1. Regular

Types of Regular Employment

• As to nature of work – An employment shall be deemed to be regular where the Ee has been engaged to perform activities which are usually necessary or desirable in the usual business or trade of the Er, the provisions of written agreements to the contrary notwithstanding and regardless of the oral agreements of the parties. (Sec. 5(a), Rule I, Book VI, IRR)
• As to length of service – Any Ee who has rendered at least one (1) year of service, whether such service is continuous or broken, shall be considered a regular Ee with respect to the activity in which he is employed, and his employment shall continue while such activity exists. (Sec. 5(b), Rule I, Book VI, IRR)

NOTE: Regularization is not a management prerogative; rather, it is the nature of employment that determines it. It is a mandate of the law. (PAL v. Pascua, G.R. No. 143258, 15 Aug. 2003)

What determines regularity or casualness is not the employment contract, written or otherwise, but the nature of the job. (Policy Instruction No. 2)

The practice of entering employment contracts which would prevent the workers from becoming regular should be struck down as contrary to public policy and morals. (Universal Robina Corp. v. Catapang, G.R. No. 164736, 14 Oct. 2005)

Tests to Determine Regular Employment

• The primary standard of determining regular employment is the reasonable connection between the particular activity performed by the Ee to the usual trade or business of the Er. The test is whether the former is usually necessary or desirable in the usual business or trade of the Er. (De Leon v. NLRC, G.R. No. 70705, 21 Aug. 1989) NOTE: The connection can be determined by considering the nature of the work performed and its relation to the scheme of the particular business or trade in its entirety. (Highway Copra Traders v. NLRC, G.R. No. 108889, 30 July 1998)
• Also, the performance of a job for at least a year is sufficient evidence of the job’s necessity if not indispensability to the business. This is the rule even if its performance is not continuous and merely intermittent. The employment is considered regular, but only with respect to such activity and while such activity exists. (Universal Robina Corp. v. Catapang, G.R. No. 164736, 14 Oct. 2005)

The status of regular employment attaches to the casual Ee on the day immediately after the end of his first year of service. The law does not provide the qualification that the Ee must first be issued a regular appointment or must first be formally declared as such before he can acquire a regular status. (Aurora Land Projects Corp. v. NLRC, G.R. No. 114733, 02 Jan. 1997)

Repeated rehiring and the continuing need for the Ee’s services are sufficient evidence of the necessity and indispensability of his services to the Er’s business or trade. (Baguio Country Club Corporation v. NLRC, G.R. No. 102397, 04 Sept. 1992)

Q: A was hired in a sugar plantation performing such tasks as weeding, cutting and loading canes, planting cane points, fertilizing and cleaning the drainage. Because his daily presence in the field was not required, A also worked as a houseboy at the house of the plantation owner. For the next planting season, the owner decided not to hire A as a plantation worker but as a houseboy instead. Furious, A filed a case for illegal dismissal against the plantation owner. Decide with reason. (2010 BAR)

A: A is a regular seasonal employee. Therefore, he cannot be dismissed without just or valid cause.

The primary standard for determining regular employment is the reasonable connection between the particular activity performed by the employee in relation to the usual trade or business of the employer (Pier 8 Arrastre & Stevedoring Services, Inc., et al. v. Jeff B. Boclot, G.R. No. 173849, 28 Sept. 2007). Considering that A, as plantation worker, performs work that is necessary and desirable to the usual business of the plantation owner, he is therefore a regular seasonal employee and is entitled to reinstatement upon onset of the next season unless he was hired for the duration of only one season. (Hacienda Bino v. Cuenca, G.R. No. 150478, 15 Apr. 2005)

Converting A to a mere houseboy at the house of the plantation owner amounts to an act of severing his employment relations as its plantation worker (Angeles v. Fernandez, G.R. No. 160213, 30 Jan. 2007)

DOCTRINE: The primary standard, therefore, of determining regular employment is the reasonable connection between the particular activity performed by the employee in relation to the usual business or trade of the employer. (Pier 8 Arrastre & Stevedoring Services, Inc., et al. v. Jeff B. Boclot, G.R. No. 173849, 28 Sept. 2007)

Seafarers are Not Regular Ees

Seafarers cannot be considered as regular Ees. The contract which they sign every time they are hired governs their employment. Their employment is terminated when the contract expires. Their employment is fixed for a certain period. (Ravago v. Esso Eastern Maritime Ltd., G.R. No. 158324, 15 Mar. 2005)

In case of OFWs, Art. 295 of the LC does not apply.

