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1G.R.No.70705August21,1989176SCRA615MOISES DE LEON, vs.NATIONAL LABOR RELATIONSCOMMISSIONand

LATONDEAINC.,FERNAN,C.J.:FACTS:

Petitioner DE LEON was employed by LATONDENA(businessofmanufactureanddistilleryofwinesand liquors)onDec11,1981,attheMaintenanceSectionof its Engineering Dept in Tondo. His work consistedmainlyofpaintingcompanybuildingandequipment,andotheroddjobsrelatingtomaintenance.Hewaspaidonadaily basis through petty cash vouchers.After service ofmorethan1year,DELEONrequestedthathebeincludedinthepayrollofregularworkers.LATONDENArespondedbydismissinghimfromwork.Weeksafterthis,hewasrehired indirectly through the Vitas Magsaysay VillageLivelihoodCouncil,alaboragencyofrespondent,andwasmadetoperformtasksheusedtodo.Havingbeenrefusedreinstatementdespite repeateddemands,petitioner fileda complaint before the Office of the Labor Arbiter. LATONDENA claimed hewas a casualworker hired only topaint a certain bldg in the company premises, and suchwork terminated upon completion of the painting job.Labor Arbiter Hernandez ordered reinstatement andpayment of backwages to petitioner stating thatComplainant's being hired on casual basis did notdissuade from the cold fact that such jobsheperformedrelatedtomaintenanceasamaintenancemanisnecessaryand desirable to the better operation of the businesscompany. On appeal, NLRC reversed such decisionbecause his job cannot be considered necessary in theusualtradeofemployerstatingthat"Paintingthebusinessor factory building is not a part of the respondent'smanufacturingordistillingprocessofwinesandliquors.ISSUE:

WhetherornotpetitionerisaregularemployeeRULING:

Yes. An employment shall be deemed to becasual if it is not covered by Art.281 of Labor Codeprovided, that any employeewho has rendered at leastoneyearofservice,whethersuchserviceiscontinuousorbroken, shall be considered a regular employee withrespect to the activity in which he is employed and hisemploymentshallcontinuewhilesuchactuallyexists.

It is selfserving, to say the least, to isolatepetitioner'spaintingjobtojustifythepropositionofcasualemployment and conveniently disregard the othermaintenanceactivitiesofpetitionerwhichwereassignedby the respondent company when he was not painting.The law demands that the nature and entirety of theactivities performed by the employee be considered. Inthecaseofpetitioner,thepaintingandmaintenanceworkgiven him manifest a treatment consistent with amaintenancemanandnotjustapainter,forifhisjobwastruly only to paint a building therewould have been nobasis for giving him otherwork assignments In betweenpaintingactivities.

It isnot tenable toargue that thepaintingandmaintenance work of petitioner are not necessary inrespondent'sbusinessofmanufacturingliquorsandwines,justas itcannotbe said thatonly thosewhoaredirectlyinvolved in the process of producing wines and liquorsmay be considered as necessary employees. Otherwise,there would have been no need for the regularMaintenance Section of respondent company'sEngineeringDepartment,mannedbyregularemployees.

Furthermore,thepetitionerperformedhisworkof painting and maintenance activities during hisemployment in respondent's business which lasted formore than one year, until early January, 1983 when hedemanded to be regularized and was subsequentlydismissed.Certainly,bythisfactaloneheisentitledbylawto be considered a regular employee. And consideringfurther that weeks after his dismissal, petitioner wasrehiredby the company througha laboragencyandwasreturnedtohispostintheMaintenanceSectionandmadeto perform the same activities that he used to do, itcannot be denied that his activities as a regular painterandmaintenancemanstillexist.

Itisofnomomentthatpetitionerwastoldwhenhewashired thathisemploymentwouldonlybe casual.Thatdetermineswhetheracertainemploymentisregularor casual is not the will and word of the employer, to

whichthedesperateworkeroftenaccedes,much lesstheprocedureofhiringtheemployeeorthemannerofpayinghis salary. It is the nature of the activities performed inrelationtotheparticularbusinessortradeconsideringallcircumstances,andinsomecasesthelengthoftimeofitsperformanceanditscontinuedexistence. Petitionisgranted.Respondentisorderedtopaypetitionerhisbenefits.2

G.R.No.125606October7,1998 297SCRA277SAN MIGUEL CORPORATION, vs.NATIONAL LABORRELATIONS

COMMISSION, THIRD DIVISION, and DEGUZMANQUISUMBING,J.:FACTS:

In November 1990, Francisco De Guzman, JR.was hired by SMC as helper/bricklayer for a specificproject,therepairandupgradingoffurnaceCatitsManilaGlassPlant.Hiscontractofemploymentprovidedthatsaidtemporary employment was for a specific period ofapproximately 4 months. On April 30, 1991,De GuzmanwasabletocompletetherepairandupgradingoffurnaceC,hencehisserviceswereterminatedonthatsameday.

OnMay 10, 1991,DeGuzmanwas again hiredfor a specific job which involved the draining/coolingdownoffurnaceFandtheemergencyrepairoffurnaceE.Thisprojectwas for a specificperiodof approximately3months.After the completion of this task, at the endofJuly1991,DeGuzman'sserviceswereterminated.

OnAug.1,1991,complainantsawhisname inaMemorandumpostedat theCompany'sBulletinBoardasamongthosewhowereconsidereddismissed.

OnAug.12,1994,orafterthelapseofmorethan3 years from the completion of the last undertaking forwhich De Guzman was hired, he filed a complaint forillegaldismissalagainstSMC.

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OnJune30,1995,laborArbiterFelipeGarduqueIIrenderedthedecisiondismissingsaidcomplaintfor lackofmerit,sustainingSMC'sargumentthatDeGuzmanwasaprojectemployee.Moreover,his silence formore thanthree(3)yearswithoutanyreasonableexplanationtendedtoweakenhisclaim.

Upon appeal, NLRC reversed Labor ArbiterGarduque'sdecision. In itsruling,NLRCstatedthatSMCsscheme ofsubsequently rehiring complainant after only10daysfromthelastdayoftheexpirationofhiscontractofemploymentforaspecificperiod,andgivinghimagainanother contract ofemployment for another specificperiodcannotbecountenanced.This isonewayofdoingviolencetotheemployee'sconstitutionalrighttosecurityof tenure under which even employees underprobationary status are amply protected. SMCs motionforreconsiderationwasdeniedbyNLRC.ISSUES:

1. Whether or not De Guzman is a regularemployee

2. Whether or not De Guzman was illegallydismissedRULING:1. NO. Art. 280 of the Labor Code which definesregular, project, and casual employment reinforces theConstitutionalmandatetoprotectthe interestof laborasitsetsthelegalframeworkforascertainingone'snatureofemployment, and distinguishing different kinds ofemployees.Itslanguagemanifeststheintenttosafeguardthe tenurial interest of worker who may be denied theenjoymentoftherightsandbenefitsduetoanemployee,regardlessof thenatureofhisemployment,by virtueoflopsided agreements which the economically powerfulemployerwho canmaneuver to keep an employeeon acasualorcontractualstatusforas longas it isconvenienttotheemployer.

Thus, under Article 280 of the Labor Code, anemployment is deemed regular when the activitiesperformed by the employee are usually necessary ordesirable in theusualbusinessor tradeof theemployereven if the parties enter into an agreement statingotherwise. But considered notregular under said articleare the socalled "projectemployees" the terminationofwhich is more or less determinable at the time of

employment,suchasthoseconnected,whichbyitsnatureisonlyforoneseasonoftheyearandtheemployment islimited for the duration ofthat season, such as theChristmas holiday season. Nevertheless, an exception tothisexceptionismade:anyemployeewhohasrenderedatleast1yearofservice,whethercontinuousorbroken,withrespect to the activity he performed and while suchactivityactuallyexists,mustbedeemedregular.

TheplantwhereDeGuzmanwasemployed foronly7monthsisengagedinthemanufacturerofglass,anintegral component of the packaging andmanufacturingbusinessofpetitioner.Theprocessofmanufacturingglassrequiresafurnace,whichhasalimitedoperatinglife.SMCresorted to hiring project or fixed term employees inhaving said furnaces repaired since said activity is notregularlyperformed. Said furnaces are tobe repairedoroverhauled only in case of need and after being usedcontinuously for a varyingperiodof510 years. In1990,one of the furnaces of petitioner required repair andupgrading. Thiswasanundertakingdistinctandseparatefrom SMC's business of manufacturing glass. For thispurpose, SMC must hire workers to undertake the saidrepairandupgrading.DeGuzmanwas,thus,hiredbySMCon November 28, 1990 on a"temporary status for aspecificjob"foradeterminedperiodofapproximatelyfourmonths.Uponcompletionof theundertaking,oronApril30, 1991,DeGuzman's serviceswere terminated.A fewdays, thereafter, two of SMC's furnaces required"draining/coolong down" and "emergency repair". DeGuzmanwas again hired onMay 10,1991 to help in thenew undertaking, which would take approximately 3months to accomplish. Upon completion of the secondundertaking, private respondent's services were likewiseterminated. Hewas not hired a third time, and his twoengagementstakentogetherdidnottotalonefullyear inorder to qualify him as an exception to the exceptionfallingunderthecitedproviso inthesecondparagraphofArt.280oftheLaborCode.

2. NO. De Guzman was hired for a specificproject that was not within the regular business of thecorporation for SMC is not engaged in the business ofrepairing furnaces. Such undertakings were alsoidentifiablyseparateanddistinctfromtheusual,ordinaryorregularbusinessoperationsofpetitioner,whichisglassmanufacturing.These undertakings, the duration and

scopeofwhichhadbeendeterminedandmadeknowntoprivaterespondentatthetimeofhisemploymentclearlyindicated the nature of his employment as a projectemployee.Thus,hisserviceswereterminated legallyafterthecompletionoftheproject.Petition is hereby GRANTED. The decision ofthe LaborArbiterisREINSTATED.

3TABASvs.CALIFORNIAMANUFACTURINGCOMPANY,INC.SARMIENTO,J.:

The petitioners petitioned theNational LaborRelations Commission for reinstatement and payment ofvariousbenefits, including minimum wage, overtime pay,holiday pay, thirteenmonth pay, and emergency cost oflivingallowancepay,againsttherespondent,theCaliforniaManufacturingCompany.

The California Manufacturing Company(California) filed a motion to dismiss and denied theexistenceofanemployeremployee relationbetween thepetitionersandthecompanyandanyliabilityforpaymentof money claims. On motion of the petitioners, LiviManpowerServices, Inc. (Livi)was impleadedasapartyrespondent. It appears that the petitioners wereemployeesof(Livi),whichsubsequentlyassignedthemtoworkas"promotionalmerchandisers"fortheformerfirm.

