021 ABS-CBN BROADCASTING CORPORATION,

PETITIONER, VS. MARLYN NAZARENO, MERLOU

GERZON, JENNIFER DEIPARINE, AND JOSEPHINE
LERASAN, RESPONDENTS.
G.R. No. 108763 February 13, 1997
TOPIC: Regular Employees / EE-Relationship
PONENTE: Callejo, Sr., J.
FACTS:
Petition for review on certiorari of the Decision of the Court of Appeals (CA) denying the
motion for reconsideration thereof. The CA affirmed the Decision and Resolution of the
National Labor Relations Commission (NLRC which likewise affirmed, with modification,
the decision of the Labor Arbiter declaring the respondents Marlyn Nazareno, Merlou
Gerzon, Jennifer Deiparine and Josephine Lerasan as regular employees.
Petitioner employed respondents Nazareno, Gerzon, Deiparine, and Lerasan as production
assistants (PAs) on different dates. They were assigned at the news and public affairs, for
various radio programs in the Cebu Broadcasting Station, with a monthly compensation of
P4,000. They were issued ABS-CBN employees' identification cards and were required to
work for a minimum of eight hours a day, including Sundays and holidays. They were
made to perform the following tasks and duties:
o Prepare, arrange airing of commercial broadcasting based on the daily operations
log and digicart of respondent ABS-CBN;
o Coordinate, arrange personalities for air interviews;
o Coordinate, prepare schedule of reporters for scheduled news reporting and lead-in
or incoming reports;
o Facilitate, prepare and arrange airtime schedule for public service announcement
and complaints;
o Assist, anchor program interview, etc; and
o Record, log clerical reports, man based control radio.
The PAs were under the control and supervision of Assistant Station Manager Dante J.
Luzon, and News Manager Leo Lastimosa.
On December 19, 1996, petitioner and the ABS-CBN Rank-and-File Employees executed a
Collective Bargaining Agreement (CBA) to be effective during the period from December
11, 1996 to December 11, 1999. However, since petitioner refused to recognize PAs as
part of the bargaining unit, respondents were not included to the CBA
On October 12, 2000, respondents filed a Complaint for Recognition of Regular
Employment Status, Underpayment of Overtime Pay, Holiday Pay, Premium Pay, Service
Incentive Pay, Sick Leave Pay, and 13th Month Pay with Damages against the petitioner
before the NLRC.
Respondents made the following allegations:
o Complainants were engaged by respondent ABS-CBN as regular and full-time
employees for a continuous period of more than five (5) years with a monthly salary
rate of Four Thousand (P4,000.00) pesos beginning 1995 up until the filing of this
complaint on November 20, 2000.
Respondents insisted that they belonged to a "work pool" from which petitioner chose
persons to be given specific assignments at its discretion, and were thus under its direct
supervision and control regardless of nomenclature.
Petitioner alleged in its position paper that the respondents were PAs who basically assist
in the conduct of a particular program ran by an anchor or talent. Among their duties
include monitoring and receiving incoming calls from listeners and field reporters and
calls of news sources; generally, they perform leg work for the anchors during a program
or a particular production. They are considered in the industry as "program employees" in
that, as distinguished from regular or station employees, they are basically engaged by
the station for a particular or specific program broadcasted by the radio station.
Petitioner asserted that as PAs, the complainants were issued talent information sheets

which are updated from time to time, and are thus made the basis to determine the
programs to which they shall later be called on to assist.
Labor Arbiter rendered judgment in favor of the respondents, and declared that they were
regular employees of petitioner; as such, they were awarded monetary benefits.
Petitioner filed a motion for reconsideration on various grounds including: Labor Arbiter
erred when he ruled that the complainants are regular employees of the respondent;
NLRC ruled that respondents were entitled to the benefits under the CBA because they
were regular employees who contributed to the profits of petitioner through their labor.
Petitioner thus filed a petition for certiorari under Rule 65 of the Rules of Court before the
CA
ISSUE: WON Respondents are considered as Regular Employees of the Petitioner ABS-CBN
HELD: Yes, they are.
RATIO:
We agree with respondents' contention that where a person has rendered at least one year of
service, regardless of the nature of the activity performed, or where the work is continuous or
intermittent, the employment is considered regular as long as the activity exists, the reason
being that a customary appointment is not indispensable before one may be formally declared as
having attained regular status. Article 280 of the Labor Code provides:
ART. 280. 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.
In Universal Robina Corporation v. Catapang,[31] the Court reiterated the test in determining
whether one is a regular employee:
The primary standard, therefore, of determining regular employment is the reasonable
connection between the particular activity performed by the employee in relation to the usual
trade or business of the employer. The test is whether the former is usually necessary or
desirable in the usual business or trade of the employer. The connection can be determined by
considering the nature of work performed and its relation to the scheme of the particular
business or trade in its entirety. Also, if the employee has been performing the job for at least a
year, even if the performance is not continuous and merely intermittent, the law deems repeated
and continuing need for its performance as sufficient evidence of the necessity if not
indispensability of that activity to the business. Hence, the employment is considered regular,
but only with respect to such activity and while such activity exists.
In determining whether an employment should be considered regular or non-regular, the
applicable test is the reasonable connection between the particular activity performed by the
employee in relation to the usual business or trade of the employer. The standard, supplied by
the law itself, is whether the work undertaken is necessary or desirable in the usual business or
trade of the employer, a fact that can be assessed by looking into the nature of the services
rendered and its relation to the general scheme under which the business or trade is pursued in
the usual course. It is distinguished from a specific undertaking that is divorced from the normal
activities required in carrying on the particular business or trade. But, although the work to be
performed is only for a specific project or seasonal, where a person thus engaged has been
performing the job for at least one year, even if the performance is not continuous or is merely
intermittent, the law deems the repeated and continuing need for its performance as being
sufficient to indicate the necessity or desirability of that activity to the business or trade of the
employer. The employment of such person is also then deemed to be regular with respect to
such activity and while such activity exists.[34]
Not considered regular employees are "project employees," the completion or termination of
which is more or less determinable at the time of employment, such as those employed in
connection with a particular construction project, and "seasonal employees" whose employment

