SAMSON VS NLRC This is a petition for review on certiorari under rule 65 , herein petitioner Ismael Samson assails the

decision of public respondent NLRC dated November 29, 1993, which declared that he was a project employee, in effect reversing the earlier finding of Labor Arbiter Felipe T. Garduque II that he is actually a regular employee. Petitioner has been employed with private respondent AGPC Manila in a various construction projects since April 1965. On November, petitioner filed a complaint for the conversion of his employment status from project employee to regular employee. Petitioner alleged therein that on the basis of his considerable and continuous length of service with AGP, he should be considered a regular employee therefore entitled to the benefits and privileges appurtenant thereto. Labor Arbiter, declared in his decision that petitioner should be considered a regular employee on the ground that it has not been shown that AGP&P had made the corresponding report to the nearest Public Employment Office every time a project wherein petitioner assigned had been completed and his employment contract terminated as required under DOLE Policy Instruction No. 20. Furthermore, petitioner was not free to leave anytime and to offer his services to other employees, he should considered an employee for an indefinite period because he is a member of work pool from AG&P draws its project employees and is considered employee thereof during his membership therein, hence the completion of project does not mean termination of the employer-employee relationship. On appeal, NLRC reversed the decision of the labor arbiter and dismissed the complaint for lack of merit. NLRC ruled that the evidence shows that petitioner was engaged for a fixed and determinable period, and there was no evidence presented nor any allegation made by petitioner to support the labor arbiters decision. According to NLRC Policy Instruction No. 20 was superseded by D.O No. 19, Series of 1993, which provides that non-compliance with the required report to the nearest PEO no longer affixes a prescription of regular employment, and that the repeated constant hiring of project workers for subsequent projects is permitted without such workers being considered regular employees. ISSUE: W/N Petitioner is a project or regular employee. RULING: Petitioner argues that his being a regular employee is supported by evidence. It shows that he performed the same kind of work as rigger throughout his period of employment, and his task is necessary and desirable to private respondents usual trade or business. SG agrees with petitioner, with the observation that after a particular project has been accomplished, petitioner would rehired immediately the following day save for a gap of one day to one week from the last project, and that between 1965 to 1977, and there was 50 occasions wherein petitioner was hired by private respondent for a continuous period of time. Respondent AG&P insists that a petitioner is a project employee for several reasons: The factual findings of respondent commission which is supported by substantial evidence is already conclusive and binding. D.O No. 19 amended Policy Instruction No. 20 by doing away with the required notice of termination upon completion of the project. His services were engaged for a fixed and determinable period which thus makes each employment for every project separate and distinct from one another It falls under the exception in Article 280 of the Labor Code to the effect that 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 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. It is not disputed that petitioner had been working for private respondent for approximately twenty-eight (28) years as of the adjudication of his plaint by respondent NLRC, and that his "project-to-project" employment was renewed several times. With the successive contracts of employment wherein petitioner continued to perform virtually the same kind of work, i.e., as rigger, throughout his period of employment, it is manifest that petitioner's assigned tasks were usually necessary or desirable in the usual business or trade of private respondent.8 The repeated re-hiring and continuing need for his services are sufficient evidence of the necessity and indispensability of such services to private respondent's business or trade. Where from the circumstances it is apparent that periods have been imposed to preclude the acquisition of tenurial security by the employee, they

should be struck down as contrary to public policy, morals, good customs or public order. As observed by the Solicitor General, the record of this case discloses, as part of petitioner's position paper, a certification 11 duly issued by private respondent clearly showing that the former's services were engaged by private respondent on a continuing basis since 1965. The certification indubitably indicates that after a particular project has been accomplished, petitioner would be re-hired immediately the following day save for a gap of one (1) day to one (1) week from the last project to the succeeding one. 12 There can, therefore, be no escape from the conclusion that petitioner is a regular employee of private respondent. WHEREFORE, the questioned decision of respondent National Labor Relations Commission, dated November 29, 1993, is hereby REVERSED AND SET ASIDE, and the decision of Labor Arbiter Felipe T. Garduque II

