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labor law bar exams

labor law bar exams

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TRUE OR FALSE.

Explain your answer briefly.

1. Deeds of release, waivers and quitclaims are always valid and binding. (2%) 2. The relations between employer and employee are purely contractual in nature. (2%) 3. As a general rule, direct hiring of Overseas Filipino Workers (OFWs) is not allowed. (2%) 1. False. Deeds of release, waivers and quitclaims may be contrary to law depending on the attendant circumstances. 2. False. It is imbued with public interest and is constitutionally and statutorily protected.

A. Distinguish the arbitration. (3%) B. Differentiate

terms

conciliation,

mediation

and

surface

bargaining

from

blue-sky bargaining. (2%)

xxx...CONCILIATION is a process wherein a disinterested third party cools tempers and aid the disputing parties in reaching an agreement MEDIATION is a process wherein a disinterested party gives suggestion to the disputing parties so that they may come to an agreement. ARBITRATION - a process wherein the parties submit their case to a third party who shall adjudicate based on the evidence submitted to him. The decision in arbitration shall be final and binding upon the parties...xxx SURFACE BARGAINING - it is a term used by the NLRC if it finds that an employer has failed to bargain in good faith with a union. The employer in this case will go through the motions of negotiating without any legal intent to reach an agreement. BLUE SKY BARGAINING - bargaining whereby the parties make exaggerated or unreasonable proposals in the cba. (e.g., union asked for salaries to be quadrupled and for each employee to have 6 months vacation a year; or if management requires everyone to work 20 hours, 7 days a week, live at the plant, etc.) A, single, has been an active member of the Social Security System for the past 20 months. She became pregnant out of wedlock and on her 7th month of pregnancy, she was informed that she would have to deliver the baby through caesarean section because of some complications. Can A claim maternity benefits? If yes, how many days can she go on maternity leave? If not, why is she not entitled? (3%) Ans. Yes, she is entitled; provided that she must have paid at least 3 monthly contributions in the 12-month period immediately proceeding the semester of her childbirth in order to be entitled to a maternity benefit equivalent to 100% of her average salary credit for 6she 0 days or 78 days in case of caesarean.

Provided further, that she has given the required notification of her pregnancy through her employer if employed, or to the SSS if separated, voluntary or self-employed member. A, a worker at ABC Company, was on leave with pay on March 31, 2010. He reported for work on April 1 and 2, Maundy Thursday and Good Friday, respectively, both regular holidays. Is A entitled to holiday pay for the two successive holidays? Explain. (3%) Yes. The implementing rules on successive holiday pay as promulgated by DOLE expressly provides that when an employee is on leave with pay on the day prior to the successive holidays, the employee shall be entitled to a pay on the succeeding holidays. Thus, A is entitled to the pay of the two succeeding holidays. Company XYZ has two recognized labor unions, one for its rank-and-file employees (RFLU), and one for supervisory employees (SELU). Of late, the company instituted a restructuring program by virtue of which A, a rank-and-file employee and officer of RFLU, was promoted to a supervisory position along with four (4) other colleagues, also active union members and/or officers. Labor Union KMJ, a rival labor unionseeking recognition as the rank-and-file bargaining agent, filed a petition for the cancellation of the registration of RFLU on the ground that A and her colleagues have remained to be members of RFLU. Is the petition meritorious? Explain. (3%) The petition has no merit. The latest amendment to the Labor Code brought about by R.A. 9481 has reduced the grounds for cancellation of union registration to 3, which do not include the one cited by KMJ. In addition, the same amendment now automatically excludes all ineligible employees from the membership list of a union. In other words, A and his 4 colleagues need not even renounce their RFLU membership because the law had already done so upon their promotion. A is a member of the labor union duly recognized as the sole bargaining representative of his company. Due to a bargaining deadlock, 245 members of the 500-strong union voted on March 13, 2010 to stage a strike. A notice of strike was submitted to the National Conciliation and Mediation Board on March 16, 2010. Seven days later or on March 23, 2010, the workers staged a strike in the course of which A had to leave and go to the hospital where his wife had just delivered a baby. The union members later intimidated and barred other employees from entering the work premises, thus paralyzing the business operations of the company. A was dismissed from employment as a consequence of the strike. A. Was the strike legal? Explain. (3%) B. Was A s dismissal valid? Why or why not? (3%)

A. The strike is illegal. For strikes based on bargaining deadlock, the Labor Code requires observance of a 30day cooling-off period, which was not followed here. The Supreme Court has consistently held that observance of the 15/30 cooling-off and 7-day hiatus before strike are all mandatory periods. Ergo, nonobservance, as in this case, makes the strike illegal.

B. No, A's dismissal was not valid. A is an ordinary union member and, under the Labor Code, only those who actually participate in unlawful or prohibited acts are deemed to have lost their employment status. The facts clearly state that A was in the hospital when the prohibited acts were committed by the strikers. A was an able seaman contracted by ABC Recruitment Agency for its foreign principal, Seaworthy Shipping Company (SSC). His employment contract provided that he would serve on board the Almieda II for eight (8) months with a monthly salary of US$450. In connection with his employment, he signed an undertaking to observe the drug and alcohol policy which bans possession or use of all alcoholic beverages, prohibited substances and un-prescribed drugs on board the ship.The undertaking provided that: (1) disciplinary action including dismissal would be taken against anyone in possession of the prohibited substances or who is impaired by the use of any of these substances, and (2) to enforce the policy, random test sampling would be done on all those on board the ship. On his third month of service while the Almieda II was docked at a foreign port, a random drug test was conducted on all members of the crew and A tested positive for marijuana. He was given a copy of the drug test result. In compliance with the company s directive, he submitted his written explanation which the company did not find satisfactory. A month later, he was repatriated to the Philippines. Upon arrival in the Philippines, A filed with the National Labor Relations Commission (NLRC) a complaint against the agency and the principal for illegal dismissal with a claim for salaries for the unexpired portion of his contract.

A. Was A s dismissal valid?

Explain. (3%)

B. Is his claim for salaries for the unexpired portion of his contract tenable? Explain. (3%) A. A s dismissal was valid. The routine test administered to the crew is considered a valid exercise of management prerogative in order to enforce the drug and alcohol policy of SSC. Since A had voluntary agree also to such policy, he is, therefore, bound by the same. Consequently, his failure to comply thereof constitutes serious misconduct which is a just cause for termination under the law. B. No. His claim is untenable because only those seafarers whose dismissal is considered invalid can claim their salaries for the unexpired portion of his contract. ABC company and U labor union have been negotiating for a new Collective Bargaining Agreement (CBA) but failed to agree on certain economic provisions of the existing agreement. In the meantime, the existing CBA expired. The company thereafter refused to pay the employees their midyear bonus, saying that the CBA which provided for the grant of midyear bonus to all company employees had already expired. Are the employees entitled to be paid their midyear bonus? Explain your answer. (3%) Yes, the employees are entitled to receive the bonus. The duty to bargain includes the duty to respect an existing CBA and maintain the status quo until a new one is negotiated. This is the so-called Automatic

Renewal rule expressed in Art. 253 and implied in Art. 253-A. Thus, ABC is obliged to continue to give the midyear bonus. A was working as a medical representative of RX pharmaceutical company when he met and fell in love with B, a marketing strategist for Delta Drug Company, a competitor of RX. On several occasions, the management of RX called A s attention to the stipulation in his employment contract that requires him to disclose any relationship by consanguinity or affinity with co- employees or employees of competing companies in light of a possible conflict of interest. A seeks your advice on the validity of the company policy. What would be your advice? (3%) I will advise A to disclose his relationship with B. The Supreme Court has already settled this issue in the Duncan Case when it upheld as reasonable a company policy prohibiting employees from marrying anyone working for a competing firm. According to the Court, a reasonable business interest is sufficient to justify dismissal pursuant to such policies. If termination could even be upheld on this ground, with more reason for a policy that simply requires disclosure of relationships that present conflict of interest. A, an employee of XYZ Cooperative, owns 500 shares in the cooperative. He has been asked to join the XYZ Cooperative Employees Association. He seeks your advice on whether he can join the association. What advice will you give him? (3%) He can join the association unless the purpose of which is for bargaining purpose/s. As a shareholder and partowner of the cooperative, he cannot join a labor union. As held in one case, a cooperative member-employee cannot bargain against himself . Because of continuing financial constraints, XYZ, Inc. gave its employees the option to voluntarily resign from the company. A was one of those who availed of the option.On October 5, 2007, he was paid separation benefits equivalent to seven (7) months pay for his six (6) years and seven (7) months of service with the company and he executed a waiver and quitclaim. A week later, A filed against XYZ, Inc. a complaint for illegal dismissal. While he admitted that he was not forced to sign the quitclaim, he contended that he agreed to tender his voluntary resignation on the belief that XYZ, Inc. was closing down its business. XYZ, Inc., however, continued its business under a different company name, he claimed. Rule on whether the quitclaim executed by A is valid or not. Explain. (3%) The quit claim is valid. There was no fraudulent inducement here or anything that vitiated consent. By his own admission, A said as much -- that he was not forced to tender his resignation. That the company continued the business under a different name is of no moment. To be sure, XYZ Inc. could fold up under stress or not and its shareholders could just as easily put up an identical company without violating any law. In both situations, the Doctrine of Piercing the Veil of Corporate Identity could not be applied because the facts do not clearly show that the successor was established to defeat public convenience, justify a wrong, or defend a crime.

Employees of an appropriate collective bargaining unit who are not members of the recognized collective bargaining agent may be assessed reasonable fees equivalent to the dues and other fees paid by the members of the recognized collective bargaining agent. His cause of action is breach of contract. from where he would take a flight to the USA to join the cruise ship MS Carnegie. XYZ still had not deployed him for no valid reason. No requirement of written authorization from the non-union employees is necessary if the non-union employees accept the benefits resulting from the CBA. more than three months after A secured his exit clearance from the POEA for his supposed departure on January 15. or FALSE if the statement is false. the general rule that quit claims are valid and enforceable must be upheld. Yes. A is entitled to relief. 2008. this fact is immaterial. he receives the benefits under the CBA that XYZ-EU had negotiated with the company. (5%) [a] An employment contract prohibiting employment in a competing company within one year from . While it is true that the pro-forma contract expressly stipulates that employment relationship shall only commence after A has left Manila. otherwise. However. Inc. Under the standard employment contract of the Philippine Overseas Employment Administration (POEA). under the Migrant Workers and Overseas Filipinos Act as amended. Therefore. before the appropriate regional arbitration branch of the NLRC. There is breach of contract here and. which renders moot all issues related to his employment status. if such non-union members accept the benefits under the collective bargaining agreement. A is entitled to receive the unexpired portion of his employment contract or rather. (3%) A's claim is not meritorious. Although A is a member of rival union XYR-MU. On December 12. Under the aforecited law. Explain your answer in not more than two (2) sentences. his employment was to commence upon his actual departure from the port in the point of hire. his salary for the entire contract period. A signed a contract to be part of the crew of ABC Cruises. /////////////// I TRUE or FALSE.Unless acts vitiating consent are clearly proven. he would be unjustly enriching himself by benefiting from employment conditions negotiation by XYZ-EU. Explain whether his claim is meritorious. 2009. through its Philippine manning agency XYZ. it is clear that A is obligated to pay said fees to XYZ-EU. Answer TRUE if the statement is true. A is employed by XYZ Company where XYZ Employees Union (XYZ-EU) is the recognized exclusive bargaining agent. A can sue the recruitment agency. in this case. XYZ-EU assessed A a fee equivalent to the dues and other fees paid by its members but A insists that he has no obligation to pay said dues and fees because he is not a member of XYZ EU and he has not issued an authorization to allow the collection. which is solidarily liable with the principal. Manila.

