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Ruga V. NLRC

G.R. Nos. 7265461. January 22, 1990

 The petitioners were the fshermen crew members o 7/B Sandyman II, one o 

several fshing vessels owned and operated by private respondent De G!man

"ishing #nterprises which is primarily engaged in the fshing bsiness with port and

o$ce at %amaligan, %amarines Sr& 'etitioners rendered service aboard said fshing

vessel in varios capacities, as ollows(

 )lipio *ga and +ose 'arma, patron/pilot #ladio %alderon, chie engineer -arente

Bat, second engineer +aime Barbin, master fsherman pond fsherman 'hilip

%ervantes and #leterio Barbin, fshermen&

"or services rendered in the condct o private respondent.s reglar bsiness o 

trawl0 fshing, petitioners were paid on percentage commission basis in cash by

one 1rs& 'ilar de G!man, cashier o private respondent& )s agreed pon, they

received thirteen percent 23456 o the proceeds o the sale o the fsh catch i the

total proceeds eceeded the cost o crde oil consmed dring the fshing trip,

otherwise, they received ten percent 23856 o the total proceeds o the sale& The

patron/pilot, chie engineer and master fsherman received a minimm income o 

'498&88 per wee: while the assistant engineer, second fsherman, and fsherman

winchman received a minimm income o ';<8&88 per wee:&

 =n September 33, 3>?4 pon arrival at the fshing port, petitioners were told by

 +orge de G!man, president o private respondent, to proceed to the police station

at %amaligan, %amarines Sr, or investigation on the report that they sold some o 

their fsh catch at mid sea to the pre@dice o private respondent& 'etitioners denied

the charge claiming that the same was a contermove to their having ormed a

labor nion and becoming members o Deender o Indstrial )gricltral -abor

=rgani!ations and General Aor:ers nion 2DI)-=GA6 on September 4, 3>?4& =n

September ;;, 3>?4, petitioners individally fled their complaints or illegal

dismissal and nonpayment o 34th month pay, emergency cost o living allowance

and service incentive pay, with the then 1inistry 2now Department6 o -abor and

#mployment, *egional )rbitration Branch Co& , -egaspi %ity, )lbay& =n =ctober ;E,

3>?4, private respondent, thr its operations manager, %onrado S& de G!man,

sbmitted its position paper denying the employeremployee relationship between

private respondent and petitioners on the theory that private respondent and

petitioners were engaged in a @oint ventre&

Isse( A=C there eists employerFemployee relationship

eld( H#S

In determining the eistence o an employer employee relationship, the elements

that are generally considered are the ollowing 2a6 the selection and engagement o 

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the employee 2b6 The payment o wages 2c6 The power o dismissal )nd 2d6 the

employer.s power to control the employee with respect to the means and methods

by which the wor: is to be accomplished& The employment relation arises rom

contract o hire, epress or implied& In the absence o hiring, no actal employer

employee relation cold eist&

'etitioner )lipio *ga was hired on September ;>, 3>7E as patron/captain o the

fshing vessel #ladio %alderon started as a mechanic on )pril 3<, 3><? ntil he was

promoted as chie engineer o the fshing vessel +ose 'arma was employed on

September ;>, 3>7E as assistant engineer +aime Barbin started as a pilot o the

motor boat ntil he was transerred as a master fsherman to the fshing vessel 7/B

Sandyman II 'hilip %ervantes was hired as winchman on )gst 3, 3>7; while

#leterio Barbin was hired as winchman on )pril 39, 3>7<&

)side rom perorming activities sally necessary and desirable in the bsiness o 

private respondent, it mst be noted that petitioners received compensation on a

percentage commission based on the gross sale o the fshcatch, i&e& 345 o theproceeds o the sale i the total proceeds eceeded the cost o the crde oil

consmed dring the fshing trip, otherwise only 385 o the proceeds o the sale&

Sch compensation alls within the scope and meaning o the term wage0 as

defned nder )rticle >726 o the -abor %ode&

"rthermore, the act that on mere sspicion based on the reports that petitioners

allegedly sold their fshcatch at midsea withot the :nowledge and consent o 

private respondent, petitioners were n@stifably not allowed to board the fshing

vessel on September 33, 3>?4 to resme their activities withot giving them the

opportnity to air their side on the accsation against them nmista:ably reveals

the disciplinary power eercised by private respondent over them and thecorresponding sanction imposed in case o violation o any o its rles and

reglations&

 The condct o the fshing operations was ndisptably shown by the testimony o 

)lipio *ga, the patron/pilot o 7/B Sandyman II, to be nder the control and

spervision o private respondent.s operations manager& 1atters dealing on the

fing o the schedle o the fshing trip and the time to retrn to the fshing port

were shown to be the prerogative o private respondent& Ahile perorming the

fshing operations, petitioners received instrctions via a single side band radio rom

private respondent.s operations manager who called the patron/pilot in the

morning& They are told to report their activities, their position, and the nmber o 

tbes o fsh catch in one day& %learly ths, the condct o the fshing operations

was monitored by private respondent thr the patron/pilot o 7/B Sandyman II who

is responsible or disseminating the instrctions to the crew members&