court of appeals decision on 247

7/27/2019 Court of Appeals Decision on 247

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Republic of the Philippines

COURT OF APPEALS

Manila

SEVENTH DIVISION

* * * * *

FERDINAND V. TENDENILLA,

MARIVIC L. SARAO, MA. IRENE

ARSENIA L. BELLO, and

MACABANTOG D. BATAO,

Petitioners,

-versus-

HON. CESAR V. PURISIMA, n !s

"a#a"$% as Se"re$ar% &' $!e

De#ar$(en$ &' Fnan"e, HON. MAR

A. RO)AS, n !s "a#a"$% as $!e

'&r(er Se"re$ar% &' $!e De#ar$(en$

&' Trans#&r$a$&n and

C&((un"a$&ns, HON. *OSEPH

EMILIO A. ABA+A, n !s "a#a"$% as

$!e n"u(en$ Se"re$ar% &' $!e

De#ar$(en$ &' Trans#&r$a$&n and

C&((un"a$&ns, H&n. LEILA M. DE

LIMA, n !er "a#a"$% as Se"re$ar% &'

$!e De#ar$(en$ &' *us$"e, GEN.

RICARDO A. DAVID, *R. RET, n

!s "a#a"$% as $!e C&((ss&ner &'

$!e Bureau &' I((/ra$&n, BOARD

OF AIRLINE COMPANIES,

re#resen$ed % FELI) *. CRU0, and

AIRLINE OPERATORS COUNCIL

AOC, re#resen$ed % EDDIE

MONREAL,

Respondents.

CA-G.R. SP N&. 123425

Me(ers6

TIJAM, N. G., Chairperson

BAR0A, R. F., andCRUZ, R.A., JJ.:

Pr&(u7/a$ed6

Au/us$ 12, 2518

x---------------------------------------------------------------------------------------------------------x


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CA-G.R. SP No. 126920 - 2 -

DECISION

DECISION

TIJAM, *.:

Under various department issuances1, Bureau of Immigration

(BI) employees were authorized to render overtime work in our

countrys airports and seaports. !s compensation for their services,these employees were likewise authorized to collect overtime pay,

traveling, meal, "oard and lodging e#penses from shipping or airline

companies.2

$he statutory "asis for these administrative issuances is %ec. &!

of 'ommonwealth !ct o. *+ or the hilippine Immigration !ct of

*-/, which pertinently provides that:

0!%%I123$ 45 I22I16!$I4 3274833% $4 4936$I23

46;

%ec. &

'ommissioner of Immigration to do overtime work at rates

fi#ed "y him when the service rendered is to "e paid for "y

shipping companies and airlines or other persons served.=

%ince *->+, the practice has "een that BI employees who render

overtime work send their "illings to the airline companies, through

their employees association.3

4n ?uly +*, @/*@, an 3conomic 2anagers 'a"inet 'luster

meeting was held for the purpose of addressing complaints of

various airline companies on the practice of paying overtime

compensation for government employees who render customs,

immigration and Auarantine ('I) services. $he meeting was

attended "y representatives from the Cepartment of Budget and

2anagement (CB2), Cepartment of $ransportation and

1 Immigration Administrative Order, dated January 31, 1953; Memorandum Order, dated January 1,

1985; Memorandum Order No. 143 dated February 1, 199!; Memorandum Order No. "#$%9&%119

dated Mar'( 18, 199&; )e*artment Order No. 3&9 dated November , !+++; o--o, **. 3%5&.

! o--o, **. 3%55.

3 o--o, *. 859.


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CA-G.R. SP No. 126920 - 3 -

DECISION

'ommunication (C4$'), Cepartment of !griculture (C!),

Cepartment of $ourism (C4$), Cepartment of ?ustice (C4?), Bureau

of 'ustoms (B4'), 2anila International !irport !uthority (2I!!),

and the hilippine 3conomic Done !uthority (3D!).

4n the same day, %ec. 'esar urisima sent a Memorandum4 to

resident Benigno %. !Auino III, informing him of the meeting. $he

Memorandum e#plained that, it was agreed that a shifting work

schedule shall "e adopted to ensure a continuous @


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CA-G.R. SP No. 126920 - 4 -

DECISION

(i.e. 3D! zones), effective * !ugust @/*@.

2. $he DOTC, $!r&u/! $!e Cv7 Ava$&n Au$!&r$% B&ard,

s!a77 ssue an advs&r% $& a77 ar7ne "&(#anes, n'&r(n/

$!e( &' $!e #&7"% $& ds"&n$nue "!ar/n/ #rva$e en$$es

'&r &ver$(e #a%, and 7


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CA-G.R. SP No. 126920 - 5 -

DECISION

efficiency and Auality of services, centralization of the procurement

of ''$9 cameras in the airports to ena"le proper monitoring of the

'I services, and the propriety of using a random inspection of the

passengers and airports instead of su"Fecting everyone to

inspection, which was o"served to "e effective in other countries.?

