You are on page 1of 30

SUGGESTED ANSWERS TO THE 2017 BAR EXAMINATIONS LABOR AND SOCIAL

LEGISLATION: PART ONE


I
A.
What are the accepted tests to determine the existence of an employer-employee
relationship? (5%)
SUGGESTED ANSWER:
The four elements of an employment relationship are: (a) the selection and
engagement of the employee; (b) the payment of wages; (c) the power of dismissal;
and (d) the employers power to control the employees conduct. (Lakas sa
Industriya ng Kapatirang Haligi ng Alyansa-Pinagbuklod ng Manggagawang Promo
ng Burlingame v. Burlingame Corporation, G.R. No. 162833, June 15, 2007, 524
SCRA 690, 695, citing Sy v. Court of Appeals, 398 SCRA 301, 307-308 (2003); Pacific
Consultants International Asia, Inc. v. Schonfeld, G.R. No. 166920, February 19,
2007, 516 SCRA 209, 228)
NOTE: The foregoing answer in can be found in page 332 of the book entitled
Principles and Cases Labor Standards and Social Legislation, First Edition 2015, by
Atty. Voltaire T. Duano. The topic on employer-employee relation has been time
and again the subject matter of bar questions, more specifically during the 2016,
2014, 2012, 2011, 2010, 2008, 2002, 1996 and 1991 Bar Examinations.
B.
Applying the tests to determine the existence of an employer-employee
relationship, is a jeepney driver operating under the boundary system an employee
of his jeepney operator or a mere lessee of the jeepney? Explain your answer. (3%)
SUGGESTED ANSWER:
In a number of cases decided by the Supreme Court, (National Labor Union vs.
Dinglasan, 98 Phil. 649, 652 (1996); Magboo vs. Bernardo, 7 SCRA 952, 954 (1963);
Lantaco, Sr. vs. Llamas, 108 SCRA 502, 514 [1981]), it was ruled that the relationship
between jeepney owners/operators on one hand and jeepney drivers on the other
under the boundary system is that of employer-employee and not of lessor-lessee.
It was explained that in the lease of chattels, the lessor loses complete control over
the chattel leased although the lessee cannot be reckless in the use thereof,
otherwise he would be responsible for the damages to the lessor. In the case of
jeepney owners/operators and jeepney drivers, the former exercise supervision
and control over the latter. The management of the business is in the owners
hands. The owner as holder of the certificate of public convenience must see to it
that the driver follows the route prescribed by the franchising authority and the
rules promulgated as regards its operation. Now, the fact that the drivers do not
receive fixed wages but get only that in excess of the so-called boundary they pay
to the owner/operator is not sufficient to withdraw the relationship between them
from that of employer and employee.
NOTE: The foregoing answer in can be found in pages 341-342 of the book entitled
Principles and Cases Labor Standards and Social Legislation, First Edition 2015, by
Atty. Voltaire T. Duano. The topic on employer-employee relation has been time
and again the subject matter of bar questions, more specifically during the 2016,
2014, 2012, 2011, 2010, 2008, 2002, 1996 and 1991 Bar Examinations.
II.
Procopio was dismissed from employment for stealing his co-employee Rauls
watch. Procopio filed a complaint for illegal dismissal. The Labor Arbiter ruled in
Procopios favor on the ground that Rauls testimony was doubtful, and, therefore,
the doubt should be resolved in favor of Procopio. On appeal, the NLRC reversed
the ruling because Article 4 of the Labor Code which states that all doubts in the
interpretation and implementation of the provisions of the Labor Code, including
the implementing rules and regulations, shall be resolved in favor of labor applied
only when the doubt involved the implementation and interpretation of the
Labor Code; hence, the doubt, which involved the application of the rules on
evidence, not the Labor Code, could not necessarily be resolved in favor of
Procopio. Was the reversal correct? Explain your answer. (3%)
SUGGESTED ANSWER:
In Peaflor v. Outdoor Clothing Manufacturing, G.R. No. 177114, January 21, 2010,
the Supreme Court explained the application of Article 4 of the Labor Code
regarding doubts on respondents evidence on the voluntariness of petitioners
resignation. Thus, the High Court said:
Another basic principle is that expressed in Article 4 of the Labor Code that all
doubts in the interpretation and implementation of the Labor Code should be
interpreted in favor of the workingman. This principle has been extended by
jurisprudence to cover doubts in the evidence presented by the employer and the
employee. (Fujitsu Computer Products Corporation of the Philippines v. Court of
Appeals, 494 Phil. 697 [2005]) As shown above, Peaflor has, at very least, shown
serious doubts about the merits of the companys case, particularly in the
appreciation of the clinching evidence on which the NLRC and CA decisions were
based. In such contest of evidence, the cited Article 4 compels us to rule in
Peaflors favor. Thus, we find that Peaflor was constructively dismissed given the
hostile and discriminatory working environment he found himself in, particularly
evidenced by the escalating acts of unfairness against him that culminated in the
appointment of another HRD manager without any prior notice to him. Where no
less than the companys chief corporate officer was against him, Peaflor had no
alternative but to resign from his employment. (Unicorm Safety Glass, Inc. v.
Basarte, 486 Phil. 493 [2004])
NOTE: The foregoing answer in can be found in page 30 of the book entitled
Principles and Cases Labor Standards and Social Legislation, First Edition 2015, by
Atty. Voltaire T. Duano. The topic on Article 4 regarding the application of Article 4
on doubts in the evidence was asked last 2009 Bar Examination.
III.
A.
Andrew Manning Agency (AMA) recruited Feliciano for employment by Invictus
Shipping, its foreign principal. Meantime, AMA and Invictus Shipping terminated
their agency agreement. Upon his repatriation following his premature
termination, Feliciano claimed from AMA and Invictus Shipping the payment of his
salaries and benefits for the unserved portion of the contract. AMA denied liability
on the ground that it no longer had any agency agreement with Invictus Shipping.
Is AMA correct? Explain your answer. (3%)
SUGGESTED ANSWER:
AMA is not correct. Section 10 of Republic Act 10022 provides that the liability of
the principal/employer and the recruitment/placement agency for any and all
claims shall be joint and several. This provision shall be incorporated in the contract
for overseas employment and shall be a condition precedent for its approval. Such
liabilities shall continue during the entire period or duration of the employment
contract and shall not be affected by any substitution, amendment or modification
made locally or in a foreign country of the said contract.
NOTE: The foregoing answer in can be found in page 675 of the book entitled
Principles and Cases Labor Relations, First Edition 2016, by Atty. Voltaire T. Duano.