LAO vs NLRC

A complaint before the Labor Arbiter private respondents Mario O. Labendia Sr., et al., construction workers hired in different capacities for various periods, claimed they were illegally dismissed by petitioners Tomas Lao Construction (TLC), Thomas and James Developers (T & J) and LVM Construction Corporation (LVM), 1 Altogether informally referred to as the "Lao Group of Companies." for which private respondents alternatively worked. On 10 November 1992 Labor Arbiter Gabino A. Velasquez Jr. dismissed the complaints after finding that private respondents were project employees whose employments could be terminated upon completion of the projects or project phase for which they were hired. In its Decision of 5 August 1994 the 4th Division of the NLRC reversed the Labor Arbiter. It declared that private respondents were regular employees who were dismissed without just cause and denied due process. The NLRC also overruled the Labor Arbiter in the fixing of the terms of employment of complainants uniformly at five (5) years since their periods of employment as alleged in their complaints were never refuted by petitioners. In granting monetary awards to complainants, the NLRC disregarded the veil of corporate fiction and treated the three (3) corporations as forming only one (1) entity on the basis of the admission of petitioners that "the three (3) operated as one (1) intermingling and commingling resources, including manpower facility." Petitioners came to us on certiorari questioning the reversal by the NLRC of the Labor Arbiter's Decision. On 5 September 1997 we dismissed the petition and affirmed the 5 August 1994 Decision of the NLRC. ISSUE: W/N private respondents were illegally dismissed. The main thrust of petitioners expostulation is that respondents have no valid cause to complain about their employment contracts since these documents merely formalized their status as project employees. They cite Policy Instruction No. 20 of the Department of Labor which defines project employees as those employed in connection with a particular construction project. It applies squarely to the instant case because there the Court declared that the employment of project employees is co-terminous with the completion of the project regardless of the number of projects in which they have worked. Petitioners thus argue that their dismissal from the service of private respondents was legal since the projects for which they were hired had already been completed. We are not convinced. The principal test in determining whether particular employees are project employees distinguished from regular employees is whether the project employees are assigned to carry out specific project or undertaking, the duration (and scope) of which are specified at the time the employees are engaged for the project. Project in the realm of business and industry refers to a particular job or undertaking that is within the regular or usual business of employer, but which is distinct and separate and identifiable as such from the undertakings of the company. Such job or undertaking begins and ends at determined or determinable times We held that private respondents were regular employees who were illegally dismissed. The repeated re-hiring and the continuing need for private respondents' services over a long span of time (the shortest, at seven [7] years) undeniably made them regular employees.

While length of time may not be a controlling test for project employment, it can be a strong factor in determining whether the employee was hired for a specific undertaking or in fact tasked to perform functions which are vital, necessary and indispensable to the usual business or trade of the employer. In the case at bar, private respondents had already gone through the status of project employees. But their employments became non-coterminous with specific projects when they started to be continuously re-hired due to the demands of petitioners business and were re-engaged for many more projects without interruption. Moreover, if private respondents were indeed employed as project employees, petitioners should have submitted a report of termination to the nearest public employment office every time their employment was terminated due to completion of each construction project. The records show that they did not. Clearly, here was an attempt to circumvent labor laws on tenurial security. Settled is the rule that when periods have been imposed to preclude the acquisition of tenurial security by the employee, they should be struck down as contrary to public morals, good customs or public order. Thus, we ordered petitioners to reinstate private respondents to their former positions without loss of seniority rights and other privileges with full back wages, inclusive of allowances, computed from the time compensation was withheld up to the time of actual reinstatement. Art. 279 of the Labor Code which provides that "[a]n employee who is unjustly dismissed from work shall be entitled to reinstatement without loss of seniority rights and other privileges and to his full back wages, inclusive of allowances, and to his other benefits or their monetary equivalent computed from the time his compensation was withheld from him up to the time of his actual reinstatement.