00. . [b] All confidential employees are disqualified to unionize for the purpose of collective bargaining. Article XIII of the Constitution that are not covered by Article 3 of the Labor Code on declaration of basic policy.separation is valid. The NLRC explained that the doubt may not necessarily be resolved in favor of labor since this case involves the application of the Rules on Evidence. the NLRC reversed the Labor Arbiter holding that Article 4 applies only when the doubt involves implementation and interpretation of the Labor Code provisions. ruled in favor of Clarito upon finding Juan s testimony doubtful. the NLRC is correct.000. runaway shop will only be an of ulp if the management transferred its business to discriminate the former company's union activities or to avoid their obligation towards the employees in the old firm. including conciliation. and the period is only for one year. otherwise. which requires the utmost trust and confidence of the employer. with respect to its contention that Article 4 is not applicable in this case. such act is valid. [c] A runaway shop is an act constituting unfair labor practice. In the illegal dismissal case instituted by Clarito. the provision in the Labor Code which states that Labor Arbiter shall use every and reasonable means to ascertain the facts in the case will apply. . the Labor Arbiter. 2. including the right to strike in accordance with law. collective bargaining and negotiations. e)true. (2%) [b] Clarito. 3. (the same lang ang explaination sa answer) II [a] Enumerate at least four (4) policies enshrined in Section 3. confidential employees are treated as similar to managerial employees because of the nature of their work. d) true. but the new bargaining unit may only negotiate to shorten the existing cba because they can only negotiate for a new cba during the freedom period. Is the NLRC correct? Reasons. furthermore the terms of the contract is reasonable. The State shall promote the principle of shared responsibility between workers and employers and the preferential use of voluntary modes in settling disputes. (3%) The 4 policies are: 1. under the labor code. a) true.the contract is valid so as to protect the former employer's interest. the substitutionary doctrine prohibits a new collective bargaining agent from repudiating an existing collective bargaining agreement. [e] The visitorial and enforcement powers of the DOLE Regional Director to order and enforce compliance with labor standard laws can be exercised even when the individual claim exceeds P5. b) true. On appeal. and shall enforce their mutual compliance therewith to foster industrial peace.Yes. It shall guarantee the rights of all workers to self-organization. the prohibition is to a specified competing firm and not to all kinds of employment. c)false. and peaceful concerted activities. They shall also participate in policy and decision-making processes affecting their rights and benefits as may be provided by law. Instead. [d] In the law on labor relations. citing Article 4 of the Labor Code. an employee of Juan.. was dismissed for allegedly stealing Juan s wristwatch. not the Labor Code.

(2%) and [c] Even assuming that they are liable. moral. in breach thereof. Rule on the validity of the foregoing arguments with reasons. why not? (3%) The services of a project employees are co-terminus with the project and may be terminated upon the end or completion of the project for which they were hired. Aggrieved. their liability would. be equivalent to Richie s salary for only six (6) months. SR and MRA are already solidarily bound by the deployment of Richie. a driver-mechanic. No prior notice of termination is required if the termination is brought about by completion of the contract or phase thereof for which the worker has been engaged. No. SR and MRA traversed Richie s complaint.The contention is of no moment. in the absence of other clear and convincing proof. His contract of employment specifically referred to him as a project employee. the NLRC erred in reversing the decision of the Labor Arbiter since it is well-settled that in a dismissal case. to work in Qatar for a period of two (2) years. . they become liable to Richie.E. at most. Richie filed with the NLRC a complaint against SR and MRA for damages corresponding to his two years salary under the POEA-approved contract. no employer-employee relationship was established between them.R.However. 8. 156748. Clarito s dismissal. and assigned to build a small house in Alabang. (3%). This is because completion of the work or project automatically terminates the employment. it is the employer who has the burden of proving the legality of the dismissal of the employee. what are the due process requirements that the BIC must satisfy? If not. In this case. is illegal. there is no showing that Juan was able to discharge this burden. Sept. Construction Corporation. C. The deployment period already commenced from the moment the contract was already approved by the POEA. 2004). although it did not provide any particular date of completion of the project. IV Diosdado. not two years. raising the following arguments: [a] The Labor Arbiter has no jurisdiction over the case. soon after the contract was approved by POEA. However. MRA advised SR to forego Richie s deployment because it had already hired another Filipino drivermechanic. In other words. Thus. Richie. was recruited by Supreme Recruiters (SR) and its principal. A. a carpenter. G. B. Is the completion of the house a valid cause for the termination of Diosdado s employment? If so. including claims for actual.The Labor Arbiter has newly acquired jurisdiction over monetary claims arising out of by virtue of any law or contract involving FILIPINO WOKRKERS FOR OVERSEAS DEPLOYMENT. Mideast Recruitment Agency (MRA). Diosdado being a project employee whose . was hired by Building Industries Corporation (BIC). who had just completed his contract in Qatar. exemplary and other forms of damages. (Cioco vs. B. (2%) [b] Because Richie was not able to leave for Qatar. .

cannot be dismissed from the service for breach of trust. a legitimate labor organization. . Inday. B. is not tantamount to abandonment. which says that one of the duties of a domestic helper is to minister to the employer s personal comfort and convenience. deliberate. Mere absence or failure to report for work. or with the custody. his employment legally ends upon completion of said project. [a] Is Inday s refusal tenable? Explain. It turned outthat the reason for his absence was his incarceration after he was mistaken as his neighbor s killer. As a result. to give him a private massage. and unjustified refusal of the employee to resume his employment. handling. Domingo was dismissed from employment for fraud or willful breach of trust. (2%) Yes. even after notice to return. Baldo returned to his employer and demanded reinstatement and full backwages. the labor union went on strike. Kim. VII Johnny is the duly elected President and principal union organizer of the Nagkakaisang Manggagawa ng Manila Restaurant (NMMR). he is wrong. or care and protection of the employer s property. claiming that he is not a confidential employee and. but clearly. a bus conductor of San Juan Transportation Company.Yes. (2%) A. Here. V [a] Baldo was dismissed from employment for having beenabsent without leave (AWOL) for eight (8) months. a househelper from a homeworker. On the same day Johnny received the notice of termination. (3%) [b] Distinguish briefly. Is Domingo correct? Reasons. therefore. asked his domestic helper.nature of employment was fully informed about at the time of his engagement. (3%) [b] Domingo. Abandonment as a just ground for dismissal requires clear. Baldo s absence cannot be deemed as abandonment. his long-time crush. Giving an employer s a massage is not considered necessary for the maintenance and enjoyment of thereof. Domingo contests his dismissal. intentionally did not issue a ticket to a female passenger.No. Albert. When Inday refused. Domingo is entrusted with the custody of the tickets. A confidential employee is one entrusted with confidence on delicate matters. a 40-year old employer. . Eventually acquitted and released from jail. Is Baldo entitled to reinstatement and backwages? Explain your answer. Albert showed her Article 141 of the Labor Code. He was unceremoniously dismissed by management for spending virtually 95% of his working hours in union activities. the term personal comfort in the provision means those which are usually necessary or desirable for the maintenance and enjoyment of the employer s home. willful. .

No. a security guard of Jaguar Security Agency (JSA). a. After six (6) months of being on floating status. b. JSA hires you as lawyer. can it still be compelled to reinstate him pending appeal even if it has posted an appeal bond? (2%) [b] Can the order of reinstatement be immediately enforced in the absence of a motion for the issuance of a writ of execution? (2%) [c] If the order of reinstatement is being enforced. The Labor Arbiter upheld Alexander s claim of constructive dismissal and ordered JSA to immediately reinstate Alexander. the requirement of cooling-off period is required before a strike to be held. Alexander sought immediate enforcement of the reinstatement order while the appeal was pending. c. Thereafter. An order of reinstatement is not self-executing. could not be given any assignment because no client would accept him. and seeks your advice on the following: [a] Because JSA has no client who would accept Alexander. There is no union busting in this case because only the elected president was terminated and the termination did not affect other elected members of the union.Management filed an action to declare the strike illegal. He had a face only a mother could love. what should JSA do in order to prevent reinstatement? (2%) Explain your answers. VIII Alexander.) Decision of the labor arbiter in unlawful dismissal cases is a condition precedent for the filing of ULP in the regular courts. Would the Labor Arbiter s finding be sufficient to secure the Manager s conviction? Why or why not? (2%) The company's contention would be correct. (2%) and [b] The union went on strike without complying with the strike-vote requirement under the Labor Code. Therefore. . No. contending that: [a] The union did not observe the cooling-off period mandated by the Labor Code. However. substantial evidence is sufficient. Alexander sued JSA for constructive dismissal. JSA appealed the decision to the NLRC. In labor cases. It would be grossly arbitrary in this case to require JSA to reinstate Alexander in view of the fact that no client wold ever accept him. The decision became final. (2%) Rule on the foregoing contentions with reasons. Thus. there is no union busting as the existence of the union is not threatened. [c] The Labor Arbiter found management guilty of unfair labor practice for the unlawful dismissal of Johnny. the deicision of the arbiter is not sufficient to convict the manager because it requires proof beyond reasonable doubt. the requirement of notice and consent to strike vote and cooling period should be followed by the union to have a valid strike. Principle of non-oppression between management and labor applies in this case. the NMMR filed a criminal case against the Manager of Manila Restaurant. it needs to be carried out by the issuance of a writ of execution in order for it to become effective and enforceable.

member of the cooperative is not deemed an employee for purposes of compulsory coverage under SSS.c. in this case. lockouts or other concerted activities of the employees or management. Unless otherwise agreed by the parties in writing. 6727 issued by the Secretary of Labor and Employment pursuant to the authority granted by Section 13 of the said law. a. (2%) a. and contractuals who have no employer and employee relationship with the agency they serve. is made clear in the rules implementing Republic Act No. members thereof are not considered employees and outside the compulsory coverage of SSS. a strike is illegal if based on alleged salary distortion. may opt to incorporate Alexander into its payroll if it finds that reinstatement to work at conditions prevailing prior to his dismissal is not feasible. IX [a] What is wage distortion? Can a labor union invoke wage distortion as a valid ground to go on strike? Explain. it shall be referred to the appropriate branch of NLRC. (2%) [b] Can a member of a cooperative be deemed an employee for purposes of compulsory coverage under the Social Security Act? Explain. thru voluntary arbitration. or other logical bases of differentiation. irrespective of employment status. except members of the Armed Forces and Phil. The legislative intent that solution to the problem of wage distortions shall be sought by voluntary negotiation or arbitration.) Membership in the GSIS shall be compulsory for all employees receiving compensation who have not reached the compulsory retirement age. length of service. This is one of the options granted to an employer.) No. X [a] State briefly the compulsory coverage of the Government Service Insurance Act. 6727 otherwise known as the Wage Rationalization Act. (2%) [b] What procedural remedies are open to workers who seek correction of wage distortion? (2%) Ans. subject to the condition that they must settle first their financial obligation with GSIS.) Under Article 124 of the LC.) "Wage distortion" is a situation where an increase in prescribed wage rates results in the elimination or severe contraction of intentional quantitative differences in wage or salary rates between and among employee groups in an establishment as to effectively obliterate the distinctions embodied in such wage structure based on skills. Cooperative organized under RA 6938. Consequently. b. the employers and workers shall endeavor to correct such distortions. In cases. otherwise known as "The Cooperative COde of the Phils" are composed of members. if it remains unresolved after 10 calendar days of conciliation. National Police. b. such dispute shall be decided by voluntary arbitrators within 10 calendar days from the time said dispute was referred to voluntary arbitration. any dispute arising from wage distortion shall be resolved thru the grievance procedure under the CBA and if it remains unresolved. . Any dispute arising therefrom shall be settled thru NCMB and. JSA. Under Republic Act No. where there are no CBA or organized labor unions. and not by strikes.

