QuestionsQuestions (BWC DEPARTMENT ORDER NO. 19 s. 1993)
It applies to all operations and undertakings in the construction industry and its subdivisions (general building, general engineering, and special trade construction based on PCA B classification), to entities involved in demolition works, and to those falling within the construction industry as determined by the Secretary of Labor and Employment.
Employees are generally categorized as (a) project employees and (b) non-project employees.
A project employee is one employed in connection with a particular construction project or phase thereof and whose employment is co-terminus with that project or phase.
A non-project employee is one employed without reference to any particular construction project or phase.
Indicators include: the duration of the specific/identified undertaking is reasonably determinable; duration and specific service are defined in an employment agreement and made clear at hiring; the work/service is connected to the particular project/undertaking; the worker may offer services to other employers when not employed/awaiting engagement; termination is reported to the DOLE Regional Office within 30 days using the prescribed form; and an undertaking to pay a completion bonus (commonly practiced).
Employees are not separated at the same time because project phases may end at different times. Completion of a phase is considered completion of the project for employees assigned to that phase; the number of employees normally decreases as the phase nears completion.
After completion of the project or phase, the project employee may be rehired for another undertaking if rehiring conforms with the provisions of law and the issuance. The last day of service in the preceding project should be indicated in the employment.
They are: probationary employees, regular employees, and casual employees.
Casual employees employed for at least one year, whether continuous or broken, shall be considered regular with respect to the activity in which they are employed, and their employment shall continue for as long as such activity exists unless terminated sooner for a just or authorized cause, or voluntarily by the employee.
Project employees generally are not entitled to separation pay when termination results from completion of the project or any phase, or because they have no more to do or their services are no longer needed in the particular phase.
If their aggregate period of continuous employment in the construction company is at least one year, they are considered regular in the absence of a 'day certain' for termination. Once they have become regular, they are entitled to separation pay under the appropriate circumstances.
A 'day certain' is the time that must necessarily come, even if the exact date is not known. If final completion of the project/phase is in fact determinable and the expected completion is made known to the employee, they may not be considered regular notwithstanding the one-year duration.
The employee is entitled to reinstatement with backwages to the former position or a substantially equivalent position. If reinstatement is no longer possible, the employee is entitled to salaries for the unexpired portion of the agreement.
They are entitled to pro-rata completion bonus if there is an undertaking for such bonus. If there is no such undertaking, the employee may be considered a non-project employee. The pro-rata completion bonus may be based on industry practice and may be at least one-half (1/2) month salary for every 12 months of service, with effect for project bids/tenders submitted within the timing stated in the issuance.
Preventive suspension is allowed only when continued employment poses a serious and imminent threat to life or property (employer or co-workers), subject to Article 277(b). It cannot exceed fifteen (15) days. The employer must reinstate after or extend with payment of wages/benefits during extension, and must hold a fact-finding investigation with notice so the employee can be heard and assisted by counsel/representative.
They are responsible for workers in their employ on matters of compliance with labor standards: hours of work, wages and wage-related benefits, health, safety, and social welfare benefits, including required reports (DOLE Work Accident/Illness Report, Monthly Report on Employees’ Terminations/Dismissals/Suspensions, and other reports). The prime/general contractor must exercise sound judgment in contracting out to ensure compliance.
The wage increases mandated or agreed upon are borne by the principals/clients of the construction contractors, and the contracts are deemed amended accordingly. Liability in subsequent mandated rates/allowances is determined by the applicable wage legislations/orders.