Q: L. Natividad Poultry Farms is a business engaged in livestock and poultry production which employed several workers as livestock feed mixers or as maintenance personnel.

The workers filed complaints for illegal dismissal against L. Natividad, asserting that they are regular Ees, having been continuously employed by L. Natividad for a period ranging from more than one (1) year to 17 years. They stress that L. Natividad provided all the tools, equipment, and materials they used as maintenance personnel and then gave them specific tasks and supervised their work.

The CA ruled that petitioners cannot be considered as regular Ees because there was no reasonable connection between the nature of their carpentry and masonry work and respondents' usual business in poultry and livestock production, sale, and distribution. Are the petitioners regular Ees of L. Natividad?

A: YES. The necessity or desirability of the work performed by an Ee can be inferred from the length of time that an Ee has been performing this work. If an Ee has been employed for at least one (1) year, he or she is considered a regular Ee by operation of law. Likewise, if an Ee has been on the job for at least one (1) year, even if the performance of the job is intermittent, the repeated and continuous need for the Ee's services is sufficient evidence of the indispensability of his or her services to the Er's business.

Thus, even if the Court of Appeals is of the opinion that carpentry and masonry are not necessary or desirable to the business of livestock and poultry production, the nature of their employment could have been characterized as being under the second paragraph of Art. 295 [280] of the Labor Code. Thus, petitioners' service of more than one (1) year to respondents has made them regular Ees for so long as the activities they were required to do subsist. (Mario Abuda, et al. v. L. Natividad Poultry Farms, G.R. No. 200712, 04 July 2018)

Q: Various camera operators were engaged by and rendered services directly to GMA Network, Inc. and received compensation for such. They were subsequently dismissed by GMA which led them to file a complaint for “illegal dismissal, non-payment of salary or wages, and regularization,” claiming that they were regular Ees of GMA because as camera operators, they performed functions that were necessary and desirable to its business as a television and broadcasting company. They also claimed that they were illegally dismissed for lack of just or authorized cause. On the other hand, GMA argues that they were not their Ees, and that even if they were, they could not have attained regular status considering their failure to render “at least one year of service” as required by law.

• Is there an Er-Ee relationship between the camera operators and GMA?

A: YES. To determine the existence of an Er-Ee relationship, case law has consistently applied the four-fold test, to wit: (a) the selection and engagement of the Ee; (b) the payment of wages; (c) the power of dismissal; and (d) the Er’s power to control the Ee on the means and methods by which the work is accomplished, this being deemed as the most crucial and determinative indicator of the presence or absence of an Er-Ee relationship.

In applying the four-fold test in this case, (a) the camera operators were engaged by and rendered services directly to GMA; (b) they received compensation for their services; (c) they were dismissed by GMA; and (d) they were subject to GMA’s control and supervision on the following grounds: (a) their recordings and shoots were never left to their own discretion and craft; (b) they were required to follow the work schedules which GMA provided to them; (c) they were not allowed to leave the work site during tapings, which often lasted for days; (d) they were also required to follow company rules like any other Ee; (e) they were provided the equipment they used during tapings; and (f) they were assigned supervisors to monitor their performance and guarantee their compliance with company protocols and standards.

b. Assuming the existence of an Er-Ee relationship, were the camera operators regular Ees of GMA?