B.
As a rule, direct hiring of migrant workers is not allowed. What are the exceptions?
Explain your answer. (2.5%)
SUGGESTED ANSWER:
Direct Hires workers directly hired by employers for overseas employment as
authorized by the Secretary of Labor and Employment and processed by the POEA,
including:
1. Those hired by international organizations
2. Those hired members of the diplomatic corps.
3. Name hires or workers who are able to secure overseas employment opportunity
with an employer without the assistance or participation of any agency. [Labor
Code, POEA Rules] (Section 1(i), Rule II, Omnibus Rules and Regulations
Implementing The Migrant Workers and Overseas Filipinos Act of 1995 as amended
by Republic Act No. 10022)
The direct hires are exceptions to the ban on direct-hiring under Article 18 of the
Labor Code.
NOTE: The foregoing answer in can be found in page 112 of the book entitled
Principles and Cases Labor Standards and Social Legislation, First Edition 2015, by
Atty. Voltaire T. Duano. The topic on direct hiring was asked last 2010 Bar
Examination.
C.
Phil, a resident alien, sought employment in the Philippines. The employer, noticing
that Phil was a foreigner, demanded that eh first secures an employment permit
from the DOLE. Is the employer correct? Explain your answer. (2.5%)
SUGGESTED ANSWER:
The employer is not correct. According to Section 2, Department Order No. 97-09
Series of 2009, issued on August 26, 2009 [Revised Rules for the Issuance of
Employment Permits to Foreign Nationals]one of the foreign nationals that are
exempt from securing an employment permit is a permanent permanent resident
foreign nationals, probationary or temporary visa holders. Moreover, the Labor
Code speaks of non-resident aliens that are required to obtain an alien employment
permit.
NOTE: The foregoing answer can be found in pages 270 and 271 of the book entitled
Principles and Cases Labor Standards and Social Legislation, First Edition 2015, by
Atty. Voltaire T. Duano. The topic on alien employment permit has been time and
again the subject matter of bar questions, more specifically during the 2007 and
1995 Bar Examinations.
IV
The Regional Tripartite and Productivity Board (RTWPB) for Region 3 issued a wage
order on November 2, 2017 fixing the minimum wages for all industries throughout
Region 3.
(a) Is the wage order subject to the approval of the National Wages and Productivity
Commission before it takes effect? (2%)
SUGGESTED ANSWER:
No. the National Wages and Productivity Commission function is to review the
Wage Order issued by the Regional Tripartite and Productivity Board (RTWPB) (See
Section 4, Rule IV, NWPC GUIDELINES NO. 01 Series of 2007, dated June 19, 2007)
NOTE: The foregoing answer can be found in page 558 of the book entitled
Principles and Cases Labor Standards and Social Legislation, First Edition 2015, by
Atty. Voltaire T. Duano.
(b) The law mandates that no petition for wage increase shall be entertained within
a period of 12 months from the effectivity of the wage order. Under what
circumstances may the Kilusang Walang Takot, a federation of labor organizations
that publicly and openly assails the wage order as blatantly unjust, initiate the
review of the wage increases under the wage order without waiting for the end of
the 12-month period? Explain your answer. (3%)
SUGGESTED ANSWER:
If Kilusang Walang Takot feels aggrieved by the Wage Order issued by the Board it
may appeal such Order to the National Wages and Productivity Commission by
filing a verified appeal with the Board not later than ten (10) days from the date of
publication of the Order on the grounds of non-conformity with prescribed
guidelines and/or procedures, questions of law and grave abuse of discretion. (See
Section 1, Rule IV, in relation to Section 2 Rule V, NWPC GUIDELINES NO. 01 Series
of 2007, dated June 19, 2007)
NOTE: The foregoing answer can be found in pages 559-560 of the book entitled
Principles and Cases Labor Standards and Social Legislation, First Edition 2015, by
Atty. Voltaire T. Duano.
V
A.
Percival was a mechanic of Pacific Airlines. He enjoyed a meal break of one hour.
However, during meal breaks, he was required to be on stand-by for emergency
work. During emergencies, he was made to forego his meals or to hurry up eating.
He demanded payment of overtime for work done during his meal periods. Is
Percival correct? Explain your answer. (3%)
SUGGESTED ANSWER:
Percival is correct. While as a rule the eight hour period does not include the meal
break however, in the case of Percival he was required to forego his meals or to
hurry up eating. The meal period should therefore be considered compensable
hours of work and a work beyond eight hours. Percival is therefore entitled to
overtime time.
NOTE: The foregoing answer can be found in page 371 of the book entitled
Principles and Cases Labor Standards and Social Legislation, First Edition 2015, by
Atty. Voltaire T. Duano.
B.
Distinguish a learner from an apprentice. (4%)
SUGGESTED ANSWER:
As to the agreement
In Apprenticeship, the agreement entered by the parties is known as
Apprenticeship Agreement. (Articles 58 [d], Labor Code); In learnership, the
agreement entered by the parties is known as Learnership Agreement (Article 75,
Labor Code);
As to the period of agreement
In Apprenticeship, the agreement shall not be less than four (4) months and not
more than six (6) months; (Articles 58 [c] in relation to Article 61 and 3.10, TESDA
Circular No. 16, Series of 2004); In learnership, the agreement period shall not be
more than three (3) months; (Article 75 (c), Labor Code, 3.10, TESDA Circular No.
