fo REPUBLIC OF THE PHILIPPINES 7 SUPREME COURT [ MANILA — Division GMA NETWORK, INC. and/ a . for ATTY. FELIPE L. GOZON, Petitioners, G.R. No. 250673 - Versus - (CA G.R. SP No, 144572) CHRISTIAN BOCHEE CABALUNA ET AL, Respondents. Xe PETITION FOR REVIEW ON CERTIORARI Petitioners, GMA NETWORK, INC. and/or ATTY. FELIPE L. GOZON, by the undersigned counsel, respectfully state: PREFATORY STATEMENT THIS IS A CLASSIC CASE OF A PERSON WHO WANTS TO HAVE HIS CAKE AND EAT IT TOO. Since its inception, the Broadcast Industry, subject only to the franchise granted by Congress, was self- regulating. To a certain extent, it is not governed by the basic precepts of labor and employment. Owing to the peculiarity of the business of the broadcast industry, it has been the industry practice of Petitioner GMA and other broadcast stations to engage talents suitable to the shows and to develop the desired shows that would show case the unique and special skills of the talents in this industry. It is_an industry highly dependent on talent, skill, expertise, innovation, and ' constant change for its continued existence. These talent agreements cover specific projects and/or programs in which such talents were deployed. The gist of the wisdom in resorting to this practice isOperational exigency and practicality. The i ice of t A fact that ie fat this practice of Temains up to this day underscores the indispensability and continuing relevanc ti 1 e levan ts in ti iS e of talent contracts in th Individuals with Special skills, experti: joy v ertise or talent enjo: should enjoy the freedom to offer th spendon eir services as inde, endent contractors. The right to life and liveli sh n - An individual like an artist or talent has a right to render his services without any One controlling the means and methods by which he performs his art or craft. The Supreme Court will not interpret the right of labor to security of tenure ts compel artists and talents to pel_art render their services only _as employees.’ FOR A NUMBER OF YEARS, Respondents have enjoyed the benefits of a talent, such as, (a) the high talent fees; (b) multiple contracts at a given time for different shows, allowing them to receive talent fees per talent agreement which results in a very high compensation (some of whom already equal or are close to what the vice president positions of Petitioner GMA receives); (c) lower rates of withholding taxes for self-employed professionals /independent contractors; (d) performance of service in lesser number of hours; (e) bargaining power as to the rate of the talent fees during expiration of the talent agreements; and (f) freedom to entertain and perform other engagements outside Petitioner GMA, during the existence or period of the talent agreements. It was only when Respondents were required to register with the BIR and issue invoices by Petitioner GMA pursuant to Revenue Regulation 4-2014 of the BIR that Respondents sought to be declared as regular employees of Petitioner GMA and likewise be entitled to all the benefits of regular employment while also_enjoyin; current benefits they receive as talents. To consider Respondents as regular employees would render both Respondents and Petitioner GMA at a mutual disadvantage in Soma 10, 2004) “CBN Broadcasting Corporation (G.R. No. 138051, June 10, wo" of Annex “C (Petition for Certioar dated March 11,2016 hereinthe long run. The regularization of talents will also greatly affect/impact the stability of the broadcast industry as a whole. We beg the indulgence of this Honorable Court to not simply apply precedents which ruled that talents are regular employees. We also demand that precedents should at be clarified if not changed. We ask that the specific facts attendant to this case, which likewise find support in Philippine Jurisprudence, should adequately justify and warrant the classification of herein respondents as independent contractors. We are asking this Honorable Court to protect the rights of the Broadcast Industry as well. This Honorable Court has the power to review, clarify and set a new ruling based on the specific facts attendant to this case on talents and rectify this wrong sought by Respondents. I. NATURE OF THE PETITION 1.1 _ This is a Petition for Review on Certiorari filed pursuant to Rule 45 of the Rules of Court seeking to annul and reverse the following: a. Decision promulgated on February 20, 20193 (the “Assailed Decision”) which dismissed Petitioners’ Petition for Certiorari dated March 11, 2016; and b. Resolution promulgated on November 25, 2019 (the “Assailed Resolution”) which denied Petitioners’ Motion for Reconsideration dated March 15, 2019. both rendered by the Former Special Fourteenth Division of the Honorable Court of Appeals in the case entitled GMA NETWORK, INC. and/or ATTY. FELPE L. GOZON vs. CHRISTIAN BOCHEE CABALUNA, ET AL., NATIONAL LABOR RELATIONS COMMISSION ~ SPECIAL FOURTH DIVISION AND LABOR ARBITER GAYAMAN (CA-GR. SP No, 144572). 1.2 Petitioners submit that the Assailed Resolution and Decision of the Honorable Court of Appeals are both in contravention of law and jurisprudence. * A certified true copy of the Decision promulgated on February 20, 2019 by the Special Fourteenth Division of the q ‘Court of Appeals is attached Nereto and made an integral part of the frst original copy of this Petition as "AN, ial Fourteenth Division of the copy of this Petition as Annex 1e copy of the Resolution promulgated on November 25, 2019 by the Sj is attached to-and made an integral part ofthe first oriIl. THE PARTIES “ip. ,2:1_ Petitioner GMA Network Inc. (hereinafter referred to as Petitioner GMA”) is a domestic corporation duly organized and existing under the laws of the Philippines, with principal office address at EDSA cor Timog Ave,, Quezon City. Petitioner Atty Felipe L. Gozon is the Chairman ‘and Chief Executive Dificer of Petitioner GMA. Petitioners may be served with legal processes of this Honorable Court, through the undersigned counsel, Belo Govon Elma Parel Asuncion & Lucila, at 15! Floor Sapitterius Condominium, H.V. Dela Costa Street, Salcedo Village Makati City 2.2. Private Respondents | CHRISTIAN BOCHEE CABALUNA, CHLOE BEN, LORA QUENANO, CHRISTINE ABAN, ELMER CABARLES, JR., UEGENE LALAAN, MARIET CABRAL, JAMES ARCE, ELEAZAR DEL ROSARIO, PHILIP VINCENT FRANCO SINCO, JAYSON BERNARD SANTOS, ROSALEE TIMBAD, MADELEINE ZAIDE, ROXANNE BASIJAN, ANTHONY MACARAYAN, SIMON EFRAIM BORROMEO, ANNALYN SAN PEDRO, JOSE DEL ROSARIO Ill, MICHAEL MANALAYSAY, AUBREY DELA CRUZ, RONELIE SIENO, GEMMALYN MASANGA, RACHELLE CASTILLO, FERNANNE GULAPA, KRISTOFFER JAMES DALUSING, ROSANNE BERNADETTE CHUA, ALLAN GREGORY LAZARO, FEARLLY LOUREEN TAN, ANTONIO CHUA, IVY SUZETTE GUCILATAR, SOCILLE FUENTES, DENICE MENDIOLA, ARCHIBALD FORMLAES, MARCO MARCELO, JEFFREY OSOC, AXL JOFFLINE MALONZO, MARISHEN LYLE MALUAN, MARIE ADELLE BANTS, REMANUEL BANDIOLA, DAWNAVIE DADIS, CATHERINE ANN MARPURI, EMMANUEL ESCALONA, MELIZA_ GALLIAN, MARIZA BARRAL, ANNE PAMELA FERNANDEZ, SHARON ROSE MASULA, JOHN MICHAEL CRISTOBAL, ROUEL RAYMUNDO, ANNABELLE GABUNA, CARMINA GIEZELLE MONES, ZARA JANE MISUELA, MARIA CREZELLE CRUZ, JEROME AVANZADO, MARIEL DAGUMAN, ARLA FABELLA, LIAN BUAN, EDMALYNNE REMILLANO, STEPHEN PATRICIO, MEGAN LUNA, RUBY OLERMO, KERWIN OCTAVO, JERICA HERGA, JOHN GARY CRIEL CANDELARIA, SAMUEL AUSTRIA, “DENNIS LASALA, SHERA TEVES, ELAINE MARIEL MAGBOO, SMICHAEL DEL ROSARIO, DAWN JEFFANIE QUIMQUE, IRENEMATTA, MARIA ANA ISABEL RODRIGO, CHISSA CAJIGAL, JULIANNE ROSE MARQUEZ, ROCHELLE ANN MARCELO, RICHELLE RAMIREZ, JAN ERIK MIRAS, MARIE ODESSA PACHECO, JIECEL RAMIREZ, NERI ALDREN CARANGALAN, ALFREDO ENOCE, JR. MARIA VERONICA GUINGON, LEONARDO —_LEONOR, BRYAN _ KRISTOFFER BRAZIL, WINCHELLE OCHOA, REGIT ADRIAN ANTONIO, HARVEY ANTHONY NORELLA, ANNE ROSE GAMBOA and MARY ROSE CASTRO, totaling ninety six (96) (hereinafter referred to as “Respondents”) may be served with legal processes of this Honorable Court through their counsel, Atty. Ricardo B. Lapesura, Jt. of SENO MENDOZA AND ASSOCIATES LAW OFFICES, at PGEA Compound Elliptical Road cor. Maharlika Ave., Diliman, Quezon City. Ill. STATEMENT OF MATERIAL DATES 3.1 On March 1, 2019, Petitioners received a copy of the Assailed Decision of the Honorable Court of Appeals which dismissed Petitioner's Petition for Certiorari dated March 11, 20165 for lack of merit. 3.2 Within the reglementary period or on March 18, 2019, Petitioners filed a Motion for Reconsideration dated March 15, 20196. 3.3 In resolving the motion, the Honorable Court of Appeals issued the Assailed Resolution denying Petitioner's Motion for Reconsideration. Petitioners received a copy of the Assailed Resolution on December 5, 2019. 3.4 Pursuant to Section 2, Rule 45 of the 1997 Rules on Civil Procedure, Petitioners have a period of fifteen (15) days from December 5, 2019 or until December 20, 2019 within which to file its Petition for Review on Certiorari. 3.5 However, due to undersigned counsel’s heavy volume of work, Petitioners were constrained to file a Motion for Extension of_ Time to File Petition for Review ot additional period of thirty (30) d _ January 19, 2020 within whicl However, since January 19, 202 (the first working day after the is timely and in accordance wit Court. n December 18, 2019, praying for an lays from December 20, 2019 or until h to file its Petition for Review. 0 falls on a Sunday, the filing today said date) of this Petition is therefore th Section 1, Rule 22, of the Rules of IV. ST, ATEMENT OF ANTECEDENT FACTS AND PROCEEDINGS SEASREEDINGS duction The Broadcast Industry is just part of in the Philippines. The Philippine eco bination of divergent industries that stim pment: Industries like, those engaged in food, agriculture, ition, mineral and energy are among the biggest industries pines which directly and indirectly provide millions of ities to Filipinos. These industries employ the typical of employees found in and governed by the Labor Code of the s Such as regular, seasonal, casual etc. a broad spectrum of nomy is powered by ulate its growth and However, the Broadcast Industry is remarkably peculiar d to the other industries. Since its inception, the Broadcast bject only to the franchise granted by Congress, was self- @ certain extent, it is not governed by the basic employment. It is an ind dustry highly dependent lovation, and constant change for its has been the practice of the industry to of talents through talent agreements. Projects and/or programs in . The gist of the wisdom in gency and practicality. This this day, which underscore ance of talent contracts incould really not shift to the local language and had to be replaced. b. Another example: During the 1990s there were situational comedy programs or sitcoms airing every night on the various channels. There was a need for many talents - writers and actors - with expertise in comedy. In the new millennium, nightly comedies were replaced by a slew of nightly drama programs — requiring staff both on camera and off with a different set of skills. ¢. Another example: From 2004 to 2008 reality programs were a dime a dozen and employed riggers for stunts, hidden camera experts etc. Currently, there are almost no adventure reality programs on the air, hence the hiring of riggers etc. is unnecessary. The few reality programs on air now are performance based such as Bet ng Bayan or The Voice and not adventure or challenge based in the way Extra Challenge or Survivor were. d. The popularity of game shows have also seen their ups and downs. Some years they are the most popular genre, other years there are almost no game shows on the air. There are writers whose main specialization is writing game show questions. e. Local children's programming used to be commonly aired by networks on weekend mornings. Now the only children's programs on the air are those sponsored by candy brands. £. More than a decade ago, Latinovela programs such as Marimar and Rosalinda were extremely popular. These have been replaced in popularity by Koreanovelas. Latinovelas barely place anymore in the ratings. g. When GMA News began producing historical dramas such as Katipunan and TIlustrado, it had to hire historians as talents to ensure the accuracy of these programs. But since these shows are seasonal, GMAcannot imagine hiring historians on a permanent, regular employee basis. - Individual programs are discontinued - sometimes after only a few episodes - based on their ratings performance. Even public affairs programs experience this, a recent example was Out of Control which lasted all of 9 weekly episodes. It would be very problematic to hire regular employees for a program like this only to let go of them after just 2 months 47 A talent, whether on cam or off cam, is bound to his/her show. That show can be created in a day or two, or be cancelled with a snap ofa finger. 48 Viewers are fickle and their viewing preferences can change quickly. The network offers a product, and viewers choose it by watching the show. Once viewers stop watching it, the network needs to have the freedom to close the show and replace it with a new one. The replacement show can be of any genre — news, drama, comedy, reality, game, variety, etc. Admittedly, news programs have a longer run that can last years, but like any other show, it can end abruptly or be transferred to another timeslot where the pay scale and other variables are entirely different, including content and number of people working. New content would necessarily mean hiring people knowledgeable or adept with the subject matter. 4.9 A news program utilizes special segments to give a show identity and separate it from what could be a homogenous media. A segment may even be considered a show within a show. Each segment may have its own staff and way of doing things. Each specializes on a single genre. Again, a segment can run for a few weeks, a few months or even years depending on viewer reaction. Flexibility in hiring the right people for the right job is paramount. In the past, Petitioner GMA had a segment on the supernatural (Parang Di Norma), eventually one on travel and human interest with loads of adventure. Today, it has a food trip segment. 4.10 Language used now in most newscast is Filipino. Years past, it was English. To transition, Petitioner GMA used Taglish or half Tagalog, half English. Presently, regional languages are becoming mainstream.4.11 Broadcasting is technology driven and not everybody can learn as fast or be willing to learn. Again, viewers expect the highest level of excellence and for that to be achieved, it is imperative to get the right people. 4.12 Producing a show, including a news program is a creative endeavor. Each day requires one to offer something new - be it _ information, visual images, effective use of sound, etc. It is not a _ factory where a product once designed is reproduced again and again. 4.13 For every program that lasts a decade such as Petitioner GMA‘s long running Inibestigador or Wish Ko Lang there are a dozen programs that have extremely short runs. Petitioner GMA produced a show entitled Jologs Guide that made it only to 4 episodes due to low ratings. Petitioner GMA produced a show on gay and lesbian entitled Out! that aired for one season — not because of low ; but because it could not garner the support of conservative sers. A show on mental health disorders and psychoses lasted st 9 weekly episodes. Petitioner GMA also produced multi- short run docudrama series Bayan Ko about an idealistic mayor (6 episodes), Katipunan, about the Philippine (8 episodes), Titser, on the problems of Philippine jon (9 episodes) and Ilustrado on Rizal’s journey in Europe (20 It would be very problematic and impractical to hire ends, which were short-lived. This is the same exact the various players in the broadcast am’s launch date is also routinely moved or sons. There are even occasions when a dy approved for airing and which had off the programming grid due to various ot just exist locally. In the United u ed, their telePilot shows (or first episodes of new series). Major US networks Teportedly order an average of 20 pilots every year. Traditionally only 1/3 of pilots are ever produced after networks view the pilots with advertisers. It would not make sense for» Production house to hire regular employees just to make a Pilot with a very small chance of being picked up for airing. An average of 6 pilots per major network make it to production each year.” Of the 6 pilots that become new programs, 65% or 4 programs will be cancelled after only 1 season. Only the most successful remain on ait. Gi pilot, and then for a season. Contracts are renewed once there is confirmation that a Program will be renewed for a second season. They do not have regular_employees except for those in the management and administrative positions — similar to the setup of broadcast companies here in the Philippines. 4.16 The schedules of these talents who work in production. are also quite unlike that of regular employees, During the pre- production stage, brainstorms or pre-production meetings are held to steate_a story outline or discuss possible topics. These rainstorms can last just a few hours and are often scheduled just once a week. The talents need not Stay in the office beyond the time it takes for the pre-production meeting. Certain talents, such as episode writers, need not even report to the office after the pre-production meeting. They can simply submit their scripts via email and these can be reviewed online as well for suggestions to come up with the desired results or revisions due to legal restrictions in the submitted content. 4.17 Because of their very flexible hours and their not being required to time in or out of the office, many of the talents who work in television, are also able to handle other creative projects - such as directing music videos, writing for independent films, editing in production houses ON THE SIDE - which would not be allowed for regular employees. 4.18 These talents are also_able to take on as many programs they _can_possibly handle within_a_network. This results in executive producers for example with 2 or3 programs each, directors with 3 or 4_network projects at a time, writers with 5 Progra GN FOR EACH PROGRAM, THEY RECEIVE A SEPARATE ne ain FEE, RESULTING IN SOME PRODUCTION ASSISTANT! 1 itp bloomberg comow/ateles/2013-05-14 cot 72)6g! end iit infiimoom, betps - ‘ao/weminoredinflm.com uWSEVERAL PROGRAMS EACH EARNING AS MUCH IN TAL iT FEE_AS_A REGULAR EMPLOYEE AT THE MANAGERIAL LEVEL. Regular employees, no matter how many projects the handle at_a time, are not given extra salary for every additional Project or program, C. The ultimate and undisputed facts of the herein case. theherein case, with fixed period or duration and are being paid talent fees the Talent Agreements? were renewed for definite periods. Their respective positions and job descriptions are set forth in detail in paragraph 2.1 and Annex “130” of Petitioners’ Position Paper dated November 6, 201410, 4.20 “The similarly worded Talent Agreements duly signed by Respondents herein include as an attachment a General Terms which contains common provisions which read: “GENERAL PROVISIONS 23. This Contract does not establish an employer-employee relationship between GMA and TALENT. TALENT agrees that as an independent contractor, TALENT is not entitled to any rights and benefits granted to regular employees of GMA other than those specifically provided herein. 24. Any and all suits for and every breach of this Agreement shall be instituted exclusively in the courts of competent jurisdiction of Quezon City and each party waives the right to change of venue. In case any clause is found by the court to be invalid, the remaining clauses shall continue to have force and effect.” (Emphasis supplied) 052” t0 “129” of Aunex "D" of Annex “C™ (Petition for Certiorari dated March 11, 2016) herein, "D” of Annex “C” (Petition for Certiorari dated March 11, 2016) herein 12421 For a number of years, Respond enjoyed the ts favorable terms and conditions of the Tai t er neni ‘aa f the Talent Agreements, such as: a. THE HIGH TALENT FEES; b. MULTIPLE CONTRACTS ATAG IVEN TIME FOR DIFFERENT SHOWS, allowing them to receive talent fees per Talent Agreement which results in a very high s ‘ompensation (some whom already equal or are close to what the Vice President positions of Petiti ner GMA receives); rOWeR RATES OF WITHHOLDING TAXES FOR SELF-EMPLOYED PROFESSIONALS/INDEPENDENT CONTRACTORS; d. PERFORMANCE OF SERVICE IN LESSER NUMBER OF HOURS depending on completion of their service/obligation and time of their Program as well as no time in and time out; e. _ BARGAINING POWER as to the rate of the talent fees during expiration of the Talent Agreements and prior to renewal and freedom to explore other engagements after the expiration of their Talent Agreements with the option for Petitioner GMA to match whatever offer they were able to secure outside if Petitioner GMA wanted to retain them (Paragraph 22 of the General Terms and Condition of the Talent Agreements); and £. FREEDOM TO ENTER OTHER ENGAGEMENTS OUTSIDE OF PETITIONER GMA, DURING THE EXISTENCE OR PERIOD OF THE TALENT AGREEMENTS, with its prior consent which was never unreasonably withheld. 