DM Consuji Inc. vs. NLRC

A complaint for illegal dismissal with prayer for reinstatement and payment of full wages filed by private respondents. Private respondents were hired by petitioner as project employees to work on its Cebu Super Block Project in Cebu City. Facts: The petitioner executed a contract by virtue of terms and conditions of employment which stipulated for a period of (1) month. On March 2, 1993, private respondents terminated allegedly without regard to the date of termination as specified in the contracts. The private respondents then filed a complaint for illegal dismissal. LA rendered a decision finding the dismissal of the private respondents without just cause and ordering petitioner to reinstate them without loss of benefits and seniority rights and to pay back wages. The LA explained that their dismissal was not actually based on the expiration of the terms of employment because some of them were dismissed before the end of the contract and others after its expiration. The NLRC also affirmed the decision of LA. It ruled that the employment period need not reach six months in order that the private respondents could not be considered contract workers because they worked even after the expiration of their contracts of employment. Dissatisfied with the decision of NLRC, petitioner appealed to this Court by way of special civil action of certiorari under Rule 65 of Rules of Court. Petitioner maintains that the private respondents were project employees since they were hired on a project-to-project basis. They cannot be regular employees because they were all employed for less than six (6) months such that even assuming that they were not project employees, they have not attained that status of regular employment. Private claims that they were dismissed form their employment on March 2, 1993, even though the project was not yet completed. They were terminated without just cause. Issue:

W/O private respondents were project employees. W/O termination of their employment was illegal.

Ruling: The petition is with merit. 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 court held 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 engagement of the employee. The contracts of employment show that the private respondents were employed with respect to specific project. The contracts of employment provide that the term is one (1) month which was the estimated project to be finished. Private respondents claim not as regular employees but were terminated before the completion of the project without just cause and due process. The court has examined the standard contracts signed by respondents and enunciated the three ways by which their employment may be terminated: One, the expiration of the one month period, which was the estimated period for the completion of the project; Two, the completion of the project or phase of the project for which they were engaged prior to the expiration of the one month period; three, upon the finding of unsatisfactory services or other just cause. The private respondents admitted before the LA that they signed their contract voluntarily, hence they bound themselves to be employed for a fixed duration knowingly and voluntarily without force, duress or improper pressure. Being a valid contract between the private respondents and petitioners, the one (1) month period has the force of law between the parties. Other respondents were terminated because their respective contracts were already expired. But however, the contracts of Alexander Agraviador and Jovencio Mendrez had not expired when their services were terminated on March 2, 1993. Petitioner claims that all private respondents were terminated because of the expiration of the period of the contract. Petitioner did not alleged that the premature termination of the services of private respondents (Alexander Agraviador and Jovencio Mendrez) was due to the earlier completion of the project or any phases thereof to which they were assigned or the services is unsatisfactory. In termination cases, the burden of proving that an employee has been lawfully dismissed lies with the employer. The inescapable conclusion is that Alexander Agraviador and Jovencio Mendrez were terminated prior to the expiration of the period of their employment without just cause, hence termination is illegal. However they cannot be reinstated because the project was finished. What they are entitled is the payment of their salaries corresponding to the unexpired portions of their employment. They are entitled to the payment of their salaries equivalent to their salary from the time of termination until the expiration of their employment period of one (1) month, the estimated period the project was to be completed. Petitioner is ordered to pay private respondents, the unexpired portion of their contract.

