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Worker regularity based on nature of job, not

the written employment contract


Dear PAO, (PROBLEM)
I have been working in this beverage company since 2010 under one-year contract and was renewed yearly up until
this year.
It is stated in one of the provisions of the contract that Im not entitled to any benefits and privileges that regular
employees get. Im wondering if I can get a 13th month pay under Department Order 18-A, Series of 2011. Would
there be any chance that I can be a regular employee since I have been with them for almost three years. Thanks. I
hope you can enlighten me on this matter.
Abub

Dear Abub,
Article 280 of the Labor Code of the Philippines is enlightening with regard to who should be considered a regular
employee. The said law provides that:
Art. 280. Regular and casual employment. The provisions of 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 been engaged to perform activities which are usually necessary or desirable in the usual 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
service 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.
It is clear from the provisions of the cited law that if the work performed is necessary and desirable to the business of
the employer then the employee will be deemed as regular regardless of the stipulations to the contrary. In other
words, what determines regularity is not the written employment contract, but the nature of the job (Azucena,
Everyones Labor Code, 2010 update, citing A.M. Oreta, August 10, 1989).
Since your employment is based on a contract limited to a period of one year, you may initially be considered as a
project, or contract worker. Generally, contract workers are not considered regular employees, since their services

are needed only when there are projects to be undertaken (Cartagenas v. Romago Electric Co., G.R. No. 82973,
September 15, 1989). Nonetheless, should the employment of the project or contract employees be extended after
the end of the supposed project, the said employees can now be considered as regular employees (Azucena,
Everyones Labor Code).
Furthermore, a project employee in a private company or entity may acquire the status of a regular employee when:
a. There is a continuous rehiring of project employees even after the end of the project;
b. The tasks performed by the alleged project employee are vital, necessary and indispensable to the usual business
or trade of the employer (Ibid).
Thus, considering that you have been re-hired several times already, and if determined that you perform necessary
and indispensable tasks to your employer, your status may become that of a regular employee, and thus, entitled to
all the rights and privileges as provided by law.
With regard to Department Order (DO) 18-A, Series of 2011 that you mentioned, note that this department order
applies to employees engaged in a contracting and subcontracting arrangement. Sec. 8 of DO 18-A, Series of 2011
specifically provides for the rights and privileges that such employees are entitled to, which includes:
Sec. 8. Rights of contractors employee. All contractors employees, whether deployed or assigned as reliever,
seasonal, week-ender, temporary, or promo jobbers, shall be entitled to all the rights and privileges as provided for in
the Labor Code, as amended, to include the following:
a. xxx
b. Labor standards such as but not limited to service incentive leave, rest days, overtime pay, holiday pay, 13th month
pay and separation pay as may be provided in the Service Agreement or under the Labor Code. xxx
Thus, should your employment be based on such arrangement, you are still entitled to a 13th month pay as clearly
provided by law.
Again, we find it necessary to mention that this opinion is solely based on the facts you have narrated and our
appreciation of the same. The opinion may vary when the facts are changed or elaborated.
We hope that we were able to enlighten you on the matter.
Editors note: Dear PAO is a daily column of the Public Attorneys Office. Questions for Chief Acosta may be sent to
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