LABOR 1 G11
NOTES
The aforesaid Article 280 of the Labor Code, as amended, classifies
employees into three categories, namely: (1) regular employees or
those whose work is necessary or desirable to the usual business of
the employer; (2) project employees or those whose employment has
been fixed for a specific project or undertaking, the completion or
termination of which has been determined at the time of the
engagement of the employee or where the work or services to be
performed is seasonal in nature and the employment is for the
duration of the season; and (3) casual employees or those who are
neither regular nor project employees (Rowell Industrial Corporation
v. CA, March 7, 2007).
Regular employees are further classified into: (1) regular employees by nature of work; and (2)
regular employees by years of service. The former refers to those employees who perform a
particular activity which is necessary or desirable in the usual business or trade of the employer,
regardless of their length of service; while the latter refers to those employees who have been
performing the job, regardless of the nature thereof, for at least a year (Rowell Industrial
Corporation v. CA, March 7, 2007).
The primary standard, therefore, of determining a regular employment is the reasonable
connection between the particular activity performed by the employee in relation to the usual
business or trade of the employer. The test is whether the former is usually necessary or
desirable in the usual business or trade of the employer. The connection can be determined by
considering the nature of the work performed and its relation to the scheme of the particular
business or trade in its entirety.
Also, if the employee has been performing the job for at least one year, even if the performance
is not continuous or merely intermittent, the law deems the repeated and continuing need for its
performance as sufficient evidence of the necessity if not indispensability of that activity to the
business. Hence, the employment is also considered regular, but only with respect to such
activity and while such activity exists (Pier 8 Arrastre & Stevedoring Services v. Boclot,
September 28, 2007).
Settled is the rule that the primary standard of determining regular employment is the reasonable
connection between the particular activity performed by the employee in relation to the casual
business or trade of the employer. The connection can be determined by considering the nature
of the work performed and its relation to the scheme of the particular business or trade in its
entirety
Pursuant to Article 280 of the Labor Code, as amended, said provision of law admits of two
exceptions, to wit: (1) those employments which have been fixed for a specific project or
undertaking, the completion or termination of which has been determined at the time of the
engagement of the employment; and (2) when the work or services to be performed are
seasonal; hence, the employment is for the duration of the season. Thus, there are certain forms
of employment which entail the performance of usual and desirable functions and which exceed
one year but do not necessarily qualify as regular employment under Article 280 of the Labor
Code, as amended (Rowell Industrial Corporation v. CA, March 7, 2007).
For teachers on probationary employment, in which case a fixed term contract is not specifically
used for the fixed term it offers , it is incumbent upon the school to have not only set reasonable
standards to be followed by said teachers in determining qualification for regular employment,
the same must have also been communicated to the teachers at the start of the probationary
period, or at the very least, at the start of the period when they were to be applied. Corollarily,
should the teachers not have been apprised of such reasonable standards at the time specified
above, they shall be deemed regular employees. (Colegio del Santisimo Rosario v. Rojo,
September 4, 2013)
NOTES
The positions occupied by respondents - machine operator, extruder operator and scalemen are necessary in the
business of Atlanta Industries, Inc., a domestic corporation engaged in the manufacture of steel pipes. These
tasks and their nature characterized the respondents as regular employees under Article 280 of the Labor Code.