Theagreementprovided thatCalifornia"hasnocontrolorsupervisionsover[Livi's]workerswithrespecttohow they accomplish theirwork or perform [Californias]obligation";the Livi "is an independent contractor andnothing herein contained shall be construed as creatingbetween [California] and [Livi] . . . the relationship ofprincipalagentoremployeremployee'; that "it isherebyagreed that it is thesoleresponsibilityof [Livi] tocomplywithallexistingaswellas future lawsthat"[California] isfreeandharmlessfromanyliabilityarisingfromsuchlawsor from any accident that may befall workers andemployees of [Livi] while in the performance of theirduties for[California].It was further expressly stipulatedthat theassignmentofworkers toCaliforniashallbeona"seasonal and contractual basis.The petitioners werethenmade to sign employment contractswith durationsofsixmonths.

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Thepetitionersnowallegethattheyhadbecome

regular California employeesand demandsimilar benefits.They likewise claim that pending further proceedingsbelow, they were notified by California that they wouldnot be rehired. As a result, they filed an amendedcomplaintchargingCaliforniawithillegaldismissal.

California admits having refused to accept thepetitionersbacktoworkbutdenyliabilitythereforforthereasonthatitisnotthepetitioners'employerandthatthe"retrenchment"hadbeenforcedbybusinesslossesaswellasexpirationofcontracts.

The labor arbiter's decision ruled against theexistenceofanyemployeremployeerelationbetweenthepetitioner and California in the light of the manpowersupplycontractandagainstthe latter's liability.The laborarbiter absolved Livi from any obligation because the"retrenchment" in question was allegedly "beyond itscontrol."TheCAfurtheraffirmed.Issue:WhetherthepetitionersareCalifornia'semployees.Held:Yes.TheSC reversed thedecisionsofCAand LaborArbiter. The petitioners are the employees of Californiawhile Livi isan independent contractor.Theexistenceofanemployeremployees relation isaquestionof lawandbeing such, itcannotbemade the subjectofagreement.Hence, the fact that the manpower supply agreementbetweenLiviandCaliforniahadspecificallydesignatedtheformerasthepetitioners'employerandhadabsolvedthelatter from any liability as an employer, will not eraseeitherparty'sobligationsasanemployer, ifanemployeremployee relationotherwiseexistsbetween theworkersandeitherfirm.ThisCourthasconsistentlyruledthatthedetermination of whether or not there is an employeremployee relation depends upon four standards: (1) themanner of selection and engagement of the putativeemployee; (2) the mode of payment of wages; (3) thepresenceorabsenceofapowerofdismissal;and (4) thepresence or absence of a power to control the putativeemployee'sconduct,whichisthemostdecisivefactor.Andinthelaboronlycontracting,the"laboronly"contractorisconsidered "merely an agent of the employer," and

liability must be shouldered by either one or shared byboth.

On the one hand, Livi performs "manpowerservices",meaningtosay,itcontractsoutlaborinfavorofclients.Weholdthatitis"anindependentcontractor."Thebare fact that Livi maintains a separate line of businessdoes not extinguish the equal fact that it has providedCalifornia with workers to pursue the latter's ownbusiness. In this connection, we do not agree that thepetitionershadbeenmadetoperformactivities'whicharenot directly related to the general business ofmanufacturing," California's purported "principaloperationactivity.Thepetitioner'shadbeenchargedwith"merchandizing promotion or sale of the products of[California] in thedifferent salesoutlets inMetroManilaincludingtaskandoccasionalpricetagging,"anactivitythatis doubtless, an integral part of the manufacturingbusiness. It is not, then, as if Livi had served as its(California's) promotions or sales arm or agent, but as aplacement agency, had simply supplied it with themanpower necessary to carry out its (California's)merchandising activities, using its (California's) premisesandequipment.

For another, and aswe indicated, the relationsof parties must be judged from case to case and thedecreeoflaw,andnotbydeclarationsofparties.Thefactthat thepetitionershavebeenhiredona "temporaryorseasonal"basismerelyisnoargumenteither.Atemporaryor casualemployee,underArticle218of the LaborCode,becomes regularafter serviceofoneyear,unlesshehasbeencontractedforaspecificproject.Andwecannotsaythat merchandising is a specific project for the obviousreason that it is an activity related to the daytodayoperationsofCalifornia.

Accordingly,underArticle281of theCode, theyhad become regular employeesofCaliforniaand hadacquired a security of tenure. Hence, they cannot beseparatedwithoutdueprocessoflaw.Thus, SCordered theCaliforniaManufacturingCompany,to reinstate the petitionerswith full status and rights ofregularemployees;andtheLiviManpowerService, Inc.topay, jointlyandseverally,unto thepetitionersbackwagesandothersalaries4

PHILIPS SEMICONDUCTORS (PHILS.), INC., vs. ELOISAFADRIQUELA,CALLEJO,SR.,J.:Philips Semiconductors (Phils.), Inc. is a domesticcorporation engaged in the production and assembly ofsemiconductors. Aside from contractual employees, thepetitioner employed 1,029 regular workers. Theemployees were subjected to periodic performanceappraisalbasedonoutput,quality, attendance andworkattitude.

On May 8, 1992, respondent Eloisa FadriquelaexecutedaContractofEmploymentwith thepetitioner inwhichshewashiredasaproductionoperator.Her initialcontract was for a period of three monthsbut wasextended for severalmonthsuntil June 1993because ofhergoodperformance.However,sheincurred5absencesinthemonthofApril,3absencesinthemonthofMayand4absencesinthemonthofJune.10LinesupervisorShirleyF.Velayoaskedtherespondentwhysheincurredthesaidabsences, but the latter failed to explain her side. As aresult, the respondentscontract of employment was nolongerrenewed.

The respondent filed a complaint before the

National Labor Relations Commission (NLRC) for illegaldismissalagainst thepetitioner.Shealleged thatshewasillegally dismissed, as there was no valid cause for theterminationof her employment. Shewasnot notifiedofany infractions sheallegedly committed;neitherwas sheaccordedachancetobeheard.Furthermore,consideringthatshehadrenderedmorethansixmonthsofservicetothe petitioner, she was already a regular employee andcouldnotbeterminatedwithoutanyjustifiablecause.LaborArbitersdecision:dismissed thecomplaint for lackofmeritdeclaringthattherespondent,whohadrenderedlessthan17monthsofservicetothepetitioner,cannotbesaid to have acquired regular status. The petitioner andthePhilipsSemiconductorPhils., Inc.,WorkersUnionhadagreedintheirCollectiveBargainingAgreement(CBA)thata contractual employee would acquire a regularemployment status only upon completion of seventeenmonthsofservice.NLRC: affirmed the Labor Arbiters decision. The NLRCexplainedthattherespondentwasacontractualemployee

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whoseperiodofemploymentwas fixed in the successivecontracts of employment she had executed with thepetitioner.CA:reversed the decisions of the NLRC and the LaborArbiter.TheCAheldthattheCBAandtheMinutesoftheMeetingbetweentheunionandthemanagementshowedthattheCBAdidnotcovercontractualemployeesliketherespondent. Thus, the seventeenthmonth probationaryperiodunder theCBAdidnotapply toher.TheCA ruledthatunderArticle280oftheLaborCode,regardlessofthewritten and oral agreements between an employee andher employer, an employee shall be deemed tohaveattained regular status when engaged to performactivitieswhich are necessary and desirable in the usualtradeorbusinessoftheemployer.Evencasualemployeesshallbedeemed regularemployees if theyhad renderedat least one year of service to the employer, whetherbrokenorcontinuous.Issue: Whether or not the respondent was still acontractualemployeeofthepetitioner.Held: No.The respondent is a regular employee.Philipscontends that the policy of hiringworkers for a specificandlimitedperiodonan"asneededbasis,"asadoptedbythepetitioner, isnotnew;neither is itprohibited. Infact,according to the petitioner, the hiring of workers for aspecific and limited period is a valid exercise ofmanagement prerogative. It does not necessarily followthatwherethedutiesoftheemployeeconsistofactivitiesusually necessary or desirable in the usual course ofbusinessof theemployer, thepartiesare forbidden fromagreeingonaperiodoftimefortheperformanceofsuchactivities. Hence, there is nothing essentiallycontradictorybetween a definite period of employmentandthenatureoftheemployeesduties.

Inrulingfortherespondent,theappellatecourtappliedArticle280oftheLaborCodeofthePhilippines,asamended,whichreads:Art.280.RegularandCasualEmployment.Theprovisionsofwrittenagreementtothecontrarynotwithstandingandregardless of the oral argument of the parties, anemployment shall be deemed to be regular where theemployee has been engaged to perform activitieswhichareusuallynecessaryordesirableintheusualbusinessor

tradeoftheemployer,exceptwheretheemploymenthasbeen fixed for a specificproject or undertaking thecompletionorterminationofwhichhasbeendeterminedatthetimeoftheengagementoftheemployeeorwheretheworkorservicestobeperformedisseasonalinnatureandtheemploymentisforthedurationoftheseason.

Anemploymentshallbedeemedtobecasual ifit is not covered by the precedingparagraph; Provided,That,anyemployeewhohasrenderedatleastoneyearofservice, whether such service is continuous or broken,shallbeconsideredaregularemployeewithrespecttotheactivityinwhichheisemployedandhisemploymentshallcontinuewhilesuchactivityexists.

It isapparent from the factualcircumstancesofthiscasethattheperiodofemploymenthasbeenimposedto preclude acquisition of tenurial security bypetitioner.Thefactthatthepetitionerhadrenderedmorethanoneyearofserviceat the timeofhisdismissalonlyshows that she isperforming an activitywhich isusuallynecessary anddesirable in private respondents businessor trade. The work of petitioner is hardly "specific" or"seasonal." The petitioner is, therefore, a regularemployee of private respondent, the provisions of theircontract of employment notwithstanding. The privaterespondents prepared employment contracts placedpetitioner at the mercy of those who crafted the saidcontract.

Article280of theLaborCodeof thePhilippineswas emplaced in our statute books toprevent thecircumvention by unscrupulous employers of theemployees right to be secure in his tenure byindiscriminatelyandcompletely rulingoutallwrittenandoralagreements inconsistentwith the conceptof regularemployment defined therein. The language of the lawmanifeststheintenttoprotectthetenurialinterestoftheworkerwhomaybedenied therightsandbenefitsduearegular employee because of lopsided agreements withthe economically powerful employerwho canmaneuvertokeepanemployeeonacasualor temporarystatus foraslongasitisconvenienttoit.

