By period of service

Audio electric vs NLRC

-

The alleged gap in employment service cited by petitioner does not defeat private
respondent's regular status as he was rehired for many more projects without
interruption and performed functions which vital, necessary and indispenasble to the
usual business of petitioner.

We have held that 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 considered regular employees.

Universal robina vs catapang

-

The primary standard, therefore, of 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. 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 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 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.
Hence, the employment is considered regular, but only with respect to such activity and
while such activity exists.

Abesco vs Ramirez
-

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.10 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.1

Probation
Federation of credit vs NLRC
-

a probationary employee is one who is on trial by an employer during which the

employer determines whether or not he is qualified for permanent employment. A
probationary employment is made to afford the employer an opportunity to observe the

fitness of a probationer while at work, and to ascertain whether he will become a proper
and efficient employee."
-

Probationary employees, notwithstanding their limited tenure, are also entitled to security
of tenure. Thus, except for just cause as provided by law, 2 or under the employment
contract, a probationary employee cannot be terminated. 3

Extension- mariwasa vs leogardo

-

For aught that appears of record, the extension of Dequila's probation was ex gratia, an
act of liberality on the part of his employer affording him a second chance to make good
after having initially failed to prove his worth as an employee. Such an act cannot now
unjustly be turned against said employer's account to compel it to keep on its payroll one
who could not perform according to its work standards. The law, surely, was never meant
to produce such an inequitable result.

By voluntarily agreeing to an extension of the probationary period, Dequila in effect

waived any benefit attaching to the completion of said period if he still failed to make the
grade during the period of extension. The Court finds nothing in the law which by any fair
interpretation prohibits such a waiver. And no public policy protecting the employee and
the security of his tenure is served by prescribing voluntary agreements which, by
reasonably extending the period of probation, actually improve and further a
probationary employee's prospects of demonstrating his fitness for regular employment.

Repetitive probation- Villanueva vs NLRC

-

For one, while the first paragraph of Section 2 spoke of the contract's duration to be
"one" year, it was in fact, for one year and six months because it was to commence on
21 February 1994 and terminate on 21 August I995. For another, while the second
paragraph specified the first six-month period of employment, 21 February to 21 August
1994, as "contractual," the third sentence of that paragraph granted the petitioner regular
employment status should he "continue his employment beyond August 21, 1994, . . .
upon demonstration of sufficient skill in terms of his ability to meet the standards" set by
the respondent company. It is clear that the first six months was in reality the "probation
period" under Article 281 of the Labor Code, 8 since petitioner would become a regular
employee if the employment would continue beyond that period upon demonstration of
sufficient skill in accord with the standards set by the respondent corporation.

Significantly, the respondent company alleges that it has never placed the petitioner on
probation. 9 This could only mean that petitioner's continuance in employment beyond
21 August 1994 was not for probation purposes under the fourth sentence of the second
paragraph of Section 2 reading as follows: "If the employee fails to demonstrate the
ability to master his task during the first six months he can be placed on probation for

another six (6) months after which he will be evaluated for promotion as a regular
employee." If the petitioner was thus allowed to remain in employment beyond 21 August
1994, it could be for no other reason than that he demonstrated "sufficient skill in terms
of his ability to meet the standards set" by the respondent company. He, therefore,
became a regular employee by virtue of the third sentence of the Second paragraph of
Section 2 of the contract.

Stipulation for period of employment contract for probation- Innodata vs Quejada Lopez
-

While this Court has recognized the validity of fixed-term employment contracts in a
number of cases,10 it has consistently emphasized that when the circumstances of a
case show that the periods were imposed to block the acquisition of security of tenure,
they should be struck down for being contrary to law, morals, good customs, public order
or public policy.

Exception to probationary exceeding 6months- busier vs leogardo

-

Generally, the probationary period of employment is limited to six (6) months. The
exception to this general rule is When the parties to an employment contract may agree
otherwise, such as when the same is established by company policy or when the same
is required by the nature of work to be performed by the employee. In the latter case,
there is recognition of the exercise of managerial prerogatives in requiring a longer
period of probationary employment, such as in the present case where the probationary
period was set for eighteen (18) months, i.e. from May, 1980 to October, 1981 inclusive,
especially where the employee must learn a particular kind of work such as selling, or
when the job requires certain qualifications, skills, experience or training.