theater. As a rule children below fifteen (15) years of age cannot be employed except: (1) When a child works directly under the sole responsibility of his parents or legal guardian and where only members of the employer's family are employed or (2) When a child's employment or participation in public & entertainment or information through cinema. radio or television is essential False. the waiver must be recognized as a valid and binding undertaking. [d] A waiver of the right to claim overtime pay is contrary to law. . [e] Agency fees cannot be collected from a non-union member in the absence of a written authorization signed by the worker concerned. will be a ground for administrative liability under Civil Service Law. . False. Responding to the call. and the consideration for the quitclaim is credible and reasonable. the law requires that all employers shall obtain mandatory unemployment insurance coverage for all their employees. (5%) [a] Seafarers who have worked for twenty (20) years on board the same vessel are regular employees. the President stressed the need to provide an investor-friendly business environment so that the country can compete in the global economy that now suffers from a crisis bordering on recession. Congress passed two innovative legislative measures. XII In her State of the Nation Address. The constitutionality of the two (2) laws is challenged in court. with full understanding of what he was doing. No requirement of written authorization from the non-union employee is imposed. The employee's acceptance of benefits resulting from a collective bargaining agreement justifies the deduction of agency fees from his pay and the union's entitlement thereto. or FALSE if the statement is false. As judge.PART II XI TRUE or FALSE. how will you rule? (5%) . Any violation thereof. Government employees are prohibited from striking because their employment is fixed by law. Explain your answer in not more than two (2) sentences. However. seafarers are considered contractual employees and cannot be considered as regular employees under the Labor Code. Answer TRUE if the statement is true. [c] Government employees have the right to organize and join concerted mass actions without incurring administrative liability. [b] Employment of children below fifteen (15) years of age in any public or private establishment is absolutely prohibited.False. False. Their employment is governed by the contracts they sign every time they are rehired and their employment is terminated when the contract expires.False. and (2) a law allowing contractualization in all areas needed in the employer s business operations. to soften the impact of these new measures. Where it is shown that the person making the waiver did so voluntarily. namely: (1) a law abolishing the security of tenure clause in the Labor Code.

(a) In a work-related or employment environment. or privileges. Mariquit danced on the same occasion with Go. Renan told Maganda that most. if not all.Unconstitutional. by the way. (2%) hi!i'm sorry i had to use the word "accepted" in a general sense to describe the fact that there was no sexual harassment because the act/request/favor did not result in an intimidating. sexual harassment is committed when: (1) The sexual favor is made as a condition in the hiring or in the employment. or offensive environment for the employee. No. of the lady supervisors in the firm are where they are now. XIII Atty. Renan asked Maganda to go out with him for dinner and ballroom dancing. Miss Maganda. segregating or classifying the employee which in a way would discriminate. Renan requested Maganda to stay. would. terms. Thereafter. promotions. a CPA-lawyer and Managing Partner of an accounting firm. deprive or diminish employment opportunities or otherwise adversely affect said employee. Renan. slighted by Renan s revelations about them. During all these. hostile or offensive environment. by her claim. because of his favorable endorsement. soriano G.R. 166039 . borrowing from the SC: "Yet still. (2) The above acts would impair the employee s rights or privileges under existing labor laws. albeit allegedly thru force. constituent assembly or people's initiative. succeeded in having him expelled from the firm. after liberating herself from the clutches of the person who offended her. purportedly to discuss some work assignment. in very productive and lucrative posts. hostile. or the refusal to grant the sexual favor results in limiting. conducted the orientation seminar for newly-hired employees of the firm. on the same occasions the attorney was hinting/implying that he has the power to influence/expedite promotion. among them. which can only be done through a consitutional convention. he persuaded her to accompany him to the mountain highway in Antipolo for sight-seeing." digitel vs.related or employment environment? Reasons. But Mariquit did not. or (3) The above acts would result in an intimidating. (3%) [b] The lady supervisors in the firm. whose vagina had earlier been poked several times without her consent and against her will. Will the case prosper? Reasons. but after all these the woman did not raise hell. Renan then filed with the Arbitration Branch of the NLRC an illegal dismissal case with claims for damages against the firm. After the seminar. Congress cannot alter constitutionally protected rights through a legislation as this will result to an indirect amendment of the constitution. raise hell. here are the elements of SH in a work-related or employment environment. during which he pressed her close to him and moved his hand across her back to feel her body. Any woman in her right mind. conditions. or in granting said individual favorable compensation. it will be gleaned that the request for accompaniment was accepted in three instances. re-employment or continued employment of said individual. Left alone in the training room. applying this to the facts above. [a] Did Renan commit acts of sexual harassment in a work.

and not with MMSI. The Service Agreement warrants. a job contractor registered with the Department of Labor and Employment. against whom may these workers file their claims? Explain. [a] Is the Service Agreement between Jolli-Mac and MMSI legal and valid? Why or why not? (3%) [b] If the cashiers. Union D 33 5. Union A 70 2. it was revealed. 2.000. (2%) A. Further. in its operations. Union B 71 3. (MMSI). No union 180 . and service incentive leave pay.up capital of P2. and one of its major owners was a member of the Board of Directors of Jolli-Mac. Union C 42 4. B. Inc. 13th month pay.000 pesos is not a substantial capital to supply enough qualified and trained personnel for Jolli-Mac s restaurants which is the largest food chain in the country.000. The contending parties obtained the following votes: 1. holiday pay.XIV Jolli-Mac Restaurant Company (Jolli-Mac) owns and operates the largest food chain in the country.Mac. It engaged Matiyaga Manpower Services. and that it is exclusively responsible to these personnel for their respective salaries and all other mandatory statutory benefits.They should file their claim against Jolli-Mac because the employer-employee relationship exists between them. based on research conducted.Mac. that MMSI had no other clients except Jolli. which is considered by law as a mere agent of Jolli-Mac. After the contract was signed.000. including overtime pay. consisting of cashiers. . a certification election was ordered conducted by the Med-Arbiter of the Region. delivery boys and food servers are not paid their lawful salaries. -No. that it would train and determine the qualification and fitness of all personnel to be assigned to Jolli. among others. it is a labor-only contracting because MMSI is merely perrforming activities which are directly related to the main business of the Jolli-Mac. motorcycle delivery boys and food servers.00. XV Among the 400 regular rank-and-file workers of MNO Company. to provide its restaurants the necessary personnel. that MMSI has a paid. that it would provide these personnel with proper Jolli-Mac uniforms.

In the case at bar. although Union B garnered the highest number of votes among the contending unions. . it did not received the majority of the valid votes casted in the election. Hence.there was a valid election. as mandated in the above mentioned provision of law. Spoiled votes 4 There were no objections or challenges raised by any party on the results of the election. b) No. While it is true that 180 of the workers a clear plurality of the voters have chosen not to be represented by any union. what would you do to effectively achieve the purpose of certification election proceedings? Discuss. (3%) a) No. . Hence. ART. [a] Can Union B be certified as the sole and exclusive collective bargaining agent among the rank-and-file workers of MNO Company considering that it garnered the highest number of votes among the contending unions? Why or why not? (3%) [b] May the management or lawyer of MNO Company legally ask for the absolute termination of the certification election proceedings because 180 of the workers a clear plurality of the voters have chosen not to be represented by any union? Reasons. Union B cannot be certified as the sole and exclusive collective bargaining agent among the rankand-file workers of MNO Company. labor code as amended. I would conduct a run-off election. to terminate the proceedings would clearly disenfranchise the employees by denying them their choice to be represented by a union. Under Art 256. a run-off election shall be conducted between the labor unions receiving the two highest number of votes: Provided.6. Union B failing to receive the majority votes of the valid votes casted failed to qualify to be certified as the sole and exclusive bargaining agent of the employees. the remaining votes casted in favor of the contending union in sum have clearly shown that the majority of the employees wanted to be represented by a union. c) As the duly designated election officer in this case. A run-off election is in order when these requisites concur: .that said election provides for 3 or more choices. it is stated that : When an election which provides for three or more choices results in no choice receiving a majority of the valid votes cast. and . states that The labor union receiving the majority of the valid votes cast shall be certified as the exclusive bargaining agent of all the workers in the unit.that the total number of votes for all contending unions is at least fifty percent (50%) of the number of votes casted.that none among the choices received a majority of the valid votes casted. (3%) [c] If you were the duly designated election officer in this case. . 256 of the labor code as amended. the management or lawyer of MNO Company cannot legally ask for the absolute termination of the certification election proceedings. that the total number of votes for all contending unions is at least fifty percent (50%) of the number of votes cast.

(3%) [c] Is management s withdrawal of the fringe benefits valid? Reasons. 2008. As expected.000 per year for the purchase of medicines and hospitalization assistance of P10. provided the employee has worked for at least 20 days within the particular month. On March 30. what legal recourse or action would you advise? Reasons. However. effective immediately. 2008. I would call for the run-off election in consonance with Art 256. the Union declared a deadlock. no CBA had been concluded. that due to the CBA expiration on December 31. no union filed a petition for certification election during the freedom period. on April 3.000 and P1. entered into a Collective Bargaining Agreement (CBA) effective for the period January 1. 4) Rice Subsidy of P600 per month. 2007. the Company and the Union started negotiations to renew the CBA. will a petition for certification election filed by another legitimate labor union representing the rank-and-file employees legally prosper? Reasons. effective January 1. (3%) [a] When was the freedom period referred to in the foregoing narration of facts? Explain. Despite mutual good faith and earnest efforts. 2007. XVI The Company and Triple-X Union. 2002 to December 31. (2%) [b] After April 3. they could not agree. 2007. 3) Medical subsidy of P3.hence. . As early as October 2007. the significant improvements in wages and other benefits obtained by the Union were: 1) Salary increases of P1. Management learned that the Union would declare a bargaining deadlock on the next scheduled bargaining meeting. respectively. (2%) . 2008.The facts of the case show that all the requisites are present. the certified bargaining agent of rank-and-file employees.500. a run-off election is in order. LC as amended. as the officer-in-charge. 2) Vacation Leave and Sick Leave were adjusted from 12 days to 15 days annually for each employee.November 2007 or 60 days prior to the expiry date of the CBA. 2007. management issued a formal announcement in writing. 2006 and January 1. Therefore.200 monthly. (2%) [d] If you were the lawyer for the union. posted on the bulletin board. which is December 31. In the afternoon of the same day. For the 4th and 5th years of the CBA. and 5) Birthday Leave with Pay and Birthday Gift of P1. [a] When was the freedom period referred to in the foregoing narration of facts? Explain. all fringe benefits contained therein are considered withdrawn and can no longer be implemented.000 per year for actual hospital confinement.