Thus, respondents were regular employees whose dismissals were illegal for lack of a just or authorized cause
and notice. (Atlanta Industries v. Sebolino, January 26, 2011)
In cases of illegal dismissal, the employer bears the burden of proof to prove that the termination was for a valid
or authorized cause. But before the petitioners must bear the burden of proving that the dismissal was legal, the
respondents must first establish by substantial evidence that indeed they were dismissed. If there is no dismissal,
then there can be no question as to the legality or illegality thereof. (EXODUS INTERNATIONAL v. GUILLERMO
BISCOCHO, February 23, 2011)
The respondent Hacienda employees are regular employees and not seasonal employees. The primary standard
for determining regular employment is the reasonable connection between the particular activity performed by the
employee in relation to the usual trade or business of the employer. There is no doubt that the respondents were
performing work necessary and desirable in the usual trade or business of the employer Hacienda Bino/Hortencia
Starke. Moreover, there was no proof that they were hired for the duration of one season only. Absent any proof,
the general rule of regular employment should stand. (Hacienda Bino/Hortencia Starke v. Cuenca, April 15, 2005)
An employee becomes regular with respect to the activity in which he is employed one year after he is employed,
the reckoning date for determining his regularization is his hiring date. Further, the grant of the benefit of
regularization should not be limited to the employees who questioned their status before the labor tribunal/court
and asserted their rights; it should also extend to those similarly situated. (Kimberly Clark v. Secretary of Labor,
November 23, 2007)
If the clause in the appointment letter did cause an ambiguity in the employment status of Buenviaje, we hold that
the ambiguity should be resolved in her favor. This is in line with the policy under our Labor Code to afford
protection to labor and to construe doubts in favor of labor. But more importantly, apart from the express intention
in her appointment letter, there is substantial evidence to prove that Buenviaje was a permanent employee and
not a probationary one (PNOC-EDC v. Buenviaje, June 29, 2016) .
A regular rank ­and ­file employees fall within CBA coverage under the CBA’s express terms and are entitled to
its benefits.
A regular employee is (1) one who is either engaged to perform activities that are necessary or desirable in the
usual trade or business of the employer or (2) a casual employee who has rendered at least one year of service,
whether continuous or broken, with respect to the activity in which he is employed. Arceo qualified to be a regular
employee under the first criterion since her work, consisting mainly of photocopying documents, sorting telephone
bills and disconnection notices, was certainly necessary or desirable to the business of PLDT. Even if the contrary
were true, the uncontested fact is that she rendered service for more than one year as a casual employee, which
means that she is still eligible to be a regular employee under the second criterion. (PLDT v. Arceo, May 5, 2006)
Under Art. 280 of the Labor Code, an employee shall be deemed regular if he/she has been engaged to perform
activities which are usually necessary and desirable in the usual business or trade of the employer regardless of
any written or oral agreement to the contrary; except when the employment is fixed term or the work is seasonal
in nature and only for the duration of said season. An employee that has rendered at least one year of service
whether continuous or broken shall be considered a regular employee with respect to the activity in which he is
employed. (Peninsula Manila v. Alipio)
NOTES
NOTES
A probationary employee or probationer is one who is on
trial for an employer, during which the latter determines
whether or not he is qualified for permanent employment
A probationary employee, like a regular employee, enjoys
security of tenure. However, in cases of probationary
employment, aside from just or authorized causes of
termination, an additional ground is provided under Article
295 of the Labor Code, i.e., the probationary employee
may also be terminated for failure to qualify as a regular
employee in accordance with the reasonable standards
made known by the employer to the employee at the time
of the engagement. Thus, the services of an employee who
has been engaged on a probationary basis may be
terminated for any of the following: (a) a just or (b) an
authorized cause; and (c) when he fails to qualify as a
regular employee in accordance with reasonable
standards prescribed by the employer.
NOTES
A project employee is one whose “employment has been
fixed for a specific project or undertaking the completion or
termination of which has been determined at the time of the
engagement of the employee or where the work or services
to be performed is seasonal in nature and the employment is
for the duration of the season.” The length of service of a
project employee is not the controlling test of employment
tenure but whether or not ‘the employment has been fixed for
a specific project or undertaking the completion or termination
of which has been determined at the time of the engagement
of the employee. (FilSystems v. Puente, G.R. 153832, 2005)
Plainly, the litmus test to determine whether an individual is a
project employee lies in setting a fixed period of employment
involving a specific undertaking which completion or
termination has been determined at the time of the particular
employee's engagement (Leyte Geothermal Power
Progressive Employees Union v. PNOC-EDC, March 30,
2011)
Carpenters of the construction project were validly dismissed
since the project they were employed in had already
completed. hence the cause for the expiration of their
respective project employment contracts, and due to the
completion of the phases of work respondents were engaged
for, was held valid and for just cause. If the termination is
brought about by the completion of the contract or phase
thereof, no prior notice is required (DM Consunji v. Gobres
August 8, 2010).
