ULPIANO P.

SARMIENTO III
Teacher-Lawyer
Contracts in General
- is a meeting of minds between two
(2) persons whereby one binds
himself with respect to the other, to
give something or to render some
service (Art. 1305, Civil Code)
Freedom to Contract

Article 10, 1987 Constitution

“No law impairing the obligations
of contracts shall be passed.”
Hence…

Article 1306, Civil Code provides—

“The contracting parties may
establish such stipulations, clauses,
terms and conditions as they may
deem convenient, xxx.”
Binding Efficacy

Article 1159, Civil Code declares—

“Obligations arising from
contracts have the force of law
between the contracting parties and
SHOULD be COMPLIED with in
GOOD FAITH.”
Limitations to Freedom to Contract

Agreement must not be

contrary to law, morals, good
customs, public order or public
policy. (Art. 1306, Civil Code)
Thus…

State intervenes in cases

where contracts are affected by
public policy such as in labor
contracts.
Reason:

Types of contracts (like employment

contracts for teachers and rank-and-file)
have the effect of weakening the
consensual nature of the contracting
parties by giving undue advantage to one
of the parties xxx requiring State
intervention to PREVENT INJUSTICE.
(Those who have less in life; must have
more in law.)
Hence…

Stipulation in the contract or even

in the CBA that violates or is contrary
to law, rules and regulations shall
NOT be VALID.
 “xxx educational institutional are
impressed with public interest xxx are
under the control and supervision of the
State. xxx Squarely, all laws, rules and
regulations governing educational
institutions are MANDATORY in character
and shall be strictly complied with. Any
waiver to this effect will be against public
policy. xxx (For) xxx it will xxx open the
door to the employment of direful low
quality and inefficient faculty xxx.” (Sec. 118,
MORPHE)

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 The Supreme Court in the
case of Escorpizo vs. University
of Baguio, held that a school
CBA must be read in conjunction
with statutory and administrative
regulations governing faculty
qualifications.
 TO HAVE BINDING
EFFICACY THERE MUST BE
CONSENT
2 Elements:
1. Offer
2. Acceptance
Elements of Consent

1. Offer
• Must be definite
• Must be intentional
• Must be complete
• Must be directed to person offeror
intends to enter into contract
2. Acceptance
• Must be absolute
• Must be directed to offeror
• Must be made with intention to be
bound
• Must be made within proper time
• Must be communicated to offeree
CONSENT may be—
1. Express (oral/written)
2. Implied
3. Presumed
 The agreement governing the
employer-employee relationship
between the school and its teachers
MUST be embodied in a WRITTEN
EMPLOYMENT CONTRACT.
 The Contract is the single most
important element of the educator’s
employment. (Mamchack &
Mamchack, “School Administrator’s
Encyclopeadia”)
The Teacher’s Contract

A teacher’s contract should

specify the services and duties he
shall perform and all other terms of
his employment.
 These particulars vary, but
generally such a contract may include
details on:
• sick leave
• time of employment
• tenure and the grant thereof,
• various rights (such as the right to a
hearing or grievance procedure), and
• even the school and level to which
he may be assigned.
 Schools usually spell out these
matters in a handbook and simply
refer to the salient portions thereof in
the educator’s contract. Teacher is
then provided a copy of the
handbook.
Important:
The contract must at least contain
provisions on:
• designation
• qualifications
• salary rate
• nature of service, and
• date of effectivity and expiration of the
agreement
These are matters which differ for
each individual.
DepEd Policy:
To require schools to enter into
written contracts of at least one
year’s duration for elementary and
secondary teachers
CHED:
One semester’s duration for
college teachers.
 These contracts must be duly
signed by the Chairman of the Board
of Directors or his authorized
representative.
AND
must also be signed by the Teacher/
Personnel to manifest agreement
 Rule to Ensure Binding Efficacy
of Employment Contract in
Accordance with the ‘TRUE’
Agreement of Parties (School and
Personnel)
 If Contract of Employment is NOT
in writing, CONSENT is IMPLIED and
EMPLOYMENT is PRESUMED and
shall be GOVERNED by Labor/
Education Laws.
Illustration:
Contract for Non-Academic
Rank-and-File