Thetwokindsofregularemployeesunderthe laware(1)thoseengagedtoperformactivitieswhicharenecessaryordesirable in theusualbusinessor tradeof theemployer;

and (2) those casual employees who have rendered atleastoneyearof service,whether continuousorbroken,withrespecttotheactivities inwhichtheyareemployed.Theprimarystandardtodeterminearegularemploymentis the reasonable connection between the particularactivity performed by the employee in relation to thebusinessortradeoftheemployer.Thetestiswhethertheformer is usually necessary or desirable in the usualbusiness or trade of the employer. If the employee hasbeenperformingthe jobforat leastoneyear,even iftheperformanceisnotcontinuousormerelyintermittent,thelaw deems the repeated and continuing need for itsperformanceassufficientevidenceofthenecessity,ifnotindispensability of that activity to the business of theemployer. Hence, the employment is also consideredregular, but onlywith respect to such activity andwhilesuch activity exists.The law does not provide thequalification that the employee must first be issued aregularappointmentormustbedeclaredas suchbeforehecanacquirearegularemployeestatus.In this case, the respondent was employed by thepetitioneronMay8,1992asproductionoperator.Shewasassignedtowirebuildingatthetransistordivision.Thereisnodisputethattheworkoftherespondentwasnecessaryordesirable in thebusinessor tradeof thepetitioner.24Sheremainedundertheemployofthepetitionerwithoutany interruptionsinceMay8,1992toJune4,1993orforone (1) year and twentyeight (28) days. The originalcontract of employment hadbeen extended or renewedforfourtimes,tothesameposition,withthesamechores.Suchacontinuingneedfortheservicesoftherespondentissufficientevidenceofthenecessityand indispensabilityofherservicestothepetitionersbusiness.Byoperationoflaw,then,therespondenthadattainedtheregularstatusofheremploymentwiththepetitioner,andisthusentitledtosecurityoftenure.5

Magsalin & CocaCola Bottlers Phils. Inc. v. NationalOrganizationofWorkingMenet.alG.R.No.148492May9,2003Vitug,J:

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FACTS:CocaCola Bottlers Phils., Inc. engaged the services ofrespondentworkersas"salesroutehelpers" fora limitedperiod of five months. After five months, respondentworkerswereemployedbyCocaColaBottlersonadaytoday basis. According to CocaCola Bottlers, respondentworkerswere hired to substitute for regular sales routehelperswheneverthelatterwouldbeunavailableorwhentherewouldbeanunexpected shortageofmanpower inanyofitsworkplacesoranunusuallyhighvolumeofwork.The practicewas for theworkers towait everymorningoutsidethegatesofthesalesofficeofCocaColaBottlers.Ifthushired,theworkerswouldthenbepaidtheirwagesattheendoftheday.Ultimately,respondentworkersaskedCocaColatoextendto them regular appointments. Petitioner companyrefused.The23ofthe"temporary"workersfiledwiththeNLRC a complaint for the regularization of theiremploymentwithCocaCola.ISSUE:whetherornot thenatureofworkof respondents in thecompanyisofsuchnatureastobedeemednecessaryanddesirable in theusualbusinessor tradeofpetitioner thatcouldqualifythemtoberegularemployees.HELD:YES.Thebasic lawonthecase isArticle280oftheLaborCode.The standard, supplied by the law itself, is whether thework undertaken is necessary or desirable in the usualbusiness or trade of the employer, a fact that can beassessed by looking into the nature of the servicesrendered and its relation to the general scheme underwhichthebusinessortradeispursuedintheusualcourse.It is distinguished from a specific undertaking that isdivorcedfromthenormalactivitiesrequiredincarryingontheparticularbusinessortrade.But, although the work to be performed is only for aspecificprojectorseasonal,whereapersonthusengagedhasbeenperformingthe jobforat leastoneyear,even ifthe performance is not continuous or is merelyintermittent, the lawdeems the repeatedandcontinuingneedforitsperformanceasbeingsufficienttoindicatethenecessityordesirabilityofthatactivity tothebusinessor

tradeoftheemployer.Theemploymentofsuchpersonisalso then deemed to be regular with respect to suchactivityandwhilesuchactivityexists.Thenatureoftheworkperformedmustbeviewedfromaperspectiveofthebusinessortradeinitsentiretyandnotonaconfinedscope.The repeated rehiring of respondent workers and thecontinuing need for their services clearly attest to thenecessity or desirability of their services in the regularconduct of the business or trade of petitioner company.The Court of Appeals has found each of respondents tohaveworkedforatleastoneyearwithCocaCola.The fact that respondent workers have agreed to beemployedonsuchbasisandtoforegotheprotectiongiventothemontheirsecurityoftenure,demonstratenothingmore than the seriousproblemof impoverishmentof somanyofourpeopleandtheresultingunevennessbetweenlaborandcapital.Acontractofemployment is impressedwithpublicinterest.6

Hacienda Fatima v. National Federation of SugarcaneWorkersFoodandGeneralTradeG.R.No.149440January28,2003Panganiban,J:FACTS:It appeared that respondents did not look with favorworkers'havingorganized themselves intoaunion.Thus,when complainant union was certified as the collectivebargaining representative in the certification elections,respondents refused to sit downwith the union for thepurpose of entering into a collective bargainingagreement.Moreover,theworkersincludingcomplainantshereinwerenotgivenworkformorethanonemonth.Inprotest,complainants staged a strikewhichwas however settleduponthesigningofaMemorandumofAgreement."However,allegingthatcomplainantsfailedtoloadthe15wagons, respondents reneged on its commitment to sitdown and bargain collectively. Instead, respondentemployed all means including the use of private armed

guards to prevent the organizers from entering thepremises.Respondentsdidnotanymoregiveworkassignments tothe complainants forcing theunion to stagea strike.Butdue to the conciliation efforts by the DOLE, anotherMemorandum of Agreement was signed by thecomplainantsandrespondents.When respondents again reneged on its commitment;complainantsfiledthepresentcomplaint.But for all their persistence, complainants were beingaccusedof 'refusingtoworkandbeingchoosy inthekindofworktheyhavetoperform.ISSUE:Whether or not respondents , admittedly seasonalworkers,wereregularemployeesHELD:YES. Article 280 of the Labor Code provides that anemployment shall be deemed to be regular where theemployee has been engaged to perform activities whichareusuallynecessaryordesirable intheusualbusinessortradeof theemployer,exceptwhere theemploymenthasbeen fixed for a specific project or undertaking thecompletionor terminationofwhichhasbeendeterminedat the timeof theengagementof theemployeeorwheretheworkorservicestobeperformedisseasonalinnatureandtheemploymentisforthedurationoftheseason.For respondents to be excluded from those classified asregular employees, it is not enough that they performwork or services that are seasonal in nature. Theymusthave also been employed only for the duration of oneseason.Theevidenceprovestheexistenceofthefirst,butnotofthesecond,condition.Thefactthatrespondentswith the exception of Luisa Rombo, Ramona Rombo,BobongAbriga andBoboy Silva repeatedlyworked assugarcaneworkers forpetitioners forseveralyears isnotdenied by the latter. Evidently, petitioners employedrespondents for more than one season. Therefore, thegeneralruleofregularemploymentisapplicable.7

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Douglas Millares and Rogelio Lagda vs.National LaborRelations Commission, TransGlobal Maritime Agency,Inc.andEssoInternationalShippingCo.,Ltd.G.R.No.110524,July29,2002Kapunan,J.:FACTS:PetitionersMillaresandLagdawereemployedbyprivaterespondentESSOthrough its localmanningagencyTransGlobal as a machinist and wiper/oiler, respectively.In1975, Millares was promoted as Chief Engineer whileLagdawaspromotedasChiefEngineerin1980.OnJune13,1989,petitionerMillaresappliedforaleaveofabsenceaswellaspetitioner LagdaMay16,1989whichrespondent TransGlobals President, Michael J. Estaniel,approved.Petitionersappliedforoptionalretirementplanwhichwere denied on the following grounds, towit: (1)employed on a contractual basis; (2) contract ofenlistment(COE)didnotprovideforretirementbeforetheage of sixty (60) years; and (3) did not complywith therequirement for claimingbenefitsunder theCEIP, i.e., tosubmit awritten advice to the company of intention toterminate employment within thirty (30) days from lastdisembarkationdate.Millares and Lagda both requested for an extension oftheirleave.OnlythatofLagdawasapproved.MIllareswasadvised, in view of his absence without leave which isequivalent to abandonment, that he had been droppedfromtherosterofcrewmemberswhileLagdawasadvisedthat in view of his unavailability for contractual seaservice,hehadbeendroppedaswell.Petitioners filedacomplaintaffidavit for illegal dismissal and nonpaymentofemployeebenefits.POEAdismissthecomplaintforlackofmerit.OnappealtotheNLRC,thedecisionwasaffirmedISSUE:WONthepetitionersarecontractualemployeesHELD:Yes. It is clear that seafarers are considered contractualemployees.They cannot be considered as regularemployees under Article 280 of the Labor Code.Theiremployment is governed by the contracts they signeverytime they are rehired and their employment is

terminatedwhenthecontractexpires.Theiremploymentiscontractuallyfixedforacertainperiodoftime.TheyfallundertheexceptionofArticle280whoseemploymenthasbeen fixed for a specific project or undertaking thecompletionorterminationofwhichhasbeendeterminedatthetimeofengagementoftheemployeeorwheretheworkorservicestobeperformedisseasonalinnatureandthe employment is for the duration of the season. ]Weneednotdepart from the rulingsof theCourt in the twoaforementioned cases which indeed constitutestaredecisiswithrespecttotheemploymentstatusofseafarers.Petitionersemploymenthaveautomatically ceasedupontheexpirationoftheircontractsofenlistment(COE).Sincethere was no dismissal to speak of, it follows thatpetitionersarenotentitled to reinstatementorpaymentofseparationpayorbackwages,asprovidedbylaw.8PetroleumShippingLimited (FormerlyEsso InternationalShipping(Bahamas)Co.,Ltd.)andTransGlobalMaritimeAgency, Inc.,vs. National Labor Relations CommissionAndFlorelloW.TanchicoG.R.No.148130,June16,2006Carpio,J.:FACTS:On6March1978,EssothroughTransGlobalhiredFlorelloW. Tanchico ("Tanchico") as First Assistant Engineer. In1981,hebecameChiefEngineer.On13October1992,hereturnedtothePhilippinesforatwomonthvacationaftercompletinghiseightmonthdeployment.On8December1992,heunderwenttherequiredstandardmedical examination prior to boarding the vessel. Themedicalexamination revealed thathewassuffering from"Ischemic Heart Disease, Hypertensive CardioMuscularDisease and Diabetes Mellitus." He medications for twomonths and a subsequent stress test showed a negativeresult. However, Esso no longer deployed him. Instead,Esso offered to pay him benefits under the CareerEmploymentIncentivePlanwhichwasaccepted.On26April1993,TanchicofiledacomplaintagainstEsso,TransGlobalandMalayanbeforePOEAforillegaldismissalwith claims forbackwages, separationpay,disabilityand

medical benefits and 13th month pay. In view of theenactmentofRA8042transferringtoNLRCthejurisdictionover money claims of overseas workers, the case wasindorsed to the Arbitration Branch of the NCR. LaborArbiterDeVeradismissedthecomplaintfor lackofmerit.TanchicoappealedtotheNLRC.NLRCaffirmedtheDecisionofLaborArbiter;onMR,NLRCreconsideredCA affirmed NLRCs 2nd resolution in toto; ruled thatTanchicowasa regularemployeeofPetroleumShipping;on MR, it modified its Decision by deducting Tanchicosvacationfromhislengthofservice.ISSUE/S:1. WONTanchicoisaregularemployee2. WON Tanchico is entitled is entitled to 13th month

pay,disabilitybenefitsandattorneysfees

HELD:1. No.InRavagov.EssoEasternMarine,Ltd.,theCourt

traced its ruling inanumberof cases that seafarersare contractual, not regular, employees. FilipinoseamenaregovernedbytheRulesandRegulationsofthe POEA. The Standard Employment Contractgoverning theemploymentofAllFilipinoSeamenonBoardOceanGoingVesselsof thePOEA,particularlyinPartI,Sec.Cspecificallyprovidesthatthecontractofseamenshallbeforafixedperiod.And innocaseshould the contract of seamen be longer than 12months. The Court squarely passed upon the issueinMillares v.NLRC17whereoneof the issues raisedwas whether seafarers are regular or contractualemployees whose employment are terminatedeverytimetheircontractsofemploymentexpire.