(3mphasis supplied)

ursuant to said Memorandum, C4$' %ecretary 2ar 6o#as

issued a Letter, dated !ugust +, @/*@, addressed to the rivate

6espondent Board of !irline 6epresentatives (B!6), directing them

to stop payment of overtime compensation to employees of the

ational 1overnment rendering customs, immigration and

Auarantine services.5 $he Letterpertinently states that:

xxx

ursuant to the residential directive, $!e "&n"erned

Cane$ se"re$ares a/reed $& ad$ a #&7"% ;!eren a 2:@s!'$n/ s"!edu7e ;77 e (#7e(en$ed and $!e /&vern(en$ ;77

'u77% 'nan"e $!e serv"es rendered % $!e /&vern(en$ e(#7&%ees

n n$erna$&na7 ar#&r$s.Eence, government agencies performing

services in international airports have "een directed to field

sufficient num"er of personnel in shifts to address their operational

reAuirements to avoid rendering overtime.

In view thereof,we are informing you of this policy of the

government and reAuest your assistance in relaying this

information to airline companies and to advse $!e( $& s$#a%n/ &ver$(e #a% $& sad /&vern(en$ e(#7&%ees, ;!e$!er n

"ase, n


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CA-G.R. SP No. 126920 - 6 -

DECISION

organizations in the BI,7 filed a Petition for Certiorari, Prohibition, and

Injunction with Urgent Prayer for Issuance of a Temporary Restraining

Order andor !tatus "uo #nte Order and $rit of Pre%iminary Injunction 8

against u"lic 6espondents and rivate 6espondent Board of !irline

'ompanies (B!6) and !irline 4perators 'ouncil (!4') praying that

e:

*.Issue a writ of preliminary inFunction against respondents to prevent

them from enforcing the 2emorandum dated ?uly +*, @/*@ issued "yEon. 'esar urisima and the 7etter of Instruction, dated !ugust +,

@/*@, issued "y Eon. 2ar 6o#as, as well as any documents, directives

or guidelines issued in pursuance thereto.

@.Ceclare unconstitutional and illegal the 2emorandum and 74I as

well as any documents, directives or guidelines issued in pursuance

thereto.

+.Cirect payment of services and overtime pay duly rendered "y

etitioners, including meal and transportation allowances.

In 4ur Reso%ution, dated ovem"er @G, @/*@, e reAuired the

6espondents to file their 'omments on the etition, as well as on the

prayer for the issuance of inFunctive relief.9! Eearing on the prayer

for inFunctive relief was likewise set on Cecem"er */, @/*@.10

!fter the hearing on etitionersH prayer for inFunctive relief, e

referred the case for mediation "ut to no avail.11Eence, e reAuired

the parties to su"mit their respective memoranda.12

etitioners argue that the su"Fect issuances are unconstitutional

"ecause they are contrary to %ection *, !rticle 9I13 of the *-G&

hilippine 'onstitution. $hey claim that the power to e#empt an

agency from an o"ligation mandated "y law is a matter within the

legislatives discretion, and that the u"lic 6espondents, in removing

Ferdinand endeni--a re*resents t(e #mmigration O//i'ers Asso'iation o/ t(e 0(i-i**ines, #n'.

#OA02; Marivi' arao /or t(e u-od ng mga 6a7ani ng #) 6"O)2; Ma. #rene Arsenia e--o

/or #nte--igen'e )ivision o/ NA#A *ersonne-; o--o, **. 33%3&.8 o--o, *. 3.

9 o--o, **. 9!%95.

10 #bid.

11 o--o, *. &85.

12 o--o, **. 1&9%11.

13 e'tion 1. (e -egis-ative *o7er s(a-- be vested in t(e ongress o/ t(e 0(i-i**ines 7(i'( s(a--

'onsist o/ a enate and a :ouse o/ e*resentatives, e'e*t to t(e etent reserved to t(e *eo*-e by

t(e *rovision on initiative and re/erendum


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CA-G.R. SP No. 126920 - 7 -

DECISION

the o"ligation imposed upon private airline companies and

transferring it to the government, repealed %ec. &! of the hilippine

Immigration !ct. 'iting the case of Carboni%%a &s' (oard of #ir%ine

Representati&es )*'R' +o' -./01, !eptember 0, /23, etitioners argue

that it is 'ongress who can determine who will shoulder payment of

overtime compensation for services rendered "y customs and

immigration employees.