CONTRACT must be in WRITING and:

1ST : State that personnel is
PROBATIONARY
2ND : Must state the reasonable
standards to qualify as REGULAR
employee
Therefore:
• No formal written contract—
employment of NEWLY HIRED is
REGULAR.
• No reasonable standards made known
to employee to qualify as regular—
NEWLY HIRED may only be separated
by the same CAUSES (authorized or
just) that JUSTIFIES termination of
REGULAR EMPLOYEE
Reason:
Contract for Non-Academic Rank-
and-File
Article 280, Labor Code—
For an employee to be considered
regular, he must be engaged to
perform duties that are usually
necessary or desirable to the
employer’s ordinary course of
business or trade.
Hence...
Such engagement must last
indefinitely and should not be
fixed for a specific period or for a
particular season
Article 280, 2nd par., Labor Code—
Considers as regular anyone
who has rendered at least 1
year’s service regardless of the
nature of his duties. Such
employee must be retained as
long as his services are required
AND this NOT need formal
appointment.
UST vs. NLRC, Canicoza
“It shall definitely NOT allow
repetitive probation by separating an
employee after 5 months’ service to
prevent him from becoming a
regular employee and then hiring
him on probation again without
security of tenure.”
Effect of Probationary Contract of Academic
Personnel Does Not Stipulate Period of
Employment
Espiritu Santo Parochial School et al. vs.
NLRC (76 SCRA 250)

“SC said “xxx contracts

involved here stipulate no
period. In that eventuality,
the 3 years probationary
period provided for in
MRPS must apply.”
 In Magis Young Achievers’ Learning
Center vs. Manalo, the Supreme Court
held—
“It is important that the contract of
probationary employment specify the
period or term of its effectivity. The
failure to stipulate its precise duration
could lead to the inference that the
contract is binding for the full 3-year
probationary period.”
Hence…
It should be stressed that the
probationary contract must stipulate the
period of effectivity, otherwise it shall
remain in force for the three (3) years
probationary period.
Must Be Signed by Parties Before Date
of Effectivity:
To be VALID and BINDING upon the
employee, the CONTRACT must be
agreed to, expressed by SIGNING the
CONTRACT. If the CONTRACT is NOT
signed, it is deemed NOT
ENFORCEABLE.
Effect If There Is No Enforceable Contract At All

Pines City Education Center, et al. vs. NLRC

(227 SCRA 655)

“Eight (8) probationary

teachers out of 10 signed
contracts with fixed duration.
Upon expiration of contract, all
10 were terminated. Supreme
Court upheld dismissal of 8
teachers, but ordered
reinstatement of two (2) who
did not have contract.”
Contract of School Administrators
Principle:
A distinction between the teaching staff on the one
hand—teachers xxx—and department or administrative
heads or officials, on the other - college or department
secretaries, principals, directors, assistant deans, deans.
The teaching staff xxx may and should acquire tenure in
accordance with the rules and regulations of the DepEd or
CHED and the school’s rules and standards. On the other
hand, teachers appointed to serve as administrative
officials do not normally, and should not expect to acquire,
a second or additional tenure. The acquisition of such
additional tenure is not normal, is the exception rather than
the rule, and should therefore be clearly and specifically
provided by law or contract.” (La Salette of Santiago vs. NLRC,
Javier, 195 SCRA 80)
Also...
Where there is no tradition of fixed-term
appointments to the positions xxx administrative
officers to enable the school to rotate these
positions among the faculty members, the
DOLE believes that such appointment is a
consequence of promotion, and hence, not for a
specific term. The appointee therefore acquires
security of tenure.
Hence...

