Project employee

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).

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