4.22 It was truly a harmonious engagement whereby self- employed professionals who are classified as independent contractors such as Respondents herein made their services availal e to Petitioner GMA and greatly benefited from that type orelationship which has been the long established practice in the broadcast industry. 4.23 However, on March 20, 2014, the Bureau of Internal Revenue (BIR) issued Revenue Regulation 4-2014!! which sets the Guidelines and Policies for the Monitoring of Service Fees of Professionals whereby self-employed professionals must register and pay annual registration fees with the BIR as well as obligated to register books of accounts and official appointment books of their practice of profession/occupation/calling and sales invoices and official receipts before using them in any transaction. 4.24 Pursuant to the said BIR Revenue Regulation, Petitioner GMA on April 14, 2014 issued a Memorandum on even date!2 duly informing all of its 2700 talents all over the country, servicing it, of the requirement for registration with the BIR and need for the issuance of invoices for the talent fees being paid them in compliance with the legal requirement of the said Revenue Regulation of the BIR. 4.25 These requirements raised questions on proper compliance from some talents and resistance from a few (mostly Respondents herein) as it was burdensome and tedious for them. However, despite the burden, the talents of Petitioner GMA started complying with the requirements set forth by the BIR as this is the law. Petitioner GMA assisted the talents in their registration with the BIR. 4.26 It was because of this incident and receptiveness of a group of talents in complying with the BIR Revenue Regulation that prompted several dialogues on the issue which led Respondents to concoct an afterthought that they should not be made subject of these tedious requirements as they are employees of Petitioner GMA. 4.27 Thus, on June 16, 2014, Petitioners received summons to appear before the Office of Labor Arbiter Enrique L. Flores for a Mandatory Conciliation and Mediation Conference on June 30, 2014 based on a regularization case filed by one hundred forty two (142) Talents which includes Respondents herein (as the others have already either voluntarily withdrawn or resigned as will be shown/discussed below). The one hundred forty two (142) original complainants for_regularization, which includes Respondents jorari dated March 11,2016) herein ps of Aone 4 (Petition for Cert he nF of Anes ey elton jorari dated March 11, 2016) herein. ” of Annex "F" of Annex “C” (Petition for Cert&, herein, comprised just around 5% of the total of approximately two thousand seven hundred (2,700) talents of Petitioner GMA as the others simply complied with the requirement f th i Petitioner GMA offered assistance to, Sof the law which 4:28 In fact, even during the mediation Proceedings of the herein case, Respondents have been making public criticisms, tirades and_negative imputations in social_media_ai pi : ind the press, such as Manila Today and Rappler!* against Petitioner GMA in clear 4.29 And because no settlement could be reached during the Mandatory Conciliation and Mediation Conference, the Parties were required to submit their respective Position Paper, 430 Thus, on November 10, 2014, Petitioners filed their Position Paper dated November 6, 2014'S. Respondents likewise filed their Position Paper dated November 10, 201416, 4.31 Thereafter, Petitioners and Respondents filed their Reply dated December 9, 20141” and December 10, 2014", respectively, on December 10, 2014 and the case was considered submitted for resolution. 432 On February 4, 2015, Petitioners filed a Manifestation with Submission dated February 3, 2015" showing that eight (8) individuals, who were part of the original 142 complainants in the herein case, to wit: TALENT PROOF OF VOLUNTARY SEVERANCE OF TALENT AGREEMENTS BY THE TALENT DUE TO RESIGNATION” http://www.manilatoday.net/gma-7-talents-fight-against-unfair-labor-practice/ “http://www rappler.com/nation7607 |-gma-talents-network-success § Annex "D" of Annex “C” (Petition for Certiorari dated Marcl | 1, 2016) herein. jf Annex "E" of Annex “C” (Petition for Certiorari dated March 1, 2016) ai, 37 Annex "F* of Annex “C” (Petition for Certiorar® dated March 1, 2016) M rein. ® annex "G" of Annex “C” (Petition for Certiorari dated March 11, 2016) herein. a "HY of Annex “C” (Petition for Certiorari dated March ||, 2016) herein 2016 erin “@” of Annex "H" of Annex “C” (Petition for Certiorari dated March 11, 2016)1, Elton Jun V. Veloria Letter dated May 6, 2014 2. Jobelyn Bonifacio Memo dated May 30, 2014 3. Raymond R. Bermeo Letter dated June 4, 2014 4. Carmela Joyce E. Pamiloza_| Letter dated June 16, 2014 5. Antonio Tiemsin, Jr. Letter dated July 1, 2014 6. Kerwin Lawrence H. | Letter dated July 8, 2014 Octavio 7. Jevi Bryan D. Bilaos Letter dated September 17, 2014 8 Mary — Grace Lalu- | Letter dated October 24, 2014 Depalubos have already voluntarily severed their Talent Agreements with Petitioner GMA. As such, they have already abandoned their claim in the herein case. 4.33 However, prior to the resolution of the herein case by the Labor Arbiter Flores, Respondents filed on February 24, 2015 a Motion to Admit dated February 17, 20152! with an attached Rejoinder dated February 13, 2015. Said Motion to Admit filed by Respondents was admitted and Petitioners were given time to file their Rejoinder. Thus, on April 23, 2015, Petitioners filed their Rejoinder dated April 20, 2015”. 4.34 On April 21, 2015, the herein case was unloaded by Labor Arbiter Flores pursuant to Special Order No. 03-23, Series of 2015 dated March 24, 2015 of the Honorable Chairman Gerardo C. Nograles authorizing ELA Jenneth B, Napiza to unload and farm out pending cases of Labor Arbiters in NCR to the newly assigned Labor Arbiters. The case was then re-assigned/indorsed to Labor Arbiter Gayaman on May 19, 2015. The files of the herein case were transmitted to and received by the office of Labor Arbiter Gayaman on May 27, 2015. 4.35 On May 29, 2015, Petitioners received a Manifestation dated May 26, 2015% from Respondents. Thus, Petitioners were constrained to file a Counter-Manifestation dated June 11, 2015% on June 16, 2015 to correct the many erroneous and misleading arguments and conclusions made and raised by Respondents in their Manifestation dated May 26, 2015. ff Annex “C” (Petition for Certiorari dated March 1, 2016) herein. f Annex “C” (Petition for Certiorari dated March 11, 2016) herein, © > Annex "K" of Annex “C” (Petition for Certiorari dated March 11, 2016) he L* of Annex “C” (Petition for Certiorari dated March 1, 2016) herci 164.36 As of June 8, 2015, the total number of individuals who have voluntarily submitted their letters of withdrawal from the herein case to the Honorable Public Respondent through either the Honorable Labor Arbiter Flores or Gayaman is thirty six (36), to wit: TALENT DATE OF WITHDRAWAL LETTER 1._Norshaimah A. Bantuas June 24, 2014 2. Shelemiah Rose F. Bolon June 24, 2014 |3._Joycelyn S. Bumagat 4, Edmund L. Cabansag June 24, 2014 June 24, 2014 5.__Rosevida A. Dagli June 24, 2014 6._Shaine Aica D. Galang June 24, 2014 7. Aiza A. Sabando June 24, 2014 8,__Ever Lawrence R. Gutierrez October 27, 2014 9, Benedick H. Rellama October 27, 2014 10, April R. Carpio October 30, 2014 11. Hon Sophia S. Balod November 3, 2014 12. Joybelle B. Casin November 3, 2014 13, Ericka B. Perez November 3, 2014 [14. Aldrin Ona November 5, 2014 15. Luzviminda A. Balingit_ November 10, 2014 16. Altedd L, Lizan November 10, 2014 17. Marlon L. Martinez November 11, 2014 18. Mario C. Urrutia Il November 14, 2014 | 19. Alelie De Guzman-Mangalili November 14, 2014 20. Maria Teresa L, Ranoco November 16, 2014 21, Joselito Tan November 16, 2014 22. Romabelle A. Yumol November 16, 2014 23, Nice Celini G. Catanes Novemiber 24,2014 24. Gale Louisa A. Cafioneo-Paris November 24, 2014 25. Lea Reyes December 03, 2014 26. Joni C. Mosatalla December 3, 2014 | 27. Arianne C. Betita December 5, 2014 December 10, 2014 [28. Natanya T. Nono 9, Genelie D. Sta. Ana December 16, 2014 Jane Ariane Guevarra December 17, 2014 ona G. Bayani errynelle A. Pontejos December 22, 2014 December 22, 2014 e S. Samaniego January 22, 201434. Kezia Joy B. Balarbar February 13, 2015 35. Richell R. Equiron February 16, 2015 36. Kimberlie O. Refuerzo June 8, 2015 “noting that Selso Carlo, Ernie DC Del Valle and Roll Venis Manahal who also filed their respective withdrawals to the Labor Arbiter Flores are not part of the list of the talents who filed the herein case. 4.37. On June 25, 2015, Petitioners, through the undersigned counsel received the Decision®> which was decided less than a month after receipt of the voluminous case files by the Labor Arbiter Gayaman, the dispositive portion of which reads, as follows: “WHEREFORE, judgment is hereby rendered declaring complainants CHRISTIAN BOCHEE CABALUNA, CHLOE BEN, LORA QUENANO, MARY GRACE LALU- DAPALUBOS, CHRISTINE ABAN, ELMER CABARLES, JR, UEGENE LALAAN, MARIET CABRAL, JEROME _NEBRES, JAMES ARCE, ELEAZAR DEL ROSARIO, PHILIP VINCENT FRANCO _ SINCO, JAYSON BERNARD SANTOS, ROSALEE TIMBAD, MADELEINE ZAIDE, ROXANNE BASIJAN, ANTONIO TIEMSIM, DANDY ALANDY, ANTHONY MACARAYAN, SIMON EFRAIM BORROMEO, ANNALYN SAN PEDRO, JOSE DEL ROSARIO IU, MICHAEL MANALAYSAY, AUBREY DELA CRUZ, RONELIE SIENO, GEMMALYN MASANGA, RACHELLE CASTILLO, FERNANNE GULAPA, KRISTOFFER JAMES DALUSING, ROSANNE BERNADETTE CHUA, CARMELA PAMILOZA, ALLAN GREGORY LAZARO, FEARLLY LOUREEN TAN, ANTONIO CHUA, IVY SUZETTE GUCILATAR, SOCILLE FUENTES, DENICE MENDIOLA, ARCHIBALD FORMLAES, RAYMOND BERMEO, MARCO MARCELO, JEFFREY OSOC, AXL JOFFLINE MALONZO, nex “C” (Petition for Cextiorari dated March 11,2016) herein.MARISHEN LYLE MALUAN, MARIE ADELLE BANTS, REMANUEL BANDIOLA, DAWNAVIE DADIS, CATHERINE ANN MARPURI, EMMANUEL — ESCALONA, MELIZA GALLIAN, MARIZA BARRAL, ANNE PAMELA FERNANDEZ, SHARON ROSE MASULA, JOHN — MICHAEL CRISTOBAL, ROUEL — RAYMUNDO, ANNABELLE — GABUNA, CARMINA GIEZELLE MONES, ZARA JANE MISUELA, MARIA CREZELLE CRUZ, JEROME AVANZADO, MARIEL DAGUMAN, ARLA FABELLA, LIAN BUAN, EDMALYNNE REMILLANO, STEPHEN PATRICIO, MEGAN LUNA, RUBY OLERMO, KERWIN OCTAVO, JERICA HERGA, JOHN GARY CRIEL CANDELARIA, SAMUEL AUSTRIA, ARRA PAPICA, DENNIS LASALA, SHERA TEVES, ELAINE MARIEL MAGBOO, MICHAEL DEL ROSARIO, DAWN JEFFANIE QUIMQUE, IRENE MATTA, MARIA ANA ISABEL RODRIGO, CHISSA CAJIGAL, JULIANNE ROSE MARQUEZ, ROCHELLE ANN MARCELO, RICHELLE RAMIREZ, JAN ERIK MIRAS, MARIE ODESSA PACHECO, JIECEL RAMIREZ, NERI ALDREN CARANGALAN, ALFREDO ENOCE, JR, MARIA VERONICA GUINGON, LEONARDO LEONOR, BRYAN KRISTOFFER BRAZIL, = WINCHELLE OCHOA, REGIT ADRIAN ANTONIO, HARVEY HENRYAN BAYONA, JAN MEYNARD NUALLA, LEA PAZ TORRE, SERAFIN CAMDIDO GOZON, IGAL JADE SAN ANDRES, ELTON JUN VEGORIA, RAYLA MARIE CASTILLO, MARK ANTHONY NORELLA, ANNE ROSE GAMBOA and MARY ROSE CASTRO, as regular employees of GMA Network Incorporated, and as such are entitled to security of tenure and all benefits and rights appurtenant thereto.SO ORDERED.” 4.38 Hence, on July 6, 2015, Petitioners timely filed a Notice of Appeal with Memorandum of Appeal dated July 3, 2015% with the National Labor Relations Commission (NLRC). On July 27, 2015, Petitioners filed an Errata dated July 20, 20157 to correct clerical errors in their Notice of Appeal with Memorandum of Appeal. Respondents for their part did not file any Answer or Opposition to Petitioner's Notice of Appeal with Memorandum of Appeal. 439 Curiously while the case was initially raffled to the Fourth Division of the NLRC which is borne by the records, Petitioners were surprised to have received on October 5, 2015 the Decision promulgated on September 30, 2015 from the Special Fourth Division of the NLRC affirming with modification the Decision of Labor Arbiter Gayaman, the dispositive portion of which provides: “WHEREFORE, the appeal filed by respondents is PARTLY GRANTED. The Decision dated 22 June 2015 of Labor Arbiter Julio R. Gayaman is AFFIRMED with MODIFICATION. With respect to eight (8) complainants, namely: Elton Jun V. Veloria, Jobelyn O. Bonifacio, Raymond R. Bermeo, Carmela Joyce E. Pamiloza, Antonio Tiemsin, Jr, Kerwin Lawrence H. Octavio, Jevi Bryan D. Bilaos and Mary Grace Lalu-Depalubos, the appealed Decision of the Labor Arbiter is MODIFIED in that, these eight (8) complainants are declared regular employees of GMA and are entitled to security of tenure and all benefits and other rights appurtenant to their status as such regular employees, but only up to the date immediately preceding their effective dates of resignation. The complaint of complainant Jerome M. Nebres is dismissed for having been withdrawn from the docket of this case. © Annex "M" of Annex “C” (Petition for Certiorari dated March 11, 2016) herein. (sans annexes) 1)?” Annex "N" of Annex “C” (Petition for Certiorati dated March 1, 2016) herein. 20For the remaining ninety-seven (97) complainants, the appealed Decision of th Labor Arbiter is AFFIRMED, n°" % the SO ORDERED.” 440 On account of the many glaring errors in the determination of facts and applicable law by the Special Fourth Division of the Honorable Court of Appeals, Petitionees deemed it necessary to file a Motion for Reconsideration’, which th October 15, 2015. which they did on 4.40.1 Included in said Motion for Reconsideration was information on the severance of relation by Respondent Arra Trisha Nicole M. Papica during the pendency of the appeal to study abroad effective September 8, 2015 supported by her resignation letter®®. As such, there is no longer any plausible reason to include her jn the herein case and no rights and/or liabilities which may be ruled upon in the herein case should be made_applicable_to her, as she has already voluntarily terminated any relationship with Petitioner GMA. Thus, there should only remain 96 individual Private Respondents to the herein case. 441 On January 11, 2016, Petitioners received the Resolution dated January 5, 2016 from the Special Fourth Division of the NLRC which affirmed the Decision (a) without resolving or discussing the errors pointed out by Petitioners to the Decision dated September 30, 2015 in their Motion for Reconsideration; (b) or taking out Respondent Arra Trisha Nicole M. Papica as a party even if the Honorable Court of Appeals was duly informed that she clearly resigned. 442 Thus, on March 11, 2016, Petitioners timely filed a Petition for Certiorari (with Urgent Prayer for the Issuance of a Temporary Restraining Order and/or a Writ of Preliminary Injunction). Annex "O” of Annex “C” (Petition for Certiorati ted March M20 6 ree 1, 2016) herein : ® Annex “13” of Annex "0" of Annex “C” (Petition for Certiorari 2i4.43 On September 16, 2016, Petitioners received Respondents’ Comment dated September 9, 20162, 4.44 On December 21, 2016, Petitioners received a Resolution dated December 14, 2016 from the Honorable Court of Appeals requiring both parties to the instant case to file their respective Memorandum within fifteen (15) days from notice of said Resolution. On January 4, 2017, Petitioners moved for an additional period of thirty (30) days from said date within which to file their Memorandum for just and equitable reasons. 4.45 Thus, on February 3, 2017, Petitioners filed their Memorandum dated February 1, 20173, On the other hand. Respondents did not file any Iemorandum. 4.46 On March 1, 2019, Petitioners received a copy of the Assailed Decision of the Honorable Court of Appeals which dismissed their Petition for Certiorari dated March 11, 2016 for lack of merit. 4.47 Agerieved by the Assailed Decision, Petitioners filed on March 18, 2019 its Motion for Reconsideration dated March 15, 2019. 448 On December 5, 2019, Petitioners received the Assailed Resolution of the Honorable Court of Appeals which denied Petitioner's Motion for Reconsideration. 449 On December 18, 2019, Petitioners filed a Motion for Extension of Time to File Petition for Review on December 18, 2019, praying for an additional period of thirty (30) days from December 20, 2019 or until January 19, 2020 within which to file its Petition for Review. 4.50 Hence, the present Petition for Review on Certiorari. ® Annex “E” herein. . * Annex “F” (sans annexes) herein. b. 2'V. GROUNDS IN SUPPORT OF THE PE TITION A. THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN RELYING ON THE CONCLUSIVENESS OF THE FACTUAL FINDINGS OF THE NLRC EVEN WHEN THE ULTIMATE FACTS AND EVIDENCE OF THE HEREIN CASE CLEARLY SHOW THE CONTRARY, B. THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN FINDING THAT RESPONDENTS ARE REGULAR EMPLOYEES OF PETITIONER GMA. VI. ARGUMENTS AND DISCUSSION A. THE HONORABLE COURT OF APPEALS MIS-APPRECIATED THE ULTIMATE FACTS OF THE HEREIN CASE AS SUPPORTED BY SUBSTANTIAL EVIDENCE AND, ACCORDINGLY, MISAPPLIED EXISTING LAWS AND JURISPRUDENCE IN COMING UP WITH THE ASSAILED DECISION AND RESOLUTION. 7.1 In dismissing the Petition for Certiorari, the Honorable Court of Appeals relied on the principle of conclusiveness of the ings of the Labor Arbiter and the NLRC, albeit the same being ly flawed, to wit: 23“It is settled that factual findings of labor administrative officials, if supported by substantial evidence, are accorded not only great respect but even finality, unless there is a showing that they arbitrarily disregarded the evidence before them or had misapprehended evidence of such nature as to compel a contrary conclusion if appreciated. , Properly Xxx In this case, it is not shown that the NLRC exercised its judgment whimsically, arbitrarily or despotically by reason of passion and hostility considering that its findings are supported by substantial evidence.” 7.2. In fact, the Honorable Court of Appeals mostly echoed the findings of the NLRC with a claim of supporting substantial evidence when the same is clearly not the case and without considering the contrary facts and circumstances which are the ones supported by substantial evidence. 7.3 While we agree with the principle laid down by the Honorable Court of Appeals with regards the respect to be accorded factual findings and decisions of labor tribunals, the same admits of exceptions which are glaringly evident in the present case, to wit: “These exceptions are: (1) when the conclusion is a finding grounded entirely on speculation, surmises or conjectures; (2) when the inference made is manifestly mistaken, absurd or impossible; (3) when there is grave abuse of discretion; (4) when the judgment is based on a misapprehension of facts; (5) when the findings of facts are conflicting; (6) when the Court of Appeals, in making its findings, went beyond the issues of the case and the same is contrary to the admissions of both appeliant and appellee; (7) the findings of the Court of Appeals are contrary to those of the trial court; (8) when the findings of fact are conclusions without citation of ‘specific evidence on which they are based; (9) when the facts set forth in the petition as well as in the petitioner's main and reply briefs are not disputed 24by the respondent; and (10) the findings of fact of the Court of Appeals is emised on the supposed absence of evidence and is contradicted by the e vidence on record” (Underscoring supplied) 74 In the Present case, the Labor Arbiter and the NLRC clearly committed grave abuse of discretion whereby the findings and conclusions are not Supported by the ultimate facts, established jurisprudence and the evidence on record and in fact conflicting to the evidence on record. This should have prompted the Honorable Court of Appeals to clearly and concisely review the case as a whole and not simply rely on the clearly erroneous rulings of the Labor Arbiter and the NLRC as exhaustively set forth and pointed out in the present petition with the relevant supporting documents as opposed to the unsubstantiated and baseless allegations of Respondents. Instead, the Court of Appeals conducted a cursory and passive review and allowed merely itself to serve as a rubber stamp of the Labor Arbiter and the NLRC. 7.5 As such, Petitioners urge this Honorable Court to take a look at the ultimate facts and totality of supporting evidence on record so that justice on the merits of the case may ultimately be served, 76 e Honorable Court of Appeals and_the NLR likewise failed to include and/or consider the factual mileau of the herein case which is the HISTORY AND PECULIARITY OF THE BROADCAST _INDUSTRY®__which sheds much __light _on circumstances surrounding the herein case _as_well_as_ the relationship of Petitioner GMA and Respondents. 7.7 It is respectfully submitted that these important pieces of factual allegations for Petitioners, as will be thoroughly discussed below, should not have been simply disregarded by the Honorable Court of Appeals as the same was vital to the present controversy and would definitely aid in the understanding of the surrounding circumstances of the herein case and for the proper determination of the rights and relationships of the Parties herein. $; Pascual v. “R.No. 171722, January 11, 2016, 778SCRA 189, 205-206 Pepa ee aes gta Annes “C™ Paton for Cero dtd Mac 11,2016) in 257.7.1 Little to no consideration to these facts which are supported by substantial evidence when it came to the ruling as will be discussed in detail below. B. THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN APPLYING THE FOUR-FOLD TEST TO SHOW THAT THERE EXISTS AN EMPLOYER- EMPLOYEE RELATIONSHIP BETWEEN PETITIONER GMA AND RESPONDENTS HEREIN. 