YES. Under Art. 295 of the LC, there are two ways to attain regular employment status: (1) employment shall be deemed to be regular where the Ee has been engaged to perform activities which are usually necessary or desirable in the usual business or trade of the Er, notwithstanding the provisions of written agreement and regardless of the oral agreement of the parties; and (2) any casual Ee who has rendered at least one year of service, whether such service is continuous or broken, shall be considered a regular Ee with respect to the activity in which he is employed and his employment shall continue while such activity exists.

Only casual Ees performing work that is neither necessary nor desirable to the usual business and trade of the Er are required to render at least one year of service to attain regular status. Ees who perform functions which are necessary and desirable to the usual business and trade of the Er attain regular status from the time of engagement. Here, the camera operators were never casual Ees because they performed functions that were necessary and desirable to the usual business of GMA; hence, they did not need to render a year’s worth of service to be considered regular Ees. (Henry Paragele, et al. v. GMA Network, Inc., G.R. No. 235315, 13 July 2020)

Domestic Helpers and Househelpers

The mere fact that the househelper or domestic servant is working within the premises of the business of the employer and in relation to or in connection with its business, warrants the conclusion that such househelper or domestic servant is and should be considered as a regular employee of the employer and not as a mere family househelper or domestic servant. (Apex Mining Co., Inc. v. NLRC, G.R. No. 94951, 22 Apr. 1991)

Mode of compensation is not determinative of regular employment

While the Ees mode of compensation was on a “per piece basis”, the status and nature of their employment was that of regular Ees. (Labor Congress of the Phils v. NLRC, G.R. No. 123938, 21 May 1998)

Q: Moises was employed by La Tondeña at the maintenance section of its Engineering Department paid on a daily basis through petty cash vouchers. His work consisted mainly of painting company building and equipment and other odd jobs relating to maintenance. After a service of more than 1 year, Moises requested that he be included in the payroll of regular workers, instead of being paid through petty cash vouchers. Instead, La Tondeña dismissed Moises and claimed that Moises was contracted on a casual basis specifically to paint certain company buildings and that its completion terminated Moises’ employment. Can Moises be considered as a regular Ee?

A: YES. The law demands that the nature and entirety of the activities performed by the Ee be considered. Here, the painting and maintenance work given to Moises manifests a treatment consistent with a maintenance man and not just a painter, for if his job was only to paint a building, there would be no basis for giving him other work assignments in-between painting activities. It is not tenable to argue that the painting and maintenance work of Moises are not necessary in La Tondeña’s business of manufacturing liquors; otherwise, there would be no need for the regular maintenance section of the company’s engineering department. (De Leon v. NLRC, G.R. No. 70705, 21 Aug. 1989)

Q: A total of 43 Ees who are deaf-mutes were hired and re-hired on various periods by Far East Bank and Trust Co. as money sorters and counters through a uniformly worded agreement called “Employment Contract for Handicapped Workers.” The company disclaimed that these Ees were regular Ees and maintained, among others, that they are a special class of workers, who were hired temporarily under a special employment arrangement which was a result of overtures made by some civic and political personalities to the Bank. Should the deaf-mute Ees be considered as regular Ees?

A: YES. The renewal of the contracts of the handicapped workers and the hiring of others leads to the conclusion that their tasks were beneficial and necessary to the bank. It also shows that they were qualified to perform the responsibilities of their positions; their disability did not render them unqualified or unfit for the tasks assigned to them.

The Magna Carta for Disabled Persons mandates that a qualified disabled Ee should be given the same terms and conditions of employment as a qualified able-bodied person. The fact that the Ees were qualified disabled persons necessarily removes the employment contracts from the ambit of Art. 80. Since the Magna Carta accords them the rights of qualified able-bodied persons, hence, they are covered by Art. 295 [280], Labor Code. (Bernardo v. NLRC, G.R. No. 122917, 12 July 1999)

NOTE: The repeated rehiring of workers and the continuing need for their services clearly attest to the necessity or desirability of their services in the regular conduct of the business or trade of the company. (Magsalin & Coca-Cola v. N.O.W.M., G.R. No. 148492, 09 May 2003)