2eanwhile, u"lic and rivate 6espondents raise procedural

and su"stantive arguments against the etition. 5irst, they Auestion

the propriety of a etition for 'ertiorari andor rohi"ition to

Auestion the su"Fect issuances, which were issued in the e#ercise of

u"lic 6espondents Auasi


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CA-G.R. SP No. 126920 - 8 -

DECISION

Constitutionality of tatutes

$he %upreme 'ourt in the case of *a%icto &s' (enigno !imeon

#8uino III,14citing the case of Liga ng mga (arangay +ationa% &s' City

Mayor of Mani%a,15 e#pounded on the reason why a petition for

certiorari is not a proper remedy in assailing the constitutionality of

an e#ecutive order, thus:

Under the 6ules of 'ourt, petitions for 'ertiorari and

rohi"ition are availed of to Auestion Fudicial, Auasi


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CA-G.R. SP No. 126920 - 9 -

DECISION

6.!. & and %ec. /@ (e) of the $ariff and 'ustoms 'ode, hence, its

enforcement should "e enFoined and petitioner prohi"ited from

implementing the same.

Pe$$&ns '&r "er$&rar and #r&!$&n are a##rra$e

re(edes $& rase "&ns$$u$&na7 ssues and $& reve; and@&r

#r&!$ &r nu77'%, ;!en #rer, a"$s &' 7e/s7a$ve and ee"u$ve

&''"a7s. $hus, even if the petition was denominated as one for

prohi"ition, pu"lic respondent did not err in treating it also as one

for certiorari and taking cognizance of the controversy.

'learly, the Eonora"le %upreme 'ourt recognizes petitions for

certiorari and prohi"ition as appropriate remedies to contest the

constitutionality of the su"Fect e#ecutive issuances. $here is no

indication that the 1alicto case has e#pressly repealed or overruled

the 3rmita case.

The !ase is an e"!eption to theRule on #"haustion of

Administrati$e Remedies

$he doctrine of e#haustion of administrative remedies

mandates that whenever there is an availa"le administrative remedy

provided "y law, no Fudicial recourse can "e made until all such

remedies have "een availed of and e#hausted. $his rule is "ased on

the practical principle that the administrative agency should "e given

a chance to correct its error, and that relief first sought from a

superior administrative agency could render court action

unnecessary.17

It has "een held, however, that the doctrine of e#haustion of

administrative remedies and the doctrine of primary Furisdiction are

not ironclad rules. In the case of Repub%ic of the Phi%ippines &' Lacap,18

the %upreme 'ourt enumerated the e#ceptions to these rules, namely:

(a) where there is estoppel on the part of the party invoking the

doctrineJ (b) where the challenged administrative act is patently

illegal, amounting to lack of FurisdictionJ (c3 where there is

17 O*orto vs. Members o/ t(e oard o/ #n=uiry and )is'i*-ine o/ t(e Nationa- 0o7er or*oration,


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CA-G.R. SP No. 126920 - 10 -

DECISION

unreasona"le delay or official inaction that will irretrieva"ly

preFudice the complainantJ (d) where the amount involved is

relatively so small as to make the rule impractical and oppressiveJ (e)

;!ere $!e >ues$&n nv&7ved s #ure7% 7e/a7 and ;77 u7$(a$e7%

!ave $& e de"ded % $!e "&ur$s &' us$"eJ (f) where Fudicial

intervention is urgentJ (g) where the application of the doctrine may

cause great and irrepara"le damageJ (h) where the controverted acts

violate due processJ (i) where the issue of non


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CA-G.R. SP No. 126920 - 11 -

DECISION

for lack of due processJ (h) where the proceedings were e# parte, or in

which the petitioner had no opportunity to o"FectJ and (i) ;!ere $!e

ssue rased s &ne #ure7% &' 7a; &r ;!ere #u7" n$eres$ s nv&7ved.20

(emphasis supplied)

hat is "eing assailed in this case is the constitutionality of the

su"Fect 2emorandum and 7etter issued "y %ecretaries urisima and

6o#as. Under the cited e#ception (i), the filing of a motion for

reconsideration may "e dispensed with and the petition is notdismissi"le for "eing premature.

The Petition satisfies the re(uirements

of 'udi!ial re$ie)

Justi!iability

%ection *, !rticle 9III, of the *-G& 'onstitution e#pands the

concept of Fudicial review "y providing that:

%3'. *. $he Fudicial power shall "e vested in one%upreme 'ourt and in such lower courts as may "e esta"lished "y

law.