78 Ina longline of cases, the Supreme Court has consistently used the four-fold test in determining the existence of employer- employee relationship. In the case of South Davao Development Company, Inc., et al. vs. Sergio L. Gamo et. al. (G.R. No. 171814, May 8, 2009) the Court held: “In order to determine the existence of an employer-employee relationship, the Court has frequently applied the four fold test: 1) the selection and engagement of the employee; (2) the payment of wages; (3) the power of dismissal; and (4) the power to control the employee's conduct, or the so called "control test.” which is considered the most important element.” 7.9 And, the landmark case on talents of Jose Y. Sonza vs. ABS-CBN Broadcasting Corporation (G.R. No. 138051, June 10, 2004) was no different. It used the same four-fold test to determine that “talents” are not employees but _instead__are independent contractors, to wit: “The_present controversy is one of first impression. Although Philippine labor laws and__jurisprudence define clearly _ the elements of _an__employer-employee relationship, this is the first time that the will resolve the nature of the 26relationship between a television and radio station and one of its “talents”. XXX The right of labor to security of tenure as guaranteed in the Constitution arises only if there is an employer-employee relationship under labor laws. Not every performance of services for a fee creates an employer- employee relationship. To hold that every person who renders services to another for a fee is an employee - to give meaning to the security of tenure clause - will lead to absurd results Individuals with special skills, expertise or talent_enjoy the freedom _to_offer_their services _as independent contractors. The right to life and livelihood guarantees this freedom to contract as __ independent contractors. The right of labor to security of tenure cannot operate to deprive an individual, possessed with special skills, expertise and talent, of his right to contract as an independent contractor. An individual like an artist or talent has a right to render his services without any one controlling the means and methods by which he performs his art or craft. This Court will not interpret the right of labor to security of tenure to compel artists and talents to render their services _only as employees. If radio and television program hosts can render their services only as employees, the station owners and managers can dictate to the radio and television hosts what they say in their shows. This is not conducive to freedom of the press.” (Underscoring and —_ emphasis supplied) The Sonza case did not distinguish between on cam off cam talents and instead laid down the parameters on 27how one may be considered a talent, which is_an independent contractor, as opposed to a regular employee, to wi a In possession of unique skill, talent and celebrity status that the network would have entered into an agreement with him rather than having him be hired by the personnel department; b. Paid high talent fees (because he/she is able to command such) as opposed to that given to the regular employee of the same position; ¢. _ The relationship between the network and the talent can only be terminated for breach of contract; and d. The network does not have control over how the talent performs his/her work so long as the results needed of him are met, which is the most_important_test_to determine, 7.11 A close scrutiny of the four-fold test pursuant to the Sonza case in relation to the circumstances surrounding the herein case would necessarily show the absence of an employer-employee relationship between Petitioner GMA and Respondents. i Petitioner GMA did not hire Respondents as its employees 7.12 For the test of selection and engagement of employees, the Honorable Court of Appeals erroneously banked on the recitals of the Talent Agreement and the IDs of Private Respondent, to wit: “Contrary to petitioners’ assertion that private respondents were merely invited due to their unique skills and that it is the latter who offered their services to the former, it cannot be denied that the latter’s services were still selected and engaged by the former given that their Talent Agreements uniformly states that petitioner “GMA engages the services of TALENT in a television program”. Aside -% from that, some of the private respondents were - issued company ID's. In a business establishment, 28an identification card is provided not only as a security measure but mainly to identify the holder thereof as a bona fide employee of the firm that issues it” 7:13 The ‘Tecitals in the Talent Agreement are but common wordings used in any service contract. Without the words “engages the services”, how can there be a contract or relationship between the parties in whatever nature, whether as employment or independent contractorship? 7.14 To simply base the determination on those words alone to conclude that _there is employer-employee relationship without looking into the specifics and evidence on record of how the relationship of the parties came about is serious error. Likewise, to claim that Petitioner GMA’s assertion that Respondents were invited due to their unique skills on the basis of the common wordings of the Talent Agreement is not in tune with the ultimate facts of the case as supported by a myriad of substantial evidence. 7.15. The ultimate facts of the herein case is that Respondents were engaged by Petitioner GMA as follows: a. Petitioner GMA’s invitation, owing to their unique skill, talent and expertise in their respective field to perform services for Petitioner GMA which only they are capable of doing and performing; and b. _ Respondents’ offering their services to Petitioner GMA by presenting their unique qualities to best suit the needs of Petitioner GMA in the shows which Petitioner GMA would like to develop for public awareness. 7.16 In_either_method of engagement of their services, Petitioner _GMA‘s primordial consideration was Respondents’ peculiar skills, expertise and talents. It is by reason of Respondents’ unique skills and talents not possessed by ordinary employees that their_services were engaged by etitioner_GMA. THIS IS UNDISPUTED AND UNDENIABLE! 7.16.1 Similar to the Sonza case, the possession by _.. Respondents of unique skills and talents are indicative of and 29are the principal reasons for their a contractors trea it engagement as independent “Independent contractors often present themselves to possess unique skills, expertise or talent to distinguish them from ordinary employees. The specific selection and hiring of SONZA, because of his unique skills, talent and celebrity status not possessed by ordinary — employees,is_a circumstance indicative, but ‘not conclusive, of an independent contractual relationship. If SONZA did not possess such unique skills, talent and celebrity status, ABS-CBN would not have entered into the Agreement with SONZA but would have hired him through its personnel department just like any other employee,” 7.17 The tests given to Respondents were for the purpose of determining and affirming the peculiar qualities of these people as opposed to the Policy of Recruitment, Selection and Hiring™ for the employees they hire. 7.18 The requirements in the Revised Talent Engagement Process of submitting a duly filled out talent information sheet, updated copy of resume, ID pictures, NBI Clearance, Police Clearance, Barangay Clearance, BIR documents, Medical Examination, Drug Test etc. are merely part of the screening to know the personal information, medical fitness and capacity to act of the Respondents akin to a due diligence. To deprive a contracting party the right to conduct the same prior to entering into relations and entrusting performance of services to someone who may be prevented to act or conduct the same one way or another owing to factors which could have been determined by a proper due diligence makes no sense. To be deprived of information about a person with whom you will be entering into a contract_with such as personal details _also_makes_no_sense. However, the fact that these information and requirements are sought does not necessarily or automatically _mean_that_the requesting party is the employer. 6" of Annex “F" of Annex "C” (Petition for Certiorari dated March 11, 2016) herein, 304 7.18.1 It_is worth noting that_part of the required locuments were BIR Form 2303 (BIR Certificate of Registration) and BIR Form 1921 Authority to Print Receipts and Invoices’ which clearly shows the recognition by Respondents that they are_independent contractors and_are being engaged as such, THIS FACTUAL FINDING SUPPORTED BY CLEAR AND SUBSTANTIAL EVIDENCE ON RECORD CANNOT SIMPLY BE IGNORED IN FAVOR OF COMMON RECITALS OF A SERVICE AGREEMENT. 7.19 Moreover, a careful scrutiny of the Policy will reveal the distinct criteria which Petitioner GMA looks for to be able to determine whether to engage the talents it has either recruited or those who offered their services to Petitioners GMA, as compared to the more generic testing and evaluation of whether a person will pass the test to be hired as an employee or not. Also, a glaring distinction for talent engagement and the hiring process for employees is that in the latter, they prioritize in-house hiring or looking from among the ranks to fill in vacant or open positions. For talents, Petitioner GMA are not able to do the same as the in-house personnel of Petitioner GMA do not possess the capabilities and unique skills, talents and expertise which these talents have and which motivated Petitioner GMA to engage them as such. 7.20. If it was the intention and belief of Respondents that they are regular employees of Petitioner GMA, they should have applied for positions available for regular employees. HOWEVER, it is clear from the foregoing ultimate facts that Respondents repeatedly chose to enter into talent agreements with Petitioner GMA as the same gave them A BETTER AND HIGHER PAY-OUT as opposed to the regular employment positions which were less flexible and left them with a fixed pay for more work. IN FACT, NOWHERE IN THE ULTIMATE FACTS AND EVIDENCES OF THE HEREIN CASE WILL_IT SHOW THAT RESPONDENTS SUBMITTED ANY APPLICATION FOR REGULAR EMPLOYMENT WITH PETITIONER GMA, THIS FACT THEY CANNOT DENY AT ‘ALL. This, should not have been simply brushed aside by the Honorable Court of Appeals for some common recital in the Talent Agreement which are the usual wordings used in service agreements. 7.20.1 Respondents cannot also feign ignorance that there are different sets of procedure and mode of application 3ifor those aspiring to become regular employees of Petitioner ‘ose aspiring to become talents. Their alleged lon; tenures of service to Petitioner GMA belies this. _7.20.2 Moreover, some of Respondents were and the procedure on how to go about such application which THEY_DECLINED as they would receive Jesser_pay, lose flexibility in terms of time and project and be burdened with more work. 7.21 If these Respondents do not possess unique skills and talents, then Petitioner GMA would not have entered into a talent agreement with them but would have hired them through its personnel department like any other employee and made to undergo the tests as set forth in Policy of Recruitment, Selection and Hiring. 7.22 Neither is the issuance of IDs by Petitioner GMA to Respondents prove/show that the latter are bona fide employees of Petitioner GMA. Such an argument by itself is not at all conclusive that Respondents are employees of Petitioner GMA. The case quoted by the Honorable Court of Appeals in arriving at the conclusion on identification cards issued correlates the identification card with other pieces of evidence to show that indeed the person therein was an employee but standing alone, an identification card is not conclusive proof of employment! 7.23 On the contrary, the Supreme Court in several instances has found that identification cards issued to someone does not necessarily prove employment, to wit: “Furthermore, respondent's pieces of evidence—the identification card and the certification issued by petitioner’s Greman Solante— are not even determinative of an employer-employee relationship. The certification, issued upon the request of respondent, specifically stated that "MR. JANDELEON JUEZAN is a program employee of PEOPLE’S BROADCASTING SERVICES, INC. (DYMF- Bombo Radyo Cebu)," it is not therefore “crystal clear that complainant is a station employee rather than a program employee hence entitled to all the benefits appurtenant thereto,” as found by the 32DOLE Regional Di bound be pal Ditector. Respondent should be rd by wn evidence. Moreover, classification as to whether one is a “sation emp) yee jane ‘program employee,” as lifted from Pol cy Ins uction No. 40, dividing the workers in binding 2st industry into only two groups is not inding on this Court, especially when the classification has no basis either in law or in fact. Even the identification card urportedly issued by Petitioner_is_not_proof_of _employer-employee relationship since it only identified respondent as an Authorized Representative of Bombo Radyo...,” and not as an employee. 35” “Lastly, the Court does not agree with petitioner's insistence that his being hired as respondent corporation's administrator and his designation as such in intra-company correspondence proves that he is an employee of the corporation. The fact alone that petitioner was designated as an administrator does not necessarily mean that he is an employee of respondents. Mere title or designation in a corporation will not, by itself, determine the existence of an employer-employee relationship. In this regard, even the identification card which was issued to petitioner is not an adequate proof of petitioner's claim that he is respondents’ employee. In addition, petitioner's designation as an administrator neither disproves respondents’ contention that he was engaged only as a consultant.%” 7.24 In the present case, the identification cards attached by Respondents and being referred to by the Honorable Court of Appeals as conclusive proof of bona fide employment are different om those of the employees of Petitioner GMA. For one, the size of the identification cards of the talents are different in size and color to those of regular employees of Petitioner GMA. Also, at the back of the identification cards®” of Petitioner GMA’s regular employees are People's Broadcasting (Bombo Radyo Phils. Inc,) vs. The Secretary of the Department of Labor and sployment etal. (G.R. 179652, May 8, 2009) Bere toe Giawome Research ‘Foundation, Inc. et al. (G.R. No, 189255, June 17, 2015) “iA? of Annex “D” (Motion for Reconsideration dated March 15,2019) herein. 33the TIN and SSS numbers of the regular employees to clearly show that they are indeed regular employees of Petitioner GMA. Also, the identification cards of Respondents clearly show the validity thereof while for regular employees there is no set validity date. These details do not appear in the identification cards of Private Respondent. The difference in color, size and details printed in the identification cards of the talents, which include Respondents herein, cleatly distinguish them from the regular employees of Petitioner 7.25 The identification cards given to Respondents are solely for the purpose of allowing them limited access to the premises of Petitioner GMA as well as to allow security personnel of Petitioner GMA to quickly identify them, know what authority and access they are only allowed to in Petitioner GMA and until when the validity of the same is. The identification cards also allow the public to identify them with Petitioner GMA when they are performing the services they were contracted for and to avoid being questioned in what they are doing. ii. Petitioner GMA does not pay the wages of Respondents 7.26 As to the second test on payment of wages, Petitioner GMA does not pay Respondents wages akin to employees but are given their talent fees in accordance to the terms of the Talent Agreement. 7.27 Itis error for the Honorable Court of Appeals to conclude that being paid twice a month and receiving payslips regardless of the term used by Petitioners to denominate this amount, which it acknowledged as considerably higher, are indicia of employer- employee relationship, to wit: “As to wages, petitioner GMA insists that the talent fees are not wages. However, the records show that private respondents received their talent fees twice a month from petitioner GMA with payslips that even bear the latter's brand logo. While private respondents’ remuneration, albeit denominated as talent fees and 34considerably higher, the same is still considered as included in the term wage in the sense and context of Article 97(f) of the Labor Code, regardless of how petitioner GMA chose to designate the remuneration,” 7.28 The Honorable Court of Appeals appears to be remiss of the fact that what is important in the second criteria on the payment of wages is the surrounding circumstances on what is being paid to determine whether there is in fact a badge of employer-employee relationship. 7.29 The Sonza case, a product of Philippine Jurisprudence, espoused that the existence of a huge disparity between the talent fees given to talents and the salaries of ordinary employees is a determinative criteria in finding that an independent contractual relationship exists rather than that of an_employer-employee relationship, to wit: “SONZA’s talent fees, amounting to P317,000 monthly in the second and third year, are so huge and out of the ordinary that they indicate_more an independent contractual relationship _rather_than__an _employer- employee relationship. ABS-CBN agreed to pay SONZA such huge talent fees precisely because of SONZA’s unique skills, talent and celebrity _status_not_possessed_by ordinary employees. Obviously, SONZA acting alone possessed enough bargaining power to demand and receive such huge talent fees for his services.” (Underscoring and emphasis supplied) 7.30 It bears stressing that Respondents were not paid salaries or wages but talent fees as stipulated in the Talent Agreements. This talent fee is the amount which Respondents, because of their unique skill, expertise and talent, command and/or demand from network stations, like Petitioner GMA, for their services. 7.31 A close perusal of the total talent fees in a month (because © some Respondents are covered by several talent agreements with te talent fees) given to Respondents compared to the salaries 35and wages given by Petitioner GMA to its employees having more or less a similar rank/position’s clearly shows a substantial disparity in favor of Respondents, Private Position’s | Total Equivalent. [Salary | Monthly Respondents Monthly | Position —_ for Disparity Talent Fee | Regular in Talent Employee Fee and Sala Dandy C.| Segment | NN | Segment ie ‘Alandy Producer for Producer Imbestigador Head Writer for Motorcycle Diaries - 7 Mariza. Barral [Production |) [Production | | | and Logistics Administrator Support for Good News — Program Researcher for Day Off - Program and Logistics Support for Tunay na Buhay - Harvey Executive HS Sepervising = | | Henryan Producer of Producer Bayona Brigada — Creative Director of . k Brigada - Accomp espondents" respective talent (ees and the salaries ete breakdown of the comparison of Private Resp. ; nthe postive equivelent poston in Petitioner GMA is shown in Annex "7" of Annex “F” of Annex for Certiorari dated March 11, 2016) herein 36‘Christian Bochee M. Cabaluna Segment Producer of Imbestigador In charge editing for Juander charge Iv Documentat es Investigative of 1 of editing for GMA News e ri ‘Segment Producer Michael G. Del Rosario Executive Producer Motorcycle Diaries of Associate Producer Reporter's Notebook of Supervising Producer Sharon Rose A. Masula Executive Producer Reel Time of Supervising, Producer Richelle Pancho Ramirez Segment Producer Pop Talk of Segment Producer Aha! In charge editing a of of of Segment Producer ciJohn Michael G. Program | gm Toso Cristobal Researcher of Assistant | Reel Time Simon Head Writer | MI Fiead waiter Borromeo Unang Hirit Bryan Kristoffer | Segment ME Segment | Brazil Producer Producer rigada - Linear Editor i I I } Brigada — Kian Nami) Segment | [Senet | AloenBuan | Producer Producer State of the Nation Mariet Cabral” [Segment | NINN [Segment {| Producer Producer Imbestigador Roseanne Segment TH Segment a Bernadette —L, | Producer Producer Chua Kapuso Mo Jessica Soho Antonio Lou | Segment TH Segment | Chua Producer Producer Kapuso Mo Jessica Soho Ivy Suzette | Segment ME | Segment Gucilatar Producer Producer Kapuso Mo - Jessica Soho | Michael T.