NOTES
Under Article 280 of the Labor Code, as amended, a project employee is one whose
"employment has been fixed for a specific project or undertaking the completion or termination
of which has been determined at the time of the engagement of the employee or where the
work or services to be performed is seasonal in nature and the employment is for the duration
of the season." Thus, the principal test used to determine whether employees are project
employees is whether or not the employees were assigned to carry out a specific project or
undertaking, the duration or scope of which was speci?ed at the time the employees were
engaged for that project.
Petitioner worked continuously for more than two years after the supposed three-month
duration of his project employment for the NAIA II Project. While for the first three months,
petitioner can be considered a project employee of PNCC, his employment thereafter, when
his services were extended without any specification of as to the duration, made him a regular
employee of PNCC. And his status as a regular employee was not affected by the fact that he
was assigned to several other projects and there were intervals in between said projects since
he enjoys security of tenure (Pasos v. PNCC, July 3, 2013).
The principal test for determining whether particular employees are “project employees” as
distinguished from “regular employees,” is whether or not the “project employees” were
assigned to carry out a “specific project or undertaking,” the duration and scope of which were
specified at the time the employees were engaged for that project. In this case, petitioners
have not shown that private respondent was informed that he will be assigned to a “specific
project or undertaking.” As earlier noted, neither has it been established that he was informed
of the duration and scope of such project or undertaking at the time of their engagement
(Poseidon Fishing v. NLRC, February 20, 2006).
A project employee is one who works for a specific project or undertaking, the completion or
termination of which has been determined at the time of the engagement of the employee. To
be considered as a project employee, (1) the employee must be assigned to carry out a
specific project or undertaking, and (2) the duration of scope of the project was specified at
the time of employment. The activities of project employees may or may not be usually
necessary in the usual business or trade of the employer. The services of a project employee
may be lawfully terminated after completion of the project. Project-based contracts are not
illegal provided that the period was agreed upon knowingly and voluntarily by the parties
without any force or duress and that it is apparent that the periods in the contracts were not
imposed to prevent the acquisition of tenure. Project and fixed-term employment must not be
confused with each other. The duration of project employment is coterminous with the duration
of the project. On the other hand, the duration of fixed term employment is based on the
agreement of the parties to a day certain.
(E Ganzon v. Ando)
NOTES
ART. 280. REGULAR AND CASUAL EMPLOYMENT. — The
provisions of written agreement to the contrary notwithstanding
and regardless of the oral agreement of the parties, an
employment shall be deemed to be regular where the employee
has been engaged to perform activities which are usually
necessary or desirable in the usual business or trade of the
employer, except where the employment has been fixed for a
specific project or undertaking the completion or termination of
which has been determined at the time of the engagement of the
employee or where the work or services to be performed is
seasonal in nature and the employment is for the duration of the
season.
An employment shall be deemed to be casual if it is not covered
by the preceding paragraph: Provided, That, any employee who
has rendered at least one year of service, whether such service
is continuous or broken, shall be considered a regular employee
with respect to the activity in which he is employed and his
employment shall continue while such activity exists.
NOTES
Farm workers generally fall under the definition of seasonal employees. We have consistently held that seasonal
employees may be considered as regular employees. Regular seasonal employees are those called to work from
time to time. The nature of their relationship with the employer is such that during the off season, they are temporarily
laid off; but reemployed during the summer season or when their services may be needed. They are in regular
employment because of the nature of their job, and not because of the length of time they have worked.
The deceased had been working on petitioner's land by harvesting abaca and coconut, processing copra, and
clearing weeds. His employment was continuous in the sense that it was done for more than one harvesting season.
