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A LAW EACH DAY

Employees in the construction industry are generally categorized as project


employees or non-project employees. Project employees are those employed in
connection with a particular construction project or phase thereof and whose
employment is coterminous with each project or phase of the project to which they
are assigned (DOLE Order 19, Series of 1993). In the case of Bert this definition
comes into play.

Bert started working with FSI, a corporation engaged in construction business, on


June 12, 1989. His employment contract provides that it is good only for the duration
of the project unless the employee’s services is terminated due to completion of the
phase of work/section or piece of work to which employee is assigned. He was
initially hired as an "installer" and later promoted to mobile crane operator,
stationed at the company premises. FSI regularly submitted to the labor department
reports of the termination of services of all project workers including Bert. His last
employment contract was on August 26, 1996 where he worked at the site of the
World Finance Plaza at Meralco Avenue, Ortigas Center, Pasig City, assigned at the
phase of work termed as "Lifting and Hauling of Materials". On October 1, 1999, his
employment for that particular project was terminated by FSI.

Thus, on November 18, 1999, Bert filed a complaint for illegal dismissal against FSI.
He claimed that his work with the company was not dependent upon the completion
or termination of any project and was continuous and without interruption. He
alleged that he was performing tasks vital and desirable to the employer’s usual
business attending to the maintenance of all the company’s mobile cranes for the
past ten years. The Labor Arbiter and the NLRC did not agree with him. But on appeal
to the Court of Appeals (CA), he was sustained. The CA ruled that he was a regular
employee and ordered his reinstatement with full back wages and without loss of
seniority rights. Was the CA correct?

No. Bert was 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 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. The length of the service of a project employee is not the
controlling test of employment tenure but whether or not 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.

In this case, the contracts of employment of Bert attest to the fact that he was hired
for specific projects. His employment was coterminous with the completion of the
projects for which he has been hired. Those contract expressly provided that his
tenure of employment depended on the duration of any phase of the project or on
the completion of the construction projects. Furthermore, the compliance by FSI
with the reportorial requirement on termination of services of project workers
confirms that Bert was a project employee. That his employment does not mention
particular dates establishing the specific duration of the project does not preclude
his classification as project employee and make him a regular employee. The last
employment contract did specify that the termination of the parties’ employment
relationship was to be on a day certain – the day when the phase of work termed as
"Lifting and Hauling of Materials" for the World Finance Plaza project would be
completed. "Day certain" is understood to be that which must necessarily come,
although it may not be known exactly when. This means that the final completion of
a project or phase thereof is in fact determinable and the expected completion is
made known to the employee. Thus Bert cannot be considered a regular employee.
He was a project employee. That he was employed with FSI for ten years in various
projects did not ipso facto make him a regular employee, considering that the
definition of a regular employment in article 280 of the Labor Code makes a specific
exception with respect to project employment. The mere re-hiring of Bert on a
project to project basis did not confer upon him regular employment status. The
practice was dictated by practical consideration that experienced construction
workers are more preferred. It did not change his status as a project
employee (Filipinas Pre-Fabricated Building Systems Inc. vs. Puente. G.R.153832.
March 18, 2005. 453 SCRA 820).
Read more at https://www.philstar.com/opinion/2006/03/14/326137/project-
employee#WeTP8GfVlEq5A5Gm.99