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6.

RIGHT TO SECURITY OF TENURE


6.1 SECURITY OF TENURE; CONCEPT; CONSTITUTIONAL (Art. XIII, Sec. 3) & Statutory
basis (Art 279)
Concept
The policy of the state is to assure the right of workers to security of tenure. The guaranty is an
act of social justice.
The great mass of the population is almost wholly dependent on their employment for
their livelihood. The alternative of returning or turning to farming as a secondary occupation is no
longer feasible. When a worker loses his job, his family faces deprivation, if not starvation.
Hence, the demand for job security. Responding to popular demand, the Constitutional
Convention [1973] has expressly provided for State recognition of the right of workers to security
of tenure.
Both the Constitution (Sec. 3, Article XIII) and the Labor Code (Article 279) enunciate this
right as available to an employee. In a host of cases, the Court has upheld the employees right
to security of tenure in the face of oppressive management behavior and management
prerogative. Security of tenure is a right which may not be denied on mere speculation of any
unclear and nebulous basis.
When a person has no property, his job may possibly be his only possession or means of
livelihood. Therefore, he should be protected against any arbitrary deprivation of his job. Article
279 [now 293] of the Labor Code has construed security of tenure as meaning that the
employer shall not terminate the services of an employee except for a just cause or when
authorized by the Code.
Constitutional Basis: Article XIII Sec. 3 (2) of the 1987 Constitution
It shall guarantee the rights of all workers to
self-organization,
collective
bargaining
and
negotiations, and peaceful concerted activities,
including the right to strike in accordance with law.
They shall be entitled to security of tenure,
humane conditions of work, and a living wage. They
shall also participate in policy and decision-making
processes affecting their rights and benefits as may
be provided by law.
Statutory Basis:
ART. 293 [279]. SECURITY OF TENURE - In cases of regular employment, the employer
shall not terminate the services of an employee except for a just cause or when authorized by
this Tide. An employee who is unjustly dismissed from work shall be entitled to reinstatement
without loss of seniority rights and other privileges and to his full back wages, inclusive of
allowances, and to his other benefits or their monetary equivalent computed from the time his
compensation was withheld from him up to the time of his actual reinstatement.
6.2 Four kinds of ees under Art 286 (280)
1. Regular employment;
2. Casual employment;
3. Project employment;
4. Seasonal employment.
Other classifications
1. Workers in the construction industry (DO. 19, Series of 1993);
2. Personnel in private educational institution (academic &non academic, full time and part
time) (Manual of Regulationss for Private Schools in Basic Education)

Regular employment employment arrangement where the ee


a. Has been engaged to perform activities which are usually necessary or desirable in the
usual business or trade of the er;
b. Has rendered at least 1 year of service, whether such service is continuous or broken, with
respect to the activity in which he is employed; or
c. When an ee is allowed to work after a probationary period (287 formerly 281)
Test of regularity
i. Nature of work WON there is reasonable connection between particular activity performed
by the ee in relation to the usual business or trade of the er. If usually necessary or desirable in
the usual business or trade of the er, the employment is deemed regular employment.
Note: Whether the work undertaken by the ee is necessary or desirable can be
determined by looking at the services rendered and its relation to general scheme under
which the business or trade is pursued in the usual course.
Examples of Regular Employment by Nature of Work
Moises work consisted mainly of painting company building and equipment and other odd
jobs relating to maintenance.
Held: x the painting and maintenance work of Moises manifests a treatment consistent
with a maintenance man and not just a painter for if his job was only to paint a bldg, there would
be no basis for giving him other work assignments in-between painting activities. (De Leon v
NLRC, 1989)
ii. Period of Service Test - WON the ee has rendered at least 1 year of service. An ee, who is
allowed to work for at least 2 year, whether the same is continuous or broken, shall be
considered regular ee.
iii. Probationary Employment Test WON the ee is allowed to work after the lapse of the
probationary period. An ee who is allowed to work after the lapse of the probationary period shall
be considered a regular ee.
May Regular Jobs be Contracted Out? Yes (Serrano v Isetann 2000)
Contracting Out Almost All Regular Jobs Yes. (Wackwack Golf v NLRC 2005) Where the
person making the waiver has done so voluntarily, with a full understanding thereof, and the
consideration for the quitclaim is credible and reasonable, the transaction must be recognized as
being valid and binding undertaking. As in contracts, these quitclaims amount to a valid and
binding compromise agreement between the parties which deserve to be respected.
Casual employment where an ee is engaged to perform activities which are not necessary or
desirable in the usual trade or business of the er
a. The status of regular employment attaches to the casual ee who has rendered at least 1 year
of service, whether such service is continuous or broken, with respect to the activity in which he
is employed and his employment shall continue while such activity exists.
b. A casual ee is only casual for 1 year, and it is the passage of time that gives him a regular
status
Purpose: To give meaning to the constitutional guarantees of security of tenure and right to selforganization.
Project employment when the employment has been fixed for a specific project or
undertaking, the completion or termination of which has been determined at the time of
engagement of the ee.