2. No. As a Filipino seaman, petitioner is governed bythe Rules and Regulations Governing OverseasEmployment. In the absence of any provision in hisContractgoverning thepaymentof13thmonthpay,Tanchicoisnotentitledtothebenefit.Thematterondisability benefits has been remanded to the LaborArbiterforresolution.

9SkippersUnitedPacificInc.v.NLRC

G.R.No.148893July12,2006

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7

Facts:

RespondentGervacioRosarosowassignedupas

aThirdEngineerwithNicolakisShipping,S.A., through its

recruitment and manning agency, herein petitioner

SkippersUnitedPacific, Inc.Thetermofthecontractwas

foroneyearwithamonthlysalaryofUS$800,butbarelya

monthafterboarding,respondentwasverballyorderedto

disembark the vessel and repatriated to the Philippines

withoutbeingtoldofthereasonswhy. Immediatelyafter

arriving in the country, respondent filed a complaint for

illegaldismissalandmonetaryclaims.

LaborArbiterfoundthatrespondentwasillegally

dismissed and ordered the petitioner to pay respondent

US$2, 400 or its peso equivalent of P100, 000 as

separation pay plus the amount of US$186.69

representingrespondentsunpaidsalaryforsevendaysor

itspeso equivalentofP7, 840.98with attorneys feesof

P5,000.

On appeal, NLRC affirmed Labor Arbiters

decision and denied the motion of reconsideration. CA

also affirmed the decision and denied the motion of

reconsideration,hencethiscase.

Issue: Whether or not (1) the CA erred in ruling that

petitionerillegallydismissedprivaterespondentand(2)in

awarding private respondent backwagesequivalent to his

threemonthssalary.

Held:

(1) No. The twofold requirements for a valid

dismissal in laborcasesareas follows: (1)dismissalmust

be for a cause provided for in the Labor Code,which is

substantive;and(2)theobservanceofnoticeandhearing

priortotheemployeesdismissal,whichisprocedural.The

only evidence relied upon by petitioner in justifying

respondents dismissal is the Chief Engineers

Reportspecifying the causes of respondents dismissal,

which were supposedly respondents lack of discipline,

irresponsibility and lack of diligence. The question that

arises, therefore, is whether the Report constitutes

substantial evidence proving that respondents dismissal

was for a cause. Substantial evidence is defined as the

amount of relevant evidence which a reasonable mind

mightacceptasadequatetojustifyaconclusion.Thecourt

findsnoreasontoreversethefindingsoftheCA,NLRCand

the Labor Arbiter that the report is utterly bereft of

probative value, since it is not verified by an oath and

therefore,lacksanyguaranteeoftrustworthiness.Itisalso

crucial that itdidnotcame from thepersonalknowledge

oftheChiefEngineer,ratheritisbasedontheperception

of theattendingsupt.engineers whoallegedlynoticed

respondent as being slack and not caring of his job and

duties.Accordingly, the report isplainhearsay since it is

not backed up by affidavit of any of the said supt.

engineers. Lastly, the fact that the Report was

accomplished more than a month after respondent was

repatriatedmakesitappearthatitwasonlymadetomake

it seem that there were valid reasons for respondents

dismissal. Simply put, the Report cannot be given any

weightorcredibilitybecause it isuncorroborated,based

purelyonhearsay,andobviouslymerelyanafterthought.

But to begin with, the question of whether

respondentwasdismissed for just cause isaquestionof

fact,while theSupremeCourts judicialreview isconfined

onlytoerrorsoflaw.TheLaborArbiterandtheNLRChave

already determined the factual issues, and these were

affirmedbytheCA,thustheyareaccordednotonlygreat

respectbutalsofinality.

Regarding the requisites of procedural due

process, petitioner contents that the ships Master is

allowed to dismiss an erring seafarer without hearing

under Section 17, paragraph D of POEA Standard

Employment Conditions Governing the Employment of

FilipinoSeafarersonBoardOceanGoingVessels:

Section17.DISCIPLINARYPROCEDURES

XXX

D.Dismissalforjustcausemaybeeffectedbythe

Master without furnishing the seafarer with a

noticeofdismissal ifdoing sowillprejudice the

safetyofthecreworthevessel.Thisinformation

shall be entered in the ships logbook. The

Master shall send a complete report to the

manning agency substantiated by witnesses,

testimoniesandanyotherdocuments insupport

thereof.

Theprovision,however, isnotapplicable in this case.As

Skippers Pacific, Inc. v.Mira has stated, it is only in the

exceptionalcaseofclearandexistingdangertothesafety

of the crew or vessel that the required notices are

dispensed with; but just the same, a complete report

should be sent to the manning agency, supported by

substantialevidenceofthefindings.Therewasnothingon

record that shows that furnishing respondent with a

noticeofdismissalwillposeaclearandpresentdangerto

the vessel and the crew, and even if the Master was

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justified in dispensing with the required notice, still it

was essential that a complete report, substantiated by

witnesses, testimonies and any other documents in

supportthereof,wassenttothemanningagency.

(2)No.Petitionerarguesthatthereisnobasisin

awardingbackwagesequivalenttothreemonthssalary in

favorofrespondent.Aseafarer isnotaregularemployee

asdefinedinArticle280oftheLaborCodeandthusisnot

entitled to full backwages and separation pay in lieu of

reinstatement.However, Section 10 of R.A. 8042 or the

MigrantWorkersandOverseasFilipinosActof1995,which

isoneofthelawsthatgoverntherightsandobligationsof

seafarers,providesfortheawardofmoneyclaimsincases

ofillegaldismissals:

Section10.MoneyClaims.xxx

xxx

In case of termination of overseas employment

withoutjust,validorauthorizedcauseasdefined

bylaworcontract,theworkershallbeentitledto

thefullreimbursementofhisplacementfeewith

interestattwelvepercent(12%)perannum,plus

his salaries for the unexpired portion of his

employmentcontractorforthree(3)monthsfor

every year of the unexpired term, whichever is

less.

xxx

Theawardofsalaries for theunexpiredportion

of his employment contract or for three (3) months for

everyyearoftheunexpiredterm,whicheverisless,isnot

anawardofbackwagesor separationpay,buta formof

indemnityfortheworkerwhowasillegallydismissed.The

LaborArbitermayhavemislabeled itasseparationpay,

nonetheless, the award was made in conformity with

law.

Theonlymodificationmadebythecourt to the

decisionoftheLaborArbiteristodisregardthegivenpeso

equivalent as being contrary to law as R.A. No. 8183

providesthatthepesoequivalentofthemonetaryaward

shouldbe computedat thepeso todollarexchange rate

prevailingatthetimeofthepayment.

10

PentagonInternationalShippingInc.v.Adelantar

G.R.No.157373July27,2004

Facts:

Respondentwas hired byDubai Ports

AuthorityofJebelAliunderanemploymentcontract(first

contract) which provided for an unlimited period of

employment. Afterwards, respondent and petitioner, for

andinbehalfofDubaiPortsAuthorityofJebelAli,entered

into a POEA standard employment contract (second

contract), this time providing for a 12month period.

Several months later, respondent received a letter from

his employer, stating that he was being terminated for

assaulting his superior officer, but he was promised

employmentinanothercompany.However,afteralmosta

year of waiting with no work forthcoming, respondent

filedacomplaintforillegaldismissal.

LaborArbiterfoundthatdismissalwas

illegalandorderedpetitioner topay respondentamount

representing the latters three months basic salary

inclusiveofovertimepay.Respondentappealed toNLRC,

arguing that Labor Arbiter erred in giving of only such

amount.NLRCawardedthesameamountofthreemonths

basicsalarytorespondent,butexclusiveofovertimepay.

Respondent again appealed to CA. CA awarded full

backwages to respondent computed from the time of

dismissaluptofinalityofthedecision.TheCAusedArticle

279oftheLaborCode, insteadofSection10ofR.A.8042

(Migrant Workers and Overseas Filipinos Act of 1995),

arguingthatinapplyingthefirstcontract,thelatterlawis

not applicable since there is no basis by which to

determinethenumberofyearswithinwhichthegrantof

salarieswillbebased:

Incaseofterminationofoverseasemployment

without just, valid or authorized cause as

definedbylaworcontract,theworkershallbe

entitled to the full reimbursement of his

placement feewith interest at twelve percent

(12%) per annum,plus his salaries for the

unexpired portion of his employment contract

or for three (3)months for every year of the

unexpiredterm,whicheverisless.

Issue:WhetherornottheCourtofAppealserredinusing

as basisArticle 279 of the Labor Code in its award for

backwagestorespondent.

Held:

Yes. Filipino seamen are governed by

the Rules and Regulations of the POEA. The Standard

Employment Contract governing the Employment of All

Filipino Seamen on Board OceanGoing Vessels of the

POEA,particularlyinPartI,Sec.Cspecificallyprovidesthat

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9

thecontractof seamenshallbe fora fixedperiod. Inno

case should the contract of seamen be longer than 12

months.TheCourtofAppealserredwhenitadjudgedthe

firstcontractasthebasisforpetitionersliabilityinsteadof

the second contract, which is in conformity with the

POEAs Standard Employment Contract. Moreover, in

Millaresv.NLRC,itwasclearthatseafarersareconsidered

contractual employees whose rights and obligations are

governedprimarilybyRulesandRegulationsofPOEAand

more importantly,byR.A.8042andnotbyArticle279of

theLaborCode,whichappliestoregularemployees.

