MARQUEZ QUESTIONS DURING ORALS: FINALS

COMPILED AND EDITED BY: ARJUN D. GERMONES LLB 2

DISCLAIMER: COMMENTS AT HAND WERE NOT INTENTIONALLY INSERTED TO OFFEND, DISHONOR OR
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INADEQUATE TIME FOR EDITING. FEEL FREE TO INSERT YOUR CORRECTIONS. SHOULD THERE BE ANY
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THAT MINIMAL INACCURACIES MAY EXIST. GOODLUCK AND HAPPY READING!

***(this mark appears on some of the questions just to note that Marquez emphasized the question during
orals & might be a possible question in the exam)

THE 2011 NLRC RULES OF PROCEDURE: 30% IN THE FINAL EXAMINATION

EX: I AM AN EMPLOYEEE OF USC. I WAS NOT PAID MY 13TH MONTH PAY AMOUNTING TO 15K, I WANT
TO SUE USC, WHO HAS A JURISDICTION OF MY CASE? ANS: LABOR ARBITER.

WHERE IS THE VENUE OF MY COMPLAINT? ANS: REGIONAL ARBITRATION BRANCH OF NLRC IN
CEBU CITY, BECAUSE YOUR WORKPLACE IS IN CEBU CITY.

REMEMBER: VENUE IS DEFINED BY RULES OF PROCEDURE OF NLRC NOT BY LAW WHILE
JURISDICTION IS DEFINED BY THE LABOR CODE/LAW.

WHAT ABOUT VENUE OF CLAIMS OF OVERSEAS WORKERS? ANS: AT THE CHOICE OF THE
COMPLAINANT EITHER AT THE PLACE WHERE HE RESIDES OR THE PRINCIPAL OFFICE OF THE
AGENCY.

***IF YOU FILE A COMPLAINT FOR VIOLATION OF LABOR STANDARDS, DO YOU NEED TO PAY A DOCKET
FEE? ANS: NO, IT IS PROHIBITED UNDER THE LABOR CODE.

WHAT IS YOUR BASIS? ART 277(D) OF LABOR CODE: “NO DOCKET FEE SHALL BE ASSESSED IN LABOR
STANDARD DISPUTES. IN ALL OTHER DISPUTES, DOCKET FEES MAY BE ASSESSED AGAINST THE FILING
PARTY, PROVIDED THAT IN BARGAINING DEADLOCK, SUCH FEES SHALL BE SHARED EQUALLY BY THE
NEGOTIATING PARTIES.”

WHAT IS THE PURPOSE OF A SUMMON? ANS: TO ACQUIRE JURISDICTION OVER THE PERSON OF
THE RESPONDENT.
HOW DOES THE COURT ACQUIRE JURISDICTION OVER THE PETITIONER/COMPLAINANT? ANS:
PETITIONER HAS ALREADY DEEMED SUBMITTED HIMSELF TO THE JURISDICTION OF THE
LABOR ARBITER BY FILING A COMPLAINT.

HOW MANY INITIAL CONFERENCES ARE AUTHORIZED UNDER THE RULES OF PROCEDURE? ANS: TWO
(2) SETTINGS

WHAT IS THE PURPOSE OF CONDUCTING AN INITIAL HEARING / MANDATORY CONFERENCE?
The Labor Arbiter shall personally preside over & take full control of the proceedings & may be assisted by
the Labor Arbitration Associate. ARA - DAT
1. To amicably settle the case upon a fair compromise; -
2. To determine real parties in interest;
3. To determine the necessity of amending the complaint & including all causes of action;
4. To define & simplify the issues in the case;
5. To enter into admissions or stipulations of facts
6. To thresh out all other preliminary matters

WHAT LAW AUTHORIZES COMPROMISE AGREEMENT? ANS: NEW CIVIL CODE. ART 2028.
REMEMBER: NOT LC

DOES THE COMPROMISE AGREEMENT REQUIRE APPROVAL FROM THE LABOR ARBITER? ANS: YES.

