Article 284 Regulation of foreign assistance. thousand pesos (P1,000.
sand pesos (P1,000.00) nor more than ten thousand may be desirable for the maintenance and promotion of
Chapter II – Assistance to Labor Organizations
Art. 281. Assistance by the Department of Labor.
The Department of Labor, at the initiative of the
Secretary of Labor, shall extend special assistance to the
organization, for purposes of collective bargaining, of the
most underprivileged workers who, for reasons of
occupation, organizational structure or insufficient incomes,
are not normally covered by major labor organizations or
federations.
Art. 282. Assistance by the Institute of Labor and Manpower
Studies.
The Institute of Labor and Manpower Studies
shall render technical and other forms of assistance to labor
organizations and employer organizations in the field of
labor education, especially pertaining to collective
bargaining, arbitration, labor standards and the Labor Code
of the Philippines in general.
Notes:
This pertains to the obligation of the Union to
conduct Labor Education Seminars to its members to inform
them of the provisions of their constitution and by-laws,
collective bargaining agreement, the prevailing labor
relations system, and all their rights and obligations under
the existing labor laws.
Chapter III – Foreign Activities
Art. 283 Prohibition against aliens; exceptions.
All aliens, natural or juridical, as well as foreign
organizations are strictly prohibited from engaging directly
or indirectly in all forms of trade union activities without
prejudice to normal contacts between Philippine labor
unions and recognized international labor centers:
Provided, however, That aliens working in the country with
valid permits issued by the Department of Labor and
Employment, may exercise the right to self-organization
and join or assist labor organizations of their own choosing
for purposes of collective bargaining: Provided, further,
That said aliens are nationals of a country which grants the
same or similar rights to Filipino workers.
Notes:
This pertains to the rights of foreigners to join
or to engage labor organizations. Foreigners, whether
natural or juridical as well as foreign corporations are
strictly prohibited from engaging directly or indirectly in all
forms of trade union activities except aliens working in the
country with valid working permits and are nationals of a
country which grants the same rights to Filipino nationals as
certified by the Department of Foreign Affairs.
a. No foreign individual, organization or entity may give any
donations, grants or other forms of assistance, in cash or in
kind, directly or indirectly, to any labor organization, group
of workers or any auxiliary thereof, such as cooperatives,
credit unions and institutions engaged in research,
education or communication, in relation to trade union
activities, without prior permission by the Secretary of
Labor.
"Trade union activities" shall mean:
(1) organization, formation and administration of labor
organization;
(2) negotiation and administration of collective bargaining
agreements;
(3) all forms of concerted union action;
(4) organizing, managing, or assisting union conventions,
meetings, rallies, referenda, teach-ins, seminars,
conferences and institutes;
(5) any form of participation or involvement in
representation proceedings, representation elections,
consent elections, union elections; and
(6) Other activities or actions analogous to the foregoing.
b. This prohibition shall equally apply to foreign donations,
grants or other forms of assistance, in cash or in kind, given
directly or indirectly to any employer or employer’s
organization to support any activity or activities affecting
trade unions.
c. The Secretary of Labor shall promulgate rules and
regulations to regulate and control the giving and receiving
of such donations, grants, or other forms of assistance,
including the mandatory reporting of the amounts of the
donations or grants, the specific recipients thereof, the
projects or activities proposed to be supported, and their
duration.
Notes:
Prior permission from the Secretary of Labor is
required before a foreign individual, organization or entity
can give donations, grants or other forms of assistance in
cash or in kind to any labor organization, or any auxiliary
thereof.
Legitimate labor organizations should make a
disclosure of the donations and donors for purposes of the
annual financial reports.
Chapter IV- PENALTIES FOR VIOLATION
Article 286- Penalties
a. Any person violating any of the provisions of Article 264
of this Code shall be punished by a fine of not less than one
pesos (P10,000.00) and/or imprisonment for not less than
three months nor more than three (3) years, or both such
fine and imprisonment, at the discretion of the court.
