Municipios con elevado porcentaje de superficie de adosados

Where the duties of the employee consist of activities, which are necessary or desirable in the usual business of the employer, the parties are not prohibited from agreeing on the duration of employment. Article 280 does not proscribe or prohibit an employment contract with a fixed period provided it is not intended to circumvent the security of tenure.

Two criteria validate a contract of employment with a fixed period: (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 on the employee and without any circumstances vitiating 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. Against these criteria, petitioners' contracts of employment with a fixed period were valid.

Each contract provided for an expiration date. Petitioners knew from the beginning that the employment offered to them was not permanent but only for a certain fixed period. They were free to accept or to refuse the offer. When they expressed their acceptance, they bound themselves to the contract.

In this case, there was no allegation of vitiated consent. Respondents did not exercise moral dominance over petitioners. The contracts were mutually advantageous to the parties. While respondents were able to augment increased demand in production by hiring petitioners on an as-needed basis, petitioners found gainful employment if only for a few months.

Simply put, petitioners were not regular employees. While their employment as mixers, packers and machine operators was necessary and desirable in the usual business of respondent company, they were employed temporarily only, during periods when there was heightened demand for production. Consequently, there could have been no illegal dismissal when their services were terminated on expiration of their contracts. There was even no need for notice of termination because they knew exactly when their contracts would end. Contracts of employment for a fixed period terminate on their own at the end of such period.

Contracts of employment for a fixed period are not unlawful. What is objectionable is the practice of some scrupulous employers who try to circumvent the law protecting workers from the capricious termination of employment. Employers have the right and prerogative to choose their workers. "The law, while protecting the rights of the employees, authorizes neither the oppression nor destruction of the employer. When the law angles the scales of justice in favor of labor, the scale should never be so tilted if the result is an injustice to the employer."

Continuous Rehiring Cases

Chua v. CA (440 SCRA 121)

Moreover, while it may be true that private respondents were initially hired for specific projects or undertakings, the repeated re-hiring and continuing need for their services over a long span of time—the shortest being two years and the longest being eight—have undeniably made them regular employees. This Court has held that an employment ceases to be co- terminus with specific projects when the employee is continuously rehired due to the demands of the employer’s business and re-engaged for many more projects without interruption. The Court likewise takes note of the fact that, as cited by the SSC, even the National Labor Relations Commission in

a labor case involving the same parties, found that private respondents were regular employees of the petitioner.

C.E. Construction Corp. v. Cioco (437 SCRA 648)

We again hold that the fact that the WORKERS have been employed with the COMPANY for several years on various projects, the longest being nine (9) years, did not automatically make them regular employees considering that the definition of regular employment in Article 280 of the Labor Code, makes specific exception with respect to project employment. The re-hiring of petitioners on a project-to-project basis did not confer upon them regular employment status. The practice was dictated by the practical consideration that experienced construction workers are more preferred. It did not change their status as project employees.

Workpool Employees Cases

Maraguinot v. NLRC (284 SCRA 539)

A work pool may exist although the workers in the pool do not receive salaries and are free to seek other employment during temporary breaks in the business, provided that the worker shall be available when called to report for a project. Although primarily applicable to regular seasonal workers, this set-up can likewise be applied to project workers insofar as the effect of temporary cessation of work is concerned. This is beneficial to both the employer and employee for it prevents the unjust situation of "coddling labor at the expense of capital" and at the same time enables the workers to attain the status of regular employees.

Aguilar Corp. v. NLRC (269 SCRA 596)

Members of a work pool from which a construction company draws its

project employees, if considered employees of the construction company while in the work pool, are non-project employees or employees for an

indefinite period. If they are employed in a particular project, the

completion of the project or any phase thereof will not mean severance of (the) employer-employee relationship.(Emphasis supplied)

Abesco Construction and Development Corp. v. Ramirez (487 SCRA 9)

Employees who are members of a “work pool” from which a company (like petitioner corporation) draws workers for deployment to its different projects do not become regular employees by reason of that fact alone. The Court has enunciated in some cases that members of a “work pool” can either be project employees or regular employees.

The principal test for determining whether employees are “project employees” or “regular employees” is whether they are assigned to carry out a specific project or undertaking, the duration and scope of which are specified at the time they are engaged for that project. Such duration, as

well as the particular work/service to be performed, is defined in an employment agreement and is made clear to the employees at the time of hiring.

Length of Service Cases

Palomares v. NLRC (277 SCRA 439)

Length of service is not the controlling determinant of the employment tenure of a project employee. As stated earlier, it is based on whether or not the employment has been fixed for a specific project or undertaking, the completion of which has been determined at the time of the engagement of the employee. Furthermore, the second paragraph of Article 280, providing that an employee who has rendered service for at least one (1) year, shall be considered a regular employee, pertains to casual employees and not to project employees such as petitioners.

