J.A.B. Bulao & Associates

CASE 2013-0022: JOSE MIGUEL T. ARROYO, -VERSUS-DEPARTMENT OF JUSTICE ET AL. (G .R. NO. 199082); BENJAMIN S. ABALOS, SR. VS. HON. LEILA DE LIMA, IN HER CAPACITY AS SECRETARY OF JUSTICE ET AL. ((G.R. NO. 199085); GLORIA MACAPAGAL-ARROYO VS. COMMISSION ON ELECTIONS, REPRESENTED BY CHAIRPERSON SIXTO S. BRILLANTES, JR., ET AL. (G.R. NO. 199118); (23 JULY 2013, PERALTA, J.) SUBJECT/S: CONCURRENT JURISDICTION OVER ELECTION CASES; INDEPENDENCE OF COMELEC; RIGHT TO EXAMINE DOCUMENTS IN PRELIMINARY INVESTIGATION; RIGHT TO EXTENSION OF TIME IN PRELIMINARY INVESTIGATION (BRIEF TITLE: ARROYO ET AL VS. DOJ ET AL).

DISPOSITIVE:

“WHEREFORE, premises considered, the Motions  for Reconsideration are DENIED for lack of merit.

SO ORDERED.”

SUBJECTS/DOCTRINES/DIGEST:

DOES THE COMELEC HAS EXCLUSIVE POWER TO INVESTIGATE ELECTION CASES?

YES, UNDER BP 881 OR THE COMELEC ELECTION CODE. BUT NOT ANYMORE UNDER SECTION 43 OF RA 9369.

“…… While recognizing the Comelec’s exclusive power to investigate and prosecute cases under Batas Pambansa Bilang 881 or the Omnibus Election Code, the Court pointed out that the framers of the 1987 Constitution did not have such intention. This exclusivity is thus a legislative enactment that can very well be amended by Section 43 of RA 9369. Therefore, under the present law, the Comelec and other prosecuting arms of the government, such as the DOJ, now exercise concurrent jurisdiction in the investigation and prosecution of election offenses.”

XXXXXXXXXXXXXX

THERE IS DISCREPANCY BETWEEN COMELEC RESOLUTION NO. 3467 DATED 12 JANUARY 2001 AND JOINT ORDER NO. 001-2011 DATED 15 AUGUST 2011. THE FORMER MAINTAINED THE CONTINUING DEPUTATION OF PROSECUTORS AND THE COMELEC LAW DEPARTMENT WAS TASKED TO SUPERVISE THE INVESTIGATORY AND PROSECUTORY FUNCTIONS OF THE TASK FORCE PURSUANT TO THE MANDATE OF THE OMNIBUS ELECTION CODE. THE LATTER CREATED AND CONSTITUTED A JOINT COMMITTEE AND FACT-FINDING TEAM ON THE 2004 AND 2007 NATIONAL ELECTIONS ELECTORAL FRAUD AND MANIPULATION CASES. HOW WOULD THIS DISCREPANCY BE EXPLAINED?

COMELEC RESOLUTION NO. 3467 WAS ISSUED PRIOR TO THE AMENDMENT OF THE OMNIBUS ELECTION CODE BY SECTION 43 of RA 9369.

“Indeed, as aptly pointed out by GMA, there is a discrepancy between Comelec Resolution No. 346741 dated January 12, 2001 and Joint Order No. 001-2011, dated August 15, 2011, creating and constituting a Joint Committee and Fact-Finding Team on the 2004 and 2007 National Elections electoral fraud and manipulation cases. However, GMA seemed to miss the date when these two resolutions were promulgated by the Comelec. It is noteworthy that Comelec Resolution No. 3467 was issued when Section 265 of the Omnibus Election Code was still effective, while Joint Order No. 001-2011 as well as Comelec Resolution Nos. 873342 and 905743 mentioned in the assailed decision but missed out by GMA in her motion, were issued during the effectivity of Section 43 of RA 9369, giving the Comelec and other prosecuting arms of the government the concurrent jurisdiction to investigate and prosecute election offenses.”

XXXXXXXXXXXXXXXXXX

IS THE CREATION OF THE JOINT COMMITTEE NOT REPUGNANT TO THE CONCEPT OF “CONCURRENT JURISDICTION”?

NO. IT IS AUTHORIZED BY THE AMENDATORY LAW. THERE IS NO PROHIBITION ON SIMULTANEOUS EXERCISE OF POWER BETWEEN TWO COORDINATE BODIES.