WHAT IS THE EFFECT OF A COMPROMISE AGREEMENT? ONCE APPROVED BY THE LABOR ARBITER,

1

THIS CAN BE DONE EVEN WITHOUT PERMISSION FROM THE LABOR ARBITER. (LIR-PF) WHAT IS FORUM SHOPPING? . Such certification should be signed not by the lawyer but by the party. WHAT IS THE EFFECT OF NON APPEARANCE? ANS: IT IS DEEMED A WAIVER OF HIS RIGHT TO FILE A POSITION PAPER. WHAT IS THE EFFECT OF NON APPEARANCE OF COMPLAINANT IN TWO (2) SETTINGS OF INITIAL HEARING? ANS: IT WILL RESULT TO DISMISSAL OF THE COMPLAINT BY THE LABOR ARBITER. IN CASE OF BREACH OF COMPROMISE AGREEMENT WHAT IS THE REMEDY BY THE AGGRIEVED PARTY? ANS: FILE A MOTION TO ENFORCE THE COMPROMISE AGREEMENT. WHAT ARE THE GROUNDS TO DISMISS A COMPLAINT? ANS: Lack of jurisdiction over the subject matter. improper venue. INITIATING COMPLAINTS IN DIFFERENT TRIBUNALS INVOKING THE SAME CAUSE OF ACTION. IT IS PROHIBITED. prescription & forum shopping.. WHAT IS RES JUDICATA? ANS: BARRED BY PRIOR JUDGMENT. 2 . CAN THE COMPLAINANT FILE A MOTION FOR RECONSIDERATION IF THE COMPLAINT WAS DISMISSED DUE TO NON APPEARANCE? ANS: NO. Except if you are the in-house lawyer of such company. ***WHO MUST PRESIDE THE INITIAL HEARING? ANS: THE LABOR ARBITER. CAN YOU FILE A MOTION FOR RECONSIDERATION? ANS: I CANNOT FILE A MFR OR EVEN MAKE AN APPEAL BEC IT IS PROHIBITED. IF THE RESPONDENT FAILED TO APPEAR IN TWO (2) SETTINGS. IF THE COMPLAINT IS DISMISSED BY THE LABOR ARBITER. res judicata. WHAT IS THE REMEDY OF RESPONDENT? ANS: HE CAN FILE A MOTION TO SET ASIDE THE ORDER OF WAIVER AND MUST BE MADE UNDER OATH. SUBJECT MATTER & ISSUES IN THE HOPE ACQUIRING A FAVORABLE DECISION. CAN HE DELEGATE IT? NO. HOW ABOUT A MOTION FOR POSTPONEMENT? ANS: IT IS ALLOWED BUT MUST BE FILED ATLEAST 3 DAYS BEFORE MEDIATION. Since the NLRC is a quasi judicial agency hence initiatory pleading filed before it should be accompanied by a certificate of non-forum shopping. THE LABOR ARBITER MUST PERSONALLY PRESIDE. WHAT IS THE REMEDY? ANS: FILE A MOTION TO RE-OPEN/REVIVE THE CASE ANY TIME. WHEN CAN A COMPLAINANT AMEND HIS COMPLAINT AS A MATTER OF RIGHT? ANS: BEFORE THE COMPLAINANT FILES HIS POSITION PAPER. WHAT IS THE PRESCRIPTIVE PERIOD FOR MONEY CLAIMS? ANS: THREE (3) YRS FROM THE TIME THE CAUSE OF ACTION ACCRUES. WHAT IS A CERTIFICATE OF NON FORUM SHOPPING? The Certificate of Non-Forum Shopping as provided by Supreme Court Circular 04-94 is mandatory and should accompany pleadings filed before the NLRC. A PARTY DECLARED TO HAVE WAIVED HIS / HER RIGHT TO FILE A POSITION PAPER MAY AT ANYTIME AFTER NOTICE THEREOF AND BEFORE THE CASE IS SUBMITTED FOR DECISION FILE A MOTION UNDER OATH TO SET ASIDE THE ORDER OF WAIVER UPON PROPER SHOWING THAT HIS/HER FAILURE TO APPEAR WAS DUE TO JUSTIFIABLE AND MERITORIOUS GROUNDS.IT IS CALLED A JUDGMENT BASED ON COMPROMISE & IT BECOMES FINAL & EXECUTORY. WHY? BEC LABOR ARBITER EXPECTS THE PARTIES TO BE PRESENT ON THE PRESCRIBED SCHEDULE.