11.AUDIONELECTRICCOINCVNLRC(MADOLID)June17,1999FACTS: MadolidwasemployedbyAudionElectricCo.onJune 30, 1976 as fabricator and continuously rendered service in differento f f i c e s a n d p r o j e c t s a s h e l p e r t e c h n i c i a n , s t o c km a n , a n d t i m e k e e p e r . He r e n d e r e d 1 3 y e a r s o f s e r v i c e w i t h a c l e a n record. On August 3, Madolid received a letter informing himthat he will be considered terminated after the turnover of materials, including companys tools and equipmentsnot later thanAugust 15, 1989.Madolid claims that hewasdismissedwithoutjustifiablecauseand due process and that his dismissal was done in bad faithwhichrenders the dismissal illegal. For this reason, he claimsthat he is entit led to reinstatement with ful l backwages, and moralandexemplarydamages.Healsoincludes payment of his o v e r t i m e p a y , p r o j e c t a l l ow a n c e , m i n imum wa g e i n c r e a s e adjustment, proportionate 13th month payandattorney'sfees.Audion rebuts his allegations by saying that the employment contract of Madolid was one that was coterminus with

thep r o j e c t , t h u s h e s h o u l d n o t b e c o n s i d e r e d a s a r e g u l a r employee.Also, thecompany contends that it had paid all the allegedunpaidwages. T h e L a b o r a r b i t e r d e c i d e d t h e c a s e i n f a v o r o f Mado l i d , o r d e r i n g A u d i o n t o p a y h i m b a c k w a g e s , O T p a y , p r o j e c t allowances, minimum wage increaseadjustment, 13th month pay, a n d a w a r d i n g h i m m o r a l a n d e x e m p l a r y d a m a g e s a n d attorneysfees.AppealtoNLRCwasdismissed.ISSUES:

1. WasMadolida regularemployee, thusentitlinghimtobackwages,etc?

2. Was Audion denied due process with the award of al ltheclaimsofMadolid?

HELD:1.YES. W h e r e t h e e m p l o y m e n t o f p r o j e c t e m p l o y e e s i s extended long after thesupposed project has been finished, theemployees areremoved from the scope of project employeesandconsideredregularemployees.Reasoning(cit ing NLRCs decision): Audions assigning Madolid to itsvarious projects did not make him aprojectworker.AsfoundbytheLaborArbiter,itappearsthat complainantwasemployedb y r e s p o n d e n t x x x a s f a b r i c a t o r a n d o r p r o j e c t s a s h e l p e r electrician, stockman and timekeeper.' Simplyput, complainant was a regular nonproject worker. M a d o l i d s e m p l o y m e n t s t a t u s w a s e s t a b l i s h e d b y t h e Certif ication of Employment dated April 10, 1989 issued byAudion which certif ied that private respondent is a bonafide employee from June 30, 1976 up to the t ime of issuance on Apri l 10, 1989. This showed that his exposure to their f ield of o p e r a t i o n w a s a s f a b r i c a t o r , h e l p e r / e l e c t r i c i a n , stockman/timekeeper. This proves that he was regularly andcontinuously employed by Audion in various job assignments from 1976 to 1989, for a total of

13 years. The alleged gap in employment service does not defeat his regular status as he was rehired for many more projects without interruption and p e r f o r m e d f u n c t i o n s w h i c h a r e v i t a l , n e c e s s a r y a n d indispensable to the usual business of petitioner.Audion could have presented substantial evidence tosupport i t s c l a i m t h a t M a d o l i d w a s a p r o j e c t w o r k e r , l i k e t h e employment contract (which stated the employees nature of employment) or reports oftermination (which were required byDOLE uponterminationoftheproject,andfailuretosubmitthisis an indication of regular status of an employee as held incases),butitdidnot.2.NO

Due process is not denied when one is afforded theopportunity to be heard and present his case, but the samedecided not to take theopportunity.

Madolid clearly specified in his affidavit thespecific dates inwhich he was not paid overtime pay, project allowances, 13thmonthpay,andwageadjustments. The claim of Audion that itpaid him suchmustbeprovedbyevidence,whichitdidnotdo(despiteofhaving the burden to prove the claim). I n f a c t , r e c o r d s s h ow t h a t t h e c omp a n y d i d n o t a p p e a r i n hearings,whichthecourttooktobeawaiverof its right to beheard. Howe v e r , aw a r d t o mo r a l a n d e x emp l a r y d ama g e s a n d attorneysfeesaredeletedforbeingdevoidofmoralbasis.12

BETAELECTRICvs.NLRCG.R.No.86408February15,1990FACTS:ThepetitionerhiredtheprivaterespondentasclerktypistIIIeffectiveDecember15,1986untilJanuary16,1987andgave her several extensions numbering about 5. Herappointments were coveredby corresponding written

10

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contracts.OnJune22,1987,herserviceswereterminatedwithout notice orinvestigation. As a result, she filed acomplaint for illegaldismissal.Asthecourthas indicated,both thelaborarbiterand the respondentNational LaborRelations Commission ruled for her. Thepetitionerquestions the decision of the National LaborRelations Commission affirming the judgment of thelaborarbiter reinstating the private respondent withbackwages.PETITIONERS ARGUMENT: the privaterespondent'sappointmentwas temporaryandhence shemaybeterminatedatwill;Thatshehadbeenhiredmerelyon a "temporary basis" "for purposes of meetingtheseasonal or peak demands of the business," and assuch, her servicesmay lawfully be terminated "aftertheaccomplishmentof[her]task"ISSUE:WhetherornotshewasillegallyterminatedHELD:NO. Petitioners contention is untenable.The privaterespondent was to all intents and purposes, and at thevery least,aprobationaryemployee,whobecame regularupontheexpirationofsixmonths.UnderArticle281oftheLabor Code, aprobationary employee is "considered aregularemployee" ifhehasbeen "allowed toworkafter[the]probationaryperiod."The fact thatheremploymenthas been a contracttocontract basis can not alterthecharacter of employment, because contracts can notoverridethemandateof law.Hence,byoperationoflaw,shehasbecomearegularemployee.Inthecaseatbar,theprivateemployeewasemployedfromDecember15,1986until June 22, 1987when she was ordered laid off. Hertenure having exceeded six months, she attainedregularemployment.The petitioner can not rightfully saythat since the private respondent's employment hingedfromcontracttocontract,itwasergo, "temporary", depending on the term of eachagreement. Under the Labor Code,an employment mayonlybesaidtobe"temporary""where[it]hasbeenfixedforaspecificundertakingthecompletionoforterminationof which has been determined at the time of theengagement of theemployee or where the work orservices to be performed is seasonal in nature and theemployment is forthe duration of the season."Quite tothe contrary, the private respondent's work, that of

"typistclerk"isfarfrombeing"specific"or"seasonal",butrather,one,accordingtotheCode,"wheretheemployeehasbeen engaged to perform activitieswhich are usuallynecessary or desirable in the usual business." Andunderthe Code, where one performs such activities, he is aregular employee, "[t]he provisions ofwrittenagreementto the contrary notwithstandingThe petitioner can notinsist that the private respondent had been hired "for aspecific undertaking i.e. tohandle the backlogs broughtaboutbytheseasonalincreaseinthevolumeofherwork."The fact that shehadbeenemployedpurportedly for thesimple purpose of unclogging the petitioner's files doesnot makesuch an undertaking "specific" from thestandpoint of law because in the first place, it is"usuallynecessary or desirable in the usual business ortradeoftheemployer,"adevelopmentwhichdisqualifiesitoutrightly as a "specific undertaking", and in the secondplace, because a "specific undertaking" is meant, in itsordinaryacceptation,aspecial typeofventureorprojectwhoseduration iscoterminouswiththecompletionoftheproject, e.g. , project work. It is not the case in theproceedingatbar.

13

UniversalRobinaCorp.vs.CatapangGRNo.164736FACTS: Petitioner Universal Robina Corp. owns andoperates a duck farm in Calauan, Laguna. Privaterespondents Benito Catapang, Carlos Ararao, AlvinAlcantara and 27 other employees were hired by thecompanyonvariousdatesfromyears1991to1993.Afivemonth employment contract was entered into by theparties but after each contract expires, the companycontinues to rehire them with the same contractconditions until 1996. After which, no renewal ofemployment contracts were done, prompting hereinrespondentstofileacaseagainstthepetitionerforillegaldismissal. Petitioners aver that the respondents are notregular employees but were only covered by the fivemonthindividualcontractstowhichtheydulyacquiesced.

TheLaborArbiterruled infavorofrespondents,orderingpetitionertoreinstateandpaybackwagestothepetitioners. The petitioners manifested to the LaborArbiter that they can reinstate only 17 of the 30employees in view of the phase out of the petitionercompanys Agricultural Section as early as 1996. LaborArbiter issued an Alias Writ of Execution for thereinstatement of the other 13 employees. Respondentfiledanappeal to theNLRCand lateron to theCourtofAppeals,whichbothtribunalsdenied.ISSUE:

Whether or not respondents are regularemployees.

HELD:

Yes,herein respondentsare regularemployees.Theprimarystandardofdeterminingregularemploymentis the reasonable connection between the particularactivity performed by the employee in relation to theusual trade or business of the employer. The test iswhethertheformerisusuallynecessaryordesirableintheusualbusinessor tradeof theemployer.The connectioncan be determined by considering the nature of workperformedanditsrelationtotheschemeoftheparticularbusinessortrade in itsentirety.Also, iftheemployeehasbeen performing the job for at least a year, even if theperformance is not continuous and merely intermittent,the law deems repeated and continuing need for itsperformanceassufficientevidenceofthenecessity ifnotindispensabilityofthatactivitytothebusiness.Hence,theemployment is considered regular,butonlywith respecttosuchactivityandwhilesuchactivityexists.

Inthecaseatbar,petitionersactofrepeatedly

andcontinuouslyhiringprivaterespondentsinaspanof3to 5 years to do the same kind of work negates theircontention that private respondents were hired for aspecific project or undertaking only. As stated earlier,repeated and continuing need for the employeesperformanceisasufficientevidenceofthenecessityifnotindispensability of that activity to the business. Petitiondenied.

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11

Maraguinotvs.NLRCG.R.No.120969FACTS:Petitioners Alejandro Maraguinot and Paulino Enerostasksconsistedof loading,unloadingandarrangingmovieequipment in the shooting area as instructed by thecameraman, returning the equipment to Viva Filmswarehouse,assistinginthefixingofthelightingsystem,and performing other tasks that the cameraman and/ordirector may assign. When they asked the company toadjusttheirsalariesinaccordancewiththeminimumwagelaw, theywere allegedly ordered byMr. Vic del Rosario(producer) to sign a blank employment contract as acondition to theirwage increase.Thecompanydismissedthem from their employmentwhen they refused to signsuch blank contract. The two filed a case against VIVAFilmsforillegaldismissal.Private respondent assert that they contract personscalled producers (also referred to as associateproducers) to produce or make movies for privaterespondents; and contend that petitioners are projectemployeesoftheassociateproducerswho, inturn,actasindependent contractors.As such, there is no employeremployee relationship between petitioners and privaterespondents.The Labor Arbiter held in favor of petitioners on theground that VIVA Films cannot invoke that it was theproducers who are the real employers. But, the NLRCreversed the Labor Arbiters decision holding thatpetitioners were project employees and not regularemployees.Theywere called fora specificmovieprojectwith thecompletionofwhicharepredeterminedknowntothepetitionersatthetimeoftheirengagement.Despitethe irregularworkinghours,petitionerswerepaidregularand fixed rates.Theyarealsonotprohibited towork forRegal,SeikoorFPJProductionswhentheyservicesarenotrequired.PetitionersfiledtheirmotionforreconsiderationbuttheNLRCdeniedit.Hence,thispetition.ISSUE: Whether or not herein petitioners are projectemployeeemployedforaspecificmovie.

HELD: No, the petitioners are regular employees ofprivaterespondentandnotmereprojectemployees.TherespondentscontentionthatpetitionersareemployeesoftheproducerhasnomeritbecauseMr.DelRosariodoesnothavetools,equipment,machinery,workpremises,andothermaterialsnecessarytomakemotionpictures.Thoseequipments that were used in the movie project wereownedbyrespondentcompany.