XXXXXXXXXXXXXX

BUT IS THE CREATION OF THE JOINT COMMITTEE NOT AN ABDICATION OF COMELEC’S INDEPENDENCE UNDER THE CONSTITUTION?

NO BECAUSE THE COMELEC HAS STILL TO APPROVE THE RESOLUTIONS OF THE JOINT COMMITTEE. JOINT ORDER NO. 001-2011 DATED 15 AUGUST 2011 PROVIDES THAT THE RESOLUTIONS OF THE JOINT COMMITTEE FINDING PROBABLE CAUSE FOR ELECTION OFFENSES SHALL STILL BE APPROVED BY THE COMELEC IN ACCORDANCE WITH THE COMELEC RULES OF PROCEDURE.

“To be sure, the creation of a Joint Committee is not repugnant to the concept of “concurrent jurisdiction” authorized by the amendatory law. As we explained in our September 18, 2012 Decision:

x x x The doctrine of concurrent jurisdiction means equal jurisdiction to deal with the same subject matter. Contrary to the contention of the petitioners, there is no prohibition on simultaneous exercise of power between two coordinate bodies. What is prohibited is the situation where one files a complaint against a respondent initially with one office (such as the Comelec) for preliminary investigation which was immediately acted upon by said office and the re-filing of substantially the same complaint with another office (such as the DOJ). The subsequent assumption of jurisdiction by the second office over the cases filed will not be allowed.

Indeed, it is a settled rule that the body or agency that first takes cognizance of the complaint shall exercise jurisdiction to the exclusion of the others.

x x x x

None of these problems would likely arise in the present case. The Comelec and the DOJ themselves agreed that they would exercise their concurrent jurisdiction jointly. Although the preliminary investigation was conducted on the basis of two complaints – the initial report of the Fact-Finding Team and the complaint of Senator Pimentel – both complaints were filed with the Joint Committee. Consequently, the complaints were filed with and the preliminary investigation was conducted by only one investigative body. Thus, we find no reason to disallow the exercise of concurrent jurisdiction jointly by those given such authority. This is especially true in this case given the magnitude of the crimes allegedly committed by petitioners. The joint preliminary investigation also serves to maximize the resources and manpower of both the Comelec and the DOJ for the prompt disposition of the cases.

Notwithstanding the grant of concurrent jurisdiction, the Comelec and the DOJ nevertheless included a provision in the assailed Joint Order whereby the resolutions of the Joint Committee finding probable cause for election offenses shall still be approved by the Comelec in accordance with the Comelec Rules of Procedure.45 With more reason, therefore, that we cannot consider the creation of the Joint Committee as an abdication of the Comelec’s independence enshrined in the 1987 Constitution.”

XXXXXXXXXXXXXXXX

GMA ARGUES THAT SHE WAS NOT GIVEN THE OPPORTUNITY TO EXAMINE DOCUMENTS BECAUSE THE COMPLAINT OF SENATOR AQUILINO PIMENTEL HAS NO ANNEXES. IS HER CONTENTION CORRECT?

NO. SENATOR PIMENTEL WHEN DIRECTED  TO FURNISH GMA WITH ANNEXES MANIFESTED THAT HE WAS ADOPTING THE DOCUMENTS ATTACHED TO THE DOJ-COMELEC JOINT RESOLUTION WHICH WAS FURNISHED TO GMA. GMA THEREFORE HAS THE OPPORTUNITY TO EXAMINE DOCUMENTS.

XXXXXXXXXXXXXXXXXXX

GMA CONTENDS  THAT HER RIGHT WAS VIOLATED WHEN HER MOTION FOR EXTENSION OF TIME WITHIN WHICH TO SUBMIT HER COUNTER-AFFIDAVIT AND COUNTERVAILING EVIDENCE WAS CONSEQUENTLY DENIED. IS HER CONTENTION CORRECT?

NO. THE RULES USE THE TERM “SHALL” IN REQUIRING THE RESPONDENT TO SUBMIT COUNTER-AFFIDAVIT AND OTHER COUNTERVAILING EVIDENCE WITHIN TEN (10) DAYS FROM RECEIPT OF THE SUBPOENA. IT IS SETTLED THAT THE USE OF THE WORD “SHALL” WHICH IS A WORD OF COMMAND, UNDERSCORES THE MANDATORY CHARACTER OF THE RULE.

