Issues

The main issues raised for the Court's resolution are: (i) whether or not Bajaro was a regular employee of Metro
Stonerich; and (ii) whether or not he was illegally dismissed by the latter company.

Ruling of the Court

The instant petition is bereft of merit.

It is a well-settled rule that the jurisdiction of the Court in a petition for review on certiorari under Rule 45 of the
Revised Rules of Court is limited only to reviewing errors of law, not of fact, unless the factual findings complained of
are completely devoid of support from the evidence on record, or the assailed judgment is based on a gross
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misapprehension of facts.  The Couti finds that none of the mentioned circumstances are present to warrant a
review of the factual findings of the case. At any rate, the CA did not commit any reversible error that would wanant
the exercise of the Court's appellate jurisdiction.

Bajaro is a Project Employee of Metro Stonerich

Essentially, the Labor Code classifies four (4) kinds of employees, namely: (i) regular employees or those who have
been engaged to perform activities which are usually necessary or desirable in the usual business or trade of the
employer; (ii) project employees or those whose employment has been fixed for a specific project or undertaking, the
completion or termination of which has been determined at the time of the employees' engagement; (iii) seasonal
employees or those who perform services which are seasonal in nature, and whose employment lasts during the
duration of the season; and (iv) casual employees or those who are not regular, project, or seasonal employees.
[32]
Jurisprudence has added a fifth kind fixed-term employees or those hired only for a definite period of time.

Focusing on the first two kinds of employment, Article 294 of the Labor Code distinguishes a regular from project-
based employment as follows:

Art. 294. 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.
Parenthetically, in a project-based employment, the employee is assigned to a particular project or phase, which
begins and ends at a determined or determinable time. Consequently, the services of the project employee may be
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lawfully terminated upon the completion of such project or phase.  For employment to be regarded as project-
based, it is incumbent upon the employer to prove that (i) the employee was hired to carry out a specific project or
[34]
undertaking; and (ii) the employee was notified of the duration and scope of the project.  In order to safeguard the
rights of workers against the arbitrary use of the word "project" as a means to prevent employees from attaining
regular status, employers must prove that the duration and scope of the employment were specified at the time the
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employees were engaged, and prove the existence of the project.

In the case at bar, Bajaro was hired by Metro Stonerich as a concrete pump operator in five different construction
projects, to wit: (i) SM Cubao Expansion and Renovation project located at Araneta Center, Cubao for five months,
which began on June 3, 2008; (ii) Robinson's Place Ilocos Nmie for five months, which commenced on January 24,
2009; (iii) Robinson's Tacloban, Marasbaras for five months, which stmied on December 14, 2010; (iv) KCC Mall
Marbel Expansion, Koronadal City for 12 months, which commenced on October 24, 2011; and (v) KCC Mall
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Zamboanga Project, Zamboanga City for 12 months, which started on January 11, 2013.

It is undisputed that Bajaro was adequately informed of his employment status (as a project employee) at the time of
his engagement. This is clearly substantiated by his employment contracts (Kasunduan Para sa Katungkulang
Serbisyo (Pamproyekto), stating that: (i) he was hired as a project employee; and (ii) his employment was for the
indicated stmiing dates therein, and will end on the completion of the project. The said contracts that he signed
sufficiently apprised him that his security of tenure with Metro Stonerich would only last as long as the specific phase
for which he was assigned. In fact, the target date of completion was even indicated in each individual contract clearly
warning him of the period of his employment.
Furthermore, pursuant to Department Order No. 19, Series of 1993, or the "Guidelines Governing the Employment of
Workers in the Construction Industry," Metro Stonerich duly submitted the required Establishment Employment
Report on April 23, 2014 to the DOLE for the reduction of its workforce. Bajaro was included among the 10 workers
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reported for termination as a consequence of the completion of the construction project effective May 23, 2014.  As
aptly pointed out by the CA, the submission of the said Establishment Employment Report is a clear indication of
project employment.

Verily, being a project employee, Metro Stonerich was justified in terminating Bajaro's employment upon the
completion of the project for which the latter was hired.

Bajaro's Continuous Rehiring and His Performance of Work that was Necessary and Desirable to Metro
Stonerich's Business Did Not Confer Upon Him Regular Employment Status

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Remarkably, in Gadia, et al. v. Sykes Asia, Inc., et al.,  the Court explained that the "projects" wherein the project
employee is hired may consist of "(i) 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
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company; or (ii) a particular job or undertaking that is not within the regular business of the corporation."

Accordingly, it is not uncommon for a construction firm to hire project employees to perform work necessary and vital
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for its business. Suffice it to say, in William Uy Construction Corp. and/or Uy, et al. v. Trinidad,  the Court
acknowledged the unique characteristic of the construction industry and emphasized that the laborer's performance
of work that is necessary and vital to the employer's construction business, and the former's repeated rehiring, do not
automatically lead to regularization, viz.:

Generally, length of service provides a fair yardstick for determining when an employee initially hired on a
temporary basis becomes a permanent one, entitled to the security and benefits of regularization. But this
standard will not be fair, if applied to the construction industry, simply because construction firms cannot
guarantee work and funding for its payrolls beyond the life of each project. And getting projects is not a matter
of course. Construction companies have no control over the decisions and resources of project proponents or
owners. There is no construction company that does not wish it has such control but the reality, understood by
construction workers, is that work depended on decisions and developments over which construction companies
have no say.