Moreover, no amount of reasoning could detract from the fact that these tasks were necessary or desirable in the
usual business of petitioner. The other tasks allegedly done by the deceased outside his usual farm work only bolster
the existence of an employer-employee relationship. As found by the SSC, the deceased was a construction worker
in the building and a helper in the bakery, grocery, hardware, and piggery — all owned by petitioner.
Pakyaw workers are considered employees for as long as their employers exercise control over them. Petitioner
wielded control over the deceased in the discharge of his functions. Being the owner of the farm on which the latter
worked, petitioner — on his own or through his overseer — necessarily had the right to review the quality of work
produced by his laborers. It matters not whether the deceased conducted his work inside petitioner's farm or not
because petitioner retained the right to control him in his work, and in fact exercised it through his farm manager.
The latter himself testified that petitioner had hired the deceased as one of the pakyaw workers whose salaries were
derived from the gross proceeds of the harvest. (Gapayo v. Fulo, June 13, 2013).
Seasonal employment operates much in the same way as project employment, albeit it involves work or service that
is seasonal in nature or lasting for the duration of the season. As with project employment, although the seasonal
employment arrangement involves work that is seasonal or periodic in nature, the employment itself is not
automatically considered seasonal so as to prevent the employee from attaining regular status. To exclude the
asserted "seasonal" employee from those classified as regular employees, the employer must show that (1) the
employee must be performing work or services that are seasonal in nature; and (2) he had been employed for the
duration of the season. Hence, when the "seasonal" workers are continuously and repeatedly hired to perform the
same tasks or activities for several seasons or even after the cessation of the season, this length of time may likewise
serve as a badge of regular employment. In fact, even though denominated as "seasonal workers," if these workers
are called to work from time to time and are only temporarily laid off during the off-season, the law does not consider
them separated from the service during the off-season period. The law simply considers these seasonal workers on
leave until re-employed. The respondents are neither project, seasonal nor fixed-term employees, but regular
seasonal workers of URSUMCO because (1) they are made to perform tasks that did not at all pertain to any specific
phase of Universal Robina’s strict milling operations that would ultimately cease upon completion of a particular
phase in the milling of sugar, (2) they were tasked to perform duties regularly and habitually needed in the company’s
operations during the milling season, (3) they perform the activities that are necessary and desirable in sugarcane
production, and (4) they were regularly and repeatedly hired to perform the same tasks year after year. This regular
and repeated hiring of the same workers for two separate seasons has put in place, principally through jurisprudence,
the system of regular seasonal employment in the sugar industry and other industries with a similar nature of
operations. (URSMC v. Acibo, January 15, 2014)
The Court stressed that for respondent Hacienda employees to be excluded from those classified as regular
employees, it is not enough that they perform work or services that are seasonal in nature. They must have been
employed only for the duration of one season. Thus, respondents here are regular employees and not seasonal
employees. (Hacienda Bino/Hortencia Starke v. Cuenca, April 15, 2005)
NOTES
Benares vs Pancho (seasonal employee)
Sugar farm workers were considered as regular employees. The court rule that i f the employee
has been performing the job for at least a year, even if the performance is not continuous and
merely intermittent, the law deems repeated and continuing need for its performance as
sufficient evidence of the necessity if not indispensability of that activity to the business.
The fact that they do not work continuously for one whole year but only for the duration of the
season does not detract from considering them in regular employment. Jurisprudence has
already settled that seasonal workers who are called to work from time to time and are
temporarily laid off during off-season are not separated from service in that period, but merely
considered on leave until re-employed.
A fixed-term employment is allowable under the Labor Code wherein the parties
agree upon the day certain for the commencement and termination of their
employment relationship. A day certain being understood to be "that which must
necessarily come, although it may not be known when. Furthermore, the term must
be voluntarily and knowingly entered into by the parties who must have dealt with
each other on equal terms not one exercising moral dominance over the other.