?udicial power includes the duty of the courts of Fustice to

settle actual controversies involving rights which are legallydemanda"le and enforcea"le, and $& de$er(ne ;!e$!er &r n&$

$!ere !as een /rave ause &' ds"re$&n a(&un$n/ $& 7a"< &r

e"ess &' ursd"$&n &n $!e #ar$ &' an% ran"! &r ns$ru(en$a7$%

&' $!e G&vern(en$.

$he powers of government are generally divided into three

"ranches: the 7egislative, the 3#ecutive and the ?udiciary. 3ach

"ranch is supreme within its own sphere "eing independent from one

another and it is this supremacy which ena"les the courts todetermine whether a law is constitutional or unconstitutional. $he

?udiciary is the final ar"iter on the Auestion of whether or not a

"ranch of government or any of its officials has acted without

Furisdiction or in e#cess of Furisdiction or so capriciously as to

!+ :on. >rmita vs. :on. A-de'oa%)e-orino, et.a-.,


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CA-G.R. SP No. 126920 - 12 -

DECISION

constitute an a"use of discretion amounting to e#cess of Furisdiction.

$his is not only a Fudicial power "ut a duty to pass Fudgment on

matters of this nature.21

7ike almost all powers conferred "y the 'onstitution, the power

of Fudicial review is su"Fect to limitations, to wit: (*) there must "e an

actual case or controversy calling for the e#ercise of Fudicial powerJ

(@) the person challenging the act must have the standing to Auestion

the validity of the su"Fect act or issuanceJ otherwise stated, he must

have a personal and su"stantial interest in the case such that he has

sustained, or will sustain, direct inFury as a result of its enforcementJ

(+) the Auestion of constitutionality must "e raised at the earliest

opportunityJ and () the issue of constitutionality must "e the very lis

mota of the case.22

u"lic 6espondents suggest that the etition dwells on the

soundness or wisdom of paying overtime services rendered "y the

Bureaus employees. ut differently, they are arguing that the issues

raised in this etition are political Auestions and are thus "eyond the

am"it of Fudicial review.

$e beg to disagree'

olitical Auestions are Kthose Auestions which, under the

'onstitution, are to "e decided "y the people in their sovereigncapacity, or in regard to which full discretionary authority has "een

delegated to the 7egislature or e#ecutive "ranch of the 1overnment.K

It is concerned with issues dependent upon the wisdom, not legality,

of a particular measure. Its "asis "eing the principle of separation of

powers, courts are "ound to e#ercise with caution its power of

review when political Auestions are alleged to "e involved.

Eence, courts must determine in every case, whether it involvesa pure Auestion of policy "eyond its power to review. In


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CA-G.R. SP No. 126920 - 13 -

DECISION

9ouse of Representati&es23, the %upreme 'ourt e#plained that the

determination of a truly political Auestion from a Fusticia"le political

Auestion lies in the answer to the Auestion of whether there are

"&ns$$u$&na77% (#&sed 7($s &n #&;ers &r 'un"$&ns "&n'erred

u#&n #&7$"a7 &des.If there are, then our courts are duty


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CA-G.R. SP No. 126920 - 14 -

DECISION

intervention. In our Furisdiction, the issue of ripeness is generally

treated in terms of actual inFury to the plaintiff. Eence, a Auestion is

ripe for adFudication when the act "eing challenged has had a direct

adverse effect on the individual challenging it.25rivate 6espondent

B!6, in their letter dated ovem"er *>, @/*@26, effectively refused

payment of the "illing statements27sent "y etitioners for the months

of !ugust and %eptem"er @/*@. rivate 6espondent referred to the

7etter issued to them "y %ec. 6o#as as "asis for their denial of the

claim of the BI employees. %ince the BI employees were put in lim"o

as to whether they can still collect payment for overtime work after

the effectivity of the su"Fect issuances, e deem the issues raised in

this etition ripe for Fudicial determination.

$e now confront the paramount issue=;id the 56ecuti&e

;epartment, in ma4ing the issuances, encroach on the %aw ma4ing powers

of the Legis%ati&e ;epartment7

$he "oundary "etween the duties of "oth legislative and

e#ecutive "ranches of the government is not difficult to comprehend.

Le/s7a$ve #&;er is Kthe authority, under the 'onstitution, to make

laws, and to alter and repeal them.28 It em"races all su"Fects and

e#tends to matters of general concern or common interest.