XVIII [a] Cite four (4) instances when an illegally dismissed employee may be awarded separation pay in lieu of reinstatement. he was not afforded due process by management prior to his termination.No. (3%) [b] Is Alfredo entitled to reinstatement and full backwages? Why or why not? (3%) a.) The employer must observe the twin due process requirements of notice and hearing. (2%) a) 1) If there already exists strained relationships 2) If the employee has found new employment 3) If employee refuses to be reinstated 4) If there is already a cessation of buiness b) the Union Security Clause in a way provides or fortifies the employees' right to Security of Tenure .As a lawyer. what legal recourse or action would you advise? Reasons. Moreover. (3%) . I would advised the union to hold a strike and then seek for an improved offer balloting. alleging that although there may be just cause. (3%) [b] Explain the impact of the union security clause to the employees right to security of tenure. (2%) . [a] What are the twin requirements of due process which the employer must observe in terminating or dismissing an employee? Explain. [d] If you were the lawyer for the union. Under the Hold-over principle.No. He demands reinstatement with full backwages. Although generally an illegally dismissed employee is entitled to reinstatement and full backwages the same does not apply in this case since the termination was for a just cause. there is pending bargaining dead lock. thus. [c] Is management s withdrawal of the fringe benefits valid? Reasons. 2008. It means that the employer should inform the employee of the nature and cause of the accusations against him and to accord him ample opportunity to rebut the claims against him by allowing him to present evidence on his behalf. the benefits under the said CBA continues until a new CBA is created. Thus.[b] After April 3. the CBA still exist until one has been entered into. (3%) . it is barred under the dead lock bar rule. it will not prosper as it is filed outside the freedom period. will a petition for certification election filed by another legitimate labor union representing the rank-and-file employees legally prosper? Reasons. He filed suit for illegal dismissal. No. XVII Alfredo was dismissed by management for serious misconduct.

Moreover. The principle of maintaining the status quo demands that all terms and conditions of employment remain the same during collective bargaining after a CBA has expired. This does not mean that the expired CBA continues in effect. insofar as Sec. Section 3 of the Philippine Constitution. rather. (3%) b) Explain the extent of workers' right to participate in policy and decision-making process as provided under Article XIII. while the parties continue to negotiate for a successor agreement. sometimes referred to as an "evergreen clause" purports to continue the terms of the contract or agreement indefinitely until the parties renegotiate and ratify a successor agreement. Once a CBA expires. and must be subsisting members in a non-stock corporation. Does it include membership in the Board of Directors of a corporation. it means that the conditions under which the workers worked endure throughout the collective bargaining process. An automatic renewal clause is a cost item and it therefore does not bind the parties unless it has been ratified by the body. automatically disqualifies them as directors. a majority of them must be Philippine residents. In the absence of a binding automatic renewal clause. This participation can be through collective bargaining. grievance machineries. The workers have the right to participate in policy and decision-making process on matters affecting their rights and benefits. (3%) An automatic renewal clause. a) What issues or disputes may be the subject of voluntary arbitration under the Labor Code? (4%) b) Can a dispute falling within the exclusive jurisdiction of the Labor Arbiter be submitted to voluntary arbitration? Why or why not? (3%) . This right does not automatically include the right to membership in the Board of Directors of a corporation. a CBA ends on its termination date. Cessation as stockholders or member. (See discussion here) II. 23 of the Corporation Code requires the directors to be owners of at least one share of stock in a stock corporation. voluntary modes of settling disputes.since automatic membership in a union would afford him protection against any employer harassment/ intimidations and threats ////////////////// I I a) Explain the automatic renewal clause of collective bargaining agreements. their obligations to one another are governed by the doctrine of maintaining the status quo. and conciliation proceedings mediated by government. respectively.

they cannot avail of the normal grievance machineries provided for under the CBA since the same does not apply to them. No. only disputes involving the union and the company shall be referred to the grievance machinery and voluntary arbitrators (Sanyo vs. a) Voluntary arbitrators of voluntary arbitration panels have original and exclusive jurisdictoin to hear and decide: (a) all unresolved grievances. Oct. arising from the interpretation or implementation of the CBA. These two instances are especially true if both the union and the employer refuse to follow the grievance procedure (Vivero vs. CA. G. Hence. All grievances unresolved within seven days from the date of its submission for resolution to the last step of the grievance machinery are automatically referred to voluntary arbitration. such violations are no longer treated as unfair labor practices. 128938. (b) violations of a CBA. 211 SCRA 361). a religious objector or a minority union member may be affected by certain provisions of the CBA. As these employees are not union-members. b) Yes.R. Another example: The parties to a CBA are the union and the company.c) Can a dispute falling within the jurisdiction of a voluntary arbitrator be submitted to compulsory arbitration? Why or why not? (3%) II. the cases enumerated thereto may be submitted to voluntary arbitration by agreement by the parties under Article 262. . all other disputes including unfair labor practices and bargaining deadlocks. 2000). (c) upon agreement of the parties. c) Yes. Thus. the labor arbiter has jurisdiction. except those which are gros in character. 24. Canizares. because to rule otherwise may be prejudicial. This is because the law prefers voluntary to compulsory arbitration. and those arising from the interpretaton or enforcement of company personnel policies submitted to the Grievance Machinery provided for the purpose in the CBA. (See discussion here) III. Although Article 217 of the Labor Code speaks of exclusive and original jurisdiction of Labor Arbiters. as in the case of minority employees who are not covered under the CBA or when both the union and the employer refuse to follow the grievance procedure. To illustrate. but are resolved as grievances under the CBA. Another reason is that the case may not be properly cognizable by the voluntary arbitrator. if a single employee has a grievance against the company. including termination cases.

such contract is valid and shall operate as not to prejudice the security of tenure of an employee as well as their dismissal from employment. under a fixed term employment. so long as the contract of employment was voluntarily agreed upon by the parties and the termination of employment was stated on its term. their constitutional right to security of tenure was violated when they were dismissed without valid. yet in a routine inspection of a labor inspector of the Regional Office of the DOLE found the 5-month term policy of SDS violative of the Labor Code's security of tenure provisions and recommended to the Regional Director the issuance of a compliance order. As a secretary of labor. argued that Lina. et al. et al. B. . and are subject to SDS workplace rules and regulations. in defense. The Regional Director adopted the recommendation and issued a compliance order. because there is no employer-employee relationship exist after the termination of the fixed-term employment contract. (3%) A.to a fixed period of employment and thus waived their right to a full-term tenure.Savoy Department Store (SDS) adopted a policy of hiring salesladies on five-month cycles. C. The day after the expiration of her 5-month engagement. He wrote the Secretary of Labor a letter asking him to assume jurisdiction over the dispute and enjoin the hunger "strike". What answer will you give if you were the Secretary of Labor? (3%) c) Assume that no fixed-term worker complained. The hunger strike should be construed as an exercise of freedom of expression by lina. another person is hired as replacement. agreed . she went on a hunger strike and stationed herself in front of one of the gates of SDS. Decide the dispute. an eyesore and disruptive of SDS' business. SDS. Salesladies attend to store customers. et. a) Lina and 20 other salesladies filed a complaint for illegal dismissal. Lina wore her SDS white and blue uniform and reported for work but was denied entry into the store premises. Lina. Those who refuse the 5-month employment contract are not hired. report at specified hours. Agitated. are considered as a fixed term employee. (4%) b) The owner of the SDS considered the hunger strike staged by Lina.. Soon thereafter. et al. other employees whose 5-month term had also elapsed.prior to engagement . The visitorial power of labor inspector is limited only to inspect whether or not the department store poses a danger to the health and safety of their employees and not to scrutinize the employment contract. At the end of a saleslady's five-month term. wear SDS uniforms. Is the compliance order valid? Explain your answer. i refuse to assume jurisdiction. SDS defense must be sustained. joined Lina's hunger strike. contending that they are SDS' regular employees as they performed activities usually necessary or desirable in the usual business or trade of SDS and thus. The compliance order is not valid being an ultra vires act by the Regional Director. al. just or authorized cause.

(6%) Pedro is already considered a regular employee because his function does not fall with the category of contractual anymore because his services as that was 10 years already. he is deemed a regular employee already. determine the issue of who is the employer of the RSC members. PizCorp can directly impose disciplinary actions on. (See discussion here) V. What is Pedros' status as an employee under the Labor Code? Why? Explain your answer fully. (3%) b) Based on the test/s for employer-employee relationship. on holidays and when there are big affairs at the hotel. it is the law that provides the basis of the existence of ee-er relation and not the parties. RSC assumes --. Super Comfort Hotel employed a regular pool of "extra waiters" who are called or asked to report for duty when the Hotel's volume of business is beyond the capacity of the regularly employed waiters to undertake. a) Is the contractual stipulation that there is no employer-employee relationship binding on labor officials? Why? Explain fully.full obligation for the payment of the salaries and other statutory monetary benefits of its members deployed to PizCorp.000.under the agreement --.000. The Pizza Corporation (PizCorp) and Ready Supply Cooperative (RSC) entered into a "service agreement" wherein RSC. pizcorp is the employer because the most important test to determine ee-er relation which is the power to control is present in the case. in consideration of service fees to be paid by PizCorp. including the power to dismiss. . permissible job contracting or simply. the fact that pizcorp can directly impose disciplinary actions upon the rsc members in case of departure of pizcorp's directives and orders reinforces even more the existence of ee-er relation. If a contractual employee has been working more than the prescribed period as contractual employee without the intention of terminating his services. Is RSC engaged in "labor only" contracting. in other words. 2. However. the erring RSC member/s. if PizCorp is materially prejudiced by any act of the delivery crew that violates PizCorp's directives and orders. will exclusively supply PizCorp with a group of RSC motorcyle-owning cooperative members who will henceforth perform PizCorp's pizza delivery service. The parties also stipulated that there shall be no employer-employee relationship between PizCorp and the RSC members.00. the stipulation in the contract is not valid and binding because the existence of ee-er relation is determined not by the stipulation of the parties but by the facts and the law surrounding the case. (4%) c) Assume that RSC has a paid-up capitalization of P1. He is also called upon to work on weekends. recruitment? (3%) 1.(See discussion here) IV. Pedro has been an "extra waiter" for more than 10 years.

On the day that the union could validly declare a strike. there was no basis for the termination of their employment. equipments and machineries. although the law mentions tools. pizcorp is considered engaged in permissible job contracting because it possesses substantial capital and investment in the form of tools. or if one has commenced. ruling on the following issues: a) Was there a strike? (4%) b) Were the employees simply exercising their constitutional right to petition for redress of their grievances? (3%) c) What are the consequences. On the 3rd day. VI. claiming that they do so in compliance with the Secretary's return-to-work order that binds them as well as the Company. of the day the strike was to start. of the acts of the employees? (3%) VI. The return-to-work order required the employees to return to work within twenty-four hours and was served at 8 a. assuming it has a paid up capital of 1M.m. Decide. The Union officers and members filed a complaint for illegal dismissal arguing that that there was no strike but a protest rally which is a valid exercise of the workers' constitutional right to peaceable assembly and freedom of expression. which fact is absent in the case. The Union members did not return to work on the day the Secretary's ssumption order was served. Hence. by not reporting to work and conducting a protest rally or a mere act which would tend to sabotage the operation of the company. The order at the same time directed the Company to accept all employees under the same terms and conditions of employment prior to the work stoppage.3. ordering the striking workers to immediately return to work. by reporting to work and not actually rendering work. the refusal of the worker to return to work and their holding of continuing protest rally despite the order issued by the Secretary of Labor is in itself constitute a strike. nor on the next day. the existence of the substantial capital of 1M is more than a sufficient compliance with the requirement. if any. the workers reported for work. Strike can be done in different modes. The Company. however. the Secretary of Labor issued an order assuming jurisdiction over the dispute and enjoining the strike. (See discussion here) VI.a Yes. instead.b . equipments and machineries in order to be considered a job contractor. the manifest intent of staging strike is clearly shown by conducting protest rally accompanied by formation of picket line that prevents other workers who wanted to return to work. You are the Labor Arbiter to whom the case was raffled. they held a continuing protest rally against the company's alleged unfair labor practices rally against the company's alleged unfair labor practices. refused to admit them back since they have violated the Secretary's return-to-work order and are now considered to have lost their employment status. some of the employees who wanted to return to work failed to do so. Because of the accompanying picket. In this case.