Where the employment of project ees is extended long after the supposed project has been
finished, the ees are removed from the scope of project ees and considered regular ees.
When may a project ee become a regular ee
a. There is continuous rehiring of project ees even after the cessation of a project for the same
tasks or nature of tasks (the ee must be continuously rehired without gaps and intervals); and
b. The tasks performed by the alleged project ee are vital, necessary and indispensable to the
usual business or trade of the er.
Note: Project has reference to a particular job or undertaking that may or may not be within the
regular or usual business of er. In either case, the project must be distinct, separate and
identifiable from the main business of the er and its duration must be determined or
determinable.
Members of a work pool from which a construction company draws its project ees, if considered
ees of the construction company while in the work pool, are non-project ee or ees 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 er-ee relationship.
Unless the workers in the work pool are free to leave any time and offer their services to other
ers.
Note: Project es are not regular ees, their services being needed only when there are projects to
be undertaken.
Requirements:
1. Specific project phase thereof stated in the employment contract;
2. Estimated date of completion of project or phase thereof likewise stated in the contract;
3. Ee must have been dismissed every after completion of his project of phase (gaps must be
shown in his length of service); and
4. There must be a report to the DOLE of his dismissal on account of completion of contract
Indicators of Project Employment
Either one or more of the ff circumstances, among others, may be considered as indicators that
an ee is a project ee.
1. The duration of the specific/identified undertaking for which the worker is engaged is
reasonably determinable;
2. Such duration, as well as the specific work/service to be performed, is defined in an
employment agreement and is made clear to the ee at the time of hiring;
3. The work/service performed by the ee is in connection with the particular project/undertaking
for which he is engaged;
4. The ee, while not employed and awaiting engagement, is free to offer his services to any other
er;
5. The termination of his employment in the particular project/undertaking is reported to the
DOLE Regional Office having jurisdiction over the workplace within 30 days following the date of
his separation from work, using the prescribed from on ees terminations/dismissals/suspensions;
6. An undertaking in the employment contract by the er to pay completion bonus to the project
ee as practiced by most construction companies. (DO. 19, 1997)

Principal Test to Determine Whether EEs are Project Ees as distinguished from
Regular Ees
WON the project ees are assigned to carry out a specific project or undertaking the duration or
scope of which are specified at the time the ees are engaged for that project.
The predetermination of the duration or period of a project employment is important in resolving
whether one is a project ee or not. On this score, the term period has been defined to be a
length of existence; duration. A point of time marking a termination as of a cause or an activity;
an end, a limit, a bound; conclusion; termination. A series of years, months or days in which
something is completed. A time of definite length or period from one fixed date to another fixed
date. (Violeta v NLRC, 1997)
The ee in Violetais clearly hired for a specified project. But the absence of definite duration
of the project led the court to conclude that the ee was regular. The court noted that
the records are barren of any definite period or duration for the expiration of the assigned items
of work of petitioners at the time of their engagement. Xx the lines for DATE OF COVERAGE in
the appointments are left blank.
Moreover, the court reiterates, security of workers in their job is a fundamental objective of
Philippine labor laws. This is why the law and the court decisions incline toward regular instead of
nonregularee status. In fact Art 280 manifests a bias for regularity status. Any other arrangement
us an unpreferred deviation from that presumption.
To be exempt from the presumption of regularity of employment therefore, the agreement
between a project ee and his er must 1. Strictly conform with the requirements and conditions
provided in Art 280 (now 294).It is not enough that an ee is hired for a specific project or phase
of work. 2. There must also be a determination of or a clear agreement on the completion or
termination of the project at the time the ee is engaged if the object of 280 (now 294) is to
achieved. (2ndreq was absent in Violeta)
Entitlement to Separation Pay
General Rule: Project ees are not entitled to separation pay if they are terminated as a result of
the project or any phase thereof in which they have been employed.
XPN: If the projects they are working on have not yet been completed when their services are
terminated; project ees also enjoy security of tenure during the limited time of their employment.
Note: If the termination is brought about by the completion of the contract or phase
thereof, no prior notice is required; Er is under the law, only obliged to render report to
the DOLE on termination of the employment
Seasonal employment is an employment arrangement where an ee is engaged to work
during a particular season on an activity that is usually necessary or desirable in the usual
business or trade of the er.
During off-season, the relationship of er and ee is not severed; the seasonal ee is merely
considered on leave of absence without pay.
When are Seasonal Ees considered as Regular Ees
1. When there is reasonable connection between the particular activity performed by the ee in
relation to the usual trade or business of the er; and