16, Series of 2004);
As to obligations to hire
In apprenticeship, the enterprise is not obliged to hire the apprentice after the
apprenticeship period; (Articles 61, Labor Code, 3.10, TESDA Circular No. 16, Series
of 2004); In learnership, the enterprise is obliged to hire the learner after the
learnership period (Article 75 (d), Labor Code, 3.10, TESDA Circular No. 16, Series
of 2004);
As to pre-termination of the agreement
In apprenticeship, upon pre-termination of the agreement there is no regular
employment by operation of law; (Articles 57-72, Labor Code); In learnership, a
learner allowed or suffered to work during the first two (2) months shall be deemed
regular employees if training is terminated by the employer before the end of the
stipulated period through no fault of the learners (Article 75 (d), Labor Code);
As to the person hired
In apprenticeship, the persons hired as trainees is known as apprentice; (Articles
58 [a], Labor Code, 2, TESDA Circular No. 16, Series of 2004); In learnership, the
persons hired as trainees is known as learner (Articles 73, Labor Code, 2, TESDA
Circular No. 16, Series of 2004);
As to the supplement on theoretical instructions
In apprenticeship, the training on the job is with compulsory related theoretical
instructions; (Article 58 [a], Labor Code, Section 4 [j], R.A. 7796, and 2, TESDA
Circular No. 16, Series of 2004); In learnership, the practical training on the job may
or may not be supplemented by related theoretical instructions; (2, TESDA Circular
No. 16, Series of 2004);
As to the reasons for hiring
In apprenticeship, the law did not provide any reasons where an apprentice may
be hired (Articles 59-72, Labor Code); In learnership, the law provides the following
reasons for hiring (1) when no experienced workers are available; (2) the
employment of learners is necessary to prevent curtailment of employment
opportunities; and (3) the employment does not create unfair competition in terms
of labor costs or impair or lower working standards (Article 74, Labor Code);
As to qualifications
In apprenticeship, the qualifications are (a) At least fifteen (15) years of age; (b)
Possess vocational aptitude and capacity for appropriate tests; and (c) Possess the
ability to comprehend and follow oral and written instructions and no justifications
or reasons given by law for hiring; (Articles 59, Labor Code); In learnership, the law
did not provide such qualifications. However, reasons or justifications for hiring are
provided by law (Articles 74, Labor Code);
As to what occupations hired
In apprenticeship, the occupations involves highly technical industries which
means trade, business, enterprise, industry, or other activity, which is engaged in
the application of advanced technology and apprenticeable occupations must be
approved by TESDA; (Articles 60, Labor Code and 3.3, TESDA Circular No. 16, Series
of 2004). In learnership, the occupations involves are semi-skilled and other
industrial occupations which are non-apprenticeable and learnable occupations
must be approved by TESDA (Articles 73, Labor Code and 3.3, TESDA Circular No.
16, Series of 2004).
NOTE: The foregoing answer can be found in pages 313-314 of the book entitled
Principles and Cases Labor Standards and Social Legislation, First Edition 2015, by
Atty. Voltaire T. Duano. The topic on the distinctions between apprentice and
learner has been the subject matter of bar questions during the 2016 and 2012 Bar
Examinations.
C.
Are there differences between a househelper and a homeworker? Explain your
answer?
Domestic worker or Kasambahay refers to any person engaged in domestic work
within an employment relationship such as, but not limited to, the following:
general househelp, nursemaid or yaya, cook, gardener, or laundry person while
(b) Industrial Homeworker means a worker who is engaged in industrial
homework.
NOTE: The foregoing answer can be found in pages 676 and 712 of the book entitled
Principles and Cases Labor Standards and Social Legislation, First Edition 2015, by
Atty. Voltaire T. Duano.
VI.
A.
One Pacific Airlines policies was to hire only single applicants as flight attendants,
and considered as automatically resigned the flight attendants at the moment they
got married. Is the policy valid? Explain your answer. (2.5%)
SUGGESTED ANSWER:
The policy is not valid. The policy is a violation of the Labor Codes prohibition on
stipulation against marriage under Article 134. The requirement that a company
policy must be reasonable under the circumstances to qualify as a valid exercise of
management prerogative was also at issue in the 1997 case of Philippine Telegraph
and Telephone Company v. NLRC, G.R. No. 118978, May 23, 1997. In said case, the
employee was dismissed in violation of petitioners policy of disqualifying from
work any woman worker who contracts marriage. The Supreme held that the
company policy violates the right against discrimination afforded all women
workers under Article 136 (now 134) of the Labor Code.
NOTE: The foregoing answer can be found in pages 623 and 627 of the book entitled
Principles and Cases Labor Standards and Social Legislation, First Edition 2015, by
Atty. Voltaire T. Duano. The topic on stipulation against marriage has been time
and again the subject matter of bar questions, more specifically during the 2012,
2010, 1997 and 1995 Bar Examinations.
B.
Tarcisio was employed as operations manager and received a monthly salary of
P25,000.00 through his payroll account with DB Bank. He obtained a loan from
Roberto to purchase a car. Tarcisio failed to pay Roberto when the loan fell due.
Roberto sued to collect, and moved to garnish Tarcisios payroll account. The latter
vigorously objected and argued that slaries were exempt from garnishment. Is
Tarcisio correct? Explain your answer. (3%)
SUGGESTED ANSWER:
Tarciso is not correct. In Gaa v. Court of Appeals, G.R. No. L-44169 December 3,
1985, the Supreme Court ruled that Article 1708 used the word "wages" and not
"salary" in relation to "laborer" when it declared what are to be exempted from
attachment and execution. The monthly salary of Tarcisio is therefore subject to
garnishment.
NOTE: The foregoing answer can be found in page 450 of the book entitled
Principles and Cases Labor Standards and Social Legislation, First Edition 2015, by
Atty. Voltaire T. Duano. The topic on the distinction between salary and wage has
been the subject matter of bar questions during the 1994 Bar Examination.
VII
Dr. Crisostomo entered into a retainer agreement with AB Hotel and Resort
whereby he would provide medical services to the guests and employees of AB
Hoteland Resort, which, in turn, would provide the clinic premises and medical
supplies. He received a monthly retainer fee of P60,000.00, plus a 70% share in the
service charges from AB Hoteland Resorts guests availing themselves of the clinics
services. The clinic employed nurses and allied staff, whose salaries, SSS
contributions and other benefits he undertook to pay. AB Hotel and Resort issued
directives giving instructions to him on the replenishment of emergency kits and
forbidding the clinic staff from receiving cash payments from guests. In time, the
nurses and the clinic staff claimed entitlement to rights as regular employees of AB
Hotelnad Resort, but the latter refused on the ground that Dr. Crisostomo, who
was their employer, was an independent contractor. Rule, with reasons. (4%)
SUGGESTED ANSWER:
The test of independent contractorship was applied in the case of Polyfoam-RGC
International Corporation v. Concepcion, G.R. No. 172349, June 13, 2012. Thus, the
High Court ruled:
The test of independent contractorship is whether one claiming to be an
independent contractor has contracted to do the work according to his own
methods and without being subject to the control of the employer, except only as
to the results of the work. (San Miguel Corporation v. Aballa, G.R. No. 149011,
June 28, 2005, 461 SCRA 392, 421) In San Miguel Corporation v. Semillano, G.R. No.
164257, July 5, 2010, 623 SCRA 114 the Court laid down the criteria in determining
the existence of an independent and permissible contractor relationship, to wit:
x x x [W]hether or not the contractor is carrying on an independent business; the
nature and extent of the work; the skill required; the term and duration of the
relationship; the right to assign the performance of a specified piece of work; the
control and supervision of the work to another; the employers power with respect
to the hiring, firing and payment of the contractors workers; the control of the
premises; the duty to supply the premises, tools, appliances, materials, and labor;
and the mode, manner and terms of payment. (San Miguel Corporation v.