| Associate | | Jr. Supervising Manalaysay Producer of Producer Imbestigador Rosalee Timbad | Segment HE Segment Producer | Producer Day-Off - 5 In Charge of Features Team Unang Hirit -7.31 The huge Respondents are furth, G disparit between the talent fees of T ex ifi ry day that they actually worke Te ee ee the number of hours in a the same: tk. The following are just a few examples of Private Total Days Pay per | Equivalent | Monthly | Pay per Respondents | Monthly worked / dayiper Position for Salary day/per Salary hours hour Regular hour (6 worked Employee days a week and 8 hours a Remanuel | 5 days per [EN ic. ri Bandiola week / 5| per day | Supervising per day hours per | | Producer i day per hour per hour Marie Adelle | 5 days per | | Writer EE | A. Banta week / 4| per day per dai | —_ day per hour per hour Dawnavie A. | 5 days per | | Segment | Dadis week / 5| per day / | Producer per_da hours per | / day per hour per (segment hour | producer) 5 days per week / 6 | . hours per day (writer) pe 5 days per oir week / 5) per day / | Supervising per_da hours per Producer = day per hour per (associate hour producer) 395 days per week / 4 hours per day (writer) Once a | [Research week / 4 perday / | Assistant hours (In charge of | per hour | editing) Once a i week / 5] perday / hours (In — charge of | per hour editing) 3 days per — week / 3.5 | perday / hours per i day per hour (Program __| Researcher) Emmanuel | ([5 cays per | | Moving Escalona, Jr. week / 2| per day / | Image hours per Director day per hour (Playback Operator) 5 days per | week / 6| perday / hours per | day per hour (Production Editor) Once a week / 2|perday / hours per = day hour (Playback Operator) HSS days a |B per | Head Writer week / 4.5|day_ / per_day hours a day = 7 (Head per hour per Writer) hour per hour per hour s that which a regular employee receives. ,, their rate on a per day basis and on a per hour basis: 7.32. The reason for their hi allowed by Petitioner Gaga, Ruse Salaties is that Respondents are d have more than one show, am. for which he/she serves as a talent, nother words, » Responlent ma have ore than on, Talent Agreement at _any one time as Sa ee tt 2 separate talent fee for each Talent Agreement. THIS" PECULIAR _CHARACTERISTIC_IS_NOT _PRESENT_IN REGULAR EMPLOYEES WHO ARE PAID A FIXED AMOUNT REGARDLESS OF THE NUMBER OF SHOWS OR VARIOUS TASKS ASSIGNED TO HIM. 7.32.1 It is interesting how this important piece of fact was not given any consideration when the same is so obvious and glaring which clearly distinguishes Respondents from the employees of Petitioner GMA. 7.32.2 In fact, to quote the very words of Respondents in paragraph 21.3 of their Comment dated September 9, 2016” whereby they admitted and acknowledged this scenario of being paid a separate talent fee for each talent agreement, to wit: “21.3 Christian Cabaluna_et_al.,_were being paid of their salaries based on the number of work assignments given to them by petitioners. Thus, the more assignments ive the _hi would __bs the corresponding salary. Some of them were assigned to more than one program (such as Imbestigador and Kapuson Mo Jessica Soho) and they would get a higher salary than those assigned to one program only (such as Imbestigador). Otherwise put, the salary of Christian Cabaluna et al., was based on their output, which is akin to a piece-rate regular employee.” (Underscoring and emphasis supplied) This only further shows that Respondents are independent contractors and affirms the position of Petitioners from the start as supported by the myriad of evidence on record which cannot simply be denied by Respondents but which the Honorable Court of Appeals turned a blind eye to. 4732.3 As discussed above, this important piece of fact which Was accorded Respondents by Petitioner GMA was never disclosed by Respondents in listing down their salaries, not considered by Labor Arbiter Gayaman when he presented the table of talent fees of Respondents in page 5 to 8 of his Decision Nor taken into account even by the NLRC in page 7 to 12 of its Decision despite being highlighted and pointed out in Petitioners Notice of Appeal with Memorandum of Appeal dated July 3, 2015 and in Petitioners’ Reply dated December 9, 2014 before the Labor Arbiter. This glaring fact alone should have clearly and easily debunked the idea of regular fe employment but the Labor Arbiter and NLRC turned a blind x i to the same (which appears truly questionable) for reasons only known to them. 7.33 In addition, the wording and intention of the Talent ement_on the payment of talent fees for the services of Respondents is clear and leave no doubt for construction, Had the Parties truly meant for the payment to be termed as “salaries” or “wages” they would have done so or Respondents would have _ Contested and insisted on the same in years past as they have allegedly been with Petitioner GMA for long years now. Instead they ) Kept mum about it because the clear intention was really to term “talent fees” as such because Respondents believed themselves to be _ _falents and not employees of Petitioner GMA for the longest time. 7331 To reiterate, the talent fee is the amount which ondents, because of their unique skill, expertise and talent, d and/or demand from network stations, like GMA, for their services. © aid or received fo or_week without ‘ence_or sultants who receive fees as lawyers who by virtue m perform legal work orgive legal advice for th a likewise be considered ecient and are paid for the same should i : Ployees of the client. Such situati following the basis of the argument by the NERe and the Honorable Court of Appeals does not make sense ane ihe Conorable 7.34, . ; criteria is nowbst is_more_in_keeping with the second erfornied bey uly the payment of money for servic ayment ond ne the surrounding circumstances for the agree: the nature ar ug 2Beement of the parties thereof as well as Sonza ‘ngagement which are factors which the case took consideration of. 7.35 Neither do the payslipst submitted by Respondents work to prove employer-employee relationship as concluded by the Honorable Court of Appeals in the basis for the Assailed Decision, The _payslips are merely informative and to document payments made to and received by Respondents in accordance with the talent agreements and not to serve any other purpose. 7.36 In fact, a close perusal of the payslips would necessarily sl how the absence of an employer-employee relationship and advance that of an independent contractor relationship. 7.36.1 |THE ONLY DEDUCTION IN THE PAYSLIPS IS THE WITHHOLDING TAX AT THE RATE GIVEN TO INDEPENDENT CONTRACTORS OR SELF-EMPLOYED PROFESSIONALS, as the BIR classifies them. There is no deduction for government mandated contributions such as SSS, Philhealth and Pag-ibig because Respondents are not employees of Petitioner GMA and they know this for a fact which is why there was never an issue on the deductions being made on them. 7.36.1.1 In the case of Herminio Flores vs. Funeraria Nuestro and NLRC, G.R. No. L-66890 April 15, 1988, it was held that the coverage of Social Security Law is predicated on the existence of an employer-employee relationship. Considering that it is not Petitioner GMA, but Respondent themselves _as self-employed professionals, who voluntarily _pay their _SSS contributions, further show that there is no employer- “F-BI" to “F-120a" of Annex “G” of Annex “C” (Petition for Certiorari dated March 11, 2016) 43employee relatio .:., Respondenta 2" ip_between Petitioner GMA and + This fact is undisputed and undeniable! Respondents of = fact_of voluntary _payment_by it SSS, Phithealth and = humber of ir alth and Pag-Ibig fora their empin pears. without declaring Petitioner GMA _as “hs ly shows that th Peti - mat 's that they truly believed that S olen is not their employer_and_belies an; * ‘yee relationship bet MA and Respondents, ween Petitioner 7.36.1.3 These circus i . imstances are undisputed and undeniable and should have been given weight. 7a In addition, the very Talent Agreements voluntarily and feel we red into by Respondents show that they were allowed ly negotiate with Petitioner GMA, and thereafter, offer their services to the highest bidder if nothin, b i Petitioner GMA, to wit: naming Gan Be agreed spon with “GENERAL TERMS 22. TALENT shall, upon expiration or termination of this contract, and prior to entering into negotiations for any similar agreement with any third party, negotiate exclusively and in good faith with GMA for a period of fifteen (15) days from the date of expiration of the contract. If an agreement is not reached within the fifteen (15) day period, TALENT may negotiate with third parties but shall not at anytime enter into such similar agreement without first giving GMA a period of ten (10) days from receipt of written notice from TALENT within which to match terms and conditions offered by the third party which terms and conditions may be substantiated. If GMA matches the third party offer, TALENT and GMA shall enter into a new agreement containing such terms. If GMA fails to match such offer, TALENT may enter into a new agreement with such third “4Party on such offered terms and conditions. In case the terms and conditions offered by the third party is changed prior to the expiration of the fen (10) day period from receipt of notice from TALENT, GMA shall have a Period of sever (7) days from receipt of such changed terms and conditions within which to match such changed terms and conditions. This obligation shall survive the termination or cancellation of this agreement.” 7.38 The fact that these talents, which included Respondents herein, are allowed to negotiate and offer their services to the highest bidder within a set period of time after the expiration of the Talent Agreement belies the fact that they are employees of Petitioner GMA. The unobstructed freedom to negotiate higher ind_better terms and conditions of engaj ement is more in keeping with and is a__peculiar characteristics of contracts for independent contractors/professionals whose services are assiduously sought in the industry, iii, Petitioner GMA doesnot possess the power to dismiss but may terminate the Talent Agreement upon violation by Complainants of their obligations and warranties among others and always with the observance of due process 7.39 Petitioner GMA does not have the power of dismissal over Respondents. Petitioner GMA can only terminate the talent agreements of Respondents in case of breach and with the observance of due process set forth in the talent agreement and supplements thereto. 7.40 Unfortunately, the Honorable Court of Appeals found that: “There is no denying that under the Talent Agreement, petitioner GMA has the power to discharge private respondents should it find their 45to meet its stan lependent on the \dards and the latter work failed are highly d work,” former for continued This finding leaves so much to dearly shows the Tack of legal ep ature: A.teading of the same at on al_and factual basis to support the 741 The NL of Appeals are Dee Respondents and the Honorable Court Seren made setsistent in the construction of the Talent ade their_own_ inter; retation of the Talent reements i: a rd fe rele stances to justify Respondents position and ns of the Talent Agreements altogether on other occasions that sh ; iow Respond: put independent contractors. ts are not regular employees 7.42 It must be clarified that Petitioner GMA cannot terminate the services of the talents, per se, but may, however, terminate the Talent Agreement it has entered into with Private Respondents (1) on its discretion upon 30 day notice to Private Respondents; or (2) immediately if Private Respondents commit a breach or violation of their obligations and warranties and other specific causes for the termination of the Agreement as stated in the Talent Agreements, to wit: “19. This Agreement may, at the exclusive option and discretion of GMA, be terminated at any time before the expiration of the Term upon thirty (30) days’ prior written notice to TALENT. At GMA’s sole and absolute discretion, this Agreement_may also be suspended or terminated immediately at any time for any of the following causes: (a) TALENT is found to have committed a breach of any of his or_her obligations or warranties under this contract; (b) TALENT’s erformance, efficiency, record or quality of performance, efficiency, recore or quality of work fails to meet the standards of GMA which were previously disclosed _to TALENT: (©) commission of a crime within the company premises or when. committed while assigned _outside__of _ compan remises; (d) the PROGRAM is suspended or cancelled; (e) TALENT has been 46incapacitated or discovered physically or thing which amounts to a crime, or which ints to_a crime, or which shall __ bring TALENT into disrepute, c ontempt, scandal or ridicule, or which shal reflect _unfavorably upon GMA, or which may be injurious to the success of the PROGRAM(); or (g) any circumstance or condition recognized by pertinent law or enerdence. Upon termination of this feement as provided in this paragraph, TALENT will not be entitled to receive any further talent fees.” 7.43 In fact, in Petitioner GMA’s Memorandum LAVP-2010- 182 on Guidelines on Breach of Talent Agreements dated November 18, 20108, a set procedures and guidelines was laid out in case of breach by the talent of the Talent Agreements they signed. The due Process accorded by Petitioner GMA to its talents in case of breach by the latter, even without any obligation to do so, clearly shows how good and compassionate it has been_to its talents, which include Respondents herein. 744 The issuances of various notices to explain, memorandum, notices of suspension, notices of decision* against Respondents by Petitioner GMA_only goes to show the proper exercise of the procedure set forth in Memorandum LAVP-2010-182 on Guidelines on Breach of Talent Agreements dated November 18, 2010 and does not in any way amount to the power of dismissal as part of the four-fold test of employer-employee relationship. 745 In fact, a close perusal of the notices attached by Respondents would show reference on the suspension or termination of the Talent Agreement on account of the breach and violation of the Talent Agreement or Memorandum LAVP-2010-182 on Guidelines on Breach of Talent Agreements dated November 18, 2010 committed by the Respondent concerned AND NOT on any disciplinary action directed towards the Respondent. 746 As with any contractual relations, it would be absurd to disallow termination by one party of the contract/agreement in case Annex “s” of Annex “F” of Annex “C (Petition for Certiorari dated March 11, 2016) herein, ea tofeD3 of of Aner of Amen C" (Peon fr Cerrar dated March 11 206) hr, 47breaches th ; of aia meet by the other party who no longer complies with Tact/agreement, No party can be forced to stay i tract with regi ment, No party can be forced to sI om slant theres TaPiccal obligations where the other party is not s 7 ecause to d ar former's tights, Shouse 222-8 would be a deprivation of the the progress billing of anything or complied the house. The law an terminate the contrac breach and failure of conditions of the contr: with the timeline set forth in completion of \d justice dictates that the person be allowed to t between him and the contractor for obvious the contractor to comply with the terms and h ‘act. To construe the same as the person having the power of dismissal over the contractor is absurd. Not every form of terminating the agreement or contractual relations should be construed as_a badge of employer-employee relationship especial when the wordings are clear and Jeave no room for interpretation otherwise or need for construction, otherwise or need for construction, 747 Similarly, Petitioner GMA has to have recourses in case of breaches by the Respondents of the Talent Agreements. Petitioner GMA cannot be forced into staying in the Talent Agreement or honor its obligations to the same when there are clear breaches by Respondents as indicated in the notices‘? sent to Respondents such as unauthorized use of GMA vehicle, making it appear that the photo aired on GMA was taken by Respondent but was in truth and in fact that of a rival network's personnel photo, showing portions of a script for a show on one’s Facebook page which script is supposed to be confidential information, use of a song in the material aired in GMA without seeking the required permission from the music publishing company causing a demand for damages from Petitioner GMA by the music publishing company, dishonesty, failure to deliver the proper content or service required, to name a few. 7.47.1 The observance of due process in calling the attention of Respondents as set forth in Memorandum LAVP- 2010-182 on Guidelines_on Breach of Talent Agreements dated November 18, 2010 is for the best interests of MA _is_under no Respondents herein even if Petitioner f obligation to afford them the same. i + from the foregoing that Petitioner GMA oes ot pee the power of dismissal as against Private F Tannex “G” of Annex "C* (Petition for Crtiora dated March 11,2016) herein, 09 F to F-23 of o 48Respondents and Petitioner GMA cannot simply dismiss Private Respondents for the just and authorized causes provided for under the Labor Code. Petitioner GMA may, however, terminate _the Talent Agreements under Section 19 (some Talent Agreements under Section 20) thereof in case of breach and with the observance of the procedure set forth in Mei jorandum LAVP-2010-182 on uidelines on Breach of Talent Agreements dated November 18, 2010. THIS IS THE UNDISPUTED FACTUAL FINDING SUPPORTED BY SUBSTANTIAL EVIDENCE ON THE MATTER and there is no other finding to the contrary (by the NLRC or the Honorable Court of Appeals) which will show an employer- employee relationship between Petitioner GMA and Respondents. iv. Petitioner GMA does not have the power of control over the means and methods of how Respondents performed their work except only to the results thereof. 749 As to the power of control, the Honorable Court of Appeals merely echoed the erroneous conclusions of the NLRC in its flawed interpretation of what control is and how Petitioner GMA allegedly exercises control over Respondents, to wit: “More importantly, the private respondents were subjected to the control and supervision of petitioner GMA, a fact which is regarded as the most crucial and determinative indicator of the presence or absence of an employer-employee relationship. This is known as the “control test”. It has been shown likewise that petitioner GMA has set the standards that private respondents should follow. As aptly found by the NLRC, private respondents’ Job Description contains a detailed instruction on how to accomplish their respective jobs, they must abide by the program standards and policies of petitioner GMA, they are under the supervision of a program manager, and that they were provided by petitioner GMA with supplies, materials, equipment and technical facilities needed to perform functions. These demonstrate petitioner GMA’s exercise of the power of control not only 49over the results of private respondents’ work but also over the means employed to achieve the same.” 7.50 Simply echoing the ruling of the NLRC, when the same has already been thoroughly pointed out as being contrary to law and established jurisprudence as well as in relation to the ultimate facts that are supported by substantial evidence, should not suffice to warrant a finding of empioyer-employee relationship. Unfortunately, the Honorable Court of Appeals found Petitioner GMA exercised the power of control over Private Respondents as a result of the following: a. Job Descriptions; b. General Terms of the Talent Agreements; ©. Guidelines, regulations, policies, house rules, office and procedures; and d. Memoranda or notices. 7.51 However, the Supreme Court has already pronounced in the case of Royal Homes Marketing Corporation vs. Fidel P. Alcantara et al. (G.R. No. 195190) citing the cases of Tongko v. The Manufacturers Life Insurance Co. (Phils.), Inc. (G.R. No. 167622, June 29, 2010, 622 SCRA 58) and the Sonza case that “not every form of control is indicative of employer-employee relationship. A person who performs work for another and is subjected to its rules, regulations, and code of ethics does not necessarily become an employee. As long as the level of control does not interfere with the means and methods of accomplishing the assigned tasks, the rules imposed by the hiring party on the hired party do not amount to the labor law concept of control that is indicative of employer-emplovee relationship.” 