APPEAL TO NLRC. And thereupon. WHAT ARE THE CONTENTS OF A POSITION PAPER? Contents of position paper: ~ SECTION 4 RULE 7. DOES THE POSITION PAPER NEED TO CONTAIN A CERTIFICATE OF NON FORUM SHOPPING? NO. ~ Position papers should also be accompanied by affidavit of the witnesses which shall take place of the latter’s testimony. Violation of this requirement would either mean that such pleading would be expunged from the records and the party concerned subjected to sanctions. IF IN CLARIFICATORY HEARING ONE OF THE PARTIES DID NOT APPEAR. DOES THE AGGRIEVED PARTY HAVE A REMEDY? YES. ANS: YES. What are the other requirements to perfect appeal? 1. . as amended by Administrative Matter 00-2-10. Filed on time 4. IN AN ADVERSE DECISION FROM THE LABOR ARBITER. ~ Support allegations in the position paper. Verification is important because the case may be decided based on position papers alone without need of conducting formal hearings. The only requirement would be for the affiant to identify the affidavit and to offer the testimony of the witness. proceed to the cross-examination of such witness. If the LA decides to conduct hearing. Grounds relied upon and arguments in support thereof. AFTER FILING OF THE POSITION PAPER DOES THE LABOR ARBITER NEED TO CONDUCT FORMAL HEARING OR JUST DECIDE THE CASE? ANS: HE MAY MOTU PROPIO DECIDE THE CASE IN HIS OWN DISCRETION. (RULE V SECTION 3) Purpose of affidavit ~ To take the place of the witnesses’ direct testimony. Civil Procedure. 3 .WHAT IS THE PERIOD TO FILE A POSITION PAPER? ANS: TEN (10) CALENDAR DAYS FROM TERMINATION OF CONCILIATION-MEDIATION HEARING. IF THE ORDER IS FROM THE REGIONAL DIRECTOR I CAN APPEAL WITHIN 5 CALENDAR DAYS. WHAT ARE THE CONTENTS OF A REPLY POSITION PAPER? ANS: IT SHALL NOT ALLEGE OR PROVE FACTS AND ANY CAUSES OF ACTION NOT INCLUDED IN THE ORIGINAL COMPLAINT OR PETITION OR RAISED IN THE POSITION PAPER. Violation of this requirement would either mean that such pleading would be expunged from the records and the party concerned subjected to sanctions. File a memorandum of appeal containing: . Under oath 3. Relief prayed for. WHEN DO YOU SUBMIT YOUR REPLY POSITION PAPER? ANS: Within 10 CALENDAR days from receipt of position paper of the adverse party a reply may be filed on a date agreed upon & during the schedule set before the Labor Artbiter. there would be no need of direct examination or Q&A because the position paper would take the place of the direct testimony of the witness. 2000 provides that the affiant has read the pleading and that the allegations therein are true and correct according to his personal knowledge and based on authentic records. WHEN CAN YOU MAKE AN APPEAL TO NLRC? ANS: WITHIN 10 CALENDAR DAYS FROM RECEIPT OF THE ORDER OF LABOR ARBITER. May 1. ~ Verification is important because the case may be decided based on position papers alone without need of conducting formal hearings. WHAT IS THE EFFECT? ANS: PROCEEDINGS MAY BE CONDUCTED EX PARTE. Proof of payment of appeal fee. 2. DOES IT NEED TO BE VERIFIED.