(Samonte v. LSGH, Feb. 10, 2016)
The Court explains that a fixed-term character of employment refers to the period
agreed upon between the employer and the employee. The employment exists only
for the duration of the term and ends on its own when the term expires. It is different
from the concept of probationary. Accordingly, employment on probationary status
also refers to a period because of the technical meaning of "probation" in the
Philippine labor law — a maximum period of six months, or in the academe, a period
of three years for those engaged in teaching jobs. Their similarity ends there,
however, because of the overriding meaning that being "on probation" connotes,
i.e., a process of testing and observing the character or abilities of a person who is
new to a role or job. In this case. the Court held that the teachers’ probationary
status should not be disregarded simply because the contracts were fixed-term. It
mentioned that “the school cannot forget that its system of fixed-term contract is a
system that operates during the probationary period and for this reason is subject
to the terms of Article 281 of the Labor Code. Unless this reconciliation is made, the
requirements of this Article on probationary status would be fully negated as the
school may freely choose not to renew contracts simply because their terms have
expired. The inevitable effect of course is to wreck the scheme that the Constitution
and the Labor Code established to balance relationships between labor and
management.” Hence, in a situation where the probationary status overlaps with a
fixed-term contract not specifically used for the fixed term it offers, Article 281
(probationary employment) should assume primacy and the fixed-period character
of the contract must give way. (Mercado v. AMA Computer College, April 13, 2010)
NOTES
Indications or criteria under which "term employment"
cannot be said to be in circumvention of the law on
security of tenure, namely:
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 the
employee dealt with each other on more or less equal
terms with no moral dominance exercised by the
former or the latter.
These indications, which must be read together, make
the Brent doctrine applicable only in a few special
cases wherein the employer and employee are on
more or less in equal footing in entering into the
contract. The reason for this is evident: when a
prospective employee, on account of special skills or
market forces, is in a position to make demands upon
the prospective employer, such prospective employee
needs less protection than the ordinary worker. Lesser
limitations on the parties’ freedom of contract are thus
required for the protection of the employee (Fuji
Television v. Espiritu, December 3, 2014).
The act of hiring and re-hiring in various capacities is a
mere gambit employed by petitioner to thwart the
tenurial protection of private respondent. Such pattern
of re-hiring and the recurring need for his services are
testament to the necessity and indispensability of such
services to petitioners’ business or trade (Poseidon
Fishing v. NLRC, February 20, 2006).
NOTES
NOTES
Learnership and apprenticeship are similar because they both mean training
periods for jobs requiring skills that can be acquired through actual work
experience. And because both are not as fully productive as regular workers, they
learner and the apprentice may be paid wages 25% lower than applicable legal
minimum wage.
They differ in the focus and terms of training. A learner trains in a semi-skilled job
or in industrial occupations that require training for less than 3 months. An
apprentice trains in a highly-skilled job or in a job found only in a highly technical
industry. Because it is a highly skilled job, the training period exceeds 3 months.
For a learner, the training period is shorter because the job is easily learned. The
job is “non-apprenticeable” because its practical skills can be learned in 3 months.
A learner is not an apprentice but an apprentice is, conceptually, a learner. Also,
because the job is easily learnable, the employer is committed to hire the learnertrainee as an employee after the training period. No such commitment exist in
apprenticeship.
Lastly, employment of apprentices (Article 60) is legally allowed only in highly
technical industries and only in apprenticeable occupations approved by DOLE.
Learnership is allowed even for non-technical jobs.