The workers right to peaceable assembly. (See discussion here) VIII.c The consequence would warrant termination of their services. and end at 5:00 p. She resides in Caloocan City. at 7 a. SSS monthly contributions are compulsory as per the SSS Act. these constitutional rights do not mean to compliment the workers right against their employer. As employer I may even be held liable for so granting the request.m. the Carol (the employee) died due to an accident and not due to illness or injury arising out of employment (Permanent Total Disability). PD 626 (Benefits under the Employees Compensation Program) provides that death benefits is granted to the beneficiaries of employee (who must be a member of SSS)who dies as a result of illness or injury arising out of employment. Her office hours start at 8:00 a. she was sideswiped by a speeding taxicab resulting in her death. Tito Pacencioso is an employee of a foundry shop in Malabon.00 a month.000. . non compliance of his order constitute an undue disregard of his authority which the law provides a stiffer sanction. When the employee on PTD status dies.m.No. He is barely able to make ends meet with his salary of P4. he asked his employer to stop deducting from his salary his SSS monthly contribution. The workers cannot simply feign by their acquiescence making these rights as an excuse to justify their non compliance of the order of the Secretary of Labor. Hence. Employer and employee relation is governed by a distinct law on which procedures of settling disputes are clearly established. Carol's father cannot claim death compensation. The father of Carol filed a claim for employee's compensation with the Social Security System. Carol's father cannot claim. Once the Secretary of Labor assumes jurisdiction of the dispute. would you grant his request? Why? (6%) No. the employer may commit against its employees. Will the claim prosper? Why? (6%) No. (See discussion here) VII. reasoning out that he is waiving his social security coverage. Metro Manila. while waiting for public transport at Rizal Avenue Extension as has been her routine. One day. The death benefits paid to beneficiaries does not apply to her. On July 30. freedom of expression and right to petition for redress of their grievances are not primarily framed to subvert any abuse. The Constitution conferred these rights to all citizens for the purpose of neutralizing the acts of the different branches of the government responsible in running the affairs of the State. Here.m. 2008. his or her beneficiaries shall receive 80% of his or her monthly income benefits plus 10% for every dependent child but not exceeding five (5). If you were Tito's employer. Carol de la Cruz is the secretary of the proprietor of an auto dealership in Quezon City. VI.

for medical reasons. RSC is the employer by Estoppel as per its arrangement as per related problem (See discussion here) X. After 5 years as a flight steward. Santos began struggling with his weight. an RSC member disgusted with the non-payment of his night shift differential and overtime pay. Pepe Santos was an international flight steward of FlySafe Airlines. it also posited that Santos' failure to achieve his ideal weight constituted gross and habitual neglect of duty. He consitently failed to meet his target. as well as willful disobedience to lawful employer orders. with the concommitant obligation to remit SSS premiums? Why? (6%) RSC is considered the employer and thereby accountable to the SSS. a weight of 150 to 170 pounds. especially if its operation requires the maintenance of public safety. He stated in his answer that. Mario. The Labot Arbiter found the dismissal illegal for there was neither gross and habitual neglect of duty nor willful disobedience. On this basis. and enrolled him ins everal weight reduction programs. filed a complaint with the DOLE Regional Office against RSC and PizCorp. Is the Labor Arbiter correct? Why or why not? Explain fully. Santos filed a complaint for illegal dismissal. FSC thus sent him a Notice of Administrative Charge for violation of company standards on weight requirements. A clarificatory hearing was held where Santos fully explained his predicament. Under FSA's Cabin Crew Administration Manual. this does not mean to deprive employer of its right to exercise management prerogative for the purpose of upholding the interest of business. the Regional Director issued a compliance order holding PizCorp and RSC solidarily liable for the payment of the correct differential and overtime pay and ordering PizCorp to report Mario for membership with SSS and remit the overdue SSS premiums. while it is true that the law should at all cost protect the security of tenure of the employees. He was given a 6month grace period. . after which he still failed to meet the weight limit. arguing that the comapany's weight requirement policy is unreasonable and that his case is not a disciplinary but a medical issue (as one get older. he cannot have a rapid weight loss. given his height. The explanation did not satisfy FSA and so it decided to terminate Santos' service for violation of company standards. 30 pounds over the prescribed maximum weight. Santos must maintain. The Airline gave him a one-year period to attain the prescribed weight. FSA defended its policy as a valid exercise of management prerogative and from the point of view of passenger safety and extraordinary diligence required by law of common carriers. Assume that in Problem 5. (6%) No. Santos has not been . he weighed 200 lbs. Who has the obligation to report the RSC members for membership with the SSS. After inspection.(See discussion here) IX. the natural tendency is to grow heavier). it was found that indeed Mario was not getting his correct differential and overtime pay and that he was not declared an SSS member (so that no premiums for SSS membership were ever remitted).

whichever is higher. thus. only then the company finally decided to terminate his services. with prayer for 85% of the collected services or the minimum wage for the appropriate periods. The company dismissed Arnaldo for insubordination. Decide. the General Manager required him to render overtime work to meet the company's export quota. . Respondent terminated the services of the complainants who countered by filing a consolidated complaint for unlawful dismissal. Complainants had worked five (5) years as waitresses in a cocktail lounge owned by the respondent. The finding of Labor Arbiter therefore in this case is not correct. President of "Bisig" Union in feamwear Company. complainants asked respondent to increase their share in the collected service charges to 85%. he was given a chance to explain his side. for the strike was not the direct consequence of any lockout or unfair labor practice. by a man of common understanding. the complainants' individual shares in the collected service charges dipped to below minimum wage level asa consequence of the lounge's marked business decline. Upon his failure. or the minimum wage level. The failure therefore of Santos to meet company s standard despite due notice obviously amount to gross and habitual neglect of duty. With respondent's pripor permission. they could sit with and entertain guests inside the establishment and approrpiate for themselves the tips given by guests. (6%) (See discussion here) _________________ To live outside the law you must be honest . (See discussion here) XI. he should have understand that his company can validly enforce such policy. Decide. The company contended that it was equally faultless. Arnaldo. he was given again another period of six months. Arnaldo begged off.Bob Dylan XII. After observing the procedural due process. A notice was served to him and through a hearing duly accorded. May the company be held liable for the salaries of the supervisors? Decide. After five (5) years. he was given one-year-period to meet the standard of the company. arguing that the supervisors' failure to report for work was not attributable to them. He filed a case for illegal dismissal. The supervisors' union of the same company filed a money claim for unpaid salaries for the duration of the strike. His total disregard of company s policy on the belief that it is unreasonable constitute willful disobedience on his part by ignoring the facts that his company is a common carrier. (6%) (See discussion here) XIII.deprived of due process. They did not receive any salary directly from the respondent but shared in all service charges collected for food and drinks to the extend of 75%. whichever is higher. Thereupon. readied himself to leave exactly at 5:00 pm which was the end of his normal shift to be able to send off his wife who was scheduled to leave for overseas. However. The rank-and-file union staged a strike in the company premises which caused the disruption of business operations. explaining to the General Manager that he had to see of his wife who was leaving to work abroad.

(5 POINTS) 1. it can validly perform its function as a bargaining agent and represent the rank-and-file employees despite the union's dissolution. Respondent company replied that though it is willing. a labor federation. is the basis under the Constitution for adopting it? 1. the rank-and-file employees had already lost interest in joining the local union as they had dissolved it. if any. after having won in a certification election held in the company premises. 3 of Art XIII of the Constitution which provides that the State shall promote the principle of shared responsibility between workers and employers and the preferential use of voluntary modes in settling disputes. The principle of co-determination provides that it is a joint and collective responsibility of the employer and the employee to establish terms and conditions of employment and to settle on the standards of working conditions based upon existing laws and regulations. (5 POINTS) 7.(6%) (See discussion here) XIV. The basis of such principle is Par. (See discussion here) VII. (6%) //////////////////// I. 2. Is the argument of "Puwersa" tenable? Decide with reasons. "Puwersa" argued that since it won in a certification election. and shall enforce their mutual compliance therewith to foster industrial peace. "Puwersa". sent a letter to respondent company reminding it of its obligation to recognize the local union the federation represents and enter into a CBA with the local union. a) What is the principle of codetermination? b) What. a) May the NLRC or the courts take jurisdictional cognizance over compromise agreements/ settlements involving labor matters? b) How sacrosanct are statements/data made at conciliation proceedings in the Department of Labor and Employment? What is the philosophy behind your answer? . including conciliation. 3 Sec.

The National Labor Relations Commission or any court. (See discussion here) XI. including those involving labor standard laws. a) As a rule. shall be final and binding upon the parties. The philosophy is to ascertain the truth about the controversy which the parties may be afraid to divulge if the revelations can be utilized against them later on.optional = 60 b mining. Compromise agreements. had become final and executory? Discuss fully.Information and statements given at conciliation proceedings shall be treated as privileged communications. b. one instance is the principle of strained relations. Yes. shall not assume jurisdiction over issues involved therein except in case of noncompliance thereof or if there is prima facie evidence that the settlement was obtained through fraud. Conciliators and similar officials shall not testify in any court or body regarding any matter taken up at conciliation proceedings conducted by them. (See discussion here) X. or coercion. 227. . a) How do you execute a labor judgment which. voluntarily agreed upon by the parties with the assistance of the Bureau or the regional office of the Department of Labor.. (5 POINTS) Discuss briefly the instances when non-compliance by the employer with a reinstatement order of an illegally dismissed employee is allowed. (5 POINTS) 11. mandatory= 60 optional=50 (See discussion here) XII. (5 POINTS) 12. ART. misrepresentation..a. on appeal. . b) Cite two instances when an order of execution may be appealed. mandatory = 65 yrs old.Any compromise settlement. when is retirement due? b) When is retirement due for underground miners? a.

(See discussion here) XV. The employer is right in refusing to give maternity leave to AB but gave a wrong premise. Being married nor single is of no consequence when availing of maternity leave. As the lawyer. compromise agreements are favored by law... what will you advise the employer? Discuss fully. 5 POINTS May a decision of the Labor Arbiter which has become final and executory be novated through a compromise agreement of the parties? yes. 5 POINTS AB. (See discussion here) XIV.motion for execution? or such motion which is in the NLRC procedures which has the same effect of the latter.. single and living-in with CD (a married man). (See discussion here) XVI. AB has exhaused her Maternity Leave benefit .it can be applied anytime. (5 POINTS) Some officers and rank-and-file members of the union staged an illegal strike. is pregnant with her fifth child. She applied for maternity leave but her employer refused the application because she is not married. such leave being allowed by law up to the 4th child only. may be award for back wages and reinstatement (See discussion here) XIII. b. Who is right? Decide. (5 POINTS) A carpenter is employed by a private university in . Their employer wants all the strikers dismissed.

unjustified refusal to depart for the worksite after all employment and travel documents have been duly approved by the appropriate government agency/ies. seeks entry to the country to work as Vice-President of a local telecommunications company. He may become regular casual after 1 year of service but only to that kind of job as long as it still exists. providing. (5 POINTS) Inday was employed by mining company X to performlaundry service at its staffhouse. she slipped and hit her back on a stone. (5 POINTS) Cite five grounds for disciplinary action by the Philippine Overseas Employment Administration (POEA) against overseas workers. 3. but thereafter she was not allowed to return to work. or submitting false information or documents for purposes of job application or employment. XVIII. (See discussion here) XIX. if any. embezzlement of company funds or monies and/or properties of fellow worker entrusted 4. she was permitted to go leave for medication.he does not render job that is necessary and desirable to the business or trade of the employer. Offenses during employment: 1. If household. Inday is a regular employee. She filed a complaint for illegal dismissalbut her employer X contended that Inday was not a regular employee but a mere househelp. Is the carpenter a regular or a casual employee? Discuss fully. What permit. 2. a non-resident American.. laws or by the laws of the host country. Rule III. unjustifiable breach of employment contract. You are with the Department of Labor and Employment (DOLE). she should be working for the family for its personal comfort and benefit which is contrary to the facts. While attending to her assigned task. Commission of a felony or crime punishable by Phil. (5 POINTS) AB. 2. violation/s of the sacred practices of the host country (See discussion here) XX.Unable to continue with her work. 1: Pre-employment offenses: 1.Manila. Sec. Using. Casual. POEA Rules. Decide. not a household employee. can .