by its nature is only desirable for a limited period of time. Even then, any employee who has
rendered at least one year of service, whether continuous or intermittent, is deemed regular
with respect to the activity performed and while such activity actually exists.
Thus, there are two kinds of regular employees under the law: (1) those engaged to perform
activities which are necessary or desirable in the usual business or trade of the employer; and
(2) those casual employees who have rendered at least one year of service, whether
continuous or broken, with respect to the activities in which they are employed. [35]
The law overrides such conditions which are prejudicial to the interest of the worker whose
weak bargaining situation necessitates the succor of the State. What determines whether a
certain employment is regular or otherwise is not the will or word of the employer, to which the
worker oftentimes acquiesces, much less the procedure of hiring the employee or the manner of
paying the salary or the actual time spent at work. It is the character of the activities performed
in relation to the particular trade or business taking into account all the circumstances, and in
some cases the length of time of its performance and its continued existence. [36] It is obvious that
one year after they were employed by petitioner, respondents became regular employees by
operation of law.[37]
Additionally, respondents cannot be considered as project or program employees because no
evidence was presented to show that the duration and scope of the project were determined or
specified at the time of their engagement. Under existing jurisprudence, project could refer to
two distinguishable types of activities. First, a project may refer to a particular job or
undertaking that is within the regular or usual business of the employer, but which is distinct
and separate, and identifiable as such, from the other undertakings of the company. Such job or
undertaking begins and ends at determined or determinable times. Second, the term project
may also refer to a particular job or undertaking that is not within the regular business of the
employer. Such a job or undertaking must also be identifiably separate and distinct from the
ordinary or regular business operations of the employer. The job or undertaking also begins and
ends at determined or determinable times.[38]
The principal test is whether or not the project employees were assigned to carry out a specific
project or undertaking, the duration and scope of which were specified at the time the
employees were engaged for that project.[39]
In this case, it is undisputed that respondents had continuously performed the same activities
for an average of five years. Their assigned tasks are necessary or desirable in the usual
business or trade of the petitioner. The persisting need for their services is sufficient evidence of
the necessity and indispensability of such services to petitioner's business or trade. [40] While
length of time may not be a sole controlling test for project employment, it can be a strong
factor to determine whether the employee was hired for a specific undertaking or in fact tasked
to perform functions which are vital, necessary and indispensable to the usual trade or business
of the employer.
Petitioner's reliance on the ruling of this Court in Sonza v. ABS-CBN Broadcasting
Corporation[43] is misplaced. In that case, the Court explained why Jose Sonza, a well-known
television and radio personality, was an independent contractor and not a regular employee:
In Sonza - The payment of talent fees directly to SONZA and not to MJMDC does not negate the
status of SONZA as an independent contractor. The parties expressly agreed on such mode of
payment. Under the Agreement, MJMDC is the AGENT of SONZA, to whom MJMDC would have
to turn over any talent fee accruing under the Agreement. [44]
In the case at bar, however, the employer-employee relationship between petitioner and
respondents has been proven.
First. In the selection and engagement of respondents, no peculiar or unique skill, talent or
celebrity status was required from them because they were merely hired through petitioner's
personnel department just like any ordinary employee.

Second. The so-called "talent fees" of respondents correspond to wages given as a result of an
employer-employee relationship. Respondents did not have the power to bargain for huge talent
fees, a circumstance negating independent contractual relationship.
Third. Petitioner could always discharge respondents should it find their work unsatisfactory,
and respondents are highly dependent on the petitioner for continued work.
Fourth. The degree of control and supervision exercised by petitioner over respondents through
its supervisors negates the allegation that respondents are independent contractors.
The presumption is that when the work done is an integral part of the regular business of the
employer and when the worker, relative to the employer, does not furnish an independent
business or professional service, such work is a regular employment of such employee and not
an independent contractor.[45] The Court will peruse beyond any such agreement to examine the
facts that typify the parties' actual relationship.[46]
CASE LAW/ DOCTRINE: