least one year of service, regardless of the nature of the activity performed, or where the work is continuous or intermittent, the employment is considered regular as long as the activity exists, the reason being that a customary appointment is not indispensable before one may be formally declared as having attained regular status.    Article 280 of the Labor Code provides: o    ART. 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 fixed for a specific 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.    Universal Robina Corporation v. Catapang : the Court reiterated the test in determining whether one is a regular employee: The primary standard of determining regular employment is the reasonable connection between the particular activity performed by the employee in relation to the usual trade or business of the employer . Also, if the employee has been performing the job for at least a year, even if the performance is not continuous and merely intermittent, the law deems repeated and continuing need for its performance as sufficient evidence of the necessity if not indispensability of that activity to the business.    Magsalin v. National Organization of Working Men : Although the work to be performed is only for a specific project or seasonal, where a person thus engaged has been performing the job for at least one year, even if the performance is not continuous or is merely intermittent, the law deems the repeated and continuing need for its performance as being sufficient to indicate the necessity or desirability of that activity to the business or trade of the employer.    It is of no moment that petitioner hired respondents as talents. The fact that respondents received pre-agreed “talent   fees”  instead of salaries, that they did not  observe the required office hours, and that they were permitted to join other productions during their free time are not conclusive of the nature of their employment. Respondents cannot be considered “talents”  because they are not actors or actresses or radio specialists or mere clerks or utility employees. They are regular employees who perform several different duties under the control and direction of ABS-CBN executives and supervisors.”      Additionally, respondents cannot be considered as project or program employees because no evidence was presented to show that the duration and scope of the project were determined or specified at the time of their engagement. Under existing jurisprudence, project could refer to two distinguishable types of activities. o   First, a project may refer to a particular job or undertaking that is within the regular or usual business of the employer, 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. o   Second, a particular job or undertaking that is not within the regular business of the employer . 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 principal test is whether or not the project employees were assigned to carry out a specific project or undertaking, the duration and scope of which were specified at the time the employees were engaged for that project. o   respondents had continuously performed the same activities for an average of five years!!! While length of time may not be a sole controlling test for project employment, it can be a strong factor to determine whether the employee was hired for a specific undertaking or in fact tasked to perform functions which are vital, necessary and indispensable to the usual trade or business of the employer.    Why this case is different from SONA v ABS-CB (where Sonza, a well-known television and radio personality, was found to be an independent contractor)? In this case….   o   In the selection and engagement of respondents, no peculiar or unique skill, talent or celebrity status was required from them because they were merely hired through petitioner’s  personnel department just like any ordinary employee. o   The so-called talent fees of respondents correspond to wages given as a result of an employer-employee relationship. Respondents did not have the power to bargain for huge talent fees, a circumstance negating independent contractual relationship. o   Petitioner could always discharge respondents should it find their work unsatisfactory, and respondents are highly dependent on the petitioner for continued work. o   The degree of control and supervision exercised by petitioner over respondents through its supervisors negates the allegation that respondents are independent contractors. Other issues: On the CBA: As regular employees, respondents are entitled to the benefits granted to all other regular employees of petitioner under the CBA . The reason why production assistants were excluded from the said agreement is precisely because they were classified and treated as project employees by petitioner. it is not the will or word of the employer which determines the nature of employment of an employee but the nature of the activities performed by such employee in relation to the particular business or trade of the employer.   A collective bargaining agreement is a contract entered into by the union representing the employees and the employer. However, even the non-member employees are entitled to the benefits of the contract.  To accord its benefits only to members of the union without any valid reason would constitute undue discrimination against non-members. A collective bargaining agreement is binding on all employees of the company. Therefore, whatever benefits are given to the other employees of ABS-CBN must likewise be accorded to private respondents who were regular employees of petitioner. Besides, only talent-artists were excluded from the CBA and not production assistants who are regular employees of the respondents. Moreover, under Article 1702 of the New Civil Code: In case of doubt, all labor legislation and all labor contracts shall be construed in favor of the safety and decent living of the laborer. Re: belated appeal: SC agrees with ABS-CBN ’ s contention that the perfection of an appeal within the statutory or reglementary period is not only mandatory, but also jurisdictional; failure to do so renders the assailed decision final and executory and deprives the appellate court or body of the legal authority to alter the final judgment, much less entertain the appeal. However, this Court has time and again ruled that in exceptional cases, a belated appeal may be given due course if greater injustice may occur if an appeal is not given due course than if the reglementary period to appeal were strictly followed. Technicality should not be allowed to stand in the way of equitably and completely resolving the rights and obligations of the parties. We have held in a catena of cases that technical rules are not binding in labor cases and are not to be applied strictly if the result would be detrimental to the workingman. Although the Labor Arbiter in his Order dated 18 June 2001 which revived and re-opened the dismissed case without prejudice beyond the ten (10) day reglementary period had inadvertently failed to follow Section 16, Rule V, Rules Procedure of the NLRC which states: A party may file a motion to revive or re-open a case dismissed without prejudice within ten (10) calendar days from receipt of notice of the order dismissing the same; otherwise, his only remedy shall be to re-file the case in the arbitration branch of srcin. the same is not a serious flaw that had prejudiced the respondents ’  right to due process. The case can still be refiled because it has not yet prescribed. Anyway, Article 221 of the Labor Code provides: In any proceedings before the Commission or any of the Labor Arbiters, the rules of evidence prevailing in courts of law or equity shall not be controlling and it is the spirit and intention of this Code that the Commission and its members and the Labor Arbiters shall use every and all reasonable means to ascertain the facts in each case speedily and objectively and without regard to technicalities of law or procedure, all in the interest of due process.   DECISION  . Petition denied. CA decision affirmed. NOTES. They were made to perform the following tasks and duties: a) Prepare, arrange airing of commercial broadcasting based on the daily operations log and digicart of respondent ABS-CBN; b) Coordinate, arrange personalities for air interviews; c) Coordinate, prepare schedule of reporters for scheduled news reporting and lead-in or incoming reports; d) Facilitate, prepare and arrange airtime schedule for public service announcement and complaints; e) Assist, anchor program interview, etc; and f) Record, log clerical reports, man based control radio. May list din ng program assignments nila sa case pero marami masyado. Including but not limited to: Balitang K, Nagbabagang Balita, Info Hayupan, Sunday Chismisan, Timbangan sa Hustisya, and Haranahan
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