7.52 Furthermore, in in the case of Insular Life Assurance Co., Ltd. vs. NLRC (G.R. No. 84484, November 15, 1989), the Supreme Court pronounced that: “Logically, the line should be drawn between rules that merely serve as guidelines towards the achievement of the mutually desired result without dictating the means or methods to be employed in attaining it, and those that control or fix the methodology and bind or restrict the party hired to the use of such means. The first, which aim only to promote 50the result, create no employer-employee relationship unlike the second, which address both the result and the means used to achieve it, xxx” 7.53 In the Royale Homes case, the Supreme Court found that the rules, regulations, code of ethics, and periodic evaluation alluded to do not involve control over the means and methods by which complainant was to perform his job. The Supreme Court went further to state that: “Understandably, Royale Homes has to fix the Price, impose requirements on prospective buyers, and lay down the terms and conditions of the sale, including the mode of payment, which the independent contractors must follow. It is also necessary for Royale Homes to allocate its inventories among its independent contractors, determine who has priority in selling the same, grant commission or allowance based on predetermined criteria, and regularly monitor the result of their marketing and sales efforts. But to the mind of this Court, these do_not pertain to the means and methods of how Alcantara was to perform and__accomplish his task _ of soliciting sales. They do not dictate upon him the details of how he would solicit sales or the manner as to how he would transact business with prospective clients. __In Tongko, this Court held that guidelines or rules and regulations that do not pertain to the means or methods to_be employed in attaining the result are not indicative of control as understood in labor law. Thus: From jurisprudence, an important lesson that the first Insular Lifecase teaches us is that a commitment to abide by the rules and regulations of an_insurance company does not ipso facto make the insurance agent an employee. Neither do guidelines somehow restrictive of the insurance agent's conduct SLnecessarily indicate "control" as this term is defined _in jurisprudence. Guidelines indicative of labor law “control,” as the first Insular Lifecase tells us, should not_merel relate_to_ the mutuall desirable _ result intended by the contractual relationship; they must have the nature of dictating the means or methods to be employed in attaining the result, or of fixing the methodology and of binding or restricting the party hired to the use of these means. In fact, results-wise, the principal can impose production quotas and can determine how many agents, with specific territories, ought to be employed to achieve the company’s objectives. These are management policy decisions that the labor law element of contro! cannot reach. Our Tuling in these respects in the first Insular Life case was practically reiterated in Carungcong. Thus, as will be shown more fully below, Manulife's codes of conduct, all of which do not intrude into the insurance agents’ means and manner of conducting their sales and only control them as to the desired results and Insurance Code norms, cannot be used as basis for a finding that the labor law concept of control existed between Manulife and Tongko.” (Underscoring and —_ emphasis supplied) 7.54 Thus, it is clear that the guidelines, house rules, policies and office procedures as relied upon to prove control by Petitioner GMA do not have legal basis and run contrary to accepted jurisprudence on the matter. 7.55 Neither do the Memoranda and notices issued as a result of the procedures for termination of the Talent Agreements due to breach have a leg to stand on for the very same reasons cited in the Royal Homes, Tongko, Insular Life and Sonza cases. 7.56 The provisions of the Talent Agreements of Respondents | being used by the NLRC and echoed by the Honorable Court of _ Appeals as proving control must necessarily fail as these do not show 52how these matters Respondents were t. to wit: 80 into the very means and methods of how 'o do their work and for clearly obvious reasons, a. TALENT shail attend every production of the PROGRAM), including rehearsals, recordings, tapings, pre- and post. Production sessions and meetings, according to such Schedules as may be set by GMA. TALENT's services may also be required for other production, merchandising or Promotional purposes and for other special projects of GMA outside of the PROGRAM(s) with no additional compensation, subject to the TALENT’s availability. (Section 5) - If there were no such requirements upon Respondents, how can there be a show or program to air? It has been the Position of Petitioners that Respondents are responsible for the show which required their unique skill to put together. If they were not to show up, nothing could be produced, recorded and taped. In short, there can be no show if Respondents fail to deliver the content and Respondents were not to come together at a set time to make it happen. If there was no show then Respondents would have ultimately failed to deliver the service they had agreed to perform to Petitioner GMA based on the Talent Agreements. b. TALENT will abide by the program standards, policies rules and regulations of GMA (insofar as they cover talents) including the GMA News and Public Affairs Ethics and Editorial Manual, xxx. TALENT shall be under the direct supervision of the assigned Program Manager. (Section 11) ~ As already exhaustively discussed above in relation to the Royal Homes, Tongko, Insular Life and Sonza cases. 7.57 Neither is there any basis in fact and law in the findings of the NLRC as echoed by the Honorable Court of Appeals in the Assailed Decision that Private Respondents’ “Job Descriptions contain a detailed instruction on how each of them should accomplish their jobs” which thus show control on the part of Petitioner GMA. IN FACT, SAVE FOR THIS STATEMENT, IT WAS NOT EVEN EXPLAINED OR CORRELATED HOW THERE IS CONTROL OR AT LEAST CORRELATE THE JOB DESCRIPTION OF RESPONDENTS _WITH_ _THE__CASES | EXPLAINING CONTROL, THIS SWEEPING AND GENERAL STATEMENT/PRONOUNCEMENT__ BY __THE HONORABLE 53COURT OF APPEALS WITHOUT EXPLAINING THE BASIS AND CIRCUMSTANCES THEREOF TO SUBSTANTIATE THE SAID STATEMENT/PRONOUNCEMENT is a serious reversible error which if not corrected will cause undue damage and injury to Petitioners. 7.56.1 Take for example the job description of the talent, Lorna G. Bayani, who had already withdrawn from the herein case as early as December 22, 2014, or six (6) months prior_to_the issuance by Labor Arbiter Gayaman of his Decision. Her job description was questionably cited by the Labor Arbiter Gayaman as the only example whereby Petitioner GMA shows control in her job description without 4 actually explaining how there is control. Her job description is, as follows: . Report directly to the executive producer; . Prepare and submit story concept/outline; . Act as team leader during coverage/shoots; . Shoot, write, edit and facilitate mastering of assigned story/segment; . Brief the whole team including the crew of the story; . Inform the production coordinator and the crew of the required equipment for the shoot; . Inform host's office of schedule of shoot/appearance; . Preview time-coding and shot-listing of video materials before writing; i. Directly inform video researcher for in-house and give video request by Tuesday; j- Directly inform production assistant for pick-up of videos/movies outside GMA or from strangers; . Inform the researcher to make video/music/movie request for permit to air; . Pick-up written materials, documents, props to be used after shoot /coverage; Meet the script deadline and present during script checking; , During editing, responsible for digitizing, time coding video materials, edit supervises his/her segment and makes sure that revisions are completely followed; . Relay and discuss story treatment with researcher and crew (who are also talents);P. Submission of expenses to logistics head not more than 3 days after the out of town coverage; 4: Expects to be on call for emergency /breaking story coverage; and 1. Submit story outline to the executive producer. Clearly, (b) to (0) above, shows that discretion and control over the means and methods belong solely to Lorna G. Bayani as segment producer/program researcher. In fact, nowhere therein is it shown that Petitioner GMA participated thereat. To put it clearly, how does ing/submitting story outline/concept; acting as team leader during coverage shoots; shoot, write, edit, facilitate mastering of assigned story/segment etc. show control by Petitioner GMA when itis Lorna G. Bayani, who, using her unique skill and talent formulates these things? THERE IS. SIMPLY NO CONTROL HERE! While (a) and (r) shows that Lorna G. Bayani has to report and submit the story outline to the executive producer, this is only for the purpose of making sure that the material is the result desired to be shown by Petitioner GMA and the material does not contravene the applicable laws and/or delete any inappropriate scenes or language which are restricted by existing laws to be aired on television. Nothing therein shows that Petitioner GMA controls the means and methods in Private Respondents performance of their work but is again solely focused on the results As for (p), it is a matter of procedure in liquidating expenses and is a post-result act which does not affect the means and methods which Private Respondents perform their work. For (q), being on call for emergency/breaking news does not show _control_over_the means and methods of how the said emergency/breaking news will be reported and_presented. It just shows the exigencies and requirements of Private Respondents’ engagement. 7.56.2 Taking another example, Christian Bochee M. Cabaluna. His job description is as follows: a. Reserves bays and assigns editors; b. Supervises the over-all editing /post production phase; c. Reports details to EP on BPO for the editors he assigned; 55p |. In-charge of editing schedules including plugs; © Supervises editing of the episode according to Program’s standards; . Gives Creative input in the production of graphic requirements; Documents concerns in editing and reports these to the EP for immediate resolution; . Suggests ideas/system for an improved editing Process; - Provides inputs during mastering and dub-out; j- Complies with network department and program policies and deadlines. ® Except for (c), part of (g) and (j), it is clear that the means and methods of how he is to perform his functions are left solely to him. There is absolutely no participation from Petitioner GMA on how he suggests ideas, provides inputs during mastering and dub-out, gives creative input_in_ production or graphic requirements, supervises the over-all editing/post production phase and editing of episodes and when he sets the editing schedules and plug-ins. It was for his unique skill and expertise in the same that Petitioner GMA engaged his services. For (c) and part of (g) on the reporting to EP, this is only for the purpose of making sure that the material is the result desired to be shown by Petitioner GMA and the material does not contravene the applicable laws and/or delete any inappropriate scenes or language which are restricted by existing laws to be aired on television. Nothing therein shows that Petitioner GMA controls the means and methods in Private Respondents performance of their work but is again solely focused on the resul For (j) it is clear already from the cases of Royal Homes, Tongko, Insular Life and Sonza that policies are not part of what is meant by control as this has nothing to do with the method and means on how the desired results are accomplished. 7.57.3. These very same observations will be made in the job descriptions for the other Respondents. All of which will show that Respondents have much leeway to perform their duties and obligations under their respective talent agreements which requires the use of their unique skill and talent in conceptualizing the show, script, ideas and the like; and, if anycontrol is exercised by Petitioner GMA is only as to the desired results, 7.58 Interestingly and similar to the Decision of Labor Arbiter Gayaman_and the NLRC, the Assailed Decision of the Honorable Court of Appeals did not bother to explain or mention how citing the job description and functions show that Petitioner GMA controls the means and methods by which Respondents performs their work. Because, the truth of the matter is, PETITIONER GMA DOES NOT EXERCISE THE POWER OF CONTROL OVER RESPONDENTS AS REQUIRED UNDER THE FOUR-FOLD TEST TO SHOW EMPLOYER-EMPLOYEE RELATIONSHIP! It is as apples were equated to oranges without saying why they are the same even if it is clear from the very comparison that it does not follow or make sense at all. 7.59 It_bears stressing that Respondents’ services were engaged by Petitioner GMA because of their unique skills, talents and expertise in their specific field. Thus, Respondents are given much authority on how they will execute or perform the job for which they are contracted for. 7.60 It is the peculiar qualities of Respondents that fuel the ideas and the manner and method of execution to concretize these ideas and come up with the type of shows Petitioner GMA has engaged them for. How Respondents perform their work is outside the Petitioner GMA‘s control. 7.61 Petitioner GMA was not involved in the actual performance that produced the finished product of Respondents’ work, Petitioner GMA’s only concern is the desired results. Admittedly, Petitioner GMA does not have the personnel who has the expertise, technical capability to execute the methods and manner to. accomplish the job contracted out to Respondents. This is the reason why Petitioner GMA contracted Respondents. This makes it improbable for Petitioner GMA to technically exercise control over the performance of the work except for the quality of the results. 7.62 Respondents are merely given guidelines as to what Petitioner GMA wants the respective shows to be and the awareness it gives to the public. It is up to Respondents, using their unique skills, expertise and talents to bring these shows to life by supplying the content for the shows. ik 27.63 Unlike the general statements of control by the NLRC as echoed by the Honorable Court of Appeals, Petitioners have clearly shown and dissected what is actually being done by Respondents based on the evidence presented and the ultimate facts and circumstances availing of the herein case to show that indeed Petitioner GMA does not exercise control over the means and methods of how Respondents do their work but only as to the desired results. 7.64 If there is any level of control or supervision exercised by Petitioner GMA, it is to make sure that what is performed by Respondents do not contravene the applicable laws and/or delete any inappropriate scenes or language which may be restricted by existing laws to be aired on television. This, however, does not affect the fact that they are independent contractors as held in the Sonza case citing Vaughan, et al. vs. Warner, et al. (157 F.2d 26, 8 August 1946) where “the United States Circuit Court _of Appeals ruled_that vaudeville performers_were independent contractors although the management reserved the right to delete objectionable features in their shows. Since the management did not have control over the manner of performance of the skills of the artists, it could only contro] the result of the work by deleting objectionable features.” 7.65 Given that Respondents were hired as talents precisely because of their unique/special skills, talent and expertise in the different areas of program production in which Petitioner GMA has no skill and expertise, it will be foolhardy for Petitioner GMA to control and tell these talents how they should perform the job/work for which they were contracted. 7.66 As to the use of Petitioner GMA’s office equipment, supplies, transportation and materials they needed for the production of the program and that GMA paid for all the incidental expenses stated in Respondents’ individual affidavits which are pre- drafted, self-serving and misleading to prove control, Respondents failed to attach any documents or pieces of evidences to support these statements or corroborate their affidavits. The office, equipment and supplies, transportation and_materials needed_for_production have nothing to do with the means and methods of how they come up with the ideas, inputs and creative visions to achieve the desired results which are the reason why they were engaged by Petitioner GMA. If anything, the materials, transportation, equipment only help 58facilitate how the work is to be done and neither has Petitioner any control over how they will use these tools to come up with the desired results so long as the policies and guidelines of Petitioner GMA in relation to these, if there are any, are complied with, 7.67 In addition, Respondents, in performing their duties and obligations under their respective talent agreements are not subjected to definite hours or conditions of work. This fact is undeniable, And, in the case of Investment Planning Corporation of the Philippines vs. Social Security System (G.R. No. L-19124, November 18, 1967) as cited in the landmark case of Singer Sewing Machine Company vs. Hon. Franklin M. Drilon et al.#, the Supreme Court ruled that where a person is not subjected to definite hours or conditions of work, it is indicative of an absence of an employer-employee relationship, to wit: “The logic of the situation indeed dictates that where the element of control is absent; where a person who works for another does so more or less at his own pleasure and is not subject to definite hours or conditions of work, and in turn is compensated according to the result of his efforts and not the amount thereof, we should not find that the relationship of employer and employee __ exists.” (Underscoring and emphasis supplied) 7.68 Similar to the Orozco Case, the present case clearly shows that Respondent had a free hand on how to produce the themed content to be aired in Petitioner GMA, they performed their work at their own time and convenience for as long as they are able to deliver at the designated airing date of their respective shows. 7.68.1 For shows such as lnbestigador, Kapuso Mo, Jessica Soho, Reporter's Notebook, Aha!, Reeltime, I Juander, Wagas, Brigada, Tunay na Buhay, Motorcycle Diaries, Front Row, Good News, Sumbungan ng Bayan, Born To Be Wild, Private Respondents who perform their services for these shows are given full control of what content they would like to be aired, Respondents are merely given guidelines as to the purpose of what these shows will cater to but it is ultimately Respondents who actually look for stories and exposés based on the “GR.No, 91307, January 24, 1991 i. 59guidelines. Petitioner GMA do not_have_personnel_who actually supervise and accompany Respondents _as_ they research, hunt_and_shoot these stories and _exposés. Respondents are given discretion and absolute freedom to look for these stories and get into the very heart of them. It is likewise Respondents who formulate the questions, do the research, decide how best to present these stories to the viewers, capture the right angles and responses to fully show forth the full stories and exposés. Respondents _use_their creative and technical talents, skills, ingenuity and expertise to come up with the contents for these shows. 7.68.2 For talk shows such as Tonight with Arnold Clavio and Power House, Respondents research on the latest trends and topics and decide as to which persons to guest on the show to address these trends and topics. Respondents likewise formulate the scripts for the host as well as the flow of the program and how it will be presented to the viewing public. Petitioner GMA‘s role is only to make sure that the content is not in violation of MTRCB cules and other applicable laws and that the desired results for the show are met. 7.68.3 For SONA, News to Go, QRT, Balita Pilipinas Ngayon and Unang Hirit which are based on real time news and what is happening in the country, Respondents likewise do not have supervision from Petitioner GMA. Petitioner GMA does not go with Respondents to the places where the news happen real time. Respondents are merely given guidelines on how the news will be shown but as to the content of these real time news, it is Respondents who make sure they are aware of the same and capture the event realistically _and_ truthfully. Respondents supply the news anchors with the news to be reported as well as the script for the same. Respondents have crafted each news show to _be unique from one another and distinguishable from other news programs of Petitioner GMA, reaching out to different viewers and gaining followers for each type of news program. 7.68.4 Moreover, in all these shows, Respondents worked with minimal supervision from Petitioner GMA. When Respondents make reports and documentaries for the various shows, they themselves go on site as a team without any supervision or control from Petitioner GMA and any of its 60personnel. Respondents are given a free hand on how they would conduct the documentary, exposés and news on their own time as well as how best they can deliver the message of the documentary and/or various show in the news and public affairs scene to the public. 