4n the other hand, 3#ecutive power Kis generally defined as

the power to enforce and administer the laws. $he e#ecutive

function, therefore, concerns the implementation of the policies as set

forth "y law.29$he e#ecutive power is vested in the resident. 30It is

the power of carrying the laws into practical operation and enforcing

their due o"servance.31 !s chief e#ecutive, the resident also

e#ercises a power of control and supervision over all agencies in the

e#ecutive department. $his means that he has the authority to

assume directly the functions of the e#ecutive department, "ureau

25 "a7yers Against Mono*o-y and 0overty vs. e'retary o/ udget and Management,


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CA-G.R. SP No. 126920 - 15 -

DECISION

and office, or interfere with the discretion of its officials.32'orollary

to the power of control, the resident also has the duty of

supervising the enforcement of laws for the maintenance of general

peace and pu"lic order.33

In this case, etitioners vehemently o"Fect to the

implementation of the su"Fect issuances claiming that they amount to

a repeal of %ec. &! of the hilippine Immigration !ct. 6espondents,

on the other hand, highlights the residential power of control over

the agencies in the e#ecutive department as "asis for the su"Fect

issuances.

1iven the two contrasting arguments, it is necessary therefore

to analyze %ec. &! of the hilippine Immigration !ct and determine

whether it was intended as a limit to the 'hief 3#ecutives power of

control. %tated differently, e must make an e#amination on

whether the su"Fect issuances effectively repealed %ec. &! of the said

law.

e!. *A of the Philippine Immi&ration

A!t is !lear that the liability of airline

!ompanies depends on the renderin& of

o$ertime )or+

'ommonwealth !ct o. *+ or the hilippine Immigration !ct

of *-/, as amended "y 6epu"lic !ct o. >/+34, states that:

%ec. &

'ommissioner of Immigration to do overtime work at rates fi#ed

"y him ;!en $!e serv"e rendered s $& e #ad '&r % s!##n/

"&(#anes and ar7nes or other persons served. (3mphasis

supplied)

etitioners argue that 0their right to collect their overtime pay,

including transportation and meal allowances, from airlines

3! Ana Mindanao 0arty%"ist rmita,


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CA-G.R. SP No. 126920 - 16 -

DECISION

operating within the hilippines, has the imprimatur of 'ongress

and such right cannot "e taken away "y a mere memorandum andor

a letter of instruction=.35 In other words, etitioners argue that under

%ec. &! of the hilippine Immigration !ct, payment "y airline

companies of their overtime pay is mandatory. $hey likewise

implicitly suggest that they have an inaliena"le right to overtime

work and an inherent entitlement to overtime pay demanda"le solely

from the airline companies.

4n the other hand, "oth u"lic and rivate 6espondents

interpret %ec. &! of the hilippine Immigration !ct to mean that the

'ommissioner of Immigration has the discretion, "oth in assigning

immigration employees to perform overtime work and in

determining whether shipping or airline companies should pay

overtime compensation.36

u"lic 6espondents further argue that %ec. &!of the hilippine

Immigration !ct, must "e interpreted together with a similar law

relating to payment of overtime compensation to officials and

employees of the ational 1overnment, %ec. +, 'hapter &, Book 9I

of the !dministrative 'ode, which states that:

Se"$&n 38.#dditiona% Compensation for O&ertime !er&ice' < O''"a7s

and e(#7&%ees &' $!e Na$&na7 G&vern(en$, ;!en re>ured $&

;&r< &ver$(e after regular working hours during ordinary days,during half


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CA-G.R. SP No. 126920 - 17 -

DECISION

une#pended "alance in appropriations for salaries and wages in the

1eneral !ppropriations !ct.37

$hey further argue that the term 0other persons served= in %ec.

&! of the hilippine Immigration !ct is "road enough to cover even

the 1overnment or any of its agencies.38

n this note, We (ualifiedly a&ree )ith Petitioners that )hen

assi&ned to render o$ertime )or+ in areas )here airline !ompanies

operate, -I employees must be paid by airline !ompanies. This is

!onsistent )ith the pra!ti!e obser$ed by the National Go$ernment,

the -I, the Petitioners and the -AR under the Philippine

Immi&ration A!t.

5irst, the provisions are clear. If the 'ommissioner assigns BI

employees to work, he must fi# the rates for overtime pay which will

"e paid "y airline companies, shipping companies and other persons

served.

%econd, an e#amination of prevailing laws reveal that 'ongress

intended that only a certain class or group of persons "e lia"le for

payment of overtime compensation to employees of the government

rendering overtime work. $he provisions of the $'' and the

!dministrative 'ode of *-G&, respectively state that:

%3'. +>/.#ssignment of Customs 5mp%oyees to O&ertime $or4'

< 'ustoms employees may "e assigned "y a 'ollector to do

overtime work at rates fi#ed "y the 'ommissioner of 'ustoms when

the service rendered s $& e #ad '&r % (#&r$ers, s!##ers &r

&$!er #ers&ns served. $he rates to "e fi#ed shall not "e less than

that prescri"ed "y law to "e paid to employees of private enterprise.