Semillano, supra, at p. 124; Sasan, Sr. v. National Labor Relations Commission 4th
Division, supra at p. 691)
Applying the above-test, the nurses are employees of Dr. Crisostomo. The facts had
clearly stated that Dr. Crisostomo was the one paying the salaries of the nurses and
even reported them for SSS coverage. The element of payment of wages is present.
NOTE: The foregoing answer can be found in page 497 of the book entitled
Principles and Cases Labor Standards and Social Legislation, First Edition 2015, by
Atty. Voltaire T. Duano. The topic on the distinction between salary and wage has
been the subject matter of bar questions during the 1994 Bar Examination. The
problem can also be resolved by characterizing the relationship of Dr. Crisostomo
and AB Hoteland Resort as to whether it is a legitimate contracting or labor-only
contracting. The topic on contracting/subcontracting has been time and again the
subject matter of bar questions, more specifically during the 2016, 2014, 2013,
2012, 2011, 2009, 2004, 2002, 2001, 2000, 1997 and 1994 Bar Examinations.
VIII
Marciano was hired as Chief Engineer on board the vessel M/V Australia. His
contract of employment was for nine months. After nine months, he was re-hired.
He was hired a third time after another nine months. He now claims entitlement to
the benefits of a regular employee based on his performed tasks usually necessary
and desirable to the employers business for a continuous period of more than one
year. Is Marcianos claim tenable? Explain.
SUGGESTED ANSWER:
Marcianos claim is not tenable. The Supreme Court squarely passed upon the issue
in Millares v. NLRC, G.R. No. 110524, July 29, 2002, where one of the issues raised
was whether seafarers are regular or contractual employees whose employment
are terminated every time their contracts of employment expire. The Supreme
Court explained:
[I]t is clear that seafarers are considered contractual employees. They can not be
considered as regular employees under Article 280 of the Labor Code. Their
employment is governed by the contracts they sign everytime they are rehired and
their employment is terminated when the contract expires. Their employment is
contractually fixed for a certain period of time. They fall under the exception of
Article 280 whose employment has been fixed for a specific project or undertaking
the completion or termination of which has been determined at the time of
engagement of the employee or where the work or services to be performed is
seasonal in nature and the employment is for the duration of the season. We need
not depart from the rulings of the Court in the two aforementioned cases which
indeed constitute stare decisis with respect to the employment status of seafarers.
NOTE: The foregoing answer can be found in page 739 of the book entitled
Principles and Cases Labor Relations, First Edition 2016, by Atty. Voltaire T. Duano.
The topic on the seafarers has been time and again the subject matter of bar
questions, more specifically during the 2014 and 2002 Bar Examinations.
IX
Section 255 (245) of the Labor Code recognizes three categories of employees ,
namely: managerial, supervisory, and rank-and-file.
(a) Give the characteristics of each category of employees, and state whether the
employees in each category may organized and form unions. Explain your answer.
(5%)
SUGGESTED ANSWER:
Under Article 255 [245] of the Labor Code the following are provided:
Managerial employees are not eligible to join, assist or form any labor organization.
Supervisory employees shall not be eligible for membership in the collective
bargaining unit of the rank-and-file employees but may join, assist or form separate
collective bargaining units and/or legitimate labor organizations of their own.
The rank-and-file union and the supervisors union operating within the same
establishment may join the same federation or national union.
(b) May confidential employees who assist managerial employees, and who act in
a confidential capacity or have access to confidential matters being handled by
persons exercising managerial functions in the field of labor relations form, or
assist, or join labor unions? Explain your answer? (2.5%)
SUGGESTED ANSWER:
No. In Tunay na Pagkakaisa ng Manggagawa sa Asia Brewery v. Asia Brewery, Inc.,
G.R. No. 162025, August 3, 2010, the High Court explained, who are those
confidential employees covered by the prohibition to join, form and assist any labor
organization under Article 245 [now 255] of the Labor Code, as follows:
Confidential employees are defined as those who (1) assist or act in a confidential
capacity, (2) to persons who formulate, determine, and effectuate management
policies in the field of labor relations. The two (2) criteria are cumulative, and both
must be met if an employee is to be considered a confidential employee that is, the
confidential relationship must exist between the employee and his supervisor, and
the supervisor must handle the prescribed responsibilities relating to labor
relations. The exclusion from bargaining units of employees who, in the normal
course of their duties, become aware of management policies relating to labor
relations is a principal objective sought to be accomplished by the confidential
employee rule. (San Miguel Corp. Supervisors and Exempt Employees Union v.
Laguesma, G.R. No. 110399, August 15, 1997, 277 SCRA 370, 374-375, citing
Westinghouse Electric Corp. v. NLRB (CA6) 398 F2d 669 (1968), Ladish Co., 178
NLRB 90 (1969) and B.F. Goodrich Co., 115 NLRB 722 [1956])
NOTE: The foregoing answer can be found in page 273 of the book entitled
Principles and Cases Labor Relations, First Edition 2016, by Atty. Voltaire T. Duano.
The topic on the confidential employees covered by the prohibition has been time
and again the subject matter of bar questions, more specifically during the 2014,
2011, 2009, 2002 and 1999 Bar Examinations.
X.
A.
The labor sector has been loudly agitating for the end of labor-only contracting, as
distinguished from job contracting. Explain these two kinds of labor contracting,
give the effect of a finding that one is a labor-only contractor. Explain your answers.
(4%)
SUGGESTED ANSWER:
The Supreme Court in Polyfoam-RGC International Corporation vs. Concepcion,
G.R. No. 172349, June 13, 2012 citing Sasan, Sr. v. National Labor Relations
Commission 4th Division, G.R. No. 176240, October 17, 2008, 569 SCRA 670
distinguished permissible job contracting or subcontracting from labor-only
contracting, to wit:
Permissible job contracting or subcontracting refers to an arrangement whereby
a principal agrees to put out or farm out to a contractor or subcontractor the
performance or completion of a specific job, work or service within a definite or
predetermined period, regardless of whether such job, work or service is to be
performed or completed within or outside the premises of the principal. A person
is considered engaged in legitimate job contracting or subcontracting if the
following conditions concur:
(a) The contractor or subcontractor carries on a distinct and independent business
and undertakes to perform the job, work or service on its own account and under
its own responsibility according to its own manner and method, and free from the
control and direction of the principal in all matters connected with the performance
of the work except as to the results thereof;
(b) The contractor or subcontractor has substantial capital or investment; and
(c) The agreement between the principal and contractor or subcontractor assures
the contractual employees entitlement to all labor and occupational safety and
health standards, free exercise of the right to self-organization, security of tenure,
and social and welfare benefits.
