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 employer’s power to control the employee’s 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 owner’s 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 Raul’s watch. Procopio filed a complaint
for illegal dismissal. The Labor Arbiter ruled in Procopio’s favor on the ground that Raul’s 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 Peñaflor 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 respondent’s evidence on the voluntariness of
petitioner’s 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,
Peñaflor has, at very least, shown serious doubts about the merits of the company’s 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 Peñaflor’s favor. Thus, we find that Peñaflor 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 company’s chief corporate officer was against him, Peñaflor 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 Airline’s 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 Code’s 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 petitioner’s 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 Tarcisio’s 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 Resort’s guests availing themselves of the clinic’s 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 employer’s power with respect to the hiring, firing
and payment of the contractor’s 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.