then it can also grant extension to file bond. . therefore. WHAT IS THE EFFECT ON THE DECISION OF THE LABOR ARBITER? ANS: IT BECOMES FINAL & EXECUTORY & CANNOT BE REVERSED BECAUSE OF THE DOCTRINE ON “IMMUTABILITY OF JUDGMENT”. Section 6. Statement of date when decision was received. Proof of service to other party. Proof of service upon the other parties DOES A MEMORANDUM NEED TO HAVE A CERTIFICATE AGAINST FORUM SHOPPING? YES. HOW MUCH IS THE APPEAL FEE NOW? ANS: P500. the employer cannot file a Motion for Reconsideration as this would amount to an extension of the period to perfect an appeal. SHOULD A COPY OF THE APPEAL BE SERVED TO THE ADVERSE PARTY? YES. DO YOU NEED TO PAY AN APPEAL FEE? ANS: YES. ~ Marquez comments that docket fee and appeal fee are not the same! HOW IS THE APPEAL PERFECTED IN MONETARY AWARD? ANS: BY POSTING OF A CASH OR SURETY BOND EQUIVALENT TO THE AMOUNT APPEALED FROM. STATING 3P’S. IS THERE A NEED FOR A MEMORANDUM? YES. you must file it within the reglementary period to appeal and the act of filing does not stop the running of the period to appeal. 5. REQUISITES TO PERFECT APPEAL 1. 2. WHAT IS THE REMEDY? ANS: IT CAN BE FILED THE NEXT WORKING DAY BECAUSE THE LAW SPEAKS OF 10 CALENDAR DAYS. Posting of a cash or surety bond. state the grounds relied upon & the arguments in support thereof. Verified by the appellant himself 4.OO. IT IS NOT THE SAME AS DOCKET FEE. In three legibly typewritten & printed copies. the NLRC committed no grave abuse of discretion in dismissing petitioner's appeal. ***IF YOU FILE AN APPEAL BEYOND THE 10 DAY PERIOD. date of the appellant appealed decision. However. Accompanied by: 3P’S 1. ~ Once the bond has been reduced. 6. award or order. 3. Filed within the reglementary period provided in section 1 of this Rule. ~ If the NLRC has the authority to entertain a motion to reduce bond. ~ Is it possible to file a Motion to Reduce Bond? ~ Yes. Proof of payment of the required appeal fee & legal research fee 2. 4 . In the form of a memorandum of appeal which: GRD 1. A MERE NOTICE OF APPEAL IS NOT SUFFICIENT.. Note that the appeal is perfected once a bond is filed. WHAT IS MEANT BY 10 CALENDAR DAYS? ANS: 10 CALENDAR DAYS INCLUDES SAT SUN & HOLIDAY. DOES A MEMORANDUM HAVE TO BE TAKEN UNDER OATH? YES. Appeal fee is jurisdictional. rule that for petitioner's failure to post the required bond within the reglementary period after it has been ordered reduced. the relief prayed for 3. THE CASH OR SURETY BOND EXCLUDES DAMAGES & ATTORNEY’S FEES. 3. IF THE 10TH DAY TO FILE AN APPEAL FALLS ON A HOLIDAY OR WEEKEND. We. see Rule 6. The appeal shall be: WV-MCA 2.

Since the motion for reconsideration has been denied. Will the Appeal by Certiorari under Rule 45 prevent the decision of the CA from becoming final and executory? It will become final and executory. always follow the principle of HIERARCHY OF COURTS. To prevent execution of the decision. 20 days. is there an appeal of the decision of the NLRC? NO. Appeal by Certiorari under Rules 45 of the Rules of Court to be filed within 15 days from receipt of the decision of the CA on the ground of pure questions of law. However. to enjoin enforcement of the decision of the NLRC which is final and executory. However. NLRC: COMPOSITION (RA 9347 AMENDING ART 212 TO 216. From the CA. for how many days will it be valid? 60 days. promulgating rules & regulations governing the hearing & disposition of cases before its Divisions & Regional Arbitration Branches and 5 . To be filed within 15 days. The ground of prima facie evidence of abuse of discretion is a ground for appealing the decision of the LA to the NLRC. It must be filed within 10 calendar days from receipt of the dismissal of the appeal. Will the filing of a Petition for Certiorari stay the decision of the NLRC? NO. which the CA may either grant or deny. But if you file an appeal by certiorari under Rule 45 within the prescribed period. There is no appeal from the decision of the NLRC but there is still a remedy under RULE 65 of the Rules of Court on the ground of grave abuse of discretion. RATIONALIZING THE COMPOSITION & FUNCTION OF THE NLRC EFFECTIVE AUG. the decision of the CA will be stayed. There is no more appeal from that decision but there is a Special Civil Action [Certiorari] on the ground of grave abuse of discretion. ~ The SC is not a trier of facts but factual findings of the SC may be reviewed in exceptional cases. COMMISSION EN BANC: The Commission shall sit en banc only for purposes of: 1. If there is no Motion for Reconsideration filed before the NLRC. If is involves the application of the rules or the law. If the decision of the NLRC becomes final and executory due to the denial of the MFR. the aggrieved party can apply for the issuance of a Temporary Restraining Order. If issued by RTC. ~ Note that a Special Civil Action is an original action and the RTC. Can it be extended? NO. 2006 The Commission shall be composed of a Chairman & 23 Commissioners. From the CA. it is a “question of law”. What if the Motion for Reconsideration is denied? The decision will become final and executory.The NLRC may grant or dismiss the appeal. If you apply for a TRO. At this stage where the NLRC decision is the subject of the certiorari. the decision becomes final and executory and therefore there is no way by which another government body can review the case. the RTC does not have jurisdiction because the RTC is of the same level as the NLRC and the LA is of the same level as the lower courts. There is no way of preventing the decision of the NLRC from becoming final and executory except by the filing of MOTION FOR RECONSIDERATION within the prescribed period of 10 days. you have to apply for the issuance of a TRO and eventually a writ of injunction. the decision will have to become final and executory and subject to execution. Can the aggrieved party file a motion for reconsideration? YES. 26. CA and SC have concurrent and original jurisdiction. the only remedy is a motion for reconsideration. is there a remedy? YES. is there still a Motion For Reconsideration? YES. under Rule 65.