Policy Instruction No. 11 of the Minister of Labor and Employment has clarified any and
all doubts on the period of probationary employment. It states as follows:

Probationary Employment has been the subject of misunderstanding in some quarter.

Some people believe six (6) months is the probationary period in all cases. On the other
hand employs who have already served the probationary period are sometimes required
to serve again on probation.

Under the Labor Code, six (6) months is the general probationary period ' but the
probationary period is actually the period needed to determine fitness for the job. This
period, for lack of a better measurement is deemed to be the period needed to learn the
job.

The purpose of this policy is to protect the worker at the same time enable the employer
to make a meaningful employee selection. This purpose should be kept in mind in
enforcing this provision of the Code. This issuance shall take effect immediately.

Probationary for apprenticeship- Nito vs NLRC

-

Prior approval by the Department of Labor and Employment of the proposed

apprenticeship program is, therefore, a condition sine quo non before an apprenticeship
agreement can be validly entered into.

The act of filing the proposed apprenticeship program with the Department of Labor and
Employment is a preliminary step towards its final approval and does not
instantaneously give rise to an employer-apprentice relationship.

Req for regularization of Private school teachers- Chang kai check

-

Parenthetically, R.A. No. 4670, otherwise known as the Magna Carta for Public School
Teachers, confers security of tenure on the teacher upon appointment as long as he
possesses the required qualification. 10 And under the present policy of the Department
of Education, Culture and Sports, a teacher becomes permanent and automatically
acquires security of tenure upon completion of three years in the service. 11

Project Employment- hanjin vs Ibanez

-

From the foregoing provision, the principal test for determining whether particular
employees are properly characterized as "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.

Indicators of project Emp- Cocomangas

-

At any rate, after a careful examination of the records, the Court finds that the CA did not
err in finding that respondents were regular employees, not project employees. 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."34 Before an
employee hired on a per-project basis can be dismissed, a report must be made to the
nearest employment office, of the termination of the services of the workers every time
completes a project, pursuant to Policy Instruction No. 20.

n Maraguinot, Jr. v. National Labor Relations Commission,39 the Court ruled that "once a
project or work pool employee has been: (1) continuously, as opposed to intermittently,
rehired by the same employer for the same tasks or nature of tasks; and (2) these tasks
are vital, necessary and indispensable to the usual business or trade of the employer,
then the employee must be deemed a regular employee, pursuant to Article 280 of the
Labor Code and jurisprudence.

Notification as project Emp- abesco vs Ramirez

-

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.10 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.

Contract signed not by EE but by manager only

-

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 of any phase thereof will not mean
severance of employer-employee relationship.

However, if the workers in the work pool are free to leave anytime and offer their
services to other employers then they era project employees employed by a construction
company in a particular project or in a phase thereof.

But the arbiter completed ignored the fact that all the "Contract(s) Employment"
presented in evidence by both petitioner and private respondents had been signed only
by petitioner's president and general manager, Luis F. Ortega, but not by the employees
concerned, who had precisely refused to sign them. The said contracts therefore could
in no wise be deemed conclusive evidence.

Consent- caramel vs NLRC

-

here is no question that stipulation on employment contract providing for a fixed period
of employment such as "project-to-project" contract is valid provided the period was
agreed upon knowingly and voluntarily 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 where 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 over the latter

Exceptions- Brent vs Zamora

-

There is nothing essentially contradictory between a definite period of an employment

contract and the nature of the employee's duties set down in that contract as being
"usually necessary or desirable in the usual business or trade of the employer." The
concept of the employee's duties as being "usually necessary or desirable in the usual
business or trade of the employer" is not synonymous with or identical to employment
with a fixed term. Logically, the decisive determinant in term employment should not be
the activities that the employee is called upon to perform, but the day certain agreed
upon by the parties 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

Absence of a provision of a specific project or employment- Proce vs innodata

-

The employment status of a person is defined and prescribed by law and not by what the
parties say it should be.