Prosecution under this provision shall preclude prosecution
for the same act under the Revised Penal Code, and vice
versa.
b. Upon the recommendation of the Minister of Labor and
Employment and the Minister of National Defense,
foreigners who violate the provisions of this Title shall be
subject to immediate and summary deportation by the
Commission on Immigration and Deportation and shall be
permanently barred from re-entering the country without
the special permission of the President of the Philippines
Notes:
Prosecution under this provision shall preclude
prosecution for the same act under the Revised Penal Code,
and vice versa.
The regular courts have jurisdiction over any
criminal action under this article.
Article 287- Study of Labor- Management Relations;
The Secretary of Labor shall have the power and
it shall be his duty to inquire into:
a. the existing relations between employers and employees
in the Philippines;
b. the growth of associations of employees and the effect of
such associations upon employer-employee relations;
c. the extent and results of the methods of collective
bargaining in the determination of terms and conditions of
employment;
d. the methods which have been tried by employers and
associations of employees for maintaining mutually
satisfactory relations;
e. desirable industrial practices which have been developed
through collective bargaining and other voluntary
arrangements;
f. the possible ways of increasing the usefulness and
efficiency of collective bargaining for settling differences;
g. the possibilities for the adoption of practical and effective
methods of labor-management cooperation;
h. any other aspects of employer-employee relations
concerning the promotion of harmony and understanding
between the parties; and
i. The relevance of labor laws and labor relations to national
development.
The Secretary of Labor shall also inquire into the
causes of industrial unrest and take all the necessary steps
within his power as may be prescribed by law to alleviate
the same, and shall from time to time recommend the
enactment of such remedial legislation as in his judgment
industrial peace.
Article 288- Visitorial Power
The Secretary of Labor and Employment or his
duly authorized representative is hereby empowered to
inquire into the financial activities of legitimate labor
organizations upon the filing of a complaint under oath and
duly supported by the written consent of at least twenty
percent (20%) of the total membership of the labor
organization concerned and to examine their books of
accounts and other records to determine compliance or
non-compliance with the law and to prosecute any
violations of the law and the union constitution and by-
laws: Provided, That such inquiry or examination shall not
be conducted during the sixty (60)-day freedom period nor
within the thirty (30) days immediately preceding the date
of election of union officials.
Notes:
This pertains to the Visitorial Power of the
Secretary of Labor different from Article 128 of the Labor
Code.
Difference between Article 128 and Article 288;
 Article 288 pertains to the enforcement of laws or
regulations relating only to financial activities and records of
labor organizations while Article 128 pertains to the
administrative enforcement of Labor Code provisions and
all labor laws and wage orders in employer establishments.
 Sa Article 128, ang gi-examine ato is the record of the
employer whether or not the same has complied with the
labor standard provisions of the law while sa Article 288,
ang gi-examine is the financial activities and records of the
labor organizations.
 Unlike sa Article 128 nga diin pwede ra og routine
inspection, Article 288 requires a sworn complaint filed and
supported by at least 20% of the organization’s
membership, before maka-exercise sa ijang visitorial power
ang Secretary of Labor.
Again, dili pwede ang routine inspection sa Art. 288
(Sa art. 128, employer ang bisitahon. While sa
Art. 288, labor union ang bisitahon.)
Where to file the complaint under Article 288?
 The complaint shall be filed with the Regional Office that
issued its certificate of registration or certificate of creation
of chartered local if the same involves independent labor
unions, chartered locals and workers associations.
 If it involves federations or national unions and trade
union centers, the complaint shall be filed with the Bureau
of Labor Relations.
Now, if the complaint or petition is with
allegations of mishandling, misappropriation or non-
accounting of funds in violation of article 249, the same
shall be treated as intra-union dispute which will be heard
and resolved by the Med-arbiter.
The complaint or petition for audit or
examination of funds and book of accounts shall prescribed
within three (3) years from the date of submission of the
annual financial report to the Department or from the date
the same should have been submitted as required by law,
whichever comes earlier.