Cioco vs C.E. Construction

Facts: Isaac Cioco, et al. were hired by C.E. Construction Corporation, a domestic corporation engaged in the construction business, hired workers as carpenters and laborers in various construction projects from 1990 to 1999. The latest of which was GTI Tower in Makati. Prior to the start of every project, the workers signed individual employment contracts. The contract stipulated that the period of employment shall be co-terminus with the completion of the project, unless sooner terminated by you prior to the completion of the projects. May and June 1999, workers were terminated by the company on the ground of completion of the phases of the GTI Tower project. Alleging that they were regular employees, they filed for illegal dismissal. LA arbiter rendered judgment in favor of the company on April 17, 2000. He ruled that the workers were project employees as evident in the employment contracts; that due notice were afforded; required termination reports were submitted to DOLE. The NLRC affirmed the LAs decision on appeal. The workers filed special civil action for certiorari with CA. On August 28, 2002, the CA rendered its now assailed decision, the dispositive portion of which is:
WHEREFORE, premises considered, the instant petition is partially given DUE COURSE. The assailed Decision of the National Labor Relations Commission dated October 26, 2001 affirming the Decision of the Labor Arbiter dated April 17, 2000 dismissing the petitioners complaint for illegal dismissal and claims for under payment (sic) and non-payment of monetary benefits for lack of merit, and its Resolution of November 29, 2001 denying petitioners Motion for Reconsideration are hereby AFFIRMED, but MODIFIED, in that although petitioners were project employees, their dismissal as such project employees is hereby declared ILLEGAL, and private respondent C.E. Construction Corporation is directed to pay back wages computed from the date of termination, i.e., May 27, 1999 for petitioners Isaac Cioco, Jr., Carmelo Juanzo, Cecelio (sic) Soler and Benito Galvadores and from June 5, 1999 for petitioners Rebie Mercado, Baysa Benjamin (sic) and Rodrigo Napoles, up to the date of completion of the construction of the GTI Tower project.

The workers contend that they are regular employees, hence entitled to reinstatement and back wages from the time of their illegal dismissal. The company, however, contends that the workers are its project employees, that they are not illegally dismissed.

ISSUE: W/N the workers were regular employees of the company. W/N the workers were illegally dismissed.

The LA, NLRC, CA unanimously found that the workers were project employees. They hold that fact the workers have been employed with company for several 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 projectto-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 The next issue is whether the WORKERS were illegally dismissed. The CA ruled that they were illegally dismissed as: There was no evidence presented by the COMPANY to show that the WORKERS had been duly notified or informed beforehand of their dismissal and the reasons therefor. Furthermore, the COMPANY allegedly failed to present evidence conclusively proving completion of the GTI Tower project or phases thereof for which the services of the WORKERS had been engaged. Individual notices of termination had been sent to the WORKERS Section 215 (III), Rule XXIII, Book V of the Omnibus Rules Implementing the Labor Code provides that no prior notice of termination is required if the termination is brought about by completion of the contract or phase thereof for which the worker has been engaged. This is because completion of the work or project automatically terminates the employment, in which case, the employer is, under the law, only obliged to render a report to the DOLE on the termination of the employment. COMPANY failed to present evidence conclusively showing actual completion of the GTI Tower project or respective phases thereof for which the WORKERS had been hired The court again review the records and it shows that hat the COMPANY submitted the needed evidence. In its motion for reconsideration of the CAs decision, the COMPANY attached the following: a. Progress Billing Reports clearly showing that the GTI Tower project was already 80.9203% and 81.3747% accomplished as of May 31, 1999 and June 30, 1999, respectively b. Specifically, the particular form, concreting and masonry works for which the WORKERS had been hired and assigned were already completed or near completion The WORKERS did not question the veracity of the evidence presented and just insisted that they are regular employees of the COMPANY, hence, not liable for termination on mere ground of project completion. Considering the foregoing, we hold that the COMPANY complied with the procedural as well as the substantive requirements of due process with respect to the WORKERS termination, as found by the Labor Arbiter and the NLRC. We reverse the CA. The termination from employment of project employees Isaac Cioco, Jr., Their award of backwages computed from the date of their termination is set aside

PEDY Caseres and Andito Pael vs URSMC

Facts: URSMC is a corporation engaged in the sugar cane milling business. The petitioner started working 1989 and Andito Pael in 1993 to the respondent. At the start, they signed a contract of Employment for Specific Project or Undertaking. It will be renewed from time to time, until May 1999, that they informed that they no longer be renewed. Petitioners filed a complaint for illegal dismissal, regularization and other claims. August 24, 1999, LA dismissed the complaint for not being substantiated with clear and convincing evidence.

