Concern
"I am working as a Project Nurse in construction. I started in June 2023 but do not have a formal employment contract. In December 2023, I was not given 13th-month pay. When I asked the HR department in December 2024 if I would receive it, they said I was not eligible. What are my rights in this situation?"

∇ Legal Contemplator

Alright, let’s take this one step at a time. I need to unpack several elements here because labor laws in the Philippines can be specific, and the nuances of each case are crucial. At the core of this inquiry is whether you, as a project-based employee without a formal written contract, are entitled to 13th-month pay. Let me break this down methodically.

1. Is a formal contract necessary for employment to exist?

No, employment in the Philippines does not strictly require a written contract. The existence of an employer-employee relationship is determined by the four-fold test:
1. The power to hire,
2. Payment of wages,
3. Power to dismiss, and
4. Control over the means and methods of work.
If the company exercises control over your working conditions (e.g., sets your schedule, duties, and imposes policies), then you are considered an employee regardless of the absence of a formal contract.

Questions:

Did the company control your tasks and duties as a nurse?
Were you regularly paid a salary, regardless of the absence of a contract?
Were you hired directly by the company or through an agency?

Doubt:
Even without a written agreement, it’s likely you are legally recognized as an employee under Philippine labor law if these conditions are met. But could HR’s refusal to classify you as eligible for 13th-month pay be based on the claim that you’re not a regular employee? Let’s investigate further.

2. Who is entitled to 13th-month pay under Philippine law?

The Presidential Decree No. 851 mandates that all rank-and-file employees who have worked at least one month during the calendar year are entitled to 13th-month pay, regardless of the nature of their employment (regular, probationary, project-based, or casual).
The only exceptions are:
- Government employees,
- Those already receiving equivalent benefits under another scheme,
- Househelpers, and
- Employees paid purely on commission, boundary, or task basis.

Questions:

Is there any reason HR might claim you fall under one of these exceptions?
As a project-based employee, are you being paid a regular monthly wage, or are you paid based on output (e.g., per project milestone)?

Doubt:
If you’re paid regularly (e.g., monthly salary), you should not fall under the exceptions. However, some employers might attempt to misclassify employees to avoid compliance. I should dig deeper into what constitutes a "project-based" employee and whether it has bearing on your entitlement.

3. Does being a project-based employee affect your entitlement?

The term "project-based" typically refers to employment tied to the completion of a specific project. However, this does not disqualify you from receiving 13th-month pay. The Supreme Court of the Philippines has consistently ruled that project-based employees are entitled to benefits like regular employees, provided they meet the minimum requirements.

Questions:

Was your employment directly linked to a specific construction project?
Did the company specify an end date for your employment?

Revised Doubt:
If your employment was open-ended or if you continued to work beyond the project’s completion, you might have transitioned into regular employment. Even as a project-based employee, you should still be eligible for 13th-month pay unless you fall under one of the narrow exceptions. This raises a concern about HR’s rationale for their refusal.

4. What about the 13th-month pay for 2023 and 2024?

Employees who work for at least one month are entitled to a prorated 13th-month pay for that calendar year. Since you started in June 2023, you should have been entitled to a prorated amount for that year, covering the months of June to December.
In 2024, if you worked the entire year, you should have received the full 13th-month pay. HR’s refusal raises questions.

Questions:

Did the company give a specific reason for not paying the 13th-month pay for 2023 and 2024?
Was it because of your status as a project-based employee, or did they claim something else?

Doubt:
It’s unclear if HR is misinterpreting the law or if there is another factor at play (e.g., their misclassification of your employment). It might also be worth examining whether your role as a nurse is being treated differently from other employees.

5. What actions can you take to address this?

Given that you may have been unjustly excluded from receiving your 13th-month pay, you have several options:

Talk to HR Again:
- Politely request a written explanation of why you are not eligible for the 13th-month pay. This documentation could be useful later.
File a Complaint with DOLE:
- The Department of Labor and Employment (DOLE) handles labor disputes, including issues related to 13th-month pay.
- They typically encourage mediation first. If no resolution is reached, DOLE can conduct an inspection or pursue legal action against the employer.
Consult a Labor Lawyer:
- For more complex cases, a labor lawyer can help clarify your status and represent you in negotiations or legal proceedings.

Questions:

Are you comfortable confronting HR, or would you prefer to go directly to DOLE?
Do you have records of your salary payments or communication with the company regarding your status?

6. Possible Challenges and Considerations

Without a written contract, you may face difficulty proving the exact terms of your employment. However, other forms of evidence, like payslips, time records, or even text messages, can support your case.
If the company attempts to argue that you were an independent contractor or freelancer, you will need to rely on the control test mentioned earlier.

Final Answer

Based on the details provided:

You are likely entitled to 13th-month pay under Presidential Decree No. 851, regardless of being a project-based employee, as long as you were paid a regular salary and worked for at least one month in a calendar year.
HR’s refusal seems to lack legal basis unless there are specific, documented exceptions that apply to you (e.g., commission-based pay or equivalent benefits provided).
You should gather evidence of your employment and salary payments and consider filing a complaint with DOLE if HR remains uncooperative.