Aprojectemployeeoramemberofaworkpoolmay acquire the status of a regular employeewhen thefollowingconcur:1) There is a continuous rehiring of project employeesevenaftercessationofaproject;and2)Thetasksperformedbytheallegedprojectemployeeare vital, necessary and indispensable to the usualbusinessortradeoftheemployer.

Both conditions arepresent in the case atbar.There was a continuous rehiring of the petitioners.PetitionerEnerowasemployedforatotaloftwo(2)yearsand engaged in at least eighteen (18) projects, whilepetitionerMaraguinotwas employed for some three (3)yearsandworkedonat least twentythree (23)projects.Moreover,thetasksperformedbypetitionersaredeemedvital,necessaryandindispensabletotheusualbusinessoftherespondentincreatingamovie.

Petitioners being regular employees, the Court

held that there was an illegal dismissal. Theirreinstatement to work and the payment of theirbackwagesareordered.Petitiongranted.

15

AbescoConstructionandDevelopmentCorpv.Ramirezetal.Doctrine:Thedurationoftheprojectemploymentaswellastheparticularwarorservicetobeperformedshouldbedefined inanemploymentagreementandmustbrmadecleartotheemployeesatthetimeofhiring.Failuretodosowouldmakethemregularemployees.Facts:Abescoconstructionwasengaged inaconstruction

businesswhererespondentswerehiredondifferentdatesfrom 1976 to 1992 either as laborers, road rolleroperators,paintersordrivers.

In 1997, respondents filed two separate complaints1 forillegal dismissal against the company and its GeneralManager, Oscar Banzon, before the Labor Arbiter (LA).Petitioners allegedly dismissed them without a validreason and without due process of law. The complaintsalso included claims fornonpaymentof the13thmonthpay, five days' service incentive leave pay, premium payfor holidays and rest days, and moral and exemplarydamages.TheLAlateronorderedtheconsolidationofthetwocomplaints.

Petitionersdenied liability to respondentsand counteredthat respondents were "project employees" since theirservices were necessary only when the company hadprojectstobecompleted.

Petitioners argued that, being project employees,respondents' employment was coterminous with theproject to which they were assigned. They were notregular employees who enjoyed security of tenure andentitlement to separation pay upon termination fromwork.

Issue:(1)whetherrespondentswereprojectemployeesorregularemployees

(2)whetherrespondentswereillegallydismissed.

Held:

1. we rule that respondents were regular employees.However,wetakeexceptiontothereasonscitedbytheLA(whichboththeNLRCandtheCAaffirmed)inconsideringrespondents as regular employees and not as projectemployees.

Contrary to the disquisitions of the LA, employees (likerespondents) who work under different projectemployment contracts for several years do notautomaticallybecomeregularemployees;theycanremainas project employees regardless of the number of years

12

12

theywork.7Lengthofserviceisnotacontrollingfactorindeterminingthenatureofone'semployment.8

Moreover,employeeswhoaremembersofa"workpool"fromwhichacompany(likepetitionercorporation)drawsworkers for deployment to its different projects do notbecome regular employees by reason of that fact alone.

TheCourthasenunciated insomecases9thatmembers

of a "work pool" can either be project employees orregularemployees.

Theprincipal test fordeterminingwhetheremployeesare"project employees" or "regular employees" is whetherthey are assigned to carry out a specific project orundertaking,thedurationandscopeofwhicharespecifiedat the time they are engaged for that project.10 Suchduration, as well as the particular work/service to beperformed,isdefinedinanemploymentagreementandismadecleartotheemployeesatthetimeofhiring.11

In this case, petitioners did not have that kind ofagreement with respondents. Neither did they informrespondentsofthenatureofthelatter'sworkatthetimeofhiring.Hence, for failureofpetitioners to substantiatetheirclaim that respondentswereprojectemployees,weareconstrainedtodeclarethemasregularemployees.

2.wehold thatpetitioners failed toadhere to the "twonotice rule"which requires thatworkers tobedismissedmustbefurnishedwith:(1)anoticeinformingthemoftheparticularactsforwhichtheyarebeingdismissedand(2)anotice advising them of the decision to terminate theemployment.12 Respondents were never given suchnotices.

16

ALUTUCPv.NLRCDoctrine:thelengthofserviceofaprojectemployeeisnotthecontrollingtestofemploymenttenurebutwhetherornot"theemploymenthasbeenfixedforaspecificprojectorundertakingthecompletionorterminationofwhichhasbeen determined at the time of the engagement of the

employee".

Facts:On5July1990,petitionersfiledseparatecomplaintsfor unfair labor practice, regularization and monetarybenefits with the NLRC, SubRegional Arbitration BranchXII,IliganCity.

The complaintswere consolidatedandafterhearing, theLabor Arbiter in aDecision dated 7 June 1991, declaredpetitioners"regularprojectemployeeswhoshallcontinuetheir employment as such for as long as such [project]activity exists," but entitled to the salary of a regularemployee pursuant to the provisions in the collectivebargaining agreement. It also ordered payment of salarydifferentials.

TheNLRCinitsquestionedresolutionsmodifiedtheLaborArbiter'sdecision. It affirmed the LaborArbiter'sholdingthat petitionerswere project employees since theywerehiredtoperformworkinaspecificundertakingtheFiveYearsExpansionProgram(FAYEP),thecompletionofwhichhadbeendeterminedatthetimeoftheirengagementandwhichoperationwasnotdirectlyrelatedtothebusinessofsteel manufacturing. The NLRC, however, set aside theaward to petitioners of the same benefits enjoyed byregularemployeesforlackoflegalandfactualbasis.

Thepetitionersthen invokeArticle280oftheLaborCodearguing that they are regular employees because theirjobs are necessary, desirable and workrelated to NSC'smain business and also because they have renderedserviceforsixyearsormoretoNSC.Issue: Whether or not the petitioners were properlycharacterizedasprojectemployeesratherthanregularemployeesofNationalSteelCorporation.Held:Yes, thepetitionerswereproperly characterizedasproject employees. A project employee is assigned tocarry out a specific project or undertaking wherein thedurationandscopeofsuch isdeterminedatthetimetheemployee was engaged for that project. The project orundertaking referred toabovemayormaynotbewithinthe regular business of the corporation but it must be

identifiably separate and distinct from the ordinary orregular business operations of the employer. Theparticular component projects embraced in the FAYEP Iand II, wherein the petitioners were assigned, weredistinguishable from the regular or ordinary business ofNSC, there work was limited to one or another of thespecific component projectswhichmade up the FAYEP Iand II.Therewasnothing in the record to show that thepetitioners were hired for, or in fact assigned to, otherpurposessuchas foroperatingormaintaining theold,orpreviously installed and commissioned, steelmakingmachineryandequipment,orforsellingthefinishedsteelproducts.Moreover,thepetitioners'claimthatshouldbequalified as regular employees because they haverenderedmorethatsixyearsofservicetoNSC lacks legalbasis.Theproviso in thesecondparagraphofArticle280oftheLaborCodewhichstatesthatanemployeewhohasserved forat leastoneyearshallbeconsideredaregularemployee relates tocasualemployeesandnot toprojectemployees.17

KIAMCOV.NLRC309SCRA424June29,1999Bellosillo,J:Facts:TheEnergyResearchandDevelopmentDivisionofprivaterespondentPhilippineNationalOilCompany(PNOC)hiredpetitionerCisellKiamcoasaprojectemployeeinitsGeothermalAgroIndustrialPlantProjectinNegrosOriental.ItwasstipulatedintheContractofEmploymentthatKiamcowasbeinghiredbythecompanyastechnicianforaperiodof5monthsoruptothecompletionoftheproject,whicheverwouldcomefirst.Aftertheterminationofthecontract,asecondonewasneteredintowhichcontainedbasicallythesametermsandconditions.ThetermwasfromDecember1,1992untilApril30,1992.Hewasthenagainhiredfor6monthsfromMay1,1993toNovember30,1993.Later,forallegedinfractionscommittedbyKiamco,hewasgivenaMemorandumbytheadministrativedepartmentofthecompanydemandinghisexplanationformisconduct,absencewithoutleave,noncomplianceofadministrativereportingprocedureonaccidentsandunauthorizeduseofcompanyvehicles.Hetriedtoexplainhissidebutthe

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privaterespondentfoundhisexplanationtobeunsatisfactory.HewasthengivenaMemorandumstatingthatheisbeingplacedunderpreventivesuspensionfromNovember1,1993toNovember30,1993pendingfurtherinvestigation.Therewasnoinvestigationconducted.PrivaterespondentscontendedthataninvestigationwasnotnecessarysinceKiamcohadceasedtobeanemployeeupontheexpirationofhisemploymentcontractonNovember30,1993.OnDecember1ofthesameyear,hereportedbacktoworkbutthesecurityguardsofthecompanypreventedhimfromenteringthepremises.Later,PNOCreportedtotheDepartmentofLaborandEmploymentthatKiamcowasterminatedonNovember1,1993duetotheexpirationofhisemploymentcontractandtheabolitionofhisposition.KiamcofiledbeforetheNLRCacomplaintforillegalsuspensionanddismissalagainstPNOC,prayingforreinstatementandthepaymentofbackwages.TheLaborArbiterdismissedthecomplaintforlackofmeritasthethreeemploymentcontractswerefreelyandvoluntarilysignedbyKiamcoandPNOC.KiamcoappealedthedecisiontopublicrespondentNLRCwhichreversedthedecisionoftheLaborArbiteranddeclaredKiamcoasaregularemployeeoftherespondentsandthathehadbeenillegallydismissed.AMotionforReconsiderationwasfiledbyprivaterespondents.TheNLRCmodifieditsdecisiondeclaringpetitionertobeaprojectemployee,hencethispetitionforcertiorari.Issues:1)WONpetitionerisaregularemployeeoraprojectemployee.2)WONpetitionerisentitledtoreinstatementwithoutlossofseniorityrightsandprivelegesandtothepaymentoffullbackwages.Held:1)KiamcowascorrectlylabeledbytheNLRCasaprojectemployee.IthasbeenheldinVioletav.NLRCthattheprincipaltestfordeterminingwhethereparticularemployeesareproperlycharacterizedasprojectemployees,asdistinguishedfromregularemployees,iswhetherornottheprojectemployeeswereassignedtocarryoutaspecificprojectorundertaking,theduration(andscope)ofwhichwerespecifiedatthetimetheemployeeswereengagedforthatproject.Asdefined,projectemployeesarethoseworkershired1)forspecificprojectorundertaking,and2)thecompletionorterminationofsuchprojectorundertakinghasbeendeterminedatthetimeofengagementoftheemployee.UnderPolicyInstructionNo.20oftheSecretaryofLabor,