7.68.5 Interestingly, the Supreme Court applied the Sonza Case to the Orozco Case even as Orozco was not an on-cam talent. It is thus clear that the application of the parameters laid down in the landmark case of Sonza on talents is applicable depending on the circumstances of each case. In the cases cited in the Assailed Decision which found that Respondents were employees and not independent contractors, clearly the Sonza case was not applicable as the complainants therein did not possess unique skills, talent and expertise, command high talent fees and were under the control and supervision of the network. 7.69 Allin all, the Honorable Court of Appeals in its Assailed Decision which merely echoed that of the NLRC, has NOT cited a specific _valid instance based on acceptable _and_ established jurisprudence which will explicitly say the same was tantamount to control. The supposed instances cited in the Assailed Decision to support a finding of control has already been clearly declared by the numerous jurisprudence cited above AS NOT CONSTITUTIVE OF CONTROL. 7.69.1 On the other hand, this case is replete with instances which were not refuted or contested by Respondents even in their counter-statements of facts that negate the element of control and the existence of employer-employee relationship. Notabl Respondents were _not required to observe definite working hours, some of whom work as low as less than 2 hours a day, and were free to work at their own time for as long as they are able to perform their duties and obligations and deliver the desired results; (2) The taxes withheld from Respondents by Petitioner for the longest time were at a lower rate for independent contractors or as the BIR terms it, self-employed professionals instead _of that for employees; (3) Respondents are_not part of the payroll of Petitioner GMA; (4) Respondents, for the longest time, are registered as self-employed in the SSS, Philhealth and Pag- ibig and _are voluntarily paying for these; (5) Respondents who knowingly entered into the Talent Agreements 61knowingly declared that the relationship between them and Petitioner GMA is one of independent contractorship; (6) Respondents acknowledged in the Talent Agreements which the necessary work permits and paying any professional taxes or fees required by law clearly distinguishing themselves from_regular_employees who need_only to_apply with Petitioner GMA and have the latter withhold the required amount of taxes as these are considered compensation income which are withheld by the employer; and (7) Respondents have full and absolute freedom _and_discretion_to_actually decline work, shows or projects which Petitioner GMA may have but are not part of the Talent_Agreements_which Respondents signed which they could not do if they were employees. 7.70 As such, even on the control test, the basis cited by the Honorable Court of Appeals to support a finding that Petitioner GMA has control over Respondents has absolutely no basis in law, jurisprudence and the ultimate facts of the case. It cannot likewise be said that there is ANY sort of substantial evidence on record which will support this! It is clear that Respondents decide by themselves on the means and methods to achieve the desired results of Petitioner GMA. 7.71 In finding the inapplicability of the Sonza Case, this Honorable Court ruled that: “Parallels cannot be expediently drawn between this case and the Sonza case. The latter case involved a well-known television and radio personality who was considered a talent and amply compensated as such. While possessed of skills for which they were modestly recompensed by petitioner GMA, private respondents lay no claim to fame or unique talents for which talents like actors and personalities are hired and generally compensated in the broadcast industry.” 7.72. With all due respect, this Honorable Court appears to be | Temiss of the fact that the nr Court in the Sonza case did not istinguish between on cam talents and off cam talents, Being the 62landmark case of talents and of first impression, the Sovtza case was heavily supported by American jurisprudence which had ong line of cases dealing with talents in the broadcast industry. There was likewise no distinction made in these cases, 773 Instead, what the Sonza Case did was to lay down the parame ers ‘on how one may be considered a talent, which is an independent contractor, as opposed to a regular employee, to wit: a. In possession of unique skill, talent and celebrity status that the network would have entered into an agreement with him rather than having him be hired by the Personnel department; b. Paid high talent fees (because he/she is able to command such) as opposed to that given to the regular employee of the same position; ¢. The relationship between the network and the talent can only be terminated for breach of contract; and d. The network does not have control over how the talent performs his/her work so long as the results needed of him are met, which is the most important _test_to determine. 7.74 As exhaustively discussed above, these parameters are availing in the present case thereby clearly and without a shadow of a doubt classifying Respondents he: as independent contractors and not employees of Petitioner GMA. 7.75 The Honorable Court of Appeals likewise erroneously downplayed the modest compensation being received by Private Respondents when it acknowledged in the discussion on the Payment of wages in the four-fold test that the same was “considerably higher”. The substantial evidence in the form of Talent Agreements in the herein case, wherein some Private Respondents have several agreements at a given time thus leading to receipt of aggregate talent fees as high as P84,000.00 a month, cannot be denied and turned a blind eye on. This cannot definitely be said as modest compensation. 637.76 Neither is suddenly downplaying the skillset of Respondents just to remove them from the ambit of the definition of talents which are possessed of unique skills and talents. Petitioners acknowledge that Respondents are in possession of unique skills and talents and Respondents even boasted having been responsible for the several awards of Petitioner GMA in the US International Film and Video Festival to the excellent work they have done in the different programs. It is serious error now to deviate from this fact and downplay Respondents’ capabilities just so they can be classified as employees. 7.77 The citation by the Honorable Court_of Appeals_of jurisprudence to support Respondents’ claim_will_not_cure_the inapplicability of the same to the ultimate facts and circumstances surrounding the present case as supported by substantial evidence. ‘The pronouncements in the cited case considered the “talents” as regular employees but such was not a blanket consideration by the Supreme Court. The Supreme Court made such pronouncements relative only to the facts surrounding the aforementioned cases which circumstances are not attendant to the case at bar and to Respondents as exhaustively discussed and explained above. a. In ABS-CBN Broadcasting Corporation vs. Nazareno et al. (G.R. No. 164156, September 26, 2006), the complainants therein were merely production assistants (PAs). These individuals do not possess any unigue skill or talent to qualify them as independent contractors_in_accordance with the Sonza case. Respondents in the present case are creative talents who have unique skills and expertise. In ABS-CBN Broadcasting Corporation vs. Marquez (G.R. No. 167638): . the complainants therein were hired as project employees as opposed to the herein case where Complainants were engaged as independent contractors as clearly stated above and in their Talent Agreements; the complainants in the aforementioned case were to undertake production in Cebuano dialect_of television serial programs, which already has a set 64theme already done by ABS-CBN, for ABS-CBN’s week day afternoon time slot in Cebu as opposed to the herein case where Respondents were engaged to produce, research, and basically come up with the whole content of various programs under the news and public affairs such as stories, exposés, trends, talk show and on-the-spot news where they are required to go out of their way and in the field, without_any supervision whatsoever from Petitioner GMA, to get the stories, exposés, trends, talk show and on-the-spot news; iii. the complainants in the aforementioned case were given a weekly budget aside from their pay and actual payslips as oppose to the herein case where Respondents were individually given talent fees in accordance with the Talent Agreements; iv. the complainants in the aforementioned case were under the control and supervision of ABS-CBN‘s production supervisor as opposed to the herein case where Respondents were not under the control and supervision of Petitioner GMA when they formulate, produce and __research_on__stories, exposés, trends, talk show and on-the-spot news which they mostly do so in the field where no personnel or supervisor from Petitioner GMA oversees; v. the complainants in the aforementioned case can have the work re-done as oppose to the herein case where as previously stated, Petitioner GMA can only give guidelines as to what will be done and make sure that the content produced conforms with the restrictions of the law; and vi. the complainants in the aforementioned case can be dismissed or suspended by ABS-CBN in accordance with the company rules as opposed to the herein case where Petitioner GMA can terminate or suspend the Talent Agreements for violation of the same as stated in the grounds set forth in the Talent Agreement. 65©. In Begino, et al. vs. ABS-CBN Corporation (G. , Us. -R. No, 199166, April 20, 2015): ° i, the complainants in the aforementioned case were Teporters and cameramen while Respondents are creative talent with unique skills, talents and expertise; ii. the projects/programs where complainants were assigned to had a budget for which their fees were to be fit in and they received fees lower than those of the regular rank and file employees of ABS-CBN while Respondents herein are creative talents who possess unique skills, talents and expertise and are engaged to produce, research, and basically come up with the whole content of various programs under the news and public affairs such as stories, exposés, trends, talk show and on-the-spot news where they are required to go out of their way and in the field, without any supervision whatsoever from Petitioner GMA, to get the stories, exposés, trends, talk show and on-the-spot news and as such are_paid talent fees above and beyond regular employees of Petitioner GMA with some receiving higher than VP positions of Petitioner GMA; iii. the complainants in the aforementioned case did not_appear_to_be allowed _to_be _engaged_in numerous _agr he_same_time_an: restricted only to the project while in the present case, Respondents were allowed multiple talent agreements at the same time thus resulting to high aggregate talent fees; iv. the complainants in the aforementioned case were under the control and supervision of ABS-CBN’s production supervisor as oppose to the herein case where Respondents were not under the control and supervision of Petitioner GMA when they formulate, produce_and_research on _ stories, exposés, trends, talk show and on-the-spot news 66Which they mostly do so in the field where no Personnel or Supervisor from Petitioner GMA oversees; < : MOST IMPORTANTLY, a perusal of the Assailed ecision would show that the tuling by the Honorable Court of Appeals was patterned and Paralleled with the ruling of the aforementioned case without much distinction and with only a few Tewording DESPITE THE CLEAR VARIANCE IN THE FACTS OF THE AFOREMENTIONED CASE WITH THE PRESENT CASE; This should not be how simple the Honorable court of eals should have evaluated such a Marquee case which may shape the lives of many and the broadcast industry as a whole; d. In Dumpit-Murillo vs. Court of Appeals (G.R. No. 164652, June 8, 2007): i, Interestingly, the case herein involves a complainant who is a newscaster and co-anchor similar to the Sonza Case except that complainant receives a meager salary and not the considerably high salary in the Sonza Case as opposed to the herein case where the considerably high salaries of Respondents are clearly substantiated; i. the complainant in the aforementioned case did not appear to be allowed to be engaged in numerous agreements at the same time and restricted only to the program Balitang-Balita while in the present case, Respondents were allowed multiple talent agreements at the same time thus resulting to high aggregate talent fees; 7.78 It must be emphasized that this is not a case where there is oppression of the weak and defenseless, where the employer “circumyented the law to deprive the employees what is due them, _ NO! Neither is this a numbers’ game where people sought the legal tribunals echoing the same sentiments of injustice and deprivation to the sentiments of lady justice, NO! 677.79 7-78.1Respondents here, totaling 96 individuals, (a) Were well compensated for their services and_in_ fact borne by the records and cannot be denied), (b) received multiple contracts at_a given time for different shows, allowing them to receive talent fees per Talent Agreement which results in_a very high compensation (some_of whom already equal or are close to what the Vice lower rates of withholding taxes for self-employed professionals/independent contractors; (d) performed Services_in lesser numberof hours depending on completion of their service/obligation and time of their program as well as no time in and time out; (e) possessed the bargaining power as to the rate of the talent fees during expiration of the Talent Agreements and prior to renewal and freedom to explore other engagements after the expiration of their Talent Agreements with the option for Petitioner GMA to match whatever offer they were able to secure outside if Petitioner GMA wanted to retain them (Paragraph 22 of the General Terms and Condition of the Talent Agreements); and (f) possessed the freedom to enter other engagements outside of Petitioner GMA, during the existence or period of the Talent Agreements, with its prior consent which was never unreasonably withheld. In view of the foregoing, it is crystal clear that from the application of the four-fold test to determine employer- employee relationship, the Honorable Court of Appeals seriously erred in the Assailed Decision when it ruled that Respondents are regular employees of Petitioner GMA. C RESPONDENTS ARE INDEPENDENT CONTRACTORS OR IN THE ALTERNATIVE, FIXED-TERM EMPLOYEES. 68i, _ Respondent. i i Ss are independ contractors as borne by the ‘Wlinere {facts of the herein case ang supported by substantial evidence on record and applicable jurisprudence. 78 own erbondents are not employees of Petitioner GMA (as 8 Spo SSO" above on the four-fold test to determine employer-employee relationship) but simply “talents” who are considered as independent contirecton, . 781 It_is_undisputed that Respondents are “talents”. Talents” are people with uni i ¢ Pare given field or line of work which distinguishes them from ordinary employees, The skills, expertise and talents they possess are not available or acquired on-the-job. Owing to the uniqueness _of talents”, they are considered a class of their own, It is common knowledge that they are sought after in the entertainment, televisic and broadcast industry, where their engagement is widespread and accepted _as industry practice. It is likewise due to this peculiar qualities that “talents” are able to command and/or demand extravagantly high talent fees which is unmistakably higher and beyond the average salary paid an ordinary employee. 7.82 This is the position of Petitioners from the onset. Even Respondents recognized and confirmed that they are talents as shown by their own acts and admissions, as follows: a. Signing and agreeing to numerous and successive Talent Agreements for which they are designated as such; b. Receiving extremely high “Talent Fees” for their services; c. Formation by Complainants of a group called Talents Association of GMA and reference to themselves as “talents” in various interviews‘ and social media; and Reference to themselves as “talents” in their Position Paper dated November 10, 2014, as follows: ‘ight-against-unfsir-labor-practice/; filers jobless ; Loe ater-lpraice stand. ‘ph/news/4567 /gma-networ tion-complaint-vs-gma 69i “During the recent US international Film and Video Festival, GMA-7 was given several awards in recognition of the excellent work that its employees (talents) have done in its different programs. xxx" (Par, 1, Page 1, Prefatory Statement of Complainants’ Position Paper); and i, “Ironically, the employees (talents), who at one instance, were being recognized for their excellent work are now before this Honorable Office seeking recognition from respondents as regular employees xxx" (Par. 2, Page 1, Prefatory Statement of Complainants’ Position Paper). 783 As a result of these prior, contemporaneous and subsequent acts of Private Respondents, they are clearly considered as talents. 7.84 And, the landmark case on talents of Jose Y. Sonza vs. ABS-CBN Broadcasting Corporation (G.R. No. 138051, June 10, 2004) clearly and concisely laid down the rule that “talents” are not employees but instead are independent contractors, to wit: “The _present controversy is one of first impression. Although Philippine labor laws and jurisprudence define clearly the elements of an mployer-employee telationship, this is the first time that the Court will resolve the nature of the relationship between a television and radio station and one of its “talents”. Xxx The right of labor to security of tenure as guaranteed in the Constitution arises only if there is an employer-employee relationship under labor laws. Not every performance of services for a fee creates an employer- employee relationship. To hold that every person who renders services to another for a fee is an employee - to give meaning to the 70security of tenure clause - will lead to absurd results Individuals with special skills, expertise or falent_enjoy the freedom to_offer_their services _as independent contractors. The right to life and livelihood guarantees this freedom to contract. as independent contractors. The right of labor to security of tenure cannot operate to deprive an individual, possessed with special skills, expertise and talent, of his right to contract as an independent contractor. An individual like an artist or talent has a right to render his services without any one controlling the means and methods by which he performs his art or craft. This Court will not interpret the right of labor to security of tenure to compel artists and talents to render their services only _as employees. If radio and television program hosts can render their services only as employees, the station owners and managers can dictate to the radio and television hosts what they say in their shows. This is not conducive to freedom of the press.” (Underscoring and — emphasis supplied) 7.85 The Sonza case did not distinguish between on cam talents and off cam talents and instead laid down the parameters on how one may be considered a talent, which is an independent contractor, as opposed to a regular employee, to wit: Possession of unique skill, talent and celebrity status that the network would have entered into an agreement with him rather than having him be hired by the personnel department; Paid high talent fees (because he/she is able to command such) as opposed to that given to the regular employee of the same position; nec. The relationship between the network and the talent can only be terminated for breach of contract; and d. The network does not have control over how the talent performs his/her work so long as the results needed of him are met, which is the most_important_test_to determine. These criteria are the determinative factors which clearly show that Respondents are independent contractors and not regular employees of Petitioner GMA pursuant to the ultimate facts surrounding the present case as supported by the evidence on record. 7.86 A close scrutiny of the four-fold test pursuant to the Sonza case in relation to the circumstances surrounding the herein case as exhaustively discussed above would necessarily show the absence of an employer-employee relationship between Petitioner GMA and Respondents. 7.87 In the herein case, both contending parties concur that Respondents are “talents”. Thus, there is no reason to depart from the ruling of the Supreme Court classifying them as independent contractors. 7.88 In fact, in the very Talent Agreements which Respondents freely and voluntarily entered into with Respondent GMA, Respondents themselves not only clearly and unequivocally declared and_ recognized themselves to be independent contractors but also acknowledged that they are not entitled to rights and benefits granted to regular employees, to wit: “GENERAL TERMS 23. This Contract does not establish an employer-employee relationship between GMA and TALENT. TALENT agrees that as an independent contractor, TALENT is not entitled to any rights and benefits granted to regular employees of GMA other than those specifically provided herein.” (Underscoring and emphasis supplied) nR7.89 Moreover, Respondents cannot feign ignorance of the fact what their tax due on their talent fees have been withheld in iccordance with the rates set forth by the BIR for srofessionals/independent contractors as opposed to the rate of withholding tax for regular employees. 