“As in any other rule, though, liberality inthe application may be allowed provided that the party is able to present a compelling justification for the non-observance of the mandatory rules. In the 2008 Revised Manual for Prosecutors, investigating prosecutors allow or grant motions or requests for extension of time to submit counter-affidavits when the interest of justice demands that respondent be given reasonable time or sufficient opportunity to engage the services of counsel; examine voluminous records submitted in support of the complaint or undertake research on novel, complicated or technical questions or issues of law and facts of the case.

In this case, GMA claimed that she could not submit her counteraffidavit within the prescribed period because she needed to examine documents mentioned in Senator Pimentel’s complaint-affidavit. It appeared, however, that said documents were not submitted to the Joint Committee and the only supporting documents available were those attached to the Initial Report of the Fact-Finding Team. Admittedly, GMA was furnished those documents. Thus, at the time she asked for the extension of time within which to file her counter-affidavit, she very well knew that the documents she was asking were not in the record of the case. Obviously, she was not furnished those documents because they were not submitted to the Joint Committee. Logically, she has no right to examine said documents. We cannot, therefore, fault the Joint Committee in consequently denying her motion for extension to file counter-affidavit as there was no compelling justification for the non-observance of the period she was earlier required to follow.

XXXXXXXXXXXX

WAS THERE AN OVERZEALOUSNESS ON THE PART OF THE JOINT COMMITTEE IN TERMINATING THE INVESTIGATION, ENDORSING IT TO COMELECT FOR APPROVAL AND IN FILING THE INFORMATION?

SPEED IN THE CONDUCT OF PROCEEDINGS BY A JUDICIAL OR QUASIJUDICIAL OFFICER CANNOT PER SE BE INSTANTLY ATTRIBUTED TO AN INJUDICIOUS PERFORMANCE OF FUNCTIONS. THE ORDERLY ADMINISTRATION OF JUSTICE REMAINS THE PARAMOUNT CONSIDERATION WITH PARTICULAR REGARD TO THE PECULIAR CIRCUMSTANCES OF EACH CASE. UNNECESSARY DELAYS SHALL BE AVOIDED.

“And as we held in the assailed decision:

There might have been overzealousness on the part of the Joint Committee in terminating the investigation, endorsing the Joint Resolution to the Comelec for approval, and in filing the information in court.

However, speed in the conduct of proceedings by a judicial or quasijudicial officer cannot per se be instantly attributed to an injudicious performance of functions. The orderly administration of justice remains the paramount consideration with particular regard to the peculiar circumstances of each case. To be sure, petitioners were given the opportunity to present countervailing evidence. Instead of complying with the Joint Committee’s directive, several motions were filed but were denied by the Joint Committee. Consequently, petitioners’ right to submit counter-affidavit and countervailing evidence was forfeited.

Taking into account the constitutional right to speedy disposition of cases and following the procedures set forth in the Rules on Criminal Procedure and the Comelec Rules of Procedure, the Joint Committee finally reached its conclusion and referred the case to the Comelec. The latter, in turn, performed its task and filed the information in court. Indeed, petitioners were given the opportunity to be heard. They even actively participated in the proceedings and in fact filed several motions before the Joint Committee. Consistent with the constitutional mandate of speedy disposition of cases, unnecessary delays should be avoided.”

XXXXXXXXXXXXXXXXXXXXXXXXXXX

GMA PLEADED NOT GUILTY. SHE ALSO FILED A MOTION FOR BAIL WHICH WAS GRANTED. HAVE THESE ACTS AFFECTED HER RIGHT TO QUESTION HER PRELIMINARY INVESTIGATION?

YES. IN  FILING THE MOTION BEFORE THE RTC AND ACTIVELY PARTICIPATING THEREIN, SHE HAS CHOSEN TO SEEK JUDICIAL REMEDY BEFORE THE RTC WHERE THE ELECTORAL SABOTAGE CASE IS PENDING INSTEAD OF THE EXECUTIVE REMEDY OF GOING BACK TO THE JOINT COMMITTEE FOR THE SUBMISSION OF HER COUNTER-AFFIDAVIT AND COUNTERVAILING EVIDENCE.

“Finally, in our assailed decision, we already took judicial notice that not only did GMA enter a plea of “not guilty,” she also filed a Motion for bail and after due hearing, it was granted. Apparently, she benefited from the RTC Order giving her temporary liberty. In filing the motion before the RTC and actively participating therein, she has chosen to seek judicial remedy before the RTC where the electoral sabotage case is pending instead of the executive remedy of going back to the Joint Committee for the submission of her counter-affidavit and countervailing evidence.