In contrast, labor-only contracting, a prohibited act, is an arrangement where the
contractor or subcontractor merely recruits, supplies or places workers to perform
a job, work or service for a principal. In labor-only contracting, the following
elements are present:
(a) The contractor or subcontractor does not have substantial capital or investment
to actually perform the job, work or service under its own account and
responsibility; and
(b) The employees recruited, supplied or placed by such contractor or
subcontractor are performing activities which are directly related to the main
business of the principal. (Sasan, Sr. v. National Labor Relations Commission 4th
Division, supra, at pp. 689-690. [Citations omitted])
In PCI Automation Center, Inc. v. NLRC, G.R. No. 115920, January 29, 1996, the
effect of a finding that one is a labor-only contractor was ruled as follows:
In legitimate job contracting, no employer-employee relationship exists between
the employees of the job contractor and the principal employer. Even then, the
principal employer becomes jointly and severally liable with the job contractor for
the payment of the employees wages whenever the contractor fails to pay the
same. In such case, the law creates an employer-employee relationship between
the principal employer and the job contractors employees for a limited purpose,
that is, to ensure that the employees are paid their wages. Other than the payment
of wages, the principal employer is not responsible for any claim made by the
employees. (Philippine Bank of Communications vs. NLRC, 146 SCRA 347 [1986])
On the other hand, in labor-only contracting, an employer-employee relationship
is created by law between the principal employer and the employees of the labor-
only contractor. In this case, the labor-only contractor is considered merely an
agent of the principal employer. The principal employer is responsible to the
employees of the labor-only contractor as if such employees had been directly
employed by the principal employer. The principal employer therefore becomes
solidarily liable with the labor-only contractor for all the rightful claims of the
employees. (Philippine Bank of Communications vs. NLRC, 146 SCRA 347 [1986])
Thus, in legitimate job contracting, the principal employer is considered only an
indirect employer, (Article 107, Labor Code, as amended) while in labor-only
contracting, the principal employer is considered the direct employer of the
employees. (last paragraph of Article 106, Labor Code, as amended)
In short, the legitimate job contractor provides services while the labor-only
contractor provides only manpower. The legitimate job contractor undertakes to
perform a specific job for the principal employer while the labor-only contractor
merely provides the personnel to work for the principal employer.
NOTE: The foregoing answer can be found in pages 507508 of the book entitled
Principles and Cases Labor Relations, First Edition 2016, by Atty. Voltaire T. Duano.
The topic on job-contracting and labor-only contracting has been time and again
the subject matter of bar questions, more specifically during the 2014, 2013, 2012,
2011, 2009, 2004, 2002, 2001, 2000, 1997 and 1994 Bar Examinations.
B.
What are the grounds for validly terminating the services of an employee based on
a just cause? (5%)
SUGGESTED ANSWER:
An employer may terminate an employment for any of the following causes:
(a) Serious misconduct or willful disobedience by the employee of the lawful orders
of his employer or representative in connection with his work;
(b) Gross and habitual neglect by the employee of his duties;
(c) Fraud or willful breach by the employee of the trust reposed in him by his
employer or duly authorized representative;
(d) Commission of a crime or offense by the employee against the person of his
employer or any immediate member of his family or his duly authorized
representatives; and
(e) Other causes analogous to the foregoing. (Art. 297 [282], Labor Code)
NOTE: The foregoing answer can be found in pages 899-890 of the book entitled
Principles and Cases Labor Relations, First Edition 2016, by Atty. Voltaire T. Duano.
The topic on the just cause for termination has been time and again the subject
matter of bar questions, more specifically during the 2015, 2014, 2013, 2012, 2011,
2009, 2008, 2006, 2003, 2001, 1995, 1996, 1995, 1999 Bar Examinations.
C.
Give the procedure to be observed for validly terminating the services of an
employee based on a just cause? (4%)
SUGGESTED ANSWER:
As defined in Article 297 of the Labor Code, as amended, the requirement of two
written notices served on the employee shall observe the following:
(a) The first written notice should contain:
1. The specific causes or grounds for termination as provided for under Article 297
of the Labor Code, as amended, and company policies, if any;
2. Detailed narration of the facts and circumstances that will serve as basis for the
charge against the employee. A general description of the charge will not suffice;
and
3. A directive that the employee is given opportunity to submit a written
explanation within a reasonable period.
Reasonable period should be construed as a period of at least five (5) calendar
days from receipt of the notice to give the employee an opportunity to study the
accusation, consult or be represented by a lawyer or union officer, gather data and
evidence, and decide on the defenses against the complaint. (Unilever v. Rivera,
G.R. No. 201701, June 3, 2013; Section 12, DOLE Department Order 18-A)
(b) After serving the first notice, the employer should afford the employee ample
opportunity to be heard and to defend himself/herself with the assistance of
his/her representative if he/she so desires, as provided in Article 299 (b) of the
Labor Code, as amended.
Ample opportunity to be heard means any meaningful opportunity (verbal or
written) given to the employee to answer the charges against him/her and submit
evidence in support of his/her defense, whether in a hearing, conference or some
other fair, just and reasonable way. A formal hearing or conference becomes
mandatory only when requested by the employee in writing or substantial
evidentiary disputes exist or a company rule or practice requires it, or when similar
circumstances justify it. (Perez v. PT&T, G.R. No. 152048, April 7, 2009, Section 12,
DOLE Department Order 18-A)
(c) After determining that termination of employment is justified, the employer
shall serve the employee a written notice of termination indicating that: (1) all
circumstances involving the charge against the employee have been considered;
and (2) the grounds have been established to justify the severance of their
employment.
The foregoing notices shall be served personally to the employee or to the
employees last known address. (Section 5, 5.1, Rule I-A, D.O. No. 147-15, Series of
2015)
NOTE: The foregoing answer can be found in pages 899-890 of the book entitled
Principles and Cases Labor Relations, First Edition 2016, by Atty. Voltaire T. Duano.
The topic on the procedural due process has been time and again the subject
matter of bar questions, more specifically during the 2012, 2009, 2006, 1999 and
1998 Bar Examinations.
XI
A.