The decisive determinant in term employment is the day certain agreed upon by the
parties 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. Seasonal employment and employment for a particular project are
instances of employment in which a period, where not expressly set down, is necessarily
implied

Although the contracts made general references to a "project," such project was neither
named nor described at all therein. The conclusion by the Court of Appeals that
petitioners were hired for the Earthweb project is not supported by any evidence on
record. The one-year period for which petitioners were hired was simply fixed in the
employment contracts without reference or connection to the period required for the
completion of a project. More importantly, there is also a dearth of evidence that such
project or undertaking had already been completed or terminated to justify the dismissal
of petitioners.
Chua vs CA- appraisal

Another cogent factor militates against the allegations of the petitioner. In the
proceedings before the SSC and the Court of Appeals, petitioner was unable to show
that private respondents were appraised of the project nature of their employment, the
specific projects themselves or any phase thereof undertaken by petitioner and for which
private respondents were hired. He failed to show any document such as private
respondents employment contracts and employment records that would indicate the
dates of hiring and termination in relation to the particular construction project or phases
in which they were employed.49 Moreover, it is peculiar that petitioner did not show proof
that he submitted reports of termination after the completion of his construction projects,

considering that he alleges that private respondents were hired and rehired for various
projects or phases of work therein.

Project to regular Employee- maraguinot vs NLRC

A project employee or a member of a work pool may acquire the status of a regular
employee when the following concur:
1) There is a continuous rehiring of project employees even after cessation of a project; 32 and
2) The tasks performed by the alleged "project employee" are vital, necessary and
indispensable to the usual business or trade of the employer. 33
However, the length of time during which the employee was continuously re-hired is not
controlling, but merely serves as a badge of regular employment.

Work pool- Lao vs NLRC

-

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. Clearly, the continuous rehiring of the same set of
employees within the framework of the Lao Group of Companies is strongly indicative
that private respondents were an integral part of a work pool from which petitioners drew
its workers for its various projects.

Work pool data encoding- Imbuido vs NLRC

-

All that we hold today is that once a project or work pool employee has been: (1)
continuously, as opposed to intermittently, re-hired by the same employer for the same
tasks or nature of tasks; and (2) these tasks are vital, necessary and indispensable to
the usual business or trade of the employer, then the employee must be deemed a
regular employee, pursuant to Article 280 of the Labor Code and jurisprudence.

Types of project Emp

1. Within the regular trade or business of ER- magcalas vs NLRC

nder these factual milieu, we believe that they had been engaged to work and perform
activities which were necessary and desirable in the air(-) conditioning and refrigeration
installation/repair business of the respondent employer, especially where, as in this
case, the very nature of such trade indicates that it can hardly fall under the exception of
Policy Instruction No. 20 which applies only to the construction industry. For this reason,
and considering the facts narrated in the complainants(') sworn statements were neither
disputed nor refuted by contrary evidence by the respondent, it becomes apparent and
increasing(ly) clear that indeed they would and ought to be classified as regular
employees.

2. Not withing reg trade or business- Villa vs NLRC

-

The test in determining regularity or employment is the nature of the functions performed
which should be "usually necessary or desirable in the usual business or trade of the
employer." Even if the services rendered are necessary or desirable but they do not
pertain to the usual business or trade of the employer, activity still falls short of being
considered regular employment under the law. It therefore follows that the activity
performed is a casual one. In order for an employment to be categorized as "regular",
the law distinctively requires that the functions and services performed should be
"common and constant" and an every day activity. Stated otherwise, the law mandates
that the functions to be carried out must be "customary" to the trade or business of the
employer.

This rule is, however, subject to exemptions. Where an employment or activity despite
being usually necessary or desirable has been fixed for a specific project or undertaking
the completion of which has been "pre-determined" at the time of engagement or where
the services to be performed is seasonal in nature, the same is still considered "casual"
or "temporary" in nature.

