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 service 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:
3 Categories of Employees under Art. 280
(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 vs. Court of Appeals, 517 SCRA 691, March 7, 2007, citing Pangilinan vs. General Milling Corporation, G.R. No. 149329, 12 July 2004, 434 SCRA 159, 169; Pedy Caseres, et al. vs. Universal Robina Sugar Milling Corp., et al., G.R. No. 159343, September 28, 2007; Glory Philippines, Inc. vs. Buenaventura B. Vergara, G.R. No. 176627, August 24, 2007]
1.3.1.
Regular employment
Regular EmploymentRegular employees may be classified into: (1) regular employees by nature of work; and (2) regular employees by years of service. [Rowell Industrial Corporation vs. CA, supra]
By years of service:
A casual employee who has rendered at least one (1) year of service, whether continuous or broken is a regular employee. The status of regular employment under this category attaches to the casual worker on the day immediately after the end of his first year of service as such casual employee. [Kay Products, Inc. vs. Court of Appeals, 464 SCRA 544 (July 28, 2005)] He
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. [Kasapian ng Malayang Manggagawa sa Coca-Cola (Kasamma-CCO)-CFW Local 245 vs. Court of Appeals, 487 SCRA 487, 508 (2006)]
Article 281 of the Labor Code also considers a regular employee as one who is allowed to work after a probationary period. [Pier 8 Arrastre & Stevedoring Services, Inc., et al. versus Jeff B. Boclot, G.R. No. 173849, September 28, 2007]
If 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. [Thelma Dumpit-Murillo versus Court of Appeals, et al., G.R. No. 164652, June 8, 2007] And the signing of a “contract of temporary employment” at the time when the employee already attained or is about to attain regular employment status under the CBA is an indication of an employer's illegal intent. [Philex Mining Corp. vs. NLRC, 312 SCRA 119 (1999)]
Example:
(a) janitorial and messengerial services in an aquaculture business, only after rendering 1 year of service. [SMC vs. Aballa, 461 SCRA 392 (June 28, 2005)]
Length of service provides a fair yardstick for determining when an employee initially hired on a temporary basis becomes a permanent one, entitled to security and benefits of regularization. [William Uy Construction Corp. vs. Trinidad, G.R. No. 183250, March 10, 2010, Abad, J.]
By nature of work
Employee performs work that is usually necessary and desirable in the usual business or trade of the employer. [Caparoso vs. CA, 516 SCRA 30 (February 15, 2007)] 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. [Pier 8 Arrastre & Stevedoring Services, Inc., et al. versus Jeff B. Boclot, G.R. No. 173849, September 28, 2007]
A continuing need for respondents' services is sufficient evidence of the necessity and indispensability of their services to petitioner's business. [Glory Philippines, Inc. vs. Vergara, G.R. No. 176627, August 24, 2007] Necessity or desirability is tied up to employer's “usual business”. [Magsalin vs. NOWM, G.R. No. 148492, May 9, 2003]
What determines whether a certain employment is regular or otherwise is not the will or word of the employer, but the business, taking into account all the circumstances, and in some cases the length of time of its performance and its continued existence. [ABS-CBN Broadcasting Corporation v. Nazareno, G.R. No. 164156, September 26, 2006]
Examples:
(a) “production assistants” of ABS-CBN [ABS-CBN Broadcasting Corp. vs. Nazareno, 503 SCRA 204, 229 (2006)]
(b) worker in the shrimp processing of the aquaculture business of SMC [SMC vs. Aballa, supra]
(c) piece-rate workers when:
(1) their work as tailors was necessary or desirable in the usual business of private respondent, which is engaged in the tailoring business;
(2) they worked throughout the year, their employment not being dependent on a specific project or season; and
(3) they have worked for more than one year. [Avelino Lambo, et al. vs. NLRC, G.R. No. 111042, October 26, 1999]
Issuance of a regular appointment is not necessary. [Efren Paguio vs. NRLC, G.R. No. 147816, May 9, 2003]
Article 280 should not be interpreted as a way as to deprive employers of the right and prerogative to choose their own workers if they have sufficient basis to refuse an employee a regular status. Management has rights which should also be protected. [Rowell Industrial Corporation vs. Court of Appeals, 517 SCRA 691 (March 7, 2007)]
Where a disabled is qualified to do the work of an able-bodied, Art. 280 applies. In such case, security of tenure is NOT subject to Art. 80(c) of the Labor Code where “(c) the duration of employment period” should be agreed upon by the parties, NOR to Art. 80(b) thereof where her salary rate “shall not be less than 75% of the applicable legal minimum wage”. She will be treated as if she is able-bodied guaranteed by Arts. 280, 281, 282, 283, 286, 277(b), 279 of the Code. [Maritess Bernardo vs. NRLC, July 12, 1999, and cited laws]