The modes of determining the exclusive bargaining agent of the employees in a
business are: (a) voluntary recognition; (b) certification election; and (c) consent
election. Explain how they differ from one another. (4%)
SUGGESTED ANSWER:
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, reported with the Regional Office in accordance with Rule VII,
Section 2 of these Rules. Certification Election or Consent 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. A certification election is ordered by the Department,
while a consent election is voluntarily agreed upon by the parties, with or without
the intervention by the Department. (Rule I, Section 1, Book V, Rules to Implement
the Labor Code)
NOTE: The foregoing answer can be found in pages 21 and 22 of the book entitled
Principles and Cases Labor Relations, First Edition 2016, by Atty. Voltaire T. Duano.
The topic on the representation issue has been time and again the subject matter
of bar questions, more specifically during the 2006, 2004, and 2000 Bar
Examinations.
B.
Marcel was the Vice President for Finance and Administration and a member of the
Board of Directors of Mercedes Corporation. He brought a complaint for illegal
suspension and illegal dismissal against Mercedes Corporation, which moved to
dismiss the complaint on the ground that the complaint pertained to the
jurisdiction of the RTC due to the controversy being intracorporate based on his
positions in the corporation. Marcel countered that he had only been removed as
Vice President for Finance and Administration, not as a member of the Board of
Directors. He also argued that his position was not listed as among the corporate
offices in Mercedes Corporations by-law. Is the argument of Marcel correct?
Explain your answer. (2.5%)
SUGGESTED ANSWER:
Marcels contention is correct. It is settled in Matling Industrial and Commercial
Corporation v. Coros, G.R. No. 157802, 13 October 2010, cited in Marc II Marketing
Inc. v. Joson, G.R. No. 171993, December 12, 2011, where it held, thus:
Conformably with Section 25, a position must be expressly mentioned in the [b]y-
[l]aws in order to be considered as a corporate office. Thus, the creation of an office
pursuant to or under a [b]y-[l]aw enabling provision is not enough to make a
position a corporate office. [In] Guerrea v. Lezama [citation omitted] the first ruling
on the matter, held that the only officers of a corporation were those given that
character either by the Corporation Code or by the [b]y-[l]aws; the rest of the
corporate officers could be considered only as employees or subordinate officials.
xxx
It is relevant to state in this connection that the SEC, the primary agency
administering the Corporation Code, adopted a similar interpretation of Section 25
of the Corporation Code in its Opinion dated November 25, 1993 [citation omitted],
to wit:
Thus, pursuant to the above provision (Section 25 of the Corporation Code),
whoever are the corporate officers enumerated in the by-laws are the exclusive
Officers of the corporation and the Board has no power to create other Offices
without amending first the corporate [b]y-laws. However, the Board may create
appointive positions other than the positions of corporate Officers, but the persons
occupying such positions are not considered as corporate officers within the
meaning of Section 25 of the Corporation Code and are not empowered to exercise
the functions of the corporate Officers, except those functions lawfully delegated
to them. Their functions and duties are to be determined by the Board of
Directors/Trustees. (Matling Industrial and Commercial Corporation v. Coros, supra
at 26-27) [Emphasis supplied.]
With the given circumstances and in conformity with Matling Industrial and
Commercial Corporation v. Coros, Marcel was not a corporate officer of Mercedes
Corporation because his position as Vice President for Finance and Administration
was not specifically mentioned in the roster of corporate officers in its corporate
by-laws.
NOTE: The foregoing answer can be found in page 46 of the book entitled Principles
and Cases Labor Relations, First Edition 2016, by Atty. Voltaire T. Duano. The topic
on the on whether an position is a corporate officer has been time and again the
subject matter of bar questions, more specifically during the 2015, 2014, 2011 and
1996 Bar Examinations.
C.
State the jurisdiction of the Voluntary Arbitrator, or Panel of Voluntary Arbitrators
in labor disputes? (4%)
SUGGESTED ANSWER:
The voluntary arbitrator or panel of voluntary arbitrators shall have exclusive and
original jurisdiction to hear and decide all unresolved grievances arising from:
1. The implementation or interpretation of the collective bargaining agreements;
(Article 274 [261], Labor Code, Section 4, Rule XIX, Book V, Omnibus Rules
Implementing the Labor Code)
2. The interpretation or enforcement of company personnel policies which remain
unresolved after exhaustion of the grievance procedure; (Article 274 [261], Labor
Code, Section 4, Rule XIX, Book V, Omnibus Rules Implementing the Labor Code)
3. Wage distortion issues arising from the application of any wage orders in
organized establishments; (par. 4, Article 124, Labor Code, Section 4, Rule XIX, Book
V, Omnibus Rules Implementing the Labor Code)
4. The interpretation and implementation of the productivity incentive programs
under RA 6971.
5. Upon agreement of the parties, shall also hear and decide all other labor disputes
including unfair labor practices and bargaining deadlocks. (Article 275. [262], Labor
Code, Section 4, Rule XIX, Book V, Omnibus Rules Implementing the Labor Code)
6. Violations of a Collective Bargaining Agreement, except those which are gross in
character, shall no longer be treated as unfair labor practice and shall be resolved
as grievances under the Collective Bargaining Agreement; (Article 274. [261], Labor
Code)
NOTE: The foregoing answer can be found in page 442 of the book entitled
Principles and Cases Labor Relations, First Edition 2016, by Atty. Voltaire T. Duano.
The topic on jurisdiction of the voluntary arbitrators or panel of voluntary
arbitrators has been time and again the subject matter of bar questions, more
specifically during the 2008, 2001, 1997 and 1995 Bar Examinations.
XII
A.
Juanito initiated a case for illegal dismissal against Mandarin Company. The Labor
Arbiter decided in his favor, and ordered his immediate reinstatement with full
backwages and without loss of seniority and other benefits. Mandarin Company
did not like to allow him back in its premises to prevent him from influencing his
co-workers to move against the interest of the company; hence, it directed his
payroll reinstatement and paid his full backwages and other benefits even as it
appealed to the NLRC.
A few months later, the NLRC reversed the ruling of the Labor Arbiter and declared
that Juanitos dismissal was valid. The reversal ultimately became final.
May Mandarin Company recover the backwages and other benefits paid to Juanito
pursuant to the decision of the Labor Arbiter in view of the reversal by the NLRC?
