Test to determine if employee regular or casual: nature of work performed, relation to employer's scheme of particular business or trade

The mere fact that they were paid on commission basis does not affect or change their status as regular employees. The test for determining whether an employee is regular or casual has nothing to do with the manner of computing or paying an employee's wages or compensation. Rather, "The primary standard, x x x, of determining a regular (as against casual) employment is the reasonable connection between the particular activity performed by the employee in relation to the usual business or trade 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 the work performed and its relation to the scheme of the particular business or trade in its entirely. Also, if the employee has been performing the job for at least one year, even if the performance is not continuous or merely intermittent, the law deems the 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 also considered regular, but only with respect to such activity and while such activity exists." On the other hand, we should hasten to add that while in this particular case, these "commission-basis" employees involved were regular employees (by operation of law, plus of course, the fact that their status as employees had never been challenged at any stage of the present case), it does not follow that every employee paid (whether wholly or partly) on commission basis can be considered a regular employee, or an employee at all, for that matter. While this caveat may seem rather elementary, it is still needful to stress that there are many lines of business legally and legitimately engaging the services of workers, who are paid on commission basis to perform activities desirable and necessary for such businesses, without creating any kind of employer-employee relationship at any time. [G.R. No. 92772. November 28, 1996]

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