Labor Code. Article . able and willing at the time of application to perform the services for which the alien is desired. race or creed. regulations and jurisprudence which set employment standards and govern the relations between capital and labor. ensuring equal work opportunities regardless of sex. all labor legislation and all labor contracts shall be construed in favor of the safety and decent living for the laborer.5% Suggested Answer: Labor legislation refers to laws. The Civil Code likewise pronounces that in case of doubt. Labor Code). What is the purpose of labor legislation? 2. (See Article 4. 2. Such that the employer must obtain a work permit from the DOLE (nearest regional office that covers the particular place).5% Suggested Answer: This concept of liberal approach is enshrined both in the Labor Code and the Civil Code. including its implementing rules and regulations. (Article 3. The process is that the employer (domestic or foreign). (See discussion here) ///////////////// BAR EXAMINATIONS 2006 LABOR AND SOCIAL LEGISLATION Suggested Answers By PROF. will have to file an application with DOLE for the issuance of AEP. regulating the relations between workers and employers and assuring that the rights of workers to self-organization. Article XIII. promoting full employment. submitting therein certain documents to justify that there is a need for the employment of such alien. The DOLE must be guided by the provisions of PD 442 on employment of nonresident aliens by domestic or foreign employer. security of tenure. This work permit is what is called the ALIEN EMPLOYMENT PERMIT (AEP). 1987 Constitution) by affording protection to labor. collective bargaining. before admitting this alien to be its employee. statutes. rules. the Labor Code declares that all doubts in the implementation and interpretation of the provisions of the Code.the DOLE issue so that AB can assume as Vice-President in the telecommunications company? Discuss fully. JOSELITO GUIANAN CHAN -----------oOo----------I1. and just and humane conditions of work are amply protected. Its purpose is to breathe life into the protection-to-labor clause of the Constitution (Section 3. shall be resolved in favor of labor. There must be a determination of the non-availability of a person in the Philippines who is competent. More specifically. What is the concept of liberal approach in interpreting the Labor Code and its Implementing Rules and Regulations in favor of labor? 2.

5% Suggested Answer: Once an employer-employee relationship is established. WITA applied for a license for recruitment and placement activities. and b. member of the board or partner of a corporation or partnership engaged in .1702. 2004. This concept. his job may possibly be his only possession or means of livelihood and those of his dependents. should not apply where the pertinent provisions of the Labor Code leave no room for doubt either in their interpretation or application. Since majority of its passengers are overseas workers. Officers or members of the Board of any corporation or members in a partnership engaged in the business of a travel agency. Joselito Guianan Chan person loses his job. Philippine Geothermal. (Bonifacio vs. (Philips Semiconductors [Phils. Inc. 146 SCRA 276). of no consequence that its purpose is not for profit but to help Filipinos find employment abroad. Civil Code). G. 3. members of the board or partners. NLRC. is also an officer. vs. Government Service Insurance System. under our constitutional framework. Inc. vs. When a 2006 Bar Examinations in Labor Law Suggested Answers Prof. 141717. 189 SCRA 211 [1990]). What property right is conferred upon an employee once there is an employer-employee relationship? Discuss briefly. (Note: It must be stressed that the POEA Rules disqualify not only travel agencies and sales agencies of airline companies but also the following. such employment is treated. be protected and insulated against any arbitrary deprivation of his job. Corporations and partnerships. No. to wit: a. therefore. when any of its officers. as a property right. When a person has no property. It stated in its application that its purpose is not for profit but to help Filipinos find employment abroad. April 14. R.]. -IIWonder Travel and Tours Agency (WTTA) is a well known travel agency and an authorized sales agent of the Philippine Air Lines. It is. therefore. Fadriquela. his dependents suffer as well. Should the application be approved? 5% Suggested Answer: The application should not be approved for the simple reason that the law categorically declares that travel agencies and sales agencies of airline companies are prohibited from engaging in the business of recruitment and placement of workers for overseas employment. however. The worker should. whether for profit or not. (Article 26 of the Labor Code).

Rule I. a bank hired several handicapped workers to count and sort out currencies. -IIICan an overseas worker refuse to remit his earnings to his dependents and deposit the same in the country where he works to gain more interests? Explain. Executive Order No. The bank terminated their employment on the ground that their contract has expired prompting them to file with the Labor Arbiter a complaint for illegal dismissal. Executive Order No. (Article 22 of the Labor Code) The reason for this mandatory requirement is to protect the welfare of families. Rules and Regulations Implementing Executive Order No. 857. (Section 2. and/or beneficiaries in the country in accordance 22006 Bar Examinations in Labor Law Suggested Answers Prof. 857). the complaint will not prosper because what they entered into was a valid fixed-term employment contract for six (6) months. POEA Rules and Regulations Governing the Recruitment and Employment of Land-Based Overseas Workers [February 4. it is imperative that the mandatory remittance requirement be fully complied with by all concerned through the institution of appropriate remittance facilities and the imposition of effective sanctions. Section 2.the business of a travel agency. Will their action prosper? 5% Suggested Answer: No. Non-compliance with the laws and regulations on remittance of foreign exchange earnings and recourse to the use of unauthorized and unofficial financing institutions had led to the detriment of the country s balance of payments and economic development program. POEA Rules and Regulations Governing the Recruitment and Employment of Seafarers [May 23. Their employment contract was for six (6) months. dependents and beneficiaries and to ensure that the foreign exchange earnings of these workers are remitted through authorized financial institutions of the Philippine government in line with the country s economic development program. Part II. Section 2. Book I. Rule III. Rule I. 857. Consequently. 2003]). ( Whereas clauses. Joselito Guianan Chan with rules and regulations prescribed by the Secretary of Labor. 2002]. -IVFor humanitarian reasons. Part II. Rule XIII. such refusal to remit his earnings to his dependents is not allowed under the law which considers mandatory for all Filipino workers abroad to remit a portion of their foreign exchange earnings to their families. 5% Suggested Answer: No. Rules to Implement the Labor Code. dependents. Upon the . Section 2. Section 1.

141717. now known as PNB-Republic Bank.. R. 225 SCRA 567). Thus. Section 9. Book III. G. 2004. overtime pay. the same may not be said on the matter of increasing said benefits. vs. It must be stressed that the validity of fixed-term contracts will be upheld for as long as the fixed period of employment was knowingly and voluntarily agreed upon by the parties. (Article 100. 6. and premium pay? 5% Suggested Answer: While as a general rule.expiration of the contract. 1998). Jan. General Milling Corporation. Rule XIII. Labor Code. 149329. overtime pay and premium pay. the parties may enter into any kind of stipulation in a contract and the same shall be considered as the law between them. G. is not valid. Section 15. Under the law. July 12. Fadriquela. Rule II. (Article 280. G. Medenilla vs. duress or improper pressure being brought to bear upon the employee and absent any other circumstances vitiating his consent or it satisfactorily appears that the employer and employee dealt with each other on more or less equal terms with no moral dominance whatever being exercised by the former on the latter. No. NLRC. Associated Labor Union. Rule III. R. Davao Fruits Corporation vs. Theresa s School of Novaliches Foundation vs. Section 6. 1993. No. 2004. April 15. 122955. G. Section 20. even with the consent of the employee. Republic Planters Bank. Section 12. the parties are forbidden from agreeing on a period of time for the performance of such activities. Aug. there is no more employment relationship to speak of. G. Rule XII. 127673. 85073. Rule VI. without any force. In the instant case. Philippine Veterans Bank. it does not necessarily follow that where the duties of the employee consist of activities usually necessary or desirable in the usual business of the employer. No. However. the parties are prohibited to enter into any stipulation which may result in the reduction of any employee benefits. Rule IV. March 13. Rule XIV. R. Joselito Guianan Chan Can an employer and an employee enter into an agreement reducing or increasing the minimum percentage provided for night differential pay. Section 6. See also Section 6. Labor Code. G. 1997. There is thus nothing essentially contradictory between a definite period of employment and the nature of the employee s duties. of the legallymandated minimum percentage of such benefits as night differential pay. it must be emphasized that a labor contract is not an ordinary contract since it is impressed with public interest. R. No. 24. 117460.]. vs. (Philips Semiconductors [Phils. R. No. NLRC. -V32006 Bar Examinations in Labor Law Suggested Answers Prof. the reduction by the employer. April 14. St. Rule V. Rules to Implement the Labor Code. however. 2000). Pangilinan vs. Section 11. Inc. The employer and the employee are not prohibited under the law to enter into an agreement for the increase of whatever benefit being . No. et al. R.

Rule II. length of service. G. 2. Chapter III. Rules Implementing Republic Act No. such dispute shall be decided by the voluntary arbitrator or panel of voluntary arbitrators within ten (10) days from the time said dispute was referred to voluntary arbitration. Section 7. Rule I. Thus. Unless otherwise agreed by the parties in writing. No. 6727). Joselito Guianan Chan In organized establishments. Section 1. In cases where there are no collective agreements or recognized labor unions. . 6727. where the application of any prescribed wage increase by virtue of a Wage Order issued by the Regional Tripartite Wages and Productivity Board results in distortions of the wage structure within an establishment. NCMB Revised Procedural Guidelines in the Conduct of Voluntary Arbitration Proceedings [Oct. 16. Article 124. et al. (Paragraph 1. the employer and the employee may legally and validly agree to increase the minimum percentage provided for night differential pay. (Associated Labor UnionsTUCP vs. 15. 1995. R. through voluntary arbitration. should be referred to the appropriate branch of the National Labor Relations Commission (NLRC). 1994. 109328. -VI1. Revised Rules of Procedure on Minimum Wage Fixing dated Nov. 42006 Bar Examinations in Labor Law Suggested Answers Prof. Aug. there is wage distortion if there is a situation where an increase in prescribed wage rates results in the elimination or severe contraction of intentional quantitative differences in wage or salary rates between and among employee groups in an establishment as to effectively obliterate the distinctions embodied in such wage structure based on skills. Section 1[l]. (Article 124. 235 SCRA 395). Any dispute arising therefrom should be settled through the National Conciliation and Mediation Board (NCMB) and. How should a wage distortion be settled? Suggested Answer: A wage distortion may be settled unilaterally by the employer or through voluntary negotiations or arbitration.mandated by law for the simple reason that any such increase certainly redounds to the benefit of the employee. Definition of Terms. Labor Code. 2004]). The rule is different in unorganized establishments. overtime pay. if it remains unresolved. the employer and the union are required to negotiate to correct the distortions. if it remains unresolved after ten (10) days of conciliation. When is there a wage distortion? Suggested Answer: Under the law. Section 4 [m]. Rules Implementing Republic Act No. 29. and premium pay. Any dispute arising from wage distortions should be resolved through the grievance procedure under their collective bargaining agreement and. or other logical bases of differentiation. NLRC. Rule VII. 29. See also Item [p]. Revised Rules of Procedure on Minimum Wage Fixing dated Nov. Labor Code. the employers and workers are required to endeavor to correct such distortions.. 1995.