Specific project or undertaking- Tucor vs NLRC

-

"specific project or undertaking" under Article 280 of the Labor Code contemplates an
activity which was commonly or habitually performed or such type of work which is not
done on a daily basis but only for a specific duration of time or until the completion of the
project. The services employed are thus necessary or desirable in the employer's usual
business only for the period of time it takes to complete the project. Without the
performance of such services on a regular basis, the employer's main business is not
expected to grind to a halt.

NO duration of project- PNOC vs NLRC

-

The absence of a definite duration for the project/s has led the Court to conclude that
respondents are, in fact, regular employees.

Lack of evidence to prove Project employment- Olongapo vs Chantengco

-

As mentioned, no convincing evidence was offered to prove that respondents were

informed that they were to be assigned to a "specific project or undertaking." Also, OMSI
never reported respondents' termination to the then Department of Labor and
Employment (DOLE). In Philippine Long Distance Telephone Co. v. Ylagan,15 we held
that the failure of the employee to file termination reports was an indication that an
employee was not a project but a regular employee.

Project to project Emp- Sandoval shipyard

-

Pwede project to project, repairs of ships

Project Electrical- cartagensas Romago

-

Since its work depends on the availability of such contracts or "projects," necessarily the
duration of the employment of its work force is not permanent but co-terminus with the
projects to which they are assigned and from whose payrolls they are paid. It would be
extremely burdensome for their employer who, like them, depends on the availability of
projects, if it would have to carry them as permanent employees and pay them wages
even if there are no projects for them to work on. We hold, therefore, that the NLRC did
not abuse its discretion in finding, based on substantial evidence in the records, that the
petitioners are only project workers of the private respondent.

Repeated rehiring of project to project- Samson vs NLRC

-

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.

Length of Service not a controlling factor- Consunji vs NLRC

-

This Court has 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 the engagement of the employee.

Repeated rehiring of project to project does not ipso facto make EE regular- Cioco vs CE cons
-

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 28011 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.12 It did not
change their status as project employees.

EEs rehired in interval basis- caceres vs universalRobina

-

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. As ruled inPalomares v.
National Labor Relations Commission,18 it would be extremely burdensome for their
employer to retain them as permanent employees and pay them wages even if there
were no projects to work on.

Repeated extension of Project Emp- lao vs NLRC

-

While it may be allowed that in the instant case the workers were initially hired for
specific projects or undertakings of the company and hence can be classified as project
employees, the repeated re-hiring and the continuing need for their services over a long
span of time (the shortest, at seven [7] years) have undeniably made them regular
employees. Thus, we held that 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 considered regular employees.

Seasonal
Seasonal does not becom regular even after service of 1 year
-

as "casual" employees, all other employees who do not fan under the definition of the
preceding paragraph. The proviso, in said second paragraph, deems as regular
employees those "casual" employees who have rendered at least one year of service
regardless of the fact that such service may be continuous or broken.

Seasonal becomes regular after 1 year of service- Corn mills

-

Milling is not just for a season, continous yan

Casual
Casual Ee needs no appointment paper to be reg emp after 1 year- Kimberly vs Sec labor
-

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.
Repeated hiring of casual Emp- tan vs lagrama
-

This Court has held that if the employee has been performing the job for at least one
year, even if not continuously but intermittently, the repeated and continuing need for its
performance is sufficient evidence of the necessity, if not indispensability, of that activity
to the business of his employer. Hence, the employment is also considered regular,
although with respect only to such activity, and while such activity exists.

Fixed period employment- PNOC vs NLRC

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.
Duties need not be necessary or desirable
AMA vs Austria
-

held that Article 280 of the Labor Code does not proscribe or prohibit an employment
contract with a fixed period. Even if the duties of the employee consist of activities
necessary or desirable in the usual business of the employer, the parties are free to
agree on a fixed period of time for the performance of such activities. There is nothing
essentially contradictory between a definite period of employment and the nature of the
employees duties

Fixed term for less than 6 mos same with probi period- caproso vs NLRC
Contract on a 5-month period
-