Contract MUST EXPRESSLY

PROVIDE that administrative
position is FOR A FIXED TERM.
Otherwise,
NO CONTRACT stipulating a FIXED-
TERM, the appointment to the administrative
position of a teacher or a newly hired
personnel is deemed REGULAR/
PERMANENT.
• For the teacher, it is a consequence of
a PROMOTION, hence, not JUST for
a term.
• For newly-hired, it is for a REGULAR
employment NOT subject to a Term-
Contract Agreement.
Contract of Part-Time

Principle:
“xxx part-time (academic personnel)
xxx are xxx NOT eligible for regularization
regardless of the number of years served
in the educational institution.”
(Consolidated Order No. 1, s. 1996)
 Aklan College vs. Guariño
(Aug. 14, 2007)
“xxx the FACT that respondent
(academic personnel) was retained as
ACTING DEAN for 17 years DID NOT
give him a VESTED right to occupy in a
permanent capacity xxx NOT being a
master’s degree holder, he was NEVER
and could NEVER have been appointed
in a permanent capacity as he is NOT
qualified under the law.”
Hence...

Section 66, RMBE

“The employment of part-time school
personnel shall be reckoned in terms of
the need of the school and/or the
availability of qualified applicants.”
Also Section 177, MORPHE
“A part-time employee CANNOT
acquire REGULAR xxx hence may
be terminated when a qualified
teacher becomes available.”
What is Security of Tenure of PART-
TIME Academic Personnel
Answer:
Limited to the period/term as expressly
provided by CONTRACT.
“xxx they remained secured in their
employment during the period of time their
respective contracts of employment
remained in effect. That temporary security
of tenure xxx ended the moment their
employment contracts ended xxx.” (Rev. Fr.
Emmanuel Labajo, et al. Vs. Alejandro, 165 SCRA 747)
May It Be BEFORE Expiration of the
CONTRACT?
Answer:
Yes if expressly provides that “part-
time employment is for the
TERM/PERIOD of the CONTRACT
UNLESS
Otherwise terminated EARLIER when
a qualified teacher becomes available
and is HIRED.
 Some Matters/Issues Need to Be Made
Clear in CONTRACT or in Teacher Manuals
1. Overload Pay
• NOT part of 13th month pay computation
“Overload partakes of the nature of
temporary extra assignment and
compensation therefore shall be considered
as an overload honorarium if performed
within the 8-hour work period and does not
form part of the regular or basic pay.” (DOLE-
DECS-CHED-TESDA Order No. 2, s. 1996, Feb. 7,
1996)
 The DOLE Legal Services Office in
responds to the DepEd Indorsement dated
February 3, 1992, commented—
“It is clear that extra remuneration over
and above the basic salary of an
employee is not included in the
computation of the 13th month pay. xxx if
by school policy (written and made known
to teacher/personnel) the same is not
considered as part of the basic salary of
qualified teacher.”
2. Bonus in Lieu of 13th Month
In the case of UST Faculty Union vs.
NLRC and UST (143 SCRA 564), the
Supreme Court declared that –
“xxx where such additional income, xxx or
its equivalent is already given by the
employer, xxx the 13th month pay need not
be given. If, on the other hand, an amount
less than that granted by law is given, the
employer has only to pay his employees the
deficiency.”
Must ALSO be made clear in
WRITING and made known to employee.
 xxx what the law wants to
prevent is the imposition of a
“double burden” upon the
employer who is already paying
the equivalent of a 13th month
pay.”
3. Retirement Benefit
• Applicability of RA 7641 to Part-time
Teachers
Although the new retirement law has no
specific provisions pertaining to part-time
employees, the DOLE recognizes part-time
employment as a valid employment
arrangement. Part-time employee has the
same right as a regular employee as to the
benefits provided by labor law and
regulations, unless clearly excluded by the
parties in writing (include in the contract).
 In the case of Ramon Manalac vs.
ADMU, et al. (NLRC NCR Case No. 00-04-
02931-93 dated June 15, 1994), the NLRC
ruled that–
“xxx We are of the holding that
complainant’s part-time status, was not
among those enumerated as excepted
classes of employees who are not within the
law’s coverage. As such, even part-time
employees, or part-time faculty members are
equally entitled to the benefits mandated by
RA 7941 xxx.”
• Retirement Benefit Distinguished
