5. Seasonal

Temporary Ee becoming Regular Ee

An employment may only be said to be ‘temporary’:

• Where it has been fixed for a specific undertaking the completion of which has been determined at the time of the engagement of the Ee; or
• Where the work or services to be performed is seasonal in nature and the employment is for the duration of the season.

Seasonal employment

Employment where the job, work, or service to be performed is seasonal in nature and the employment is for the duration of the season. (Sec. 5(a), Book VI, Rule I, IRR)

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.

NOTE: For a Seasonal Ee hired only for a particular season, employment legally ends upon completion of that season. The end of that employment cannot and should not constitute an illegal dismissal. (Mercado v. NLRC, G.R. No. 79869, 05 Sept. 1991)

One-year 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. (Ibid.)

During off-season, the relationship of Er-Ee is not severed; the Seasonal Ee is merely considered on LOA without pay. Seasonal workers who are repeatedly engaged from season to season performing the same tasks are deemed to have acquired regular employment. (Hacienda Fatima v. National Federation of Sugarcane Workers-Food and General Trade, G.R. No. 149440, 28 Jan. 2003)

Seasonal Ees as Regular Ees

Seasonal Ees can be considered regular Ees. The fact that Seasonal Ees do not work continuously for one whole year but only for the duration of the season does not detract from considering them in regular employment. Seasonal workers who are called to work from time to time and are temporarily laid off during off-season are not separated from service in that period, but merely considered on leave until re- employed.

If the Ee has been performing the job for at least a year, even if the performance is not continuous and merely intermittent, the law deems repeated and continuing need for its performance as sufficient evidence of the necessity if not indispensability of that activity to the business. Hence, the employment is considered regular, but only with respect to such activity and while such activity exists. (Benares v. Pancho, G.R. No. 151827, 29 Apr. 2005)

It is not enough that they perform work or services that are seasonal in nature. They must have also been employed only for the duration of one season.

Q: Carlito Codilan and Maximo Docena had been working for the rice mill for 25 years, while Eugenio Go, Teofilo Trangria, and Reynaldo Tulin have been working for 22, 15, and 6 years respectively.

The operations of the rice mill continue to operate and do business throughout the year even if there are only two or three harvest seasons within the year. This seasonal harvesting is the reason why the company considers the workers as seasonal Ees. Is the company correct in considering the Ees as seasonal Ees?

A: NO. The fact is that big rice mills such as the one owned by the company continue to operate and do business throughout the year even if there are only two or three harvest seasons within the year. It is a common practice among farmers and rice dealers to store their palay and to have the same milled as the need arises. Thus, the milling operations are not seasonal.

Finally, considering the number of years that they have worked, the lowest being six (6) years, the workers have long attained the status of regular Ees as defined under Art. 295. (Tacloban Sagkahan Rice Mill v. NLRC, G.R. No. 73806, 21 Mar. 1990)

Entitlement to Separation Pay

If the sale results in a qualifying closure or cessation of business that terminates regular seasonal Ees, the latter would be entitled to separation pay under Art. 298 [283] of the Labor Code, unless the closure or cessation is due to serious business losses. A sale alone does not automatically entitle them to separation pay.

NOTE: “Month pay” shall be understood, in this regard, as average monthly pay during the season they worked. (Abad, Jr., 2015)

FIXED-TERM