Settled is the rule that mere absence or failure to report for work is not tantamount to abandonment of work. (New Ever Marketing. (Republic Act No. and 2. and not by strikes. Can the issue of wage distortion be raised in a notice of strike? Explain. 29. Ilaw at Buklod ng Manggagawa [IBM] vs. June 27. G. Rules Implementing Republic Act No. Chapter III. Rule VII. Hence. first notice asking her to explain why she should not be declared as having abandoned her job. second notice to inform her of the employer s decision to dismiss her on the ground of abandonment. R. Chapter I. 'Inc. In the instant case. It is specifically provided in the law that any issue involving wage distortion shall not be a ground for a strike/lockout. a strike is illegal if based on alleged salary distortion. Labor Code. (Herrera Home) as interior decorator. During the first year of her employment.(Paragraph 2. G. It must be noted . Herrera Home deprived her of her right to due process. otherwise known as the Wage Rationalization Act. her employer dismissed her from the service. lockouts or other concerted activities of the employees or management. Joselito Guianan Chan process which should have been observed by Herrera Home in terminating your client's employment. NLRC. Article 124. She thus prayed that she be reinstated to her position. For the ground of abandonment to be validly invoked. 5% Suggested Answer: As Inday s counsel. 6727. See also Section 16. explain the standards of due 52006 Bar Examinations in Labor Law Suggested Answers Prof. -VIIInday was employed by Herrera Home Improvements. Section 7. there is no showing that Inday s employer ever complied with the foregoing procedural due process requisites. 91980. The said notices should have been sent to her last known address. Inday hired you as her counsel. July 14. CA. No. 10% Suggested Answer: No. two (2) notices are required to be served on Inday. 6727. viz. No. 1991). 2005). Section 1. she did not report for work fur one month. In preparing the position paper to be submitted to the Labor Arbiter. 140555. Inc. 6727). She filed with the Labor Arbiter a complaint for illegal dismissal alleging she did not abandon her work and that in terminating her employment.: 1. vs. The reason for the prohibition is that it is the legislative intent that solution to the problem of wage distortions should be sought by voluntary negotiation or arbitration. Revised Rules of Procedure on Minimum Wage Fixing dated Nov. 1995. 3. I will cite the fact that she was not afforded due process. R. Implementing Rules of Republic Act No.

certification election c. Nov. It cannot be extended in case there are two or more unions in contention. 17. 2003]). -VIIIThe modes of determining an exclusive bargaining agreement are: a. To distinguish consent election and certification election. Rules to Implement the Labor Code. while the latter is aimed at determining the sole and exclusive bargaining agent of all the employees in an appropriate bargaining unit for the purpose of collective bargaining. Book V. Joselito Guianan Chan appropriate bargaining unit for purposes of collective bargaining or negotiation. Voluntary recognition differs from the two others in that the union which has been extended recognition voluntarily by the employer as the sole and exclusive bargaining agent does not have to go through the process of secret balloting and other procedural steps required in the conduct of certification election or consent election. Series of 2003. 40-03. Nos. R. voluntary recognition b. Voluntary Recognition refers to the process by which a legitimate labor union is recognized by the employer as the exclusive bargaining representative or agent in a bargaining unit. Consent Election refers to the process of determining through secret ballot the sole and exclusive representative of the employees in an 62006 Bar Examinations in Labor Law Suggested Answers Prof. consent election Explain briefly how they differ from one another. Aug. Rules to Implement the Labor Code. Deputy Minister of Labor.that this notice requirement is not a mere technicality but a requirement of due process to which every employee is entitled to insure that the employer s prerogative to dismiss or lay-off is not abused or exercised in an arbitrary manner. (Section 1 [h]. 110452-54. [Feb. Certification election refers to the process of determining through secret ballot the sole and exclusive representative of the employees in an appropriate bargaining unit for purposes of collective bargaining or negotiation. its purpose being merely to determine the issue of majority representation of all the workers in the appropriate collective bargaining unit. (Section 1 [h]. A certification election is conducted only upon the order of the Department of Labor and Employment. From their very . It is proper only in case there is only one (1) legitimate labor organization existing and operating in an unorganized establishment. 24. 40-03. b. Rule I. NLRC. Rule I. [Feb. 1987). 1994. (Kingsize Manufacturing Corporation vs. the former is an agreed one. 5% Suggested Answer: a. Cebu Royal Plant [SMC] vs. with or without the intervention by the Department of Labor and Employment. as amended by Department Order No. It is voluntarily agreed upon by the parties. as amended by Department Order No. 17. 12. Series of 2003. c. G. Book V. 2003]).

while certification election is ordered by the DOLE. Rules to Implement the Labor Code. and other mineral oils according to the general terms and conditions provided by law.nature. as amended by Department Order No. It is noteworthy that there is not even a showing in this case that Armstrong Corporation has that permissible capital ownership. Moreover. Book V. 1987 Constitution). and 72006 Bar Examinations in Labor Law Suggested Answers Prof. (Ibid. Reyes cannot enter into a financial and technical assistance agreement (FTAA) with the foreign corporation for the following reasons: 1. (Ibid. Forest land is an inalienable public domain. or corporations or associations at least sixty per centum of whose capital is owned by such citizens. 40-03. Consequently. and utilize the land? Explain. Antonio Reyes offered the forest land he owns to the president of the corporation. It is only the President who is allowed under the Constitution to enter into agreements with foreign-owned corporations involving either technical or financial assistance for large-scale exploration. A private individual like him cannot enter into such agreement. development. He cannot own forest land. (United Restauror s Employees and Labor Union-PAFLU vs. Article XII. the right to be the exclusive representative of all the employees in any appropriate collective bargaining unit is vested in the labor union designated or selected for such purpose by the majority of the employees in the unit concerned. based on real contributions to the economic growth and general welfare of the country. petroleum. consent election is voluntarily agreed upon by the parties. joint venture. Mr.) (NOTE: It seems that this problem/question should have been asked in Political Law and not in Labor Law. as a result of the consent election. May Armstrong Corporation enter into a financial and technical assistance agreement (FTAA) with Mr. -IXArmstrong Corporation. develop. It is only the State which has the full control and supervision over the exploration. a foreign corporation.) 3. with or without the intervention by the DOLE. 2003]). it is only the State which may directly undertake such activities. Mr. Series of 2003. it being clear that it . It is owned by the State. the former is a separate and distinct process and has nothing to do with the import and effect of a certification election. Reyes to explore. [Feb. 17. intends to engage in the exploration of Philippine natural resources. Torres. By law. (Section 2. 2. Joselito Guianan Chan utilization of minerals. or productionsharing agreements with Filipino citizens. 26 SCRA 435 [1968]). (Section 1 [h]. development and utilization of natural resources. 5% Suggested Answer: No. or it may enter into co-production. Rule I.

[G. it is imperative that my client should show good faith by first considering other less drastic means such as cost-reduction measures to avoid or minimize losses and consequently. Labor Code. Closure should only be a measure of last resort when other less drastic means . Are the employees entitled to separation pay? 2. Joselito Guianan Chan serious business losses and financial reverses. going on reduced time. inadequate or insufficient. Inc. 112546. R. 1996]. 153021. Due to serious business losses and financial reverses during the last five (5) years. 2. March 13. what steps will you take prior to its closure? 2. 2004]). 03. Inc. then. NLRC. improving manufacturing efficiencies. If the reason for the closure is due to old age of the brothers and sisters: 1. (Catatista vs. Is the closure allowed by law? 2. [G.. A careful examination of Article 283 of the Labor Code indicates that closure or cessation of business operation as a valid and . R.. they are entitled to separation pay only if the closure is not due to 82006 Bar Examinations in Labor Law Suggested Answers Prof. 1. 102422. the employees to be terminated are not entitled to any separation pay. If the foregoing cost-reduction measures failed and closure appears to be the only viable course to take. G. Joni s Food Services. NLRC. See also Cama vs.5% Suggested Answer: Yes.e. 1995. Aug. owned and managed by three (3) elderly brothers and two (2) sisters.have been tried and found to be wanting. to prevent closure. Armed Forces Mutual Benefit Association. etc. 97 SCRA 723).g. As counsel for the corporation. reduction of both management and rank-and-file bonuses and salaries. they decided to close the business.5% Suggested Answer: Prior to closure. trimming of marketing and advertising costs.5% Suggested Answer: Since the closure of the business was due to serious business losses and financial reverses during the last five (5) years . March 10. (Article 283. No. Employees Union. No. Under the law. No. North Davao Mining Corporation vs. Armed Forces of the Philippines Mutual Benefit Association vs. I will recommend to my client that the due process requirement be complied with by serving separate notices to the employees to be terminated and to the Department of Labor and Employment (DOLE) at least one (1) month before the intended date of effectivity of the termination.carries no single principle which may be deemed germane to Labor Law). -XABC Tomato Corporation. . has been in business for 40 years. R.

186 SCRA 393. It is only when it is manifest that the closure is motivated not by a desire to avoid further losses but to discourage the workers from organizing themselves into a union for more effective negotiations with management. a fraction of at least six (6) months being considered as one (1) whole year. Said provision. Me-Shurn Workers Union FSM. No. General Services vs. No. See also Industrial Timber Corporation vs. R. NLRC. March 10.A. 11. Inc. Can ROSE Corporation refuse to admit all the strikers? Suggested Answer: No. 1996]. Eventually.5% Suggested Answer: Since the ground invoked to justify the closure is due to old age of the brothers and sisters . Jan. 148340. An employer cannot refuse to re-admit strikers who want to return to work.. (Me-Shurn Corporation vs. Joselito Guianan Chan refused to give in to the union's demands. North Davao Mining Corporation vs. thus implying that termination of employees other than closure of business due to losses may be valid. -XIAs a result of bargaining deadlock between ROSE Corporation and ROSE Employees Union. 153021. G. 2004]). R. During the strike. 405 [1997]). An employer. 156292. No. NLRC. the employees are entitled to the payment of separation pay in the amount of one (1) month pay or at least one-half (½) month pay for every year of service. (Article 283. Are the employees entitled to separation benefits? 2. in fact. NLRC. several employees committed illegal acts. whichever is higher. 2004. R. It would. [G. 395. hence. 2005. Jan. Joni s Food Services. NLRC.authorized ground of terminating employment is not limited to those resulting from business losses or financial reverses. (J.T. G. [G. Labor Code. No. R. Carmelcraft Corporation vs. See also Cama vs. The company 92006 Bar Examinations in Labor Law Suggested Answers Prof. is required under the law to provide . 10% 1. that the State is bound to intervene and declare the closure as illegal. not due to serious business losses and financial reverses. June 6. its members staged a strike. its members informed the company of their intention to return to work. 339 Phil. in fact. provides for the payment of separation pay to employees terminated because of closure of business not due to losses. 112546. be stretching the intent and spirit of the law if management s prerogative to close or cease its business operations be unjustly interfered with just because said business operation or undertaking is not suffering from any loss. 2. 26. An employer may close or cease his business operations or undertaking even if he is not suffering from serious business losses or financial reverses. March 13. as long as he pays his employees their termination pay in the amount corresponding to their length of service. indeed. 1990).

