2005 BAR EXAMINATIONS IN

LABOR AND SOCIAL LEGISLATION

BAR EXAMINATIONS 2005

LABOR AND SOCIAL LEGISLATION
4 September 2005 2 P.M. — 5 P.M.

INSTRUCTIONS

This questionnaire consists of nine (9) numbers contained in nine (9) pages. Read each
question very carefully. Answer legibly, clearly and concisely. Start each number on a
separate page; an answer to a sub-question under the same number may be written
continuously on the same and immediately succeeding pages until completed. Do not
repeat the question. A mere “Yes” or “No” answer without any corresponding discussion
will not be given any credit.

HAND IN YOUR NOTEBOOK WITH THIS QUESTIONNAIRE GOOD LUCK!!!

(Sgd.) Romeo J. Callejo, Sr.

Chairman
2005 Bar Examination Committee

PLEASE CHECK THE NUMBER OF PAGES IN THIS SET WARNING: NOT FOR
SALE OR UNAUTHORIZED USE

LABOR AND SOCIAL LEGISLATION

-I-

(1.) As Human Resources Department (HRD) manager of EZ Components, an

unorganized manufacturer of electric and electronic components for household
appliances, you are suddenly confronted with demands for recognition and collective
bargaining negotiations from two competing labor unions. They both claim to represent
all the rank-and-file employees. Union A is led by a moderate faction, while Union B is
affiliated with a militant federation identified with leftist ideology.

Which of the following courses of action should you take to best protect the interests of
your company and employees?

(a) Recognize Union A as the rightful bargaining representative because it will be more
reasonable to deal with;

(b) Recognize Union B because you do not want to antagonize its leftist connections and
foment inter-union conflicts;

(c) Ignore the demands of either union since you cannot be compelled legally to deal with
them at this stage; or

(d) Petition the Bureau of Labor Relations to conduct a certification election to determine
which union really represents the majority of the employees in the bargaining unit; (10%)

(2.) Little Hands Garment Company, an unorganized manufacturer of children’s apparel

with around 1,000 workers, suffered losses for the first time in history when its US and
European customers shifted their huge orders to China and Bangladesh. The management
informed its employees that it could no longer afford to provide transportation shuttle
services. Consequently, it announced that a nominal fare would be charged depending on
the distance traveled by the workers availing of the service.

Was the Little Hands Garments Company within its rights to withdraw this benefit which
it had unilaterally been providing to its employees?

Select the best answer(s) and briefly explain your reason(s) therefor.

(a) Yes, because it can withdraw a benefit that is unilaterally given;

(b) Yes, because it is suffering losses for the first time;

(c) Yes, because this is a management prerogative which is not due to any legal or
contractual obligation;

(d) No, because this amounts to a diminution of benefits which is prohibited by the Labor
Code;

(e) No, because it is a fringe benefit that has already ripened into a demandable right or
entitlement. (10%)

- II -

(1.) During the open forum following your lecture to a group of managers and HRD
personnel, you were asked the following questions:

(a) What qualifying circumstances will convert “illegal recruitment” to “economic

sabotage,” thus subjecting its perpetrator or perpetrators to a penalty of life imprisonment
and a fine of at least P500,000.00? (3%)
(b) Is the commission of an unfair labor practice by an employer subject to criminal
prosecution? (3%)

(c) How are the “portability” provisions of Republic Act No. 7699 beneficial or
advantageous to SSS and GSIS members in terms of their creditable employment services
in the private sector or the government, as the case may be, for purposes of death,
disability or retirement? (3%)

Please explain your answers briefly.

(2.) Mariano Martillo was a mason employed by the ABC Construction Company. Every
time that ABC had a project, it would enter into an employment contract with Martillo for
a fixed period that coincided with the need for his services, usually for a duration of three
to six months.

Since the last project involved the construction of a 40-storey building, Martillo was
contracted for 14 months. During this period, ABC granted wage increases to its regular
employees, composed mostly of engineers and rank-and-file construction workers as a
result of the just concluded CBA negotiations. Feeling aggrieved and discriminated
against, Martillo and other similarly-situated project workers demanded that the increases
be extended to them, inasmuch as they should now be considered regular employees and
members of the bargaining unit.