The decision granting the conduct of the audit is
INTERLOCUTORY and SHALL NOT BE APPEALABLE. If the
decision is to conduct an audit of the funds of the union,
the order shall include the appointment of the Audit
Examiner and a directive to submit a report and
recommendation within ten (10) days from the termination
of audit.
What can be appealed is the decision denying or
dismissing the complaint or petition for audit. The same can
be done within ten (10) days from receipt thereof pursuant
to the provisions prescribed in inter/intra-union dispute.
The Audit Examiner shall conduct an inventory
and the same shall be forwarded to the Med-arbiter or to
the Bureau Director who shall render a decision within 20
days from receipt of the audit report.
The decision of the Med-Arbiter based on the
audit report shall be appealable to the Bureau while the
decision of the Bureau in the exercise of its original
jurisdiction shall be appealable to the Secretary of Labor.
No complaint for inquiry or examination of the
financial and book of accounts as well as other records of
any legitimate labor organizations shall be entertained
during the 60-day freedom period or within 30 days
immediately preceding the date of election of union
officers.
Article 289 Tripartism and Tripartite Conferences
a. Tripartism in labor relations is hereby declared a State
policy. Towards this end, workers and employers shall, as
far as practicable, be represented in decision and policy-
making bodies of the government.
b. The Secretary of Labor and Employment or his duly
authorized representatives may, from time to time, call a
national, regional, or industrial tripartite conference of
representatives of government, workers and employers for
the consideration and adoption of voluntary codes of
principles designed to promote industrial peace based on
social justice or to align labor movement relations with
established priorities in economic and social development.
In calling such conference, the Secretary of Labor and
Employment may consult with accredited representatives of
workers and employers.
Notes:
Tripartism is representation of the three (3)
sectors - the public or the government, the employers, and
the workers - in the policy-making bodies of the
government.
Article 290 Government employees.
The terms and conditions of employment of all
government employees, including employees of
government-owned and controlled corporations, shall be
governed by the Civil Service Law, rules and regulations.
Their salaries shall be standardized by the National
Assembly as provided for in the New Constitution. However,
there shall be no reduction of existing wages, benefits and
other terms and conditions of employment being enjoyed
by them at the time of the adoption of this Code.
Article 291 Miscellaneous Provisions.
a. All unions are authorized to collect reasonable
membership fees, union dues, assessments and fines and
other contributions for labor education and research,
mutual death and hospitalization benefits, welfare fund,
strike fund and credit and cooperative undertakings.
b. Subject to the constitutional right of workers to security
of tenure and their right to be protected against dismissal
except for a just and authorized cause and without
prejudice to the requirement of notice under Article 283 of
this Code, the employer shall furnish the worker whose
employment is sought to be terminated a written notice
containing a statement of the causes for termination and
shall afford the latter ample opportunity to be heard and to
defend himself with the assistance of his representative if
he so desires in accordance with company rules and
regulations promulgated pursuant to guidelines set by the
Department of Labor and Employment. Any decision taken
by the employer shall be without prejudice to the right of
the worker to contest the validity or legality of his dismissal
by filing a complaint with the regional branch of the
National Labor Relations Commission. The burden of
proving that the termination was for a valid or authorized
cause shall rest on the employer. The Secretary of the
Department of Labor and Employment may suspend the
effects of the termination pending resolution of the dispute
in the event of a prima facie finding by the appropriate
official of the Department of Labor and Employment before
whom such dispute is pending that the termination may
cause a serious labor dispute or is in implementation of a
mass lay-off.
c. Any employee, whether employed for a definite period or
not, shall, beginning on his first day of service, be
considered as an employee for purposes of membership in
any labor union.
d. No docket fee shall be assessed in labor standards mandatory. For this purpose, a case or matter shall be
disputes. In all other disputes, docket fees may be assessed deemed submitted for decision or resolution upon the filing
against the filing party, provided that in bargaining of the last pleading or memorandum required by the rules
deadlock, such fees shall be shared equally by the of the Commission or by the Commission itself, or the Labor
negotiating parties. Arbiter, or the Director of the Bureau of Labor Relations or
Med-Arbiter, or the Regional Director.