projectemployeesarethoseemployedinconnectionwithaparticularproject.Nonprojectorregularemployeesarethoseemployedwithoutrefrerencetoanyparticularproject.ThethreecontractsofemploymententeredintobyKiamcoclearlyestablishedthathewasaprojectemployeebecausea)hewasspecificallyassignedtoworkforaparticularprojectwhichwastheGeothermalAgroIndustrialDemonstrationPlantProjectofprivaterespondents,andb)theterminationandthecompletionoftheprojectorundertakingwasdeterminedandstipulatedinthecontractatthetimeofhisemployment.2.Yes.InSantosv.NLRCitwasheldthatthenormalconsequencesofafindingthatanemployeehasbeenillegallydismissedare,thattheemployeebecomesentitledtoreinstatementtohisformerpositionwithoutlossofseniorityrightsandthepaymentofbackwages.Reinstatementrestorestheemployeewhowasunjustlydismissedtothepositionfromwhichhewasremoved,thatis,tohisstatusquoantedismissal;whilethegrantofbackwagesallowsthesameemployeetorecoverfromtheemployerthatwhichhehadlostbywayofwagesasaresultofhisdismissal.TheargumentofprivaterespondentsthatreinstatementandpaymentofbackwagescouldnotbemadesinceKiamcowasnotaregularemployeeisapparentlymisplaced.Asquotedabove,thenormalconsequencesofanillegaldismissalarethereinstatementoftheaggrievedemployeeandthegrantofbackwages.Thererightsofanemployeedonotdependonthestatusofhisemploymentpriortohisdismissalbutrathertothelegalityandvalidityofhistermination.Thefactthatanemployeeisnotaregularemployeedoesnotmeanthathecanbedismissedanytime,evenillegally,byhisemployer.18PHIL.JAIALAIANDAMUSEMENTCORP.V.CLAVE126SCRA299December21,1993MelencioHerreraFacts:Petitionercorporationoperatingajaialaifrontonforsportandamusementhasitsownmaintenancegroupfortheupkeepofitspremises.IthiredprivaterespondentsCatadal,Jr.,aplumberandDelgra,amason,togetherwith30otherworkersfortherenovationofitsmainbuildingwhichworkisnotincludedinmaintenance.Thecontractisopentoextentionshouldtheneedforitariseinthecourse

oftherenovation.RenovationwascompletedbyOctober1976sothemanagementthendecidedtoconstructanannextothebuildingandprivaterespondentsworkedonthefireescape.Later,inNovemberofthesameyear,noticeofterminationwasgiventotherespondentseffectiveNovember219buttheystillcontinuedtoworknonetheless.TheyworkeduntilDecember11andwerefullypaidfortheworktheyrendereduptothatdate.PetitionerthenfiledwiththeDepartmentofLaborareportofterminationoftheservicesofprivaterespondentsand30others,listingthemascasualemergencyworkers.Privateworkersallegedillegaltermination.AssistantMinisterLeogardoorderedthereinstatementoftheworkerswithfullbackwagesbeforepetitionercouldfileareplytothelettercomplaintoftherespondents.LeogardosaidthattherespondentswerealreadyregularemployeesaccordingtothenowArticle281oftheLaborCodeandthatterminationwasunjust.TheappealwiththePresidentialExecutiveAssistantwasdismissed,hencethisrecourse.Issue:WONprivaterespondentsareregularemployeesentitledtosecurityoftenure.Held:No.CasualemployeesareengagtedforaspecificprojectorundertakingandfallwithintheexceptionprovidedforinArticle281oftheLaborCode.Notbeingregularemployees,itcannotbejustifiablysaidthatpetitionerhaddismissedthemwithoutjustcause.Theyarenotentitledtoreinstatementwithfullbackwages.Article281definesregularandcasualemployees.Inthecaseathand,thecasualorlimitedcharacterofprivaterespondentsemployment,therefore,isevident.Privaterespondentswerehiredforaspecificprojecttorenovatethemainbudding,wheremajorrepairssuchaspaintingthemainbuilding,repairoftheroof,cleaningofcloggedwaterpipesanddrains,andothernecessaryrepairswererequired.Itwasmadeknown,andsounderstoodatthestartofthehiring,thattheirserviceswouldlastuntilthecompletionoftherenovation.TheyrenderedservicefromFebruary2toDecember11,1976,almost11months,butlessthanayea.Therecouldbenootherreason,however,thanthattheterminationofprivaterespondentswasbecausetheirserviceswerenolongerneededandtheyhadnothingmoretodosincetheprojectforwhichtherewerehiredhadbeencompleted.19

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G.R.No.L65689May31,1985

SANDOVAL SHIPYARDS, INC., petitioner, vs. NATIONALLABOR RELATIONS COMMISSION, ROGELIO DIAMANTE,MANUEL PACRES, ROLANDO CERVALES, DIONISIOCERVALESandMACARIOSAPUTALO,respondents.

G.R.No.L66119May31,1985

SANDOVAL SHIPYARDS, INC., petitioner, vs. VICENTELEOGARDO, JR., Deputy Minister of Labor andEmployment,DANILODE LACRUZ,RODRIGOVILLARUZ,RODRIGO PEREZ, AQUILINO TABILON, ARMANDOESGLANDA, MANUEL MEDINA, FREDDIE ABADIEZ,FELICIANO TOLANG, ALFREDO DE LA CRUZ, NICOLASMARIANO, VICENTE CEBUANO, ROLANDO ROLDAN,TEODORO ROLDAN, SOLOMON GEMINO, MARIORICAFORT, ROLANDO LOPEZ and ANGEL SAMSON,respondents.

FACTSIn G.R. No. 65689, Rogelio Diamante, Manuel Pacres,MacarioSaputalo,RolandoCervalesandDionisioCervaleswere assigned to the construction of the LCT Catarman,ProjectNo.7511.Afterthreemonthsofwork,theprojectwas completed on July 26, 1979. The fiveworkerswereservedaterminationnotice.Theterminationwasreportedto theMinistryof LaboronAugust3,1979. They filed acomplaintforillegaldismissal.

InG.R.No.66119,respondentsDanilodelaCruz,etal.,17inall,wereassigned towork inProjectNo.7901 for theconstructionofatankerorderedbyMobilOilPhilippines,Inc.Therewere55workersinthatproject.Thetankerwaslaunchedon January31,1980.Upon the yardmanager'srecommendation, the personnel manager of SandovalShipyardsterminatedtheservicesofthewelders,helpersandconstructionworkerseffectiveFebruary4,1980.Thetermination was duly reported to the Ministry of LaborandEmployment.

Three days later, or on February 7, twentyseven out ofthe 55 workers were hired for a new project. The 27includedfourofthe17respondentswhofiledacomplaintforillegaldismissalonFebruary6.

ISSUE

SandovalShipyards,Inc.hasbeenengaged inthebuildingand repair of vessels. It contends that each vessel is aseparateprojectandthattheemploymentoftheworkersisterminatedwiththecompletionofeachproject.

Theworkerscontendotherwise.Theyclaim toberegularworkersandthattheterminationofoneprojectdoesnotmean the end of their employment since they can beassignedtounfinishedprojects.RULINGWeholdthatprivaterespondentswereprojectemployeeswhoseworkwas coterminouswith theproject forwhichtheywerehired.Projectemployees,asdistinguishedfromregular or nonproject employees, are mentioned insection 281 of the Labor Code as those "where theemployment has been fixed for a specific project orundertaking the completion or termination ofwhich hasbeen determined at the time of the engagement of theemployee."Projectemployeesarethoseemployedinconnectionwitha particular construction project. Nonproject (regular)employeesarethoseemployedbyaconstructioncompanywithoutreferencetoanyparticularproject.

Project employees are not entitled to termination pay iftheyare terminatedasa resultof the completionof theprojectoranyphasethereof inwhichtheyareemployed,regardlessof thenumberofprojects inwhich theyhavebeen employed by a particular construction company.Moreover, the company is not required to obtainclearance from theSecretaryofLabor inconnectionwithsuchtermination.

We feel that there is merit in the contention of theapplicant corporation. To our mind, the employment oftheemployeesconcernedwerefixedforaspecificprojector undertaking. For the nature of the business thecorporationisengagedintoisonewhichwillnotallowittoemployworkersforanindefiniteperiod.

It is significant to note that the corporation does notconstructvessels forsaleorotherwisewhichwilldemandcontinuousproductionsof shipsandwillneedpermanent

or regularworkers. Itmerely accepts contracts for shipbuilding or for repair of vessels from third parties and,only,onoccasionwhenithasworkcontractofthisnaturethat ithiresworkerstodothe jobwhich,needlesstosay,lastsonlyforlessthanaYearorlonger.

The completion of their work or project automaticallyterminatestheiremployment,inwhichcase,theemployeris,under the law,onlyobliged to rendera reporton theterminationoftheemployment.20

[G.R.No.114734.March31,2000]

VIVIAN Y. IMBUIDO,, Petitioner, v. NATIONAL LABORRELATIONS COMMISSION, INTERNATIONALINFORMATION SERVICES, INC. and GABRIEL LIBRANDO,Respondents.

FACTSPetitioner was employed as a data encoder by privaterespondent International Information Services, Inc., fromAugust26,1988untilOctober18,1991,whenherserviceswereterminated.FromAugust26,1988untilOctober18,1991, petitioner entered into thirteen (13) separateemployment contracts with private respondent, eachcontract lasting only for a period of three (3) months.Aside from the basic hourly rate, specific job contractnumber and period of employment, each contractcontainsthefollowingtermsandconditions:

"a.ThisContract isforaspecificproject/jobcontractonlyand shall be effective for the period covered as abovementioned unless sooner terminated when the jobcontract is completed earlier or withdrawn by client, orwhen employee is dismissed for just and lawful causesprovidedbylaw.Thehappeningofanyoftheseeventswillautomaticallyterminatethiscontractofemployment.

"b. Subject shall abide with the Companys rules andregulations for itsemployeesattachedherein to formanintegralparthereof.

"c. The nature of your job may require you to renderovertimeworkwithpaysoasnottodisrupttheCompanys

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commitmentofscheduleddeliverydatesmadeonsaidjobcontract."

In September 1991, petitioner and twelve (12) otheremployeesofprivate respondentallegedlyagreed to thefiling of a petition for certification election involving therankandfile employees of private respondent. Thus, onOctober8,1991, LakasManggagawa saPilipinas (LAKAS)filedapetitionforcertificationelectionwiththeBureauofLaborRelations(BLR),docketedasNCRODM9110128.

Subsequently,onOctober18,1991,petitioner receivedatermination letter from Edna Kasilag, AdministrativeOfficer of private respondent, allegedly "due to lowvolumeofwork."