7.89.1 This is further supported by the fact that from the time Respondents entered into their respective Talent Agreements with Petitioner GMA, they were already required to make a sworn affidavit of their current gross income from all sources pursuant to BIR Revenue Regulation No. 12 Series of 2001 which concerns withholding taxes on recipients of talent fees, to wit: “GENERAL TERMS 2 In accordance with BIR Regulation No. 12 Series of 2001, TALENT shall submit to GMA. a sworn affidavit of declaration of his/her current year’s gross income from all sources in order to determine his/her rate of the appropriate withholding tax. Should TALENT fail to do so, GMA shall withhold 15% of the talent fees, pursuant to the said BIR Regulation.” 7.89.2 Also, in the same Talent Agreements, Respondents acknowledged responsibility for securing the necessary work permits and paying any professional taxes or fees required by law clearly distinguishing themselves from regular employees who need only to apply with Petitioner GMA and have the latter withhold the required amount of taxes as these are considered compensation income which are withheld by the employer. The pertinent provision common to all the Talent Agreements is, as follows: “GENERAL TERMS 13, It is the responsibility of TALENT to secure all the necessary work permits and pay any professional taxes of fees which may be 3required by law or city ordinance, and submit to GMA proof of compliance.” 7.89 Another indication that Respondents are independent contractors is the fact that they are not required to work for certain number of hours or to punch in and out using a timecard. They are free to work at their pleasure or depending on the requirement of the show for which they are engaged. Some even work for less than two hours a day. Regardless, however, of how long they work, they are still paid the same talent fees as stipulated in the Talent Agreements. 7.89.1 In the case of Investment Planning Corporation of the Philippines vs. Social Security System (G.R. No. L-19124, November 18, 1967) as cited in the landmark case of Singer Sewing Machine Company vs. Hon. Franklin M. Drilon et al.*é, the Supreme Court ruled that where a person is not subjected to definite hours or conditions of work, it is indicative of an absence of an employer-employee relationship, to wit: “The logic of the situation indeed dictates that where the element of control is absent; where a person who works for another does so more or less at his own pleasure and is not subject to definite hours or conditions of work, and in turn is compensated according to the result of his efforts and_not the amount thereof, we should _not_find_that_the relationship _of employer and ___ employee _exists.” (Underscoring supplied) 7.90 In fact, to take it further, Petitioner GMA cannot force Respondents to perform additional work other than those which may be incidental or necessary to their engagement. Private Respondents have full and absolute freedom and discretion to actually decline work, shows or projects which Petitioner GMA may have but are not Part of the Talent Agreements which Respondents signed, Respondents have the option to choose only those shows where they will offer their services to Petitioner GMA. 7.90.1 Had Respondents truly been employees of Petitioner GMA, Petitioner GMA could have exercised the ”prerogative to assign them other work, for as long as it is within the bounds of their employment, position or job description. 7.91 It is of no moment, as found by the NLRC, that Petitioners failed to present proof that Respondents were registered as such, complied with the capital requirements to be such, or undertook to perform the job, work or service on their own responsibility, according to their own manner and method and free from the control or direction of GMA in all matters connected with the performance of their work, except as to the desired results thereof. The Supreme Court is replete _with cases to support a finding that_based on the ultimate facts and circumstances of the herein case, Respondents are independent contractors. 7.91.1 In the Sonza case, there was no showing that ABS-CBN presented _proof of Sonza’s capital investment nor registration as independent contractor but still declared Sonza as such. In the Royal Homes case, Royal Homes likewise did not present proof of registration or substantial capital by Alcantara but still considered _him as an independent contractor. The same_goes in the Tongko case_on the finding that_the circumstances surrounding Tongko as an insurance agent for Manulife characterized him as an independent contractor even if he was not registered as such or had substantial capital. In the Insular Life case, Basiao, a commission agent was held to be an independent _contractor_by the Supreme Court _despite_no showing that_he was _registered_as_such or had _capital investment. 7.92 It goes without saying that even consultants or self- employed professionals who offer their services for a fee under circumstances wherein they undertake to perform the job, work or service on their own responsibility, according to their own manner and method and free from the control or direction of the person or entity who engaged them in all matters connected with the performance of their work, except as to the desired results thereof are considered independent contractors even if they are not registered as such under DOLE Department Order 18-A or possess of a P3,000,000.00 capital investment.eno On the contrary, a close perusal and evaluation of the ultimate facts_and circumstances _of the case in relation to the applicable laws, jurisprudence and BROADCAST INDUSTRY PRACTICE would readily show that Respondents are not regular employees of Petitioner GMA but simply “talents” who are considered as independent contractors, 7.94 IT IS WORTHY TO NOTE THAT THE HEREIN REGULARIZATION CASE IS AN AFTERTHOUGHT FILED BY RESPONDENTS TO AVOID THE BURDEN OF COMPLYING WITH PETITIONER GMA’S MEMORANDUM DATED APRIL 14, 2014” REQUIRING THEM TO REGISTER WITH THE BIR AND ISSUE_INVOICE: FOR THE TALENT FEES BEING PAID THEM PURSUANT TO REVENUE REGULATION 4-20148 OF THE BIR. 7.94.1 It was this factual circumstance which triggered this whole case. This was never denied by Respondents in any of their pleadings and in fact affirm the existence of the said factual circumstance. 7.94.2 This requirement on Respondents by Petitioner GMA was not arbitrarily done. It is more in keeping with the terms of the Talent Agreement and their status as “Talents” that when Respondents were advised of this requirement by the BIR in April 2014, owing to the admitted and undisputed fact that they were independent contractors and not employees of Petitioner GMA, Respondents were prompted to file the herein regularization case because they refused to comply with the reportorial requirements set forth by law which Respondents consider to be more burdensome. 7.95 Had Respondents truthfully believed that they were regular employees, especially those who have rendered service as talents for an extended period of time, they should have filed a regularization case a long time ago when they were not yet burdened with many requirements but were knowingly enjoying all the _ benefits of an independent contractor and not when the requirements to continue to be an independent contractor became more stringent "and burdensome. vex “C” (Peton fo Certo aed Mash 11, 2016) trin "ot Amey Pte fo Cat dae arch 1, 2016 herein 160954315), where sous (08-09499-15, 08-09522-15. 08-09558 and 08- herein, and Edina 22 Complainants therein are Respondents "a ynne A. Remillano et al. vs. GMA Network, Inc. and Atty. Felipe L. Gozon (NLRC NCR Case No. 10-11991-15 and 10-12885- 15), where 4 of the 6 Complainants therein are Respondents herein, and represented by the same counsel of record, they argued in their Position Papers, which are verified under oath as to the truthfulness of the allegations therein that: “10. Ever since complainants filed their case for regularization in NLRC Case No. 06- 06683-14. Respondents subjected them_to various types of harassment _ such _as respondents prohibition to handle 2 or more Programs thus, consequently _ severely reducing their compensation. Also, respondents disregarded the payment of complainants’ salaries through ATM, which was the regular practice, and required them instead to claim their salaries in the form of checks resulting in complainants’ great inconvenience.” (Par. 10 of Complainants’ Position Paper dated October 6, 2015 in the case entitled Christian Bochee M. Cabaluna et al. vs. GMA Network Inc. et al. (NLRC NCR Case No. 08-09480-15, 08-09516-15, 08-09499-15, 08- 09522-15. 08-09558 and —_08-09543-15)) (Emphasis supplied) “11. Ever since the members of the Talents Association of GMA (TAG) filed their case for regularization in NLRC Case No. 06-06683-14, respondents subjected them, including Edmalynne A. Remillano, to various types of harassment such as respondents prohibition for complainants to handle 2 or_more programs thus, consequently __severely Also, reduci: their compensation. respondents disregarded the payment of TAG of Annex “C” (Petition for Certiorari dated March 11, 2016) herein. 1members’, including Edmalynne A. Remillano, salaries through ATM, which was the regular practice, and required them instead to claim their salaries in the form of checks resulting in complainants’ great imconvenience.” (Par. 11 of Complainants’ Position Paper dated February 1, 2016 in the case entitled Edmalynne A. Remillano et al. vs, GMA Network, Inc. and Atty. Felipe L. Gozon (NLRC NCR Case No. 10-11991-15 and 10- 12885-15)) (Emphasis supplied) They are insisting that they are regular employees but cry harassment on allegations that they are being prohibited from handling two or more_programs thereby reducing _their_compensation. This is a classic case of a person who wants to have his cake and eat it too. 7.96.1 IF WE WERE TO GO BY THE THEORY OF RESPONDENTS IN THOSE TWO CASES THAT THEY ARE NOW NO LONGER ALLOWED TO HANDLE TWO OR MORE PROGRAMS THEREBY REDUCING THEIR COMPENSATION, IT APPEARS THAT THEY WANT TO REAP THE BENEFITS OF REGULAR EMPLOYMENT LIKE SECURITY OF TENURE, AND OTHER LABOR STANDARDS BENEFITS AND STILL PARTAKE OF THE BENEFITS OF INDEPENDENT CONTRACTORS WHICH ALLOWS MULTIPLE TALENT AGREEMENTS AT THE SAME TIME TO GAIN HIGHER COMPENSATION BUT WITHOUT THE NUISANCES AND RESPONSIBILITIES OF BEING INDEPENDENT CONTRACTORS. This is clearly absurd and abusive and has been the position and attitude of these Respondents from the onset. 7.96.2 To reiterate, Respondents herein are not and cannot be considered employees of Petitioner GMA but are talents/independent contractors who are engaged to perform specific services for Petitioner GMA. Talents are also able to take on as many programs as they can possibly handle within the network. This results in executive producers for example with 2 or 3 programs each, directors with 3 or 4 network | projects at a time, writers with 5 programs even. For each : program, they receive a separate talent fee, resulting in some production assistants with several programs each earning as 8much in talent fee as a regular employee at the managerial level. Regular employees, no matter how many projects they handle_at_a_ time, ‘are_not given extra salary _for_every additional project or program. Owing to the numerous Talent Agreements, some Private Respondents previously receive accumulated talent fees at a given time which are even higher than those being received by VP positions in Respondent GMA. 7.96.2.1 In fact, as mentioned above, Respondents already admitted in paragraph 21.3 of their Comment dated September 9, 2016 that they are being paid for each work assignment they have, in short, a separate talent fee for each talent agreement, to wit: “21.3 Christian Cabaluna et al., were being paid of their salaries based on the number of work assignments given to them by petitioners. Thus, the more assignments given, the higher would be _ the corresponding salary. Some of them were assigned to more than one program (such as Imbestigador and Kapuson Mo Jessica Soho) and they would get a higher salary than those assigned to one program only (such as Imbestigador). Otherwise put, the salary of Christian Cabaluna et al., was based on their output, which is akin to a piece-rate regular employee.” (Underscoring and emphasis supplied) 7.96.3 Moreover, Respondents _were_not prohibited from having two or more Talent Agreements at the same time, the reason that some of the Respondents were no longer given Talent Agreements for some of the shows they used to have an additional Talent Agreements on was either because the show was reformatted or discontinued. For example, the show Ka- Blog! was discontinued thus those who were part thereof were no longer offered Talent Agreements for said program. For the program Tunay na Buhay which underwent reformatting wherein instead of being a daily show, it was only now being aired once a week, there was a need to reduce the talents as the workload for the said program was reduced. For the show Imbestigador, the format of the show changed from several 79exposes a week to just one case with dramatization thus the Workload required for the said program was likewise reduced. There was no such thing as a deliberate effort to prohibit Respondents from having two or more shows/Talent Agreements at any given time as Respondents theorize in the 2 other cases, it was just a matter of reformatting of a show, discontinuance of shows and the continued evolution and exigencies of viewership which dictates the life or setup of a Program/show which prevails in the industry. 7.97 Interestingly, since the inception of the present case with the NLRC, Respondents raised FOR THE FIRST TIME in its Comment dated September 9, 2016 with the Honorable Court of Appeals that they are piece-rate regular employees because of the fact that they are output based and paid based on each work assignment. This is not only prohibited for being raised for the first time but is clearly absurd, unwarranted by the ultimate facts of the case and evidence on record and has absolutely no legal basis to stand on. 7.97.1 All throughout the proceedings before _the Labor _Arbiter_and_the NLRC, Respondents has always maintained that they were regular employees. There was never_any mention that they were in any way piece-rate regular employees. In fact, Respondents refuse to acknowledge or admit the factual circumstance that they some of them have multiple talent agreements which resulted into a separate talent fee for each Talent Agreement that drought about the total talent fees for each at a very high amount and instead continue to hide this obvious fact in their baseless allegations, even while the same is borne out by the documentary evidence on record They refuse to admit this entering into vasious Talent Agreements for a separate fee each as they are fully aware that this would clearly weaken their allegation that they are regular employees and show the true intention of the parties from the onset that Respondents are independent contractors which they know for a fact. 7.97.2 Neither is there any legal basis in their argument (raised for the first time before the Honorable Court of Appeals) that they are considered piece-rate regular employees. Workers under piece-rate employment have no fixed salaries End their compensation is computed on the basis of 80accomplished tas some ks". In the present case, Respondents had ef ements which specified the services to be done and lered and talent fees were d I: * output based, it depended on the whether Respondents had one or more Talent Agreement which they had to fulfill the Tequired services sought of them for. The number of Talent Agreement given to each Respondent was not left to the determination of Respondent as it depended on whether there was a need or not for Respondent's services and whether the Respondent concerned had the unique skill and SXpertise required of that specific show which warranted a Talent Agreement, Respondents are not akin to sewers, cutters, shoe shine boys and the likes wherein piece rate regular employees applied to given the peculiar circumstances attendant to their kind. In the herein case, Respondents were creative talents with unique skill and expertise which was Sought after in the broadcast industry in general for the Production and development of the shows which the public cater to. To liken Respondents to sewers, cutters and shoe shine boys just to forcibly fit an argument, for the first time on appeal, is absurd and unwarranted under the factual circumstances of the present case. 7.973 The clear, sudden and belated shift in the argument of Respondents, whieh is procedurally infirm and violative of due process, only shows the lack of basis in their arguments that they are regular employees of Petitioner GMA and MERELY DESIGNED to (a) justify the inevitable fact, that Respondents are independent contractors who reap the benefits and_high pay on account of multiple Talent Agreements at a given time which clearly distinguishes the ultimate facts and circumstances of the herein case with those cited by them; and (b) the true reason behind the present regularization case - which is only to avoid the burden of complying with the BIR regulations on the issuance of official receipts for services rendered by independent contractors. 7.98 To grant Respondents the privilege to choose their status, whether it be as independent contractors or employees or piece-rate loyees based on what is more convenient to them or not ® Best Wear Garments andior Warren Padilla vs. Adelaida B. De Lemos and Cecile M. Ocubillo (G.R. No 1, December 5, 2012) 81would unmistakably Violate th ici . e 5 . Talent Agreements and bj explicit and salient terms of their latantly infringe the rights of Petit GMA, opening the floodgates fi Be of Petitioner detriment of em, wwloyers pene e and scheming employees to . s/ principals wi i wil law. ‘ho are religiously compliant 7.99 These factual circumstances as supported by the evidence on record, as opposed to Respondents’ self-serving allegations, bolster and confirm the fact that Respondents are independent contractors and that they knew from the time their services were engaged by Petitioner GMA that they were independent contractors. ____2-100 The herein regularization case is an afterthought filed by Private Respondents before the labor tribunals to avoid the burden of complying with Petitioner GMA’s Memorandum dated April 14, 2014° requiring them to register with the BIR and issue invoices for the talent fees being paid them pursuant to Revenue Regulation 4- 2014* of the BIR. 7.10.1 No matter how this case is tossed and turned, it was this factual circumstance which triggered this whole case. This was never denied by Respondents in any of their pleadings and, in fact, Respondents affirm the existence of the said factual circumstance. 7.100.2 However, this requirement on Respondents by Petitioner GMA was not arbitrarily done. It is more in keeping with the terms of the Talent Agreement and their status as “Talents” that when Respondents were advised of this requirement by the BIR in April 2014. 7.101 The injustice here would be to turn a blind eye to the obvious, to what is undeniable and supported by the relevant substantial evidence as well as the law and established jurisprudence - THAT RESPONDENTS ARE INDEPENDENT CONTRACTORS AND NOT REGULAR EMPLOYEES OF PETITIONER GMA. 7.102 It would indeed be a travesty to the Broadcast Industry, as a whole and not just to Petitioner GMA herein, if the Peculiarities of the business would not be embraced, considered and understood in making the correct decision in the present case. CS - “Annex it ‘dated March 11, 2016) herein. " ex “C” (Petition for Certiorari te ane eo Ames “ein fr Cerra dated Mach 1,201) ein 82The magnitude of the Tuling in the present case affects more than ist the pauties herein but also the lives of many a8 wel ae we industry that has been a part of every Filipind’s lives ii. Assuming —arguendo that Respondents are not independent contractors, they cannot still be considered regular employees because they are fixed term employees, | 7.103 Assuming arguendo that Respondents are not independent contractors, they are still not regular employees of Fetitioner GMA. At best, they are only fixed term employees, a class/type of employees which are recognized by the Supreme Court as discussed in the case of Philippine Village Hotel vs. NLRC (G.R. No. 105033, February 28, 1994, 230 SCRA 423, 427-428). 