After reading “Does The Continuous Rehiring Of A Project Employee Make Him A Regular Employee?”, read also “What Is The Doctrine Of Strained Relations?”
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A project employee is one whose employment has been fixed for a specific project or undertaking, the completion or termination of which has been determined at the time of the engagement of the employee.
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Where the employment of a project employee is extended long after the supposed project has been finished, such employee is removed from the scope of project employment and is considered regular employee.
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A project employee may become a regular employee if there is continuous rehiring of project employees even after the cessation of a project for the same tasks or nature of tasks and the tasks performed by the alleged project employee are vital, necessary, and indispensable to the usual business or trade of the employer.
Who is a project employee?
A project employee is one whose employment has been fixed for a specific project or undertaking, the completion or termination of which has been determined at the time of the engagement of the employee.
In the case of Philippine Airlines, Inc. v. NLRC, (G.R. No. 125792, 09 November 1996), the Supreme Court had the occasion to define the term “project” in relation to the Labor Code. The term “project” has reference to a particular job or undertaking that may or may not be within the regular or usual business of the employer. In either case, the project must be distinct, separate and identifiable from the main business of the employer and its duration must be determined or determinable.
The particular test for determining whether a particular employee is a project employee as distinguished from a regular employee is whether or not such “project employee” was assigned to carry out a specific project or undertaking, the duration and scope of which were specified at the time such employee is engaged for that project.
In the case of Maraguinot v. NLRC (G.R. No. 120969, 22 January 1998), the Supreme Court held that the length of time during which the employee was continuously re-hired is not controlling, but merely serves as a badge of regular employment.
The law says:
Art. 295 of the Labor Code states that:
“ART. 295. REGULAR EMPLOYMENT. – The provisions of a written agreement to the contrary notwithstanding and regardless of the oral agreement of the parties, an employment shall be deemed to be regular where the employee has ben engaged to perform activities which are usually necessary and desirable in the usual trade or business or trade of the employer, except where the employment has been fixed for a specific project or undertaking the completion or termination of which has been determined at the time of the engagement of the employee or where the work or services to be performed is seasonal in nature and the employment is for the duration of the season.
An employment shall be deemed to be casual if it is not covered by the preceding paragraph: Provided, That, any employee who has rendered at least one year of service, whether such service is continuous or broken, shall be considered a regular employee with respect to the activity in which he is employed and his employment shall continue while such activity exists.” (Emphasis and underscoring supplied.)
When may a project employee become a regular employee?
A project employee may become a regular employee if the following requisites are present:
- There is continuous rehiring of project employees even after the cessation of a project for the same tasks or nature of tasks; and
- The tasks performed by the alleged project employee are vital, necessary, and indispensable to the usual business or trade of the employer.
Where the employment of a project employee is extended long after the supposed project has been finished, such employee is removed from the scope of project employment and is considered regular employee.
While the length of time may not be a controlling test for project employment, it can be a strong factor in determining whether such employee was hired for a specific undertaking or in fact tasked to perform functions which are vital, necessary and indispensable to the usual business or trade of the employer. (p. 389, Everyone’s Labor Code. Azucena, 2021)
Are members of a “work pool” employed for a particular project considered as project employees?
No, members of a work pool from which a construction company draws its project employees, if considered employees of the construction company while in the work pool, are non-project employees or employees for an indefinite period. If they are employed in a particular project, the completion of the project or any phase thereof will not mean severance of employee-employer relationship. (Philippine National Construction Corporation v. NLRC, G.R. No. 85323, 20 June 1989).
Alburo Alburo and Associates Law Offices specializes in business law and labor law consulting. For inquiries regarding illegal dismissal, you may reach us at info@alburolaw.com, or dial us at (02)7745-4391/0917-5772207.
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