%ection +-. O&ertime !er&ices' < $he services of lant uarantine

4fficers, fumigators and helpers performed outside office hoursand reim"ursement of meal, transportation, lodging and other

incidental e#penses s!a77 e "!ar/ea7e $& $!e #ar$% &r #ar$es

served at the rates to "e prescri"ed "y the %ecretary of !griculture

37 o--o, *. 914.

38 #bid.


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CA-G.R. SP No. 126920 - 18 -

DECISION

upon recommendation of the 6egional Cirector concerned.

otwithstanding such provisions, e find that the resident,

through his ca"inet, dd n&$ en"r&a"! u#&n $!e #&;ers

"&ns$$u$&na77% ves$ed $& $!e Le/s7a$ure when it rendered the

su"Fect e#ecutive issuances.$his is "ecause %ec. &! of the hilippine

Immigration !ct was not transgressed when the e#ecutive eliminated

the system of rendering overtime work, a power which the resident

can validly e#ercise. $he resident did not take away the lia"ility ofairline companies to pay overtime compensation "ut merely decided

to implement a no overtime policy. !fter all, the 3#ecutive still has

this residual power to decide whether overtime work ought to "e

rendered or not. $he 3#ecutive retains the power of control and

supervision over etitioners, who are its employees.

e!tion *A of the Philippine

Immi&ration A!t does not deny the#"e!uti$e department the po)er to fi"

or ad'ust the )or+in& hours of the

bureaus employees

$he clear wordings of %ec. &! do not vest upon etitioners an

inaliena"le su"stantive right to demand overtime work. Indeed, the

law provides that immigration employees 0may= only "e assigned "y

the 'ommissioner of Immigration to do overtime work. It is a settled

doctrine in statutory construction that the word KmayK denotes

discretion, and cannot "e construed as having a mandatory effect.39In

other words, the BI 'ommissioner is not o"ligated to assign or

reAuire the employees of the "ureau to render overtime work.

Interestingly, etitioners, during the hearing on Cecem"er */, @/*@,

admitted that the rendering of overtime work depends on the

'ommissionerHs discretion.40

roceeding from the discretion granted to the 'ommissioner ofImmigration, it "ecomes indisputa"le that $!e #a%(en$ &' &ver$(e

serv"es de#ends &n $!e eer"se &' $!e C&((ss&ner, &' !s

ds"re$&n $& re>ure? &r ass/n? ((/ra$&n e(#7&%ees $&

39 o-entino vs. ourt o/ A**ea-s,


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CA-G.R. SP No. 126920 - 19 -

DECISION

render &ver$(e ;&r term of office> compensation'< $he 'ommissioner

of Immigration shall "e appointed "y the resident, with the

consent of the 'ommission on !ppointments of the ational

!ssem"ly, and shall hold office at the pleasure of the resident. Eeshall receive compensation at the rate of ten thousand pesos per

annum.

#dministrati&e head powers as such' < Ee shall "e the

administrative head of the Bureau of Immigration and s!a77


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CA-G.R. SP No. 126920 - 20 -

DECISION

#&ssess $!e #&;ers /enera77% "&n'erred u#&n ureau "!e's. Ee

shall have charge of the administration of all laws relating to the

immigration of aliens into the hilippines and s!a77 !ave $!e

((eda$e "&n$r&7, dre"$&n and su#ervs&n &' a77 &''"ers,

"7er


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CA-G.R. SP No. 126920 - 21 -

DECISION

6U73 L9II

1overnment 4ffice Eours

%3'$I4 *. I$ s!a77 e $!e du$% &' ea"! !ead &' $!e de#ar$(en$

&r a/en"% $& re>ure a77 &''"ers and e(#7&%ees under !( $&

s$r"$7% &serve $!e #res"red &''"e !&urs.

%3'$I4 @. 3ach head of department or agency shall reAuire a

daily record of attendance of all the officers and employees under

him including those serving in the field or on the water, to "e kepton the proper form and, whenever possi"le, registered on the

"undy clock.

%ervice Kin the fieldK shall refer to service rendered outside the

office proper and service Kon the waterK shall refer to service

rendered on "oard a vessel which is the usual place of work.

%3'$I4 +. 'hiefs and !ssistant 'hiefs of agencies who are

appointed "y the resident, officers who rank higher than these

chiefs and assistant chiefs in the three "ranches of the government,

and other presidential appointees need not punch in the "undy

clock, "ut attendance and all a"sences of such officers must "e

recorded.

%3'$I4 . 5alsification or irregularities in the keeping of time

records will render the guilty officer or employee administratively

lia"le without preFudice to criminal prosecution as the

circumstances warrant.