e. The Minister of Labor and Employment and the Minister
Upon expiration of the corresponding period, a
of the Budget shall cause to be created or reclassified in
certification stating why a decision or resolution has not
accordance with law such positions as may be necessary to
been rendered within the said period shall be issued
carry out the objectives of this Code and cause the
forthwith by the Chairman of the Commission, the
upgrading of the salaries of the personnel involved in the
Executive Labor Arbiter, or the Director of the Bureau of
Labor Relations System of the Ministry. Funds needed for
Labor Relations or Med-Arbiter, or the Regional Director, as
this purpose shall be provided out of the Special Activities
the case may be, and a copy thereof served upon the
Fund appropriated by Batas Pambansa Blg. 80 and from
parties.
annual appropriations thereafter.
Despite the expiration of the applicable
mandatory period, the aforesaid officials shall, without
f. A special Voluntary Arbitration Fund is hereby established
prejudice to any liability which may have been incurred as a
in the Board to subsidize the cost of voluntary arbitration in
consequence thereof, see to it that the case or matter shall
cases involving the interpretation and implementation of
be decided or resolved without any further delay.
the Collective Bargaining Agreement, including the
Arbitrator’s fees, and for such other related purposes to
Notes:
promote and develop voluntary arbitration. The Board shall
Take note of letters b and c,
administer the Special Voluntary Arbitration Fund in
 These pertain to the procedural due process in
accordance with the guidelines it may adopt upon the
terminating/termination of employment
recommendation of the Council, which guidelines shall be
subject to the approval of the Secretary of Labor and
Book VI – Post Employment
Employment. Continuing funds needed for this purpose in
the initial yearly amount of fifteen million pesos
Article 292- Coverage
(P15,000,000.00) shall be provided in the 1989 annual
The provisions of this Title shall apply to all
general appropriations acts.
establishments or undertakings, whether for profit or not.
The amount of subsidy in appropriate cases
shall be determined by the Board in accordance with
Article 293 – Security of Tenure
established guidelines issued by it upon the
In cases of regular employment, the employer
recommendation of the Council.
shall not terminate the services of an employee except for a
The Fund shall also be utilized for the operation
just cause or when authorized by this Title. An employee
of the Council, the training and education of Voluntary
who is unjustly dismissed from work shall be entitled to
Arbitrators, and the Voluntary Arbitration Program.
reinstatement without loss of seniority rights and other
g. The Ministry shall help promote and gradually develop,
privileges and to his full backwages, inclusive of allowances,
with the agreement of labor organizations and employers,
and to his other benefits or their monetary equivalent
labor-management cooperation programs at appropriate
computed from the time his compensation was withheld
levels of the enterprise based on the shared responsibility
from him up to the time of his actual reinstatement.
and mutual respect in order to ensure industrial peace and
improvement in productivity, working conditions and the
Notes:
quality of working life.
Security of tenure pertains to the constitutional
h. In establishments where no legitimate labor organization
right of a worker not to be dismissed from work except for a
exists, labor-management committees may be formed
valid, legal reason and through proper procedure. The
voluntarily by workers and employers for the purpose of
employer shall not terminate the services of an employee
promoting industrial peace. The Department of Labor and
except for a just cause or when authorized by law.
Employment shall endeavor to enlighten and educate the
workers and employers on their rights and responsibilities
Causes for Termination:
through labor education with emphasis on the policy
a) Just Causes
thrusts of this Code.
b) Authorized Causes
i. To ensure speedy labor justice, the periods provided in
this Code within which decisions or resolutions of labor
relations cases or matters should be rendered shall be
 The right to security of tenure is not only limited
to regular employment. It even applies to managerial
employees.
Security of Tenure as a constitutional guarantee
protects an employee not only against arbitrary or unjust
dismissal but also against other personnel actions such as
transfer or demotion which are calculated to force an
employee to give up his employment without valid reasons.