(a) If you were ABC’s legal counsel, how would you respond to this demand?

(b) How is a project worker different from a casual or contractual worker?

Briefly explain your answers. (6%)

- III -

(1.) Antonio Antuquin, a security guard, was caught sleeping on the job while on duty at
the Yosi Cigarette Factory. As a result, he was dismissed from employment by the
Wagan Security Agency, an independent contractor. At the time of his dismissal, Antonio
had been serving as a watchman in the factory for many years, often at stretches of up to
12 hours, even on Sundays and holidays, without overtime, nighttime and rest day
benefits. He thereafter filed a complaint for illegal dismissal and non-payment of benefits
against Yosi Cigarette Factory, which he claimed was his actual and direct employer.

As the Labor Arbiter assigned to hear the case, how would you correctly resolve the
following:

(a) Antonio’s charge of illegal dismissal; and

(b) Antonio’s claim for overtime and other benefits. (6%)

(2.) Mans Weto had been an employee of Nopolt Assurance Company for the last ten
(10) years. His wife of six (6) years died last year. They had four (4) children. He then
fell in love with Jovy, his co-employee, and they got married. In October this year,
Weto’s new wife is expected to give birth to her first child. He has accordingly filed his
application for paternity leave, conformably with the provisions of the Paternity Leave
Law which took effect in 1996. The HRD manager of the assurance firm denied his
application, on the ground that Weto had already used up his entitlement under that law.
Weto argued that he has a new wife who will be giving birth for the first time, therefore,
his entitlement to paternity leave benefits would begin to run anew.

(a) Whose contention is correct, Weto or the HRD manager?

(b) Is Jovy entitled to maternity leave benefits? (6%)

- IV -

(1.) Malyn Vartan is a well-known radio-TV talk show host. She signed a contract with
XYZ Entertainment Network to host a one-hour daily talk show where she interviews
various celebrities on topical subjects that she herself selects. She was paid a monthly
remuneration of P300,000.00. The program had been airing for almost two years when
sponsors’ advertising revenues dwindled, constraining the network to cancel the show
upon the expiration of its latest contract with Ms. Vartan. The talk-show host protested
the discontinuance of her monthly talent fee, claiming that it was tantamount to her
illegal dismissal from the network since she has already attained the status of a regular
employee.

(a) As the network’s legal counsel, how would you justify its decision to cancel Ms.
Vartan’s program which in effect terminated her services in the process?

(b) As counsel for the talk-show host, how would you argue your case? (6%)

-V-

During the open forum following your lecture before members of various unions
affiliated with a labor federation, you were asked the following questions:

(a) Araw ng Kagitingan and Good Friday are among the 10 paid regular holidays under
Article 94 of the Labor Code. How much will an employee receive when both holidays
fall on the same day? (4%)

(b) May a rank-and-file employee, who is not a member of the union representing his
bargaining unit, avail of the wage increases which the union negotiated for its members?
(4%)

(c) What is meant by “payroll reinstatement” and when does it apply? (4%)

(d) Under what conditions may a “compressed work week” schedule be legally
authorized as an exception to the “eight-hour a day” requirement under the Labor Code?
(4%)

State your answers and your reasons therefor.

- VI -

A group of employees in XYZ Factory belonging to a religious sect, in conformity with

the teachings and dictates of their religion, refused to join the labor union in the factory.
The labor union was able to negotiate a substantial wage increase in its collective
bargaining agreement with management. A provision therein stated that the wage
increase would be paid to the members of the union only in view of a “closed shop”
union security clause in the new agreement. The members of the sect protested and
demanded that the wage increase be extended to them. The officers of the union
countered by demanding their termination from the company pursuant to the “closed
shop” provision in the just-concluded CBA.

(a) Is the CBA provision valid?

(b) Should the company comply with the union’s demand of terminating the members of
the religious sect? (6%)

- VII -

(1.) Ricky Marvin had worked for more than ten (10) years in IGB Corporation. Under
the terms of the personnel policy on retirement, any employee who had reached the age
of 65 and completed at least ten (10) years of service would be compulsorily retired and
paid 30 days’ pay for every year of service.