%3'$I4 >. 4fficers and employees of all departments andagencies e#cept those covered "y special laws shall render not less

than eight (G) hours of work a day for five (>) days a week or a total

of forty (/) hours a week, e#clusive of time for lunch. !s a general

rule, such hours shall "e from eight oclock in the morning to twelve

oclock noon and from one oclock to five oclock in the afternoon on

all days e#cept %aturdays, %undays and Eolidays.

%3'$I4 . F7e7e ;&r


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CA-G.R. SP No. 126920 - 22 -

DECISION

concerned, reAuests for the rescheduling or shifting of work

schedule of particular agency for a num"er of working days less

than the reAuired five (>) days may "e allowed provided that

government officials and employees render a total of forty (/)

hours a week and provided further that the pu"lic is assured of

core working hours of eight in the morning to five in the afternoon

continuously for the duration of the entire work week.

%3'$I4 G. 4fficers and employees who have incurred tardiness

and undertime regardless of minutes per day e#ceeding ten (*/)times a month for two (@) consecutive months or for two (@) months

in a semester shall "e su"Fect to disciplinary action.

%3'$I4 -. 4ffures, $!e da7% !&urs &' ;&r< '&r &''"ers and e(#7&%ees (a%

e e$ended % $!e !ead &' $!e a/en"% "&n"erned,which e#tension

shall "e fi#ed in accordance with the nature of the work: rovided,

$hat work in 3#cess of eight (G) hours must "e properly

compensated. (3mphasis supplied)

In the case of ;epartment of Pub%ic !er&ices Labor Union &s' Court

of Industria% Re%ations41, the %upreme 'ourt had the opportunity to

interpret a similar law, 6! *GG/42

(6e legal hours of la"or minimum41


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CA-G.R. SP No. 126920 - 23 -

DECISION

reAuirement) then in effect, as follows:

0%aid section >@ of the 6evised !dministrative 'ode, as amended,

provides that the legal num"er of hours in every "ranch of the

1overnment service as well as in government


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CA-G.R. SP No. 126920 - 24 -

DECISION

operations of all the agencies under him. In Op%e &s' Torres43, the

%upreme 'ourt e#plained the e#tent of the residential power of

control, as follows:

As head of the Executive Dea!t"e#t$ the %!eside#t is the &hief

Executive. 'e !e!ese#ts the (ove!#"e#t as a )ho*e a#d sees to it that a**

*a)s a!e e#fo!ced +, the officia*s a#d e"*o,ees of his dea!t"e#t. He

!as "&n$r&7 &ver $!e ee"u$ve de#ar$(en$, ureaus and &''"es.

T!s (eans $!a$ !e !as $!e au$!&r$% $& assu(e dre"$7% $!e

'un"$&ns &' $!e ee"u$ve de#ar$(en$, ureau and &''"e, &rn$er'ere ;$! $!e ds"re$&n &' $s &''"a7s. C&r&77ar% $& $!e

#&;er &' "&n$r&7, $!e Presden$ a7s& !as $!e du$% &' su#ervsn/

$!e en'&r"e(en$ &'laws for the maintenance of general peace and

pu"lic order. $hus, he is granted administrative power over "ureaus

and offices under his control to ena"le him to discharge his duties

effectively.

!dministrative power is concerned with the work of

applying policies and enforcing orders as determined "y propergovernmental organs. I$ ena7es $!e Presden$ $& ' a un'&r(

s$andard &' ad(ns$ra$ve e''"en"% and "!e"< $!e &''"a7

"&ndu"$ &' !s a/en$s.0 (3mphasis supplied)

9erily, the resident, as head of the e#ecutive department is

o"liged to see that every government office is managed and

maintained properly "y the persons in charge of it in accordance with

pertinent laws and regulations, and empowered to promulgate rules

and issuances that would ensure a more efficient management of thee#ecutive "ranch, for so long as such issuances are not contrary to

law.44eedless to state, the %ecretaries of the Cepartment can also

undertake management decisions with respect to offices in the

3#ecutive "ranch of the government, "eing the residentHs alter/ of the $ariff

and 'ustoms 'ode of the hilippines ($''), which provides that:

%ection +>/. #ssignment of Customs 5mp%oyees to

O&ertime $or4'< 'ustoms employees may "e assigned "y

a 'ollector to do overtime work at rates fi#ed "y the

'ommissioner of 'ustoms when the service rendered is

to "e paid "y the importers, shippers or &$!er #ers&nsserved. $he rates to "e fi#ed shall not "e less than that

prescri"ed "y law to "e paid to employees of private

enterprise.