Q: Metromedia Times Corp. entered, for the fifth time, into an agreement with Efren Paguio, appointing him to be an account executive of the firm. He was to solicit advertisements for “The Manila Times.” The written contract between the parties provided that, “You are not an Ee of the Metromedia Times Corp. nor does the company have neither any obligations towards anyone you may employ, nor any responsibility for your operating expenses or for any liability you may incur. The only rights and obligations between us are those set forth in this agreement. This agreement cannot be amended or modified in any way except with the duly authorized consent in writing of both parties.” Is Efren Paguio a regular Ee of Metromedia Times Corporation?

A: YES. He performed activities which were necessary and desirable to the business of the Er, and that the same went on for more than a year. He was an account executive in soliciting advertisements, clearly necessary and desirable, for the survival and continued operation of the business of the corporation.

The law, in defining their contractual relationship, does so, not necessarily or exclusively upon the terms of their written or oral contract, but also based on the nature of the work of Efren has been called upon to perform. A stipulation in an agreement can be ignored as and when it is utilized to deprive the Ee of his security of tenure. (Paguio v. NLRC, G.R. No. 147816, 09 May 2003)

Q: Super Comfort Hotel employed a regular pool of “extra waiters” who are asked to report for duty when the Hotel’s volume of business is beyond the capacity of the regularly employed waiters to undertake. Pedro has been an “extra waiter” for more than 10 years. He is also called upon to work on weekends, on holidays, and when there are big affairs at the hotel. What is Pedro’s status as an Ee under the LC? (2008 BAR)

A: Pedro has acquired the status of a regular Ee. Pedro was engaged to perform activities which are necessary or desirable in the usual business or trade of the Er. Moreover, Pedro has been “extra waiter” for more than ten years. Under the law, any Ee who has rendered service for at least one year, whether such service is continuous or broken, shall be considered a regular Ee with respect to the activity in which he is employed, and his employment shall continue while such activity exists. (Art. 295 [280], Labor Code)

Q: Allan Regala filed a complaint for constructive dismissal and regularization, non- payment of paternity leave pay, and claims for backwages against Manila Hotel Corporation (MHC). The Labor Arbiter held that Regala is a fixed-term Ee of MHC and that he voluntarily executed the Service Agreements with MHC with a full understanding that his engagement with it was only for a fixed period. On the issue of constructive dismissal, the LA held that Regala's claim of constructive dismissal must fail considering that he continued reporting for work at MHC at the time he instituted the instant complaint for illegal or constructive dismissal. The NLRC reversed the decision of the LA and held that Regala is a regular Ee of MHC. Being a regular Ee of MHC, the NLRC found that Regala was constructively dismissed from employment when MHC reduced his take-home pay as a consequence of the hotel's changes in his work schedule which reduced his work days from five (5) days a week to two (2) days a week. Aggrieved, MHC filed a Petition for Certiorari. The CA rendered a decision granting MHC's Petition for Certiorari and setting aside the decision of the NLRC. Is the CA correct?

A: NO. The employment status of a person is defined and prescribed by law and not by what the parties say it should be. In this regard, Art. 295 [280], Labor Code "provides for two types of regular Ees, namely: (a) those who are engaged to perform activities which are usually necessary or desirable in the usual business or trade of the Er (first category); and (b) those who have rendered at least one year of service, whether continuous or broken, with respect to the activity in which they are employed (second category)." While MHC insists that Regala was engaged under a fixed-term employment agreement, the circumstances and evidence on record, and provision of law, however, dictate that Regala is its regular Ee.

There is constructive dismissal where "there is cessation of work because 'continued employment is rendered impossible, unreasonable or unlikely, as an offer involving a demotion in rank or a diminution in pay' and other benefits. Aptly called a dismissal in disguise or an act amounting to dismissal but made to appear as if it were not, constructive dismissal may, likewise, exist if an act of clear discrimination, insensibility, or disdain by an Er becomes so unbearable on the part of the Ee that it could foreclose any choice by him except to forego his continued employment.”