Ricky Marvin, whose immigrant visa to the USA had just been approved, celebrated his
60th birthday recently. He decided to retire and move to California where the son who
petitioned him had settled. The company refused to grant him any retirement benefits on
the ground that he had not yet attained the compulsory retirement age of 65 years as
required by its personnel policy; moreover, it did not have a policy on optional or early
retirement.

Taking up the cudgels for Ricky Marvin, the union raised the issue in the grievance
machinery as stipulated in the CBA. No settlement was arrived at, and the matter was
referred to voluntary arbitration.

If you were the Voluntary Arbitrator, how would you decide? Briefly explain the reasons
for your award. (5%)

(2.) Carissa, a comely bank teller, was due for her performance evaluation which is
conducted every six months. A rating of “outstanding” is rewarded with a merit increase.
She was given a “below average” rating in the last two periods. According to the bank’s
personnel policy, a third rating of “below average” will result in termination. Mr. Perry
Winkle called Carissa into his office a few days before submitting her performance
ratings. He invited her to spend the night with him in his rest house. She politely
declined. Undaunted, Mr. Winkle renewed his invitation, and Carissa again declined. He
then warned her to “watch out” because she might regret it later on. A few days later,
Carissa found that her third and last rating was again “below average.”

Carissa then filed a complaint for sexual harassment against Mr. Winkle with the
Department of Labor and Employment. In his counter-affidavit, he claimed that he was
enamored with Carissa. He denied having demanded, much less received any sexual
favors from her in consideration of giving her an “outstanding” rating. He also alleged
that the complaint was premature because Carissa failed to refer the matter to the
Committee on Decorum and Discipline for investigation and resolution before the case
against him was filed. In her reply affidavit, Carissa claimed that there was no need for a
prior referral to the Committee on Decorum and Discipline of her complaint.

Resolve the case with reasons. (5%)

- VIII -

(1.) Odeck, a policeman, was on leave for a month. While resting in their house, he heard
two of his neighbors fighting with each other. Odeck rushed to the scene intending to
pacify the protagonists. However, he was shot to death by one of the protagonists. Zhop,
a housemaid, was Odeck’s surviving spouse whom he had abandoned for another woman
years back. When she learned of Odeck’s death, Zhop filed a claim with the GSIS for
death benefits. However, her claim was denied because (a) when Odeck was killed, he
was on leave; and (b) she was not the dependent spouse of Odeck when he died.

Resolve with reasons whether GSIS is correct in denying the claim. (5%)

(2.) Maryrose Ganda’s application for the renewal of her license to recruit workers for
overseas employment was still pending with the Philippine Overseas Employment
Administration (POEA). Nevertheless, she recruited Alma and her three sisters, Ana,
Joan and Mavic, for employment as housemaids in Saudi Arabia. Maryrose represented
to the sisters that she had a license to recruit workers for overseas employment. Maryrose
also demanded and received P30,000.00 from each of them for her services. However,
Maryrose’s application for the renewal of her license was denied, and consequently failed
to employ the four sisters in Saudi Arabia.

The sisters charged Maryrose with large scale illegal recruitment. Testifying in her
defense, Maryrose declared that she acted in good faith because she believed that her
application for the renewal of her license would be approved. Maryrose adduced in
evidence the Affidavits of Desistance which the four private complainants had executed
after the prosecution rested its case. In the said affidavits, they acknowledged receipt of
the refund by Maryrose of the total amount of P120,000.00 and indicated that they were
no longer interested to pursue the case against Maryrose. Resolve the case with reasons.
(5%)

- IX -

Kitchie Tempo was one of approximately 500 production operators at HITEC

Semiconductors, Inc., an export-oriented enterprise whose business depended on orders
for computer chips from overseas. She was hired as a contractual employee four years
ago. Her contracts would be for a duration of five (5) months at a time, usually after a
one-month interval. Her re-hiring was contingent on her performance for the immediately
preceding contract.

Six months after the expiration of her last contract, Kitchie went to HITEC’s personnel
department to inquire why she was not yet being recalled for another temporary contract.
She was told that her performance during her last stint was “below average.” Since there
was no union to represent her,

Kitchie seeks your advice as a labor lawyer about her chances of getting her job back.
What will your advice be? (5%)

NOTHING FOLLOWS.