from Separation Pay
Retirement benefits are intended to
help the employee enjoy the remaining
years of his life.
Separation pay is required in the
cases enumerated in Arts. 283 and 284 of
the Labor Code.
 Therefore, a school may either grant
both benefits or opt to amend its
retirement plan to remove any duplication
of benefits by stating in WRITING (in the
contract or retirement plan) that the
amount of benefits the employees stand
to receive from the plan would be
correspondingly reduced by the
separation pay granted to them should
they remain entitled to both.
Qualified Teacher Under the
Enhanced Basic Education
Program
 Duly registered professional
teacher and holders of Certificate of
Registration and Professional
License issued by PRC or valid
special/temporary permit
Special/Temporary Permit—
• Those who failed the licensure
examination with rating of NOT lower
than 5% pts from passing GA (para-
teachers for two years)
• To a person who has excelled and gained
international recognition and duly
acknowledged expert in his respective
field of specialization.
By virtue of Section 8 of K-12 Law (RA
10533)
FIRST:
Graduates of SMSEM and Others with
shortage in qualified LET (for elementary/
secondary)
• must pass LET with 5 years, otherwise
remain part-time
• qualified LET applicants include also
graduates admitted by foundations
 SECOND:
Graduates admitted by Foundations
duly recognized for their expertise in
the education sector and who
satisfactorily complete requirements
set by organization.
 THIRD:
Graduates of TVOC with NC-II
courses to teach specialized subjects
(in secondary only)
AND
Underwent in-service training by
DepEd or HEI
 FOURTH:
Faculty of HEI to teach general subjects
(in secondary education only) must:
i. holder of bachelor’s degree
ii. satisfactory served as full-time as HEI
faculty
 FIFTH:
Practitioners/professional with
expertise in specialized learning (in
secondary only)
• shall teach part-time only
Basic Issue:
When engaged, would they be
FULL-TIME or PART-TIME?
Reason:
- If full-time, may be REGULAR
- If part-time, may not be
REGULAR
 DOLE-DECS-CHED-TESDA Order No. 1, s.
1996 provides for the definition of full-time
and part-time academic personnel:
Full-time academic personnel are those who
meet all the following requirements:
1. Who possess at least the minimum academic
qualifications prescribed by the DECS for
Basic Education, the CHED for Tertiary
Education, and the TESDA for Technical and
Vocational Education under their respective
Manual of Regulations governing said
personnel;
2. Who are paid monthly or hourly based on the
regular teaching loads as provided for in the
policies, rules and standards of the agency
concerned;
3. Whose regular working day of not more than
eight hours a day is devoted to the school;
4. Who have no other remunerative occupation
elsewhere requiring regular hours of work that
will conflict with the working hours in the school;
and
5. Who are not teaching full-time in any other
educational institution.
All teaching or academic personnel who do not
meet the foregoing qualifications are considered
part-time and are therefore not eligible for
regularization regardless of the number of years
served in the educational institution.
NB: Above is reiterated in Sec. 66 of RMBE and
Sec. 177 of MORPHE.
1st Category
Graduates of SMSEM
• Issue: Upon hiring are they:
i. Part-time or full-time
ii. Probationary / full-time
 Contract must stipulate their
employment status either as part-
time or probationary full-time.
 If part-time, security of tenure is
limited to period/term of
employment in contract.
If Probationary, security of tenure may—
1. 5 years or 3 years, if Contract initially
entered into did not provide (Espiritu
Santo case applies)
2. Shorter period (ex: 1 SY) if contract
stipulates shorter period.
BUT...
if school decides NOT to renew, MUST
prove a just or authorized cause
(Mercado vs. AMA)
 NEW DOCTRINE / Ruling
Yolanda M. Mercado et. A., v. AMACC,
Parañaque City April 13, 2010,

Where the SC, although still does not

present the use of “fixed-period contracts”
to newly hired employees under
PROBATION, it however removed the
right of the School to terminate an
employee under PROBATION fixed term
contract on the basis of mere
EXPIRATION thereof.