Patently, the reduction of Regala's regular work days from five (5) days to two (2) days resulted to a diminution in pay. Regala's change in his work schedule resulting to the diminution of his take home salary is, therefore, tantamount to constructive dismissal. (Allan Regala v. Manila Hotel Corporation, G.R. No. 204684, 05 Oct. 2020, as penned by J. Hernando)

CASUAL

How to resolve the conflict between the Alcira and Mitsubishi Motors case:

• Statutory Construction – Do not presume that the latter case prevails (Mitsubishi Motors); compare the holdings and material facts of Alcira and Mitsubishi Motors, their precedential authority, and the applicable statutory rule; or
• Rule more favorable to the Ee – Apply the controlling statutory rule and holding after distinguishing Alcira and Mitsubishi Motors on their material facts. If a genuine ambiguity remains, construe it in favor of the employee; do not select a computation solely because it grants regular employment status (Labor Code, Art. 4).

Regular Holidays

• New Year’s Day – Jan. 1
• Maundy Thursday – Movable Date
• Good Friday – Movable Date
• Araw ng Kagitingan – April 9
• Labor Day – May 1
• Independence Day – June 12
• Nat’l Heroes Day – Last Mon. of Aug.
• Bonifacio Day – Nov. 30
• Eid al Fit’r – Movable Date
• Eid al Adha – Movable Date
• Christmas Day – Dec. 25
• Rizal Day – Dec. 30

The Legal Requisites for Acquisition by a Teacher of Permanent Employment

• The teacher is a full-time teacher;
• Must have rendered three (3) consecutive years of service; and
• Such service must be satisfactory. (Jocelyn Herrera-Manaois v. St. Scholastica’s College, G.R. No. 188914, 11 Dec. 2013)

Q: In 2004, petitioner was given a full-time load for the S.Y. 2004-2005. For S.Y. 2005-2006 and 2006-2007, petitioner signed contracts for term/semestral employment. However, in a notice dated 28 Feb. 2007, HNU informed Arlene that her contract of employment, which would have expired on 31 Mar. 2007, will no longer be renewed.

Arlene argued that since she taught at HNU for more than 6 consecutive regular semesters, she already attained the status of a regular Ee pursuant to the Manual of Regulations for Private School Teachers. There having been no valid or justifiable cause for her dismissal, petitioner claimed that her employment was illegally terminated.

On the other hand, respondents contended that in S.Y. 2004-2005, 2005-2006 and 2006-2007, Arlene remained a probationary Ee. The completion of her probationary period did not automatically make her a permanent Ee since she failed to comply with all the conditions of her probationary employment satisfactorily. Respondents insisted that petitioner was not dismissed; rather, her contract of employment merely expired on 31 Mar. 2007.

Was petitioner illegally dismissed?

A: NO. In accordance with the Revised Manual of Regulations for Private Schools, petitioner did not meet the criteria required to be considered as a permanent Ee. In Lacuesta v. ADMU (G.R. No. 152777, 09 Dec. 2005), these are the requisites before a private school teacher acquires permanent status: (1) The teacher serves full-time; (2) they must have rendered three consecutive years of service; and (3) such service must have been satisfactory.

While petitioner has rendered three consecutive years of satisfactory service, she was, however, not a full-time teacher. Only full-time teaching personnel can acquire regular or permanent status. A part-time teacher cannot acquire permanent status.

Therefore, petitioner was not illegally dismissed since no dismissal occurred in the first place. Her fixed-term contract merely expired (Arlene Palgan v. Holy Name University, G.R. No. 219916, February 10, 2021, as penned by J. Hernando).

Q: Colegio de San Agustin (CSA) hired Gela Jose as a grade school classroom teacher on a probationary basis for SY ‘84–‘85. Her contract was renewed for SY’s ‘85-‘86 and ‘86-‘87. On 24 Mar. 1987, the CSA wrote the Gela that "it would be in the best interest of the students and their families that she seeks employment in another school or business concern for next school year.”