Part of management prerogative is the freedom
of the employer according to his discretion and best
judgment to regulate and control all aspects of employment
in their business organization. Such aspect of employment
includes hiring, work assignments, working methods, time,
place, and manner of work, tools to be used, processes to
be followed, supervision of workers, working regulations,
transfer of employees, work supervision, lay-off of workers,
discipline, dismissal and recall of workers
 Prerogative to Transfer:
Query:
The employee concerned is assigned in Maasin,
naa na diri ang ijang family og naa na pud diri nag-eskwela
ang mga anak. Then, i-transfer siya sa Tacloban by the
owner of the business establishment. Aduna bay right ang
employee not to accept or follow the transfer on the
ground of inconvenience? Is that part of his right to security
of tenure?
Answer:
No. The Supreme Court has recognized and
upheld the prerogative of management to transfer an
employee from one office to another provided, that there is
no demotion in rank or diminution of salary, benefits and
other privileges and that the action is not motivated by
discrimination, made in bad faith, or effected as a form of
punishment or demotion without sufficient cause. The
employee’s right to security to tenure does not give
him/her vested right in his/her position. Thus, an employee
cannot refuse a transfer order. Otherwise, the same will
constitute a just cause for dismissal on ground of
insubordination because the employer has the prerogative
to transfer employee even if by virtue thereof it will cause
inconvenience to the employee.
 Prerogative to Promote?
Query:
Promotion is the advancement from one
position to another involving the increase of duties and
responsibilities as authorized by law and in some instance
increase in compensation and benefits. Does an employee
have the right to refuse a promotion?
Answer:
Yes. Unlike in transfer, an employee has the
right to refuse a promotion. There is no law that compels an
employee to accept promotion. For example, one is
transferred because na-promote siya. Kini nga instance
pwede na mo-refuse sa transfer ang employee tungod kay
ang reason sa transfer is promotion man. Provided that said
employee will not accept the promotion.
Take note, promotion does not mean increase
in salary.
Again, recall:
• Dili pwede mo-refuse og transfer ang usa ka employee
unless such transfer is coupled with demotion in rank,
diminution of salary and benefits and that said transfer is
motivated and made in bad faith.
• Pwede mo-refuse og promotion ang employee because
there is no law which compels an employee to accept a
promotion.
• In case of transfer due to promotion, pwede na mo-refuse
ang employee sa transfer provided dili siya mo-accept sa
promotion.
Take note:
An employer has the prerogative to demote an
employee but the same is subject to the rules and
regulations provided by law. Also, an employer has the
prerogative to discipline employees subject to the rules and
regulations provide by law.
Article 294 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 services 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 (1) 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.
Notes:
Kinds of Employment:
1. regular
2. project
3. casual
4. seasonal
5. probationary; and
6. fixed period
Article 294 presupposes employer-employee
relationship between the parties. In all kinds of
employment, it is presumed that there is always employer-
employee relationship between the parties.
1) REGULAR EMPLOYMENT:
 Who are Regular Employees?
The primary standard to determine a 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. Considering
the provisions of the law, there are two kinds of regular
employees, namely;
a) Regular employees by nature of work
b) Regular employees by years of service
An employee is considered regular if he/she has
been engaged to perform activities which are usually
necessary or desirable in the usual business or trade of the
employer. Thus, an employee can be a regular employee
even at the start of his/her employment (regular employee
by nature of work).
An employee may also be considered regular if
he/she has rendered at least one year of service, whether
such service is continuous or broken with respect to activity
in which he is employed and his employment shall continue
while such activity exists (regular employee by years of
service). This type of employee has been engaged in
activities which are NOT necessary or desirable to the usual
business of the employer.
Also, those employees who are allowed to work
after a probationary period are considered as regular
employees.
What determines whether an employment is
regular or casual is not the will and words of the employer,
to which the worker often accedes, much less the
procedure of hiring the employee or the manner of paying
his salary. It is the nature of the activities performed in
relation to the particular business or trades considering all
circumstances, and in some cases the length of time of its
performance and its continued existence.
Take note, continuous rehiring is an evidence of
desirability and necessity of the work performed by the
employee.
