Regular Employment Rules (Part 3 of 3)
Regular employment has two kinds: 1. Performance of activities which are usually necessary or desirable in the usual business or trade of the employer; and, 2. Rendering service at least one (1) year of service whether continuous or broken with respect to the activity workers are employed.
This is the final part of the post on regular employment based on the book Guide to Valid Dismissal of Employees Second Edition by Atty. Villanueva.
In tandem with Article 2811 of the Labor Code, Article 280 was designed to put an end to the pernicious practice of making permanent casuals of our lowly employees by the simple expedient act of extending to them temporary or probationary appointments, ad infinitum.
Supposing in a contract, the employer and employee indicated that the employment shall be casual and not regular, will that stipulation absolutely be binding between the parties? The Code itself in Article 280 provides for an answer with the phrase “the provisions of written agreement to the contrary notwithstanding and regardless of the oral agreement of the parties” an employment shall be deemed regular under the circumstances provided therein.
It simply means that irrespective of any written or oral agreement stating that the employment is not regular, once the fact is established that the employee has been engaged to perform activities which are usually necessary or desirable in the usual business or trade of the employer, his employment is regular by reason of the nature thereof.
Learn how to craft legally defensible Employment Contracts in a book HR Forms, Notices & Contracts Vol. 1
There is an exception to the rule laid down by the above quoted phrase. It has no application to instances where a fixed period of employment was agreed upon knowingly and voluntarily by the parties, without any force, duress or improper pressure being brought to bear upon the employee and absent any other circumstances vitiating his consent, or where it satisfactorily appears that the employer and employee dealt with each other on more or less equal terms with no moral dominance whatever being exercised by the former over the latter. Unless thus limited in its purview, the law would be made to apply to purposes other than those explicitly stated by its framers; it thus becomes pointless and arbitrary, unjust in its effects and apt to lead to absurd and unintended consequences.
Further, the exception clause under Article 280 provides that:
“xxx 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.”
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