Notwithstanding the said notice, the CSA still paid Gela her salary for 15 Apr. to 15 May 1987. On 06 Apr. 1987, Gela wrote the CSA and sought reconsideration but she received no reply. Thereafter, she filed a complaint for illegal dismissal. Was Gela illegally dismissed?

A: NO. The Faculty Manual of CSA underscores the completion of three (3) years of continuous service at CSA before a probationary teacher acquires tenure. Hence, Gela cannot claim any vested right to a permanent appointment since she had not yet achieved the prerequisite three (3) year period under the Manual of Regulation for Private Schools and the Faculty Manual of CSA.

In the instant case where the CSA did not wish to renew the contract of employment for the next school year, Gela has no ground to protest. She was not illegally dismissed. Her contract merely expired. (CSA v. NLRC, G.R No. 87333, 06 Sep. 1991)

Q: During their probationary employment, eight Ees were berated and insulted by their supervisor. In protest, they walked out. The supervisor shouted at them to go home and never to report back to work. Later, the personnel manager required them to explain why they should not be dismissed from employment for abandonment and failure to qualify for the positions applied for. They filed a complaint for illegal dismissal against their Er. As the Labor Arbiter, how will you resolve the case? (2006 BAR)

A: As the LA, I will resolve the case in favor of the eight probationary Ees due to the following:

• Probationary Ees also enjoy security of tenure. (Biboso v. Victoria Milling, G.R. No. L-44360, 31 Mar. 1977)
• In all cases involving Ees on probationary status, the Er shall make known to the Ee at the time he is hired, the standards by which he will qualify for the positions applied for.
• The filing of the complaint for illegal dismissal effectively negates the Er’s theory of abandonment. (Rizada v. NLRC, G.R. No. 96982, 21 Sept. 1999)
• The order to go home and not to return to work constitutes dismissal from employment.
• The eight (8) probationary Ees employment were terminated without just cause and without due process.

In view of the foregoing, I will order reinstatement to their former positions without loss of seniority rights with full back wages. Damages and attorney’s fees may be awarded only if their respective factual and legal requirements are established and the award is justified (Civil Code, Arts. 2208, 2217–2219 and 2232).

Q: Arlene started working as a Casual or Assistant Clinical Instructor for two semesters in HNU's College of Nursing while awaiting the results of her Nursing Board Examination. She alleged that upon her hiring, HNU did not inform her of the standards for the evaluation of her satisfactory completion of her probationary period. In the second semester of S.Y. 1994- 1995, she was hired as a full-time Clinical Instructor until S.Y. 1998-1999, and was assigned at the Medical Ward. During the second semester of S.Y. 1998-1999, she was transferred to the Guidance Center as a Nursing Guidance Instructor handling guidance, education, and graduate school courses. At this time, she was elected as Municipal Councilor of Carmen, Bohol.

Upon her reelection as Municipal Councilor for the 2001-2004 term, she took a leave of absence from HNU. Arlene rejoined HNU and was given a full-time load for the S.Y. 2004-2005. For S.Y. 2005-2006 and 2006-2007, Arlene signed contracts for term/semesteral, employment.

However, in a notice, HNU informed Arlene that her contract of employment, which would have expired on 31 March 2007, will no longer be renewed. Arlene argued that since she taught at HNU for more than six consecutive regular semesters, she already attained the status of a regular Ee pursuant to the Manual of Regulations for Private School Teachers. Thus, she claimed that her employment was illegally terminated. Is Arlene’s contention correct?

A: NO. A private school teacher acquires permanent status when the following requisites are met: 1) The teacher serves full-time; 2) he/she must have rendered three consecutive years of service; and 3) such service must have been satisfactory.