NOTES
The Court held that “even if we recognize the company's need to train its
employees through apprenticeship, we can only consider the first
apprenticeship agreement for the purpose. With the expiration of the first
agreement and the retention of the employees, Atlanta Industries, Inc. had, to
all intents and purposes, recognized the completion of their training and their
acquisition of a regular employee status. To foist upon them the second
apprenticeship agreement for a second skill which was not even mentioned in
the agreement itself, is a violation of the Labor Code’s implementing rules and
is an act manifestly unfair to the employees.” (Atlanta Industries v. Sebolino,
January 26, 2011)
NOTES
The Court stressed that the provision on employment on probationary status
under the Labor Code is a primary example of the fine balancing of interest
between labor and management that the code has institutionalized pursuant
to the underlying intent of the Constitution. The case at bar is an example
wherein it held that the teachers’ probationary status should not be
disregarded simply because the contracts were fixed-term. It mentioned that
“the school cannot forget that its system of fixed-term contract is a system
that operates during the probationary period and for this reason is subject
to the terms of Article 281 of the Labor Code. Unless this reconciliation is
made, the requirements of this Article on probationary status would be fully
negated as the school may freely choose not to renew contracts simply
because their terms have expired. The inevitable effect of course is to wreck
the scheme that the Constitution and the Labor Code established to balance
relationships between labor and management.” Hence, in a situation where
the probationary status overlaps with a fixed-term contract not specifically
used for the fixed term it offers, Article 281 (probationary employment)
should assume primacy and the fixed-period character of the contract must
give way. (Mercado v. AMA Computer College, April 13, 2010)
A probationary employee also enjoys security of tenure, although it is not on
the same plane as that of a permanent employee. This is so because aside
from just and authorized causes, a probationary employee may also be
dismissed due to failure to qualify in accordance with the standards of the
employer made known to him at the time of his engagement. PNOC-EDC
dismissed Buenviaje on this latter ground; that is, Buenviaje allegedly failed
to meet the standards set by the company. In dismissing probationary
employees on this ground, there is no need for a notice and hearing (PNOCEDC v. Buenviaje, June 29, 2016).
Section 93 of the 1992 Manual of Regulations for Private Schools, provides
that full time teachers who have satisfactorily completed their probationary
period shall be considered regular or permanent. Furthermore, the
probationary period shall not be more than six consecutive regular
semesters of satisfactory service for those in the tertiary level. Thus, the
following requisites must concur before a private school teacher acquires
permanent status: (1) the teacher is a full-time teacher; (2) the teacher must
have rendered three consecutive years of service; and (3) such service must
have been satisfactory. (St. Mary’s University v. CA, March 8, 2005)
NOTES
A temporary or casual employee, under Article 281 of the Labor Code, becomes regular
after service of one year, unless he has been contracted for a specific project. And we
cannot say that merchandising is a specific project for the obvious reason that it is an
activity related to the day-to-day operation of [California].
Phil. Bank of Communications v. NLRC
The seasonal nature of petitioner’s work on a “pakiao” basis does not detract from the
conclusion that the employer-employee relationship exists. Seasonal workers whose
work is not merely for the duration of the season, but who are rehired every working
season are considered regular employees. The circumstance that petitioners do not
appear in respondent’s payroll does not destroy the employer-employee relationship
between them. Zamudio v. LRC, G.R. No. 76723, March 25, 1990
NOTES
In the Labor Code, the basic provisions governing
the rights of women are found in Articles 130 to
136.
BFOQ
Article 133 prohibits any form of discrimination
against a woman on account of sex. Judicial
decisions, however, do recognize exceptions.
Where the job itself necessarily requires a
particular qualification, then the job applicant or
worker who does not possess it may be
disqualified on that basis and will not be unlawful
discrimination. This is known as bona fide
occupational qualification or BOFQ. For instance,
one whose job is to preach the teachings of a
religious sect must be a member of that sect
otherwise he/she is disqualified. Or where the job
necessarily requires a male, then a female is
disqualified.
To justify the selective employment or entitlement
policy, the employer must prove compelling
business necessity for which no alternative exists
other than discriminatory practice. The employer
must prove 2 factors: (1) employment qualification
is reasonably related to the essential operation of
the job involved; and (2) that there is a factual
basis for believing that all or substantially all
persons meeting the qualification would be unable
to properly perform the duties of the job. Star
Paper Corporation v. Simbol, GR No. 164774,
April 12, 2006