2. Seasonal workers who are repeatedly engaged to perform the same tasks for more than one
season
Note: 1-yr duration on the job is pertinent in deciding whether a casual ee has
become regular or not, but it is not pertinent to a seasonal or project ee. Passage of
time does not make a seasonal worker regular or permanent.
When the business establishment is sold which effectively terminated the employment of
the seasonal ees, the latter would be entitled to separation pay.
Other forms of employment under Book VI
1. Fixed-Period Employment; and
2. Probationary
6. 3 Exception to Regular Employment
a. Project Employee Employment has been
fixed for a specific project or undertaking, the
completion or termination of which has been
determined at the time of engagement of the
employee. They are NOT entitled to separation pay
if they are terminated as a result of completion of
the project/phase thereof in which they have been
employed, UNLESS when the projects they are
working on have not yet been completed when
their services are terminated. They enjoy security
of tenure during the limited time of their
employment.
TEST to determine WON employees are
Project Employees: WON the project employees
are assigned to carry out a specific project or
undertaking the duration or scope of which are
specified at the time employees are engaged for
that project.
Requisites according to Policy Instruction No.
20 and D.O. No. 19 Series of 1997:
Specific project phase thereof stated in the
employment contract.
Estimated date of completion of project or phase
thereof likewise stated in the contract.
Employee must have been dismissed every after
completion of his project or phase.
There must be a report to the DOLE of his dismissal
on account of completion of contracts.

Reason: Their services being needed only when


there are projects to be undertaken.
Exception: Where the employment of project
employee is extended long after the supposed
project has been finished, the employees are
considered regular employees.
Requisites for the exception to apply:
1. There is continuous rehiring, without gaps and
intervals, of project employees even after the
cessation of a project for the same tasks or nature
of tasks.
2. The task performed by the alleged project
employee are vital, necessary and indispensable to
the usual business or trade of the employer.
b. Seasonal Employee An employment
arrangement where an employee is engaged to
work during a particular season on an activity that
is usually necessary or desirable in the usual
business or trade of the employer. They are entitled
to separation pay when the business establishment
is sold which effectively terminates the
employment of the seasonal employees.
When can they be considered as a regular
employee?
1. When there is reasonable connection between
the particular activity performed by the employee
in relation to the usual trade or business of the
employer
2. Seasonal workers who are repeatedly engaged to
perform the same tasks for more than one season.
c. Fixed Term Employee An employment
arrangement where an employee is engaged to
work on a specific project or undertaking which is
usually necessary or desirable in the usual business
or trade of the employer, the completion of which
has been determined at the time of the
engagement of the employee.
Is this form of employment valid? Yes. Parties
have the freedom to contract so long as the
stipulations thereof are not contrary to law, morals,

public order, and public policy.


Requisites for Fixed-Period Employment may
be valid:
1. The fixed period of employment was knowingly
and voluntarily agreed upon by the parties without
any force, duress, or improper pressure being
brought to bear upon the employee and absent any
other circumstance vitiating his consent.
2. It is satisfactorily appears that the employer and
the employee dealt with each other on more or less
equal terms with no moral dominance exercised by
the former or the latter.
Exception: Where from the circumstances it is
apparent that the periods have been imposed to
preclude acquisition of security of tenure by the
employee, they should be struck down or
disregarded as contrary to public policy.
When can they be considered as a regular
employee?
1. The employees were allowed to work beyond the
fixed-term without the benefit of a new contract.
2. The employees were allowed to work for more
than one year and there is a reasonable connection
between the particular activity performed by the
employees in relation to the usual business or trade
of the employer.
3. In cases of successive renewals of fixed period
contracts and there is a reasonable connection
between the particular activity performed by the
employees in relation to the usual business or trade
of the employer.