NLRC affirmed the LAs dismissal. Court of Appeals (CA) dismissed the petition filed before it. Hence, petitioner petitions for review on Certiorari under Rule 65 of Rules of Court. ISSUE: W/N petitioners are seasonal/ Project/ Term Employees not regular Employees of Respondents W/N petioners were illegally dismissed and are entitled to back wages and other monetary benefits prayed in the complaint. RULING: The LA, NLRC, CA are one in ruling that petitioners were not illegally dismissed as they were not regular but contractual or project employees. Article 280 of the Labor Code provides the three kinds of employees a.) Regular employees are those who have been engaged to perform activities which are usually necessary or desirable in the usual business or trade of the employer; b.) Project employees are those 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; c.) casual employees those who are neither regular nor project employees. An employee shall be deemed to be casual if it not covered by the Article 280 of the Labor Code. 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 actually exists. The principal test for determining whether an employee is a project employee or a regular employee is whether 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 employee. 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 service to be performed is seasonal in nature and the employment is for the duration of the season. A true project employee should be assigned to a project which begins and ends at determined or determinable times, and be informed thereof at the time of hiring. However, petitioners contend that repeated hiring of their services qualifies them to the status of regular employees. On this score, the LA ruled: This is further buttress[ed] by the fact that the relationship between complainants and the respondent URSUMCO, would clearly reveal that the very nature of the terms and conditions of their hiring would show that complainants were required to perform phases of special projects which are not related to the main operation of the respondent for a definite period, after which their services are available to any farm owner. The NLRC, agreeing with the LA, further ruled that: We note that complainants never bothered to deny that they voluntarily, knowingly and willfully executed the contracts of employment. Neither was there any showing that respondents exercised moral dominance on the complainants. it is clear that the contracts of employment are valid and binding on the complainants. Finally, the CA noted: Upon application, Caseres was interviewed and made to understand that his employment would be co-terminus with the phase of work to which he would be then assigned, that is until February

5, 1989 and thereafter he would be free to seek employment elsewhere. Caseres agreed and signed the contract of employment for specific project or undertaking. After an absence of more than five (5) months, Caseres re-applied with respondent as a seasonal project worker assisting in the general underchassis reconditioning to transport units on July 17, 1989. It must be noted that there were intervals in petitioners' respective employment contracts, and that their work depended on the availability of such contracts or projects. Petitioners' repeated and successive re-employment on the basis of a contract of employment for more than one year cannot and does not make them regular employees. Length of service is not the controlling determinant of the employment tenure of a project employee The Court ruled: By stressing the ruling in Villa v. National Labor Relations Commission that by entering into such contract, an employee is deemed to understand that his employment is coterminous with the project. He may not expect to be employed continuously beyond the completion of the project. The fact that petitioners were constantly re-hired does not ipso facto establish that they became regular employees. Their respective contracts with respondent show that there were intervals in their employment. In petitioner Caseres's case, while his employment lasted from August 1989 to May 1999, the duration of his employment ranged from one day to several months at a time, and such successive employments were not continuous. With regard to petitioner Pael, his employment never lasted for more than a month at a time. These support the conclusion that they were indeed project employees, and since their work depended on the availability of such contracts or projects, necessarily the employment of respondents work force was not permanent but co-terminous with the projects to which they were assigned and from whose payrolls they were paid Moreover, even if petitioners were repeatedly and successively re-hired, still it did not qualify them as regular employees, as length of service is not the controlling determinant of the employment tenure of a project employee,1[19] but whether the employment has been fixed for a specific project or undertaking, its completion has been determined at the time of the engagement of the employee.2[20] Further, the proviso in Article 280, stating 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 Petition is denied