73
 As it now stands, in addition to expiration
of contract, the School must also show that
said employee failed to meet the standards
of the school which must have been made
known to the said employee at the start of
engagement to JUSTIFY non-renewal of
the Expired FIXED-TERM Contract.

74
 St. Paul v. Sps. Ancheta
(September 7, 2011)

At the end of this (probationary) third

year, the (school) may now decide
whether to extend a permanent
appointment to the employee, PRIMARILY
ON THE BASIS OF THE EMPLOYEE
HAVING MET THE REASONABLE
STANDARDS of competence and
efficiency set by the employer.

75
 For the entire duration of this three-
year period, the teacher remains
under probation. Upon expiration of
his contract of employment, being
simply on probation he CANNOT
AUTOMATICALLY claim security of
tenure and COMPEL the employer to
renew his employment contract.

76
2nd Category
Graduates admitted by Foundations
• Need not be graduates of SMSEM
(Although Atty. Estrada states
otherwise in his book)
• Must pass within 5 years LET to be
full-time
Caveat:
Atty. Estrada: Must refer only to graduate of
SMSEM (p. 89 of his book K to 12)
 Contract to be entered into must
take into consideration also
whether—
a) They are probationary; or
b) They are part-time
3rd Category
Graduates of Technical-Vocational courses
and the Philippine Qualification Framework
• Must possess the necessary
certification from TESDA
• Must undergo appropriate in-service
training by DepEd or HEI
(to teach in their specialized subjects
only in secondary education)
Note: No College degree; no LET
 Contract then MUST recognize
them as PROBATIONARY if
allowed to handle FULL-LOAD
and DEVOTE FULL-TIME to
school.
 To be PART-TIME, contract
them ONLY for LESS THAN
FULL-LOAD required for FULL-
TIME.
 Technical-Vocational teachers
necessary for schools that will
consider the Tech-Voc Track.
 Shortage in licensed teacher
applicants IS NOT a condition-
precedent for graduates of Tech-
Voc.
4th Category
Faculty of Higher Education
Institutions to teach general education
subjects (in Secondary education only)
Conditions:
1) Must be a holder of relevant
bachelor’s degree;
2) Satisfactorily served as full-time
HEI faculty (must then be regular
already)
Note: No LET required
Considerations for Contracts
A. NEWLY HIRED (i.e., College faculty
hired from another institution)
1) If still is teaching FULL-TIME in the
College level, the contract MUST be
FOR PART-TIME
2) If teacher intending to teach full-time in
HS, then must resign from full-time
teaching in College.
B. COLLEGE FACULTY transferred to
Basic Education of the same
institution
1) If to teach part-time in HS, maintains
regular status in College but must still
be full-time.
2) If to teach full-time in HS, then must be
considered part-time in College.
Issue:
Should they be regular already in
HS or considered probationary?

Answer:
CONTRACT must make clear and
faculty made to agree.
Academic Rank and Rate
• While a full-time status in HEI
carries an academic rank and rate
of compensation, the teaching
load of a faculty who is allowed in
SHS/HS DOES NOT, as a matter
of RIGHT (and be protected
against DIMINUTION), GET same
salary rate for teaching in HS
 The CONTRACT must however
STATE the rate the College professor
will get for his SHS/HS teaching AND
to which he/she agrees.
If No CONTRACT

Presumption:
Same salary/compensation rate
received in College shall be paid
him for SHS/HS load.
-End-