Week 8 Flashcards
Hacienda Fatima v. National Federation of Sugarcane workers
Art. 295
Seasonal Workers
1. Seasonal Work
2. Employed only for duration of one season
“or where the work or services to be performed is seasonal in nature and the employment is for the duration of the season.”
Note : Respondents worked seasonal jobs at the hacienda. Their work is seasonal but their repeated rehiring makes them regular workers. Not separated from service in said period, but merely considered on leave.
Different from Mercado v. NLRC because they performed the same tasks for several years. They became regular employees for those specific tasks.
https://lawphil.net/judjuris/juri2003/jan2003/gr_149440_2003.html
Test of Regular Employment
Abasolo v. National Labor Relations Commission
- Usually Necessary or Desirable (Role)
- Evidence is repeated rehiring - in the Usual Trade or Business (Business)
Note : If the employee has been performing for at least 1 year (Need not be continuous)
The test is whether the former is usually necessary or desirable in the usual trade or business 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 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.
Goma v. Pamplona
- Carpenter
- Hired by “previous entity”
- Employed continuously for more than a year
2 KINDS OF REGULAR
(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.
“Simply stated, regular employees are classified into: regular employees by nature of work; and 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. 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.”
https://lawphil.net/judjuris/juri2008/jul2008/gr_160905_2008.html
Negative Pregnant example (Goma v. Pamplona)
They argued that he was project employee thereby admitting an employer employee relationship.
A negative statement pregnant with a positive affirmation
If A works as a street sweeper for B for 1 year does he gain security of tenure as an employee of B?
Not exactly, he becomes regular as a STREET SWEEPER.
He cannot obtain benefits of the CBA of the lawyers.
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.
What is the purpose of becoming regular?
Regularization -> Security of Tenure
NOT benefits, you get those before reg
Hanjin v. Ibanez
MRT/LRT project construction workers.
GR : Construction workers who work longer than a year become regs.
E : If the contract of employment is to the contrary. (Project etc)
https://docs.google.com/document/d/1pcMkKbkjFenuP0nXaekcnbhazZmetS4F/edit#heading=h.gjdgxs
Hanjin failed to show that the respondents were made to sign contracts stipulating that they would be employed on a project basis only, either due to the claim that lapses in management caused no contract to be signed, or the claim that they could not present the same even if there were. This has been construed as a red flag in cases involving the question whether employees are regular or project-based.
6 Indicators of Project Employee for Construction Employees
Sec. 2.2(e)(f) DO 19 Ser. 1993
- Determinable Duration
- Specified and Clear
- Connected
- Free
- Report
- Bonus
- 2 Indicators of project employment. - Either one or more of the following circumstances, among others, may be considered as indicators that an employee is a project employee.
(a) The duration of the specific/identified undertaking for which the worker is engaged is reasonably determinable.
(b) Such duration, as well as the specific work/service to be performed, is defined in an employment agreement and is made clear to the employee at the time of hiring.
(c) The work/service performed by the employee is in connection with the particular project/undertaking for which he is engaged.
(d) The employee, while not employed and awaiting engagement, is free to offer his services to any other employer.
(e) The termination of his employment in the particular project/undertaking is reported to the Department of Labor and Employment (DOLE) Regional Office having jurisdiction over the workplace within 30 days following the date of his separation from work, using the prescribed form on employees’ terminations/dismissals/suspensions.
(f) An undertaking in the employment contract by the employer to pay completion bonus to the project employee as practiced by most construction companies. (Emphasis provided.)
What is a completion bonus?
Incentive for construction to finish faster. Not essential.
May one be a project employee in the absence of a WRITTEN contract?
Yes. The SC implied it in Hanjin v. Ibanez.
Theoretically, if one can establish that it was a project employment another way.
Are project employees for only construction?
No.
Innodata Knowledge Services Inc. v. Inting
“MOVED BETWEEN PROJECTS”
Did reviewing of US legal documents. Respondents are regular :
1. Moved between projects
2. Different termination dates.
Fixed Term Employees (From juris)
-not proj. employees
Distinguish fixed term vs project employment
Fixed term - Any Day Certain which must necessarily come even though the specific date is unknown.
Project - When the project is finished.
Day Certain vs Project
Day Certain - sure that it will come eventually
- Any
For example construction of a house is a project with day certain despite not having a date certain.
2 Types of Projects (&project employees)
- Usual and Regular Business of employer
- Construction company building a company
- Not Usual and Regular but will eventually end (akin to contracting)
- Law Office paying someone to renovate the bathroom.
What is a regular project employees?
When you keep rehiring a project employee the employee attains tenure. He has tenure but must be assigned to a new project each time.
XYZ is a window installation company that moves its skilled project employees from Mall to Mall. (Trinoma to SM etc)
What type of employees are these?
The employees are in a work pool. Because it is a work pool they can become regular if (1) Continuous rehiring (2) tasks vital, necessary and indispensable
You have to assign them to a project.
Does usual and necessary work always mean regular employee?
No. There are usual and necessary project employees. It is an exception. (Lainez 44:55, Nov 12)
However, once they have been repeatedly rehired, they may be considered a work pool and therefore regular.
Innodata creates project employment contracts for transcription work on the OJ Simpson case. Innodata also sets a fixed period of 5 years for the employment period.
Discuss
They are mixing and matching. They cannot have it be project and fixed term at the same time. It may be a project employment if it may last past the project.
Therefore, di pwede
(51:48, Nov 12)
Are contractual employees and project employees the same?
No. whole’nother animal (Lainez)
Are contractual employees the same as independent contractor employees?