Again, regular employees are;
 Those employees who have been engaged to perform
activities necessary or desirable to the particular business or
trade of the employer
 Those employees who have been engaged to perform
activities NOT necessary or desirable to the particular
business or trade of the employer but has already rendered
services for at least 1 year whether such service is
continuous or broken
2) CASUAL EMPLOYMENT:
 Who are Casual Employees?
They are those employees who have been
engaged to perform activities NOT necessary or desirable in
the usual business or trade of the employer and with LESS
than one (1) year of service.
3) PROJECT EMPLOYMENT:
 Who are Project Employees?
They are those whose employment has been
fixed on a specific project or undertaking, the completion
and termination of which has been determined at the time
of the engagement of the employee
In project employment, the duration or period
of project employment is already predetermined or
specified. (mao ni ang importante sa project employment)
Aron ma-consider ka na project employee,
kinahanglan ang duration sa project is determined na.
Kinahanglan ang kontrata is specific.
Example: Construction sa Roof sa house ni
Marvin Magaipo. Kinahanglan specified ang phase sa
construction. Kung vague ang contract, dili ma-consider ang
employee na project employee, mahug siya og regular
employee.
The predetermination of the duration or period
of project employment is important in resolving whether
one is a project employee or not. The length of service is
NOT the controlling test.
 The Principal Test:
The principal test for determining whether
particular employees are properly characterized as “project
employees” is “Whether or not the project employees were
assigned to carry out specific project or undertaking the
duration of which were specified at the time the employees
were engage for the project.”
Query: Do project employees have security of tenure?
Answer:
Yes. They cannot be terminated from their
employment prior to the termination of the project or prior
to the end or completion of the contract. Within the period
of the contract or project, they can only be terminated on
just and authorized causes.
Query: Upon completion of the contract, unsa may
requirement sa employer sa pag-terminate sa mga
empleyado?
Answer:
General rule, NONE. Basta mahuman ang
contract, wala na silay trabaho kay ang protection nila with
respect to their right to security of tenure is that they
cannot be terminated during the period of the contract. So
kung mahuman na ang contract, terminate na pud ang ilang
employment.
However, in case project employees, the law
requires the employer to report at the nearest public
employment office the fact of termination of the project
employee as a result of the completion of the
project/contract or any phase thereof. The notice is
directed not to the project employees but to the DOLE.
Query: What is the effect of the failure to file a termination
notice?
Answer:
It is an indication that the employees were not
project employees but regular employees.
Project employees are NOT entitled to
termination pay if they are terminated as the result of
completion of the project or any phase thereof from which
they are employed by a particular construction company.
The company is not required to obtain a clearance from the
secretary of labor in connection with such termination.
What is required of the company is a report to the nearest
Public Employment Office of the fact of such termination for
statistical purposes.
Query: Can a project employee become a regular
employee?
Answer:
Yes, a project employee becomes a regular
employee if there is a continuous re-hiring of the alleged
project employees even after the cessation of the project
and the tasks performed by the alleged project employees
are vital, necessary and indispensable to usual business or
trade of the employer.
Take note, repeated re-hiring is an evidence of
desirability and necessity of the work performed by the
employee.
Also, fixed period and project employment
cannot be used to defeat the purpose of regular
employment.
Furthermore dili pasabot na ang project
employees automatic na mahimong regular employees
kung moabot na ug 1 year. That provision applies only to
casual employees.
4) SEASONAL EMPLOYMENT:
 Who are Seasonal Employees?
They are those called to work from time to time.
The nature of their relationship with the employer is such
during their off-season, they are temporarily laid off but
they are reemployed during same season or when their
services are needed. Their employment relationship is
never severed but only suspended.
However, if a seasonal worker whose work is
not merely for the duration of season but who are rehired
every working season, he shall be considered regular
seasonal worker. Failure to rehire a regular seasonal worker
for the next season amounts to illegal dismissal.
5) FIXED PERIOD EMPLOYMENT:
This type of employment refers to that which
involves contract of employment for a fixed or definite
period or term. For example, kung papirmahon ang
employee og contract which states; “from January – June
2014”.
Query: Is fixed-period employment the same with project
employment?