Besides, as thoroughly discussed in the assailed decision, the irregularity or even the absence of preliminary investigation does not impair the validity of the information filed against her.”

TO READ THE DECISION, JUST DOWNLOAD THE FILE BELOW.

SCD-2013-0022 -JULY 2013 – ARROYO

CASE 2013-0021: FIRST PHILIPPINE INDUSTRIAL ORPORATION, PETITIONER, -VERSUS- RAQUEL M. CALIMBAS AND LUISA P. MAHILOM, RESPONDENTS (G.R. NO. 179256, 10 JULY 2013, PERALTA J.) SUBJECT/S: LABOR ONLY CONTRACTING; PERMISSIBLE JOB CONTRACTING; ILLEGAL DISMISSAL. (BRIEF TITLE: FIRST PHIL INDUSTRIAL VS. CALIMBAS ET AL.)

DISPOSITIVE:

“WHEREFORE, premises considered, the Petition for Review on Certiorari is DENIED. The Decision dated March 6, 2007 and Resolution dated August 16, 2007 of the Court of Appeals in CA-G.R. SP No. 90527 are hereby AFFIRMED with MODIFICATION that respondents shall be entitled to separation pay equivalent to one month salary for every year of service.

SO ORDERED.”

SUBJECTS/DOCTRINES/DIGEST:

FIRST PHIL INDUSTRIAL ARGUES THAT RESPONDENTS WERE THE EMPLOYEES OF DGMS WHO ACTED AS INDEPENDENT CONTRACTOR. IS THEIR CONTENTION CORRECT?

NO. DGMS IS NOT AN INDEPENDENT JOB CONTRACTOR BUT WAS ENGAGED IN LABOR ONLY CONTRACTING.

PROOFS: THEY HAVE NO SUBSTANTIAL CAPITAL AND HAS NO SUBSTANTIAL EQUIPMENT IN THE FORM OF TOOLS, EQUIPMENT AND MACHINERY.

Given the foregoing standards, we sustain the findings of the CA that respondents are petitioner’s employees and that DGMS is engaged in labor only contracting.

First, in Vinoya v. National Labor Relations Commission,12 this Court categorically stated that the actual paid-in capital of P75,000.00 could not be considered as substantial capital. Thus, DGMS’s actual paid-in capital in the amount of P75,000.00 does not constitute substantial capital essential to carry out its business as an independent job contractor. In spite of its bare assertion that the Vinoya case does not apply in the present case, DGMS has not shown any serious and cogent reason to disregard the ruling in the aforementioned case. Records likewise reveal that DGMS has no substantial equipment in the form of tools, equipment and machinery. As a matter of fact, respondents were using office equipment and materials owned by petitioner while they were rendering their services at its offices.

Second, petitioner exercised the power of control and supervision over The respondents. As aptly observed by the CA, “the daily time records of respondents even had to be countersigned by the officials of petitioner to check whether they had worked during the hours declared therein.

Furthermore, the fact that DGMS did not assign representatives to supervise over respondents’ work in petitioner’s company tends to disprove the independence of DGMS. It is axiomatic that the test to determine the existence of independent contractorship is whether one claiming to be an independent contractor has contracted to do the work according to his own methods and without being subjected to the control of the employer, except only to the results of the work. Obviously, on this score alone, petitioner cannot rightly claim that DGMS was an independent job contractor inasmuch as respondents were subjected to the control and supervision of petitioner while they were performing their jobs.”13

Third, also worth stressing are the points highlighted by respondents: (1) Respondents worked only at petitioner’s offices for an uninterrupted period of five years, occupying the same position at the same department under the supervision of company officials; (2) Three weeks ahead of the termination letters issued by DGMS, petitioner’s HR Manager Lorna Young notified respondents, in a closed-door meeting, that their services to the company would be terminated by July 31, 2001; (3) In the termination letters prepared by DGMS, it was even stressed that the said termination letters will formalize the verbal notice given by petitioner’s HR Administration personnel; (4) The direct superiors of respondents were managerial employees of petitioner, and had direct control over all the work-related activities of the latter. This control included the supervision of respondents’ performance of their work and their compliance with petitioner’s company policies and procedures. DGMS, on the other hand, never maintained any representative at the petitioner’s office to oversee the work of respondents.

All told, an employer-employee relationship exists between petitioner and respondents. And having served for almost five years at petitioner’s company, respondents had already attained the status of regular employees.