No.
Contractual employees - they have a contract
Independent contracting - Contractor’s employees
Universal Robina Sugar Milling Corp. and Cabati v. Ang
Regular Seasonal Employees
Why is it important to distinguish between regular employees who perform duties year round and regular seasonal employees?
Won’t be qualified to the same CBA benefits
Brent School v. Zamora
FIXED TERM IS ALLOWED
W/N the labor code “anathem-ized fixed period employment”. (NO)
Contract (5 years) -> LC created -> Complaint
It was a just cause for termination.
When Security of Tenure
It should have no application to instances where :
(1) a fixed period of employment was agreed upon knowingly and voluntarily 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) 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.
What is Paz v. Northern Tobacco Redrying Co.?
Seasonal
(Important for Work pool vs Rehiring)
Same as Hacienda Fatima case
Is the nature of employment (usual and necessary) and fixed term mutually exclusive?
No. We just agreed that at a certain point you may be terminated for end of term. BUT before that point you have all the usual protections.
The SC court cited several types of fixed term required by law even if not in the LC, can you give examples? (Brent School v. Zamora)
Admin Positions in Schools, Corp. Officers, OFWs
What is the Problem with Brent ?
THIS IS WHAT ENDO IS. 555
SM 555. 5 month contract into 5 month contract.
BUT fixed term cannot be used to circumvent tenure. This case has been so abused by so many corporations.
Brent v. Zamora contemplates a white collar position. The Brent employee was a director, he can walk away from a fixed term contract. He has leverage to negotiate. A bagger for SM cannot. A bagger for SM needs a job. It’s a contract of adhesion. That is not an “arms length transaction”.
” where it satisfactorily appears that the employer and employee dealt with each other on more or less equal terms with no moral dominance”
Fonterra Brands Phils., Inc. v. Lagardo
Fixed term employees that severed their own employment. They cannot now claim they are regular employees. They knowingly understood what they were doing.
Phi. Telegraph v. NLRC
They used her pregnancy as a pretext and claimed it was concealment.
Cathay v. Marin
He wasn’t furnished with a document of the REASONABLE STANDARDS but he was made aware of them. This is enough.
(Pro employer case - Lainez)
What are the grounds for terminating a proby? (Cathay)
- Just Cause
2. Failure to Qualify
Does the written contract have to include the standards for probationary employees?
No. But the employer must prove the employee knew the standards. (Cathay v. Marin, 12:55, Nov 17)
Is twin notice rule required in probationary employment?
Yes you just need to present proof that they were evaluated. Sub reports, forms etc.
What is a graceful exit offer?
The employer offers the employee to just resign so that future employers don’t see the official record.
There is nothing wrong with this but it can be taken the wrong way if offered from the start.
(NOT RECOMMENDED)
What is best practice for probationary employment?
- Write the standards on the contract
2. Evaluation Review
Umali v. Hobbywing Solutions, Inc
If a proby is allowed to work even 1 minute after the 6 month period, automatic reg.
Does an employer have to wait 6 months before making an evaluation and dismissing a proby?
No. (23:40, Lainez, Nov 17)
Extension of Probationary employment? (Longer than 6 months)
Lainez doesn’t believe it should be extendible.
There is jurisprudence that suggests:
- It should be the employee to ask for another chance.
- Allowed in cases when the skill is HIGHLY TECHNICAL and more time is required to evaluate
What are the rules for allowing an proby to work past the 6 month period?
GR : regularize E : 1. Employee asks for another chance 2. Highly technical position 3. Employment contract says otherwise (employer must prove)
What is Casual Employment?
- Not usually necessary or
- Not desirable in the usual business or trade
- Not more than 1 year
- Not Seasonal
- Not Project
If the employer doesn’t specify the type of employment, what type is it?
Regular. The burden is on the employer to prove it’s something else.
Must the reasonable standard always be given to the proby?
No. If the behavior is contrary to basic knowledge and common sense, it doesn’t need to be written down. For example, chronic tardiness (Carvajal v. Luzon)
the rule on reasonable standards made known to the employee prior to engagement should not be used to exculpate a probationary employee who acts in a manner CONTRARY TO BASIC KNOWLEDGE AND COMMON SENSE, in regard to which there is no need to spell out a policy or standard to be met.
(Aberdeen Court, Inc. v. Agustin, Jr.,23 )
Carvajal v. Luzon
Chronically tardy proby bank teller.
Mitsubish v. Chrysler
Employee worked for Mits then left for Saudi.
Employee came back and worked as proby for 183 days.
Employee became regularized again.
How do we calculate 6 months of probationary employment?
In Mitsubishi v. Chrysler the SC applied Art. 13.
180 days
Villanueva v. NLRC
You cannot put a probationary period in a fixed term employment.
You cannot put a probationary period in a project employment.
https://docs.google.com/document/d/1U7FI3S46OuJ_X88yF-gr3fetlAaaSiVA/edit
Necessity of notification of termination in Fixed term v. Proby
Fixed Term - No need. Yun na Yun
Proby - No formal req. needed but practically speaking it stops the timer.
Is there such a thing as OJTs?
GR : No
E : School sponsored OJTs
(CHED Memorandum on practicum)
Explain the dole advisory on suspending the 180 day DOLE proby period
56:30 Lainez, Nov 17
Distinguish authorized cause and just cause
just - employee did something
authorized - employee didn’t do anything
Test of Project Employment
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.
When does a project employee member of a work pool become regularized?
- Continuous rehiring after cessation of project
2. Tasks are vital, necessary and indispensable to the usual business or trade of the employer