While Arlene has rendered three consecutive years of satisfactory service, she was, however, not a full- time teacher at the College of Nursing of HNU. Only a full-time teaching personnel can acquire regular or permanent status. The three-year or one-year clinical practice experience is a minimum academic requirement to qualify as a faculty member in a College of Nursing, and is therefore, required for one to be considered as a full-time faculty of such.

Arlene failed to meet the required minimum clinical practice experience under the law and the relevant regulations. Since she failed to provide substantial evidence, her work experience cannot be considered as "clinical practice." Being unqualified as a nursing faculty from the start, Arlene cannot possibly be considered a full-time faculty and thus, could not, even after rendering satisfactory service for three years, be entitled to permanency. Therefore, her stint as a clinical instructor from 1994-1997 cannot even be considered as compliance with the clinical practice experience requirement for the purpose of determining whether or not she is a full-time faculty when she was employed again as a clinical instructor from 2004-2007.

The fixed-term contracts presented as evidence would reveal that the parties intended that their Er- Ee relationship would last only for a specific period. Even if no written fixed-term contract was presented, judicial notice can be made upon the fact that teachers' employment contracts are for a specific semester or term. For the second requisite of a valid fixed-term contract, Arlene was on equal footing with HNU. She was an honors graduate and has stellar qualifications. Moreover, she is an elected public official and appears to be quite popular, given that she has won as municipal councilor multiple times and even placed number one in terms of votes garnered. These facts would make apparent that Arlene is not a mere run-of-the- mill Ee, and that she certainly has the capability to be on equal footing in dealing with her Er when it came to her employment terms.

Thus, petitioner was validly contracted for a fixed term. The expiry of her latest contract on 31 March 2007 effectively ended the Ee-Er relationship she had with HNU. No dismissal, whether illegal or not, ever happened. Therefore, she is not entitled to any of the reliefs sought. (Arlene Palgan v. Holy Name University, et. al., G.R. No. 219916, 10 Feb. 2021)

Q: UST has a CBA with the Union. The CBA requires a master’s degree for a professor to be tenured. The CBA, however, also provides that “If he does not finish his degree in five (5) semesters, he shall be separated from service at the end of the fifth semester; however, if he is made to serve the University further, in spite of the lack of a master's degree, he shall be deemed to have attained tenure”. Is the stipulation conferring tenureship despite the lack of master’s degree valid?

A: NO. When the CBA was executed between the parties in 2006, they had no right to include therein the provision relative to the acquisition of tenure by default, because it is contrary to, and thus violative of the 1992 Revised Manual of Regulations for Private Schools that was in effect at the time. As such, said CBA provision is null and void, and can have no effect as between the parties. “A void contract is equivalent to nothing; it produces no civil effect; and it does not create, modify or extinguish a juridical relation.”

It cannot be said either that by agreeing to the tenure by default provision in the CBA, UST is deemed to be in estoppel or have waived the application of the requirement under CHED Memorandum Order No. 40-08. Such a waiver is precisely contrary to law. Moreover, a waiver would prejudice the rights of the students and the public, who have a right to expect that UST is acting within the bounds of the law and provides quality education by hiring only qualified teaching personnel.

As the Court held in Escorpizo v. University of Baguio (G.R. No. 121962, 30 Apr. 1999), a school CBA must be read in conjunction with statutory and administrative regulations governing faculty qualifications. Such regulations form part of a valid CBA without need for the parties to make express reference to it. While the contracting parties may establish such stipulations, clauses, terms and conditions, as they may see fit, the right to contract is still subject to the limitation that the agreement must not be contrary to law or public policy. (Son v. UST, G.R. No 211273, 18 Apr. 2018)