Filipinas Pre-Fabricated Building Systems, Inc. v. Puente (453 SCRA 820)

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.” In D.M. Consunji, Inc. v. NLRC, this Court has ruled that “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.’”

PNOC Energy Development Corp. v. NLRC (521 SCRA 227)

In Filipinas Pre-Fabricated Building Systems (Filsystems), Inc. v. Puente, the Court ruled that "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." Indeed, while length of time may not be the controlling test for project employment, it is vital in determining if the employee was hired for a specific undertaking or tasked to perform functions vital, necessary and indispensable to the usual business or trade of the employer. Here, respondents had been project employees several times over. Their employment ceased to be coterminous with specific projects when they were repeatedly re-hired by petitioner. Where the employment of project employees is extended long after the supposed project has been finished, the employees are removed from the scope of project employees and are considered regular employees.

7.05 Casual Employees

ART. 280, Par. 2, Labor Code: An employment shall be deemed 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 as regular employee with respect to the activity in which he is employed and his employment shall continue while such activity exists.

Nature of Work Cases

A.M. Oreta & Co., Inc. v. NLRC (176 SCRA 218)

It may be well to cite at this point Policy Instructions No. 12 of the then Minister of Labor (Now Secretary of Labor and Employment) which provides: PD 850 has defined the concept of regular and casual employment. What determines regularity or casualness is not employment contract, written or otherwise, but the nature of the job. If the job is usually necessary or desireable to the main business of the employer, the employment is regular. . .

One Year Service Cases

Kimberly v. Drilon (185 SCRA 190)

The law thus provides for two. kinds of regular employees, namely: (1) those who are engaged to perform activities which are usually necessary or desirable in the usual business or trade of the employer; and (2) those who have rendered at least one year of service, whether continuous or broken, with respect to the activity in which they are employed. The individual petitioners herein who have been adjudged to be regular employees fall under the second category. These are the mechanics, electricians, machinists machine shop helpers, warehouse helpers, painters, carpenters, pipefitters and masons It is not disputed that these workers have been in the employ of KIMBERLY for more than one year at the time of the filing of the Petition for certification election by KILUSAN-OLALIA.

Owing to their length of service with the company, these workers became regular employees, by operation of law, one year after they were employed by KIMBERLY through RANK. While the actual regularization of these employees entails the mechanical act of issuing regular appointment papers and compliance with such other operating procedures as may be adopted by the employer, it is more in keeping with the intent and spirit of the law to rule that the status of regular employment attaches to the casual worker on the day immediately after the end of his first year of service. To rule otherwise, and to instead make their regularization dependent on the happening of some contingency or the fulfillment of certain requirements, is to impose a burden on the employee which is not sanctioned by law.

That the first stated position is the situation contemplated and sanctioned by law is further enhanced by the absence of a statutory limitation before

regular status can be acquired by a casual employee. The law is explicit. As long as the employee has rendered at least one year of service, he becomes a regular employee with respect to the activity in which he is employed. The law does not provide the qualification that the employee must first be issued a regular appointment or must first be formally declared as such before he can acquire a regular status. Obviously, where the law does not distinguish, no distinction should be drawn.

San Miguel Corporation v. Abella (461 SCRA 392)

The law of course provides for two kinds of regular employees, namely: (1) those who are engaged to perform activities which are usually necessary or desirable in the usual business or trade of the employer; and (2) those who have rendered at least one year of service, whether continuous or broken, with respect to the activity in which they are employed.

As for those of private respondents who were engaged in janitorial and messengerial tasks, they fall under the second category and are thus entitled to differential pay and benefits extended to other SMC regular employees from the day immediately following their first year of service.

Integrated Contractor and Plumbing Works Inc. v. CA (464 SCRA 544)

While the actual regularization of these employees entails the mechanical act of issuing regular appointment papers and compliance with such other operating procedures as may be adopted by the employer, it is more in keeping with the intent and spirit of the law to rule that the status of regular employment attaches to the casual worker on the day immediately after the end of his first year of service. To rule otherwise, and to instead make their regularization dependent on the happening of some contingency or the fulfillment of certain requirements, is to impose a burden on the employee, which is not sanctioned by law.

7.06 Contract—Fixed Period Tests Validity

Cases

Brent School v. Zamora (181 SCRA 702)

"Where from the circumstances it is apparent that periods have been imposed to preclude acquisition of tenurial security by the employee, they should be struck down or disregarded as contrary to public policy, morals, etc."