Rule, with reasons. (2.5%)
SUGGESTED ANSWER:
Mandarin Company cannot recover the backwages and other benefits paid to
Juanito pursuant to the decision of the Labor Arbiter despite the reversal by the
NLRC. The refund doctrine has already been reversed in Garcia v. Philippine
Airlines, Inc., G. R. No. 164856, July 20, 2009, where the Supreme Court then
stressed that as opposed to the abovementioned Genuino v. National Labor
Relations Commission, G.R. Nos. 142732-33 & 142753-54, December 4, 2007, 539
SCRA 342 the social justice principles of labor law outweigh or render inapplicable
the civil law doctrine of unjust enrichment.
NOTE: The foregoing answer can be found in pages 636-638 of the book entitled
Principles and Cases Labor Relations, First Edition 2016, by Atty. Voltaire T. Duano.
The topic on refund doctrine was asked for the first time for this years bar
examinations.
B.
Gene is a married regular employee of Matibay Corporation. The employee and
Matibay Corporation had an existing CBA that provided for funeral or bereavement
aid of P15,000.00 in case of the death of a legal dependent of a regular employee.
His widowed mother, who had been living with him and his family for many years,
died; hence, he claimed the funeral aid. Matibay Corporation denied the claim on
the basis that she had not been his legal dependents as the term legal dependent
was defined by the Social Security Law.
(a) Who may be the legal dependents of Gene under the Social Security Law? (2.5%)
SUGGESTED ANSWER:
Section 8 (e) of the Social Security Law provides that the dependents shall be the
following:
(1) The legal spouse entitled by law to receive support from the member;
(2) The legitimate, legitimated or legally adopted, and illegitimate child who is
unmarried, not gainfully employed, and has not reached twenty-one (21) years of
age, or if over twenty-one (21) years of age, he is congenitally or while still a minor
has been permanently incapacitated and incapable of self-support, physically or
mentally; and
(3) The parent who is receiving regular support from the member.
NOTE: The foregoing answer can be found in page 862 of the book entitled
Principles and Cases Labor Standards and Social Legislation, First Edition 2015, by
Atty. Voltaire T. Duano. The topic on dependents has been time and again the
subject matter of bar questions, more specifically during the 2014 and 2002 Bar
Examinations.
(b) Is Gene entitled to the funeral aid for the death of his widowed mother? Explain
your answer. (2%)
SUGGESTED ANSWER:
Gene is entitled to the funeral aid for the death of his widowed mother under CBA.
This is because the said CBA clearly provided for funeral or bereavement aid of
P15,000.00 in case of the death of a legal dependent of a regular employee. But in
so far as the SSS law is concerned, the only way that Gene can recover is that if he
will qualify as the primary beneficiary of his widowed mother provided he has the
restrictions on the definition of dependent children.
NOTE: The foregoing answer can be found in pages 862-864 of the book entitled
Principles and Cases Labor Standards and Social Legislation, First Edition 2015, by
Atty. Voltaire T. Duano in so far as the definition of beneficiary in relation to
dependents are concerned.
C.
Rosa was granted vacation leave by her employer to spend three weeks in Africa
with her family. Prior to her departure, the General Manager of the company
requested her to visit the plant of the company in Zimbabwe in order to derive best
manufacturing practices useful to the company. She accepted the request because
the errand would be important to the company and Zimbabwe was anyway in her
itinerary. It appears that she contracted a serious disease during the trip. Upon her
return, she filed a claim for compensation, insisting that she had contracted the
disease while serving the interest of her employer.
Under the Labor Code, the sickness or death of an employee, to be compensable,
must have resulted from an illness either definitely, accepted as an occupational
disease by the Employees Compensation Commission, or caused by employment
subject to proof that the risk of contracting the same is increased by working
conditions.
Is the serious disease Rosa contracted during her trip to Africa compensable?
Explain your answer. (2.5%)
SUGGESTED ANSWER:
In Government Service Insurance System vs. Besitan, G.R. No. 178901, November
23, 2011, explained the concept of increased theory as follows:
Corollarily, for the sickness or resulting disability or death to be compensable, the
claimant must prove either (1) that the employees sickness was the result of an
occupational disease listed under Annex A of the Amended Rules on Employees
Compensation, or (2) that the risk of contracting the disease was increased by his
working conditions.
Certainty is not required only probability
Under the increased risk theory, there must be a reasonable proof that the
employees working condition increased his risk of contracting the disease, or that
there is a connection between his work and the cause of the disease. (Castor-
Garupa v. Employees Compensation Commission, G.R. No. 158268, April 12, 2006,
487 SCRA 171, 180) Only a reasonable proof of work-connection, not direct causal
relation, however, is required to establish compensability of a non-occupational
disease. (Government Service Insurance System v. Cordero, G.R. Nos. 171378 &
171388, March 17, 2009, 581 SCRA 633, 640) Probability, and not certainty, is the
yardstick in compensation proceedings; thus, any doubt should be interpreted in
favor of the employees for whom social legislations, like PD No. 626, were enacted.
(Government Service Insurance System v. Corrales, G.R. No. 166261, June 27, 2008,
556 SCRA 230, 243-244)
Applying the above ruling, Rosa must present a reasonable proof that her working
condition increased his risk of contracting the disease, or that there is a connection
between his work and the cause of the disease otherwise the same is not
compensable.
NOTE: The foregoing answer can be found in page 766 of the book entitled
Principles and Cases Labor Standards and Social Legislation, First Edition 2015, by
Atty. Voltaire T. Duano. The topic on compensation proceedings has been time and
again the subject matter of bar questions, more specifically during the 2012, 2005
and 1996 Bar Examinations.
.
XIII
A.
Given that the liability for an illegal strike is individual, not collective, state when
the participating union officers and members may be terminated from
employment because of the illegal strike. Explain your answer. (4%)
SUGGESTED ANSWER:
The following are the effects of participation in an illegal strike and commission of
illegal acts during strike:
1. Any union officer who knowingly participates in an illegal strike; and
2. Any worker or union officer who knowingly participates in the commission of
illegal acts during a strike may be declared to have lost his employment status;
(Third paragraph, Article 279 (a) [264 (a)], Labor Code)
NOTE: The foregoing answer can be found in page 520 of the book entitled
Principles and Cases Labor Relations, First Edition 2016, by Atty. Voltaire T. Duano.
The topic on the effects of participation in illegal strike has been time and again the
subject matter of bar questions, more specifically during the 2015, 2014, 2012,
2010, 2008, 2007, 2006, 1997, 1995 and 1994 Bar Examinations.
B.