On the other hand, private respondent, in its positionpaper filedon July16,1992,maintained that ithadvalidreasons to terminate petitioners employment anddisclaimedanyknowledgeoftheexistenceorformationofa union among its rankandfile employees at the timepetitioners serviceswere terminated.Private respondentstressed that its business "relies heavily on companiesavailing of its services. Its retention by client companieswithparticularemphasisondataencoding isonaprojecttoprojectbasis,"usuallylastingforaperiodof"two(2)tofive (5)months."Private respondent further argued thatpetitionersemploymentwasfora"specificprojectwithaspecified period of engagement." According to privaterespondent, "the certainty of the expiration ofcomplainants engagement has been determined at thetimeof their (sic)engagement (until27November1991)or when the project is earlier completed or when theclient withdraws," as provided in the contract. "Thehappeningofthesecondevent[completionoftheproject]has materialized, thus, her contract of employment isdeemedterminated.ISSUEWhether petitioner was a "regular employee," NOT a"project employee" as found by public respondentNLRCand whether the termination of petitioner was taintedwithunfairlaborpracticeRULINGWeagreewiththefindingsoftheNLRCthatpetitionerisaproject employee. The principal test for determining

whetheranemployee isaprojectemployeeora regularemployee iswhether theprojectemployeewasassignedtocarryoutaspecificprojectorundertaking,thedurationand scope of which were specified at the time theemployeewasengagedforthatproject.In the instant case, petitioner was engaged to performactivitieswhichwereusuallynecessaryordesirableintheusual business or trade of the employer, as admittedly,petitioner worked as a data encoder for privaterespondent,acorporationengagedinthebusinessofdataencodingandkeypunching,andheremploymentwasfixedfor a specific project or undertaking the completion orterminationofwhichhadbeendeterminedatthetimeofherengagement, asmaybeobserved from the seriesofemployment contracts32 between petitioner and privaterespondent, all of which contained a designation of thespecificjobcontractandaspecificperiodofemployment.However,evenasweconcurwiththeNLRCsfindingsthatpetitioner is a project employee, we have reached adifferentconclusion. IntherecentcaseofMaraguinot,Jr.vs.NLRC,weheldthat"aprojectemployeeoramemberof a work pool may acquire the status of a regularemployeewhenthefollowingconcur:

1) There is a continuous rehiring of project employeesevenafter[the]cessationofaproject;and

2)Thetasksperformedbythealleged"projectemployee"are vital, necessary and indispensable to the usualbusinessortradeoftheemployer."

The evidence on record reveals that petitioner wasemployed by private respondent as a data encoder,performing activities which are usually necessary ordesirable in theusualbusinessor tradeofheremployer,continuously for a period of more than three (3) years,fromAugust26,1988toOctober18,1991andcontractedfor a total of thirteen (13) successive projects.We havepreviouslyruledthat"however,the lengthoftimeduringwhich the employee was continuously rehired is notcontrolling, but merely serves as a badge of regularemployment."Basedon the foregoing,we conclude thatpetitionerhasattained the status of a regular employee of privaterespondent. Being a regular employee, petitioner is

entitledtosecurityoftenureandcouldonlybedismissedforajustorauthorizedcause,asprovidedinArticle279ofthe Labor Code. The alleged causes of petitionersdismissal (lowvolumeofworkandbelatedly, completionofproject)arenotvalidcausesfordismissalunderArticles282and283oftheLaborCode.Thus,petitionerisentitledtoreinstatementwithoutlossofseniorityrightsandotherprivileges, and to her full backwages, inclusive ofallowances,andtoherotherbenefits.21

DEOCAMPOvs.NLRCG.R.No.101539September4,1992FACTS: Petitioners de Ocampo et al are employees ofprivate respondentBaliwagMahoganyCorporation. Theyareeitherofficersormembersof theBaliwagMahoganyCorporationUnionCFW,theexistingcollectivebargainingagentof the rankand fileemployees in the company. In1988, the company and the union entered into a CBAcontaining,amongother things,provisionsonconversionintocashofunusedvacationandsickleaves. On January3,1990, theunion filedanoticeofstrikeon thegroundsofunfair laborpracticeparticularlythe violation of the CBA provisions on nonpayment ofunusedleavesandillegaldismissalofseven(7)employeesinNovember,1989. On January 13, 1990, the company issued anotice of termination to three (3) employees or unionmembers,namely,deOcampo,VillanuevaanddelaCruz,of the machinery department, allegedly to effect costreductionandredundancy. On January18,1990 themembersof theunionconductedapicketatthemaingateofthecompany.Theunion staged another strike on February 6, 1990. TheSecretary of Labor in an order dated February 15, 1990,certified the entire labor dispute to the respondentCommission for compulsory arbitration and directed allstriking workers including the dismissed employees toreturntoworkandthemanagementtoacceptthemback.Thesheriff,withtheassistanceofthepolice,removedthebarricades and opened the main gate of the company.Criminalcomplaintsforillegalassembly,gravethreats,and

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gravecoercionwerefiledagainstseveralemployeesbythelocalpoliceauthorities TherespondentCommissionrenderedadecisionon October 23, 1990, declaring the strikes staged onJanuary18,1990andFebruary6,1990 illegal.TheUnionofficers/members were ordered reinstated to theirpositions but without backwages. The company wasdirected to immediately reinstatedeOcampo,Villanuevaand dela Cruz to their former positions without loss ofseniorityrightsandwithfullbackwages. Thecompanyfiledamotionforreconsideration.Respondent Commission rendered a resolution affirmingwithmodificationthedecisionmakingthestrikestagedonFebruary6,1990 illegal and theUnionofficers/memberswhoparticipated insaidstrikecommittedprohibitedactsaredeemedtohavelosttheirstatusofemployment. The company was also directed to pay deOcampo, Villanueva and dela Cruz separation paycomputedatonemonthperyearofserviceinadditiontoonemonthpayas indemnificationpay for lackofnotice.Petitioners however contend that the company acted inbad faith when it terminated the services of the threemechanicsbecausethepositionsheldbythemwerenotatallabolishedbutmerelygiventoGemacMachineries.ISSUES: (1) Whether or not there is legal basis fordeclaringthe lossofemploymentstatusbypetitionersonaccountofthestrikeinrespondentCompany. (2)Whetherornot thedismissalsofpetitionersdeOcampo,Villanueva,anddelaCruzfromtheirpositionsbythecompanyonthegroundofredundancywasdoneingoodfaith.HELD: (1) The strike was illegal. A strike that isundertakendespitetheissuancebytheSecretaryofLaborof an assumption or certification order becomes aprohibitedactivityandthusillegal,pursuanttothesecondparagraphofArt.264oftheLaborCodeasAmendedandtheUnionofficersandmembers,asaresult,aredeemedtohavelosttheiremploymentstatusforhavingknowinglyparticipated inan illegalact.Unrebuttedevidence showsthat the individual petitioners defied the returntoworkorder of the Secretary of Labor issued on February 15,

1990. Hence, the termination of the services of theindividualpetitionersisjustifiedonthisgroundalone. (2) Petitioners' dismissal was justified byredundancy due to superfluity and hence legal.Redundancy,forpurposesofourLaborCode,existswherethe services of an employee are in excess of what isreasonably demanded by the actual requirement of theenterprise.Succinctlyput,apositionisredundantwhereitis superfluous, and superfluity of a position or positionsmaybetheoutcomeofanumberoffactors,suchasoverhiring of workers, decreased volume of business, ordropping of a particular product line or service activitypreviouslymanufacturedorundertakenbytheenterprise. In contracting the services of GemacMachineries,aspartofthecompany'scostsavingprogram,the services rendered by the mechanics becameredundant and superfluous, and therefore properlyterminable. The company merely exercised its businessjudgmentormanagementprerogative.Andintheabsenceofanyproofthatthemanagementabuseditsdiscretionoractedinamaliciousorarbitrarymanner,thecourtwillnotinterferewiththeexerciseofsuchprerogative.

22

A.M.ORETA&CO.,INC.,vs.NLRCandSIXTOGRULLAJR.G.R.No.74004August10,1989FACTS: Respondent Grulla was engaged by aconstructioncompany (ENDECO) throughA.M.OretaandCo., Inc., as a carpenter in its projects in Jeddah, SaudiArabia.Thecontractofemploymentwasforaperiodof12months.GrullaleftthePhilippinesforJeddah,SaudiArabiaonAugust5,1980. On August 15, 1980, Grulla met an accidentwhileworkingatthejobsite.Grullawastoldthathecouldresume his normal duties after undergoing physicaltherapy for two weeks. On September 18, 1980, Grullareported back to his Project Manager. Since then, hestarted working again until he received a notice ofterminationofhisemploymentonOctober9,1980. InDecember,1981,Grulla fileda complaint forillegaldismissalagainstA.M.OretaandCompany,Inc.,and

ENDECO with the Philippine Overseas EmploymentAdministration(POEA). Petitioner answers that Grulla was validlydismissed because the latter was still a probationaryemployee;andthathisdismissalwasjustifiedonthebasisof his unsatisfactory performance of his job during theprobationaryperiodofthreemonths. POEA finds and so holds that complainantsdismissalwas illegal.On appeal, respondent CommissionaffirmedintotothedecisionofthePOEA.ISSUE: Whetherornot theemploymentof respondentGrullawasillegalyterminatedbythepetitioner.HELD: Whatdetermines regularityorcasualness isnotemployment contract, written or otherwise, but thenature of the job. If the job is usually necessary ordesireable to the main business of the employer, theemployment is regular. A perusal of the employmentcontract reveals thatalthough theperiodofemploymentofrespondentGrullaistwelve(12)months,thecontractisrenewablesubjecttofutureagreementsoftheparties.Itisclear from theemploymentcontract that the respondentGrullawas hired by the company as a regular employeeandnotjustmereprobationaryemployee. Art.281oftheLaborCode iscleartotheeffectthat in all cases involving employees engaged onprobationaryperiodbasis,theemployershallmakeknowntotheemployeeatthetimehe ishired,thestandardsbywhichhewillqualify as a regularemployee.Nowhere intheemploymentcontractisthereastipulationthatGrullashallundergoaprobationaryperiod for3monthsbeforehe can qualify as a regular employee. There is also noevidence showing that Grulla has been appraised of hisprobationarystatusandtherequirementswhichheshouldcomply in order to be a regular employee. As such,respondentGrullawasaregularemployeeatthetimehewasdismissedbypetitionerandthereforeheisentitledtosecurityoftenureduringhisperiodofemployment. Also, granting, in gratia argumenti, thatrespondent is a probationary employee, he cannot,likewise,beremovedexceptforcauseduringtheperiodofprobation. Although a probationary or temporary

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employee has limited tenure, he still enjoys security oftenure. Thedismissalof respondentGrulla violated thesecurity of tenure under the contract of employmentwhichspecificallyprovidesthatthecontracttermshallbeforaperiodof12months.Consequently the respondentGrullashouldbepaidhissalary fortheunexpiredportionofhiscontractofemploymentwhichisten(10)months.

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PURE FOODS CORPORATION v. NATIONAL LABORRELATIONSCOMMISSIONG.R.No.122653December12,1997Facts:Privaterespondents(numbering906)werehiredbypetitionerPureFoodsCorporationtoworkforafixedperiodoffivemonthsatitstunacanneryplant inTambler,GeneralSantosCity.Aftertheexpirationoftheirrespectivecontractsofemploymentin June and July 1991, their services were terminated.Theyforthwithexecuteda"ReleaseandQuitclaim"statingthattheyhadnoclaimwhatsoeveragainstthepetitioner.Thereafter, they filed a complaint against petitioner forillegaldismissal. The Labor Arbiter dismissed the complaint