7.104 For as long as the following requirements for valid fixed term employment contracts are met, the Supreme Court recognizes such valid type of engagement: “As can be gleaned from the said case, the two guidelines, by which fixed contracts of employments can be said NOT to circumvent security of tenure, are either: 1. The fixed period of employment was knowingly and voluntarily agreed upon by the parties, without any force, duress or improper pressure being brought to bear upon the employee and absent any other circumstances vitiating his consent; or: 2. It satisfactorily appears that the employer and employee dealt with each other on more or less equal terms with no moral dominance whatever being exercised by the former on the latter.” (Philippine National Oil 83Co. Energy Development Corporation vs. NLRC, G.R. No. 97747, March 31, 1993, 230 SCRA 699) 7.105 A dlose perusal of the Talent Agreements will show that all the Talent Agreements s include a fixed term or definite period or duration of employment with specific dates of commencement and expiration which coincide with the commencement and completion of specific programs, 7.106 Moreover, all Talent Agreements were signed and entered into by Respondents, knowingly and voluntarily and without any force, coercion, duress or improper pressure or any circumstance vitiating their consent, 7.106.1 In fact, there are_a number of Respondents who _have repeatedly entered into multiple_contracts_with Petitioner_GMA through the years clearly showing the voluntariness_in Respondents and even at present. They performed their obligations in accordance with the Talent Agreement and received the stipulated fees to their full contentment and satisfaction without any issue. 7.107 Also, in entering into the Talent Agreements, the parties dealt with each other on equal terms and without Petitioner GMA exerting any form of dominance, influence or moral ascendancy over Respondents. 7107.1 Most, if not all, of Respondents came from various universities and colleges in the Philippines, and have been in the entertainment industry for a good number of years, whether with Petitioner GMA or other networks. They were clearly educated of what they were getting into and could both read and understand both English and Filipino languages, They are clearly aware of and are familiar with the industry practice. 7,107.2 Definitely, Respondents’ were not placed at a disadvantageous position and it can be aptly said that both Respondents and Petitioner GMA dealt on equal terms without the latter exercising any form of ascendancy over Respondents. In fact, the Talent Agreements stipulated fees that will earn Respondents generous amounts that are considerably higher 84than the minimum i . waj ti of Petitioner GMA, ge given to employees and/or executives 710. Respondents were likewise free to explore other opportunities if the talent agreements being offered them are not acceptable. Respondents always had a choice and clearly benefited from the talent agreements. 7.109 It is of no moment that there is a reasonable connection between the activity performed by the employee in relation to the business or trade of the employer that qualifies Respondents as regular employees of Petitioner GMA. THIS IS NOT AN ABSOLUTE RULE OF PHILIPPINE JURISPRUDENCE! No less than the Supreme Court has ruled that_an employee can_still_be considered _an independent contractor, even if performing activities necessary or desirable in the usual business of the employer, to wit: “In one case, the Court held that it is management prerogative to farm out any of its activities, regardless of whether such activity is peripheral or core in nature. What is of primordial importance is that_the service agreement _does_not_violate_the_employee's right to security of tenure and payment of benefits _to_which he is entitled_under_the law. 7.110 And, for as long as the contracting out and farming out is done in good faith, the same is recognized by the Supreme Court as a legitimate exercise of management prerogative, to wit: “Significantly, both the voluntary arbitrator and the CA recognized that the petitioner was within its right in entering the forwarding agreements with the forwarders as an exercise of its management prerogative. The petitioner's declared objective for the arrangement is to achieve greater economy and efficiency in its operations - a universally accepted business objective and standard that the union has never questioned. In Meralco v. Quisumbing, we joined this _universal recognition of outsourcing as a legitimate 85activity when we held that a company can determine in its best judgment whether it should contract out a part of its work for as long as the employer is motivated by good faith; the contracting is not for purposes of circumventing the law; and does not involve or be the result of malicious or arbitrary action.” 7.111 Thus, pursuant to the legitimate exercise in good faith by Petitioner GMA of its management prerogative to engage the services of Respondents as talents/independent contractors, Respondents cannot insist that they are automatically regular employees of Petitioner GMA. 7.112 The same rule applies to fixed term employment, to wit: “Article 280 of the Labor Code does not proscribe or prohibit an employment contract with a fixed period provided the same is entered into by the parties, without any force, duress or improper pressure being brought to bear upon the employee and absent any other circumstance vitiating consent. It does not necessarily follow that where the duties of the employee consist of activities usually necessary or desirable in the usual business of the employer, the parties are forbidden from agreeing on a period of time for the performance of such activities. There is thus nothing essentially contradictory between a definite period of employment and the nature of the employee's duties. It goes without saying that contracts of employment govern the relationship of the parties. In this case, private respondent's contract provided for a fixed term of nine (9) i i months, from June 1, 1991 to March 31, 1992. ;. Such stipulation, not being contrary to law, morals, good customs, public order and 86public policy, is valid, binding and must be respected.” (St. Theresa’s School of Novaliches Foundation vs. NLRC, G.R. No. 122955, April 15, 1998, 289 SCRA 110,115; emphasis supplied) 7.113 Thus, the Talent Agreements entered into by the parties herein clearly show that Respondents are not regular employees of Petitioner GMA because the Talent Agreements were entered into knowingly and voluntarily and the parties dealt with each other fairly and on equal terms, thereby sustaining the validity of these contracts as either independent contractor agreements or fixed term employment agreement regardless of whether Respondents performed duties which are necessary and desirable in the usual business of the employer. 7.114 It is likewise of no moment that Respondents services were repeatedly engaged and have lasted for more than a year. It does not change the fact that they are independent contractors, or in the alternative, fixed term employees, who are bound by the terms and conditions of the Talent Agreements which they freely and knowingly signed, dealing with Petitioner GMA on equal terms without any force, intimidation or ascendancy imposed by Petitioner GMA on them. 7.115 The period/term for which the Talent Agreements were limited to was in conjunction with the life or expected run of the show for which the unique skill and expertise of Private Respondents were contracted for. It is this peculiar character in the broadcast industry in terms of engaging talents which sets it apart from the other industries. THIS DESERVES CONSIDERATION AND REVIEW so that the present case and those of similar import can be properly decided on the merits and so that justice may indeed be served. 7,115.1 The repeated engagement of Respondents merely highlights the continuation of the program beyond the date of completion initially contemplated by Petitioner GMA and the satisfactory services warranting renewal of the Talent Agreements. 7.15.2 Genres that were previously popular with the audience often become less popular over time. Persons who specialize in a certain genre or type of program can find 87wlelig eee Beers after a few seasons or years, their skills ee aa late well into other genres. Viewers are fickle and offe ing preferences can change quickly. The network "s a product, the news program, and viewers choose it by watching the show. Once viewers stop watching it, the network needs to have the freedom to close the show and replace it with anew one. The replacement show can be of any genre — news, drama, comedy, reality, game, variety, etc. Admittedly, news Programs have a longer run that can last years, but like any other show, it can end abruptly or be transferred to another timeslot where the pay scale and other variables are entirely different, including content and number of people working. It would be a problem if they were hired as regulars by a network, 7115.3 For every program that lasts a decade such as Petitioner GMA’s long running Imbestigador or Wish Ko Lang there are a dozen programs that have extremely short runs. Petitioner GMA produced a show entitled Jologs Guide that _ mnade it only to 4 episodes due to low ratings. Petitioner GMA Produced a show on gay and lesbian rights entitled Out! that “aired for one season ~ not because of low ratings but because it _ could not garner the support of conservative advertisers. A “show on mental health disorders and psychoses lasted all of ust 9 weekly episodes. Petitioner GMA also produced multi- arded short run docudrama series Bayan Ko about an stic young mayor (6 episodes), Katipunan, about the 1 Revolution (8 episodes), Tifser, on the problems of Education (9 episodes) and Iustrado on Rizal’s in Europe (20 episodes). It would be very problematic to hire regular employees for programs like go of them after the program ends, which were e accepted practice was more to hire talents, who contractors and can provide the services idcast stations like Petitioner GMA for the services were contracted. jin fact, law and jurisprudence sloyees of Petitioner GMA on ween the activity performedTalent Agreement, This Dz ASSUMING WITHOUT GRANTING THAT RESPONDENTS WILL BE DECLARED REGULAR EMPLOYEES THEY SHOULD BE INTEGRATED INTO MORE OR LESS THE EQUIVALENT POSITIONS WITH THE APPURTENANT SALARY IN PETITIONER GMA’S ORGANIZATIONAL STRUCTURE. 7.117 Assuming without granting that Respondents may be declared as regular employees of Petitioner GMA, their respective Talent Fees cannot be carried over as their salaries because to do so will create a serious salary dislocation/distortion with Private Respondents receiving substantially higher than what _ the employees in their equivalent positions receive. These talent fees are even comparatively higher than the salaries of Department Heads and top executives of Petitioner GMA (eg. Christian Bochee Cabaluna - P84,000.00 per month, Michael G, Del Rosario — P70,000.00 per month, Sharon Rose A. Masula - P61,867.52, Joni C. Mosatalla — P110,450.40 per month, Natanya T. Nono - P60,000.00 per month and Richelle Pancho Ramirez — P77,820.04 per month). : 7,117.1 The high talent fees are brought about by the totality of talent fees received by Respondents for each Talent Agreement they have. And, since talents are allowed multiple Talent Agreements at a given time, it results in Respondents receiving a very high aggregate talent fee at any one time. * Moreover, it depends on the exigencies of the programs which © Petitioner GMA wishes to launch that Respondents may or may -\ not have a Talent Agreement. For example, some shows which for a time required the unique skill and expertise of some "Respondents, then they would have an additional and separate lent Agreements for that program and its duration, after ich they no longer receive talent fee for that program and 89thus a change in the total talent fees at a given time if they receive talent fees for a program which is still ongoing for which they render service in based on a Talent Agreement. . 7117.2. If they were to be declared as employees, Petitioner GMA should be allowed to assign them to perform work for as many shows and be given only one salary which is the essence of being an employee. Regular employees, no matter how many projects they handle at a time, are not given extra salary for every additional project or program, 7117.3. The talent fees were likewise high as they are with the consideration that these talents were independent contractors not entitled to benefits enjoyed by Petitioner GMA’s employees. 7.118 Hence, if Respondents will ultimately be declared regular employees with finality, they should be regularized by integrating them into more or less equivalent positions with the appurtenant salary in Petitioner GMA’s organizational structure to avoid salary dislocation, as follows: TALENTS EQUIVALENT | SALARY POSITION 1.__| Cabaluna, Christian Segment Producer 2,__| Ben, Chloe G. Senior Researcher 3, Quefiano, Lora Segment Producer 4.__| Aban, Christine Research Assistant | 5._| Cabarles, Elmer, Jr. Research Assistant | [6.__| Lalaan, Eugene Segment Producer _| | 7.__| Cabral, Meriet Segment Producer _| 8._| Castro, jose | Segment Producer | 9.__| Arce, Janes Video Journalist 10, | Del Rosario, Eleazar Supervising, Producer Sinco, Philip Vincent Franco _| Segment Producer ‘Santos, Jayson Bernard Supervising 1 Producer Segment Producer Junior Supervising Producer Research Assistant |__|16._| Montero, Nyorly Gail Research Assistant 17. Basijan, Jennifer Segment Producer 18 Alendy, Dandy Segment Producer facarayan, Anthony Research Assistant 20._| Borromeo, Simon Efraim Head Writer 21. | San Pedro, Annalyn Production Coordinator 22. | Del Rosario, Jose III Moving Image | Artist 23. | Manalaysay, Michael Junior Supervising | _ Producer 24._| Dela Cruz, Aubrey Segment Producer 25._| Siervo, Ronelie Segment Producer 26. | Masanga,Gemmalyn _ Segment Producer 27._| Castillo, Rachelle | Research Assistant | 28. | Gulapa, Fernanne Jude | Research Assistant 29. Dalusung, Kristoffer James Segment Producer 30._| Chua, Rosanne Bernadette | Segment Producer 31._[ Lazaro, Allan Gregory Segment Producer |32._| Tan, Fearlly Loureen Research Assistant 33__| Chua, Antonio Lou Segment Producer _| 34._| Gucilatar, Ivy Suzette Segment Producer 35._| Fuentes, Socelle Segment Producer 36. | Mendiola, Denice Production - Coordinator 37._| Formales, Archibald ‘Segment Producer _ 38._| Marcelo, Marco Segment Producer 39._| Osoc, Jeffrey Segment Producer 40._[Malonzo, Axl Joffline Research Assistant 41. | Malulan, Marishen Lyle Junior Supervising Producer 42. | Banta, Marie Adelle Writer iz | 43. | Bandiola, Remanuel Junior Supervising | Producer 44,_| Dadis, Dawnavie Segment Prod | | 45._| Marpuri, Catherine Ann Research A: | 46, | Escalona, Emmanuel, Jr Moving Image Editor 47._| Gallian, Meliza Research Assistant || 48, | Barral, Mariza Production Administrator $9._| Fernandez, Anne Pamela Segment Producer , | 50. | Masula, Sharon Rose Supervising Producer Cristobal, John Michael Research Assistant ‘Raymundo, Rouel Segment Producer Gabuna, Annabelle Production Administrator WMones, Carmina Giezelle | Segment Producer | a a1Herga, Jerica May Research Assistant 55. | Misuela, Zara Jane Production a Coordinator 56. | Cruz, Matia Crezelio Production i _ Administrator 57._| Avanzado, jerome Segment Producer | 58._[Daguman, Mariel Segment Producer _| 59. | Fabella, Ada Supervising Producer 60._| Buan, Lian Nami Aloen ‘Segment Producer 1. | Remillano, Edmalynne Writer 62, | Patricio, Stephen Succor } Supervising | Producer 63._| Luna, Megan Jenikka ‘Segment Producer 64. | Olermo, Ruby Rose Production Coordinator = | = ._| Candelaria, John Gary Criel | Segment Producer 67. | Austria, Samuel | Moving Image Artist 68._| Gamboa, Anne Rose Writer 69. | Lasala, Dennis Production Administrator | 70. _|Teves, Shera Segment Producer 71. | Magboo, Elaine Mariel Segment Producer 72. | Del Rosario, Michael Supervising a |_ Producer 73. | Po Quimque, Dawn Jeffannie | Research Assistant | Vie 74,_| Matta, Irene Research Assistant 75._| Rodrigo, Maria Ana Isabel _| Segment Producer 76._| Cajigal, Chissa Research Assistant - 77._| Marquez, Julianne Rose Research Assistant 78._| Marcelo, Rochelle Ann Segment Producer 79._| Ramirez, Richelle Segment Producer _| ~| 80._| Miras, Jan Erik _ Research Assistant _| 81. | Pacheco, Marie Odessa Production Designer 82,_| Ramirez, Jiecel Research Assistant 83._| Carangalan, Neri Aldrin Segment Producer 84._| Enoce, Alfredo, Jr Segment Producer 85. | Guingon, Maria Veronica__| Segment Producer 86._| Leonor, Leonardo | Video Journalist 87._| Brazil, Bryann Kristoffer__| Segment Producer 88. | Ochoa, Winchelle Segment Producer ‘Antonio, Regit Adrian Production Coordinator Rajona, Harvey Henan | Supervising | Producer 92 |91. | Nuala, Jan Meynard Segment Producer 92. | Torre, Lea Paz Junior Supervising |_ Producer 93. | Gozon, Serafin Candido Research Assistant 94. | San Andres, Igal Jada Segment Producer 95._| Castillo, Rayla Marie Recai__| Research Assistant (96. [ Norella, Mark Anthony Segment Producer 7.119 To allow anything more to be given to Respondents, ho were already enjoying the clearly favorable benefits of the nature of their status as talents/ independent contractors in Petitioner GMA (which is allowed and recognized by law and jurisprudence) would not be really to champion the causes of labor but to derail the rights and interests of Management and affect the balance and practice in the broadcast industry. PRAYER WHEREFORE, premises considered, it is prayed of this Honorable Court that the Assailed Decision promulgated on February 20, 2019 and Assailed Resolution promulgated on November 25, 2019 of the Honorable Court of Appeals be REVERSED and SET ASIDE and that the complaint for regularization filed by Respondents against herein Petitioners be DISMISSED for lack of merit and Respondents declared as not regular employees but independent contractors. Such other reliefs just and equitable under the premises. January 20, 2020, Makati City for Manila. BELO GOZON ELMA PAREL ASUNCION & LUCILA Counsel for Petitioners 15 Floor, Sagittarius Condominium HV. dela Costa St., Salcedo Village Makati City 1227 Telephone No: (632)816-3716 to 19 Fax No.; (632)8170696; (632) 812-0008 Email address: mail@bgepal.com 93Dopy furnished: By: ROBERTO O. PAREL Roll No. 31178 MCLE No. V-0026832/May 3, 2018 PTR No. 8131036/1-08-2020/Makati City IBP Lifetime No. 09342/ 09-23-2010 Calmana ‘oll No. 38320 MCLE No. VI-0007374/March 21, 2018 PTR No. 8131042/ 1-08-2020 /Makati City IBP Lifetime No. 09346/ 10-01-2010 Pangasinan Chapter MAXIMILIAN CHUA Roll No. 57166 MCLE No.|VI-0016025/Dec. 7, 2018 PTR No. 8131032/01-08-2020/Makati City IBP No. 104097/01-08-2020/ Quezon City ATTY. RICARDO B, LAPESURA, JR. jENO MENDOZA AND ASSOCIATES .AW OFFICE Jounsel for Private Respondents ’GEA Compound Elliptical Road tor. Maharlika Avenue, Diliman, Quezon City JATIONAL LABOR RELATIONS COMMISSION 'PSTA Building, Banawe Street 94COURT OF APPEALS Ma. Orosa Street Ermita, Manila EXPLANATION Pursuant to Sections 7 and 11, Rule 13 of the 1997 Rules of Court, the foregoing Petition for Review on Certiorari was served upon Respondents’ counsel, the National Labor Relations Commission and the Honorable Court of Appeals by registered mail instead of personal delivery due to the distance and lack of manpower. MAXIN [LIAN CHUA | ! 95REPUBLIC OF THE PHILIPPINES) CITY OF MAKATI » )ss. VERIFICATION AND CERTIFICATION AS TO NON-FORUM SHOPPING I, MA. LUZ P. DELFIN, Filipino, of legal age, and with postal address at GMA Network Center, EDSA cor. Timog Avenue, Diliman, Quezon City, after being duly sworn in accordance with law, hereby depose and state that: 1. Tam the First Vice President for Legal Affairs of GMA NETWORK, INC. (“GMA”) and duly authorized representative of said corporation in the instant case as shown by a Secretary's Certificate dated January 8, 2020, a copy of which is hereto attached as Annex “1”; 2. I have caused the preparation of the herein Petition for Review on Certiorari (With Urgent Prayer for Issuance of Temporary Restraining Order and/or Writ of Preliminary Injunction) for and on behalf of GMA, a respondent in this case, and the statements contained therein are true and correct of my personal knowledge, as well as on the basis of the authentic records; 3. hereby certify under oath that petitioner GMA has not commenced any other action or proceeding involving the same issues before this Honorable Court, or any other court, tribunal or quasi- judicial agency, and that to my knowledge, no such action or proceeding is pending before this Honorable Court or any other court, tribunal or agency; 4, I hereby undertake to notify this Honorable Court within five (5) days from notice should I thereafter learn that a similar action or proceeding has been filed or is pending before this Honorable Court or any other court, tribunal or agency IN WITNESS WHEREOF, I have hereunto affixed my signature thipyy-» day of January 2020. 20" , MA. LUZ P. DELFIN Affiant