For this reason, the Court held in Caseres v. Universal Robina Sugar Milling Corporation that the repeated and
successive rehiring of project employees do not qualify them as regular employees, as length of service is
not the controlling determinant of the employment tenure of a project employee, but whether the
employment has been fixed for a specific project or undertaking, its completion has been determined at the
time of the engagement of the employee.[41] (Citations omitted and emphasis and underscoring Ours)
[42]
Additionally, in Malicdem, et al. v. Marulas Industrial Corporation, et al.,  the Court took judicial notice of the fact
that in the construction industry, an employee's work depends on the availability of projects. The employee's tenure
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"is not permanent but coterminous with the work to which he is assigned."  Consequently, it would be extremely
burdensome for the employer, who depends on the availability of projects, to carry the employee on a permanent
status and pay him wages even if there are no projects for him to work on. An employer cannot be forced to maintain
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the employees in the payroll, even after the completion of the project.  "To do so would make the employee a
privileged retainer who collects payment from his employer for work not done. This is extremely unfair to the
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employers and amounts to labor coddling at the expense of management."

Accordingly, it is all too apparent that the employee's length of service and repeated re-hiring constitute an unfair
yardstick for deter!nining regular employment in the construction industry. Thus, Bajaro's rendition of six years of
service, and his repeated re-hiring are not badges of regularization.

Bajaro is Entitled to Overtime Pay Differentials, Proportionate 13th Month Pay, SIL Pay and Attorney's Fees

Although Bajaro was hired as a project employee, he is still entitled to certain benefits under the law. Particularly,
th
Bajaro is bound to receive overtime pay differentials, SIL pay, and proportionate 13  month pay, with attorney's fees
equivalent to 10% of the total monetary award.
Specifically, as for Bajaro's overtime pay, the records show that Bajaro rendered 531 hours of overtime work.
Pursuant to Article 87 of the Labor Code, Bajaro is entitled to receive an additional compensation equivalent to 25%
of his daily wage of Php 500.00 for every hour of overtime work he rendered. Unfortunately however, Bajaro merely
received a meager overtime pay of Php 50.00. Thus, the Court agrees with the LA's conclusion that Bajaro is entitled
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to an overtime pay differential.

Additionally, Metro Stonerich failed to prove that it paid Bajaro his SIL pay. Notably, Atiicle 95 of the Labor Code
states that "every employee who has rendered at least one year of service shall be entitled to a yearly SIL of five
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days with pay." Metro Stonerich failed to prove that it gave Bajaro his SIL pay.  It must be noted that in claims for
th
payment of salary differential, SIL, holiday pay and 13  month pay, the burden rests on the employer to prove
payment. This standard follows the basic rule that in all illegal dismissal cases the burden rests on the defendant to
prove payment rather than on the plaintiff to prove non-payment. This likewise stems from the fact that all pertinent
personnel files, payrolls, records, remittances and other similar documents - which will show that the differentials, SIL
and other claims of workers have been paid - are not in the possession of the worker but are in the custody and
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control of the employer.

th
Likewise, Bajaro is entitled to receive his proportionate 13  month pay corresponding to January 2014 to April 22,
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2014.

In addition, Bajaro should be awarded attorney's fees equivalent to 10% of the total monetary award, as the instant
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case includes a claim for unlawfully withheld wages.  Added to this, all amounts due shall earn a legal interest of
six percent (6%) per annum.

On the other hand, Bajaro's claims for premium pay for holiday and rest day are denied for lack of factual basis, due
[51]
to Bajaro's failure to specify the dates that he worked during special days, or rest days.  It bears stressing that
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premium pays for holidays and rest days, are not usually incurred in the normal course of business.  As such, the
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burden is shifted on the employee to prove that he actually rendered service on holidays and rest days.

In fine, the Court affirms the right of an employer to hire project employees, for as long as the latter are sufficiently
apprised of the nature and tenn of their employment. Metro Stonerich was not remiss in informing Bajaro of his limited
tenure as a project employee. Accordingly, being a project employee, Bajaro was validly terminated from employment
due to the completion of the project in which he was engaged.

WHEREFORE, premises considered, the instant appeal is hereby DISMISSED for lack of merit. Accordingly, the
Decision dated July 22, 2016 of the Court of Appeals in CA-G.R. SP No. 143243 is AFFIRMED with modification in
that all monetary awards shall earn legal interest of six percent (6%) per annum from the finality of this Decision until
the full satisfaction of the obligation. The Labor Arbiter is ordered to prepare a comprehensive accounting of all
monetary awards pursuant to this Court's ruling.

SO ORDERED.