Answer:
No. A project employment lasts only for the
project’s duration which is predetermined at the time of
hiring. While ang fixed-period employment mao nang naay
mga definite period or term, such as “from January – June,
2014”.
Query: Is fixed-period employment allowed?
Answer:
Yes. The labor code does not prohibit an
employment contract with a fixed period, provided the
same is entered into by the parties without any force duress
or improper pressure being brought to bear upon the
employee and absent any other circumstance vitiating
consent.
 Requirements for a valid fixed-period employment:
(a) It has been agreed upon knowingly and voluntarily
(b) It was agreed without any force, duress or improper
pressure being brought to bear upon the employee
(c) It was agreed without any circumstance vitiating consent
(d) Or it satisfactorily appears that the employee and the
employer dealt with each other on a more or less equal
terms with no moral dominance exercised by the employer
over the employee
In fixed period employment, lack of notice of
termination is of no consequence because when the
contract specifies the period of its duration, it terminates
on the expiration of such period.
Even if an employee is engaged to perform
activities that are usually necessary or desirable to the usual
business or trade of the employer, it does not preclude the
fixing of employment for a definite period. But if an
employee is being renewed successively, it will result to
regular employment.
Kung mo-hire ang employer og mga empleyado
who will perform activities that are usually necessary or
desirable in the usual trade or business of the employer,
unja gusto nija na fixed period ang employment,
kinahanglan maghimo ug contract specifying that their
employment is only for a fixed period or term.
Absence of any contract specifying the type of
employment, the employee shall be considered as regular
employee because he/she is performing activities necessary
to the business of the employer.
 Seafarers/Seaman:
Present jurisprudence states that SEAFARERS
ARE CONTRACTUAL EMPLOYEES. They cannot be considered
as regular employees. Their employment is governed by the
contract they sign every time they are rehired and their
employment is terminated when the contract expires. Their
employment is contractually fixed for a certain period of
time.
They fall under the exceptions of the law.
6) PROBATIONARY EMPLOYMENT:
Article 295 Probationary Employment
Probationary employment shall not exceed six
(6) months from the date the employee started working,
unless it is covered by an apprenticeship agreement
stipulating a longer period. The services of an employee
who has been engaged on a probationary basis may be
terminated for a just cause or when he fails to qualify as a
regular employee in accordance with reasonable standards
made known by the employer to the employee at the time
of his engagement. An employee who is allowed to work
after a probationary period shall be considered a regular
employee.
Notes:
 Who are Probationary employees?
They are those who are under observation by an
employer, during which the employer determines whether
or not he/she is qualified for a permanent position.
 What is the purpose why an employee is placed on a
probationary status?
To observe or determine whether or not he or
she is fit for the job.
Query: Unsa may importante aron ma-considered ang
empleyado na probationary for six months?
Answer:
It is important that the reasonable standards
must be made known to the employee by the employer at
the time of employee’s engagement.
The employer must inform the employee about
his probationary status for 6 months and about the
reasonable standards required of him at the time of the
employment. Failure by the employer to inform the
employee results to regular employment of the latter.
Query: Does probationary employee enjoys security of
tenure?
Answer:
Yes, the maximum period for probationary
employment is six months or 180 days. During this period, a
probationary employee cannot be terminated except for a
just or authorized cause.
In addition, another ground for termination of a
probationary employee is when he/she failed to meet the
reasonable standards set by the employer provided that
prior to the 180th day, he/she must be informed that the
same failed to meet the standards for regular employment.
Otherwise, upon the lapse of 180 days, said employee shall
be considered as regular employee.
There is no law that prohibits the granting of
regular employment status to a probationary employee
prior to the six-month period, if the employee met the
standards set by the employer.
Probationary period is for 6 months, applying
article 13 of the Civil Code, the probationary period of 6
months is equivalent to 180 days.
Query: May the employer and the employee validly agree to
extend the probationary period beyond six months?
Answer:
General Rule: No. It must be 6 months
equivalent to 180 days.