functions & duties through its 8 division. FINALITY OF THE DECISIONS. resolution or order shall be entered in the book of entries of judgment. The Chairman shall call the Commission to an en banc session atleast twice a year preferably on the 1st week of June & 1st week of December. In case of the effective absence or incapacity of the Chairman. fourth. except when he/she is acting as presiding commissioner of the Division in the absence of the regular Presiding Commissioner. the Executive Clerk or Deputy Executive Clerk shall consider the decision. the seventh Division appealed cases from the Visayas Region. a majority of all the members of the Commission may call a Special en banc session to discuss & decide on urgent & important matters which need immediate action. fifth & sixth divisions shall have exclusive territorial jurisdiction over appealed cases coming from Luzon. resolutions or orders of the Commission shall become final & executory after 10 calendar days from receipt thereof by the counsel or authorized representative or the parties if not assisted by counsel or representative. In the absence of return cards. to deliberate & decide on any matter before it. the Commission shall impose such sanction and shall issue such orders as may be necessary to implement the said order or resolution. DIVISIONS: The Commission shall exercise its adjudicatory and all other powers. RESOLUTIONS OF NLRC 1. ORDERS. formulation of policies affecting its administration & operations. resolution or order as final & executor after 60calendar days from the date of mailing. The Chairman. the decision. He/ She shall not however participate in the voting by the Division. including the enlistment of law enforcement agencies having jurisdiction of the area for the purpose of enforcing the same. the Presiding Commissioner of the Second Division shall be the Acting Chairman. However. and the eight Division appealed cases from Mindanao including those from ARMM. It may. review. the first. CHAIRMAN – Shall preside over all sessions of the Commission en banc. second. ENTRY OF JUDGMENT – Upon the expiration of 10 calendar days period.2. the decisions. on temporary or emergency basis. third. Of the 8 Divisions. if in his/her judgement his/her presence therein will best serve the interest of labor justice. 1. the Commission in the exigency of the service shall be assisted by a Labor Arbiter who may be directed to study. LABOR ARBITER’S DECISION In the resolution of cases on appeal. hear & receive evidence & submit reports thereon. In case of non compliance. 6 . RULE X SEC 9: EFFECTS OF DEFIANCE – The order or resolution enjoining the performance of illegal acts shall be immediately executory in accordance with the terms thereof. Except as provided in Sec 9 of Rule X. allow cases within the jurisdiction of any division to be heard by any other division whose docket allows the additional workload and such transfer will not expose litigants unnecessary additional expense. aided by the Executive Clerk of the Commission shall have administrative supervision over the Commission & its Regional Arbitration Branches and all its personnel including the Executive Labor Arbiters & Labor Arbiters. respectively. The Chairman of the Commission may convene & preside over the session of any Division to consider any case pending before it and participate in its deliberations. Each Division shall consist of one member from the public sector who shall act as the Presiding Commissioner and one member each from the worker & employees sectors. certifications from the post office or the courier or other proofs of service to the parties. He is the Presiding Commissioner of the First Division.