In the Carboni%%acase, the 'ourt of !ppeals ruled that airline

companies do not fall within the term 0other persons served=, as to

render them lia"le for payment of overtime compensation, in the

same manner as importers and shippers.

4n appeal to the Eonora"le %upreme 'ourt, the Eigh 'ourt

ruled in the Carboni%%acase that it is within the discretion of 'ongress

to fi# the parties lia"le for overtime pay. $his is "ased on the 'ourtHs

interpretation that airline companies are no different from importers


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CA-G.R. SP No. 126920 - 27 -

DECISION

and shippers. In other words, the %upreme 'ourt stated that 0it is

within the 'ongress discretion who shall "e lia"le for the payment of

overtime pay= n $!e "&n$e$ &' de$er(nn/ ;!e$!er ar7ne

"&(#anes? are n"7uded n $!e $er( &$!er #ers&ns served? n $!e

TCCP.

In this case, the applica"le provision of the hilippine

Immigration !ct specifically includes airline companies as one of the

parties lia"le for overtime compensation. Eowever, as discusseda"ove, %ec. &! of the hilippine Immigration !ct intended that airline

companies are lia"le for overtime pay &n7% ;!en $!e C&((ss&ner

(#7e(en$s a s%s$e( &' &ver$(e ;&r


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CA-G.R. SP No. 126920 - 28 -

DECISION

$he fourth reAuisite is lacking. $here is no identity of parties,

su"Fect matter and causes of action "etween the Carboni%%acase and

the instant case. 5or one, the parties in the Carboni%%a case were

Bureau of 'ustoms employees, while the instant case involves Bureau

of Immigration employees.

$here is also no identity of su"Fect matter.$he su"Fect matter of

an action is Kthe matter or thing with respect to which the controversy

has arisen, concerning which the wrong has "een done, and this

ordinarily is the property, or the contract and its su"Fect matter, or the

thing in dispute.K47 $he Carboni%%acase arose "ecause of '!4 *

which increased the rates for overtime pay and %ec. @>/ of the $''

which was the statutory "asis of the government in increasing the

rates of overtime pay. 2eanwhile, the su"Fect issuances in this case

relates to the a"olition of the system of rendering overtime work.

$here is likewise no identity of causes of action "etween the

Carboni%%a case and the instant case. In Carboni%%a, the 4ffice of the

resident filed the etition for 6eview "efore the %upreme 'ourt

"ecause of the ruling of the 'ourt of !ppeals e#cluding 0airline

companies= from the implementation of '!4 *. $his was "ased

on the appellate courtHs finding that airline companies are not in the

same category or group as importers and shippers, pursuant to %ec.

+>/ of the $''.

In this case, etitioners filed their complaint "ecause of the

a"olition "y the ational 1overnment of the system of collection of

overtime pay and the conseAuent refusal of rivate 6espondent B!6

to pay for the overtime work rendered "y etitioners after the

effectivity of the su"Fect issuances.

The obli&ation to pay for the ser$i!es of

the -I employees pro!eeds from the fa!t

of their employment in the Go$ernment

47 Agustin vs. *s. )e -os antos,


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CA-G.R. SP No. 126920 - 29 -

DECISION

In the same vein, e do not find any usurpation of legislative

prerogative "y the assumption "y the ational 1overnment of the

o"ligation to pay overtime compensation to the BI employees. $he

government only undertook to pay for overtime work if incidentally,

overtime work may still "e reAuired in the initial stage of

implementation of the @& working schedule.

It must "e "orne in mind that the end goal of the @& working

schedule is to minimize, if not eliminate overtime work in the Bureau

of Immigration. Eowever, a perusal of theMemorandum would reveal

that there are concerns on the availa"ility or sufficiency of employees

necessary for the continuous operations of the "ureau. $he pertinent

part of theMemostates:

0$he following actions points are esta"lished:

###4.$he relevant agencies shall reAuest from the CB2

the creation of additional plantilla positions to

address an% s!&r$a/e n an% (an#&;er resu7$n/

'r&( $!e (#7e(en$a$&n &' $!e s!'$n/ s"!edu7e,

with the main international airports as the priority

areas for the implementation of shifting schedule.

###

Du!i#( the 31 /u*, 2012 "eeti#($ su((estio#s )e!e "ade o# the (eans$& address (an#&;er and >uen/ #r&7e(s. T!ese n"7ude

&u$s&ur"n/ $!e serv"es #er'&r(ed n $!e ar#&r$s to ensure

efficiency and Auality of services= (3mphasis supplied)

1iven such shortage in manpower, it is not impro"a"le that

some of the employees may still "e reAuired to work "eyond the G

court of appeals decision on 247

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