Q: In 2010, Guagua National Colleges (petitioner) implemented a 15% tuition fee increase for the school year 2010-2011. After deducting scholarship expenses and making provisions for dropouts, unpaid accounts, and contingencies, the net tuition fee incremental proceeds (TIP) of petitioner amounted to Php 4,579,923.00. Pursuant to Sec. 5(2) of R.A. No. 6728, petitioner allocated 70% of the TIP, or Php 3,205,946.00, as follows: (1) 13th month pay and cash gift - P 91,709.00; (2) honorarium – Php 286,497.00; (3) clothing and family assistance – Php 191,225.00; (4) SSS, PHIC, and HDMF contribution - P 67,413.00; and (5) Retirement benefit fund contribution - P 2,569,102.00. Respondents Guagua National Colleges Faculty Labor Union and Guagua National Colleges Non-Teaching and Maintenance Labor Union demanded that the 70% of the TIP be allocated to the salaries of the Ees. As basis for their demand, respondents quoted Sec. 182(b) of the 2010 Revised Manual, which states that the increase in tuition or other school fees, as well as new fees shall be subject to the condition, among others, that no increase in tuition or other school fees or charges shall be approved unless 70% of the proceeds is allocated for increase in salaries or wages of the members of the faculty and all other Ees of the school concerned. Is the contention of the respondents correct?

A: NO. The guidelines issued under DECS Order No. 15, series of 1992 on the allocation of the 70% incremental proceeds under R.A. No. 6728 restricted the scope of "other benefits" by limiting its applicability to "wage related benefits," which the law itself does not require. The term "other benefits" should not refer only to other wage- related benefits. Well settled is the doctrine that in case of conflict, the law prevails over the administrative regulations implementing it. To be valid, a rule or regulation must conform and be consistent with the provisions of the enabling statute. As such, it cannot amend the law either by abridging or expanding its scope.

Sec. 5(2) of R.A. No. 6728 clearly states that a tuition fee increase is allowed if 70% of the amount subsidized allotted for tuition fee or of the tuition fee increases shall go to the payment of salaries, wages, allowances, and other benefits of teaching and non-teaching personnel. The law does not qualify the term "other benefits" to refer only to "wage-related benefits." Hence, the allocation of a portion of the 70% TIP for the Ees' retirement plan, which is clearly intended for the benefit of the Ees, fall under the category of "other benefits" as provided under the law.

Moreover, on 04 Feb. 2011, then DepEd Secretary Luistro issued DepEd Order No. 11 s. 2011. It amended Sec. 182 of the 2010 Revised Manual of Private Schools to conform to the provision of Sec. 5(2) of R.A. No. 6728, among others, to include other benefits in the allocation of the allowed tuition fee increase, apart from the payment of salaries, wages, and allowances of members of the faculty and other school Ees. Thus, Guagua National Colleges' allocation of a portion of the 70% net tuition fee incremental proceeds for contribution to the retirement plan of its Ees is VALID. (Guagua National Colleges v. Guagua National Colleges Faculty Labor Union, G.R. No. 213730, 23 June 2021)

PROJECT

Indicators of Project Employment in Construction Industry

Either one or more of the following circumstances, among others, may be considered as indicators that an Ee is a project Ee:

• The duration of the specific/identified undertaking for which the worker is engaged is reasonably determinable;
• 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; NOTE: Absent any other proof that the project Ees were informed of their status as such, it will be presumed that they are regular Ees.
• The work/service performed by the Ee is in connection with the particular project/ undertaking for which he is engaged;
• The Ee, while not employed and awaiting engagement, is free to offer his services to any other Er;
• 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 form on Ee’s terminations, dismissals or suspensions; or
• An undertaking in the employment contract by the Er to pay completion bonus to the project Ee as practiced by most construction companies. (D.O. 19-93; Hanjin Heavy Industries v. Ibañez, G.R. No. 170181, 26 June 2008)

Requisites to Acquire Regular Ee Status of Project Ee

The following must concur to acquire regular Ee status:

• There is a continuous rehiring of project Ee’s even after cessation of a project; and
• The tasks performed by the alleged “project Ee” are vital, necessary, and indispensable to the usual business or trade of the Er. (D.M. Consunji, Inc. v. JAMIN, G.R. No. 192514, 18 Apr. 2012)

The length of time during which the Ee was continuously rehired is not controlling, but merely serves as a badge of regular employment.