A sympathetic strike is stoppage of work to make common cause with other strikers
in another establishment or business. Is the sympathetic strike valid? Explain your
answer. (1%)
SUGGESTED ANSWER:
The illegal stoppage of work by way of sympathetic strike has been settled in the
case of Biflex Phils. Labor Union (NAFLU) v. Filflex Industrial and Manufacturing
Cororation, G.R. No. 155679, 19 December 2006, where it was ruled that stoppage
of work due to welga ng bayan is in the nature of a general strike, an extended
sympathy strike. It affects numerous employers including those who do not have a
dispute with their employees regarding their terms and conditions of
employment.Employees who have no labor dispute with their employer but who,
on a day they are scheduled to work, refuse to work and instead join a welga ng
bayan commit an illegal work stoppage. Even if petitioners joining the welga ng
bayan were considered merely as an exercise of their freedom of expression,
freedom of assembly or freedom to petition the government for redress of
grievances, the exercise of such rights is not absolute. For the protection of other
significant state interests such as the right of enterprises to reasonable returns on
investments, and to expansion and growth enshrined in the 1987 Constitution must
also be considered, otherwise, oppression or self-destruction of capital in order to
promote the interests of labor would be sanctioned. And it would give imprimatur
to workers joining demonstrations/rallies even before affording the employer an
opportunity to make the necessary arrangements to counteract the implications of
the work stoppage on the business, and ignore the novel principle of shared
responsibility between workers and employers aimed at fostering industrial peace.
There being no showing that petitioners notified respondents of their intention, or
that they were allowed by respondents, to join the welga ng bayan on October 24,
1990, their work stoppage is beyond legal protection.
NOTE: The foregoing answer can be found in page 506 of the book entitled
Principles and Cases Labor Relations, First Edition 2016, by Atty. Voltaire T. Duano.
The topic on sympathetic strike has been the subject matter of bar questions during
the 2004 Bar Examinations.
C.
Due to business recession, Ballistic Company retrenched a part of its workforce.
Opposing the retrenchment, some of the affected employees staged a strike.
Eventually, the retrenchment was found to be justified, and the strike was declared
illegal; hence, the leaders of the strike, including the retrenched employees, were
declared to have lost their employment status.
Are the striking retrenched employees still entitled to separation pay under Sec.
298 (283) of the Labor Code despite the illegality of their strike? Explain your
answer. (2%)
SUGGESTED ANSWER:
The strikers including the union officers should be paid their separation pay by
virtue of retrenchment notwithstanding the illegal strike was declared illegal. The
issue on entitlement to separation pay due to authorized cause and the ground for
termination due to knowingly participating in illegal strike are distinct and different.
XIV
Pursuant to his power under Sec. 278(g) (263(g)) of the Labor Code, the Secretary
of Labor assumed jurisdiction over the 3-day old strike in Armor Steel Plates, Inc.,
one of the countrys bigger manufacturers of steel plates, and ordered all the
striking employees to return to work. The striking employees ignored the order to
return to work.
(a) What conditions may justify the Secretary of Labor to assume jurisdiction?
(2.5%)
SUGGESTED ANSWER:
Pursuant to Article 263 (g) [now 278 (g)], when a labor dispute causes or is likely to
cause a strike or lockout in an industry indispensable to the national interest, the
Secretary of Labor and Employment may assume jurisdiction over the dispute and
decide it or certify the same to the National Labor Relations Commission (NLRC) for
compulsory arbitration. (Section 1, Operational Guidelines of Department Order
No. 40-G-03, Series of 2010, dated February 24, 2011)
For a valid exercise of the assumption of jurisdiction authority, any of the following
conditions must be present:
a. Both parties have requested the Secretary of Labor and Employment to assume
jurisdiction over the labor dispute; or
b. After a conference called by the Office of the Secretary of Labor and Employment
on the propriety of the issuance of the Assumption or Certification Order, motu
proprio or upon a request or petition by either party to the labor dispute. In the
said conference. the parties shall also be encouraged to amicably settle the dispute.
(Section 2, Operational Guidelines of Department Order No. 40-G-03, Series of
2010, dated February 24, 2011)
NOTE: The foregoing answer can be found in pages 468-487 of the book entitled
Principles and Cases Labor Relations, First Edition 2016, by Atty. Voltaire T. Duano.
The topic on the assumption of jurisdiction has been time and again the subject
matter of bar questions, more specifically during the 2012, 2004 and 1996 Bar
Examinations.
(b) What are the consequences of the assumption of jurisdiction by the Secretary
of Labor, and of the disobedience to the return to work? Explain your answer.
(2.5%)
The consequences of assumption of jurisdiction are as follows:
a. If a strike or lockout has not taken place, the parties are enjoined to conduct any
untoward action that may lead to a strike or lockout.
b. if a strike or lockout has already taken place, all striking and locked out workers
shall, within twenty-four (24) hours from receipt of an Assumption or Certication
Order, immediately return to work and the employer shall immediately resume
operations and readmit all workers under the same terms and conditions prevailing
before the strike.
c. At any point in time, the parties are not prevented from submitting the dispute
to Voluntary Arbitration with the Secretary of Labor and Employment or his/her
duly authorized representative as Voluntary Arbitrator or Panel of Voluntary
Arbitrators. (Section 3, Operational Guidelines of Department Order No. 40-G-03,
Series of 2010, dated February 24, 2011)
While the consequence of disobedience to the return to work has been ruled in the
case of Manila Hotel Employees Association v. Manila Hotel Corporation, G.R. No.
154591, March 5, 2007. In holding that defiance of the assumption order or a
return-to work order by a striking employee, whether a union officer or a member,
is an illegal act and, therefore, a valid ground for loss of employment status. The
High Court explained:
The law explicitly prohibits such acts.
ART. 263. STRIKES, PICKETING, AND LOCKOUTS
x x x x (omitted)
ART. 264. PROHIBITED ACTIVITIES
(a) x x x x
(omitted)

More to the point, the Court has consistently ruled in a long line of cases spanning
several decades that once the SOLE assumes jurisdiction over a labor dispute, such
jurisdiction should not be interfered with by the application of the coercive
processes of a strike or lockout. Defiance of the assumption order or a return-to
work order by a striking employee, whether a union officer or a member, is an
illegal act and, therefore, a valid ground for loss of employment status. (Grand
Boulevard Hotel v. Genuine Labor Organization of Workers in Hotel, Restaurant and
Allied Industries (GLOWHRAIN), G.R. No. 153664, 18 July 2003, 406 SCRA 688, 710;
Telefunken Semiconductors Employees Union-FFW v. Court of Appeals, G.R. Nos.
143013-14, 18 December 2000, 348 SCRA 565, 582; Federation of Free Workers v.
Inciong, G.R. No. 49983, 20 April 1982, 208 SCRA 157, 165)