Seasonal Employment Contract

Summary

⦁ A seasonal employment contract is an employment arrangement between an employer and a seasonal employee wherein the latter has been engaged to render work during a season

⦁ The employer must be justified in hiring additional help via seasonal employees.

⦁ Seasonal employee should work during the specified season only.

⦁ Regular seasonal employees are those who are regularly hired for a season.

⦁ Non-compliance of the requirements may result in the employee being reclassified as a regular employee.

1. Concept

A seasonal employment contract is an employment arrangement between an employer and a seasonal employee.

A seasonal employee is one who has been engaged to render work during a season, as defined under the Labor Code. (Article 295, Labor Code; cf. Section 5, Rule I, Book VII, Omnibus Rules & Regulations of the Labor Code)

Seasonal employment operates much in the same way as project employment, albeit it involves work or service that is seasonal in nature or lasting for the duration of the season. As with project employment, although the seasonal employment arrangement involves work that is seasonal or periodic in nature, the employment itself is not automatically considered seasonal so as to prevent the employee from attaining regular status. (Universal Robina Sugar Milling Corporation v. Acibo, G.R. No. 186439, 15 January 2019)

2. Requirements

The requirements for a seasonal employment contract:

1) The employee must be performing work or services that are seasonal in nature; and

2) He had been employed for the duration of the season. (Universal Robina Sugar Milling Corporation v. Acibo [2019], supra.)

a. Seasonal work

Seasonal employees should only do work that is seasonal in nature. Seasonal work is often tied or linked to a business which experiences a surge in demand for products or services in a certain period of a year.

Evidently, if there is no season in a business, there cannot be seasonal work. In turn, the employer cannot hire seasonal workers.

1) Season

A season is a period inside a calendar year.

Thus, by definition, a season cannot extend beyond a year.

The season refers to that period when the employer is justified in hiring additional help via seasonal employees due to increase of work, demand, or analogous thereto. The classic example is that of the harvest season in farms or fish pens when the employer may require additional help to take on the increase of the work.

However, there are also seasons in other businesses aside from agriculture and fishery. For instance, restaurants require additional help during the graduation season or the holidays due to an increase of work and demand resulting from celebrations and gatherings.

Accordingly, the season herein refers to a business season. Thus, the season referred to does NOT refer to seasons of the year, such as dry or rainy seasons in the Philippines.

Poseidon Fishing/Terry De Jesus v. NLRC, Estoquia, G.R. No. 168052, February 20, 2006, Per Chico-Nazario, J.:

• … the “activity of catching fish is a continuous process and could hardly be considered as seasonal in nature.”

• For a case digest, see: Poseidon Fishing v. NLRC, Estoquia (2006)

2). Proof of season

When the existence of the season is challenged, the burden of proof is on the employer.

The season may be proven through various documentation such as previous year’s sales, orders, requests, workload, transactions, and similar thereto. The objective here is for the employer to prove that it was justified in hiring seasonal employees due to increase in work and/or demands of the business.

b. Employed for the season

Seasonal employees should only be employed for the duration of the season. It is, after all, the reason why they were hired in the first place.

1) Start and an end

A season should have a start and an end.

It is insufficient to simply say that the business has a graduations season, without specifying the starting and end date. The season should have a specified beginning and end. Thus, a graduation season may begin on March 1 and end on May 31, or the holiday season may begin on December 1 and end on January 5.

The start and end date of the season should be clearly stated in the seasonal employment contract.

3. Test for seasonal employment

The principal test is the existence of the season.

If there is no season, then there is no seasonal employment to speak of.

As the employer has the burden of proof, the employer cannot simply declare a season without any previous historical data to show.

4. Seasonal regular employees

To exclude the asserted “seasonal” employee from those classified as regular employees, the employer must show that: (1) the employee must be performing work or services that are seasonal in nature; and (2) he had been employed for the duration of the season.26 Hence, when the “seasonal” workers are continuously and repeatedly hired to perform the same tasks or activities for several seasons or even after the cessation of the season, this length of time may likewise serve as badge of regular employment. (Universal Robina Sugar Milling Corporation v. Acibo [2019], supra.)

a. Regular seasonal employee

“[E]ven though denominated as ‘seasonal workers,’ if these workers are called to work from time to time and are only temporarily laid off during the off-season, the law does not consider them separated from the service during the off-season period. The law simply considers these seasonal workers on leave until re-employed.” (Universal Robina Sugar Milling Corporation v. Acibo, supra.)

When an employee is regularly hired for work on a season, such as farm help during harvest seasons, the said employee is a regular seasonal employee. Meaning, the employee has the right to demand and the employer is required to allow the employee to resume work when the harvest season comes. Otherwise, if the employer refuses, then it may be liable for illegal dismissal.

Universal Robina Sugar Milling Corporation v. Acibo, G.R. No. 186439, 15 January 2019, Per Brion, J.:

• [The Complainants] are neither project, seasonal nor fixed-term employees, but regular seasonal workers of [the Company].

• [The Complainants] were regularly and repeatedly hired to perform the same tasks year after year. This regular and repeated hiring of the same workers (two different sets) for two separate seasons has put in place, principally through jurisprudence, the system of regular seasonal employment in the sugar industry and other industries with a similar nature of operations.