XXXXXXXXXXXXX

WERE RESPONDENTS ILLEGALLY DISMISSED?

YES. PETITIONER FAILED TO FOLLOW BOTH SUBSTANTIVE AND PROCEDURAL DUE PROCESS. PETITIONER FAILED TO SHOW ANY VALID OR JUST CAUSE UNDER THE LABOR CODE TO JUSTIFY TERMINATION OF SERVICES. THEY ALSO FAILED TO NOTIFY RESPONDENTS REGARDING THE ACTS OR OMISSIONS WHICH LED TO THEIR TERMINATION.

In the present case, petitioners failed to show any valid or just cause under the Labor Code on which it may justify the termination of services of respondents. Also, apart from notifying that their services had already been terminated, petitioner failed to comply with the rudimentary requirement of notifying respondents regarding the acts or omissions which led to the termination of their services as well as giving them an ample opportunity to contest the legality of their dismissal. Having failed to establish compliance with the requirements of termination of employment under the Labor Code, respondents’ dismissal is tainted with illegality.

XXXXXXXXXXXXXXXXXXX

SUPPOSE AN EMPLOYER ENGAGES A CONTRACTOR AND THE CONTRACTOR FAILS TO PAY THE WAGES OF HIS EMPLOYEES WHAT IF ANY IS THE LIABILITY OF THE EMPLOYER?

THE EMPLOYER SHALL BE JOINTLY AND SEVERALLY LIABLE WITH HIS CONTRACTOR 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.

Article 106. Contractor 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.

In 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.

XXXXXXXXXXXXX

IS CONTRACTING-OUT OF LABOR ILLEGAL?

PER SE IT IS NOT ILLEGAL. ONLY REGULATED TO PROTECT THE RIGHTS OF WORKERS.  IT CAN BE LABOR-ONLY CONTRACTING OR JOB CONTRACTING. LABOR-ONLY CONTRACTING IS PROHIBITED. JOB CONTRACTING IS REGULATED.

The 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 jobcontracting 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.

XXXXXXXXXXXXXXXXX

WHEN IS THERE LABOR-ONLY CONTRACTING?

WHEN THE  PERSON SUPPLYING WORKERS TO AN EMPLOYER:

A)  DOES NOT HAVE SUBSTANTIAL CAPITAL OR INVESTMENT IN THE FORM OF TOOLS, EQUIPMENT, MACHINERIES, WORK PREMISES, AMONG OTHERS; AND

B) THE WORKERS RECRUITED AND PLACED BY SUCH PERSON ARE PERFORMING ACTIVITIES WHICH ARE DIRECTLY RELATED TO THE PRINCIPAL BUSINESS OF SUCH EMPLOYER.

There is “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.

XXXXXXXXXXXXXXXX

WHEN IS JOB CONTRACTING PERMISSIBLE?

IF THE FOLLOWING CONDITIONS ARE MET:

(1) THE CONTRACTOR CARRIES ON AN INDEPENDENT BUSINESS AND UNDERTAKES THE CONTRACT WORK ON HIS OWN ACCOUNT UNDER HIS OWN RESPONSIBILITY ACCORDING TO HIS OWN MANNER AND METHOD, FREE FROM THE CONTROL AND DIRECTION OF HIS EMPLOYER OR PRINCIPAL IN ALL MATTERS CONNECTED WITH THE PERFORMANCE OF THE WORK EXCEPT AS TO THE RESULTS THEREOF; AND

(2) THE CONTRACTOR HAS SUBSTANTIAL CAPITAL OR INVESTMENT IN THE FORM OF TOOLS, EQUIPMENT, MACHINERIES, WORK PREMISES, AND OTHER MATERIALS WHICH ARE NECESSARY IN THE CONDUCT OF HIS BUSINESS.

Sec. 8. Job contracting. – There is job contracting permissible under the Code if the following conditions are met:

(1) The contractor carries on an independent business and undertakes the contract work on his own account under his own responsibility according to his own manner and method, free from the control and direction of his employer or principal in all matters connected with the performance of the work except as to the results thereof; and

(2) The contractor has substantial capital or investment in the form of tools, equipment, machineries, work premises, and other materials which are necessary in the conduct of his business. (RULES)

TO READ THE DECISION, JUST DOWNLOAD THE FILE BELOW.

SC-2013-0021-JULY 2013 – FIRST PHIL INDUSTRIAL – B