If due to the prolonged strike. Joselito Guianan Chan 18461. NLRC. Employees Association vs. 761). it agreed to reinstate them and comply fully with the return-to-work order issued by the Secretary of Labor and Employment. CA. 1967. Labor Union vs. Dec. Inc. Norton & Harrison Co. can it later on dismiss those employees who committed illegal acts? Suggested Answer: Yes. and Jackbilt Concrete Blocks Co. Feati University vs. R. No. G. for the payment of wages and other benefits. In an economic strike.. from the date of actual refusal until the workers are re-admitted. And in the event that the strikers decide to resume their work. Norton & Harrison Company and Jackbilt Concrete Blocks Co.for the admission of all workers under the same terms and conditions prevailing before the strike. it was pronounced that an employer may be considered to have waived its right to proceed against the striking employees for alleged commission of illegal acts during the strike when. July 7. 95 Phil. can it refuse to admit the replaced strikers? Suggested Answer: It depends. during a conference before the Chairman of the NLRC. 266 SCRA 713 [1997])]. 145428. An employer who refuses to re-admit returning workers may be liable. the hiring of replacements may be done on a permanent basis. 2. 27. Guidelines Governing Labor Relations). even if a replacement had been hired by the employer during such lawful strike. (No. (See also Reformist Union of R. [G. (Article 264. ROSE Corporation hired replacements. vs.. No. Thus. G. The employer may still pursue the declaration of the illegality of the strike and secure the dismissal of the union officers and union members who committed illegal acts during the strike. replacements hired by the employer during the strike may not be permanently employed. however. Liner. 24. the issue of the legality of the strike. The general rule is that mere participation of a worker in a lawful strike shall not constitute sufficient ground for termination of his employment. the employer is not duty-bound to dismiss said . 37 SCRA 244. R. Insular Life Assurance Co. R. 10. L-21278.B. Assuming the company admits all the strikers. Labor Code). upon filing of proper petition. 2004]. (Insurefco Pulp vs. [Note: In the 2004 case of Unlicensed Crews Employees Union Associated Labor Unions [TASLI-ALU] vs. No. L102006 Bar Examinations in Labor Law Suggested Answers Prof. Bautista. Insurefco. in an unfair labor practice strike. The employer is duty-bound to discharge them when the strikers are reinstated to their former positions. 1966). 3.. (The Insular Life Assurance Co. The re-admission by the employer of all the strikers who voluntarily returned to work does not have the effect of rendering as moot and academic. Feb.

eight (8) employees were berated and insulted by their supervisor. Nos. No. R. L-17038 and L-17057. 1964). I will declare that the employees were dismissed illegally. vs. G. the immediate filing of complaint for illegal dismissal by the employees praying for their reinstatement negates the finding of abandonment. it should be noted that they could not have failed to qualify since at the time they were dismissed. Marsman & Co. In protest. As probationary employees.. there is no question that the employees did not abandon their probationary employment. they enjoyed security of tenure during the period of probation. Joselito Guianan Chan . 2004. or one 112006 Bar Examinations in Labor Law Suggested Answers Prof. Inc. R. Oct. No.permanent replacements. 8. 25. hence. when the Personnel Manager later on asked them to explain their side. the act of the supervisor in shouting at them to go home and never to report back to work obviously amounts to dismissal. (Consolidated Labor Association of the Philippines vs. G. because of the antagonism which caused severe strain in the relationship between the illegally dismissed employees and their employer. Moreover. the personnel manager required them to explain why they should not be dismissed from employment for abandonment and failure to qualify for the positions applied for. 2003). July 31. by any reasoning. Inc.R. They filed a complaint for illegal dismissal against their employer. it was nothing but a fruitless attempt at giving a semblance of due process to the probationary employees. As to the charge of abandonment. 154689. -XIIDuring their probationary employment. They cannot. they walked out. Due process certainly cannot be instituted belatedly after the employees were earlier effectively dismissed. Nov. Later. As a Labor Arbiter. how will you resolve the case? 10% Suggested Answer: As Labor Arbiter. They were fired without any just cause and without due process. The supervisor shouted at them to go home and never to report back to work. they were still in a trial period or probationary period. Consequently. I will award separation pay equivalent to at least one month pay. Arc-Men Industries. Under the factual setting of this case. G. Samarca vs. they cannot be terminated during the period of probationary employment and before the expiration thereof except for cause or causes provided by law. be said to have abandoned their work. Basarte. It was because of their peremptory dismissal that they were not able to complete their probationary employment with no fault on their part. 146118. As to the claim that they failed to qualify for their positions. I shall not order their reinstatement but in lieu thereof. (See Unicorn Safety Glass. Hence..

2003]). traditions. the Med-Arbiter shall declare such fact in the order. the Japanese reacted by shouting at them to go home and never to report back to work. (Note: No Union shall not be a choice in the run-off election. Hence. discipline as well as hotel and resort services of the newly opened resort. allowances and other benefits. Book V. in a certification election. were suddenly scolded by the Japanese conducting the training and hurled brooms. 143252. Rule I. This proceeds from the premise that the right to join a union carries with it the concomitant right not to join a union. 40-03.5% Suggested Answer: Yes. in addition to their full backwages. [Feb. 2. Series of 2003. In protest. -XIVDetermine whether the following minors should be prohibited from being hired and from performing their respective duties . provided that the total number of votes for all contending unions is at least fifty percent (50%) of the number of votes cast. The ruling of the Supreme Court is the suggested answer above). while undergoing special training in Japanese customs. Book V. the voter is required to put a cross (x) or check (3) mark in the square opposite the name of the union of his choice or No Union if he does not want to be represented by any union. Rules to Implement the Labor Code. respondents left the premises. Immediately. iron trays. October 23. (Section 20. 2003]).5% Suggested Answer: Run-off election refers to an election between the labor unions receiving the two (2) highest number of votes in a certification or consent election with three (3) or more choices. the respondents-probationary employees. [G. Ibid. Eventually. whichever is higher. 2003]. See Section 1. Heeding his directive. R. fire hoses and other things at them. 17. respondents staged a walk-out and gathered in front of the resort. as amended by Department Order No. [Feb. Rule IX. as amended by Department Order No. Here.month pay for every year of service.). where such a certification or consent election results in none of the three (3) or more choices receiving the majority of the valid votes cast. Can a "no-union" win in a certification election? 2. Series of 2003. Rule X. (Note: The case squarely analogous to the facts of this case is Cebu Marine Beach Resort vs. (Section 1 [ss]. floor maps. Where majority of the valid votes cast results in No Union obtaining the majority. -XIII1. Rules to Implement the Labor Code. 40-03. No. NLRC. they filed a complaint for illegal dismissal and other monetary claims against petitioners. Book V. No Union is always a choice in a certification election. When does a "run-off" election occur? 2. 17.

and the approval of the Department of Labor and Employment. 7610. health. It is further required that the following in all instances be strictly complied with: (a) The employer shall ensure the protection. morals and normal development of the child. It is. 7610). a continuing program for training and skills acquisition of the child. safety or morals of children. Suggested Answer: . A. 2. (Section 12. she is not allowed to work as such. 4. Suggested Answer: Yes. 9231). R. work which. television or other forms of media) appears to be essential. No. A. however.indicated hereunder: 5% 122006 Bar Examinations in Labor Law Suggested Answers Prof. No. A 17-year old boy working as a miner at the Walwaldi Mining Corporation. he is prohibited from working as a miner. and the duration and arrangement of working time. radio. Joselito Guianan Chan 1. No. (Section 12. as amended by R. before engaging such child. if possible. subject to the approval and supervision of competent authorities. is hazardous or likely to be harmful to the health. such that it is performed underground. A 16-year old girl working as a model promoting alcoholic beverages. the employer is required to first secure. (R. and (c) The employer shall formulate and implement. 3. An 11-year old boy who is an accomplished singer and performer in different parts of the country. required that the employment contract is concluded by the child's parents or legal guardian. Suggested Answer: No. 7610). Suggested Answer: Yes. The law allows a minor such as this 15-year old girl to work only under the direct and sole responsibility of her parents or legal guardian and where only members of her family are employed. A. theater. a work permit from the Department of Labor and Employment which shall ensure observance of the above requirements. A 15-year old girl working as a library assistant in a girls' high school. (b) The employer shall institute measures to prevent the child's exploitation or discrimination taking into account the system and level of remuneration. No. is considered a worst form of child labor . with the express agreement of the child concerned. underwater or at dangerous heights. Under the law. safety. by its nature or the circumstances in which it is carried out. Moreover. R. he is not prohibited to work as an accomplished singer and performer since such employment or participation in public entertainment or information (through cinema. A.

insinuating some sexual favors. a woman employee shall be deemed resigned or separated. A. R. my client is dismissed based on said stipulation. moral and exemplary damages and attorney s fees. his work is highly stressful psychologically. she will be considered resigned or separated from the service. -XVAs a condition for her employment. Republic Act No. degrades or demeans the intrinsic worth and dignity of the boy as a human being. (Article 136. She complained to higher authorities but to no avail. the personnel manager. Article VIII. is likely to be harmful to his morals. by its nature and the circumstances in which it is carried out. What action or actions will you take? Explain. It is considered under the law as a worst form of labor because it debases. R. This prohibition holds true whether the girl is directly or indirectly promoting alcoholic beverages. She asked Owen. File with the Committee on Decorum and Investigation of Sexual Harassment Cases of the employer. She hires you as her counsel. No. Under the law.132006 Bar Examinations in Labor Law Suggested Answers Prof. Josephine signed an agreement with her employer that she will not get married. A 17-year old boy working as a dealer in a casino. if the company can reconsider the agreement. Suggested Answer: Yes. she is prohibited under the law to work as a model promoting alcoholic beverages. No. 7610. R. Joselito Guianan Chan Yes. 5% Suggested Answer: If I were Josephine s counsel. A. No. full backwages. He told Josephine he can do something about it. 9231). as amended by Section 5. the boy is prohibited from working as a dealer in a casino because this type of work. it is unlawful for an employer to require as a condition of employment or continuation of employment that a woman employee shall not get married. 2. (Section 14. (Section 12-D. 5. discharge. or to actually dismiss. a complaint for sexual . otherwise. Make representations with the employer regarding the unlawful stipulation against marriage in the employment contract. If despite my representations with the employer. Labor Code). or to stipulate expressly or tacitly that upon getting married. 9231). I shall file a complaint for illegal dismissal with the Labor Arbiter and pray for such reliefs as reinstatement. I will recommend the taking of the following actions: 1. discriminate or otherwise prejudice a woman employee merely by reason of her marriage. A. Moreover. Josephine got married. 7610. as added by Section 3.

NOTHING FOLLOWS. In case the employer failed to act on my client s complaint. sexual harassment is committed when: 1. terms.harassment against the Personnel Manager for insinuating sexual 142006 Bar Examinations in Labor Law Suggested Answers Prof. the above acts would result in an intimidating. the employer is duty-bound to prevent or deter the commission of acts of sexual harassment by creating such Committee and by providing procedures for the resolution or prosecution of acts of sexual harassment. it has impaired my client s rights and privileges under the law and has resulted in an intimidating. Under the law. or offensive environment for the employee. In a work-related or employment environment. That the Personnel Manager is liable for sexual harassment is beyond cavil. 2. hostile. 15 . or 3. 7877). In this case. re-employment or continued employment of said individual or in granting said individual favorable compensation. the sexual favor is made a condition in the hiring or in the employment. is solidarily liable with the former if the latter is informed of such acts by the offended party and no immediate action is taken thereon. I shall initiate a criminal complaint for sexual harassment under the Anti-Sexual Harassment Act (Republic Act No. Clearly. deprive or diminish employment opportunities or otherwise adversely affect said employee. the sexual favor being insinuated by the Personnel Manager was made a pre-condition to reconsidering the unlawful policy against marriage. or the refusal to grant the sexual favor results in limiting. 7877) against the Personnel Manager and an independent civil action for damages against both the Personnel Manager and the employer who. or privileges. Republic Act No. (Section 3[a]. under the law. segregating or classifying the employee which in any way would discriminate. Joselito Guianan Chan favors from my client. promotions. the above acts would impair the employee s rights or privileges under existing labor laws. he is guilty of sexual harassment. conditions. hostile and offensive environment for my client.

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