• For case digest, see: Universal Robina Sugar Milling v. Acibo (2019)

5. Distinguished

The following are distinguished.

a. Seasonal employees v. Regular employees

 Seasonal employeesRegular employees
Requirements(1) Performs work/services that are seasonal in nature; and (2) Employed for duration of a season(1) Performs activities which are usually necessary or desirable in the usual business or trade of the employer; or (2) Deemed a regular employee by operation of law; or (3) Offered regular employment by the employer
ActivitiesPerforms work/services that are seasonal in naturePerforms activities which are usually necessary or desirable in the usual business or trade of the employer
Employment expirationUntil end of the seasonNone.
Security of tenureYes, they have security of tenure. During and within the season, they may only be dismissed for just causes or authorized causes and after observance of due process. However, they may be let go after the expiration of their employment v via advance notice prior to the last day, without need for due process.Yes, they have security of tenure. They may only be dismissed for just causes or authorized causes and after observance of due process.

b. Seasonal employees v. Probationary employees

 Seasonal employeesProbationary employees
Requirements(1) Performs work/services that are seasonal in nature; and (2) Employed for duration of a season(1) Probationary period not exceeding 180 calendar days; and (2) Standards/criteria for regular employment made known on/before engagement or Day 1
ActivitiesPerforms work/services that are seasonal in natureMay perform any activity
Employment expirationUntil end of the seasonUntil end of probation, unless they pass/qualify for regular employment
Security of tenureYes, they have security of tenure. During and within the season, they may only be dismissed for just causes or authorized causes and after observance of due process. However, they may be let go after the expiration of their employment v via advance notice prior to the last day, without need for due process.Yes, they have security of tenure. During and within the probationary period, they may only be dismissed for just causes or authorized causes and after observance of due process. However, they may be let go after the expiration of their employment v via advance notice prior to the last day, without need for due process.

c. Seasonal employees v. Casual employees

 Seasonal employeesCasual employees
Requirements(1) Performs work/services that are seasonal in nature; and (2) Employed for duration of a season 
ActivitiesPerforms work/services that are seasonal in naturePerforms activities that are incidental to the usual business or trade of the employer
Employment expirationUntil end of the seasonUntil end of casual employment period, which should not exceed 12 months
Security of tenureYes, they have security of tenure. During and within the season, they may only be dismissed for just causes or authorized causes and after observance of due process. However, they may be let go after the expiration of their employment v via advance notice prior to the last day, without need for due process.Yes, they have security of tenure. During and within the casual employment period, they may only be dismissed for just causes or authorized causes and after observance of due process. However, they may be let go after the expiration of their employment v via advance notice prior to the last day, without need for due process.

d. Seasonal employees v. Project employees

 Seasonal employeesProject employees
Requirements(1) Performs work/services that are seasonal in nature; and (2) Employed for duration of a season(1) Engaged for a specific project or undertaking; and (2) Completion has been determined or is determinable
ActivitiesPerforms work/services that are seasonal in natureMay perform any activity
Employment expirationUntil end of the seasonUntil end of probation, unless they pass/qualify for regular employment
Security of tenureYes, they have security of tenure. During and within the season, they may only be dismissed for just causes or authorized causes and after observance of due process. However, they may be let go after the expiration of their employment v via advance notice prior to the last day, without need for due process.Yes, they have security of tenure. During and within the probationary period, they may only be dismissed for just causes or authorized causes and after observance of due process. However, they may be let go after the expiration of their employment v via advance notice prior to the last day, without need for due process.

e. Seasonal employees v. Fixed-term employees

 Seasonal employeesFixed-term employees
Requirements(1) Performs work/services that are seasonal in nature; and (2) Employed for duration of a season(1) Voluntary agreement; and (2) Bargained on equal footing
ActivitiesPerforms work/services that are seasonal in natureMay perform any activity
Employment expirationUntil end of the seasonUntil end of fixed-term, period, or duration
Security of tenureYes, they have security of tenure. During and within the season, they may only be dismissed for just causes or authorized causes and after observance of due process. However, they may be let go after the expiration of their employment v via advance notice prior to the last day, without need for due process.Yes, they have security of tenure. During and within the fixed-term, period or duration, they may only be dismissed for just causes or authorized causes and after observance of due process. However, they may be let go after the expiration of their employment v via advance notice prior to the last day, without need for due process.

6. Non-compliance with requirements

If any of the above requirements for not complied, the employee may be reclassified as a regular employee.

These may include:

1) Non-existence of a season or the employer fails to justify it;

2) Employees were required or allowed to work beyond the season; or,

3) Regular seasonal employees who were not allowed to resume work during a season.

If the employee is reclassified as a regular employee, then the employer may be held liable for illegal dismissal if the employee has been let go without due process and/or just cause.

7. Burden of proof on the employer

When the validity of the employment arrangement is challenged, the burden of proof is on the employer.

8. When in doubt, interpreted in favor of the employee

“In case of doubt, all labor legislation and all labor contracts shall be construed in favor of the safety and decent living for the laborer.” (Article 1702, Civil Code)

References

Book VI, Presidential Decree No. 442, a.k.a. Labor Code of the Philippines

Book VI, Omnibus Rules Implementing the Labor Code

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