However, it can be extended upon waiver on the part of the
employee when he is given the chance to improve his
performance or when the parties of the employment
contract may agree otherwise such when the same is
established by the company policy or when the same is
required by the nature of the work to be performed by the
employee.
 Probationary Period for Teachers;
Illustrative Case
Yolanda Mercado vs. AMACC,
The requirements:
1. The teachers must be a full-time teachers;
2. The teachers must have rendered 3 consecutive years of
service and;
3. The service must be satisfactory.
In Yolanda Mercado vs. AMACC,
Mercado and others were faculty members who
started teaching at AMA on May 25, 1998. For S.Y. 2000-
2001 AMA Implemented new faculty screening guidelines.
Under the new guidelines, teachers were hired based on
extensive teaching period, capability, potential, high
academic qualifications and research background. The
performance guidelines were also used to determine the
entitlement of salary increase. Petitioners merely obtain a
passing rate based on the performance standards. AMA did
not give them salary increase. Hence, petitioner filed a
complaint with the arbitration branch of NLRC. Afterwards,
the petitioners received a memorandum informing them
that with the expiration of their contract to teach, their
contract will no longer be renewed.
[Ang nature sa employment sa mga teachers in
this case is fixed-period employment because they were
made to sign contracts every year or per semester.
The Probationary Period for teachers is different
from that of ordinary probationary employee. The
Probationary period for teachers is 3 consecutive years of
service provided that they are full-time and the service is
satisfactory. After 3 years, pwede na sila ma-regular.
For college 9 consecutive trimesters or 6
consecutive semesters, for High school or elementary 3
consecutive year of service.]
Petitioners contended that their dismissal was
illegal for the same was made in retaliation for their money
claims against AMA. The additionally contended that AMA
failed to give adequate notice, hence their dismissal is
ineffectual. Ang ilang teaching steps covers only 7
trimesters or 2 years and 3 months of service.
Was the teacher illegally dismissed?
[In a fixed period employment it is not
necessary that the employer will inform the employee that
his/her contract had expired and his/ her service will no
longer be needed. Dili na required ang notice sa employee
for valid termination]
The court ruled in this case that a reality we
have to face in the consideration for employment status of
teaching personnel is that they are not governed purely by
the labor code. The labor code is supplemented with
respect to the period of probation by special rules found in
Manual of Regulations provided for Private Schools
The use of employment for fixed period during
the teacher’s probationary period is likewise an accepted
practice in the teaching profession.
The common practice is for the employer and
the teacher to enter into a contract effective for one (1)
school year. At the end of the school year, the employer has
the option not to renew the contract considering the
teacher’s performance. If the contract is not renewed, the
employment relationship terminates. If the contract is
renewed for the next school year, the probationary
employment continues, provided the same will not exceed
3 years or 6 semesters or 9 trimesters, otherwise said
employee will become regular.
The court further ruled that probationary period
should be reconciled with fixed period with regards to
teachers.
As part of the academic freedom of the school,
it has the right to impose standards. These standards should
be known to the teachers on probationary status at the
start of their probationary period or at the very least under
the circumstances of the case, at the start of the semester
or trimester during which the probationary standards are to
be applied. Of critical importance in invoking the failure to
meet the probationary standards is that the school should
show as a matter of due process how these standards have
been applied….
Should the probationary character of the
contract overlaps with the fixed period character of the
contract, the former should assume primacy and the latter
should give way.
Thus, the dismissal of the employees in this case
was invalidated because of the school’s failure to inform the
teachers what are the standards that they have to meet and
how these standards are applied.
[The recent 2014 case with respect to teachers:
The teachers had finished the 6 consecutive semesters
probationary period with satisfactory performance.
However, the teachers’ dismissal was upheld under the
academic freedom of the school to set standards, such as to
require a certain Degree].
 Temporary appointment:
Due process need not be observed in
terminating temporary appointment and acting
appointment. These are appointments revocable at will.
Jurisprudence show that one who holds temporary
appointment has no fixed tenure of office. Employment can
be terminated at any time at the pleasure of the appointing
authority without need to show that it is for cause.